PIL Flashcards
which case said that IL is the will of the state?
SS Lotus
when was league of nations established?
1920
when was the statute of teh PCIJ drafted?
1920
who chaired teh drafting committee of the PCIJ statute?
belgian professor and senator, baron edouard descamps
when was UN established?
1945
when was PCIJ completely replaced by ICJ
1946
which case laid down the basic rule regd continuity and reptition?
asylum case
which case laid down that ‘Some degree of uniformity amongst state practices was essential before a custom would come into existence.”
anglo Norwegian fisheries case
four modes of acquiring territory
occupation, prescription, accretion, cession
concept of territorial sovereignty in which article of un charter
article 2(4) and 2(7)
four ways thru which the state can acquire territory
occupation, prescription, cession, and accretion
which article thru which the states can keep territory acquired thru self defence
article 51
island of palmas case
netherlands v. usa
what were the contentions of usa
(spanish) discovery, nothing has caused the title to disappear so need to display actual sovereignty, principle of contiguity and so palmas is part of the philippines.
contentions of netherlands in palmas case
discovery by spanish contested, principle of contiguity contested, if any title that did exist, it has been lost. east india company has had title since 1667
sovereignty in the relationship w other states signifies
independance
what is essential to establish superior totle
peaceful and continuous display of title
claim of usa in the island of palmas case was thru?
cession, treaty of paris, article 3: transfer of all rights spain possessed
palmas case ratio?
discovery alone (by spain and subsequent transfer), without maintaining it would not constitute territorial sovereignty. inchoate title must constitute effective occupation for some time, the continuous and peaceful display of territorial sovereignty (peaceful in relation to other States) is as good as a title.
island of palmas belongs to whom?
netherlands
what kind of territory is acquird by occupation”?
terra nullius
In order to show occupation, the Eastern Greenlands case considered two criterion -
Intent or will to act as a sovereign
Adequate exercise or display of sovereignty.
critical date?
when teh rights of the parties crystallise - it must also be shown that the territorial sovereignty has continued to exist and did exist at the moment which for the decision of the dispute must be considered as critical.
max huber based his arguments on:
effective occupation, critical date, intemporal law, principle of contiguity rejected
clipperton island arbitration between?
france v. mexico
history of clipperton island?
Englishman Captain Clipperton - france discovered but didn’t claim - 1858 france claimed - later france saw american were mining waving the US flag - mexico later came and claimed sovereignty
clipperton island case held
territory which is uninhabitable and for teh full disposal of a party, the possession becomes perfect the occupation occurs. france occupied, and never showed the animus of not occupying it. no positive act is required in this particular case
clipperton island issue: Regarding whether Spain discovered the island
arbitrator held?
Mexico claimed the land based on a claim of ‘historic right’, due to the discovery by Mexico. Here the Arbitratoy found Mexicos claims as being unsubstantiated, and hence not valid.
clipperton island issue: Status of the land before 1898
arbitrator held?
Before 1898, Mexico had not done anything on that island , so they had no claim there.
clipperton island issue: Status after 1898?
arbitrator held?
Even though France declared their right over Clipperton island in 1858, the arbitrator looked into whether there was animus occupende or an intent to occupy. Specifically due to the nature of this territory as being uninhabitable, the arbitrator considered that exercising effective control cannot be done the same way over this territory like other states. Therefore, what was looked into was whether there was an intent to abandon the territory. Seeing none, it was held that France had sovereignty.
clipperton island moral
Concept of effective control is fluid, and has to be assessed according to the nature of the territory.
Eastern Greenlands Case?
norway v. denmark
what two criteria did the court (eastern greenlands case) give when there is a claim to sovereignty based not on title thru treaty or cession, but thru continued display of authority?
Intention and will to act as a sovereign
Actual exercise or display of such authority.
what factors did the court consider in proclaiming that denmark has sovereignty over eastern greenlands island?
making laws to regulate activities such as fishing and hunting, give access to the island to british and french nationals, statement made by the secretary of norway that they would help denmark in the settlement of territories, thus recognizing denmark’s claim.
Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia v. Malaysia)
Eastern Greenlands Case in favour of?
denmark
Clipperton Island Arbitration in favour of?
france
Island of palmas case in favour of?
netherlands
Sovereignty over Pulau Ligitan and Pulau Sipadan
malaysia
Sovereignty over Pulau Ligitan and Pulau Sipadan ratio?
16:1
critical date in Sovereignty over Pulau Ligitan and Pulau Sipadan case
the time of delineation of territory, but practices even after that date were also considered
Indonesian claims in the pulao ligitan and pulao sipadan case
conventional title, drilling activities, fishermen considered it part of their territory, continued presence of dutch and indonesian navies
which court had taken up the pulao ligitan and pulao sipadan case
PCIJ
on what all grounds did PCIJ reject the claims of indonesia in Pulau Ligitan and Pulau Sipadan case
- no convention title couldn’t substantiate it
- the navies that patrolled didn’t consider
in whose favour was the pulao ligitan and pulao sipadan case
malasiya
to show effective occupation the following must be shown:
- before occupation it was terra nullius
- occupation was on behalf of states rather than individuals
- effective taking of possession
- intent to occupy as sovereign
what is prescription
the same thing as adverse possession, the possessor was peacefully occupying the property and the owner had no problem.
three ways to certify effective prescription
(a) possession must be exercised à titre de souverain; (by the sovereign authority)
(b) possession must be ‘peaceful and uninterrupted’; and
(c) possession must exist for ‘a reasonable length of time’.
Case concerning sovereignty over Pedra Blanca/Pulau Batu Puteh between?
Malaysia v. Singapore
Case concerning sovereignty over Pedra Blanca/Pulau Batu Puteh between was over what structures and where?
straits of singapore - pedra blanca/palau batu puteh, middle rock, south ledge
feature of pedra blanca
a granite island, measuring 137 m long, with an average width of 60 m. It is situated at the eastern entrance of the Straits of Singapore – one of the busiest maritime passages in the world.
feature of middle rock
cluster of rocks
feature of south ledge
low tide elevation
timeline in the pedra blanca/pulau batu putejh case
1979 - malasiya published map
14th february, 1980 - singapore disputed map
6th feburuary 1993 - issue over middle rock and south ledge arose
critical date of pedra blanca dispute
14th feb 1980
critical date of middle rock and south ledge
6th feb 1993
contentions of malaysia in pedra blanca case
- had original title and nothing had occurred to dispute it
- construction of lighthouse + other activities by Singapore was a result of grant by sultan of johor whose successor was malaysia
- all three islands were not to be seen as seperate and had to be independently assessed
contentions of singapore in pedra blanca case
- pedra blanca was terra nullius and thus construction of lighthouse was act of sovereignty
- no sovereign claimed pedra blanca before the british went there
- three islands were a single maritime feature and thus sovereignty was established over one, it could be est for the rest.
which court decided the pedra blanca judgement?
ICJ
pedra blanca judgement by ICJ?
singapore has sovereign bcs malaysia failed to establish effective occupation.
ratio in pedra blanca case
12:4
prescription case
pedra blanca - malaysia v. singapore
middle rock sovereignty
malaysia
south ledge sovereignty
art 13 of UNCLOS
which article for revision
61 - revision after discovery of some fact of decisive nature, unknown to court, provided that the ignorance was not due to negligence.
The application for revision must be made in six months from discovery of new fact, and no application for revision can be made after 10 years from judgment.
who gave for revision in the case of pedra blanca
malaysia
what was the end result of the pedra blanca case
mutual settlement
Frontier Dispute (Benin/Niger) what held?
UPP was determining factor to determine sovereignity
Case Concerning Territorial and Maritime Disputes Between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras)
common heritage of mankind unclos section
art 136
territorial sea rights
territorial sovereignty, fisheries right right over minerals
EEZ coastal county access?
exclusive fisheries right, exclusive minerals right
extended continental shelf in the high seas coastal country access? maximum limit?
exclusive right over minerals after doing process of establishing outer border of the continental shelf, 350nm
high seas jurisdiction
all countries may fish here and unclos applies
outer space chom article?
1 of outer space treaty
stolkhom declaration of united nations conference of human environment?
chom, common concern of mankind
who discovered antartica
1773, captain cook
how many ppl have claimed antartica
7, CAANNUF (chile, Australia, argentina, norway new zealand france UK
how muchof antartica remains unclaimed?
15
which was the first nation to claim?
UK
who advanced proposal to establish international regulation of antartica
norway
wuat is the name of the first proposal
escudero proposal
ATS
Antarctic seals, anarctic marine resources, environmental protection, antarctic mineral resources (last into never entered into force)
Case Concerning Territorial and Maritime Disputes Between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras)
Acts post-independence could be relevant to determine the UPP.
El Salvador v Honduras :
Where the boundary was clear, effective display of state functions in the disputed area or economic inequality generated by old boundaries was not sufficient to displace UPP
Territorial Dispute Case
[Libyan Arab Jamahiriya/Chad]
Territorial Dispute Case [Libyan Arab Jamahiriya/Chad]
If a delimitation treaty is concluded after independence, uti possidetis does not apply because the agreed delimitation overrides the pre-existent uti possidetis, although the former could also coincide with the latter.
Land and Maritime Boundary between Cameroon and Nigeria
Even if uti possidetis is applicable, a consolidated acquiescence can overcome the former.
Principle of continuity?
the general principle followed is the principle of continuity, which states that in cases of state and government succession, the state may retain their legal identity from its preceding states.
Universal succession
In case the succeeding state accedes to all rights and duties of the previous state.
The primary document providing for state succession is the
Vienna convention on succession of states in respect of treaties of 1978
other succession convention?
Vienna convention of sucession of states in respect of property, debt and archives
which article of treaty succession convention defines state succession?
art 2(1)(a)
2(1)(a)
replacement of one state by another in the responsibility of international relations
facts ab treaty succession convention
20 (signs), 3 ratifications (Ethiopia, Iraq, Yugoslavia), 7 (accede), 4 (registered as successors)
facts ab others succession convention
signed only by 6 states
Theories on state succession
universal succession, clean slate doctrine or outright non succession
universal succession
the state retains all the rights and obligations of the old state, thereby universally succeeding the old state.
who developed the universal succession theory
hugo grotius
defect of universal succession theory
state has to inherit all obligations and liabilities and treaties and they r being forced upon him
Nottebohm case
(Liechtenstein v. Guatemala
Nottebohm case which court
ICJ
Change in Treaty Obligations upon succession of state five ways?
total rejection, devolution, temporary, selective, deferrment of decision
total rejection countries
clean slate doctrine, israel, algeria, upper volta
devolution?
agrees for the prior treaty rights and obligations = british dependencies
temporary application?
nyerere doctrine, prince nyerere of tanganyika, review and alter, lapse option exists
selective application?
pick and choose unilaterally = congo
deferment of decision
they don’t declare their decision on various treaties, madagascar
succession of treaty in case of succession of state if the treaty is political?
nope
art 62(2) of vclt
VCSS - T full form
Vienna Convention on succession of state with respect to treaties
VCSS - T Art 12
territorial treaty succeeded
nagymaros case
hungary slovakia
nagymaros case
treaties which are related to territory are succeeded, this is CIL
moving fronties treaty principle act and article?
VCSS-T, art 15
cession effect of treaty
Art 15 of VCSS-T
merger effect of treat and act
Art 31 of VCSS-T
dissolution effect of treaty and act
art Art 34 of VCSS-T
seperation effecf of treaty and act
Art 35 of VCSS-T:
newly independant state treaty effect and act
Art 16 of VCSS-T;
how can a newly independant state establish that it is a party to a multilateral treaty?
by a notification of succession
public property
cession
incorp
merger
dissolution
seperation
newly independant state
public property
immovable property
immovable property outside the boundary
movable property
archives
bilateral treaty art and principle
art 24 25
paqute habana case
USA v. Spain, fihsinh vessels, SPAIN
Jurisdictional immunities of the state, who won?
Germany v. italy, germany
North sea continental Shelf Case, who won
netherlands and denmark v. germany, germany
North sea continental Shelf Case
facts
SS. Lotus Case
framce v. turkey
The world court project
no, it is not CIL
Military and Paramilitary Activities in and against Nicaragua
nicaragua v. usa, nicaragua
Anglo-norwegian fisheries case
UK v. norway
Once a rule of customary international law has been established and is binding on a State (States), can that State texempt itself unilaterally from the obligations imposed by that rule.
No
Newly independent states persistent objector?
no
regional CIL CASE
Asylum Case (Columbia v. Peru)
Case Concerning Right of Passage over Indian Territories
Asylum Case
(Columbia v. Peru)
Case Concerning Right of Passage over Indian Territories
portugal v. India
VCLT def. of treaty which art
art 2(1)(a)
Treaty codified CIL provisions
Declarative
party?
non party?
Party: Yes
Non party: yes, USA didn’t sign UNCLOS but it still has to follow.
Treaty codified CIL provisions
Generative
party?
non party?
Party: Yes
Non Party: No
crystallise
party?
non party?
non party not binding
principles governing treaty obligatiosn
only party to treaty bound
pacta sunt servanda
voluntary
bindingness w parties
custom n treaty complementary case, what held?
nicaragua v. usa, parallel obligations
Peremptory norms or jus cogens are mentioned in which article and where?
article 53 of vienna convention of law of treaties.
Erga omnes
obligation towards the entire community.
can a non state party also approach court in case of violation of CIL
yes
effect of a treaty violating jus cogens norms
void
montevideo which article
art 1
additional criteria for the recognition of states?
yugosalavia became state due to collective recognition by other states
Acts of recognition
release official notification, embassies and treaties
art 3 of montevideo convention which principle and what does it sayt
Article 3 of Montevideo Convention: Political Existence of the State is not dependent on the recognition of other states. (Declaratory View)
Case concerning east timor
(portugal v. australia)
tinocco concessions arbitration held?
state bound, recognition not necessary it is still a state bcs:
1. principle of continuity
2. does not matter if no recognition, it is still de facto a govenrment
Deutsche continental gas
(gessellschaft v. polish state)
Chorzow factory case
germany v. poland
UNSC Resolutions under what articles are binding on all member states
under article 24 and 25 binding on all member states
Resolutions with external effect
Non Members should respect
Chorzow factory case what held?
GPL that if you do a wrong, you have to make good to it
UNAT Case related to?
res judicata
APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(BOSNIA AND HERZEGOVINA v. SERBIA AND MONTENEGRO)
APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
res judicata
Temple of preah vihear case
Cambodia v. Thailand)
Temple of preah vihear case
principle of estoppel
Corfu Channel Case
(UK and Northern Island v. Albania)
corfu channel case
Admissibility of circumstantial evidence
Concept of trusts
(South West Africa Cases
Concept of Subrogation
(Mavrommatis Palestine Concessions Case (1925) PCIJ)
Diversion of Water from the Meuse Case
(Netherlands v. Belgium)
Diversion of Water from the Meuse Case which principle
doctrine of clean hands
“Modest in number, diverse in character and contained legislative, administrative and quasi-judicial activities”
pulau ligitan v. pulao sipadan
UPP CIL?
yes
Frontier Dispute Case
(burkina faso v. republic of mali)
If UPP is clear
effective occupation will not change the nature of title, it will not make any difference
If no UPP:
EO plays imp role to determine who has control
Case Concerning Territorial and Maritime Disputes Between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras)
which art of unclos givee common heritage of mankind
art 136
