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MCRAE: STATE PRACTICE
I. CUSTOMARY INTERNATIONAL LAW
The Paquete Habana (RC) Topic: Intl Customary Law (ICL), Usage ripens into ICL, fishing boats, in the exercise of
their profession, are exempt from capture as prizes of war
Treaties: NONE, but these agreements/orders/edicts were mentioned in the case
Henry IV and King of France: Concerning Safety of Fishermen (1400 and 1403)
Emperor Charles V and Francis L of France (1521)
French and Dutch Edicts (1538)
Louis XIV and Holland and the Dutch (1675)
France and England and US during the War of Independence (1779)*
US and Mexico (1846)*
*US was directly involved
175 US 677
Parties: Unknown, just stated that appeal from decrees of the district court of Florida
FACTS:
There was a blockade between the US and Spain during the American-Spanish
War.
Two fishing boats sailing under the Spanish flag with crew and ownership (a
Spanish subject) from Havana, Cuba were captured and brought into Key West,
Florida. The crew had no knowledge of the existence of war or any blockade. They
did not resist nor made any attempt to run the blockade at the time of capture.
The Florida court decreed after trial a condemnation and sale of the two vessels
because there was no existing ordinance, treaty or proclamation that boats of
their class were exempt form seizure.
ISSUE/HELD:
W/N the boats were exceptions to being prizes of war based on ICL? YES
Upon the facts proved, in either case, it is the duty of this court, sitting as the
highest prize court of the United States, and administering the law of nations, to
declare and adjudge that the capture was unlawful and without probable cause;
and it is therefore, that the decree of the District Court be reversed.
RATIO:
By ancient usage among civilized nations, beginning centuries ago and gradually
ripening into a rule of international law, coast fishing vessels, pursing their
vocation of catching and bringing in fresh fish, have been recognized as exempt,
with their cargoes and crews, from capture as prizes of war.
The would cite the following agreements/orders/edicts:
o Henry IV and King of France: Concerning Safety of Fishermen (1400 and 1403)
o Emperor Charles V and Francis L of France (1521)
o French and Dutch Edicts (1538)
o Louis XIV and Holland and the Dutch (1675)
o France and England and US during the War of Independence (1779)*
o US and Mexico (1846)*
All these were made during times of conflict between the various countries
recognizing the vulnerability of its citizens and their need to continue on fishing
for livelihood. They all made exempt fishing vessels exempt from capture as
prizes of war. It was repeatedly said that citizens shouldnt suffer unduly during
such times and should be allowed to provide livelihood for themselves.
The only exception of this long-standing practice being the capture of French and
Dutch vessels by the English during the French Revolution. Lord Stowell (the guy
who issued the order to capture) stated:
o The exemption of fishing vessels was only a rule of comity and not of legal
decision.
o Comity was used synonymously with courtesy or goodwill and no court in
England at the time had made any decision exempting such.
The US SC went on to say that international law is part of our law and must be
ascertained and administered by the courts of justice. Where there is no treaty
and no controlling executive or legislative act or judicial decision, resort must be
had to the customs and usage of civilized nations, and as evidence of these, to
the works of jurists and commentators who by years of labor, research, and
experience have made themselves peculiarly well acquainted with the subject of
which they treat. Such works are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the law ought to be, but for
trustworthy evidence of what the law really is.
The review of precedence and authorities demonstrates that at the present day,
by the general consent of the civilized nations of the world, and independently
of any express treaty or other public act, it is an established rule of international
law, founded on considerations of humanity to a poor and industrious order of
men, and of mutual convenience of belligerent states, that coast fishing vessels,
with their implements and supplies, cargoes and crews, unarmed and honestly
pursuing their calling are exempt for capture as prizes of war.
Whatever the may have been its origins whether usage or ordinances it has become the law of the sea only by concurrent sanction of those nations who may
be said to constitute the commercial world. Many of the usages which prevail,
and which have the force of law, doubtless originated in the positive
prescriptions of some single state, which were at first of limited effect, but
which, when generally accepted, became of universal obligation.
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The Asylum Case (Columbia v. Peru) (RC) Topic: Regional Customary Law, Burden of Proof for Custom, Constant and Uniform
Usage as evidence of custom, political asylum
Treaties:
Bolivarian Agreement on Extradition (1911)
Convention on Asylum (1928)
Havana Convention (1928)
Montevido Convention (1933 & 1939)
17 I.L.R. 280, I.C.J. Rep. 266
Petitioner: Columbia
Respondent: Peru
They submitted themselves to the jurisdiction of ICJ thru the Act of Lima of 1949.
FACTS:
October 1948, military rebellion broke out in Peru and was suppressed the same
day.
Victor Raul Haya de la Torre (de la Torre) was charged with military rebellion as
being the leader of the faction responsible.
In 1949, de la Torre sought asylum in the Columbian embassy Peru. According to
the embassy de la Torre was qualified as a political refugee. Relying on the
Bolvarian Agreement and the Convention on Asylum and general American
International Law, they argued that qualification was both implied in the
conventions and inherent in the institution of asylum.
Peruvian government said that he was a mere criminal and cannot avail of asylum.
ISSUE/HELD:
W/N Columbia was competent as the country granting asylum, to qualify the
offense for the purpose of granting asylum? NO
Such competence is not inherent in the institution of diplomatic asylum.
Furthermore, neither the Havana Convention nor the Montevido Convention
justified the reliance on custom.
RATIO:
Neither the Bolivarian Agreement nor the Convention on Asylum in force between
Peru and Columbia grant the right to qualify the offense. Columbias reliance on
practice and usage is also unfounded.
First, the one relying on the custom must prove that the custom does exist.
ON THE EXISTENCE OF SUCH CUSTOM:
Columbia cited the following treaties to prove such custom:
o Montevido Convention of 1889
o Bolivarian Agreement of 1911
o Havana Convention of 1928
o Montevido Conventions of 1933 & 1939
None of these treaties except the 1933 Convention contain any provision
concerning the alleged rule of unilateral and definitive qualification.
Further, according to Columbia, Montevido Convention of 1933, merely codified
principles which were already recognized by Latin-American countries on asylum
and extradition and was valid proof of custom against Peru.
The 1933 Convention was only ratified by a limited number of countries. Peru
resisted its ratification, so cannot be said to abide by it.
As such, Columbia failed to prove the existence of any such custom. As the state
granting asylum, Columbia is not competent to qualify the offense y unilateral and
definitive decision, binding on Peru.
WHAT IS QUALIFICATION? (read thru random things in Google)
From what I understand. Its whether or not the one claiming it can be considered a
political refugee. He has to meet the qualifications before he can claim asylum.
North Sea Continental Shelf Cases (RC) Topic: Intl Customary Law, Equidistant Principal is Custom
Treaties:
Agreements between the countries
Geneva Convention on the Continental Shelf
I.C.J. Rep. 1969
Petitioner: Federal Republic of Germany
Respondents: Denmark and Netherlands
FACTS:
Germany, Denmark and the Netherlands had made lateral line agreements
delimiting the North Sea continental shelves.
Denmark and the Netherlands said that the equidistant-special circumstances
principle in Article 6(2) of Geneva Convention applied. By applying this, Germany
for a smaller portion.
Germany argued that the doctrine of just and equitable share applied.
ICJ ruled against Germany. But also stated that the equidistant rule was only
customary international law that was not crystallized by the Geneva Convention.
ISSUE/HELD:
W/N Geneva Convention on Continental Shelf crystallized the equidistant principal
as intl law? NO
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What rule applies? Equidistant Principle
W/N the equidistant principal is customary intl law? YES
RATIO:
ARTICLE 6(2) of Geneva Convention on the Continental Shelf
This is subject to other agreements between the countries. It is contractual in
nature and based on equity.
This article was framed so as to put second the obligation to make use of the
equidistant method, causing it to come after a primary obligation to effect
delimitation by agreement between the parties.
So the countries have to continue negotiations with the following in mind:
o Delimitation of boundaries is to be effected by agreement in accordance of
equitable principles, and taking into account all of the relevant
circumstances, to allow Parties to have as much shelf without encroachment
on the natural prolongation of the land territory of the other
o A degree of proportionality
Even though it isnt binding as intl law. It is part of customary intl law.
CUSTOMARY INTL LAW
Article 6(2) is a norm-creating provision partly because of its own impact, partly
on the basis of subsequent State practice. It has thus, become binding on
countries not even part of the Convention
TEST/EXISTENCE OF OPINIO JURIS:
1. Be of a fundamentally norm-creating character such as could be
regarded as forming the basis of a general rule of law (objective part
settled practice)
2. States conform because they feel a legal obligation (subjective opinio
juris sive necessitatis)
Another element to be considered is that of TIME (its been 10 years since the
Convention was signed and five since it came into force). But a short of passage of
time does not in itself prevent the formation of custom. What matters is that state
practice should have been both extensive and virtually uniform in the provision
invoked. So refer to the test above.
DISSENTING OPINION:
According to Judge Sorenson, Article 6(2) is intl law.
It is generally accepted by signatories, Germany never refused to recognize it.
In fact, Germany has used the same Convention to secure for itself other
rights in the continental shelf.
Statement of Mr. JA Beesley to the 1st Committee of the
GA on Unilateral State Action in Development of CIL (JG) TOPIC: Customary International Law; Methods in the Development of the Law of the
Sea
TREATY: None, but the Geneva Law of the Sea Conferences and the Geneva Convention
on the Territorial Sea were mentioned.
FACTS:
On December 4, 1970, Mr. J.A. Beesley, Canadian Representative, made a
statement addressed to the First Committee of the General Assembly regarding
unilateral state action in the development of customary international law. He said
that:
o In order to prevent the threatened degradation of the marine environment
and to ensure an orderly and equitable exploitation of seabed resources,
there must be an effective and early international action.
o While awaiting such action, states must be responsible for preventing
pollution of the sea and for instituting regulatory measures for the
conservation of its living resources.
o States should not neglect their responsibility to cooperate on a bilateral and
multilateral basis for the fulfillment of these purposes.
o If the international community delays of fails to agree on a new order of the
Law of the Sea, states shall make use of the existing law.
ISSUE/POSITION OF CANADA:
In developing the Law of the Sea, which method has more merits, Unilateralism or
Multi-lateralism?
It is Canadas position that multilateral action and unilateral action are not
mutually exclusive courses. They should not be treated as alternatives.
The contemporary international law of the sea comprises both conventional and
customary law.
o Conventional or Multi-Lateral Treaty Law must be developed primarily by
multilateral action, drawing as necessary upon principles of customary
international law.
Multilateral conventions consist of both codification of existing
principles of international law and progressive development of new
principles.
o Customary International Law, on the other hand, is derived primarily from
state practice, i.e. unilateral action by various states, frequently drawing
upon the principles embodied in bilateral and limited multilateral treaties.
Law-making treaties often become accepted not by virtue of their status
as treaties, but through a gradual acceptance by states of the principles
they lay down.
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Unilateral action carried to an extreme and based upon conflicting principles could
produce complete chaos, while insistence upon the multilateral approach alone
can lead to the situation which has prevailed since the failure of the two Geneva
Law of the Sea Conferences to reach agreement upon the breadth of the territorial
sea and fishing zones.
Hence, what is required is a judicious mix of the two approaches, taking into
account the complex set of inter-related and sometimes conflicting political,
economic and legal considerations, both national and international, and based
upon the imperatives of time itself.
Trends in the Law of the Sea (JG) D.P. OConnel,
Chichele Professor of Public International Law
Topics: Two Schools of Thought in the International Legal System; Opinio Juris vs.
Effectivity
Treaties: Geneva Convention of the Law of the Sea of 1958
The Third Law of the Sea Conference has revealed the extent of the current
incoherence in international law. For the past two hundred years, there have been
two main doctrines on the ultimate nature of the international legal system:
1. Grotian Tradition of Moral Order whereby the rules of international law
have been elucidated by reference to what the society of mankind requires
for its regular development; and
2. Vatellian Tradition of Acquiescence and Consent whereby these rules have
been promulgated by reference to the practices of States.
o The difference between the two has been marked by difficulty in practice by
the common doctrine of opinion juris, the doctrine that supposes that
governments act based on legal conviction and not from motives of power
and gain.
The doctrine of opinion juris provided international lawyers with a workable
methodology, as in the case of maritime law, where practice established the
freedom of the seas and the nature of the territorial sea. But the methodology
has now collapsed because governments now, in the matter of the Law of the Sea,
no longer act by reference to what they think the law is; they deliberately break
traditional rules in order to bring about the changes they seek (e.g. setting the 200
mile exclusive zone). The 200-mile exclusive zone rule is a product of a State
practice based upon power and not upon formal rules. The power may be justified
on the basis of moral, sociological, or other considerations, but it is not based on
opinion juris.
The alternative methodology to opinion juris is effectivity, where a rule is made or
changed simply by making it effective. And the only way to make it effective is by
the use of force.
Judge Read in the International Court in the Anglo-Norwegian Fisheries case
pointed out that in maritime law, State practice can be found in seizures,
where the coastal state asserts its sovereignty over the waters in question.
This is an alarming doctrine because it supposes that the law is a product of
force and not the curb of force. Also, it puts a premium on unilateral action
and leads to constant struggles and disputes among states.
The Geneva Conventions of the Law of the Sea of 1958 were supposed to be a
codification of the maritime law, and for that reason they did not contain any
denunciation clauses. One third of the countries at the Third Law of the Sea
Conference have ratified or acceded. Most countries even repudiated some of
their rules. Due to rapid technological growth and changing economic and social
circumstances, the old rules which magnified the freedom of the seas, have been
replaced. Absolute freedom cannot be upheld when the result would be the
devastation of fishery resources and the disruption of the economies and societies
of countries dependent upon local fishing.
The only way to reconcile absolute freedom with regulation is through unilateral
action. However, that raises difficult questions as to when such action is so
widespread and so uniform so as to completely change the rules.
In the Icelandic Fisheries Case of 1974, the International Court held that Iceland
could not validly assert a 50-mile claim to drive away British and German
fishermen. However, the reasons given for the decision were so various as to leave
the law in as confused a condition as before the case began.
o The Court held that exclusive fishery limits extended only to 12 miles. This
was determined by recording the pressures of unilateral actions during the
1960s which had established that limit.
o The Court also endorsed the doctrine of effectivity, which provided a juridical
platform for Iceland to eventually consolidate a 200-mile limit.
Fisheries Jurisdiction Case (UK v. Ireland) (JG)
TOPIC: Fishery Zone; Preferential Rights of Fishing in Adjacent Waters; Negotiations to
Delimit the Rights and Interests of States
TREATIES:
Exchange of Notes of 1961 between U.K. and Iceland regarding Icelands fishery
limits
Geneva Convention on the High Seas
1958 Resolution and 1960 joint amendment concerning preferential rights
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Arrangement Relating to Fisheries in Waters Surrounding the Faroe Islands- signed
in 1973 on behalf of Belgium, Denmark, France, Germany, Norway, Poland, and
the UK
Agreement on the Regulation of the Fishing of North-East Arctic (Arcto-
Norwegian) Cod signed in 1974 on behalf of the UK, Norway, and the Union of
Soviet Republics
FACTS:
The Government of Iceland promulgated Regulations in 1972, which established a
zone of exclusive fisheries jurisdiction extending to 50 nautical miles from
baselines around the coast of Iceland.
The 1958 Convention on the Territorial Sea and the Contiguous Zone did not
define the breadth of the territorial sea, but Article 24 of this Convention limits
the contiguous zone to 12 miles from the baseline from which the breadth of the
territorial sea is measured.
The question of the breadth of the territorial sea and that of the extent of the
coastal States fishery jurisdiction were referred to the Second Conference on the
Law of the Sea in 1960. Furthermore, the question of the extent of the fisheries
jurisdiction of the coastal State became gradually separated from the notion of
the territorial sea.
The 1960 Conference failed by one vote to adopt a text governing the two
questions of the breadth of the territorial sea and the extent of fishery rights.
Two concepts have crystallized as customary law from the general consensus at
the Conference:
o Fishery Zone the area in which a State may claim exclusive fishery
jurisdiction independently of its territorial sea; the extension of that fishery
zone up to a 12-mile limit from the baselines appears now to be generally
accepted.
o Preferential Rights of Fishing in Adjacent Waters in favour of the coastal
State in a situation of special dependence on its coastal fisheries.
The concept of a 12-mile fishery zone has been accepted with regard to Iceland in
the substantive provisions of the 1961 Exchange of Notes, and the United
Kingdom has also applied the same fishery limits to its own coastal waters since
1964. U.K. has also expressly recognized Icelands preferential rights in the
undisputed waters and at the same time has invoked its own historic fishing rights,
on the ground that reasonable regard must be had to such traditional rights by the
coastal State in accordance with the generally recognized principles embodied in
Article 2 of the Geneva Convention on the High Seas Convention, which declares
that the high seas being open to all nations, no State may validly purport to
subject any part of them to its sovereignty and goes on to provide that freedom
of the high seas comprises freedom of navigation and freedom of fishing. The
freedoms of the high seas are however made subject to the consideration that
they shall be exercised by all States with reasonable regard to the interests of
other States in their exercise of the freedom of the high seas.
ISSUES:
1. Whether or not Iceland is entitled to claim preferential rights? YES
2. Whether or not it may unilaterally exclude the U.K. fishing vessels from all fishing
activity in the waters beyond the limits agreed to in the 1961 Exchange of Notes? NO
HELD/RATIO:
Essentially, the Court held that:
o Iceland is entitled to preferential rights
o However, its legislation in 1972 was illegal; Iceland was not entitled
unilaterally to exclude United Kingdom fishing vessels
o The two governments were under mutual obligations to negotiate an
equitable solution
o The preferential rights of Iceland and the established rights of the U.K. as
well as the interests of other States should be taken into account in the
negotiations.
There can be no doubt of the exceptional dependence of Iceland on its fisheries.
That exceptional dependence was explicitly recognized by the U.K. in the Exchange
of Notes of March 11, 1961.
The preferential rights of the coastal State come into play only at the moment
when an intensification in the exploitation of fishery resources makes it imperative
to introduce some system of catch-limitation and sharing of those resources, to
preserve the fish stocks in the interests of their rational and economic
exploitation. This situation appears in the present case.
The concept of preferential rights is not incompatible with the exclusion of all
fishing activities of other States. A coastal State entitled to preferential rights is
not free, unilaterally and according to its own uncontrolled discretion, to
determine the extent of those rights.
Accordingly, the fact that Iceland is entitled to claim preferential rights does not
justify its claim to unilaterally exclude U.K. fishing vessels from all fishing activity in
the waters.
The provisions of the Icelandic Regulations of 1972 and the manner of their
implementation disregard the fishing rights of UK. Icelands unilateral action thus
constitutes an infringement of Article 2 of the 1958 Geneva Convention on the
High Seas, which requires that all States, including coastal States, in exercising
their freedom of fishing, pay reasonable regard to the interests of other States.
The most appropriate method for the solution of the dispute is negotiation. Its
objective should be the delimitation of the rights and interests of the Parties, the
preferential rights of the coastal State on the one hand, and the rights of the other
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State (i.e. UK) on the other, to balance and regulate equitably questions such as
those of catch-limitation, share allocations and related restrictions concerning
areas closed to fishing, number and type of vessels allowed and forms control of
the agreed provisions. The obligation to negotiate flows form the very nature of
the respective rights of the Parties and is in accordance with the provisions of the
UN Charter concerning peaceful settlement of disputes.
Nuclear Test Cases (Australia v. France; New Zealand v.
France) (JG) I.C.J. Reports 1974, pp. 253, 457 TOPIC: Obligatory Character of Customary International Law; The concept of Erga Omnes (obligations binding against the entire world) TREATIES: none FACTS:
On June 8, 1974, the Office of the President of the French Republic released its first statement declaring its intention to conduct a series of nuclear tests in the South Pacific.
New Zealand and Australia opposed the tests.
On June 10, 1974, the French Embassy in Wellington sent a Note to the New Zealand Ministry of Foreign Affairs saying that France is in a position to conduct the series of underground tests as soon as the planning is completed and that the atmospheric tests will be the last ones to be carried out.
On July 25, 1974, the President of France also made a statement at the press conference declaring that the French nuclear testing will continue, but this round of atmospheric tests would be the last. Similar statements were made by the French Minister of Defence at a press conference and on French television.
ISSUE: Whether or not France made public its intention to cease the conduct of atmospheric tests following the conclusion of the 1974 series of tests? YES HELD/RATIO:
It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with intent to be bound, even though not made within the context of international negotiations, is binding.
o In these circumstances, nothing in the nature of a quid pro quo (according to Merriam-Webster: something given or received for
something else) nor any subsequent acceptance of the declaration, nor even any reply or reaction from the other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made.
Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation to a particular matter with the intention of being bound the intention is to be ascertained by interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.
The Court also stated that for such statements to create commitments in international law, no particular form is required hence, it may be oral or written, provided that there is clear intention to be bound therewith.
The Court further stated that the test is whether the language employed in any given declaration does reveal a clear intention.
One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so is also the binding character of an international obligation assumed by unilateral declaration. Thus, interested states may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.
Of the statements by the French Government, the most essential are clearly those made by the President of the Republic. His statements and those of members of the French Government acting under his authority, in whatever form these statements were expressed, must be held to constitute an engagement of the State, having regard to their intention and to the circumstances in which they were made.
The unilateral statements of the French authorities were made outside the Court, publicly and erga omnes. Hence, they are valid and binding against the entire world.
In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at large, its intention effectively to terminate these tests. It was bound to assume that other States might take note of these statements and rely on their being effective.
The test is whether from the actual substance of these statements, and from the circumstances attending their making, legal implications of the unilateral act can be deduced. In the statements made by France, the objects are clear and were addressed to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal effect. DISSENTING OPINION OF JUDGE SIR GARFIELD BARWICK
Basically, it is the opinion of the judge that there was no clear intention on the part of France to undertake a legal obligation; the Presidential declarations were mere statements of policy.
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II. GENERAL ASSEMBLY RESOLUTIONS
Dissenting Opinion of Judge Tanaka in the South West
Africa Cases (CG)
Issue: WON the resolutions and declarations of international organs can be recognized
as a factor in the custom-generating process in the interpretation of Article 38,
paragraph 1 (b), as evidence of a general practice
Opinion: YES The norm of non-discrimination or non-separation on the basis of race
has become a rule of customary international law because resolutions, declarations,
etc., on the same matter and organizations took place repeatedly
General practice in custom-generating process according to traditional international
law:
Result of the repetition (a historical process over a long period of time) of
individual acts of States constituting consensus in regard to a certain content of a
rule of law
In the contemporary age of highly developed techniques of communication and
information, the formation of a custom through the medium of international
organizations is greatly facilitated and accelerated; the establishment of such a
custom would require no more than one generation or even far less than that
What is required for customary international law is the repetition of the same
practice
Each resolution, declaration, etc., being considered as the manifestation of the
collective will of individual participant States, the will of the international
community can certainly be formulated more quickly and more accurately as
compared with the traditional method of the normative process
This collective, cumulative and organic process of custom-generation can be
characterized as the middle way between legislation by convention and the
traditional process of custom making, and can be seen to have an important role
from the viewpoint of the development of international law
The accumulation of authoritative pronouncements such as resolutions,
declarations, decisions, etc., concerning the interpretation of the Charter by the
competent organs of the international community can be characterized as
evidence of the international custom referred to in Article 38
Proofs of existence of the international norm and standards of non-discrimination
and non-separation:
o Resolutions of the GA
o Resolutions of the Security Council
o 1953 Resolution which declares the inconsistency of the policy of the South
African Government with the principles contained in the Charter of the UN
and with its obligations
o Report of the Committee on the South West Africa
o 11 trust territories agreements
o Universal Declaration of Human Rights adopted by the GA in 1948
o Draft Declaration of Human Rights adopted by the IL Commission Covenant
on Economic, Social and Cultural Rights
o Declaration on the Elimination of all Forms of Racial Discrimination adopted
by the GA of the UN in 1963
o Regional treaties and declarations, particularly the European Convention for
the Protection of Human Rights and Fundamental Freedoms
o The Charter of the Organization of American States
o The American Declaration of the Rights and Duties of Man
o The Draft Declaration of International Rights and Duties
International Law of Outer Space (CG) THE INTERNATIONAL LAW OF OUTER SPACE
UN is not in any sense a world government. Its deliberations, however, may have value
as authority for principles of International Law
Where lies the force of what is called the law for outer space of today?
Some of the principles and rules are firmly established as part and parcel of
general international law and the Charter of the UN
Some derive their force from other International Instruments
Some on analogies with existing institutions and rules (mutatis mutandis)
Some are from the practice of States
Formal Aspects of the Problem
The place and legal value of the document is obviously determined by the powers
of the organ from which it emanates
It may suffice to recall that decisions adopted by the GA are no more than
recommendations
Conflicting views: Some reduce them to moral categories only, others see them in
more than a moral obligation; still others attach to them much greater value and
importance
However, it is true that with some exceptions only they cannot be viewed as
creative of legal rights or obligations
They pave the way to new principles and rules of law, which in due course, take
the shape of binding international instruments
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The initiate the law-making process by taking us across the threshold into the
realm of law
Sometimes they may even create law, imperfect as it may be
In the case of the Declaration of Legal Principles concerning Outer Space, some
particular elements should be taken into consideration
1. The interpretation attached to it by member States of the UN, particularly those
that play a leading part in the exploration and use of outer space
Representatives of US and the Soviet Union declared that their governments
would respect the principles of the Declaration
Similar statements were made by representatives of other Member States
Almost all members of the UN attached to it a importance
By expressing their will to be bound by the provisions of the document, they
consented to be so bound, thus question of form ceases to be of essence
2. The Declaration of 1963 was preceded by other resolutions adopted by the UN.
They reflected a certain trend of development of the law in statu nascendi.
3. The practice that had grown from the very day a man-made satellite reached
outer space.
For instance, the freedom to launch objects into outer space for purposes not
affecting rights or legitimate interests of other States. Since no consent was
sought or no protest or objection was raised, it can be argued that this
practice has developed with a real consensus omnium
It can be viewed as offering full evidence of a general consent (tacitus
consensus) of States
In the formation of customary law or custom, it may be added that today
time travels much faster and makes institutions mature at a much quicker
speed than ever before
It cannot be denied, therefore, that in the light of these facts, the Declaration of 1963 is
to be viewed as the culmination of a certain process. Its great value and strength is that
it has created a framework for the law of tomorrow.
Canadian Practice Regarding Resolutions (CG)
Declarations and resolutions of the GA, while they may contribute to the evolution
of norms of international law, do not create legal rights or obligations for any state
A vote for a resolution, or acquiescence in its adoption without a vote simply
expresses a governments policy and intentions on the subject matter
Same is true of statements made in explanation and of reservations
If the government in question wishes to change its policy and announce this fact,
it will do so in an appropriate way
Some developed countries have proposed that, wherever one resolution is
referred to in a later resolution, the latter should refer to the former resolution
as adopted
The intention is that the words as adopted would incorporate by inference
interpretations, reservations and objections expressed to the former resolution at
the time it was adopted
Canada takes the position that such reservations, etc., remain valid whether or
not the as adopted formula is used, and that they need not be repeated every
time the resolution in question is referred to in a subsequent resolution
III. DECISIONS OF INTERNATIONAL ORGANIZATIONS
The Advisory Opinion On Namibia: Which U.N. Resolutions
Are Binding Under Article 25 Of The Charter? (CG)
What are the legal consequences for States of the continued presence of South Africa
in Namibia, notwithstanding Security Council (SC) Resolution 276 (1970)?
1. The continued presence of South Africa is under an obligation to withdraw its
administration from Namibia immediately and thus put an end to its occupation of
the Territory (by 13 to 2 votes)
2. States Members of the UN are under obligation to recognize the illegality of South
Africas presence in Namibia and the invalidity of its acts on behalf of or
concerning Namibia, and to refrain from any acts and in particular any dealings
with the Government of South Africa implying recognition of the legality of, or
lending support or assistance to, such presence and administration (by 11 votes to
4)
3. It is incumbent upon States which are not Members of the UN to give assistance,
within the scope of subparagraph (2) above, in the action which has been taken by
the UN with regard to Namibia
Background:
Resolution 276, adopted in 1970, had reaffirmed GA resolution 2145 (XXI) of 1966,
whereby that organ had decided that the mandate of South-West Africa was
terminated and had assumed direct responsibility for the territory until its
independence.
It also referred to the fact that SC Resolution 264 (1969) had recognized the
termination of the Mandate, and had called for the withdrawal of South Africa.
SC Resolution 276 (1970) now went further, and declared that all acts taken by the
Government of South Africa on behalf of, or concerning Namibia after the
termination of the mandate were illegal and invalid. It also recalled SC Resolution
269 (1969)
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The 1969 Resolution condemned South Africa for its refusal to comply with
resolution 264 (1969) and, inter alia, called upon States to refrain from all dealings
with South Africa in respect of Namibia
Issue: Whether any of these resolutions were decisions in the sense that they give
rise to legal obligations upon Member States within the meaning of Article 25
Discussion:
1. GENERAL ASSEMBLY RESOLUTION 2145 (1966)
General Rule: GA possesses recommendatory rather than mandatory powers
o Exceptions: Admission of new members, approval of the budget and the
apportionment of expenses
UK Government: It could not accept the opinion because the exceptions are
not of relevance in the present context. The GA has no general competence
of an executive character, and with the exceptions referred to above, there is
no basis in the Charter for the attribution to it of a competence to adopt
resolutions which are other than recommendatory in effect
But it can pass resolutions which are legally operative, even if it is necessary
to ask for the assistance of the Security Council in making them legally
effective
According to the Court, the mandate was validly terminated but the
cooperation of the SC was needed to make it effective, in so far as securing
the withdrawal of South Africa was concerned
GAs determination of facts or legal situations, on the other hand, are not
binding in themselves or by themselves; but they have full legal validity in the
sense that they apply the rules of the Charter in particular cases
On this view, the determination made by the GA that South Africa has not
complied with the obligations of the Mandate establishes the condition of a
legal rule, in this case, the other party may consider the treaty terminated
Judge Fitzmaurice takes a contrary view saying that the lack of Charter
powers means that the Assembly has no power to terminate the mandate
o In the Voting Procedure Case, the court had found that the Assembly
could not depart from its own voting rules, even though unanimity has
been required under the League Council
o He also suggests that a dangerous precedent would be set if the
Assembly were, under some treaty, to accept an arrangement whereby
it was to exercise certain powers reserved in the Charter to the Security
Council
o The Assembly therefore cannot take executive action, it cannot purport
to revoke the mandate by pointing to an alleged executive power to this
effect under the Mandate
A resolution to revoke the Mandate, if properly exercised, could, in principle,
be a valid recommendation; and could form the basis of further enabling
action by the SC
2. WHAT SECURITY COUNCIL RESOLUTIONS ARE BINDING UNDER ARTICLE 25 OF THE
CHARTER?
On the face of it, SC could take decisions within each of these chapters
which would be binding on UN members under the terms of Article 25
Q: Is the term decisions there meant to mean only decisions under Chapter
7 pursuant to a finding under Article 39 that there has been a threat to the
peace, breach of the peace, or act of aggression?
o The International Court found that the decisions made by the SC in
resolutions 276 (1970) were adopted in conformity with the purposes
and principles of the Charter and in accordance with Art 24 and 25. The
decisions are consequently binding on all States Members of the UN
which are thus under obligation to accept and carry them out
There seems to have been considerable confusion in the minds of UN
delegations as to under which Charter provisions these resolutions were
passed
Mr. Castren, on behalf of the Finnish government, agreed that the SC had not
intended to act within the framework of Chapter 7 of the Charter. There was
as yet no threat to the peace or act of aggression
However, he found the wording of Articles 33 and 34 applicable, to say that,
it was a situation the prolongation of which was likely to endanger the
maintenance of international peace and security
He therefore believed that the legal foundation for SC resolution 276 may be
sought in the powers conferred upon the Council in paragraph 1 of Article 36
But article 36 allows the SC to recommend appropriate procedures or
methods of adjustment in respect of a situation or dispute, the continuance
of which was likely to endanger international peace and security
No real internal evidence that the resolutions were regarded as falling within
Chapter 7: they all stopped short of a finding of a threat to the peace, breach
of the peace or act of aggression under Article 39
Therefore, they were intended to be mere recommendations
The Provisions of the Charter
Article 25 stands separately from both Chapter 6 and 7
Its provisions that UN members are bound by decisions of the SC flows from
Article 24 (1) by which members confer on the SC primary responsibility for the
maintenance of international peace and security
In par 2, Art 24, it is stated that specific powers granted to the SC for the discharge
of these duties are laid down in Chap 6-8 and 12
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If art 25 applied only to Chap 7, one might perhaps expected to see it located in
that chapter
Moreover, there is some strength to the view that Art 48 and 49 achieve a binding
effect for Chap 7 decisions; and that if Art 25 refers to Chap 7 alone, then it is
superfluous
It is less easy to see in the wording of Chap 7 any opportunities for decision
Art 33 (2) provides that the SC may call upon parties to settle their dispute by
certain peaceful means listed in Art 33 (1)
This phrase is stronger than the phrase recommend used in Art 36 or 37
However, the Council is in effect requiring the parties to note an obligation, which
they have already accepted under Art 33 (1)
To note is that it is in reality comparatively rare for UN members to identify
themselves as parties to a dispute, and voluntarily to abstain from voting
The protection of Art 27 (3) in relation to Chap 6 is more apparent than real
The Travaux Preparatoires
When the Co-ordination Committee prepared the final draft of Art 25, it changed
the wording so as to make it clear that members would only be obliged to carry
out those Council decisions that are legally mandatory
The main controversy concerned whether the obligation to carry out decisions of
the SC was limited to decisions taken under Chap 6-8
By implication, therefore, the travaux provide some evidence that Art 25 was not
intended to be limited to Chap 7, or inapplicable to Chap 6
Subsequent Practice
Corfu Channel Incident in 1947
o The UK submitted a draft resolution recommending the dispute be referred
to the ICJ
o Before and after the adoption of this resolution, the question arose as to
whether Art 25 applied to a recommendation under Art 36
o UK contended that the Court had jurisdiction in the case under Art 36 (1) of
its Statute. It claimed that its dispute with Albania was such a matter since
the SC resolution adopted under Art 36 of the Charter was binding upon the
parties by virtue of Albanias acceptance of all the obligations of a Member
State and in conformity with Art 25
o In Shawcross statement in the Corfu Channel Case, he asserted that
recommendations under Chap 6 of this Charter, relating to methods of
settling disputes which endanger peace, are binding
o Albania insisted the opposite, and said that Art 25 could only apply to
decisions of the Council taken under Chap 7; and that therefore the SC
resolution could not provide for an indirect form of compulsory jurisdiction
o Albania, even though contending that the Court had no jurisdiction, still
voluntarily accepted to the Court
o NB: 7 judges in a separate opinion stated that they could not accept that a
recommendation under Art 36 of the Charter could involve the compulsory
jurisdiction of the Court
Greek Frontier Incidents Question
o US proposed the establishment of a commission of investigation and good
offices
o Albania, Bulgaria and Yugoslavia, who were parties involved in the dispute,
objected, stating that Chap 6 could not give rise to actions which were
binding upon Members
o US, however, drew the distinction between conciliation and investigation
o While conciliation might imply voluntary will on the part of those who oppose
each other, Art 34 must be understood to give the SC the right to investigate
a dispute, regardless of WON the State being investigated approves
o If the power to decide on an investigation under Art 34 were not a binding
decision within Art 25, the peaceful settlement tasks of the UN would be
frustrated
o The outcome was inconclusive, the US draft vote failing to be adopted
because of a Soviet veto
Kashmir Dispute
o A SC resolution in 1951 calling for a plebiscite was rejected by India on the
grounds that it was a mere recommendation under Chap 6
o Other SC members merely asserted that SC resolutions, validly concluded,
were binding decisions upon the membership
o The matter was never clearly resolved
o India also complained that a draft resolution of 1957, urging demilitarization
failed to appreciate that resolutions under Chap 6 had no binding effect
o No opposition was specifically voiced to Indias view, and a resolution was
adopted calling for a plebiscite and demilitarization
Trieste Case
o Both the travaux preparatoires and the wording of the Charter lead one in
the direction that the application of Art 25 is not limited to Chap 7
resolutions, excluding Chap 6 resolutions
o Clearly, some resolutions passed under Chap 7 are never intended to be
binding, they are meant to be mere recommendations
o The binding or non-binding nature of those resolutions turns not upon
whether they are to be regarded as Chap 6 or Chap 7 resolutions but upon
whether the parties intended them to be decisions or recommendations
o Decisions to investigate could perhaps have this operative effect, though
recommendations under Art 36 or 37 would not
On the Namibia case
o UK, in reaching the conclusion that the SC can only bind members when it has
made a determination under Art 39, did not in its public statement deal with
these considerations
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o Its Government also had decided not to avail itself of the right, under Art 66
of the Courts Statute, to submit a written or oral presentation in the Namibia
case
o Therefore, there exists yet no published, closely reasoned analysis of the legal
conclusions which it has reached on this case
o Although this may be subsequent practice
o The extent to which the understanding is well founded in the Charter is
more open to debate than this statement allows
o The UK, interestingly, is essentially adopting a teleological posture here,
placing the main weight of its argument not on the letter of the Charter, or
the travaux, but rather on the operational understanding which best allows
the SC to carry out its business
o In the drafting of resolutions, Chap 7 resolutions are to be regarded as
capable of binding, while Chap 6 resolutions are not
o Article 25 operates in respect of Chap 7 but not Chap 6
o Art 25 is not confined to decisions in regard to enforcement action but
applies to the decisions of the SC adopted in accordance with the Charter
3. ARTICLE 24 AND THE OPERATION OF ARTICLE 25
ICJ found that the legal basis of SC Resolution 276 (1970) was Art 24 of the Charter
UKs broad pronouncement that the Council can only bind members when acting
under Chap 7 after a finding under Art 39, must be taken to mean that neither Art
24 nor Chap 6 can be the basis of a binding resolution
South Africa argues that there is no objective investigation that the situation was
one the continuance of which was likely to endanger international peace and
security
It regarded investigation as a condition precedent to the operation of Chap 6, in
much the same way as it believed that a formal finding under Art 39 was a
condition precedent to the operation of Chap 7
The Court in the Namibia case cited with approval the Secretary Generals
statement, made to the Council in respect of Trieste, that the Council was not tied
by the specific powers mentioned, and that the only limitations are the
fundamental principles and purposes found in Chap 1 of the Charter
The SecGen also said tat the action taken under Art 24 could bind members under
Art 25
In San Francisco, there had been an amendment which would have bound States
only by decisions taken under the specific powers of Chap 6-8 and 12, however, it
was rejected
The rejection is clear evidence that the obligation of the Members to carry out the
decisions of the SC applies equally to decisions made under Art 24 and to the
decisions made under the grant of specific powers
In ensuing the vote, the SC, by a vote of 10 in favour and Australia abstaining,
approved the 3 instruments on Trieste and formally accepted the responsibilities
devolving upon it under them
The court clearly regarded Chap 6-8 and 12 as lex specialis while Art 24 contained
the lex generalis
Resolutions validly adopted under Art 24 were binding on the membership as a
whole
IV. LIMITS OF STATE PRACTICE
The Approach of the Different Drummer: The Principle of
the Persistent Objector in IL (RL) Ted Stein
TOPIC: Persistent Objector Principle
Mainstream accounts of the principles governing the formation and application of
rules of CIL typically include the principle of PERSISTENT OBJECTOR.
o Definition: A State has persistently objected to a rule of CIL during the
course of the rules emergence is not bound by the rule.
For a rule to become part of CIL, it must be supported by the widespread and
uniform practice of states acting on the conviction chat the practice is obligatory.
o Although it is difficult to determine how much participation is necessary for
customary law to develop, it is clear that this standard does not require
universal participation, nor the participation of the state to which the rule is
applied.
GR: A rule meeting this standard is universally binding.
o E: A state that has persistently objected to a rule is not bound by it, so long
as the objection was made manifest during the process of the rules
emergence.
o A state that fails to object prior to the time that the rule finally crystallizes
cannot claim exemption from it.
o Subsequent departures from the standard of conduct required by the rule
constitute international wrongs.
o A state that achieves independence subsequent to the final emergence of the
rule is bound by the rule as an inescapable consequence of statehood
The premise is that the international legal order lacks a hierarchically superior
sovereign authorized to prescribe rules for the subjects of the order.
o In the absence of such a sovereign, law must result from the concurrent wills
of states.
o It cannot bind a state that has manifestly and continuously refused to accept
it.
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A survey of modern textbooks on IL and of works on the doctrine of sources in
particular failed to turn up any case where an author provided even one instance
of a state claiming or granting an exemption from a rule on the basis of that the
principleexcept the cases of Asylum and Fisheries.
o These cases concurred on the validity of the principle, but no examples were
given.
Examples where the principle could have been invoked but was not done so
o (1) Restrictive rule of the sovereign immunity
The Soviet Union has maintained a continuous objection to any in roads
on the rule of absolute immunity and did so during the very period that
the restrictive rule was becoming predominant.
Yet, there is no evidence that other states have exempted Soviet
agencies and enterprises from the application of the restrictive theory.
o (2) Law of the Sea
US had consistently maintained that three miles marked the outer limit
of the territorial sea.
There were reports that the US would engage in unspecified activities in
the zone between 3 and 12 miles off the coasts of certain other states.
US was charged with violating the territorial integrity of other UN
members.
There was no hint of recognition that the US might be in a special
position with respect to the twelve- mile rule.
o (3) United States and some other nations have consistently opposed the view
(held by the majority of states) that the deep seabed may be mined only in
accordance with the regime to be established by UNCLOS.
o (4) The practice of apartheid is almost universally considered to be a violation
of the CIL of human rights.
South Africa has always objected to a rule prohibiting systematic,
official, racial discrimination and that its opposition has been manifested
throughout the period during which the rule matured.
But this persistent objection has not stopped such from being applied to
South Africa.
The author suggests that a contemporary process be taken to help promote the
principle.
o Classic Process: Only the laws of war and of neutrality had been codified to
any significant degree.
o Prescriptive Process: focuses on the production of written instruments
embodying in fixed language authoritative, if often ambiguous, statements
of the governing rules. (This is what we follow to date)
Effects of the Shift:
o States increasingly view treaties emerging from the multilateral process as
authoritative, but the relationship between custom and treaties becomes
even more difficult and the line between the two even more indefinite.
o It is reasonable to expect that the principle of the persistent objector will
acquire a new prominence in the legal discourse of states in the next few
decades.
It has lightened the burden on the applicant to show what the law is.
The respondent is given more pressure relv on arguments that
concede, at least hypothetically, the general validity of the rule cited
against it.
The principle of the persistent objector offers a way to oppose the
application of a customary rule while conceding the existence of the
rule.
Note:
o The principle of the persistent objector is firmly established in the orthodox
doctrine on the sources of IL;
o It has played a limited role in actual legal discourse of states;
o The principle of the persistent objector requires that the objection be
manifested before the customary rule is crystallized.
Conclusion: Although it is true that the principle provides no help for new states,
since the rules were already in existence at the time they emerged, it is notable
that the categories of new and old states will tend to lose their relevance as more
and more areas of international law will be subject to the multilateral processes.
o Increasingly, the law will be made up of rules that have obtained
authoritative endorsement by the international community only after the
decolonization process was well under way, if not complete.
o As such, the principle of the persistent objector will provide an equal
opportunity for all states.
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