You are on page 1of 4

Cases

North Sea Continental Shelf Cases (1969) ICJ - Denmark vs Germany equity, customary law,
Legality of the Threat or Use of Nuclear Weapons Advisory Opinion
(1996) ICJ - court held back from saying that nuclear weapons are
forbidden, you never know what the advisory opinion will be
Fisheries Case (United Kingdom v Norway) see the summary on the ICJ
website: http://www.icj-cij.org/docket/files/5/1811.pdf - norway won
because it could prove that its decree of 1935 was in accordance with
its long term practice and was considered law (opinio juris)
Law of the Sea Convention - 1982 - EEZ
Security Council Resolution 1973 (2011) The situation in Libya. - arms
embargo and no-fly zone
Case Concerning Military and Paramilitary Activities in and against
Nicaragua (Merits)
(1986) ICJ Reports 14, at paras 188, 190, 193-95, 199-200, 211, and
227-238.
Montevideo Conv, art 1, and notes 1-4: Harris Casebook, supra, at 9194 - defined territory, permanent population, willingness to enter
international relations, government
Case of Certain Norwegian Loans (France v Norway) see the
summary on the ICJ website: http://www.icjcij.org/docket/files/29/4775.pdf - optional clause, reciprocity (equal
footing), no jurisdiction since it was a "national question"
Hesperides Hotels LTD vs Aegean Turkish Holidays - constructive recognition,
unrecognised states with full control and state functions - day-to-day activities warrant
recognition so that actual decisions may be taken
The Republic of Nicaragua v. The United States of America
Justice (ICJ) - use of force-

[1]

was a 1984 case of the International Court of

unlawful use of force

East Timor (Portugal v Australia), 1995 ICJ Reports 90 - icj decides it has no
jurisdiction over a non-self governing territory as international law deals with states
and can thus not decide.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian


Territory, Advisory Opinion, 2004 ICJ Reports 136 - what Israel is doing is not right,
but it is just an advisory opinion and cannot turn into a case without Israel's consent
Sudan - human rights - secession, unless severe crimes against society and a failure to
adhere to the people's rights, secession is never an option
Obligations erga omnes:
[A]n essential distinction should be drawn between the obligations of a State towards
the international community as a whole, and those arising vis--vis another State in the
field of diplomatic protection. By their very nature the former are the concern of all
States. In view of the importance of the rights involved, all States can be held to have a
legal interest in their protection: they are obligations erga omnes. (Barcelona Traction
Case (Belgium v. Spain), I.C.J. (1970), para. 33)
Treaty may change/replace customary rule (Malta-Libya Continental Shelf case)
- Treaty may codify customary rule (Gabcikovo case)
- Treaty may co-exist with customary rule (Nicaragua case)
- Treaty may be modified by customary rule (Gabcikovo)
- Treaty may be invalidated by customary rule ("ius cogens")

It has two elements: state practice and law-making intent ("opinio iuris"): 1969 North
Sea Continental Shelf case; 1986 Nicaragua case

2010 Pulp Mills Case: Court refers to a practice, which in recent years
has gained so much acceptance among States that it may now be
considered a requirement under general international law to
undertake an environmental impact assessment where there is a
risk that the proposed industrial activity may have a significant
adverse impact in a transboundary context.... Confirms what is
already found in national law and multilateral treaties.

Supreme Court Canada - internal self-determination does not mean the right to secede
external self-determination not so relevant now that most every colony is its own state,
there is no general legal right of secession at will.
rhodesia - un security council sanctions
Kongo vs Uganda - 2006 - use of force, ICJ
Jorgens against Germany, ECHR - genocide, 2007 - genocide is a universal crime,
universal jurisdiction

Pinochet - crimes against humanity can never be considered functions of a state and thus,
a sovereign leader isnt immune to persecution for crimes he has ordered during his rule
Bashir from Sudan and Miloshevic, both indicted while still serving
obligations erga omnes - owed to everybody, owed to international community
ILC State Responsibility - 2001
Rome Statute 1998 - genocide, crimes against humanity, war crimes, aggression international criminal court
optional clause
jus cogens - natural law, no derogation is ever permited
ultra vires - acting outside of legal authority
France vs Norway
May lead to emergence of new state practice or negotiation of new treaty (e.g. 1960 and 1963
UNGA Resolutions on Outer Space 1967 Outer Space Treaty)
Self-determination 1975 Western Sahara case
o Borrowing from national law

Fair hearing (e.g. Golder case)

International contracts (Texaco v. Libya) - sovereignty of permanent resources

Equity (1969 North Sea Continental Shelf case, 1986 Frontier Dispute Case)

Estoppel (1962 Cambodian Temple case)

Good faith (1974 Nuclear Tests cases)

Principles endorsed by states


o

Non-discrimination (1966 S.W.Africa case at 294-299, per Judge Tanaka)

Sustainable development and the precautionary principle (1997 Gabcikovo


case)

Self-determination (1975 W. Sahara case)

But contrast 2002 Arrest Warrant Case immunity of foreign ministers invented
by ICJ 1974 Icelandic Fisheries Case preferential fishing zone invented
by
ICJ.

Ius Cogens (peremptory norms of international law)


Article 53 of the 1969 Vienna Convention on the Law of Treaties:
"A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention, a
peremptory norm of general international law is a norm accepted and recognized
by the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of
general international law having the same character".
Examples
Use of force: Nicaragua case
Torture: Al-Adsani case
Genocide: Bosnian Genocide case
Effects
Non-derogation: not even in time of national emergency: ECHR/ICCPR
Treaty invalidity (VC Arts. 53, 64), but reservations may still be allowed
(Congo
v Rwanda case)
Non-recognition of inconsistent national law (Namibia case)
Erga omnes status: any state can complain (Bosnian Genocide Case)
But: consent still required for ICJ jurisdiction (Congo v Rwanda case) and state immunities still
apply (Al-Adsani
Requirements for Genocide:
-long term intention
-Identification of the Victims - a national, racial, ethnical or religious group
-Actis Reus - what kind of conduct is being punished, what physical acts will attract punishment as
crimes - killing members, causing serious bodily harm, preventing birth or transfer of children
-Mens Rea - mental component that goes along with it - does it actually become the crime - whether
an act is done intentionally as opposed to accidentally, or whether you only need knowledge - for
genocide you must have explicit intention,
Requirements for Crimes Against Humanity: Knowledge, widepsread, systematic

Niger vs Burkina Faso


ex aequo et bono - based on right and good, if the states agree, the ICJ can decide solely on what it considers fair and equitable (38.2)

1958 New York Convention on Recognition and Enforcement of Arbitral Rights

You might also like