PRINCIPLES OF PUBLIC INTERNATIONAL LAW Seventh Edition BY IAN BROWNLIE, CBE, QC, FBA Bencher of Gray's Inn Chichele Professar of Public International Law in the University of Oxford (Emeritus) Distinguished Fellow of All Souls College, Oxford Member of the Institute of International Law Member and Former Chairman of the International Law Commission OXFORD UNIVERSITY PRESSUNIVERSITY PRESS ‘Great Clarendon Steet, Oxford OX2 6DP Oxford University Press is3 department of the University of Oxford, Itfarthets the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Osford New York ‘Auckland Cape Town Dares Salaam HongKong Karachi ‘Kuala Lumpur Madrid Melbourne Mexico City Nairobi ‘New Delhi Shanghai Talpe! 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Itiscommon for writers to distinguish the formal sources and the material sources yaThe formésare those legal procedures and methods for the creation of rules of \Lapplicatianwhich are legally binding on the addressees. The material sources Kgbindingwrales of general application. In systems of municipal law the concept fmalisourcexéfers to the constitutional machinery of law-making and the status therrule is established by constitutional law. In the context of international relations se of the;termn: formal source’ is awkward and misleading since the reader is put smind of the constitutional machingry of law-making which exists within states, No sch machinety.exists for the creation of rules of international law. Decisions of elnternational Court, unanimously supported resolutions of the General Assembly ofthe United Nations concerning matters of law, and important muilateral treaties Concerned to cadify or develop rules of international law, are all lacking the quality to “bind states generally. In a sense ‘formal sources’ do not exist in international law. As substitute, and perhaps an equivalent, there is the principle that the general consent tescxeatéstulés of general application. The definition of custom in international Sessentially a statement of this principle (and not a reference to ancient custom Se git Selden, 101 FHague Recut (1960, 1, 16-108; Fitzmaurice, Spmbolee Versi (1958. 83-76; Patry The Sourees and Evidences of International Law (1965); Lauterpacht, International Law: per (190), 58-135: Elis, in Friedmann, Henkin, and Lsstayn (eds) Transnational Lawn angng See 197, 34-65; Schache, in Macdonald and Johostn (eds) The Sracure and Prove rien ba (943, 745-99; Eades en Vhonneu de Roberto Ago (1947 Cassese and Weller (ds) righ an Sabiy jn International Low: baking (948), Thay. 61 BY (1930) 31-131 and 76 (2005), ; (199 529-5; Tomascha, 2 Hague Recue(1993,1V),195-97;Fler 39 German (199), 198-248;Zemanek, 26 Hague Recueil (997, 131-282 Deg, Soures of Intemational a B (sp7i oie at Chinkin, The Making of aernational Low 2007) 7 fee, 9p. 6-12,4 PRELIMINARY TOPICS The consequence is that in international law the distinction between formal and ‘material sources is difficult to maintain, ‘The formerin effect consist simply of a quasi constitutional principle of inevitable but unhelpful generality. What matters then the variety of material sources, the all-important evidences of the existence of con- sensus among states concerning particular rules or practices. Thus decisions of the International Court, resolutions of the General Assembly of the United Nations, and ‘law-making’ multilateral treaties are very material evidence of the attitude of states toward particular rules, and the presence or absence of consensus. Moreover, there isa process of interaction which gives these evidences a status somewhat higher than mere ‘material sources. Thus neither an unratified treaty nor a report of the International Law Commission to the General Assembly has any binding force either in the law of treaties or otherwise. However, such instruments stand as candidates for public reac- tion, approving or not, as the case may be: they may stand for a threshold of consensus and confront states in a significant way. “The law of treaties concerns the question of the content of obligations between individual states: the incidence of obligations resulting from express agreement. In principle, the incidence of particular obligations isa matter distinct from the sources. ‘Terminology presents vome confusion in this respect. Thus treaties binding a few states only are dubbed ‘particular international law’ as opposed to ‘general interna- tional law’ comprising multilateral ‘law-making’ treaties to which a majority of states are parties. Yet in strictness there is no fundamental distinction here: both types of treaty only create particular obligations and treaties are as such a source of obligation and nota source of rules of general application. Treaties may form an important mate- rial source, however: see section 4 below. It is perhaps useful to remark on two other usages of the term ‘sources’. Thus the term may refer to the source of the binding quality of international law as such and also to the literary sources of the law as sources of information. 2. THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE “The pertinent provisions are as follows: Article 38. 1, The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (@) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; (b) international custom, as evidence of a general practice accepted as laws (0 the general principles of law recognized by civilized nations; 2 See infra, pp. 12-14vreover, theres igher than ver in the la for publica urces’. Thus tw as suchi ternational ai SOURCES OF THE LAW ‘of the Court has no binding force except between the parties and pectofthatpparticular case. 9 provisions ‘are expressed in terms of the function of the Court, but they repre- the previolis practice of arbitral eibunals, and Article 38 is generally regarded as urced ail iflooked at closely, cannot be regarded asa straightforward enu- thin o ofthe sources. The first question which arises is whether paragraph 1 creates archy of sources, The provisions are not stated to represent a hierarchy, but the Urutinien intended to give an order and inone draft the word ‘successively appeared.* tice the Court may be expected to observe the order in which they appear: () is nt formation of custom. Sources (b) and, perhaps, (c) are formal sources, {Heat or those who care for such classification. Source (4), with its reference ‘assub- ts regard (2), asa reference to formal sources, and Fitzmaurice has criticized be classification of judicial decisions as ‘subsidiary means’* Gand the ceference to subsidiary means. Moreover, itis probably unwiae to think SP inerms of hierarchy dictated by the order (2)to(€) in al cases” Source (a) relates to “principle part ofthe jus cogen* would be void or voidable. Again, the interpretation of ‘Atteaty may involve resort to general principles of law or of international law.’ A treaty ay be displaced or amended by a subsequent custom, where such effects are recog- Bedby the subsequent conduct of the parties.” rf ternational Justice (1942), 601 Se also the Revised General Rasirthe uci element of international Disputes At. 26 Model les on Abitrl Procedure adopted vhelL.C, Ae. 10, bk HLC(1958), i. 88 Report Selle, ibid 8 At. has often been incorporated text- iy orby elerence in the compromis of other tebnals 5 cficavtow Zales, 1LR22 (1955), 540. Seelso Quad, 13 Hague Recueil 42-5; Judge Tanaka, Dis eth We fies Cates Secon Pha. 1] Reports (1968), 30; Aker #7 BY 974-5, 273-85, 18 Symboae Vez. atp. 74 1 nie Morne Guintans, ig of Psage Gas, 1c Reports 960,90 raych 23,00 us cogensand its eects Sein pp. 16-19. 1 Air Transport Services Agreement Arbitration, 1963, ILR 38,182; RIAA xvi, 5; Award, PLIV, 5.5.6 PRELIMINARY TOPICS 3. INTERNATIONAL CUSTOM" DEFINITION Article 38 refers to ‘international custom, as evidence of a general practice accepted as law’, and Brierly"® remarks that ‘what is sought for is a general recognition among States of a certain practice as obligatory’. Although occasionally the terms are used interchangeably, ‘custom’ and ‘usage’ are terms of art and have different meanings. A.usage isa general practice which does not reflect a legal obligation,” and examples are ceremonial salutes at sea and the practice of exempting diplomatic vehicles from parking prohibitions." EVIDENCE ‘The material sources of custom are very numerous and include the following: diplo- matic correspondence, policy statements, press releases, the opinions of official legal ary law, executive decisions and practices, orders to naval forces etc., comments by governments on drafts produced by the International Law Commission, state legislation, !“international and national judicial decisions," recital¥ in treaties and other international instru- ments, a pattern of treaties in the same form, the practicé of international organs," advisers, official manuals on legal questions, e.g. manuals of 1 Seesupraa, 1nd see further: Lauterpacht, The Development of International Law by the International Court (1958), 368-93; Guggentem, ip Etudes en Uhonneur de Gzorges Sell (1950), 1 275-84; i, Tate 93-113; Slablazewsk, 31 Z.a.d24V. (1970, 810-54 Thirlway, Inernational Customary Law and Codifeaton (1972) Barbers Neths, In. LR (1967), 367-81 Manin, 0 RGDIP (1976), 7-54; Akehust, 47 2 (974-5), 1-53; Mejers,Neths. YD. (1978), 3-26; Seen, Melanges Rewer (1981), 479-99; Bor, German ‘Yebk, 25 (1982, 9-5b; Cheng, n Macdonald and Johnston eds) The Structure and Process of International Lam pp 519-50; Viral, 183 Hague Recueil (1983, V), 167-206; Jiménez de Aréchagain Bsays fn Honour of udge Manfred ack (1984), 57585: Abi-Saab, in Brudesenhoneur de Roberto Age i 53-65; Thishay,61 'Y 1990), 3-110 and 76 BY (2005), 92-108; Wolke, Custom in Present ternational Law, 2nd ed, (1993) i, 24 Neth. Yk. (1983), [16 Mendelson, 66 BY (195), 177-208; Zemanek, Recueil des Cours, val, 266 (0997), 149-67, L.A. Report ofthe Sixty Ninth Conference (London), 2000, 712-90; Kammerhoter, Burp. Tourn, 15 (2008), 523-53; Arangio-Rul, Mélanges Salmon (2007), 98-124 "Law of Nations, 6th edn (1961), 61. See also Judge Read inthe Fisheries case, C} Reports (1950 191: “Customary international aw isthe gereralization of he practice of tates” 1 See further infra, p.8-10,0n the opinia juris. M Se Parking Priviees for Diplomats Case CR, 396 (Fd, Admin. CL, FRG) 1 See in particular Parry 44 Grot. Sc. (1958, 1959), 145-86; MeNaie, Opinion, Preface: Zemanck, Festschrs fr Rudolf Bernhard (195), 289-306, Custom apart from the practice of statermaybeinfluenta, inthe general law ofthe sea; the Toten 16] P- 135: nn. Digest (1946), no. 2 16" he Scotia (1871) 14 Wallace 170 1 the later provided a basis forthe concept ofthe historic bay 1 nits Advisory Opinion inthe Genocide cae the IC] refers tothe practic of the Councit ofthe League of Nations inthe mate of reservations to multilateral conventions IC} Reports (195), 25, Se also the Jot Diss. Op, ibd a, and resolut ‘Obviously 1 re © PHEELED Becibyicin ane’ isles re) Barbie Sethe oficial PP the rapid ox anid the} tas © idide to reserv 2 Seeinfra, = 1cyRepor Pie Second P 40,43;SOURCES OF THE LAW I practice iota ogni ie conastency and generality of a practice are proved, no particular dura ifferent |: the passage of time will of course be a part of the evidence of general- pemsecy “Along (and, much ess, an immemorial) practices not necessary, Pikience ofaiio-mite rule for bays. net that it has become binding on the ter party. that the ule invoked. dance with a constamt and uniform usage practised Sythe tatesin question and ihat rapid succession of conventions on asylum, ratified by some States and rejected by oth- sand the practice has been so much influenced by considerations of political expediency “ Various cases, that itis not possibte to discern in all this any constant and uniform Fide teervatons appear tobe to rare in international practice to have given riseto such rule” ‘ 2 Seif 16-8 i Preface: Zerit ‘tezmay bein 40 4:bid. caper judge Wellington Koop. 99 per ndge Spender, andibi. 136 per Fernandes, aes sNatth Sea Continent! ShoCaser, IC} Reports (1969), 43 bi. 86 per fadge Pails Neco; bid. 229 ke pighembi 1246 per judge Sorensen: Niaragua v, United States (Merit), IC} Reports (1986). p98, ),25,Seealso thy ©8 PRELIMINARY TOPICS (©) Generality of the practice ‘This is an aspect which complements that of consistency. Certainly universality is not required, but the real problem is to determine the value of abstention from protest bya substantial number of states in face of a practice followed by some others. Silence may. denote either tacit agreement or a simple lack of interest in the issue. It may be that the Courtin the Lotus case” misjudged the consequences ofabsence of protest and also the significance of fairly general abstention from prosecutions by states other than the flag state." In the Fisheries Jurisdiction Case (United Kingdom v. Iceland) the International Court referred to the extension of a fishery zone up to a 12-mile limit ‘which appears now to be generally accepted’ and to ‘an increasing and widespread accept- ance of the concept of preferential rights for coastal states’ in a situation of special dependence on coastal fisheries.** (a) Opinio juris et necessitatise® ‘The Statute of the International Court refers to ‘a general practice accepted as law’? Brierly®* speaks of recognition by states of a certain practice ‘as obligatory’, and Hudson® requires a ‘conception that the practice is required by, or consistent with, prevailing international law’. Some writers do not consider this psychological element to bea requirement for the formation of custom,” but it is in fact a necessary ingre- dient. The sense of legal obligation,.as opposed to motives of courtesy, fairness, or morality, is real enough, and the practice of states recognizes a distinction between obligation and usage. The essential problem is surely one of proof, and especially the incidence of the burden of proof. In terms of the practice of the International Court of Justice—which provides a general guide to the nature of the problem—there are two methods of approach. In many cases the Court is willing to assume the existence of an opinio juris on the bases of evidence of a general practice," or a consensus in the literature, or the previous 2 se ina pp. 9-10. 2 Lauterpacht, Development, pp. 384-6. See also the Paquete Habana (1900), 175 US 67 2 1} Reports(197s), 3at 23-6, Seealso the North Sea Continental Shelf Cases, IC} Repor's (1969, 43042. For reliance onthe practic of limited numberof states se the Wimbledon (1923), PCI, Se. A, no 1. Set also Fernandee. Wilkinson, LR, 67,446, 455-8 26 See Chaumont, 129 Hague Recucil(19701) 4-45; Vera nternational Law in storia Perspective, 4. 37-4, Barberi, 0 Riviata did, (1967), 563-83 P. de Visscher, 16 Hague Recrell (1972, I), 70-5: Bos ‘A Methodology of International Law (1984), 236-44; Mendelson, 66 BY (195), 177-208; las, 44 ICLQ (1985), 01-20; Sehachterin, Essays in Honour of KrzysetfSkubscews (1996), 531-40;Sienho Yee German Yb, 43 (2000), 227-38 taics supplied % pou 2 Quoted in Brigg. 25. » See Guggenheim, Etudes Selle, 275-80; Fischer Williams. Some Aspects of Modern Intrnationl Lay (1934) 44-6. See now Guggenbim, i 103-5 For Kelse the piniojuris ia fiction to disguise the crea: Propean’ tive power ofthe judge: see Revue internationale dela tore d droit (1939), 253-74 and ef, Princpes of FF ike Jodem International Law (1952, 307 (2nd edn 1967), 450-1 : 3 See Lauterpacht, Developmen. 380i, Coll Papers, i 65; Baxter, 129 Hague Recueil (1970, 1, Guggenheim. 103-5. Cf Sorensen. p 134SOURCES OF THE LAW dence of the recognition of the validity of the rules in question 2 of states, The choice of approach appears to depend upon the nature of tes (that.is,the state of the law may be a primary point in contention), and the on.ofthe,Court, ‘cases haye.inyolved the more exacting second method of approach, of which |provein point offact the circumstances alleged by the Agent for the French Government, 4 merely show that States had often. in practice, abstained from instituting criminal yibstention werg based on their being conscious ofa duty to abstain would itbe possible speak of an international custom. The alleged fact does not allow one to infer that States if the-Lotus the Court was not ready to accept continuous conduct as prima facie dence of a legal duty and required a high standard of proof of the issue of opinio quiring proof of the opinio juris. The Court did not presume the existence of opinio Gufiseither in the contextof the argument that the equidistance-special circumstances INof delimiting the continental shelfhad become part of general or customary law the date of the Geneva Convention of 1958, or in relation to the proposition that the juent practice of states based upon the Convention had produced a customary fe: However, it ig incorrect to regard the precise findings as in all respects incompat- iBlewith the view that the existence of a general practice raises a presumption of opinio His: In regard to the position before the Convention concerning the equidistance f punciple, there was little ‘practice’ apart from the records of the International Law sion, which revealed the experimental aspect of the principle prior to 1958, lering the argument that practice based upon the Convention had produced (0972,10,79 eustomary rule the Court made it clear that its unfavourable reception to the argu- 208; la p., Mentrested primarily upon two factors: (a) the peculiar form of the equidistance prin- ‘Brropeen Commission ofthe Danube, Ser. B, no. 14, p. 4 per Deputy-Judge Negulesco, Ck. the passage from the Judgment inthe Asylum case quoted supra | BE See the criticisms of Lauterpacht, Development, p. 386. See, however, MacGibbon, 33 BY (1957), 131 125.16} Reports (1968). 3. UP ibid. 28, 32-sc mre itera area 10 PRELIMINARY TOPICS character; (b) the Convention had only been in force for less than three years when the proceedings were brought and consequently:** Although the passage of oly a short period oftime isnot necessarily or of itself, arto the formation of a new rule of customary international law on the basis of what was originally a “bf adocal ¢ purely conventional rule, an indispensable requirement would be that within the period in “the portof question, short though it might be, State practice, including that of States whose interests are © Giepiopbn specially affected, should have been both extensive and virtually uniform in the sense of the We cinthetpart provision invoked:—and should moreover have occurred in such a Way as to show a general recognition thata rule of law or legal obligation is involved, Bs aiiercen Nevertheless, the general tenor of the Judgment™ is hostile to the presumption as to ae opinio juris and the Court quoted the passage from the Lotus case set out above." 1 A broadly similar approach was adopted by the Judgment of the Court in the Case of Nicaragua v. United States (Merits) and the Court expressly referred to the North Sea Cases: In considering the instances of the conduct above described, the Court has to emphasize that, as was observed in the North Sea Continental Shelf cases, for a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice’, but they must be accompanied by the opinio juris sive necesstatis, Either the States taking such action or other States ina position to react to it, must have behaved so that their conduct is ‘evidence of belief that this practice is rendered obligatory by the existence of a rule of law requiring it, The need for such a belief, ie. the existence of a subjective element, is implicit in the very 4 notion ofthe opinio juris sive necessitatis.(ICJ Reports (1968), 44, para. 77) BILATERAL RELATIONS AND LOCAL CUSTOMS © = whiclvhad * = United Kip F omhile deny: ‘manifested, In the case concerning U.S. Nationals in Morocco” the Court quoted the first of the passages from the Asylum case quoted earlier and continued: ‘In the present case there has not been sufficient evidence to enable the Court to reach a conclusion that a tion as one right to exercise consular jurisdiction founded upon custom or usage has been estab- ‘ lished in such a manner that it has become binding on Morocco’ Pah sh In this case the Court may seem to have confused the question of law-making | Seeiscerae and the question of opposability, i.e. the specific relations of the United States and sieht 2 Tid 41-2 28 tid. 43, 2 Thi. 43-5, and ee, in particular, p48 para. 77 4® For comment see Baxter, 129 Fague Recueil (1970, 1), 67-9; Amato, 64 AJ (1970), 892-902; Marck, Revue belge (1970), 44-78. For the views of dissenting judges see 1C} Reports (1968), 156-8 (Koretskp, 175-9(Tanaka), 197 (Morell), 221-32 (Lachs) 241-2 Sorensen).Seealso the Sep. Op. of Judge Petrén inthe PF ainsaiadtoe ‘Nuclear Tests Case, IC} Report (1974), 253 at 305-6 ES tsen snes 88 -1Cy Reports (1986), 4. Eden, ‘2 Bi. 108-8, para. 207 Sc alo pp 97-8 ara 14 pp 97-108, paras. 184-9: pp. 6-8, paras, 202-6. 51 Seethea IC} Reports (1952), 199-200, See Lauterpacht, Development, pp. 388-92. Supra, p.7. lies supplied.SOURCES OF THE LAW age over:Indian Territory” raised an issue of bilateral relations, the existence cal customyin-favour of Portugal in respect of territorial enclaves inland from tof Daman (Damo). In this type of case the general law is to be varied and jonentofthe special right has to give affirmative proof of a sense of obligation ito fthesterritorial sovereign: opinio juris is here not to be presumed on the tintouspractice and the notion of opinio juris merges into the principle of presumption of acceptance which is to be rebutted. Whatever the theoretical innings of the principle, itis well recognized by international tribunals,* and fated Kingdom admitted the general principle of the Norwegian argument here denying that, as a matter of fact, Norway had consistently and unequivocally ted a refusal to accept the rules. Thus the United Kingdom regarded the qu one of persisfent objection, The Court did not deal with the issue in this way, dy Fitzmaurice, 92-ague Recueil (1957, 1), 106. On opposability in general see infra, pp. 85-6. The era cnet eon 9, Charney, 56 BY (1985), 1-24; id, 87 A (1993), 538-42; Thiehway, 61 BY (1990), 106-8, principle wabirecognized by both parties in the Anglo-Norwegian Fisheries case; and also by tive opinionesee Fitzmaurice, 92 Hague Recueil (1957, 1), 99-100; Waldock, 106 Hague Recueil rensen, 101 Hague Recueil (1960, I), 43-4; iménez de Aréchaga, 159 Hague Recueil 51K 30, Se further Schachter, 178 Hague Recueil (1982, V), 36-8 See the Anglo-Norwegian Fisheries ase IC] Reports (1951), 13; North Sea Continental Shelfcase ibid 65) 26-7;Sep. Op. of Judge Ammoun, p. 131; Diss. Op.of Judge Lachs,pp.235, 238; and Diss.Op.of udge2 PRELIMINARY TOPICS however, and the ratio in this respect was that Norway had departed from the alleged ve laws a rules, if they existed, and other states had acquiesced in this practice. But the Court is not too explicit about the rote of acquiescence in validating a subsequent contracting cout of rules. Here one has to face the problem of change in a customary regime.*4 Presumably, if a substantial number of states assert a new rule, the momentum of increased defection, complemented by acquiescence, may result in a new rule,* as in the case of the law on the continental shelf, Ifthe process is slow and neither the new rule nor the old have a majority of adherents then the consequence is a network of special relations based on opposability, acquiescence, and historic title. PROOF OF CUSTOM r In principle a court is presumed to know the aw and may apply a custom even iit has not been expressly pleaded. In practice the proponent ofa custom has a burden of b proofthe nature of which will vary according to the subject-matter and the form of the pleadings. Thus in the Lotus case*” the Court spoke of the plaintiff's burden in respect of a general custom, Where a local or regional custom is alleged, the proponent ‘must prove that this custom is established in such a manner that it has become binding on. theother Party’* ; 4, ‘LAW-MAKING’ TREATIES AND OTHER MATERIAL SOURCES Itmay seem untidy to depart from discussion of the ‘formal’ sources, of which custom is the most important, and yet a realistic presentation of the sources involves giving prominence to certain forms of evidence of the attitude of states to customary rules and general principles of the law.%® ‘Law-making’ treaties, the conclusions of interna? tional conferences, resolutions of the United Nations General Assembly, and drats adopted by the International Law Commission have a direct influence on the content 5 See Fitzmaurice, 30 BY (1953), 24-6; id, 92 Hague Recueil (19871), 99-101; Sorensen, 10 Hague ‘Recueil (196011), 43-7 The dictum which requites explanation, atp. 131 ofthe Reports, is Tn any event the tensile rule would appear tobe inapplicable a agains! Norway inasmuch as she had always opposed any’ attempt to app ito the Norwegian coast” 5 See Lauritzen et aly. Government oj Chie.IUR 23 (1956), 708 710-12 5 Since delict cannot be justified by an allegation of adesie wo change helaw, the question of opie juni arses ina special frm and in the ealy stages of change can amount ote more than a pea of good faith, 5 Both forms of objection are restricted in any case by the norms of jus cogens: on which see inal ch. 28.5, : 57 BCI, Ser.A, no. 1..18. 5 Asylum ease, IC} Reports (1950), 276, 2 Sceinfre pp 16-19.SOURCES OF THE LAW B obligation,,Thus a treaty for the joint carrying out of a single enterprise is not ing, singefulfilment of its objects will terminate the obligation. Law-making reate general.norms for the future conduct of the parties in terms of legal itions;ahdthieabiigations are basically the same for all parties. The Declaration 1856 (onsgeutrality in maritime warfare), the Hague Conventions of 1899 and heJawadafwar and neutrality), the Geneva Protocol of 1925 (on prohibited iglaw-creating effect atleast as great as the general practice considered sufficient péuppott a customary rule.” By their conduct non-parties may accept the provisions altilateral convention as representing general international law:* this has been ‘with: Hague: Convention IV* of 1907 and the rules annexed relating to land re. Even. an ynratified treaty may be regarded as evidence of generally accepted es/ableast in the short run.®* . M tn the North Sea Continental Shelf Cases™ the principal issue was to what extent, fat Pee Ml, Law of Tats (96) 5,124, 49-52 dy 1 BY (1930, 100-18 (ep. in Law of Treaties, 243951, 1low LR (934 (epein Lawof Treaties, p.729, Sorensen 10 Hague Rectel1958,!),72-90- tidy 129 Hague Recwil (19701), 31-75: Shibata, 2 ev éyprienne (1966). in 80 GDP (1996), 754; Tika, 6 BY 1990), 87-102 Se further ch 27, 1 pil the principles in Art. 2 Botsech. 27.5.8 See Mar Law of Treats, pp. 216-18 fr expression fa firm opinion onthe efecto Art. 2p 3 Dad hole Chatten which he describes asthe’ nearest approach leystin by the whole community of Eseshothasyerseencealise s Bltnece must be evience of consent to the extension ofthe rl, partcueny ifthe rales found i 8 Bis storl coon: inthe Al ae te Court was nwlig told Pru Bound bythe ule contied ela omeideo Conv. the European Human Rights Convention Case [UR 22 (1985, 6081610. othe Hague Conventions and Beclarations of 1898 and 1907 (edn, 1913), 100 See the $fefberg Judgment; Ann: Digest, 13 (1946), n0.92; and the declaration ofboth sides in the Korean war £6\See Basten 129 Hague Recueil (1970, 1), 6; Nottebohm case (Second Phase), IC} Reports (1955), 23, iba Opinion, ii, (1971), 47. CL North Sen Continental Self Gases, i (1969) 41-3