CONCEPT territory of the State can come into effect only after their positive

enactment as a law”.
Resolution: The Minister indicates that he would therefore not
MARITIME DELIMITATION AND TERRITORIAL have been permitted to sign an international agreement taking
QUESTIONS BETWEEN QATAR AND BAHRAIN (QATAR effect at the time of the signature. He was aware of that
V. BAHR) situation, and was prepared to subscribe to a statement
recording a political understanding, but not to sign a legally
International agreements may take a number of forms and be binding agreement. The Court does not find it necessary to
given a diversity of names. Article 2 par. (1) (a) of the VCLT consider what might have been the intentions. Having signed
provides that “treaty means an international agreement such a text, the Foreign Minister is not in a position
concluded between States in written form and governed by subsequently to say that he intended to subscribe only to a
international law, whether embodied in a single instrument or “statement recording a political understanding”, and not to an
in two or more related instruments and whatever its particular international agreement.
designation.”
Argument: The acts of the parties show that they never
In order to ascertain whether an agreement of that kind has considered the Minutes to be an international agreement. Qatar
been concluded, “the Court must have regarded above all to its did not file it with the UN and did not follow the procedures
actual terms and to the particular circumstances in which it was required by its own Constitution for the conclusion of the
drawn up”. treaties.
Resolution
The Minutes are not a simple record of a meeting; they do not 1.) The Court would observe that an international agreement or
merely give an account of discussions and summarize points of treaty that has not been registered with the Secretariat of the
agreement and disagreement. They enumerate the UN may not, according to Article 102 of the Charter, be invoked
commitments to which the Parties have consented. They thus by the parties before any organ of the UN. Non-registration or
create rights and obligations in international law for the Parties. late registration, on the other hand, does not have any
They constitute an international agreement. consequence for the actual validity of the agreement, which
remains no less binding upon the parties.
Argument: Bahrain maintains that the signatories never
intended to conclude an agreement. Foreign Minister says that
according to their Constitution “treaties concerning the
CASE CONCERNING PAYMENT OF VARIOUS SERBIAN “what is contemplated is an agreement that is binding in
LOANS ISSUED IN FRANCE international law.”

1.) Any contract which is not a contract between States in their Resolution: The Tribunal notes that, in light of the object and
capacity as subjects of international law is based on the purpose of Article 15 UNCLOS, the term “agreement” refers to
municipal law of some country. The question as to which this a legally binding agreement. What is important is not the form
law is forms the subject of private international law or the or designation of an instrument but its legal nature and
doctrine of conflict of laws. The rules thereof may be common content. In Hoshinmaru, the Tribunal recognized the possibility
to several States and may even be established by international that agreed minutes may constitute an agreement when the
conventions or customs, and in the latter case may possess the Protocol or minutes of a joint commission may well be the
character of true international law governing the relations source of rights and obligations between the Parties. In Qatar
between States. But apart from this, it has to be considered that and Bahrain, the ICJ observed that “international agreements
these rules from part of municipal law. (The Court was may take a number of forms and be given a diversity of
examining the governing law in the loans contracted by the parties. I names” and that agreed minutes may constitute a binding
guess it shows the contractual nature of a treaty and the capability of agreement.
a sovereign State to subject itself to the laws of another State through
an international agreement) 1.) The Tribunal considers that the terms of the 1974 Minutes
confirm that these Minutes are a record of a conditional
understanding reached during the course of negotiations, and
DISPUTE CONCERNING DELIMITATION OF THE not an agreement within the meaning of Article 15. The Minutes
MARITIME BOUNDARY BETWEEN BANGLADESH AND stipulate that it was to be a part of a comprehensive maritime
MYANMAR IN THE BAY OF BENGAL boundary treaty.

This case involves the question of whether or not the 1974 2.) The Tribunal notes that the circumstances in which the 1974
Minutes constitute an agreement binding under international Minutes were adopted do not suggest that they were intended
law, in other words a treaty, and whether by their terms they to create legal obligations or embodied commitments of a
established a maritime delimitation. . For Bangladesh, it binding nature. From the beginning of the discussions
maintains that an “agreement” under Article 15 UNCLOS must Myanmar made it clear that it did not intend to enter into a
not necessarily be in every sense a formally negotiated and separate agreement on the delimitation of territorial sea and
binding treaty. Myanmar on the other hand emphasizes that
that it wanted a comprehensive agreement covering the 1.) A second series of undertakings by Norway, recognizing
territorial sea, the EEZ, and continental shelf. Danish sovereignty over Greenland, is afforded by various
bilateral agreements concluded by Norway with Denmark, and
3.) No evidence was also provided that the Burmese by various multilateral agreements to which both Denmark and
representatives were considered as having the necessary Norway were contracting Parties.
authority to engage their country pursuant to Article 7 (1)
VCLT. 2.) In addition to the several engagements mentioned by the
Court, the Ihlen delaration which is the reply given by M. Ihlen,
4.) The fact that the Parties did not submit the Minutes to the the Noreweigian Minister for Foreign Affairs, to the Danish
procedure required by their respective constitutions for Minister, must also be considered.
binding international agreements is an indication that the
Agreed Minutes were not indeed to be legally binding. 3.) The Court considers it beyond all dispute that a reply of this
Further, the ICJ stated in Nicaragua v. Honduras that “the nature given by the Minister for Foreign Affairs on behalf of his
establishment of a permanent maritime boundary is a matter Government in response to a request by the diplomatic
of grave importance and agreement is not easily to be representative of a foreign Power, in regard to a question falling
presumed”. within his province, is binding upon to which the Minister
belongs.

LEGAL STATUS OF EASTERN GREENLAND 4.) The Court is unable to read into the words of the Ihlen
declaration “in the settlement of this question” (i.e. the
Question her is whether the Ihlen declaration – even if not Greenland question) a condition which would render the
constituting a definitive recognition of Danish sovereignty – did promise to refrain from making any difficulties inoperative
not constitute an engagement obliging Norway to refrain from should a settlement not be reached. The promise was
occupying any part of Greenland. (Minister of Foreign Affairs unconditional and definitive. It was so understood by the
promised to refrain from making difficulties in the settlement of the Norwegian Minister for FA when he told the Danish minister
Greenland question. Note however that this was interpreted along that “it was a pleasure to Norway to recognize Danish
with several engagements showing that Norway indeed recognized sovereignty over Greenland”. Hence, Norway is under an
Denmark’s sovereignty over Greenland) obligation to refrain from contesting Danish sovereignty over
Greenland as a whole, and a fortiori to refrain from occupying
a part of Greenland.
 NUCLEAR TESTS CASE (AUSTRALIA v. FRANCE) 2.) In view of the foregoing, the Court finds that France made
public its intention to cease the conduct of atmospheric
Present case relates to a dispute between Australia and France nuclear tests following the conclusion of the 1974 series of
concerning the holding of atmospheric tests of nuclear weapons tests.
by the latter in the South Pacific Ocean. (Compare this case with
Article 2 par. (1) (a) VCLT) 3.) It is well recognized that declarations made by way of
unilateral acts, concerning legal or factual situations, may have
1.) The Court is in possession not only of the statements made the effect of creating legal obligations. Declarations of this kind
by French authorities concerning the cessation of atmospheric may be, and often are, very specific. When it is the intention of
nuclear testing, but also of the views of the Applicant on them. the State making the declaration that it should become bound
according to its terms, that intention confers on the declaration
a. The first statement is contained in the communiqué the character of a legal undertaking, the State being thenceforth
issued by the French President; legally required to follow a course of conduct consistent with
b. A document made by counsel at a public hearing in the declaration. An undertaking of this kind, if given publicly,
the proceedings parallel to this case saying that and with an intention to be bound, even though not made
atmospheric tests will be the last to be carried out; within the context of international negotiations, is binding. In
c. Relevant statements made by French authorities these circumstances, nothing in the nature of a quid pro quo nor
subsequently to the oral proceedings; any subsequent acceptance of the declaration, nor even any
d. Press conference of the President saying that “I had reply or reaction from other States, is required for the
myself made it clear that this round of atmospheric declaration to take effect, since such a requirement would be
tests would be the last..”; inconsistent with the strictly unilateral nature of the juridical act
e. Minister of Defence of France said that nuclear tests by which the pronouncement by the State was made.
would be the last atmospheric tests;
f. French Minister of Foreign Affairs addressed the UN 4.) Of course, not all unilateral acts imply obligation; but a State
General Assembly; may choose to take up certain position in relation to a particular
g. Minister of Defence in a press conference said that matter with the intention of being bound – the intention is to be
there would not be any atmospheric tests in 1975 and ascertained by interpretation of the act. When States make
that France was ready to proceed to underground tests statements by which their freedom of action is to be limited, a
restrictive interpretation is called for.
5.) With regard to the question of form, it should be observed
that this is not a domain in which international law imposes any
special or strict requirements. Whether a statement is made
orally or in writing makes no essential difference, for such
statements made in particular circumstances may create
commitments in international law, which does not require
that they should be couched in written form. Thus, the
question of form is not decisive. As the Court said in Temple of
Preah Vihear:
“Where… as is generally the case in international law, which
places the principal emphasis on the intentions of the parties,
the law prescribes no particular form, parties are free to choose
what form they release provided their intention clearly results
from it.” Further, the Court stated “… the sole relevant question
is whether the language employed in any given declaration
does reveal a clear intention…”

6.) One of the basic principles governing the creation and

performance of legal obligations, whatever their source, is the
principle of good faith. Trust and confidence are inherent in
international co-operation. Just as the very rule of pacta sunt
servanda in the law of treaties is based on good faith, so also
is the binding character of an international obligation
assumed by unilateral declaration. Thus, interested States
may take cognizance of unilateral declarations and place
confidence in them, and are entitled to require that the
obligation thus created be respected.
 CONCLUSION AND ENTRY INTO FORCE paragraph goes on to say “unless that violation was manifest
and concerned a rule of its internatl law of fundamental
importance”, while par. 2 of Article 46 provides that “a
CASE CONERNING THE LAND AND MARITIME
violation is manifest if it would be objectively evident to any
BOUNDARY BETWEEN CAMEROON AND NIGERIA
State conducting itself in the matter in accordance with normal
practice and in good faith”. The rules concerning the authority
Issue of entry into force
to sign treaties for a State are constitutional rules of
1.) The Court cannot accept the argument that the Maroua
fundamental importance. However, a limitation of a Head of
Declaration was invalid under international law because it was
State’s capacity in this respect is not manifest in the sense that
signed by the Nigerian Head of State of the time but never
Article 46, par. 2, unless at least properly publicized. This is
ratified. Thus, while in international practice a 2-step procedure
particularly so because Heads of State belong to the group of
consisting of signature and ratification is frequently provided
persons who, in accordance with Article 7 par. 2 VCLT, “in
for in provisions regarding entry into force of a treaty, there are
virtue of their functions and without having to produce full
also cases where a treaty enters into force immediately upon
powers” are considered as representing their State. The Court
signature.
notes that the commentary of the ILC on Article 7 par. 2
expressly states that “Heads of State … are considered as
2.) Both customary international law and the VCLT leave it
representing their State for the purpose of performing all acts
completely up to States which procedure they want to follow.
relating to the conclusion of a treaty”.
Under the Maroua Declaration, “the two Heads of State of
Cameroon and Nigeria agreed to extend the delineation of the
Argument: Nigeria argues that Cameroon knew, or ought to
maritime boundary between the two countries…” In the
have known, that the Head of State of Nigeria had no power
Court’s view, that Declaration entered into force immediately
legally to bind Nigeria without consulting the Nigerian
upon its signature.
Government.
Resolution: In this regard, the Court notes that there is no
Argument: Nigeria argues that its constitutional rules regarding
general legal obligation obligation for States to keep themselves
the conclusion of treaties were not complied with.
informed of legislative and constitutional developments in
Resolution: In this regard the Court recalls that Article 46 par.
other States which are or may become important for the
1 VCLT provides that “a State may not invoke the fact that its
international relation of these States. Further, the letter of Head
consent to be bound by a treaty has been expressed in violation
of State of Nigeria to the Head of State of Cameroon stated that
of a provision of its internal law regarding competence to
the views “must be subject to the agreement of the two
conclude treaties as invaliding its consent”. It is true that the
Governments”. However, the following paragraph indicated: held by Cameroon in this area of the lake, the pertinent legal
“It has always been my belief that we can, both, together re- test is whether there was thus evidenced acquiescence by
examine the situation and reach an appropriate and acceptable Cameroon in the passing of title from itself to Nigeria.
decision on the matter”.
4.) The Court also observes that Cameroon’s own activities in
the Lake Chad area have only a limited bearing on the issue of
Issue of title to the land title. The Court has already ruled on a number of occasions on
1.) The Court notes that the theory of historical consolidation is the legal relationship between “effectivites” and titles. In the
highly controversial and cannot replace the established modes Frontier Dispute case, the Court ruled that “Where the act does
of acquisition of title under international law, which take into not correspond to the law, where the territory which is the
account many other important variables of fact and law. subject of the dispute is effectively administered by a State other
Nothing in the Fisheries Judgment suggests that the “historical than the one possessing the legal title, preference should be
consolidation” referred to, in connection with the external given to the holder of the title. In the event that the effectivite
boundaries of the territorial sea, allows land occupation to does not co-exist with any legal title, it must invariably be taken
prevail over an established treaty title. into consideration. The Court concludes that the situation was
essentially one where the effectivites adduced by Nigeria did not
2.) Nigeria further states that the peaceful possession on which correspond to the law, and that accordingly “preference should
it relies, coupled with acts of administration, represents a be given to the holder of the title”.
manifestation of sovereignty and is thus a specific element of its
other two claimed heads of title, namely: on the one hand,
effective administration by Nigeria, acting as a sovereign, and MARITIME DELIMITATION IN THE INDIAN OCEAN
the absence of protests; and, on the other, manifestations of
sovereignty by Nigeria over Darak and the neighbouring Argument: Kenya emphasizes that the MOU does not refer to a
villages, together with acquiescence by Cameroon in such need for ratification, but instead provides “in cateogrical terms”
sovereignty. for its entry into force “upon its signature”. In addition, it
contends that there was “nothing in the exchanges leading to
3.) Some of these activities – the organization of public health the adoption of the MOU suggesting that the Parties ever
and education facilities, policing, the administration of justice – considered a requirement for ratification” and that there is no
could normally be considered to be acts of sovereignty. The evidence that its representatives were ever told of such a
Court notes, however, that, as there was a pre-existing title requirement.
Resolution: Under customary international law of treaties, to be bound by a treaty. In Cameroon v. Nigeria, the Court said
which is applicable in this case since neither Somalia nor Kenya that “while in international practice a two-step procedure
is a party to the Vienna Convention, an international agreement consisting of signature and ratification is frequently provided
concluded between States in written form and governed by for in provisions regarding entry into force of a treaty, there
international law constitutes a treaty. (see Cameroon v. Nigeria) are also cases where a treaty enters into force immediately
The MOU is a written document, in which Somalia and Kenya upon signature. Both customary international law and the
record their agreement on certain points governed by VCLT leave it completely up to States which procedure they
international law. The inclusion of a provision addressing the want to follow.”
entry into force of the MOU is indicative of the instrument’s
binding character. Kenya considered the MOU to be a treaty, 1.) [READ CAMEROON ON LIMITATION OF A HEAD OF
having requested its registration in accordance with Article 102 STATE IN ENTERING INTO A TREATY] In this case, there is no
of the UN Charter, and Somalia did not protest that registration reason to suppose that Kenya was aware that the signature of
until almost five years thereafter. the Minister may not have been sufficient under Somali law to
express, on behalf of Somalia, consent to a binding international
1.) Under international law, as codified in Article 7 of the VCLT, agreement. As the Court previously observed, “there is no
by virtue of their functions and without having to produce full general legal obligation for States to keep themselves informed
powers, Heads of State, Heads of Government and Ministers for of legislative and constitutional developments in other States
Foreign Affairs are considered as representing their State for the which are or may become important for the international
purpose of performing all acts relating to the conclusion of a relations of these States”.
treaty. These State representatives, under international law,
may also duly authorize other officials to adopt, on behalf of a 2.) Moreover, even after the MOU had been rejected by the
State, the text of a treaty or to express the consent of the State to Somali Parliament, the Prime Minister of Somalia did not
be bound by a treaty. The MOU explicitly states that the 2 question its validity in his letter to the Secretary-General of the
Ministers who signed it were “duly authorized by their UN.
respective Governments” to do so.
3.) In this respect, the Court observes that under customary
Argument: Somalia contends that the ratification requirement international law, reflected in Article 45 of the VCLT, a State
under Somali law was not observed. may not invoke a ground for invalidating a treaty on the basis
Resolution: Under the law of treaties, both signature and of, inter alia, provisions of its internal law regarding competence
ratification are recognized means by which a State may consent to conclude treaties if, after having become aware of the facts, it
must by reason of its conduct be considered as having
acquiesced in the validity of that treaty. Somalia did not begin
to express its doubts in this respect until some time later.

4.) The Court concludes that the MOU is a valid treaty that
entered into force upon signature and is binding on the Parties
under international law.
 PACTA SUNT SERVANDA abandoning the works for which it was still responsible at
Nagymaros and at Dunakiliti, it did not, for all that, suspend
the application of the 1977 Treaty itself or then reject that Treaty.
GABČIVOKO-NAGYMAROS PROJECT
The conduct of Hungary at that time can only be interpreted as
(HUNGARY/SLOVAKIA)
an expression of its unwillingness to comply with at least some
of the provisions of the Treaty and the Protocol, as specified in
1.) Some of the rules laid down in the VCLT might be
the Joint Contractual Plan. The effect of Hungary’s conduct was
considered as a codification of existing customary law. The
to render impossible the accomplishment of the system of
Court takes the view that in many respects this applies to the
works that the Treaty expressly described as “single and
provisions of the VCLT concerning the termination and the
indivisible”.
suspension of the operation of treaties, set forth in Article 60 to
62. A determination of whether a convention is or is not in force,
4.) The Court moreover observes that, when it invoked the state
and whether it has or has not been properly suspended or
of necessity in an effort to justify that conduct, Hungary chose
denounced, is to be made pursuant to the law of treaties. On the
to place itself from the outset within the ambit of the law of State
other hand, an evaluation of the extent to which the suspension
responsibility, thereby implying that, in the absence of such a
or denunciation of a convention, seen as incompatible with the
circumstance, its conduct would have been lawful.
law of treaties, involves the responsibility of the State which
proceeded to it, is to be made under the law of State
5.) The state of necessity claimed by Hungary – supposing it to
responsibility.
have been established – thus could not permit of the conclusion
2.) Thus the VCLT confines itself to defining in a limitative
that, in 1989, it had acted in accordance with its obligations
matter the condition in which a treaty may lawfully be
under the 1977 Treaty or that those obligations had ceased to be
denounced or suspended; while the effects of a denunciation or
binding upon it. It would only permit the affirmation that,
suspension seen as not meeting those conditions are, on the
under the circumstances, Hungary would not incur
contrary, expressly excluded from the scope of the Convention
international responsibility by acting as it did. Lastly, the Court
by operation of Article 73. It is moreover well established that,
points out that Hungary expressly acknowledged that, in any
when a State has committed an internationally wrongful act, its
event, such a state of necessity would not exempt it from its
international responsibility is likely to be involved whatever the
duty to compensate its partner. (The issue defense of State of
nature of the obligation it has failed to respect.
necessity raised by Hungary will only exempt it from liability. This is
an entirely separate issue from the issue of its failure to answer its
3.) The Court cannot accept the Hungary’s argument to the
non-observance with the obligations of the 1997 Treaty that were still
effect that, in 1989, in suspending and subsequently
effective at that time and had not yet ceased to be binding upon it. 4.) While Article 7, par. 1 of the Convention against Torture
Kahit na justified siya, di parin niya sinagot yung issue na bound does not contain any indication as to the time frame for
parin naman siya nung treaty dahil hindi pa nag-cease yung performance of the obligation for which it provides, it is
necessarily implicit in the text that it must be implemented
oblgiations upon her)
within a reasonable time, in a manner compatible with the
object and purpose of the Convention. Clearly, Senegal has
breached its obligations under the Convention against Torture.
QUESTIONS RELATING TO THE OBLIGATION TO
PROSECUTE OR EXTRADITE (BELGIUM V. SENEGAL)

1.) The Court considers that Senegal’s duty to comply with its
obligations under the Convention cannot be affected by the
decision of the ECOWAS Court of Justice.

2.) The Court is of the opinion that the financial difficulties

raised by Senegal cannot justify the fact that it failed to initiate
proceedings against Mr. Habre. For its part, Senegal itself states
that it has never sought to use the issue of financial support to
justify any failure to comply with an obligation incumbent
upon it. Moreover, the referral of the matter to the African
union, as recognized by Senegal itself, cannot justify the latter’s
delays in complying with its obligations under the Convention.
The diligence with which the authorities of the forum State
must conduct the proceedings is also intended to guarantee the
suspect fair treatment at all stages of the proceedings.

3.) The Court observes that, under Article 27 of the VCLT

which reflects customary law, Senegal cannot justify its
breach of the obligation provided for in Article 7, par. 1 of the
Convention against Torture by invoking provisions of its
internal law, in particular by invoking the decisions as to lack
of jurisdiction rendered by its courts in 2000 and 2001, or the
fact that it did not adopt the necessary legislation pursuant to
Article 5, paragraph 2, of that Convention until 2007.
 RESERVATIONS purpose of the Convention, it can in fact consider that the
reserving State is not a party to the Convention;

RESERVATIONS TO THE CONVENTION ON THE

b.) that if, on the other hand, a party accepts the reservation as
PREVENTION AND PUNISHMENT OF THE CRIME OF
being compatible with the object and purpose of the
GENOCIDE (ADVISORY OPINION)
Convention, it can in fact consider that the reserving State is a
party to the Convention;
Replies on reservation in this Opinion are necessarily and
strictly limited to the Genocide Convention.
QUESTION III: What would be the legal effect as regards the
answer to Question I if an objection to a reservation is made:
QUESTION 1: Can the reserving State be regarded as being a
party to the Convention while still maintaining its reservation
(a) by a signatory which has not yet ratified?;
if the reservation is objected to by one or more of the parties to
(b) by a State entitled to sign or accede but which has not yet
the Convention but not by others?
done so?
REPLY: A State which has made and maintained a reservation
which has been objected to by one or more of the parties to the
REPLY:
Convention but not by others, can be regarded as being a party
(a) that an objection to a reservation made by a signatory State
to the Convention if the reservation is compatible with the
which has not yet ratified the Convention can have the legal
object and purpose of the Convention; otherwise, that State
effect indicated in the reply to Question I only upon ratification.
cannot be regarded as being a party to the Convention.
Until that moment it merely serves as notice to the other State
of the eventual attitude of the signatory State;
QUESTION II: If the answer to Question I is in the affirmative,
what is the effect of the reservation as between the reserving
(b) that an objection to a reservation made by a State which is
State and:
entitled to sign or accede but which has not yet done so, is
(a) the parties which object to the reservation?;
without legal effect.
(b) those which accept it?

REPLY:
(a) that if a party to the Convention objects to a reservation
which it considers to be incompatible with the object and
 ARMED ACTIVITIES ON THE TERRITORY OF THE its jurisdiction and having heard full legal arguments by both
CONGO (CONGO V. RWANDA) parties.

1.) The principles underlying the Genocide convention are 4.) Whether or not States accept the jurisdiction of the Court,
principles which are recognized by civilized nations as binding they remain in any event responsible for acts attributable to
on States, even without any conventional obligation and them that violate international law; in particular, they are
whereas a consequence of the conception thus adopted is the required to fulfill their obligations under the UN Charter; the
“universal character both of the condemnation of genocide and Court cannot but note in this respect that the Security Council
of the co-operation required “in order to liberate mankind from has adopted a great number of resolutions concerning the
such an odious scourge” situation in the region.

2.) The Genocide Convention does not prohibit reservations.

Congo did not object to Rwanda’s reservation when it was
made and the reservation of the latter does not bear on the
substance of the law, but only on the Court’s jurisdiction. It
therefore does not appear contrary to the object and purpose of
the Convention. It is immaterial that different solutions have
been adopted for courts of a different character. Specifically, it
is immaterial that the International Criminal Tribunal for
crimes committed in Rwanda was established at Rwanda’s
request by a mandatory decision of the Security Council or that
Article 120 of the Statute of the International Criminal Court
prohibits all reservations to that Statute.

3.) There is a fundamental distinction between the question of

the acceptance by a State of the Court’s jurisdiction and the
compatibility of particular acts with international law; the
former requires consent; the latter question can only be reached
when the Court deals with the merits after having established
 INTERPRETATION WHALING IN THE ANTARCTIC (AUSTRALIA V. JAPAN:
NEW ZEALAND intervening)
KASIKILI/SEDUDU ISLAND (BOTSWANA/NAMIBIA)
Argument: Australia claims that IWC resolutions must inform
1.) The Court itself has already had occasion in the past to hold the Court’s interpretation of Article VIII because they comprise
that customary international law found expression in Article 31 “subsequent agreement between the parties regarding the
of the VCLT. Article 4 VCLT which provides that it “applies interpretation of the treaty” and “subsequent practice in the
only to treaties which are concluded by States after the entry application of the treaty which establishes the agreement of the
into force of the … Convention with regard to such State” does parties regarding its interpretation”, within the meaning of
not, therefore, prevent the Court from interpreting the 1890 subparagraphs (a) and (b) , respectively, of paragraph 3 Article
Treaty in accordance with the rules reflected in Article 31. (read 31 VCLT.
Article 31 VCLT in full) Resolution:
1.) Article VI of the Convention states that “the Commission
2.) The Court recalls that “a treaty must be interpreted in good may from time to time make recommendations to any or all
faith, in accordance with the ordinary meaning to be given to Contracting Governments on any matters which relate to
its terms in their context and in the light of its object and whales or whaling and to the objectives and purposes of this
purpose. Interpretation must be based above all upon the text Convention”. These recommendations, which take the form of
of the treaty. As supplementary measure recourse may be had resolutions, are not binding. However, when they are adopted
to means of interpretation such as the preparatory work of the by consensus or by a unanimous vote, they may be relevant
treaty”. for the interpretation of the Convention or its Schedule.

3.) In order to illuminate the meaning of words agreed upon in 2.) Article VIII expressly contemplates the use of lethal
1890, there is nothing that prevents the Court from taking into methods, and the Court is of the view that Australia and New
account the present-day state of scientific knowledge, as Zealand overstate the legal significance of the recommendatory
reflected in the documentary material submitted to it by the resolutions and Guidelines on which they rely.
Parties.
3.) First, many IWC resolutions were adopted without the
support of all States parties to the Convention and, in particular,
without the concurrence of Japan. Thus, such instruments
cannot be regarded as subsequent agreement to an
interpretation of Article VIII, nor as subsequent practice Argument: The United States emphasizes that the Court’s
establishing an agreement of the parties regarding the jurisdiction in this case is limited, pursuant to Article XXI, par.
interpretation of the treaty within the meaning of 2 of the 1955 Treaty, to the interpretation and application of that
subparagraphs (a) and (b), respectively, of paragraph (3) of Treaty, and does not extend directly to the determination of the
Article 31 VCLT. legality of any action of either Party under general international
law. It has contended that “the Court need not address the
4.) Secondly, as a matter of substance, the relevant resolutions question of self-defense … The scope of the exemption
and Guidelines that have been approved by consensus call provided by Article XX, par.1 (d), is not limited to those actions
upon States parties to take into account whether research that would also meet the standards for self-defense under
objectives can practically and scientifically be achieved by using customary international law and the UN Charter. It however
non-lethal research methods, but they do not establish a does not contend that the Treaty exempts it, as between the
requirement that lethal methods be used only when other parties, from the obligations of international law on the use of
methods are not available. force, but simply that where a party justifies certain action on
the basis of Article XX, par. 1 (d), that action has to be tested
solely against the criteria of that Article, and the jurisdiction
CASE CONCERNING OIL PLATFORMS (ISLAMIC conferred on the Court by Article XXI, par. 2, of the Treaty goes
REPUBLIC OF IRAN v. UNITED STATES OF AMERICA) no further than that. (Sabi ni US, yung jurisdiction ng Court
limited lang sa criteria ng self-defense in Article XX, par. 1 (d). Hindi
The dispute here has been brought before the Court on the raw niya pwede i-examine yung act ng US under general
jurisdictional basis of Article XXI, par. 2 of the 1955 Treaty international law).
which provides that “Any dispute between the High Resolution:
Contracting Parties as to the interpretation or application of the 1.) In Nicaragua, the Court took the view that “action taken in
present Treaty, not satisfactorily adjusted by diplomacy, shall self-defense, individual or collective, might be considered as
be submitted to the International Court of Justice, unless the part of the wider category of measures qualified in article XII”
High Contracting Parties agree to settlement by some other – the text in that case corresponding to Article XX of the 1955
pacific mean.” Treaty – “as ‘necessary to protect’ the ‘essential security
interests’ of a party”. This approach is consistent with the view
In what order the Court should examine these questions of that, when Article XX, paragraph 1 (d), is invoked to justify
interpretation and application of the Treaty? actions involving the use of armed force, allegedly in self-
defense, the interpretation and application of that Article will
necessarily entail an assessment of the conditions of legitimate
self-defense under international law.

2.) It should not be overlooked that Article I of the 1955 Treaty

declares that “There shall be firm and enduring peace and
sincere friendship between the US and Iran”. The Court found
in 1996 that this Article “is such as to throw light on the
interpretation of the other Treaty provisions”. It is hardly
consistent with Article I to interpret Article XX, paragraph 1 (d),
to the effect that the “measures” there contemplated could
include even an unlawful use of force by one party against the
other.

3.) Moreover, under the general rules of treaty interpretation,

as reflected in the 1969 VCLT, interpretation must take into
account “any relevant rules of international law applicable in
the relations between the parties” (Article 31, par. 3 (c)). The
application of the relevant rules of international law relating
to this question thus forms an integral part of the task of
interpretation entrusted to the Court by Article XXI, par. 2 of
the 1955 Treaty.

4.) The Court is therefore satisfied that its jurisdiction under

Article XXI, par. 2 of the 1955 Treaty to decide any question of
interpretation or application of (inter alia) Article XX, par. 1 (d),
of that Treaty extends, where appropriate, to the determination
whether action alleged to be justified under that paragraph was
or was not an unlawful use of force, by reference to
international law applicable to this question, that is to say, the
provisions of the UN Charter and customary international law.
 INVALIDITY, TERMINATION, AND that the first ground of objection stated by Nicaragua is
SUSPENSION untenable.

2nd Ground of Objection: It has not been ratified by the

AWARDS REGARDING THE BORDER BETWEEN
Government of San Salvador, so as to give effect to the
COSTA RICA AND NICARAGUA
guarantees on behalf of the Government of the 10th article
of the Treaty.
1st Ground of Objection: The Government of Nicaragua
has not received that sanction which the Constitution of
Resolution:
the State of Nicaragua requires to give effect to, and
1.) The treaty was not tripartite, but was between Costa
validate, a treaty of its character:
Rica and Nicaragua only, with an independent and
separable clause of guarantee, as to a single feature of the
Resolution:
arrangement, on the part of San Salvador. Without the
1.) Where a treaty has been approved by a government,
guarantee, the Treaty was complete as between the two
and an effort is subsequently made to avoid it for the lack
principals, if they saw fit to accept it in that shape. The
of some formality, the burden is upon the party who
non-ratification by the Republic of San Salvador was
alleges invalidity to show clearly that the requirements of
known to the Government of Nicaragua when ratifications
the fundamental law have not been complied with.
were exchanged with Costa Rica. It follows therefore that
Nicaragua never lost any of the considerations which
2.) The question is merely whether the Constitution of
induced her to consummate, by an exchange of
1838 did in fact contain such a definition of the boundaries
ratifications, the negotiations for the Treaty.
of Nicaragua as to preclude their adjustment by an
ordinary treaty. Thus, it appears that “the dividing lines
2.) As a proposition of international law, it may be
with the bordering States” were expressly not defined. It
regarded as settled that a guarantee is always merely
was plainly the intention to leave the Constitution
subsidiary to the principal contract. It follows that the
incomplete in this respect; though a means of completing
clause of guarantee in the Treaty of Limits is no part of the
it was provided, by allowing the passage of an ordinary
principal agreement, and that on general principles the
law by a single Legislature. I (reporter) conclude therefore
rest of the Treaty would not stand or fall with this 2.) In any event, all irregularities would seem to have been
subsidiary or accessory contract. effectually cured by this subsequent approval of the
Constituent Assembly. Irregularities and defects in the
3.) The necessity for ratification by contracting powers formalities of ratification may be supplied and made good
may be freely admitted. But even conceding to it as high by subsequent acquiescence in and approval of the treaty.
an importance as the execution of deeds by individuals,
the failure of a guaranteeing state to ratify will not 3.) On the claim that the legislative sanction was not given
necessarily invalidate a treaty which the principal until after the expiration of the 40 days fixed by the Treaty
contracting parties have concluded by an exchange of for the exchange of the ratifications, this argument is
ratifications as between themselves. untenable. Costa Rica, and not Nicaragua, might have
complained of this delay. Assuming that subsequent
3rd Ground of Objection: That the pretended ratifications legislative approval was needed, Costa Rica might, if it
of the Treaty were exchanged before the Treaty had been had desired to do so, have declared the negotiations at an
submitted to the Congress of Nicaragua, and it was not end on the expiration of the 40 days. But it was not bound
approved by the first Congress of Nicaragua until after the to do so. It had a perfect right to waive this limitation of
expiration of the 40 days provided for the exchange of time. Either party to a Treaty may extend the time of the
ratifications in Article XII. other, either by express agreement or by acts indicating
acquiescence.
Resolution:
1.) It would perhaps be enough to say that Nicaragua 4.) The fact of approval being established, the time of
cannot now seek to invalidate the Treaty on any mere approval is immaterial, provided the other party by its
ground of irregularity in the order of its own proceedings. acquiescence has seen fit to waive delay.
If its Legislature did in fact approve the Treaty, that is
enough for the present purpose. Whether such approval
was expressed before or after the exchange of ratifications
is an immaterial matter now – certainly so far as Nicaragua
is concerned.
 CASE CONCERNING THE LAND AND MARITIME not need to be further examined : it need only be observed
BOUNDARY BETWEEN CAMEROON AND NIGERIA that 3 days would not amount to a ‘reasonable time’”.
(CAMEROON v. NIGERIA : EQUATORIAL GUINEA
intervening) [Different case ata to] 3.) The Court considers that the foregoing conclusion in
respect of the withdrawal of declarations under the
1.) In the case concerning Military and Paramilitary Optional Clause is not applicable to the deposit of those
Activities in and against Nicaragua, the Court noted that the declarations. Withdrawal ends existing consensual
US had, in 1984, deposited with the Secretary-General, 3 bonds, while deposit establishes such bonds. The effect
days before the filing of Nicaragua’s Application, a of withdrawal is therefore purely and simply to deprive
notification limiting the scope of tis Declaration of other States which have already accepted the
acceptance of the Court’s jurisdiction. The Court noted jurisdiction of the Court of the right they had to bring
that the Declaration contained a clause requiring six proceedings before it against the withdrawing State. In
months’ notice of termination. It considered that the contrast, deposit of a declaration does not deprive those
condition should be complied with in cases of either States of any accrued right. Accordingly, no time period
termination or modification of the Declaration, and is required for the establishment of a consensual bond
concluded that the 1984 notification of modification could following such a deposit.
not, with immediate effect, override the obligation entered
into by the US beforehand. 4.) The Court notes that to require a reasonable time to
elapse before a declaration can take effect would be to
2.) The Court noted that “the right of immediate introduce an element of uncertainty into the operation of
termination of declarations with indefinite duration is the Optional Clause System which is not there.
far from established. It appears from the requirements
of good faith that they should be treated, by analogy,
according to the law of treaties, which requires a
reasonable time for withdrawal from or termination of
treaties that contain no provision regarding the duration
of their validity”. The Court added: “the question of what
reasonable period of notice would legally be required does
 CASE CONCERNING THE TEMPLE OF PREAH consent. The Court concludes therefore that the plea of
VIHEAR (CAMBODIA v. THAILAND) error has not been made out.

(Read this with Article 48 VCLT on Error as invalidating a 4.) In general, when two countries establish a frontier
State’s consent in a treaty) between them, one of the primary objects is to achieve
stability and finality. This is impossible if the line so
1.) It is contended on behalf of Thailand, so far as the established can, at any moment, and on the basis of a
disputed area of Preah Vihear is concerned, that an error continuously available process, be called in question, and
was committed, an error of which the Siamese authorities its rectification claimed, whenever any inaccuracy by
were unaware at the time when they accepted the map. reference to a clause in the parent treaty is discovered.
Such a process could continue indefinitely, and finality
2.) It is an established rule of law that the plea of error would never be reached so long as possible errors still
cannot be allowed as an element vitiating consent if the remained to be discovered. Such a frontier, so far from
party advancing it contributed by its own conduct to the being stable, would be completely precarious.
error, or could have avoided it, or if the circumstances
were such as to put that party on notice of a possible error. 5.) It must be asked why the Parties in this case provided
The Court considers that the character and qualifications for a delimitation, instead of relying on the Treaty clause
of the persons who saw the Annex I map on the Siamese indicating that the frontier line in this region would be
side would alone make it difficult for Thailand to plead the watershed. There are boundary treaties which do no
error in law. These persons included the members of the more than refer to a watershed line, or to a crest line, and
very Commission of Delimitation within whose which make no provision for any delimitation in addition.
competence this sector of the frontier had lain. The Parties in the present case must have had a reason for
taking this further step. This could only have been because
3.) The Simaese authorities knew it was the work of French they regarded a watershed indication as insufficient by
topographical officers to whom they had themselves itself to achieve certainty and finality. It is precisely to
entrusted the work of producing the maps. They accepted achieve this that delimitations and map lines are resorted
it without any independent investigation, and cannot to.
therefore now plead any error vitiating the reality of their
 CASE CONCERNING THE GABČÍKOVO- by mutual agreement terminate the Treaty – it continues
NAGYMAROS PROJECT (HUNGARY/SLOVAKIA) to exist. As soon as the state of necessity ceases to exist,
the duty to comply with treaty obligations revives.
(Read Article 60 VCLT)
Principle of the impossibility of performance under Article 61
1.) The question is whether Hungary’s 1992 notification VCLT
brought the 1977 Treaty to an end, or whether it did not 4.) Article 61, par. 1, requires that the “permanent
meet the requirements of international law, with the disappearance or destruction of an object indispensable
consequence that it did not terminate the Treaty. for the execution” of the treaty to justify the termination of
a treaty on grounds of impossibility of performance.
2.) The VCLT is not directly applicable to the 1977 Treaty Although it was recognized that such situations could lead
inasmuch as both States ratified that Convention only after to a preclusion of the wrongfulness of non-State
the Treaty’s conclusion. Consequently, only those rules performance by a party of its treaty obligations, the
which are declaratory of customary law are applicable to participating States were not prepared to consider such
the 1977 Treaty. Articles 60 to 62 forms part of customary situations to be a ground for terminating or suspending a
law. treaty, and preferred to limit themselves to a narrower
concept.
State of Necessity
3.) The Court will now turn to the first ground advanced 5.) Hungary contended that the essential object of the
by Hungary, that of the state of necessity. In this respect, Treaty – an economic joint investment which was
the Court will merely observe that, even if a state of consistent with environmental protection and which was
necessity is found to exist, it is not a ground for the operated by the two contracting parties jointly – had
termination of a treaty. It may only be invoked to permanently disappeared and that the Treaty had thus
exonerate from its responsibility a State which has failed become impossible to perform. It is not necessary for the
to implement a treaty. Even if found justified, IT DOES Court to determine whether the term “object” in Article 61
NOT TERMINATE A TREATY; the Treaty may be can also be understood to embrace a legal régime as in any
ineffective as long as the condition of necessity continues event, even if that were the case, it would have to conclude
to exist; it may in fact be dormant, but – unless the parties that in this instance that regime had not definitively
ceased to exist. The 1977 Treaty – and in particular its the extend of the obligations still to be performed. The
Article 15, 19, and 20 – actually made available to the same holds good for the economic system in force at the
parties the necessary means to proceed at any time, by time of the conclusion of the 1977 Treaty. Further, the
negotiation, to the required readjustments between formulation of Articles 15,19, and 20 designed to
economic imperatives and ecological imperatives. The accommodate change, made it possible for the parties to
Court adds that if the joint exploitation of the investment take account of such developments and to apply them
was no longer possible, this was originally because when implementing those treaty provisions.
Hungary did not carry out most of the works for which it
was responsible under the 1977 Treaty; Article 61, par. 2 7.) The changed circumstances advanced by Hungary are
of the VLCT expressly provides that impossibility of not of such a nature, either individually or collectively,
performance may not be invoked for the termination of that their effect would radically transform the extent of the
a treaty by a party to that treaty when it results from that obligations still to be performed in order to accomplish the
party’s own breach of an obligation flowing from that Project. A fundamental change of circumstances must
treaty. have been unforeseen; the existence of the circumstances
at the time of the Treaty conclusion must have
Changes of circumstances such as changes in political nature, constituted an essential basis of the consent of the
Project’s diminishing economic viability, progress of parties to be bound by the Treaty.
environmental knowledge, and development of new norms and
prescriptions of international environmental law 8.) The negative and conditional wording of Article 62
6.) The prevailing political situation was certainly relevant VCLT is a clear indication that the stability of treaty
for the conclusion of the 1977 Treaty. But the Court will relations requires that the plea of fundamental change of
recall that the Treaty provided for a joint investment circumstances be applied only in exceptional cases.
programme for the production of energy, the control of
floods and the improvement of navigation on the Danube. On Czechoslovakia violating Articles 15, 19, and 20
In the Court’s view, the prevalent political conditions were 9.) The Court is of the view that it is only a material breach
thus not so closely linked to the object and purpose of the of the treaty itself, by a State party to that treaty, which
Treaty that they constituted an essential basis of the entitles the other party to rely on it as a ground for
consent of the parties and, in changing, radically altered terminating the treaty. The violation of other treaty rules
or of rules of general international law may justify the parties could, by agreement, incorporate them. These
taking of certain measures, including countermeasures by articles do not contain specific obligations of performance
the injured State, but it does not constitute a ground for but require the parties, in carrying out their obligations to
termination under the law of treaties. ensure that the quality of water in the Danube is not
impaired and that the nature is protected, to take new
10.) As was stated by the Permanent Court of International environmental norms into consideration when agreeing
Justice: “It is, moreover, a principle generally accepted in upon the means to be specified in the Joint Contractual
the jurisprudence of international arbitration, as well as by Plan. By means of Articles 15 and 19 of the Treaty, new
municipal courts, that one Party cannot avail himself of environmental norms can be incorporated in the Joint
the fact that the other has not fulfilled some obligation or Contractual Plan.
has not had recourse to some means of redress, if the
former Part has, by some illegal act, prevented the latter FISHERIES JURISDICTION CASE (UNITED
from fulfilling the obligation in question, or from having KINGDOM OF GREAT BRITATIN AND NOTHERN
recourse to the tribunal which would have been open to IRELAND v. ICELAND)
him. Here, Hungary by its own conduct had prejudiced its
right to terminate the Treaty; this would still have been the 1.) International law admits that a fundamental change in
case even if Czechoslovakia, by the time of the purported the circumstances which determined the parties to accept
termination, had violated a provision essential to the a treaty, if it has resulted in a radical transformation of the
accomplishment of the object or purpose of the Treaty. extent of the obligations imposed by it, may, under certain
conditions, afford the party affected a ground for invoking
On Hungary’s contention that it was entitled to terminate the the termination or suspension of the treaty. This is
1977 Treaty because new requirements of international law for embodied in Article 62 VCLT which may in many respects
the protection of the environment precluded performance o the be considered as a codification of existing customary law
Treaty. on the subject of termination of a treaty relationship on
11.) The Court did not examine the scope of Article 64 account of change of circumstances.
VCLT on this matter. Instead, it wished to point out that
newly developed norms of environmental law are 2.) One of the basic requirements embodied in that Article
relevant for the implementation of the Treaty and that the is that the change of circumstances must have been a
fundamental one. While there is a divergence of views on
the changes between the two Governments, these alleged
changes could not affect in the least the obligation to
submit to the Court’s jurisdiction, which is the only issue
at the present stage of the proceedings.

3.) It follows that the apprehended dangers for the vital

interests of Iceland, resulting from changes in fishing
techniques, cannot constitute a fundamental change with
respect to the lapse or subsistence of the compromissory
clause stablishing the Court’s jurisdiction.

4.) In order that a change of circumstances may give rise

to a ground for invoking the termination of a treaty, it is
also necessary that it should have resulted in a radical
transformation of the extent of the obligations still to be
performed. The change must have increased the burden
of the be executed to the extent of rendering the
performance something essentially different from that
originally undertaken. The change of circumstances
alleged by Iceland cannot be said to have transformed
radically the extent of the jurisdictional obligation which
is imposed in the 1961 Exchange of Notes. The
compromissory clause enabled either of the parties to
submit to the Court any dispute between them relating to
an extension of Icelandic fisheries jurisdiction in the
waters above its continental shelf beyond the 12-mile limit.