The Statute of the International Court of Justice

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Question One

Article 38 of the Statute of the International Court of Justice (SICJ) provides three main sources of international law. The first source is international conventions of a general or particular nature. Secondly, international custom is a source of law if it is evidenced that a certain custom has been accepted as law. The third source is general principles of law recognised by civilised nations. These three sources of international law are supplemented by two subsidiary means for the determination of rules of law^[1]. The first is judicial decisions, although it should be noted that even the decisions of the International Court of Justice (ICJ) only have binding force between the parties and in respect of the particular cases submitted to the court^[2]. The second subsidiary source is the teachings of highly qualified publicists of the various nations.

a) An article in the European Journal of International Law does not have binding force. However, by virtue of A.38 SICJ, if the journal article was written by a highly qualified and regarded publicist, it may be legitimate for a court to grant weight to the contents of the article. The question as to whether a publicist is highly regarded is a subjective one, therefore it is advisable that the weight attached to the article is minimal.

b) The International Law Commission routinely drafts conventions on subjects which have not yet been regulated by international law. A draft treaty which has been produced by the International Law Commission is not binding upon the states. However, the draft treaty will be regarded as a highly persuasive statement of present state practice in a particular area of the law.

c) Whilst a decision of the House of Lords is not a primary source of international law, if the decision is relevant and is made by a court that is highly regarded (the House of Lords is highly regarded), the decision will be taken into account in assessing principles of international law. Article 38(1)(d) provides that judicial decisions can be a source of international law; A.38 does not limit the definition of judicial decisions to decisions of international tribunals. The weight that will be attached to the decision will depend on how highly regarded the decision-making court is in the international sphere. Alternatively, a decision of the House of Lords can be evidence of state practice for the purpose of establishing that the ratio decidendi reflects customary international law.

d) A press release from the government of Incognita is not a source of international law. Its existence as a source of international law has no basis in the SICJ.

e) A United Nations General Assembly Resolution is not binding on member states but, when it is concerned with general norms of international law and is accepted by a majority vote, it constitutes evidence of the opinion of governments in the widest forum for the expression of such opinions. In some cases, a “resolution may have direct legal effect as an authoritative interpretation and application of the principles of the Charter”^[3]. It is important to asses each resolution in light of all the circumstances and by reference to other evidence of the opinions of the states on the point in issue.

f) A treaty is only binding as between signatories^[4], therefore as Incognita has not signed the treaty it is not binding on the state. Even multipartite treaties only bind those states who are party to it. However, the fact that the treaty has been signed by all states in the region, with the exception of Incognita, may be evidence of the fact that the treaty has become part of the customary international law and thus is a rule of custom that binds all states.

Question Two

The rules for delimiting baselines are found in Articles 4-14 and 16 of the Law of the Sea and these rules represent customary international law. The starting point for determining a baseline is the low water line along the coast, however as Atlantis’ coastline is fringed with islands it is impractical to draw a low water line. In this case, it is practical for Atlantis to draw a straight baseline connecting the outer lying rocks along the coast^[5]. Therefore, Atlantis’ baseline around the Octopus Islands is valid under international law as the baseline has not departed from the general direction of the coast and the sea inside the line is sufficiently closely linked to the land. Under customary international law, Utopia is justified in drawing a baseline across the Bay of Oysters^[6]. However, the Exclusive Economic Zones (EEZ) that have been drawn by Atlantis and Utopia respectively are somewhat problematic. The law states that a state’s EEZ extends to 200 nautical miles perpendicularly from its coast. It is clear that Atlantis’ EEZ exceeds the prescribed 200 mile limit as it extends to 250 miles in some areas. It is not clear how far Utopia’s EEZ extends, but it is unacceptable that the EEZs of the two states overlap. state coastal baselines are less than 400 nautical miles apart. When an overlap occurs, it is up to the states to delineate the actual boundary. Otherwise, any point within an overlapping area defaults to the most proximate state^[7]which, on the facts is Utopia.

As internal waters constitute an integral part of the territory of a state, a state is entitled to enforce its domestic law against all ships and all those on board within its internal waters, subject to the rules of sovereign and diplomatic immunity. A state is not obliged to allow any foreign vessels into its internal waters, except in cases of distress. Consequently, the state of Atlantis was entitled to arrest the Utopian boat that was discovered within its internal waters. Similarly, Utopia was entitled to arrest the boat found within the Bay of Oysters. A state’s territorial sea extends for 12 nautical miles from its coast. Whilst a state does have a degree of control over its territorial sea, this is subject to the right on innocent passage contained in Article 14(4) TSC. Therefore, Atlantis and Utopia will be in breach of international law if the respective ships they arrested were exercising the right of innocent passage, that is to say that the boats were navigating without prejudicing the peace, good order or security of the coastal state. States are entitled to arrest ships that breach the right of innocent passage by virtue of article 27 LOSC. However, the treatment of fishing vessels is somewhat different. Under artcile 14(5), TSC, the passage of foreign fishing vessels is only considered innocent if the vessels observe such laws and regulations as the coastal state has made and published. Atlantis arrested a fishing vessel that was situated 150 miles from the Atlantis coast. Article 19(2) LOSC provides examples of types of activities that will mean that the perpetrators cannot avail themselves from arrest by claiming the right to innocent passage; fishing is one such activity as it does not involve a mere passage through the seas. States have a right to control the fishing activities within their EEZs, therefore, providing that Atlantis’ EEZ has been correctly defined, Atlantis has the legal authority to arrest the vessel.

Question Three

The right to self-determination is a fundamental principle of human rights law and the obligation to respect this right is a prominent feature of the United Nations Charter, appearing in both the Preamble and in Article 1. The ICJ has held ruled that the right to self-determination is a right held by the people rather than by governments alone. The legal right to self-determination was elucidated in the Declaration on the Granting of Independence to Colonial Countries and Peoples 1960^[8]. Self-determination is also a well-established principle of customary international law and consequently there remain very few colonial territories which have not achieved independence or some form of self-government. In order to exercise the right to self-determination it is necessary that there is “a free and genuine expression of the will of the peoples. When the existence and applicability of the right to self-determination is accepted, other states have a legal responsibility to ensure that any impediments restricting the right to self-determination is brought to an end^[9]. The essence of the right consists in the right of the community which has a distinct character to have this character reflected in the institutions of government under which it lives. These distinct features encompass race, culture, language, religion and group psychology and these features can be elaborated on by reference to a common historical tradition; ethnic group identity; cultural homogeneity; linguistic unity; religious or ideological affinity; territorial connection and a common economic life. On the facts, the people of Redlands do satisfy most of the factors listed above so it would seem that, in theory, they will be able to enforce their right to self-determination.

However, the enforcement of the right to self-determination can be somewhat problematic. The right of a state to exercise its right to self-determination has historically and traditionally taken place through agreement with the parent state, as most states acknowledge that they must give effect to this important and fundamental right under international law. If the Supreme Court of Blueland refuses the Redlanders’ requests to grant independence to the Redlanders, Blueland may be in breach of international law, therefore it is likely that the court will grant independence. The Redlanders have a historic link to their land and are united as an ethnic group, which has a distinct character to Bluelanders. The Redlanders enjoy both a historical occupation of a defined geographical area and a special relationship with the land, as they were the first peoples to inhabit the land. Indeed, even if the Blueland legislature were to refuse the request of the Redlanders, history demonstrates that the United Nations is likely to support unilateral succession if the colonial authority stands in the way of self-determination. It would be necessary to determine the extent of the Redlanders’ representative government, as this is a further requirement of self-determination. This requirement demands avenues for genuine political participation, and there must be the capacity to participate on the basis of individual and shared identities. If the islanders fail to gain independence as a result of judicial restrictions, the Redlanders could try to negotiate a settlement or plebiscite or involve an impartial organisation like the United Nations.

Question Four

The treatment of Alan and Mary constitutes a breach of international law because they have been arbitrarily imprisoned without charge. If a citizen of a state is the victim of wrongful treatment by another state, the citizen’s state has a right to intervene on a diplomatic level to insist that the respondent state remedies the wrong. The law recognises international minimum standards that apply to citizens who are in a foreign state and most Western states adhere to this standard. This area of the law is controversial however, because there is also authority for the idea that foreign citizens are treated by the standards of the state that they are visiting. Nevertheless, it is clear that the treatment that Alan and Mary have received falls below the treatment that a Distopian citizen would receive as the police are applying a system of arbitrary arrest to foreign nationals only, therefore the state or states of which Alan and Mary are nationals may intervene. However, the common law shows that states may only intervene to protect nationals. A person may be regarded as a state national under domestic law, whereas principles of international law may disregard national principles and will not regard a person as a national of a state. Alan and Mary have British nationality but they may not be regarded as British nationals for the purposes of international law. The generally accepted rule under international law is that the person must have had, continually and without interruption from the time of the harm until judgment, the nationality of the applicant state. A further requirement is that a person will only be regarded as a national of a state if he has a ‘genuine connection’ with it^[10]. Alan has a genuine connection with the UK as he was born in Britain and his parents are British. Therefore, it seems that the UK could successfully establish the right to make a claim against Distopia on Alan’s behalf. The situation of Mary is more complicated. Mary has only acquired British nationality by marrying Alan, thus she may lack the requisite genuine connection to Britain for the purposes of international law. The case of Nottebohm^[11] concerned a German man who obtained Liechtenstein nationality. Nottebohm had little real connection with Liechtenstein as he only visited the country on a few occasions and never resided there. In fact, he resided in Guatemala for 34 years. The Liechtenstein government wished to initiate proceedings against Guatemala, however the ICJ ruled that Nottebohm lacked the requisite genuine connection with Liechtenstein, as his connection with Guatemala was far stronger and, consequently, Liechtenstein was not entitled to extend its protection to him. As Mary has never visited the UK, it seems that she too lacks the requisite connection with Britain. However, the International Law Commission (ILC) in its Draft Articles on Diplomatic Protection adopted in 2002^[12] did not require establishment of a genuine link as a requirement of nationality and the Commentary argues that the Nottebohm case should be confined to its particular facts. Therefore, the UK can assert its protection to Alan and possibly to Mary. The ICJ will decide whether the UK can succeed.

Question Five

It is a well-established principle of law that states are not free to determine the choice of weapons they may legally use. The law has placed general restrictions on the types of weapons that may be used, as well as specific prohibitions on particular types of weapons. The general restrictions on weapons take the form of two main principles. Firstly, the ‘unnecessary suffering principle’ prohibits the use of weapons that cause unnecessary and disproportionate suffering^[13]. This principle requires a state to evaluate whether there are other weapons available that would cause less injury, whilst achieving the same military objectives. It follows that there must be a balance between the military advantage that may be gained by the use of the weapon, and the degree of suffering that is likely to result from its use. Secondly, the ‘discrimination’ principle prohibits the use of weapons that cannot be directed against a specific military objective and which are, therefore, likely to strike civilians and military targets without distinction^[14]. Various treaties have specifically outlawed the use of certain types of weapons, for example poison and poisoned weapons^[15]; asphyxiating and poisonous gases^[16]; automatic submarine contact mines which do not comply with the requirements of the Hague Convention No VIII 1907; and certain uses of incendiary weapons, in particular the use of air delivered incendiary weapons against targets situated amongst concentrations of civilians^[17]. The UN Convention on Conventional Weapons 1981 prohibits the use of numerous weapons, including weapons which injure with fragments which cannot be detected by x-rays^[18]; land mines which are designed to kill, injure and maim^[19]; and laser weapons that are designed to cause permanent blindness^[20].

Nuclear weapons are not strictly forbidden by any international instrument, however the international community has sought to impose restrictions on the possession and deployment of nuclear weapons^[21]. The International Court of Justice gave an advisory opinion in 1996^[22] in which the court stated that the use of nuclear weapons was subject to three principles: the necessity to use them; the proportionality of their use; and the obligation not to cause unnecessary suffering

The Geneva Gas Protocol 1925 prohibits the first use of lethal biological and chemical weapons, however there is less certainty with regard to the use of non-lethal biological and chemical weapons. The Biological Weapons Convention 1972 and the Chemical Weapons Convention 1992 prohibit the production and stock-piling of specific weapons.

There is emerging authority that weapons which have a certain effect on the environment are forbidden. Currently, this prohibition is only a feature of treaty law and not yet customary international law. The UN Convention on the Prohibition of Military Use of Environmental Modification Techniques 1977 prohibits signatories from using weapons that change the dynamics, composition or structure of the earth. In addition, Article 55 of the Geneva Protocol I Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of International Armed Conflicts1977 prohibits states from using weapons that cause widespread, long-term and severe damage to the natural environment, and which prejudice the health and survival of the population. It is hoped that the law in this area will be developed to keep track of the various traditional and modern weapons whose use can have severe consequences for the environment.

Bibliography

Brownlie, “Principles of Public International Law”, 2003, 6^th ed. Oxford University Press

Cassese, “International Law”, 2004, 2^nd ed. Oxford University Press

Wright, “Minority Groups, Autonomy, and Self-Determination”, Oxford Journal of Legal Studies, 1999, 19 (605)

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Footnotes

^[1] A. 38 (1)(d) SICJ

^[2] A. 59 SICJ

^[3] that book pg 15

^[4] A. 34 Vienna Convention on the Law of Treaties, 1969

^[5] Article 7 of LOSC

^[6] Article 10 LOSC

^[7] UN Convention on the Law of The Sea.

^[8] Resolution 1514

^[9] See Palestinian Wall Advisory Opinion (2004 ICJ Rep, at para. 159)

^[10] Nottebohm, ICJ Reports (1955)

^[11] ibid.

^[12] See article 3, ILC 54^th Report, p. 173

^[13] Article 23(e) Hague Regulations

^[14] Article 51(4) Additional Protocol I

^[15] Hague Regulations on Land Warfare, 1907, A.23(a)

^[16] Geneva Gas Protocol 1925

^[17] The UN Conventions on Conventional Weapons 1981, Protocol I

^[18] Protocol I

^[19] Protocol II

^[20] Protocol IV

^[21] See the Treaty on the Non-Proliferation of Nuclear Weapons 1963

^[22] Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion, ICJ Reports, p. 226; 110 ILR 163