SOURCES OF THE LAW

Article 59: The decision of the Court has no binding force

except between the parties and in respect of that particular
case
Interpretation of treaties may involve resort to general
principles of law/international law
May be displaced/amended by a subsequent custom, where
such effects are recognised by the subsequent conduct of the
parties

International custom

Distinguished from usage: a general practice which doesnt

reflect a legal obligation
Material sources include diplomatic correspondence, press
releases, state legislation, etc

Elements
Duration
o Provided the below is proven, no particular duration is
required
Uniformity, consistency of practice
o Only substantial uniformity is required
Generality of practice
o Complements above
Opinio juris et necessitates (a general practice accepted as
law)
o Recognises distinction between obligation and usage
o Two methods
Court is usually willing to assume the existence of
an opinio juris on the bases of evidence of a
general practice, or a consensus in the literature,
or the previous determinations of the Court/other
international tribunals
In minority of cases the Court has adopted a more
rigorous approach and has called for more positive
evidence for the recognition of the validity of the
rules in question in the practice of states

Persistent objector
State may contract out of a custom in the process of formation

Subsequent objector
Is acquiescence sufficient in validating a subsequent
contracting out of rules?

Law-making treaties and other material sources

Law-making treaties
Create legal obligations the observance of which doesnt
dissolve the treaty obligation

Resolutions of GA
Not binding on member states
But when theyre concerned with general norms of
international law then acceptance by a majority vote
constitutes evidence of the opinions of governments in the
widest forum for the expression of such opinions
o Consolidation of customary rules
In some cases it might have direct legal effect as an
authoritative interpretation and application of the principles of
the Charter
But each individual resolution must be assessed in the light of
all the circumstances and also by reference to other evidence
of the opinions of states on the point in issue

General principles of law in the practice of tribunals

Court has used this source sparingly

But Court has, on occasion, referred to general notions of
responsibility
o E.g. Chorzw Factory case
Court held that one party cannot avail himself of
the fact that the other hasnt fulfilled some
obligation, or hasnt had recourse to some means
of redress, if the former Party has, by some illegal
act, prevented the latter from fulfilling the
obligation in question, or from having recourse to
the tribunal which wouldve been open to him
Principles of estoppel and acquiescence (preclusion)
General references to abuse of rights and good faith

Legitimate interests

May play a part in creating exceptions to existing rules and

bringing about the progressive development of international
law
Recognition of legitimate interest explains the extent of
acquiescence in face of claims to the continental shelf and
fishing zones
o E.g. Fisheries case economic interests taken into
account
o Law inevitably bound up with the accommodation of the
different interests of states require an element of
appreciation
 TERRITORIAL SOVEREIGNTY

Concept of territory

Four types of regime

Territorial sovereignty
o Extends principally over land territory, territorial sea
appurtenant to the land, seabed and subsoil of territorial
sea
Territory not subject to sovereignty of any state/states
Res nullius
o Consists of same subject-matter legally susceptible to
acquisition by states but not as yet placed under
territorial sovereignty
Res communis
o Consists of high seas includes exclusive economic
zones and also outer space
o Not capable of being placed under state sovereignty

Includes islands, islets, rocks and reefs

Sovereignty and jurisdiction

Legal competence of states and the rules for their protection

depend on and assume the existence of a stable, physically
delimited, homeland
Competence of states in respect of their territory is usually
described in terms of sovereignty and jurisdiction
Difficult to define but a degree of uniformity may be noticed
o Sovereignty: legal personality of a certain kind, that of
statehood
Normal complement of state rights, the typical
case of legal competence
o Jurisdiction: particular aspects of the substance,
especially rights (or claims), liberties, and powers
Criterion of consent
o State A may have considerable forces stationed within
the frontiers of State B, and may also have exclusive use
of a certain area of State B, and also exclusive
jurisdiction over its own forces. But if these rights exist
with the consent of the host state then state A has no
sovereignty over any part of state B
Derogation =/= sovereignty
o If state A had been able to claim that exclusive use of an
area of state B as hers as a sovereign, as of right by
customary law and independently of the consent of any
state, then it counts as sovereignty
Sovereignty and ownership

Imperium
General power of government, administration and disposition
Capacity recognised and delineated by international law

Dominium
Public ownership of property within the state
Private ownership recognised by law

Sovereignty and administration

Legal competence doesnt disappear just because other

powers assume supreme power over a certain state
o Akin to legal representation/agency of necessity
o State continues to exist legal basis of occupation
depends on its continued existence

Terminable and reversionary rights

May be defeasible in certain circumstances by operation of law

E.g. fulfilment of a condition subsequent/failure of the
condition under which sovereignty was transferred where
there is an express/implied condition that title should revert to
the grantor
o E.g. status of Monaco: independence exists subject to
there being no vacancy in the Crown of Monaco
Until such a condition operates the tenant has an
interest equal in all respects to that of sovereignty
o Second view creates problems mandates
E.g. system of mandates created after WWI
By reason of the fact that the principal Allied
powers had taken the cession from
Germany, and that it was they who took the
decision to place the territories under
mandate, it has been concluded that they
retained, and still may retain on a dormant
basis, a residual/reversionary interest in the
actual territories concerned except where
these have attained self-
government/independence
Precise nature of such reversionary interests
depend on the facts of each case but clear
they dont necessarily amount to
sovereignty but rather take the form of a
power of disposition
Residual sovereignty

Occupation of foreign territory in times of peace may occur on

the basis of a treaty with the territorial sovereign
Grantee under the treaty may receive very considerable
powers of administration amounting to a delegation of the
exercise of many of the powers of the territorial sovereign to
the possessor for a particular period
o E.g. Article 3 of Treaty of Peace of 8 September 1951
Japan agreed that, pending any action to place the
Tyukyu Islands under the trusteeship system of
the UN, The US will have the right to exercise all
and any powers of administration, legislation and
jurisdiction over the territory and inhabitants of
these islands, including their territorial waters
In 1951 the US Secretary of State referred to the
residual sovereignty of Japan over the islands
US courts, in holding that inhabitants of the
Ryukyus were not nationals of the US and that the
islands were a foreign country in connection with
the application of various US statutes, have
referred to the de facto sovereignty of the US
and to the Japanese interest in terms of residual
sovereignty or de jure sovereignty
o E.g. Lighthouses in Crete and Samos (1937)
PCIJ held that in 1913 the islands of Crete and
Samos were under the sovereignty of Turkey,
which therefore had the power to grant/renew
concessions with regards to the islands
Re: Crete the court held that notwithstanding its
autonomy, Crete has not ceased to be a part of
the Ottoman Empire

Use and possession granted in perpetuity

E.g. Convention of 18 November 1903

o Panama granted to the US in perpetuity the use,
occupation and control of a zone of land and land under
water for the constructionand protection of the
Panama Canal, ten miles in width
o Residual sovereignty thus remains with the grantor
o But not only has the exercise of all rights of jurisdiction
been delegated but the grantor might seem to have
renounced even the right of disposition
o However the grantees rights rests on an agreement and
would be defeated by a disposition of the residual
sovereignty to a third state in regard to which the grant
was res inter alios acta
 Restriction on disposition consists in an inability to
grant similar rights to another state: residual
sovereignty remains transferable and grantee has
no power of disposition

Condominia

May be asserted that sovereignty is divisible as a matter of

principle and a matter of experience
International law recognises the condominium, which exists
when two or more states exercise sovereignty conjointly over
a territory
o E.g. Great Britain and Sudan had condominium over the
Sudan between 1898 and 1956
Theoretical consequences of this type of regime may be
qualified by agreement
But its difficult to rely on any general theory (!?!?!?)
o This type of problem concerns a particular status in rem,
and the fact that one state cannot alienate the territory
without the consent of the other/others doesnt justify
the application of the general category of joint tenancy
as opposed to tenancy in common
Costa Rica v Nicaragua (1916), El Salvador v
Nicaragua (1917)

Parts of state territory

Territorial subsoil

Whoever has sovereignty over the surface wins

~the rest arent relevant to you at this stage~

The concept of title

Denotes legal competence which a state enjoys in respect of its

territory

Nemo dat quod non habet

No man can give another any better title than he himself has

CREATION AND TRANSFER OF TERRITORIAL SOVEREIGNTY

Critical dates

In any dispute a certain date/several dates will assume

prominence in the process of evaluating the facts
 Choice of such a date/dates is within the province of the
tribunal seized of the dispute and will depend in some
circumstances on either the logic of the law applicable to the
particular facts or the practical necessity of confining the
process of decision to relevant and cogent facts and thus to
acts prior to the existence of a dispute
E.g. Eastern Greenland case between Norway and Denmark
E.g. Palmas Island case between US and Spain

Modes of acquisition

Five modes
Occupation
Accretion
Cession
Conquest
Prescription

But Brownlie argues that, issues arising from the division and
choice of modes notwithstanding, the whole concept of modes of
acquisition is unsound in principle and makes the task of
understanding the true position much more difficult

Roots of title

Treaty of cession

Right to possess certain territory as sovereign may be

conferred by agreement between intending grantor and
grantee and, if the grantee takes possession in accordance
with the treaty, it will provide the legal basis of sovereignty
Actual transfer not possible/required if grantee is already in
occupation
Date on which title changes may be determined by the treaty
of cession
o Normally date on which treaty comes into force
Treaty itself gives the intending grantee an assignable interest
Grantee can pass his interest to a third state

Other dispositions by treaty

May exist on the basis of a treaty alone

Treaty marks a reciprocal recognition of sovereignty in the
solemn form and with attention to detail

Consent in other forms

 Existence of consent of the transfer of territory may be
evidenced without the conclusion of any formal agreement

Uti possidetis (juris)

~~ skip some more content here not relevant yet ~~

Acquiescence and recognition

In many cases recognition and acceptance of territorial

sovereignty may occur in contexts where there is no
agreement to transfer as the claimant is already in possession
Transaction may be unilateral
Recognition is on the part of third states and not necessarily
the losing state
Recognition may take the form of a unilateral express
declaration or occur in treaty provisions which make clear
there has been no cession in the sense of transfer by
agreement
Acquiescence has the same effect as recognition but arises
from conduct (absence of protest)

Estoppel

Resting on good faith and the principle of consistency in state

relations, estoppel may involve holding a government to a
declaration which doesnt correspond to its real intention

Novation

Distinct mode of acquisition

Verzijl: it consists in the gradual transformation of a right in
territorio alieno, for example a lease, or a pledge, or certain
concessions of a territorial nature, into full sovereignty without
any formal and unequivocal instrument to that effect
intervening

FURTHER PROBLEMS WITH THE STATUS OF TERRITORY

International procedures relating to territorial dispositions

Agreement between states concerned

Cession of territory may depend on the political decision of the
states concerned in a dispute
May also be the result of either a political claim, on grounds of
justice/security, or a legal claim

Joint decision of the principal powers (not relevant at this point)

Action by UN organs
Does the UN have a capacity to convey title?
o UN cannot assume the role of territorial sovereign
In spite of principle of implied powers, the
Organisation isnt a state and the GA only has
powers of recommendation
E.g. 1947 resolution containing a partition plan for
Palestine was probably ultra vires and, if it wasnt,
wasnt binding on member states anyway
o But states may nonetheless agree to delegate a power
of disposition to a political organ of the UN, at least
where the previous sovereign has relinquished title and
there isnt a transfer of sovereignty and no disposition of
a title inhering in the Organisation

THE RESPONSIBILITY OF STATES

Causes of action

Objections to jurisdiction ratione temporis/based upon the

reserved domain of domestic jurisdiction require consideration
of what the subject of the dispute is
A tribunal may have to apply the principle of res judicata and
thus decide whether in previous proceedings a particular issue
was disposed of finally and without possibility of revision in
proceedings affecting the same general subject matter
The operation of the rule of admissibility of claims requiring
prior exhaustion of local remedies in certain cases may call for
careful examination of the nature of the dispute as presented
to the relevant municipal court and the dispute as presented
on the international plane
In presenting the merits of a claim there may be some
advantage in relating the evidence to more than one category
of unlawful activity

A SYSTEM OF MULTILATERAL PUBLIC ORDER

In the law relating to acquisition of territorial sovereignty, including

the delimitation of a territorial sea and to rights of passage and
other privileges, illegal activity may produce valid results by the
operation of prescription, acquiescence and estoppel. The illegal
conduct is merely a causa sine qua non and does not of itself
produce legal consequences.

Ex injuria non oritur jus

No benefit can be received from an illegal act
 Eastern Greenland: Permanent Court took the view that
Norway couldnt rely on her decree of 1931 affecting the
disputed area as Denmark had a prior title
o Municipal courts have often refused to give
extraterritorial recognition to acts regarded as illegal
under international law
But reference to this principle doesnt provide a safe guide to
the solution of specific problems
o E.g. acquisition of a state may confirm the validity of an
award of an arbitrator which was in principle open to
challenge on the ground of excess of jurisdiction

STATE SUCCESSION

Arises when there is a definitive replacement of one state by

another in respect of sovereignty over a given territory in
conformity with international law
o Total dismemberment of an existing state
o Secession
o Decolonisation of part of a state
o Merger of existing states
o Partial cession/annexation of state territory
Should be distinguished from cases where one state acts as
the agent/delegate of another for legal purposes
Inheritance/devolution of treaty rights and obligations
frequently the subject of agreements between predecessor
and successor states
o UK made agreements with Burma, Malaya, etc such
agreements promote certainty and stability of relations
but also create new problems
Agreement may appear to be part of the bargain
extracted by the outgoing colonial power at
independence and the new state may seek legal
means of disputing its validity and application
Third states also cannot be legally bound by
inheritance agreements unless by express
declaration/conduct they agree to be bound

ON THE ISSUE OF JURSIDICTION

Advisory jurisdiction of the court

Article 68 of the Statute provides that the Court shall be guided by

the provisions applicable in contentious cases to the extent to
which it recognises them to be applicable
Eastern Carelia: Council of the League of Nations asked for an
opinion on a dispute between Finland and the Soviet Union; SU
objected to exercise of jurisdiction
 o Court refused on ground that the requesting organ was
not competent to request an opinion in the
circumstances: no state can be compelled to submit
disputes to a tribunal without its consent, and the SU
wasnt bound by the League Covenant
Namibia and Western Sahara cases distinguished on basis that
the situations involved didnt constitute a dispute
o Also, in each case the political organ making the request
for an opinion was concerned in the exercise of its own
functions under the Charter of the UN rather than the
settlement of a particular dispute

As the Court is unwilling to decline jurisdiction by adverting to the

political implications of opinions, the issue becomes one of propriety
Admissions and Expenses cases: Court concerned itself with
issues of interpretation which had considerable political
ramifications and, significantly, the organs concerned were
unable to act on those two opinions
In refusing to decline requests by virtue of its discretion in the
matter of advisory jurisdiction, the Court has reiterated the
view that as it is an organ of the UN a request for an AO
should in principle not be refused
Moreover, principle of the Eastern Carelia case that the
matter concerned a dispute between two states and
jurisdiction couldnt be exercised without their consent, can be
advanced as an issue both of jurisdiction and of propriety

Situations in which the court may decline to exercise jurisdiction

Case would involve deciding the legal situation of a State not
a party to the case
Any judgment given would be ineffective
o Legal situation is such that the decision would have no
forward reach
o Claims of the applicant have in effect been satisfied, so
the case has become without object or moot
Sometimes the attitude of the respondent State in disputing
jurisdiction is fully justified
Applicant state may be trying to extend a limited acceptance
of jurisdiction by its opponent to cover a dispute of a kind that
was never contemplated in the instrument relied on