Unit 2

What is custom?
North Sea Continental Shelf cases (Germany v Denmark/Netherlands)
It held that ‘not only
must the acts concerned amount to a settled practice, but they must also be such, or be carried
out in
such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence
of a
rule of law requiring it. The need for such belief, ie the existence of a subjective element, is
implicit in the
very notion of the opinio juris sive necessitatis’
General versus special or local custom
Right of Passage over Indian Territory (Portugal v India)
The Court held that ‘it is difficult to see why a number (p. 23) of
States between which local custom may be established on the basis of long practice must
necessarily
be larger than two. The Court sees no reason why long continued practice between two States
accepted
by them as regulating their relations should not form the basis of mutual rights and obligations
between
the two States’ (p 39).
The relationship between the sources of international law
Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States of America)
The Court held that where a customary law is replaced by a
multilateral treaty, the customary rule continues to exist, not only in respect of nonparties
to the treaty, but also
against its parties.
Unit 3
The principle pacta sunt servanda
Gabcˇíkovo–Nagymaros Project (Hungary/Slovakia)
the Court was of a different opinion, namely that the reciprocal wrongful conduct of both parties
‘did not
bring the treaty to an end nor justified its termination’. More importantly, it stressed that ‘what is
required
in the present case by the rule pacta sunt servanda…is that the parties find solution within the
cooperative context of the treaty’
Interpretation of treaties
Territorial Dispute (Libyan Arab Jamahiriya/Chad
Interpretation must be based above all upon the text of a treaty. As a supplementary means to
interpret a
treaty, recourse can be made to other methods of interpretation, such as the preparatory work of
a treaty
(para 41).
relevant rules of international law’
Case Concerning Oil Platforms (Islamic Republic of Iran v United States of
America
The Court interpreted the above provision taking
explicitly into account ‘any relevant rules of international law applicable in the relations between
the
parties’ (Art 31, para 3(c)), namely the rules of international law on the use of force. In
interpreting the
said provision in the light of these rules, it came to the conclusion that the destruction of the oil
platforms
could have been a lawful measure only as selfdefence,
which was not the case here.
The ‘death’ of a treaty in international law
Relative grounds
Error
Temple of Preah Vihear (Thailand v Cambodia
The Court rejected this claim by arguing that: ‘it is
an established rule of law that the plea of error cannot be allowed as vitiating consent if the party
advancing it contributed by its conduct or error, or could have avoided it, or the circumstances
were such
as to put the party in notice of a possible error’ (p 26).
Unit 4
Not all customary rules may be incorporated
Re Keyn
The German captain was prosecuted for manslaughter in England and the
question was whether British courts could exercise extraterritorial jurisdiction over collisions
taking place
on the high seas as a matter of customary law. Cockburn CJ held that even if the (p. 52) majority
of
nations authorized the use of such jurisdiction he would still deny it because it would mean
changing the
relevant English jurisdictional rules altogether. This wholesale change of the law, in his opinion,
could
only come about by an Act of Parliament and not by the courts’ recognition of a new customary
rule.
Incorporation of crimes under customary law
R v Jones (Margaret)
Lord Bingham held that customary crimes were not automatically incorporated. He went
on to note, however, that this was not because unincorporated customary crimes lacked
definitional
certainty.
Incorporation of Security Council resolutions
Kadi and Al Barakaat International Foundation v Council of the European
Union
The European Court of Justice (ECJ) agreed
that the lack of judicial review against the SC’s resolution did indeed deprive the applicants of
their right
to judicial remedies. Therefore, SC resolutions need to be interpreted in accordance with
fundamental
rights.
Unit 5
Criteria for statehood
Permanent population
It is immaterial if a foreign migrant population working there has surpassed the local
population in number. It is also irrelevant if a large number of nationals of the State are nomads
and move around the
territory of their country or across neighbouring countries in order to graze their cattle, as long as
their transit to the
neighbouring nations is temporary (Case Concerning Western Sahara, ICJ Advisory Opinion
(1975)).
A defined territory
The ICJ has made it clear that there is no rule of international law whereby the
land frontiers of a State must be fully delimited (Germany v Denmark and the Netherlands (North
Sea Continental Shelf cases)
The relevance of human rights in the determination of statehood
The ICJ’s Advisory Opinion on this unilateral declaration simply said that unilateral declarations
are not unlawful under international law (Accordance with International Law of the Unilateral
Declaration of Independence in respect of Kosovo (Kosovo Declaration case)
Consequences from the international legal personality of international
organizations
MacLaine Watson & Co Ltd v International Tin Council
The House of
Lords held that since international organizations possess a distinct personality from that of their
member
States, the latter are considered third parties to the debts and liabilities of organizations and are
therefore
not liable for said debts.
Individuals
Van Gend en Loos v Netherlands Inland Revenue Administration (1963)). It is clear that the
personality of
individuals is limited in comparison to international organizations.
Declaratory recognization
Therefore, if an entity fulfils the criteria for statehood it automatically achieves statehood even if
other
nations fail to recognize it as such (Deutsche Continental Gas Gesselschaft v Poland (1929)).
Your next section should look specifically at the particular situation in Kosovo? that
is, the existence of an oppressed minority within a majority Serbian nation that would
otherwise not have the right to secede and form a State but which achieved a de
facto independence through the intervention of the international community. Your
next section should take into consideration the opposition to Kosovo statehood by a
good number of countries, including Spain and Russia. You can find the relevant
documents on the ICJ’s website in relation to the Kosovo opinion. You should
explain that these nations opposed Kosovo’s unilateral secession because they
feared that this could create a precedent that would impact on their own minorities
back home. Your final section should reflect your own assessment as to whether
Kosovo has attained statehood and whether its recognition as such by certain
nations and not by others has had any impact on its self-claimed independence. To
make this assessment you should rely on the two theories of recognition, although
as has already been stated the dominant view is the declaratory one.
Unit 6
Sovereignty
Netherlands v USA (Palmas Islands Arbitration)
The case concerned contested sovereignty claims over the Palmas islands. The sole arbitrator
pointed
out that: ‘sovereignty in the relations between States signifies independence. Independence in
regard to a
portion of the globe is the right to exercise therein, to the exclusion of any other State, the
functions of
the State’. He noted that this exclusive competence over one’s own territory ‘is the point of
departure in
settling most questions that concern international relations’.
Jurisdiction: the basic idea
In principle, and in relation to
criminal conduct, a State may assume jurisdiction if this is not precluded by another rule of
international law (France
v Turkey (Lotus case) (1927)) and equally the State that has apprehended the accused enjoys
primacy of
jurisdiction.
Extraterritorial jurisdiction
Joyce v Director of Public Prosecutions
The House of Lords held that despite the fraudulent acquisition of nationality he
had a duty of loyalty to the Crown and was therefore liable for the crime of treason, which is
enforceable
against a State’s own nationals.
Passive personality jurisdiction
United States v Yunis
The court upheld the validity of the arrest and the jurisdiction of US
courts for terrorist crimes committed abroad and directed against US nationals.
The protective principle of jurisdiction
Attorney General of Israel v Eichmann
The Israeli Supreme Court held that even though Israel
was not in existence when the Holocaust took place it was in its national interests (as an
extension of
the interests of Jewish people) for all offenders to be prosecuted. Other jurisdiction principles
were also
claimed in this case.
Universal jurisdiction.
France v Turkey (Lotus case)
The case is best known for the claim that States
may exercise any form of jurisdiction,
as long as this is not prohibited by
any rule of treaty or customary
international law.
Unit 7
The meaning and purpose of immunity
immunity is a natural extension of the
principle of sovereign equality of nations under which one sovereign cannot be tried in the courts
of another. Schooner Exchange v McFaddon
Sovereign or public acts
the State cannot be sued for the tort (ie the damage
resulting from the war crime) before a national court (Germany v Italy (Jurisdictional Immunities
of the State)
Private or commercial conduct of States
The mere fact that an entity exercises a public function, such as a public airliner or a public
factory, is not sufficient,
per se, for it to be granted immunity under international law. It is a precondition that it must be an
organ of the State
and not a separate entity (Pocket Kings Ltd v Safenames Ltd (2009)).
Kuwait Airways Corporation v Iraqi Airways Co
The House of Lords held that although the taking of the
aircraft was done in time of war, which would otherwise render it a public act, in the present case
it was
not. This was because ‘an act done by a separate entity of the State on the directions of the
State does
not possess the character of a government act…The mere fact that the purpose or motive of the
act was
to serve the purposes of the State will not be sufficient to enable the separate entity to claim
immunity…’
Act of State doctrine
In another US case the accused had used his position as former president and dictator of
Venezuela to commit financial crimes. The Fifth Circuit court rejected that these acts were
attributable to Venezuela (Jimenez v
Aristeguieta (1962)).
Personal immunities
R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte
The House
of Lords held that while the immunity of a current head of State is absolute and subject to no
limitations,
a former head of State enjoys immunity only in respect of acts performed while in office such that
could
be characterized as ‘official’. Immunity for all other acts committed while in office ceases to exist.
Case Concerning the Arrest Warrant of 11 April 2000 (Congo v Belgium
The ICJ held that incumbent foreign ministers enjoy absolute immunity under international law,
this being personal rather than (p. 93) functional immunity. This implies that the nature of the
contested
act as official or private is irrelevant.
Functional immunity
AlAdsani v United Kingdom
The ECtHR, with a thin majority, held that
immunity, being a principle of international law, was not in conflict with the right to a fair trial, in
particular
the right to judicial remedies. The two principles were not in conflict because they were found to
service
different objectives. Essentially, the operation of immunity in a particular case does not
disproportionately
affect the other party’s human rights.
Diplomatic immunities
US Diplomatic and Consular Staff in Iran (USA v Islamic Republic of Iran)
The ICJ held that even if this were indeed so, Iran could have
expelled such persons from its territory. Moreover, it emphasized that the protection of diplomatic
premises and the inviolability of the person of diplomats is a concrete obligation of the receiving
State.
Immunities of international organizations
Saramati v France and ors
The ECtHR held that the relevant acts were attributable to the
UN and not to the participating States individually and concluded that States contributing troops
to UN missions
cannot be held responsible for their acts and omissions.
Unit 9
State responsibility
Reparation for Injuries Suffered in the Service of the United Nations (1949), the United
Nations ‘is a subject of international law and capable of possessing international rights and
duties...it has capacity to maintain its rights by bringing international claims’
It has been stressed that attribution in such cases ‘must be exceptional, for it requires proof
of a particularly great degree of State control’ (Application of the Convention for the
Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v
Serbia and Montenegro) (2007)).
Velásquez Rodríguez v Honduras case
Held: under international law a State is responsible for the acts of its agents undertaken in
their official capacity and for their omissions, even when those agents act outside the sphere
of their authority or violate internal law’ (p 296).
Unit 11
Use of force
Against the territorial integrity or political independence of other states
Albania v UK (Corfu Channel case)
The ICJ disagreed, holding that a violation of Albanianterritorial integrity had taken place
irrespective if the action was temporary and had limited objectives.
Self defense
Meaning of armed attack
USA v Nicaragua (Military and Paramilitary Activities in and against Nicaragua or Nicaragua
case), ICJ Rep (1986), p 14
In this case the ICJ provided an indication of what an armed attack encompasses, namely:
not merely action by regular armed forces across an international border, but also the
sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which
carry out acts of
armed force against another State of such gravity as to amount to an actual armed attack
conducted by regular forces, or its substantial involvement therein.
The mere provision of assistance or logistical support to rebels by a third State was not
found, by the ICJ, to constitute an armed attack.
Iran v USA (Oil Platforms case), ICJ Rep (2003), p 161
With regard to the first question, the Court did ‘not exclude the possibility that the mining of a
single military vessel might be sufficient to bring into play the inherent right of selfdefence’.
As to the accumulation approach, although the ICJ did not directly address its validity, its
judgment does suggest that it is not hostile to the idea if appropriate cases arise in the
future.
Proportionality and necessity
The Caroline case
anticipatory selfdefence has traditionally been recognized under customary international law.
This is not the case for preemptive self defence.
Unit 1
Structure of the international legal system
The Case of the SS ‘Lotus’, PCIJ, Series A, No 10
The rules of law binding upon States therefore emanate from their
own free will as expressed in conventions or by usages generally accepted as expressing
principles of law and established in order to regulate the relations between these coexisting
independent communities or with a view to the achievement of common aims. Restrictions
upon the independence of States cannot therefore be presumed.’ (p 18)
Unit 8
Normal and straight baselines
AngloNorwegian Fisheries case (UK v Norway) (1951), but the International Court of Justice
(ICJ) held that because of the inconvenience in drawing normal baseline in such
geographically complicated circumstances it was legitimate to draw straight baselines.
Territorial sea
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania), Judgment
(Merits), ICJ Rep (1949), p 1
Exception is the right of innocent passage
Straits
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania), Judgment
(Merits), ICJ Rep (1949), p 1
The ICJ held that warships were entitled to exercise a right of innocent passage through
straits used for international navigation and that coastal States are not entitled to suspend
innocent passage within such straits for any ship.
Continental shelf
North Sea Continental Shelf cases (1969), this provision reflects customary law and these
rights exist independently of an express act or declaration.
High seas
Should a vessel be stateless or fly more than one flag, then, according to one view, any
State can exercise jurisdiction over it (Molvan v Attorney General for Palestine (1948))

Unit 10
Diplomatic means
Negotiation
It may exist alongside other processes. For example, in
the Aegean Continental Shelf case (Greece v Turkey) (1978), the Court indicated that the
initiation of negotiations during litigation is not a bar to the exercise of its powers and vice versa.
North Sea Continental Shelf cases (Germany v Denmark/Netherlands)
‘the parties are under an obligation to enter into negotiations with a view to arriving at an
agreement; they are under an obligation so to conduct themselves that the negotiations are
meaningful, which will not be the case when either of them insists upon its own position without
contemplating any modification of it’
Courts jurisdiction
Compromissory clauses
Case Concerning Application of the International Convention on the
Elimination of all Forms of Racial Discrimination (Georgia v Russian
Federation), Preliminary Objections, Judgment of
1 April 2011
Jurisdiction was claimed on the basis of Art 22 CERD, which contained a compromissory clause.
However, the Court upheld the preliminary objections of Russia on the basis that the two
disputants had not negotiated prior to the Georgian application, as dictated by Art 22 CERD.
ICJ
Advisory proceedings
Legality of the Use by a State of Nuclear Weapons in Armed Conflict (1996),
which involved a request by the World Health Organization (WHO). The Court held that under the
‘principle of
speciality’ the WHO could not deal with matters beyond what was authorized by its Constitution;
in the case at
hand, the legality of the use of nuclear weapons.