The Law of Treaties transform the extent of the TERMINATION AND WITHDRAWAL obligations still to be performed 1. NOTE: A state may only denounce or withdraw from Hungary vs Slovakia a treaty where the parties intended to permit such a 1. A treaty (1977 Treaty) was entered between possibility OR where the right may be implied by the Hungary and Czechoslovakia regarding the nature of the treaty. (Article 56) construction and operation of the Gabcikovo- a. Such party must give at least 12 months’ Nagymaros System of Locks on the shared notice of its intention to denounce or Bratislava-Budapest section of the Danube river. withdraw from the treaty 2. This was aimed at the production of hydroelectricity, 2. A treaty may come to an end and terminate if: improvement of navigation of the Danube, and a. Its purpose has been fulfilled protection of the areas along the banks against b. It is clear that it is limited in time and that flooding. time has passed 3. The contracting parties undertook to ensure that the c. In accordance with a provision in the quality of water in the Danube was not impaired as a treaty or by consent of all parties (Articles result of the project, and that compliance with the 54 and 57) protection of nature in connection with the d. A state may also be entitled to terminate a construction and operations would be observed. bilateral treaty if there is material breach of 4. As a result of intense criticism from its people, its obligations under the treaty (Article 60) Hungary declared the suspension of the project. i. MATERIAL BREACH (Article 60[3]) 5. This suspension was repeatedly extended until the consists of: final abandonment of the project in Nagymaros site. 1. Repudiation of the treaty not 6. Czechoslovakia then started investigating alternative permitted by the VCLT OR solutions. One of them is "Variant C", which is a 2. Violation of a provision that unilateral diversion of the Danube by is essential to Czechoslovakia on its territory 10km upstream of the accomplishing the object Dunakilit site. and purpose of the treaty. 7. Talks between Hungary and Czechoslovakia ii. MATERIAL BREACH OF A terminated when Hungary sent a Note Verbale MULTILATERAL TREATY (Article terminating the 1977 Treaty. 60[2]): other parties may 8. Following the receipt of the Note Verbale, unanimously decide to suspend the Czechoslovakia began work to enable the Danube to operation of the treaty in whole or in be closed and proceeded to the damming of the part or to terminate it either in river. relations between themselves and 9. Hungary argues that it is entitled to terminate the the defaulting state or as between 1977 Treaty on the ground Czechoslovakia’s all the parties. construction and putting into operation of e. Supervening Impossibility of Variant C amounted to a material breach. Performance Due to the ‘permanent 10. No material breach. disappearance or destruction of an object 11. May 1922: Hungary sent a termination letter for the indispensable for the execution of the preparatory works to divert the water. treaty’, it becomes impossible for a state to Czechoslovakia began construction and laying the perform the treaty-based obligation. Only a foundation but it has not diverted the waters yet. The permanent impossibility will be relevant mere act of constructing the foundation and (Article 61) structures of the project does not constitute material i. Ex. Submergence of an island, breach. drying up of a river, destruction of a 12. Czechoslovakia only violated the treaty when it dam diverted the waters of the Danube in October 1992, f. Rebus Sic Stantibus or a fundamental upon the completion of the project. change of circumstances. (Article 62) MAY 13. When Hungary notified Czechoslovakia of the ONLY BE INVOKED IF: termination of the 1977 Treaty in May 1922, there i. There is an objective change of was as yet no material breach. circumstance 14. Hungary argued that there was rebus sic ii. Change was unforeseeable at the stantibus: fundamental changes in time the treaty was concluded AND environmental law and political law. iii. Existence of the now changed 15. On the element of objective change – the project circumstances ‘constituted an would harm the environment after so many essential basis of the consent of international laws made to protect the environment the parties to be bound by the (Rio Summit, Rio Declaration). treaty AND 16. Furthermore, the change in political status of Czechoslovakia as Czech Republic/Slovak Republic. 17. YES there is an objective change. 18. On the element of it being unforeseeable – that if such. It was on the basis of the general principle of they continue with the project, it will be harming the international law – that if one party breaches an environment, affecting the water quality and marine obligation, the other party may also do the same. life of the Danube. Therefore, the Council, whose jurisdiction was 19. ICJ said that change is actually not unforeseeable, derived from the treaties, and was entitled to deal as both countries have foreseen that changes. only with matters arising under them, must be Evidence to this is the provisions of the treaty that competent. ALSO, a “special regime” calls for provide for the obligation to negotiate in order to interpretation and application of Art 82 and 83 of the mitigate, minimize and address the environmental convention, therefore ICAO has jurisdiction. hazards that the project may bring. UK vs Iceland 20. REBUS SIC STANTIBUS NOT MET. 1. This case is between UK and Iceland concerning the 21. As it failed to meet an element, Hungary’s contention extent of their fishing zone. fails. The changes it was invoking were actually 2. In 1961, there was an Exchange of Notes between foreseeable and UK and Iceland to the effect that as of 1961, each India vs Pakistan will have 12 nautical miles from their coastline to 1. India and Pakistan have 2 existing treaties relating to have exclusive fishing jurisdiction. aviation: Convention on International Civil Aviation 3. It also provides that if there is a need to extend the AND International Air Service Transit Agreement. limit of the fishing jurisdiction, such must be 2. India suspended overflights over Indian territory by submitted to the determination of ICJ. Pakistan civil aircraft on February 4, 1971, because 4. In the 1990s, Iceland had advancements in their of a hijacking incident involving the diversion of an fishing technique and fishing vessels. Indian aircraft to Pakistan. 5. As an archipelagic state, Iceland depended on 3. After this cessation, both states adopted the fishing and it reached the point where it was Tashkent Declaration which they agreed that there is imperative to preserve fish stocks from exploitation. an immediate resumption of overflights across each 6. So, Iceland claimes that the 12 nautical miles should other’s’ territory on the same basis as that prior to be extended because there is an objective change the hostilities. (technological advancement in fishing), a 4. Pakistan thought that it would mean the resumption fundmanetal change beyond their control, to respond of the overflights on the basis of the 2 treaties. to the issue of over exploitation. 5. India understood that as the 2 treaties were 7. So, Iceland extended their fishing zone unilaterally suspended, the overflights shall only resume on the from 12 miles to 50 miles. basis of a “special regime”, that flights are allowed 8. UK objected because they must go to ICJ first, and only upon permission. That such “special regime” Iceland cannot unilaterally extend. has replaced the treaties. 9. Iceland argues that since fundamental change of 6. Pakistan took the view that this action was in breach circumstsance, the 1960 Exchange of Notes is not of the Treaties and complained to the Council of the applicable. International Civil Aviation Organization (ICAO). 10. ICJ reject Iceland’s argument. Iceland must be 7. Pakistan contends that ICAO has jurisdiction on the bound by the 1961 Exchange of Notes. basis of Art 84 of the Convention and Art 2 of the 11. The change of circumstances alleged by Iceland Transit Agreement. cannot be said to have transformed radically the a. That if there is a disagreement on the extent of the jurisdiction that was imposed in the interpretation, it shall be decided by the 1961 Exchange of Notes. Council and appeal will be to the PCIJ. a. Objective Change – yes, in fishing 8. India filed an appeal on the decision of ICAO to ICJ. technology 9. Pakistan objected to the jurisdiction of ICJ, claiming b. Unforeseeable - yes, in fishing technology that only questions relating to the interpretation and c. Essential basis of consent and radical application can be decided by the Council and on transformation – no, the original Appeal. Also, as the treaties are no longer in force, undertaking (to submit the case to ICJ) has ICJ has no jurisdiction. never canged, and did not change despite 10. India objected to the jurisdiction of ICAO, claiming the changes in fishing techniques. The that the treaties are terminated so ICAO has no obligation remains the same (to submit the jurisdiction. Also, as the special regime governs, the jurisdiction to ICJ). The obligation was not council has no jurisdiction. radically transformed. 11. ICJ has jurisdiction. It would be absurd if just MODULE 4 because it is unilaterally suspended by one state, The Actors in the International Legal System the courts will lose its jurisdiction. Because 1. Subjects of International Law - having a legal otherwise, how will you question the validity of such personality under international law suspension? ALSO, questions of jurisdiction come 2. Legal personality – having rights, powers and/or under “questions of interpretation and application”. obligations; having legal capacity in the creation of Therefore, within the jurisdiction of the court. rights and/or obligations 12. ICAO has jurisdiction. India, in suspending overflights was acting outside the Treaties in doing 3. Active vs Passive legal personality – subject of c. Government regulation (“regulating”) /object of regulation d. Sovereignty (“regulated”) e. Statehood is important as only states can 4. Actors in the International Legal System create international law a. States 14. Issue of Recognition: b. International Organizations a. Declaratory View – creation of states is a c. Individuals matter of law and fulfillment of a legal criteria d. Group of Individuals (mainly, effectiveness) e. Territories Other than States b. Constitutive View – recognition of other 5. Principle Features of International Legal states is a precondition for statehood (not Personality favored and has many pitfalls; fulfillment of a. Capacity to bring claims with respect to Montevideo criteria is enough) breaches of international law State Government b. Capacity to conclude treaties Legal entity under Representative of the c. Enjoyment of privileges and immunities from international law state that is entitled to act the exercise of national jurisdiction on the State’s behalf 6. Non-State Actors derive their legal personality from Actual effects of lack of A decision not to States. Therefore, States can limit rights and recognition of a state are recognize a government obligations possessed by NSA. of greater legal that claims to represent a 7. Rights and obligations depend upon the needs of the importance than those territorial entity is not the community, as determined by the State. relating to lack of same as denying that the 8. Individuals – possess rights and obligations recognition of a entity in question qualifies bestowed upon them by the State (by virtue of government for statehood treaties, international agreements) 15. Acquisition of New Territory a. Rights: human rights law, trade law, laws of a. Cession – purchase of territory from armed conflict another State; acquiring state must respect b. Obligation: international criminal law (ex. potential rights of third states war crimes, genocide, crime of aggression, b. Accretion – wherein a new land is gradually crime against humanity) created naturally (in IL, can pertain to all and 9. BEFORE GOING TO INTERNATIONAL COURT, an any body of water that can actually form new individual must: lands or form new island); MUST BE a. Exhaust Domestic Remedies RESULT OF NATURAL FORCES; accepted b. Principle of Subsidiarity (principle in IL) - as new territory if it does not infringe upon what individuals can accomplish by their the rights of other states/states have given own initiative and efforts should not be taken their consent from them by a higher authority c. Occupation – terra nullius; obtaining title to 10. International Organizations – DEFINITION: territory that has never been subject of any established by a treaty or other instrument governed State; acquired when the state by international law; possessing its own international demonstrates that it exercises effective legal personality control over the territory and that it has the a. Rights and Obligations: conclude intention of obtaining title agreements; immunity from jurisdiction by d. Prescription – obtaining title to territory national courts previously under the sovereignty of another 11. Group of Individuals state; through implied consent on the part of a. Peoples – generally recognized to possess the State whose rights are being displaced right to self-determination; right to secede to by the acquiring State mother state 16. Right to Self-Determination – all people have the b. Indigenous Groups – right to full enjoyment right to freely determine their political status and as a collective/individuals of all human rights pursue their economic, social, and cultural and fundamental freedoms; enjoy or free development from any kind of discrimination a. Internal Self-Determination: Autonomy – c. Insurgent Groups and National Liberation within the framework of an existing state Movements – Additional Protocol 1 of 1977 b. External Self-Determination: Secession – Geneva Convention (should only target arises in the most extreme cases military objects and spare individuals and c. External Self Determination cultural sights); right to conclude treaties i. Colonial Peoples – people governed 12. States are the only actor that can create as part of a colonial empire international law. All other actors derive their rights ii. Alien subjugation – people subject and obligations from States. to alien subjugation, domination, 13. Requirements for Statehood (Montevideo Criteria) exploitation a. Permanent Population iii. No meaningful autonomy – people b. Defined Territory denied any meaningful exercise of its right to self-determination within included and therein remained intact under the the state Treaty. 17. Illegality in the Creation of a State – potentially 5. By principle of contiguity, it belongs to the power emerging state was created in flagrant violation of having sovereignty over the Philippines. basic norms of international law 6. Netherlands maintains that Spain’s discovery is not a. Bangladesh – India invaded Pakistan proved. Even if Spain had a title, such had been lost. b. Turkish Republic of Northern Cyprus – 7. They contend to have exercised their right of Turkey invaded and attacked Cyprus sovereignty since 1648. c. Kosovo – NATO launched aerial strikes 8. Netherlands, through the East India Company, have against Yugoslavia possessed and exercised the rights of sovereignty 18. When Statehood can be denied: out of conventions entered into with the natives and a. Ex Injuria Jus Non Oritur – statehood to princes of the island, establishing the suzerainty (in have been denied to entities that would which one state controls the foreign policy and otherwise seem to fulfill the formal criteria on relations of a tributary state, while allowing the the basis of the principle that legal rights tributary state to have internal autonomy) of the cannot arise from wrongful conduct Netherlands over the territories of these princes, b. Its creation violates the local including Palmas. population’s right of self-determination 9. Max Huber ruled in favor of the Netherlands. c. Territorial entity created through the 10. ON DISCOVERY CONFERRING SOVEREIGNTY: unlawful use of force Discovery alone without any subsequent act cannot 19. State Succession – replacement of one state by suffice to prove sovereignty over Palmas. As there is another in the responsibility for the international no sovereignty, abandonment by one State that relations of territory another may take place does not arise. a. Tabula Rasa Approach – population of the 11. DISCOVERY CREATING AN INCHOATE RIGHT: succeeding territory ceases to be protected The prevailing view in the 19th century was, an by human rights conventions until the inchoate title must be completed within a reasonable emerging state decides to become a party period by the effective occupation of the region i. XPN: territorial treaties; boundary claimed to be discovered. A title that is inchoate treaties cannot prevail over a definite title found on the ii. UTI POSSIDETIS JURIS – continuous and peaceful display of sovereignty. geographical boundaries created by 12. ON THE PRINCIPLE OF CONTIGUITY: It cannot be treaties remain in force regardless admissible as a legal method of deciding territorial of whether or not the boundaries sovereignty for it will lead to arbitrary results. It is coincide with ethnic, tribal, religious impossible to show the existence of a rule of positive or political affiliations international law to the effect that islands situated b. Continuity Approach - protection continues outside territorial waters should belong to a State notwithstanding change in government of from the mere fact that its territory forms the terra the State party, including dismemberment in firma (nearest continent or island). more than one State or State succession 13. ACT OF EFFECTIVE APPREHENSION: If the claim 20. Extinction – state may cease to exist if it of sovereignty is based on the continuous and disintegrates and subsequently splits into a range of peaceful display of authority—the acts of East India new states; it may alter its legal status after its own Company must be assimilated as acts of free will and dissolve itself Netherlands itself. It gave the Dutch East Asia Island of Palmas (Netherlands vs US) Company, although not recognized as members of Regardless of whether a claim to title is based in the community of nations, with public powers for occupation or prescription, it must rest on the effective acquisition and administration of colonies. Existence possession of the territory. of Dutch rule is proved by the fact that the Dutch flag 1. On January 23, 1925, US and Netherlands referred was being waved by the people of the island, the their dispute concerning sovereignty over the Island company also exercised rights of suzerainty over of Palmas to arbitration by a sole arbitrator, Max Palmas, the natives sent yearly presents as token of Huber, who was asked to determine whether the their submission, and were obliged to give Island of Palmas in its entirety formed a part of the assistance in case of distress. territory belonging to US or Netherlands 14. Thus, Netherlands succeeded in establishing its 2. US argues that the discovery was based on the claim to sovereignty on the title of peaceful and Treaty of Munster, wherein Netherlands and Spain continuous display of State authority. It is so are part of. open and public that is to say that it was in 3. She hinges her title on cession, as successor to the conformity with usages as to exercise of rights of Spain over the Philippines and in the first sovereignty over colonial States. place of discovery. Spain’s inchoate title is derived 15. ACT OF EFFECTIVE APPREHENSION: By the time from its discovery of Palmas in the 16th century. a dispute had arisen, in 1906, the arbitrator found 4. When Spain ceded the Philippines to the US under that the establishment of Dutch authority had already the Treaty of Paris, the Island of Palmas was reached such a degree of development that the importance of maintaining this state of things ought pursue their political, economic, to be considered as prevailing over an inchoate social and cultural development claim, possibly based either on discovery in very within the framework of an existing distant times and unsupported by occupation or state. A right to external self- mere geographical position. determination (statehood), on the Secession of Quebec other hand, only arises in the most Right to Self-Determination: Not applicable to Quebec, extreme of cases. since they were not under any of the following: a) Under iii. In the case at bar, Quebec did not colonial empire, b) Subject to alien subjugation, meet any of the situations domination, or exploitation, c) Denied meaningful provided under internal or exercise of its right to internal self-determination. external self-determination, which 1. In 1980, Under Parti Quebecois, a referendum was may justify it to invoke the same. held regarding Quebec’s separation from Canada. It Quebec does not meet the threshold resulted in 60% of voters wanting to remain in of a colonial people or oppressed Canada. people since they were already 2. In 1982, the federal government amended the declared independent by Britain nor Constitution to gain full independence from Britain so can it be suggested that Quebecers that Britain permission will no longer be required to have been denied meaningful amend Canadian laws, and constitutional powers. access to government to pursue 3. In 1995, the province of Quebec experienced a their political, economic, cultural and movement wherein some Quebecers wished to social development. Reason being, unilaterally secede and split from Canada. that Quebecers occupy prominent 4. A 2nd referendum was held. 50.6% of the voters of positions within the government of Quebec wanted to remain part of Canada. Canada. The population of Quebec 5. So the federal government submitted 3 reference is equitably represented in questions to the SC requesting an opinion regarding legislative, executive, and judicial the legality of Quebec’s separation from Canada. institutions. 6. The 3 questions were addressed to the court: c. In the event of a conflict between domestic a. Can the National Assembly, legislature or and international law on the right of the government of Quebec effect the secession National Assembly, legislature or of Quebec from Canada unilaterally? government of Quebec to effect the i. NO, unconstitutional on the secession of Quebec from Canada grounds of democracy, unilaterally, which would take precedence in constitutionalism and the rule of Canada? law, federalism, and protection i. By reason of the unconstitutionality for minorities. Due to the of the secession, it cannot be said complexity and importance of that there is a conflict between these values, Quebec cannot international and domestic law. choose to unilaterally secede Unilateral Declaration of Independence Kosovo without addressing each principle 1. Kosovo, a region that is populated by Albanian and how their separation will Muslims, was once a part of Yugoslavia. affect each principle. 2. When it was broken up into various states in the b. Does international law give the National 1990s, Kosovo was absorbed by Serbia, a Assembly, legislature or government of predominantly Christian nation. Quebec the right to effect the secession of 3. When Kosovo attempted to become independent in Quebec from Canada unilaterally? In this 1999, Serbia sent its armed forces in a campaign of regard, is there a right to self-determination ethnic cleansing of Albanian Muslims. under international law that would give the 4. Eventually, the North Atlantic Treaty Organization National Assembly of Quebec the right to (NATO), an intergovernmental military alliance effect the secession of Quebec from Canada created to safeguard the freedom and security of the unilaterally? international community, intervened in the war. But i. NO. International law does not thousands of Albanian Muslims already murdered. permit Quebec to unilaterally 5. To put an end to the armed conflict, UN Security separate. Council authorized the establishment of an ii. In this case, the SC of Canada international civil presence in Kosovo to provide an made a distinction between ‘internal’ interim administration which will oversee the self-determination and ‘external’ development of a democratic institution. self-determination. It noted that the 6. The United Nations Administration Mission in right to self-determination of a Kosovo (UNMIK) exercises all legislative, executive, people is normally fulfilled by and judicial authority. Its principal responsibilities internal self-determination was the organization and overseeing of provisional (autonomy) wherein people may institutions for democratic self-government pending a political settlement in Kosovo. 7. Later, the Security Council intended to start a political process to determine Kosovo’s future status. Negotiations between Serbia and Kosovo began but were unable to reach an agreement on Kosovo’s status. Thus, Martti Ahtisaari, the Special Envoy to the UN Secretary-General, recommended that the only viable option for Kosovo would be independence. 8. In February 2008, a newly formed Assembly of Kosovo declared Kosovo’s independence from Serbia and the establishment of a sovereign state. 9. The declaration was decided at a meeting where 109 out of 120 members of the Assembly of Kosovo voted, wherein all members voted to issue the declaration of Independence. 10. This was not submitted to the Special Representative of the Secretary General and was not published in the Official Gazette of the Provisional Institutions of Self-Government of Kosovo. 11. Serbia informed the Secretary-General that it had adopted a decision stating that that declaration represented a forceful and unilateral secession of a part of the territory of Serbia, and did not produce legal effects either in Serbia or in the international legal order. 12. An emergency public meeting took place in which the President of Serbia denounced the declaration of independence as an unlawful act which had been declared null and void by the National Assembly of Serbia. 13. Serbia sought to have the court's opinion on whether this declaration was in breach of international law. 14. The Court ruled that the adoption of the declaration did not violate any applicable rule of international law. 15. During the 18th-20th centuries, there were numerous instances of declarations of independence which sometimes resulted in the creation of a new State. In no case, however, does it suggest that the act of promulgating the declaration was regarded as contrary to international law. The international law contained no prohibition of declarations of independence. The Court noted that international law did not preclude Kosovo from issuing a declaration of independence. 16. When compared with the Quebec Secession case, the Kosovo people arguably have the right to external self-determination or statehood based on the abuses that they have suffered at the hands of the Serbian people.