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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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