Jessup PIL Questions

Agent, if as you assert, there is a rule of custom the same as the treaty provision why was it necessary to codify that rule in treaty form

ANSWER ONE: CRYSTALLISATION The treaty provision crystallised the rule of customary law that [State X] seeks to rely upon. Prior to the treaty entering into force the rule of custom had not received sufficient widespread support in order for it to have become a rule of custom. The treaty provision was therefore entered into in prior to the existence of a rule of custom on which the States could rely. ANSWER TWO: INTERPRETATION This question was considered by this Court in the Nicaragua Case. In that decision it was stated that parties enter into treaties containing provisions identical to rules of customary international law in order to ensure that the rule they rely on is interpreted according to the laws of treaty interpretation and in case of dispute that dispute is governed by the dispute resolution mechanisms of the treaty. Case Concerning Military and Paramilitary Activities in and against Nicaragua (Merits) [1986] ICJ 14: "A State may accept a rule contained in a treaty not simply because it favours the application of the rule itself, but also because the treaty establishes what the State regards as desirable institutions or mechanisms to ensure implementation of the rule." (at 95).

X is not a treaty. Why should this Court even pay attention to it

According to Article 38(1)(d) of this Court's Statute, this Court may have recourse to the writings of leading publicists and judicial decisions, and has frequently done so in its prior judgments.

What is the role of publicists in deriving international law

According to Article 38(1)(d) of this Court's Statute, this Court may have recourse to the writings of leading publicists and judicial decisions, and has frequently done so in its prior judgments. For example, it did so at Paragraph 394 of Land, Island and Maritime Frontier Dispute Case (El Salvador/Honduras: Nicaragua Intervening), referring to successive editions of Oppenheim's International Law. In Lotus, at page 26, the Court also referred to "the teachings of publicists" from the point of view of establishing the existence of a rule of customary international law.

Ordinary intent v. evolutionary interpretation. In treaty interpretation, should the Court look at the original meanings of the language at the conclusion of the Treaty, or should it look to the meaning as it has evolved

Answer 1: Original Meaning. In both France v. US (Rights of US Nationals in Morocco) (1952, p.176), and Botswana v. Namibia (Kasikili/Sedudu Island) (1999, ¶25) , this Court has adhered to the original meaning of terms even though its meaning has evolved since the conclusion of the treaty. In France v. US, on the question of the meaning of "dispute" in the context of a treaty concluded in 1836, the Court having determined the meaning of this term in Morocco when the treaty was concluded. In Botswana v. Namibia, in respect of the meaning of "centre of the main channel" and "thalweg," this Court looked to the meaning of these terms when the Anglo-German Agreement of 1890 was concluded). Answer 2: Evolving Meaning The Court stated in Costa Rica v. Nicaragua, ¶ 64, 66, that " where the treaty has been entered into for a very long period or is "of continuing duration", the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning." " so as to make allowance for, among other things, developments in international law." The Court also applied an evolutionary approach in Aegean Sea Continental Shelf (Greece v. Turkey) (1978- p. 3), when it interpreted "territorial status" in the Greek reservation to a the General Act for Pacific Settlement of International Disputes of 1928.

What weight is this Court entitled to give to United Nations Declarations

Answer 1: Relying on a Declaration The United Nations Office of Legal Affairs concluded that although declarations are not binding per se they are "formal and solemn instruments suitable for rare occasions when principles of great and lasting importance are being enunciated." Judge Jessup in the South West Africa Case held that this Court is entitled to look to such solemn pronouncements as evidence of opinio juris when considering the formation of custom. Answer 2: Diminishing the Weight Given to a Declaration The United Nations Office of Legal Affairs concluded that declarations are not binding per se and pursuant to Article 10 of the United Nations Charter must be considered purely recommendatory in nature. Consequently it cannot be said that voting States feel obliged by law to adhere to the declarations, and these instruments do not evidence the requisite opinio juris required for a rule of customary international law to have been formed.

What is the Rules of the Court

Article 30 of the Statute of the International Court of Justice provides that "[t]he Court shall frame rules for carrying out its functions". These Rules are intended to supplement the general rules set out in the Statute and to make detailed provision for the steps to be taken to comply with them.

Agent, you are asserting that a treaty provision has become a rule of custom. What effect do identical treaty provision and rules of customary international law have on each other

As this Court held in its decision in the Nicaragua Case the fact that a treaty provision is identical to a rule of custom has no effect on the existence and application of the customary rule. Customary International Law continues to exist and to apply even where a treaty provision has identical content. Case Concerning Military and Paramilitary Activities in and against Nicaragua (Merits) [1986] ICJ 14: "More generally, there are no grounds for holding that when customary international law is comprised of rules identical to those of treaty law, the latter "supervenes" the former, so that the customary international law has no further existence of its own." (at 95). "It will therefore be clear that customary international law continues to exist and to apply, separately from international treaty law, even where the two categories have an identical concern." (at 96).

Can this Court have regard to the preparatory works (travaux préparatoires) in interpreting treaties

Certainly. Article 32 of the Vienna Convention on the Law of Treaties specifically provides that the preparatory work is a valid means of interpretation. Both this Court and its predecessors have had recourse to preparatory works on a number of occasions, including: Employment of Women During the Night Case, PCIJ (1932), Series A/B, No 50, p.378 Treatment of Polish Nationals in Danzig Case, PCIJ (1932), Series A/B, No 44, pp. 33-35 Genocide Case, ICJ [1951], p.15 Rights of United States Nationals in Morocco Case, ICJ [1952], p.176 UN Administrative Tribunal Case, ICJ [1954], p.47 South West Africa Cases, ICJ (1966), p.43 North Sea Continental Shelf Case, ICJ [1969], p.33 (dealing specifically with preparatory work done by the ILC) Fisheries Jurisdiction Case, ICJ [1973] (in the absence of one party the ICJ were willing to look to the travaux préparatoires in order to determine an unbiased/true meaning of the treaty provisions in question. BUT NOTE: Transborder Armed Actions Case (Nicaragua v Honduras) (Jurisdiction and Admissibility) [1988] ICJ: Caution must be exercised in relying on the travaux préparatoires as not all stages of the drafting of the treaty were the subject of detailed records.

But Agent, publicists are only permitted as a supplementary source of law. What are we supplementing here

Example (for custom): Your Excellency, in this case, the ILC was tasked with describing the current state of customary international law. Under Article 38(1)(b) of this Court's Statute, customary international law is one of the three primary sources of law to which this Court has recourse. In this case, the ILC's writings on the matter are being introduced in order to explain the scope and content of customary international law.

How much state practice is required in order for a rule of custom to have been formed - How many States need to follow a rule in order for a rule of custom to have been formed

High standard: The requirement set down by this Court in the North Sea Continental Shelf Cases, ¶¶73 & 74, does not specify a precise number of States, but that it has to be very widespread and representative, and virtually uniform state practice on the provision invoked, including states whose interests were specially affected. State practice should moreover have occurred in such a way as to show a general recognition that a legal obligation is involved. Low standard: The Court in Nicaragua v. US, ¶186 stated that, 'It is not to be expected that in the practice of States the application of the rules in question should have been perfect', in the sense that States should have acted 'with complete consistency'. and that "In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules" For instance in case of Space Law only two states, the USA and USSR, were required to follow its principles in order for it to become a rule of custom as they were the only specially affected States (GA Resolution (XVIII) 1962 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space).

There are certain reservations to the treaty provisions that you assert has become a rule of custom. What effect do these reservations have

In the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide this Court found that the mere fact that a reservation is made does not diminish the application of the treaty provision to other States provided that the reservation is not incompatible with the objects and purposes of the treaty. Consequently, a reservation cannot prevent a rule of custom forming. However, as was recognised in the North Sea Continental Shelf Case, a reservation may make the formation of a rule of custom more difficult as the norm creating nature of the provision to which reservations may be made must be called into question.

What is the authority of a decision of the Human Rights Committee or the Committee on Torture as a source of law under Article 38

No answer

You assert that this treaty provision has formed a rule of customary international law. Does this mean that the entire treaty in which the provision is contained has become part of customary international law

No. A single provision of a treaty can be customary international law. For example, in the Case Concerning the Gabcikovo Nagymaros Project [1997] this Court found that Article 12 of the Vienna Convention on the Succession of States had become custom, although the remainder of the convention had not.

Is the Court entitled to extend this rule of custom to include the current actual circumstances, even though it would seem to be beyond the scope of the customary rule

No. The court is bound by Article 38(1)(b) of the ICJ Statute which requires that the Court apply the rules of custom as they stand. Where they are deficient this is unfortunate, but it is a matter for States to address and not a matter for this Court to rectify. Article 38(1)(b) ICJ Statute "1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it shall apply: (b) international custom, as evidence of a general practice accepted as law."

Does the fact that numerous countries breach the principle preclude that principle developing into a binding customary international law

No. This Court stated in the Nicaragua Case that states breaching a particular customary rule may be evidence of the customary rule being violated, but does not necessarily preclude the very existence of that rule as a principle of customary international law.

How can we find "opinio juris" in support of a custom

Opinio juris is not something which can be inferred from practice, however extensive. it is an additional requirement. This Court stated in North Sea Continental Shelf, ¶77, that "to constitute the opinio juris, ... not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of Iaw requiring it. ... The States concerned must therefore feel that they are conforming to what amounts to a legal obligation."

When are resolutions of the UN Security Council legally binding, and when they are binding, how is this reconciled with Article 38 of the Statute of this Court

The Court has held that decisions of the UNSC are binding on all member states under Article 25 of the UN Charter when they are adopted in accordance with the purposes and principles of the Charter. Paragraph 115, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970). Security Council Resolutions can bind all United Nations Members. Resolutions can be evidence of state practice and opinio juris of at least the 15 members, as this Court noted in the Nicaragua Case (at 120-121).

Are decisions of domestic courts/tribunals binding on this Court

The decisions of domestic courts do not bind this Court. Article 38(1)(d) ICJ Statute provides however that the court may look to domestic decisions in order to help decide a case, as it in fact did in North Sea Continental Shelf Cases [1960] ICJ Rep 4, 107 (eg. Separate Opinion of Judge Ammoun referred to decisions of courts in Peru - at 107, fn4) Lotus Case Congo v Belgium

Are decisions of regional courts/tribunals or other international courts/tribunals binding on this Court

The decisions of other international courts and tribunals to not bind this Court. Article 38(1)(d) ICJ Statute, however, provides that the Court may look to domestic decisions in order to help decide a case, as it did in Land, Island and Maritime Frontier Dispute (1992) ICJ Jan Mayem Case (1993) Land, Island and Maritime Frontier Dispute (1992) ICJ Referred to decision of International Arbitrator in Island of Palmas Case. Jan Mayem Case (1993) Referred to decision of the Court of Arbitration in Anglo-French Continental Shelf Case.

What is a CIL

The rules of customary international law are the universally binding rules of international law that have arisen as a consequence of the widespread state practice carried out in the belief that the practice is required by law. This definition was set out by this Court in the North Sea Continental Shelf Case.

Can this Court have reference to secondary sources

This Court has in previous cases made reference to secondary sources under Article 38 ICJ Statute, with examples of this including: Judge Morozov making use of the International Herald Tribune in the Tehran Hostages Case [1980]. Reference being made to dictionaries to assist in the interpretation of words in the Aegean Sea Continental Shelf Case [1978]. There is no reason for this Court not to have regard to secondary sources, particularly where they assist the Court in coming to a just decision.

What's the basis for applying VCLT

This Court has recognized Art. 31 & 32 of VCLT as customary international law on several occasions, including Costa Rica v. Nicaragua (2009, ¶47), Bosnian Genocide case (2007, ¶160), and Territorial Dispute case (Libyan Arab Jamahiriyal Chad) (1994, ¶41). In Costa Rica v. Nicaragua, this Court has recognized Art. 31 and 32 of the VCLT as customary international law on treaty interpretation, and applied VCLT in that case even though Nicaragua is not a party to VCLT, and the treaty to be interpreted, the 1858 Treaty of Limits, predated the drafting of the VCLT.

When do treaty provisions form customs

This Court stated in North Sea Continental Shelf, ¶73 'widespread and representative' participation in a Convention, [if it included that of States whose interests were specially affected,] may suffice both as evidence of opinio juris and as sufficient State practice. In the face of widespread participation in a potentially norm-creating convention, to call for independent evidence of opinio juris is to make it impossible ever to conclude that such participation can 'suffice of itself'. [prominent publicist- Fitzmaurice & Hugh Thirway] The treaty may be, wholly or to a great extent, innovatory, so that the rules which it lays down go beyond, or contradict, existing rules of customary law. But a practice may develop subsequently, among States not parties to the treaty, which gives rise to a new or varied rule of customary international law following the path mapped out by the treaty stipulation. [Thirway, p. 211-12][should find sth with strong authority]

What is the status of the ILC Articles on State Responsibility, and what is their status as sources of law under Article 38 of the Statute of this Court

This court cited Art. 25 (necessity) of the DASR as a codification of customary law in Wall at para. 140, Armed Activities on the Territory of the Congo para 160 (Arts. 4, 5, and 8), and extensively in Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case (Bosnia and Herzegovina v Serbia and Montenegro). It also cited the DASR on necessity in Gabcikovo-Nagymaros, ¶ 50.

What is the legal authority of UNGA resolutions

UNGA Resolutions are non-binding, but they may be declaratory of customary international law. The Court has previously used UNGA Resolutions as evidence of opinio juris, for example: Nicaragua ¶ 184, 188-195, where UNGA Resolutions were looked at to shed light on the customary principle of the prohibition of force. (Specifically: Friendly Relations Declaration)

Is the ILC report legally binding

What is its legal authority? Yes. Statements of the International Law Commission may be evidence of State practice. In the Nicaragua case, this Court referred to the work of the ILC in relation to the codification of the law of treaties. In particular, the ILC's Draft Articles on State Responsibility were referred to by this Court in the Cases Concerning Legality of Force (1999) [referring to Art 25] and the Fisheries Jurisdiction Case (1998) [referring to Art 30].

Are previous decisions of the ICJ binding on our deliberations in this matter

Why should we have regard to previous decisions of this Court? Answer 1 - Relying on previous decisions Article 59 of the ICJ Statute indicates that previous decisions of this Court are not binding. This does not however diminish the strength and consistency of the legal reasoning of the court in that decision, and it is on that which [State X] relies. Indeed this Court held in the Barcelona Traction Case that its previous decisions must be considered as having a "tremendous influence upon the subsequent course of the Court's jurisprudence and the attitude of the parties vis-à-vis the jurisdiction issues relative to this Court." Answer 2 - Diminishing the weight of a previous decision Article 59 of the ICJ Statute indicates that previous decisions of this Court are not binding. This was specifically affirmed in the Temple of Preah Vihear Case where this Court stated that the substance of one of its previous decisions could not impact upon the case then being considered by the Court. Article 59, ICJ Statute "The decision of the Court has no binding force except between the parties and in respect of that particular case." Temple of Preah Vihear Case [1961] ICJ Rep at 27, per the Court "The Court's decision in the Israel v Bulgaria case was of course concerned with the particular question of Bulgaria's position in relation to the Court and was in any event, by reason of Article 59 of the Statute, only binding, qua decision, as between the parties to that case. It cannot therefore, as such, have had the effect of invalidating Thailand's 1950 Declaration."

Is this Court entitled to have regard to the writings of jurists

Yes. By virtue of Article 38(1)(d) of the Statute of the ICJ this Court is permitted to apply the writings of eminent publicists (jurists) in adjudicating disputes brought before it, as several judges did in the North Sea Continental Shelf Case. Article 38(1)(d) ICJ Statute The Court whose function is to decide in accordance with international law such disputes are to be submitted to it shall apply ... subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. North Sea ∙ Dissenting Opinion of Judge ad hoc Sorenson cited Hersch Lauterpacht (when discussing opinio juris) ∙ Separate Opinion of Judge Ammoun referred to writing of Gentilis (at 104). Restatement (Third) on Foreign Relations Law Was referred to by this Court in the Barcelona Traction Case and Genocide Case. [Compiled by American Law Institute - group of American jurists]

Can this Court have regard to the work of the ILC

Yes. Statements of the International Law Commission may be evidence of State practice. In the Nicaragua case, this Court referred to the work of the ILC in relation to the codification of the law of treaties. In particular, the ILC's Draft Articles on State Responsibility were referred to by this Court in the Cases Concerning Legality of Force (1999) [referring to Art 25] and the Fisheries Jurisdiction Case (1998) [referring to Art 30].

Can a rule of custom be established independently of the binding force, in custom or otherwise, of the treaty in which it is contained

Yes. This Court made it clear in the Nicaragua Case [1986] that rules of customary international law can arise and exist regardless of their embodiment in binding treaties. The fact that a treaty has not entered into force or that the whole of a treaty is not a part of customary international law does not prevent one of its provisions from becoming a rule of customary international law. For instance, in the Case Concerning the Gabcikovo Nagymaros Project [1997] this Court found that Article 12 of the Vienna Convention on the Succession of States had become custom, although the treaty had only 15 state parties, and the remainder of the treaty clearly had not formed a rule of customary international law.

Can this Court have regard to draft conventions/treaties

Yes. This Court may refer to Draft Conventions when they codify a principle of customary international law, as was done in Continental Shelf (Tunisia v Libya). Continental Shelf (Tunisia v Libya) [1982] ICJ Rep, p 38 [para 24] Referred to UNCLOS III draft convention of Law of the Sea Convention. Relationship between treaty and custom