International Law.” I. In General
International Law a body of legal principles, norms and processes which regulates the relations of States and other international persons, and
governs their conduct affecting the interests of the international community as a whole
Higgins: international law should be viewed as a normative system and not merely as a set of rules Why?
- The specialized social process to which the world “law” refers to does not refer to rules alone – it includes other factors such as power, social and humanitarian factors
- Rules are just accumulated past decisions formulated within a certain context; if IL be rule-based, once the context changes, these rules will be unable to apply
- There are still topics on which there are no specific rules of IL; by viewing IL as a process, we have available to us the tools for authoritative decision making on the problem, notwithstanding the absence of a precise rule which must be applied.
- When the set of rules no longer apply, there may be the emergence of a new rule or norm1
- Law is not in a vacuum. Decision makers and policy makers, while considering rules, will also consider other factors, and that’s a fact.
Basis of the Binding Nature of International Law
1. Natural law
2. Consent – based on the sovereignty of states, which in turn emphasizes their freedom to act unilaterally save to the extent they agreed upon to be constrained
3. Reciprocity – as notions of justice were replaced by consent, so consent has gradually been replaced by consensus which has come about because states perceive a reciprocal advantage in cautioning self-restraint
Magallona Annotations:
Has there been a judicial pronouncement on the general nature of international law?
Lotus Case: “International law governs relations between states. 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 those co-existing independent communities or with a view to the achievement of common aims.”
How is the concept of the “international community as a whole” manifested in contemporary IL?
Through the codification of jus cogens or peremptory norms as part of positive international law; thus, Art. 53 of the Vienna Convention on the law of Treaties defines the same as, “a a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only be a subsequent norm of general international law having the same character.”
Barcelona Traction Case – distinction between an obligation of a State with another State, and obligations of a State towards the international
community as a whole LATTER: “By their very nature, … are the concern of all States. In view of the importance of the rights involved, all states
can be held to have a legal interest in their protection; they are obligations ERGA OMNES.”
Why do States take interest in the creation or recognizing norms of international law?
IL is a means by which States pursue and develop mutual exchanges of economic, social, political, and other interests or advantages, or resolve disputes between them by peaceful means.
Legal norms are established to maintain and stabilize inter-state relations
Function of IL: to insure peace and security, so that this system of mutual relations is maintained in terms of equality, good faith, and balance of interests
Why do States observe or comply with their obligations under IL?
There prevails in the international community a “culture of compliance” [Louis Henkin]
States recognize that stability, law and order, reliability … enlightened self-interest in compliance Generally, how do we view the relation between state sovereignty and international law?
FALSE: International law only curtails or limits the sovereignty of States
As a method of creating norms, treaties provide not only duties but rights as well; not only restrictions but also power or authority
If state sovereignty is said to be “absolute,” how is it related to the independence of other States and to their equality on the international plane?
From national legal order standpoint: state sovereignty is the supreme legal authority in relation to the subjects within its territorial domain >>> “ABSOLUTE”
BUT, in international sphere: sovereignty realizes itself in the existence of a large number of sovereignties co-existence of sovereignties under conditions of independence and equality
Sovereignty of one ends where another’s begins. How then is state sovereignty defined in international law?
It refers to the right to exercise in a definite portion of the globe the functions of a State to the exclusion of any other state [Island of Las
Palmas Case]
II. Sources of International Law
ICJ Statute, 38.
1. 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.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. - This enumeration is not the only sources of IL. It is merely an enumeration of what the ICJ shall apply
- There is a hierarchy: [a-c] are primary means while [d] is subsidiary means. Don’t use [d] unless you have no other source - A,B, and C can overlap. For example, genocide.
International Law.”
- When treaty norm and customary norm overlap, even non-signatories to the convention will be bound by the norm - Correct phrasing of 38, 1b “international custom, as evidenced by general practive accepted as law”
- Violations of law can lead to formation of a new law
VCLoT, 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. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
Magallona Annotations:
In IL, how is the concept of source understood?
A process or method of creating or forming norms of international law It is a norm-creating or norm-formation process
Recognition that a rule or norm has a binding character as law rests on the recognition by States that it has been established through a definite method of norm-creation established or accepted by them
PRINCIPAL SOURCES: TREATY AND CUSTOM
Brownlie: “Source may refer to the source of the binding quality of international law as such and also to the literary sources of the law as sources of information.”
What are the sources of international law?
ICJ Statute, 38(1)
Sources of Law refer to norms derived from international convention or treaties, custom, and general principles of law Treaty – legal instrument which constitute a material source of norms
Treaty-making = a norm-creating process, a method of formalizing the consent of the States by which they intend to be bound by the treaty Distinction between formal sources from material sources of IL
Formal: consist of the methods and procedures by which norms are created Material: substantive evidence of the existence odf norms
Example: formal source = custom as a norm-creating process; material source = custom’s content in terms of state practice arising from a sense of legal duty
Salmond: The material sources supply the substance of the rule to which the formal sources give the force and nature of law
Brownlie: Formal = those legal procedures and methods for the creation of rules of general application which are legal binding on the addressees;
material = provide evidence of the existence of rules which, when proved, have the status of legally-binding rules of general application. Difference between traits-lois [law-maming treaties] and traits contracts[contractual treaties]?
No significant difference
Oppenheim: “in principle, all treaties are law-making inasmuch as they lay down rules of conduct which the parties are bound to observe as law” Elements of international custom?
(1) general practice, characterized by uniformity and consistency
o North Sea Continental Shelf Cases: State practice as an element of customary law must be “both extensive and virtually uniform”
o Anglo-Norwegian Fisheries Case: Some degree of uniformity is required
o Asylum Case: general practice as “constant uniform usage practiced by the States in question
o IN ANY EVENT, UNIVERSALITY OF PRACTICE NOT REQUIRED
o Repetition of practice or action of states is necessary [Tunkin] “A customary norm of international law arises in consequence of the repeated actions of states. The element of repetition is basic to the formation of a rule of conduct. In the majority of instances the repetition of specific actions in analogous situations can lead to the consolidation of such practice as a rule of conduct
(2) opinio juris sive necessitatis recognition of that practice as legally binding
Judge Hudson, elements which must be present before a principle of international custom can be found to be established
(a) Concordant practice by a number of States with reference to a type of situation falling within the domain of international relations; (b) Continuation or repetition of the practice over a considerable period of time;
(c) Conception that the practice is required by or consistent with prevailing international law; and (d) General acquiescence in the practice by other States
In what form may evidence of State practice take?
Treaties, decisions of international and national tribunals
May take the form of relevant legislation and diplomatic correspondence
Generally, “any such act or declaration may, so far as it goes, be some evidence that a custom, and therefore that rule of international law, does or does not exist; but, of course, its value as evidence will altogether be determined be determined by the occasion and the circumstances”
Military and Paramilitary Activities in and against Nicaragua: evidence of state practice may be in the from of document recording statements by
“high-ranking official political figures, sometimes indeed of the highest rank,” in particular “when they acknowledge facts or conduct infavorable to the state represented by the person who made them.”
By itself, does state practice, general it may be, establish international custom?
NO. North Sea Continental Shelf Cases: “Not only must the acts 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 States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency or even habitual character of the acts is not in itself enough.”
Nicaragua v. US Case: “Not only must the acts concerned “amount to a settled practice,” but they must also 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. The need for such a belief, i.e. the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis.”
International Law.”
Opinion juris means that when States create law by what they do in practice or by their conduct, they must believe that the practice or conduct is obligatory.
They do so for the reason that the practice is required by law, not because of courtesy or political expediency
Asylum Case: Such conduct is not only “a constant and uniform usage practiced by States in question,” but it must also be the expression of right
appertaining to the State granting the asylum and a duty incumbent on the territorial State.”
Lotus Case: “Only if such abstention were based on their being conscious of a duty to abstain would it be possible to speak of an international
custom.“ As it is with respect to positive acts of States, so it is true with their abstentions
OPINIO JURIS MEANS THAT GENERAL PRACTICE EMBODIED IN A RULE MUST HAVE BEEN DONE OUT OF A RECOGNITION THAT IT IS A LEGAL NORM AND THEREFORE OBLIGATORY.
Is a particular length of time required for the formation of customary norms?
No. Baxter: the time factor as a separate element…now seems irrelevant
North Sea Continental Shelf Cases: “Although the passage of only a short passage of time is not necessarily, or of itself, a bar to the formation of a
new rule of customary international law…, an indispensable requirement would be that within the period in question, short though it may be, State practice, including that of States whose interests are specially affected, should have been extensive and virtually uniform in the sense of the provision invoked – and should have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.” Principle of persistent objector
When a State continues to object to a new customary norm at the time when it is yet in the process of formation, by such persistent objection the norm will not be applicable against that State
Anglo-Norwegian Fisheries Case: “In any event, the ten-mile rule [in the delimitation of territorial waters across bays] would appear to be
inapplicable as against Norway, inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.” As to the number of States under the binding force of legal norms, how is treaty distinguished from custom?
Treaty: its binding character is limited to States which are parties to it Custom/customary norm: binding on all States
VCLoT, 34 “a treaty does not create either obligations or rights for a 3rd State without its consent.”
Verdross: Customary law is “the oldest source of general IL.”
Kelsen: “The custom by which a norm of general IL is created…is binding upon all states of the international community.”
O’Connell: “Customary law is dependent, not upon unanimity, but only upon generality of will. The dissentient minority of State are as much bound by the formulated rule as those who actively participated in its creation, the source of their obligation residing in the moral necessity which underlies observance of law.”
But may treaties create norms of general IL?
Tunkin: “The existence of a large number of multilateral international treaties in which all or nearly all states participate, as well as important activity in the codification of international law, create a situation whereby international treaties are becoming a means of directly creating, modifying and developing norms of general IL.”
Lauterpacht: “universal international law is created when all or practically all the members of the Family of Nations are parties to these treaties… many law-making treaties have been concluded which contain general IL because the majority of States, including the leading Powers, are parties to them.”
Brownlie: law-creating effect of some treaties as analogous to that of general practice in customary norm lawmaking treaties (those which create legal obligations the observance of which does not dissolve the treaty obligations) create general norms for the future conduct of the
parties in the terms of legal propositions, and the obligations are vasically the same for all parties
“General principles of law” in Art 38 1(c)
Brownlie: “The intention is to authorize the court to apply the general principles of municipal jurisprudence, in particular of private law, insofar as they are applicable to relations of States
South West Africa case, Judge McNair: “The way in which international law borrows from this source is not by means of importing private law
institutions ‘lock, stock and barrel,’ ready-made and fully equipped with a set of rules. It would be difficult to reconcile such a process with the application of the ‘general principles of law.’”
Are judicial decisions and teachings of publicists sources of international law?
They are subsidiary means for the determination of rules of law [A38, 1(d)] Means by which the rules of law may be verified
They may be regarded as evidence of law
Schwarzenberger: indirect and secondary evidence of rules created by treaty, custom, and general principles of laws May a norm be both a treaty rule and a customary norm at the same time?
YES.
Nicaragua Case: even if customary international norms have been codified or embodied in conventions, this does not mean that they cease to
exist or apply as customary law, even with respect to States which are parties to those conventions “It will therefore be clear that customary international law continues to exist and to apply, separately from int’l treaty law, even where the 2 categories of law have an identical content. VCLoT, 38. Rules in a treaty becoming binding on third States through international custom. Nothing in articles 34 to 37 precludes a rule set forth
in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such. What is a jus cogens norm?
A norm which States cannot derogate or deviate from in their agreements.
It is therefore a mandatory norm and stands on a higher category than a jus dispositivum norm which States can set aside or modify agreement What norms, for example, are considered as jus cogens in character?
Nicaragua Case: prohibition against the use of force under the UN Charter Genocide
Principle of self-determination Principle of racial non-discrimination Crimes against humanity
International Law.”
Prohibition against slavery and slave trade Piracy
What is an obligation erga omnes?
It is an obligation of every State “towards the international community as a whole”
All states have a legal interst in its compliance, and thus all States are entitled to invoke responsibilitty for breach of such an obligation
Barcelona Traction Case: By their nature…they are the concern of all States. In the view of the importance of the rights involved, all States can be
held to have a legal interest in their protection; they are obligations erga omnes.” Examples of obligations erga omnes
Barcelona Traction Case:” Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and
of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.”
Is there an order of precedence in the application of Art 38(1)?
None explicitly stated. But in North Sea Continental Shelf Cases, treaty norm preceded over customary law: “The first question to be considered is whether the Geneva Convention on the Continental Shelf is binding for all Parties in this case…Clearly, if this be so, then the provisions of the Convention will prevail in the relation between the Parties, and would take precedence of any rules having a more general character, or derived from another source.”
Brownlie: In practice the Court may be expected to observe the order… the priority of [a] is explicable by the fact that this refers to a source of mutual obligations of the parties
Lauterpacht: it is mutual that the parties should invoke and that the adjudicating agency should, in the first instance, the provisions of the treaty, when a matter under controversy is regulated by that treaty
Akehurst: treaties are easier to prove than custom and custom is easier to prove than than general principles of law May States, by a treaty, derogate from a customary norm of international law?
YES in which case an international treaty had established a special juridical regime between the parties with respect to the domain in question such regime constitutes as jus speciale which is capale of derogating in principle from jus generali
North Sea Continental Shelf Cases: “It is well understood that, in practice, rules of international law can, by agreement, be derogated from in
particular cases, or as between particular parties.” BUT NOT JUS COGENS NORMS
Are there principles which may determine the order of precedence in the application of rules of norms of international law?
1) Lex superior derogat inferiori: rules from one source of law prevail over those derived from another source 2) Lex posterior derogat priori: later rules prevail over the earlier
3) Lex spaciali derogat generali: particular or special rules prevail over the general VCLoT, 30. Application of successive treaties relating to the same subject matter.
1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs.
2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.
3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. 4. When the parties to the later treaty do not include all the parties to the earlier one:
(a) as between States Parties to both treaties the same rule applies as in paragraph 3;
(b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties
governs their mutual rights and obligations.
5. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the operation of a treaty under article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty.
“Hierarchy of obligations” in international law?
YES jus cogens obligations are superior to jus dispositivum
Barcelona Traction Case: Obligations erga omnes have a higher status than obligations inter se
UN Charter, 103: “In the event of a conflict between the obligations of the Members of the United Nations under any other international
agreements, their obligations under the present Charter shall prevail.” May a unilateral declaration or act of State result in legal obligations?
YES Nuclear Tests Cases: When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration.
Conditions
o Given publicly o With intent to be bound
o even though not made within the context of international negotiations
in these circumstances, nothing in the nature of quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect
Legal Status of Eastern Greenland Case: Norwegian Minister of Foreign Affairs declared that “the Norwegian government would not make any
difficulties in the settlement of this question.” Thus, ICJ said, “Norway is under an obligation to refrain from contesting Danish sovereignty over Greenland as a whole, and a fortiori refrain from occupying a part of Greenland.”
Kuroda v. Jalandoni. Military Commission has jurisdiction to try for the acts committed. It cannot be denied that the rules and regulations of the two
convention form part of and are wholly based on the generally accepted principles of international law. These rules and principles were accepted by the two belligerent nations, United States and Japan, who were signatories of two conventions. Such rules and principles therefore, form part of the law of our nation even the Philippine was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive
International Law.”
in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory.2
- General principles of law are mostly remedial principles - It is possible for treaties and customary norm to overlap
- Effect if a treaty merely codifies a norm: follow the exception to the rule that non-signatories are not bound - Customary norms bind everyone who follow that custom
Yamashita v. Styer. [Concept of command responsibility] War is not ended simply because hostilities have ceased. After cessation of armed hostilities,
incidents of was may remain pending which should be disposed of as in time of war. “An important incident to a conduct of war is the adoption of measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede the military effort have violated the law of war. “ Indeed, the power to create a Military Commission for the trial and punishment of war criminals is an aspect of waging war. || The Military Commission thus duly constituted has jurisdiction both over the person of the petitioner and over the offenses with which he is charged. It has jurisdiction over the person of the petitioner by reason of his having fallen into the hands of the United States Army Forces. Under paragraph 347 of the Rules of Land Warfare, “the commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall.”3
PERFECTO, J., concurring and dissenting:
International law (in particular IHL) evolved from custom & practice throughout history. Many of the basic ideas which prevail today in the customs and
usages of nations and became part of the international law emerged from the human mind centuries before the Christian Era. Such is the idea that prisoners of war are entitled to humane treatment, that treasons of war should be discountenanced, and that belligerents must abstain from causing harm to non-combatants.
RP is bound to comply with established rules in treating war criminals. Impelled by irrepressible endeavors aimed towards the ideal, by the
unconquerable natural urge for improvement, by the unquenchable thirstiness of perfection in all orders of life, humanity has been struggling during the last two dozen centuries to develop an international law which could answer more and more faithfully the demands of right and justice as expressed in principles which, weakly enunciated at first in the rudimentary juristic sense of peoples of antiquity, by the inherent power of their universal appeal to human conscience, at last were accepted, recognized, and consecrated by all the civilized nations of the world. Under these principles, Yamashita is entitled to be accorded all the guarantees, protections, and defenses that all prisoners should have, according to the customs and usages, conventions and treaties, judicial decisions and executive pronouncements, and generally accepted opinions of thinkers, legal philosophers and other expounders of just rules and principles of international law. The seriousness or unfathomable gravity of the charges against him must not be taken into consideration in order that true justice may be administered in this case.
- Mankind in general has been covered by laws governing as far back as the ancient times
Kookooritchkin v. SolGen. Kookooritchkin stated in his petition stated that he is a citizen of the Empire of Russia, which has ceased to exist since the
Czars were overthrown. Knowing the history, nature and character of the Soviet Government, it would be technically fastidious to require further evidence of his claim that he is stateless than his testimony that he owes no allegiance to the Soviet govt.
Nicaragua v. US.
Customary law operates independently of treaty law. It rather demonstrates that in the field in question, customary international law continues to
exist alongside treaty law. The areas governed by the two sources of law thus do not overlap exactly, and the rules do not have the same content. But even if the customary norm and the treaty norm were to have exactly the same content, this would not be a reason for the Court to hold that the incorporation of the customary norm into treaty-law must deprive the customary norm of its applicability as distinct from that of the treaty norm. There are a number of reasons for considering that, even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.
Opinio juris can be deduced from attitude of states toward certain GA resolutions. This opinio juris may, though with all due caution, be deduced from
the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, i.e. the "Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the UN". The effect of consent to the text of such resolutions cannot be understood as merely that of a "reiteration or elucidation" of the treaty commitment undertaken in the Charter.
Recognition that a rule is fundamental or a jus cogens establishes CIL. A further confirmation of the validity as customary international law of the
principle of the prohibition of the use of force expressed in Article 2 of the UN Charter of may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law. Nicaragua in its Memorial on the Merits states that the principle prohibiting the use of force embodied in Article 2 "has come to be recognized as jus cogens"
- Armed attack4:
In Nicaragua case ICJ says an armed attack is: (1) action by regular State armed forces across an international border; (2) armed groups, irregular forces and mercenaries when (a) they are “sent by or on behalf of a State” to carry out an armed attack against another State and (b) the attack is of such gravity so that it amounts to an armed attack if it was conducted by regular armed forces of a State (The Court referred to Article 3(g) of the GA Resolution on the Definition of Aggression and said this reflected CIL). Note that State “B” does not have a right of SD against State “A”: even if rebels carried out an armed attack against State “B”; unless, these rebels was sent by or on behalf of another State (State “A”).
What is not an armed attack according to the ICJ in the Nicaragua case?
1. If State “A” supplies of weapons and logistical to a rebel group, which the rebel groups use to attack State “B” – can the supply of weapons and logistical support be considered as an armed attack by State “A” against the State “B”? In Nicaragua Case the court said NO. The Court said this may amount to a threat or use of force or intervention in the affairs of another State but it was not an armed attack. This means that State B does not have the right of SD against State “A” under Article 51 of the Charter because an armed attack has not occurred. The Court said that instead of relying on SD State B can take “proportional countermeasures” against State A in such a situation.
2 http://pilexecutiveclass.blogspot.com/2008/07/kuroda-vs-jalandoni.html 3 http://mylifejayannephil.blogspot.com/2009/06/public-international-law.html
International Law.”
2. Mere frontier incidents are not “armed attacks” if the necessary “scale and effects” are not there. When can a State use force in SD according to Article 51?
1. An armed attack has to have occurred against a member State (read the section before on armed attack and the situation in which a State can use SD).
2. SD is only available against the aggressor State (the one who carried out or on whose behalf an armed attack was carried out) by the victim State (subject of the attack).
3. The only way a third State will have a right of SD against the aggressor State is if the victim State asks for the help of the third State (we call this collective self defense).
4. Any use of force in SD must be necessary and proportionate to the armed attack.
5. As we discussed a State that uses force in SD must immediately inform the SC and this State can use force only until the SC steps in. 6. What we discussed so far is the treaty or UN Charter right to SD. In addition to the treaty right of SD, some argue that there is also a CIL
right to SD. They argue that the Charter never intended to restrict the CIL right of SD (which is more wider than the right under A. 51) and that the reference to the “inherent right” of SD in Article 51 brings in the CIL right of SD into Article 51.
The high threshold test from Nicaragua v. United States (1986), which limits the notion of “armed attack” to the “most grave forms of the use of force.” Thus, the court set a high threshold at which a state’s right to use force in self-defense is triggered.5
- Control test (when action of armed group is an act of state?”6
The ICJ established the doctrine of “effective control,” whereby the actions of a non-state armed group can be imputed to a state or state actor. Evidence of effective control includes: selecting leaders, creating an organizational structure, training, supplying arms or other equipment, planning operations, selecting targets, and providing operational support.
- When self-defense can be invoked7
A State can use SD when it’ s (1) necessary: that is to say that the threat or use of force is instant, overwhelming, leaving no choice (no alternatives) and no moment of deliberation and (2) proportionate to the threat or use of force. (This position was formulated after the Caroline Incident that took place in 1837 when the British sank a ship with insurgents in American territory and after British citizen was charged for sinking the ship.)
Under CIL a State use SD:
1. When an armed attack occurred: see our discussion on the Israel/ Lebanon/ Hezbollah conflict in 2006.
2. In anticipation of an armed attack or threat to State security: consider what we did on the recent US attack on Iraq based on the alleged existence of nuclear weapons (WMD). This was justified by US as “anticipatory SD” (this is also called “preemptory self defense”.)
3. In response to an attack or threat of attack against State interests (nationals and property of the State). See our discussion on the Entabbe incident, where Israel justified the use of force in Ugandan territory against the PLO as SD. US invasions in Panama and Grenada were also justified on the basis of protecting US nationals in those countries.
4. Where the “attack” doesn’t involve the use of force and involves, instead, economic aggression that is instant and overwhelming.
- Duty of state when found in breach: (a) duty to cease in the breach; (b) duty to make reparations [restore status quo ante; if impossivle, pay compensation to extinguish consequences of illegal acts
- Customary norm has separate applicability even if part of a treaty - Existence of the rule on opinio juris must be confirmed by practice
North Sea Contintental Shelf Case.
Quick facts. Delimitation of continental shelf of Germany, Denmark and the Netherlands Germany proposed that delimitation of the continental
shelf between the parties is governed by the principle that each coastal State is entitled to a just and equitable share.” Germany contents that making use of the equidistance method of Article 6, paragraph 2, of the Continental Shelf Convention, had not become customary international law and was not under the circumstances the appropriate method. The equidistance method could not be used where it would not achieve a just and equitable apportionment of the shelf. As for Denmark and the Netherlands, delimitation should be governed by the principle of Art. 6, par. 2, and that where the parties were in disagreement as to the boundary and special circumstances did not justify another boundary, then “the boundary between them is to be determined by the application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
Provision should be norm-creating. It would be necessary that the provision should, at all events potentially, be of a fundamentally norm-creating
character such as could be regarded as forming the basis of a general rule of law. Considered in abstracto the equidistance principle might be said to fulfill this requirement. Yet in the particular form in which it is embodied in Art. 6, and having regard to the relationship of that Article to other provisions, this must be open to some doubt. In the first place, Art. 6 is so framed as to put 2ND the obligation to make use of the equidistance method,
causing it to come after a primary obligation to effect delimitation by agreement. Such a primary obligation constitutes an unusual preface to what is claimed to be a potential general rule of law.
Widespread & representative participation in the convention including specially affected states. Regarded necessary before a conventional rule can be
considered to have become a general rule of international law might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected.
Passage of time immaterial in the formation of a new rule of CIL. Although the passage of only a short period of time is not necessarily, or of itself, a bar
to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked;-and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.
- The ILC composed of experts is created by the UN GA to codify CIL. Since their work deals with customary norms, their drafts/works are subsidiary means of discovering CIL
5 http://www.wcl.american.edu/nimj/international_hum_law.cfm 6 ibid
International Law.”
- 4 situations contemplated: (1) Purely treaty norm/custom
(2) If treaty is a norm, then binding on all even non-parties to the treaty (3) Custom is binding on all
(4) Treaty custom is binding on all
South West Africa case. – apartheid case
Court can only rule on legal rights/obligations. It had been attempted to derive a legal right or interest in the conduct of the Mandate from the simple
existence, or principle, of the "sacred trust". The sacred trust, it was said was a "sacred trust of civilization" and hence all civilized nations had an interest in seeing that it was carried out. But in order that this interest might take on a specifically legal character the sacred trust itself must be or become something more than a moral or humanitarian ideal. In order to generate legal rights and obligations, it must be given juridical expression and be clothed in legal form. The moral ideal must not be confused with the legal rules intended to give it effect. The principle of the "sacred trust" had no residual juridical content which could, so far as any particular mandate is concerned, operate per se to give rise to legal rights and obligations outside the system as a whole.
- This is a legal challenge brought by Ethiopia & Liberia against South Africa WRT the practice of apartheid (although never mentioned here!!) The action is based on the mandate given to South Africa to promote the material & moral well-being & social progress of inhabitants of the South West African territory. The Court did not decide on the merits because it did not consider the case as involving a legal issue because there was no law prohibiting apartheid. The Applicants tried to derive a legal right or interest in the conduct of the Mandate for South West Africa from the simple principle of the “sacred trust”. The principles set forth here have been obliterated in latter cases. Fundamental equality is now considered an erga omnes obligation since it is a fundamental human right.
Asylum case. Custom = constant uniform usage. The Party which relies on a custom of this kind must prove that this custom is established in such a
manner that it has become binding on the other Party. The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State.
- No uniform practice and opinio juris in this case; therefore, no customary norm
- Principles of IL do not recognize any rule if unilateral and definitive qualification by the State granting diplomatic asylum
- The party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other party. Applicant must prove that the rule invoked by it is in accordance with a constant and uniform usage practiced by the States in question
Nuclear Test Cases see Magallona annotation on unilateral declarations
- New Zealand v. France. - Australia v. France.
In the present case, the Applicant, while recognizing the possibility of the dispute being resolved by a unilateral declaration on the part of France, has stated that, in its view, the possibility of further atmospheric tests has been left open, even after the French statements mentioned above. The Court must, however, form its own view of the meaning and scope intended to be given to these unilateral declarations. Having regard to their intention and to the circumstances in which they were made, they must be held to constitute an engagement of the French State. France has conveyed to the world at large, including the Applicant, its intention effectively to terminate its atmospheric tests. It was bound to assume that other States might take note of these statements and rely on their being effective. It is true that France has not recognized that it is bound by any rule of international law to terminate its tests, but this does not affect the legal consequences of the statements in question, the unilateral undertaking resulting from them cannot be interpreted as having been made in implicit reliance on an arbitrary power of reconsideration. - Request for an examination of the situation in accordance with par. 63. Of the court’s judgment.
Do the Requests submitted to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealand v. France)?". In the Court's view that question has two elements. The first element concerns the courses of procedure envisaged by the Court in paragraph 63 of its 1974 Judgment, when it stated that "the Applicant could request an examination of the situation in accordance with the provisions of the Statute"; the other concerns the question whether the "basis" of that Judgment has been "affected" within the meaning of paragraph 63 thereof. In its examination of that question the Court found in the first place that by inserting in paragraph 63 the above-mentioned phrase, the Court did not exclude a special procedure for access to it (unlike those mentioned in the Court's Statute, like the filing of a new application, or a request for interpretation or revision, which would have been open to the Applicant in any event). Secondly, however, the Court found that that special procedure would only be available to the Applicant if circumstances were to arise which affected the basis of the 1974 Judgment. And that, it found, was not the case, as the basis of that Judgment was France's undertaking not to conduct any further atmospheric nuclear tests and only a resumption of nuclear tests in the atmosphere would therefore have affected it.
Legality of the Use by a State of Nuclear Weapons. The ICJ declared that human rights law and the protection of the International Covenant on Civil
and Political Rights do not cease in times of war except for allowable derogations specified in Article 4 of the Covenant. However, the test for what is an arbitrary deprivation of a right is determined by the applicable lex specialis, namely, international humanitarian law.8
It finds that the question put to the Court by the General Assembly is indeed a legal one, since the Court is asked to rule on the compatibility of the threat or use of nuclear weapons with the relevant principles and rules of international law. To do this, the Court must identify the existing principles and rules, interpret them and apply them to the threat or use of nuclear weapons, thus offering a reply to the question posed based on law. The fact that this question also has political aspects, as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a "legal question" and to "deprive the Court of a competence expressly conferred on it by its Statute".
- UN General Assembly, even if non-binding, may be used as evidence of state practice and opinio juris. It has probative value
- In CAB, no opinio juris. The non-use of nuclear weapon was susceptible to 2 explanations: it may said that the states don’t like nuclear weapons; however, nuclear states may say that there’s no need for them to use it because itr’s an effective deterrent to armed conflicts
- Marten’s clause: In default of specific treaty or legal basis, “mankind continue to be under the protection of public international law, public conscience and laws of humanity.”
International Law.”
Paquete Habana Case.
Quick Facts: Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in fishing on the coast of Cuba; sailed under the
Spanish flag; was owned by a Spanish subject of Cuban birth, living in the city of Havana; was commanded by a subject of Spain, also residing in Havana; and her master and crew had no interest in the vessel, but were entitled to shares, amounting in all to two thirds, of her catch, the other third belonging to her owner. Her cargo consisted of fresh fish, caught by her crew from the sea, put on board as they were caught, and kept and sold alive. Until stopped by the blockading squadron she had no knowledge of the existence of the war or of any blockade. She had no arms or ammunition on board, and made no attempt to run the blockade after she knew of its existence, nor any resistance at the time of the capture.
The Court held that the capture of the fishing vessel was unlawful and without probable cause, on the ground that, as a rule of international law, fishing vessels are exempt from capture as a prize of war. The Court ordered that the decree of the District Court be reversed, and the proceeds of the sale of the vessel, together with the proceeds of any sale of her cargo, be restored to the claimant, with damages and costs.
Ancient usage ripened to rule of international law. By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into
a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. The Court discussed the history of the custom exempting coastal fishers from capture beginning with King Henry IV’s orders to his admirals in 1403 to the relevant practices of France, Holland, Prussia, and the US. The Court also noted cases in the past in different jurisdictions which decided the issue in the same light. Also, the Court noted, legal writings and treatieses of legal experts and luminaries which provide for the exemption of fishing/commercial vessels.
- The treaties which established the exemption of fishing vessels, though bilateral, became source of customary norm because, during the period they were signed, there were only very few countries. Also, the signatories being maritime nations, can be considered as specially affected states. The technique used by the court to establish the norm is through customary law and subsidiary means as evidence of the norm.
- International humanitarian law is jus cogens
- Exempting of fishing vessels was founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent states which rely on the livelihood of fishing
Preah Vihear Temple Case. The Court held that the Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia and, in
consequence, that Thailand was under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory. It also found that Thailand was under an obligation to restore to Cambodia any sculptures, stelae, fragments of monuments, sandstone model and ancient pottery which might, since the date of the occupation of the Temple by Thailand in 1954, have been removed from the Temple or the Temple area by the Thai authorities.
Application of doctrines (general principles of law) of estoppel & acquiesence. The map was never formally approved by the Mixed Commission, which
had ceased to function some months before its production. While there could be no reasonable doubt that it was based on the work of the surveying officers in the Dangrek sector, the Court nevertheless concluded that, in its inception, it had no binding character. It was clear from the record, however, that the maps were communicated to the Siamese Government as purporting to represent the outcome of the work of delimitation; since there was no reaction on the part of the Siamese authorities, either then or for many years, they must be held to have acquiesced.
Portugal v. India (Case Concerning Right of Passage over Indian Territory).
Existence of local custom between two states. The Court says 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 necessarily be larger than two. There is 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.
The dispute arises at the time of the creation of the obstacles. The question was put to the Court in respect of the dispute, which has arisen between
India and Portugal with regard to obstacles placed by India in the way of passage. It was in support of this contention that it invoked its right of passage and asked the Court to declare the existence of that right. This being so, it is the eve of the creation of these obstacles that must be selected as the starting point which to ascertain whether or not Portugal possessed such a right.
Right of passage. With regard to private persons, civil officials and goods in general, there existed during the British and post-British, periods a
constant and uniform practice allowing free passage between Daman and the enclaves. This practice having continued over a period extending beyond a century and a quarter unaffected by the change of regime in respect of the intervening territory which occurred when India became independent. Practice was accepted as law by the Parties and has given rise to a right and a correlative obligation.
In 1954, a right of passage over intervening Indian territory between coastal Daman and the enclaves and between the enclaves, in respect of private persons, civil officials and goods in general, to the extent necessary, as claimed by Portugal, for the exercise of its sovereignty over the enclaves, and subject to the regulation and control of India.
There was a clear distinction between the practice permitting free passage of private persons, civil officials and goods in general, and the practice requiring previous authorization, as in the case of armed forces, armed police, and arms and ammunition. There was no right of passage in favour of Portugal involving a correlative obligation on India has been established in respect of armed forces, armed police, and arms and ammunition. The course of dealings established between the Portuguese and the British authorities with respect to the passage of these categories excludes the existence of any such right. The practice that was established shows that, with regard to these categories, it was well understood that passage could take place only by permission of the British authorities. This situation continued during the post-British period.
No breach of international obligation when custom was subject to regulation of the other party. In view of the tension then prevailing in intervening
Indian territory, the Court is unable to hold that India’s refusal of passage to the proposed delegation and its refusal of visas to Portuguese nationals of European origin and to native Indian Portuguese in the employ of the Portuguese Government was action contrary to its obligation resulting from Portugal’s right of passage. Portugal’s claim of a right of passage is subject to full recognition and exercise of Indian sovereignty over the intervening territory and without any immunity in favour of Portugal. India’s refusal of passage in those cases was, in the circumstances, covered by its power of regulation and control of the right of passage of Portugal.
Corfu Channel Case. Allowance for admission of circumstantial evidence, a general principle of law. The exclusive control exercised by a State within its
frontiers may make it impossible to furnish direct proof of facts which would involve its responsibility in case of a violation of international law. The State which is the victim must, in that ease, be allowed a more liberal recourse to inferences of fact and circumstantial evidence; such indirect evidence must be regarded as of especial weight when based on a series of facts, linked together and leading logically to a single conclusion.
International Law.”
Chorzow Factory Case.
State’s espousal of claims on behalf of its nationals. International law does not prevent one State from granting to another the right to have recourse
to international arbitral tribunals in order to obtain the direct award to nationals of the latter State of compensation for damage suffered by them as a result of infractions of international law by the first State.
Reparation = indemnity for damages caused. It is a principle of international law that the reparation of a wrong may consist in an indemnity
corresponding to the damage which the nationals of the injured State have suffered as a result of the act which is contrary to international law. In estimating the damage caused by an unlawful act, only the value of property, rights and interests which have been affected and the owner of
which is the person on whose behalf compensation is claimed, or the damage done to whom is to serve as a means of gauging the reparation claimed, must be taken into account. The damage suffered is equivalent to the total value - but to that total only - of the property, rights and interests of this Company in that undertaking, without deducting liabilities.
The reparation due by one State to another does not however change its character by reason of the fact that it takes the form of an indemnity for the calculation of which the damage suffered by a private person is taken as the measure. The rules of law governing the reparation are the rules of international law in force between the two States concerned, and not the law governing relations between the State which has committed a wrongful act and the individual who has suffered damage. The damage suffered by an individual is never therefore identical in kind with that which will be suffered by a State; it can only afford a convenient scale for the calculation of the reparation due to the State.
Reparation, defined. The essential principle contained in the actual notion of an illegal act - a principle which seems to be established by
international practice and in particular by the decisions of arbitral tribunals - is that reparation must, as far as possible, wipe-out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.
When restitution not possible, then reparation. Restitution in kind, or if this is not possible, payment of a sum corresponding to the value which a
restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it - such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. - What is the general principle of law in the case? Reparation for the taking of property requires compensation. Reparation is due when there is a
breach of an obligation. When an expropriation is legal, the amount of the reparation is the logistical value of the property taken at the time of the expropriation. However, when there is an unlawful taking, the amount of reparation includes the intangible assets (loss of profits)
Barcelona Traction Company Case.
General Rule: State of the company can seek redress. International law had to refer to those rules generally accepted by municipal legal systems. An
injury to the shareholder's interests resulting from an injury to the rights of the company was insufficient to found a claim. Where it was a question of an unlawful act committed against a company representing foreign capital, the general rule of international law authorized the national State of the company alone to exercise diplomatic protection for the purpose of seeking redress. No rule of international law expressly conferred such a right on the shareholder's national State.
Exceptional circumstances. The Court considered whether there might not be, in the present case, special circumstances for which the general rule
might not take effect. Two situations needed to be studied: (a) the case of the company having ceased to exist, and (b) the case of the protecting State of the company lacking capacity to take action.
- That a corporation has a juridical personality distinct from its shareholders is a general principle of law.
- Where one of the parties involved is a municipal entity, such as a corporation, reference may be made to relevant principles of municipal law.
Texaco v. Libya.
Legal value of resolutions to be determined on the basis of the circumstances under which they were adopted & analysis of the principles they state. The
legal value of the resolutions which are relevant to the present case can be determined on the basis of circumstances under which they were adopted (ex. voting pattern) and by analysis of the principles which they state.
Resolutions in order to be binding must be accepted by the members escpecially those specially affected. With respect to the first point, the absence of
any binding force of the resolutions of the General Assembly of the United Nations implies that such resolutions must be accepted by the members of the United Nations in order to be legally binding. In this respect, the Tribunal notes that only Resolution 1803 (XVII) of 14 December 1962 was supported by a majority of Member States representing all of the various groups. By contrast, the other Resolutions mentioned, and in particular those referred to in the Libyan Memorandum, were supported by a majority of States but not by any of the developed countries with market economies which carry on the largest part of international trade.
- In determining the binding nature of GA resolutions, the court looked into the voting patters of the participant states. It is generally recommendatory but may serve as an indicia of norm
- Doctrine of specially affected states
BP v. Libya.
Applicable law in the case. Clause 28 of the concession agreement provides that should dispute arise, the applicable law shall be the principles of the
law of Libya common to the principles of international law, and only if such common principles do not exist with respect to a particular matter, will resort be made to general principles of law. In the event that international law and Libyan law conflict on the issue, general principles of law should apply to resolve the question. || The governing system of law is what the clause expressly provides, that in the absence of principles common to the Libyan and International law, general principles of law, including those that may have been applied by international tribunals, should apply
Restitutio in integrum not applicable again. As to restitutio in integrum, while it has been claimed, especially in the form of physical restoration, no
tribunal has ever prescribed the remedy with regard to such property or parties as in these proceedings. The concept has rather been employed at times as a principle for assessing the amount of damages due for breach of an international obligation.
The impossibility of restitution and specific performance. The claim would not even be realistic; such an action, which has the effect of turning back
the clock would upset the current situation too profoundly and would have unforeseeable practical consequences. Furthermore, if awarded now and the contract would still be allowed to exist indefinitely, the amount would be so great it would be absurd.
A rule of reason therefore dictates a result which conforms to international law, evidenced by state practice and the law of treaties, and to governing principles of English and American contract law. The conclusion is thus: when by exercise of sovereign power a State committed a
fundamental breach of a concession agreement by repudiating it through a nationalization of the enterprise and its assets in a manner which implies finality, the concessionaire is not entitled to call for specific performance by the Government of the agreement and reinstatement of his contractual rights, but his sole remedy is an action for damages.
International Law.”
- Take note, this is the only decision that the restituto in integrum is impossible. Although as a matter of law, it is possible, but in this case, it is impractical to order specific performance necause cannot compel a state because there is no coercive apparatus in international law.
- General principles of law: The General principles of a contract such as autonomy, mutuality, consensuality and obligatory are observed. An obligation must be performed. The law between the parties must be complied with in good faith.
- Here, it was not the LEGAL IMPOSSIBILITY but IMPRACTICABILITY that restitution cannot be ordered.
Saudi Arabia v. ARAMCO.
Prosecutor v. Tadic. The ICTY found the armed conflict was of an international nature where a party (Bosnian Serbs) to a non-international conflict was
under overall control—rather than the effective control standard established by the ICJ in Nicaragua v. United States (1986)—of an outside state (FRY). To determine whether Bosnian Serbs were “protected persons” under IHL, the Tribunal used the dual factors of “allegiance to” and “effective protection,” rather than the traditional approach of simply looking at nationality. Also, the Tribunal applied the “common purpose” doctrine to crimes against humanity, where the risk of death was a predictable consequence of the common plan of a group. Finally, the Tribunal rejected the notion that crimes against humanity required a discriminatory intent when they were committed in the context of widespread or systematic crimes.9
III. Actors in International Law
Magallona annotations:
What is a subject of international law?
A subject of international law is an entity with capacity possessing international rights and duties and of bringing international claims An international person or one having an international personality on the basis of either customary or conventional international law
General or objective international personality v. particular or special international personality former: rights and oblig are conferred by general IL and such is binding erga omnes; latter: personality binds only those which give consent
Reparation for injuries Case: “50 States, representing the vast majority of the members of the international community, had the power, in
conformity with international law, to bring into being an entity possessing objective international personality and not merely personality recognized by them alone, together with capacity to vring international claims
How is the State regarded as a subject of international law?
Scwarzenberger: State has the capacity to be bearer of rights and duties under IL. This status is conferred by customary or general IL
Possesses objective or erga omnes personality, note merely by virtue of recognition on the part of particular states Primacy of States as subjects of IL, explained
Wolfgang Friedmann: basic reason: the world today is organized on the basis of co-existence of States, and that fundamental changes will take place only through State action, whether affirmative or negative.
States are the repositories of legitimated authority over peoples and territories Are international organizations subjects of IL?
YES, IF their legal personality is established by their Charter. Brownlie: criteria of legal personality
(1) A permanent association of states, with lawful objects, equipped with organs;
(2) A distinction, in terms of legal powers and purposes, between the organization and its member-states;
(3) The existence of legal powers exercisable on the international plane and not solely within the national system of one or more states May individuals become subjects of IL? Examples?
YES, but on the basis of agreement by states and in specific context, not in accordance with general or customary IL
Art 187(c), (d), (e) of UNCLOS jurisdiction of the Sea-Bed Disputes Chamber of the ITLOS extends to disputes between parties to contracts (natural or juridical persons) relating to the exploitation of the Area
Nuremberg Trials: in crimes against peace, war crimes and crimes against humanity, IL imposes duties and liabilities upon individuals as well as upon states. crimes against IL are committed by men, not by abstract entities and only by punishing individuals who commit such crimes can the provisions of IL be enforced
Montevideo Convention on Rights and duties of States, Art. 1. The state as a person of international law should possess the following qualifications:
a. A permanent population; b. A defined territory; c. Government; and
d. Capacity to enter into relations with the other states
UN Charter, 4.
1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.
2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.
UN Charter, 32. Any Member of the United Nations which is not a member of the Security Council or any state which is not a Member of the United
Nations, if it is a party to a dispute under consideration by the Security Council, shall be invited to participate, without vote, in the discussion relating to the dispute. The Security Council shall lay down such conditions as it deems just for the participation, of a state which is not a Member of the United Nations.
UN Charter, 35(2). A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly
any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter.
UN Charter, 93(2). A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on
conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.
ICJ Statute, 34.
