McRae Readings

8/3/2019 McRae Readings

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Public International Law P a g e | 1

CHAPTER 1 SOURCES OF INTERNATIONAL LAW

Art. 38(1) of the Statue of International Court of Justice1. International Conventions2. International Custom3. General principles of law4. Subsidiary means for the determination of rules of law

a. Judicial decisionsb. Teachings of the most highly qualified publicists

TREATY International agreement concluded between States in written form and

governed by international law, whether embodied in a single instrument orin 2 or more related instruments and whatever its particular designation

Reasons why the expression treaties should be employed rather thaninternational agreementsa. Treaty is very common and its use is steadily increasingb. Juridical differences lie almost exclusively in the method of conclusion

and entry into force and these spring exclusively from the content ofthe agreement, whatever its form

c. An extraordinarily varied nomenclature has developed which serves toconfuse the question of classifying international agreements

d. The term treaty as a generic term embraces all kinds ofinternational agreements in written form is accepted by the majorityof jurists

e. Term treaty, as used in draft articles, covers only internationalagreements made between 2 or more States, however, this does notintend to deny that other subjects of international law may concludetreaties

f. The phrase governed by international law serves to distinguishbetween international agreements required by public internationallaw and those which are regulated by the national law of one of thepartieso The element of intention is embraced in the phrase governed by

international lawg. However, this does not deny the legal force of oral agreements under

international law

Capacity of States to Conclude Treaties Intl Law Commission Commentary: treaty-making capacity is vested

exclusively in the Federal government, but there is no rule of internationallaw which precludes the component States from being vested with powerto conclude treaties with third States

Representatives of the State to conclude treaties must have1. Appropriate full powers2. Appeared from the practice of the States concerned or from other

circumstances that their intention was to consider that person asrepresenting the State for such purposes and to dispense with fullpowers

Representatives of the State not having to produce full powers:1. For all acts relating to the conclusion of a treaty

a. Heads of Stateb. Heads of Governmentc. Ministers for Foreign Affairs

2. For adopting the text of a treatya. Heads of Diplomatic missionsb. Representatives accredited by States to an international

conference or to an international organization or one of its organs An act relating to the conclusion of a treaty performed by a person who

cannot be considered as authorized to represent a State for that purpose is

without legal effect unless afterwards confirmed by that State

Adoption of the Text of a Treaty Takes place by the consent of all the States participating in its drawing

except at an international conference where two-thirds vote of the Statespresent and voting is needed unless by the same majority, they shalldecide to apply a different rule

Unanimity remains the general rule for bilateral treaties and for treatiesdrawn up between few States

Means of Expressing Consent to be bound by a Treaty1. Signatureprovides an effect to be bound when

a. Treaty provides that signature shall have the effectb. Negotiating States agreed that signature should have the effectc. Intention of the State to give effect appears from the full powers

of its representative or was expressed during negotiationd. Signature ad referendum by a representative, if confirmed by his

State, constitutes full signature of the treaty2. Exchange of instruments constituting a treatyprovides an effect to be

bound whena. Instruments provide sob. Agreed by the States

3. Ratification provides an effect to be bound whena. Treaty provides sob. Agreed by the Statesc. Representative of the State has signed the treaty subject to

ratification

d. Intention of the State appears from the full powers of itsrepresentative or was expressed during negotiation

4. Acceptanceestablished as a name given to new procedures: ratificationand accessiono Forms of acceptance:

a. Act establishing the States consent to be bound after a priorsignature

b. Without any prior signature5. Approval or Accession

o Signature subject to approvalo Accessiontraditional method

1. Treaty provides so2. Agreed by the States3. Subsequently agreed by all the parties6. By any other means if so agreed


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Exchange or deposit of instruments of ratification, acceptance, approval oraccession

1. Exchange between contracting States2. Deposit with the depositary3. Notification to the contracting States or to the depositary, if so agreed Treaty is in force at the moment of exchange because the act of deposit

establishes the legal nexus

Obligation not to defeat the object and purpose of a treaty prior to its entry into

force An obligation of good faith to refrain from acts calculated to frustrate theobject of the treaty attaches to a State which has signed a treaty subjectto ratification

Treaty-Making Power in Canada This is a part of the royal prerogative There is no obligation at law upon the government to submit treaties to

Parliament, either before or after their signature since treaties are notpart of the law of the land

Reservations to Treaties Allowed unless

1. Reservation is prohibited by the treaty2. Treaty provides that only specified reservations may be made3. Reservation is incompatible with the object and purpose of the treaty

Each State which is a party to the Convention is entitled to appraise thevalidity of the reservation, and it exercises this right individually and fromits own standpoint

No State can be bound by a reservation to which it has not consentedAcceptance of and Objection to Reservations

1. Reservation expressly authorized by a treaty does not require subsequentacceptance by other contracting States unless the treaty so provides

2. Application of the treaty in its entirety between all parties is an essentialcondition, a reservation requires acceptance by all the parties

3. When a treaty is a constituent instrument of an international organization,a reservation requires the acceptance of the competent organ of thatorganization

Objection by another contracting State to a reservation does not precludethe entry into force of the treaty as between the objecting and reservingStates unless a contrary intention is definitely expressed by the objectingState

A reservation is considered to have been accepted by a State if it shallhave raised no objection to the reservation by the end of 12 months afterit was notified of the reservation or by the date on which it expressed itsconsent to be bound by the treaty, whichever is later

Legal Effects of Reservations and of Objections to Reservation1. Modifies the provisions to the same extent for that other party in its

relations with the reserving State

2. Reservation does not modify the provisions of the treaty for the otherparties to the treaty inter se

3. When a State objecting to a reservation has not opposed the entry intoforce of the treaty, provisions to which the reservation relates do notapply as between the 2 States to the extent of the reservation

Withdrawal of Reservations and of Objections to Reservations1. Consent of a State which has accepted the reservation is not required for

its withdrawal

2.

Objection to a reservation may be withdrawn at any time3. Withdrawal of a reservationnotice is required4. Withdrawal of an objectionnotice is also required

Procedure regarding Reservations1. Must be formulated in writing2. Must be communicated to the contracting States3. Considered as having been made on the date of its confirmation4. Withdrawal of a reservation or of an objection to a reservation must be

formulated in writing

Points to remember about Reservation and Objection1. If the reservation is compatible with the object and purpose of the

Convention, reserving State is considered as a party to the Convention

2. If the reservation is incompatible with the object and purpose of theConvention, reserving State is not considered as a party to the Convention

3. Objection to a reservation made by a signatory State which has not yetratified the Convention can have the legal effect only upon ratification

Interpretation to Treaties1. Made in good faith and in accordance with the ordinary meaning given to

the terms of the treaty in their context and in the light of its object andpurpose

2. Supplementary means of interpretation area. Preparatory work of the treatyb. Circumstances of its conclusion

Preemptory Norms of International Law (Jus cogens) A norm accepted and recognized by the international community of States

as a whole as a norm from which no derogation is permitted and which canbe modified only by a subsequent norm of general international lawhaving the same character

Examples ofjus cogens:a. Treaty contemplating an unlawful use of force contrary to the

principles of the Charterb. Treaty contemplating the performance of any other act criminal

under international lawc. Treaty contemplating or conniving at the omission of acts such as

trade in slaves, piracy, or genocide, in the suppression of whichevery State is called upon to cooperate


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Withdrawal and Termination1. In conformity with the provisions of the treaty2. At any time by consent of all parties Not subject to denunciation unless

1. Parties agree2. Implied in the nature of the treaty

A treaty is terminated if all the parties to it conclude a later treatyrelating to the same subject matter and the parties intended that thematter should be governed by that treaty

Fundamental Change of Circumstances (Rebus sic stantibus) Fundamental change of circumstances may not be invoked as a ground for

terminating or withdrawing from the treaty1. If the treaty establishes a boundary2. Fundamental change is the result of a breach by the party invoking it

Fundamental change of circumstances may be invoked as a ground forterminating or withdrawing from the treaty when1. Existence of those circumstances constituted an essential basis of the

consent2. Effect of the change is radically to transform the extent of obligations

still to be performed under the treaty

POWERS OF CORPORTAION OF THE CITY OF OTTAWA AND THE CORPORATION OFTHE VILLAGE OF ROCKLIFFE PARK TO LEVY RATES ON FOREIGN LEGATIONS AND

HIGH COMMISSIONERS RESIDENCES

FACTS:Properties owned and occupied by the High Commissioner for the UK and the HighCommissioner for the Commonwealth of Australia, the powers of the Council of theCorporation of the City of Ottawa do not extend to these properties since they areembraced within the expressed exemption of Crown property by enactments of theAssessment Act.

The Attorney-General of Canada admitted that the rates with which the Courtmust deal in its answers do not include the charges imposed as for services

rendered and commodities supplied, for example, water rates or charges forelectricity.

A foreign Minister is not subject to the laws of the State to which he has been sent;he enjoys an entire independence of the jurisdiction and authority of the latterState. As a consequence, he is exempt from the jurisdiction of the courts of thecountry in which he resides as a diplomatic representative.

ISSUE:w/n a Provincial Parliament has legislative competence to levy rates or taxes onproperty of foreign governments owned and occupied as legations

HELD:

Solution is found in the remedies which the municipal corporations are empoweredto adopt in order to collect their taxes.

Assessed amounts of taxes against property owned and occupied by foreign statesare uncollectable; therefore, a necessary consequence of the legal impossibility ofcollecting taxes against foreign states or diplomats is that such taxes or rates maynot be assessed and levied on the properties owned and occupied by them and usedfor diplomatic purposes.

TRENDTEX TRADING CORP. v. CENTRAL BANK OF NIGERIAHELD:

What is the place of international law in our English law? 2 schools of thought:1. Doctrine of Incorporationrules of international law are incorporated intoEnglish law automatically and considered to be part of English law unlessthey are in conflict with an Act of Parliament; when the rules ofinternational law changes the English law changes as well

2. Doctrine of Transformationrules of international law are not to beconsidered as part of English law except in so far as they have beenalready adopted and made part of our law by the decisions of the judges,or by Act of Parliament, or long established custom; English law does notchange despite change in rules of international law

I now believe that the doctrine of incorporation is correct. Otherwise I do not seethat our courts could ever recognize a change in the rules of international law.When the rules of international law were changed (by the force of public opinion)so as to condemn slavery, the English courts were justified in applying the modern

rules of international law. It follows, too, that a decision of this court as to whatwas the ruling of international law 50 or 60 years ago is not binding on this courttoday. International law knows no rule of stare decisis.

CONVENTION ON RIGHTS AND DUTIES OF STATES (MONTEVIDEO)

Art. 1. The State as a person of international law should possess:1. Permanent population2. Defined territory3. Government4. Capacity to enter into relations with other states

HYDE (INTERNATIONAL LAW)

A State or person of international law must possess the following qualifications:1. There must be people sufficient in numbers to maintain and perpetuate

itself2. There must be fixed territory which the inhabitants occupy3. There must be organized government exercising in fact supremacy therein4. There must be an assertion of right through governmental agencies to

enter into relations with the outside worldthe possession and use of theright to enter into foreign relations

5. The inhabitants of the territory must have attained a degree ofcivilizationthose principles of law which by common assent govern the

members of the international society in their relations with each other


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CASE CONCERNING RIGHTS OF NATIONALS OF THE US IN MOROCCO

It is not disputed by the French Government that Morocco, even under theProtectorate, has retained its personality as a State in international law.

US can, therefore, not only recognize French Courts in Morocco, but also give up, inthe French Zone, the enjoyment of all privileges following from capitulations,without thereby losing this advantage.

ADMISSION TO LEAGUE OF LIECHTENSTEIN

The Government of the Principality of Liechtenstein has been recognized de jure bymany States and it possesses a stable Government and fixed frontiers.

Juridically, the Principality of Liechtenstein is a sovereign State, but by reason ofher limited area, small population, and her geographical position, she has chosen todepute to others some of the attributes of sovereignty.

We are of the opinion that the Principality of Liechtenstein could not discharge allthe international obligations which would be imposed on her by the Covenant.Hence, it was denied admission to the League of Nations.

STATEMENT OF FOREIGN SECRETARY OF GREAT BRITAIN

It is international law which defines the conditions under which a governmentshould be recognized de jure or de facto, and it is a matter of judgment in eachparticular case whether a regime fulfills the conditions.

De facto governmentnew regime has in fact effective control over most of theStates territory and that this control seems likely to continue.

De jure governmentnew regime should not merely have effective control overmost of the States territory, but that it should in fact be firmly established.

Recognition should be accorded when the conditions specified by international laware in fact fulfilled and that recognition should not be given when these conditionsare not fulfilled.

It sets up an international legal standard for recognition, it contains 3 rules:1. Conditions which any regime must satisfy in order to be recognized as the

government of a State are prescribed by international law2. These conditions are that the regime has effective control over most of the

States territory and that its control seems likely to continue3. If and only if these conditions are satisfied, it should, as a matter of

international obligation, be recognized as a government

The question whether a particular regime satisfies the conditions prescribed is not

one of fact but a matter of judgment.

Here lies the difference between the attitude of UK and US to recognition. The USregards the margin as a wide one into which moral factors may enter.

SENATE RESOLUTION 205

When US recognizes a foreign government and exchanges diplomaticrepresentatives with it, this does not of itself imply that US approves of the form,ideology, or policy of that foreign government.

CANADIAN PRACTICE ON THE RECOGNITION OF STATES

Effective controlthis involves a decision as to whether an authority, claiming to bethe government of a particular State, is in fact entitled to be regarded asrepresenting that State on the international plane.

1. Ability to exercise effective control2. Reasonable prospect of permanency3. Over the area which it claims to govern4. Support from the people of such territory

Political Considerationsit is a policy decision to determine, on the merits andcircumstances of each case, whether the legal conditions for recognition are

fulfilled. Granting of recognition by the Canadian Government to anothergovernment is not viewed as signifying approval of the policies of that government,or for that matter, of the political philosophy of that government or of the mannerin which it came into power.

Timing of Recognitiona key factor is that it ought not to be effected too early,inasmuch as this might in itself tend to constitute interference in the internalaffairs of a sovereign state. So long as the lawful government has a reasonableprospect of reasserting its authority, recognition would constitute a violation of thenon-intervention principle as set out in Art. 2[7] of UN Charter.

External Controlother tests for criteria for the recognition:a. Legitimacyb. Method of revolutionary changec. Freedom from external controla test for the recognition of States, not of

government

Recognition of a government presupposes recognition of the State governed by therecognized government. A state, in order to continue to qualify for recognition assuch, must first possess an independent government.

If it is considered in a particular case that the question is one of recognition of agovernment only, that is in itself a tacit admission that the government concernedis considered to be free from external control.


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BRITISH PRACTICE ON THE RECOGNITION OF STATES

The British Government recognizes States in accordance with common internationaldoctrine. The policy of successive British Governments has been that we shouldmake and announce a decision formally recognizing the new Government.

We shall continue to decide the nature of our dealings with regimes which come topower unconstitutionality in the light of our assessment of whether they are able of

themselves to exercise effective control of the territory of the State concerned,and seem likely to continue to do so.

WESTERN SAHARA CASEFACTS:In 1884, Western Sahara was colonized by Spain. General Assembly in 1966indicated that decolonization of Western Sahara should occur. Spain agreed to holda referendum under UN supervision in 1975. At this point, both Mauritania andMorocco made similar claims on the territory on the basis of an historic titlepredating Spains colonization.HELD:The principle of self-determination as a right of peoples, and its application for thepurpose of bringing all colonial situations to a speedy end were enunciated in the

Declaration on the Granting of Independence to Colonial Countries and Peoples.

Right to self-determinationright to freely determine their political status andfreely pursue their economic, social and cultural development.

General Assembly Resolution provided the basis for the process of decolonizationfor non-self governing territories:

1. Emergence as a sovereign independent State2. Free association with an independent Stateresult of a free and voluntary

choice by the peoples of the territory concerned expressed throughinformed and democratic processes

3. Integration with an independent Stateresult of the freely wishes of theterritorys peoples acting with full knowledge of the change in their status,

their wishes having been expressed through informed and democraticprocesses, impartially conducted and based on universal adult suffrage

RECOGNITION OS STATES: THE COLLAPSE OF YUGOSLAVIA

Recognition of states is not a matter governed by law but a question of policy. It istoday more of an optional and discretionary political act that was thought to be thecase a year ago.

I. The Baltic StatesThe 1920 Treaty between Russia and Latvia expressly states that the formerrecognizes without reservation the independence, autonomy and sovereignty of

Latvia and forever renounces all sovereignty rights over the Latvian people andterritory.

Baltic states, like other Soviet republics, asserted their sovereignty but theirinternational status did not change as a result.

Most Western countries continued to extend de jure recognition to the 3 states,they also accepted de facto control over these territories by the USSR and,accordingly, most Western countries did not have diplomatic relations with theBaltic states.

II.

Croatia and Slovenia UnrecognizedThe Republic of Croatia and Republic of Slovenia were 2 of the 6 republics of theSFRY.

A distinction was made between the nations of Yugoslavia and the republics ofYugoslavia. The former being peoples like the Croats, Macedonians, Serbs andSlovenes without any necessary geographic connection and the latter being the 6geographically defined federal units without any necessary ethnic connection. Asecond distinction was made between nations and nationalities with the latterbeing defined as members of nations whose native countries border on Yugoslavia.Accordingly, the Albanians of Kosovo and the Hungarians of Vojvodina wereregarded as nationalities and did not have a right of self-determination orsecession under the Constitution.

In 1991, both Croatia and Slovenia declared their independence. The ConstitutionalResolution Regarding the Sovereignty and Independence of the Republic of Croatiaadopted by the Croatian Parliament based its actions 'upon the will of the nationdemonstrated at the referendum of 1991,' and argued that 'the SFRY no longer isacting as the constitutional-legal organized state. The Slovenian Declaration is moreforthright in that it 'expects legal recognition from all countries which respect thedemocratic principles and the right of all nations to self-determination.

Yugoslav National Army resisted attempts by the Slovenian and Croatian authoritiesto assert their independence and considerable violence occurred. The EuropeanCommunity assumed the principal mediation role in the conflict and in 1991, theYugoslav parties meeting in Brioni agreed, interalia, to a 3 month moratorium onthe implementation of the Declarations of Independence.

Senator Evans identified the 4 formal criteria for the recognition of statehood as'permanent population, defined territory, government and a capacity to enter intorelations with other states' and then added 'we look at whether the government isin effective control of the territory.

Upon expiration of the 3 month moratorium, in the Declaration, 'all countries,particularly the Member States of the EC and the UN are called upon to establishdiplomatic relations with the Republic of Croatia.

III. Ukraines IndependenceUkraine had declared its sovereignty on 16 July 1990. Ukraine's Declaration ofIndependence was, however, made subject to the results of a referendum to be

held on 1 December 1991 and countries accordingly had good reason to hold offconsideration of recognition until that time.


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IV. The European Community Sets New RulesThe EC Foreign Ministers meeting in Brussels issued a 'Declaration on the Guidelineson the Recognition of the New States in Eastern Europe and in the Soviet Union'.Accompanying this Declaration was a 'Declaration on Yugoslavia'.

The Declaration begins by referring to the Helsinki Final Act and the Charter ofParis, 'in particular the principle of self-determination'. It affirms the readiness ofthe EC countries to recognize new states 'subject to the normal standards ofinternational practice and the political realities in each case.

The Guidelines describe the candidates for recognition as those new states which'have constituted themselves on a democratic basis, have accepted the appropriateinternational obligations and have committed themselves in good faith to apeaceful process and to negotiations'.

The Guidelines conclude with the warning that the EC countries 'will not recognizeentities which are the result of aggression' and, cryptically, that they would takeaccount of the effects of recognition on neighbouring states.'

This method of requiring an application for recognition which is examined by anarbitrator and then decided upon according to a set timetable is virtuallyunprecedented in recognition practice.

V. The Demise of Soviet UnionUSSR formally ceased to exist on 21 December 1991 when the 11 CIS participantsadopted the Alma-Ata Declaration which noted that 'with the formation of theCommonwealth of Independent States the Union of the Soviet Socialist Republicsceases to exist.

In relation to Russia, the term 'recognition' was therefore not used by the ECbecause these countries accepted Russia's continuity of the internationalpersonality of the Soviet Union. In the 23 December statement, the EC stated itswillingness to recognize the other former Soviet republics which met its Guidelines.

VI. Recognition of Croatia and SloveniaAll 6 Yugoslav republics responded to the invitation extended in the EC's Declarationon Yugoslavia but only 4 sought recognition. The 4 republics of Yugoslavia requested

recognition and undertook to comply with the requirements listed in the EC'sGuidelines. The requests were backed by various republican constitutional andlegislative documents.

The Badinter Commission held that because 'the right of self-determination mustnot involve changes to existing frontiers' the Serbian minorities are entitled to therights accorded to minorities (as opposed to peoples) under international law.Opinion 3 decided that the principle of utipossidetis has general application andthus applies to the republican borders of Yugoslavia in the context of its currentdissolution.

In 1992, basing themselves on the opinions of the Badinter Commission, the ECdecided to extend recognition to Croatia and Slovenia.

VII. Recognition of the Republic of Bosnia and HerzegovinaIn Bosnia and Herzegovina's admission to the UN, the UN Security Council hadunanimously recommended this country's membership and the General Assemblyhad unanimously accepted the recommendation.

However, the Badinter Commission held that although the various constitutionalprocesses had been followed in the request to the EC for recognition, the absenceof a referendum on the subject meant that 'the will of the peoples of Bosnia-Herzegovina to constitute [the republic] as a sovereign and independent State

cannot be held to have been fully established.

Despite such opinion, the EC countries and the US moved to recognize Bosnia andHerzegovina on 7 April 1992. The US statement noted in relation to Bosnia andHerzegovina, Croatia and Slovenia that these states 'meet the requisite criteria forrecognition' but did not spell these out.

VIII. The Political Realities in Each CaseThere have always been exceptions to the rule, but the international communityhad generally come to accept the traditional criteria for statehood as the propermeans for taking decisions on recognition. The reason for this is that these criteriaprovide a way of maintaining consistency as well as a defense against doubtfulclaims. They were found to be useful tools.

EC countries took the view that recognition should be used more as an instrumentof foreign policy rather than a formal declaration of an ascertainable fact.

IX. ConditionalityIn introducing their Guidelines in relation to Eastern Europe, the EC also departedfrom another basic understanding in relation to recognition practice. It had beenthought that the setting of conditions with respect to such matters as religiouspractices, the level of 'civilization' and the applicable political system wereimproper because they implied a value judgment about how the new state shouldbe organized.The effect is that the EC has moved away from the process of recognition as theformal acceptance of a fact to a process based on value judgments and throughwhich the international community tries to create a fact.

While the EC Guidelines are stated to be 'subject to the normal standards ofinternational practice,' their application in fact has thrown doubt on the relevanceof the traditional criteria for statehood. There has been widespread recognition ofa state which has no control over 1/3 of its territory (Croatia). A country has beenadmitted to the UN while it was clear that its government had no effective controlover any areas including the capital city (Bosnia and Herzegovina). A putativecountry (Macedonia) is being denied recognition because a neighbouring countryobjects to its name even though it meets all traditional criteria and appears tomeet the conditions set by the EC.

There is also uncertainty as to the effect of the conditionalities. The EC considersthe conditions it has set to be factors determining recognition decisions. The US, on

the other hand, has used the human rights and non-proliferation conditions as a test


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of whether to enter into diplomatic relations with the new states it has alreadyrecognized.

X. Questions of Secession and FrontiersThe decolonization period may be said to be characterized by 2 broadpolitical/legal considerations: (a) support for the sanctity of inherited nationalborders and the (b) unacceptability of secession.

The authorities in Belgrade have from the outset viewed the struggle forindependence by Croatia and Slovenia as a question of secession. In Zagreb andLjubljana, on the other hand, it was seen as a legitimate process of self-determination leading to the dissolution of the original state. The BadintcrCommission's Opinions 1 and 8 support the view that this was not a matter ofsecession but one of the dissolution of the federal state.

The Badinter Commission was also asked whether the internal boundaries, forexample between Croatia and Serbia, can be regarded as frontiers in terms ofpublic international law. In its opinion, such boundaries could not be changedexcept by agreement and upon independence the internal republican boundariesbecome international frontiers. The Commission reached this conclusion by theapplication of the principle of uti possidetis which although it was 'initially appliedin settling decolonization issues in America and Africa, is today recognized as ageneral principle.

XI. Continuity of International PersonalityBrownlie notes that 'the term "continuity'' of States is not employed with anyprecision and may be used to preface a diversity of legal problems.' For example,alterations of territory as such do not affect the identity of a state. But the break-up of a federation into its constituent parts is fundamentally more than a merechange of territory. In view of the imprecision in the concept, it is difficult to doanything other than to treat each case on its individual merits.

XII. Limitations on the Applicability of these PrecedentsThe first point to ask is whether recent practice should be seen as geographicallylimited to Europe alone. It is certainly the case that the statements and guidelinesissued on these matters were restricted in their headings to the particular facts

under review.It could also be validly argued that the European stage is sui generis because of theparticular historical circumstances in that continent. While this argument may be acomfort to some because it would suggest that the break-up of the Soviet Union andof Yugoslavia is a precedent only for other federal countries of Eastern Europe suchas the Czech and Slovak Federal Republic and perhaps the Russian Federation, it isdifficult to accept such a limitation.

Many of the principles referred to in this process, such as the principle of self-determination, the principle of uti possidetis, the proscription against the ducat oruse of force and the insistence on disputes being settled by peaceful means are ofuniversal application. Their application leading to certain results in Europe mustrun parallel to the results their application would lead to in other continents.

XIII. ConclusionsQuestion of recognition of states has become less predictable and more a matter ofpolitical discretion as a result of recent practice. The traditional criteria forstatehood retain an uneasy existence alongside the new EC Guidelines, which havebeen particularly influential in relation to the recognition of the new statesemerging from the USSR and Yugoslavia.

It now seems that the 'political realities' have gained primacy over the inclinationsto maintain consistency by applying accepted criteria to test the fact of statehood.This should not be seen as necessarily a negative development. The application ofthe traditional criteria as the test for statehood and therefore the rationale behindrecognition was largely amoral. How a government came to be in effective controlover its territory was, for the most part, not considered to be a relevant factor. Theadoption of conditions leading to recognition is an attempt to introduce a greatermoral dimension. Yet the enemy of such a moral stand is inconsistency, the veryfactor which the traditional criteria tried to avoid. And mere can be fewer betterexamples of inconsistency than the continuing refusal to recognize theindependence of the former Yugoslav Republic of Macedonia even though it meetsevery criterion and every condition but simply refuses to change its name. The'political realities' in this case seem to have more to do with internal EC politicsthan with the merits of the Macedonian case.

When considering a question of recognition, states will have to ask themselves

questions about whether such an action will contribute to a peaceful resolution of aconflict, and if the answer is in the affirmative, the traditional criteria forstatehood may well have to be finessed.

THE COMMONWEALTH OF AUSTRALIA v. THE STATE OF NEW SOUTH WALESFACTS:Commonwealth has sued the State of New South Wales for damages by a collisionbetween a vessel belonging to the defendant and a motor-launch belonging to theplaintiff.The question arising from the defendants summons is whether this Court hasjurisdiction to entertain this action, without the consent of the State.

The Commonwealth maintains that there is jurisdiction and rests primarily on Sec.75 of the Constitution.

The contention urged at the Bar on behalf of the defendant was1. That it is a sovereign State and therefore cannot be sued without its

consent2. That no actual consent has been given3. The jurisdiction given by the Constitution is conditioned on Parliament

Defendant contends that an Australian State is a sovereign State. Learned counselplaced the matter on the same plane as a foreign independent State, therepresentative and said that consent of the foreign State was necessary, and soof an Australian State.


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HELD:Under the Parlement Bedge, as a consequence of the absolute independence ofevery sovereign authority and of the international comity, each State declines toexercise by means of any of its Courts any of its territorial jurisdiction over theperson of any sovereign or ambassador, or over the public property of any Statewhich is destined to its public use, or over the property of any ambassador, thoughsuch sovereign, ambassador, or property be within its territory.

New South Wales is not a foreign country. The Commonwealth includes the peopleof New South Wales as they are united with their fellow Australians as one peoplefor the higher purposes of common citizenship, as created by Constitution. Whenthe Commonwealth is present in Court as a party, the people of New South Walescannot be absent. It is only where the limits of the wider citizenship end that theseparateness of the people of a State as a political organism can exist.

THE WEEKLY REST IN INDUSTRIAL UNDERTAKINGS ACT

The Parliament of Canada has the power to implement international agreementsamount matters that normally come within the jurisdiction of provinciallegislatures.

The Lieutenant-Governors represent the Crown for certain purposes. But, in no

respect does the L-G of a province represent the Crown in respect of relations withforeign governments.

Provinces have no status in international law, they are not States and are notrecognized as such.

INTERNATIONAL STATUS OF SOUTH-WEST ASIAFACTS:Territory of South West Africa was one of the German overseas possession. TheTreaty of Versailles renounced all her rights and titles in favor of the PrincipalAllied and Associated Powers.

When territories had ceased to be under the sovereignty of the States whichformerly governed them and inhabited by peoples not yet able to assume fullmeasure of self-government, 2 principles were considered to be paramountimportance:

1. Non-annexation2. Well-being and development of such peoples form a sacred trust of

civilization

A Mandate System was created to give practical effect to these principles. Atutelage was to be established for these peoples, and this was to be entrusted tocertain advanced nations and exercised by them as mandatories on behalf of theLeague.

A Mandate for the Territory of South East Africa was conferred upon His BritannicMajesty to be exercised on his behalf by the Government of the Union of SouthAfrica.

The Union of South Africa was to have full power of administration and legislationover the Territory subject to such local modifications as circumstances may require.The Council of the League was to supervise the administration.

The terms of this Mandate show that the creation of this new internationalinstitution did not involve any cession of territory or transfer of sovereignty to theUnion of South Africa.

CONTENTION:It is now contended on behalf of the Union Government that this Mandate haslapsed because the League has ceased to exist

HELD:Such contention was based on a misconception. The League was not a mandate inthe sense used in the national law of certain States. It had only assumed aninternational function of supervision and control.

The Mandate was created, in the interest of the inhabitants of the territory and ofhumanity in general, as an international institution with an international object.

The international obligations assumed by the Union of South Africa were of 2 kinds:1. Directly related to the administration of the Territory and corresponded to

the sacred trust of civilizationgeneral obligation is to promote to theutmost the material and moral well-being and the social progress of theinhabitants

2. Related to the machinery for implementation linked to the supervision andcontrol of the League

Since their fulfillment did not depend on the existence of the League of Nations,they could not be brought to an end merely because this supervisory organ ceasedto exist. Nor could the right of the population to have the Territory administered inaccordance with these rules depend thereon.

RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY OF THE UN1. Reaffirms the provisions of the General Assembly Resolution 1514 the people

of South West Africa have the inalienable right to self-determination, freedomand independence in accordance with the Charter of UN

2. Reaffirms that South West Africa is a territory having international status3. Decides that the Mandate exercised by the Government of the Union of South

Africa is therefore terminated, that South Africa has no other right toadminister the Territory, and that South West Africa comes under the directresponsibility of the UN


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LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF SOUTHAFRICA IN NAMIBIADOCTRINE:

1. The continued presence of South Africa in Namibia being illegal, SouthAfrica is under obligation to withdraw its administration from Namibiaimmediately and thus put an end to its occupation of the Territory

2. States Members of the UN are under obligation to recognize the illegalityof South Africas presence in Namibia and the invalidity of its acts onbehalf of or concerning Namibia, and to refrain from any acts and inparticular any dealings with the Government of South Africa implyingrecognition of the legality of, or lending support or assistance to, suchpresence and administration

3. That it is incumbent upon States which are not Members of the UN to giveassistance, within the scope of subparagraph (2) above, in the action whichhas been taken by the UN with regard to Namibia

HISTORY:The mandates system established by Article 22 of the Covenant of the League ofNations was based upon 2 principles of paramount importance: the principle of non-annexation and the principle that the well-being and development of the peoplesconcerned formed a sacred trust of civilization.

The mandatory was to observe a number of obligations, and the Council of the

League was to see that they were fulfilled. The rights of the mandatory as such hadtheir foundation in those obligations.

When the League of Nations was dissolved, the raison detre and original object ofthese obligations remained. Since their fulfilment did not depend on the existenceof the League, they could not be brought to an end merely because the supervisoryorgan had ceased to exist.HELD:Under the UN Charter, party which disowns or does not fulfil its obligations cannotbe recognized as retaining the rights which it claims to derive from therelationship. Resolution 2145 determined that there had been a material breach ofthe Mandate, which South Africa had in fact disavowed.

Under the Vienna Convention on the Law of Treaties, only a material breach of atreaty justifies termination, and such breach being defined as:

1. A repudiation of the treaty not sanctioned by the present Convention2. Violation of a provision essential to the accomplishment of the object or

purpose of the treaty

Resolution 2145 determines that both forms of material breach had occurred in thiscase. South Africa has, in fact, disavowed the Mandate, and the General Assemblydeclared, in fact, that it had repudiated it.

The general principle of law is that a right of termination on account of breachmust be presumed to exist in respect of all treaties, except as regards provisionsrelating to the protection of the human person contained in treaties of a

humanitarian character. The silence of a treaty as to the existence of such rightcannot be interpreted as implying the exclusion of such right which has its source

outside of the treaty, in general international law, and is dependent on theoccurrence of circumstances which are not normally envisaged when a treaty isconcluded.

REPARATIONS FOR INJURIES SUFFERED IN THE SERVICE OF THE UNISSUE:w/n the UN has the capacity to bring an international claim in the event that anagent of the UN, in the performance of his duties, suffered an injury incircumstances involving the responsibility of the State

HELD:Competence to bring an international claim is the capacity to resort to thecustomary methods recognized by international law for the establishment,presentation and settlement of claims.

This capacity belongs to the State; a State can bring an international claim againstanother State. Such a claim takes the form of a claim between 2 political entities,equal in law, similar in form and both the direct subjects of international law.

When the Organization brings a claim against one of its Members, this claim will bepresented in the same manner, and regulated by the same procedure. TheOrganization is an international person. What it means is that it is a subject of

international law and capable of possessing international rights and duties, and thatit has capacity to maintain its rights by bringing international claims. However, thatis not the same thing as saying that it is a State, which it certainly is not, or that itslegal personality and rights and duties are the same as those of a State.

LAUTERPACHT, AN INTERNATIONAL BILL OF THE RIGHTS OF MAN

First constitutional instruments of modern time s to proclaim that the natural rightsof man were part of the fundamental law of the State and that their protection wasthe reason for its existence:

1. Constitution of Virginia 17762. American Declaration of Independence3. French Declaration of the Rights of Man and of the Citizen

The sovereign State, in an exclusive and unprecedented ascendancy of power,became the unsurpassable barrier between man and the law of mankind. Thehuman being became, in the offensive, but widely current, terminology of theexperts, a mere object of international law.

Treaties of a humanitarian character were concluded for protecting the individualin some specified spheres. But the fundamental claims of human personality toequality, liberty, and freedom against the arbitrary will of the State remainedoutside the orbit of international law save for the precarious and controversialprinciple of humanitarian intervention.


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EXTRACT FROM THE JUDGMENT OF THE NUREMBERG TRIBUNALISSUE:w/n an individual could be held personally responsible for executing Acts of hisState

HELD:International law imposes duties and liabilities upon individuals as well as uponstates has long been recognized. For example, crimes against international law arecommitted by men, not by abstract entities, and only by punishing individuals whocommit such crimes can the provisions of international law be enforced.

The principle of international law, which under certain circumstances, protects therepresentatives of a State, cannot be applied to acts which are condemned ascriminal by international law.

DISPUTE BETWEEN TEXACO OVERSEAS PETROLEUM CO. AND THE GOVERNMENTOF THE LIBYAN ARAB REPUBLIC

To say that international law governs contractual relations between a State and aforeign private party neither means that the latter is assimilated to a State nor thatthe contract entered into with it is assimilated to a treaty.

The rules of economic international law concern not only States but directly theindividuals; because economic and social progress has as its objective to assure itsdirect application to those concerned. The result is that individuals are directly thesubjects of economic or social international law.

Legal international capacity is not solely attributable to a State and thatinternational law encompasses subjects of a diversified nature. Other subjectsenjoy only limited capacities which are assigned to specific purposes.

Unlike a State, the private person has only a limited capacity and his quality as asubject of international law does enable him only to invoke, in the field ofinternational law, the rights which he derives from the contract.

When a State recognizes its partner to such a contract as a subject of internationallaw, the private partner is recognized as a subject of only those rights and duties,as are embodied in the contracts concerned.

In the matter of contract, the international personality and capacity of theindividual depend on the recognition granted to them by the State in its legalrelations with him.

INTERNATIONAL CRIMINAL COURT

Jurisdiction, Admissibility and Applicable Law The jurisdiction of the court is limited to the most serious crimes of concern to

the international community as a wholea. Genocide

b. Crimes against humanityc. War crimesd. Crime of aggression once a provision defining it and setting out the

conditions is adopted by the State Parties to the Statute

Exercise of jurisdiction is triggered by aa. referral to the Prosecutor by a State Partyb. referral to the Prosecutor by the Security Councilc. investigation initiated motu propio by the Prosecutor

Double jeopardy applies

Investigation and Prosecution Investigation initiated by the Prosecutor after prior evaluation of theinformation

Pre-trial Chamber oversees the prosecutorial investigations and ensure thatthe defendants rights are protected

After investigation, Pre-trial Chamber issues a warrant of arrest of a person ifthere are reasonable grounds to believe that the person has committed a crimewithin the jurisdiction of the Court

TrialTrial in absentiais not allowed

Reparations to victims are provided for

Penaltiesa. Imprisonment may not exceed a maximum of 30 yearsb. Life imprisonmentc. Fines and forfeiture of the proceeds, property and assets derived from a

crime

Death penalty is excluded

Appeal and Revision Grounds:

a. Procedural errorb. Error of factc. Error of law

Enforcement Sentences of imprisonment shall be served in States which have indicated theirwillingness to accept sentenced persons

If no State is designated, sentence shall be served in a prison facility madeavailable by the Host State

Principle of Complementarity ICC can only step in when national authorities are unwilling or unable to act


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Final ClausesReservations to the Statute are not permitted

DIRECT v. INDIRECT OBLIGATIONS OF CORPORATIONS UNDER INTERNATIONALLAW

The classic model does not insist that only State conduct can give rise to a violationof international law. On this basis, it has been argued that the conduct of acorporation might give rise to a violation of international law in failed states: ifthere is a complete non-regulation of corporate activities and infringement ofhuman rights results from the corporations activities. In such circumstances, theconduct of the corporation would be attributable to the state for purposes ofinternational law.

Similarly, the conduct of non-state actors can give rise to responsibility underinternational law if and to the extent that the State acknowledges and adopts theconduct in question as its own.

Though seemingly quite formal, the distinction between obligations imposeddirectly by international law and those imposed indirectly is of some importance toboth sates and non-states actors addressed by the norm. For corporate managersand directors, the difference is potentially crucial. If international law imposes

obligations on corporations only indirectly, then managers and directors needconcern themselves, as legal matter, only with the domestic laws of the States inwhich they operate. If international law directly imposes obligations oncorporations, the corporation will be potentially subject to enforcement action byinternational institution, either in existence or created after the fact.

ISLAND OF PALMAS CASEFACTS:The origin of the dispute is to be found in the visit paid to the Island of Palmas(Miangas) by General Leonard Wood, who was then Governor of the Province ofMoro. This visit led to the statement that the Island of Palmas, undoubtedlyincluded in the archipelago known as the Philippine Islands, as delimited by Art. 3

of the Treaty of Peace between US and Spain, and cede in virtue of the said articleto the US, was considered by the Netherlands as forming part of the territory oftheir possession in the East Indies.

The Arbitrators remarks: Sovereignty in relation to a portion of the surface of theglobe is the legal condition necessary for the inclusion of such portion in theterritory of any particular State, this is called territorial sovereignty.

Sovereignty in the relations between States signifies independence. Independencein regard to a portion of the globe is the right to exercise therein, to the exclusionof any other State, the functions of a State.

Territorial sovereignty is, in general, a situation recognized and delimited in space,

either by so-called natural frontiers as recognized by international law or byoutward signs of delimitation that are undisputed, or else by legal engagements

entered into between interested neighbors, such as frontier conventions, or by actsof recognition of States within fixed boundaries.

If a dispute arises as to the sovereignty over a portion of territory, it is customaryto examine which of the States claiming sovereignty possesses a titlecession,conquest, occupation, etc.superior to that which the other State might possiblybring forward against it.

If the contestation is based on the fact that the other Part has actually displayedsovereignty, it cannot be sufficient to establish the title by which territorialsovereignty was validly acquired at a certain moment; it must also be shown thatthe territorial sovereignty has continued to exist and did exists at the momentwhich for the decision of the dispute must be considered as critical actual displayof State activities.

Titles of acquisition of territorial sovereignty in present-day international law areeither based on the act of effective apprehension, such as occupation or conquest,or, like cession, presupposes that the ceding and the cessionary Powers or at leastone of them, have the faculty of effectively disposing of the ceded territory. Thefact of peaceful and continuous display is still one of the most importantconsiderations in establishing boundaries between States and is as good as a title.

Territorial sovereignty involves the exclusive right to display the activities of a

State. This right has as corollary a duty: the obligation to protect within theterritory the rights of other States, in particular their right to integrity andinviolability in peace and in war, together with the rights which each State mayclaim for its nationals in foreign territory.

In International law, the structure of which is not based on any super-Stateorganization, cannot be presumed to reduce a right such as territorial sovereignty,with which almost all international relations are bound up, to the category of anabstract right, without concrete manifestations. While municipal law is able torecognize abstract rights of property as existing apart from any material display ofthem.

ISSUE:

w/n a title is valid erga omnes where no conventional line of sufficienttopographical precision exists or if there are gaps in the frontiers otherwiseestablished

The title alleged by the US as constituting the immediate foundation of its claim isthat of cession, brought about by the Treaty of Paris, which cession transferred allrights of sovereignty which Spain may have possessed in the region indicated in Art.3 of the said Treaty.

HELD:The effects of discovery by Spain are to be determined by the rules of internationallaw in force in the first half of the 16th century.

If we are to consider as positive law at the period in question the rule thatdiscovery as such, mere fact of seeing the land without any act, even symbolical, of


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taking possession, involved ipso jure territorial sovereignty and not merely aninchoate title, ajus ad rem, to be completed eventually by an actual and durabletaking of possession within a reasonable time, the question arises whethersovereignty yet existed at the critical date, the moment of conclusion and cominginto force of the Treaty of Paris.

Discovery alone, without any subsequent act, cannot at the present time suffice toprove sovereignty over the Island of Palmas; and in so far as there is no sovereignty,the question of an abandonment properly speaking of sovereignty by one State norder that the sovereignty of another may take its place does not arise.

An inchoate title of discovery must be completed within a reasonable period by theeffective occupation of the region claimed to be discovered. This principle must beapplied in the present case, for the reasons given with regard to the rulesdetermining which of successive legal systems is to be applied (the so-calledintertemporal law).

An inchoate title could not prevail over the continuous and peaceful display ofauthority by another State; for such display may prevail even over a prior,definitive title put forward by another State.

Title arising out of contiguityislands relatively close to their shores belonged tothem in virtue of their geographical situationit is impossible to show the existence

of a rule of positive international law to the effect that islands situated outsideterritorial waters should belong to a State from the mere fact that its territoryforms the terra firma (nearest continent or island of considerable size).

The principle of contiguity, in regard to islands, may not be out of place when it isa question of allotting them to one State rather than another, either by agreementbetween the Parties, or by a decision not necessarily based on law; but as a ruleestablishing ipso jure the presumption of sovereignty in favor of a particular State,this principle would be in conflict with what has been said as to territorialsovereignty and as to the necessary relation between the right to exclude otherStates from a region and the duty to display therein the activities of a State.

US based their claim on the titles of discovery, of recognition by treaty and of

contiguity but they have not established the fact that sovereignty so acquired waseffectively displayed at any time.

Netherlands, on the contrary, found their claim to sovereignty essentially on thetitle of peaceful and continues display of State authority over the island. Since thistitle in international law would prevail over a title of acquisition of sovereignty notfollowed by actual display of State authority, it is necessary to ascertain in the firstplace, whether the contention of Netherlands is sufficiently established byevidence, and if so, for what period of time.

In the opinion of the Arbitrator, the Netherlands have succeeded in establishing thefollowing facts:

1. Island of Palmas is identical with an island which has formed successively apart of 2 of the native States of the Island of Sangi

2. These native States were from 1677 onwards connected with the East IndiaCompany, and thereby with the Netherlands, by contracts of suzerainty

The acts of indirect or direct display of Netherlands sovereignty at Palmas are notnumerous and there are considerable gaps in the evidence of continuous display.However, it may suffice that such display existed in 1898 and had already existed ascontinuous and peaceful before that date long enough to enable any Power to have,according to local conditions, a reasonable possibility for ascertaining the existenceof a state of things contrary to her real or alleged rights.

It is not necessary that the display of sovereignty should be established at havingbegun at a precise epoch; it suffices that it had existed at the critical periodpreceding the year 1898.

SUMMARY:The title of discovery, if it had not been already disposed of by the Treaties ofMunster and Utrecht would, under the most favorable and most extensiveinterpretation, exist only as an inchoate title, as a claim to establish sovereignty byeffective occupation. An inchoate title however cannot prevail over a definite titlefounded on continuous and peaceful display of sovereignty.

The title of contiguity has no foundation in international law. Also, title of

recognition by treaty does not apply.

The Netherlands title of sovereignty, acquired by continuous and peaceful displayof State authority during a long period of time going probably back beyond the year1700, therefore holds good.

LEGAL STATUS OF EASTERN GREENLANDFACTS:The Norwegian government published a proclamation declaring that it hadproceeded to occupy certain territories in Eastern Greenland. The Danishgovernment contended that Eastern Greenland was subject to the sovereignty ofDenmark and on those grounds brought before the Permanent Court of International

Justice a suit against Norway.

The battle of Leipzig led to the triumph of the Allied cause and the Swedish armycompelled Denmark to sign the Peace Treaty of Kiel, the 4th Art. of which providedfor the cession to Sweden of the Kingdom of Norway, excluding however Greenland,the Faeroe Isles and Iceland.

At the end of 1814, the necessary steps were taken with a view to the completeliquidation of all matters arising out of the Union between Denmark and Norway.After protracted negotiations, this liquidation was effected by a Convention signedat Stockholm.

2 necessary dates: (1) in 1822, the Scottish whaler Scoresby made the first landingby a European in the territory covered by the Norwegian declaration of occupation;(2) about 1900, thanks to the voyages of the American Peary, the insular character


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of Greenland was established. It is admitted by Norway that from the time ofScoresbys landing the East coast forms part of the known portion of Greenland.

In the summer of 1930, the Norwegian government conferred police powers oncertain Norwegian nationals for the inspection of the Norwegian hunting stations inEastern Greenland. Denmark became uneasy at this action, and intimated to theNorwegian government, at first verbally, and afterwards in writing, that she couldnot countenance the granting of regular police powers to Norwegian nationals interritories situated in Greenland, seeing that these territories were, in the Danishview, subject to Danish sovereignty.

Norwegian government replied that, in accordance with the standpoint which it hadreserved in its note, Eastern Greenland constituted a terra nullius, and that it wasfully entitled to invest Norwegian nationals in this territory with police powers inrespect of Norwegian nationals and other persons domiciled in Norway and that thearea lay outside the limits of the Danish colonies in Greenland and the Danishsovereignty extended no further than the limits of these territories.

Danish submits in the written pleading that the Norwegian occupation of 1931 isinvalid, founded upon the contention that the area occupied was at the time of theoccupation subject to Danish sovereignty; that the area is part of Greenland, and atthe time of the occupation, Danish sovereignty existed over all Greenland.

HELD:The Danish claim is not founded upon any particular act of occupation but alleges atitle founded on the peaceful and continuous display of State authority over theisland.

It must be born in mind that as the critical date is July 10, 1931, it is not necessarythat sovereignty over Greenland should have existed throughout the period duringwhich the Danish government maintains that it was in being.

A claim to sovereignty based not upon some particular act or title such as a treatyof cession but merely upon continued display of authority, involves 2 elements eachof which must be shown to exist:

1. Intention and will to act as sovereign2. Some actual exercise or display of such authority

Another circumstance which must be taken into account upon a claim tosovereignty over a particular territory is the extent to which the sovereignty is alsoclaimed by some other Power.

One of the peculiar features of the present case is that up to 1931, there was noclaim by any power other than Denmark to the sovereignty over Greenland. Indeed,no Power disputed the Danish claim to sovereignty.

The Kings pretensions to sovereignty which existed at the time of the foundation ofthe colonies are sufficient to demonstrate the intention, and these were not limitedto any particular part of the country. Legislation is one of the most obvious forms ofthe exercise of sovereign power. In 1925, legislation was enacted regulating the

hunting and fishing, and in the same year, Greenland was divided into 2 provinces blaw which declared that all commercial activity was reserved to the Danish State.

The conclusion to which the Court is led is that, bearing in mind the absence of anyclaim to sovereignty by another Power, and the Arctic and inaccessible character ofthe uncolonized parts of the country, the authority of the King of Demark, to anextent, sufficient to give his country a valid claim to sovereignty and that rightsover Greenland were not limited to the colonized area.

WESTERN SAHARA CASEISSUE:Was Western Sahara a territory belonging to no one (terra nullius)?

HELD:The expression terra nullius was a legal terms of art employed in connection withoccupation as one of the accepted legal methods of acquiring sovereignty overterritory.

Occupationoriginal means of peaceably acquiring sovereignty over territoryotherwise than by cession or succession.

The State practice of the relevant period indicates that territories inhabited by

tribes or peoples having a social and political organization were not regarded asterra nullius. It shows that in the case of such territories, the acquisition ofsovereignty was not generally considered as effected unilaterally throughoccupation of terra nullius by original title but through agreements concludedwith local rules.

Western Sahara was inhabited by peoples which, if nomadic, were socially andpolitically organized in tribes and under chiefs competent to represent them. Spaindid not proceed on the basis that it was establishing its sovereignty over terraenullius. In its Royal Order, far from treating the case as one of occupation of terranullius, Spain proclaimed that the King was taking the Rio de Oro under hisprotection on the basis of agreements which had been entered into with the chiefsof the local tribes.

SABAH

Sabah is situated in the northern part of the island of Borneo. It is bounded byBrunei and Sarawak to the west and by Indonesian Kalimantan to the south.

The Territory originally owed allegiance to the Sultan of Brunei, but in 174, theland of the Kimanis river was ceded to the Sultan of Sulu in return for the lattershelp in a succession dispute in Brunei. The latter leased it to Overbeck and Dent,together with their heirs, associates, successors and assigns. Dent established theChartered Company of British North Borneo to manage the territory, which wasplaced under British protection.


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In a case filed with Justice Macaskie of the High Court of Borneo, the court ruledthat it is abundantly clear that the successors in sovereignty of the Sultan of Suluare the Government of the Philippine Islands.

The Chartered Company surrendered its right to the British Government, and Sabahbecame a British Crown Colony. A few days after the Philippines regainedindependence from US, North Borneo was annexed to the British dominion and wascalled Colony of Borneo.

As a response to this cession, the Macapagal Resolution 1950 called on theGovernment to initiate formal institution of the claim over Sabah. Anotherresolution came after where Philippines pressed its claim stre ssing that thesovereignty over the Territory had remained vested in the Sultanate of Sulu. Theoccupation of the territory first by Overbeck and Dent and later by the British NorthCompany had been occupation by lessee or an administrator, not occupation by anowner or sovereign.

When talks were held in London between Philippines and UK, Sabah became aconstituent part of the Federation of Malaysia upon the latters formation on Sept.16, 1963. This was challenged by both Indonesia and Philippines, however, only thePhilippines claim was maintained.

President Marcos, at the opening of the second meeting of the ASEAN Heads of

Government, declared that the Philippines is taking definite steps to eliminate ofthe burdens of ASEANthe Philippine claim to Sabah.

The 1987 Philippine Constitution omitted from the definition of the NationalTerritory the phrase and all other territories belonging to the Philippines byhistoric right or legal title, which was widely construed as referring to thePhilippine claim to Sabah.

In 1993, active cooperation on Mindanao and Sabah are being pursued by bothcountries, Philippines and Malaysia, through the Brunei Darussalam-Indonesia-Malaysia-Philippines East ASEAN Growth Area and bilateral programs, such ascooperation on border crossing and patrol and assistance to Muslim Filipinos and toFilipinos in Malaysia, more particularly in Sabah.

THE SOUTH CHINA SEA DISPUTETHE SPRATLYS

GEOGRAPHICAL SETTINGSurrounded by 10 littoral states: China, Taiwan, Philippines, Indonesia, Brunei,Malaysia, Singapore, Thailand, Kampuchea, and Vietnam.

The South China Sea Proper constitutes 4 archipelagoes: Pratas, Macclesfield Bank,Paracels, and Spratlys.

The Paracels, a group of islands on the South-East of China are claimed by Chinaand Vietnam.

Some 100 miles to the south of Paracels are a group of islands called Spratlys. Someof these are occupied by the Philippines, Vietnam, Taiwan and China.Nothing had been positively initiated to prevent unnecessary conflict untilIndonesia, a non-claimant state, with the support of the Canadian InternationalDevelopment Agency, convened the first workshop on Managing Potential Conflictsin the South of China Sea in Bali.

Upon the suggestion of the Philippine participants, the next workshop was held inBandung attended by representatives from China, Taiwan and Vietnam. A proposalwas made by Indonesia with the support of the Philippines that an INSTITUTIONALMECHANISM be organized on an unofficial status through which all issues can beventilated periodically. Each claimant State was given opportunity to state thelegal basis of their territorial claims in the area.

On the 3rd workshop, the proposal of setting up an institutional mechanism againfailed to get unanimous support. It was during this that the Chinese participantswere confronted by Vietnamese participants on a law enacted by China declaring itsterritorial waters and contiguous zones which eventually claimed sovereignty overall the islands, waters, seabed and airspace stretching the 12 nautical miles fromthe coast of all the islands on the South China Sea.

Vietnam also challenged the legality of the agreement granting Crestone, a US oilcompany, to explore oil and gas in the area that is claimed by Vietnam as part of its

continental shelf.

ASEAN issued a Declaration that the disputes in the South China Sea must be settledby peaceful means.

CLAIM OF CHINAAs early as the 2nd Century BC, Chinese discoveries were claimed of the Xisha andNansha islands. After WWI, China was the only claimant of the Spratlys. TheChinese claimed sovereignty over the Spratlys since the 13th century throughexpeditions sent by the Yuan Government in 1293.

However, China admits that there is no actual occupation and control of the totallyuninhabited islands. The Xisha and Nansha islands are very far away from the

Mainland. Only on Feb. 25, 1992, when the 7th

National Peoples Republic of Chinapassed a law enclosing the Nansha Islands within its territorial sea.

CLAIM OF TAIWANSince Taiwan claims to represent the sovereignty of the whole of China,participants from Taiwan asserted that Nansha, referring to the Spratlys, Xisha toParacels, Chungsha Islands to Macclesfield Bank, and Tungshu Islands areintergrated parts of the China by history and tradition.

CLAIM OF VIETNAMThe Claim of Vietnam to the Paracels is primarily based on the state successionrelying on the dissolution of the French sovereignty in Indochina and on historicalgrounds.


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In 1959 and later years, Vietnam continued to assert sovereignty over the Paraccelsseizing fishing vessels of China in the area. It incorporated the Paracels and Spratlysinto the Qua Nas province in 1973.

PHILIPPINE CLAIMAfter gaining independence from the US in 1946, the Philippines asserted its claimto the Spratlys before the UN General Assembly, which was reiterated in 1950.

In 1956, Tomas Cloma, a Filipino navigator claim ownership by discovery andoccupation of the territory identified as Freedom Land on the Spratlys.

A diplomatic note was sent by the Philippine Government to Taipeh demanding thewithdrawal of a Chinese garrison on the island of Itu Aba on the ground thatPhilippines has a legal title of the island.

Tomas Cloma irrevocable ceded and conveyed in favor of the Philippines all rightsand interests over said islands. Consequently, the President issued a PresidentialDecree declaring that the area is, by reason of effective occupation and control,part of the continental margin of the Philippine Archipelago, and does not belong toany other State.

Filipinos have domiciled peacefully on the islands which led to a viable Filipinopolitical, social and economic community known as Kalayaan Island Group.

Such Decree was duly registered with the UN Secretariat with an accompanying mapand technical description of the area.

The main legal basis is that the Kalayaan Island Group is terra nullius followed byoccupation and exercise of jurisdiction.

CLAIM OF MALAYSIAThe Malaysian participants did not make any statement on their claim, however, in1979, Malaysia published a map claiming the southern part of South China Sea. Thearea claimed by Malaysia overlapped the southern portion of the Kalayaan IslandGroup. It was on this area that the 49 Filipino fishermen were apprehended byMalaysian authorities in 1988.

CLAIM OF BRUNEIOnly recently, Brunei laid claim to the Louisa Reef, a territory which had beenoccupied by elements of the Malaysian Special Forces.

VALUE AND IMPORTANCE OF THE ISLANDS ON THE SOUTH CHINA SEA1. Presumed Huge Oil Deposit2. Navigational and Communication Routes

SUGGESTED FOREIGN POLICY OPTIONS1. to pursue the Philippine claim by diplomatic negotiation through the

ASEAN2. to follow the initiative taken by Indonesia with cooperation and support of

CIDA in the Workshops on Managing Potential Conflicts in the South ChinaSea held in Indonesia

3. to organize an International Authority similar to the Treaty of the AntarcticTo strengthen the claim, archipelagic baselines should be drawn to include theKalayaan Island Group. Under the UN Convention on the Law of the Sea (Art. 49), anarchipelagic state has sovereignty and jurisdiction over all lands and watersregardless of their depths or distances. The sovereignty also extends to the airspaceover the archipelagic waters as well as to their sea bed and subsoil and theresources contained therein.

Among all the claimant-states, the Philippines is the nearest in point of distancefrom the Spratlys it has occupied as res nullius.

Due to very irregular geography and pattern of occupation by the claimants, it isimpossible to resolve the problem by linear settlements and direct allocation of theareas.

A cooperative scheme can be a realistic solution similar to the Treaty of theAntarctic where an institutionalization of a cooperative regime had defusedconflicts. A delimitarized zone to evolve peace and cooperative development canbe achieved with the freezing of territorial claims.

Confidence-building measures can be achieved through an agreement to:1. freeze all territorial claims2. renounce the use of force and commit themselves to settle all disputes

only by peaceful means3. cooperate in the regime of the Spratlys International Authority4. delink the Spratlys dispute from the other issues

There are 2 factors that will have to be considered in the last 2 options:1. the rigid position that China has taken due to the recent law it enacted2. the difficulty that the Philippines will have to overcome under Art. 12[2]

Art. 12[2] provides that the State shall protect the nations marine wealth in itsarchipelagic waters, territorial sea, and the exclusive economic zone, and reserveits use and enjoyment exclusively to Filipino citizens.

Since Kalayaan Island Group is considered as part of the Philippine territory may notlegally enter into joint development of the KIG, as joint development implies jointownership. One possible option is to enter into joint ventures with other states forexploitation of minerals.

PHILIPPINE OPTIONS TO RESOLVE THE CHINESE EXPANSION IN THE SPRATLYS1. Military option is out of the question2. Through regional arrangements under the ASEAN initiative3. Philippines may also bring the matter to the attention of the UN Security

Councilo Difficulty with this is that the Security Council usually does not act unless the

situation actually endangers international peace and security of the nationsunder Chapter 7 of the UN Charter


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o Assuming that the Security Council decides to take the case, China canexercise its veto power

4. File the case in the International Court of Justiceo The creeping invasion of China involves the international responsibility of a

State and is also a question of international law which are justiciablequestions within the jurisdiction of ICJ

o The problem with ICJ is that both parties must agree to submit the case tothe Court

5. Bring the matter to an arbitration body upon agreement by both states6. Bring the case to the International Tribunal of the Law of the Sea most

feasible optionChina manifested its willingness to settle the issue applyingthe provisions of the UN Convention on the Law of the Sea

STATE CONTROL OF AIRSPACE OVER THE TERRITORIAL SEA AND THECONTIGUOUS ZONE

At the beginning of the 20th century, the world was faced with a choice between 2conflicting theories:

1. Freedom of the air2. National sovereignty over the air

On Oct. 13, 1919, 27 nations at a meeting in Paris signed the Paris Convention

where they accepted the doctrine of national sovereignty over the airspace whereevery power has complete and exclusive sovereignty over the air space above itsterritory and the latter includes national territory and the territorial watersadjacent thereto.

25 years later, the same principle was affirmed by signing the Chicago Convention1944.

Professor John Cobb Cooper recommends the use of the term flight space, whichif it were adopted, would allow states to control so much of universal space aboveand beyond the surface of the earth as is now used or may hereafter be used as thearea in which flight takes place.

The territorial waters make up the territorial sphere of validity of a state,where one state to the exclusion of the other states can carry out its coercive acts.They include the maritime belt and inland waters.

FISHERIES CASE (ICJ REP 116)FACTS:The Fisheries Case was brought before the Court by the United Kingdom of GreatBritain and Northern Ireland against Norway.

By a Decree, the Norwegian Government had, in the northern part of the country(north of the Arctic Circle) delimited the zone in which the fisheries were reservedto its own nationals. UK asked the Court to state whether this delimitation was orwas not contrary to international law. In its judgment, the Court found that neither

the method employed for the delimitation by the Decree, nor the lines themselvesfixed by the said Decree, are contrary to international law.

The coastal zone concerned in the dispute is of a distinctive configuration. Itslength as the crow flies exceeds 1,500 kilometres. Mountainous along its wholelength, very broken by fjords and bays, dotted with countless islands, islets andreefs (certain of which form a continuous archipelago known as the skjaergaard,"rock rampart"), the coast does not constitute, as it does in practically all othercountries in the world a clear dividing line between land and sea. The landconfiguration stretches out into the sea and what really constitutes the Norwegiancoastline is the outer line of the land formations viewed as a whole. Along thecoastal zone are situated shallow banks which are very rich in fish. These have beenexploited from time immemorial by the inhabitants of the mainland and of theislands: they derive their livelihood essentially from such fishing.

In past centuries British fisherman had made incursions in the waters near theNorwegian coast. As a result of complaints from the King of Norway, they abstainedfrom doing so at the beginning of the 17 th century and for 300 years. But in 1906British vessels appeared again. These were trawlers equipped with improved andpowerful gear. The local population became perturbed, and measures were takenby Norway with a view to specifying the limits within which fishing was prohibitedto foreigners. Incidents occurred became more and more frequent, and on July1935 the Norwegian Government delimited the Norwegian fisheries zone by Decree.

Negotiations had been entered into by the 2 Governments; they were pursued afterthe Decree was enacted, but without success. A considerable number of Britishtrawlers were arrested and condemned. It was then that the UK Governmentinstituted proceedings before the Court.

ISSUES and HELD:1. w/n the lines laid down by the 1935 Decree for the purpose of delimiting

the Norwegian fisheries zone have been drawn in accordance withinternational law

The breadth of the belt of Norwegian territorial sea is not an issue: the 4-mile limitclaimed by Norway has been acknowledged by UK.

UK denies that they have been drawn in accordance with international law, and itrelies on principles which it regards as applicable to the present case. For its part,Norway, whilst not denying that rules do exist, contends that those put forward bythe UK are not applicable; and it further relies on its own system of delimitationwhich it asserts to be in every respect in conformity with international law.

The first principle put forward by the UK is that the base-line must be low-watermark. This indeed is the criterion generally adopted in the practice of States. Theparties agree as to this criterion, but they differ as to its application. Thegeographic realities described above, which inevitably lead to the conclusion thatthe relevant line is not that of the mainland, but rather that of the "skjaergaard",also lead to the rejection of the requirement that the base-line should alwaysfollow low-water mark. Drawn between appropriate points on this low-water mark,departing from the physical coastline to a reasonable extent, the base-line can onlybe determined by means of a geometric construction. Straight lines will be drawn


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across well-defined bays, minor curvatures of the coastline, and sea areasseparating islands, islets and reefs, thus giving a simpler form to the belt ofterritorial waters. The drawing of such lines does not constitute an exception to arule: it is this rugged coast, viewed as a whole, that calls for the method of straightbase-lines.

2. w/n there must be a maximum length for straight lines, as contended byUK, except in the case of the closing line of internal waters to which UKconcedes that Norway has a historic title

Although certain States have adopted the 10-mile rule for the closing lines of bays,others have adopted a different length: consequently the 10-mile rule has notacquired the authority of a general rule of international law, neither in respect ofbays nor the waters separating the islands of an archipelago. Furthermore, the 10-mile rule is inapplicable as against Norway inasmuch as she has always opposed itsapplication to the Norwegian coast.

Thus the Court, confining itself to the Conclusions of the UK, finds that the 1935delimitation does not violate international law. But the delimitation of sea areashas always an international aspect since it interests States other than the coastalState; consequently, it cannot be dependent merely upon the will of the latter. Inthis connection certain basic considerations inherent in the nature of the territorialsea bring to light the following criteria which can provide guidance to Courts: since

the territorial sea is closely dependent upon the land domain, the base-line mustnot depart to any appreciable extent from the general direction of the coast:certain waters are particularly closely linked to the land formations which divide orsurround them (an idea which should be liberally applied in the present case, inview of the configuration of the coast); it may be necessary to have regard tocertain economic interests peculiar to a region when their reality and importanceare clearly evidenced by a long usage.

Having examined the sectors thus criticized, the Judgment concludes that the linesdrawn are justified. In one case-that of Svaerholthavet-what is involved is indeed abasin having the character of a bay although it is divided into two large fjords. Inanother case -that of Lopphavet-the divergence between the base-line and the landformations is not such that it is a distortion of the general direction of the

Norwegian coast; furthermore, the Norwegian Government has relied upon ahistoric title clearly referable to the waters of Lopphavet: the exclusive privilege tofish and hunt whales granted in the 17th century to a Norwegian subject, fromwhich it follows that these waters were regarded as falling exclusively withinNorwegian sovereignty. In a third case-that of the Vestfjord-the difference isnegligible: the settlement of such questions, which are local in character and ofsecondary importance, should be left to the coastal State.

For these reasons, the Judgment concludes that the method employed by theDecree of 1935 is not contrary to international law; and that the base-lines fixed bythe Decree are not contrary to international law either.

THE CORFU CHANNEL CASEFACTS:On May 15, 1946, the British cruisers, Orion and Superb, while passing southwardthrough the North Corfu Channel, were fired at by an Albanian battery in thevicinity of Sarandra. It appeared from the report of the commanding naval officerthat the firing started when the ships had already passed the battery and weremoving away from it.

An Albanian note of May 21st states that the Coastal Commander ordered a fewshots to be fired in the direction of the ships

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