2.
4 General principles as a source of law
DIVERSION OF WATER FROM THE MEUSE,
INDIVIDUAL OPINION BY MR. HUDSON
FACTS
● In 1863, Belgium and the Netherlands
signed a Treaty governing diversions
from the Meuse River that would
supply water for navigation and
irrigation canals.
● As economic conditions evolved, both
States enlarged and expanded their
respective waterways by constructing
new canals, locks, and barrages.
● The Netherlands proceeded to
construct and complete the Juliana
Canal, the Bosscheveld Lock and the
Borgharen barrage.
● On its part, Belgium began the
construction of the Albert Canal,
unfinished at the time of the judgment,
a barrage at Monsin and a lock at
Neerhaeren.
● In 1937, the Netherlands initiated this
injunctive proceeding, alleging that
Belgium’s expansion projects were in
violation of the treaty.
● Belgium filed counterclaims declaring
that the Netherland's claims were
ill-founded and that the expansion
projects in the Netherlands violated the
treaty.
RULING
● The Permanent Court of International
Justice concluded that the Treaty did
not prevent either State from taking
the actions complained of.
● Each of the two States is at liberty in
its own territory to modify such canals,
to enlarge them, to transform them, to
fill them in and even to increase the
volume of water in them, provided that
the diversion of water at the feeder
mentioned in the Treaty and the
volume of water to be discharged is
not affected.
● The Court rejects both the Netherlands'
submissions and the submissions
contained in the Belgian counter-claim.
INDIVIDUAL OPINION BY MR. HUDSON
● While he concurs in the judgment of
the Court, Mr. Hudscorfuon considers
that there is room to apply here the
principle of equity.
● He argued that: "A sharp division
between law and equity, such as
prevails in the administration of justice
in some States, should find no place in
international jurisprudence.”
● The question here is of a general
principle of law recognized by civilized
nations in the sense of Article 38 of the
Statute, and the Court's recognition of
equity as part of international law is in
no way restricted by the special power
conferred on it to decide a case ​ex
aequo et bono (“from equity and
conscience”)​ if the Parties so agree.
● He discussed that it would be
considered as an important principle of
equity where two parties have
assumed an identical or a reciprocal
obligation; one party which is engaged
in a continuing non-performance of
that obligation should not be permitted
to take advantage of a similar
non-performance of that obligation by
the other party.
● A tribunal, bound by international law,
ought not to shrink from applying a
principle of such obvious fairness.
● In equity, the Netherlands cannot ask
Belgium to discontinue the operation of
the Neerhaeren Lock (in Belgian
territory) when the Netherlands remain
free to continue the operation of the
Bosscheveld Lock (in Netherlands’
territory).
● Neither of these two requests should
be granted where the circumstances
are such that the judgment would
disturb that equality which is equity.
● If it preserves the equality between the
Parties, the judgment may better serve
 to facilitate their negotiations on the
conclusion of a new treaty to replace
that of 1863.
PRINCIPLES
1. General Principles as a source of
law
- What are widely known as principles of
equity have long been considered as a
“general principle of international law”,
and as such they have often been
applied by international tribunals.
- Article 38 of the Statute expressly
directs the application of "general
principles of law recognized by civilized
nations", and in more than one nation
principles of equity have an established
place in the legal system.
- A sharp division between law and
equity in the administration of justice
in some States, should find no place in
international jurisprudence ; even in
some national legal systems, there has
been a strong tendency towards the
fusion of law and equity.
- Some international tribunals are
expressly directed by the compromis
which control them to apply "law and
equity".
- Of such a provision, a special tribunal
of the Permanent Court of Arbitration
said in 1922 that "the majority of
international lawyers seem to agree
that these words are to be understood
to mean general principles of justice as
distinguished from any particular
systems of jurisprudence".
- make
2. EQUITY v. “ex cequo et bon​o​”
- The Court has not been expressly
authorized by its Statute to apply
equity as distinguished from law.
- Nor, indeed, does the Statute
expressly direct its application of
international law, though as has been
said on several occasions the Court is
"a tribunal of international law".
- The Court's recognition of equity as a
part of international law is in no way
restricted by the special power
conferred upon it "to decide a case ex
cequo et bono (from equity and
conscience), if the parties agree
thereto".
- It must be concluded, therefore, that
under Article 38 of the Statute, if not
independently of that Article, the Court
has some freedom to consider
principles of equity as part of the
international law which it must apply.
- One result of applying the principle of
equity will be that even if the Court
should be of the opinion that the
Belgian action with regard to the
functioning of the Neerhaeren Lock is
contrary to the Treaty of 1863, it
should nevertheless refuse in this case
to order Belgium to discontinue that
action.
- In equity, the Netherlands is not in a
position to have such relief decreed to
her. Belgium cannot be ordered to
discontinue the operation of the
Neerhaeren Lock when the Netherlands
is left free to continue the operation of
the Bosscheveld Lock.
- The general principle is a sound one
that reparation is "the corollary of the
violation of the obligations resulting
from an engagement between States";
and "it is a principle of international
law, and even a general conception of
law, that any breach of an engagement
involves an obligation to make
reparation".
- Yet, in a particular case in which it is
asked to enforce the obligation to
reparation, a court of
international law cannot ignore special
circumstances which may call for the
consideration of equitable principles.
NUCLEAR TESTS CASE
NEW ZEALAND V. FRANCE
FACTS:
● The ambassador of New Zealand to the
Netherlands transmitted to the
Registrar an Application instituting
proceedings against France, in respect
of a dispute concerning the legality
of atmospheric nuclear tests
conducted by the French
Government in the South Pacific
region.
● New Zealand informed the Court that
subsequent to the Court's Order of 22
June 1973 indicating, as interim
measures under Article 41 of the
Statute, (inter alia) that ​the French
Government should avoid nuclear
tests causing the deposit of
radio-active fall-out on New
Zealand territory​, two further series
of atmospheric tests, in the months of
July and August 1973 and June to
September 1974, had been carried out
at the Centre d'expérimentations du
Pacifique.
● The letters also stated that fall-out had
been recorded on New Zealand
territory, analysis of samples of which,
according to the New Zealand
Government, established conclusively
the presence of fall-out from these
tests, and that it was "the view of the
New Zealand Government that there
has been a clear breach by the French
Government of the Court's Order of 22
June 1973".
● France has maintained, in particular,
that the radio-active matter produced
by its tests has been so infinitesimal
that it may be regarded as negligible
and that any fall-out on New Zealand
territory has never involved any
danger to the health of the population
of New Zealand.
● Recently before this decision was
handed down, a number of
authoritative statements have been
made on behalf of the French
Government concerning its intentions
as to future nuclear testing in the
South Pacific region.
ISSUE: ​WON there is still a dispute that needs
to be settled by the court.
RULING:
● The Court it has first to examine the
existence of a dispute, for whether or
not the Court has jurisdiction on the
present case
● In these circumstances, the Court is
bound to take note of further
developments, both prior to and
subsequent to the close of the oral
proceedings, namely certain public
statements by French authorities.
● (1) The first of these statements which
was issued by the Office of the
President of the French Republic on 8
June 1974 and transmitted in particular
to the Applicant: ". . . in view of ,the
stage reached in carrying out the
French nuclear defence programme
France will be in a position to pass
on to the stage of underground
explosions as soon as the series of
tests planned for this summer is
completed​".
● (2) Further statements are contained
in a Note from the French Embassy in
Wellington (10 June), a letter from the
President of France to the Prime
Minister of New Zealand (1 July), a
press conference given by the
President of the Republic (25 July), a
speech made by the Minister for
Foreign Affairs in the United Nations
General Assembly (25 September) and
a television interview and press
conference by the Minister for Defence
(16 August and I 1 October).
● The Court considers that ​these
statements convey an
announcement by France of its
intention to cease the conduct of
atmospheric nuclear tests following
the conclusion of the 1974 series.
● One of the basic principles
governing the creation and
performance of legal obligations,
whatever their source, is the
principle of good faith. Trust and
 confidence are inherent in international
CO-operation, in particular in an age
when this CO-operation in many fields
is becoming increasingly essential.
● Just as the very rule of pacta sunt
servanda in the law of treaties is
based on good faith, so also is the
binding character of an
international obligation assumed
by unilateral declaration.
● It is well recognized that declarations
made by way of unilateral acts,
concerning legal or factual situations,
may have the effect of creating legal
obligations.
● Nothing in the nature of a quid pro
quo, nor any subsequent acceptance,
nor even any reaction from other
States is required for such declaration
to take effect. Neither is the question
of form decisive.
● The intention of being bound is to be
ascertained by an interpretation of the
act. The binding character of the
undertaking results from the terms of
the act and is based on good faith;
interested States are entitled to require
that the obligation be respected.
● 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.
● Thus the Court faces a situation in
which the objective of the Applicant
has in effect been accomplished,
inasmuch as the Court finds that
France has undertaken the obligation
to hold no further nuclear tests in the
atmosphere in the South Pacific.
● The Applicant has sought an assurance
from France that the tests would cease
and France, on its own initiative, has
made a series of statements to the
effect that they will cease.
● As a court of law, it is called upon to
resolve existing disputes between
States: these disputes must continue
to exist at the time when the Court
makes its decision.
● In the present case, the dispute having
disappeared, the claim no longer has
any object and there is nothing on
which to give judgment.
● Once the Court has found that a State
has entered into a commitment
concerning its future conduct, it is not
the Court's function to contemplate
that it will not comply with it.
PRINCIPLES :
● Principle of good faith
● Pacta sunt servanda
CORFU CHANNEL
UK V. ALBANIA
Take note of the terminologies
● Strait = Channel (they all refer to the
Corfu Channel)
● AG = Albanian Government
● BG = British Government / UK
FACTS
May 15, 1946 – an Albanian battery fired in the
direction of 2 British cruisers that were navigating
through Corfu Channel. Although the warships did not
suffer any damage, the British Government (BG)
protested, stating that ​innocent passage through
straits, without the need to make any
announcement or to await permission​, ​is a right
recognized by international law (IL). The Albanian
Government (AG) replied that foreign warships and
merchant vessels had no right to pass through
Albanian territorial waters without prior authorization.
The BG then advised AG that if, in the future, fire was
opened on a British warship passing through the
Channel, the fire would be returned.
Oct. 22, 1946 – 4 British warships entered the North
Corfu Strait. Two British destroyers struck mines and
were heavily damaged, causing deaths and injuries
among the naval personnel. Consequently, British
minesweepers swept the North Corfu Channel, after
having announce the operation in advance. The AG
denied its consent.
April 9, 1947 – By a resolution of the Security Council
of the UN recommended that the 2 governments
submit their dispute to the ICJ. The UK unilaterally
instituted proceedings against Albania by filing an
application with the ICJ.
July 2, 1947 – Albania protested against the
unilateral British application, expressing the opinion
that the application was not in conformity with the
Court’s Stature and that the parties should have come
to an understanding regarding the submission of their
dispute to the court. Notwithstanding the application
to the Court by the BG, Albania declared that it was
prepared to appear before the Court on the
understanding that its acceptance of the Court’s
jurisdiction could not constitute a precedent for the
future.
March 25, 1948 – Albania and UK concluded a
Special Agreement for the purpose of submitting two
questions to the ICJ.
[Brief Arguments of the Parties] ​you dont have to
include this during the recit; the facts mentioned
above are sufficient. I just Included this here just so
you could contextualize the stand of each parties.
LOST: Albania ​argued that foreign warships and
merchant vessels had not right to pass ​through
Albanian territorial waters, without prior notification to,
and the permission of, the Albanian authorities. It
further contended that the sovereignty of Albania was
violated because the passage of the British warships
on Oct 22, 1946 was not innocent. The AG also
alleged that the said passage was a political mission
and the methods employed - number of ships,
formation, armament, manoeuvres etc., - showed an
intention to intimidate and not merely to carry out a
passage for the purpose of navigation.
WON: UK​, however claimed that innocent passage
through straits was a right recognized under
international law. It argued that the minesweeping
operation of Nov. 13, 1946 was justified by a right of
self-help or self-protection.
ISSUES
1) WON Albania was responsible under IL for
the explosions the occurred on Oct 22, 1946
in Albanian waters, for the resulting
damage and loss of human life and for
payment of any compensation? ​YES
2) WON the UK had violated the sovereignty of
Albania under IL by reason of the acts of
the Royal Navy in Albanian waters on
October 22 1946 and if there was any duty
to give satisfaction? ​NO
REASONING OF THE COURT
1) 1) The Court found that the factual evidence
presented made it improbable that the
Albanian authorities had been unaware of the
mine laying in Albanian waters. The court
further stated that the presumed knowledge of
the AG entailed its obligation to notify “for the
benefit of shipping in general, the existence of
a minefield in Albanian territorial waters and in
warning the approaching British warships of
the imminent danger to which the minified
exposed them.” ​Such obligations “were
based on certain general and
well-recognized principles, namely:
elementary considerations of humanity​,
even more exacting in peace than in war;
the principle of the freedom of maritime
communication​; and ​every State’s
obligation not to allow knowingly its
territory to be used for acts contrary to the
rights of other States​.”
2) It is ​generally recognized and in accordance
with international custom that States in
time of peace have a right to send their
warships through straits used for
international navigation between two parts
of the high seas without the previous
authorization of a coastal State​, ​provided
that the passage is innocent​. ​Unless
otherwise prescribed in an international
convention, there is no right for a coastal State
to prohibit such passage through straits in
times of peace.
It may be asked ​whether the Corfu channel is
considered an international highway, if so,
what is the volume of traffic passing through​. It
is the opinion of the court that the decisive
criterion is its ​geographical situation as
c​onnecting two parts of the high seas and
that fact of its being used for international
navigation​. While it is not decisive that this
Strait is a necessary route between two parts
of the high seas, and only an alternative
passage between Aegan and Adraiatic Seas,
still, it has been a useful route for international
maritime traffic. WIth this, the Agent of the UK
provided the total number of ships passing
through the Channel; and ​for the period of 1
year and 9 months, there are 2, 884 ships
that passed through the channel. The flags
of ships are: Greek, Italian, Romanian,
Tugoslav, French, Albanian and British.
Further, the British Navy has regularly used
this Channel for 80 years or more, and that it
has also been used by the navies of other
States. Essentially, the court ruled that 2, 884
ships for a period of 1 year and 9 months is
quite a large figure,
Hence, the North Corfu Channel should be
considered as belonging to the class of
international highways through which
passage cannot be prohibited by a coastal
State in time of peace.
Further, the Court found that the factual
evidence presented made it improbable that
the Albanian authorities had been unaware of
the mine laying in Albanian waters. ​The court
further stated that the presumed knowledge
of the AG entailed its obligation to notify
“for the benefit of shipping in general, the
existence of a minefield in Albanian
territorial waters and in warning the
approaching British warships of the
imminent danger to which the minified
exposed them.” Such obligations “​were
based on certain general and
well-recognized principles​, namely:
elementary considerations of humanity​,
even more exacting in peace than in war; the
principle of the freedom of maritime
communication​; and ​every State’s
obligation not to allow knowingly its
territory to be used for acts contrary to the
rights of other States​.”
The court is of the opinion that Albania, in view
of exceptional circumstances, would have been
justified in issuing regulations in respect of the
passage of warships through the Strait, ​but
not in prohibiting such passage, or in
subjecting it to the requirement of special
authorization.
FOR FAST READ!! ​[ ​Summary of the ruling​: The
court held that the ​UK had not violated Albanian
sovereignty by sending warships through the strait
without prior authorization of the AG. In this
connection, the court made an important
pronouncement on the question of ​innocent passage
through straits, stating that it is “​generally
recognized, and in accordance with international
custom that States in time of peace have a right to
send their warships through straits used for
international navigation between two parts of the
high seas without the previous authorization of a
coastal State, provided that the passage is
innocent.​” The court held that the Corfu Channel
was such a strait and that the passage of the British
warship on October 22 1946 was innocent. As for the
contentions of the AG with respect to measures taken
by the UK during the passage, the court was unable
to characterized those measures as a violation of
Albania’s sovereignty. ​]
2.5 Judicial decisions
2.5.1 Article 59 of the ICJ Statute
2.5.2 Equity v. “ex aequo et bono”
THE RIVER MEUSE CASE
(NETHERLANDS V. BELGIUM)
(PLEASE REFER TO THE DIVERSION CASE)
2.7 Unilateral statements
LEGAL STATUS OF EASTERN GREENLAND
(DENMARK V. NORWAY)
FACTS
(WARNING: Sorry taas kaayo ang facts kay gichika
pa nila ang history since the beginning of time pag
BigBang Lol. hahaha)
FACTS:
INTRODUCTION ON THE DISPUTE
● A case concerning the legal status of certain
territories in Easter Greenland between Royal
Danish Government and the Royal Norwegian
Government (please refer to map below)
● Denmark instituted a case before the
Permanent Court of International Justice (now
ICJ) against Norway on the ground that the
Norway published a proclamation declaring
that it had proceeded to occupy certain
territories in Eastern Greenland which Denmark
alleged to be subject to the sovereignty of the
Crown of Denmark.
● Denmark thus prayed to the court to declare
that the promulgation of declaration of Norway
constitute a violation of the existing legal
situation and are therefore unlawful and
invalid.
● Norway on the other hand prayed that the
court declare Denmark to have no sovereignty
over Easter Greenland and that Norway has
acquired sovereignty over it.
● The Norwegian Proclamation which gave rise to
the present dispute stated that the territory
between Carlsberg Fjord on the South and
Bessel Fjord on the North in Eastern Greenland
is placed under Norwegian sovereignty. By
“Eastern Greenland” it meant the eastern coast
of Greenland. It must have been intended that
on the eastern side the sea and on the western
side the “Inland Ice” constitutes the limits of
area occupied under the Norwegian
Proclamation though the Proclamation itself is
silent on the matter.
● Thus Denmark criticized the validity of the
Proclamation because of the absence of any
western limit of the proclamation.
● It was about 900 A.D. that Greenland was
discovered
HISTORY OF THE COUNTRIES
● It was about 900 A.D. that Greenland was
discovered. The country was colonized a bout a
century later. The best known colonist was Eric
the Red who was an inhabitant of Iceland of
Norwegian origin.
● There were already 2 settlements appearing to
be an independent state but became tributary
to the Kingdom of Norway in the 13​th Century.
These settlements however disappeared before
1500.
● In 1380 until 1814, the kingdoms of Norway
and Denmark were united under the same
Crown. There is nothing to show that during
this period Greenland, in so far as it constituted
a dependency of the Crown should not be
regarded as a Norwegian possession.
● During the 17​th Century, Denmark had
monopoly over the trade activities in Greenland
which resulted to the establishment of
colonies, factories, or stations along the West
Cost. Efforts to reach the East Cost were not
successful.
● Norway contended that Greenland in general
mean the colonized part of the West Coast
while Denmark viewed Greenland as
encompassing the whole island of Greenland
● THESE FACTS ARE IMPORTANT IN THE PRESENT
DISPUTE:
■ In 1814​, steps were taken for the
dissolution of all matters arising out of the
union between Denmark and Norway.
■ In ​1819​, the dissolution was effected by a
Convention signed by Denmark on one
part and the United Kingdoms of Sweden
and Norway on the other part. ​This Peace
Treaty of Kiel was signed by Denmark
wherein the Kingdom of Norway, except
Greenland, the Faeroe Isle and Iceland
was seceded to Sweden.
■ During the 19​th Century, several Danish
expeditions explored portions of the
non-colonized part of Greenland. This
resulted to the whole East Coast being
explored by Danish expeditions.
■ In ​1905​, a Decree was issued by the
Danish Minister of Interior, fixing the
limits of the territorial waters of
 Greenland to be reserved for Danish
subjects
■ 1n ​1908, ​a law was promulgated by
Denmark relating to the administration of
Greenland and dividing the colonies on
the West Coast into 2.
■ During the Great War in ​1914 to 1918,
Denmark by treaty, ceded its West Indian
Island (Danish Antilles) to the United
States of America; USA also signed a
declaration that it would not object to the
Danish Government extending their
political and economic interests to the
whole of Greenland.
■ On July 12th, 1919, the Danish Minister
for Foreign Affairs instructed the Danish
Minister at Christiania that a Committee
had just been constituted at the Peace
Conference “for the purpose of
considering the claims that may be put
forward by different countries to
Spitzbergen”, and that the Danish
Government would be prepared to renew
before this Committee the unofficial
assurance already given to the Norwegian
Government, according to which
Denmark, having no special interests at
stake in Spitzbergen, would raise no
objection to Norway’s claims upon that
archipelago. In making this statement to
the Norwegian Minister for Foreign
Affairs, the Danish Minister was to point
out “that the Danish Government had
been anxious for some years past to
obtain the recognition by all the
interested Powers of Denmark’s
sovereignty over the whole of Greenland,
and that it intended to place that question
before the above-mentioned Committee”,
and, further, that the Danish Government
felt confident that the extension of its
political and economic interests to the
whole of Greenland “would not encounter
any difficulties on the part of the
Norwegian Government”.
■ The Danish Minister having accomplished
his mission on July 14th, 1919, the
Norwegian Minister for Foreign Affairs, M.
Ihlen, replied to him, on July 22nd
following, “that the Norwegian
Government would not make any
difficulties in the settlement of this
question” (i.e. the question raised on July
14​th by the Danish Government). This is
the ​“Ihlen Declaration” which is
considered below​. (Mao ni important
relating to the topic on unilateral
statements)
● The Danish Government was anxious that other
foreign countries would express interest over
Greenland and would question its claims over
it.
● Denmark approached London, Paris, Rome, and
Tokyo to obtain assurance that these countries
recognize Denmark’s Sovereignty over the
whole of Greenland.
● The Swedish and Norwegian Governments
were the only other governments interested.
The Swedish Government made no difficulty in
recognizing Denmark’s sovereignty.
● However, the Norwegian Government was not
prepared to adopt the same attitude unless it
received an undertaking from the Danish
Government that the liberty of hunting and
fishing on the East Coast which the Norwegians
had long enjoyed, should not be interfered
with.
● This undertaking the Danish Government was
not willing to give, on the ground that it would
have involved a reversal of the policy which
Denmark had since followed and that is to
shield the Eskimo people of Greenland on the
grounds of health from uncontrolled contact
with white races; such policy could not be
maintained unless control could be exercised
over those having access to the territory.
● The Danish side showed willingness to make
every effort to satisfy the desire of the
Norwegian to continue hunting and fishing on
the East Coast of Greenland but a
determination not to give way on the claim to
sovereignty.
● The Norwegian on the other hand, made it
clear that the Easter Coast of Greenland was a
terra nullius ​(land legally deemed to be
unoccupied or uninhabited) and that
Denmark’s political aspirations can only be met
if it meant no sacrifice of Norwegian economic
interests.
● Both countries negotiated to maintain its
friendly relations and draft agreements to this
negotiations. In these documents it is apparent
that Danish contention that Denmark
possessed full and entire sovereignty over the
whole of Greenland and that Norway had
recognized that sovereignty, and the
Norwegian contention that all the parts of
Greenland which had not been occupied in
 such a manner as to bring them effectively
under the administration of the Danish
Government were in the condition of terra
nullius, and that if they ceased to be terra
nullius they must pass under Norwegian
sovereignty.
● The Norwegian Government granted police
powers to certain Norwegian nationals to
inspect the hunting stations in Eastern
Greenland. This action made Denmark uneasy
and communicated to Norway that it cannot
accept Norway’s granting of police power to
Norwegian nationals in territories situated in
Greenland as it was subject to Danish
sovereignty. The Norwegian replied that in
accordance with their agreement, Eastern
Greenland constituted a terra nullius which
means that it was fully entitled to grant police
power to Norwegian nationals in this territory.
● Some Norwegian hunters hoisted the flag of
Norway in Easter Greenland. Norwegian
Government said that the occupation was an
entirely private act but it nevertheless felt
obliged to proceed in the proceedings of the
court over the occupation of the territories in
Eastern Greenland.
● The two countries agreed to submit the matter
to the PCIJ
DENMARK’S CONTENTION
● The Norwegian occupation was invalid. The
area occupied was at the time subject to Danish
sovereignty since Danish sovereignty existed
over all Greenland it could not be occupied by
another Power.
● Denmark’s sovereignty has existed for a long
time and has been continuously and peacefully
exercised and had not been contested by any
Power until now.
● Norway by a treaty recognized Danish
sovereignty over Greenland as a whole and
therefore cannot now dispute it.
NORWAY’S CONTENTION
● Denmark possess no sovereignty over the area
which Norway occupied since at the time of
occupation the area was a terra nullius.
● The area lay outside the limits of Danish
colonies in Greenland and that Danish
sovereignty extended no further than the limits
of these colonies.
RULING
RULING REGARDING TERRITORIAL SOVERIGNTY
● A claim to sovereignty based not upon some
particular act or title such as a treaty of cession
but merely upon continued display of authority,
involves two elements each of which must be
shown to exist : the intention and will to act as
sovereign, and some actual exercise or display
of such authority.
● Another circumstance which must be taken into
account by any tribunal which has to adjudicate
upon a claim to sovereignty over a particular
territory, is the extent to which the sovereignty
is also claimed by some other Power. In most of
the cases involving claims to territorial
sovereignty which have come before an
international tribunal, there have been two
competing claims to the sovereignty, and the
tribunal has had to decide ​which of the two
power is the stronger. One of the peculiar
features of the present case is that up to 1931
there was no claim by any Power other than
Denmark to the sovereignty over Greenland.
Indeed, up till 1921, no Power disputed the
Danish claim to sovereignty.
● The King of Denmark’s claim of sovereignty in
Greenland is merely pretentious after it had
lost contact with the country due to the
dispparance of the first 2 settlements.
However, such claim was not disputed. No
other Power was putting fonward any claim to
territorial sovereignty in Greenland, and in the
absence of any competing claim the King's
pretensions to be the sovereign of Greenland
subsisted.
● The founding of the colonies was accompanied
by the grant of a monopoly of trade and thus
legislation was found to be necessary to protect
and enforce the monopoly.
● Some ordinances on the prohibition of trading
was restricted to the colonies but it is clear that
it was to apply not only to the exisiting colonies
but to any future colonies that might be
established.. But other ordinances also
contained a prohibition of injurious treatment
to Greenlanders which was not limited to the
colonies but operated in Greenland as a whole
● Legislation is one of the most obvious forms of
the exercise of sovereign power, and it is clear
that the operation of these enactments was not
restricted to the limits of the colonies. ​It
therefore follows that the sovereign right in
virtue of which the enactments were issued
cannot have been restricted to the limits of the
colonies.
● It is the court’s opinion that Norway;s
contention that these legislation as well as the
treaties and conventions between the countries
reference to “Greenland” only meant the
colonized areas and not Greenland as a whole
or in a geographical sense is without merit. The
word Greenland as is meant in the map is to be
taken in its ordinary meaning and that is
Greenland as a whole.
● Taking into consideration the legislations
Denmark had enacted applicable to Greenland
in generally, the numerous treaties in which
Denmark, with the concurrence of the other
contracting Party, provided for the
non-application of the treaty to Greenland in
general, and the absence of al1 claim to
sovereignty over Greenland by any other
Power, Denmark must be regarded as having
displayed during this period of 1814 to 1915
her authority over the uncolonized part of the
country to a degree sufficient to confer a valid
title to the sovereignty.
RULING ON ILHEN DECLARATION
● The Ilhen declaration which is the reply given
by M. Ilhen, the Norwegian Minister for Foreign
Affairs must be considered.
● This declaration by M. Ihlen has been relied on
by Counsel for Denmark as a recognition of an
existing Danish sovereignty in Greenland. The
Court is unable to accept this point of view. A
careful examination of the words used and of
the circumstances in which they were used, as
well as of the subsequent developments, shows
that M. Ihlen cannot have meant to be giving
then and there a definitive recognition of
Danish sovereignty over Greenland, and shows
also that he cannot have been understood by
the Danish Government at the time as having
done so. However, it is considered that such
declaration was an agreement obliging Norway
to refrain from occupying any part of
Greenland.
● The Court considers it beyond all dispute that a
reply of this nature given by the Minister for
Foreign Affairs on behalf of his Government in
response to a request by the diplomatic
representative of a foreign Power, in regard to
a question falling within his province, is
binding upon the country to which the
Minister belongs.
PRINCIPLES
● Like treaties,binding unilateral
declarations can be issued by head of
state, heads of government and
minister for foreign affairs
● A unilateral statement is however only
binding if it is stated in clear and
specific terms
ARMED ACTIVITIES ON THE TERRITORY
OF THE CONGO (DEMOCRATIC REPUBLIC
OF THE CONGO V. RWANDA)
FACTS
● On 28 May 2002 the Government of
the Democratic Republic of the Congo
(DRC) filed in the Registry of the Court
an Application instituting proceedings
against the Republic of Rwanda in
respect of a dispute concerning
“massive, serious and flagrant
violations of human rights and of
international humanitarian law” alleged
to have been committed “in breach of
the ‘International Bill of Human Rights’,
other relevant international
instruments and mandatory resolutions
of the United Nations Security Council”.
● In the Application the DRC stated that
“[the] flagrant and serious violations
[of human rights and of international
humanitarian law]” of which it
complained “result from acts of armed
aggression perpetrated by Rwanda on
the territory of the Democratic
Republic of the Congo in flagrant
breach of the sovereignty and
territorial integrity of [the latter], as
guaranteed by the Charters of the
United Nations and the Organization of
African Unity”.
● In order to establish the jurisdiction of
the Court, the DRC further contended
in its Application that Article 66 of the
Vienna Convention on the Law of
Treaties of 23 May 1969 established
the jurisdiction of the Court to settle
disputes arising from the violation of
peremptory norms (jus cogens) in the
area of human rights, as those norms
 were reflected in a number of
international instruments.
● The Rwandan government in its
preliminary objection ruled that the
Court should declare that it lacks
jurisdiction over the claims brought
against the Republic of Rwanda by the
Democratic Republic of the Congo.
● The Court examined 11 bases of
jurisdiction put forward by DRC.
RULING
● In its Judgment of 3 February 2006,
the Court ruled that it did not have
jurisdiction to entertain the Application
filed by the DRC. It found that the
international instruments invoked by
the DRC could not be relied on, either
because Rwanda:
○ (1) was not a party to them (as
in the case of the Convention
against Torture and Other
Cruel, Inhuman or Degrading
Treatment or Punishment) or
(2) had made reservations to
them (as in the case of the
Convention on the Prevention
and Punishment of the Crime
of Genocide and the
Convention on the Elimination
of All Forms of Racial
Discrimination), or because
○ (3) other preconditions for the
seisin of the Court had not
been satisfied (as in the case
of the Convention on the
Elimination of All Forms of
Discrimination against Women,
the Constitution of the WHO,
the Constitution of UNESCO
and the Montreal Convention
for the Suppression of Unlawful
Acts against the Safety of Civil
Aviation).
● Since the Court had no jurisdiction to
entertain the Application, it was not
required to rule on its admissibility.
● Mindful that the subject-matter of the
dispute was very similar in nature to
that in the case between the Congo
and Uganda, and that the reasons as
to why the Court would not proceed to
an examination of the merits in the
case between Congo and Rwanda
needed to be carefully explained, the
Court stated that it was precluded by a
number of provisions in its Statute
from taking any position on the merits
of the claims made by the DRC.
● It recalled, however, “that there is a
fundamental distinction between the
acceptance by States of the Court’s
jurisdiction and the conformity of their
acts with international law”.
● Thus, “[w]hether or not States have
accepted the jurisdiction of the Court,
they are required to fulfil their
obligations under the United Nations
Charter and the other rules of
international law, including
international humanitarian and human
rights law, and they remain responsible
for acts attributable to them which are
contrary to international law”.
PRINCIPLES
● Case law from both the PCIJ and the
ICJ show that unilateral statements
made by state representatives can
create obligations under international
law.
● Like treaties, binding unilateral
declarations can be issued by heads of
state, heads of government and
ministers of foreign affairs.
● In its discussion on Article IX of the
Genocide Convention, the Court
discussed on the legal effect of the
statement made on 17 March 2005 by
Ms. Mukabagwiza, Minister of Justice of
Rwanda.
● The Court begins by examining
Rwanda’s argument that it cannot be
legally bound by the statement in
question inasmuch as a statement
 made not by a Foreign Minister or a
Head of Government “with automatic
authority to bind the State in matters
of international relations, but by a
Minister of Justice, cannot bind the
State to lift a particular reservation”.
● In this connection, the Court observes
that, in accordance with its consistent
jurisprudence, ​it is a well-established
rule of international law that the Head
of State, the Head of Government and
the Minister for Foreign Affairs are
deemed to represent the State merely
by virtue of exercising their functions,
including for the performance, on
behalf of the said State, of unilateral
acts having the force of international
commitments.
● The Court notes, however, that with
increasing frequency in modern
international relations other persons
representing a State in specific fields
may be authorized by that State to
bind it by their statements in respect of
matters falling within their purview.
● This may be true, for example, of
holders of technical ministerial
portfolios exercising powers in their
field of competence in the area of
foreign relations, and even of certain
officials.
● The Court observes that in her
statement the Minister of Justice of
Rwanda did not refer explicitly to the
reservation made by Rwanda to Article
IX of the Genocide Convention.
● The statement merely raises in general
terms the question of Rwandan
reservations and simply indicates that
“past reservations not yet withdrawn
will shortly be withdrawn”, without
setting out any precise time-frame for
such withdrawals.
● It follows that the statement was not
made in sufficiently specific terms in
relation to the particular question of
the withdrawal of reservations.
● Given the general nature of its
wording, the statement cannot
therefore be considered as
confirmation by Rwanda of a previous
decision to withdraw its reservation to
Article IX of the Genocide Convention,
or as any sort of unilateral
commitment on its part having legal
effects in regard to such withdrawal; at
most, it can be interpreted as a
declaration of intent, very general in
scope.
ARMED ACTIVITIES ON THE TERRITORY
OF THE CONGO (DEMOCRATIC REPUBLIC
OF THE CONGO V. UGANDA)
FACTS
● On 23 June 1999, the Democratic
Republic of the Congo (DRC) filed in
the Registry of the Court Applications
instituting proceedings against
Burundi, Uganda and Rwanda “for acts
of armed aggression committed . . . in
flagrant breach of the United Nations
Charter and of the Charter of the
Organization of African Unity”.
● In addition to the cessation of the
alleged acts, Congo sought reparation
for acts of intentional destruction and
looting and the restitution of national
property and resources appropriated
for the benefit of the respective
respondent States.
RULING
● The Court first dealt with the question
of the invasion of the DRC by Uganda.
● After examining the materials
submitted to it by the Parties, the
Court found that, in the period
preceding August 1998, the DRC had
not objected to the presence or
activities of Ugandan troops in its
eastern border area.
● The two countries had agreed, among
other things, that their respective
armies would “co-operate in order to
insure security and peace along the
common border”. However, the Court
drew attention to the fact that the
consent that had been given to Uganda
to place its forces in the DRC, and to
 engage in military operations, was not ● In the Court’s view, nothing in the
an open-ended consent. conduct of Uganda in the period after
● It was limited, in terms of objectives May 1997 can be considered as
and geographic location, to actions implying an unequivocal waiver of its
directed at stopping the rebels who right to bring a counter-claim relating
were operating across the common to events which occurred during the
border. It did not constitute a consent Mobutu régime.
to all that was to follow.
● The Court carefully examined the
2006 GUIDING PRINCIPLES APPLICABLE
various treaties directed to achieving
TO UNILATERAL DECLARATION OF STATES
and maintaining a ceasefire, the
CAPABLE OF CREATING LEGAL
withdrawal of foreign forces and the
OBLIGATIONS
stabilization of relations between the
DRC and Uganda. It concluded that
1. Declarations publicly made and
none of those instruments constituted
manifesting the will to be bound
consent by the DRC to the presence of
may have the effect of creating
Ugandan troops on its territory.
legal obligations. When the
conditions for this are met, the
binding character of such
PRINCIPLE declarations is based on good
faith; States concerned may then
take them into consideration and
● The Court observes that the DRC has
rely on them; such States are
not presented any evidence showing an
entitled to require that such
express renunciation by Uganda of its
obligations be respected.
right to bring a counter-claim in
a. seeks both to define unilateral
relation to facts dating back to the
acts in the strict sense and to
Mobutu régime.
indicate what they are based
● Rather, it argues that Uganda’s
on
subsequent conduct amounted to an
b. Frontier dispute: ​the Court was
implied waiver of whatever claims it
careful to point out that “it all
might have had against the DRC as a
depends on the intention of the
result of the actions or inaction of the
State in question”
Mobutu régime.
2. Any State possesses capacity to
● The Court observes that waivers or
undertake legal obligations
renunciations of claims or rights must
through unilateral declarations.
either be express or unequivocally
a. just as “every State possesses
implied from the conduct of the State
capacity to conclude treaties”,
alleged to have waived or renounced
every State can commit itself
its right.
through acts whereby it
● Similarly, the International Law
unilaterally undertakes legal
Commission, in its commentary on
obligations under the
Article 45 of the Draft Articles on
conditions indicated in these
Responsibility of States for
Guiding Principles.
internationally wrongful acts, points
b. this capacity has been
out that “[a]lthough it may be possible
acknowledged by the ICJ
to infer a waiver from the conduct of
3. To determine the legal effects of
the States concerned or from a
such declarations, it is necessary
unilateral statement, the conduct or
to take account of their content, of
statement must be unequivocal”.
all the factual circumstances in
 which they were made, and of the challenge the validity of the
reactions to which they gave rise. commitment at the
4. A unilateral declaration binds the international level.
State internationally only if it is e. with increasing frequency in
made by an authority vested with modern international relations
the power to do so. By virtue of other persons representing a
their functions, heads of State, State in specific fields may be
heads of Government and authorized by that State to
ministers for foreign affairs are bind it by their statements in
competent to formulate such respect of matters falling
declarations. Other persons within their purview. This may
representing the State in specified be true, for example, of
areas may be authorized to bind it, holders of technical ministerial
through their declarations, in areas portfolios exercising powers in
falling within their competence. their field of competence in the
a. inspired by the consistent area of foreign relations.
jurisprudence of the P.C.I.J. 5. Unilateral declarations may be
and I.C.J., on unilateral acts formulated orally or in writing.
and the capacity of State a. Form does not affect the
authorities to represent and validity or legal effects
commit the State b. With regard to the question of
internationally. form, it should be observed
b. a well-established rule of that this is not a domain in
international law that the Head which international law
of State, the Head of imposes any special or strict
Government and the Minister requirements. Whether a
for Foreign Affairs are deemed statement is made orally or in
to represent the State merely writing makes no essential
by virtue of exercising their difference.
functions, including for the c. Question of form is not decisive
performance, on behalf of the 6. Unilateral declarations may be
said State of unilateral acts addressed to the international
having the force of community as a whole, to one or
international commitments several States or to other entities.
c. Example: Statement of King of 7. A unilateral declaration entails
Jordan was first considered obligations for the formulating
ultra vires under Constitution State only if it is stated in clear
of the Kingdom, but was later and specific terms. In the case of
confirmed by subsequent doubt as to the scope of the
domestic acts. obligations resulting from such a
d. Example: declaration by the declaration, such obligations must
Colombian Minister for Foreign be interpreted in a restrictive
Affairs about Venezuelan manner. In interpreting the
sovereignty over the Los content of such obligations, weight
Monjes archipelago, the note shall be given first and foremost to
itself was set aside in domestic the text of the declaration,
law because its author had no together with the context and the
authority to make such a circumstances in which it was
commitment, yet the formulated.
Colombian authorities did not
 8. A unilateral declaration which is in
conflict with a peremptory norm of
general international law is void.
a. derived from the analogous
rule contained in article 53
of the 1969 Vienna
Convention on the Law of
Treaties
9. No obligation may result for other
States from the unilateral
declaration of a State. However,
the other State or States
concerned may incur obligations in
relation to such a unilateral
declaration to the extent that they
clearly accepted such a ● In January 2000, Chadian nationals
declaration.
a. the State or States concerned
are in fact bound by their own
acceptance.
10. A unilateral declaration that has
created legal obligations for the
State making the declaration
cannot be revoked arbitrarily. In
assessing whether a revocation
would be arbitrary, consideration
should be given to:
(a) Any specific terms of the
declaration relating to
revocation; ​
  matter. Senegal referred such case to
(b) The extent to which those
to whom the obligations are
owed have relied on such
obligations;
(c) The extent to which there
has been a fundamental change
in the circumstances.
2.8 Hierarchy of sources
2.8.1 Jus cogens norms
2.8.2 Obligations erga omnes
QUESTIONS RELATING TO THE
OBLIGATION TO PROSECUTE OR
EXTRADITE
(BELGIUM V. SENEGAL)
FACTS
● Mr. Hissene Habre was the President of
the Republic of Chad for 8 years during
which time ​large-scale violations of
human rights were allegedly
committed, including arrests of actual
or presumed political opponents,
detentions without trial or under
inhumane conditions, mistreatment,
torture, extrajudicial executions and
enforced disappearances.
● After his ousting in 1990, and after a
brief stay in Cameroon, he requested
political asylum from Senegal. His
request was granted.
filed a complaint against him in the
Dakar (capital of Senegal) ​Tribunal
regional hors classe. ​Unfortunately,
Habre was not prosecuted because the
Senegalese Courts held that it had no
jurisdiction over him as he is not
Senegalese, the complaints against
him were from Chadian nationals, and
that the Senegalese Code of Criminal
Procedure then in force did not provide
for such jurisdiction.
● In 2005, Belgium requested
extradition, but Senegalese courts held
that it had no jurisdiction on the
the African Union. The Union,
thereafter, mandated Senegal to
prosecute and ensure that Habre is
tried, on behalf of Africa, by a
competent Senegalese court with
guarantees for fair trial.
● On February 2009, Belgium instituted
proceedings against Senegal, alleging
that ​Senegal did not comply with
its obligation to prosecute Habre​,
or to extradite him to Belgium for
purposes of criminal proceedings for
crimes of torture and crimes aginst
humanity. This obligation stems from
the maxim, ​aut dedere aut judicare.​
(​Latin for "either extradite or
prosecute")
● Belgium based its claims on the
United Nations Convention Against
 Torture and other Cruel, Inhuman
or Degrading Treatment or
Punishment (UNCAT 1984), as well
as on customary international law.
● Further, Belgium alleged that Senegal
breached its international obligations
by failing to incorporate in its domestic
law the provisions necessary to enable
the Senegalese judicial authorities to
exercise the universal jurisdiction
provided in Article 5 of UNCAT.
● Two obligations must be taken note of:
○ The obligation under Article
6(2) of the UNCAT which states
that, “the State in whose
territory a person alleged to
have committed acts of torture
is present “shall immediately
make a preliminary inquiry into
the facts.”
○ The obligation under 1.
Article 7(1) of the UNCAT
which provides: “The State
party in the territory under
whose jurisdiction a person
alleged to have committed any
offence referred to in Article 4
is found shall in the cases
contemplated in Article 5, if it
does not extradite him, submit
the case to its competent
authorities for the purpose of
prosecution.”
● Senegal contended that
○ Belgium lacks jurisdiction as a
result of the absence of a
dispute between Belgium and
Senegal
● The question is did Senegal have the
obligation to prosecute or extradite?
And if it did, when did the obligation
arise?
RULING
Senegal had the obligation to prosecute the
moment the Convention took into force in
1987. It ​should have prepared institutional
mechanisms so that its domestic courts
would have universal jurisdiction over
cases involving violations of the UNCAT. It
cannot use its domestic law as an excuse for
such violations.
The Court agrees with Belgium that if the State
in whose territory the suspect is present has
received a request for extradition, it should
have agreed to such extradition, in light of the
purpose of the Convention. In this case,
Senegal did not accede to the request of
Belgium. Hence, Senegal breached, and
remained to be in breach of the Convention.
PRINCIPLES
Obligations erga omnes ​pertains to the
scope of an obligation of a State to the world
or to States Parties to a Convention. According
to the treatise by Shaw, it is more procedural
than substantive in application, as opposed to
jus cogens.
In this case, both States recognize that the
duty to extradite or prosecute are erga omnes
obligations but have divergent views in its
application.
Senegal contends that because of financial
difficulties, it was not able to create
institutional mechanisms under its domestic
law to prosecute Habre immediately. It posits
however that it has endeavored to follow the
legal procedure in the Convention, and it has
no obligation to extradite.
Belgium posits that Senegal should have
extradited, if it were not able to prosecute. And
such delay in the proceedings have negative
consequences.
Erga Omnes Partes in relation to the matter on
admissibility
Senegal contends that the claim of Belgium is
not admissible because it does not hold a
particular interest on the issue because the
alleged victims of Habre did not concern
Belgian citizens.
According to the Court, the State Parties to a
Convention, in this case, the UNCAT, have a
common interest in compliance with the
obligations by the State in whose territory the
alleged offender is present. In other words, ​all
the States parties “have a legal interest”
in the protection of the rights involved​.
These obligations are defined as “obligations
erga omnes partes”.
Since Belgium and Senegal are both States
Parties to the UNCAT, they share a common
interest on the obligations of the States under
the Convention. Conversely, ​Belgium does
not have to prove particular interest on
the matter​, or even to an extent prove that
its citizens have been particularly affected.
Hence, Belgium has standing, and such claims
are admissible.
Divisible erga omnes obligations under Article
6 and 7 of UNCAT
The Court discussed the temporal scope of
obligations:
1. Senegal contends that since it became
a party to the UNCAT on 26 June 1987,
its obligation to prosecute does not
apply to the acts committed by Habre
before the said date. Moreover,
2. Senegal contends that Belgium does
not have the right to engage Senegal’s
responsibility, since Belgium only
became Party to the UNCAT in 1999,
and such is a ​divisible erga omnes
obligation.​
The Court agrees with Senegal. The Court held
that unless a different intention appears from
the treaty, its provisions do not bind a party in
relation to any act which took place before the
date of the entry into force with respect to that
party. The UNCAT did not intend that such
obligations apply retroactively.
EAST TIMOR JUDGMENT
(PORTUGAL V. AUSTRALIA)
FACTS
● Ambassador to the Netherlands of the
Portuguese Republic (“Portugal”) filed
in the Registry of the Court an
Application instituting proceedings
against the Commonwealth of Australia
(“Australia”) concerning certain
activities of Australia with respect to
East Timor.
○ Failed to observe the obligation
to respect the duties and
powers of Portugal, the
administering power
○ Objective conduct of Australia
that consist in having
negotiated, concluded and
initiated performance of 1989
Treaty with Indonesia
○ Right of people of East Timor
to self-determination and the
related rights
● As a consequence, according to the
Application, Australia had incurred
international responsibility both to the
people of East Timor and Portugal.
● The Territory of East Timor
corresponds to the eastern part of the
island of Timor and its capital is Dili,
situated on its north coast. In the 16​th
century, East Timor became a colony
of Portugal and remained there until
1975. The western part of the island
came under Dutch rule and later
became part of independent Indonesia.
● ​In resolution 1542, the United Nations
General Assembly recalled differences
in view of certain territories under the
admin of Portugal and Spain. It
considered that the territories under
Portugal (Timor and dependencies)
were non self-governing and this was
accepted by Portugal in the wake of
Carnation Revolution.
● Following internal disturbances in East
Timor, Portuguese civil and military
authorities withdrew from East Timor
and since the departure, Indonesia has
occupied the territory.
○ Government of Portugal as
administering power to
co-operate fully with United
Nations so to enable the people
of East Timor to exercise freely
 their right to ■ True respondent is
self-determination. Indonesia and not
● The incorporation of East Timor as part Australia
of Indonesia was recognized by ■ Court stated that it is not
Australia de facto on 1978. relevant whether the “real
○ Prior to this, Australia and dispute” is between
Portugal and Indonesia
Indonesia had in 1971-1972
rather than Portugal and
established a delimitation of
Australia as Portugal has
the continental shelf between formulated complaints of
their respective coasts. The fact and law against
delimited part was called the Australia which the latter
Timor Gap. Negotiations began denied. By virtue of this
Feb 1979 but did not come to denial, there is a legal
fruition. They came to the dispute

possibility of arranging a joint

​RULING
exploration and exploitation – a
treaty was concluded “Zone of
Court finds that:
Cooperation”
■ Portugal maintains that
Australia, in
● It is not required to consider Australia's
negotiating and other objection.
concluding the 1989 ● It cannot rule on Portugal's claims on
Treaty, in initiating the merits, whatever the importance of
performance of the the questions raised by those claims
Treaty, in taking and of the rules of international law
interna1 legislative
which they bring into play.
measures for its
● For the two Parties, the Territory of
application, and in
continuing to negotiate East Timor remains a
with Indonesia, has Non-Self-Governing Territory and its
acted unlawfully, in people has the right to
that it has infringed the self-determination.
rights of the people of
East Timor to PRINCIPLES
self-determination and
permanent sovereignty
Obligations erga omens
over its natural
resources, infringed the
rights of Portugal as ● The right which Australia already
the administering breached were rights erga omnes and
Power that Portugal could require it,
individually to respect them regardless
· of whether or not another State had
conducted itself in a similarly unlawful
● Australia’s objection manner.
○ There exists in reality no ● Portugal’s assertion that the right of
dispute between the Parties people to self-determination, as it
■ Artificially limited to evolved from the Charter and from
the question of United Nations practice, has erga
lawfulness of omens character.
Australia’s conduct ○ Court found such assertion as
irreproachable.
 ○ The principle of
self-determination has been
recognized by the United
Nations Charter and in the
jurisprudence of the Court. It is
one essential principles of
contemporary international
law.
● Court also considers that erga omnes
character of a norm and the rule of
consent to jurisdiction are two different
things.
○ When the nature of the
obligation is invoked, the Court
could not rule on the
lawfulness of the conduct of a
state when its judgement
would imply an evaluation of
the lawfulness of the conduct
of another state which is not a
party to the case. Where it is
so, the court cannot act, even
if the right in question is a right
erga omnes
BARCELONA TRACTION JUDGMENT
Disclaimer: this digest reflects my grasp on the
case. Sorry if it’s not super on point I will pay
the P200 wrong digest fee if any of u get called
and this digest wasn’t enough :-(
Topic: Obligations erga omnes
● In ​international law​, it has been used
as a legal term describing obligations
owed by ​states​ towards the community
of states as a whole
● An ​erga omnes​ obligation exists
because of the universal and
undeniable interest in the perpetuation
of critical rights (and the prevention of
their breach)
● Consequently, any state has the right
to complain of a breach
● Examples of erga omnes norms include
piracy​and ​genocide
The Case
● The claim arose out of the adjudication
in bankruptcy in Spain of Barcelona
Traction, a company incorporated in
Canada
● Object of the claim: seek reparation for
damage alleged by Belgium to have
been sustained by Belgian nationals,
shareholders in the company
○ The damage was a result of
acts said to be contrary to
international law committed
towards the company by
organs of the Spanish State
● The Court found that Belgium lacked
jus standi (right to appear before the
court) to exercise diplomatic protection
of shareholders in a Canadian company
with respect to measures taken against
that company in Spain
Facts
● The Barcelona Traction, Light, and
Power Company, Limited (BT) was
incorporated in 1911 in Toronto,
Canada, where its head office was
located
● BT formed a number of subsidiary
companies, some in Canada and some
in Spain, to create and develop electric
power production and distribution
system in Spain
● The Belgian Government alleges that
some years after the first world war,
BT’s share capital came to be very
largely held by Belgian nationals
● The Spanish Government contends that
this claim is not proven
● BT issued several series of sterling
bonds
● In 1936, the servicing of the bonds
was suspended on account of the
Spanish civil war
● After the war, the Spanish exchange
control authorities refused to authorize
the transfer of foreign currency
necessary for the resumption of the
servicing of the bonds
● The Belgian Government complained
 ● The Spanish Government said that
transfers couldn’t be authorized unless
it were shown that the foreign currency
was to be used to pay debts arising
from the genuine importation of
foreign capital into Spain
● In 1948, 3 Spanish holders of BT
sterling bonds petitioned the court of
Reus for a declaration adjudging the
company bankrupt, on account of
failure to pay the interest on the bonds
● A judgement of the same was given
● Pursuant to this judgement, the
principal management personnel of the
2 subsidiary companies were dismissed
and Spanish directors appointed
● New shares of the subsidiary
companies were created and another
company acquired complete control of
the undertaking in Spain
● Proceedings were brought without
success in the Spanish courts by
various companies or persons before it
was submitted to the ICJ
● The Court found that BT was not
represented before the Reus court in
1948
Proceedings before the International
Court and the Nature of the Claim
● The Belgian Government filed the
Application with the Court
● The Spanish Government gave four
preliminary objections to the
Application
● The Court rejected the first and second
and joined the third and fourth to the
merits
● The claim submitted to the Court had
been presented on behalf of national
and juristic persons, alleged to be
Belgian national and shareholders in BT
● Object of Application: reparation for
damage allegedly caused to those
persons by the conduct, said to be
contrary to international law, of various
organs of the Spanish State towards
that company
● Objection 3 of Spanish Government:
Belgian Government lacked capacity to
submit any claim in respect of wrongs
done to a Canadian company, even if
the shareholders were Belgian
● Objection 4 of Spanish Government:
local remedies available in Spain had
not been exhausted
Belgian Government’s jus standi
● When a State admitted into its territory
foreign investments or foreign
nationals, it was bound to extend to
them the protection of the law and
assumed obligations concerning the
treatment to be afforded them
● The Court notes the distinction
between the rights of the company and
those of the shareholder
● A wrong done to the company
frequently caused prejudice to its
shareholders, but this did not imply
that both were entitled to claim
compensation
● For responsibility towards the
shareholders to be involved, the act
complained of must be aimed at the
direct rights of shareholders (which
was not the case here since the
Belgian Government had itself
admitted that it had not based its claim
on an infringement of the direct rights
of shareholders)
● 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
The Court’s Decision
● Since no jus standi before the Court
had been established, it was not for
the Court to pronounce upon any other
aspect of the case
In relation to Obligations ​erga omnes
Pertinent paragraphs
● [par. 33] “When a State admits into its
territory foreign investments or foreign
nationals, whether natural or juristic
persons, it is bound to extend to them
the protection of the law and assumes
obligations concerning the treatment to
be afforded them. These obligations,
however, are neither absolute nor
unqualified. In particular, ​an essential
distinction should be drawn between
the obligations of a State towards the
international community as a whole,
and those arising vis-à-vis another
State in the field of diplomatic
protection​. By their very nature the
former 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.”
● [par. 34] Such obligations derive, for
example, in contemporary inter-
national 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 discrimina-
tion.​ Some of the corresponding rights
of protection have entered into the
body of general international law
(Reservations to the Convention on the
Prevention and Punishment of the
Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951,​ ​p. 23); others are
conferred by international instruments
of a universal or quasi-universal
character.
● [par. 35] ​Obligations the performance
of which is the subject of diplomatic
protection are not of the same
category​. ​It cannot be held, when one
such obligation in particular is in
question, in a specific case, that all
States have a legal interest in its
observance.​ In order to bring a claim
in respect of the breach of such an
obligation, a State must ​first establish
its right to do so​, for the rules on the
subject rest on two suppositions:
○ "The first is that the defendant
State has broken an obligation
towards the national State in
respect of its nationals.
○ The second is that only the
party to whom an international
obligation is due can bring a
claim in respect of its breach."
(Reparationfor Injuries
Suflered in the Service of the
United Nations, Advisory
Opinion, I.C.J. Reports 1949,
pp. 181-182.)
In the present case it is thereforv
essential to establish whether the
losses allegedly suffered by Belgian
shareholders in Barcelona Traction
were the consequence of the violation
of obligations of which they were the
beneficiaries. In other words: ​has a
right of Belgium been violated on
account of its nationals' having
suffered infringement of their rights as
shareholders in a Company not of
Belgian nationality?
● [par. 86] Hence the Belgian
Government would be entitled to bring
a claim if it could show that ​one of its
rights had been infringed and that the
acts complained of involved the breach
of an international obligation arising
out of a treaty or a general rule of law.
○ However, Belgians contend
that [par 86] a claim can
accordingly be made when
investments by a State's
nationals abroad are thus
prejudicially affected, and that
since such investments are
part of a State's national
economic resources, any
 prejudice to them directly
involves the economic interest
of the State.
● [par. 87] When a State admits into its
territory foreign investments or foreign
nationals it is, as indicated in
paragraph 33, bound to extend to
them the protection of the law.
However, it does not thereby become
an insurer of that part of another
State's wealth which these investments
represent.​ Every investment of this
kind carries certain risks.
● [par. 88] It follows from what has
already been stated above that, ​where
it is a question of an unlawful act
committed against a company
representing foreign capital, the
general rule of international law
authorizes the national State of the
company alone to make a claim.

Comments
● Obligations erga omnes are obligations
owed by ​states​ towards the community
of states as a whole
● Any state has the right to complain of
a breach of an obligation erga omnes
● In this case, there was no obligation
erga omnes violated by Spain in which
the Belgian Government could file an
Application to the court to contest
● The Belgian Government would only
have the right to bring a claim if it can
show that one of its rights had been
infringed due to a breach of
international obligation arising out of a
treaty or general rule of law