Cases Flashcards
Western Sahara Advisory Opinion 1975
Facts:
Asked opinion of the court (1) if WS was terra nullius at the time of colonization by Spain and (2) the legal ties between the region sahara west, to Mauritania and Morocco.
Held:
The court found legal ties between Mauritania and west sahara however could not establish such ties as awarding territorial sovereignty. The court noted that the population of ties were overwhelmingly in favour of the territory’s independence
Cyprus v Turkey 2001
Facts:
Earlier, Turkey invaded and divided Cyprus. The Greenline dividing the two parts became impassible except for certain points and a decade later the Turkish area declared itself the Turkish Republican of Northern Cyprus, only to be recognised by Turkey.
Held:
The international community does not recognise this area as a state and thus, the Republic of Cyprus has remained the sole government of Cyprus. (ie not statehood to Turkey bc no gov).
North Sea Continental shelf cases
Facts:
Cases of disputes arising between Germany, the Netherlands and Denmark regarding the boundaries of the continental shelf which was rich in oil. Netherlands and Denmark ratified the continental shelf convention, and Germany wished to invoke a provision from it without signing. It tried to argued that it was a party to the treaty through acting in conformance with it.
Held:
A sate cant become a party to a treaty by acting in accordance with its provisions, the only way is signatory or other formal means - cannot become party by accident.
Relation:
While CL binds everyone except those consistently demonstrating differently, treaties are only binding on those signatory to the treaty.
Fisheries Case (UK v Norway)
Facts:
The system of delineation which was used generally as CL to measure coast lines was argued by norway to be not applicable to them due to their consistent and long used practise of straight line method.
Held:
The Persistent objector rule applied to Norway in that their longstanding practise of using a different method to measure their coastline was a justified exception and proved their objection to custom since the beginning.
Relation:
The general rule of IL law - that CL is applicable to all states is subject to the exceptions of (1) local CL or (2) persistent objector rule.
Nicaragua Case 1986
Facts:
Nicaragua was supporting the guerrillas in El salvador. The US found out and werent happy. later an attack was carried out by FDN and ADRE in Nicaragua which US financially supported. US declared self-defence art 51. The court was asked, in realtion to the US’s reservations on art 2(4), whether art 2(4) and 51 had an equivalent in CL and could be prosecuted by that means.
Held:
Court analysed art 51 and provided elements which should be satisfied for the use of this defence. 1. state a victim. 2. declare itself a victim. 3. request assistance. 4. report to SC. considering none of the above elements were satisfied court held 51 was not justified. further held that 2(4) has CL equivalent and even though US didnt accept jurisdiction of the UN charter, it had to abide by 2(4) under CL.
Relation:
Treaty law can be adopted into CL.
Court used 4 elements of IL to provide narrow scope of the use of art 51. regardless of reservations made, states must still abide by CL. 2(4) is CL –> treaties can create CL.
Arrest Warrant Case
An international arrest warrant was issued to a Congo diplomat by Belgium judge for “ grave violations of international humanitarian law”. Congo now seeks an order to drop arrest due to breach of immunity and have reparation for humiliation.
Held:
Immunity was breached by Belgium.
Relation:
Diplomats enjoy complete immunity when abroad, however not regardless of the gravity of the crime.
Qatar v Bahrain 1994
Qatar and Bahrain were in dispute for 20 years over the maritime boundaries and sovereignty of islands, during which time several meetings were had to which concluded that the ICJ had jurisdiciton. In the absence of a concluded formal agreement, it was asked of the court if the minutes of the meeting amounted to a treaty for the purposes of international law.
Held:
The court had jurisdiction as per the minutes, which were considered a treaty for the purposes of the dispute, because the intentions of either state was to create an obligation and agreement of the process and jurisdiction.
Relation:
VCLT doesnt require a treaty to be in a particular form. the formalities of the treaty are irrelevant, what is paramount is the intention of the treaty and whether that article, in whatever form it is presented, captures the intention of the parties. there must be (1) an intent to create obligations and (2) an intent to create legal relations.
Advisory opinion in the reservations to the genocide convention (1951)
Facts:
Was asked of the courts opinion by the GA whether reservations to a convention were prohibited if other signatory states objected to the reservations.
Held:
That it did not have jurisdiction to judge on this particular convention as that was the position of the signatory states to decide as parties to the convention. however ruled that even a convention which did not contain a article on the subject of reservations, and as long as the reservation is not in contrary to the purpose of the treaty, it was permissible and the state would remain party to it.
Relation:
Reservations made by a state are permissible and will not prohibit said state from being a party to the treaty UNLESS the reservation is incompatible with the purpose of the treaty.
The VCLT takes a balanced approach to reservations in adopting both the relative and absolute approach.
Temple Case of Cambodia v Thailand (1962)
Facts:
Cambodia complained that Thailand occupied a piece of its territory. Earlier, Thailand and Cambodia signed a bilateral treaty which provided provisions for territory, however the initial maps showing the territorial divisions were not exchanged. Later, a map draw by the French (then, cambodia was part of french china) illustrating different boundaries, were exchanged. Thailand didn’t notice these changes and claimed that due to “error” they had not accepted the treaty.
Held:
Thailand didnt take precautions to investigate the map prior to signing and cambodia had relied on its acceptance. For 50yrs thailand had enjoyed the benefits that the treaty conferred on her. Thus Thailand was to vacant the premises.
Relation:
Error under 48 is not a valid excuse if the party could have avoided it.
Fisheries Jurisdiction Case (UK v Iceland)
Facts:
UK and Germany instituted proceedings against Iceland over its proposed extension of its fishery jurisdictions from 12NM to 50NM. Iceland argued that ICJ didnt have jurisdiction over the matter and failed to present itself ti the case. Iceland further argued that because the 12 mile rule was recognised now domestically, the treaty is no longer binding.
Held:
The extension of its boundaries was valid as it was within the 6month timeframe allowed for by the treaty, however its claim to not be bound by the treaty due to change in domestic fishing practises which implement the 12 mile rule did not alleviate it from its obligations under the treaty.
Relation:
1. Art 64 provides that a change in domestic legal conditions does not affect international obligations or relations unless it falls within one of the articles exceptions.
2. If a party fails to be represented in court the ICJ has jurisdiction.
Island of Palmas Arbitration (1928)
- US v Netherlands
- Title of discovery versus title by exercising sovereignty
Facts:
Both US claimed and Netherlands claimed ownership of island of palmas. US claimed title as it was part of the Phillipines and that Spain succeeded it. Netherlands claimed exercise of sovereignty as it was part of Holland. Thus the court examined whether a title by succession can prevail over a title fond on the continuous and peaceful display of sovereignty.
Held:
Territorial sovereignty of the Netherlands was not contested for an extended period and so the title of discovery by the US without any subsequent acts does not prevail over Hollands title.
Relation:
- Peaceful and continuous display of sovereignty is as good as title, but discovery alone without subsequent acts cannot prove sovereignty.
- Effective occupation -
effective exercise of sovereignty over an occupied territory will often depend of various factors, including the size of the territory and whether it is inhabited at the time or not. - Two elements of effective occupation:
o Intention and will to act as sovereign
o Actual exercise and display of such authority
Eastern Greenland Case
- Denmark v Norway
- statements made by ministers are binding on the country
Facts:
In wanting to hold Norway accountable, Denmark claimed that the statement made by Norway’s minister, that Norway would respect Denmarks sovereignty over eastern Greenland, was binding on his country. Norway argued that Denmark only exercised territorial sovereignty over a selective part of eastern Greenland and it wasnt suffice to claim ownership.
Held:
Norway was bound by its declaration made by its minister.
Relation:
A statement made by a countries minister will be binding
Lotus Case (2001) - argument on jurisdiction
Facts:
Collision into a Turkey Ship by a French ship killed several turkey citizens. Turkey claimed french acted in negligence and claimed jurisdiction to try Demons
and Demon (the french) argued that Turkey was prohibited by international law to try demon because he was a foreign national outside turkeys state.
Held:
Turkeys actions of obtaining jurisdiction were not in contravene of existing laws.
and to that end, ruled that Turkey can exercise jurisdiction.
Relation:
Sovereign states may act how they wish as long as it doesn’t contravene explicit prohibition.
Columbia v Peru
Relation:
Diplomatic asylum must be established legal in its case by a treaty or by IL.
LaGrand Case (state responsibility)
Facts:
Relation:
The conduct of a state organ is considered an act of tha state under IL whether the organ exercises legislative executive or judicial fuctions. and despite whatever position it holds in the organisation and whatever its character as an organ of the central government or of a territorial unit of a state. (art 4 ARSIWA).
