Sources of international laws

Sources of International Laws
Question:
Where does international law come from and how is it made ?
Problem:
There is no “Code of International Law”. International law has no Parliament
and nothing that can really be described as legislation. While there is an
International Court of Justice and a range of specialised international courts
and tribunals, their jurisdiction is critically dependent upon the consent of
States and they lack what can properly be described as a compulsory
jurisdiction of the kind possessed by national courts.
Sources of International Law By; Dr. Shivani Singh
1

Article 38
1. The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a) international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b) international custom, as evidence of a general practice accepted as law;
c) the general principles of law recognized by civilized nations;
d) subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto.
(Ex Aequo Et Bono is a Latin term which means what is just and fair or according to equity
and good conscience. Something to be decided ex aequo et bono is something that is to
be decided by principles of what is fair and just. A decision-maker who is authorized to
decide ex aequo et bono is not bound by legal rules but may take account of what is just
and fair.)
2

Object of Art 38:
Article 38(1) of the statutes of ICJ provides a reflection of the sources of
international law, though not accurate and Article 38 did not expressly
mention ‘sources' but it is usually invoked as sources of international law.
Sources of international law can be characterized as ‘formal' and ‘material'
sources, though the characterisation is not by hierarchy but for clarification,
therefore,
Article 38(1)(a-c),that is, conventions or treaties ,custom and general
principles are formal sources whereas;
Article 38(1)(d) that is, judicial decisions and juristic teachings are ‘material
sources’.
Formal sources confer upon rules an ‘obligatory character', while material
sources comprise the ‘actual content of the rules'
3

Sources as per Art 38
The Statute of the ICJ, Art. 38 identifies following sources:-
(a)Treaties between States;
(b)Customary international law derived from the practice of States;
(c)General principles of law recognized by civilised nations; and, as
subsidiary means for the determination of rules of international law:
(d)Judicial decisions and the writings of “the most highly qualified
publicists”.
This list is no longer thought to be complete but it provides a useful
starting point.
4

Treaty: Definition and forms
Treaties are the principal source of Public International Law.
Article 2 (1)(a)of the Vienna Convention on the Law of Treaties, 1969 defines a
‘treaty’ as;
‘an international agreement concluded between States in written form
and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its
particular designation’.
Treaties are commonly called 'agreements', 'conventions', ‘protocols' or
‘covenants' , and less commonly ‘exchanges of letters'. Frequently,
‘declarations' are adopted by the UN General Assembly. Declarations are not
treaties, as they are not intended to be binding, but they may be part of a
process that leads ultimately to the negotiation of a UN treaty. Declarations
may also be used to assist in the interpretation of treaties.
5

Treaty: Types
 A treaty is an agreement between sovereign States (countries) and in some cases
international organisations, which is binding at international law. An agreement
between an Australian State or Territory and a foreign Government will not,
therefore, be a treaty. An agreement between two or more States will not be a
treaty unless those countries intend the document to be binding at international
law.
 Treaties can be
 bilateral (between two States)
or
 multilateral (between three or more States).
Treaties can also include the creation of rights for individuals.
6

Treaty: A source of law or a source of
obligation under law
A treaty is not a source of law so much as a source of obligation under law. Treaties
are binding only on States which become parties to them and the choice of whether or
not to become party to a treaty is entirely one for the State – there is no requirement
to sign up to a treaty.
Binding force in Treaty:
Why is a treaty binding on those States which have become parties to it ?
The answer is that there is a rule of customary international law – pacta sunt servanda
(Latin for "agreements must be kept") – which requires all States to honour their
treaties.
That is why treaties are more accurately described as sources of obligation under
law.
7

Treaty : An authoritative statements of
customary law
Many treaties are also important as authoritative statements
of customary law. A treaty which is freely negotiated
between a large number of States is often regarded as
writing down what were previously unwritten rules of
customary law. That is obviously the case where a treaty
provision is intended to be codificatory of the existing law.
A good example is the Vienna Convention on the Law of Treaties, 1969. Less than half
the States in the world are parties to it but every court which has considered the
matter has treated its main provisions as codifying customary law and has therefore
treated them as applying to all States whether they are parties to the Convention or
not.
8

Treaty: As an Evidence of Customary Law
When it intends to codify:
Where a treaty provision codifies a rule of customary law the source of law is the
original practice and opinio juris – the treaty provision is merely evidence. But that
overlooks the fact that writing down a rule which was previously unwritten changes
that rule. From that time on, it is the written provision to which everyone will look and
debates about the extent of the rule will largely revolve around the interpretation of
the text rather than an analysis of the underlying practice.
When it doesn’t intend to codify:
Moreover, even where a treaty provision is not intended to be codificatory, but rather
is an innovation designed to change the rule, it can become part of customary law if it
is accepted in practice.
9

(Contd…)
The fact of a large number of States agreeing upon a treaty provision
is itself an important piece of State practice. If those and other States
subsequently apply the treaty provision – especially where they are not
parties to the treaty – then it can quickly become part of customary
international law. This consideration has led some writers to
distinguish between “traités contrats” (contractual treaties) which are
only agreements between the parties and traités lois (law-making
treaties). In my view this confuses rather than assists. All treaties are
contractual as between their parties. But some also have an effect on
the general law.
10

(Contd…)
 “Traités contrats” (contractual treaties) which are only agreements between the parties
:
Also called as Particular treaties because:
limited number of parties
or
Limited character of its subject
 “Traités lois” (law-making treaties).
Also called as general treaties because:
Accepted by large number of the States
Or
wide content that has universal importance
11

Treaty: Nature based classification
 Legal:
Indicate to laws
United Nations Charter
WTO agreement
 Normative:
Indicate to norms with discretion to develop law on that
basis.
International Labour Organization
Genocide Convention, 1949
12

RIGHT OF PASSAGE OVER INDIAN
TERRITORY CASE
Portugal v. India
ICJ Reports 1960, p.6
13

Portugal India
Portugal claims a right of passage between Daman and the
enclaves, and between the enclaves, across intervening
Indian territory.
Portugal argument is vague and contradictory character
• Imp: To the extent necessary for the exercise of its
sovereignty over the enclaves,
• subject to India's right of regulation and control of the
passage claimed, and
• without any immunity in Portugal's favour.
Imp: Admission by Portugal that the right is subject to India's
regulation and control as the territorial sovereign,
But the right is not accompanied by any immunity, even in the case
of the passage of armed forces.
Claim:
India is under obligation so to exercise its power of
regulation and control as not to prevent the passage
necessary for the exercise of Portugal's sovereignty over
the enclaves.
Claim:
This right of passage asked by Portugal, with correlative obligation
upon India, may give rise to delicate questions of application. but
that is not, in the view of the Court, sufficient ground for holding
that the right is not susceptible of judicial determination with
reference to Article 38 (1) of the Statute.
Court: Any question related to application and practical difficulties is not sufficient ground for
holding that the right is not susceptible of judicial determination with reference to Article 38 (1) of the
Statute.
14

Overview: Whether the right of passage of military personnel and arms
should have the same right of passage over Indiana territory as that of
private persons and goods.
The Portuguese possessions in India included the two enclaves of Dadra and Nagar-Aveli which, in mid-
1954, had passed under an autonomous local administration. Portugal claimed that it had a right of
passage to those enclaves and between one enclave and the other to the extent necessary for the exercise
of its sovereignty and subject to the regulation and control of India ; it also claimed that, in July 1954,
contrary to the practice previously followed, India had prevented it from exercising that right and that that
situation should be redressed. A first Judgment, delivered on 26 November 1957, related to the jurisdiction
of the Court, which had been challenged by India. The Court rejected four of the preliminary objections
raised by India and joined the other two to the merits. In a second Judgment, delivered on 12 April 1960,
after rejecting the two remaining preliminary objections, the Court gave its decision on the claims of
Portugal, which India maintained were unfounded.
The Court found that Portugal had in 1954 the right of passage claimed by it but that such right did
not extend to armed forces, armed police, arms and ammunition, and that India had not acted
contrary to the obligations imposed on it by the existence of that right.
15

16

Contentions: Portugal
 Whereas on 24 July the Portuguese Government requested the necessary transit
facilities for the despatch of reinforcements to Dadra; whereas on 26 July, while
confirming the earlier request, it asked that a few delegates of the Governor of
Daman (if necessary limited to three) should be enabled to go to Nagar-Haveli, in
order to enter into contact with the population, examine the situation, and take the
necessary measures on the spot.
 Whereas, in a note of 28 July, the Government of India refused these two requests.
 Whereas the attitude adopted by India is thus in two respects contrary to the duty
imposed upon it by international law, since instead of protecting Portugal against
the unlawful enterprise with which the latter was threatened, it placed Portugal in a
situation in which it was impossible for that State to defend itself against that
enterprise;
17

Contentions: India
 The events that took place in Dadra on 21-22 July 1954 resulted in the overthrow
of Portuguese authority in that enclave. This created tension in the surrounding
Indian territory. Thereafter all passage was suspended by India. India contends that
this became necessary in view of the abnormal situation which had arisen in Dadra
and the tension created in surrounding Indian territory.
18

Arguments: Sovereignty
Portugal India
The Treaty of Poona
of 1779 and on
sanads, issued by the
Maratha ruler in 1783
and 1785, conferred
sovereignty on
Portugal over the
enclaves with the
right of passage to
them.
• The Treaty of 1779 was not validly entered into and never became in law a
treaty binding upon the Marathas.
• The treaty concluded as long ago in eighteenth century, should not be
judged upon the basis of practices and procedures which developed later.
• The Treaty, includes the two sanads of 1783 and 1785, and taken together
did not operate to transfer sovereignty over the assigned villages to Portugal,
but only conferred upon it, with respect to the villages, a revenue grant of the
value of 12,000 rupees per annum called a jagir or saranjam.
19

Portuguese were
granted authority to
put down revolt or
rebellion in the
assigned villages and
that this is an
indication that they
were granted
sovereignty over the
villages.
The grant recites that the future sovereign would have authority to control a revolt
or rebellion in his own territory.
Intention was that the Portuguese would have authority on behalf of the Maratha
ruler and would owe a duty to him (Maratha) to put down any revolt or rebellion in
the villages against his authority.
The British did not, as successors of the Marathas, themselves claim sovereignty, nor
did they accord express recognition of Portuguese sovereignty, over them.
They accepted the situation as they found it and left the Portuguese in occupation
and in exercise of exclusive authority over the villages.
Court:
This practice having continued over a period extending beyond a century and a quarter unaffected by the
change of even when India became independent, so all the circumstances of the case, satisfied that that
was accepted as law by the Parties and has given rise to a right and a correlative obligation.
Portugal had in 1954 a right of passage over intervening Indian territory between the enclaves, in respect of
private persons, civil officials and goods in general, to the extent necessary, as claimed by Portugal, for the
exercise of its sovereignty over the enclaves, and subject to the regulation and control of India.
As regards armed forces, armed police and arms and ammunition, the position is different.
20

Argument: Passage for the armed forces
It appears that during the
British period up to 1878
passage of armed forces and
armed police between British
and Portuguese possessions
was regulated on a basis of
reciprocity.
Paragraph 3 of Article XVIII of the Treaty of Commerce and Extradition
December 1878 between Great Britain and Portugal laid down that the
armed forces of the two Governments should not enter the Indian
dominions of the other, except for the purposes specified in former
or for the rendering of mutual assistance as provided for in the Treaty
or in consequence of a formal request made by the Party desiring such
entry.
It is argued on behalf of
Portugal that on twenty-three
occasions during the years
1880-1889 Portuguese armed
forces crossed British territory
between Daman and the
enclaves without obtaining
permission.
on 8 December 1890 the Government of Bombay forwarded to the
Government of Portuguese India a complaint to the effect that "armed men in
the service of the Portuguese Government are in the habit of passing without
formal request the provisions of Article XVIII of the Treaty are thus violated
21

Court findings:
 The Court is of the view that India's refusal of passage in those cases was, in the
circumstances, covered by its power of regulation and control of the right of
passage of Portugal.
Reasoning:
• As regards arms and ammunition, paragraph 4 of Article XVIII of the Treaty of 1878
provided that the exportation of arms, ammunition or military stores from the territories
of one party to those of the other "shall not be permitted, except with the consent of,
and under rules approved of by, the latter".
• During the British and post-British periods, Portuguese armed forces and armed police
did not pass between Daman and the enclaves as of right and that, after 1878, such
passage could only take place with previous authorization by the British and later by
India
• It may be observed that the Governor of Daman was granted the necessary visas for a
journey to and back from Dadra as late as 21 July 1954. The events that took place in
Dadra on 21-22 July 1954 resulted in the overthrow of Portuguese authority in that
enclave. This created tension in the surrounding Indian territory. Thereafter al1 passage
was suspended by India.
22

NORTH SEA CONTINENTAL SHELF CASES
Germany/Denmark; Germany/Netherlands
ICJ Reports, 1969, p.3
23

Overview:
 The case involved the delimitation of the continental shelf areas in the North Sea between Germany and
Denmark and Germany and Netherlands beyond the partial boundaries previously agreed upon by these
States.
 The parties requested the Court to decide the principles and rules of international law that are applicable
to the above delimitation because the parties disagreed on the applicable principles or rules of
delimitation.
 Netherlands and Denmark relied on the principle of equidistance. Germany sought to get a decision in
favour of the notion that the delimitation of the relevant continental shelf was governed by the principle
that each coastal state is entitled to a just and equitable share.
 Contrary to Denmark and Netherlands, Germany argued that the principle of equidistance was neither a
mandatory rule in delimitation of the continental shelf nor a rule of customary international law that was
binding on Germany.
24

Facts:
 Netherlands and Denmark had drawn partial
boundary lines based on the equidistance
principle (A-B and C-D). An agreement on further
prolongation of the boundary proved difficult
because Denmark and Netherlands wanted this
prolongation to take place based on the
equidistance principle (B-E and D-E) whereas;
Germany was of the view that, together, these two
boundaries would produce an inequitable result
for her.
 The Court had to decide the principles and rules
of international law applicable to this delimitation
and if the principles espoused by the parties were
binding on the parties either through treaty law or
customary international law.
25

Decision:
The use of the equidistance method
had not crystallised into customary
law and the method was not
obligatory for the delimitation of the
areas in the North Sea related to the
present proceedings.
26

ASYLUM CASE
Columbia v. Peru, ICJ Reports 1950, p. 266
(1) Is Colombia competent, as the country that grants asylum,
unilaterally qualify the offence for the purpose of asylum under
treaty law and international law?
(2) In this specific case, was Peru, as the territorial State, bound
to give a guarantee of safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention
on Asylum of 1928 (hereinafter called the Havana Convention)
when it granted asylum and is the continued maintenance of
asylum a violation of the treaty?
27

Overview:
Colombia granted asylum to a Peruvian, accused of
taking part in a military rebellion in Peru. Was
Colombia entitled to make a unilateral and definitive
qualification of the offence (as a political offence) in a
manner binding on Peru and was Peru was under a
legal obligation to provide safe passage for the
Peruvian to leave Peru?
28

Facts:
 Peru issued an arrest warrant against Victor Raul Haya de la Torre “in
respect of the crime of military rebellion” which took place on October 3,
1949, in Peru.
 3 months after the rebellion, Torre fled to the Colombian Embassy in Lima,
Peru. The Colombian Ambassador confirmed that Torre was granted
diplomatic asylum in accordance with Article 2(2) of the Havana
Convention on Asylum of 1928 and requested safe passage for Torre to
leave Peru.
 Subsequently, the Ambassador also stated Colombia had qualified Torre as a
political refugee in accordance with Article 2 Montevideo Convention on
Political Asylum of 1933 (note the term refugee is not the same as the
Refugee Convention of 1951).
 Peru refused to accept the unilateral qualification and refused to grant
safe passage.
29

Columbia: Plea
 Basis:
 Bolivarian Agreement on Extradition of July 18th, 1911
 The Convention on asylum of February 20th, 1928 (Havana Convention)
 The Montevideo Convention of 1933
 American international law in general
Decision:
The court concluded that the grant of asylum and reasons
for its prolongation were not in conformity with Article 2(2)
of the Havana Convention
30

Bolivarian Agreement : Contentions
Article 18, which is framed in the following terms: "Aside from the stipulations of the present Agreement,
the signatory States recognize the institution of asylum in conformity with the principles of international
law.“
“The institution of asylum", this article merely refers to the principles of international law. But the
principles of international law do not recognize any rule of unilateral and definitive qualification by the
State granting diplomatic asylum.
Article 4 of this Agreement concerning extradition of a criminal refugee from the territory of the State in
which he has sought refuge. The arguments submitted in this respect reveal a confusion between
territorial asylum (extradition), on the one hand, and diplomatic asylum, on the other.
Territorial: Exception to extradition Diplomatic: within consulates etc.
Peru:
It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in
matters which are exclusively within the competence of that State. Such a derogation from territorial
sovereignty cannot be recognized unless its legal basis is established in each particular case.
31

Havana & Montevideo Convention: On asylum
Havana:
The Colombian Government has invoked Article 2, paragraph 1, of the Havana Convention, which is
framed in the following terms:
"Asylum granted to political offenders in legations, warships, military camps or military aircraft, shall be
respected to the extent in which allowed as a right or through humanitarian toleration, by the usages, the
conventions or the laws of the country in which granted and in accordance with the following provisions:"
Peru:
This Convention lays down certain rules relating to diplomatic asylum, but does not contain any
provision conferring on the State granting asylum a unilateral competence to qualify the offence with
definitive and binding force for the territorial State.
32

Havana and Montevideo Plea
Montevideo:
The Colombian Government has further referred to the Montevideo Convention on Political Asylum of
1933. It is argued that, by Article 2 of that Convention, the Havana Convention of 1928 is interpreted in the
sense that the qualification of a political offence appertains to the State granting asylum.
Peru:
The Montevideo Convention has not been ratified by Peru, and cannot be invoked against that State.
33

Court : finding on qualification for asylum
 The normal course of granting diplomatic asylum
A provisional qualification of the offence by a state
Territorial State has the right to give consent to this qualification.
 Such a decision would be binding on Peru either because of
1. Treaty law (in particular the Havana Convention of 1928 and
2. The Montevideo Convention of 1933),
3. Other principles of international law or by way of regional or local custom.
34

Court : finding on qualification for asylum (Contd..)
 No express right of unilateral decision in Havana:
The court held that there was no expressed or implied right of unilateral and definitive qualification of the
State that grants asylum under the Havana Convention or relevant principles of international law.
 The Montevideo Convention not ratified:
The convention which accepts the right of unilateral qualification, and on which Colombia relied to justify its
unilateral qualification, was not ratified by Peru. The Convention, per say, was not binding on Peru
 No customary international rule/law establishing unilateral right:
Considering the low numbers of ratifications the provisions of the latter Convention cannot be said to reflect
customary international law.
Colombia also argued that regional or local customs support the qualification. The court held that the
burden of proof on the existence of an alleged customary law rests with the party making the allegation
The court held that Colombia did not establish the existence of a regional custom because it failed to prove
consistent and uniform usage of the alleged custom by relevant States. The fluctuations and contradictions in
State practice did not allow for the uniform usage
35

Decision: qualification:
 The court held that even if Colombia could prove that such a regional
custom existed, it would not be binding on Peru, because Peru by its
attitude proved the contrary, by refraining from ratifying the
Montevideo Conventions of 1933 and 1939 which were the first to
include a rule concerning the qualification of the offence in matters of
diplomatic asylum
 The court concluded that Colombia, as the State granting asylum, is
not competent to qualify the offence by a unilateral and definitive
decision, binding on Peru.
36

Court : Safe passage
 The court held that there was no legal obligation on Peru to grant safe passage either because of the
Havana Convention or customary law.
Reasoning:
). In this case the Peruvian government had not asked that Torre leave Peru. On the contrary, it contested
the legality of asylum granted to him and refused to grant safe conduct.
 The court looked at the possibility of a customary law emerging from State practice where diplomatic
agents have requested and been granted safe passage for asylum seekers, before the territorial State
could request for his departure.
Once more, the court held that these practices were a result of a need for expediency and other practice
considerations over an existence of a belief that the act amounts to a legal obligation
37

Court : Granting Asylum right or wrong
 Article 1 of the Havana Convention states that “It is not permissible for States to grant asylum… to persons
accused or condemned for common crimes… (such persons) shall be surrendered upon request of the
local government.”
Torre’s accusation related to a military rebellion, which the court concluded was not a common crime and as
such the granting of asylum complied with Article 1 of the Convention.
 Prerequisite of Urgency
The presence of “an imminent or persistence of a danger for the person of the refugee”. The court held that the
facts of the case, including the 3 months that passed between the rebellion and the time when asylum
was sought, did not establish the urgency criteria in this case
 Urgency not = danger of prosecution
The court held that “protection from the operation of regular legal proceedings” was not justified under
diplomatic asylum. (Object of Havana was never this)
 Exception not apply
An exception to this rule (asylum should not be granted to those facing regular prosecutions) can occur only if,
in the guise of justice, arbitrary action is substituted for the rule of law.
38

S.S. Lotus (France v. Turkey)
S.S. Lotus (French steamship/steamer) & S.S. Bozkurt (Turkish steamer); 1927P.C.I.J.
 Oerview:
A collision occurred on the high seas between a French vessel and a Turkish vessel. Victims
were Turkish nationals and the alleged offender was French.
 Issue:
Could Turkey exercise its jurisdiction over this French national under international law?
 Question:
Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed
by a French national, outside Turkey? If yes, should Turkey pay compensation to France?
 The Court’s Decision:
Turkey, by instituting criminal proceedings against Demons, did not violate international law.
39

Facts:
A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel – Boz-Kourt.
The Boz-Kourt sank and killed eight Turkish nationals. The 10 survivors of the Boz-Kourt (including its
captain) were taken to Turkey with help of the Lotus. Lotus proceeded to its way afterwards to
Constantilope city of Rome.
Later on, Lieutenant Demans was requested by the Turkish authorities to go to ashore to give evidence.
The examination, resulted in delaying the departure of the Lotus, led to the placing under arrest of
Lieutenant Demons without previous notice being given to the French Consul-General and others. This
arrest, which has been characterized by the Turkish Agent as arrest pending trial (arrestation preventive).
In Turkey, the officer on watch of the Lotus (Demans), and the captain of the Turkish ship Hassan Bey, were
charged with manslaughter. Demans, a French national, was sentenced to 8 days of imprisonment and a
fine. Hassan Bey got punishment of more days.
The French government protested, demanding the release of Demons or the transfer of his case to the
French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent Court of
International Justice (PCIJ).
40

Jurisdiction of Turkish Court
 What Does Turkey need to prove to establish jurisdiction:
 Existing rule of international law or
 Absence of a prohibition preventing the exercise of jurisdiction
 The first principle of the Lotus Case: A State cannot exercise its jurisdiction outside its territory
unless an international treaty or customary law permits it to do so. This is what we called the first
principle of the Lotus Case. The Court held that:
 “Now the first and foremost restriction imposed by international law upon a State is that – failing the
existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory
of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State
outside its territory except by virtue of a permissive rule derived from international custom or from a
convention.” (para 45)
41

French contentions
 Article 15 of the Convention of Lausanne, 1923 : principle of jurisdiction:
Convention respecting conditions of residence and business and jurisdiction
and the principles of international law, jurisdiction to entertain criminal
proceedings against the officer of the watch of a French ship, in connection
with the collision which occurred on the high seas between that vessel and a
Turkish ship, belongs exclusively to the French Courts;
"Consequently, the Turkish judicial authorities were wrong in prosecuting,
imprisoning and convicting M. Demons, in connection with the collision
which occurred on the high seas between the Lotus and the Boz-Kourt, and
by so doing acted in a manner contrary to the above-mentioned Convention
and to the principles of international law;
42

French contentions:
 No unilateral extension of jurisdiction without agreement or custom
"Furthermore, whereas, according to international law as established by the practice of
civilized nations, in their relations with each other, a State is not entitled, apart from express
or implicit special agreements, to extend the criminal jurisdiction of its courts to include a
crime or offence committed by a foreigner abroad solely in consequence of the fact that one
of its nationals has been a victim of the crime or offence;
 In high sea the flag decides jurisdiction
"Whereas acts performed on the high seas on board a merchant ship are, in principle and
from the point of view of criminal proceedings, amenable only to the jurisdiction of the
courts of the State whose flag the vessel flies ;
"As that is a consequence of the principle of the freedom of the seas, and as States, attaching
especial importance thereto, have rarely departed therefrom;
So Indemnify
43

Turkey: Reply
 Article 6 of the Turkish Penal Code, Law No. 765 of March 1st, 1926 (Official Gazette No. 320 of March
13th, 1926), runs as follows:
"Any foreigner who, apart from the cases contemplated by Article 4, commits an offence abroad to
the prejudice of Turkey or of a Turkish subject, for which offence Turkish law prescribes a penalty
involving loss of freedom for a minimum period of not less than one year, shall be punished in
accordance with the Turkish Penal Code provided that he is arrested in Turkey. The penalty shall
however be reduced by one third and instead of the death penalty, twenty years of penal servitude shall
be awarded.
44

Principles laid down:
 The first principle of the Lotus Case: extension of jurisdiction based on treaty/ custom
A State cannot exercise its jurisdiction outside its territory unless an international treaty or customary law
permits it to do so. This is what we called the first principle of the Lotus Case. The Court held that:
“Now the first and foremost restriction imposed by international law upon a State is that – failing the existence
of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State.
In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by
virtue of a permissive rule derived from international custom or from a convention.”
 The second principle of the Lotus Case: Within its territory no permission required.
Within its territory, a State may exercise its jurisdiction, in any matter, even if there is no specific rule of
international law permitting it to do so. In these instances, States have a wide measure of discretion, which is
only limited by the prohibitive rules of international law.
“……In these circumstances all that can be required of a State is that it should not overstep the limits which
international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its
sovereignty.”
45

Criminal Jurisdiction: Territorial Jurisdiction
 Concurrent Jurisdiction:
 France alleged that the flag State of a vessel has exclusive jurisdiction over offences committed on board
the ship in high seas. The Court disagreed. It held that France, as the flag State, did not enjoy exclusive
territorial jurisdiction in the high seas in respect of a collision with a vessel carrying the flag of another State
(paras 71 – 84). The Court held that Turkey and France both have jurisdiction in respect of the whole
incident: in other words, there was concurrent jurisdiction.
 Turkish Vessel=Turkish territory
 The Court held that a ship in the high seas is assimilated to the territory of the flag State. This State may
exercise its jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land, to the
exclusion of all other States. In this case, the Court equated the Turkish vessel to Turkish territory.
 Constitutive element of Crime: location of the element
 The Lotus Case is also significant in that the Court said that a State would have territorial jurisdiction, even
if the crime was committed outside its territory, so long as a constitutive element of the crime was
committed in that State. Today, we call this subjective territorial jurisdiction. In order for subjective territorial
jurisdiction to be established, one must prove that the element of the crime and the actual crime are
entirely inseparable: in other words, if the constituent element was absent – the crime would not have
happened.
46

Establishment of custom:
 France: Absence of prosecution : custom
France had alleged that jurisdictional questions on collision cases are rarely heard in criminal cases,
because States tend to prosecute only before the flag State. France argued that this absence of
prosecutions points to a positive rule in customary law on collisions.
 Finding:
In other words, opinio juris is reflected not only in acts of States
but also in omissions when those omissions are made following a
belief that the said State is obligated by law to refrain from acting
in a particular way.
Absence must be based on Opinio Juris sive necessitates.
Turkey did not violate int. law
47

TEMPLE OF PREAH VIHEAR CASE (Merits)
Cambodia v. Thailand (ICJ Reports 1962, p. 6)
(Principle of Acquiescence and Estoppel)
48

History:
1904 – As per 1904 agreement, the border would follow the watershed between the countries.
 1907 – Thai-Cambodian border was mapped by the French on behalf of a bilateral border commission(the temple
part of Dangrek range and promontory is placed in Cambodia) same year, Thailand’s prince Damrong accepted the
map for official.
 1904-1908- Parties agree that the present dispute has its origin in the boundary settlements made in the period
1904-1908, between France and Siam (as Thailand was then called) and, in particular, that the sovereignty over
Preah Vihear depends upon a boundary treaty dated 13 February 1904, and upon events subsequent to that
date. The Court is therefore not called upon to go into the situation that existed between the Parties prior to
the Treaty of 1904.
 1930 – Thai authorities made their own survey on the site, finding the error.
 1940 – French colonial government refused to comply, fight broke out along the border (French-Thai War)
 7/12/1941 Pearl Harbour and Invasion of Thai by Japanese Army
 21/12/1941 – Japanese-Thai Alliance
 1953 end of French colonialism and independence of Cambodia
 1954 - Thai forces occupied the Temple of Preah Vihear
 1962 – Judgement of 15 June 1962
49

Thai contentions:
Left :
Map by mixed commission
Right :
Map based on watershed as
claimed by Thailand
50

Argument Thailand:
Cambodia principally relies in support of her claim to sovereignty over the Temple.
Thailand argues:
 The map was not the work of the Mixed Commission, and had therefore no binding character;
 At Preah Vihear the map embodied a material error, that cannot be explained on the ground of
discretion adapted by the Commission. This error, was that the frontier line indicated on the map was not
the true watershed line in this vicinity, and that a line drawn in accordance with the true watershed line
would place the temple in Thailand.
 Thailand never expressly accepted the map even we say that they accepted it was accepted only under,
and because of, a mistaken belief (upon which she relied) that the map line was correctly drawn to
correspond with the watershed line.
 The communication of the maps by the French authorities was, so to speak, ex parte, and that no forma1
acknowledgment of it was either requested of, or given by, Thailand.
 Only minor officials saw the map.
51

Court Findings:
 Did not Object in reasonable time
Disagreement called for some reaction, within a reasonable period, on the part of the Siamese authorities, if they
wished to disagree with the map or had any serious question to raise in regard to it. They did not do so, either then or
for many years, and thereby must be held to have acquiesced.
 Siam members of Mixed Commission had knowledge:
The knowledge The map was communicated to the Siamese members of the Mixed Commission. These must
necessarily have known (and through them the Siamese Government must have known) that this map could not have
represented anything formally adopted by the Mixed Commission, and therefore they could not possibly have been
deceived by the title of the map, namely, "Dangrek- Commission of Delimitation between Indo-China and Siam" into
supposing that it was purporting to be a production of the Mixed Commission as such.
 Implied acceptance:
That the Siamese authorities by their conduct acknowledged the receipt, and recognized the character, of these maps,
and what they purported to represent, is shown by the action of the Minister of the Interior, Prince Damrong, in
thanking the French Minister in Bangkok for the maps, and in asking him for another fifteen copies of each of them for
transmission to the Siamese provincial Governors.
Siam delegated minor official: their risk if they appointed juniors.
52

Findings on error on the part of Siam
 It is an established rule of law that the plea of error cannot be allowed as an element vitiating consent if the party advancing it
contributed by its own conduct to the error, or could have avoided it, or if the circumstances were such as to put that party on
notice of a possible error.
 Siamese persons included the members of the very Commission of Delimitation within whose competence this sector of the
frontier had lain. But even apart from this, the Court thinks that there were other circumstances relating to the Annex 1 map
which make the plea of error difficult to receive.
 An inspection indicates that the map itself drew such pointed attention to the Preah Vihear region that no interested person,
nor anyone charged with the duty of scrutinizing it, could have failed to see Nobody looking at the map could be under any
misapprehension about that.
 Next, the map marked Preah Vihear itself quite clearly as lying on the Cambodian side of the line, using for the Temple a
symbol which seems to indicate a rough plan of the building and its stairways.
 Thailand having temporarily come into possession of certain parts of Cambodia, including Preah Vihear, in 1941, the Ministry
of Information of Thailand published a work entitled "Thailand during national reconstruction" in which it was stated in
relation to Preah Vihear that it had now been "retaken" for Thailand. This has been represented by Thailand as being an error
on the part of a minor official
 always failed to raise his questions to France or during other talks and formulations.
 Looking at the incident as a whole, it appears to have amounted to a tacit recognition by Siam of the sovereignty of
Cambodia (under French Protectorate) over Preah Vihear, through a failure to react in any way, on an occasion that called for a
reaction in order to affirm or preserve title in the face of an obvious rival claim.
53

Post Decision: Latest
 2007 Cambodia requested that UNESCO inscribes the site of the Temple of Preah Vihear
 2008 Thai suggested joint management of the site, Cambodia refuses.
 2008 World heritage committee inscribes the site of the temple of P.V. on World Heritage list
 July 15 2008 – cross-border tensions: protestants attempt to plant Thailand’s flag near the temple and
arrest of Thai people.
 16 July 2008 deployiment of Cambodia’s troops to ensure order and sovereignty of the territory.
 2008 -2011 Thai-Cambodia troops clashes.
 28 April 2011 Cambodia filed request of interpretation of the judgement of 1962.
 11 Nov.2011 The interpretation of the 1962 Judgment
54

Art.60 of the Statute(of the ICJ)
“The judgment is final and without appeal; and In the event of dispute as to the meaning or
scope of the judgment, the Court shall construe it upon the request of any party”
 The existence of a dispute
 1. Court did or did not recognize the annex I map constituting the border?
 2. Meaning of “situated in territory under the sovereignty of Cambodia and it’s vicinity on the
Cambodia’s border
 3. Thailand’s obligation to withdraw from the area of the temple and its vicinity on Cambodian
territory
55

56

Customary law
 Wide
 Consistent
 Opinio juris sive necesssitatis
(simply opinion juris)
Duration:
57

III. Source: general principle of international laws
Referred to as “general principles of law common to all civilized nations”.
Criticism:
The term “civilized nations” is problematic, given its apparent vagueness and the
presumption that some nations may be uncivilized. Few interpret as the notion is
founded upon a developed legal system and therefore includes all but the most
primitive of societies.
Legal meaning of the formula “general principles of law common to all civilized
nations” is not free from controversy.
There are two rival schools
1. The first is that it encompasses those basic principles of municipal law common
to all national systems applicable to international relations.
2. The other is the more restrictive meaning that it refers only to general principles of
international law as distinct from specific rules of international law.
58

Adaptation as source
Both legal interpretations have variously been adopted and applied by international tribunals in their
adjudication processes.
Applicability in the more limited and specific zone of international criminal law, the doctrine of
universal jurisdiction the International Criminal Tribunal for Yugoslavia (ICTY) did observe that:
Whenever international criminal rules do not define a notion of criminal law, reliance upon national
legislation is justified, subject to the following conditions:
(i)… international courts must draw upon the general concepts and legal
institutions common to all the major legal systems of the world [not only
common-law or civil-law states]…
(ii)… account must be taken of the specificity of international criminal
proceedings when utilizing national law notions. In this way a mechanical
importation or transposition from national law into international criminal
proceedings is avoided.
59

Lock, stock and barrel rule:
 Private law principle for indication of the policy not as whole.
 Use when the condition is non-liquet (Unable to decide because of gap)
 General principles should be those as accepted by nations in good faith in their
domestic domain (i.e. Res judicata)
 PCIJ/ICJ no indication which rule qualifies so tribals wont have a right as they are few
so not general rule.
 Some times the general principle itself is contradictory.
 Charzow factory case: (pcij rep series A, no. 9;1927)
 Germany against Poland for the seizure of 2 companies. After WW 1
agreement between both Germany gave Upper silesia area & Poland will not
forfeit any german property but two companies were forfeited. Germany
intruded in Poland.
 Court laid down: “A party cannot take advantage of its own wrong.”
 Later said; “every violation has a right to be repaired” (restitution and
damages)
60

Few examples: Principles
 Administrative tribunal case: Res judicata (1954 IJ, Rep 47)
 Nuclear test case: object of claim is the reason of adjudication (1974, ICJ Rep, 253)
 Mavrommatis Palestine Concessions Case (PCIJ 1924 Rep Series, A No. 2)
 Preah Vihear Cse: Estopple
 Diversion of water from meuse case: equity (PCIJ 1937 Rep Series A/B No. 70)
61

ISLAND OF PALMAS (or Miangas)
Netherlands v. USA ,(RIAA, 1928, p.829)
Facts:
 Both the United States and Netherlands, laid claim to the ownership of the Island of Palmas. While the
U.S. maintained that it was part of the Philippines, the Netherlands claimed it as their own.
 The claim of the U.S. was back up with the fact that the islands had been ceded by Spain by the Treaty
of Paris in 1898, and as successor to the rights of Spain over the Philippines, it based its claim of title
in the first place on discovery.
 Spain discover n US is its successor. (by treaty of Paris ,1898)
 On the part of the Netherlands, they claimed to have possessed and exercised rights of sovereignty
over the island from 1677 or earlier to the present.
62

Issue:
Can a title which is inchoate prevail over a definite title
found on the continuous and peaceful display of
sovereignty?
Rule of Law established:
A title that is inchoate cannot prevail over a definite
title found on the continuous and peaceful display of
sovereignty.
Inchoate right: A legal right or entitlement that is in progress and is neither ripe, vested nor
perfected. In reference to a claim in law, or an entitlement, that has not yet vested completely.
63

 The fact of discovery by Spain is not proved, nor yet any other form of acquisition, and
even if Spain had at any moment had a title, such title had been lost. The principle of
contiguity is contested by Netherlands on the conditions of acquisition of sovereignty.
 It remains now to be seen whether the United States as successors of Spain are in a
position to bring forward an equivalent or stronger title.
 This is to be answered in the negative.
 The title of discovery, if it had not been already disposed of by the Treaties of
Munster and Utrecht would, under the most favourable and most extensive
interpretation, exist only as an inchoate title, as a claim to establish sovereignty by
effective occupation. An inchoate title however cannot prevail over a definite title
founded on continuous and peaceful display of sovereignty.
 The Netherlands title of sovereignty, acquired by continuous and peaceful display of
State authority during a long period of time going probably back beyond the year 1700,
therefore holds good.
64
Findings:

IV : Source: Judicial decision (subsidiary means)
International tribunal decision
State decisions
65

International Court Decisions
(Judicial role) Courts’ prime role: Apply established rule
(legislative role) Secondary role: make rules on the basis of
natural justice principle and good faith where law is silent or
leaves a gap.
66

Decision of international tribunals
 Only international tribunal
ICJ, 1946, successor of PCIJ, 1921
 Art 38 (1)(d)read with art 59 of the statute of ICJ
Decision has Binding force
 On the parties
 In a particular case
 So no precedential nature
67

Precedential value
 Art 59 is the rule but courts have borrowed the general rule of international law and used the rulings
as precedents when:
 Similarity: Same principle can be applied in two distinct situations
 Distinction: To distinguish the situation to form a ground for applying different principle.
Example: Distinction
Peace Treaties case (1950, ICJ Rep p. 65)
Court was approached for advice in a case:
Bulgaria, Hungry and Romania were not cooperating to form an arbitral tribunal.
Apply Eastern Carelia case
Court said; State cant to be forced to submit its case to arbitration
EC was about investigation where State can be forced but PT was for procedure which is different so cant
force.
68

Value: Court decision
 Persuasive
 Binding
 Clears opinion on a point
 Works as guide to explain and fill-in gaps
69

Decision of Municipal Tribunal
Role:
 Attitude of a state towards a particular rule of international law
 To give structure to the otherwise vague customary rules
Example:
Attitude:
Paquette Havana (1900; 175 Us 677)
US forces captured 2 small fishing boat and US court said: such small boats cannot be treated as prize of the war
and are exempted from war laws.
Custom
Lotus case
Turkish court said there is no uniformity in the principle that only flag state can hold jurisdiction in criminal
matters.
Turkish court had jurisdiction on French.
70

V: Source: juristic work:
Teaching of most highly qualified publicist
 Grotius
 Holland
 Hart
 Gentilis
 Explanations of Roman laws
 West rand central gold mining company v. R (1905; 2 KB 391)
 Mere opinion not sufficient express sanction is necessary
 Express sanction:
 Agreement formed on the basis of opinions
 Frequently referred by two states while defining their relationship
71

VI: General Assembly Resolution and declarations
 Not part of Art 38 but are binding on member states: so qualify as source.
 Not binding per se but provide:
 Evidentiary value
 Interpretations
 Develop new law on emerging international scenario
South west Africa case:
Resolution devoid of true legislative character but recurrence and repetition can make them instant customary
laws if they fulfil the requirement of opinion juris.
Dissenting opinion:
Instant customary law itself is a custom that lacks the element of consistency and uninterrupted practice.
Reservation Case:
Recommendations till have support of wide public opinion and repeatedly practiced.
72

EFFECT OF AWARDS OF COMPENSATION MADE BY THE UNITED NATIONS
ADMINISTRATIVE TRIBUNAL ADVISORY OPINION OF I.C.J. (July 13, 1954) 1954
International Law Reports 310
(Application of the Principle of Res judicata)
 Question submitted to the Court is as follows:
"Having regard to the Statute of the United Nations Administrative Tribunal and to any other relevant
instruments and to the relevant records, has the General Assembly the right on any grounds to refuse to
give effect to an award of compensation made by that Tribunal in favour of a staff member of the United
Nations whose contract of service has been terminated without his assent?"
Imp Points:
 An award in favour of a staff member of the United Nations whose contract of service has been
terminated without his assent
 An award of compensation made by UN administrative Tribunal
 Can General Assembly has the right on any grounds to refuse to give effect to this award.
73

Tribunal
 The Statute of the Tribunal as adopted by the General Assembly on November 24th, 1949, and on the Staff
Regulations and Rules as in force on December 9th, 1953
 Article I of the Statute provides: "A Tribunal is established by the present Statute to be known as the United
Nations Administrative Tribunal." This Tribunal shall, according to Article 2, paragraph 1, "be competent to
hear and pass judgment upon applications", whereupon the paragraph determines the limits of the
Tribunal's competence as already mentioned above. Article 2, paragraph 3, prescribes:
 "In the event of a dispute as to whether the Tribunal has competence, the matter shall be settled by the
decision of the Tribunal."
 Article 10 contains the following provisions
 "2. The judgments shall be final and without appeal." "3. The judgments shall state the reasons on which
they are based. ".
 These provisions and the terminology used are evidence of the judicial nature of the Tribunal. Such terms as
"tribunal", "judgment", competence to "pass judgment upon applications", are generally used with respect
to judicial bodies. The above-mentioned provisions of Articles 2 and 10 are of an essentially judicial
character and conform with rules generally laid down in statutes or laws issued for courts of justice,
such as, for instance, in the Statute of the International Court of Justice, Article 36, paragraph 6, Article 56,
paragraph 1, Article 60, first sentence.
74

Findings: nature of tribunal
 This examination of the relevant provisions of the Statute shows that the Tribunal is established,
 not as an advisory organ or a mere subordinate committee of the General Assembly,
 but as an independent and truly judicial body pronouncing final judgments without
appeal within the limited field of its functions.
 According to a well-established and generally recognized principle of law, a judgment rendered by such
a judicial body is res judicata and has binding force between the parties to the dispute.
 It must therefore be examined who are to be regarded as parties bound by an award of compensation
made in favour of a staff member of the United Nations whose contract of service has been terminated
without his assent.
75

Intention : No review/ no redress/ no
interference
 The General Assembly could, when it adopted the Statute, have provided for means
of redress, but it did not do so. Like the Assembly of the League of Nations it
refrained from laying down any exception to the rule conferring on the Tribunal the
power to pronounce final judgments without appeal.
 No review
 Revision by tribunal is possible under art 10.
76

Advisory Opinion of Legality of the Threat or Use of
Nuclear Weapons (ICJ Reports 1996, p. 226)
 (The General Assembly requested the International Court of Justice to provide an advisory opinion on
the following question:
 ‘Is the threat or use of nuclear weapons in any circumstance permitted
under international law?’
 Relevance in the matter of sources of Int. law:
 Constituent elements of custom; General Assembly Resolutions as one of the
sources of international law
77

Contentions in favour of non-use of
nuclear weapon as custom
 States which hold the view that the use of nuclear weapons is illegal have endeavoured to demonstrate:
 the existence of a customary rule prohibiting this use.
 A consistent practice of non-utilization of nuclear weapons by States since 1945
 They would see in that practice the expression of an opinio juris on the part of those who possess such
weapons.
78

Contentions in favour of use of nuclear
weapon as legal
Some other States, which assert the legality of the threat and use
of nuclear weapons in certain circumstances, invoked:
The doctrine and practice of deterrence in support of their
argument.
It was not used since 1945 not because non use is custom but
fortunately the circumstances making their use inevitable has not
arisen yet.
Otherwise few States, reserved the right to use those weapons in
the exercise of the right to self-defence against an armed attack
threatening their vital security interests.
79

Court’s grounds of finding
 The Court notes that General Assembly resolutions, even if they are not binding,
may sometimes have normative value. They can, in certain circumstances, provide
evidence important for establishing the existence of a rule or the emergence of an
opinio juris.
 Examined in their totality, the General Assembly resolutions put before the Court
declare that the use of nuclear weapons would be "a direct violation of the Charter
of the United Nations; and in certain formulations that such use "should be
prohibited".
 The Court further notes that the first of the resolutions of the General Assembly
expressly proclaiming the illegality of the use of nuclear weapons, resolution 1653
(XVI) of 24 November 1961
80

Findings:
 The Court points out that the adoption each year by the General Assembly,
by a large majority, of resolutions recalling the content of resolution 1653
(XVI), and requesting the member States to conclude a convention
prohibiting the use of nuclear weapons in any circumstance, reveals the
desire of a very large section of the international community to take, by
a specific and express prohibition of the use of nuclear weapons, a
significant step forward along the road to complete nuclear disarmament.
 The emergence, as lex lata (Law as it exist), of a customary rule specifically
prohibiting the use of nuclear weapons as such is hampered by the
continuing tensions between the nascent opinio juris on the one hand, and
the still strong adherence to the practice of deterrence on the other.
81

Accordance with International Law of the Unilateral Declaration of Independence in
Respect of KOSOVO Advisory Opinion of I.C.J. (July 22, 2010) (Resolutions of Security
Council as a source of international law)
 (The General Assembly requested the International Court of Justice to give an advisory opinion on
the following question:
 ‘Is the unilateral declaration of independence by
the Provisional Institutions of Self-Government of
Kosovo in accordance with international law?’
82

Finding:
The Court accordingly finds that Security Council
resolution no.-1244 (1999) did not bar the authors
of the declaration of 17 February 2008 from
issuing a declaration of independence from the
Republic of Serbia. Hence, the declaration of
independence did not violate Security Council
resolution 1244 (1999).
83

Background of Sahara Case:
 Western Sahara: terra nullius?
The ICJ opinion on Western Sahara was (ironically, in hindsight) requested by Morocco in 1974, shortly
after Spain declared its intent to hold a referendum on independence. On September 30 of that year,
Morocco put a request to the UN General Assembly. Morocco wanted a binding decision of the World
Court as to whether or not Spain had occupied Moroccan territory when it established a colony in 1885.
Mauritania, having also raised a claim on Spanish Sahara, backed Morocco’s request. Spain, however,
would not submit to binding arbitration. Instead, Madrid would accept an advisory opinion on the
question of Western Sahara in the context of the UN charter and applicable resolutions.
84

Advisory opinion in Western Sahara case
 On 13 December 1974, the General Assembly requested an advisory opinion on the
following questions :
 “I. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of
colonization by Spain a territory belonging to no one (terra nullius) ?”
 If the answer to the first question is in the negative,
 “II. What were the legal ties between this territory and the Kingdom of
Morocco and the Mauritanian entity ?”
85

Answers by the Court:
Question I:
 In its Advisory Opinion, delivered on 16 October 1975, the Court replied to Question I in the negative.
The Answer is no.
 Question II :
 In reply to Question II, it expressed the opinion that the materials and information presented to it
showed:
 The existence, at the time of Spanish colonization, of legal ties of allegiance between the Sultan of Morocco
and some of the tribes living in the territory of Western Sahara.
 They equally showed the existence of rights, including some rights relating to the land, which constituted
legal ties between the Mauritanian entity, as understood by the Court, and the territory of Western Sahara.
 On the other hand, the Court’s conclusion was that the materials and information presented to it did not
establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of
Morocco or the Mauritanian entity.
86

Final findings
 Thus the Court did not find any legal ties of such a nature as might
affect the application of the General Assembly’s 1960 resolution 1514
(XV) — containing the Declaration on the Granting of Independence to
Colonial Countries and Peoples — in the decolonization of Western Sahara
and, in particular, of the principle of self-determination through the free
and genuine expression of the will of the peoples of the territory.
 ICJ was very clear that the sovereign power in Western Sahara was and is
the native Western Saharans. The purpose of a self-determination
referendum in Western Sahara is not to decide between competing
sovereignties, whether Moroccan or Sahrawi, but to poll the Sahrawis as to
whether or not they wish to retain, modify or divest their sovereignty.
87

Advisory Opinion on Namibia
I.C.J., Advisory Opinion, 1971, I.C.J. Rep 16.
 Facts:
Under a claim of right to annex the Namibian territory and under the claim that Namibia’s nationals
desired South Africa’s rule, South Africa began the occupation of Namibia. South Africa was subject to a
U.N. Mandate prohibiting Member States from taking physical control of other territories because it was
a Member State of the United Nations.
The Resolution 2145 (XXI) terminating the Mandate of South Africa was adopted by the U.N and the
Security Council adopted Resolution 276 (1970) which declared the continuous presence of South Africa
in Namibia as illegal and called upon other Member States to act accordingly. An advisory opinion was
however demanded from the International Court of Justice.
88

Question:
Are mandates adopted by the United Nations
binding upon all Member States
so as to make breaches or violations thereof result in a
legal obligation on the part of the violator to rectify the
violation and upon other Member States to recognize
the conduct as a violation and to refuse to aid in such
violations?
89

Answer: Yes
 Yes. Member States of the United Nations are bounded by its mandates and violations or breaches
results in a legal obligation on the part of the violator to rectify the violation and upon the other
Member States to recognize the conduct as a violation and to refuse to aid in such violation. As
Member States, the obligation to keep intact and preserve the rights of other States and the people in
them has been assumed.
 So when a Member State does not toll this line, that State cannot be recognized as retaining the rights
that it claims to derive from the relationship. In this particular case, the General Assembly discovered
that South Africa contravened the Mandate because of its deliberate actions and persistent violations of
occupying Namibia.
90

What can be done if mandate is beached
 Hence, it is within the power of the Assembly to terminate the Mandate with respect to a violating
Member State, which was accomplished by resolution 2145 (XXI) in this case. The resolutions and
decisions of the Security Council in enforcing termination of this nature are binding on the Member
States, regardless of how they voted on the measure when adopted.
 South Africa is therefore bound to obey the dictates of the Mandate, the resolution terminating it
as to South Africa, and the enforcement procedures of the Security Council.
 Once the Mandate has been adopted by the United Nations, it becomes binding upon all Member
States and the violations or breaches of this Mandate result in legal obligations on the part of
the violator to rectify the violation, and upon the other Member States to recognize the conduct as a
violation and to refuse to aid in such violation.
 Discussion. Despite agreeing to restore independence to Namibia with the United Nations, South
Africa did not. A number of mandatory sanctions for enforcement were now adopted by the General
Assembly and the action of South Africa was “strongly condemned”
91

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