A.

SOURCES OF INTERNATIONAL LAW international law rule or on the basis of the Geneva
a. See Article 38(1), ICJ Statute Convention?
b. Treaty laws
c. Customary International Law HELD: The use of the equidistance method had not
i. General Practice crystallised into customary law and the method was not
ii. Opinio Juris obligatory for the delimitation of the areas in the North Sea
a. North Sea Continental Shelf Cases (Federal related to the present proceedings.
Republic of Germany v. Denmark; Federal Republic of
Germany v. Netherlands), 1969 [Judgment] Article 6 of the Geneva Convention stated that
unless the parties had already agreed on a method for
FACTS: Netherlands and Denmark had drawn partial delimitation or unless special circumstances exist, the
boundary lines based on the equidistance principle (A-B and equidistance method would apply. Germany had signed, but
C-D). An agreement on further prolongation of the boundary not ratified, the Geneva Convention, while Netherlands and
proved difficult because Denmark and Netherlands wanted Denmark were parties to the Convention. The latter two
this prolongation to take place based on the equidistance States argued that while Germany is not a party to the
principle (B-E and D-E) where as Germany was of the view Convention (not having ratified it), she was still bound by
that, together, these two boundaries would produce an Article 6 of the Convention:
inequitable result for her. Germany stated that due to its
concave coastline, such a line would result in her loosing out “…(1) by conduct, by public statements and proclamations, and
in other ways, the Republic has unilaterally assumed the obligations of
on her share of the continental shelf based on
the Convention; or has manifested its acceptance of the conventional
proportionality to the length of its North Sea coastline. The regime; or has recognized it as being generally applicable to the
Court had to decide the principles and rules of international delimitation of continental shelf areas…
law applicable to this delimitation. In doing so, the Court had
to decide if the principles espoused by the parties were (2) the Federal Republic had held itself out as so assuming,
accepting or recognizing, in such a manner as to cause other States, and
binding on the parties either through treaty law or customary
in particular Denmark and the Netherlands, to rely on the attitude thus
international law. taken up” (the latter is called the principle of estoppel).

ISSUE: Is Germany under a legal obligation to

accept the equidistance-special circumstances principle,
contained in Article 6 of the Geneva Convention on the
Continental Shelf of 1958, either as a customary
 The Court held that Germany had not unilaterally practice (i.e. consistent and uniform usage) undertaken in a
assumed obligations under the Convention. The court also manner that demonstrates (3) a general recognition of the
took notice of the fact that even if Germany ratified the rule of law or legal obligation (i.e. opinio juries). In the North
treaty, she had the option of entering into a reservation on Sea Continental Shelf cases the court held that the passage
Article 6, following which that particular article would no of a considerable period of time was unnecessary (i.e.
longer be applicable to Germany. duration) for the formation of a customary law.

To decide if the equidistance principle bound The Court held that the first criteria was not met. The
Germany by way of customary international law, the Court number of ratifications and accessions to the Convention
examined (1) the status of the principle contained in Article 6 (39 States) were not adequately representative or
as it stood when the Convention was being drawn up; and widespread.
(2) its status after the Convention came into force.
The Court held that the duration taken for a
The Court held that the principle of equidistance, as customary law rule to emerge is not as important as
contained in Article 6 did not form a part of existing or widespread and representative participation, uniform usage,
emerging customary international law at the time of drafting and the existence of an opinio juris.
the Convention. The Court supported this finding based on
(1) the hesitation expressed by the drafters of the “Although the passage of only a short period of time (in this
case, 3 – 5 years) is not necessarily, or of itself, a bar to the formation of a
Convention, the International Law Commission, on the
new rule of customary international law on the basis of what was originally
inclusion of Article 6 into the Convention and (2) the fact that a purely conventional rule, an indispensable requirement would be that
reservations to Article 6 was permissible under the within the period in question, short though it might be, State practice,
Convention. including that of States whose interests are specially affected, should
have been both extensive and virtually uniform in the sense of the
provision invoked and should moreover have occurred in such a way as
The Court held that Article 6 of the Convention had
to show a general recognition that a rule of law or legal obligation is
not attained a customary law status. involved.”

For a customary rule to emerge the Court held that it “Not only must the acts concerned amount to a
needed: (1) very widespread and representative settled practice, but they must also be such, or be carried
participation in the Convention, including States whose out in such a way, as to be evidence of a belief that this
interests were specially affected (in this case, they were practice is rendered obligatory by the existence of a rule of
coastal States) (i.e. generality); and (2) virtually uniform
 law requiring it. The need for such a belief, i.e, the existence aid to Nicaragua and in September 1981, according to Nicaragua,
of a subjective element, is implicit in the very notion of the the United States “decided to plan and undertake activities directed
opinio juris sive necessitatis. The States concerned must against Nicaragua”.
therefore feel that they are conforming to what amounts to a
legal obligation. The frequency, or even habitual character of The armed activities against the new Government was carried out
the acts is not in itself enough. There are many international mainly by (1) Fuerza Democratica Nicaragüense (FDN), which
acts, e.g., in the field of ceremonial and protocol, which are operated along the border with Honduras, and (2) Alianza
performed almost invariably, but which are motivated only by Revolucionaria Democratica (ARDE), which operated along the
considerations of courtesy, convenience or tradition, and not border with Costa Rica. Initial US support to these groups fighting
by any sense of legal duty.” against the Nicaraguan Government (called “contras”) was covert.
Later, the United States officially acknowledged its support (for
The Court concluded that the equidistance principle example: In 1983 budgetary legislation enacted by the United
was not binding on Germany by way of treaty or customary States Congress made specific provision for funds to be used by
international law. In the case of the latter, the principle had United States intelligence agencies for supporting “directly or
not attained a customary international law status at the time indirectly military or paramilitary operations in Nicaragua”).
of the entry into force of the Geneva Convention or
thereafter. As such, the Court held that the use of the Nicaragua also alleged that the United States is effectively in
equidistance method is not obligatory for the delimitation of control of the contras, the United States devised their strategy and
the areas concerned in the present proceedings. directed their tactics, and that the contras were paid for and directly
controlled by the United States. Nicaragua also alleged that some
b. Case Concerning Military and Paramilitary Activities in and attacks against Nicaragua were carried out, directly, by the United
against Nicaragua (Nicaragua v. United States), 1986 [Merits] States military – with the aim to overthrow the Government of
Nicaragua. Attacks against Nicaragua included the mining of
In July 1979, the Government of President Somoza was replaced Nicaraguan ports, and other attacks on ports, oil installations, and a
by a government installed by Frente Sandinista de Liberacion naval base. Nicaragua alleged that aircrafts belonging to the United
Nacional (FSLN). Supporters of the former Somoza Government States flew over Nicaraguan territory to gather intelligence, supply
and former members of the National Guard opposed the new to the contras in the field, and to intimidate the population.
government. The US – initially supportive of the new government –
changed its attitude when, according to the United States, it found The United States did not appear before the ICJ at the merit stages,
that Nicaragua was providing logistical support and weapons to after refusing to accept the ICJ’s jurisdiction to decide the case. The
guerrillas in El Salvador. In April 1981 the United States stopped its United States at the jurisdictional phase of the hearing, however,
stated that it relied on an inherent right of collective self-defence given in breach of German’s entitlement of State Immunity”. The
guaranteed in A. 51 of the UN Charter when it provided “upon judgement could not be given effect to in Greece due to a decision
request proportionate and appropriate assistance…” to Costa Rica, of the executive. The Greek claimants then asked Italian courts to
Honduras, and El Salvador in response to Nicaragua’s acts of enforce the Greek judgement. Italian courts ordered a legal charge
aggression against those countries (paras 126, 128) over a property of Germany in Italy as a measure of enforcement
(paras 30 – 36).

c. Jurisdictional Immunities of the State (Germany v. Italy; ISSUE: Is jurisdictional immunity available to a State for acts
Greece intervening), 2012 [Judgment] committed by its armed forces in the conduct of an armed conflict?
If so, did Italy violate this immunity by allowing civil claims against
FACTS: In 1940, Italy entered the Second World War as an ally of Germany to be brought before its courts and by enforcing the Greek
the German Reich. In 1943, Italy surrendered to the Allies and judgement in Italy? Did Italy violate its international law obligations
declared war against Germany. At the time, German forces relating to Germany’s jurisdictional immunities when it took
occupied significant Italian territory. It committed many crimes measures of constraint against German property in Italy?
against civilians and soldiers, including massacres, deportations
and forced labour. After the end of the war, Germany enacted HELD: Italy violated its obligation to respect Germany’s immunity
several laws to facilitate the payment of compensation to these under international law by allowing civil claims to be brought against
victims. However, thousands of former Italian military internees did Germany based on violations of international humanitarian law
not fall within these laws and they could not get compensation in committed by the German Reich between 1943 and 1945, by
Germany (paras 20 – 27). These internees brought civil cases declaring enforceable in Italy decisions of Greek courts and by
against Germany in Italian Courts to claim compensation. Germany taking measures of constraint against German property in Italy.
objected to the proceedings on the basis of jurisdictional immunity
before foreign courts. Italian Courts held that “…jurisdictional The Court requested Italy to enact legislation, or resort to other
immunity is not absolute…” and that “…in cases of crimes under methods of its choosing, to ensure that the decisions of its courts
international law, the jurisdictional immunity of States should be set and those of other judicial authorities infringing the immunity which
aside.” (paras 27 – 29). Germany enjoys under international law cease to have effect.

Greek courts also set aside the immunity of Germany, in a similar State immunity derives from the principle of sovereign equality
situation, and ordered Germany to pay damages. Germany refused found in Article 2(1) of the UN Charter. It is “one of the fundamental
to pay on the basis that these “Greek judicial decisions could not be pillars of the international legal order.” As between Italy and
recognized within the German legal order because they have been Germany this right is derived from customary international law, in
the absence of a treaty to that effect. Based on its analysis of State whether it had jurisdiction… If, on the other hand, the mere
practice and opinio juris, the ICJ said, “…practice shows that, allegation that the State had committed such wrongful acts were to
whether in claiming immunity for themselves or according it to be sufficient to deprive the State of its entitlement to immunity,
others, States generally proceed on the basis that there is a right to immunity could, in effect be negated simply by skilful construction of
immunity under international law, together with a corresponding the claim.”
obligation on the part of other States to respect and give effect to
that immunity.” The rules of State immunity are procedural in character and are
confined to determining whether or not the courts of one State may
“State immunity for acta jure imperii continues to extend to civil exercise jurisdiction in respect of another State. They do not bear
proceedings for acts occasioning death, personal injury or damage upon the question whether or not the conduct in respect of which
to property committed by the armed forces and other organs of a the proceedings are brought was lawful or unlawful.”
State in the conduct of armed conflict, even if the relevant acts take
place on the territory of the forum State… In light of the foregoing, the fact that a rule has the status of jus cogens does not confer
the Court considers that customary international law continues to upon the Court a jurisdiction which it would not otherwise possess.
require that a State be accorded immunity…”
whether a State is entitled to immunity before the courts of another
The ICJ said that the availability of immunity would not depend on State is a question entirely separate from whether the international
the gravity of the unlawful act or its jus cogens nature. The ICJ said responsibility of that State is engaged and whether it has an
that jurisdictional immunity is preliminary in nature – it determines if obligation to make reparation… It [the ICJ] considers however that
a State can be subjected to trial by a domestic court of another the claims arising from the treatment of the Italian military
country before the domestic court looks at the merits (and the internees… together with other claims…could be the subject of
gravity) of the case. further negotiation involving the two States concerned, with a view
to resolving the issue.
“Consequently, a national court is required to determine whether or
not a foreign State is entitled to immunity as a matter of
international law before it can hear the merits of the case brought d. Right of Passage over Indian Territory (Portugal v. India),
before it and before the facts have been established. If immunity 1960 [Merits]
were to be dependent upon the State actually having committed a
serious violation of international human rights law or the law of
armed conflict, then it would become necessary for the national d. General Principles of Law
court to hold an enquiry into the merits in order to determine e. Judicial Decisions
f. Treatises affairs: it does mean that their jurisdiction is prima facie both
g. Other sources plenary and not subject to the control of other States.
3. In principle States are not subject to compulsory international
B. SUBJECTS OF INTERNATIONAL LAW process, jurisdiction or settlement, unless they consent, either in
a. Criteria of Statehood specific cases or generally, to such exercise.
Constitutive theory 4. States are regarded in international law as 'equal', a principle
In every legal system, some organ must be competent to also recognized by the Charter (Article 2 (I». This is in part a
determine with finality and certainty the subjects of the restatement of the foregoing principles, but it may have certain
system. In the present international system, that organ can only be other corollaries.t It is a formal, not a moral or political, principle. It
the States, acting severally or collectively. Since they act as organs does not mean, for example, that all States are entitled to an equal
of the system, their determinations must have definitive legal effect vote in international organizations.t merely that, in any international
(Lauterpacht) organization not based on equality, the consent of all the Members
to the derogation from equality is required.
Declaratory theory 5. Finally, any derogations from these principles must be clearly
The non-recognition by other nations of a government claiming to established: in case of doubt an international court or tribunal will
be a national personality, is usually appropriate evidence that it has decide in favour of the freedom of action of States, whether with
not attained the independence and control entitling it by respect to external! or internal affairs,« or as not having consented
international law to be classed as such. But when recognition vel to a specific exercise of international jurisdiction." or to a particular
non of a government is by such nations determined by enquiry, not derogation from equality.
into its de facto sovereignty and complete governmental control, but f This presumption-which is of course rebuttable in any given
into its illegitimacy or irregularity of origin, their non-recognition case-provides a useful indication as to the status of the entity in
loses something of evidential weight on the issue with which those whose favour it is invoked. It will be referred to throughout this study
applying the rules of international law are alone concerned as the Lotus presumption-its classic formulation being the judgment
of the Permanent Court in The Lotus.
I. In principle States have plenary competence to perform acts,
make treaties and so on, in the international sphere: this is one
meaning of the term 'sovereign' as applied to States. A. Permanent Population
2. In principle States are exclusively competent with respect to The first criterion of statehood is population, which means a group
their internal affairs, a principle reflected by Article 2, paragraph 7 of individuals living together. These individuals may belong to
of the United Nations Charter. This does not of course mean that different races, ethnic groups, religions, or cultures. This criterion
they are omnicompetent, in international law, with respect to those also requires the population to be permanent – as opposed to a
non-permanent or nomadic population. The size of the population D. Sovereignty
does not matter. Numerous enough to be self sufficing and to Supreme and uncontrollable power inherent ina state by which that
defend themselves, but small enough to be easily administered and state is governed
sustained Internal sovereignty-domestic affairs
External sovereignty-in relation to other states
B. Territory
Under the UN Charter, sovereign title to territory cannot be acquired i. Convention on the Rights and Duties of States
purely and simply by the use of force. Express or implied consent is (Montevideo)
required under international law for recognition of territory acquired -Possess the following:
by force, whether or not the use of force was legal. Permanent population, defined territory, government,
capacity to enter into relations with other states
The sovereignty of a state is confined to a defined piece of territory, -Federal state shall constitute one person
which is subject to the exclusive jurisdiction of the state and is -Political existence of state is independent of recognition by
protected by international law from violation by other states. The the other states. Even before recognition, state has the right to
sovereign territory of a state extends to its recognized land protect its integrity and independence, to provide for its
boundaries and to the border of airspace and outer space above conservation and prosperity, and organize itself as it sees fit, to
them. The territory of states includes internal waters (i.e., harbours, legislate upon its interests, administer services, define jurisdiction
lakes, and rivers that are on the landward side of the baselines from and competence of courts. These rights have no limitations other
which the territorial sea and other maritime zones are measured), than rights of other states according to international law
over which the state has full and complete sovereignty and -States are juridically equal. Rights emanate from simple
exclusive jurisdiction. fact of existence as a person
-Fundamental rights of the states not susceptible of being
A state has sovereignty over its territorial seas, but they are subject affected in any manner
to the right of innocent passage—i.e., the right of all shipping to -no state has the right to intervene with the affairs of another
pass through the territorial waters of states, provided that the -Jurisdiction limit of national territory applies to all
passage is not prejudicial. inhabitants, also applies to nationals and foreigners.
-primary interest of states is conservation of peace
C. GOVERNMENT
Agency or instrumentality through which the will of the state is b. Recognition of States; Creation and Extinction of States
formulated, expressed and realized Two theories of recognition:
 ● Constitutive - existence of state depends upon formal
recognition by other states. A state does not exist as long as establishment of a state in violation of the right to self-determination
other states have refrained from recognizing it. The problem or through the unlawful use of force will generally be illegal and
is how many and which states should recognize an entity prevent an entity from achieving statehood under international law.
before it qualifies as a state under international law.
● Declaratory - recognition by a state merely implies the Accordingly, unlawful attempts to create a new state will result in an
acknowledgment that the entity meets the criteria for obligation for third states to withhold recognition. This is reflected
statehood and acceptance of this state in bilateral relations. today in Article 41(2) of the Draft Articles on the Responsibility of
(Article 6 of montevideo convention) States for Internationally Wrongful Acts, which stipulates that ‘[n]o
State shall recognize as lawful a situation created by a serious
Without recognition, diplomatic or treaty relations will usually not be breach … nor render aid or assistance in maintaining that situation’.
established
Recognition is only relevant when it is unclear whether an entity
meets the criteria for statehood. Extinction:
May be extinct through merger, absorption, dissolution and
-recognition of a state only means acceptance of the personality reestablishment as new and separate states, limited
and rights and duties. Recognition is unconditional and irrevocable dismemberment with a territorially smaller state, annexation.
-may be express or tacit. Tacit implies intention of recognizing the
new state 1. Secession refers to the separation of part of a territory of an
-not to recognize territorial acquisitions or special advantages existing state to establish a new state. The so-called parent
obtained by force, diplomatic representations or other coercive state continues to exist with the same name and legal
measures. Territory of a state is inviolable and not the object of personality, but with a territory and population that are
military occupation. reduced in size.

Illegality and non-recognition How secession may be ffected:

attempts to create a new state are considered to be illegal when ● Consent of parent state
they are connected with serious violations of norms of general ● Constitutional provision
international law, in particular (peremptory) norms of jus cogens.
2. Dissolution - springs from complete collapse of the state.
Example: usurpation of power by a minority in southern Rhodesia There are times where secession could be a precursor to
and proclaiming independence dissolution.
 3. (re)unification or merger - two or more existing states join to ○ Internal - people’s pursuit of political, economic
form one single state. Existing states may merge into a social and cultural development within the framework
completely new state, as in the case of Tanzania, which of an existing state. Realized in the relationship
emerged in 1964 as a result of the merger of Tanganyika between peoples and their government.
and Zanzibar. absorption of a state into an already existing ■ Two elements: government that represents
state. absorption of the German Democratic Republic (East the people inhabiting the territory without
Germany) into the Federal Republic of Germany (West distinction
Germany) in 1990 ■ Participation of the people in the political
decisionmaking process of the state
○ External - Peoples subject to alien subjugation,
State succession: domination or exploitation. This may lead to creation
Two classifications: of an independent state, but they may also choose to
1. Legal continuation of existing state associate or integrate with an existing state, or opt
2. Creation of one of more entirely new states for any other political status.

Clean slate principle: Remedial secession - if there is oppression present, this remedy is
international law generally does not consider a new state bound by used as a last resort
treaties that were concluded by the predecessor state.

XPN: Geographical boundaries determined by treaty or other I. Accordance with international law of the unilateral
‘territorial regimes’, for instance, are not affected by state declaration of independence in respect of Kosovo (Advisory
succession and remain in force. Opinion), 2010

The 2008 Kosovo declaration of independence, which

c. Right to Self Determination proclaimed the Republic of Kosovo to be a state independent from
Article 1(1) of the International Convention on Cultural and Serbia, was adopted at a meeting held on 17 February 2008 by 109
Political Rights (ICCPR) states that all peoples are entirled to out of the 120 members of the Assembly of Kosovo. The legality of
freely determine their political status and freely pursue their the declaration has been disputed. Serbia sought international
economic, social and cultural detvelopment. validation and support for its stance that the declaration was illegal,
and in October 2008 requested an advisory opinion from the
● Two dimensions: Internal and external International Court of Justice.
 Namibia after the termination of the Mandate were
Dozens of states recognized the Republic of Kosovo soona
after its declaration of independence on February 17 2008, while it
illegal and invalid; it further called upon all States to
was questionable whether the requirement of effective government refrain from any dealings with the South African
was met, as the authorities were still heavily dependent on Government that were incompatible with that
international assistance by UN Interim administration mission in
declaration. On 29 July 1970, the Security Council
Kosovo and the EU rule of Law mission in Kosovo. By recognizing
and subsequently establishing diplomatic relationships with Kosovo decided to request of the Court an advisory opinion on
and supporting its authorities, these states contributed to the the legal consequences for States of the continued
consolidation of an effective and independent government.
presence of South Africa in Namibia. In its Advisory
Premature recognition is considered to violate the principle Opinion of 21 June 1971, the Court found that the
of non-intervention continued presence of South Africa in Namibia was
illegal and that South Africa was under an obligation to
Sea level rise in relation to international law
withdraw its administration immediately. It found that
States Members of the United Nations were under an
ii. Southwest Africa Advisory Opinion, 1971 obligation to recognize the illegality of South Africa’s
presence in Namibia and the invalidity of its acts on
27 October 1966, the General Assembly decided
behalf of or concerning Namibia, and to refrain from
that the Mandate for South West Africa was terminated
any acts implying recognition of the legality of, or
and that South Africa had no other right to administer
lending support or assistance to, such presence and
the Territory. In 1969 the Security Council called upon
administration. Finally, it stated that it was incumbent
South Africa to withdraw its administration from the
upon States which were not Members of the United
Territory, and on 30 January 1970 it declared that the
Nations to give assistance in the action which had been
continued presence of the South African authorities in
taken by the United Nations with regard to Namibia.
Namibia was illegal and that all acts taken by the South
African Government on behalf of or concerning
 Existence of the right of self determination as a norm of would create confusion and insecurity in economic relations as
international law, colonial rile constituted a violation of this right shares are "widely scattered and frequently change hands".

iii. Case Concerning East Timor (Portugal v. Australia), v. Wall Advisory Opinion, 2004
1995 [Judgment] The court responded to a request from the United Nations
Right to self determination is one of the fundamental General Assembly of 10 December 2003 on the legal question
principles of international law and is erga omnes in character, under international law of the Israeli West Bank barrier built by
meaning it is owed towards the international community as a whole, Israel that partially follows the Green Line boundary between Israel
and all states can invoke the norm. and the West Bank and partially enters into the Israeli-occupied
West Bank. The barrier has been a controversial subject and a
iv. Barcelona Traction case (Belgium v. Spain), 1970 cause of heightened tensions in the Israeli–Palestinian conflict.
[2nd Phase] Israel argued that the barrier was necessary to keep out West Bank
militants and avert more suicide attacks against its citizens.[2]
FACTS: The barcelona traction light and power company is
tied to a lot of states. It had offices in Spain and Belgium. It had a Israel began construction of the barrier during the Second
power network in Spain, shareholders from Belgium, and Intifada in September 2000, along and exceeding beyond the 1949
incorporated and headquaetered in Canada. In Spain, the court Green Line.
declared it bankrupt due to inability to pay interest on bonds issued.
Assets were seized and then transferred to a Spanish company and The wall severs the territorial sphere over which the
harmed Belgian shareholders when they reduced their shares. Palestinian people are entitled to exercise their right of
Belgium filed at the ICJ but later withdrew. Spain contended that self-determination and constitutes a violation of the legal principle
Belgium had no standing because it was a Canadian company. prohibiting the acquisition of territory by the use of force.” In this
connection, it was in particular emphasized that “The route of the
ISSUE: wall is designed to change the demographic composition of
the Occupied Palestinian Territory, including East Jerusalem, by
HELD: It was a general rule of international law that when reinforcing the Israeli settlements” illegally established on the
an unlawful act was committed against a company, only the state Occupied Palestinian Territory. It was further contended that the
of incorporation of the company could sue, and because Canada wall aimed at “reducing and parcelling out the territorial sphere over
had chosen not to do so, that was the end. The idea of a which the Palestinian people are entitled to exercise their right of
"diplomatic protection" of shareholders was unsound because it self-determination”.
 responsibilities of the sovereign state, however the UN would
d. International Organizations not be able to complete its functions if it was devoid of any legal
● Implicit and explicit powers personality.
○ Explicit - provided in treaties
○ Implicit - founded on the intentions of the parties The UN is at present the supreme type of international
● As opposed to NGOs organiazation. It must be acknowledged that its members, by
○ Established by private actors entrusting certain functions to it, with the attendant duties and
○ May be granted observer status meaning they are responsibilities, hagve clothed it with competence required to
permitted to attend meetings and be allowed to enable those functions to be effectively discharged.
speak but not vote
The fact that UN possesses international legal personality
i. Reparation for Injuries Advisory Opinion, 1949 does not mean that they possess the general rights, obligations and
FACTS: In the immediate aftermath of the second world war, competences under international law similar to those of states.
when the Zionist movement was pushibng for the creation of an International organizations only have those powers that are
independent Jewish state in Palestine, and various Palestinian attributed to them by their members and that are necessary for the
organizations were working to oppose that outcome. In 1949, Israel exercise of their functions.
was officially proclaimed as a nation. A year ago, Count Folke
Bernadotte, a Swedish count, was appointed as the UN mediator In effect, UN has what is called implied powers which are
between the PAlestinian and Jewish people. He was in his vehicle derived from the functions of the organization and its operation in
for that purpose when his vehicle was stopped by a Zionist practice.
extremist group called Lehi that fired in the open window, killing the
Bernadotte and his driver. ii. Nuclear Weapons Advisory Opinion, 1996

ISSUE: Whether any claim for reparation of damages should

be claimed by Sweden because it was the nation to which the e. Individuals and multinational corporations
mediator belonged, or whether such claim could be claimed by the ● Individuals
UN itself, given that he was in the service of UN. ○ Considered to be internal matter of the sovereign
state
HELD: Different types of organizations can be given legal ○ Nowadays, international law grants rights to
identity, and different legal personalities could be associated with individuals, giving them access to various
different legal rights. UN does not have the full rights and
 international courts and committees to enforce these of minorities are treated as individual rights, meaning
rights that they can only be invoked by an individual
○ LaGrand case: Article 36 (1) of the Vienna member of the group.
convention on consular relations. Detaining the ○ Armed opposition group - armed with fundamental
German nationals without informing them of their rights and obligations in the context of civil wars or
rights to consular assistance under the VCCR, US non-international armed conflict.
did not only violate its obligations towards Germany, ● Multinational corporations
but also the rights of the german nationals. ○ Ex: Shell, PRimark
○ Rights against torture, terrorist activities, war crimes, ○ Traditionally, they enjoy domestic legal personality
crimes against humanity, genocide and other ○ Under international economic law, they are vested
international crimes. with rights, mainly to protect their foreign
○ Emergence of international criminal law makes investments from expropriation, discriminatory legal
individuals accountable under international laws. regulations nad other actions that harm their
● Groups of individuals economic value of their investment.
○ Peoples - groups of individuals that share a common ○ Obligations: human rights and protection of the
territory, history, language and culture. It is first and environment
foremost the entire population of a sovereign state.
■ Also covers people within a state as long as
they share common characteristics. C. THE LAW OF TREATIES
○ Indigenous peoples - special relationship with a. Vienna Convention on the Law of Treaties
ancestral lands and self-identification as indigenous. Treaty - international agreement concluded between States in
■ Examples: Aboriginal and Torres Strait written form governed by international law, whether embodied in a
Islander people in Australia, Mori people in single instrument or in two or more related instruments and
NZ, Sami people in Finland whatever its particular designation
○ Rights accorded to them - UN declaration on the
rights of IP but it is not legally binding. i. Case Concerning Military and Paramilitary Activities
○ Minorities - substrate groups that have attained in and against Nicaragua (Nicaragua v. United States), 1986
international legal personality which gives them right [Merits]
to protect their culture, religion, language or other ii. Case Concerning Maritime Delimitation and
characteristics that distingiosh tjm from the majority Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain),
of the state. This is different from IPs because rights 1994
 [Jurisdiction and Admissibility] Beyond the territorial sea, the court provisionally drew an
equidistance line, and then adjusted that line to disregard the
The case between Qatar and Bahrain involved a presence of a feature that, had it been included, would have in the
longstanding court’s assessment led to an inequitable result. The southern
territorial sovereignty and maritime boundary dispute terminus is where the boundary intersects with the delimitation line
between the two gulf neighbors. Central to the question of between the maritime zones of Saudi Arabia on the one hand and
sovereignty was a 1939 decision by the British government, which of Bahrain and Qatar on the other. The northern terminus is where
at the time considered both Qatar and Bahrain British “protected the boundary intersects with the delimitation line between the
states,” that the Hawar Islands1 belonged to Bahrain. Qatar respective maritime zones of Iran on the one hand and of Bahrain
protested that decision for decades, including after its status as a and Qatar on the other.
British protected state ended in 1971. The two sides sought to
mediate the dispute under the good offices of the Kingdom of Saudi
Arabia beginning in 1976. After those mediation efforts failed, Qatar Customary international law governed these issues,
instituted proceedings before the International Court of Justice in because only Bahrain is party to the UNCLOS.
1991, submitting to the court the whole of the dispute and asking it
to “draw a single maritime boundary between their respective areas Jurisdiction: Qatar invoked as the basis of court’s jurisdiction
of seabed, subsoil and superjacent waters.”2 several exchanges of letters between the king of Saudi and the amir
of Qatar, and between King of KSA and amir of Bahrain. Qatar
After a lengthy jurisdictional phase, the court issued its argued that these exchanges of letters constituted international
merits judgment, awarding sovereignty over the Hawar Islands to agreements and represented the parties’ consent to the court’s
Bahrain, and over Zubarah3 and Janan Island,4 including Hadd jurisdiction over the entire dispute according to the Bahraini formula
Janan, to Qatar. The court’s sovereignty determinations factored accepted by Qatar. The formula requested the court to decide on
considerably into the location of the maritime boundary. the basis of a single maritime boundary between their respective
maritime areas of seabed, subsoil and superadjacent waters.
The maritime boundary established by the court consists of
42 turning points that delimit the territorial sea as well as the Qatar’s argument: proximity and territorial unity, as the
exclusive economic zone (EEZ) and continental shelf of the two Hawar islands fell within 3nm of Qatar’s coast and all of them fell
sides. Within the territorial sea, the court constructed an within 12 nm.
equidistance line, giving full effect to islands on both sides (with one
exception) but disregarding the presence of low-tide elevations Bahrain’s argument: rejected Qatar’s claim and said that it
within the area of overlapping 12 nm territorial sea entitlements. had exercised title over the Hawar islands since the 18th century.
The 1939 decision of the British government awarded the Hawar ● Takes effect when states have consented to be bound by it.
islands to Bahrain. ○ For multilateral treaties, they require a certain
number of ratifications for their entry into force
The court concluded that even though the 1939 decision is ● States have obligation not to defeat the object and purpose
not binding arbitral award, the two parties entrusted the British of a treaty prior to its entry into force.
government with the decision, and that decision was binding.

d. Reservations
b. Expressing consent to be bound Allows the state to limit the extent to which it commits to be bound
● Signature - sufficient expression of state’s consent and by the treaty provisions
represents simplest and quickets way for state to express its
consent without need for ratification by legislative body Effects:
○ Only available where the treaties or parties so ● Exclude provisions
provide ● Modify provisions
○ Executive agreement - without involvement of
domestic legislature in ratifying the treaty VCLT’s nature:
● Ratification - allows legislative bodies to play a key role in Universality - provisions work towards ensuring wide or universal
consenting to a treaty participation
○ International act through which a state establishes integrity - reservations do not undermine the treaty’s integrity
on an international plane its content to be bound by a
treaty GR: states are free to enter reservations to treaties,
○ Can involve instrument of ratification with the XPNs: treaty could explicitly prohibit reservations
depository which could be another state or IO. Treaty could only permit specified reservations
○ Hinges on domestic procedures for consent Reservation could be incompatible with the treaty’s objective
○ Similar to approval and acceptance
● Accession - applicable where a state wishes to become a Other parties are not obliged to accept reservations
party to a treaty at a relatively late stage after prescribed
period for signature and ratification has expired. Gives Effect of silence in objection:
latecomers method of consent through a single act Deemed as acceptance of the state at the end of the 12-month
period
c. Entry into force
How incompatibilities are assessed: 1. implementing or amending domestic legislation, regulations
1. Terms of the treaty (title or preamble) or policies;
2. travaux préparatoires (the drafting history of the treaty) 2. by executing a transboundary infrastructure project;
3. the circumstances of the treaty’s conclusion, 3. by extraditing suspects;
4. Party’s subsequent practice 4. by training police forces not to torture persons in police
custody; or
Effect of objection to a reservation 5. by demarcating a land boundary.
As a general rule, an objection to a reservation does not prevent a
treaty’s entry into force between the state that has made the i. Whaling in the Antarctic (Australia v. Japan; New Zealand
reservation and the state that has objected to the reservation. intervening), 2014 [Judgment]

Needs definite expression of objecting state’s intention to preclude Japan’s good faith compliance with the 1946 International
treaty’s entry into force. Convention on the Regulation of Whaling (ICRW) was at the heart
of a case brought to the ICJ in 2010 by Australia against Japan.66
Legal effects of invalid reservation Australia alleged, among other things, that Japan’s scientific
ICL’s solution - The state that has entered the reservation, thus whaling programme did not represent a good faith application of
remains a party to the treaty without the benefit of the reservation, Article VIII of the ICRW, which creates an exception to the
or ceases to be bound by the treaty altogether. moratorium on the killing of whales for commercial purposes that
was instituted under the ICRW in the 1980s. Soon after the
e. Scope of application (Art 26) moratorium took effect in 1986, Japan instituted a scientific whaling
Territorial - binding upon each party in respect of territory programme that involved the killing of hundreds of minke whales
xpn: human rights treaties and humanitarian law treaties each year. Although suggestions of bad faith permeated the case,
apply to people under their jurisdiction even outside their territory the ICJ’s decision that Japan’s scientific whaling programme
Temporal - cannot apply retroactively violated its obligations under the Convention was grounded in treaty
interpretation and scientific evidence.
Pacta sunt servanda - agreements must be kept

[e]very treaty in force is binding upon the parties to it and must be States are obliged to perform regardless of the state of
performed by them in good faith’. domestic legislation.
If domestic legislation is in conflict with treaty, a state is
How states can perform treaty obligations: obliged to repeal, amend or replace the former.
 Treaties Cannot apply retroactively Teleological approach - object and purpose.
● Involves review of treaty’s title, preamble, particular treaty
provision and drafting history
f. Interpretation of treaties ● Involves two approaches:
Carried our by various actors, including government lawyers, ○ Principle of effectiveness - for treaties that provide a
officials at IOs, judges of domestic and international courts and framework for long-term cooperation such as treaties
tribunals. that create international organization. FAvors
interpretations that help to ensure that the goals of
Three schools of thought: 1) subjective intention of the parties that an international organization can be carried out
drafted the treaty, 2) objective or textual approach which focuses on effectively.
ordinary meaning of the treaty language, 3) teleological approach ■ This is what ICJ relies on to interpret its own
which focuses on the object and purpose of the treaty. statute
○ Dynamic interpretation - interpretation of treaty
Article 31 (1) - shall be interpreted in good faith in accordance with language in situations that may not have been
ordinary meaning to be given to the terms of treat in their context foreseen by the parties that drafted the treaty. By
and in light of object and purpose. relyin on the object and purpose of the treaty,
● Looking at the dictionary definition of words and context dynamic interpretation may depart from the
○ Determining context - not only limited to preamble subjective intention of treaty drafteds
and any annexes but for agreements relating to the
treaty e.g. agreement and practice, any relevant
rules of international law i. Southwest Africa Advisory Opinion, 1971
ii. Case concerning Oil Platforms (Iran v. United
Article 31 (3) - subsequent agreements between parties regarding States), 2003 [Merits]
the interpretation or application of the treaty as well as subsequent
practice iii. LaGrand Case (Germany v. United States), 2001
[Judgment]
Article 32 - subjective intentions, only secondary means. Treaty The court considered the meaning of Art 41 of its statute, a
interpreters may have recourse to supplementary means of provision that gives it power to order emergency or provisional
interpretation, including preparatory work and circumstances of measures while a case is pending before the Court, in order to
conclusion
preserve the rights of the parties before the Court delivers its final The Court was focused on the interpretation and application
judgment on the merits of the dispute. of Article VIII of the ICRW, which permits state parties to grant
special permits authorizing the killing of whales for the purposes of
Art 41 provides that the Court shall have the power to scientific research. The Court was unable to rely on the object and
indicate, if it considers that circumstances so require, any purpose of the treaty, because the preamble references conflicting
provisional measures which ought to be taken to preserve the aims of conservation and sustainable exploitation of whales.
respective rights of either party. This is controversial because it Counsel for Australia: ICRW should be interpreted
does not explicitly give the court the power to order binding restrictively in light of the preamble’s language on conservation
provisional measures which the parties are obliged to comply.
Counsel for Japan: should be interpreted expansively in light
ICJ relied on principle of effectiveness to interpret Art 41. of the preamble’s language on exploitation.
The statute’s object and purpose was the judicial settlement of
international disputes through binding decisions, and that the Because these goals are in tension with each other,
Court’s ability to carry out this function would be hampered if it did teleological was unhelpful. The Court found that Article VIII pursued
not have the power to preserve the rights of the parties by indicating a separate purpose, namely the promotion of scientific knowledge
binding provisional measures. rather than conservation or exploitation.

The Court's decision in this case confirmed that US had The Court referred to the provision’s context, in particular
indeed been bound by the Court’s earlier provisional measures subsequent agreements between parties in the form of guidelines
order not to execute two German nationals on death row in the US - issued by IW Commission. The Court embraced a highly textual
an order that the US had violated when the case was pending reading of the provision, which allowed the Court to focus on
before the court. whether Japan’s whaling programme was for the purposes of
scientific research.
iv. Whaling in the Antarctic (Australia v. Japan; New
Zealand intervening), 2014 [Judgment]
This case illustrates the limitations of the teleological g. Invalidation, Termination, and Suspension of Treaties
approach to treaty interpretation which loses its force as an GR: Law of treaties favors stability of treaty relations
interpretive approach where the object and purpose of a treaty Treaties are made to be kept.
cannot be satisfactorily ascertained.
● Invalidity - treaties are presumptively valid, meaning that the GR: Treaties that lack provisions on termination do not
validity must be impeached or challenged by reference to permit withdrawal.
certain rules of treaty law. XPN: parties intend to allow for withdrawal as may be
○ Voidable treaties - remains valid until a state implied by the nature of the treaty.
successfully invalidates it on the basis of a
circumstance surrounding its conclusion. Incapable of withdrawal: peace treaties, disarmament
■ Voidable if lack of consent, error, fraud or treaties, human rights treaties, and treaties establishing permanent
corruption regimes such as governing the Suez and Panama canals, ICCPR
○ Void ab initio - void from the beginning where its Why ICCPR does not permit withdrawal - because rights
conclusion involved coercion of the state or its under ICCPR are accorded to people living in the territory of the
representative, or conflicts with a jus cogens norm. state and remain with them even when fundamental features of the
● Suspension - temporary state of affairs in which the state or government change.
operation of the treaty is paused, while the treaty continues
to exist. Capable of withdrawal - alliances, commerce and trade, and
○ May be unilateral, or through terms of treaty or cultural relations
through consent of all parties following consultation.
○ Example: some human rights treaties allow for Grounds for suspension / termination of treaties
unilateral suspensions in case of public emergency ● Material breach
which threaten the life of the nation. ○ For bilateral treaties - other party may
○ If all parties suspend, treaty itself is suspended. If suspend or terminate the treaty in whole or in
one or some parties suspend, the treaty remains in part
operation for the rest. ○ For multilateral treaties - other parties may
● Termination - brings treaty obligations to an end. suspend or terminate the treaty in whole or in
○ Withdrawal - provisions on withdrawal must be made part, either among all parties or between the
by including a notice period, which gives other defaulting party and the other parties
parties a warning that the state will no longer be ● Supervening impossibility of performance
bound by the treaty after a certain period of time. ○ Caused by permanent disappearance or
○ Withdrawal from a treaty does not affect the binding destruction of an object indispensable for the
obligations under customary international law. execution of the treaty
○ Cannot be invoked if resulted from party’s
Not all treaties are capable of withdrawal. own breach
 ● Fundamental change of circumstance i. United Nations Convention on Jurisdictional
Immunities
ii. Case concerning certain Questions of Mutual
h. Jus cogens Assistance in Criminal Matters (Djibouti v. France), 2008
[Judgment]
D. STATE RESPONSIBILITY iii. Arrest Warrant Case (DRC v. Belgium), 2002
a. Internationally Wrongful Act [Judgment]
i. ILC Draft Articles on Responsibility of States for d. Diplomatic and Consular Immunities
Internationally Wrongful Acts e. Immunities of International Organizations
b. Attribution
i. Application of the Convention on the Prevention and F. INTERNATIONAL DISPUTE SETTLEMENT
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. a. Diplomatic methods
Serbia and Montenegro), 2007 [Judgment] b. Legal Methods
ii. Case Concerning Military and Paramilitary Activities c. Jurisdiction of the International Court of Justice and other
in and against Nicaragua (Nicaragua v. United States), 1986 tribunals
[Merits] i. ICJ Statute
iii. The Prosecutor v. Duško Tadić, 1999 [Judgment] ii. Rome Statute
c. Circumstances Precluding Wrongfulness d. Methods for consenting to arbitration and
d. Legal Consequences of Internationally Wrongful Act adjudication
e. Jus cogens
i. Legal Consequences of the Separation of the G. INTERNATIONAL HUMAN RIGHTS LAW
Chagos Archipelago from Mauritius, 1965 [Advisory Opinion] a. Civil and Political Rights: International Convention on Civil
f. Due diligence and Political Rights; Universal Declaration of Human Rights; Human
i. Pulp Mills on the River Uruguay (Argentina v. Rights and Fundamental Freedoms
Uruguay), 2010 [Judgment] b. Economic, Social, and Cultural Rights: International
Convention on Economic, Social, and Cultural Rights
E. IMMUNITIES c. Collective Rights
a. State Immunity and its scope d. Territorial Scope of Human Rights Norms
b. Immunity of State Officials i. Wall Advisory Opinion, 2004
c. Functional and Personal Immunities and International ii. Case concerning Armed Activities on the Territory of
Crimes Congo (DCR v. Uganda), 2005 [Judgment]
e. Restrictions to Human Rights d. Protection of Marine Environment
i. Derogation in Time of Public Emergency e. Climate Change
ii. Jus cogens i. Request for an Advisory Opinion submitted by the
Commission of Small Island States on Climate Change and
H. INTERNATIONAL CRIMINAL LAW International Law (Request for Advisory Opinion submitted to the
a. Genocide Tribunal), ITLOS, 2024
i. Genocide Convention
ii. Rome Statute (Jurisdiction of ICC)
iii. Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Serbia and Montenegro), 2007 [Judgment]
iv. Prosecutor v. Radislav Krsić, ICTY Appeals
Chamber, 2004 [Judgment]
b. Crimes against Humanity
i. Prosecutor v. Dragoljub Kunarac, Radomir Kovac
and Zoran Vukovic, ICTY Appeals Chamber, 2002 [Judgment]
c. War Crimes
i. Case Concerning Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States), 1986
[Merits]
d. Crime of Aggression

I. LAW OF THE SEA

a. United Nations Convention on the Law of the Sea
b. Maritime Areas vis-à-vis Philippine Archipelagic doctrine
i. Magallona v. Ermita, G.R. No. 187167
ii. South China Sea Arbitration (Republic of the
Philippines v. People’s Republic of China), 2016 [Merits]
c. Delimitation of Maritime Boundaries
i. Territorial and Maritime Dispute (Nicaragua v.
Colombia), 2012 [Judgment]