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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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