Module2:TREATY Advisory Opinion: Reservations to the 1948 Convention on the Prevention and Punishment of the CrimeofGenocide The Advisory

y Opinion addresses this main issue: Can the reserving State be regarded as beinga party to the Convention while still maintaining its reservationif the reservationis objected to byone or moreof the partiestotheConventionbutnotbyothers?No. Doctrine: Violates the very notion of the convention,giventhat aconvention iscontractual innature hence, if there lacks consent, suchreservation isnt binding.Othersargue thatamoreliberal/flexible approach should betakengiventhatsheervolumeofStateparticipationintheConvention. InterpretationofPeaceTreatiesCase This involved questions concerning the Interpretation of Peace Treaties signed with Bulgaria, Hungary and Romania. Q: Would a TreatyCommission composed ofa representative of one party andathird memberappointed by the SecretaryGeneral of the United Nations constitute a Commission, within the meaning of the relevant Treatyarticles,competenttomakeadefinitivebindingdecisioninsettlementofadispute?" A: although the literal sensedid not completely exclude the possibilityofappointingthethirdmemberbefore appointing both nationalcommissioners, the naturalandordinarymeaning of the term required thatthelatter be appointed before the third member. This clearly resulted from the sequence of events contemplated by the Article. Moreover, it was the normal order in arbitration practice and, in the absence of any express provisiontothecontrary,therewasnoreasontosupposethatthepartieswishedtodepartfromit SecretaryGeneral would be authorized to proceed to the appointment of a third member only if it were possibletoconstituteaCommissioninconformitywiththeTreatyprovisions. The Court had declared in its Opinion of March 30th that the Governments of Bulgaria, Hungary and Romania were under anobligation to appoint their representativeto theTreaty Commissions. Refusal to fulfil a Treaty obligation would involve international responsibility. Nevertheless, sucharefusalcould not alter the conditions contemplated in the Treaties for the exercise of the SecretaryGeneral's power of appointment. These conditions were not present in this case and their lack was not supplied by the fact that their absence was due to the breach of a Treaty obligation. The failure of machinery for settling disputes by reason of the practical impossibility of creating the Commission provided for in the Treaties was onething international responsibility another. One could not remedy the breach of a Treaty obligation by creating a Commission which was not the kind of Commission contemplated by the Treaties. It wastheCourt'sdutytointerpretTreaties,nottorevisethem.

FisheriesJurisdictionCase(UKv.Iceland):Note,casedecidedbeforeUNCLOS UK and Iceland entered into a Fishing treaty which established that the fishing jurisdictions of both States extended to 12 nautical miles from their territorial sea baselines. Subsequently, Iceland, unilaterally extendedtheirsto50nauticalmiles.UKsuesIcelandforaviolation.

Did Icelands extension of its fisheries jurisdiction from 12 to 50 nautical miles from its territorial sea baselinesviolateintllaw,specificallytreaty?Yes. Doctrine: 1.Whatconstitutesaviolationoftreaty? actoromissioninbreachofinternationallaw SuchactoromissionisattributabletotheState 2. Sovereign rights, limited: A states exercise of its sovereignty is limited by the due regard doctrine, whichstatesthataStatemaynotexerciseitssovereignrightstotheinjuryoftherightsofotherstates. Danube Dam Case (Hungary v. Slovakia): Note, the Danube river traverses the jurisdiction of both HungaryandSlovakia,amongothers. Hungary and Slovakia entered into a treaty creating the Danube Dam river for flood control/environmental protection in 1977.In 1982, the political and economicsystems of the States radicallychanged. Because of this, Hungary suspended its construction before permanently abandoning the dam project because it also assailed of the environmental risks to thepeoplein Budapest(capitalofHungary).Hungarysent notification ofterminationofthe1977treaty.Slovakiasaidthatitmustcomplywithsuchtreaty Doctrine: Hungary violated the 1977 treaty. It could not use the principle ofimpossible performanceas an excuseforterminatingitsobligationsunderthetreaty. ElementsofImp.perf: 1.There is a fundamental change of circumstances 2.Thisfundamentalchangewasunforseen 3. The existence of the circumstances at the time of the treatys conclusion must have constituted an essential basis of the consent of the parties to be bound.

Module3:CUSTOM ThePaqueteHabana:Fishingvesselsareexemptfromwartrophies During the Spanish American War, the US Navy boarded two private fishing vessels flying the Spanishflag,andcapturedthemasprizesofwar. OneofthevesselswasnamedThePaqueteHabana. TheownersofthevesselssuedinUScourtstoregaintheirproperty. They argued that customary international law said that fishing vessels were exempt from beingcapturedinwar. Theywerecommercialfishermen,theywerenotamilitarytarget. Q: What was custom here? YES. Ancient practicethat fishing vessels pursuing theirvocation areexempt fromcaptureasaprizeofwar.Here,theUScapturedtwoSpanishfishingvesselsasaprizeofwar. Q:Howwasthisproven? There was State practicebyanumberofdifferentcountries that commercialfishing vesselswereexempt. Therewasrepetitionofthepracticeovertime. Therewasopiniojuristhatcommercialfishingvesselswereexempt.

Doctrine 1) Customary international lawis subordinate toselfexecuting treatiesand acts of congress(only bindingin theabsenceofatreaty,anactofcongressortheexecutive,etc.) 2) Customary international law is on the same level as selfexecuting treaties and congressional acts, and thereforethelaterintimeruleapplies Asylum case Colombian Ambassador in Lima, Per allowed Vctor Ral Haya de la Torre, head of the American People's Revolutionary Alliance political asylum alleging that it was local custom in Latin America. He asked the Peruvian government to grant de la Torre safe passage out of Peru and into Columbia.ThePeruviangovernmentrefused.Wasitlocalcustom?No.Notproven Doctrine: Regional/localcustom custommaybecreatedbyafewstates,ifthosestatesareintimatelyconnectedwiththeissueathand Not uniformly or continuously executed sufficiently to demonstrate that the custom was of a generallyapplicablecharacter. NorthSeaContinental(Germanyv.Netherlands/Denmark) This case involved the maritime delimitation of the North Sea Continental Shelf, an arearichinmineral and oil. Germany was contesting that the equidistance principle(found in the Geneva Convention on the Continental Shelf) invoked by Netherlands/Denmark (in order to ascertain the jurisdiction of states) was not customary law hence they were not bound by it. What Germany asserted was that the correctrulewasto have a just and equitable share of the Continental shelf. Following the equidistance principle, Germany wouldstandmoretolose. Istheequidistanceprinciplecustomarylaw?Yes. Doctrine: Characteristics of State Practice: Uniformity, generality, duration, consistency (see bernas reviewer/book foranexplanationofeachcharacteristic) Custommaystilldevelopevenwithouttheconsentoractiveparticipationofstates LegalityoftheThreatorUseofNuclearWeaponsCase(AustraliaandNZv.France1973) France (defendant) was performing atmospheric nuclear tests in the South Pacific. Australia and New Zealand (plaintiffs) brought suit in theInternational Court of Justice (ICJ)demandingit orderFrance to cease performing thesetests. While the case was pending, France announcedit was ceasing performance of tests andthatitdidnotplantoperformanyadditionaltests. Issue: W/N the nuclear tests conductedbyFrance in the South Pacificviolated international law? I.E. Isthe Righttobefreefromnuclearteststhatgiverisetoaradioactivefalloutpartofcustomarylaw?No. Held: Court was unable to find an opinio juris (that is, legal consensus) thatnuclear weapons are illegal to possess. Cince 1945 and there have been numerous UN resolutions condemning their use (however, such resolutionsarenotuniversallysupportedmostnotably,thenuclearpowersobjecttothem) BUT: Court finds that the objective of New Zealand has in effect been accomplished, inasmuch as France has undertaken the obligation to holdno furthernuclear testsintheatmosphere intheSouthPacific (paras. 5055of Judgment) thedispute havingthus disappeared,theclaimnolonger hasany objectand thereisnothingonwhichtogivejudgment(paras.5862ofJudgment).

Military and Paramilitary Activities Case (Nicaragua v. US): US Armed Forces encroaching on Nicaragua case involved military and paramilitary activities conducted by the US against Nicaragua from 1981 to 1984.NicaraguaaskedtheCourttofindthattheseactivitiesviolatedinternationallaw. Held: The US breached its customary international law obligation not to use force againstanotherState: (1) when it directly attacked Nicaragua in 1983 1984 and (2) when its activities with the Contra forces resultedinthethreatoruseofforce. Doctrine: OJ can be proven by the expressionsandbeliefs of internationalorganizations andtheconclusion oftreaties. DissentingOpinionofJudgeTanakaintheSouthWestAfricaCase This case involved the alleged custom of nondiscriminationor nonseparation onthebasis ofrace.Ethiopia and Liberia sued South Africa with the ICJ for adopting apartheid policies, which violated certain articles of theLeagueofNationsMandateforSouthWestAfricaandArticle22oftheCovenantoftheLeague. Issue: To what extent may the Court rely upon any international norm which can be interpreted as prohibiting all governments from discriminating its subjects on thebasis of raceWhether ornotresolutions anddeclarationscanbeconsideredasfactorsinthecustomgeneratingprocessunderArt38(1)oftheICJ Doctrine(ofdissent): NormsarisingsubsequenttotheestablishmentoftheMandateareapplicabletothiscase What is required for Customary international law is the repetition of state practice accumulation of declarationsandresolutionsevidencestatepractice