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Public International Law - Detailed Course Notes with Case Briefs, Study notes of International Public Law

O.P. Jindal Global UniversityInternational Public Law

Detailed Course Notes with Case Briefs on Sources of International Law (Treaties, Conventions, Customary International Law, General Principles of Law, Jus Cogens, Erga Omnes), Subjects of International Law, States and Statehood, State Responsibility, State Jurisdiction, Self Determination, Settlement of International Disputes, Role of the International Court of Justice, Use of Force & Exceptions to the Prohibitions, Critiques of International Law, TWAIL

Typology: Study notes

2020/2021

Available from 06/09/2024

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Public International Law Niharika Palep [21 JGLS]
1
PUBLIC INTERNATIONAL LAW
WEEK 2: SOURCES OF INTERNATIONAL LAW – I ............................................................................. 4
I. INTERNATIONAL CONVENTIONS – TREATIES ........................................................................................... 4
Introduction: Definition, authority, procedure, consent ............................................................................ 4
General framework of treaties ................................................................................................................... 5
Authority to Make Treaties ........................................................................................................................ 5
Expression of State Consent....................................................................................................................... 6
Reservations ............................................................................................................................................... 6
Declarations ............................................................................................................................................... 8
Invalidation of treaties ............................................................................................................................... 9
Termination .............................................................................................................................................. 12
WEEK 3: SOURCES OF INTERNATIONAL LAW – II ......................................................................... 14
II. CUSTOMARY INTERNATIONAL LAW (CIL) ............................................................................................ 14
State Practice ........................................................................................................................................... 14
Opinio Juris Sive Necessitatis .................................................................................................................. 15
Example of formation of a custom ........................................................................................................... 16
Acquiescence – Prominent mode of emergence of a new rule of CIL ..................................................... 16
Persistent Objector .................................................................................................................................. 16
Subsequent Objector ................................................................................................................................ 16
WEEK 4: SOURCES OF INTERNATIONAL LAW – III ........................................................................ 18
III. GENERAL PRINCIPLES OF LAW ............................................................................................................... 18
IV. SUBSIDIARY SOURCES OF IL .................................................................................................................. 18
JUS COGENS .................................................................................................................................................. 19
ERGA OMNES ................................................................................................................................................ 19
WEEK 5: INTERNATIONAL LEGAL PERSONALITY – I ................................................................... 21
I. SUBJECTS OF INTERNATIONAL LAW ...................................................................................................... 21
II. STATES AS TRADITIONAL INTERNATIONAL LEGAL PERSONS ................................................................ 21
III. STATEHOOD .......................................................................................................................................... 21
IV. STATE SOVEREIGNTY ............................................................................................................................ 23
V. STATE RECOGNITION ............................................................................................................................ 23
VI. RECOGNITION OF GOVERNMENT ........................................................................................................... 24
WEEKS 7-8: SELF-DETERMINATION .................................................................................................... 25
I. SELF DETERMINATION .......................................................................................................................... 25
Statutory-basis ......................................................................................................................................... 25
Legal precedents ...................................................................................................................................... 25
II. TYPES OF SELF-DETERMINATION – INTERNAL SELF-DETERMINATION & EXTERNAL SELF-
DETERMINATION ........................................................................................................................................... 26
III. SECESSION OF QUEBEC - RE SECESSION OF QUEBEC CASE (1998) ........................................................ 27
IV. APPROACHES TO THE RIGHT TO SELF-DETERMINATION ......................................................................... 27
WEEK 9: SETTLEMENT OF INTERNATIONAL DISPUTES - INTERNATIONAL COURT OF
JUSTICE ......................................................................................................................................................... 29
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PUBLIC INTERNATIONAL LAW

Week 2: Sources of International Law – I o Formal sources: from which the legal rules derive their legal validity – methods of law creation which are legally binding on their addressees – via consent – e.g., treaties, customs, general principles of law o Material sources: not legally binding but may provide evidence that sheds light on the evidence of a legally binding rule – essentially the political, sociological, economic, moral, or religious origins of legal rules – e.g., a study of ILC, resolution of a political organ, a textbook of IL The ICJ Statue outlines the following as sources of international law u/Article 38 – a) International Conventions – whether general or particular, establishing rules recognised by consenting states – treaties, conventions, protocols, agreements, accords b) Customary International Law [CIL] Principles c) General principles of law recognized by civilised nations d) Judicial decisions and writings of the most highly qualified publicists I. International Conventions – Treaties Introduction: Definition, authority, procedure, consent Treaty: an international agreement concluded between states in written form and governed by IL, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation – Article 2(1) of the Vienna Convention on the Law of Treaties – VCLT ▪ “concluded between states” – International Organisations (IOs) can also be party to treaties – confirmed by Article 3 VCLT ▪ “in written form” – Although the VCLT requires treaties to be in written form, CIL shows that this is not always needed ▪ “governed by international law” – Rule of international law, including CIL governing set of rules for treaties. This would exclude internationalized commercial contracts (private international law) ▪ “whatever its particular designation” – The nomenclature of the document does not determine if it is a treaty – treaty, protocol, convention, MoU, agreement, declaration, covenant = treaty depending on the object and purpose of the document

  • Predominant source of rights and creator of legally binding obligations in the international legal order
    • the most direct and formal method
  • There is no specific requirement of form for the existence of a treaty. The one thing differentiating treaties from other informal int. instruments is that within treaties, there is intention to create legal relations by means of an agreement.
  • While all treaties are binding on States which are parties to them by virtue of the principle of pacta sun servanda , many treaties are also important authoritative texts of CIL.
  • Article 26 – VCLT codifies pacta sunt servanda , stating that every treaty in force is binding upon the parties and must be performed in good faith.
  • In theory, where a treaty provision codifies a CIL rule, the treaty provision becomes merely evidentiary, and the source of law becomes opinio juris and state practice.
  • the law of treaties applies to agreements governed by IL
  • an agreement between states concerning a matter to be governed by the municipal laws (ML) (e.g. certain commercial transactions) do not constitute a treaty under IL
  • the term ‘treaty’ is non-specific – it does not matter exactly what an agreement is called Types of treaties
  1. treaties of a general nature – widely accepted, binds every nation that accepts them
  2. treaties with a specific nature – mostly between a small number of states and on a limited topic but may still provide evidence of customary rules General framework of treaties Substantive provisions in treaties outline the main purposes and legally binding agreements that sponsoring states have committed to uphold, such as Article 6.1 of the International Covenant on Civil and Political Rights which safeguards the inherent right to life. Operational provisions , on the other hand, detail the mechanisms through which these substantive provisions are implemented, including processes like entry into force, treaty registration, and the management of amendments, facilitating legal transactions between states Dispute Resolution Provisions – Provide for the mechanism for resolving disputes arising under the treaty. This may include interpretation of treaty, especially if one of the contracting state’s practice (prior to codification) is not in conformity with the treaty obligation ▪ In cases where contracting states under the Montreal Convention of 1971 are unable to resolve disputes through negotiation or arbitration, any party involved may refer the dispute to the International Court of Justice (ICJ) for resolution. ▪ Article 7 of the Montreal Convention of 1971 requires negotiators representing states to demonstrate accreditation or "full powers," except for certain obvious representatives like heads of states, while ▪ Article 8 allows for retrospective authorization of representatives' acts by states, as exemplified by the Stresa Agreement of 1951 on cheese naming conventions. Authority to Make Treaties o The power to make treaties is derived from a country's municipal laws. For example, Article 253 of the Indian Constitution read with Entry 13 & 14 of the Union List in Schedule VII grants Parliament the power to implement treaties, even on subjects within state competence. o Maganbhai Ishwarbhai Patel v. Union of India – Parliament alone has the power to make laws to implement treaties, overriding state legislature competence. o Under IL, States have the capacity to make/conclude treaties ( Article 6 of the VCLT ) o A person representing the State with appropriate ‘full powers’ ( Article 7 of VCLT ) o Certain officials, like Heads of State, Government, Foreign Ministers, heads of diplomatic missions, and representatives to international conferences or organizations, need not produce full powers. o ICJ in Somalia v. Kenya – state representatives may authorize other officials to adopt a treaty or express consent on behalf of the state. o Procedure for Making Treaties : No prescribed form or procedure exists for making treaties, but they must comply with rules set out in the VCLT. ▪ Article 6 VCLT – every state's capacity to conclude treaties. ▪ Article 7 VCLT – representatives with full powers can conclude treaties on behalf of states. ▪ Article 8 VCLT – If a treaty is concluded by someone without proper authority as per Article 7 VCLT , Article 8 states that the act has no legal effect unless subsequently confirmed by the state.
  • Art. 2(1)(d) VCLT , reservation means a unilateral statement (however phrased) made by a State when signing, ratifying, accepting, or acceding to a treaty whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to their State.
  • A State is entitled to make reservations against parts of the treaty it has a contention with, provided certain principles are met.
  • Benefits : more States willing to ratify the treaty, allows flexibility to States, and encourages harmony between states with differing social, economic, and political systems
  • Challenges: reservations could jeopardize the whole exercise, defeat the purpose, and give rise to complicated interrelationships
  • Reservations do not apply to bilateral treaties, but only to multilateral treaties.
  • Countries may either omit some aspects of the treaty or apply a different understanding to them (declarations).
  • Reservations are prohibited if explicitly stated by the treaty – Article 120 of the Rome Statute and Article 18 of the Montreal Protocol on Ozone Layer.
  • Reservations must not be against the object and purpose of the treaty.
  • Some treaties permit only specific reservations – Article 12 – Convention on the Continental Shelf Why are reservations important? Reservations are important because they enable a state to participate in a treaty despite finding certain provisions unacceptable. Given that multilateral treaties result from meticulous negotiations involving many concessions and compromises, reservations allow states to adjust their obligations under the treaty to conform to their domestic law, which might be necessary for political, cultural, or social reasons. Allowing for reservations enhances inclusivity, permitting states to be party to the treaty while being exempted from specific provisions, essentially modifying certain aspects of the treaty to accommodate their unique circumstances. Formulation Stage: Article 19 states that a state may formulate a reservation when signing, ratifying, accepting, approving, or acceding to a treaty unless: a) The reservation is prohibited by the treaty. b) The treaty allows only specified reservations, excluding the reservation in question. c) The reservation is incompatible with the object and purpose of the treaty. Process of Formulating and Accepting Reservations First Step : Formulation ( Article 19 VCLT ): A reservation must be formulated at a particular time, respecting substantial validity criteria. Second Step : Acceptance ( Article 20 VCLT ): The formulated reservation must be accepted by other states. Third Step : Effects Determination ( Article 21 VCLT ): After formulation and acceptance, the effects of the reservation and its acceptance (or objections) can be determined. Effect of Reservations and Objections: o Old Rule ( Article 20.2 VCLT ): Reservations required the consent of all other parties to be applicable. o New/Alternate Rules: ICJ's Reservation to the Genocide Convention Opinion (1950): A reservation is acceptable if it does not violate the basic object and purpose of the treaty, even if other states object. The treaty does not apply between a state that believes a reservation is against the object and purpose of the treaty and the reserving state. Only states that have accepted the reservation will be bound by it. o If State A makes a reservation and State B does not accept it but still wants State A as a party, the treaty will be enforced between A and B as if the reserved part is excluded. Violation of another party’s accepted reservation is a violation of the treaty only against the reserving state.

When can a country make a reservation? In every case, unless

  1. the reservation is either prohibited by the treaty ( UNCLOS Art. 309/ ICC Art. 120 ),
  2. the treaty provides only specified reservation (which does not include the reservation in question) ( Art. 12 of the Convention on Continental Shelf 1958 ) or
  3. in cases where the reservation is incompatible with the object and purpose of the treaty [ Art. 19 VCLT ] Who can enter a formal reservation? In the UN’s legal capacity as the registrar of Treaties (Art 102), reservations can be formulated by:
  4. The Head of State,
  5. The Head of Government,
  6. The Minister of Foreign Affairs (MFA)
  7. and/or A person acting in that capacity or with delegated authority from one of the above. When is a reservation incompatible with the object and purpose of the treaty? o League of Nations (LoN) System: Reservations to treaties required unanimous acceptance by all parties. If any party objected, the reservation was null and void. o United Nations (UN) System: Rules were modified for more flexibility. Aimed to balance treaty universality and integrity. o 1951 ICJ Advisory Opinion on Genocide Convention : Can a State be a party to the Genocide Convention while maintaining reservations objected to by some parties? ICJ's Conclusion: No absolute answer; must be assessed on a case-by-case basis. By a 7-5 majority, held that a State can remain a party if its reservation is compatible with the treaty’s object and purpose. o Vienna Convention on the Law of Treaties (VCLT): Codified the 'object and purpose' test from the ICJ's advisory opinion. Reservations must not be incompatible with the object and purpose of the treaty to be acceptable. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide The ICJ opined that a state making a reservation can be considered a party to the Convention only if the reservation is compatible with the object and purpose of the Convention. If incompatible, the state cannot be regarded as a party. Parties Objecting: If a party objects to a reservation it deems incompatible with the Convention’s object and purpose, it can consider the reserving state not a party to the Convention. Parties Accepting: If a party accepts the reservation, it considers the reserving state as a party to the Convention. Objections by Non-Ratifying States: ▪ Signatory States: An objection by a signatory state not yet ratified holds no legal effect until ratification, after which it may become final. ▪ Non-Signatory States: An objection by a state entitled to sign or accede but not yet done so holds no legal effect. General Principle: The ICJ emphasized the principle that states’ reservations should be assessed based on their compatibility with the Convention’s object and purpose, ensuring the essential goals of the Convention are preserved while promoting broad participation Declarations
  • Article 46 – Provisions of internal law regarding competence to conclude treaties – A state's consent to a treaty is not invalidated by internal law violations unless the violation is manifest and concerns a fundamental rule.
  • Article 47 – Specific restrictions on authority to express the consent of a State – A representative's consent is not invalidated by failing to observe specific restrictions unless these restrictions were notified to other negotiating states beforehand.
  • Article 48 – Error – A state can invalidate its consent if a treaty error concerns an essential fact or situation, unless the state contributed to the error or should have been aware of it.
  • Article 49 – Fraud – A state can invalidate its consent if it was induced to conclude a treaty by the fraudulent conduct of another state.
  • Article 50 – Corruption of a representative of a State – A state's consent is invalid if procured through the corruption of its representative by another negotiating state. Article 46 and 47 – Cameroon v Nigeria – regarding the validity of consent given by the Nigerian head of state to the Maroua Declaration, Nigeria contended that despite the head of state's signature and ratification of the treaty, constitutional laws did not authorize him to do so. The ICJ ruled that unless properly publicized, there was no evident limitation on the head of state's powers, and negotiating states like Cameroon were not legally obligated to be familiar with Nigeria's internal laws in the case. Article 48 - Temple Preah Vihear case – The ICJ ruled that only errors in the form of fact or situation during a treaty's conclusion could invalidate a state's consent to the treaty, provided they related to an essential basis of its consent. The ICJ rejected Thailand's claim of error in a map depicting the temple's location, arguing that Thailand should have known about any potential error due to the involvement of technical experts in examining the map, thus attributing responsibility to Thailand rather than Cambodia for any inaccuracies. Article 49 and 50
  1. The German-Czechoslovak Nationality Treaty1938: Occupation of Sudetenland by Coercion
  2. Agreement for the restoration of President Aristide's Government in a Treaty between USA and Haiti (Governors Island Agreement), while use of force was imminent from the US and other. 2) Absolute Grounds for Invalidity ( Articles 51 – 53 )
  • Renders the treaty devoid of legal effect between all parties.
  • Makes the treaty void ab initio, releasing all parties from their legal obligations under the treaty.
  • Article 51: Coercion of a Representative of a State – A State's consent to be bound by a treaty, if procured by coercion of its representative through acts or threats, is without any legal effect.
  • Article 52: Coercion of a State by the Threat or Use of Force – A treaty is void if its conclusion was procured by the threat or use of force, in violation of the principles of international law embodied in the Charter of the United Nations.
  • Article 53 : Treaties Conflicting with a Peremptory Norm of General International Law (Jus Cogens) – A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. A peremptory norm (jus cogens) is a norm accepted and recognized by the international community of States as a whole, from which no derogation is permitted and which can only be modified by a subsequent norm of general international law of the same character.

Human Right Committee GC 24 on Reservations Reasons for General Comment on Reservations:

  • The Committee identified significant issues with the number and nature of reservations made by states to the International Covenant on Civil and Political Rights (ICCPR).
  • Of the 127 State parties, 46 had entered 150 reservations, impacting the Covenant's obligations.
  • Reservations vary: some exclude specific rights, others ensure domestic legal provisions' supremacy, and some limit the Committee's competence.
  • Such reservations can undermine the Covenant’s implementation and weaken respect for State obligations.\While the ICCPR does not prohibit reservations, international law, particularly the Vienna Convention on the Law of Treaties (VCLT), guides their acceptability based on compatibility with the treaty's object and purpose. Substantive Provisions Protected from Reservations:
  • Reservations incompatible with peremptory norms (jus cogens) are unacceptable.
  • Human rights treaties benefit individuals within State jurisdictions, not just interstate obligations.
  • Provisions in the ICCPR reflecting customary international law or peremptory norms cannot be reserved.
  • Examples of non-reservable rights include prohibitions against slavery, torture, cruel treatment, arbitrary deprivation of life, arbitrary detention, and rights related to freedom of thought, conscience, religion, and fair trial. Object and Purpose Test for Human Rights Treaties:
  • The Committee considers if reservations to non-derogable provisions (those that cannot be suspended even in emergencies) align with the Covenant's object and purpose.
  • Certain rights remain non-derogable because their suspension is irrelevant or impossible, such as freedom of conscience.
  • Non-derogable rights often ensure the rule of law; examples include prohibitions on torture and arbitrary deprivation of life.
  • States must heavily justify reservations to non-derogable provisions to avoid violating the Covenant’s object and purpose. Reservations to the Optional Protocols:
  • Reservations to obligations in the Optional Protocols (which allow individual complaints to the Committee) do not negate the State’s substantive obligations under the ICCPR.
  • Such reservations cannot circumvent the Committee’s competence to review compliance with the ICCPR.
  • Reservations that preclude the Committee’s review under the Optional Protocol contradict its object and purpose. Special Character of Human Rights Treaties:
  • The VCLT governs reservations but is seen as inadequate for human rights treaties due to their unique nature.
  • Human rights treaties aim to protect individual rights, not merely exchange obligations between states.
  • State objections to reservations often lack legal impact on the treaty’s applicability between states.
  • The Committee questions the effect of such objections and traditional rules on human rights treaties. Legally Valid Reservations:
  • Reservations must be specific and transparent, clearly indicating which human rights obligations are not undertaken.
  • General reservations are not permissible; they must reference specific provisions of the Covenant and precisely define their scope.

b. Supervening impossibility of performance – Article 61 – After the conclusion of a treaty, if certain circumstances emerge which render the performance of an obligation under the treaty permanently impossible, a party may withdraw from or terminate it. c. Fundamental change of circumstances – Article 62 – Coming from the Latin maxim rebus sic standibus , this principle allows a party to unilaterally undermine treaty relations by identifying circumstances that allow it to terminate its contractual obligations. Article 56 – Termination or suspension without specific provision – stipulates that a treaty without explicit termination, denunciation, or withdrawal provisions can only be denounced or withdrawn from if it is shown that the parties intended to allow such actions or if the treaty's nature implies such a right, with a requirement of at least twelve months' notice before withdrawal. o Pacta Sunt Servanda Principle : Treaties must be honoured and performed in good faith by the parties involved – ensures the stability and reliability of treaties o Rebus Sic Stantibus Doctrine : Allows for the termination or suspension of a treaty due to a fundamental change in circumstances. ▪ The ICJ acknowledges rebus sic stantibus but applies it very narrowly to preserve the stability of treaties. ▪ Provides an exceptional and narrowly applied escape clause for unforeseen, fundamental changes that radically alter the treaty's obligations ▪ The ICJ’s narrow application of rebus sic stantibus maintains the balance between treaty stability and adaptability to fundamental changes. o Fisheries Jurisdiction (UK v. Iceland) (Jurisdiction and Admissibility Stage, Para 36) – The ICJ recognized that a fundamental change in circumstances could justify the termination or suspension of a treaty if it results in a radical transformation of the obligations imposed by the treaty. Such a change must be unforeseen and must radically alter the obligations. Gabčíkovo-Nagymaros Case: Hungary and Czechoslovakia entered into a 1977 treaty to build a dam system on the Danube River. Hungary later terminated the treaty, citing environmental concerns and other grounds – claiming a fundamental change in circumstances due to: ▪ Replacement of Communist governments ▪ Emergence of both states as market economies ▪ Progress in environmental knowledge The ICJ concluded that these changes did not collectively or individually meet the threshold for radically transforming the obligations of the treaty. Emphasized that a fundamental change of circumstances must be unforeseen, and the principle should only apply in exceptional cases. The ICJ ruled that Hungary's termination was invalid, stating that the alleged grounds did not justify the treaty's termination under international law.

Week 3: Sources of International Law – II II. Customary International Law (CIL)

  • When no treaty (bilateral/multilateral) is binding on the parties, the dispute is to be governed by CIL.
  • Custom – a standard of behaviour that governs relations between certain set of people. Rules developed through social practice which are then gradually accepted by parties.
  • Recurring interaction + among individuals and groups + accompanied by acknowledgement that this mode of interaction produces certain expectations of conduct
  • Two elements to identify a custom: o Material element – the actual practice (generally called usus, i.e. usage) o The subjective element à belief of states that such behaviour is ‘law’ (opinion juris sive necessitatis, i.e. ‘an opinion as to law or necessity)
  • As Court noted by the ICJ in the Continental Shelf (Libya v Malta) case, the substance of customary law must be “looked for primarily in the actual practice and opinio juris of states.” General rule: State practice + Opinio Juris (practice accepted as law) = Rule of CIL Both are required to establish a rule of international law. This means that there must be proof of state practice following a particular principle of law and the belief of the State must be that this course of action is legal and binding upon them. If this belief exists along with the practice, it can be sufficiently inferred that the State has tacitly consented to the rule involved. State Practice
  • Various actions of the state (e.g. statute, constitution, statements, judicial decisions) that are repeated
  • not just one element of the state
  • In IL, there is no rigid time element for a practice to become State practice, and it will depend upon the circumstances of the case and the nature of the usage in question.
  • Generally, state practice is the best way of identifying a new custom. Asylum Case – Colombia v. Peru o Facts - The case concerned Haya de la Torre, a Peruvian, who was sought by his government after an unsuccessful revolt. He was granted asylum by Colombia in its embassy in Lima, but Peru refused to issue a safe conduct to permit Torre to leave the country. Colombia brought the matter before the ICJ and requested a decision recognising that it was competent to define Torre’s offence, as to whether it was criminal, or political in which case asylum and a safe conduct could be allowed. o Issues – The issue involved here dealt with a regional custom pertaining only to Latin America and the Court had to decide whether it had customary status. Court’s Decision - The Court held that it had to constitute the expression of a right appertaining to one state (Colombia) and a duty incumbent upon another (Peru). However, the Court felt that in the Asylum litigation, state practices had been so uncertain and contradictory as not to amount to a ‘constant and uniform usage’ regarding the unilateral qualification of the offence in question. The issue involved here dealt with a regional custom pertaining only to Latin America and it may be argued that the same approach need not necessarily be followed where a general custom is alleged and that in the latter instance a lower standard of proof would be upheld. The party must prove that the rule invoked by it is in accordance with a constant and uniform usage practiced by states.

Example of formation of a custom In 1945, the U.S. President Truman made a unilateral proclamation with respect to the policy of the US w.r.t the Natural Resources of the Subsoil and Seabed of the Continental Shelf which declared U.S.’s national jurisdiction upon the continental shelf along U.S. coastline. Soon after, the continental shelf concept came to be recognised rapidly through emulation and acquiescence, mostly due to post-war economic needs and technological advancements. Other states started formulating similar claims to the adjacent continental shelf and other states, if affected by this proclamation of a right, had the option of either reacting either by objecting to the assertion or by refraining from objecting. Acquiescence – Prominent mode of emergence of a new rule of CIL Generally, a State cannot be expected to consent or object to every possible new instance of relevant practice. During the development of the CIL rule, the state needs to declare its disagreement. As per the ICJ in Gulf of Maine case (United States/Canada) held that acquiescence is equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent. Claim & Response (Prof. Myers McDougle): Continuous claim and response, whether express or implicit, initiate the formation of CIL as states either imitate the practice or acquiesce to it. Articulation v Act (Prof. D’Amato): CIL forms through the articulation of principles, either accompanying initial acts or found in treaties and resolutions, with consistent subsequent acts crystallizing these principles into binding legal customs. When can a new rule of CIL not bind a particular State? Usually, a new general rule of CIL binds all States. However, there are some exceptions which are: Persistent Objector

  • Principle 15 – If whilst a practice is developing into a rule of general law, a State persistently and openly dissents from the rule, it will not be bound by it
  • This allows a State to exempt itself from the application of a new CIL rule if it can be demonstrated that it had objected persistently, and explicitly, during the period when the norm was emerging. Anglo-Norwegian Fisheries Case (UK v Norway)
  • Although the 10-mile rule has been adopted by certain States, other States have adopted a different limit (thereby not giving it CIL status).
  • Even if it were as such, the 10-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coat.
  • When effected state(s) object to the emergence of a new rule, this new rule will not become operational. However, if a small number of states object to a new rule, these states will remain immune to the implementation of these rules on them. Subsequent Objector
  • A State that has adhered to an original rule, but objects to proposed changes to that rule, cannot be bound by said rule. There are certain limitations on both the Persistent Objector and the Subsequent Objector principles.
  1. CIL rules will be binding on new states and existing states that are newcomers to a particular activity ( i.e., a new State cannot be a subsequent objector ).
  2. The rule does not apply to peremptory norm ( jus cogens ).

Regional customs: possible for a region or two states to be bound by custom that is peculiar to the region but does not bind states outside the region Right of Passage over Indian Territory (Portugal v India) ▪ held that it is difficult to see why the number of States between which a local custom may be established on the basis of long practice must be larger than two. ▪ The Court sees no reason why long continued practice between 2 States accepted by them as regulating their relations should not form basis of mutual rights and obligations between the two States. ▪ It must however be a constant, uniform practice having continued over a period unaffected by the change of regime – thus the Court can be satisfied that the practice was accepted as law by the Parties. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion ICJ 1996

  • The ICJ addressed the arguments regarding the customary legality of nuclear weapons.
  • Advocates for their illegality cited the non-use since 1945 as indicative of an opinio juris, while proponents argued that non-use is due to deterrence practices rather than legal obligations.
  • The ICJ noted the lack of consensus on whether non-use reflects opinio juris and recognizes that General
  • Assembly resolutions, despite expressing deep concern, do not conclusively establish a customary rule against nuclear weapons due to significant opposition and abstentions.
  • Resolution 1653 (1961) first proclaimed the illegality of nuclear weapons, but its impact is limited by the context of general customary law.
  • The persistent call for a nuclear ban reflects a significant desire for disarmament, yet the development of a customary prohibition is complicated by ongoing deterrence practices.
  1. Resolution of the UNGA – Nicaragua case, the attitude of States towards certain UNGA resolutions can be used as sources for deducing opinio juris. Jus Cogens
  • Jus cogens norms hold a higher status than ‘ordinary’ customary international law (CIL) norms.
  • The first formal recognition of jus cogens in a treaty occurred in Article 53 of VCLT.
  • Derogation is not allowed
  • An extension of what natural lawyers believed that certain norms exist above the sovereign will of states
  • Article 53 defines a peremptory norm as one accepted and recognized by the international community as a whole, from which no derogation is permitted. Article 53 also states that only a new jus cogens norm can modify or supersede an existing jus cogens norm.
  • Article 64 – If a new peremptory norm emerges, any existing treaty conflicting with that norm becomes void and terminates.
  • Examples of Jus Cogens Norms: Prohibition of the use of force under the UN Charter, Right to self- defence, Prohibition of aggression, Principle of sovereign equality of states, Right of self- determination, Prohibition of slavery and slave trade, Prohibition of piracy, Prohibition of genocide, Prohibition of crimes against humanity, Prohibition of war crimes, Prohibition of torture
  • Belgium v Senegal (2012) – the ICJ affirmed that the prohibition of torture is a jus cogens norm, grounded in widespread international practice and opinio juris, reflected in numerous international instruments and domestic laws, and regularly denounced in national and international forums. In case of a conflict between an international law rule and jus cogens, the jus cogens norm prevails, rendering the conflicting rule null and void. Jus cogens v Treaty obligation (including UN Charter) – jus cogens Jus cogens v Rule of Customary International Law – jus cogens Jus cogens v Resolutions of International Organisations – jus cogens Jus cogens v Jus cogens – no answer Erga Omnes
  • Erga omnes obligations are an exception to the principle of jus dispositivum, which is based on law adopted by consent.
  • Traditional treaty obligations are typically reciprocal and only bind the parties involved.
  • Modern international law recognizes certain obligations as so important to the international community that they can be enforced by any member of the community. These obligations are owed towards all, i.e., erga omnes obligations.
  • Erga omnes obligations allow courts to hold states accountable beyond their reciprocal treaty relations.
  • These obligations reflect the collective interest of the international community in ensuring adherence to fundamental norms. Barcelona Traction Case The Court held that an essential distinction should be drawn between the obligations of a State towards the int. community as a whole and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the former is the concern of all States and in view of the importance of rights involved, all States can be held to have a legal interest in their protection: they are obligations erga omnes. Such

obligations can be from outlawing acts of aggression and genocide, from principles and rules concerning basic human rights such as protection from slavery and racism etc. Erga omnes obligations: These obligations in contemporary international law include: a) Outlawing acts of aggression and genocide. b) Upholding principles and rules concerning basic human rights, such as protection from slavery and racial discrimination. Some rights of protection are part of general international law ( Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion ). Other rights are conferred by international instruments with universal or quasi-universal character. East Timor Case The erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of obligations invoked, the ICJ cannot rule on the lawfulness of the conduct of a State when its judgement would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. Where this is so, the Court cannot act, even if the right in question isa right erga omnes. Belgium v Senegal – Obligation to Prosecute or Extradite The Court held that Belgium, as a State party to the Convention against Torture, has standing to invoke the responsibility of Senegal for alleged breaches of its obligations u/Art. 6(2) and Art. 7(1) of the Convention. There is no need for the Court to pronounce on whether Belgium has a special interest with respect to Senegal’s compliance with provisions of the Convention as has the same is obligations erga omnes. Erga omnes partes obligations

  1. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar)
  2. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel