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PIL W1
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PIL – Week 1 – AssignmentAssignment 1
Taking into account the sources of international law, and ignoring any substantive rights or obligations
under the law of the sea not specified in problem, do States B, C and G have a right, in 2007, for their
vessels to fish between 12 and 200 miles from State A’s coast? If not, when did they lose the right?
UN General Assembly’s resolutions: Not legally binding, not completely irrelevant, they are
recommendations, customs, state practice in GA all states are presented (Nicaragua case para 188-GA
resolutions can be seen as state practice and potentially opinio juris but only when adopted unanimously or
nearly unanimously). The International Court of Justice has in a number of cases utilised General
Assembly resolutions as confirming the existence of the opinio juris, focusing on the content of the
resolution or resolutions in question and the conditions of their adoption. The key is the attitude taken by
the states concerned, whether as parties to a particular treaty or as participants in the adoption of a UN
resolution.
Parties that do not sign and ratify the particular treaty in question are not bound by its terms. This is a
general rule and was illustrated in the North Sea Continental Shelf cases97 where West Germany had not
ratified the relevant Convention and was therefore under no obligation to heed its terms. Hence, state C, G
and B are not bound by the rules within the treaty. However, where treaties reflect customary law then
non-parties are bound, not because it is a treaty provision but because it reaffirms a rule or rules of
customary international law.
According to the North Sea Continental Shelf case, for behaviour of a state to create a customary law it
must be extensive, uniform & should show a general recognition that a rule of law/legal obligation is
involved. Also, according to the Nicaragua case the behaviour must amount to a settled practice and opinio
juris. Here, States A, D, E & F follow the rule which can be seen as constant practice. Most states accepted
A’s behavior. Also, States B, C and G have made no further objection to the other States about their
change of behaviour and following in the footsteps of State A.
In 1999 the customary law (2) has become codified within a resolution which has been passed by the
majority of States (90%) which at this point would allow it to be considered a general rule internationally.
During this time, State B is no longer actively objecting against it since they abstained from voting on the
resolution and later signed said resolution but not ratified it. This indicates a desire to consent to the
change at some point in time. State B can no longer be said to be a permanent objector and will be bound
by the law, if not in the Treaty then within the customary law which the rule (2) has now become a part of.
State G is arguable in the sense that up until this point there has been no consistency in their behaviour
regarding objections. We can either argue that they are too late to be considered a permanent objector since
a State is meant to have objected since the beginning of the change in rules and will have been bound by
customary law since the beginning OR we can argue that State G has made their objections in time to be
considered a permanent objector and will not be bound by the Treaty but may be bound by customary to
respect the change in customary law to the new rule (2). State C has objected since the beginning and at
every step of the way to prevent the change in international law but has been unsuccessful. They would not
be bound by the Treaty but may still be bound by customary law. In this scenario, the new customary rule
(2) would have to be followed in respect of other States territory, as not following this rule would mean
State C would be violating another States’ recognised territorial waters, which is a right of a State to own.
In the case, State B, C and G have lost their right to object when the treaty emerged in 2005.
Assignment 2
The question of the relations between treaties and custom is of great importance. The Vienna Convention
on the Law of Treaties of 1969 states, in its preamble, the belief that “the codification and progressive
development of the law of treaties achieved in the present Convention will promote the purposes of the
1
, United Nations set forth in the Charter”, and reaffirms that “the rules of customary international law will
continue to govern questions not regulated by the provisions of the present Convention”. 1 At the time of its
conclusion, the 1969 Convention was not intended to exhaust the law of treaties, customary or still in the
making; nor could it anticipate all of the future developments in this area. 2 The wording of the preamble,
however, leaves no doubt as to the close relationship between these two sources of international law, even
though the reaffirmation referred to above has left something important unsaid, to which attention will
return later in this article.
Two additional facts also underline this relationship's importance. Firstly, it is a particularly pertinent issue
in international judicial practice. The constituent documents for international judicial bodies always
provide a list of formal sources without limiting their scope. The dividing line between the sources is
usually indicated by the different ways in which a rule is formed. The sources of treaties and custom are
the primary ones in which to look for the rule, so that the interaction between them often exists from the
beginning of the life of those judicial bodies. A good example is that of the Report of the UN Secretary-
General, S/25704, endorsed fully by the UN Security Council in May 1993,4 for the purpose of establishing
an international tribunal to prosecute serious violations of international humanitarian law (IHL) in the
former Yugoslavia, later known as the ICTY. In that report, the Secretary-General spelled out the body
of customary law to be applied by the ICTY, which included the following treaties: 1) the Geneva
Conventions of 12 August 1949 for the Protection of War Victims; 2) the Hague Convention (IV)
Respecting the Laws and Customs of War on Land and the Regulations annexed thereto of 18 October
1907; 3) the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948
and 4) the Charter of the International Military Tribunal of 8 August 1945. The list effectively outlined the
sources of applicable law for the purpose of the ICTY. The interesting feature of the UN Secretary-
General's Report is, of course, that he might not feel content with the prospect that the warring parties in
the territory of the former Yugoslavia could be bound by existing humanitarian treaties as successors to the
dissolved country, namely, the Socialist Federal Republic of Yugoslavia, upon their declarations of
independence.5 The acts of succession would mean that the treaties would be binding even for the warring
parties pledging allegiance to the new republics arising from the dissolution. However, given the uneven
pace at which succession was being declared by the new States, the Secretary-General tried to immediately
ensure that the ICTY would not violate the principle of legality in its future work. 6 The guarantee he found
was in mandating the ICTY to apply customary law, the large portion of whose rules, however, originated
in humanitarian treaties.
When States decide to stay away from a treaty, their practice outside the treaty will assume prominence in
affecting the formation of customary law in that regard. 8 Depending on the degree of influence of the
relevant States and their actions, their practice may be contrary, or in parallel to the practice resulting from
the implementation of the treaty. Two legal frameworks may co-exist, until practice outside the treaty, as
opposed to the practice implementing the treaty, becomes evidence of a rule of general international law.
Then, the treaty or its relevant part becomes lex specialis.
On the other hand, the States not party to the treaty, if pursuing a separate course of action from what is
required by the treaty, may face the question as to whether their action so undertaken will eventually
become subject to the customary law that was initially pronounced in the treaty as treaty rules. If they
persist with their objection to the provisions of the treaty, they could become persistent objectors on the
international plane.9
Custom: For a rule of customary international law to exist, it must be manifested in the general practice of
states. The duration of a particular international states’ practice is what qualifies it into customary
international law. Customary law systems generally suppose that the rule that they apply are long-
established. The main reason for the concerned with time is a matter of authority. Proof that a practice has
long been followed is good evidence that the rule evidence d by the practice is firmly established.
The basic rule as regards continuity and repetition was laid down in the Asylum case decided by the
International Court of Justice (ICJ) in 1950. 20 The Court declared that a customary rule must be ‘in
accordance with a constant and uniform usage practised by the States in question’.
In the Anglo-Norwegian Fisheries case- The Court dismissed this by pointing out that the actual practice of
states did not justify the creation of any such custom. In other words, there had been insufficient
uniformity of behaviour.
In the North Sea Continental Shelf cases,25 which involved a dispute between Germany on the one hand
and Holland and Denmark on the other over the delimitation of the continental shelf, the ICJ remarked that
2
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