Public Internation al Law

Rhona Morgan Faculty of Law University of the West Indies, Cave hill

Introduction
The nature of Public International law The term international Law was first used by Jeremy Bentham in 1780. It has been defined by Williams and De Mestral as the system of law !ontainin" #rin!i#les$ !ustoms$ standards and rules by whi!h relations between state and other international are "o%erned. Distinction between Private IL and Public IL &ri%ate IL or '!onfli!t of laws( as it is sometimes !alled$ is a system of rules that is a##lied when a domesti! !ourt is fa!ed with fa!ed with a !ase that in%ol%es forei"n elements. It resol%es #roblem to as to whi!h a domesti! !ourt should ha%e )urisdi!tion$ whi!h national le"al system should be a##lied$ and to what e*tent should the !ourts of one )urisdi!tion re!o"ni+e and enfor!e )ud"ments based on those issued by another !ourt in another )urisdi!tion. &ubli! IL is a se#arate s#here of law and is distin!t from any one national le"al system. This fo!uses on the brea!h of an international law as o##osed to a national one. There are a number of "eneral differen!es between both ty#es of law. The main two howe%er$ deals with the distin!tions in their fun!tion and who the res#onsibility for wron"s most attributable is to. In domesti! law$ there is a distin!tion between the three fun!tions, law ma-in" .le"islature and e*e!uti%e/$ law determination .!ourts and tribunals/ and law enfor!ement .admin$ #oli!e$ and army/. In international law$ there is little or no differentiation between the three fun!tions. 0ere the 12 assembly is not a le"islature$ the international !ourt of )usti!e only o#erates with the !onsent of the states and the 12 3e!urity 4oun!il has le"ally and #oliti!ally limited enfor!ement #owers. In domesti! law .whi!h is internal to states/$ there is indi%idual res#onsibility for !rimes or torts. This is not so in International Law. 0ere$ most !olle!ti%e res#onsibility for wron"s falls u#on the #o#ulation of a state. 0owe%er$ there are !ases where #eo#le are indi%idually res#onsible .es#e!ially for war !rimes/. The Evolution of International Law The de%elo#ment of &ubli! International Law !an be de%elo#ed into three "eneral #eriods, &re54lassi!al &eriod .6arly ori"ins 51788/ The 4lassi!al #eriod .178851918/ The modern system .19185#resent/

A.

The pre- classical System

This in!luded !on!e#ts of the Just War Do!trine whi!h a!!ordin" to Thomas :;uinas had three !onditions,

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Three thin"s are re;uired for any war to be )ust. The first is the authority of the soverei n on whose !ommand war is wa"ed=3e!ondly$ a !ust cause is re;uired$ namely that those who are atta!-ed are atta!-ed be!ause they deser%e it on a!!ount of some wron" they ha%e done= Thirdly$ the ri"ht intention of those wa"in" war is re;uired$ that is$ they must intend to promote the ood and to avoid evil=>

".

The #lassical System

This saw the &ea!e of West#halia .1788/$ The 4on!ert of 6uro#e .!reated by the ?ienna 4on"ress of 181@/$ 4olonialism$ the Monroe Do!trine$ the Dra"o Do!trine$ rules restri!tin" the sla%e trade and the 0a"ue &ea!e 4onferen!es of 1899 and 1907. &ea!e of West#halia 5 4onferen!e of 6uro#e 5 4olonialism Monroe do!trine 5 5 saw a nation of !olle!ti%e defense$ the settlement of dis#utes and the !oolin" off #eriod this #romoted multi5lateral !onferen!es in times of #ea!e IL su##orted !olonialism durin" this #eriod. There were !harter !om#anies li-e the Dut!h and 6n"lish interior !om#anies this ushered in an era of disasso!iation from 6uro#e in the Western 0emis#here. 3aw in!iden!es su!h as the :meri!an Ae%olution. It !alled for a #oli!y of non5interferen!e by 6uro#e in Western affairs. This was ne%er a!!e#ted as le"al by the 6uro#eans. :n attem#t by Latin :meri!a to !ease the #ra!ti!e of Bunboat "a%e status to the International 4ommittee of the Aed 4ross .1878/ 1878

Dra"o Do!trine Di#loma!y. Bene%a 4on%ention

5 5

&etersbur" 4on%ention5

Durin" the !lassi!al #eriod$ the thou"hts of Just war started to fall into disuse. The irony is that at that time$ IL didn(t im#ose any limitation on a state to "o to war. There were some limitations on the !ondu!t of warfare$ howe%er .whether on land or sea/$ but ne%er on war itself. The rules re"ulatin" the !ondu!t of war were -nown as 'laws of warfare($ but more re!ently$ 'humanitarian laws(. 4olonialism "a%e the !on;uerin" state the ri"ht of territory. It is well to note also$ that at this #eriod$ IL allowed states to inter%ene in other state(s affairs$ meanin"$ by use of for!e. This was mainly off5setted by a reli"ious or #oliti!al ba!-"round and was later dubbed humanitarian inter%ention>. Gunboat Diplomacy5 This was the #ra!ti!e at the time of 6uro#ean states sendin" shi#s to other #arts of the World e.". :meri!a. This was what the Dra"o Do!trine sou"ht to alle%iate.

The Prohibition of the Slave Trade Dne of the first elements was the fa!t that indi%idual states started the #rohibition of the sla%e trade. This saw a lateral Treaty between states .e.". Eran!e and Britain in 1818/. Indi%idual states soon abolished the holdin" of sla%e in the early 19th !entury. :fter this !ame e%ents of multi5lateral treaties between se%eral states. By the end of the 19th !entury$ the international !onferen!e sou"ht to #rodu!e an :!t to su##ress and subse;uently abolish the sla%e trade. This did not !ome about until 19<7 and later ado#ted by the 12. The Amistad Case (see pg. 1 supplemental for facts) By this time$ 3#ain had #rohibited the tradin" of sla%es$ as did the 13. Therefore$ the trade was ille"al in both !ountries. This !ase the emer"en!e of #ri%ate and #ubli! unions and it is well to note that thou"h it has an international im#a!t$ the !ase was tried under the 13 3u#reme 4ourt .a domesti! !ourt/. There are se%eral -ey as#e!ts of the !ase that are un!lear and somewhat !onfusin", The !ase is a domesti! one The 13 "o%ernment is inter%enin" on behalf of 3#ain in order to try and enfor!e its treaty obli"ations with 3#ain about the return of "oods and !ar"o It was unsure as to whether the sla%es trans#orted were le"ally made into sla%es. It was ille"al in both 3#ain and the 13 in 1881 to !a#ture free #erson and ma-e them into sla%es. 0owe%er$ if a sla%e was !a#tures$ he !ould be held into sla%ery. Therefore the tradin" of new sla%es was unlawful$ but as this #oint$ sla%ery was not. The law of sal%a"e at the time allowed #ersons that dis!o%ered and res!ue a shi# adrift to !laim !om#ensation on the shi# and its !ar"o.

Main 4laims :r"ued There were three elements deri%in" from the Amistad Case that had to satisfy in order for the :fri!ans to be returned to their alle"ed owners, 1. That these 2e"roes$ under all !ir!umstan!es$ fall within the des!ri#tion of mer!handise$ in the sense of the treaty. <. That there has been a res!ue of them on the hi"h seas$ out of the hands of the #irates and robbersF C. That the asserted #ro#rietors$ are the true #ro#rietors$ and ha%e established their title by !om#etent #roof. #. The $odern System

Dne of the early de%elo#ments durin" this #eriod was the Lea"ue of 2ations. This was !reated to #romote international &ea!e and se!urity. :t times$ the Lea"ue sou"ht to #romote disarmament$ o#en treaties and e%en restri!t nations from "oin" to war.

The !o%enant of the Lea"ue of 2ations .1919/ restri!ted$ instead of outlawed some e*istin" laws at the time. :rti!le 1< of the !o%enant sou"ht to im#ose on states a !oolin" off #eriod. :rti!le 1C im#osed re;uirements on members to obey the Lea"ue$ :rti!le 1@ states that if a dis#ute is not settled$ a unanimous %ote has to be rea!hed$ in whi!h !ase$ members of the Lea"ue are e*#e!ted to !om#ly with the results of the %ote and :rti!le 17 sti#ulates that if anyone brea!hed an arti!le$ they brea!h a"ainst all states of the Lea"ue. :nother de%elo#ment was the !reation of the &ermanent International 4ourt of Justi!e in 19<1. By this time$ IL was #owerless to #re%ent !ertain atro!ities that o!!urred durin" the first and es#e!ially$ the 3e!ond World War e.". 2a+i !ontrol$ the bombin" on 0iroshima and 2a"asa-i. 0owe%er$ war !rime tribunals were established as a result. &ost WW<$ de!oloni+ation transformed the international !ommunity. This saw a si"nifi!ant transformationGalteration to the 1nited 2ations. %se of &orce Durin" the #re5!lassi!al #eriod$ the Just War !reated the distin!tion between )ust and un)ust war. .3ee three !riteria "i%en by Thomas :;uinas/. This !on!e#t in itself it deri%ed from natural law$ a !on!e#t of )usti!e and reason. The #resent #eriod$ howe%er$ .&ost the formulation of the 12/ saw where the Charter of the United Nations (1945) more or less re#resented a turnin" #oint in the law re"ardin" the use of for!e. Its "eneral #rohibition re"ardin" the use of for!e is one of the most well a!!e#ted rules in international law. That bein" said$ there are e*!e#tions to the rule re"ardin" the non5use of for!e and there ha%e been more than a few !ases in whi!h the rule has been %iolated. It is well to note that this !harter was the first bindin" international le"al do!ument that see-s to #rohibit the use of for!e "enerally. :rti!le <.8/ of the 4harter #rote!ts the use of for!e .or threat/ a"ainst state or in any manner in!onsistent with the 4harter. The 4harter does outline some e*!e#tions to the rule re"ardin" the 1se of Eor!e, 3elf5defen!e .both indi%idual and !olle!ti%e/ 4olle!ti%e measures .both 125s#onsored and re"ional/ Aes!ue of nationals$ and 0umanitarian inter%ention

3elf5defen!e and !olle!ti%e measures are e*#ressly #ro%ided for under the 4harter and the other two are dedu!ed from the !ustomary #ra!ti!es of international law. The Nicaragua Case This !ase dealt with whether !ustomary rules a##lied in relations between two states when rules !o%erin" the same "round e*isted in treaties to whi!h those states ere #arties. In this !ase$ 2i!ara"ua !laimed that the 13 had used armed for!e and inter%ened in its affairs !ontrary to international law. The 4ourt a!!e#ted that it !ould not !onsider 13 liability under the 12 4harter and other multi5lateral treaties to whi!h the 13 and 2i!ara"ua were #arties. This was @

be!ause of a 13 reser%ation to its a!!e#tan!e of the 4ourt(s )urisdi!tion that e*!luded dis#utes arisin" under a multi5lateral treaty>. The ;uestion for the !ourt therefore was whether the !ustomary rules on armed for!e and inter%ention !ontinued to bind the #arties in #arallel with the obli"ations under the 12 4harter and other treaties they a!!e#ted$ so that the 4ourt !ould a##ly them$ des#ite the 13 reser%ation. The 4ourts held that,
HTIhere are no for holdin" that when !ustomary international law is !om#rised of rules identi!al to those of treaty law$ the latter 'su#er%enes( the former$ so that the !ustomary international law has no further e*isten!e on its own=.thus if HaI rule #arallels a rule of !ustomary international law$ two rules of the same !ontent are sub)e!t to se#arate treatment as re"ards the or"ans !om#etent to %erify their im#lementation$ de#endin" on whether they are !ustomary rules or treaty rules.>

The 'eneral Principle of (on-Intervention :rti!le <.7/ of the 4harter of the 12 states that,
2othin" !ontained in the #resent 4harter shall authori+e the 1nited 2ations to inter%ene in matters whi!h are essentially within the domesti! )urisdi!tion of any 3tate=>

The #rohibition states that ea!h state has the ri"ht to !ondu!t its own affairs without inter%ention. he Nicara!ua !ase establishes this #rin!i#le$ by statin" that e%en lesser forms of for!e are #rohibited$ not only e*!essi%e for!e. The #rohibition a"ainst inter%ention is one of the widest #rohibitions in law. It is also stated in the Declaration on the "nadmissibility of "nter#ention that
2o state may use or en!oura"e the use of e!onomi!$ #oliti!al$ or any other ty#e of measures to !oer!e another state in order to obtain from it the subordination of the e*er!ise of its so%erei"n ri"hts or to se!ure from its ad%anta"es of any -ind=no state shall or"ani+e$ assist$ foment$ finan!e$ in!ite or tolerate sub%ersi%e$ terrorist or armed a!ti%ities dire!ted the %iolent o%erthrow of the re"ime of another state$ or interfere in !i%il strife=>

)ule a ainst the Threat or %se of &orce This is dealt with under :rti!le <.8/ of the 12 4harter whi!h states that all members shall refrain in their international relations from the threat or use of for!e a"ainst the territorial inte"rity or #oliti!al inde#enden!e of any 3tate or in any other manner in!onsistent with the #ur#oses of the 12.> This arti!le #rohibits armed for!e$ whether or not it amounts to war. It bans threats to use of for!e whether they are e*#li!it or un%eiled. The Nuclear $eapons Case states and su""ests that #ossession of su!h wea#ons may amount to use of for!e. The !ase also "oes on to state that e!onomi! !oer!ion does not amount to use of for!e$ but it !ould %iolate the rule of #rohibited inter%ention. :rti!le <.8/ outlines three !ate"ories that are #rohibited, 1. Territorial inte"rity of the state, meanin" de#ri%in" a state of #artGwhole of its territory <. &oliti!al interferen!e C. 1se of for!e in any other manner in!onsistent with the #ur#oses of the 12.

The Nuclear Weapons Case There were two noted #oint in this )ud"ment .amon" se%eral/. The first issue states that if the use of a wea#on was unlawful #er se$ then there is no )ustifi!ation in its use. The se!ond hi"hli"hted that fa!t that all unlawful uses of for!e are sub)e!t to international humanitarian Law. Limitations that e*ist on +umanitarian Law i. ii. wea#ons !annot be used to atta!- !i%ilians no wea#on should be used if it !auses unne!essary harmG#ainGsufferin" to !ombatants

It is well to note that the ma)ority of the !ourt !on!luded that it !ouldn(t find with !ertainty that in all !ir!umstan!es$ the use of nu!lear wea#ons would be unlawful. 0owe%er$ the dissentin" )ud"ment #ointed to the fa!t that many states share dis#layed nu!lear #ra!ti!es themsel%es. It was ar"ued that from that state #ra!ti!e$ it !ould be dedu!ed that the use of nu!lear wea#ons did not brea- from the !ustomary rules. :ll )ud"es in this !ase re"arded that the use of nu!lear wea#ons em#hasi+ed the main #oint on the use of for!e. E*ception to the )ule of %se of &orce, i. ii. iii. i%. 3elf5defen!e .both indi%idual and !olle!ti%e/ 4olle!ti%e measures .both 125s#onsored and re"ional/ Aes!ue of nationals$ and 0umanitarian inter%ention

Both self5defense and !olle!ti%e measures are a%ailable under the 12 4harter and !ustomary International Law. 0owe%er$ there is some doubt as to whether the res!ue of nationals and humanitarian inter%ention e*ist under !ustomary IL.

Self-Defence :rti!le @1 of the 12 4harter deals with this issue. It !o%ers both indi%idual and !olle!ti%e self5 defen!e. It e*#ressly states that,
2othin" in the #resent 4harter shall im#air the inherent ri"ht or indi%idual or !olle!ti%e self5defen!e if an armed atta!o!!urs a"ainst a member of the 1nited 2ations$ until the 3e!urity 4oun!il has ta-en measures ne!essary to maintain international #ea!e and se!urity.>

The Nicara!ua case states that the ri"ht to self5defen!e is a%ailable under !ustomary International Law. To fully understand the essen!e of this$ we ha%e to e*amine the definition for self5defen!e. Indi%idual, 5 4olle!ti%e, 5 where the state defends itself where other states !ome to the aid of one state to hel# defend it.

#onditions for self-defence There are a number for !onditions for the e*er!ise of self5defen!e, 7

i%

There must be an armed atta!-

:rti!le @1 in !ollaboration with the rules of !ustomary international law su##orts the abo%e statement$ he Nicara!ua !ase defines what an armed atta!- is by sayin" that
an armed atta!- must be understood as in!ludin" not merely a!tion by re"ular armed for!es a!ross an international border$ but also the sendin" by or on behalf of a 3tate of armed bands$ "rou#s$ irre"ulars or mer!enaries$ whi!h !arry out a!ts of armed for!e a"ainst another 3tate of su!h "ra%ity as to amount to> an a!tual armed atta!-$ !ondu!ted by re"ular for!es=>

The ri"ht of self5defen!e is a%ailable where an atta!- is made by the 3tate on another 3tate. 6.". "sraeli $ar Case and Democratic &epublic of Con!a # U!anda. The Nicara!ua case e*#ressly does not ar"ue on issues surroundin" #re5em#ti%e solutions to self5defen!e. ii% iii% i#% #% There must be a de!laration of atta!There must be a re;uest for assistan!e. This only a##lies to !olle!ti%e self5 defen!e .established by the Nicara!ua case) There must be a need for the res#onse and The res#onse must be #ro#ortionate.

he Caroline Case
The !ase arose out of the 4anadian rebellion of 18C7. The rebel leaders$ des#ite ste#s ta-en by the 13 authorities to #re%ent assistan!e bein" "i%en to them$ mana"ed on De!ember 1C$ 18C7$ to enlist at Buffalo in the 13 the su##ort of a lar"e number of :meri!an nationals. The resultin" for!e established itself on 2a%y Island in 4anadian waters from whi!h it raided the 4anadian shore and atta!-ed #assin" British 3hi#s. The for!e was su##lied from the 1nited 3tates shore by an :meri!an shi#$ The Caroline. Dn the 2i"ht of De!ember <95C0$ the British sei+ed the Caroline$ whi!h was then in the :meri!an #ort of 3!hlosser$ fired her and sent her o%er 2ia"ara Ealls. Two 13 nationals were -illed. The le"ality of the British a!ts were dis!ussed in detail in !orres#onden!e in 18815188< when Breat Britain sou"ht the release of a British sub)e!t$ M!Leod$ who had been arrested in the 13 on !har"es of murder and arson arisin" out of the a!!ident. It was held in this !ase that the British "o%ernment had to show a ne!essity of self5defen!e$ instant$ o%erwhelmin"$ lea%in" no !hoi!e of means$ and no moment for deliberation. It will be for it to show that the lo!al authorities of 4anada$ e%en su##osin" the ne!essity of the moment authorised them to enter the territories of the 13 at all$ did nothin" unreasonable or e*!essi%e$ sin!e the a!t$ )ustified buy the ne!essity of self5defen!e$ must be limited by that ne!essity$ and -e#t !learly within it.>

This !ase brou"ht forward three main issues$ as noted in 0arrisF Lord :shburton$ in his re#ly made a "ood attem#t at )ustifyin" the British a!tion in a!!ordan!e with the test formulated by Webster .whi!h has the "eneral a!!e#tan!e when dealin" with matters of self5defen!e as a!!ordin" to the 12 4ha#ters/. It was not doubted in this !ase that the British was entitled to anti!i#ate further atta!-s. : re#ort made to the Lea"ue of 2ations in 19<7 said, le"itimate defen!e im#lies the ado#tion of measures #ro#ortionate to the seriousness of the atta!- and )ustified by the seriousness of then dan"er.

:#art from the abo%e !ase$ other !ases are used in the measurement of #ro#ortionality. 8

he Nicara!ua Case' shows that the ade;uate res#onse and #ro#ortionality issues are two main re;uirements that are a #art of !ustomary international law. It also shows that the a!tions of the 13 in this !ase were dis#ro#ortionate. he Nuclear $eapons Case' the !ourt found that any wea#ons that are used in self5defen!e had to satisfy the re;uirements of #ro#ortionality. They also loo-ed at the li-elihood of es!alation in the use of su!h wea#ons and whether this !ould be #ro#ortioned. he (il )latforms Case' this !ase too- #la!e durin" the Ira;GI@ran war in the 1980s. The !ourts found that the a!ts were neither ne!essary nor #ro#ortionate. They also found this in res#e!t to the se!ond atta!-. D&C # U!anda' The !ourt #ointed out that ta-in" air#orts and towns that are many miles away from the 4on"o !ould not be #ro#ortionate. #i% #ii% Ae#ort to the se!urity !oun!il 4essation of self5defen!e after se!urity has ta-en the measures ne!essary. Both these !onditions are #rote!ted under the !harter .:rti!le @1/.

#ollective $easures This is #rimarily dealt with under 4ha#ter 7 of the 12 4harter .:rti!les C958C/. They essentially authorise the se!urity for!es to ta-e enfor!ement a!tions where there are threats of #ea!e brea!hes of #ea!e or a!ts of a""ression. The 4ha#ter has been ar"ued by some to set out a series of !umulati%e re;uirements for 3e!urity 4oun!il a!tion. Te!hni!ally s#ea-in"$ this is #robably in!orre!t. But it is interestin" to see how :rti!les 8058< #ro%ide in!reasin" measures for use by the 3e!urity 4oun!il. The main me!hanism for 3e!urity 4oun!il a!tion was su##osed to be throu"h s#e!ial standby for!es established under :rti!le 8C. 1nfortunately$ no :rti!le 8C a"reement has e%er been entered into between a member of state and the 12 and there are no standby for!es. :s a result$ al for!es a!tin" under the authority of the 3e!urity 4oun!il u# until the #resent date5whether #ea!e-ee#in" or other for!es$ merely ha%e been lent to the 12 on a %oluntary ad hoc basis. This re#resents a ma)or !hallen"e for 4ha#ter 7 as a whole. :n a!ademi! debate e*ists as to whether the 3e!urity 4oun!il !an lawfully authorise use of for!e under the 4harter5 sin!e the -ey me!hanism by whi!h it was meant to do so is not o#erational. The 4ha#ter sets out e*a!tly what the 3e!urity 4oun!il !an do. 805 815 8<5 8C5 enables the 34 to ta-e #ro%isional measures enables the 34 to ta-e #ro%isional measures not in%ol%in" the use of armed for!es enables the 34 to #ut in #la!e measures in%ol%in" use of for!e ensures that the 34 y means of #ermanent a"reement !an ha%e re!ourse to standby for!es .this has not yet been #ut in #la!e/

3e!urity 4oun!il Ae"ulations 9

7705

!ondemned the Ira;i in%asion of Juwait$ demanded their immediate withdrawal and !alled for instant ne"otiations .1990/ 7785 authorised 12 members to use any measures ne!essary to remo%e Ira; from Juwait .1990/ 7875 In!ludes a !ease fire a"reement that Ira; si"ned. It im#osed disarmament obli"ations on them. .1991/ 18815 &assed in <00C. Eound that Ira; was in brea!h of 34 re"ulations in!ludin" the !ease fire. 1J Eorei"n and 4ommonwealth Dffi!e$ Ira;F Le"al Basis for the 1se of Eor!e The arti!le sets out the #ro%isions as stated under 34A 1881 and made referen!e to earlier re"ulations. It itself #ro%ides a le"al )ustifi!ation for the in%asion by British and :meri!an troo#s in Ira;. This basis they !laim stems dire!tly from earlier Ae"ulations. There was no mention of a 0umanitarian need or the need for self5defen!e. M!Boldri!- 6*tra!t This basis of the arti!le borders the #otential ille"ality of the war. M!Boldri!- su""ests hat there was no )ustifi!ation under self5defen!e or humanitarian inter%ention. Moreo%er$ it is ;uite !lear that most of the members of the 34 were not a"reed that the rele%ant 34 resolutions !ould be inter#reted in the way #ut forward by the 1J and the 13.> 0e later ar"ued that there was no laterGsubse;uent resolution followin" 1881 and nowhere was the e*#ression all ne!essary means>F su!h an e*#ression was not "i%en by the 12 in relation to :rti!le 1881. In 4ontrast= The 1J(s #osition is that the use of for!e is still #ossible under the resolutions and that the ar"ument under the resolution 778 was sus#ended. The o##osin" #osition .as in M!Boldri!-/ was that the use of for!e was im#ossible and unne!essary. )e ional Arran ements Eound in 4ha#ter 8 of the 12 4harter5 it allows re"ional or"anisations to #lay a role in the !ommunity. Ae"ional or"anisations in!lude The D643$ 2:TD$ 4:AI4DM$ 61 et!. :rti!le @C shows that these re"ional arran"ements !an o#erate as an e*!e#tion to the use of for!e. he Grenada "ncident
In 1979$ Mauri!e Bisho# be!ame &M for a new re%olutionary Bo%ernment of Brenada$ a small 4aribbean 3tate and a former 1J !olony. The new "o%ernment$ unli-e its ele!ted #rede!essor$ had !ommunist leanin"s$ established lin-s with 4uba and he 133A. In D!tober 198C$ disa"reements within Bisho#(s #arty led to his "o%ernment bein" ousted by a more radi!al let5win" Bo%ernment. Dn D!tober 19$ Bisho# and some of his su##orts were e*e!uted and 17 !i%ilians were -illed when "o%ernment offi!ials fired on the !rowd. : !urfew was ordered where for!es were !ommanded to shoot on si"ht. Dn D!tober <C$ the 13 sent troo#s to Brenada$ su##orted by troo#s from se%eral other 4aribbean 3tates$

10

who ;ui!-ly too- !ontrol of the island$ after fi"htin" with Brenada for!es. 13 troo#s were e%a!uated in De!ember 198C and a !entre ri"ht "o%ernment was demo!rati!ally ele!ted in 1988. The 13 )ustified its inter%ention on three "rounds, the #rote!tion of 13 nationals a re;uest to inter%ene from the D643$ of whi!h Brenada was a member a re;uest from the BB of Brenada

These )ustifi!ations ha%e been doubted. :lthou"h there were 13 nationals in the island$ all a!!ounts su""est that they were not at ris-. The !om#eten!e o the D643 to re;uest a non5member state to inter%ene in the absen!e of e*ternal a""ression and by the #ro!edure followed is ;uestionable$ and the BB was #robably not !onstitutionally !om#etent to re;uest assistan!e. )escue of (ationals This is not dealt with under the 4harter. 3ir 0 Waldo!- howe%er "a%e the su""ested !riteria from whi!h to follow. 0e stated that,
There must be .1/ an imminent threat of in)ury to nationals$ .</ a failure or inability on the #art of the territorial so%erei"n to #rote!t them and .C/ measures of #rote!tion stri!tly !onfined to the ob)e!t of #rote!tin" them a"ainst in)ury. 6%en under !ustomary law$ only an absolute ne!essity !ould )ustify an inter%ention to #rote!t nationals.>

he *ntebbe "ncident
Dn June <7$ 1977$ $ an :ir Eran!e airliner bound for &aris from Tel :%i% was hi)a!-ed o%er Bree!e after lea%in" :thens :ir#ort. Two of the hi)a!-ers a##eared to be West Berman national and the other < held :rab #ass#orts. The airliner was di%erted to 6ntebbe :ir#ort in 1"anda where the Jewish #assen"ers .about 100/ were se#arated from the others and the latter released. The hi)a!-ers demanded the release of about @0 &alestinian Terrorists im#risoned in %arious !ountries. The e%iden!e seems to su""est hat 1"anda did not ta-e su!h ste#s as it mi"ht ha%e done a"ainst the hi)a!-ers and$ indeed$ hel# them. 1"anda denied this. Dn July C$ 1977$ Israel flew trans#ort air!raft and soldiers to 6ntebbe and res!ued the hosta"es by for!e. The hi)a!-ers were -illed durin" the o#eration$ as were some 1"andan and Israeli soldiers. There was also e*tensi%e dama"e to 1"andan air#ort and the air!raft.

+umanitarian Intervention The most !ommon and a!!e#table forms of humanitarian inter%ention today fall under the !ate"ory of humanitarian aid5$ i.e.$ su##ly of medi!ines$ tents$ blan-ets and food. &owerful states would inter%ene in wea-er states and use military for!e in to #ursue their own a"endas under the !o%er of #rote!tin" indi%iduals from harm. 0umanitarian Inter%ention is not dealt with under the 12 4harter. In the Nicara!ua !ase$ the !ourts a!tually loo-ed at whether heir humanitarian inter%ention should only ha%e re!ourse under international law. 0owe%er$ it was "enerally a"reed that there are doubts as to whether you !ould e%er )ustify se of for!e when dealin" with stri!t referen!e to humanitarian aid. 1J Eorei"n Dffi!e &oli!y Do!ument 2o. 188 11

This do!ument su""ests the followin", The rational for humanitarian inter%ention is that 'ultimately$ #ea!e is more endan"ered by tyranni!al !ontem#t for human ri"hts than by attem#ts to assert$ throu"h inter%ention$ the san!tity of human #ersonality.( .as a!!ordin" to Lauter#a!ht/ That the best !ase that !an be made in su##ort of humanitarian inter%ention is that it !annot be said to be unambi"uously ille"al It a!-nowled"es the la!- of e%iden!e that shows a ri"ht of human inter%ention .for three main reasons, a/ The 12 4harter nor modern international law does not s#e!ifi!ally in!or#orate su!h a ri"ht b/ There are hardly any !ases whi!h refer to the "enuine need for humanitarian inter%ention !/ The s!o#e for abusin" su!h a ri"ht ar"ues stron"ly a"ainst its !reation 1nited Jin"dom Buidelines on 0umanitarian Inter%ention These "uidelines were tri""ered by the Ira;i in%asion of Juwait and #arti!ularly y the 2:TD bombin"s of the EAK in 1999. They mar- a de#arture in the 1J #ra!tise from the #osition they tooin the E4D &oli!y do!ument 2o$ 188 and "o as far as any state would a##ear to ha%e "one in a!!e#tin" that 0umanitarian inter%ention may be lawful. The "uidelines themsel%es list si* #rin!i#les that ou"ht to be followed. :! these #rin!i#les indi!ate$ the !laimed ri"ht is limited o !olle!ti%e a!tion by more than one state$ thou"h not ne!essarily sub)e!t to 12 authorisation$ whether e*#ressed or im#lied. A note on %( Peace-eepin There is no :rti!le in the 12 4ha#ter that authorises #ea!e-ee#in". :rti!le CC is the !losest5 related #ro%ision as it en!oura"es the #arties to a dis#ute to use #ea!eful means o their own !hoi!e. The #ea!e-ee#in" notion arose out of ne!essity. Different Perspectives of Law Different a!tors ha%e tried to sha#e the form of international law, natural lawyers$ #ositi%ists$ the 3o%iet Blo!$ de%elo#in" states .i.e. the 2ew International 6!onomi! Drder/ and modern le"al s!holars .e.". feminists et!./

2atural Law 1<

This s!hool of thou"ht s#ea-s that the law deri%es from some hi"her #ower. It ma-es a distin!tion between )ust and un)ust laws. This$ howe%er$ is sub)e!t to abuse as ea!h #erson would thin- that their law is )ust. &ositi%ism They re"ard the law as man5made. This$ they !laim$ draws the line between law and )usti!e. &ositi%ism seems to be more #re%alent in today(s so!iety. It also su##orts the %iew that international law !an only bind states byGwith their !onsent.

3o%iet Blo! This #ers#e!ti%e .related to Mar*ism/ sees international law as bein" re"arded a #art of the forei"n #oli!y of a state. De%elo#in" 3tates Their full #osition is diffi!ult to define. 0owe%er$ they were stron"ly in fa%our of the end of !olonialism and a#artheid. Eeminists They thin- that there is a bias in the di#lomati! !areer a"ainst women. They hi"hli"hted the low le%el of women who re#resent hi"h le%el or"anisations. Is International Law really Law. John :ustin and 0erbert 0art are both !on!erned with identifyin" the essen!e of law and le"al systems. They both a##roa!h the sub)e!t matter with a #ositi%ist stan!e$ se#aratin" law from morality and other so!ial rules. :ustin su""ests that if we are unable to distin"uish law from a so!ial matter we will not be able to #ro#erly study it. 0art(s !on!ern is also a moral one. John :ustin :ustin(s theory of law is often referred to as the '!ommand theory of law( 0e defines the law as the !ommand of a so%erei"n ba!-ed by san!tions> :r"ued that IL is a form of morality. It is not real law 0e ar"ues that there is no le"islature in IL. It has no #ower to ma-e bindin" resolutions. Its ability to im#ose san!tions is limited. There is no !ourt that !an issue a bindin" )ud"ement on all #arties. 0e was tryin" to establish what ma-es a rule a law .as o##osed to tradition$ morality of !ustom/.

0art 1C

0e firmly re)e!ts :ustin(s rationale on the sub)e!t 0e$ li-e :ustin$ ;uestioned whether IL !an be re"arded as real law 0e defined law as the union of #rimary rules .what the law is/ and se!ondary rules .whi!h shows how the law !han"es and de%elo#s/ 0e made mention of another se!ondary rule relatin" to the re!o"nition of this law. IL failed the rule of re!o"nition sim#ly be!ause it is not so#histi!ated enou"h to be a system of law. This is lar"ely due to the fa!t that IL s filled with #rimary rules=tellin" us what we !an and !annot do. 0e disa"rees with :ustin that laws are obeyed be!ause san!tions are im#osed. 0e !laims they are obeyed be!ause they are %alid. This is the main reason we !ould !onsider it to be analo"ous to domesti! law.

Tutorial (otes The main ma*im in International treaties is pacta sunt ser#anda+. This means that treaties must be -e#t The &ea!e of West#halia saw the end of the Just War .otherwise !alled the C0 year war due to its duration 171@5178@/ The min institution at the time o the treaty was the Aoman 4atholi! 4hur!h. :fter the &ea!e$ there was wides#read &rotestantism as the emer"in" states too- o%er from 4atholi!ism. We re"ard 1788 .the year the treaty of West#halia was si"ned/ as the year international law started.

It is well to note that there are !urrently o%er 19< states as si"natories to the 12F u# from @1 at the end of World War <. This was in lar"e due to de!olonisation whi!h led to the #roliferation of states after the 3e!ond World War. The !on!e#t a!!e#ted was self determination whi!h meant that the #eo#le had a ri"ht to !hoose, a/ : system of "o%ernment b/ : system of reli"ion !/ 4hoi!e of !olonies This was mainly dri%en by < #oliti!al !on!e#ts, !a#italism and so!ialism. /ther interestin facts The 3e!urity 4oun!il !om#rises of fifteen states$ but only fi%e ha%e #ermanent #ower. They are the 13:$ Eran!e$ 6n"land$ Aussia and 4hina. These fi%e states won the 3e!ond World War. It I well to note also that Aussia was established after the brea- u# of the 3o%iet Blo!. The < states that lost the War were Bermany and Ja#an. 4urrently there are other states ar"uin" for #ermanent re#resentation on the 4oun!il. They in!lude Bra+il$ 3outh :fri!a$ 2i"eria$ 6"y#t and some :rabi! 3tates. The International !ommunity also !ould be ar"ued to run !ontrary to international law. This is for a number of reasons. a/ The de!isions in the I4J are not bindin". They are sim#ly ad%isory o#inions b/ To "o to !ourt$ both states would ha%e to a"ree 18

!/ The sele!tion of )ud"es differ from that of domesti! !ourts

)esponses and #riti0ue to International Dne of the main ar"uments surrounds whether or not there is a uni%ersal definition of what law isL If the answer is no$ then ea!h theory is )ust a matter of o#inion. In "rierly1 Law of (ations1 Waldo!- .7th edition$ 197C/ as !ited in 0arris$ it was stated that the best %iew is that international law is in fa!t )ust a system of !ustomary law$ u#on whi!h has been ere!ted$ almost entirely within the last two "enerations$ a su#erstru!ture of !on%entional or treaty5 made law$ and some of its !hief defe!ts are #re!isely those that the history of law tea!hes us to e*#e!t in a !ustomary system.> There is no le"islati%e body to issue and !reate law There is a form of international morality whi!h is se#arate from international. These are rules of !omity. International law is a!tually treated as law and this is e%iden!ed in #ra!tise. There are also referen!es to International Law in some !onstitutions. Dne of the ma)or !riti;ues is that IL is diffi!ult to enfor!e. 0owe%er$ there are me!hanismsGsan!tions whi!h !an enfor!e it .e.". "rou# san!tions$ di#lomati! #ressure$ e!onomi! and #oliti!al san!tions$ 3e!urity 4oun!il and !ha#ter 7 a!tions./ :rti!le 98.</ of the 12 4harter whi!h states that if any #arty to a !ase fails to #erform the obli"ations in!umbent u#on it under a )ud"ment rendered by the !ourt$ the other #arty may ha%e re!ourse to the 3e!urity 4oun!il$ whi!h may$ if it deems ne!essary$ ma-e re!ommendations$ or de!ide u#on measures to be ta-en to "i%e effe!t to the )ud"ement.> he Amistad Case5 this !ase shows that IL !an a!tually be enfor!ed throu"h a domesti! !ourt .similarly so for 0uman Ai"hts !ases/

There are se%eral measures that the state !an ta-e short of military a!tion International Law is "enerally obeyed The notion of self-help This notion is best des!ribed under the !ase of,

1@

Gaci,o#o'Na!ymaros )ro-ect Case (.un!ary # /lo#a,ia)0 1991

By a 1997 bilateral treaty$ 0un"ary and 4+e!hoslo%a-ia a"reed to !onstru!t a system of lo!-s di%ertin" a stret!h of the Danube alon" a new !hannel on their territories to #rodu!e hydroele!tri!ity$ im#ro%e na%i"ation .the 133A for na%y #ur#oses/ and #rote!t a"ainst floodin". In 1989$ 0un"ary unilaterally sus#ended and then abandoned wor- on the #ro)e!t be!ause of stron" #ubli! #rotest a"ainst its en%ironmental im#a!t. Thereu#on$ 4+e!hoslo%a-ia de%ised a #lan .?ariant 4/ that de%iated from the treaty whi!h in%ol%ed the unilateral di%ersion of the Danube into a by#ass !anal on its territory. In 2o%ember 1991$ it !ommen!ed !onstru!tion of the by#ass !anal$ but did not ta-e irre%ersible ste#s until D!tober 199<$ when it dammed the ri%er. Meanwhile in May 199<$ 0un"ary had notified its termination of the 1977 treaty$ !itin" ?ariant 4 as bein" a brea!h of it. In 199C$ 0un"ary and 3lo%a-ia referred the !ase to the I4J by s#e!ial a"reement$ as-in" the !ourt to rule on the le"ality of 0un"ary(s sus#ension and abandonment of wor- on the #ro)e!tF 4+e!hoslo%a-ia(s ado#tion and im#lementation of ?ariant 4F and 0un"ary(s termination of the treaty. It was held that 4+e!hoslo%a-ia failed to res#e!t the #ro#ortionality whi!h is re;uired by international law.

This !ase mainly dis!usses one of the self5hel# me!hanisms by whi!h we may enfor!e international law$ namely$ !ountermeasures. It sets out three re;uirements for !ountermeasures. They in!lude, a/ The state has to demand re#aration b/ &ro#ortionality !/ The !ountermeasures must only be aimed at the delin;uent state It is well to note the differen!e between !ountermeasures and retorsions. : !ountermeasure is an ille"al a!tion by a state that is rendered lawful be!ause it is in retaliation to a #rior ille"al a!tion. 6*am#les in!lude !onfis!atin" another state( assets or e*#ellin" the other states( nationals from your !ountry. : retorsion howe%er$ is an unfriendly$ but le"al a!t$ in retaliation for an a!tion by another state. 6*am#les in!lude !uttin" off aid and di#lomati! ties.

17

Sources of International Law

This to#i! e*#lores how you "o about identifyin" international law. In doin" this$ you will note that international law doesn(t o#erate under the do!trine of stare decisis% 2hat is meant by sources. tryin"Gattem#tin" to identify whether a #arti!ular rule !an be re"arded as bindin" law we see- the %alidity o a #arti!ular rule there are < ty#es of sour!e, formal sour!e and material sour!e Eormal 3our!e5 the #ro!edure or !reatin" le"ally bindin" rules of eneral a##li!ation e.". !ustom and "eneral #rin!i#les Material 3our!e5 the e%iden!e that you use to #ro%e the e*isten!e of a #arti!ular rule e.". treaties and de!larations Article 34 :rti!le C8.1/ of the /tatute of the "nternational Court of 2ustice is often referred to as settin" the basi! list of sour!es of international law. 2oti!e howe%er that the #ur#ose o the :rti!le is more limited5 it was in!luded merely to tell the 4ourt what it can loo- at in its deliberations. The :rti!le states,
1. The 4ourt$ whose fun!tion is to de!ide in a!!ordan!e with international law su!h dis#utes as are submitted to it$ shall a##ly, a. international conventions$ whether "eneral or #arti!ular$ establishin" rules$ e*#ressly re!o"nised by the !ontestin" statesF b. international custom$ as e%iden!e of a "eneral #ra!tise a!!e#ted as law !. the "eneral principles of law re!o"nised by !i%ili+ed nations d. sub)e!t to #ro%isions of :rti!le @9$ )udi!ial de!isions and the tea!hin"s of the most hi"hly ;ualified #ubli!ists of the %arious nations$ as subsidiary means for the determination for the rules of law. This #ro%ision shall not #re)udi!e the #ower for the 4ourt to de!ide a !ase e3 ae4uo et bono0 if the #arties a"ree thereto.

<.

Article 59 states:
The de!ision of the 4ourt has no bindin" for!e e*!e#t between the #arties and in res#e!t of that #arti!ular !ase.

Eor the #ur#oses of the :rti!le$ the followin" terminolo"ies are a##lied,

International 4on%ention5 &ubli!ists5

Treaty$ 4harter$ 3tatute$ :"reement Learned writers 17

*3 ae4uo et bono' : me!hanism by whi!h the 4ourt !an i"nore e*istin" law and de!ide the !ase on rules they see to be fair.

Nuclear $eapons Case In the dissentin" o#inion of Jud"e 0i""ins it was stated that the e*isten!e of a la!una should not ma-e the !ourt unable to ma-e a de!ision. The 4ourts found that the threats or use of nu!lear wea#ons should "enerally !ontra%ene international humanitarian law. 0owe%er$ they lea%e o#en the ;uestion of whether the use of nu!lear wea#ons should be !onsidered lawful e%en thou"h it !ontra%ened international humanitarian law. )an-in of Sources There is no #arti!ular hierar!hy with these rules. The #rimary sour!es are found under ss.1/.a/.b/.!/ of :rti!le C8 and #ara"ra#h .d/ outlined the subsidiary means for the determinationGaid of rules of law. 5e3 5ata' refers to what the law is at that moment

5e3 6erenda' refers to the law as it mi"ht be!ome or de%elo# 5acunae' Non 5i4uet' refer to a "a# .in IL/. It !ould also be that there is not law at that time that deals with the issue at hand this is where the 4ourt is unable to render a findin" be!ause there was no !ase on #oint .Nuclear $eapons Case)% The 4ourt has limitations on this howe%er$ as they are unable to brin" in a findin" of non li4uet on the "rounds of silen!e o obs!urity o the law .:rti!le 17/

Treaties Treaties are #robably the well5used sour!e of law today. They are not #arti!ular I nature$ but !o%er a wide ran"e of sub)e!ts. 3ome ar"ue that treaties are re#la!in" !ustoms as the main sour!e o law for a number of reasons, i. ii. Treaties are used to !odify an a"reement The issue for law ma-in" treaties %s. !ontra!t treaties. The former im#oses uniformed obli"ations on the #arties. 3ome ar"ue that if a treaty a!tually ser%es that fun!tion$ its analo"ous to le"islati%e fun!tions. The latter$ howe%er$ im#oses obli"ations on a small number of #eo#le o%er a short #eriod of time. Eor e*am#le$ a treaty between < states to draw a border. Dn!e this has been done$ the treaty has e*#ired. :ll treaties are not the same as le"islation. They don(t bind states that are no #arties to the treaty itself 1nli-e le"islation$ treaties aren(t really made by a sele!t "rou# of states 6%en the narrowest from of treaties$ law and obli"ations e*ist for that #arti!ular #eriod of time$ it !ould !reate !ustom. 18

iii. i%. %.

The Eit+mauri!e :rti!le This arti!le ;uestions whether treaties are a formal sour!e of law or do they merely !reate obli"ations. 0e mainly ar"ued the latter. These obli"ations only remain between that #arties and last u# until the treaty e*#ires. "ilateral and $ultilateral Treaties : bilateral treaty is an a"reement between < states. While a multi5lateral treaty is an a"reement between a lar"er number o states. It(s easier to determine what the law is in the latter be!ause it is bindin" on a la"er number of states. Parties Dnly the sub)e!ts to international law5meanin" the states5 !an be sub)e!t to treaties .7ienna Con#ention of reaties). There !an also be #ri%ate a"reements between states. 3u!h an a"reement will be "o%erned by the law of one of those states .in other words$ it will be "o%erned by #ri%ate international law/. "indin (ature of Treaties 3tates !an only be bound by a treaty if they ha%e e%iden!ed an intention to be bound. It !an be done by,

3i"nature Aatifi!ation Aele%ant or"an .e.". 12 whi!h a!ts a s a de#ository of all treaties/ When a #res!ribed number of instruments ha%e been de#osited

1sually$ su!h treaties don(t affe!t lo!al or"ans unless they ha%e de#osited into lo!alGdomesti! le"islature. #ustom :r"uably$ !ustom is the only formal sour!e that !an turn all material sour!es into bindin" law. The formation in%ol%es two -ey in"redients, .1/ state #ra!tise and .</ opinion -uris si#e necessitates% Beneral #ra!tise #ro%ides ob)e!ti%e e%iden!e of !ustom$ while opinion -uris #ro%ides the sub)e!ti%e e%iden!e of !ustom. This is a belief that states are !om#lyin" with the rule be!ause it is law$ as o##osed to any other reasons that may be su##lied. 'eneral State Practise

19

This stems from material as#e!tsGusa"e. It !an be "leamed from a whole %ariety of sour!es in!ludin" news#a#er arti!les$ di#lomati! s#o-es#erson$ #ro%isions o treaties$ international tribunals$ and "o%ernment s#o-es#ersons$ to name a few. 3e%eral fa!tors are im#ortant in assessin" the stren"th of a "i%en #ra!tise. They in!lude,

The duration of the #ra!tise5 meanin" how lon" the #ra!tise has been in e*isten!e for it to !onsidered an international law The uniformity of the #ra!tise5 deals with !onsisten!y and re#etition as well as how lon" the #ra!tise has been in e*isten!e. :n e*am#le !an be found in he Asylum Case (Columbia # )eru0 1958)% 0ere$ the 4ourt loo-ed at whether a lo!al !ustom e*isted in Latin :meri!a that allowed the state "rantin" asylum to determine whether the offen!e !ommitted was #oliti!alG!riminal in nature. The fa!ts are set out below.

:fter an unsu!!essful rebellion in &eru in 1988$ a warrant was issued for the arrest on a !riminal !har"e arisin" out of the rebellion o one of its leaders$ 0aya de la Torre$ a &eru%ian national. 0e was "ranted asylum by 4olumbia in its &eru%ian 6mbassy in Lima. 4olumbia sou"ht and &eru refused a safe !ondu!t to allow 0aya de la Torre out of the !ountry. 4olumbia brou"ht this !ase a"ainst &eru$ as-in" the 4ourts to rule that 4olumbia$ as the state "rantin" asylum is !om#etent to ;ualify the offen!e for the #ur#oses o the said asylum.> It ar"ued or a rulin" on the basis of both treaty #ro%isions and ':meri!an International law in "eneral(. The 4ourts stated that the #arty whi!h relies on a !ustom of this -ind must #ro%e that this !ustom is established in su!h a manner that it has be!ome bindin" on the other #arty.> They ar"ued that it was the onus of the 4olumbian "o%ernment to #ro%e that the rule in%o-ed was in a!!ordan!e with the standard usa"e #ra!tised by the states in ;uestion. They relied on :rti!le C8 to su##ort this %iew. They failed to find any !onsisten!y within the fa!ts and felt they were un!ertain and !ontradi!tory.

The test as outlined in this !ase is one of a !onstant and uniformed usa"e. North /ea Continental /helf 6ederal &epublic of Germany # Denmar, and the Netherlands
: number of bilateral a"reements ha%e been made drawin" lateral median lines delimitatin" the 2orth 3ea 4ontinental 3hel%es of ad)a!ent and o##osite 3tates$ in!ludin" two lateral line a"reements between the 2etherlands and Bermany .1978/ and Denmar- and Bermany .197@/. 6a!h of these last two a"reements$ howe%er$ did no more than draw a di%idin" line for a short distan!e from the !oast be"innin" at the #oint at whi!h the land boundary of the two states were !on!erned. Eurther a"reement had #ro%ed im#ossible. 3#e!ial a"reements were !on!luded between the 2etherlands and the Eederal Ae#ubli! of Bermany and between Denmar- and Bermany referrin" the #roblem to the I4J. In ea!h s#e!ial a"reement$ the ;uestion #ut to the 4ourt was, What #rin!i#les and rules of international law to the delimitation as between the #arties of the areas of the 4ontinental 3hel%es in the 2orth 3ea whi!h a##ertain to ea!h of them beyond the #artial boundary HalreadyI determined= Both !ases were later )oined by the 4ourts.

.3ummarise )ud"ement in 0arris #". <@ onwards/ The main test in this !ase was whether the beha%iour of Bermany was e*tensi%e and e%en %irtually uniformed. The Nicaragua Case0 supra' The test as a##lied in this !ase was where the 4ourt found that absolute ri"orous !onformity in state #ra!tise. They found that the !ondu!t of state should be <0

!onsistent with the rule bein" ar"ued as !ustom. They noted that in!onsistent beha%iour is either a brea!h of the rule or a )ustifi!ation of the rule itself.

Ea!tors influen!in" !onformity

i.

ii. iii.

The le%el of o##osition to the formation of a rule. Minor in!onsisten!ies will #robably not #re%ent the formation of a ruleF howe%er$ you ha%e to show some !onformity with the rule The stren"th of the #rior rule5 you my need stron" e%iden!e to show that this rule is no lon"er in for!e Tryin" to #ro%e the e*isten!e of lo!alG"eneral !ustom. The threshold of the former may be harder to satisfy.

The "enerality of the #ra!tise5 ha%e only some states or all of them obser%ed the #ra!tiseL 0ow #owerful$ whether #oliti!ally$ or e!onomi!ally$ are the states who do obser%e the ruleL

It is well to note that a #ra!tise !an be !onsidered "eneral e%en if it(s not uni%ersally a!!e#ted. This is as sti#ulated under :rti!le C8.1/.b/. : sin"le or few states !annot #re%ent the formation of a !ustomary rule of law. Ea!tors influen!in" "enerality i. ii. iii. The "reater the number of states The status o the state5 there mi"ht be more wei"ht "i%en to the fa!t that the more #owerful states follow the !ustom The relationshi# between the #arti!ular states and the sub)e!t area .or rule in ;uestion/

6%iden!e of state #ra!tise !an be seen by both a!tions and ina!tions. Eor e*am#le$ of a state fails to rea!t to a #arti!ular !ondu!t$ it !an be seen to be a##ro%in" of tht beha%iour. Opinio uris (su!"ecti#e or ps$chological element) The #ur#ose of this is to e*amine why states do what they are doin". The rationale is that it hel#s us to distin"uish between #ra!tises formed from le"alGnon5le"al reasons. There is a !on%i!tion on the state hat there is a le"al obli"ation for it to a!t that way. 4ertain ille"al a!tions are routinely #erformed$ but !ontrary to international law. This wouldn(t be e%iden!e of !ustom in many !ases. : -nown e*am#le is the re#ort released by :mnesty international whi!h noted that !ertain states en"a"e in torture. 6ilarti!a # )ena'"rala0 1998
The &s$ a father and a dau"hter$ were &ara"uayan !iti+ens who entered the 13 in 1978 and a##lied fro #oliti!al asylum there. 3hortly after their arri%al$ they learnt of the ille"al #resen!e in the 13 of the D$ who was a &ara"uayan !iti+en and the former head of #oli!e in :sun!ion$ &ara"uay. The &s brou"ht !i%il #ro!eedin"s for dama"es in a 13 federal distri!t !ourt alle"in" that he had wron"fully !aused the death of their son and brother .also a &ara"uayan !iti+en/ in &ara"uay in 1977 by torture in retaliation fro their father(s #oliti!al o##osition to the &ara"uayan "o%ernment.

<1

The ty#e of death arose under a number of international statutes in!ludin" the 1ni%ersal De!laration of 0uman Ai"hts dealin" with 'wron"ful death(. It was !laimed that the !ourt had )urisdi!tion under the 1nited 3tated Judi!iary :!t 1789 whi!h authorises )urisdi!tion to federal distri!t !ourts o%er !auses dealin" with alien torts.

This !ase established hat the !ourts will a!!e#t somethin" as bein" bindin" international law as lon" as that !ase denies the beha%iour or brin"s it under an e*!e#tion. he 5otus Case (6rance # ur,ey) 19:1 This !ase found that a states failure to a!t !ould be e%iden!e of !ustom. The fa!ts are outlined below.
:!!ordin" to the s#e!ial a"reement$ the 4ourt has to de!ide the followin" ;uestions, i. 0as Tur-ey$ !ontrary to :rti!le 1@ of the 4on%ention of Lausanne of July <8th$ 19<C$ res#e!tin" !onditions of residen!e and business and )urisdi!tion$ a!ted in !onfli!t with the #rin!i#les of international law5and if so$ what #rin!i#les5 by institutin"$ followin" the !ollision whi!h o!!urred on :u"ust <$ 19<7$ on the hi"h seas between the Eren!h steamer$ 5otus and the Tur-ish steamer ;o<'=ourt and u#on the arri%al of the Eren!h steamer at 4onstantino#le5as well as a"ainst the 4a#tain of the Tur-ish steamshi#5 )oint !riminal #ro!eedin"s in #ursuan!e of Tur-ish law a"ainst M. Demons$ offi!er of the wat!h on board the 5otus at the time of the !ollision$ in !onse;uen!e of the loss of the ;o<'=ourt ha%in" in%ol%ed the death of ei"ht Tur-ish sailors an #assen"ersL 3hould the re#ly be in the affirmati%e$ what #e!uniary re#aration is due to M. Demons$ #ro%ided$ a!!ordin" to the #rin!i#les of international law$ re#aration should be made in similar !asesL

ii.

It was said in this !ase that, International law "o%erns the relationshi# between inde#endent states. 0e rules of law bindin" u#on states therefore emanate from their own free will as e*#ressed in !on%entions or by usa"es "enerally a!!e#ted as e*#ressin" #rin!i#les of law and established in order to re"ulate the relations between these !o5e*istin" inde#endent !ommunities or with a %iew to the a!hie%ement of !ommon aims. 0e !ase also sti#ulates that, It must be re!o"nised that$ in the absen!e of a treaty #ro%ision$ its !orre!tness de#ends u#on whether there is a !ustom ha%in" the for!e of law enfor!in" it.

There are two #ossible ways of #ro%in" the e*isten!e of opinion -uris% i. ii. By inferen!e By offerin" #ositi%e e%iden!e of belief

North /ea Continental /helf Cases0 supra

2ot only must the a!ts !on!erned amount to a settled #ra!tise$ but they must also be su!h$ or be !arried out in su!h a way$ as to be e%iden!e of a belief that this #ra!tise is rendered obli"atory by the e*isten!e of a rule of la re;uirin" it. The need or su!h a belief$ i.e.$ the e*isten!e of a sub)e!ti%e element is im#li!it in the %ery notion of the opinion -uris> The 3tates !on!erned must therefore feel that they are !onformin" to what amounts to a le"al obli"ation.

Tutorial (otes

To answer ;uestions in "eneral$ one must ada#t a definition for international law <<

6*#ound on what international law may be 6lements of law and how it a##lies to &ubli! IL. 3u!h elements in!lude rules$ obli"ations whi!h are established by the so%erei"n .state/ or international or"anisation$ and in rare o!!asions$ indi%iduals. The so%erei"n has o be obeyed.

0ow does &IL relate to the definitionL

Aules are established by le"islation in #arliament in domesti!Glo!al law. In international law$ there is no sin"le "o%ernment. The nearest thin" to #arliament in international law is the "eneral :ssembly of the 12 .2ew Kor-/. Both this "rou# as well as the lo!al "o%ernment ma-e rules. They ha%e a similar or"anisational and wor- ethi!. They differ in the sense that the :!ts of #arliament are bindin"$ while that of the Beneral :ssembly isn(t. They are mere re!ommendations. There are de!isions$ howe%er$ that are bindin" within the 12. This is found %ia !ustomary law obtained throu"h state #ra!tise. When you are loo-in" at the bindin" beha%iour of states$ you first see- the Treaty .in most !ases$ the 12 4harter/.

(" that all states are soverei ns. This is based on the #rin!i#le of !onsent. Meanin" states ha%e a ri"ht to do as they wish. :ll states are e;ual under the 4harter. (" that the Security #ouncil is the only roup under the Treaty 5%( #harter6 that can ta-e coercive actions. The 13 is the only member often 3e!urity 4oun!il with %eto #ower. They a!ted ille"ally in the War on Terror .Israeli war/$ but !laimed that they a!ted in a!!ordan!e with s.@1 12 4harter in 3elf5 defen!e. he Caroline Case0 supra :fter loo-in" for e%iden!e of self5defen!e in treaties$ you ne*t loo- to the other main sour!e of international law$ !ustom .state #ra!tise/. (" that the se%eral sour!es !o%ered under :rti!le C8 .International 4ourts of Justi!e 3attute/ in!ludes the followin",

Treaties 4ustom Beneral #rin!i#les Judi!ial de!isions and tea!hin"s by ;ualified #ubli!ists of %arious nations .these are used as subsidiary measures/

#ustom 5cont7d6 Kou ha%e to show e%iden!e that the state #ra!tise is obli"atory. )e ional #ustom he Asylum Case (Columbia # )eru)0 supra established a test of !onsisten!y and re#etition of #ra!tise in order to establish !ustom. <C

&i!ht of )assa!e Case ()ortu!al # "ndia)

In this !ase$ the I4J found that &ortu"al en)oyed a Ai"ht of &assa"e in India be!ause of !onstant and unified #ra!tise for o%er 1<@ years that ha%e been en)oyed between both #arties.

Persistent and Subse0uent /b!ector &ersistent Db)e!tor This !o%ers the situation where a state is ob)e!tin" to a rule before it has !rystallisedGemer"ed .one still in its formation/. It dissents from state #ra!tise$ statin" that the 3tate wont b abidin" by that #arti!ular rule before it be!omes !ustom.

An!lo'Nor?e!ian 6isheries Case (U= # Nor?ay) 1951

: 2orwe"ian De!ree of 19C@ delimited 2orway(s 'Eishery Mone( .by whi!h was meant its territorial sea/ alon" almost 1$000 miles of !oastline. The +one$ whi!h the 1J a"reed was$ as a matter of histori! title$ four .not three/ miles wide$ was measured not from the low water mar- at e%ery #oint alon" the !oast .as is normal #ra!tise/ but from strai"ht baselines lin-in" the outermost #oints of land. The #reamble to the De!ree )ustifies this system of well established national titles of ri"ht> the "eo"ra#hi!al !onditions #re%ailin" on 2orwe"ian !oasts> and the safe"uard of the %ital interest of the inhabitants of the northernmost #arts of the !ountry.> The fist of these "rounds related to the use of strai"ht baselines by 2orwe"ians and the a!;uies!en!e in that use by other states. Dther "rounds were #ut forward. In this !ase$ the 1J !hallen"ed the le"ality of 2orway(s strai"ht baseline system and the !hoi!e of !ertain baselines used in a##lyin" it. The ;uestion was im#ortant or British fishin" interests. 2orwe"ian enfor!ement of its system has "i%en rise to dis#utes in%ol%in" British fishin" %essels. The !ourt found tat e%en if a #arti!ular ty#e of delimitation #ra!tise had emer"ed$ 2orway would not ha%e been bound by that rule$ be!ause it had #ersistently ob)e!ted to it.

Lord Aead said in res#e!t of state #ra!tise and with #arti!ular referen!e to the fa!ts of the !ase before him that, The only !on%in!in" e%iden!e of state #ra!tise is to be found in sei+ures$ where the !oastal state asserts its so%erei"nty o%er the water in ;uestion by arrestin" a forei"n shi# and by maintainin" its #osition in the !ourse of di#lomati! ne"otiation and international arbitration. Jud"e 3ir :rnold M!2air$ in is dissentin" )ud"ement stated, International law does not say to a state, 'Kou are entitled to !laim territorial waters if you want them.( 2o maritime state !an refuse them. International Law im#oses #in a maritime state !ertain obli"ations and !onfers on it !ertain ri"hts arisin" out of the so%erei"nty whi!h it e*er!ises o%er its maritime territory. 8uestion, 4an a #ersistent ob)e!tor es!a#e a !ustomary rule on!e it has emer"edL 6.". 3outh :fri!a and a#artheid <8

3ubse;uent Db)e!tor This refers to a state that(s ob)e!tin" to a rule after it has been established. It !an ob)e!t to this rule and es!a#e a##li!ation only if no other state has ob)e!ted. This usually re;uires a##ro%alGa!;uies!en!e. It is well to not that in su!h situations$ the ob)e!t has to be !ontinually re#eated. (" ' '

both ob!ectors apply the doctrine of opinio "uris violations of a law are means by which customary international law can actually chan e &or formation of a custom1 you still need to satisfy state practise 5 eneral6 and opinio "uris.

Interaction between customary law and treaties A. #ustom arisin from treaties North /ea Continental /hel#es Cases0 supra

Denmar- asserted a #arti!ular :rti!le under the Bene%a 4on%ention. Two rules are bein" forwardedF one based on a !on%ention and the other that Bermany asserted !alled the do!trine of )ust and e;uitable share>. The !ourts e*amined whether the Treaty #ro%ision subse;uently emer"ed as #art of !ustomary law and therefore in!umbent u#on most states. They de!ided that it hadn(t.

Ea!tors brou"ht by the !ourt, i. ii. iii. Was the arti!le o the !on%ention norm !reatin" .meanin" did it set out a rule of law/ What was the le%el of #arti!i#ation in the treaty and did this in!lude states that were s#e!ial to the treaty. Duration and le%el of the uniformity of the #ra!tise

The !ourt found that state #ra!tise should ha%e been both e*tensi%e and %irtually uniformed and it must ha%e demonstrated that a re!o"nition of the rule of law as in%ol%ed. ". Interpretation of Treaties in relation to custom There are two main thin"s to bear in mind when dealin" with this sub5to#i!. The first is that treaties !an !o#y !ustom$ but also the se!ond, that !ustom !an e*ist without a treaty. he Nicara!ua Case' In this !ase it was noted that the !ourts !learly find that !ustom and treaty !an !o5e*ist in the same area. If there is a !onfli!t between a treaty and !ustom$ !ertain rules may a##ly. In few e*!e#tions$ states !an use treaties to o#t out of !ustom. 0owe%er$ there are se%eral #rin!i#les to resol%e !onfli!t, <@

 Later rules #re%ail o%er earlier ones .le3 posterior) The more s#e!ialisedG #arti!ular rule #re%ails o%er the "eneral rule. 0owe%er$ there are different ways where a rule !an be more #arti!ular under international law$ e.". rule to sub)e!t matter or number of #arti!i#atin" states. Aules to "o%ern "eneral rules There is a #resum#tion that treaties are not intended to dero"ate from !ustom .this thou"h$ is refutable/ There are se%eral !ustomary rules that treatiesG!ustoms !annot o%erturn. These are referred to as -us co!ens%

us Cogens This is a rule that #ermits no e*!e#tion. It is also referred to a #eremetory norm in its essential element$ states !annot !ontra!t out of a -us co!en by treatiesG!ustoms. They !an only be !han"ed by !ustomary rules of a similar !hara!ter .another -us co!en)% This is sti#ulated in :rti!le @C .?ienna 4on%ention/ whi!h states, : treaty is %oid$ if at the time of its !on!lusion$ it !onfli!ts with a #erem#tory .authoritati%e/ norm of "eneral international law. Eor the #ur#oses of the #resent 4on%ention$ a #erem#tory norm of "eneral international law is a norm a!!e#ted and re!o"nised by the international !ommunity of 3tates as a whole as a norm from whi!h no dero"ation is #ermitted and whi!h !an be modified only by a subse;uent norm of "eneral international law ha%in" the same !hara!ter. :rti!le 78 of the same 4on%ention states that, If a new #erem#tory norm of "eneral international law emer"es$ any e*istin" treaty whi!h is in !onfli!t with that norm be!omes %oid and terminates. 2hy do these rules emer e. They de%elo# due to demands of so!ialist and third world states 4ertain ty#es of beha%iour under no !ir!umstan!es should be #ermitted be!ause of their nature &ossible 6*am#les o Aules a"ainst "eno!ide o Aules a"ainst the use of for!eG a!ts of a""ression o Aules a"ainst sla%ery and the sla%e trade Aloeboetoe Case (1994)' the !ourt found that a treaty datin" ba!- to the 18th !entury$ if it were to be !on!luded now$ would be null and %oid be!ause it !ontradi!ted a #erem#tory norm. <7

o Aules a"ainst #ira!y o Aules a"ainst !rimes of humanity (" that #ositi%e rules in fa%our of !ertain thin"s !an be a rule of -us co!en .e.". self determination and human ri"hts/.

+ow do these rules differ from normal customary International Law. a. They do emer"e from #arts o the !ustomary #ro!ess b. they !an only be dis#la!ed by the emer"en!e of another rule of the same !hara!ter !. 4an a state ob)e!t to a rule of -us co!ens@ : state !an be a #ersistent ob)e!tor if it dis#lays a %ery stron" !on!e#t of dissent. :nother %iew is that !ustoms !an e%en bind the state e%en if it #rotests. Evidence to show the emer ence of a "us cogen: :-ehurst too- the %iew that there are two .</ rules, 1. a!!e#tan!e of the rule of law by all states <. you ha%e to show that states a!!e#t the rule as ha%in" the rule of )us !o"en

'eneral Principles of Law This is in lar"e !o%ered under :rti!le C8 .1/ .!/. Initially$ this was a way of in)e!tin" 2atural Law and #rin!i#le of )usti!e in international. This is a sour!e of law that is not based on !onsent of states$ but on fundamental le"al #rin!i#les whi!h are !ommon to most le"al systems. 0ow do you identify a "eneral #rin!i#leL Kou don(t ha%e o #ro%e that all states ha%e a "eneral #rin!i#le .Namibia /outh?est Africa Case) Dn use of "eneral #rin!i#le is usin" them as a means of )usti!e and fairness into the !ase. In the dissentin" )ud"ement of the Namibia Case$ his Lordshi# #ointed out that in loo-in" at fundamental #rin!i#le of law$ human ri"hts and their #rote!tion are one of the underlyin" -ey #rin!i#les. : se!ond way is to dill a la!unae ."a#/. There are some te!hni!al areas that need fillin" out. International tribunals !an borrow from !ertain le"al #ra!tises from national le"al systems .e.". !ir!umstantial e%iden!e$ !or#orate/ The international !ourt also borrows !ertain #rin!i#les from national law. 6.". res ad-udicate0 esto##el

<7

Beneral &rin!i#les elaborated by the I4J 1. the notion that brea!h of a rule in%ol%es an obli"ation to ma-e a re#aration <. ideas re"ardin" abuse o ri"hts C. !on!e#t of "ood faith Di#ersion of $ater from the Aeuse Case (Netherlands # ;el!ium)
In this !ase the !ourts held that "eneral referen!e to international law enabled it to a##ly the !on!e#t of e;uity. It was stated that, The !ourts re!o"nition of e;uity as a #art of international law is in no way restri!ted by the s#e!ial #ower !onferred u#on it to de!ide a !ase e3 ae4uo et bono>$ if the #arties a"ree thereto=the 4ourt has some freedom to !onsider #rin!i#les of e;uity as #art of the international law whi!h it must a##ly=it would seem to be an im#ortant #rin!i#le of e;uity that where two #arties ha%e assumed an identi!al or a re!i#ro!al obli"ation$ one #arty whi!h is en"a"ed in a !ontinuin" non5#erforman!e of the obli"ation should not be #ermitted to ta-e ad%anta"e of a similar non5#erforman!e of that obli"ation by the other #arty.

E0uity This !an be !on!ei%ed as a sour!e of law under :rti!le C8 .1/ .!/. 0owe%er$ e;uity also arises under :rti!le C8.</ and !an be understood under this #ro%ision by the 4ourts as e3 ae4uo et bono% There is a noted distin!tion to the definition of e;uity as arisin" under both se!tions of :rti!le C8. It is im#ortant to remember that e;uity per se is a rule or "eneral #rin!i#le e*istin" within the law whi!h )ud"es !an utilise at any time. In de!idin" a dis#ute e3 ae4uo et bono$ howe%er$ a )ud"e is not bound by #re5e*istin" rules of law. :s a result$ e;uity in su!h a !ase !ould "o beyond the normal rules of law. It !ould be used to "o a"ainst a #re5e*istin" rule$ or be used in a de!ision made without referen!e to rules of law. North /ea Continental /hel#es Cases 6rontier Dispute Case (;ur,ina 6aso # &epublic of Aali)
In this !ase$ the !ourt distin"uishes between three ty#es of e;uity,

e;uity contra le!em Ha"ainst the !urrent of the law5 i.e. to remedy its defe!tsI e;uity praeter le!em Hliterally beside or outside of the law5alludin" to the idea of usin" e;uity to fill in the "a#s
in the law$ to fill a lo"i!al la!una$ as if on ere a le"islatorI

e;uity infra le!emH within the lawI It is well to note that only the latter from would be a%ailable under arti!le C8 .1/ .!/. Jey #oints on 6;uity, When a !ourt de!ides a !ase under :rti!le C8.</$ they are de!idin" a !ase outside the normal rules of the law or i"norin" a #re5e*istin" rule. :rti!le C8.1/.!/$ you ae basin" a #rin!i#le under the rule of law. 1nder :rti!le C8.</$ the !ourts !an only a##ly this "eneral #rin!i#le if the #arties a"ree to it. This is not under :rti!le C8.1/ .!/. <8

9udicial Decisions It is sti#ulated under :rti!le @9 of the 3tatute of the International 4ourts of Justi!e that, The de!ision of the 4ourt has no bindin" for!e e*!e#t between the #arties and in res#e!t of that #arti!ular !ase. We see where as well$ )udi!ial de!isions are referred to as a sour!e under :rti!le C8 .1/.d/ of the same statute. We also see where :rti!le 98 of the 1nited 2ations 4harter statin" that,
1. <. 6a!h member of the 1nited 2ation underta-es to !om#ly with the de!isions of the International 4ourt of Justi!e in any !ase to whi!h it is a #arty. If any #arty to a !ase fails to #erform the obli"ations in!umbent u#on it under a )ud"ement rendered by the 4ourt$ the other #arty may ha%e re!ourse to the 3e!urity 4oun!il$ whi!h may$ if it deems ne!essary$ ma-e re!ommendations or de!ide u#on measures to be ta-en to "i%e effe!t to the )ud"ement.

It is well to note that where de!isions are bindin" on #arties to the dis#ute$ it is not so on states that are non5bindin" and e%en more so$ on the I4J itself. This is be!ause there is no set #rin!i#le on stare decisis% 4ourts are allowed to loo- at de!isions$ but this !an only be %iewed as a subsidiary measure. 6%en thou"h the !ourt isn(t bound by its #re%ious de!isions$ it does try to maintain internal !onsisten!y. It is well to note aswell that )udi!ial de!isions don(t only formulate from the I4J$ but from other international tribunals and other !ourts. 2ritin s of Publicists This$ as well as )udi!ial de!isions is listed as a subsidiary sour!e under :rti!le C8 .1/.d/. Writin"s of #ubli!ists are not treated as a main sour!e in today(s !ourts. Judi!ial s!holars often share their %iews$ but see- less to use it as foundation. It is su""ested that the 4ourt renders a ma)ority )ud"ement so it isn(t often that you would see a referen!e to an international le"al s!holar. It is well to note that these o#inions !an only be used as a subsidiary means for identifyin" a sour!e of law. /ther &actors related to sources, :. The 12 Beneral :ssembly5 Article :; of the %( #harter. 0ere the de!isions are only re!ommendatory$ they are not bindin". The :rti!le states,
The Beneral :ssembly may dis!uss any ;uestions or any matters within the s!o#e of the #resent 4harter or relatin" to the #owers and fun!tions of any or"ans #ro%ided for in the #resent 4harter$ and e*!e#t as #ro%ided in :rti!le 1<$ may ma-e re!ommendations to the Members of the 1nited 2ations or to the 3e!urity 4oun!il or to both on any su!h ;uestions or matters.

<. 3e!urity 4oun!il5 :rti!le <@ of the 12 4harter. The de!isions here are bindin". The :rti!le states, <9

The Members of the 1nited 2ations a"ree to a!!e#t and !arry out the de!isions of the 3e!urity 4oun!il in a!!ordan!e with the #resent 4harter.

(". Dn matters relatin" to the 12 bud"et$ de!isions are bindin".

#ases in which the %( 'eneral Assembly was referred to in the I#9 he Nicara!ua Case
In this !ase it was noted that, The 4ourt thus finds that both &arties=ta-e the %iew that the #rin!i#les as to the use of for!e in!or#orated in the 1nited 2ations 4harter !orres#ond$ in essentials$ to those found in !ustomary international law=the 4ourt has howe%er to be satisfied$ that there e*ists in !ustomary international law an opinion -uris=.this opinion -uris may$ thou"h with all due !aution$ be dedu!ed from$ inter alia$ the attitude of the #arties and the attitude of the 3tates towards !ertain Beneral assembly resolutions=

he $estern /ahara Case

Western 3ahara was !olonised by 3#ain in 1888 and remained until 1977 a 3#anish !olony -nown as the 3#anish 3ahara. Its 1978 !ensus #o#ulation of 78$900 !onsisted mostly of nomadi! 3aharan tribesmen. It is ri!h in #hos#hates$ in the #rodu!tion of whi!h it is an im#ortant !om#etitor of Moro!!o in the international #hos#hates industry$ and has abundant fishin" resour!es. In 1977$ the Beneral :ssembly indi!ated that the de!olonisation of the territory should o!!ur on the basis of the ri"ht to self5determination as e*#ressed in the Beneral :ssembly resolution 1@18 and in%ited 3#ain$ in !onsultation with the nei"hbourin" 3tates of Mauritania and Moro!!o$ to determine at the earliest #ossible date=the #ro!edures for the holdin" of a referendum under 1nited 2ations aus#i!es with a %iew to enablin" the indi"enous #o#ulation of the territory to e*er!ise freely its ri"ht to self5determination.> :fter mu!h delay$ 3#ain a"reed to hold a referendum of the #eo#le in the 3#anish 3ahara under 12 su#er%ision in 197@. :t this #oint$ Jin" 0assan$ who had #re%iously su##orted the a##li!ation of the #rin!i#le of self5determination to the 3#anish 3ahara$ !laimed the territory for Moro!!o on the basis of histori! title> #redatin" 3#ain(s !olonisation of the territory. Mauritania made a similar o%erla##in" !laim. Dn the initiati%e of these two states$ the "eneral :ssembly re;uested in 1978 an o#inion form the 4ourt on the followin" ;uestions, 1. <. Was Western 3ahara .Aio de Dro and 3a-iet 6l 0amra/ at the time of !olonisation by 3#ain a territory belon"in" to no one .terra nullius/L If the answer to the first ;uestion is in the ne"ati%e$ What are the le"al ties between this territory and the Jin"dom of Moro!!o and the Mauritanian entityL

The 4ourt answered statin" that the %alidity of the #rin!i#les of self5determination$ defined as the need to #ay re"ard to the freely e*#ressed will o #eo#les$ is not affe!ted by the fa!t that in !ertain !ases the Beneral :ssembly has dis#ensed with the re;uirement of !onsultin" the inhabitants of a "i%en territory.>

The B: too- note 'with a##re!iation( of the 4ourts o#inion. In the abo%e !ase$ the 4ourt a!!e#ted that the #rin!i#le of self5determination is a #art of !ustomary international law. 6ilarti!a # )ena'"rala0 supra Namibia (/outh $est Africa) Case0 19BB (dissentin! -ud!ement by 2ud!e ana,a) C0

Soft Law 3oft laws are not formally bindin" laws. In fa!t$ they are non5bindin" laws. International a"reements are statements whi!h are meant to be non5bindin" but e*#lain the #osition ta-en by the law. he Nicara!ua Case' this was a non5bindin" law$ but it was used as #ersuasi%e ar"ument in this !ase a"ainst the use of for!e. #odification and Pro ressive Development of International Law Dne early attem#t of !odifyin" international law were the !on%ention that emer"ed from the !onferen!e of 18= The international law !ommission5 subsidiary or"an of the 1nited nations

Tutorial (otes- /ctober <1 <;;= 5tutorial 36 Nuestion C The im#li!ation of the treaty on : and B means that it(s bindin" on both #arties .pact sunt ser#anda). This do!trine means that treaties must be obeyed. It relies on !ustomary IL and treaties. The do!trine !an be found under the Treaty of the Law of Treaties. It(s a uni%ersal treaty and %irtually all 3tates are #arties to it. Te 3tates that are not #arties to it and bound instead by !ustomary international law. The #ro!ess of !on%ertin" !ustomary IL into treaty is !alled !odifi!ation 4 !annot rely on the treaty be!ause they are not a #arty to it. The #ro!ess of ratifi!ation is when one #arty wishes to be #arty to a Treaty. 2ote that be!ause you ha%e si"ned does not mean you are bound by the Treaty. This is so unless the Treaty e*#li!itly states otherwise. The Treaty of 4ha"naramas established 4:AI4DM. The !ustom in this !ase deals with di#lomati! #rote!tion. Meanin" he !annot be im#risoned$ whi##ed$ de#orted or arrested, no matter how des#i!able the !rime. 0e is de!lared persona non !rata% 1sually$ if one %isitsGresides in another !ountry from that whi!h he is a nationalGwas born$ both the state he resides and the state from whi!h he(s a national !an ha%e )urisdi!tion o%er him. 4 !annot ma-e a !laim under the treaty as they are not a #arty. C1

The #rin!i#le of nec nocent nec prosunt a##lies in this situation. This means that you !an neither suffer nor benefit from a treaty to whi!h you are not a #arty. Where Treaty and !ustom !onfli!ts$ one e*#e!ts treaty to #re%ail. Eor althou"h !ustom loo-s at "eneral state #ra!tise$ treaties loo- to the s#e!ifi! obli"ations of a stateG so%erei"n "i%en throu"h !onsent. 3ee the Asylum Case

Sub ects of International Law and Recognition of States and !overn"ent

Sub!ects of International Law International Personalities This is another way of sayin" sub)e!ts of international law. Durin" the !lassi!al #eriod$ essentially states were the only sub)e!ts of international law. 0owe%er$ the modern %iew holds that a %ariety of non5state entities ha%e elements of international #ersonality. 0owe%er$ only states in #rin!i#le ha%e unlimited ri"hts and #ersonalities under international law. &ersonality will %ary a!!ordin" to !ir!umstan!es. D(4onnell e*tra!t .#". 98 0arris/ The arti!le su""ests that the word '#erson( is used to refer to one who is a le"al a!tor$ but that it is of no assistan!e in as!ertainin" who or what is !om#etent to a!t.> 0e !laims that only the rules of law !an determine this$ and they may sele!t different entities and endow them with different le"al fun!tions$ so that it is a mista-e to su##ose that merely by des!ribin" an entity as a '#erson( one is formulatin" its !a#a!ities in law=> D(4onnell #uts forward the ;uestions he thin-s should be as-ed in these !ir!umstan!es. They in!lude, 1. Do the rules of IL establish that this !laimant to !a#a!ity has the !a#a!ity whi!h it !laimsL <. What e*a!tly is the !a#a!ity whi!h it !laims and whi!h is allowed to itL C. 3hould the entity e re!o"nised as ha%in" the !a#a!ity whi!h it !laims to ha%eL Nationality Decrees "ssued in unis and Aorocco Case0 19:C
The meanin" of territorial so%erei"nty was #leaded by Eran!e in this !ase. It was stated in this !ase that, =territory is neither an ob)e!t$ nor a substan!eF it is a framewor-. What sort of framewor-L The framewor- within whi!h the #ubli! #ower is e*er!ised=.it must be re"arded as the e*ternal$ ostensible si"n of the s#here within whi!h the #ubli! #ower of the state is e*er!ised.

Independent States C<

It was stated in the Aonte#ideo Con#ention of &i!hts and Duties of /tates0 19CCD Art 1 that,
The state as a #erson of international law should #ossess the followin" ;ualifi!ations,

: #ermanent #o#ulation : defined territory Bo%ernment 4a#a!ity to enter into relations with other states

3ome interestin" fa!ts, The total number of states in the international !ommunity now stands at 190. ?ati!an 4ity is the only state that is "enerally re!o"nised by the international !ommunity that is not a member of the 12. There is no limit to a state(s #o#ulation and territory There must be a !om#etent "o%ernment The state in ;uestion must not be a failed state. : failed state is one in whi!h institutions and law and order ha%e totally or #artially !olla#sed under the #ressure and amidst the !onfusion of eru#tin" %iolen!e$ yet whi!h subsist as a "hostly #resen!e on the world ma#.> .Thurer5 International Ae%iew of the Aed 4ross$ 1999/ Thurer ar"ued that there are three main !hara!teristi!s of a failed state, 1. There is the "eo"ra#hi!al and territorial as#e!t=essentially asso!iated with internal and endo"enous #roblems <. 0ere is the #oliti!al as#e!t$ namely the internal !olla#se of law and order. C. There is the fun!tional as#e!t$ namely the absen!e of bodies !a#able$ on the one hand$ of re#resentin" the state at the international le%el and on the other hand$ bein" influen!ed by the outside world. :. &ermanent #o#ulation The #ermanen!y of the #o#ulation may be fle*ibly inter#reted as the si+e of a states #o#ulation !an %ary tremendously. The state must$ howe%er$ ha%e a si"nifi!ant number of #ermanent inhabitants. 2ationality is an internal matter for the state and it is determined by the state. 0owe%er$ this may be sub)e!t to IL. Eor e*am#le$ you !annot 'denationalise( a se!tor of the #o#ulation be!ause of ra!e. 3haw ar"ues that nomadi! #o#ulations mi"ht not !ount for the #ur#oses of territorial so%erei"nty$ e%en thou"h they may ha%e !ertain ri"hts o%er land. .$estern /ahara Case) B. Defined Territory : defined territory is %ery !ru!ial for the e*er!ise of territorial so%erei"nty for a number of reasons, 0a%in" e*!lusi%e ri"hts to dis#lay the a!ti%ities of a state o%er ones territory Im#oses a duty not to interfere with the territorial so%erei"nty of another state

It was su##lied in the North /ea Continental /hel#es Case that, CC

There is=no rule that the land frontiers of a 3tate must be fully delimited and defined$ and often in %arious #la!es and for lon" #eriods they are no$ as is shown by the !ase of the entry of :lbania into the Lea"ue of 2ations.> 6%en thou"h the territory may not be )oined "eo"ra#hi!ally$ the territory !an be )oined under a !ommon le"al system. :-ehurst !ontends that defined territory alludes to '"eo"ra#hi!al areas se#arated by borderlines from other areas and united under a !ommon le"al system.(> The territory need not be of e*#li!it bi" si+e as IL hasn(t introdu!ed any s#e!ifi! re;uirements re"ardin" a state(s boundaries. 6.". Israel. The delimitation to a state(s boundaries is not ne!essarily essential to a state. 4. Bo%ernment The main re;uirement of the "o%ernment is that it be effe!ti%e$ meanin" that it has effe!ti%e !ontrol o%er the territory and #o#ulation of the 3tate. The state would ha%e internal !ontrol .!iti+en and territory/ and e*ternal .-ee#in" other states out of its affairs/. There are !ases where effe!ti%e !ontrol has not been stri!tly a##lied$ e.". 3omalia and the 4i%il War. When a new entity see-s to be!ome a state$ the re;uirement of effe!ti%e !ontrol will be more stri!tly a##lied. Eor instan!e$ if a new entity is tryin" to su!!eedGse#arate from a state$ they ha%e to satisfy all re;uirements of the test. Durin" these situations$ the ori"inal "o%ernment will be #resumed to be !ontrolled. International Law is silent on !ases of su!!ession. It doesn(t e*#ressly #rohibit or !ondone it. 0en!e$ e*istin" states are allowed to use for!e on se#arist mo%ements. IL also does not im#ose the ty#e of "o%ernment a state should ha%e .e*!e#t a#artheid whi!h has been outlawed under it/. It was noted in 0i""ins$ )roblems and )rocess0 that what is absolutely !lear is that a loss of 'stable and effe!ti%e "o%ernment( does not remo%e the attribute of statehood$ on!e a!-nowled"ed.> D. 4a#a!ity to enter into relations with other 3tates In order for states to e*er!ise a !a#a!ity to enter into relations with other states$ they ha%e to be inde#endent. Austro'German Customs Union Case0 19C1
Inde#endent$ as defined by Jud"e :n+ilotti I this !ase was ta-en to mean the sole ri"ht of de!ision in all matters>.

Aestri!tions that are #la!ed on a state under international law do not affe!t that states inde#enden!e. These resolutions are a way of re5instatin" the states so%erei"nty and it is ar"ued that so%erei"nty is the way it was able to #ut these restri!tions on itself in the first #la!e. :rti!le 10 of the Dr"anisation of :meri!an 3tates .D:3/ #ro%ides that all states under the inter5 :meri!an system are #resumed to be e;ual and inde#endent and e%en if they do not ha%e the !a#a!ity to enfor!e this inde#enden!e.
3tates re )udi!ially e;ual$ en)oy e;ual ri"hts and e;ual !a#a!ity to e*er!ise these ri"hts$ and ha%e e;ual duties. The ri"hts of ea!h state de#end not u#on its #ower to ensure the e*er!ise thereof$ but u#on the mere fa!t of its e*isten!e as a #erson under international law.

C8

: %ery low test of this is im#osed as all states will interlin-. 2o state is !om#letely inde#endent of the other$ e.". militaryGe!onomi! ties. Dther 4riteria

Aes#e!t for the ri"ht of self5determination #eo#les, if an entity intend to be!ome a new state while denyin" the self5determination$ it ou"ht not to be a!!e#ted as a 3tate e.". Ahodesia Aes#e!t for ra!ial e;uality, ra!ist ine;uality is a !riteria for an una!!e#tability o re!o"nisin" a !ountry as a 3tate e.". 3outh :fri!a

$andates1 Trusteeship Territories and Self-Determination 0istori!ally$ there ha%e been some territories whi!h were not wholly inde#endent. Mandates and trusteeshi# territories emer"ed after both World Wars. The ?i!toria(s #ower didn(t "ain any so%erei"n ri"hts o%er these mandates. &ost5 WW<$ the mandate system was re#la!ed by the trusteeshi# system$ "o%erned by 4ha#ters 1< O1C of the 12 4harter .non self5"o%ernin" territories/. The trusteeshi# system turned out to be re%olutionary as the newly inde#endent states )oined the 12 and #ressured for the ri"ht to self5determine that the trustees should be re!o"nised. :ll trust territories ha%e now a!hie%ed inde#enden!e or free asso!iation with other 3tates. The Ai"ht to 3elf5Determination 0is is the ri"ht o a #eo#le to determine freely their status$ be it #oliti!al$ e!onomi! or so!ial. :rti!le 1< of the 12 4harter sti#ulates that one o the #ur#ose of the 12 is to de%elo# a res#e!t for the #rin!i#le of e;ual ri"hts. It noted two thin"s$ in #arti!ular. Eirst$ it des!ribes self5determination as a #rin!i#le$ not a ri"ht and se!ondly$ it didn(t re;uire the inde#enden!e of territories that are not self5 "o%ernin". The ri"ht to self5determination e%ol%ed mainly throu"h the 12B: resolutions as a ri"ht to de!olonisation. These are non5bindin" resolutions .e.". res. 1@18 'de!laration on the "rantin" of inde#enden!e to !olonial territories and #eo#les(/. &ara"ra#h < of the resolution heeded that,
:ll #eo#les ha%e the ri"ht to self5determinationF by %irtue of that ri"ht they freely determine their #oliti!al status and freely #ursue their e!onomi!$ so!ial and !ultural de%elo#ment.

This resolution in its entirety noted two thin"s of %ital im#ortan!e. The first is that it shows that 3D is a##li!able to both non self5"o%ernin" territories and trustee territories. The 4harter itself$ does not s#ea- as to who should benefit from these ri"hts. The se!ond thin" noted is that 3D should be e*er!ised in a manner that doesn(t disru#t the natural unity or territorial inte"rity of a state. This !on!e#t is reiterated in #ara"ra#h 7. he $estern /ahara Case0 supra
In the ad%isory o#inion "i%en by the I4J$ it was noted that self5determination is a ri"ht and #rimarily relied on #re%ious de!isions and Beneral :ssembly resolutions. They also #ointed out that 3D was a##li!able to !ases where territories and #eo#les ha%e not yet attained inde#enden!e .#ara"ra#h @7/. The resolution .1@18/ !ontem#lates for non5self5"o%ernin" territories more than one #ossibility, 1. emer"en!e as a so%erei"n inde#endent state

C@

<. C.

free asso!iation with an inde#endent state inte"ration with an inde#endent state

he 5e!al Conse4uences of the Construction of a $all by "srael in the (ccupied )alestinian erritory E:884F
.3ee su##lemental materials$ #". 11/

In this !ase$ the !ourt found that the obli"ation to effe!t to ri"hts of #eo#le to 3D was one of er!a omnes5 one that !on!erns all states. :ll states ha%e a le"al interest in the #rote!tion of these ri"hts. The 12B: resolutions and he $estern /ahara Case s#ea-s to the a##li!ation of ri"ht to #eo#le who ha%e not "ained inde#enden!e. &ara"ra#h 1@@ of the )ud"ment in the abo%e !ase s#ea-s to the obli"ation to res#e!t the ri"ht of er!a omnes. What is still sub)e!t to the date is whether a ri"ht to 3D still e*ists in the modern !onte*t. :nd if it des e*ist$ how far does it e*istL International /r anisations International or"anisations !an be sub)e!ts of IL and #ossess international #ersonality. Whether they #osses the latter$ is determinati%e on the #arti!ular !ir!umstan!e. This is be!ause usually$ only 3tates #ossess full International #ersonality. &eparation for in-uries suffered in the ser#ice of the UN Case0 1949
Dn 3e#tember 17$ 1988$ 4ount Bernadotte$ a 3wedish national$ was -illed$ alle"edly by a #ri%ate "an" of terrorists$ in the new !ity of Jerusalem. The new !ity was then in Israeli #ossession. The 4ount was the 4hief 12 Tru!e ne"otiator in the area. In the !ourse of de!idin" what a!tion to ra-e in res#e!t of his death$ the 12B: sou"ht the ad%i!e of the I4J. Israel was admitted to the 12 on May 11$ 1989$ shortly after the 4ourt "a%e its o#inion. The 4ourt as-ed two main ;uestions. The first ;uestion was in the e%ent of an a"ent of the 12 in the #erforman!e of his duties$ sufferin" in)ury in !ir!umstan!es in%ol%in" the res#onsibility of a state$ has the 12=the !a#a!ity to brin" an international !laim a"ainst the res#onsible="o%ernment with a %iew to obtainin" the re#aration due in res#e!t of the dama"e !aused .a/ to the 12$ .b/ to the %i!tim or to #ersons entitled throu"h himL...> 3ome -ey #oints were mentioned in relation to this ;uestion, a. b. !. d. when the or"anisation has sustained dama"e resultin" from a brea!h by a Member of its international obli"ations$ it is im#ossible to see how it !an obtain re#aration unless it #ossesses !a#a!ity to brin" an international !laim The traditional rule of di#lomati! #rote!tion bein" #rote!ted by the 3tate is )ust that5 #rote!ted by the state. The rule$ as a##lied$ refers to 3tate. This a!tion s brou"ht by an or"anisation The 4harter does not e*#ressly !onfer u#on the Dr"anisation the !a#a!ity to in!lude$ in its !laims for re#aration$ dama"e !aused to the %i!tim or to #ersons entitled throu"h him. Nuestion .a/ was answered unanimously ad .b/ by 11 %otes to 8$ in the affirmati%e.

The se!ond ;uestion as-ed in the e%ent of an affirmati%e re#ly on #oint 1.b/$ how is the a!tion by the 12 to be re!on!iled with su!h ri"hts as may be #ossessed by the 3tate of whi!h the %i!tim is a nationalL> It was stated that in law=it does not seem that the fa!t of the #ossession of the nationality of the Defendant 3tate by the a"ent !onstitutes any obsta!le to a !laim brou"ht by the Dr"anisation for a brea!h of obli"ations towards it o!!urrin" in relation to the #erforman!e of his mission by that a"ent. .The !ourts answered this ;uestion by 10 %otes to @/

Jey &oints C7

The 1n has international le"al #ersonality .arisin" from ne!essary im#li!ations deri%in" from domesti! law and ability to !on!lude treaties/ The 4ourt found that the #ersonality of the 12 is limited to its fun!tions e.". the 12 does not #ossess all the ri"hts of a state. The 4ourt stated that the !a#a!ity the 12 does not ha%e is the ri"ht to brin" a !laim a"ainst another state for dama"es suffered to them or an a"ent. The 12 has the !a#a!ity to brin" a !laim a"ainst non5members. They had ob)e!ti%e #ersonality .e*istin" or both Members and non5Members/.

The o#inion saw the 12 as an inde#endent sub)e!t of law. Individuals The traditional %iew was that indi%iduals were not sub)e!ts under international law e.". !onte*t of anti5sla%ery treaties. Today$ we see IL "i%in" indi%iduals some ri"hts and duties. Dne duty is the duty not to en"a"e in international !riminal !ondu!t. &ost WW<$ war !rime tribunals .2urembur" and To-yo/ were established. 3e%eral others ha%e been sin!e then e.". Awanda and Ku"osla%ia. a6 International +uman )i hts- The Inter-American System International 0uman Ai"hts !an be e*er!ised in domesti! !ourts. Indi%iduals !an ha%e standin" before some human ri"hts tribunals and some human ri"hts are #rote!ted under !ustomary IL. /outh $est Africa Case0 supra
This !ase re!o"nised the ri"ht to e;uality. Jud"e Tana-a$ in his )ud"ement summated on the im#ortan!e of !ustom. 0e stated that, Df !ourse we !annot admit that indi%idual resolutions$ de!laration and )ud"ements$ de!isions$ et!.$ ha%e bindin" for!e u#on the members of the or"anisation. What is re;uired for !ustomary IL is the re#etition of the same #ra!tise=this !olle!ti%e$ !umulati%e and or"ani! #ro!ess=!an be !hara!teri+ed as the middle way between le"islation by !on%ention and the traditional #ro!ess of !ustom ma-in"=>

6ilarti!a # )ena'"rala0 supra

This !ase established that the #rohibition of torture is re!o"nised under !ustomary international law.

The Inter5:meri!an 3ystem of 0uman Ai"hts This forms only one system of a %ast ma)ority. Eor the #ur#oses of this to#i!$ the followin" will be e*#lored, The 4harter of the Dr"anisation of :meri!an 3tates The :meri!an De!laration of the Ai"hts and Duties of Man The :meri!an 4on%ention on 0uman Ai"hts

The D:3 4harter .si"ned in 1988 and amended few times later/ C7

This !harter establishes the or"anisation of :meri!an 3tates$ to whi!h many .!ommonwealth/ 4aribbean 3tates are members. :rti!le @C of the 4harter outlines the %arious or"ans of the D:3 that has been established. They in!lude the Beneral :ssembly$ the Meetin" of 4onsultation of Eorei"n :ffairs$ the 4oun!ils$ the Inter5:meri!an Judi!ial 4ommittee$ and the Inter5:meri!an 4ommission on 0uman Ai"hts .sub5se!tion e/$ The Beneral 3e!retariat and more. The s#e!ifi! #ro%ision that lin-ed the 4harter to human ri"hts is :rti!le C. This arti!le outlines some #rin!i#les re"ardin" the international standard of !ondu!t of ea!h state. It in%ol%es the faithful fulfilment of obli"ations under the treaty$ "ood faith between !ontra!ts in%ol%in" states$ solidarity of the states$ the ri"ht to !hoose$ without interferen!e$ #oliti!al$ so!ial and e!onomi! stan!es$ the elimination of e*treme #o%erty$ !ondemnation of war of a""ression$ issues of so!ial )usti!e$ e!onomi! !oo#eration and he edu!ation of #eo#le. .:rti!le 1C of the 4harter is e*a!tly the same as the Monte%ideo 4on%ention/ :rti!le 17 also ma-es a !onne!tion to the #rote!tion of human ri"hts. It states that,
6a!h state has the ri"ht to de%elo# its !ultural$ #oliti!al and e!onomi! life freely and naturally. In this free de%elo#ment$ The 3tate shall res#e!t the ri"hts of the indi%idual and the #rin!i#les of uni%ersal morality.

The :meri!an De!laration of the ri"hts and Duties of Man .1988/ This was established before the 61 and 12 de!larations of human ri"hts. Thou"h its non5bindin" it has been an authoritati%e inter#retation of what indi%idual human ri"hts are #rote!ted under the D:3 4harter. The #reamble states that all men are born free and e;ual$ in di"nity and in ri"hts$ an$ bein" endowed by nature with reason and !ons!ien!e they should !ondu!t themsel%es as brothers one to another.> The :meri!an 4on%ention on 0uman Ai"hts .1979/ To fully understand the role of the 4on%ention$ you ha%e to ta-e ea!h :rti!le in turn.

:rti!le 1 !reates a bindin" obli"ation on 3tates to res#e!t all indi%idual ri"hts. :rti!le < im#oses a further obli"ation on 3tates to ena!t le"islation .muni!i#al law/ to address these ri"hts. 3e%eral 4ommonwealth 4aribbean 4ountries are members of the 4on%ention in!ludin" Barbados$ Jamai!a$ and 3urinam. Trinidad and Toba"o withdrew from it lar"ely due to the de!ision in )ratt and Aor!an. :rti!le 8 establishes a basi! ri"ht to life5 to ha%e it res#e!ted$ for the abolition of the death #enalty .e*!e#t in e*tenuatin" !ir!umstan!es/.</$ not re5establishin" the death #enalty in 3tates that ha%e already abolished it.C/$ the non5infli!tion of !a#ital #unishment for #oliti!al offen!es.8/$ and the ri"ht to a##ly for amnestyG#ardon if you are fa!in" the death #enalty.7/. 3e!tion @ of the :rti!le states that !a#ital #unishment shall not be im#osed u#on #erson$ who at the time the !rime was !ommitted$ were under 18 years of a"e or o%er 70 years of a"eF nor shall it be a##lied to #re"nant women.>

C8

:rti!le 7 deals with the #rohibition of sla%ery. It sates that no one shall be sub)e!t to sla%ery or in%oluntary ser%itude .1/$ no one should be re;uired to #erform for!ed or !om#ulsory labour .</. 3e!tion C "oes on to state what falls within the s!o#e of !om#ulsory labour. :rti!le <0 #rote!ts the ri"ht to nationality. It states that e%ery #erson has the ri"ht to nationality and .</ e%ery #erson has the ri"ht to the nationality of the 3tate in whose territory he was born if he does not ha%e the ri"ht to any other nationality.> :rti!le C< im#oses !ertain duties on !iti+ens$ statin" that, .1/ 6%ery #erson has res#onsibilities to his family$ his !ommunity and man-ind. .</ The ri"hts of ea!h #erson are limited by the ri"hts of others$ by the se!urity of all and by the )ust demands of the "eneral welfare$ in a demo!rati! so!iety.

4ha#ter 7 sets u# the Inter5:meri!an !ommission on 0uman Ai"hts 4ha#ter 8 sets u# the Inter5:meri!an 4ourt on 0uman Ai"hts :rti!le 7@ draws the 4on%ention into !onformity with the ?ienna 4on%ention on the Law of Treaties si"ned in 1979. :rti!le 78 allows a 3tate to withdraw from the !on%ention by denoun!in" their #arti!i#ation to it$ after the fi%e year #eriod from the date of its entry and by means of one years noti!e.

Li-e the I4J$ 3tates are allowed to a!!e#t the formal )urisdi!tion of the 4ourt. 3e%eral 4aribbean 3tates ha%e done so .e.". 0aiti$ 3urinam$ Barbados/.The 4ommission has dual !om#eten!e under the D:3 and se!ondly$ under the !on%ention. The 4ommission under the 4harter has re!ently been "i%en the #ower to in%esti"ate !ertain !om#laints .:rti!le 81 outlines the fun!tions whi!h in!lude de%elo#in" an awareness of human ri"hts amon" the #eo#le of :meri!a$ ma-e re!ommendations to "o%ernments of member 3tates$ #re#are studies and re#orts to show #erforman!e$ amon" others./

:rti!le 88 of the 4on%ention allows any #erson or "rou# of #ersons$ or any non"o%ernmental entity le"ally re!o"nised in one or ore member states of the Dr"ani+ation$ may lod"e #etitions with the 4ommission !ontainin" denun!iations or !om#laints of %iolation of this 4on%ention by a 3tate #arty.>

Ne#ille 5e?is # AG for 2amaica ()ri#y Council)

They found that as a result of due #ro!ess$ the lo!al &ri%y 4oun!il has to wait for the inter5:meri!an #etition to be e*hausted for the re#ort to be "i%en before it a!tually ma-es a de!ision.

:rti!le 8@ of the !on%ention states that the !ommission !an hear !om#laints a"ainst a 3tate from other 3tates.

The only #uniti%e #owers that the !ommission has is writin" a bad re#ort or brin"in" a 3tate to !ourt. b6 )ole of the American Declaration The Inter-American #ourt of +uman )i hts

C9

:rti!le 71 of the 4on%ention states, only the 3tates &arties and the 4ommission shall ha%e the ri"ht to submit a !ase to the 4ourt.> If the 4ourt finds that a human ri"ht is li-ely to be %iolated$ it !an im#ose #ro%isional measures a"ainst the state. If they do find a %iolation$ they ha%e !ertain #owers as set out under :rti!le 7C. :rti!le 78 re;uires #arties to !om#ly with )ud"ements of the 4ourts$ but the 4ourts are #owerless in enfor!in" their own )ud"ement. 7elas4ues &odri!ues Case 1999
Manfredo ?elas;ue+$ a student at the 2ational :utonomous 1ni%ersity of 0onduras$ was %iolently detained without a warrant for his arrest by members of the 2ational Dffi!e of In%esti"ations .D2I/ and B5< of the :rmed Eor!es of 0onduras.> The detention too- #la!e in Te"u!i"al#a on the afternoon of 3e#tember 1<$ 1981. :!!ordin" to the #etitioners$ se%eral eyewitnesses re#orted that Manfredo ?elas;ue+ and others were detained and ta-en o the !ells of &ubli! 3e!urity Eor!es 3tation 2o.< lo!ated in the Barrio 6l Man!hen of Te"u!i"al#a$ where he was a!!used of alle"ed #oliti!al !rimes and sub)e!ted to harsh interro"ation and !ruel torture>. The #etition added that on 3e#tember 17$ 1981$ Manfredo ?elas;ue+ was mo%ed to the Eirst Infantry Battalion$ where the interro"ation !ontinued$ but that the #oli!e and se!urity for!es denied that he been detained. With the "i%en ur"en!y of this situation$ the 4ourt a!tually ordered #ro%isional measures a"ainst 0onduras. The followin" was stated in the )ud"ement, The 4ourt stated that in !ases dealin" with human ri"hts$ the standard of #roof need not be !riminal .!ir!umstantial e%iden!e !ould be led/ 0r !om#laints are not li-e !riminal trials .no !riminal standard of #roof/. The #ur#ose of these !om#laints is not meant to #rose!ute indi%iduals$ but to alle%iate su!h offen!es o!!urrin". 3ilen!e by a #arty !an a!tually be !onstrued a"ainst it. The ratio of the 4ourt is interestin" seein" as thou"h Mr. ?elas;ue+ has a!tually been disa##eared by the "o%ernment of 0onduras$ thus !ontra%enin" se%eral basi! human ri"hts in!ludin" liberty$ inhumane treatment and as su!h$ the ri"ht to life.

Dbiter elements of the )ud"ement The 4ourt addresses the issue of liability of the "o%ernment e%en if they weren(t dire!tly in%ol%ed. They found that there is a re;uirement im#osed by the !on%ention that allows liability e%en if the "o%ernment was not in%ol%ed .!reates a res#onsibility based on due dili"en!e or ina!tion/. They summated, :n ille"al a!t whi!h %iolates human ri"hts and whi!h is initially not dire!tly im#utable to a 3tate= !an lead to international res#onsibility of the 3tate$ not be!ause of the a!t itself$ but be!ause of the la!- of due dili"en!e to #re%ent the %iolation or to res#ond to it as re;uired by the 4on%ention.>

.ilaire0 Constantine and ;en-amin # G (:88:)

The 4ommission !ontended that the 3tate is res#onsible for %iolatin" the :meri!an 4on%ention throu"h the arrest$ detention$ trial$ !on%i!tion and senten!in" to death by han"in" of the C< %i!tims in!luded in the #resent !ase #ursuant to the (ffences A!ainst the )erson Act of Trinidad and Toba"o$ ena!ted in 19<@. It added that in a!!ordan!e to s8 of the :!t$ on!e the offender is found "uilty of murder$ the death #enalty is mandatorily im#osed>. The 4ourts found that Trinidad had %iolated :rti!le 8. Jud"ement The 4ourt #la!ed !onsiderable em#hasis on the wide ran"e of offen!es that !an !onstitute murder. It was stated in #ara"ra#h 97 that,

80

=there is #erha#s no sin"le !lass of offen!es whi!h %aries so widely both in !hara!ter and in !ul#ability as=HtheI !ommon law definition of murderH=I we may see the multifarious %ariety of the !rimes for whi!h death is the uniformed senten!e. Trinidad was a!tually bein" s!rutinised be!ause of its mandatory of the death #enalty. 3e%eral )urisdi!tions$ e.". Jamai!a and Beli+e ha%e introdu!ed a distin!tion between !a#ital and non5!a#ital murder. Both the !ommission and the !ourt had sad that the :meri!an 4on%ention doesn(t #rohibit the death #enalty #er se. It was stated that in s#ite of the fa!t that the 4on%ention does not e*#ressly #rohibit the a##li!ation of the death #enalty$ the 4ourt has affirmed that the 4on%entional rules !on!ernin" the death #enalty should be inter#reted as 'im#osin" restri!tions desi"ned to delimit stri!tly its a##li!ation and s!o#e$ in order to redu!e the a##li!ation of the death #enalty to brin" about its "radual disa##earan!e.(> The 4ourt found that :rti!le 8.1/ of the 4on%ention doesn(t allow mandatory #unishment as it !ontra%enes the ri"ht to life. The 4ourt found that the D:&: 19<@ .TOT/ automati!ally and "eneri!ally mandates the a##li!ation of the death #enalty for murder.> The 4ourt also found that TOT had !ontra%ened :rti!le < of the 4on%ention to the e*tent that it was non5 !om#liant with lo!al state law. They ar"ued that the 3tate has a #ositi%e obli"ation to ado#t the le"islati%e measures ne!essary to "uarantee the e*er!ise of the ri"hts re!o"nised in the 4on%ention...>

To 2ote i. ii. iii. The D:3 4harter established a re"ional or"anisation to #romote human ri"hts The :meri!an De!laration of the Ai"hts and Duties of Man elaborates the abo%e 4harter The Inter5:meri!an 4ourt of 0uman Ai"hts has )udi!ial #ower to ma-e de!isions et!.

Ne#ille 5e?is # AG of 2amaica E:888F U=)C C5

This !ase illustrates how remedies are a%ailable under the Inter5:meri!an system and how it allows one to en)oy the ri"hts under 0A law. It also loo-s at whether the Jamai!an &ri%y 4oun!il had to wait on the Inter5:meri!an de!ision before it !ould ma-e de!isions on the #rero"ati%e of mer!y. The &4 found that the notion o due #ro!ess was re!o"nised under the Jamai!an !onstitution and !ommon law. They also found that due #ro!ess entitles indi%iduals to #etition international 0A bodies and therefore re;uire the Jamai!an &4 to wait for the ri"hts of these bodies before ma-in" their de!ision.

/ther Entities Nanni # )ace and the /o#erei!n (rder of Aalta

The Drder$ the offi!ial title of whi!h is the 3o%erei"n Military Drder of 3t. John of Jerusalem$ of Ahodes$ and of Malta$ was established durin" the 4rusades as a nursin" brotherhood a military or"anisation dire!ted a"ainst the Moslems. In 1C09$ the Drder !on;uered the Island of Ahodes$ whi!h it then ruled until 1@<< when it was e)e!ted by the Dttoman 6m#ire. In 1@C0$ the Drder mo%ed to Malta whi!h had been "i%en to it by 6m#eror 4harles ?. This it ruled until 1798 when the island was ta-en by 2a#oleon. The Drder established its head;uarters in Aome in 18C8. 3in!e then$ it has #erformed wor- of a humanitarian !hara!ter for the #oor and the si!-. In the #resent !ase$ whi!h raised the ;uestion of the #ersonality of the Drder in Italian law$ the 4ourts e*amined its history and status in international law. The 4ourts found that !ertain international !olle!ti%e units !an ha%e limited !a#a!ity to a!t internationally. They also found that the international military Drder has limited international !a#a!ity.

81

he .oly /ee and 7atican City

6%en thou"h the 0oly 3ee does not ha%e territory$ it does ha%e the !a#a!ity to a!t internationally e.". si"nin" treaties and di#lomati! status. The #ersonality of the 0oly 3ee is distin!t from the #ersonality of the 3tate of ?ati!an 4ity. Dne is a non5territorial institution and the other a 3tate. The #a#a!y as a reli"ious or"an is a sub)e!t of international law and !a#able of international ri"hts and duties. The fa!t that the 0oly 3ee is a non5territorial institution is no lon"er re"arded as a reason for denyin" it international #ersonality.

)eco nition of States and 'overnments This to#i! in%ol%es two !ate"ories, i. ii. Ae!o"nition of states Ae!o"nition of "o%ernments

)eco nition of States This refers to the le"al a!t by whi!h states show a willin"ness to deal with a new 3tate. It has two le"al fun!tions, i. ii. To !onstitute a le"al determination of statehood It(s a!tually a #re5!ondition for the establishment of le"al relations between states.

Ae!o"nition !an be e*#li!it or !an arise by im#li!ation$ e.". si"nin" a bilateral treaty et!. 4ertain non5state a!tors !an ha%e !ertain a!ts under international #ersonality. There is no #re!ise !atalo"ue of a!ts that im#ly re!o"nition. 6ntry into di#lomati! relations !learly im#lies it. Theories of Ae!o"nition 1/ 4onstituti%e Theory This sees the a!t o re!o"nition as bein" a ne!essary !om#onent of statehood. By re!o"nisin" a state$ you !onstituteG!reate the state. 1nder this theory$ without re!o"nition an entity !annot be!ome a state and would not ha%e the ri"hts and duties asso!iated with statehood. Aonte#ideo Con#ention This stated that a new state must ha%e the !a#a!ity to enter into relations with other states. This !ould #ose some #ossible #roblems. Eor one$ ;uestions re"ardin" the e*isten!e of states are left in the hands of other states and the #ower is li-ely to be abused. 3e!ondly$ there !ould be serious im#li!ations for entities that are not re!o"nised as states. Thirdly$ it would allow other states to inter%ene in the territories of non5states .the rule of non5inter%ention only a##lies to states/. Eourthly$ we ;uestion what would ha##en if only one other state re!o"nises that other !ountry. 2 this !ase$ would you be re"arded as a state only with res#e!t to that other stateL These thin"s must be -e#t in mind. </ De!laratory Theory

8<

Ian Brownlie su""ests that this theory$ alon" with the 4onstituti%e theory$ is hi"hly and hea%ily o%er5em#hasised in their definition. In sayin" this$ this theory %iews re!o"nition in a %ery different manner to the !onstituti%e. If a new state !omes into e*isten!e as a matter of fa!t it be!omes an international #erson re"ardless of whether another state re!o"nises it or not. :!!ordin" to this %iew$ re!o"nition would be %ital. The role here )ust adds a measure of !ertainty to a situation that already e*ists. Ae!o"nition would ser%e to !onfirm the -nowled"e of other states and a!-nowled"e that international relations would now be #ossible. This is the theory that is most #o#ular amon" writes. 3u##ort 6%iden!e that some states ha%e held entities that ha%e not been re!o"nised as res#onsible for %iolations of international law. :rti!le 1C of the D:3 is identi!al to :rti!le C of the Monte%ideo 4on%ention. The referen!e to the #ro%ision is in relation to the #oliti!al e*isten!e$ not a le"al one. &roblems What if only one other state re!o"nises the entityL C/ Modified 4onstituti%e Theory This is an attem#t to !ombine both theories and arri%e at a medium. It was su""ested in Jennin"s and Watts$ (ppenheimHs "nternational 5a?0 9th edition$ at #a"e 1C0 that,
The o%erwhelmin" #ra!tise of states does not a!!e#t that the mere !laim of a !ommunity to be an inde#endent state automati!ally "i%es it a ri"ht to be so re"arded$ or that an e*istin" state is )ustified in re!o"nisin" or refusin" to re!o"nise a new !ommunity as a state in disre"ard of whether it fulfils the fa!tual re;uirements of statehood. While the "rant of re!o"nition is within the dis!retion of the states$ it is not a matter of arbitrary will or #oliti!al !on!ession$ but I "i%en or refused in a!!ordan!e with le"al #rin!i#le. That #rin!i#le$ whi!h a##lies ali-e to re!o"nition of states$ "o%ernments$ belli"erents$ insur"ents$ is that when !ertain !onditions of fa!t .as may re!o"nition a!!orded before those fa!ts are !learly established/ be !onsidered to !onstitute inter%entionF and that while re!o"nition is a!!ordin"ly de!laratory of those fa!ts$ it is also !onstituti%e of the ri"hts and duties of the re!o"nised !ommunity in its relations with the re!o"nisin" state.

Ae!o"nition of 3tates5 3tate &ra!tise 1. The 1J &ra!tise 4annot fit in either of the two theories In some !ases$ the 1J refuses to follow any #arti!ular theory be!ause the Monte%ideo 4on%ention has not been satisfied .stemmin" from the disinte"ration of the so!ialist federal re#ubli! of Ku"osla%ia .3EAK// There are other !ases where the 1J was not "ranted re!o"nition be!ause of #oliti!al fa!tors e.". 2orth Jorea$ the Tur-ish Ae#ubli! of 4y#rus and Taiwan

<. The 61 &ra!tise

8C

The re!ent !onfli!t re"ardin" the dissolution of Ku"osla%ia shows us how re!o"nition is a##lied in #ra!tise The !ommission was restri!ted by two do!uments, the 64 "uidelines . a##lyin" to former 133A and Ku"osla%ia/ The 64 de!laration on Ku"osla%ia .a##lyin" only to Ku"osla%ia/ The do!uments a!;uire res#e!t for human ri"hts and res#e!t to other international le"al obli"ations that ha%e to be satisfied for re!o"nition by other states. D#inion 10 dis!usses the Monte%ideo 4on%ention and its re;uirements with re"ards to 3erbia and Montene"ro. The ;uestion they loo-ed at was whether 3OM !ould be the state they wanted it to be .Eederal Ae#ubli! of Ku"osla%ia5 EAK/. The !ommission #ointed out that in earlier !ases$ it had held that Ku"osla%ia has !eased to e*ist and so 3OM !ould not be a !ontinuation of somethin" no lon"er in e*isten!e. In #ara"ra#h 8 of the o#inion$ it was e*#ressly stated that re!o"nition is #urely de!laratory. Bu its nonetheless a dis!retionary a!t whi!h !an be "rantedGwithheld with res#e!t to international law. The 3e!urity 4oun!il Aesolution 1C17 .<000/ stated that ha%in" e*amined the a##li!ation of the Eederal Ae#ubli! of Ku"osla%ia for admission to the 1nited nations$ Ae!ommends to the Beneral :ssembly that the EAK be admitted to membershi# in the 1nited 2ations.
' '

C. The 13 &ra!tise Ealls %ery s;uarely under the !onstituti%e a##roa!h Ae!o"nition here is dis!retionary. They wei"h the #ra!tise of other states in identifyin" who should ;ualify to be!ome a new state :rti!le 1C of the 4on%ention and :rti!le 18 of the D:3 deals with the issue of re!o"nition. The latter sti#ulates, Ae!o"nition im#lies that the 3tate "rantin" it a!!e#ts the #ersonality of the new state$ with all the ri"hts and duties that international law #res!ribes for the two 3tates.> The former .:rti!le 1C su##orts the de!laratory a##roa!h/

$andatory (on-)eco nition :ll 3tates ha%e to follow 12 3e!urity 4oun!il de!isions on these matters e.". 3outhern Ahodesia and the 3mith a#artheid re"ime. 0ere the 1nited 2ations 3e!urity 4oun!il #assed a resolution a"ainst attem#tin" a new 3tate under an a#artheid re"ime. &remature re!o"nition of a 3tate 6ssentially the #remature re!o"nition of a 3tate would %iolate the international rule of non5 inter%ention.

)eco nition of 'overnments 88

This !an be di%ided into the same two !ate"ories. 0owe%er$ with res#e!t to this$ the !onstituti%e theory will dominate. : !onse;uen!e of the re!o"nition of "o%ernment is the automati! re!o"nition of a state. 0owe%er$ there are a number of differen!es. La!- of re!o"nition of a new "o%ernment doesn(t mean that the re!o"nition of a new state is withdrawn. The effe!ts may be similar for relations with the "o%ernment interlin-s with relationshi# with the state$ e.". 4i%il War and strife .where the international #ersonality of the state will remain inta!t/. There are !ertain !ases where re!o"nition will not #ose mu!h of a #roblem$ e.". a resolution that doesn(t affe!t the 0ead of 3tate .the Brenada In!ident/ There are !ertain situations where the "o%ernment has been !han"ed by abnormal means. 0ere$ the Monte%ideo 4on%ention on effe!ti%eness !omes into #la!e. The new "o%ernment must ha%e effe!ti%e !ontrol o%er the #o#ulation and territory of the 3tate. This is sti#ulated under the 6strada do!trine. The ad%anta"e of this do!trine is that there is no ;uestion of a##ro%al of a "o%ernment bein" mista-en. State Practise and )eco nition of 'overnment inoco Arbitration (Great ;ritain # Costa &ico'19:C) In 1917$ Tino!o ousted the "o%ernment of 4osta Ai!a by for!e. 6le!tions were held and HfIor a full two years Tino!o and the le"islati%e assembly under him #ea!efully administered the affairs o the "o%ernment of 4osta Ai!a. In 1919$ Tino!o was ousted in his turn and the new "o%ernment re#udiated !ertain obli"ations underta-en by the Tino!o "o%ernment towards British nationals. In the !ourse of rulin" u#on the !laims brou"ht by Breta Britain on the basis of these obli"ations$ the arbitrator dis!ussed the ;uestion of re!o"nition. Taft 4J stated that from the e%iden!e=the Tino!o "o%ernment was an a!tual so%erei"n "o%ernment.> 0e further su##lemented that a number of thin"s !ould be dedu!ed from the !ase at hand, i. ii. iii. Ae!o"nition or non5re!o"nition by other states only !ounts as e%iden!e If re!o"nition or non5re!o"nition was only based on #oliti!al fa!tors$ then it would ha%e less e%idential wei"ht The 1J offi!ially had to re!o"nise the Tino!o "o%ernment

Modern 1J &ra!tise In 1980$ the British "o%ernment ado#ted a similar a##roa!h to the 6strada do!trine 6%en if there has been an un!onstitutional !han"e of "o%ernment$ the 1J !an de!ide whether to !ontinue relations based on effe!ti%eness.

The 13 &ra!tise 8@

This$ in essen!e is similar to that of the 1J Deals mainly with effe!ti%eness .the notion of effe!ti%e !ontrol/ In 1977$ De#uty 3e!retary of 3tate 4hristo#her stated,
Withholdin" di#lomati! relations from these re"imes$ after they ha%e obtained effe!ti%e !ontrol$ #enali+es us. It means that we forsa-e mu!h of the !han!e to influen!e the attitudes and !ondu!t of a new re"ime=Isolation may well brin" out the worst in the new "o%ernment.

This notes a refusal to follow the #oliti!al a##roa!h in terms of "o%ernment .e.". 2orth Jorea and :f"hanistan/ Effects of )eco nition Ae!o"nition of a new state allows the states to e*er!ise ri"hts and duties under international law with res#e!t to other states that ha%e re!o"nised it. The main !onse;uen!e to this is that a new state of "o%ernment !an brin" !laims or defend !laims before a !ommittee. 6%en in !ases of non5re!o"nition$ some muni!i#al !ourts will allow a non5entity to brin" forward a !laim under their )urisdi!tion.

Carl Ieiss /tiftun! # &ayner and =eeler 5td (No%:) E19B1F .5

4M3 is a Berman !haritable foundation that ma-es o#ti! instruments. 1nder the !onstitution$ it is run by a s#e!ial board. :fter the Eirst World War$ the board was the Minister of 6du!ation of Thurin"ia$ a state within Bermany. In 198@$ Thurin"ia be!ame a #art of the Aussian Mone of D!!u#ied Bermany. In 1989$ the 133A handed o%er "o%ernment of its +one to the Berman Demo!rati! Ae#ubli!. In 9@<$ the BDA reor"anised its lo!al "o%ernment and Thurin"ia !eased to e*ist. The s#e!ial board of 4M3$ under the new arran"ements$ be!ame the !oun!il of Bera. In this !ase$ 4M3$ a!tin" throu"h the new board$ brou"ht a !laim throu"h the 6n"lish 4ourts. In these interlo!utory #ro!eedin"s$ the Ds$ now the As$ as-ed that the !laim be dismissed be!ause it had been brou"ht without the #ro#erty authority by the a##ellants. The re;uested order was denied by 4ross J but "ranted by the 4: after an ar"ument based u#on re!o"nition had been #ut to that 4ourt for the first time in the !ase. The ar"ument was that as the 1J had not re!o"nised the BDA$ the new 3#e!ial Board$ ha%in" been !reated by the BDA$ !ould not be re!o"nised by a 6n"lish 4ourt. The 0L unanimously re%ersed the 4:(s rulin" on a##eal. The 0L was unrelu!tant to follow the ar"ument #ut forward. If no law of an unre!o"nised state !ould e*ist$ then most laws would be %oid. The 0L did its utmost to "i%e for!e to the laws of 6ast Bermany e%en thou"h it admitted that the 1J did not formally re!o"nise the re#ubli! of 6ast Bermany. The 4ourts did so by a"en!y. The 1J did re!o"nise the 133A as the so%erei"n of the territory. They found that the "o%ernment of the 133A was an a"ent to that of 6ast Bermany.

Gur Corporation # rust ;an, of Africa E1991F CA

The & &anamanian !om#any !ontra!ted with the re#ubli! of 4is-ei to build a hos#ital and two s!hools. :s the !ontra!t re;uired$ the &s obtained a "uarantee from the D ban- in fa%our of the 4is-ei De#artment of &ubli! Wor-s to !o%er the !ost of remedyin" any buildin" defe!ts. In these #ro!eedin"s$ the & sou"ht to re!o%er a sum #aid by them to the defendant as se!urity for the "uarantee. Thereu#on$ 3teyn J raised the #reliminary ;uestion whether the Ae#ubli! of 4is-ei had locus standi to sue or be sued in the 6n"lish 4ourts. 0e held that it did not. The 4: re%ersed his de!ision on the "round that the Carl Ieiss !ase a##lied, the 4is-ei "o%ernment was a!tin" as the dele"ate of the so%erei"n$ 3outh :fri!a.

&epublic of /omalia # $oodhouse Dra,e and Carey /uisse E199CF J;D 87

In January 1991$ the Ae#ubli! of 3omalia bou"ht a !ar"o of ri!e for deli%ery by shi# to its !a#ital$ Mo"adishu. By the time the shi# arri%ed offshore$ the 3omali "o%ernment of &resident 3iad Barre had been o%erthrown and a !i%il war was in #ro"ress. The !a#tain of the shi# de!ided that it was too dan"erous to deli%er the !ar"o. By order of the !ommer!ial !ourt in London$ it was sold and the #ro!eeds #aid into !ourt. In July 1991$ the D)ibouti :"reement$ followin" an international !onferen!e of interested states and #arties$ nominated Mr. Mahdi as the interim &resident of 3omalia. 0e a##ointed Mr. Nalib as his &rime Minister. In these #ro!eedin"s$ the ;uestion was whether the P< million in !ourt that belon"ed to the Ae#ubli! of 3omalia !ould be #aid out to 4rossman Blo!F the soli!itors were a!tin" for the interim "o%ernment of Mr. Nalib. Dne ;uestion #ut forward by 0obhouse J was, if re!o"nition by 0er Ma)esty(s "o%ernment is no lon"er the !riterion of the lo!us standi of a forei"n '"o%ernment( in the 6n"lish 4ourts and the #ossession of a le"al #ersona in 6n"lish Law$ what !riterion is the 4ourt to a##lyL 0e found that we shouldn(t be loo-in" to formal re!o"nition by the 1J "o%ernment. They needed to e*amine whether the 3omali "o%ernment was effe!ti%e and whether the 1J a##ears to ha%e re!o"nised the "o%ernment by %irtue of its dealin". The !ourts answered the latter in the ne"ati%e. 0owe%er$ the former ;uestion was answered in the #ositi%e as the ar"uments brou"ht forward was treated a e%iden!e$ not as !on!lusi%e. They found that the 3omali "o%ernment was not effe!ti%e. They went on to loo- at the effe!t of other states and international or"anisations. They found that the rea!tion of international or"anisations would be additional information as to the effe!ti%eness of the "o%ernment.

International Law and Munici#al Law

The monist and dualist framewor- offers two !om#etin" %iews of the relationshi# of international law and muni!i#al law. Monism5 Dualism5 states that the two systems are united and they are a #art of the sin"le !on!e#tion of law states that IL and muni!i#al law are two wholly distin!t system of law Hin!ludin" their sour!e and substan!eF one !annot be used o alter the otherI.

ri4uet # ;ath (11B4) =;

In this !ase$ in whi!h the D$ a domesti! ser%ant of the Ba%arian Minister to Breat Britain$ su!!essfully !laimed di#lomati! immunity$ Lord Mansfield dis!ussed the #osition of international law in 6n"lish law. 0e ;uoted Lord Talbot in the !ase of ;u#ot # ;arbuit (11C1) when he stated that the law of nations$ in its full e*tent was #art of the law of 6n"land=>

Bla!-stone$ in his boo- Commentaries on the 5a?s of *n!land0 wrote that the law of nations H!ustomary international lawI is here ado#ted in its full e*tent by the !ommon law$ and is held to be a#art #f the law of the land.> This statement is a monist statement. Eit+mauri!e :rti!le :r"ues that the !ontro%ersy surroundin" monism and dualism borders ones su#rema!y o%er another$ whether they !an e*ist inde#endently$ or whether they are a #art of the same order .is one su#erior within that order/. 0e ar"ues that ea!h !ountry has there own laws to deal with !onfli!t arisin" within the state and is settled in their !ourts. 1ltimately$ he ar"ues that there !an be no !onfli!t between any two systems in the domesti! field. 0e states that any !onfli!t at the international le%el would be resol%ed by international law and has no bearin" on muni!i#al law. 87

0e summates by sayin" that international law and muni!i#al law !an ne%er !ome into !onfli!t. 0e su""ests that what mi"ht o!!ur would be a !onfli!t of obli"ations$ or an inability for the state on the domesti! #lane to a!t in the manner re;uired by international law.

It is well to note that dualist see muni!i#al law and international law as se#arate and in !onfli!t$ one will trium#h o%er the other. Status of $unicipal Law at International Level Dne of the main ;uestion as-ed here is, would there be an o!!asion where an international )ud"e would ha%e to a##ly muni!i#al lawL :t the international le%el$ international law is su#reme. In the !ase of )5( (bser#er Aission Case (Ad#isory (pinion) "C20 it was stated that,
The I4J referred in #ara"ra#h @7$ to the fundamental #rin!i#le of international law that international aw #re%ails o%er domesti! law. This #rin!i#le was endorsed by )udi!ial de!ision as lon" a"o as the arbitral award o 18 3e#tember 187< in the :labama !ase between Breat Britain and the 1nited 3tates$ and has fre;uently been re!alled sin!e=>

If a state %iolates international law$ then it would be liable re"ardless of its laws at the muni!i#al le%el .note that it will affe!t !ustomary international law as well/.

Alabama Claims Arbitration (U/ # G;) E191:F

In this !ase$ the tribunal re)e!ted the British ar"ument that be!ause its !onstitutional law was not su!h as to #ro%ide it with the #ower to interfere with the #ri%ate !onstru!tion and sailin" of the shi#s !on!erned$ Breat Britain had not %iolated its obli"ations as a neutral in the 1nites 3tates 4i%il war by allowin" the !onstru!tion and sailin" to o!!ur.

:rti!le <7 of the ?ienna 4on%ention on the Law of Treaties a##lies the same #rin!i#les. It states,
: #arty may not in%o-e the #ro%isions of its internal law as )ustifi!ation for its failure to #erform a treaty.

*3chan!e of Gree, and ur,ish )opulations Case0 Ad#isory (pinion0 19:5

This !ase hi"hli"hted the #oint that when a state underta-es a treaty !on%ention$ it is bound to ma-e !han"es to muni!i#al law if it is ne!essary to #erform international obli"ations. This in effe!t is similar to the !ase of .ilaire Constantine whi!h dealt with issues of obli"ations arisin" from basi! human ri"hts.

What ha##ens if an international !ourt is re;uired to loo- at muni!i#al lawL

;ra<ilian 5oans Case (6rance # ;ra<il) 19:9

The ;uestion in this !ase was one of the inter#retations of !ertain Bra+ilian "o%ernment loans$ some bonds of whi!h were held by Eren!h nationals. The loans were "o%erned by Bra+ilian law. The !ourt ruled that it had )urisdi!tion under :rti!le C7 of its statue to de!ide !ases si! as the one before it in%ol%in" dis#utes between states whi!h turned not u#on

88

international law$ but the inter#retation of muni!i#al law. In the followin" #assa"e the !ourt !onsidered how it should "o about inter#retin" muni!i#al law when they are !alled u#on to do so. The a"reement between the #arties referrin" the !ase to the 4ourt read in #art, in estimatin" the wei"ht to be atta!hed to any muni!i#al law of either !ountry whi!h may be a##li!able to the dis#ute$ the #ermanent !ourt of international )usti!e shall not be bound by the de!isions of the res#e!ti%e !ourts.> There were two main issues of !ontention in this !ase. Erom this$ two ;uestions !an be deri%ed, i. ii. 4ould the !ourt$ in this !ase$ loo- at Bra+ilian lawL If so$ was it bound to follow domesti! )urisdi!tion on the matterL

It was stated in the )ud"ement of the !ourt that, =the 4ourt may #ossibly be obli"ed to obtain -nowled"e re"ardin" the muni!i#al law whi!h has to be a##lied=Dn!e the 4ourt has arri%ed at the !on!lusion that it is ne!essary to a##ly the muni!i#al law f a #arti!ular !ountry$ there seems no doubt that it must see- to a##ly it as it would be a##lied in that !ountry.> It "oes on to !omment that =the 4ourt must #ay the utmost re"ard to the de!isions of the muni!i#al !ourts of a !ountry$ for it is with the aid of their )uris#ruden!e that it will be enabled to de!ide what are the rules whi!h$ in a!tual fa!t$ are a##lied in the !ountry of the la of whi!h is re!o"nised as a##li!able in a "i%en !ase.> In relation to the se!ond ;uestion$ the Treaty stated that the 4ourt wasn(t bound by de!isions of domesti! !ourts. 0owe%er$ e%en thou"h they are "o%erned by the Treaty$ the !ourt tried to )ustify why it !an loo- at domesti! law and the ne!essity in followin" it. Thou"h the !ourt !ould ha%e !hosen to i"nore this$ they felt the need to assess the issue. It was stated in this !ase that while the 4ourt is authorised to de#art from the )uris#ruden!e of the muni!i#al !ourts$ it remains entirely free to de!ide that there is no "round or attributin" to the muni!i#al law a meanin" other than that attributed to it by that )uris#ruden!e.

Status of International Law in $unicipal #ourts The main ;uestion here is whether or not a )ud"e from a lo!al )urisdi!tion !ites international law. If so$ are there any limitations in!umbent u#on himL 'eneral Principles Domesti! !ourts often tend to #re%ent !onfli!ts between international law and domesti! law by inter#retin" the latter to not !onfli!t with the former. 4ourts do so be!ause they are o#eratin" under the #resum#tion that 3tates don(t tend to %iolate international law. This notion is e%en inherent in some !onstitutions. Eor e*am#le$ #ro%ision <CC of the 4onstitution of 3outh :fri!a states when inter#retin" any le"islation$ e%ery !ourt must #refer any reasonable inter#retation of the le"islation that is !onsistent with international law o%er any alternati%e inter#retation that is in!onsistent with international law.> Aortensen # )eters E198BF /cotland
The fishery board for 3!otland issued a byelaw under the 0errin" Eishery .3!otland/ :!t 1889 ma-in" it an offen!e to fish by beam or otter trawlin" in the Moray Eirth$ #art of whi!h is more than three miles from the nearest #oint of land. :ny #erson found a!tin" in !ontra%ention of this 3tatute would be fined or im#risoned. The a##ellant was a Dane and the master of a 2orwe"ian shi#. 0e was !on%i!ted in a 3!ottish 4ourt of the abo%e offen!e for otter trawlin" at a #la!e !o%ered by the byelaw but beyond the three mile limit. 0is a##eal a"ainst !on%i!tion was dismissed unanimously by a full ben!h of 1< )ud"es.

89

Lord Jilla!hy !ommented that it may #robably be !on!eded that there is always a !ertain #resum#tion a"ainst the le"islature of a !ountry assertin" or assumin" the e*isten!e of a territorial )urisdi!tion "oin" !learly beyond limits established by the !ommon !onsent of nations5 that is o say$ by international law=>

The #rime tas- of any domesti! )ud"e is to ma-e lo!alG muni!i#al law effe!ti%e. They are not meant to a##ly international law There are two "eneral a##roa!hes to a##lyin" international law to the 3tate. .This !an be de#endent on both !ustomary and treaty law. Bearin" in mind that some states in%ol%e !ustomary law as bein" a #art of the law of the land./. 3tates tend to in!or#orate$ throu"h either the !onstitution or !ommon law #ra!tise$ international law as #art of the law of the land. i. ii. International law is automati!ally in!or#orated as law of the land Eor !ustomary la to be in!e#ted as #art of the law of the land$ some further a!tion needs to be ta-en.

& # =eyn E191BF

The Eran!onia$ a Berman shi#$ !ollided with the 3trath!lyde$ a British shi#$ at a #oint in the 6n"lish 4hannel within three miles o the 6n"lish !oast. The D$ the Berman !a#tain of the Eran!onia$ was #rose!uted at the 4entral 4riminal 4ourt for the manslau"hter of a #assen"er on bard the 3trath!lyde who died as a result of the !ollision. The D was found "uilty$ but the ;uestion whether an 6n"lish !ourt had the )urisdi!tion to try the !ase was reser%ed for the 4ourt for 4row 4ases Aeser%ed whi!h de!ided$ by se%en %otes to si*$ that it did not. This !ase was ar"ued twi!e. Dn the first instan!e$ a !ourt of si* )ud"es was e;ually di%ided. 2ote With res#e!t to !on%entional law, i. ii. Treaties !an be dire!tly bindin" on indi%iduals and !ourts on!e they ha%e been #ro#erly !on!luded by the state .some states #ra!tise this/ .see :rti!le ?I of the 13 4onstitution/ 3tates need to ta-e a further ste# for treaties to be!ome a #art of national law. :!!ordin" to this a##roa!h$ somethin" else needs to be done t s#e!ifi!ally ado#t that treaty as the law of the state.

The %> Position There are three .C/ ty#es of !onfli!ts that !an arise, a. Where domesti! law !han"es .!han"es in a way that !ontradi!ts the #re5e*istin" rule of international law/ b. Where the !ustomary international law !han"es .the domesti! law isn(t brou"ht into line here/ !. Where treaty law !han"es .domesti! law is not #arallel in this !ase/

Where domesti! law !han"es In a situation su!h as this$ !ourts are re;uired to a##ly muni!i#al law. In the 3!ottish !ase of Aortensen # )eters0 Lord Dunedin !ommented by statin", @0

In this !ourt$ we ha%e nothin" to do with the ;uestion of whether the Le"islature has or has not done what forei"n #owers may !onsider a usur#ation in a ;uestion with them. 2either are we a tribunal sittin" to de!ide whether an :!t of the Le"islature is ultra #ires=HwithI international law. Eor us$ an :!t of &arliament=is su#reme$ and we are bound to "i%e effe!t to its terms.

The su#rema!y of muni!i#al law in domesti! !ourts holds true for both !ustomary and !on%entional law .treaties/. There is howe%er$ one e*!e#tion to the rule. This !an be found in :rti!le <@ of German ;asic 5a?% It states,
The "eneral rule of #ubli! international law shall be an inte"ral #art of federal law. They shall ta-e #re!eden!e o%er the laws and shall dire!tly !reate ri"hts and duties for the inhabitants of the federal territories.

Aortensen # )eters0 supra

This !ase !an be inter#reted in two ways. The !entral issue before the !ourt was whether the 3!ottish law was outside of &arliament(s !om#eten!e$ be!ause it was alle"ed that international law im#osed a three mile limit on a state(s )urisdi!tion o%er its !oast. In its !on!lusion$ the !on%i!tion was u#held. The main rationale e%ol%ed two !on!e#ts, a. b. Kou !an see an endorsement that !ourts must a##ly muni!i#al law The 4ourt made its de!ision on the basis that there was insuffi!ient #roof that there was a !ustomary rule of international law im#osin" the three mile limit in the first #la!e

To refute the se!ond #oint$ Lord Dunedin !ommented that there are many instan!es to be found in de!ided !ases where the ri"ht of a nation to le"islate for waters more or less landlo!-ed=.althou"h beyond the three mile limit$ has been admitted=> Where !ustomary international law !han"es The main ;uestion here is this, If there is no !han"e in domesti! law$ will this a##lyL There are two #ositions on the issue, :utomati! in!or#oration 3omethin" more should be done When dealin" with automati! in!or#oration in the 1J$ it is ell to not that !ustomary international law 'automati!ally( forms #art of domesti! law. This is the traditional %iew .as #r Lord Mansfield(s )ud"ement in ri4uet # ;ath) a. What ha##ens if international law !han"es and the !ourts ha%en(t -e#t u# with itL 4an domesti! !ourts i"nore the new rule and a##ly the oldL :s #er Lord Dennin" and 3haw LJ in the !ase of rentde3 radin! Corp # Central ;an, of Ni!eria E1911F J;0 British 4ourts !an a##ly new international law e%en if it !onfli!ts with bindin" muni!i#al #re!edents. 3haw LJ further !ommented,
May it not be that the true #rin!i#le as to the a##li!ation of international law is that the 6n"lish 4ourts must at any "i%en time dis!o%er what the #re%ailin" international rule is and a##ly that ruleL...The rule of stare de!isis o#erates to #re!lude a !ourt from o%erridin" a de!ision whi!h binds it in re"ard to a #arti!ular rule of .international /law$ it does not #re%ent a !ourt from a##lyin" a rule whi!h did not e*ist when the earlier de!ision was made if the new rule has had the effe!t in international law o e*tin"uishin" the old rule=

@1

In relation to the abo%e !ase$ Lord Wilberfor!e$ in the !ase of 1st Con!resso del )artido E1991F (.5)0 !ommented that it is #erha#s ri"ht to a%oid !ommitment to more of the admired )ud"ement of Lord Dennin" MA than is ne!essary.> & # 2ones E:88BF U=.5 19 (2C)C) This !ase dis!usses whether the !rime of a""ression$ if established in !ustomary international law$ forms #art of 1J domesti! !riminal law. 4ustomary international law has to be s#e!ifi!ally by the Le"islature$ for it is to be a##lied by the muni!i#al !ourts. This was #re%iously de%elo#ed by & # =eyn. The -ey issue in this !ase was whether the !a#tain of the Berman shi# !ould be tried in a British !ourt be!ause the a!!ident o!!urred three miles from the British !oast. There was no domesti! law e*#ressedly "i%in" the 1J )urisdi!tion to try the !ase and the !ourts a!!e#ted this ar"ument. ' ' There are #assa"es in the )ud"ement whi!h showed that international law in this res#e!t was not settled It was stated$ obiter$ that the ;uestion is whether$ a!tin" )udi!ially$ we !an treat the #ower of #arliament to le"islate as ma-in" u# for the absen!e of a!tual le"islation.>

$est &and Central Gold Ainin!

Lord :l%erstone stated in this !ase that, It is ;uite true that whate%er has re!ei%ed the !ommon !onsent of !i%ilised nations must ha%e re!ei%es assent of our !ountry$ and to whi!h we ha%e assented alon" with other nations in "eneral may #ro#erly be !alled international law and as su!h will be a!-nowled"ed and a##lied by our muni!i#al tribunals=. But any do!trine so in%o-ed must be one really a!!e#ted as bindin" between nations$ and the international law sou"ht to be a##lied must=be #ro%ed by satisfa!tory e%iden!e$ whi!h HwhenI #ut forward has been re!o"nised and a!ted u#on by our own !ounty=

Chun! Chi Cheun! # he =in! E19C9F

Lord :t-in !ommented in this !ase that international law has no %alidity sa%e in so far as its #rin!i#les are a!!e#ted and ado#ted by our own domesti! law.>

*3 parte ha,rar E1914F

Lord Dennin"$ in his summation$ noted that in his o#inion$ the rules of international law only be!ome #art of our law in so far as they are a!!e#ted and ado#ted by us.> 0e "oes on to a"ree with Lord :t-in in the abo%e !ase.

& # 2ones0 supra The a##ellants were tried with the !rimes of a""ra%ated tres#ass or !riminal dama"e. They !laimed that their a!tions were )ustified. In res#e!t of a""ra%ated tres#ass$ there a!ts of disru#tion !ould not be termed this as they were not disru#tin" lawful a!ti%ities$ but the !ommission of a !rime. With res#e!t to the latter$ the intention to #re%ent the !ommission of a !rime was a lawful e*!use and they had to use reasonable for!e to do so. They ar"ued that the !rime bein" !ommitted was one of a""ression .a"ainst the war on Ira;/. The !ourt had to !onsider whether the !rime of a""ression$ if it had been established in !ustomary international law$ formed #art of 1J domesti! !riminal law. @<

The 0L unanimously dismissed the a##eal. They did find that there was a !rime of a""ression under international law. 0owe%er$ the definition of the word a""ression at international law had no bearin" on 1J domesti! law as the !rime is not re!o"nised under muni!i#al law. Two reasons were #ut forward, ' ' Summation ' ' ' ' 1J 4ourts will a##ly !ustomary IL to the e*tent that it doesn(t !ontradi!t muni!i#al law .this is not the !ase in & # 2ones) Eor this to o!!ur$ it must be stri!tly #ro%en$ and the 1J must be shown to re!o"nise them after #ro%in" their e*isten!e If there is a !onfli!t between !ustomary IL and am :!t of #arliament$ the latter will #re%ail .Aortensen # )eters) If there is a !onfli!t between !ustomary IL and a !ommon law rule$ the latter will #re%ail$ unless it is in !onformity with an outdated rule . rentde3 case) Dnly #arliament must debate and le"islate new domesti! offen!es Deals with the s#e!ial nature of the !rime of a""ression

Where !on%entional international law !han"es The main ;uestion here is what would be the effe!t of a treaty law on domesti! lawL 1nder the domesti! !onstitutional law$ how would a state be bound by a treatyL In most !ases$ the treaty itself will indi!ate how it !omes into for!e. In the 1J$ ratified treaties belon" to the Nueen on the ad%i!e of the &M. 0owe%er$ not all !ountries follow this method. :nti"ua and Barbuda has #assed e*#li!it rules on how treaties !an be!ome bindin" on the state. This statute s#e!ifies under s.C$ that treaties are not enfor!eable until transformed by an :!t of &arliament. $illiam Cooper # AG for Anti!ua and ;arbuda E:88CF This !ase in%ol%ed the #ro!eedin" re"ardin" the release of the !laimant who was bein" held for e*tradition to the 13: to fa!e money launderin" !har"es. Jud"e Don Mit!hell set aside the e*tradition as ha%in" been made without )urisdi!tion. This de!ision was "rounded on the fa!t that the 6*tradition Treaty between the 13 and :nti"ua and Barbuda had not been in!or#orated into the laws of :nti"ua and Barbuda as re;uired in the Aatifi!ation of Treaties :!t.

'eneral )ule of Application 5commonwealth states6 6ssentially the "eneral rule is that treaties need to be transformedG ado#ted into lo!al law before they !an be a!!e#ted by !ourts. It is mandatory that they be in!or#orated. he )arlement ;el!e @C

The %iew was ta-en that if an :!t of &arliament was not #assedF the Treaty is bindin" on the 1J from an international #oint of %iew. Kou would ha%e to #ass statute to brin" lo!al law into !onformity with the treaty.

Aaclaine $atson # Department of rade E1998F Kper 5ord empleman

: treaty is a !ontra!t between the "o%ernments of two or more so%erei"n states. International law re"ulates the relations between the so%erei"n states and determines the %alidity$ the inter#retation and the enfor!ement of treaties. : treaty to whi!h 0er Ma)esty(s "o%ernment is a #arty does not alter the laws of the 1J. : treaty may be in!or#orated into and alter the laws of the 1J by means of le"islation. 6*!e#t to the e*tent that a treaty be!omes in!or#orated into the laws of the 1J by statute$ the !ourts of the 1J has no #ower to enfor!e treaty ri"hts and obli"ations at the behest of a so%erei"n "o%ernment or at the behest of a #ri%ate indi%idual.>

AG for Grenada # AG for (ntario E19C1F

The dominion #arliament of 4anada le"islated to im#lement !ertain international labour !on%entions. Dn a##eal from the 3u#reme 4ourt of 4anada$ the )udi!ial !ommittee ad%ised that the le"islation was ultra #ires the Dominion &arliamentF that le"islati%e !om#eten!e on the sub)e!t !on!erned %ested in the le"islatures of the #ro%in!es. Lord :t-in$ in his summations noted that it !annot be dis#uted that the !reation of the obli"ations underta-en in treaties and the assent to their form and ;uality are the fun!tion of the e*e!uti%e alone.>

E*ception, Incorporation ?In Advance7 In some !ase under domesti! international law$ treaties !an be made #art of the law of the state .e.". :rti!le 7 of the 13 4onstitution whi!h states that H:Ill Treaties=shall be the su#reme law of the landF and the )ud"es in e%ery state shall be bound thereby$ any Thin" in the 4onstitution of Laws of any 3tate the !ontrary withstandin".> This :rti!le a##ears to ma-e treaties a #art of the land. :#art from the 13$ there are other states whi!h ado#t this as well. 3u!h in!lude :r"entina$ Lu*embur"$ Eran!e$ :ustria$ the 2etherlands$ et!. Many of these !ountries ha%e e%ol%ed e*!e#tions to this automati! in!or#oration a##roa!h. This brin"s about the notion of 'dire!t effe!t(. By %irtue of this #rin!i#le under 61 law$ 61 obli"ations are su#erior to that of domesti! ones. In many !ases$ 61 law is dire!tly effe!ti%e, meanin" that obli"ations under the 61 would be deemed automati!ally in!or#orated into domesti! law of member states. The 6uro#ean 4ommunities :!t 197< .s.</ states,
:ll su!h ri"hts$ #owers$ liabilities$ obli"ations and restri!tions from time to time !reated or arisin" by or under the H6uro#ean 4ommunityQ Treaties$ and all su!h remedies and #ro!edures from time to time #ro%ided for or under the Treaties=shall be re!o"nised and a%ailable in HBritish domesti!I law$ and be enfor!ed$ allowed and followed a!!ordin"ly=

This statute was #assed to ;ui!-ly brin" 1J law in !onformity with 61 law. It "oes further than automati! in!or#oration5 this is in!or#oratin" 61 law in ad%an!e$ instead of as the law as been #assed.

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Impact of (on-Incorporated Treaty 5Interpretive %ses6 Eor some time$ the 1J was a #arty to the 6uro#ean 4on%ention for the &rote!tion of 0uman Ai"hts and Eundamental Ereedoms but did not in!or#orate the 4on%ention into its domesti! law. :s a result$ e%en thou"h the 1J was fully bound by the treaty and !ould be sub)e!t to !om#laints before the 6uro#ean 4ommission$ national !ourts and offi!ials !ould not dire!tly a##ly the 4on%ention rules. They !ould1 refer to the 4on%ention$ howe%er$ for !ertain limited #ur#oses. This #osition is the same for 4ommonwealth 4aribbean states that ha%e be!ome #arties to the :meri!an 4on%ention on 0uman Ai"hts. /alomon # Commissioner of Customs and *3cise E19B1F
The !ourt was re;uired to inter#ret an ambi"uous #ro%ision in the 4ustoms and 6*!ise :!t 19@<. The :!t$ drafted in &arliament(s own lan"ua"e was intended to im#lement the 19@0 4on%ention on the %aluation of "oods for 4ustoms &ur#oses$ a treaty to whi!h a number of 6uro#ean 3tates were #arties. The 4on%ention was not in!luded as a 3!hedule to the :!t$ or anywhere referred to in it. The ;uestion arose whether re!ourse !ould be had to the treaty to inter#ret the statute. The 4ourts found that unin!or#orated treaties should not be referred if the 1J statute was !lear. They also #ointed out that !lear 1J le"islation that a!tually !ontra%ened the 1J international obli"ations must be in!or#orated into lo!al le"islation in order for it to be #ro#erly enfor!ed. If the domesti! le"islation is un!lear$ then the !ourt !an loo- at the unin!or#orated treaty to aid in the inter#retation of the le"islation. The rationale for this is that there is a #resum#tion that the 1J does not intend to %iolate their international obli"ations.

*3 parte ;rind E1991F .5

By s.<9.C/ of the Broad!astin" :!t 1981$ the 0ome 3e!retary !ould at any time$ by noti!e in writin" re;uire the HInde#endent Broad!astin" authority .IB:/I=.to refrain from broad!astin" any matter or !lasses of matter s#e!ified in the noti!e.> :n almost identi!al worded #ower was in!luded in an a"reement between the 0ome 3e!retary and the BB4. :!tin" under these #owers$ in 1988$ the 0ome 3e!retary issued dire!ti%es to the IB: and the BB4 re;uirin" them to refrain from broad!astin" on tele%ision or radio words s#o-en> by any #erson re#resentin" or #ur#ortin" to re#resent !ertain or"anisations. These or"anisations were or"anisations #ros!ribed under the &re%ention of Terrorism :!t 1988 et!. The #rohibition a##lied only to the dire!t s#ee!h of su!h #ersons. It was #ermissible to re#ort what they said or to ha%e a!tors broad!astin" their words. In this !ase$ the a##li!ants$ who were )ournalists and a 2ational 1nion of Journalists em#loyee$ sou"ht )udi!ial re%iew by way of 1. De!laration to the effe!t that the 0ome 3e!retary(s dire!ti%es were ultra #ires and <. Certiorari$ to ;uash them. 0a%in" failed before the di%isional !ourt and a unanimous 4:$ The a##li!ants a##ealed to the 0L$ where they relied mainly on the ar"ument that the 0ome 3e!retary(s dis!retionary #owers under the 1981 :!t and the BB4 li!en!e$ were e*er!isable sub)e!t o :rti!le 10 of the 640A. The a##eal was dismissed unanimously. The ;uestion in the 0L surrounded the le"ality of the restri!tion. Media "rou#s alle"ed that the 03$ in issuin" this dire!ti%e$ !ontra%ened the 640A. This 4on%ention was not in!or#orated into 1J law. 0en!e$ the ;uestion was whether the 03 had to e*er!ise his dis!retionary #ower in a manner !om#atible with the 640A. The 0L #ointed out that unin!or#orated treaties are not a #art of 1J domesti! law and that they don(t ha%e to in!or#orate it. 3e!ondly$ if there is ambi"uity in domesti! le"islation$ then the !ourt !an turn to unin!or#orated treaties to aid in inter#retation. Lord Brid"e #ro%ides that if domesti! le"islation !onfli!ts with the 4on%ention$ the !ourts must ne%ertheless enfor!e it. But it already well settled that$ in !onstruin" any #ro%ision in domesti! le"islation whi!h is ambi"uous in the sense that it is !a#able of meanin" whi!h either !onforms to or !onfli!ts with the 4on%ention$ the !ourts will #resume that #arliament intended to le"islate in !onformity with the !on%ention.> 0e "oes on to state that to #resume that it must be e*er!ised within !on%ention limits would be to "o far beyond the resolution of an ambi"uity.> It is well to note that this !ase deals with the e*er!ise of dis!retionary #ower and the !ourt stated that unin!or#orated treaties !annot restri!t this. The reason for this is that the effe!t would be to brin" in the !on%ention throu"h 'the ba!door(.

@@

Jey &oints on the 3ub50eadin" ' ' ' : treaty !annot be enfor!ed into domesti! law unless first transformed 1nin!or#orated treaties !an be used to settleG inter#ret ambi"uity in domesti! law Kou !annot use an unin!or#orated treaty to restri!t the e*er!ise of dis!retionary #ower

& # =han (/ultan) E199BF C All *& :99

&er Lord 2i!holls, HTIhe dis!retionary #owers of the trial )ud"e to e*!lude e%iden!e mar!h hand in hand with=the 640A=Both are !on!erned to ensure that those fa!in" !riminal !har"es re!ei%e a fair hearin". :!!ordin"ly$ when !onsiderin" the !ommon and statutory dis!retionary #owers under 6n"lish Law the H!ase law on 6uro#ean 4ourt of 0uman Ai"htsI !an ha%e a%ailable role to #lay. 6n"lish law relatin" to the in"redients of a fair trial is hi"hly de%elo#ed. But e%ery system of law stands to benefit by an awareness of the answers "i%en by other !ourts and tribunals to similar #roblems.>

The 0L seems to be su""estin" that International 0uman Ai"hts law !an be loo-ed at under !ertain !ir!umstan!es e.". the "eneral framewor- of the law. .Distin"uish e3 p ;rind whi!h states that it !annot/ The #aribbean In doin" this headin"$ we are loo-in" at the a##li!ation of international law in muni!i#al !ourts.. Most 4aribbean !onstitutions does not deal with how treaties should be ratified .with the e*!e#tion of :nti"ua and Barbuda5 The Aatifi!ation of Treaties :!t/. :fter inde#enden!e$ many !ourts were !onfronted with this issue, Whether treaties to whi!h these states had been #arty to before inde#enden!e$ were still bindin" after inde#enden!e. *3 parte Dafney /ch?art< E191BF:4 $"&
The main ar"ument in this !ase is that the treaty seemed to be bindin" on Jamai!a due to the '!lean slate( rule. This rule allowed former !olonial states to abolish the rule$ if they wanted to. The !ourt found that the treaty had been enfor!ed #rior to inde#enden!e and e*isted subse;uently thereafter. They also found that the sa%in"s law !lause had the effe!t of ma-in" this treaty !ome into for!e after inde#enden!e. Mel%ille J !ommented that !ustomary rules of international law are deemed to be #art of Jamai!an law sub)e!t to two ;ualifi!ations$ so far as it is not in!onsistent with an :!t of &arliament or rules that are finally de!lared by Jamai!an 4ourts. 0e "oes on to further !omment that e%en thou"h the treaty was found to be bindin" on Jamai!a$ it was worded in su!h a way that it did not !o%er !ons#ira!ies$ for whi!h Miss 3!hwart+ was !har"ed.

Ne#ille 5e?is # AG of 2amaica E:881F : AC 58

This !ase !onfli!ts somewhat with e3 p ;rind% The fa!ts of the !ase are as follows. 3i* a##ellants ha%e been senten!ed to death in Jamai!a after !on%i!tion of murder. The a##eals ha%e been heard to"ether be!ause they all raise two im#ortant #oints5 #ut broadly 1. Whether on a #etition for mer!y .after all other domesti! attem#ts to set aside the !on%i!tions or to #re%ent e*e!ution ha%e been e*hausted/ the a##ellants are entitled to -now what material the Jamai!an &4 had before it and to ma-e re#resentations as to why mer!y should be "ranted and <. Whether they ha%e a ri"ht not to be e*e!uted before the Inter5:meri!an 4ommission on 0uman Ai"hts or the 12 0A !ommittee has finally re#orted on their

@7

#etitions. In addition$ the a##ellants !ontend that the #assa"e of time and the se%eral ways in whi!h they were treated in #rison !onstituted inhuman or de"radin" treatment within the meanin" of the !onstitution of Jamai!a so they should not be e*e!uted. Issues ' ' ' Aelates to whether a##ellants really ha%e a ri"ht to see the material that is before the Jamai!an &4 and do they ha%e a ri"ht to ma-e re#resentation .#ro!edural matter/ Whether the a##li!ants ha%e a ri"ht not to be e*e!uted before the international bodies render a final re#ort Whether the ways in whi!h the a##li!ants were treated and the #assa"e of time between their initial senten!e and the death #enalty !onstituted inhuman treatment under the Jamai!an 4onstitution.

We draw to s.1C of the Jamai!an 4onstitution to de!i#her whether a!!used #ersons in Jamai!a ha%e due #ro!ess ri"hts and whether these ri"hts in!lude ri"hts a%ailable under the :meri!an 4on%ention of 0uman Ai"hts. Eirst Issue The !ourt found that the merit if the de!ision re"ardin" #rero"ati%e #ower !ould not be re%iewed. They did$ howe%er$ loo- at the #ro!edures by whi!h the de!ision was made. The !ourt found that these #ro!edures had to be fair and #ro#er and in!lude the ri"ht of the a##li!ant to see the material bein" submitted to the !ommittee. In !omin" to this !on!lusion$ the )udi!ial !ommittee of the &4 loo-ed at the Inter5:meri!an system &ara"ra#h 77 of the )ud"ement saw the !ourts loo-in" at the !on!e#t of fairness under natural law statin" that there was=in ea!h of the #resent !ases a brea!h of the rules of fairness$ of natural )usti!e$ whi!h means that the a##ellants did not en)oy the '#rote!tion of the law( either within the meanin" of s.1C of the 4onstitution or at !ommon law.> The effe!t of this #art of the )ud"ement is to im#ose on the Inter5:meri!an 4ommittee a !onsideration of International human ri"hts standards. This is a dire!t !onfli!tion with e3 p ;rind as it was held in this !ase that unin!or#orated treaties !annot restri!t the e*er!ise of dis!retionary #owers. 3e!ond Issue The !ourts saw this lar"ely as an issue !on!ernin" due #ro!ess ri"hts. The !ourts found that ri"hts to due #ro!ess #re5dated Jamai!a be!omin" a #arty to the :meri!an 4on%ention. 2ote that the ri"ht to due #ro!ess is an e%ol%in" one$ its not stati!. The !ourts found that due #ro!ess ri"hts had e%ol%ed to the #oint where indi%iduals had #etitioned the human ri"hts bodies and thus had to wait until a reason is "i%en. &ara"ra#h 8@ of the )ud"ement stated that an unin!or#orated treaty does not !reate ri"hts for indi%iduals enfor!eable in domesti! !ourts &ara"ra#h 87 states that this element of the )ud"ement seems to su""est that an unin!or#orated treaty !an a!tually in!rease the s!o#e of !ommon law ri"htsF whi!h was e*tended to in!lude the #etition of the Inter5 :meri!an 4ommission.

2ote that they found that the fi%e year limit in )ratt and Aor!an # & had been e*!eeded. The dissentin" )ud"ement of Lord 0offman s#ea-s of this. 0e more or less stated that the ri"ht to the #rote!tion of the law under se!tion 1C.a/ of the 4onstitution and at !ommon law was in effe!t the same as an entitlement to due #ro!ess of lawF that$ althou"h ratified but unin!or#orated treaties did not ordinarily !reate ri"hts for indi%iduals enfor!eable in domesti! !ourts$ when the state a!!eded to su!h treaties and allowed indi%iduals to #etition international human ri"hts bodies the #rote!tion of the law !onferred by se!tion 1C entitled a #etitioner to !om#lete that #ro!edure and to obtain the re#orts of su!h bodies for !onsideration by the J&4 before determination of the a##li!ation for mer!y$ and to a stay of e*e!ution until those re#orts had been re!ei%ed and !onsideredF that where a #etition had been lod"ed with su!h a body e*e!ution of a senten!e of death !onse;uent u#on a de!ision of the J&4 made without !onsideration of that bodyRs re#ort would therefore be unlawfulF and that$ sin!e it was reasonable to allow 18 months for a##li!ations to international human ri"hts @7

bodies$ the lesser time limits im#osed by the Bo%ernor Beneral in the instru!tions !ontra%ened the rules of natural )usti!e and were unlawful. Lord 0offmann$ in his dissent ar"ued that HTIhe Board now #ro#oses to de#art from its re!ent de!isions on all three #oints. I do not thin- there is any )ustifi!ation for doin" so=> ;oyce and 2oseph # & E:884F U=)C C:
The main ;uestion in this !ase to be answered was whether mandatory !a#ital #unishment was #ermitted by the !onstitution as a law that was #rote!ted by the sa%in"s law !lause. 3e%eral #oints !an be noted from this !ase, There were se%eral de!isions in!ludin" that by the inter5:meri!an 4ourts The 4onstitution of these three !ountries .Trinidad and Toba"o$ Barbados and Jamai!a/ all has a sa%in"s law !lause whi!h is desi"ned to shield from s!rutiny su!h e*istin" laws. The )udi!ial !ommittee found that the sa%in"s law !lause made mandatory !a#ital #unishment #ermissible. They noted this es#e!ially in TOT and Barbados$ as there were no !han"es in their laws. Jamai!a$ howe%er$ had !han"ed their law$ as they de!i#hered between !a#ital and non5!a#ital murder and so the law re"ardin" mandatory !a#ital #unishment was not sa%ed by the sa%in"s law !lause. 6lements o the Jud"ment Para <:-<@Barbados ar"ued that their system didn(t !onstitute !ruel$ inhuman or de"radin" treatment as its #rero"ati%e #owers were e*er!ised. This was refuted Para <Ae%en if Barbados( mandatory death #enalty %iolated international treaty obli"ations$ su!h would ha%e no bindin" effe!t unless transferred to domesti! law. *3 p ;rind was !ited here and they !on!eded on the #oint that unin!or#orated treaties !an be used to inter#ret ambi"uous le"islation Para <=4ourt finds that unin!or#orated treaties !an be used to inter#ret ambi"uous le"islation$ e%en if the le"islation was #assed #rior to the treaty .this is so e%en if the le"islation was #assed after the treatyF there is no tem#oral limitation on the use of the treaty for inter#reti%e #ur#oses/ Para <Bthe !ourt ma-es it !lear that if they were a!tually allowed to a##ly the Bill of Ai"hts$ Barbados( mandatory death #enalty would be in!onsistent with it, thus bein" un!onstitutional.

Jey &oints ' ' 1nin!or#orated treaties ha%e no bindin" effe!t in domesti! law$ nut %an be used to inter#ret ambi"uous le"islation The Barbados 4:$ in this de!ision$ a##lied the !ase of 5e?is # AG and rea!hed the !on!lusion that the Barbadian mer!y !ommittee .&4/ !annot lawfully ad%ise that an e*e!ution be !arried out without re"ard to a #endin" #etition before an international human ri"hts or"ani+ation> .&ara C7/. In other words$ in 5e?is #etitions to international human ri"hts bodies must be !on!luded #rior to a final re!ommendation by the mer!y !ommittee.

The %S Position #ustomary International Law he )ac4uette .abana E1988F

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In this !ase$ the 13 3u#reme 4urt found and a##lied a !ustomary rule of international law e*em#tin" !oastal fishin" %essel from !a#ture as #ri+e of war. Bray J !ommented that International law is #art of our law$ and must be as!ertained and administered by the 4ourts of Justi!e of a##ro#riate )urisdi!tion$ as often as ;uestions of ri"ht de#endin" u#on it are duly #resented for their determination. Eor this #ur#ose$ where there is no treaty and no !ontrollin" e*e!uti%e or le"islati%e a!t or )udi!ial de!ision$ resort must be had to the !ustoms and usa"es of !i%ili+ed nations=

This statement states that !ustomary international law is #art of 13 law as lon" as there is no in!onsistent statuteG )udi!ial de!ision. Treaties There are se%eral ways in whi!h treaties !an be ratified under the 13 system. This is sti#ulated in :rti!le <.</ of the 13 4onstitution. The #resident of the 13 has the ri"ht to ma-e treaties that are bindin" if sGhe obtains the !onsent of <GC of the senate. 3ome treaties are not !on!luded #ursuant t the #ower under :rti!le <.</. These are !alled 4on"ressionalG 6*e!uti%e :"reements>. These treaties !an be si"ned by the &resident under ordinary le"islation that$ #assed by a sim#le ma)ority of both the 0ouse of Ae#resentati%es and the 3enateG. There is another a"reement -nown as the &residentialG3ole 6*e!uti%e :"reement>. 0ere$ the &resident !an !on!lude !ontra!ts without the !onsent of !on"ress. This #ower is e*tremely limited. 1nder the 13 system$ all a"reements are sub)e!t to the Bill of Ai"hts. 6a!h a"reement is sub)e!t to the !onstitutional !hallen"e. Li-e the 1J$ !on"ress has the #ower to ena!t le"islation to o%erride a treaty obli"ation. .ead Aoney CasesD *dye # &obertson (1994)
It was ar"ued in this !ase that an :!t of 4on"ress !onfli!ted with earlier 13 treaties and that therefore$ it was in%alid. The 4ourt$ who was unanimous$ found no su!h !onfli!t on the fa!ts of the !ase. Mr. Justi!e Miller .who s#o-e for the 4ourt/ stated, =so far as a treaty is made by the 1nited 3tates with any Eorei"n 2ation !an be!ome the sub)e!t of )udi!ial !o"ni+an!e in the !ourts of this !ountry$ it is sub)e!t to su!h :!ts of 4on"ress may #ass for its enfor!ement$ modifi!ation or re#eal.

Distinction between self-e*ecutin and non-self-e*ecutin treaties The !ourts in the 13 ha%e rede%elo#ed this distin!tion. The #ur#ose is to determine whether ; treaty or !ertain as#e!ts of a treaty !an be enfor!ed into 13 law without further le"islation. : self5 e*e!utin" treaty means that it !an ha%e immediate domesti! a##li!ation as su""ested in :rti!le ?I of the 13 4onstitution. 0owe%er$ a non5self5e*e!utin" treaty is one that re;uires transformation before it !an be a##lied domesti!ally. @9

/ei 6u-i # California (pa!e 9:'94 .arris) Three factors used by the #ourts to determine the distinction I. The s#e!ifi!ity of the treaty #ro%ision II. The intent #f the 13 when it be!ame a #arty to the treaty III. The similarity of the treaty to normal le"islation :fter this test was a##lied$ the !ourts found that they were not self5e*e!utin". It is well to note that under the distin!tion$ some #arts of a treaty !an be found to be self5e*e!utin" while other #arts wontF the does not affe!t the issue of transformation.

$he Law of $reaties

Thin"s to note for this to#i!, :t the end of this se!tion$ you should be able to des!ribe the -ey fa!tors in the birth$ life and demise of a treaty. The ?ienna 4on%ention should also be a##lied to su!h #roblems. 2ote that some of the treaty #ro%isions e*#lain ways in whi!h a treaty is bindin" and other #ro%isions allow states to es!a#e #erforman!e of treaty obli"ations. :t the most basi! le%el$ the numbers of some of the fundamental #ro%isions should be noted. Introduction We already -now that treaties are tendin" to re#la!e !ustom as the main sour!e of international law. When there is a"reement on what the !ustomary law is in a #arti!ular area$ treaties are used to !odify !ustom. 3ometimes states use treaties to understand what the law is .ad ho! a"reements5 ad hb o! meanin" 'for this #ur#ose(/. The M!2air arti!le su""ests that treaties !an be used to !o%er almost any form of a"reement between states. This is in lar"e due t the fa!t that a treaty is "o%ernedG!o%ered by a treaty itself5 The ?ienna 4on%ention$ 1979 .whi!h was !om#leted after twenty years of ser%i!e on the sub)e!t/. The 4on%ention has 10@ states as #arties and has been in for!e sin!e January 1980. It is well to note that the 13 si"ned the treaty$ but hasn(t ratified it. :lso$ the 0oly 3ee is a #arty to the 4on%ention. The 4on%ention does to thin"s #rimarily. It is said to !odify the !ustomary law of treaties as well as it #ro"ressi%ely de%elo#s the law of treaties as it adds to the !ustomary international law itself. The Law of Treaties 70

This "o%erns two #rin!i#les, Aules that are bindin" only by treaty Aules that are bindin" as !ustom and treaty 3ome states that are #arties to the !on%ention will be bound by it and others by !ustom. 6%en states that are #arties to the !on%ention mi"ht ma-eGenter into international a"reements that doesn(t fall under the 4on%ention e.". oral a"reements. The 4on%ention mostly !odifies international law. Gabci,o#o'Na!ymaros )ro-ect Case (.un!ary # /lo#a,ia) 19910 supra It was stated in this !ase that,
The !ourt has no need to dwell u#on the ;uestion of the a##li!ability in the #resent !ase of the ?ienna 4on%ention of 1979 on the law of Treaties. It needs only to be mindful of the fa!t that it ha se%eral times had o!!asion to hold that some of the rules lay down in that 4on%ention mi"ht be !onsidered as a !odifi!ation of e*istin" !ustomary law. The !ourt ta-e the %iew that in many res#e!ts this a##lies to the #ro%ision of the ?ienna 4on%ention !on!ernin" the termination and suspension of the operation of treaties$ set forth in :rti!les 7057<=

There are treaties other than the ?ienna !on%ention that "o%erns the law of treaties e.". a treaty that re"ulates the relation between states and international or"ani+ations. Definition of a Treaty :rti!le < .1/.a/ defines a treaty as meanin" an international a"reement !on!luded between states in written from and "o%erned by international law$ whether embodied in a sin"le instrument or in two or more related instruments and whate%er its #arti!ular desi"nation>. This o#enly sti#ulates that a treaty o 0as to be !on!luded between states o Must be in written form o 4an be desi"nated in whate%er way :ny a"reement that satisfies the other re;uirements !an fall under the definition of a treaty. The name the a"reement is "i%en will not de!ide the status of the a"reement. The de!idin" fa!tor is whether the #arties intended to !reate le"al ri"hts and duties by !om#letin" the a"reement. 3in!e treaties !an only bind states with !onsent$ it(s !ru!ial to loo- at their #ur#osi%e intent behind the a"reement. The a!tual form that the treaty must ta-e is "o%erned by both !ustom$ as well as the ?ienna 4on%ention. 1nder !ustomary IL$ there are no stri!t re;uirements re"ardin" the formation of a treaty .for e*am#le$ it !ould be oral as o##osed to written/. 1nder the 4on%ention$ howe%er$ a treaty must be !on!luded in written form. :"reements that are not in the form #res!ribed under the 4on%ention !ould nonetheless !reate bindin" le"al obli"ationsF only it will not be !o%ered under the 4on%ention. This is sti#ulated under :rti!le C whi!h deals with international a"reements not within the s!o#e of the 4on%ention>. 71

Dther re;uirements under the !on%ention o :rti!les 77578 These #ro%isions set out rules re"ardin" de#ositories. : de#ository is a stateGinternational or"ani+ation that is res#onsible for -ee#in" !o#ies of the treaty and informin" the #arties when new states be!ome #arties. o :rti!le 80 This arti!le re;uires re"istration of ea!h treaty with the se!retariat f the 1nited 2ations. o :rti!le 10< .12 4harter/ This #ro%ision states that if a treaty hasn(t been re"istered with the 12$ then that treaty !annot be in%o-ed by and before any or"an of the 12$ in!ludin" the I4J. This$ howe%er$ doesn(t mean that the treaty doesn(t ha%e a bindin" for!e.

Aaritime Delimitations Case (Jatar # ;ahrain) "C2 &ep% 1994

It was stated in this !ase that the !ourt would obser%e that an international a"reement or treaty that has not been re"istered with the 3e!retariat of the 1nited 2ations may not$ a!!ordin" to the #ro%ision of :rti!le 10< of the 4harter$ be in%o-ed by the #arties before any or"an of the 1nited 2ations. (on-re istration or late re istration1 on the other hand1 does not have any conse0uences for the actual validity of the a reement1 whi!h remains no less bindin" u#on the #arties=>

o :rti!le 10C .1n 4harter/ This arti!le ma-es it !lear that in the e%ent of a !onfli!t between #ro%isions of the 4harter and other treaty obli"ations$ then the 4harter will #re%ail. o :rti!le <7 .?ienna 4on%ention/ This #ro%ision dealt with the ma*im pacta sunt ser#anda% It e*#li!itly states that e%ery treaty in for!e is bindin" u#on the #arties to it and must be #erformed by them in "ood faith. Parties to a Treaty Eor the #ur#oses of the ?ienna 4on%ention$ only states !an be #arties to a treaty. The !on%ention doesn(t !o%er a"reements between states and other international #ersons. There are treaties that do "o%ern those other ty#es of a"reements howe%erF a#art from those$ they !ould be said to be "o%erned under !ustomary international law. International /r aniCations he 199B 7ienna Con#ention on reaties bet?een /tates and "nternational (r!ani<ations or ;et?een "nternational (r!ani<ations 7<

:rti!le 7 of this #ro%ision sti#ulates that the !a#a!ity of an international or"ani+ation to !on!lude treaties is "o%erned by the rules of that or"ani+ation>.

Whether an international or"ani+ation has the #ower to !on!lude a treaty would ha%e to be determined by the treaty that established it as an international or"ani+ation. Eor e*am#le$ the 1nited 2ations has the #ower .&eparations for "n-ury Case0 supra) #ompanies An!lo'"ranian (il Case0 195:
In this !ase$ the 1J ar"ued that the a"reement si"ned between the Iranian "o%ernments with the :n"lo5&ersian Dil 4om#any had a 'double !hara!ter( bein" at on!e a !on!essionary !ontra!t and a treaty between the two "o%ernments. The I4J found that that #arti!ular !ontra!t didn(t !onstitute a treaty under international law. Aeason bein" is that the !ontra!t didn(t attem#t to #ur#ort to re"ulate relations between the 1J and Iranian "o%ernments. The 4ourt didn(t e*!lude the #ossibility that these -inds of a"reement !an be treaties, it was )ust this #arti!ular !ase that was de!ided in this way. They held that, The 4ourt !annot a!!e#t the %iew that the !ontra!t si"ned between the Iranian "o%ernments and the :n"lo5&ersian Dil 4om#any has a double !hara!ter. It is nothin" more than a !on!essionary !ontra!t between a "o%ernment and a forei"n !or#oration. The 1nited Jin"dom "o%ernment is not a #arty to the !ontra!tF there is no #ri%ity of !ontra!t between the "o%ernment of Iran and the "o%ernment of the 1nited Jin"dom. 1nder the !ontra!t the Iranian "o%ernment !annot !laim for the 1J "o%ernment any ri"hts whi!h it may !laim from the !om#any$ nor !an it be !alled to #erform toward the 1J "o%ernment any obli"ations whi!h it is bound to #erform towards the !om#any. The do!ument bearin" the si"natures of the re#resentati%e of the Iranian "o%ernment and the !om#any ahs a sin"le #ur#ose, the #ur#ose of re"ulatin" the elations between that "o%ernment and the !om#any in re"ard to the !on!ession. It does not re"ulate in any way the relations between the two "o%ernments.

It is well to note that indi%iduals !annot !on!lude treaties. 3ummation ' ' 1nder treaty law$ treaties !an e*ist between any < states that ha%e #ersonal interests But under the 1979 !on%ention$ only states !an !on!lude treaties

%nilateral %nderta-in s This is a one5sided underta-in"$ hen!e no treaty. These as su!h$ are li-ely not to be !o%ered by the ?ienna 4on%ention as they are often in unwritten form. 5e!al /tatus of *astern Greenland Case (Denmar, # Nor?ay)
In addition to !laimin" so%erei"nty o%er Breenland in this !ase and on the basis of o!!u#ation$ Denmar- has also ar"ued that 2orway had re!o"ni+ed Danish so%erei"nty o%er the Island by the 'Ihlen De!laration(. M Ihlen was the 2orwe"ian Eorei"n Minister. In !on%ersations on July 18$ 1919$ with the Danish Minister a!!redited to 2orway$ the latter su""ested to M. Ihlen that Denmar- would raise no ob)e!tion to any !laim 2orway mi"ht want to ma-e at the &aris &ea!e 4onferen!e to 3#it+ber"en if 2orway would not o##ose the !laim that Denmar- was to ma-e at the same !onferen!e to

7C

the whole of Breenland. Dn July <<$ 1919$ M. Ihlen$ in the !ourse of further !on%ersation with the Danish Minister de!lared that the 2orwe"ian "o%ernment would not ma-e any diffi!ulty> !on!ernin" the Danish !laim. These were the terms used as they were minuted y M. Ihlen for his "o%ernments( own #ur#oses. Demar- ar"ued before the 4ourt that this underta-in" was bindin" u#on 2orway. Jud"e :n+iolotti a"reed with the 4ourt on this #oint .he dissented/. The 4ourt de!ided that this statement !reated a bindin" le"al obli"ation. It hi"hli"hted se%eral fa!tors as im#ortant. ' ' It was made in offi!ial !ir!umstan!es It was made by fully ;ualified offi!ials of the 2orwe"ian "o%ernment

he Nuclear ests Case (Australia # 6ranceL Ne? Iealand # 6rance) 1914

The !ases were ta-en off the !ourts list without a de!ision bin "i%en on the merits when Eran!e announ!ed that it would not !ondu!t further tests after 197C .by unilateral #ubli! announ!ements/F des#ite ar"ument to the !ontrary by the a##li!ant states$ the !ourts found that their !laims no lon"er had any ob)e!t. The a##li!ants had as-ed the !ourts for a de!laration that the !arryin" out of further nu!lear tests in the 3outh &a!ifi! was not !onsistent with international law.

The main thin" that distin"uishes these unilateral underta-in"s from treaties is that it is one5sided. 0en!e$ there is no a"reement.

#oncludin a Treaty The main fo!us when !on!ludin" a treaty is the 1979 4on%ention. With res#e!t to !a#a!ity$ the !on%ention only !or%es a"reements between states as mentioned under :rti!le 7. 0owe%er$ under !ustomary international law and other treaties$ international #ersons$ other than states ha%e the !a#a!ity to !on!lude treatiesF this is not so under :rti!le 7. :rti!les 7 and 8 This #ro%isions deal with the notion of full #owers. Eull #owers refer to a do!ument that "rants authority to the 3tate(s re#resentati%e. This notion of full #owers re5enfor!es the #rin!i#le that states !an only be bound by treaties with their !onsent. :rti!le <.1/.!/ This #ro%ision "i%es the definition of full #owers. It states that it is a do!ument emanatin" from the !om#etent authority of a state desi"natin" a #erson or #ersons to re#resent the state for ne"otiatin"$ ado#tin" or authenti!atin" the te*t of a treaty$ for e*#ressin" the !onsent of the state to be bound by a treaty$ or for a!!om#lishin" any other a!t with res#e!t to a treaty> It is well to note that 'full( doesn(t s#ea- to the e*tent of the #ower "i%en to the re#resentati%e of the state. :!!ordin" to re!ent #ra!ti!e$ states don(t always need to use full #owers. :rti!le 7.1/.b/ 1nder this #ro%ision$ #ersons are a!tually allowed to re#resent a state without #rodu!in" full #ower. They !an do this if it a##ears from #ra!ti!e that the intention was to "i%e the #erson authority. :rti!le 7.</ 78

This arti!le lists se%eral !ate"ories of #ersons deemed to ha%e 7he authority to re#resent their state e%en if they don(t #rodu!e full #owers. 3u!h in!lude heads of state$ heads of "o%ernment$ ministers( of forei"n affairs$ heads of di#lomati! missions et!. :rti!le 8 This #ro%ision outlines what ha##ens if an unauthori+ed re#resentati%e of a state !on!ludes a treaty. If su!h a situation arises$ then that #erson(s a!tion has no le"al effe!t. +ow is a treaty adopted.

:do#tion settles the te*t$ the form and the !ontent of the treaty In earlier times$ ado#tion re;uired unanimity The #osition under the !on%ention is more fle*ible .arti!le 9/. This #ro%ides ado#tion by a <GC ma)ority.

Authentication

This is the #ro!ess by whi!h you !ertify that an ado#ted te*t is !orre!t Ty#i!ally$ the #ro!edure for doin" this is set out in the treaty itself :rti!le 10.b/ states that the te*t to a treaty is established as authenti! and definiti%e, failin" su!h #ro!edure$ by the si"nature$ si"nature ad referendum or initialin" by the re#resentati%es of those 3tates of the te*t of the treaty=> : si"nature ad referendum allows a re#resentati%e to si"n the treaty on the understandin" that the substan!e of the treaty is o#en for !onsideration. :uthenti!ation is also dealt with under :rti!le 8@ of the !on%ention.

E*pression of consent :do#tion on its own doesn(t ma-e a treaty bindin" on states. 3omethin" more usually needs t be done to si"nify !onsent to the treaty. :rti!le 11 of the ?ienna 4on%ention essentially sets out 7 means of e*#ressin" !onsent. They in!lude si"nature$ ratifi!ation$ e*!han"e of instruments$ a!!e#tan!e$ a##ro%al or a!!ession. These methods .e*!e#t a!!ession/ are used by states that ha%e been in%ol%ed in the !reatin" of the treaty. :!!ession is rele%ant where a state that wasn(t in%ol%ed in the !reation of the treaty )oins the treaty. 3i"nature This alone !an e*#ress a state(s !onsent and thus bind the state. :rti!le 1<.1/ sets out three !ir!umstan!es in whi!h si"nature alone !an bind a state. The #ro%ision e*#ressly #ro%ides that
The !onsent of a state to be bound by a treaty is e*#ressed by the si"nature of its re#resentati%e when,

7@

a/ The treaty #ro%ides that si"nature shall ha%e that effe!t b/ It is otherwise established that the ne"otiatin" states were a"reed that si"nature should ha%e that effe!tF or !/ The intention of the state to "i%e that effe!t to the si"nature a##ears from the full #owers of the re#resentati%e or was e*#ressed durin" the ne"otiation

:rti!le 1<.</ !o%ers si"nature initial in the te*t or si"nature ad referendum. Those treaties that allow for si"nature to be "i%en re those te!hni!al in !ontent or where &arliamentary authority is not re;uired. 6*!han"e of Instruments, 6*!han"e of instruments is !o%ered under :rti!le 1C. This$ as the name su""ests allow for e*!han"e of do!uments. The instrument allowed for this or is what the state intended. This is notably a rare form of !onsent today. :rti!le 17 sets out the time at whi!h the !onsent is a!tually "i%en. Aatifi!ation This is sim#ly the formal !onfirmation and a##ro%al of the treaty by the authorities of the state. In some state$ ratifi!ation re;uires a##ro%al by the &arliament .e.". the 1J under the &onsonby rule/. 0owe%er$ if a treaty itself states that ratifi!ation is re;uired$ then it !an(t be bindin" on a state unless ratifi!ation has o!!urred. If the treaty is silent as to whether ratifi!ation is re;uired$ then the #o#ula belief is that it wouldn(t be ne!essary. :rti!le 18 of the !on%ention sets out four !ir!umstan!es in whi!h ratifi!ation will be re;uired, I the treaty itself re;uires it If you !an find an intent that is re;uiredF either by ne"otiation or surroundin" !ir!umstan!es : states re#resentati%e si"ns the treaty sub)e!t to ratifi!ation( If its e%ident from full #owers that ratifi!ation is re;uired

In all !ases$ you ha%e to find some e%iden!e of intention. :!!e#tan!e and :##ro%al These are alternati%e ways of e*#ressin" the same thin". :rti!le 18.</ s#ea-s to this. It draws an inferen!e with ratifi!ation$ notin" the similarity. The main differen!e between ratifi!ation and a!!e#tan!e is that the latter !an either ta-e #la!e after si"nature or without si"nature while the former has to follow si"nature. :!!ession This a##lies in !ases where a state is "i%en !onsent be bound by the treaty$ but they didn(t #arti!i#ate in the !reation of the treaty. 3ates don(t ha%e an automati! ri"ht to a!!ede to a treaty. Whether or not they are bound by it de#ends on the terms of the treaty or if the other #arties a"ree to let them a!!ede to the treaty. :rti!le 1@ sets out the limited !ir!umstan!es to whi!h a state !an !onsent to a!!ession. It #ro%ides, 77

The !onsent of a state to be bound by a treaty is e*#ressed by a!!ession when, a/ The treaty #ro%ides that su!h !onsent may be e*#ressed by the 3tate by means of a!!ession b/ It is otherwise established that the ne"otiatin" 3tates were a"reed that su!h !onsent may be e*#ressed by that state by means of a!!essionF or !/ :ll the #arties ha%e subse;uently a"reed that su!h !onsent may be e*#ressed by that state by means of a!!ession

Duty not to defeat ob!ect and purpose :fter a state has si"ned a treaty$ it has a duty not to defeat the ob)e!t and #ur#ose of the treaty. This !omes ba!- to the notion of '"ood faith(. This is !odified in :rti!le 18 of the !on%ention. The only e*!e#tion to this duty is where the state itself has made it !lear that it no lon"er intends to be a #arty to the treaty .a"ain$ the notion of !onsent/. This rule does a"ree that a state !an be bound by a treatyF howe%er$ this !an only be done if the state has !om#leted the #ro!ess of issuin" their !onsentG intention.

)e istration and Entry into force :rti!le 80

This #ro%ision re;uires the re"istration of treaties that are "o%erned by the !on%ention .Aaritime Delimitation Cases0 supra) :rti!les 77578

These #ro%isions set out !ertain fun!tions and roles that de#ositories ha%e. :rti!les <85<@

These arti!les set out the rules by whi!h treaties enter into for!e. It su##lies four #ara"ra#hs .arti!le <8/ detailin" that failin" the treaty itself outlinin" how it will enter into for!e$ the treaty will enter into for!e when all the ne"otiatin" state ha%e e*#ressed their !onsent to be bound. :rti!le <8.C/ deals with an a!!edin" state. That state is bound from the later date .meanin" the date that it si"nifies its !onsent/. :rti!le <@ allows #arts of a treaty to be #ro%isionally a##lied before it a!tually !ame into for!e .this is e%ident in the 4:AI4DM states e.". the treaty of 4ha"naramas/. )eservations :t the time that a state is e*#ressin" to be bound by a treaty$ it !an at the same time ma-e a statement of reser%ation relatin" to the a##li!ation of #arts of a treaty to itself. The effe!t of a reser%ation is to e*!lude the a##li!ation of one or more #ro%isions of a treaty. Why would this be 77

allowedL It allows for widest #arti!i#ation of states in the !ore elements of a treaty to whi!h they wish not to be bound. 0ad you not allowed reser%ations$ it !ould lead to a amendment of the treaty. :rti!le <.1/.d/ defines the term reser%ation as
=a unilateral statement$ howe%er #hrased or named$ made by a state$ when si"nin"$ ratifyin"$ a!!e#tin"$ a##ro%in" or a!!edin" to a treaty whereby it #ur#orts to e*!lude or to modify the le"al effe!t of !ertain #ro%isions of the treaty in their a##li!ation to that stateF

The main basis su""ested in this definition is that a reser%ation is a unilateral statement$ howe%er named or #hrased. ;elilos # /?it<erland0 19990 *C.&
The a##li!ant !laimed that she had not been "i%en a fair trial under :rti!le 7 640A when she was !on%i!ted of a !riminal offen!e by a muni!i#al &oli!e Board in 3wit+erland. 3wit+erland entered a #reliminary ob)e!tion to the effe!t that the !ase fell within the s!o#e of an 'inter#reti%e de!laration( !on!ernin" :rt. 7 whi!h it had made u#on ratifi!ation$ and whi!h$ in its %iew$ was a %alid reser%ation under :rt. 78 of the !on%ention Hwhi!h states that if a -us co!ens !omes into e*isten!e and a treaty is !ontrary to it$ then that treaty be!omes null and %oidI. Dn ratifi!ation$ 3wit+erland had made what is des!ribed as two 'inter#reti%e de!laration( in!ludin" the one in issue and two 'reser%ation(. The !ourts sou"ht to !onsider whether the :rt. 7 'inter#reti%e de!laration( was$ des#ite its title$ a reser%ation n to whi!h :rt. 78 would a##ly. The 640A found that you ha%e to loo- behind the title of the statement and the substantial elements of the statement.

)ole that reservations have Aeser%ations don(t really #lay a si"nifi!ant role between bilateral treaties. 0ere$ it would fail to ha%e "reat effe!t. They do$ howe%er$ #lay a si"nifi!ant role in multi5lateral treaties. The effe!t of the reser%ation would be sim#le if all the other states a"ree to a!!e#t or re)e!t the reser%ation. If they a!!e#t$ the state would be allowed to be!ome a #arty to the treaty with the reser%ation. If they all re)e!t$ then the state will not be able to )oin the treaty. In those !ases where there is no unanimous a!!e#tan!e or re)e!tion$ then the situation !an "et more diffi!ult. It is well to note that the !ir!umstan!es under !ustomary IL are different. Kou need to ha%e a unanimous a"reement. &eser#ations to the Con#ention on Genocide Case0 1951
The !ourt found in this !ase that reser%ations !ould be made for the !on%ention as lon" as they weren(t !ontrary to the ob)e!t and #ur#ose of the treaty and they were a!!e#ted by at least some o the #arties to the !on%ention. The -ey is the test of !om#atibility with the ob)e!t and #ur#ose of the treatyF for e*am#le$ states indi%idually ma-e a determination of su!h !om#atibility .see ?enn dia"ram on #a"e @C of the handout/.

Two thin"s to bear in mind are that the treaty will be in full for!e between states that ha%en(t made any reser%ations and that this %iew re#resents the !ustomary #osition. The view under the Dienna #onvention :rti!le 19

78

This #ro%ision deals with the !on!e#t of the formulation of reser%ations. The #osition here is not that different from the one ta-en by !ustomary IL. 0is arti!le sets out three !ir!umstan!es in whi!h reser%ations will not be #ermitted, a. If a reser%ation is #rohibited by the treaty b. If the treaty only authori+es s#e!ifi! reser%ations and the reser%ation in ;uestion doesn(t fall under any of those !ate"ories !. : reser%ation would not be #ermitted if its in!om#atible with the ob)e!t and #ur#ose of the treaty :rti!le <1 This #ro%ision deals with the le"al effe!t of a reser%ation. :rti!le <1.1/ deals with reser%ations on a #arty that has not ob)e!ted to it. In those !ir!umstan!es$ the effe!t would be that the treaty would be in for!e to the reser%in" state and the state a!!e#tin" the reser%in"$ but it is sub)e!t to the reser%ation. 6ither state !an rely on it .the #rin!i#le of re!i#ro!ity/. he 5ibyan )eoples ;ureau Case
The reser%ation that Libya entered reser%ed the ri"ht under the !on%ention to o#en di#lomati! bands. The 1J did not ob)e!t to this and so relied on it.

:rti!le <1.</ deals with the #osition of states that ha%e not made any reser%ations at all. :s su!h$ between these states$ the treaty is in full for!e. 3!enario Dne Where a state ob)e!ted to the reser%ation$ but doesn(t o##ose the rest of the treaty #ro%isions !omin" into for!e, In this -ind of situation$ the treaty would enter into for!e between the two states$ but the #ro%ision that they ob)e!ted to would be se%eredGe*!luded from the treaty. Dtherwise$ the treaty would remain in for!e and neither state !an ta-e ad%anta"e of the reser%ation. This is #ur#orted in :rti!le <1.C/ of the !on%ention. he *n!lish Channel Case 3!enario Two The situation where a state ma-es a reser%ation and another state ob)e!ts to the reser%ation on the basis that it(s in!om#atible with the ob)e!t and #ur#ose of the treaty, The effe!t of this would be that the treaty would not into for!e between these two states. General Comment :4 on reser#ations to the international co#enant on ci#il and political ri!hts0 1994 The 0A !ommittee issued a "eneral !omment. :mon" the issue$ the followin" were noted, ' The international !o%enant itself doesn(t say anythin" re"ardin" reser%ations 79

'

'

In #ara"ra#h 8$ the !ommittee sets out !ertain human ri"hts that reser%ations !annot be made to .e.". those ri"hts under the !o%enant that already e*ists under !ustomary IL/. The ri"hts that are so fundamental so that ma-in" reser%ations would !ontra%ene the #ur#ose and ob)e!t of the treaty !annot suffi!e. 2on5dero"able ri"hts .ri"hts that not e%en the state !an infrin"e/ !annot !arry reser%ations. The rule re"ardin" reser%ations in the ?ienna !on%ention is not really a##ro#riate to human ri"hts treaties. The !ommittee states that in !ontrast to the #osition under the ?4$ it would be u# to ea!h indi%idual state to determine whether the reser%ation was !om#atible to the ob)e!t and #ur#ose of the treaty. The 0A !ommittee !ontends that it would ma-e su!h determinations. The #rin!i#le on this basis is that no state really benefits.

=ennedy # G 0 :888
In this !ase$ TOT first withdrew from the Eirst D#tional &roto!ol .by whi!h a #arty a!!e#ts the ri"ht of indi%idual #etition/$ and then re5a!!eded with a new reser%ations e*!ludin" !ases !on!ernin" any #risoner who is under senten!e of death in res#e!t of any matter relatin" to his #rose!ution$ detention$ his trial$ his !on%i!tion$ his senten!e or the !arryin" #ut of the death senten!e on him an ant mater !onne!ted therewith>. It did so be!ause it was re;uired by its !onstitution not to -ee# #ersons on death row for lon"er than fi%e years .whi!h was an issue in )ratt and Aor!an # AG/ and a re"istration under the Eirst D#tional &roto!ol mi"ht well !ause death row detention to be lon"er than that. The 4ommittee found that the reser%ation should be in%alid and should be se%ered.

/bservance of Treaties :rti!le <7 deals with the do!trine of pacta sunt ser#anda. This is e*#ressed also in !ustomary IL. It denotes that all treaties are bindin" and should be #erformed in "ood faith. :rti!le <7 sets out the #rin!i#le that states !annot in%o-e a muni!i#al law for )ustifi!ation of brea!hin" a treaty.

Application of treaties Priority of Later Treaties over customary IL The "eneral rule is that later treaties will ta-e #riority o%er !ustomary IL$ but only to the state relatin" to the treaty. Dne e*!e#tion to the #rin!i#le is with res#e!t to rules of -us co!ensD states !an(t !ontra!t out of these rules. With referen!e to states that are not #arty to the treaty$ they would be bound. It was !ontended in A,ehurst Aodern introduction to "nternational la? that
To some e*tent treaties ha%e be"un to re#la!e !ustomary international law. Where there is a"reement about rules of !ustomary law$ they are !odified by treatyF where there is disa"reement or un!ertainty$ states tend to settle dis#utes by ad hoc !om#romises5 whi!h also ta-e form of treaties.

70

(on-retroactivity This is !ontained under :rti!le <8 of the !on%ention. It #ro%ides that unless you !an show a !ontrary intention$ state !annot ma-e treaties that ha%e retroa!ti%e effe!t. The main e*!e#tion is noted in the followin" !ase. De ;ec,er Case0 1959'59
In this !ase$ the a##li!ant alle"ed a %iolation by Bel"ium of :rti!le 10 of the 6uro#ean 4on%ention on 0uman Ai"hts. 0e had been !on%i!ted in 1987 of a !riminal offen!e and senten!ed to life im#risonment and to the forfeiture for life of !ertain !i%il ri"hts in a!!ordan!e with the Bel"ian &enal 4ode in!ludin" the ri"ht to #arti!i#ate in the runnin" of a news#a#er. The 640A re)e!ted the ar"ument #ut forward by Bel"ium that the a##li!ation was inadmissible ratione temporis be!ause the senten!e had been im#osed before Bel"ium be!ame a #arty to the 4on%ention.

Territoriality This is !ontained in :rti!le <9 of the !on%ention. It surrounds the notion that if a treaty a##lies to a states territory$ unless you !an show a !ontrary intention$ the treaty would a##ly to the "eneral territory$ not )ust a #art of it.

Successive and inconsistent Treaties 0ere we are dealin" wit an earlier treaty and a later treaty !omin" into for!e .whi!h !onfli!ts with it/ but nonetheless has no effe!t. In a !ase su!h as this$ the earlier treaty is said to be the one with the bindin" effe!t. This is !o%ered under :rti!le C0 of the !on%ention. It #ur#orts that, ' ' ' If the later treaty a!tually s#e!ifies that its sub)e!t to the earlier treaty$ then that earlier treaty would ta-e #re!eden!e If there is a !onfli!t between the two treaties$ the later will a##ly.see :rti!le C0.C// The #arties o the two treaties are different, in a situation li-e this$ the basi! #rin!i#le is that with res#e!t to the "rou# of states$ the later treaty would #re%ail in effe!t of a !onfli!t

:rti!le C0.8/ deals with situation where not all states are #arties to both treaties. It states that where states are #arties to both treaties$ then in the e%ent of !onfli!t$ the later treaty will a##ly. It also states that where one state is a #arty to both and another state is only #arty to one treaty$ then only the treaty they share in !ommon will be a##li!able.

Third States 5non-parties6 71

:rti!le C85C8 deals with this issue. :rti!le C8 This #ro%ision sets out the "eneral #rin!i#le that treaties !annot !reate ri"hts or obli"ations fo third #arties without their !onsent. :rti!le C@ There are #ro%isions within the ?ienna !on%ention that do allow ri"hts and obli"ations to be im#osed on third #arties if the third #arty has "i%en its written !onsent :rti!le C7 This #ro%ision !ontends that a treaty !an a!tually !reateG"i%e ri"hts to third states. If it is !lear that the treaty intended to do so and the third #arty assents to these ri"hts. :s lon" as you !annot show a !ontrary intention$ !onsent will be #resumed. 6ree<ones of Upper /a#oy0 19C:

Interpretation of Treaties 5the three schools6 2o treaty is e%er written to !onser%e e%ery sin"le o!!urren!eF it is sim#ly not written that way. There are three s!hools of thou"ht #ut forward that attem#ts to deri%e how treaties should be inter#reted. 3ub)e!ti%e This s!hool em#hasi+es what the ori"inal intentions of the !reators of the treaties were. The main #roblem with this line of thou"ht is that it assumes that there was an as!ertainable intention. This !an #ro%e diffi!ult and e%en %irtually im#ossible. Te*tual This s!hool stresses the ordinary meanin" of the words in the treaty. The main #roblem in doin" this is that ordinary meanin" of the words may not be !lear. This is #ro%en in many I4J !ases. Teleolo"i!al This s!hool stresses the ob)e!t and #ur#ose of the treaty. Kou !an loo- at the !ir!umstan!es in whi!h the treaty was !on!luded et!. the main #roblem noted with this s!hool is that you are a!tually tryin" to usur#Gsu#ersede the role of the !reators.

Interpretation under the Dienna #onvention The thou"ht under the !on%ention mainly follows the te*tual a##roa!h .arti!le C1.1//. "nterpretation of )eace reaties Case' shows that a !ourt may not e%en o%errule the te*t in order to !orre!t the flaw in the treaty. The !ourt refused to a##ly the #rin!i#le of effe!ti%eness$ a!!ordin" to whi!h a treaty should be inter#reted to "i%e effe!t to its ob)e!t and #ur#ose$ in su!h a way as to 7<

o%erride the !lear meanin" of the te*t. :t this #oint$ it #arted !om#any from the teleolo"i!al a##roa!h. It is well to note that :rti!le C1 has been found to refle!t !ustomary IL. Case concernin! /o#erei!nty o#er )alau /ipadan ("ndonesiaMAalaysia)0 :88:
The !ourt notes that Indonesia is not a #arty to the ?ienna 4on%ention of <C May 1979 on the Law of TreatiesF the 4ourt would ne%ertheless re!all that$ in a!!ordan!e wit !ustomary international law$ refle!ted in :rti!les C1 and C< of that 4on%ention, : treaty must be inter#reted in "ood faith in a!!ordan!e with the ordinary meanin" to be "i%en to its terms in their !onte*t and in the li"ht of its ob)e!t and #ur#ose. Inter#retation must be based abo%e all u#on the te*t of the treaty. :s a su##lementary measure re!ourse may be had to means of inter#retation su!h as the #re#aratory wor- of the treaty and the !ir!umstan!es of its !on!lusion.

4om#onents of :rti!le C1 "ood faith ordinary meanin" !onte*t ob)e!t and #ur#ose Dn the notion of "ood faith$ #arties !annot rely on errors in draftin" to es!a#e their treaty obli"ations. : treaty must also be inter#reted in its ordinary meanin" .te*tual a##roa!h/. Kou also ha%e to "i%e note of the !onte*t .as defined under :rti!le C1.1//. There is also a referen!e to the teleolo"i!al inter#retation .ob)e!t and #ur#ose/. 2ote that this is a!tually tied to the treaty. The startin" #oint when loo-in" at the meanin" is inter#retin" the ordinary meanin" of the words. Travau* Preparatoires This is !o%ered under :rti!le C< of the !on%ention. This !onstitutes su##lemental means that !an be used to inter#ret a treaty e.". re!ords of earlier drafts. :rti!le C< allows for su!h to be used as su##lementary means only. Kou !an use a tra%au* to !onfirm a meanin" or if after you ha%e a##lied an inter#retation and it is ambi"uousG absurd$ the tra%au* !an !larify the meanin". It is$ howe%er$ sim#ly a su##lemental. Plurilin ual Treaties This is where the offi!ial te*t is in se%eral different lan"ua"es. In these !ases$ the treaties will themsel%es tell you what lan"ua"e is the authoritati%e one. 0owe%er$ if the treaty is silent$ re!ourse !an be found under :rti!le CC whi!h states that ea!h te*t will be e;ually authoritati%e. If there is a !onfli!t between the two offi!ial lan"ua"es$ "o ba!- to :rti!le C1 to see if it !an resol%e the !onfli!t. Eailin" that$ the tra%au* !an be a##lied. If this still doesn(t wor-$ then you !an loo- to the ob)e!t and #ur#ose of the treaty. 5aGrand Case' this !ase deals with the ;uestion of #ro%isional measures that the I4J issues are bindin". The 4ourts found that they are and used the rule of inter#retation to su##ort this. 7C

 there was a !onfli!t between the Eren!h and the 6n"lish te*t of the statute the 4ourt a##lied :rti!le CC of the !on%ention and stated that both te*ts would be e;ually authoritati%e in loo-in" at this arti!le$ they found that the only way the 4ourt !ould effe!ti%ely !arry out its fun!tions is if it was bindin".

The !ourts did a!tually loo- at the #re#aratory wor- .tra%au*/ to su##ort their )ud"ment.

Amendment and $odification of Treaties Modifi!ation5 this allows a few states to a!tually !han"e the treaty rules as between themsel%es :mendment5 you are a!tually !han"in" the treaty itself in a way that it affe!ts all the #arties. Dften$ this !reates a new treaty alto"ether.

Invalidity of Treaties When dealin" with this to#i!$ one should be able to determine amon" in%alidation$ sus#ension and termination. In%alidity ma-es a treaty %oid$ meanin" ha%in" no le"al effe!t. The #ro%isions of the treaty will ha%e no le"al for!e. This also !reates a re;uirement that the #arties do as mu!h as they !an to return thin"s to their normal state of affairs. 3us#ension tem#orarily relie%es the #arties from their obli"ations. Termination ends the treaty .similarly so to in%alidity/. 0owe%er$ there is no re;uirement to a!tually return thin"s to their ori"inal state f affairs. The reason for termination may not in%ol%e ille"al beha%ior or in%alidity. o :rti!le 8< With res#e!t to the matters abo%e$ the !on%ention has #re5eminen!e .they ha%e to "o%ern these thin"s/ o :rti!le 88 This #ro%ision deals with the ;uestion of whether treaty #ro%isions !an be se%ered. The "eneral rule is that the treaty must standG fall as a whole. :rti!le 88.C/ sets out some !ir!umstan!es where treaty #ro%isions !an be se%ered. o :rti!le 8@ This #ro%ides that a state !an(t rely in%o-e a reason for not bein" bound by a treaty if that state has e*#ressly a"reed or a!;uies!ed in the %alidity of the treaty.

'rounds for invalidatin a treaty a. Diolation of municipal law

78

When loo-in" at this as a "round$ one !an retreat to arti!le <7 of the !on%ention whi!h states that a state !annot use muni!i#al la as a means to brea!h a treaty #ro%ision. This #ro%ision is sub)e!t to :rti!le 87 of the treaty. This arti!le allows a state to es!a#e bein" bound by a treaty. The ty#e of %iolation is one that is manifest and that !on!erns a rule of internal law of fundamental im#ortan!e. :rti!le 87.</ defines what a manifest %iolation is. b. Error This is allowed under :rti!le 88 of the !on%ention. It states that error is only allowed to in%alidate !onsent in !ertain !ir!umstan!es. It only affe!ts a fa!tual situation with whi!h the state assumes. : se!ond !ondition is that the state a!tually has to ha%e an essential basis for it to be bound .the fa!tGsituation must !onstitute this/. 6rror is a!tually %ery hard to find as states ta-e e*tra !areG#re!aution. :rti!le 88 #oints out that this "round !annot be in%o-ed if the state !ontributed to the error. c. &raud and corruption This is allowed under :rti!le 89 of the !on%ention. If a state has been indu!ed by fraudulent !ondu!t to enter into a treaty$ then that !onsent would be in%alidated. 4orru#tion is e%en rarer than fraud. 2onetheless$ :rti!le @0 allows for a treaty to be in%alidated .rather the states !onsent/.

d. #oercion There are two ty#es of !oer!ion the first is !oer!ion of the re#resentati%e of the state .for e*am#le if the re#resentati%e was sub)e!t to threat of life$ bla!-mail et!./ and se!ond is !oer!ion of the state. e. us cogens

It is well to bear in mind that this is different from the other "rounds as it has nothin" to do with the !reation of the treaty. This "round "oes to the sub)e!t matter of the treaty. Li-e !oer!ion$ if a treaty %iolates a rule of -us co!ens$ it !annot be %alidated by e*#ressed !onsent of a!;uies!en!e. :rti!le @C of the !on%ention defines what a rule of )us !o"ens is. It also des!ribes what !ould ha##en if a treaty %iolates a #re5e*istin" rule of )us !o"ens. In su!h a !ase$ the treaty would be!ome %oid. 3imilarly$ in arti!le 78$ if a subse;uent us !o"ens emer"es after the treaty has !ome into for!e$ the treaty would still be %oid. "nternational 5a? Commission Commentary on Article 5C The arti!le !ontends that
The %iew that in the last analysis there is no rule of international law from whi!h states !annot at their own free will !ontra!t out has be!ome in!reasin"ly diffi!ult to sustain$ althou"h some )urists deny the e*isten!e of any rules of -us co!ens in international law$ sin!e in their %iew$ e%en the most "eneral rules still fall short of bein" uni%ersal.

7@

Aloeboetoe case0 supra

In this !ase$ the Inter5:meri!an 4ourt of 0uman Ai"hts ruled that a 177< treaty that im#osed an obli"ation to sell #risoners as sla%es would today be null and %oid be!ause it !ontradi!ts the norms of -us co!ens super#eniens%+

he Nicara!ua Case
2i!ara"ua in its Memorial o the Merits submitted in the #resent !ase states that the #rin!i#le #rohibitin" the use of for!e embodied in :rti!le <$ #ara"ra#h 8 of the 0arter of the 12 has !ome to re!o"ni+e as -us co!ens+%

:n obli"ation er!a omnes are rules that are a"ainst the international !ommunity as a whole and ea!h member of the international !ommunity would ha%e a standin" to enfor!e. :ll -us co!ens rules must be res#e!ted by e%eryone and e%ery state as they !reate an obli"ation er!a omnes. 0owe%er$ it is well to bear in mind that not all obli"ation er!a omnes will !reate a rule of -us co!ens%

Suspension of a treaty Dn!e the treaty is deemed sus#ended$ it is not enfor!ed between all or some of the states for a "i%en #eriod of time. Termination of a treaty This #ermanently ends the treaty with res#e!t to all the #arties. 1nder the ?4$ there are se%en "rounds for terminatin" a treaty. :. #onsent or treaty provision This is !o%ered under arti!le @8. <. Denunciation 0ere$ a #arty withdraws or re%o-es its !onsent to be banned. This is dealt with under :rti!le @7 of the !on%ention. The "eneral rule set out is that denun!iation will not be allowed in a treaty that doesn(t #ro%ide for it. The #ro%ision$ howe%er$ outlines some e*!e#tions to the rule. They in!lude, ' ' if the #arties intended to allow for denun!iation if it !an be im#lied by the nature of the treaty that denun!iation is allowed

There is a minimum re;uirement of twel%e months noti!e if a #arty wishes to withdraw from a treaty. Denun!iation will only terminate for the #arty see-in" to re%o-e its !onsent. 3. #onclusion of a later treaty This is !o%ered under arti!le @9 ?4. The first !onditions if the later treaty is bein" !on!luded whi!h in%ol%es the same #arties. .see #re%ious notes/ @. $aterial "reach

77

This is !o%ered by arti!le 70 of the ?4 and the treaty !an be terminated or sus#ended if a material brea!h has o!!urred. Kou must be able to draw a distin!tion between an ordinary brea!h .terms are serious$ but don(t ne!essarily "i%e rise to termination of the treaty/ and a material brea!h .whi!h "i%e rise to the termination or sus#ension of a treaty/. If there is a material brea!h of a bilateral treaty$ then the other #arty !ould be allowed to terminate or sus#end its treaty obli"ations. If there is a material brea!h of multilateral treaty$ se%eral o#tions !an be a!!orded, The treaty !an be sus#ended between all the #arties and the #arty that is in brea!h .it must be a unanimous a"reement/ If a #arty to the treaty has been es#e!ially affe!ted$ then there !an be sus#ension between that #arti!ular state and the state in brea!h If the material brea!h is su!h that it affe!ts the entire treaty$ then any #arty would be entitled to sus#end or terminate the o#eration between itself and the state in brea!h :rti!le 70$ #ara"ra#h C defines what a material brea!h of a treaty is. It states,
: material brea!h of a treaty$ for the #ur#oses of this arti!le !onsists in, a/ : re#udiation of the treaty not san!tioned by the #resent !on%entionF or

b/ The %iolation of a #ro%ision essential to the a!!om#lishment of the ob)e!t or #ur#ose of the treaty.

Namibia /outh $est Africa Case0 1918

By resolution <18@$ the 12B:$ e*er!isin" the su#er%isory fun!tions whi!h the 12 had ta-en o%er from the Lea"ue of 2ations$ terminated the mandate in res#e!t of 2amibiaG3outh West :fri!a !onferred by the Lea"ue on the 1J and e*er!ised on its behalf by 3outh :fri!a. It did so be!ause 3outh :fri!a had failed to fulfill its obli"ations( under the mandate and had$ 'in fa!t$ disa%owed the mandate(. The !ourt$ when !onsidered with the le"al !onse;uen!es of 3outh :fri!a(s !ontinued #resen!e in 2amibiaG3outh West :fri!a des#ite the Beneral :ssembly(s a!tion$ !onsidered and a##lied the rules as to 'material brea!h( of a treaty$ whi!h the mandate was. The !ourt was of the o#inion that the mandate was %alidly terminated. The o#inion #ointed out that the rules laid down by the ?4 on the Law of Treaties !on!ernin" termination of a treaty relationshi# on a!!ount of brea!h=may in many res#e!ts be !onsidered as a !odifi!ation of !ustomary law on the sub)e!t.>

It is stated in :rti!le 70$ #ara"ra#h @ of the !on%ention that you !annot in%o-e material brea!h as a "round to sus#end human ri"hts obli"ations. Gabci,o#o (Danube Dam) (.un!ary # /lo#a,ia)0 supra
In this #arti!ular !ase$ the !ourt had to loo- at whether a material brea!h of the treaty obli"ations had o!!urred. The !ourt found that in relation to material brea!h$ that only this ty#e of brea!h would be a "round for terminatin" the treaty. They also found that 0un"ary didn(t ha%e any "round for terminatin" the treaty be!ause their brea!h was #remature. In this !ase$ the !ourt endorses material brea!h as a "round for termination and finds that the ?4 loo-s at material brea!h of international treaties as ha%in" ties in !ustomary international law.

77

acna' Ariba Arbitration (Chile # )eru) (see .arris)

They found that the delay in holdin" the referendum did not a!tually !onstitute a material brea!h. It didn(t !om#letely #re%ent the referendum of bein" held.

A. Supervenin Impossibility of performance This is !o%ered under arti!le 71 of the ?4. It allows a #arty to withdrawG terminate a treaty if the su#er%enin" e%ent ma-es the treaty im#ossible. :n e*am#le is if you ha%e an island and the island is later submer"ed by water. The arti!le sets %ery stri!t !riteria for termination on the basis. The main "round for su#er%enin" im#ossibility that you ha%e to show that there is some ob)e!t that is indis#ensable to the treaty whi!h has been !om#letely destroyed or disa##eared. If the im#ossibility is only tem#orary$ this will only lead to a sus#ension of the treaty. :rti!le 71.</ states that you !annot in%o-e im#ossibility if the #arty tryin" to in%o-e the "round has !aused or !ontributed to the im#ossibility. Danube Dam0 supra
There was an attem#t to in%o-e im#ossibility for #erforman!e as a "round to terminate the treaty. 0un"ary #ut forward this ar"ument$ but the !ourt re)e!ted be!ause there was nothin" in the fa!ts of the !ase that led to some ob)e!t of %ital im#ortan!e to the treaty bein" destroyed or has disa##eared. They found that if at all im#ossibility aroseF it would be on the #art of 0un"ary who did nothin" to in%ite ne"otiations with 3lo%a-ia.

=. &undamental chan e of circumstances The differen!e between this and the abo%e is that with a fundamental !han"e of !ir!umstan!es$ the treaty is still !a#able of bein" #erformed, the ;uestion is whether it should be #erformed .;uestions of fairness and e;uity/. The "eneral rule as that this is not a "round for terminatin"Gwithdrawin" from a treaty. :rti!le 7< sets out %ery s#e!ifi! !ase where you 4:22DT in%o-e this "round, Where a treaty establishes a boundary you !annot in%o-e this "round if the fundamental !han"e is in%o-ed by the #arty see-in" to use this "round The arti!le also sets out < !onditions that ha%e to be satisfied for this "round to be su!!essful, you ha%e to show that the !ir!umstan!es in ;uestion !onstituted am essential basis for !onsent to be bound by the treaty Kou ha%e to show that the effe!t of the !han"e has the effe!t of radi!ally transformin" the e*tent of #erformin" the obli"ations under the treaty. 6isheries 2urisdiction Case ("celand # U=)

78

The !ourt found that the !han"e of !ir!umstan!es has to affe!t the obli"ation in ;uestion. It is well to note that in this !ase$ I!eland sou"ht to show that a fundamental !han"e of !ir!umstan!es related to fishin" te!hni;ues should allow it to es!a#e an a"reement to brin" dis#utes .albeit about fisheries )urisdi!tion/ to the I4J.

Danube Dam0 supra

0ere 0un"ary tried to ar"ue that it was entitled to terminate the a"reement with 3lo%a-ia for a !ombination of !ir!umstan!es that !reated a fundamental !ir!umstan!e, they ar"ued that there was a #oliti!al !han"e on both states as well as limited en%ironmental -nowled"e. The !ourt found that the #oliti!al '!han"e( did not !onstitute a suffi!ient basis. 3e!ondly they found that de%elo#ment in en%ironmental -nowled"e was foreseen at the time the treaty was made. :"ain the !ourt reiterated the notion that su!h 'boundaries( !ould be !han"ed by ne"otiations.

B. 9us #o ens We -now from arti!le 78 that if a new rule of )us !o"ens emer"es$ then any treaty that !omes after that is termed %oid. 4. (ecessity This is not a "round that is set out under the ?4. In the Danube Dam !ase$ 0un"ary ar"ued that the "round arose be!ause 3lo%a-ia was so determined to #ut in #la!e the %ariation of the #ro)e!t and be!ause of this$ they had attem#ted to terminate the treaty be!ause of ne!essity. The 4ourt found that e%en if a state of ne!essity had been found to e*ist$ it would not be a "round for termination of a treaty$ but as a )ustifi!ation of tem#orary sus#ension.

The procedure and conse0uences, invalidity1 suspension and termination :rti!le 7@ and 77 of the ?4 sets out the #ro!edures that should be followed if a treaty has been in%alidated$ terminated or sus#ended. If a state wants to do any of the abo%e$ there is an obli"ation of notifi!ation. This must be in writin" and there must be a noti!e #eriod of at least C months. If this C month #eriod e*#ires and no other #arty ob)e!ts$ then the state is free to e*er!ise its o#tions. If another #arty ob)e!ts$ then the states ha%e to see- a #ea!eful resolution of the dis#ute. This is set out under :rti!le CC of the 12 4harter. If no #ea!eful resolution has been arri%ed at within a year$ the ?4 sets out two #ro%isions If you are dealin" with an issue of )us !o"ens$ then the matter must be referred to the I4J or refer the matter to arbitration on!e the #arties !onsent If the !ase doesn(t in%ol%e a rule of )us !o"ens$ then the #arties ha%e to #ut in motion a !on!iliation #ro!ess

4onse;uen!es :rti!les 7957< sets out the !onse;uen!es. In%alidity is !o%ered under arti!le 79. This establishes that an in%alid treaty is %oid and therefore has not le"al for!e. This !an be seen as in!oherent. Eor we -now that with !oer!ion and a treaty that has %iolated a rule of )us !o"ens$ the treaty in ;uestion is automati!ally terminated. :rti!le 79.</ states that if a treaty is in%alidated$ then the #arties ha%e an obli"ation to try and #ut thin"s ba!- to their ori"inal state of affairs so as to remo%e the effe!t on the 79

in%alid treaty. 0owe%er$ some of the a!ts that would ha%e been #erformed in "ood faith may still be lawful. :rti!le 70 of the treaty sets out the rules re"ardin" termination. When a treaty has been terminated$ the #arties are released from their treaty obli"ations and im#ortantly$ termination of the treaty doesn(t affe!t any le"al situation whi!h was !reated by the treaty before it was terminated. This is unli-e %alidity. If there is a !onfli!t with a rule of )us !o"ens$ < ty#es of situations !an arise. If the rule was already in e*isten!e at the time the treaty was !on!luded$ then the #arties ha%e to eliminate the !onse;uen!es of any a!ts whi!h !onfli!ts with the )us !o"ens rule. The #arties would then ha%e to brin" a!tions in line with the rule. If the treaty be!omes %oid or terminates be!ause of a new rule of )us !o"ens emer"es$ then the #arties are released from any further obli"ations to #erform the treaty. 3e!ondly$ the ?4 would #reser%e the le"al ri"hts that were !reated under the arran"ement al lon" as those ri"hts do not !onfli!t with the rule of )us !o"ens. 3us#ension releases #arties from their obli"ations durin" the #eriod of sus#ension only. This is !o%ered by arti!le 7<. To Jnow Jnow the re;uirements of !reatin" a treaty Jnow the thin"s that may affe!t a treaty durin" its life$ i.e. reser%ations$ amendments$ modifi!ations$ inter#retation Jnow the rules re"ardin" how treaties !an be sus#ended$ in%alidated or terminated. If you ha%e an alle"ed %iolation$ you would ha%e to show that the other state has fully e*#ressed !onsent to the treaty and you ha%e to show that the state is in brea!h.

International %is#ute Settle"ent

In this to#i! we will e*amine the ways dis#utes in international law is resol%ed. We will loo#arti!ularly at the means of resol%in" dis#utes as a!!ordin" to the 12 4harter. :rti!le 10C of the 12 4harter states,
In the e%ent of a !onfli!t between the obli"ations of the Members of the 1nited 2ations under the #resent 4harter and their obli"ations under any other international a"reement$ their obli"ations under the #resent 4harter shall #re%ail.

'eneral /bli ation )e ardin Peaceful Settlement of Disputes It is !ontended in arti!le <.C/ of the 4harter states that if states !hoose to resol%e !onfli!ts$ it should do so by #ea!eful means. 80

:rti!le <.8/ e*#li!itly states that all members shall refrain in their international relations from the threat or use of for!e a"ainst the territorial inte"rity or #oliti!al inde#enden!e of any 3tate$ or in any other manner in!onsistent with the #ur#oses of the 1nited 2ations.> Besides the four e*!e#tions used to )ustify use of for!e$ #a!ifi! means of settlements are #ra!ti!ed under international law. This is by no means statin" that there is a "eneral obli"ation under IL for states to settle dis#utes .Buyana % ?ene+uela5 boundary dis#ute and Beli+e and Buatemala/. :n obli"ation to settle a dis#ute only arises where there is a threat to international #ea!e and se!urity. :rti!le <.C/ #ur#orts this %iew. :rti!le CC of the 4harter a!tually lists what these #arti!ular means of settlin" dis#utes are, &ara"ra#h one5 states that #arties to a dis#ute$ must first of all see-s a solution by ne"otiation$ en;uiry$ mediation$ !on!iliation$ arbitration and ad)udi!ation. These means !an be used e%en f there is not threat to international se!urity$ howe%er$ on!e this is threatened$ these means be!ome mandatory. :rti!le C7.C/ states that if a dis#ute in%ol%es a le"al issue$ "enerally that dis#ute ou"ht to be referred to the I4J. :lso$ of the si* means of dis#ute settlement$ only < are bindin"5arbitration and ad)udi!ation.

&orms of dispute settlement (e otiation These !an be formal as well as informal. They are useful for they !an sometimes a%oid the more !onfrontational forms. Dne of the benefits of ha%in" a 12 is that it #ro%ides a mediumGforum for )ust that$ dire!t ne"otiation.

En0uiry This is also !alled 'fa!t findin"(. It usually in%ol%es the a##ointment of a body$ li-e a !ommission$ whi!h is e*#e!ted to ta-e an im#artial loo- at the fa!ts whi!h underlie the dis#ute. It is lar"ely there for this #ur#ose only. It !an be an inde#endent #ro!ess or in !on)un!tion with another te!hni;ue. 2o )ud"ment is issued and no #ronoun!ement of the law is made. The se!retary5"eneral #lays an inte"ral role in fa!t findin". This is useful as it #re%ents a full blown !onfrontation. $ediation : mutual .e%en neutral/ state or an indi%idual of hi"h esteem would be brou"ht into the dis!ussion. This third #artyGstate !ould #arti!i#ate or #ro#ose solutions to the dis#ute. The !omments or #ro#osals$ howe%er$ are stri!tly non5bindin". :nother term for mediation is '"ood offi!es(. The term has !ome to be lar"ely asso!iated with the "ood offi!es #ro%ided by the se!retary5 "eneral of the 12. 81

:rti!les 97599 of the 12 !harter are often relied on to #ro%ide a basis for the "ood offi!es of the se!retary "eneral. But interestin"ly$ when one loo-s at these arti!les$ none of these #ro%isions e*#ressly #ro%ides that sGhe has to do so. Instead$ it hints at other roles that !ould lead to the 3B #erformin" su!h a role. :rti!le 98 shows that the se!retary "eneral !an be entrusted with tas-s by the 3e!urity 4oun!il and arti!le 99 allows the 3B to brin" matters to the 3e!urity 4oun!il. The #ower of "ood offi!e !an be im#lied throu"h this.

#onciliation This is the #ro!edure that will be used if after 1< months$ the treaty dis#ute is still in effe!t. This "rew out of the 0a"ue !on%ention of 1899 and 1907. It ty#i!ally in%ol%es a##ointin" a !ommission whose tas-s is to find the fa!ts and ma-e some -ind of re#ort re"ardin" re!ommendations for settlement of the dis#ute. This will differ from arbitrationG)udi!ial settlement as there is no le"al obli"ations to ado#t the re!ommendations issued.

Arbitration The 0a"ue !onferen!es set u# a #ermanent !ourt of arbitration. 3u!h a !ourt is still a%ailable to #arties. Ironi!ally$ it has only been used four times sin!e 198@. It was used by the maritime dis#ute between Barbados and Trinidad. There is a "ood faith obli"ation to submit to an arbitral award. Be!ause arbitration is bindin"$ this has < im#ortant fa!tors, The arbitrator must settle the dis#ute on the basis of law. In essen!e$ the arbitrator will be a!tin" in the !a#a!ity of a )ud"e. 6%en thou"h the #arty is bound$ they !ould #lead "rounds of non5#erforman!e .nullity5!orru#tion of a member of the tribunal or the arbitral #ro!eedin"s were la!-in" in terms of it bein" 'fair and )ust(/ &arties to the arbitration sele!t the arbiters. They would s#e!ify the e*a!t sub)e!tGnature of the dis#ute. The #arties would also delineate the )urisdi!tion of the tribunal$ as well as set out the manner in whi!h the e*#enses will be defrayed. This is an ad hoc system. :ll this is set out in a written a"reement !alled '!om#romis(. The main reason that arbitration will be sele!ted o%er )udi!ial settlement is be!ause of s#e!iali+ation. :rbiters are sele!ted based on a sele!ted field of e*#ertise.

Ad!udication There has been a dramati! in!rease in the number of tribunals that are !a#able #f settin" international dis#utes. Dne of the diffi!ulties that arise from this is the ;uestion of !o5ordination. There may be !onfli!tin" )urisdi!tions as well as !onfli!ted #re!edents.

8<

The I#9 The composition and character of the I#9 :rti!le 9< of the 12 4harter des!ribes the I4J as the #rin!i#al or"an of the 12. :rti!le 9C shows that all members of the 12 are #arties to the !onstituent instrument of the I4J. :rti!le 98 sets out that all members ha%e an obli"ation to !om#ly with )ud"ments in !ases to whi!h members are #arties. &ursuant to 98.</ of the 12 !harter$ if a state doesn(t !om#ly with the )ud"ment$ the other state has re!ourse in referrin" the matter to the 3e!urity 4oun!il and they will ta-e matters from there. :rti!le 9@ allows re!ourse to other tribunals. :rti!le 97 allows the "eneral assembly$ the 34$ the 12 or"an et! to re;uest ad%isory o#inions. 3tates #er se are not allowed to re;uest ad%isory o#inions .Nuclear $eapons opinion)% :d%isory o#inions are not bindin". The I4J is made u# of fifteen )ud"es. 6a!h )ud"e is ele!ted for a #eriod of 9 years and e%ery three years$ ele!tions are held to re#la!e fi%e of the )ud"es. Two im#ortant thin"s to note about the I4J, The statute does "o to ensure that on!e )ud"es are a##ointed$ they do maintain their inde#enden!e The a##ointment #ro!ess itself is %ery #oliti!al It is stated in :rti!le 9 of the statute of the I4J that one of the im#ortant !onsiderations in sele!tin" )ud"es is ensurin" that "eo"ra#hi!ally$ the ma)or re"ions of the world are re#resented. This "oes well for indi%idual )urisdi!tions also. :lso$ :rti!le C1 of the statute states that a state a##earin" before the I4J !an re;uest an ad hoc )ud"e of its own nationality$ )ust for the #ur#oses of the !ase. 1nder the new rules of the !ourt$ #arties !an a!tually re;uest to ha%e their !ase heard by a !hamber of the !ourt. This !hamber is smaller and !ould allow for )ud"es with a #arti!ular e*#ertise on the sub)e!t.

9urisdiction and admissibility in contention cases 6a!h !ase that is submitted to the I4J may "o throu"h se%eral #ossible sta"es, &ro%isional Measures 5a Grand Case' in this !ase$ #ro%isional measures were ordered to #re%ent the e*e!ution of one of the brothers. That order was not !om#lied with by the 13. :ll you would ha%e to ma-e out is that there is a prima facie )urisdi!tion. Jurisdi!tion This is where the !ourt establishes whether it has !om#eten!e to deal with ea!h as#e!t of the !laim. 8C

:dmissibility In%ol%es the !ourt loo-in" at the ;uestion of whether it should hear the !ase$ e%en thou"h it has )urisdi!tion on the matter. &ossible reason for a !ourt de!linin" to hear a !ase is where lo!al remedies ha%e not bee fully e*hausted. Nicara!ua Case' one in whi!h the 13 unsu!!essfully tries to raise fi%e ar"uments. 6*haustion of lo!al remedied was one. Merits This is where the !ourts "o on to hear the a!tual substan!e of the !ase.

Effect of 9urisdiction he Arrest $arrant Case establishes that on!e the !ourt has )urisdi!tion for a #arti!ular moment in time$ later a!tions by the state !annot remo%e the !ourts )urisdi!tion. It was states in this !ase that
=if the !ourt has )urisdi!tion on the date the !ase is referred to it$ it !ontinues to do so re"ardless of subse;uent e%ents. 3u!h e%ents mi"ht lead to a findin" that an a##li!ation has subse;uently be!ome moot and to a de!ision not to #ro!eed to )ud"ment on the merits$ but they !annot de#ri%e the 4ourt of )urisdi!tion.

&orms of 9urisdiction :!!ordin" to :rti!le C8.1/ of the I4J statute$ only states !an be #arties in !ontentious matters before the !ourt. :lso$ no state !an be ta-en before the !ourt without its !onsent. The idea that )udi!ial settlement should be !onsensual is an idea in !ustomary IL. This is #ur#orted by :rti!le C7.1/ of the statute. There are four ways of submittin" to the )urisdi!tion of the !ourt,

Eormal a!!e#tan!e This is noted to be either on all matters or sele!ted !ate"ories$ throu"h submission of a noteGde!laration to the 4ourt. The rules re"ardin" de!larations by states are found in :rti!le C7.</ and .C/. :rti!le C7.</ is also !alled the 'o#tional !lause(. This is be!ause a!!e#tan!e under it is o#tional. :!!e#tan!e on an ad hoc basis This is usually a!!om#lished throu"h the )oint submission of a !om#romise .whi!h is an a"reement settin" out the nature of a !ase and allowin" the !ourt(s )urisdi!tion/$ or two se#arate ones$ with res#e!t to s#e!ifi! dis#ute .li-e arbitration/ 3#e!ifi! a!!e#tan!e throu"h the #ro%isions of a treaty 88

This form of )urisdi!tion arises when states re #arties to the same treaty$ o%er whi!h a dis#ute has arise$ and the treaty !ontains a #ro%ision re;uirin" dis#utes re"ardin" its inter#retation to be referred to the I4J. .This is #ur#orted in the 1979 ?4 in :rti!le 77/ 6orum proro!atum In its sim#lest form$ this is where state .:/$ whi!h has not a!!e#ted the 4ourts )urisdi!tion !hooses to do so after another$ 3tate .B/$ whi!h has already a!!e#ts the 4ourts !om#ulsory )urisdi!tion$ unilaterally refers a !ase re"ardin" the two states .:OB/ to the 4ourt. he Corfu Channel Case
Dn May <<$ 1987$ the 1J brou"ht a !laim a"ainst :lbania before the 4ourt by unilateral a##li!ation in a!!ordan!e with :rt.80 .1/ of the 3tatute and :rt. C<.</ of the Aules of the 4ourt. The 1J ar"ued that the 4ourt had )urisdi!tion under ATI4L6 C7.1/ of its 3tatute as bein" a matter$ whi!h is one s#e!ially #ro%ided for in the 4harter of the 12$ on the "rounds .a/ that the 3e!urity 4oun!il of the 12$ at the !on!lusion of #ro!eedin"s in whi!h it dealt with the dis#ute under :rt. C7 of the 4harter$ by a resolution$ de!ided to re!ommend both the Bo%ernment of the 1J and the :lbanian Bo%ernment to refer the #resent dis#ute to the I4JF .b/ that the :lbanian "o%ernment a!!e#ted the in%itation of the 3e!urity 4oun!il under :rt. C< of the 4harter to #arti!i#ate in the dis!ussion of the dis#ute and a!!e#ted the !ondition laid down by the 34$ when !on%eyin" the in%itation that :lbania a!!e#ts in the #resent !ase all the obli"ations whi!h a member of the 12 would ha%e to assume in a similarF .!/ that :rti!le <@ of the 4harter #ro%ides that the Members of the 12 a"ree to a!!e#t and !arry out the de!isions of the 34 in a!!ordan!e with the #resent 4harter. :lbania was informed of the a##li!ation by the 4ourt Ae"istry and res#onded by a letter of July <$ 1987$ the rele%ant terms whi!h are indi!ated in the 4ourt(s )ud"ment. Later$ when ste#s had been ta-en for the hearin" of the !ase by the 4ourt$ :lbania filed a do!ument raisin" a #reliminary ob)e!tion to the )urisdi!tion of the 4ourt. The !ourt$ by fifteen %otes to one$ re)e!ted the #reliminary ob)e!tion submitted by the :lbanian Bo%ernment.

&ules of Court of the "nternational Court of 2ustice (1919)L Article C9(5)

When the a##li!ant 3tate #ro#oses to found the )urisdi!tion of the 4ourt u#on a !onsent thereto yet to be "i%en or manifested by the state a"ainst whi!h su!h a##li!ation is made$ the a##li!ation shall be transmitted to the 3tate it shall not howe%er$ be entered in the Beneral List$ or any a!tion to be ta-en in the #ro!eedin"s$ unless and until the 3tate a"ainst whi!h su!h a##li!ation is made !onsents to the 4ourt(s )urisdi!tion for the #ur#oses of the !ase.

This was first in%o-ed in the !ase of Con!o # 6rance in :88C% &ormal Acceptance 0ere a state a!!e#ts the !ourts )urisdi!tion throu"h the filin" of a de!laration. :rti!le C7 of the 3tatute of the International 4ourt of Justi!e sets this out. Nor?e!ian 5oans Case
In this !ase$ both Eran!e and 2orway had filed de!larations a!!e#tin" the !om#ulsory )urisdi!tion of the 4ourt. 0owe%er Eran!e had atta!hed a reser%ation to the de!laration and stated that the de!laration would not a##ly matters within Eran!e(s national )urisdi!tion as determined by Eran!e itself. 2orway did not ha%e any su!h de!laration. 0owe%er$ sin!e both Eran!e and 2orway had submitted their de!laration if terms of re!i#ro!ity$ 2orway see-s to rely on Eran!es reser%ation. The 4ourt a"reed that it !ould. They stated that in a !ase in%ol%in" dis#ute with two states$ the !ourt !ould only assume )urisdi!tion wit res#e!t to the narrower area that !ould not be e*!luded by the reser%ation.

Eor e*am#le$ there are C !ate"ories of dis#ute in ;uestion. Dne !on!erns fishery$ the other territorial matters and the other$ trade. There are < states filin" de!larations. 3tate : enters a reser%ation e*!ludin" fishery from the !ourts )urisdi!tion and state B e*!ludes territorial matters. The !ourt in this !ase$ !an only assert )urisdi!tion o%er matters of trade. 8@

:lthou"h the Nor?e!ian 5oans Case had turned on the fa!t that both sub)e!ts e*#ressly made referen!e to re!i#ro!ity$ it is essential to bear in mind that :rti!le C7.</ allows re!i#ro!ity. The #ro%ision states, Jud"e Lauter#a!ht had some %ery stron" !omments on the ty#e of reser%ation that Eran!e had entered. This is !alled a 'self5)ud"in"( or 'automati!( reser%ation. 0e mentioned the le"ality of su!h ty#es of reser%ations. 0e found that they are ille"alF If you allow a state to be the only entity that is !a#able of determinin" the matters that fall within the )urisdi!tion of the !ourt$ you are a!tually #re%entin" the !ourt to #erform one of the fun!tions its has .that is determinin" if it has )urisdi!tion to hear a !aseF as sti#ulated under arti!le C7/. 0e identified < ways in whi!h you !ould deal with su!h an in%alid reser%ation. Dne o#tion was to stri-e out the entire de!laration that the state has lod"ed. The se!ond o#tion is to stri-e out the offendin" #art of the reser%ation$ lea%in" the rest of the de!larationG reser%ation in ta!t. In the Nor?e!ians 5oans Case0 he o#ted for the first. 0e found that Eran!e determinin" whether a matter was within its own national )urisdi!tion was %ery essential. he "nterhandel Case
3wit+erland filed a !laim before the I4J as-in" for the return of assets by the & 4or#oration that were sei+ed durin" WW<. Both 3wit+erland had the 13 had a!!e#ted the !om#ulsory )urisdi!tion if the I4J. The 13 a!tually re)e!ted the )urisdi!tion in this !ase for #oliti!al reasons. The 3wit+ didn(t ha%e su!h reser%ation$ but the 13 tried to im#ose=.. The I4J did not a!!e#t their ar"ument and found that re!i#ro!ity allows a #arty to in%o-e a reser%ation in another states de!laration$ but it does not allow a #arty to im#ose its own reser%ation on another #arty. 2ote that this is based on the !onsensual nature of international ad)udi!ation.

The se#arate o#inion of Jud"e Jlaestad #ur#orted a different a##roa!h in dealin" with su!h reser%ations. 0e found that in this #arti!ular !ase$ when he loo-ed at the terms of the 13 reser%ation$ he would stri-e out the offendin" #art. 0e thou"ht that the reser%ation was not essential in the 13 a!!e#tin" the !ourts )urisdi!tion.

he 6isheries 2urisdiction Case (/pain # Canada) 1999

Tells us about how reser%ations ou"ht to be inter#reted. This in%ol%ed a dis#ute between 3#ain and 4anada. What the latter tried to do was restri!t fishin" in a #arti!ular #art of the sea. The interestin" thin" is that #art of this area a!tually in!luded the hi"h seas. The le"ality of 4anada(s enfor!ement of these restri!tions was relayed to the I4J. In determinin" whether the !ourt had the )urisdi!tion to hear these dis#utes$ they had to loo- at the de!laration. Interestin"ly$ 4anada had a reser%ation. The !ourt found that as a result of this reser%ation$ it didn(t ha%e )urisdi!tion of the dis#ute. ' ' ' It reaffirmed that )urisdi!tion is a matter of the I4J to determine There was no burden of #roof on states re"ardin" )urisdi!tion .#ara C8 of the !aseF su##lemental/ &ain has tried to ma-e the ar"ument that reser%ations in de!larations must !om#ly with international law. The !ourt re)e!ted this ar"ument .#aras. 88 and @@/ the !ourts say that reser%ations o#erate to find the #arameters of the !om#ulsory )urisdi!tion of the !ourt that is a!!e#ted. The !ourt says somethin" about how reser%ations ou"ht to be inter#reted. They noted that de!larations are not the same thin" as treaties. 0owe%er$ the rules of the latter !ould be used by analo"y with re"ards to the inter#retations of de!larations. They su##ort a te*tual and a sub)e!ti%e inter#retations .#ara. 89/

'

87

Third States If a dis#ute before the I4J affe!ts third #arties$ the I4J de!lines to assume )urisdi!tion o%er a !ase be!ause the ri"hts and obli"ations of a third state that hasn(t !onsented to the )urisdi!tion has been affe!ted. .see Case Concernin! *ast imor).

Provisional $easures This is set out in :rti!le 81 of the !ourt statute. This "i%es the !ourt the #ower to im#lement #ro%isional measure .these !ould be deemed as in)un!tion .immediate orders "i%en to #arties to either !ease beha%ior or to ta-e ne!essary a!tions/. The reason that these are ordered is that the a!tual sub)e!t matter of the dis#ute is threatened. 5a Grand Case0 supra' the I4J found that #ro%isional measures are bindin". The e*e!ution of one of the brothers !onstituted a brea!h of the !ourts order. he ;osnia Genocide Ke%en thou"h the !ourt didn(t fully determine the ;uestion of )urisdi!tion in that !ase$ they still had to find a prima facie basis for )urisdi!tion. They found that in order to establish this$ two thin"s had to be shown, ' ' The !ourt !ould e*ert )urisdi!tion o%er the state in ;uestion -urisdiction !racionae personae The !ourt !an e*ert )urisdi!tion o%er the sub)e!t matter of the dis#ute -urisdiction !raciona materiae

The !ourt also #ointed out that it !ould only order #ro%isional measures in order to #reser%e or to #re%ent irre#arable harm to the ri"ht of the #arties to the dis#ute. 5e!ality of the Use of 6orce Case (Nu!osla#ia # ;el!ium)0 1999 Armed Acti#ities on the erritory of the Con!o (Con!o # &?anda)
The !ourt did not order #ro%isional measures for the !ourt !ould not a!!ount from prima facie )urisdi!tion.

A#ena and other Ae3ican Nationals (Ae3ico # U/A0 :88C

Intervention In arti!les 7< and 7C of the 3tatute of the I4J$ the issue of inter%ention is dealt with. :rti!le 7< allows that state to inter%ene if they ha%e a le"al interest whi!h will be affe!ted by a !ourts de!ision. : state may also be allowed to inter%ene if it is a #arty to a treaty whi!h is bein" inter#reted .arti!le 7C/.

Advisory /pinions

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The !ourt also has an ad%isory )urisdi!tion. This is allowed throu"h arti!le 97 of the 12 !harter as well as arti!le 7@ of the I4J statute. These #ro%isions do not allow states to re;uest ad%isory o#inions. The 3e!urity 4oun!il$ or"ans of the 12 or s#e!iali+ed a"en!ies of the 12 are amon" those who !an re;uest ad%isory o#inions. These o#inions are non5bindin"$ but they !an re#resent an authoritati%e statement on the law. Nuclear $eapons Case0 supra This was an ad%isory o#inion that was re;uested by the Beneral :ssembly. The !ourt loo-ed %ery !losely at the !onditions that ha%e to be satisfied for it to assume its ad%isory )urisdi!tion, :. the o#inion has to be re;uested on a le"al ;uestion <. the a"en!y that is re;uestin" the o#inion has to be duly authori+ed under the 12 !harter to do so 3. the ;uestion must be one that arises within the s!o#e of the a!ti%ities of the a"en!y re;uestin" it @. The I4J found that all of the !onditions ha%e to be satisfied. 6%en if a ;uestion mi*es #oliti!s and law$ it is still a le"al ;uestion. The I4J also #oints out that S:rti!le 7@ of the statute of the I4J "i%es the !ourt the dis!retion as to whether it !an "i%e an ad%isory o#inion. They found that it !ould also use this dis!retion to refuse to issue an o#inion$ #ro%idin" it has !om#ellin" reasons to do so.

The ##9 The a"reement that established the 44J was si"ned on Eebruary 18$ <001. This was si"ned and ratified by 1< states$ e*!ludin" Bahamas$ 0aiti and Montserrat. The !ourt has both a re"ional as well as an a##ellate )urisdi!tion. The !ourt has ori"inal and e*!lusi%e )urisdi!tion to re%iew the treaty of 4ha"uaramas. It is the final a##ellate 4ourt with res#e!t to !i%il and !riminal matters. 6le%en member states ha%e o#ted to the ori"inal )urisdi!tion. Dnly Barbados and Buyana had o#ted the !ourts a##ellate )urisdi!tion. Jamai!a im#lemented a Bill to in!or#orate the !ourt in <008G<00@. The !ourt was a!tually inau"urated on :#ril 17$ <00@. 2oseph and ;oyce E:88BF
There was an a##eal from the )ud"ment from the Barbados 4:. In loo-in" at this issue$ the 44J had to loo- at the ;uestion of whether the Barbados &4 had erred in orderin" the e*e!ution of the #risoners after the Inter5:meri!an 4ommission had been initiated. The 44J unanimously a"reed with the out!ome$ but de#arted from the reasonin" of the )udi!ial !ommittee in Ne#ille 5e?is # AG .they disa"reed with the ma)ority )ud"ment5 whi!h loo-ed at an unin!or#orated treaty to e*#and the s!o#e of !ommon law ri"hts that were a%ailable. They relied on the notion of due #ro!ess/. The 44J !ame to the same out!ome by relyin" on the #rin!i#le of le"itimate e*#e!tation.

Tips for e*am and overview of course o there will be four ;uestions$ !hoose < 88

o there is at least one essay ;uestion o they are in some !ases$ shorter than those in the wor-sho#s .read ;uestions &AD&6ALK/ o ea!h ;uestion tests at least < to#i!s o at a %ery basi! le%el$ understand the entire !ourse o answer the ;uestion that has been as-ed of you o identify the rele%ant le"al issuesF identify and e*#lain the rele%ant law .in!ludin" te !itation of authorities/F a##ly the rele%ant law to the issues that ha%e been raised in ;uestionF !on!lude on how the issues should be resol%ed .IA:4/ do not assume anythin" into the ;uestion. Kou !an howe%er$ ar"ue a #oint in the alternati%e o 3-et!h a brief outline of how to answer ;uestions. o In!lude senten!es$ #ara"ra#hs$ full sto#s$ et!.

In terms of the ?4 or any other treaty #ro%ision$ you should ha%e an understandin" of what the #ro%isions are and how they related to the issue at hand. (ature and classification Loo-ed at the !riti;ue of :ustin and 0art on whether international is really law. :ustin loo-ed at the la!- of a so%erei"n and the !ommand of a so%erei"n ba!-ed by san!tions. 0art loo-ed at the la!- of se!ondary rules .rule of re!o"nition/. The e%olution of rules #rohibitin" sla%ery and use of for!e .under the 12 !harter$ #ost 198@ era/. We loo-ed at the "eneral #rohibition of the inter%ention by one state on the internal affairs of another and the #osition of !ustomary IL. We loo-ed at the notion of threats and the e*!e#tions .self5defense$ !olle!ti%e measures$ res!ue of nationals and humanitarian inter%ention/. Sources We fo!used on the sour!es of IL as identified under arti!le C8 of the statute of the I4J We loo-ed at how !ustomary IL is formed and !han"ed .opinio -uris and state #ra!ti!e/. What fa!tors we should wei"h in !onsiderin" state #ra!ti!e .uniformity$ "enerality et!/ we also loo-ed at opinio -uris% We loo-ed at how !ustom emer"es from treaties and the s#e!ial !hara!ter of the rule of -us co!ens Treaties The law of treaties5 #ro!ess of their !reation .states si"nifyin" their !onsent/.

89

 Thin"s rele%ant to the life of treaties .reser%ations$ le"al effe!ts$ inter#retation$ "rounds on whi!h you !an in%alidate$ sus#end$ or terminate treaties and the !onse;uen!es of su!h a!tion/ Eo!us on the #arti!ular #arty you are as-ed to ad%ise. )eco nition :ll we fo!used on are the different ob)e!ts that #ossess international #ersonality. IL is #rimarily a##lied to states and that states ha%e international #ersonality .international or"ani+ation$ trans5national !om#anies/. We loo-ed at the ri"hts of indi%iduals under IL. We loo-ed at one #arti!ular system5 the Inter5:meri!an system. There are really two systems, the D:3 4harter and the :meri!an 4on%ention on 0A. :##re!iate the differen!es and -now that the D:3 doesn(t elaborate the ri"hts under it$ whi!h the :40A does. The Inter5:meri!an !ommission has been "i%en a role under the D:3 4harter for the #rote!tion of 0A. Both the !ommission and the :meri!an 4ourt ha%e a role to #lay on the !on%ention of 0A. Ae!o"nition of states and "o%ernments. :ssess state #ra!ti!e with res#e!t to the re!o"nition of states .e.". 1J #osition$ 13 #osition and 61 #osition/. The note of the "o%ernment bein" re!o"ni+ed by im#li!ation. The four !riteria under the Monte%ideo !on%ention The ri"ht to self5determine under !ustomary IL .$estern /ahara Case/. This is only a##lied in the non5!olonial !onte*t International law and municipal law International law and muni!i#al law5 our fo!us was on the status of IL in domesti! !ourts. 4ustomary IL in domesti! !ourts and treaties in domesti! !ourts !ases were used to e*em#lify this. We loo- at ea!h headin" with res#e!t to treaties and !ustom Loo-in" at the different means of settlin" dis#utes #ea!efully .the main bein" ad)udi!ation under the I4J/ Ways in whi!h states !an a!!e#t the !om#ulsory )urisdi!tion of the !ourt.

90