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2.

4 General principles as a source of law ● The Court rejects both the Netherlands'
submissions and the submissions
DIVERSION OF WATER FROM THE MEUSE, contained in the Belgian counter-claim.
INDIVIDUAL OPINION BY MR. HUDSON
INDIVIDUAL OPINION BY MR. HUDSON
FACTS
● While he concurs in the judgment of
● In 1863, Belgium and the Netherlands the Court, Mr. Hudscorfuon considers
signed a Treaty governing diversions that there is room to apply here the
from the Meuse River that would principle of equity.
supply water for navigation and ● He argued that: "A sharp division
irrigation canals. between law and equity, such as
● As economic conditions evolved, both prevails in the administration of justice
States enlarged and expanded their in some States, should find no place in
respective waterways by constructing international jurisprudence.”
new canals, locks, and barrages. ● The question here is of a general
● The Netherlands proceeded to principle of law recognized by civilized
construct and complete the Juliana nations in the sense of Article 38 of the
Canal, the Bosscheveld Lock and the Statute, and the Court's recognition of
Borgharen barrage. equity as part of international law is in
● On its part, Belgium began the no way restricted by the special power
construction of the Albert Canal, conferred on it to decide a case ​ex
unfinished at the time of the judgment, aequo et bono (“from equity and
a barrage at Monsin and a lock at conscience”)​ if the Parties so agree.
Neerhaeren. ● He discussed that it would be
● In 1937, the Netherlands initiated this considered as an important principle of
injunctive proceeding, alleging that equity where two parties have
Belgium’s expansion projects were in assumed an identical or a reciprocal
violation of the treaty. obligation; one party which is engaged
● Belgium filed counterclaims declaring in a continuing non-performance of
that the Netherland's claims were that obligation should not be permitted
ill-founded and that the expansion to take advantage of a similar
projects in the Netherlands violated the non-performance of that obligation by
treaty. the other party.
● A tribunal, bound by international law,
RULING ought not to shrink from applying a
principle of such obvious fairness.
● The Permanent Court of International ● In equity, the Netherlands cannot ask
Justice concluded that the Treaty did Belgium to discontinue the operation of
not prevent either State from taking the Neerhaeren Lock (in Belgian
the actions complained of. territory) when the Netherlands remain
● Each of the two States is at liberty in free to continue the operation of the
its own territory to modify such canals, Bosscheveld Lock (in Netherlands’
to enlarge them, to transform them, to territory).
fill them in and even to increase the ● Neither of these two requests should
volume of water in them, provided that be granted where the circumstances
the diversion of water at the feeder are such that the judgment would
mentioned in the Treaty and the disturb that equality which is equity.
volume of water to be discharged is ● If it preserves the equality between the
not affected. Parties, the judgment may better serve
to facilitate their negotiations on the restricted by the special power
conclusion of a new treaty to replace conferred upon it "to decide a case ex
that of 1863. cequo et bono (from equity and
conscience), if the parties agree
thereto".
PRINCIPLES - It must be concluded, therefore, that
1. General Principles as a source of under Article 38 of the Statute, if not
law independently of that Article, the Court
- What are widely known as principles of has some freedom to consider
equity have long been considered as a principles of equity as part of the
“general principle of international law”, international law which it must apply.
and as such they have often been - One result of applying the principle of
applied by international tribunals. equity will be that even if the Court
- Article 38 of the Statute expressly should be of the opinion that the
directs the application of "general Belgian action with regard to the
principles of law recognized by civilized functioning of the Neerhaeren Lock is
nations", and in more than one nation contrary to the Treaty of 1863, it
principles of equity have an established should nevertheless refuse in this case
place in the legal system. to order Belgium to discontinue that
- A sharp division between law and action.
equity in the administration of justice - In equity, the Netherlands is not in a
in some States, should find no place in position to have such relief decreed to
international jurisprudence ; even in her. Belgium cannot be ordered to
some national legal systems, there has discontinue the operation of the
been a strong tendency towards the Neerhaeren Lock when the Netherlands
fusion of law and equity. is left free to continue the operation of
- Some international tribunals are the Bosscheveld Lock.
expressly directed by the compromis - The general principle is a sound one
which control them to apply "law and that reparation is "the corollary of the
equity". violation of the obligations resulting
- Of such a provision, a special tribunal from an engagement between States";
of the Permanent Court of Arbitration and "it is a principle of international
said in 1922 that "the majority of law, and even a general conception of
international lawyers seem to agree law, that any breach of an engagement
that these words are to be understood involves an obligation to make
to mean general principles of justice as reparation".
distinguished from any particular - Yet, in a particular case in which it is
systems of jurisprudence". asked to enforce the obligation to
- make reparation, a court of
2. EQUITY v. “ex cequo et bon​o​” international law cannot ignore special
- The Court has not been expressly circumstances which may call for the
authorized by its Statute to apply consideration of equitable principles.
equity as distinguished from law.
- Nor, indeed, does the Statute
expressly direct its application of
international law, though as has been NUCLEAR TESTS CASE
said on several occasions the Court is NEW ZEALAND V. FRANCE
"a tribunal of international law".
- The Court's recognition of equity as a FACTS:
part of international law is in no way
● The ambassador of New Zealand to the ISSUE: ​WON there is still a dispute that needs
Netherlands transmitted to the to be settled by the court.
Registrar an Application instituting
proceedings against France, in respect RULING:
of a dispute concerning the legality ● The Court it has first to examine the
of atmospheric nuclear tests existence of a dispute, for whether or
conducted by the French not the Court has jurisdiction on the
Government in the South Pacific present case
region. ● In these circumstances, the Court is
● New Zealand informed the Court that bound to take note of further
subsequent to the Court's Order of 22 developments, both prior to and
June 1973 indicating, as interim subsequent to the close of the oral
measures under Article 41 of the proceedings, namely certain public
Statute, (inter alia) that ​the French statements by French authorities.
Government should avoid nuclear ● (1) The first of these statements which
tests causing the deposit of was issued by the Office of the
radio-active fall-out on New President of the French Republic on 8
Zealand territory​, two further series June 1974 and transmitted in particular
of atmospheric tests, in the months of to the Applicant: ". . . in view of ,the
July and August 1973 and June to stage reached in carrying out the
September 1974, had been carried out French nuclear defence programme
at the Centre d'expérimentations du France will be in a position to pass
Pacifique. on to the stage of underground
● The letters also stated that fall-out had explosions as soon as the series of
been recorded on New Zealand tests planned for this summer is
territory, analysis of samples of which, completed​".
according to the New Zealand ● (2) Further statements are contained
Government, established conclusively in a Note from the French Embassy in
the presence of fall-out from these Wellington (10 June), a letter from the
tests, and that it was "the view of the President of France to the Prime
New Zealand Government that there Minister of New Zealand (1 July), a
has been a clear breach by the French press conference given by the
Government of the Court's Order of 22 President of the Republic (25 July), a
June 1973". speech made by the Minister for
● France has maintained, in particular, Foreign Affairs in the United Nations
that the radio-active matter produced General Assembly (25 September) and
by its tests has been so infinitesimal a television interview and press
that it may be regarded as negligible conference by the Minister for Defence
and that any fall-out on New Zealand (16 August and I 1 October).
territory has never involved any ● The Court considers that ​these
danger to the health of the population statements convey an
of New Zealand. announcement by France of its
● Recently before this decision was intention to cease the conduct of
handed down, a number of atmospheric nuclear tests following
authoritative statements have been the conclusion of the 1974 series.
made on behalf of the French ● One of the basic principles
Government concerning its intentions governing the creation and
as to future nuclear testing in the performance of legal obligations,
South Pacific region. whatever their source, is the
principle of good faith. Trust and
confidence are inherent in international France has undertaken the obligation
CO-operation, in particular in an age to hold no further nuclear tests in the
when this CO-operation in many fields atmosphere in the South Pacific.
is becoming increasingly essential. ● The Applicant has sought an assurance
● Just as the very rule of pacta sunt from France that the tests would cease
servanda in the law of treaties is and France, on its own initiative, has
based on good faith, so also is the made a series of statements to the
binding character of an effect that they will cease.
international obligation assumed ● As a court of law, it is called upon to
by unilateral declaration. resolve existing disputes between
● It is well recognized that declarations States: these disputes must continue
made by way of unilateral acts, to exist at the time when the Court
concerning legal or factual situations, makes its decision.
may have the effect of creating legal ● In the present case, the dispute having
obligations. disappeared, the claim no longer has
● Nothing in the nature of a quid pro any object and there is nothing on
quo, nor any subsequent acceptance, which to give judgment.
nor even any reaction from other ● Once the Court has found that a State
States is required for such declaration has entered into a commitment
to take effect. Neither is the question concerning its future conduct, it is not
of form decisive. the Court's function to contemplate
● The intention of being bound is to be that it will not comply with it.
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; PRINCIPLES :
interested States are entitled to require ● Principle of good faith
that the obligation be respected. ● Pacta sunt servanda
● France has conveyed to the world at
large, including the Applicant, its
intention effectively to terminate its
atmospheric tests. CORFU CHANNEL
● It was bound to assume that other UK V. ALBANIA
States might take note of these
statements and rely on their being Take note of the terminologies
effective. ● Strait = Channel (they all refer to the
● It is true that France has not Corfu Channel)
recognized that it is bound by any rule ● AG = Albanian Government
of international law to terminate its ● BG = British Government / UK
tests, but this does not affect the legal
consequences of the statements in FACTS
question; the unilateral undertaking
resulting from them cannot be
interpreted as having been made in May 15, 1946 – an Albanian battery fired in the
direction of 2 British cruisers that were navigating
implicit reliance on an arbitrary power
through Corfu Channel. Although the warships did not
of reconsideration.
suffer any damage, the British Government (BG)
● Thus the Court faces a situation in
protested, stating that ​innocent passage through
which the objective of the Applicant straits, without the need to make any
has in effect been accomplished, announcement or to await permission​, ​is a right
inasmuch as the Court finds that recognized by international law (IL). The Albanian
Government (AG) replied that foreign warships and WON: UK​, however claimed that innocent passage
merchant vessels had no right to pass through through straits was a right recognized under
Albanian territorial waters without prior authorization. international law. It argued that the minesweeping
The BG then advised AG that if, in the future, fire was operation of Nov. 13, 1946 was justified by a right of
opened on a British warship passing through the self-help or self-protection.
Channel, the fire would be returned.

Oct. 22, 1946 – 4 British warships entered the North


Corfu Strait. Two British destroyers struck mines and ISSUES
were heavily damaged, causing deaths and injuries
among the naval personnel. Consequently, British
minesweepers swept the North Corfu Channel, after 1) WON Albania was responsible under IL for
having announce the operation in advance. The AG the explosions the occurred on Oct 22, 1946
denied its consent. in Albanian waters, for the resulting
April 9, 1947 – By a resolution of the Security Council damage and loss of human life and for
of the UN recommended that the 2 governments payment of any compensation? ​YES
submit their dispute to the ICJ. The UK unilaterally
instituted proceedings against Albania by filing an 2) WON the UK had violated the sovereignty of
application with the ICJ. Albania under IL by reason of the acts of
the Royal Navy in Albanian waters on
July 2, 1947 – Albania protested against the October 22 1946 and if there was any duty
unilateral British application, expressing the opinion to give satisfaction? ​NO
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 REASONING OF THE COURT
dispute to the court. Notwithstanding the application 1) 1) The Court found that the factual evidence
to the Court by the BG, Albania declared that it was presented made it improbable that the
prepared to appear before the Court on the Albanian authorities had been unaware of the
understanding that its acceptance of the Court’s mine laying in Albanian waters. The court
jurisdiction could not constitute a precedent for the further stated that the presumed knowledge of
future. the AG entailed its obligation to notify “for the
March 25, 1948 – Albania and UK concluded a benefit of shipping in general, the existence of
Special Agreement for the purpose of submitting two a minefield in Albanian territorial waters and in
questions to the ICJ. warning the approaching British warships of
the imminent danger to which the minified
[Brief Arguments of the Parties] ​you dont have to exposed them.” ​Such obligations “were
include this during the recit; the facts mentioned based on certain general and
above are sufficient. I just Included this here just so well-recognized principles, namely:
you could contextualize the stand of each parties. elementary considerations of humanity​,
even more exacting in peace than in war;
LOST: Albania ​argued that foreign warships and the principle of the freedom of maritime
merchant vessels had not right to pass ​through communication​; and ​every State’s
Albanian territorial waters, without prior notification to, obligation not to allow knowingly its
and the permission of, the Albanian authorities. It territory to be used for acts contrary to the
further contended that the sovereignty of Albania was rights of other States​.”
violated because the passage of the British warships
on Oct 22, 1946 was not innocent. The AG also 2) It is ​generally recognized and in accordance
alleged that the said passage was a political mission with international custom that States in
and the methods employed - number of ships, time of peace have a right to send their
formation, armament, manoeuvres etc., - showed an warships through straits used for
intention to intimidate and not merely to carry out a international navigation between two parts
passage for the purpose of navigation. of the high seas without the previous
authorization of a coastal State​, ​provided
that the passage is innocent​. ​Unless communication​; and ​every State’s
otherwise prescribed in an international obligation not to allow knowingly its
convention, there is no right for a coastal State territory to be used for acts contrary to the
to prohibit such passage through straits in rights of other States​.”
times of peace.
The court is of the opinion that Albania, in view
It may be asked ​whether the Corfu channel is of exceptional circumstances, would have been
considered an international highway, if so, justified in issuing regulations in respect of the
what is the volume of traffic passing through​. It passage of warships through the Strait, ​but
is the opinion of the court that the decisive not in prohibiting such passage, or in
criterion is its ​geographical situation as subjecting it to the requirement of special
c​onnecting two parts of the high seas and authorization.
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 FOR FAST READ!! ​[ ​Summary of the ruling​: The
passage between Aegan and Adraiatic Seas, court held that the ​UK had not violated Albanian
still, it has been a useful route for international sovereignty by sending warships through the strait
maritime traffic. WIth this, the Agent of the UK without prior authorization of the AG. In this
provided the total number of ships passing connection, the court made an important
through the Channel; and ​for the period of 1 pronouncement on the question of ​innocent passage
year and 9 months, there are 2, 884 ships through straits, stating that it is “​generally
that passed through the channel. The flags recognized, and in accordance with international
of ships are: Greek, Italian, Romanian, custom that States in time of peace have a right to
Tugoslav, French, Albanian and British. send their warships through straits used for
Further, the British Navy has regularly used international navigation between two parts of the
this Channel for 80 years or more, and that it high seas without the previous authorization of a
has also been used by the navies of other coastal State, provided that the passage is
States. Essentially, the court ruled that 2, 884 innocent.​” The court held that the Corfu Channel
ships for a period of 1 year and 9 months is was such a strait and that the passage of the British
quite a large figure, warship on October 22 1946 was innocent. As for the
Hence, the North Corfu Channel should be contentions of the AG with respect to measures taken
considered as belonging to the class of by the UK during the passage, the court was unable
international highways through which to characterized those measures as a violation of
passage cannot be prohibited by a coastal Albania’s sovereignty. ​]
State in time of peace.

Further, the Court found that the factual 2.5 Judicial decisions
evidence presented made it improbable that 2.5.1 Article 59 of the ICJ Statute
the Albanian authorities had been unaware of 2.5.2 Equity v. “ex aequo et bono”
the mine laying in Albanian waters. ​The court
further stated that the presumed knowledge THE RIVER MEUSE CASE
of the AG entailed its obligation to notify
(NETHERLANDS V. BELGIUM)
“for the benefit of shipping in general, the
existence of a minefield in Albanian
territorial waters and in warning the (PLEASE REFER TO THE DIVERSION CASE)
approaching British warships of the
imminent danger to which the minified
exposed them.” Such obligations “​were 2.7 Unilateral statements
based on certain general and
well-recognized principles​, namely: LEGAL STATUS OF EASTERN GREENLAND
elementary considerations of humanity​, (DENMARK V. NORWAY)
even more exacting in peace than in war; the
principle of the freedom of maritime
FACTS ● Thus Denmark criticized the validity of the
Proclamation because of the absence of any
(WARNING: Sorry taas kaayo ang facts kay gichika western limit of the proclamation.
pa nila ang history since the beginning of time pag ● It was about 900 A.D. that Greenland was
BigBang Lol. hahaha) discovered
HISTORY OF THE COUNTRIES
FACTS: ● It was about 900 A.D. that Greenland was
discovered. The country was colonized a bout a
INTRODUCTION ON THE DISPUTE century later. The best known colonist was Eric
● A case concerning the legal status of certain the Red who was an inhabitant of Iceland of
territories in Easter Greenland between Royal Norwegian origin.
Danish Government and the Royal Norwegian ● There were already 2 settlements appearing to
Government (please refer to map below) 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
● Denmark instituted a case before the colonies, factories, or stations along the West
Permanent Court of International Justice (now Cost. Efforts to reach the East Cost were not
ICJ) against Norway on the ground that the successful.
Norway published a proclamation declaring ● Norway contended that Greenland in general
that it had proceeded to occupy certain mean the colonized part of the West Coast
territories in Eastern Greenland which Denmark while Denmark viewed Greenland as
alleged to be subject to the sovereignty of the encompassing the whole island of Greenland
Crown of Denmark. ● THESE FACTS ARE IMPORTANT IN THE PRESENT
● Denmark thus prayed to the court to declare DISPUTE:
that the promulgation of declaration of Norway ■ In 1814​, steps were taken for the
constitute a violation of the existing legal dissolution of all matters arising out of the
situation and are therefore unlawful and union between Denmark and Norway.
invalid. ■ In ​1819​, the dissolution was effected by a
● Norway on the other hand prayed that the Convention signed by Denmark on one
court declare Denmark to have no sovereignty part and the United Kingdoms of Sweden
over Easter Greenland and that Norway has and Norway on the other part. ​This Peace
acquired sovereignty over it. Treaty of Kiel was signed by Denmark
● The Norwegian Proclamation which gave rise to wherein the Kingdom of Norway, except
the present dispute stated that the territory Greenland, the Faeroe Isle and Iceland
between Carlsberg Fjord on the South and was seceded to Sweden.
Bessel Fjord on the North in Eastern Greenland ■ During the 19​th Century, several Danish
is placed under Norwegian sovereignty. By expeditions explored portions of the
“Eastern Greenland” it meant the eastern coast non-colonized part of Greenland. This
of Greenland. It must have been intended that resulted to the whole East Coast being
on the eastern side the sea and on the western explored by Danish expeditions.
side the “Inland Ice” constitutes the limits of ■ In ​1905​, a Decree was issued by the
area occupied under the Norwegian Danish Minister of Interior, fixing the
Proclamation though the Proclamation itself is limits of the territorial waters of
silent on the matter.
Greenland to be reserved for Danish the ​“Ihlen Declaration” which is
subjects considered below​. (Mao ni important
■ 1n ​1908, ​a law was promulgated by relating to the topic on unilateral
Denmark relating to the administration of statements)
Greenland and dividing the colonies on ● The Danish Government was anxious that other
the West Coast into 2. foreign countries would express interest over
■ During the Great War in ​1914 to 1918, Greenland and would question its claims over
Denmark by treaty, ceded its West Indian it.
Island (Danish Antilles) to the United ● Denmark approached London, Paris, Rome, and
States of America; USA also signed a Tokyo to obtain assurance that these countries
declaration that it would not object to the recognize Denmark’s Sovereignty over the
Danish Government extending their whole of Greenland.
political and economic interests to the ● The Swedish and Norwegian Governments
whole of Greenland. were the only other governments interested.
■ On July 12th, 1919, the Danish Minister The Swedish Government made no difficulty in
for Foreign Affairs instructed the Danish recognizing Denmark’s sovereignty.
Minister at Christiania that a Committee ● However, the Norwegian Government was not
had just been constituted at the Peace prepared to adopt the same attitude unless it
Conference “for the purpose of received an undertaking from the Danish
considering the claims that may be put Government that the liberty of hunting and
forward by different countries to fishing on the East Coast which the Norwegians
Spitzbergen”, and that the Danish had long enjoyed, should not be interfered
Government would be prepared to renew with.
before this Committee the unofficial ● This undertaking the Danish Government was
assurance already given to the Norwegian not willing to give, on the ground that it would
Government, according to which have involved a reversal of the policy which
Denmark, having no special interests at Denmark had since followed and that is to
stake in Spitzbergen, would raise no shield the Eskimo people of Greenland on the
objection to Norway’s claims upon that grounds of health from uncontrolled contact
archipelago. In making this statement to with white races; such policy could not be
the Norwegian Minister for Foreign maintained unless control could be exercised
Affairs, the Danish Minister was to point over those having access to the territory.
out “that the Danish Government had ● The Danish side showed willingness to make
been anxious for some years past to every effort to satisfy the desire of the
obtain the recognition by all the Norwegian to continue hunting and fishing on
interested Powers of Denmark’s the East Coast of Greenland but a
sovereignty over the whole of Greenland, determination not to give way on the claim to
and that it intended to place that question sovereignty.
before the above-mentioned Committee”, ● The Norwegian on the other hand, made it
and, further, that the Danish Government clear that the Easter Coast of Greenland was a
felt confident that the extension of its terra nullius ​(land legally deemed to be
political and economic interests to the unoccupied or uninhabited) and that
whole of Greenland “would not encounter Denmark’s political aspirations can only be met
any difficulties on the part of the if it meant no sacrifice of Norwegian economic
Norwegian Government”. interests.
■ The Danish Minister having accomplished ● Both countries negotiated to maintain its
his mission on July 14th, 1919, the friendly relations and draft agreements to this
Norwegian Minister for Foreign Affairs, M. negotiations. In these documents it is apparent
Ihlen, replied to him, on July 22nd that Danish contention that Denmark
following, “that the Norwegian possessed full and entire sovereignty over the
Government would not make any whole of Greenland and that Norway had
difficulties in the settlement of this recognized that sovereignty, and the
question” (i.e. the question raised on July Norwegian contention that all the parts of
14​th by the Danish Government). This is Greenland which had not been occupied in
such a manner as to bring them effectively ● A claim to sovereignty based not upon some
under the administration of the Danish particular act or title such as a treaty of cession
Government were in the condition of terra but merely upon continued display of authority,
nullius, and that if they ceased to be terra involves two elements each of which must be
nullius they must pass under Norwegian shown to exist : the intention and will to act as
sovereignty. sovereign, and some actual exercise or display
● The Norwegian Government granted police of such authority.
powers to certain Norwegian nationals to ● Another circumstance which must be taken into
inspect the hunting stations in Eastern account by any tribunal which has to adjudicate
Greenland. This action made Denmark uneasy upon a claim to sovereignty over a particular
and communicated to Norway that it cannot territory, is the extent to which the sovereignty
accept Norway’s granting of police power to is also claimed by some other Power. In most of
Norwegian nationals in territories situated in the cases involving claims to territorial
Greenland as it was subject to Danish sovereignty which have come before an
sovereignty. The Norwegian replied that in international tribunal, there have been two
accordance with their agreement, Eastern competing claims to the sovereignty, and the
Greenland constituted a terra nullius which tribunal has had to decide ​which of the two
means that it was fully entitled to grant police power is the stronger. One of the peculiar
power to Norwegian nationals in this territory. features of the present case is that up to 1931
● Some Norwegian hunters hoisted the flag of there was no claim by any Power other than
Norway in Easter Greenland. Norwegian Denmark to the sovereignty over Greenland.
Government said that the occupation was an Indeed, up till 1921, no Power disputed the
entirely private act but it nevertheless felt Danish claim to sovereignty.
obliged to proceed in the proceedings of the ● The King of Denmark’s claim of sovereignty in
court over the occupation of the territories in Greenland is merely pretentious after it had
Eastern Greenland. lost contact with the country due to the
● The two countries agreed to submit the matter dispparance of the first 2 settlements.
to the PCIJ However, such claim was not disputed. No
DENMARK’S CONTENTION other Power was putting fonward any claim to
● The Norwegian occupation was invalid. The territorial sovereignty in Greenland, and in the
area occupied was at the time subject to Danish absence of any competing claim the King's
sovereignty since Danish sovereignty existed pretensions to be the sovereign of Greenland
over all Greenland it could not be occupied by subsisted.
another Power. ● The founding of the colonies was accompanied
● Denmark’s sovereignty has existed for a long by the grant of a monopoly of trade and thus
time and has been continuously and peacefully legislation was found to be necessary to protect
exercised and had not been contested by any and enforce the monopoly.
Power until now. ● Some ordinances on the prohibition of trading
● Norway by a treaty recognized Danish was restricted to the colonies but it is clear that
sovereignty over Greenland as a whole and it was to apply not only to the exisiting colonies
therefore cannot now dispute it. but to any future colonies that might be
NORWAY’S CONTENTION established.. But other ordinances also
● Denmark possess no sovereignty over the area contained a prohibition of injurious treatment
which Norway occupied since at the time of to Greenlanders which was not limited to the
occupation the area was a terra nullius. colonies but operated in Greenland as a whole
● The area lay outside the limits of Danish ● Legislation is one of the most obvious forms of
colonies in Greenland and that Danish the exercise of sovereign power, and it is clear
sovereignty extended no further than the limits that the operation of these enactments was not
of these colonies. restricted to the limits of the colonies. ​It
therefore follows that the sovereign right in
RULING virtue of which the enactments were issued
cannot have been restricted to the limits of the
RULING REGARDING TERRITORIAL SOVERIGNTY colonies.
● It is the court’s opinion that Norway;s ● Like treaties,binding unilateral
contention that these legislation as well as the declarations can be issued by head of
treaties and conventions between the countries state, heads of government and
reference to “Greenland” only meant the minister for foreign affairs
colonized areas and not Greenland as a whole ● A unilateral statement is however only
or in a geographical sense is without merit. The binding if it is stated in clear and
word Greenland as is meant in the map is to be specific terms
taken in its ordinary meaning and that is
Greenland as a whole.
ARMED ACTIVITIES ON THE TERRITORY
● Taking into consideration the legislations
OF THE CONGO (DEMOCRATIC REPUBLIC
Denmark had enacted applicable to Greenland
OF THE CONGO V. RWANDA)
in generally, the numerous treaties in which
Denmark, with the concurrence of the other
contracting Party, provided for the FACTS
non-application of the treaty to Greenland in
general, and the absence of al1 claim to ● On 28 May 2002 the Government of
sovereignty over Greenland by any other the Democratic Republic of the Congo
Power, Denmark must be regarded as having (DRC) filed in the Registry of the Court
displayed during this period of 1814 to 1915 an Application instituting proceedings
her authority over the uncolonized part of the against the Republic of Rwanda in
country to a degree sufficient to confer a valid respect of a dispute concerning
title to the sovereignty. “massive, serious and flagrant
RULING ON ILHEN DECLARATION violations of human rights and of
● The Ilhen declaration which is the reply given
international humanitarian law” alleged
by M. Ilhen, the Norwegian Minister for Foreign
to have been committed “in breach of
Affairs must be considered.
the ‘International Bill of Human Rights’,
● This declaration by M. Ihlen has been relied on
by Counsel for Denmark as a recognition of an other relevant international
existing Danish sovereignty in Greenland. The instruments and mandatory resolutions
Court is unable to accept this point of view. A of the United Nations Security Council”.
careful examination of the words used and of ● In the Application the DRC stated that
the circumstances in which they were used, as “[the] flagrant and serious violations
well as of the subsequent developments, shows [of human rights and of international
that M. Ihlen cannot have meant to be giving humanitarian law]” of which it
then and there a definitive recognition of complained “result from acts of armed
Danish sovereignty over Greenland, and shows aggression perpetrated by Rwanda on
also that he cannot have been understood by the territory of the Democratic
the Danish Government at the time as having Republic of the Congo in flagrant
done so. However, it is considered that such breach of the sovereignty and
declaration was an agreement obliging Norway territorial integrity of [the latter], as
to refrain from occupying any part of
guaranteed by the Charters of the
Greenland.
United Nations and the Organization of
● The Court considers it beyond all dispute that a
African Unity”.
reply of this nature given by the Minister for
Foreign Affairs on behalf of his Government in ● In order to establish the jurisdiction of
response to a request by the diplomatic the Court, the DRC further contended
representative of a foreign Power, in regard to in its Application that Article 66 of the
a question falling within his province, is Vienna Convention on the Law of
binding upon the country to which the Treaties of 23 May 1969 established
Minister belongs. the jurisdiction of the Court to settle
disputes arising from the violation of
PRINCIPLES peremptory norms (jus cogens) in the
area of human rights, as those norms
were reflected in a number of ● Mindful that the subject-matter of the
international instruments. dispute was very similar in nature to
● The Rwandan government in its that in the case between the Congo
preliminary objection ruled that the and Uganda, and that the reasons as
Court should declare that it lacks to why the Court would not proceed to
jurisdiction over the claims brought an examination of the merits in the
against the Republic of Rwanda by the case between Congo and Rwanda
Democratic Republic of the Congo. needed to be carefully explained, the
● The Court examined 11 bases of Court stated that it was precluded by a
jurisdiction put forward by DRC. number of provisions in its Statute
from taking any position on the merits
of the claims made by the DRC.
RULING ● It recalled, however, “that there is a
fundamental distinction between the
● In its Judgment of 3 February 2006, acceptance by States of the Court’s
the Court ruled that it did not have jurisdiction and the conformity of their
jurisdiction to entertain the Application acts with international law”.
filed by the DRC. It found that the ● Thus, “[w]hether or not States have
international instruments invoked by accepted the jurisdiction of the Court,
the DRC could not be relied on, either they are required to fulfil their
because Rwanda: obligations under the United Nations
○ (1) was not a party to them (as Charter and the other rules of
in the case of the Convention international law, including
against Torture and Other international humanitarian and human
Cruel, Inhuman or Degrading rights law, and they remain responsible
Treatment or Punishment) or for acts attributable to them which are
contrary to international law”.
(2) had made reservations to
them (as in the case of the
Convention on the Prevention PRINCIPLES
and Punishment of the Crime
of Genocide and the ● Case law from both the PCIJ and the
Convention on the Elimination ICJ show that unilateral statements
of All Forms of Racial made by state representatives can
Discrimination), or because create obligations under international
law.
○ (3) other preconditions for the ● Like treaties, binding unilateral
seisin of the Court had not declarations can be issued by heads of
been satisfied (as in the case state, heads of government and
of the Convention on the ministers of foreign affairs.
Elimination of All Forms of ● In its discussion on Article IX of the
Discrimination against Women, Genocide Convention, the Court
the Constitution of the WHO, discussed on the legal effect of the
the Constitution of UNESCO statement made on 17 March 2005 by
and the Montreal Convention Ms. Mukabagwiza, Minister of Justice of
for the Suppression of Unlawful Rwanda.
Acts against the Safety of Civil ● The Court begins by examining
Aviation). Rwanda’s argument that it cannot be
● Since the Court had no jurisdiction to legally bound by the statement in
entertain the Application, it was not question inasmuch as a statement
required to rule on its admissibility.
made not by a Foreign Minister or a confirmation by Rwanda of a previous
Head of Government “with automatic decision to withdraw its reservation to
authority to bind the State in matters Article IX of the Genocide Convention,
of international relations, but by a or as any sort of unilateral
Minister of Justice, cannot bind the commitment on its part having legal
State to lift a particular reservation”. effects in regard to such withdrawal; at
● In this connection, the Court observes most, it can be interpreted as a
that, in accordance with its consistent declaration of intent, very general in
jurisprudence, ​it is a well-established scope.
rule of international law that the Head
of State, the Head of Government and ARMED ACTIVITIES ON THE TERRITORY
the Minister for Foreign Affairs are OF THE CONGO (DEMOCRATIC REPUBLIC
deemed to represent the State merely OF THE CONGO V. UGANDA)
by virtue of exercising their functions,
including for the performance, on FACTS
behalf of the said State, of unilateral
acts having the force of international ● On 23 June 1999, the Democratic
commitments. Republic of the Congo (DRC) filed in
● The Court notes, however, that with the Registry of the Court Applications
increasing frequency in modern instituting proceedings against
international relations other persons Burundi, Uganda and Rwanda “for acts
representing a State in specific fields of armed aggression committed . . . in
may be authorized by that State to flagrant breach of the United Nations
bind it by their statements in respect of Charter and of the Charter of the
matters falling within their purview. Organization of African Unity”.
● This may be true, for example, of ● In addition to the cessation of the
holders of technical ministerial alleged acts, Congo sought reparation
portfolios exercising powers in their for acts of intentional destruction and
field of competence in the area of looting and the restitution of national
foreign relations, and even of certain property and resources appropriated
officials. for the benefit of the respective
● The Court observes that in her respondent States.
statement the Minister of Justice of
Rwanda did not refer explicitly to the RULING
reservation made by Rwanda to Article
IX of the Genocide Convention. ● The Court first dealt with the question
● The statement merely raises in general of the invasion of the DRC by Uganda.
terms the question of Rwandan ● After examining the materials
reservations and simply indicates that submitted to it by the Parties, the
Court found that, in the period
“past reservations not yet withdrawn
preceding August 1998, the DRC had
will shortly be withdrawn”, without
not objected to the presence or
setting out any precise time-frame for
activities of Ugandan troops in its
such withdrawals. eastern border area.
● It follows that the statement was not ● The two countries had agreed, among
made in sufficiently specific terms in other things, that their respective
relation to the particular question of armies would “co-operate in order to
the withdrawal of reservations. insure security and peace along the
● Given the general nature of its common border”. However, the Court
wording, the statement cannot drew attention to the fact that the
therefore be considered as 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 FACTS
conflict with a peremptory norm of ● Mr. Hissene Habre was the President of
general international law is void. the Republic of Chad for 8 years during
a. derived from the analogous which time ​large-scale violations of
rule contained in article 53 human rights were allegedly
of the 1969 Vienna committed, including arrests of actual
Convention on the Law of or presumed political opponents,
Treaties detentions without trial or under
9. No obligation may result for other inhumane conditions, mistreatment,
States from the unilateral torture, extrajudicial executions and
declaration of a State. However, enforced disappearances.
the other State or States ● After his ousting in 1990, and after a
concerned may incur obligations in brief stay in Cameroon, he requested
relation to such a unilateral political asylum from Senegal. His
declaration to the extent that they request was granted.
clearly accepted such a ● In January 2000, Chadian nationals
declaration. filed a complaint against him in the
a. the State or States concerned Dakar (capital of Senegal) ​Tribunal
are in fact bound by their own regional hors classe. ​Unfortunately,
acceptance. Habre was not prosecuted because the
10. A unilateral declaration that has Senegalese Courts held that it had no
created legal obligations for the jurisdiction over him as he is not
State making the declaration Senegalese, the complaints against
cannot be revoked arbitrarily. In him were from Chadian nationals, and
assessing whether a revocation that the Senegalese Code of Criminal
would be arbitrary, consideration Procedure then in force did not provide
should be given to: for such jurisdiction.
● In 2005, Belgium requested
(a) Any specific terms of the extradition, but Senegalese courts held
declaration relating to that it had no jurisdiction on the
revocation; ​
  matter. Senegal referred such case to
the African Union. The Union,
(b) The extent to which those thereafter, mandated Senegal to
to whom the obligations are prosecute and ensure that Habre is
owed have relied on such tried, on behalf of Africa, by a
obligations; competent Senegalese court with
guarantees for fair trial.
(c) The extent to which there ● On February 2009, Belgium instituted
has been a fundamental change proceedings against Senegal, alleging
in the circumstances. that ​Senegal did not comply with
its obligation to prosecute Habre​,
2.8 Hierarchy of sources or to extradite him to Belgium for
2.8.1 Jus cogens norms purposes of criminal proceedings for
2.8.2 Obligations erga omnes crimes of torture and crimes aginst
humanity. This obligation stems from
QUESTIONS RELATING TO THE the maxim, ​aut dedere aut judicare.​
OBLIGATION TO PROSECUTE OR (​Latin for "either extradite or
EXTRADITE prosecute")
(BELGIUM V. SENEGAL) ● Belgium based its claims on the
United Nations Convention Against
Torture and other Cruel, Inhuman cannot use its domestic law as an excuse for
or Degrading Treatment or such violations.
Punishment (UNCAT 1984), as well
as on customary international law. The Court agrees with Belgium that if the State
● Further, Belgium alleged that Senegal in whose territory the suspect is present has
breached its international obligations received a request for extradition, it should
by failing to incorporate in its domestic have agreed to such extradition, in light of the
law the provisions necessary to enable purpose of the Convention. In this case,
the Senegalese judicial authorities to Senegal did not accede to the request of
exercise the universal jurisdiction Belgium. Hence, Senegal breached, and
provided in Article 5 of UNCAT. remained to be in breach of the Convention.
● Two obligations must be taken note of:
○ The obligation under Article
6(2) of the UNCAT which states PRINCIPLES
that, “the State in whose Obligations erga omnes ​pertains to the
territory a person alleged to scope of an obligation of a State to the world
have committed acts of torture or to States Parties to a Convention. According
is present “shall immediately to the treatise by Shaw, it is more procedural
make a preliminary inquiry into than substantive in application, as opposed to
the facts.” jus cogens.
○ The obligation under 1.
Article 7(1) of the UNCAT In this case, both States recognize that the
which provides: “The State duty to extradite or prosecute are erga omnes
party in the territory under obligations but have divergent views in its
whose jurisdiction a person application.
alleged to have committed any
offence referred to in Article 4 Senegal contends that because of financial
is found shall in the cases difficulties, it was not able to create
contemplated in Article 5, if it institutional mechanisms under its domestic
does not extradite him, submit law to prosecute Habre immediately. It posits
the case to its competent however that it has endeavored to follow the
authorities for the purpose of legal procedure in the Convention, and it has
prosecution.” no obligation to extradite.
● Senegal contended that
○ Belgium lacks jurisdiction as a Belgium posits that Senegal should have
result of the absence of a extradited, if it were not able to prosecute. And
dispute between Belgium and such delay in the proceedings have negative
Senegal consequences.
● The question is did Senegal have the
obligation to prosecute or extradite? Erga Omnes Partes in relation to the matter on
And if it did, when did the obligation admissibility
arise? Senegal contends that the claim of Belgium is
not admissible because it does not hold a
RULING particular interest on the issue because the
Senegal had the obligation to prosecute the alleged victims of Habre did not concern
moment the Convention took into force in Belgian citizens.
1987. It ​should have prepared institutional
mechanisms so that its domestic courts According to the Court, the State Parties to a
would have universal jurisdiction over Convention, in this case, the UNCAT, have a
cases involving violations of the UNCAT. It common interest in compliance with the
obligations by the State in whose territory the Application instituting proceedings
alleged offender is present. In other words, ​all against the Commonwealth of Australia
the States parties “have a legal interest” (“Australia”) concerning certain
in the protection of the rights involved​. activities of Australia with respect to
These obligations are defined as “obligations East Timor.
erga omnes partes”. ○ Failed to observe the obligation
to respect the duties and
Since Belgium and Senegal are both States powers of Portugal, the
Parties to the UNCAT, they share a common administering power
interest on the obligations of the States under ○ Objective conduct of Australia
the Convention. Conversely, ​Belgium does that consist in having
not have to prove particular interest on negotiated, concluded and
the matter​, or even to an extent prove that initiated performance of 1989
its citizens have been particularly affected. Treaty with Indonesia
Hence, Belgium has standing, and such claims ○ Right of people of East Timor
are admissible. to self-determination and the
related rights
Divisible erga omnes obligations under Article ● As a consequence, according to the
6 and 7 of UNCAT Application, Australia had incurred
international responsibility both to the
The Court discussed the temporal scope of people of East Timor and Portugal.
obligations: ● The Territory of East Timor
1. Senegal contends that since it became corresponds to the eastern part of the
a party to the UNCAT on 26 June 1987, island of Timor and its capital is Dili,
its obligation to prosecute does not situated on its north coast. In the 16​th
apply to the acts committed by Habre century, East Timor became a colony
before the said date. Moreover, of Portugal and remained there until
2. Senegal contends that Belgium does 1975. The western part of the island
not have the right to engage Senegal’s came under Dutch rule and later
responsibility, since Belgium only became part of independent Indonesia.
became Party to the UNCAT in 1999, ● ​In resolution 1542, the United Nations
and such is a ​divisible erga omnes General Assembly recalled differences
obligation.​ in view of certain territories under the
admin of Portugal and Spain. It
The Court agrees with Senegal. The Court held considered that the territories under
that unless a different intention appears from Portugal (Timor and dependencies)
the treaty, its provisions do not bind a party in were non self-governing and this was
relation to any act which took place before the accepted by Portugal in the wake of
date of the entry into force with respect to that Carnation Revolution.
party. The UNCAT did not intend that such ● Following internal disturbances in East
obligations apply retroactively. Timor, Portuguese civil and military
authorities withdrew from East Timor
and since the departure, Indonesia has
EAST TIMOR JUDGMENT occupied the territory.
(PORTUGAL V. AUSTRALIA) ○ Government of Portugal as
administering power to
FACTS co-operate fully with United
● Ambassador to the Netherlands of the Nations so to enable the people
Portuguese Republic (“Portugal”) filed of East Timor to exercise freely
in the Registry of the Court an
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 ● The claim arose out of the adjudication
self-determination has been in bankruptcy in Spain of Barcelona
recognized by the United Traction, a company incorporated in
Nations Charter and in the Canada
jurisprudence of the Court. It is ● Object of the claim: seek reparation for
one essential principles of damage alleged by Belgium to have
contemporary international been sustained by Belgian nationals,
law. shareholders in the company
● Court also considers that erga omnes ○ The damage was a result of
character of a norm and the rule of acts said to be contrary to
consent to jurisdiction are two different international law committed
things. towards the company by
○ When the nature of the organs of the Spanish State
obligation is invoked, the Court ● The Court found that Belgium lacked
could not rule on the jus standi (right to appear before the
lawfulness of the conduct of a court) to exercise diplomatic protection
state when its judgement of shareholders in a Canadian company
would imply an evaluation of with respect to measures taken against
the lawfulness of the conduct that company in Spain
of another state which is not a
party to the case. Where it is Facts
so, the court cannot act, even ● The Barcelona Traction, Light, and
if the right in question is a right Power Company, Limited (BT) was
erga omnes incorporated in 1911 in Toronto,
Canada, where its head office was
located
● BT formed a number of subsidiary
BARCELONA TRACTION JUDGMENT companies, some in Canada and some
in Spain, to create and develop electric
Disclaimer: this digest reflects my grasp on the power production and distribution
case. Sorry if it’s not super on point I will pay system in Spain
the P200 wrong digest fee if any of u get called
and this digest wasn’t enough :-( ● The Belgian Government alleges that
some years after the first world war,
Topic: Obligations erga omnes BT’s share capital came to be very
● In ​international law​, it has been used largely held by Belgian nationals
as a legal term describing obligations ● The Spanish Government contends that
owed by ​states​ towards the community this claim is not proven
of states as a whole
● An ​erga omnes​ obligation exists ● BT issued several series of sterling
because of the universal and bonds
undeniable interest in the perpetuation ● In 1936, the servicing of the bonds
of critical rights (and the prevention of was suspended on account of the
their breach) Spanish civil war
● Consequently, any state has the right ● After the war, the Spanish exchange
to complain of a breach control authorities refused to authorize
● Examples of erga omnes norms include the transfer of foreign currency
piracy​and ​genocide necessary for the resumption of the
servicing of the bonds
The Case ● The Belgian Government complained
● The Spanish Government said that that company
transfers couldn’t be authorized unless
it were shown that the foreign currency ● Objection 3 of Spanish Government:
was to be used to pay debts arising Belgian Government lacked capacity to
from the genuine importation of submit any claim in respect of wrongs
foreign capital into Spain done to a Canadian company, even if
the shareholders were Belgian
● In 1948, 3 Spanish holders of BT ● Objection 4 of Spanish Government:
sterling bonds petitioned the court of local remedies available in Spain had
Reus for a declaration adjudging the not been exhausted
company bankrupt, on account of
failure to pay the interest on the bonds Belgian Government’s jus standi
● A judgement of the same was given ● When a State admitted into its territory
● Pursuant to this judgement, the foreign investments or foreign
principal management personnel of the nationals, it was bound to extend to
2 subsidiary companies were dismissed them the protection of the law and
and Spanish directors appointed assumed obligations concerning the
● New shares of the subsidiary treatment to be afforded them
companies were created and another
company acquired complete control of ● The Court notes the distinction
the undertaking in Spain between the rights of the company and
those of the shareholder
● Proceedings were brought without ● A wrong done to the company
success in the Spanish courts by frequently caused prejudice to its
various companies or persons before it shareholders, but this did not imply
was submitted to the ICJ that both were entitled to claim
● The Court found that BT was not compensation
represented before the Reus court in ● For responsibility towards the
1948 shareholders to be involved, the act
complained of must be aimed at the
Proceedings before the International direct rights of shareholders (which
Court and the Nature of the Claim was not the case here since the
● The Belgian Government filed the Belgian Government had itself
Application with the Court admitted that it had not based its claim
● The Spanish Government gave four on an infringement of the direct rights
preliminary objections to the of shareholders)
Application ● An injury to the shareholder’s interests
● The Court rejected the first and second resulting from an injury to the rights of
and joined the third and fourth to the the company was insufficient to found
merits a claim

● The claim submitted to the Court had ● Where it was a question of an unlawful
been presented on behalf of national act committed against a company
and juristic persons, alleged to be representing foreign capital, the
Belgian national and shareholders in BT general rule of international law
● Object of Application: reparation for authorized the national State of the
damage allegedly caused to those company alone to exercise diplomatic
persons by the conduct, said to be protection for the purpose of seeking
contrary to international law, of various redress
organs of the Spanish State towards
The Court’s Decision such obligation in particular is in
● Since no jus standi before the Court question, in a specific case, that all
had been established, it was not for States have a legal interest in its
the Court to pronounce upon any other observance.​ In order to bring a claim
aspect of the case in respect of the breach of such an
obligation, a State must ​first establish
In relation to Obligations ​erga omnes its right to do so​, for the rules on the
Pertinent paragraphs subject rest on two suppositions:
● [par. 33] “When a State admits into its ○ "The first is that the defendant
territory foreign investments or foreign State has broken an obligation
nationals, whether natural or juristic towards the national State in
persons, it is bound to extend to them respect of its nationals.
the protection of the law and assumes ○ The second is that only the
obligations concerning the treatment to party to whom an international
be afforded them. These obligations, obligation is due can bring a
however, are neither absolute nor claim in respect of its breach."
unqualified. In particular, ​an essential (Reparationfor Injuries
distinction should be drawn between Suflered in the Service of the
the obligations of a State towards the United Nations, Advisory
international community as a whole, Opinion, I.C.J. Reports 1949,
and those arising vis-à-vis another pp. 181-182.)
State in the field of diplomatic In the present case it is thereforv
protection​. By their very nature the essential to establish whether the
former are the concern of all States.​ In losses allegedly suffered by Belgian
view of the importance of the rights shareholders in Barcelona Traction
involved, all States can be held to have were the consequence of the violation
a legal interest in their protection; they of obligations of which they were the
are obligations ​erga omnes.” beneficiaries. In other words: ​has a
● [par. 34] Such obligations derive, for right of Belgium been violated on
example, in contemporary inter- account of its nationals' having
national law, from the​ outlawing of suffered infringement of their rights as
acts of aggression, and of genocide, ​as shareholders in a Company not of
also from the principles and rules Belgian nationality?
concerning the basic rights of the
human person, including protection ● [par. 86] Hence the Belgian
from ​slavery and racial discrimina- Government would be entitled to bring
tion.​ Some of the corresponding rights a claim if it could show that ​one of its
of protection have entered into the rights had been infringed and that the
body of general international law acts complained of involved the breach
(Reservations to the Convention on the of an international obligation arising
Prevention and Punishment of the out of a treaty or a general rule of law.
Crime of Genocide, Advisory Opinion, ○ However, Belgians contend
I.C.J. Reports 1951,​ ​p. 23); others are that [par 86] a claim can
conferred by international instruments accordingly be made when
of a universal or quasi-universal investments by a State's
character. nationals abroad are thus
● [par. 35] ​Obligations the performance prejudicially affected, and that
of which is the subject of diplomatic since such investments are
protection are not of the same part of a State's national
category​. ​It cannot be held, when one 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