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Reservations to the Genocide Convention, Advisory Opinion (ICJ 1951) o This was an advisory opinion the Court, requested the General Assembly after some states had made reservations to the 1948 Genocide Convention, which contained no clause permitting such reservations, and a number of objections we...

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Reservations to the Genocide Convention, Advisory Opinion (ICJ 1951)! o This was an advisory opinion by the Court, requested by the General Assembly after some states had made reservations to the 1948 Genocide Convention, which contained no clause permitting such reservations, and a number of objections were made. o The Court held that a state which has made and maintained a reservation which has been objected to by one or more parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention. o The Court’s approach, although having some potential disadvantages, was in keeping with the move to increase the acceptability and scope of treaties and with the trend in international organizations away from the unanimity rule in decision- making and towards majority voting. The Case of the S.S. Lotus (“Lotus” case) (France vs. Turkey) (PCIJ, 1927) - Permanent Court of International Justice, the predecessor of the International Court of Justice, laid down a high standard by declaring that abstention could only give rise to the recognition of a custom if it was based on a conscious duty to abstain. In other words, states had actually to be aware that they were not acting a particular way because they were under a definite obligation not to act that way. The issue at hand concerned a collision on the high seas (where international law applies) between the Lotus, a French ship, and the Boz-Kourt, a Turkish ship. Several people aboard the latter ship were drowned and Turkey alleged negligence by the French officer of the watch. When the Lotus reached Istanbul, the French officer was arrested on a charge of manslaughter and the case turned on whether Turkey had jurisdiction to try him. Among the various arguments adduced, the French maintained that there existed a rule of customary law to the effect that the flag state of the accused (France) had exclusive jurisdiction in such cases and that accordingly the national state of the victim (Turkey) was barred from trying him. To justify this, France referred to the absence of previous criminal prosecutions by such states in similar situations and from this deduced consent in the practice, which therefore became a legal custom. The Court rejected this and declared that even if such a practice of abstention from instituting criminal proceedings could be proved in fact, it would not amount to a custom. It held that only if such abstention were based on the states being conscious of a duty to abstain would it be possible to speak of an international custom. Thus the essential ingredient of obligation was lacking and the practice remained a practice. Turkey tried the French captain under their domestic criminal law. France claimed that, since the incident occurred on a French ship on the high seas. Turkey responded that its jurisdiction – as a sovereign State – was limitless, unless Turkey had consented to give this up. It was held by the Court that following the collision of a French and a Turkish ship, when the crew of the French ship was charged with involuntary manslaughter, under Turkish law, there was no principle in international law that prohibited Turkey from exercising its territorial criminal jurisdiction on the crew members in the circumstances. The Lotus case is still widely followed by the international community without much criticism. However, the Separate Opinion in the Arrest Warrant case considered that the Lotus case no longer remained the dominant position in law. The Lotus case is no longer

adequate to deal with contemporary problems and it fails to recognise the extent to which states may exercise their rights only relative to the rights of others. • North Sea Continental Shelf Cases (Germany vs. Denmark and Netherlands) (ICJ 1969) The Court concluded that the provision in the Geneva Convention (Article 6 of the Geneva Convention on the Continental Shelf of 1958 provided that where agreement could not be reached, and unless special circumstances justified a different approach, the boundary line was to be determined in accordance with the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each state is measured), did not reflect an already existing custom. It was emphasized that when the International Law Commission had considered this point in the draft treaty, which formed the basis of discussion at Geneva, the principle of equidistance had been proposed with considerable hesitation, somewhat on an experimental basis and not at all as an emerging rule of customary international law. ALSO, The Court noted that for a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice’, but also they must be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is ‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. West Germany had not ratified the relevant Convention and was therefore under no obligation to heed its terms. The possibility that a provision in a treaty may constitute the basis of a rule which, when coupled with the opinio juris, can lead to the creation of a binding custom governing all states, not just those party to the original treaty, was considered. The Court, however, declared that the particular provision had to be ‘of a fundamentally norm-creating character’, that is, capable of forming the basis of a general rule of law. What exactly this amounts to will probably vary according to the time and place, but it does confirm that treaty provisions may lead to custom providing other states, parties and non-parties to the treaty fulfill the necessary conditions of compatible behaviour and opinio juris. In order for a treaty rule to generate a customary rule, the ICJ requires that the treaty rule be of a ‘fundamentally norm-creating character’. In other words, the rule concerned must have a legislative, rather than a merely contractual, character, such as the UN Charter. It must set down normative criteria for State conduct and could apply to many States. Dispute between Germany and Holland & Denmark over delimitation of the continental shelf. ICJ- state practice, ‘including that of states whose interests are specially affected’, had to be ‘both extensive and virtually uniform in the sense of the provision invoked’. This was held to be indispensable to the formation of a new rule of customary international law. • Barcelona Traction, Light and Power Company, Ltd. (Belgium vs. Spain) (ICJ 1970) Between Belgium and Spain. The International Court of Justice relied heavily upon the municipal law concept of the limited liability company and emphasized that if the Court were to decide the case in disregard of the relevant institutions of municipal law it would, without justification, invite serious legal difficulties. It would lose touch with reality, for there are no corresponding institutions of international law to which the Court could resort. “...that, whenever legal issues arise concerning the rights of States with regard to the treatment of companies and shareholders, as to which rights international law has not established its own rules, it has to refer to the relevant rules of municipal law

International law “attributes the right of diplomatic protection of a corporate entity to the State under the laws of which it is incorporated and in whose territory it has its registered office”. Here the Court set two conditions for the acquisition of nationality by a corporation for the purposes of diplomatic protection: incorporation and the presence of the registered office of the company in the State of incorporation. As the laws of most States require a company incorporated under its laws to maintain a registered office in its territory, even if this is a mere fiction, incorporation is the most important criterion for the purposes of diplomatic protection. there was a need for some “permanent and close connection” between the State exercising diplomatic protection and the corporation. On the facts of this case the Court found such a connection in the incorporation of the company in Canada for over 50 years, the maintenance of its registered office, accounts and share register there, the holding of board meetings there for many years, its listing in the records of the Canadian tax authorities and the general recognition by other States of the Canadian nationality of the company. Facts: BT was a corporation that controlled light and power utilities in Spain and was incorporated in Toronto (Canada). Belgians hold majority of shares. In 1948, business bankruptcy in Spain. Belgian stockholders lost money and seek reparation. The Belgian govt contended that after WW1, BT share capital held largely by Belgian nationals. The Spanish govt maintained that the Belgian nationality of the shareholders was not proven. Issue: whether Belgian can bring this case in ICJ? Holding: No, Belgian’s claim is rejected. Reasoning: The Belgian govt lacked the standing to exercise DP of Belgian shareholders in a Canadian company. The Court ruled on the side of Spanish holding that only the nationality of the corporation (the Canadians) can sue. This case is important as it demonstrates that the concept of DP under IL equally applies to corporations as to individuals. The ICJ in this case stated that international law “attributes the right of DP of a corporate entity to the state under the laws of which it is incorporated and in whose territory is has its registered office” (para 70). Hence, 2 conditions for the acquisition of nationality by a corporation: incorporation and the presence of the registered office of the company in the State of incorporation. o The most fundamental principle of DP of corporations is that a corporation is to be protected by the State of nationality of the corporation and not by the State or States of nationality of the shareholders of a corporation (iterated in Barcelona Traction). • Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (ICJ 1996)! o The initial request for an advisory opinion by the ICJ was presented by the World Health Organization (WHO) on 3 September 1993,[2] but the ICJ did not render an opinion on this request because the WHO was ultra vires, or acting outside its legal capacity. o IC stated that the legal import of that obligation goes beyond that of a mere obligation of conduct, the obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all it aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith.

o In determining the legality or illegality of the threat or external use of nuclear weapons, the ICJ decided that the most directly relevant applicable law governing the Assembly's question consisted of (1) the provisions of the UN Charter relating to the threat or use of force, (2) the principles and rules of international humanitarian law that form part of the law applicable in armed conflict and the law of neutrality, and (3) any relevant specific treaties on nuclear weapons. In applying this law, the Court considered it imperative to take into account certain unique characteristics of nuclear weapons, in particular their destructive capacity that can cause untold human suffering for generations to come. o The Court first considered the provisions of the UN Charter relating to the threat or use of force. Although Article 2(4) (generally prohibiting the threat or use of force), Article 51 (recognizing every state's inherent right of individual or collective self-defense if an armed attack occurs) and Article 42 (authorizing the Security Council to take military enforcement measures) do not refer to specific weapons, the Court held that they apply to any use of force, regardless of the type of weapon employed. The Court noted that the UN Charter neither expressly prohibits, nor permits, the use of any specific weapon (including nuclear weapons) and that a weapon that is already unlawful per se by treaty or custom does not become lawful by reason of its being used for a legitimate purpose under the Charter. Whatever the means of force used in self-defense, the dual customary condition of necessity and proportionality and the law applicable in armed conflict apply, including such further considerations as the very nature of nuclear weapons and the profound risks associated with their use. o The Court acknowledged that international organizations can exercise subsidiary or "implied" powers not expressly provided for in the basic instruments that govern their activities. However, it held that the competence to address the legality of the use of nuclear weapons could not be deemed a necessary implication of the WHO Constitution in the light of the purposes member states had assigned to it. To hold otherwise would be equivalent to disregarding the principle of speciality according to which international organizations operate in limited fields. Finally, the Court pointed out that none of the WHO's reports and resolutions was in the nature of a practice of the WHO concerning the legality of the threat or use of nuclear weapons. It held that in general the WHO is not empowered to seek an opinion on the interpretation of its Constitution in relation to matters outside the scope of its functions. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v the US) • Nicaragua alleged that the United States was responsible under international law for certain military operations in Nicaraguan territory.! • It claimed that the United States had (i) used direct armed force against it by laying mines in Nicaraguan waters, and attacking and damaging Nicaraguan ports and oil installations, and (ii) Given assistance (by means of training, arming, financing, and supporting) to the contras, Nicaraguan guerrillas fighting to overthrow the Nicaraguan Government. Nicaragua case • The US argued that it activities against Nicaragua was justified because it was acted in the exercise of collective self-defense in response to Nicaragua’s support of arms to rebels in El Salvador, a friendly country.! • As regards the issue of ‘multilateral treaty reservation’ contained in the US declaration

accepting compulsory jurisdiction, while admitting that it could not apply Art. 2(4) of the Charter against the US, the Court held that it could apply rules of customary international law on the non-use of force and non-intervention. • Nicaragua case is quite significant because in this case the World Court thoroughly examined and ruled on three important principles of international law, namely:! (1) Principle of non-use of force;! (2) Principle of non-intervention; and (3) Collective self-defense. (On use of force) • According to the facts of Nicaragua case, while the arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua, this is not necessarily so in respect of all the assistance given by the US Government.! • The Court considers that the mere supply of funds to the contras, while undoubtedly an act of intervention in the internal affairs of Nicaragua, does not in itself amount to a use of force. (On intervention) • The principle of non-intervention is part and parcel of customary international law.! • The principle forbids all States or group of States to intervene directly or indirectly in internal or external affairs of other States.! • By virtue of the ‘doctrine of sovereignty’, a State is free to choose any political, economic, social and cultural system, or to formulate whatever foreign policy, it likes.! • Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. • The element of coercion is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State. (On Collective self-defense) • The rule prohibiting force allows for certain exceptions, the right of self-defense being one among them.! • Whether it is an individual or collective self-defense, three essential criteria must be satisfied: (1) An armed attack by another State (the State concerned, having been the victim of an armed attack);! (2) Necessity of self-defense; and! (3) Proportionality. • The Court finds that in customary international law, there is no rule permitting the exercise of collective self-defense in the absence of a “request” by the State which regards itself as the victim of an armed attack.! • Therefore, in the case of a collective self-defense, the ‘request by the victim of armed attack’ to come to its assistance is an extra requirement. (Judgment of the Court)

• The world Court announced its judgment in favor of Nicaragua.! • Held that the United States was under an obligation to make reparation to Nicaragua for all injury caused to Nicaragua by the breaches of obligations under international law.

Article 38(1) of the Statute of the International Court of Justice is widely recognized as the most authoritative and complete statement as to the sources of international law. It provides that: The Court, whose function is to decide in accordance with international law such disputes, as are submitted to it, shall apply: (a) International conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) International custom, as evidence of a general practice accepted as law; (c) The general principles of law recognized by civilized nations; (d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. CUSTOM- ARTICLE 38 Certain rules of behaviour emerge and prescribe as to what is permitted and what is not. Such rules develop within the group and are maintained by the members of the group by social pressures and with the aid of various other more tangible implements. These are not necessarily codified. Custom continues to evolve. It is regarded as an authentic expression of the needs and values of the community at any given time. The existence of customary rules can be deduced from the practice and behaviour of states. It is possible to point to something called ‘instant’ customary law in certain circumstances that can prescribe valid rules. It reflects the consensus approach to decision- making with the ability of the majority to create new law binding upon all, while the very participation of states encourages their compliance with customary rules. Its imprecision means flexibility as well as ambiguity. The essence of custom according to article 38 is that it should constitute ‘evidence of a general practice accepted as law’. Thus, it is possible to detect two basic elements in the make-up of a custom. These are the 1.

state practice, which is, the actual behaviour of states, since customary law is founded upon the performance of state activities and the convergence of practices, and what states actually do.

2.

psychological or subjective belief (opinio juris) that such behaviour is ‘law’, the belief by a state that behaved in a certain way that it was under a legal obligation to act that way- opinio juris sive necessitatis

State Practice: It is how states behave in practice that forms the basis of customary law, but evidence of what a state does can be obtained from numerous sources. Obvious examples include

administrative acts, legislation, decisions of courts and activities on the international stage, for example treaty-making. A state is not a living entity, but consists of governmental departments and thousands of officials, and state activity is spread throughout a whole range of national organs. There are the state’s legal officers, legislative institutions, courts, diplomatic agents and political leaders. Each of these engages in activity, which relates to ...