PIL Case Briefs 2- Sources of International Law

7/28/2019 PIL Case Briefs 2- Sources of International Law

1/66

NICARAGUA v USJam Crisostomo

STATEMENT OF FACTS

- On April 9, 1984, Nicaragua filed an application in the Courtcharging the United States military and paramilitaryactivities in and against Nicaragua in violation of the lattersobligations under charters, treaties and customaryinternational law.

- The dispute between Nicaragua and the United States concernsevents in Nicaragua subsequent to the fall of the Government ofPresident Anastasio Somoza Debayle in Nicaragua in July 1979, andactivities of the Government of the United States in relation toNicaragua since that time.

- Following the departure of President Somoza, a Junta of National

Reconstruction and an 18-member government was installed byFrente Sandinista de Liberacibn Nacional (FLN) (responsible forarmed opposition against President Somoza). That body had initiallyan extensive share in the new government, described as a"democratic coalition", and as a result of later resignations andreshuffles, became almost its sole component.

- The attitude of the United States Government to the "democraticcoalition government" was at first favourable; and a programme ofeconomic aid to Nicaragua was adopted. However by 1981 thisattitude had changed. United States aid to Nicaragua wassuspended in January 1981 and terminated in April 198 1.According to the United States, the reason for this change ofattitude was reports of involvement of the Government ofNicaragua in logistical support, including provision of arms,for guerrillas in El Salvador.

- In September 1981, according to testimony called by Nicaragua, theUS decided to plan and undertake activities directed againstNicaragua.

- In its application, Nicaragua states the ff:

The United States has created an "army" of more than 10,000

mercenaries, many of whom served the former ditator AnastasioSomoza Debayle, placed them in more than ten base camps inHonduras along the border of Nicaragua, trained them, paidthem, supplied them with arms, ammunition, food andmedical supplies, and directed their attacks against humanand economic targets inside Nicaragua.

The US-directed forces announced that they had minedNicaragua's principal ports - Corinto, Puerto Sandino and El Bluff- as part of an effort to cut off Nicaragua economically from the restof the world. Five foreign commercial vessels have been damagedby exploding mines, and many others have cancelled scheduledshipments to and from Nicaragua.

The United States has publicly accepted responsibility forthese illegal activities. The military and paramilitary operations inNicaragua are openly and expressly authorized by an Act ofCongress of the United States.

In the economic arena, it was alleged that the United States has:- withdrawn its own aid to Nicaragua- drastically reduced the quota for imports of sugar from

Nicaragua to the United States- imposed a trade embargo- influenced International Banks for Reconstruction and

Development to block the provision of loans to Nicaragua.

- Nicaragua asks the ICJ to declare that the US should terminate itsarmed intervention in Nicaragua's internal affairs and conduct itsforeign policy within the limits prescribed by international law.

- The US accepted the compulsory jurisdiction of the court but withreservation excluding it from the operation of the declaration.


2/66

- On May 10, 1984, the Court decided to first address the questionsjurisdiction and admissibility.

- On November 26, 1984, the Court found that it had jurisdiction toentertain the Application on the basis of the ff: 1. Article 36,

paragraphs 2and 5, of the Statute and 2. Art XXIV of the Treaty ofFriendship, Commerce and Navigation between the United States andNicaragua.

- The US claims that the judgment of the court on jurisdiction andadmissibility is erroneous. The US decided not to participate in anyfurther proceedings in connection with this case, and reservedits rights with respect to any decision regarding Nicaragua'sclaims.

SUMMARY OF ARGUMENTS:

NICARAGUA

(1) Breach of Charter and Treaty ObligationsThe United States, in recruiting, training, arming, equipping, financing,supplying and otherwise encouraging, supporting, aiding, and directing themilitary and paramilitary activities in and against Nicaragua breaches the ffCharter and Treaty Obligations:

(a) Art 2 Par 2 of the Charter of the United Nations"All Members shall refrain in their international relationsfrom the threat or use of force against the territorialintegrity or political independence of any State . . ."

(b) Article 21 of the Organization of American States Charter"The American States bind themselves in their international

relations not to have recourse to the use of force, except inthe case of self-defense in accordance with existing treatiesor in fulfilment thereof ."

(b) Art 18 of the Charter of the Organization of American States"No State or group of States has the right to intervene,

directly or indirectly, for any reason whatsoever, in theinternal or external affairs of any other State. The foregoingprinciple prohibits not only armed force but also any otherform of interference or attempted threat against thepersonality of the State, or against its political, economic,

and cultural elements."

(c) Art 20 of the Charter of the Organization of American StatesThe territory of a State is inviolable. It may not be theobject, even temporarily, of military occupation or of othermeasures of force taken by another State, directly orindirectly, on any grounds whatever.

(d) Article 8 of the Convention on Rights and Duties of States(e) Article I, Third, of the Convention concerning the Duties andRights of States in the Event of Civil Strife.

(2) Breach of General and Customary International LawThe US has breached obligations under general and customary international

law by: (a) violating the sovereignty of Nicaragua through-armed attacks against Nicaragua by air, land and sea;-incursions into Nicaraguan territorial waters;-aerial trespass into Nicaraguan airspace;-efforts by direct and indirect means to coerce andintimidate the Government of Nicaragua.

(b) using force and the threat of force against Nicaragua.(c) intervening in the internal affairs of Nicaragua by efforts tooverthrow or destabilize the present government.(d) infringing upon the freedom of the high seas and interruptingpeaceful maritime commerce through

-mining the Nicaraguan ports of Corinto, Puerto Sandinoand El Bluff, and attacking merchant vessels in these portsby sea and air, and hereby restricting access to and fromthe high seas

(e) killing, wounding and kidnapping citizens of Nicaragua.Nicaragua furthermore demanded that all such actions cease andthat the United States had an obligation to pay reparations to thegovernment for damage to their people, property, and economy.
http://en.wikipedia.org/w/index.php?title=Convention_on_Rights_and_Duties_of_States&action=edit&redlink=1http://en.wikipedia.org/wiki/Sovereigntyhttp://en.wikipedia.org/w/index.php?title=Convention_on_Rights_and_Duties_of_States&action=edit&redlink=1http://en.wikipedia.org/wiki/Sovereignty


3/66

The obligations of the United States under general andcustomary international law are evidenced by the practice ofStates, by the writings of the most highly qualified publicistsand by resolutions of the General Assembly.

The court is requested to:1. adjudge and declare that the United States has violated theobligations of international law.2. state in clear terms the obligation which the United States bearsto bring to an end the aforesaid breaches of international law.3. adjudge and declare that, in consequence of the violations ofinternational law, compensation is due to Nicaragua, both on its ownbehalf and in respect of wrongs inflicted upon its nationals.4. award to the Republic of Nicaragua the sum of 370,200,000United States dollars, which sum constitutes the minimum valuationof the direct damages, with the exception of damages for killingnationals of Nicaragua, resulting from the violations of internationallaw indicated in the substance of this Memorial.

US

(1) Justiciability of the dispute

According to the United States, a claim of unlawful use of armedforce is a matter committed by the United Nations Charter and bypractice to the exclusive competence of the Security Council. Hence,the court cannot deal effectively with this issue withoutoverstepping proper judicial bounds. They argue that it does notfall into the category of "legal disputes" within the meaningof Article 36, paragraph 21, of the Statute.

12. The states parties to the present Statute may at any time declare that they recognize as

compulsory ipso facto and without special agreement, in relation to any other state accepting

the same obligation, the jurisdiction of the Court in all legal disputes concerning:a. the interpretation of a treaty;b. any question of international law;c. the existence of any fact which, if established, would constitute a breach of an internationalobligation;d. the nature or extent of the reparation to be made for the breach of an internationalobligation.

(2) USs reservation

U.S. argues that treaties as well as customary rules, whose contentis identical to that of the treaties, cannot be applied because of the

reservation made by them.

The reservation excluded from Article 36 of the Statute ofICJ, disputes arising under a multilateral treaty, unless (1)all parties to the treaty affected by the decision are alsoparties to the case before the Court, or (2) the United Statesof America specially agrees to jurisdiction.

(3) Self Defense

The US made clear in its Counter-Memorial on the questions ofjurisdiction and admissibility that "by providing, upon request,proportionate and appropriate assistance to third States not before

the Court" it is acting in reliance on its inherent right ofcollective self-defence guaranteed by Article 512 of theCharter of the United Nations.

JUDGMENT

Justiciability of the dispute

The parties failed to argue whether the dispute (i.e. use of armed forces) isa legal dispute within the meaning of Art 36 par 2. The court held thatsince the case does not necessarily involve evaluation of political ormilitary matters (the jurisdiction of which properly belongs to the SecurityCouncil) then it is a controversy that the court may properly deal with.

Multilateral Treaty Reservation/ Breach of Multilateral Treaties

2 Art 51 of the UN Charter- Nothing in the present charter shall impair the

inherent right of individual or collective self-defense if an armed attack occurs

against a member of the UN.


4/66

The Court concluded that the reservation is applicable in this case because:

(i)U.S. did not specially agree to the jurisdiction in this case, and

(ii)Parties to the treaty affected by the decision were not all parties

before the court. Parties to the dispute included United States andNicaragua. However, U.S. claimed it was acting in collective self-defense on behalf of El Salvador . El Salvador was not a partybefore the Court. The Court determined El Salvador would beaffected by its judgment.

The Court held that the reservation barred it from applying themultilateral treaties to this case. However, the Court viewed thereservation as a limitation only on the type of law that the courtcould apply (multilateral treaties), not as a limitation on its overall

jurisdiction to hear the case. Hence, other sources of internationallaw under Art. 38 of the Statute of the ICJ (i.e. customaryinternational law) are still applicable.

With regard to the argument of the US that customary rules cannot beapplied since its content is same as those in treaties, the Court said thatcustomary international law incorporated in a treaty does notdeprive the customary law of its applicability distinctly from thetreaty. According to the Court, treaties and customary law haveindependent existence and apply separately, even when both deal with thesame subject matter. There are no grounds for holding that whencustomary international law is comprised of rules identical to thoseof treaty law, the latter supervenes the former, so that thecustomary law has no further existence of its own. I.C.J. Reports1986, p. 94-95, para. 177.

Hence, the alleged violation of charters and treaties is immaterial tothe case.

Breach of General and Customary International Law

Opinio Juris and State Practice

After the court recognized the application of customary international

law to the case (see discussion above), it then proceeded to discusshow to determine which customary international law apply. In doingso, the court considered the practice and opinio ojuris of States.

The Court noted that although both Nicaragua and US had aconsiderable degree of agreement as to the content of thecustomary international law related to the non-use of force and non-intervention, such fact is not sufficient for the Court to considerthese as being part of customary international law. The court saidthat it is important to really check the material of customaryinternational lawin actual practice and opinio juris of States.It doesnt matter if these rules have already been collectedby several treaties or any other intruments.

Thus, the court said that the attitude of the Parties and theattitude of States towards certain General Assemblyresolutions could be indicative of opinio juris.

The effect of consent to the text of such resolutions cannot beunderstood as merely that of a "reiteration or elucidation"ofthe treaty commitment undertaken in the Charter. On the contrary,it may be understood as an acceptance of the validity of therule or set of rules declared by the resolution.

Use of Force

The court held that there is customary law against use of forcebecause of the existence of opinion juris on this matter as evidencedby the ff:

Text/Agreement/Declaration Why considered customary

UN Charter - all 197 members (at the time) ratified the charter (show a common norm since the composition of members isNOT concentrated in certain areas)


5/66

- even non-signatories adopt the charter- It was rested in bilateral treaties- There is a substantially uniform state practice to prohibit use of force

General Assembly Resolution

2625- Declaration on thePrinciples of International Lawconcerning Friendly Relations &Cooperation among States inaccordance with the UN Charter(XXV)

-set out principles which the General Assembly declared to be "basic principles" of international law

- evidence of States attitude- GA is composed of all members of the UN

Party Agreement- Treaty ofFriendship, Commerce &Navigation

- consent and ratification of the parties

Security Council (SC)Resolutions

- Acceptance of Security Council decisions of members of the UN.- Declarations are almost quasi-judicial in nature- SC consist of a specialized body of the UN responsible in dealing with threats to peace on an international level

Resolut ion of The Sixth

International Conference ofAmerican States ConcerningAggression 18 Feb 1928

- consent and ratification of the US

Montevideo Convention on theRights and Duties of States 26December 1933

- Ratification of the US

Helsinki Conference/Conferenceon Security and Co-operation inEurope

- USs Acceptance of the principles contained in the declaration. Acceptance of a text in these terms confirms theexistence of an opinio juris of the participating States prohibiting the use of force in international relations.

Use of Force in Relation to the Acts of US

The Court considers that the laying of mines in early 1984and certain attacks on Nicaraguan ports, oil installationsand naval bases, imputable to the United States constituteinfringements of this principle. It also considers that the

United States has committed a prima facie violation of theprinciple by arming and training the contras, unless this canbe justified as an exercise of the right of self-defence.

On the other hand, it does not consider that militarymanoeuvres held by the United States near the Nicaraguan


6/66

borders, or the supply of funds to the contras, amounts to ause of force.

State sovereignty

The concept of sovereignty both in treaty and customary Intl.law extends to the internal waters and territorial sea ofevery State and to the airspace above its territory based onthe ff:

Art. 2(1) of the UN Charter; Art. 1 of the Chicago Convention on

International Civil Aviation (1944); Geneva Convention on the Territorial Sea

(1958); UN Convention on the Law of the Sea (1982).

The ff. acts of US violate the principle of state sovereignty:

1 assistance to the contras,2 The direct attacks on Nicaraguan ports, oil installations,

etc.,

3 the mining operations in Nicaraguan ports,

4 the acts of intervention involving the use of force referredto in the Judgment,

5 Unauthorized over flight of Nicaraguan territory.

6 The laying of mines in or near Nicaraguan ports constitutes

an infringement, to Nicaragua's detriment, of the freedomof communications and of maritime commerce.

Non-intervention

The principle of non-intervention involves the right of everysovereign State to conduct its affairs without outside interference.Expressions of opinio jurisof States regarding the existence of thisprinciple are found in:

-Numerous declarations and resolutions-Corfu Channel (Merits) United Kingdom v Albania 1949 ICJReports 4

The Court notes that this principle, stated in its ownjurisprudence, has been reflected in numerous declarationsand resolutions adopted by international organizations andconferences in which the United States and Nicaragua haveparticipated. The text thereoftestifies to the acceptance by theUnited States and Nicaragua of a customary principle whichhas universal application.

A prohibited intervention must be one bearing on matters in

which each State is permitted, by the principle of Statesovereignty, to decide freely (for example the choice of apolitical, economic, social and cultural system, and formulation offoreign policy). Intervention is wrongful when it uses, inregard to such choices, methods of coercion, particularlyforce, either in the direct form of military action or in theindirect form of support for subversive activities in anotherState.

The Court finds it clearly established that the United Statesintended, by its support of the contras, to coerce Nicaragua inrespect of matters in which each State is permitted to decide freely.It therefore finds that the support given by the United Statesto the military and paramilitary activities of the contras in

Nicaragua, by financial support, training, supply of weapons,intelligence and logistic support, constitutes a clear breach ofthe principle of non-intervention.

Humanitarian aid on the other hand cannot be regarded asunlawful intervention. The Court recalls that if the provision of


7/66

"humanitarian assistance" must be limited to the purposes hallowedin the practice of the Red Cross, and above all be given withoutdiscrimination.

Self-defense

Self defense like use of force is also considered a customaryinternational law principle because of opinio juris of the States, as evidenceby the ff:

-Party Agreement-UN Charter Article 51-General Assembly Resolution 2625 (XXV)-General Assembly Resolution 3314 (XXIX)-Charter of Organisations of American States-International Treaty of Reciprocal Assistance 1947

The general rule prohibiting force established in customary lawallows for certain exceptions i.e . individual or collective self-defence

as provided in Article 51 of the United Nations Charter, which refers to an"inherent right", and from the declaration in resolution 2625 (XXV).

Whether self-defence is individual or collective, it can only be exercised inresponse to an "armed attack". Armed attack is to be understood asmeaning not merely action by regular armed forces across an internationalborder, but also the sending by a State of armed bands on to theterritory of another State, if such an operation, because of its scaleand effects, would have been classified as an armed attack had itbeen carried out by regular armed forces.

The Court does not believe that the concept of "armed attack"includes assistance to rebels in the form of the provision of weapons

or logistical or other support. Hence, Nicaragua is not guilty ofarmed attack against El Salvador, thereby making self-defenceinapplicable as an exception.

Furthermore, the Court finds that in customary international law,whether of a general kind or that particular to the inter-American

legal system, there is no rule permitting the exercise of collectiveself-defence in the absence of a request by the State which is avictim of the alleged attack, this being additional to the requirement thatthe State in question should have declared itself to have been attacked.

Since the plea of collective self-defence advanced by the UnitedStates cannot be upheld, it follows that the United States hasviolated the principle prohibiting recourse to the threat or use offorce.

Humanitarian law

Nicaragua accused the United States of having killed, wounded andkidnapped citizens of Nicaragua. However, the evidence available isinsufficient for the purpose of attributing to the United States theacts committed by the contras, the Court rejects this submission.

On the other hand, the court found that the United States committed

violation of Art. 3 of the fourth Geneva Convention. Under thisconvention, the US was bound to refrain from encouragement of persons orgroups engaged in the conflict in Nicaragua to commit violations of Article 3.The United States is under an obligation to "respect" theConventions and even to "ensure respect" for them in allcircumstances since it is not merely a treaty obligation, but acustomary norm because it reflects elementary considerations ofhumanity.

The Court observes that the laying of mines in the waters of anotherState without any warning or notification is not only an unlawful actbut also a breach of the principles of humanitarian law underlyingthe Hague Convention No. VIII of 1907.

SOUTH WEST AFRICA CASE

Raj Sagarino


8/66

SOUTH-WEST AFRICA CASES (SECOND PHASE)Brief History:

1878 Walvis Bay and Penguin Islands (both are part of South

West Africa) was annexed by Britain as part of the Cape Colony.

1884 South West Africa (SWA) became German colony.

After World War I, SWA was declared a League of Nations MandateTerritory with the Union of South Africa responsible for itsadministration.

What is the League of Nations Mandate Territory?

- It was a legal status for certain territories transferred from the

control of one country to another following World War 1, or thelegal instruments that contained the internationally agreed-upon terms for administering the territory on behalf of theLeague.

- The mandate system was established under Article 22 of the

Covenant of the League of Nations,

- All the territories subject to League of Nations mandates were

previously controlled by states defeated in World War I,principallyImperial Germany and the Ottoman Empire.

- The process of establishing the mandates consisted of two

phases: 1) formal removal of sovereignty of the previously

controlling states, 2) transfer of mandatory powers to individualstates among the Allied Powers.

- The exact level of control by the Mandatory power over each

mandate was decided on an individual basis by the League of

Nations. However, in every case the Mandatory power wasforbidden to construct fortifications or raise an army within theterritory of the mandate and was required to present an annualreport on the territory to the League of Nations.

- Despite this, mandates were generally seen as de facto coloniesof the empires of the victor nations.

- The mandates were divided into three distinct groups based

upon the level of development each population had achieved atthat time: 1) Class A mandates were communities formerlycontrolled by the Ottoman Empire that were deemed to "...have reached a stage of development where their existence asindependent nations can be provisionally recognized subject tothe rendering of administrative advice and assistance by aMandatory until such time as they are able to stand alone, 2)Class B mandates were all former Schutzgebiete (Germanterritories) in the Sub-Saharan regions of West and CentralAfrica, which were deemed to require a greater level of control

by the mandatory power, 3) Class C mandates, includingSouth-West Africa and certain of the South Pacific Islands,were considered to be "best administered under the laws of theMandatory as integral portions of its territory" and were formerGerman possessions.

What is the Union of South Africa?

- is the historic predecessor to the present-day Republic of South

Africa

-

It came into being on 31 May 1910 with the unity of thepreviously separate colonies of the Cape, Natal, Transvaal andtheOrange Free State.

- The Union of South Africa was founded as a dominion of the

British Empire. The Union was governed under a form of
http://en.wikipedia.org/wiki/Covenant_of_the_League_of_Nationshttp://en.wikipedia.org/wiki/Covenant_of_the_League_of_Nationshttp://en.wikipedia.org/wiki/Imperial_Germanyhttp://en.wikipedia.org/wiki/Imperial_Germanyhttp://en.wikipedia.org/wiki/Ottoman_Empirehttp://en.wikipedia.org/wiki/Sovereigntyhttp://en.wikipedia.org/wiki/Sovereigntyhttp://en.wikipedia.org/wiki/Allies_of_World_War_Ihttp://en.wikipedia.org/wiki/Allies_of_World_War_Ihttp://en.wikipedia.org/wiki/Ottoman_Empirehttp://en.wikipedia.org/wiki/Ottoman_Empirehttp://en.wikipedia.org/wiki/Ottoman_Empirehttp://en.wikipedia.org/wiki/South_Africahttp://en.wikipedia.org/wiki/South_Africahttp://en.wikipedia.org/wiki/Cape_Colonyhttp://en.wikipedia.org/wiki/Colony_of_Natalhttp://en.wikipedia.org/wiki/Colony_of_Natalhttp://en.wikipedia.org/wiki/Transvaal_Colonyhttp://en.wikipedia.org/wiki/Transvaal_Colonyhttp://en.wikipedia.org/wiki/Orange_Free_Statehttp://en.wikipedia.org/wiki/Orange_Free_Statehttp://en.wikipedia.org/wiki/Dominionhttp://en.wikipedia.org/wiki/Dominionhttp://en.wikipedia.org/wiki/British_Empirehttp://en.wikipedia.org/wiki/Covenant_of_the_League_of_Nationshttp://en.wikipedia.org/wiki/Imperial_Germanyhttp://en.wikipedia.org/wiki/Ottoman_Empirehttp://en.wikipedia.org/wiki/Sovereigntyhttp://en.wikipedia.org/wiki/Allies_of_World_War_Ihttp://en.wikipedia.org/wiki/Ottoman_Empirehttp://en.wikipedia.org/wiki/South_Africahttp://en.wikipedia.org/wiki/South_Africahttp://en.wikipedia.org/wiki/Cape_Colonyhttp://en.wikipedia.org/wiki/Colony_of_Natalhttp://en.wikipedia.org/wiki/Transvaal_Colonyhttp://en.wikipedia.org/wiki/Orange_Free_Statehttp://en.wikipedia.org/wiki/Dominionhttp://en.wikipedia.org/wiki/British_Empire


9/66

constitutional monarchy, with the British monarch representedby a governor-general.

- Following the First World War, the Union of South Africa was

granted the administration of the (German) South-West Africa

colony as a League of Nations mandate and it became treated inmost respects as if it were another province of the Union.

SWA was supposed to become a UN Trust Territory, but the Union ofSouth Africa objected to SWA coming under UN control.

What are the UN Trust Territories?

- successors of the remaining League of Nations mandates and

came into being when the League of Nationsceased to exist in1946. The League of Nations was the precursor to the UNITEDNATIONS.

- All of the trust territories were administered through the UN

Trusteeship Council.

SWA eventually gained independence in 1990 as Namibia.

Background

The South West Africa cases (Ethiopia v. South Africa; Liberia v. South

Africa), which relate to the continued existence of the Mandate for South

West Africa and the duties and performance of South Africa (then Union of

South Africa) as Mandatorythereunder, were instituted by Applications of

the Governments of Ethiopia and Liberia filed in the Registry on 4 November

1960. By an Order of 20 May 1961 the Court joined the proceedings in the

two cases.

First Phase:

The Government of South Africa raised preliminary objections to the Court's

proceeding to hear the merits of the case, but these were dismissed by the

Court on 21 December 1962, the Court finding that it had jurisdiction to

adjudicate upon the merits of the dispute.

Second Phase:

Southwest Africa (SWA) contends that South Africa, exercising

administrative powers over their territory by virtue of a mandate, practiced

apartheid (i.e., has distinguished as to race, color, national or tribal origin in

establishing the rights and duties of the inhabitants of the Territory); that

such practice is in violation of its obligations as stated in Article 2 of the

Mandate and Article 22 of the Covenant of the League of Nations; and that

the Union has the duty forthwith to cease the practice ofapartheidin the

Territory. Furthermore, South Africa, by virtue of the economic, political,

social and educational policies applied within SWA has failed to promote to

the utmost the material and moral well-being and social progress of the

inhabitants of the Territory; that its failure to do so is in violation of its

obligations as stated in the second paragraph of Article 2 of the Mandate and

Article 22 of the Covenant; and that the Union has the duty forthwith to
http://en.wikipedia.org/wiki/Constitutional_monarchyhttp://en.wikipedia.org/wiki/Constitutional_monarchyhttp://en.wikipedia.org/wiki/German_South-West_Africahttp://en.wikipedia.org/wiki/League_of_Nationshttp://en.wikipedia.org/wiki/League_of_Nations_mandatehttp://en.wikipedia.org/wiki/League_of_Nationshttp://en.wikipedia.org/wiki/League_of_Nationshttp://en.wikipedia.org/wiki/UN_Trusteeship_Councilhttp://en.wikipedia.org/wiki/UN_Trusteeship_Councilhttp://en.wikipedia.org/wiki/Namibiahttp://en.wikipedia.org/wiki/Namibiahttp://en.wikipedia.org/wiki/Constitutional_monarchyhttp://en.wikipedia.org/wiki/German_South-West_Africahttp://en.wikipedia.org/wiki/League_of_Nationshttp://en.wikipedia.org/wiki/League_of_Nations_mandatehttp://en.wikipedia.org/wiki/League_of_Nationshttp://en.wikipedia.org/wiki/UN_Trusteeship_Councilhttp://en.wikipedia.org/wiki/UN_Trusteeship_Councilhttp://en.wikipedia.org/wiki/Namibia


10/66

cease its violations as aforesaid and to take all practicable action to fulfill its

duties under such Articles.

In its Judgment on the second phase of the cases the Court, by thePresident's casting vote, the votes being equally divided (seven-seven),

found that the Applicant States (Ethiopia and Liberia) could not be

considered to have established any legal right or interest in the

subject matter of their claims and accordingly decided to reject

them.

The Case

The Applicants, acting in the capacity of States which were members of theformer League of Nations, put forward various allegations of contraventions

of the League of Nations Mandate for South West Africa by the Republic of

South Africa.

Facts

In 1960, Liberia and Ethiopia asked the International Court of

Justice for a judgment on South Africa's repressive racial apartheid.

The case centered on a mandate conferred on South Africa by the

League of Nations in 1920. South Africa was to oversee theneighboring former German territory of South West Africa, subject

to the approval of the League of Nations and later the UnitedNations.

As "interested parties" representing the 36 in dependent states ofblack Africa, Ethiopia and Liberia claimed that South Africa hadviolated its mandate by imposing racial separation on the territory's400,000 nonwhites.

The Court recalled that the mandates system was instituted by

Article 22 of the Covenant of the League of Nations.

There were three categories of mandates, 'A', 'B' and 'C' mandates,

which had, however, various features in common as regards their

structure (as stated above, SWA was under Class C).

The principal element of each instrument of mandateconsisted of the articles defining the mandatory's powersand its obligations in respect of the inhabitants of theterritory and towards the League and its organs. The Courtreferred to these as the "conduct" provisions.

In addition, each instrument of mandate contained articlesconferring certain rights relative to the mandated territorydirectly upon the members of the League as individualStates, or in favour of their nationals. The Court referred torights of this kind as "special interests," embodied in the"special interests" provisions of the mandates.

It was specified in Article 22 of the Covenant that the "best method

of giving practical effect to [the] principle" that the "well-being anddevelopment" of those peoples in former enemy colonies "not yet


11/66

able to stand by themselves" formed "a sacred trust of civilization"was that "the tutelage of such peoples should be entrusted toadvanced nations . . . who are willing to accept it" and it specificallyadded that it was "on behalf of the League" that "this tutelageshould be exercised by those nations as Mandatories". The

mandatories were to be the agents of the League and not of eachand every member of it individually.

Article 22 of the Covenant provided that "securities for theperformance" of the sacred trust were to be "embodied in thisCovenant." By paragraphs 7 and 9 of Article 22, every mandatorywas to "render an annual report in reference to the territory"; and aPermanent Mandates Commission was to be constituted "to receiveand examine" these annual reports.

Individual member States of the League could take part in theadministrative process only through their participation in theactivities of the organs by means of which the League was entitledto function. They had no right of direct intervention relative to themandatories: this was the prerogative of the League organs.

The contentions of the Applicants covered, inter alia, the following

issues:

1. Whether the Mandate for South West Africa was still in force and, if

so, whether the Mandatory's obligation to furnish annual reports onits administration to the Council of the League of Nations hadbecome transformed into an obligation so to report to the GeneralAssembly of the United Nations;

2. Whether the Respondent (Republic of South Africa) had, in

accordance with the Mandate, promoted to the utmost the materialand moral well-being and the social progress of the inhabitants ofthe territory,

3. Whether the Mandatory had contravened the prohibition in the

Mandate of the "military training of the natives" and theestablishment of military or naval bases or the erection offortifications in the territory; and

4. Whether South Africa had contravened the provision in the Mandatethat it (the Mandate) can only be modified with the consent of theCouncil of the League of Nations, by attempting to modify theMandate without the consent of the United Nations GeneralAssembly, which, it was contended by the Applicants, had replacedthe Council of the League for this and other purposes.

Issues

Before dealing with the above-mentioned issues, however, the Court said

that there were two questions of an antecedent character, appertaining to

the merits of the case, which might render an enquiry into other aspects of

the case unnecessary:

1) Whether the Mandate still subsisted at all

2) The question of the Applicants' standing in this phase of theproceedings - i.e. their legal right or interest regarding the subjectmatter of their claims.


12/66

The Court further stated that the question to be decided was whether any

legal right or interest was vested in members of the League of Nations

individually as regards the "conduct" clauses of the mandates - i.e., whether

the various mandatories had any direct obligation towards the other

members of the League individually, as regards the carrying out of the

"conduct" provisions of the mandates. If the answer were that the Applicants

could not be regarded as possessing the legal right or interest claimed, then

even if the various allegations of contraventions of the Mandate for South

West Africa were established, the Applicants would still not be entitled to the

pronouncements and declarations which, in their final submissions, they

asked the Court to make.

The Court ruled that the Applicants did not possess such a legal right

or interest, therefore it did not pronounce upon the question of

whether the Mandate was still in force (issue no. 1 above).

Applicants (Ethiopia and Liberia) Arguments

Ethiopia and Liberia argued that it was in their capacity as former

members of the League of Nations that they appear before theCourt, and the rights they claimed were those that the members ofthe League were said to have been invested with in the time of theLeague.

Accordingly, in order to determine the rights and obligations of the

Parties relative to the Mandate, the Court had to place itself at thepoint in time when the mandates system was instituted. Anyenquiry into the rights and obligations of the Parties must proceedprincipally on the basis of considering the texts of the instruments

and provisions in the setting of their period.

Courts Ruling

Inability of individual members to act independently

Attention must be paid to the juridical character and structure of theinstitution, the League of Nations, within the framework of which the

mandates system was organized. A fundamental element was that Article 2

of the Covenant provided that the "action of the League under this Covenant

shall be effected through the instrumentality of an Assembly and of a

Council, with a permanent Secretariat". Individual member States could not

themselves act differently relative to League matters unless it was otherwise

specially so provided by some article of the Covenant.

The manner in which the mandate instruments were drafted only lendsemphasis to the view that the members of the League generally were notconsidered as having any direct concern with the setting up of the variousmandates. Furthermore, while the consent of the Council of the League was

required for any modification of the terms of the mandate, it was not statedthat the consent of individual members of the League was additionallyrequired. Individual members of the League were not parties to the variousinstruments of mandate, though they did, to a limited extent, and in certainrespects only, derive rights from them. They could draw from theinstruments only such rights as these unequivocally conferred.


13/66

Had individual members of the League possessed the rights which the

Applicants claimed them to have had, the position of a mandatory caught

between the different expressions of view of some 40 or 50 States would

have been untenable. Furthermore, the normal League voting rule was

unanimity, and as the mandatory was a member of the Council on questions

affecting its mandate, such questions could not be decided against the

mandatory's contrary vote. This system was inconsistent with the position

claimed for individual League members by the Applicants, and if, as

members of the League, they did not possess the rights contended for, they

did not possess them now.

The principle of "sacred trust" had no residual juridical content

It had been attempted to derive a legal right or interest in the conduct of the

Mandate from the simple existence, or principle, of the "sacred trust." The

sacred trust, it was said was a "sacred trust of civilization" and hence all

civilized nations had an interest in seeing that it was carried out. But in

order that this interest might take on a specifically legal character the sacred

trust itself must be or become something more than a moral or

humanitarian ideal. In order to generate legal rights and obligations, it must

be given juridical expression and be clothed in legal form. The moral ideal

must not be confused with the legal rules intended to give it effect. The

principle of the "sacred trust" had no residual juridical content which could,

so far as any particular mandate is concerned, operate per se to give rise to

legal rights and obligations outside the system as a whole.

Although members of a dissolved international organization can bedeemed to retain rights, this could not extend to ascribing to them

rights they never possessed

Nor could the Court accept the suggestion that even if the legal position of

the Applicants and of other individual members of the League were as the

Court held it to be, this was so only during the lifetime of the League, andthat on the latter's dissolution the rights previously resident in the League

itself, or in its competent organs, devolved upon the individual States which

were members of it at the date of its dissolution. Although the Court held in

1962 that the members of a dissolved international organization can be

deemed, though no longer members of it, to retain rights which, as

members, they individually possessed when the organization was in being,

this could not extend to ascribing to them, upon and by reason of the

dissolution, rights which, even previously as members, they never did

individually possess. Nor could anything that occurred subsequent to the

dissolution of the League operate to invest its members with rights they did

not previously have as members of the League. The Court could not read the

unilateral declarations, or statements of intention, made by the various

mandatories on the occasion of the dissolution of the League, expressing

their willingness to continue to be guided by the mandates in their


14/66

administration of the territories concerned, as conferring on the members of

the League individually any new legal rights or interests of a kind they did

not previously possess.

It might be said that in so far as the Court's view led to the conclusion that

there was now no entity entitled to claim the due performance of the

Mandate, it must be unacceptable, but if a correct legal reading of a given

situation showed certain alleged rights to be non-existent, the consequences

of this must be accepted. To postulate the existence of such rights in order

to avert those consequences would be to engage in an essentially legislative

task, in the service of political ends.

When a party in a case enters preliminary objections, the

proceedings on the merits are suspended

Turning to the contention that the Applicants' legal right or interest had been

settled by the 1962 Judgment and could not now be reopened, the Court

pointed out that a decision on a preliminary objection could never be

preclusive of a matter appertaining to the merits, whether or not it had in

fact been dealt with in connection with the preliminary objection. When

preliminary objections were entered by the defendant party in a case, the

proceedings on the merits were suspended, by virtue of Article 62,

paragraph 3, of the Court's Rules. Thereafter, and until the proceedings on

the merits were resumed, there could be no decision finally determining or

prejudging any issue of merits. A judgment on a preliminary objection might

touch on a point of merits, but this it could do only in a provisional way, to

the extent necessary for deciding the question raised by the preliminary

objection. It could not rank as a final decision on the point of merits

involved.

While the 1962 Judgment decided that the Applicants were entitled to invoke

the jurisdictional clause of the Mandate, it remained for them, on the merits,

to establish that they had such a right or interest in the carrying out of the

provisions which they invoked as to entitle them to the pronouncements and

declarations they were seeking from the Court. There was no contradiction

between a decision that the Applicants had the capacity to invoke the

jurisdictional clause and a decision that the Applicants had not established

the legal basis of their claim on the merits.


15/66

Jurisdictional clauses do not determine whether parties hadsubstantive rights, but only whether they could vindicate them by

recourse to a tribunal (if they had them)

In respect of the contention that the jurisdictional clause of the Mandate

conferred a substantive right to claim from the Mandatory the carrying out

of the "conduct of the Mandate" provisions, it was to be observed that itwould be remarkable if so important a right had been created in so casual

and almost incidental a fashion. There was nothing about this particular

jurisdictional clause, in fact, to differentiate it from many others, and it was

an almost elementary principle of procedural law that a distinction had to be

made between, on the one hand, the right to activate a court and the right

of a court to examine the merits of a claim and, on the other, the plaintiff's

legal right in respect of the subject matter of its claim, which it would have

to establish to the satisfaction of the Court. Jurisdictional clauses were

adjectival not substantive in their nature and effect: they did not determine

whether parties had substantive rights, but only whether, if they had them,

they could vindicate them by recourse to a tribunal.

The Court then considered the rights of members of the League Councilunder the jurisdictional clauses of the minorities treaties signed after the

First World War, and distinguished these clauses from the jurisdictional

clauses of the instruments of mandate. In the case of the mandates the

jurisdictional clause was intended to give the individual members of the

League the means of protecting their "special interests" relative to the

mandated territories; in the case of the minorities treaties, the right of

action of the Members of the Council under the jurisdictional clause was only

intended for the protection of minority populations. Furthermore, any

"difference of opinion" was characterized in advance in the minorities

treaties as being justiciable, because it was to be "held to be a dispute of an

international character". Hence no question of any lack of legal right or

interest could arise. The jurisdictional clause of the mandates on the other

hand had none of the special characteristics or effects of those of the

minorities treaties.

The Court next adverted to the question of admissibility. It observed that

the 1962 Judgment had simply found that it had "jurisdiction to adjudicate

upon the merits" and that if any question of admissibility were involved it

would fall to be decided now, as occurred in the merits phase of the

Nottebohm case; if this were so the Court would determine the question in


16/66

exactly the same way, i.e., looking at the matter from the point of view of

the capacity of the Applicants to advance their present claim, the Court

would hold that they had not got such capacity, and hence that the claim

was inadmissible.

The "necessity" argument appeared to be based on considerations of

an extra-legal character; it lay in the political field and did not

constitute necessity in the eyes of the law

Finally, the Court dealt with what had been called the argument of

"necessity." The gist of this was that since the Council of the League had no

means of imposing its views on the Mandatory, and since no advisory

opinion it might obtain from the Court would be binding on the latter, the

Mandate could have been flouted at will. Hence, it was contended, it was

essential, as an ultimate safeguard or security for the sacred trust, that each

Member of the League should be deemed to have a legal right or interest in

that matter and be able to take direct action relative to it. But in thefunctioning of the mandates system in practice, much trouble was taken to

arrive, by argument, discussion, negotiation and cooperative effort, at

generally acceptable conclusions and to avoid situations in which the

Mandatory would be forced to acquiesce in the views of the rest of the

Council short of casting an adverse vote. In this context, the existence of

substantive rights for individual members of the League in the conduct of

the mandates exercisable independently of the Council would have been out

of place. Furthermore, leaving aside the improbability that, had the framers

of the mandates system intended that it should be possible to impose a

given policy on a mandatory, they would have left this to be haphazard and

uncertain action of individual members of the League, it was scarcely likely

that a system which deliberately made it possible for mandatories to block

Council decisions by using their veto (though, so far as the Court was aware,

this had never been done) should simultaneously invest individual members

of the League with a legal right of complaint if the mandatory made use of

this veto. In the international field, the existence of obligations that could

not be enforced by any legal process had always been the rule rather than

the exception-and this was even more the case in 1920 than today.

Moreover, the argument of "necessity" amounted to a plea that the Court

should allow the equivalent of an actio popularis, or right resident in any

member of a community to take legal action in vindication of a public

interest. But such a right was not known to international law as it stood at

present: and the Court was unable to regard it as imported by "the general

principles of law" referred to in Article 38, paragraph 1 (c), of its Statute.


17/66

In the final analysis, the whole "necessity" argument appeared to be basedon considerations of an extra-legal character, the product of a process of

after-knowledge. It was events subsequent to the period of the League, not

anything inherent in the mandates system as it was originally conceived,

that gave rise to the alleged "necessity," which, if it existed, lay in the

political field and did not constitute necessity in the eyes of the law. The

Court was not a legislative body. Parties to a dispute could always ask the

Court to give a decision ex aequo et bono, in terms of paragraph 2 of Article

38. Failing that, the duty of the Court was plain: its duty was to apply the

law as it found it, not to make it.

It might be urged that the Court was entitled to "fill in the gaps," in the

application of a teleological principle of interpretation, according to which

instruments must be given their maximum effect in order to ensure the

achievement of their underlying purposes. This principle was a highly

controversial one and it could, in any event, have no application to

circumstances in which the Court would have to go beyond what could

reasonably be regarded as being a process of interpretation and would have

to engage in a process of rectification or revision. Rights could not be

presumed to exist merely because it might seem desirable that they should.

The Court could not remedy a deficiency if, in order to do so, it had to

exceed the bounds of normal judicial action.

It might also be urged that the Court would be entitled to make good an

omission resulting from the failure of those concerned to foresee what might

happen and to have regard to what it might be presumed the framers of the

mandate would have wished, or would even have made express provision

for, had they had advance knowledge of what was to occur. The Court could

not, however, presume what the wishes and intentions of those concerned

would have been in anticipation of events that were neither foreseen nor

foreseeable; and even if it could, it would certainly not be possible to make

the assumptions contended for by the Applicants as to what those intentions

were.

For the foregoing reasons, the Court decided to reject the claims of

the Empire of Ethiopia and the Republic of Liberia.


18/66

Additional input

Per Sir Harry during discussion (in a previous class): This is a legal

challenge brought by Ethiopia & Liberia against South Africa WRT the

practice of apartheid (although never mentioned here!!) The action is based

on the mandate given to South Africa to promote the material & moral well-

being & social progress of inhabitants of the South West African territory.

The Court did not decide on the merits because it did not consider the case

as involving a legal issue because there was no law prohibiting apartheid.

The Applicants tried to derive a legal right or interest in the conduct of the

Mandate for South West Africa from the simple principle of the sacred

trust. The principles set forth here have been obliterated in latter cases.

Fundamental equality is now considered an erga omnes obligation since it is

a fundamental human right.

CRITICISMS/ARGUMENTS AGAINST THE COURTS RULING The final decision of the ICJ in the SWA cases, rejecting the claim of

Ethiopia and Liberia on the technical ground that they lackedsufficient legal interest to be vindicated vis--vis South Africa,having, however, decided in 1962 that the two applicants had theprocedural right to institute the proceedings, led to a lot of criticism

of the Court.

As was cogently observed, the 1966 decision was at best, a painful

reminder that international adjudication is suited only to thesettlement of trivial questions of highly technical character and at

worst, an endorsement of South Africas racial policies.

The Court tried to distinguish between the question of admissibility

said to have been dealt with in the 1962 decision, and the questionofvalidity of the claim on the merits, which was the concern of theCourt in the final decision of 1966. This is a distinction withoutdifference.

No authority was given by the Court in its assertion that, while the

Applicants had locus standito institute the action, they had no legalinterest to entitle them to a judgment on the merits. The Courtsimply decided not to decide.

Judge Tanakas dissenting Judgment:

What are equal are to be treated equally and what aredifferent are to be treated differently

He asks: what is equal and what is different? And heanswers: All human beings, notwithstanding theirdifferences in their appearance and other minor points, areequal in their dignity as persons. Accordingly, for the pointof view of human rights and fundamental freedoms theymust be treated equally.

He continues The principle of equality does not meanabsolute equality, but recognises relative equality, namelydifferent treatment proportionate to concrete individualcircumstances. Different treatment must not be given

arbitrarily; it requires reasonableness, or must be inconformity with justice...

He found that discrimination according to the criterion ofrace, colour, national or tribal origin in establishing therights and duties of the inhabitants of the territory is not


19/66

considered reasonable and just. .. If differentiation berequired, it would be derived from the difference oflanguage, religion, custom, etc. not from the racialdifference itself The policy of apartheid he consequentlyfound to be fundamentally unreasonable and unjust.

The 1966 decision was not a clear and convincing majority rule dueto the following events:

1) The death in 1965, of Judge Abdel Hamid Badawi of theUnited Arab Republic who had voted with the majority ofeight in the 1962 decision of the Court in Geneva ofaccepting the case instituted by Ethiopia and Liberia;

2) The inability of Judge Jose Luis Bustamante y Rivero of Peruto participate in the 1966 decision owing to a heart attack;

3) The rather curious political and jurisprudential positiontaken in the case by Judge Winconski of Poland;

4) The fact that in 1966, the President of the Court was amongthe conservatives who voted in the minority in 1962 andhad the occasion to exercise the casting vote; and

5) The disqualification of Sir Muhammed Zafrulla Khan(Pakistan) from the 1966 proceedings on the groundsexplained to him by the President of the Court, that he hadbeen originally nominated as an ad hoq judge by the twoapplicants prior to his election as a regular member of theCourt.

NORTH SEA CONTINENTAL SHELF CASE, ICJ REPORTS, 1969

Conrad Lacsina

Issue: Federal Republic of Germany Kingdoms of Denmark and the ICJ Ruling


20/66

Netherlands

Whether there are any rulesor principles of internationallaw governing the delimitationof the continental shelfbetween two or more statesadjacent to that Shelf, and ifso whether such principlesand rules of international lawapply in the special case ofthe continental shelf of theNorth Sea which has to bedivided up between several

littoral States surrounding theNorth Sea basin.

The equidistance principle/method asembodied in Article 6 of the Conventionon the Continental Shelf concluded atGeneva on 29 April 1958.

The Geneva Convention was not in itsorigins or inception declaratory of amandatory rule of customaryinternational law enjoining the use ofthe equidistance principle for thedelimitation of continental shelf areasbetween adjacent States, neither has itssubsequent effect been constitutive ofsuch a rule; and that State practice up-to-date has equally been insufficient forthe purpose.

Germany is unable to agree withDenmark and the Netherlands that theprinciple of equidistance should governthe delimitation of the continental shelfbetween two adjacent countries.Although this principle has been adoptedin Article 6 of the Convention onContinental Shelf (1958) as well as inArticles 12 and 24 of the Convention onTerritorial Sea and the Contiguous Zone,and in Article 7 of the Convention on

Fishing of the same date, had notdeveloped into a rule of generalinternational law. If it is, consequently, itmust govern the delimitation of thecontinental shelf also between States notparties to these Conventions. ForGermany, the equidistance principle onlyoffers one useful method among othersfor drawing maritime boundariesbetween opposite or adjacent States. Itsapplication in some case could lead tounjust and inequitable result. It can beaccepted as a boundary line only underthe condition that it will lead to anequitable and just apportionment.

The whole matter is governed by amandatory rule of law which, reflectingthe language of Article 6 of theConvention on the Continental Shelfconcluded at Geneva on 29 April 1958,was designated by them as the"equidistance-special circumstances" rule.According to this contention,"equidistance" is not merely a method ofthe cartographical construction of aboundary line, but the essential element

in a rule of law which may be stated asfollows,-namely that in the absence ofagreement by the Parties to employanother method or to proceed to adelimitation on an ad hocbasis, allcontinental shelf boundaries must bedrawn by means of an equidistance line,unless, or except to the extent to which,"special circumstances" are recognized toexist.

Annex 13 shows that that the method ofequidistance is in harmony with theexisting practice of States in thedelimitation of boundaries and being so, isa generally recognized rule ofinternational law.

The Geneva Convention did not embodyor crystallize any pre-existing oremergent rule of customary law,according to which the delimitation ofcontinental shelf areas betweenadjacent States must, unless the Partiesotherwise agree, be carried out on anequidistance-special circumstance basis.

Facts:

1. In the North Sea,three states, theFederal Republic ofGermany, theKingdom of Denmark,and the Kingdom ofthe Netherlands, aresharing onecontinental shelf. IN

Article 6 of the Convention is notobligatory in character for those Statesthat have not ratified it. It is not bindingon the Federal Republic of Germanysince it had not ratified it.

Article 6 of the Geneva Convention is notonly to be applicable as a conventionalrule, but also to represent the acceptedrule of general international law on thesubject of continental shelf delimitation.

(The Court found that there had notbeen many cases wherein theequidistance method was used.) Buteven if those cases constituted morethan a very small proportion, the Courtwould not think it necessary toenumerate or evaluate them separately,since there are, a priori, several groundswhich deprive them of weight asprecedents in the present context. Tobegin with, over half the States


21/66

ASYLUM CASE

Celeni Guinto

CASE BRIEF: Asylum Case (Colombia/Peru), 1950Timeline: 3 Oct 1948 - a military rebellion broke out in Peru and wassuppressed the same day. 4 Oct - The American Peoples Revolutionary Alliance, a political party,was charged with having organised and directed the rebellion. The next day,the Ministry of Interior addressed a note of denunciation against VictorRaul Haya de la Torre, the leader of the political party. 11 Oct judicial proceedings opened against Haya de la Torre 3 Jan1949 Haya de la Torre sought asylum in the Colombian Embassyin Lima. On the next day, the Colombian Ambassador sent a note to thePeruvian Minister of Foreign Affairs and Public Worship that they grantedasylum to Haya de la Torre, requesting for a safe-conduct so that Haya de laTorre may leave the country.Summary of Facts: M. Victor Raul Haya de la Torre was a political leader

(of the American Peoples Revolutionary Alliance) in Peru who sought asylumin the Colombian Embassy in Lima, Peru after proceedings were institutedagainst him when a military rebellion broke. Three months after therebellion, he was granted asylum as a political refugee, and while thePeruvian authorities were seeking him, the Colombian Ambassadorrequested a safe- conduct to enable Haya de la Torre to leave the country.Peru believed Haya de la Torre did not deserve the privilege of asylum forhaving committed common crimes.Issues/Resolutions Preview:b. Havana Convention no explicit or implied recognition of unilateralqualification.c. Convention of Montevideo not ratified by Peru at that time, cannotbe invoked against them.d. American international law Colombia had not proved the existence

of a constant and uniform practice of unilateral qualification as anexpression of the right of the State of refuge and obligation upon theterritorial State.2. Is the Government of Peru bound to deliver a safe-conduct to therefugee?No. (15-1)3. Is there merit in the accusation that Haya de la Torre committed

common crimes?No. (15-1). Military rebellion is not a common crime.4. Are the requirements for asylum to be granted in conformity withrelevant treaties?No. (10-6). Based on the ICJs interpretation of theConvention of Havana, asylum could not be an obstacle to proceedingsinstituted by legal authorities operating in accordance with the law. The

purpose of political asylum is to grant immunity to a person for humanitarianconsiderations against the violent and uncontrolled action of irresponsibleelements of the population. It is not made to evade legal prosecution of theterritorial State.ExtraditionAsylumRefugee is within the territory of the State of refuge.Refugee is within the territory of the State where the offence wascommitted.Grant of asylum is normal exercise of territorial sovereignty since therefugee is outside the territory of the State where the offence wascommitted.Grant of asylum is a derogation of territorial sovereignty of the State. Itwithdraws the offender form the jurisdiction of the territorial State andconstitutes a intervention in matters exclusively within the competence of

that State.1.Is Colombia entitled to qualify unilaterally and in a manner binding uponPeru the nature of the Offence of Haya de la Torre to be able to grant himasylum?No. (14-2). Here, the Colombian government cited 4 sources of theunilateral declaration:a. The Bolivian Agreement of 1911 (Treaty on Extradition) They usedthe article on recognising the institution of asylum based on principles ofinternational law. However, these principles do not include a unilateralqualification. The treaty also applies to extradition, which is different fromasylum:Page 1 of 4ASYLUM CASE Breakdown of Submissions and Judgementon the Merits

PeruThe Territorial State in this case, the country of origin of the refugee-political leader, Haya de la TorreColombiaThe State of Refuge, whose ambassador in Lima, Peru granted asylum toHaya de la Torre


22/66

Judgement1st Submission: Colombia claims that she is entitled in the case of personswho have claimed asylum in her embassies, et al, to qualify the refugees,either as offenders for common crimes or deserters from the army or navy,or as political offenders;

They claim this is conformity with the following sources: BolivianAgreement on Extradition... the signatory States recognize the institution of asylum in conformitywith the principles of international law.(Art. 18) Convention on Asylum (Havana Convention)Asylum granted topolitical offenders in legations ..., shall be respected to the extent in whichallowed as a right or through humanitarian toleration, by the usages, theconventions or the laws of the country in which granted ...(Art. 2)Colombia interpreted this to mean that the usages, conventions and laws ofColombia relating to the qualifications of the offence can be invoked againstPeru. Montevideo Convention on Political Asylum American international law in general Colombia cited extraditiontreaties including the Montevideo Convention, which Peru has not ratified.The Colombian Government argued that the Convention merely codified

principles which were already recognised by Latin-American custom, andthat it is valid against Peru as a proof of customary law.Re: Bolivian Agreement of 1911In recognising the institution of asylum, the article merely refers to theprinciples of international law. But the principles of international law do notrecognise any rule of unilateral and definitive qualification by the Stategranting diplomatic asylum.The provisions on the agreement concerning extradition do not applybecause this is a case of asylum (see table above).Re: Havana ConventionThe interpretation of Colombia cannot be accepted because it would meanthe extent of the obligation of the signatories of the convention will dependon modifications which might occur in the law of another. What the provisionsays is that the State of refuge shall not exercise asylum to a larger extent

than is warranted by its own usages, conventions or laws and the asylumgranted must be respected by the territorial State.Re: Montevideo ConventionNot ratified by Peru, therefore the modifications in the convention of theHavana convention cannot apply against them.Re: American International Law

There must be proof that the alleged regional or local custom peculiar toLatin-American States be established in such a manner that has becomebinding on the other Party. The Colombian Government must prove that therule invoked by it is in accordance with constant and uniform usagepractised by the States in question, and that this usage is the expression

of a right appertaining to the State granting asylum and a dutyincumbent on the territorial State. This is in line with Art. 38 of the ICJStatute, that sees international custom as evidence of a general practiseaccepted as law.The limited number of States which ratified the Montevideo Conventionreveals the weakness of the argument of Colombia that it codifiedinternational custom.Peru has not requested that Haya de la Torre should leave Peru.2nd Submission: Peru is bound to give the guarantees necessary for thedeparture of the refugee (safe-conduct to Haya dela Torre) with due regardto the inviolability of his person from the country. Basis: Havana Conventionentitles a State to request safe-conduct under certain conditions:1. Asylum has been regularly granted and maintained. It can be grantedonly to political offenders who are not accused or condemned for commoncrimes and only in urget cases and for the time strictly indispensable for the

safety of the refugee.2. Art. 2 of the Havana Convention:The Government of the State may require that the refugee be sent out ofthe national territory within the shortest time possible; and the diplomaticagent of the country who has granted asylum may in turn require theguarantees necessary for the departure of the refugee from the country withdue regard to the inviolability of his person.The Havana Convention based on the cited provision means that theterritorial State may require that the refugee be sent out of the country, andthat is the only instance when a demand be made by the State grantingasylum to require the necessary guarantees as a condition of his being sentout.Therefore, the request for safe-conduct has two requirements:1. The diplomatic agent of the State of refuge is naturally desirous that

the presence of the refugee on his premises should not be prolonged;2. The territorial State desires that its political opponent who hasobtained asylum should depart.The State requested for a safe-conduct is not necessarily legally bound toaccede to it. Colombia is not entitled to claim from Peru the safe-conductguarantees for departure.


23/66

The grant of asylum by the Colombian Ambassador in Lima was made inviolation of the Convention of Asylum signed at Havana. The grant of asylummay not be granted except:for the period of time strictly indispensable.(Art. 2, Par. 2 of HavanaConvention), and that

It is not permissible for States to grant asylum... to persons accused orcondemned for common crimes....(Art. 1, Par. 1)The claim of Peru regarding the validity of the asylum is not admissiblebecause of its lack of direct connection with the case of the ColombianGovernment.Colombia is wrong to question the propriety of the forum in asking thequestion because its second submission (safe-conduct) is premised on avalid asylum.Art. 1.1: The Courts in Peru has not proved that the acts of the refugeeconstituted common crimes. The recital of facts only show a militaryrebellion, and the Peruvian Code of Military Justice delineates militaryrebellion from a common crime. This contention of Peru therefore must bedismissed.Art. 2.2: The article refers to asylum granted to political offenders and theterms and conditions which asylum granted shall be respected by the

territorial State. The most important and essential justification for asylum isthe imminence or persistence of a danger for the person of the refugee. It isincumbent upon Colombia to submit proof of facts to show that the above-mentioned condition was fulfilled. The long interval between the militaryrebellion and the grant of asylum gave it a very special charater. Haya de laTorre was avoiding the Peruvian legal system.In principle, asylum cannot be opposed to the operation of justice. Anexception can occur only if, in the guise of justice, arbitrary action issubstituted for the rule of law. However, even if there has been a prolongedstate of siege in Peru, there has been no implied subordination of justice tothe executive authority, or suspension of certain constitutional guaranteesThe Court cannot allow the practise of Latin- American republics, inwhich considerations of courtesy, good neighbourliness and politicalexpediency to trump the Havana Convention and a national legal

system. Such a conception, moreover, would come into conflict with one ofthe most firmly established traditions of Latin-America, which is, non-intervention.Conclusion: The requirement of urgency in Art. 2.2 of the HavanaConvention has not been met in this case.

NUCLEAR TEST CASES, ICJ Reports:

New Zealand v France, 1974 AnekaAUSTRALIA V. FRANCE

Jill de DumoSTATEMENT OF FACTS

In the years 1966 to 1972, the French Government carried out atmospherictests of nuclear devices at its Pacific Experimentation Centre in the FrenchPolynesia. The main firing site has been some 6,000 kilometres to the Eastof Australian Mainland, which is why France created prohibited/dangerouszones to exclude aircraft and shipping vessels from the testing areas.

The UN Scientific Committee on the Effects of Atomic Radiation recordedvarying degrees throughout the world of measurable quantities ofradioactive matter. It is thus asserted that the French tests have causedsome fall-out of this kind to be deposited in the Australian territory. Francehowever maintained that the radioactive matter produced by its tests hasbeen so infinitesimal that it may be regarded as negligible, and that it does

not constitute a danger to the health of Australians.

On 9 May 1973, the Australian Ambassador transmitted an Application toinstitute proceedings against France with respect to the latters holding ofatmospheric tests of nuclear weapons in the Pacific Ocean. The Agent ofAustralia also requested for interim measures of protection under Art. 33 ofthe 1928 General Act for the Pacific Settlement of International Disputes. Insum, the Australian Government prayed for the Court to adjudge anddeclare that the carrying out of nuclear weapon tests in the South PacificOcean is inconsistent with applicable rules of international law, and toorderthe French to desist from carrying out further tests.

Meanwhile, the French Government did not accept the Courts jurisdiction. Itdid not appoint an Agent and requested the Court to remove the case from

its list. No pleadings were also filed by France. Several statements werelater on released by the French Government to the public, to wit:

On 16 August 1974, Frances Minister of Defence said that the FrenchGovernment had done its best to ensure that the 1974 nuclear testwould be the last.


24/66

On 25 September 1974 in the UN General Assembly, the FrenchMinister of Foreign Affairs said: We have now reached a stage in ournuclear technology that makes it possible for us to continue ourprogramme by underground testing, and we have taken steps to do soas early as next year.

On 11 October 1974, during a press conference held by the Minister ofDefence, he reiterated twice that there would be no atmospheric testsin 1975 and that France was ready to proceed underground. He alsocleared that there was no proviso (in the normal course of events)in his statement.

ISSUES

A. THE COURT HAS NO JURISDICTION OVER THE CASE

Australia submits that the Court has jurisdiction over the case,on the two grounds:

Art. 17 of the General Act for the Pacific Settlement ofInternational Disputes, read together with Arts. 36 and 37 ofthe Statute of the Court, wherein Australia and France bothaccededto the General Act

Art. 36.2 of the Statute of the Court wherein Australia andFrance both made declarations

France submits that the Court is manifestly not competent in thecase, that it could not accept its jurisdiction, and thataccordingly, it will not appoint an agent.

Generally, the Court must refrain from entering into the merits of theclaim; however, while examining questions of preliminary character, theCourt is entitled to go into questions which may not be strictly capable

of classification as matters of jurisdiction or admissibility, but are ofsuch nature as to require examination in priority to those matters.

The Court has inherent jurisdiction to ensure that the exercise of itsjurisdiction OVER THE MERITS, if and when established, shall not befrustrated, and to provide for an orderly settlement of all matters in

dispute to maintain its judicial character (Northern CameroonsJudgment, ICJ Reports 1963). Such inherent jurisdiction derives fromthe mere existence of the Court as a judicial organ established by theconsent of the States, and is conferred upon it in order that basicjudicial functions may be safeguarded.

On the preliminary question, WON there is still a dispute

Under Art. 40 of the Statute of the Court, the Court isrequired to indicate the subject of the dispute, sothere must be a point of reference for theconsideration by the Court of the nature andexistence of the dispute brought before it. It is thusessential whether Australia is requesting for a

statement of a legal relationship, or a judgmentwhich will refrain another Party from taking action.

In this case, although the Applicant has used the traditionalformula of asking the court to adjudge and declare, theCourt must ascertain the true object and purpose of the

claim, and thus cannot confine itself to the ordinarymeaning of the words. The Court must take into accountthe Application as a whole. The fons et erigo of this case isclearly the nuclear tests which the Applicant seeks toterminate. Thus, this is not merely a case of declaratoryjudgment.

HOWEVER, the existence of a dispute is a primarycondition for the Court to exercise its judicialfunction. It is not sufficient to assert that there is adispute, but such dispute must CONTINUE TO EXISTat the time when the Court makes a Decision. Art. 38of the Courts Statute provides that the Courtsfunction is to decide in accordance with

international law such disputes as are submitted toit. It also states that jurisdiction may be exercisedonly when a dispute genuinely exists between theparties.

Considering the circumstances (please see arguments


25/66

below) of this case, the object of the claim hasalready been achieved.

B. THE COURT RIGHTFULLLY TOOK COGNIZANCE OF SUBSEQUENTDEVELOPMENTS

Since the Applicants claim is to prevent further tests, the Court has totake account of any developments since the filing of the Application.Also, in view of the respondents NON-APPEARANCE, it is especiallyincumbent upon the Court to satisfy itself that it is in the possession ofall the available facts.

While the statements of the French Authorities were not madebefore the Court, they are in the public domain, and are knownto the Australian Government. In fact, the Attorney-General of

Australia has commented on it in the Australian Senate.Moreover, it was the Applicant itself which drew the Courtsattention to the statements made by France. It submitteddocuments containing the statements and presented its own

interpretation, touching particularly upon the question ofwhether Frances statements contained a firm assurance ofdesistance from nuclear testing.

While there is such a principle as audi alterma partem,3 this does notpreclude the Court from taking into account statements made whichmerely supplement and reinforce matters already discussed in theproceedings. Applicant, having commented on the statements itself,could reasonable expect that the Court would deal with the matter andcome to its own conclusion on the meaning and effect of thosestatements.

C. THE FRENCH STATEMENTS/DECLARATIONS HAVE THE EFFECT OF

CREATING LEGAL OBLIGATIONS3Audi alteram partem (oraudiatur et altera pars) is aLatinphrasethat literallymeans "hear the other side".[1] It is most often used to refer to the principle that no

person should be judged without a fair hearing in which each party is given the

opportunity to respond to the evidence against them. (WIKIPEDIA)

It is well-recognized that declarations made by way ofunilateral acts concerning legal or factual situations may havethe effect of creating legal obligations. When the intention of theState making the declaration that it should become bound

according to its terms, that intention confers on the declarationthe character of a legal undertaking.

An undertaking of this kind, if given publicly, and with intent tobe bound, even though not within the context of internationalnegotiations, is binding. In these circumstances, nothing in thenature of a quid pro quo or any subsequent acceptance of thedeclaration is required for the declaration to take effect. WhenStates make statements by which their freedom of action is to belimited, a restrictive interpretation is called for. No particularform is required of this and parties are free to choose how theywill make such commitments (Temple of Preah Vihear, ICJReports 1961).

Moreover, the creation of legal obligations is based on the

principle of good faith. Trust and confidence are inherent ininternational cooperation, just as the rule ofpacta sunt servandain the law of treaties is base don good faith, so also is thebinding character of an international obligation assumed byunilateral declarations.

In this case, it is the Australian Government which actually recognizedthe possibility of the dispute being resolved by a unilateral declaration,for as long as there is a firm and binding undertaking from the French.On such statements, it was the President of the French republic whomade the declaration, and as Head of State, his communications are ininternational relations act of the French State.

New Zealand v France, 1995

Benedict Nisperos

Case Title: REQUEST FOR ANEXAMINATION OF THE

SITUATION

International Court of JusticeThe Hague
http://en.wikipedia.org/wiki/Latinhttp://en.wikipedia.org/wiki/Latinhttp://en.wikipedia.org/wiki/Latinhttp://en.wikipedia.org/wiki/List_of_Latin_phraseshttp://en.wikipedia.org/wiki/List_of_Latin_phraseshttp://en.wikipedia.org/wiki/Audi_alteram_partem#cite_note-0http://en.wikipedia.org/wiki/Audi_alteram_partem#cite_note-0http://en.wikipedia.org/wiki/Latinhttp://en.wikipedia.org/wiki/List_of_Latin_phraseshttp://en.wikipedia.org/wiki/Audi_alteram_partem#cite_note-0


26/66

IN ACCORDANCE WITHPARAGRAPH 63 OF THE COURT'S

JUDGMENTOF 20 DECEMBER 1974 IN THE

NUCLEAR TESTS

(NEW ZEALAND v. FRANCE) CASE

Facts:

1. The case originated from an application from New Zealand in 1973regarding the Nuclear Tests of France it is conducting near its shores andwithin its atmospheric coverage. The Court ruled for France and the decisionin 1974 provides for continuation of the case if the basis of such judgmenthas been affected.

2. This is a "Request for an Examination of the Situation" in accordance withparagraph 63 of the Court's 1974 Judgment in the Nuclear Tests Case (NewZealand v. France) in view of the recent development that France isconducting Nuclear tests using underground detonation;

3. The request arose out of a proposed action announced by France whichwill, if carried out, affect the basis of the Judgment rendered by the Court on20 December 1974 in the Nuclear Tests Case (New Zealand v. France)"; andthat "the immediate circumstance giving rise to the present phase of theCase is a decision announced by France in a media statement of 13 June1995" by the President of the French Republic, according to which "Francewould conduct a final series of eight nuclear weapons tests in the SouthPacific starting in September 1995".

4. New Zealand said that the rights for which it seeks protection all fallwithin the scope of the rights invoked in paragraph 28 of its Application of1973, but this time time, it seeks recognition only of those rights that wouldbe adversely affected by entry into the marine environment of radioactivematerial as a result of the further tests to be carried out at Mururoa orFangataufa Atolls.

5.NZ is claiming entitlement to protection and to the benefit of a properly

conducted Environmental Impact Assessment with the ff. assignment:

1. that the conduct of the proposed nuclear tests will constitute aviolation of the rights under international law of New Zealand, as well as of

other States;

2. that it is unlawful for France to conduct such nuclear tests before ithas undertaken an Environmental Impact Assessment according toaccepted international standards. Unless such an assessment establishesthat the tests will not give rise, directly or indirectly, to radioactivecontamination of the marine environment the rights under international lawof New Zealand, as well as the rights of other States, w ill be violated."

Prayer for the Following Provisional Remedies:

(1) that France refrain from conducting any further nuclear tests atMururoa and Fangataufa Atolls;

(2)that France undertake an environmental impact assessment of theproposed nuclear tests according to accepted international standards andthat, unless the assessment establishes that the tests will not give rise toradioactive contamination of the marine environment, France refrain fromconducting the tests;

(3)that France and New Zealand ensure that no action of any kind istaken which might aggravate or extend the dispute submitted to the Courtor prejudice the rights of the other Party in respect of the carrying out ofwhatever decisions the Court may give in this case".

6. Submission for Interventions were made by Australia, Samoa,

Solomon Islands, the Marshall Islands and the Federated States ofMicronesia, as well as to the declarations on intervention made by the lastfour States.


27/66

New Zealands Arguments

1. The request is covered by Nsprevious application in 1973. There isa link with its Request to the 1973

case. New Zealand's view was thatthe 1973 case concerned the generalsubject of nuclear contamination bynuclear testing of any kind, and wastherefore wide enough to includenuclear contamination byunderground tests.

2. New

PIL Case Briefs 2- Sources of International Law

Documents

Transcript of PIL Case Briefs 2- Sources of International Law