Legal Status Of Eastern GreenlandIntroductionA suit was instituted before the Permanent Court of International Justice (hereinafter PCIJ) by Royal Danish Government against the Royal Norwegian Government over the legal status of certain territories in Eastern Greenland. Cause of Action for the dispute arose when Norwegian Government on July 10th, 1931 proclaimed that it proceeded to occupy certain territories of Eastern Greenland which as contented by Denmark are subject to sovereignty of Crown of Denmark.Established Facts of the Case as per the submissions of the Parties before the Court are as follows:It is established that Greenland was discovered around 900 A.D. It was colonized 100 years later. Eric the Red of the Norwegian origin was the best know colonist. At that time two settlements called Eystribygd and Vestribygd existed as an independent State for some time; however, latter they became tributary to the kingdom of Norway in the 13th century. These settlements disappeared before 1500.From 1814 to 1380 the Kingdoms of Norway and Denmark were united by the same Crown. Despite disappearance of the early settlements the sovereignty of the Crown was not doubted. Treaty of Lund of September 27th, 1697 where Sweden recognized the rights of ancient rights and claims of the King of Denmark over Greenland is an apt example.An autonomous Board was constituted by the King in 1774 to administer the trade activities in Greenland. The State of Denmark had monopoly over the trade activities in Greenland. This resulted in establishing colonies, factories or stations along the West coast latter efforts to reach the East coast were not successful. Norway contented that Greenland in general mean the colonized part of the West coast and where as Denmark viewed Greenland as encompassing whole island of Greenland.After a war that broke out between Denmark and Sweden and her allies, Denmark was made to sign the Peace Treaty of Kiel in 1814 according to which the Kingdom of Norway, excluding Greenland, the Faeroe Isles and Iceland, was seceded to Sweden. In the 19th century Greenland witnessed lot of Danish expeditions. Danish Government was approached for permission to carryon trade or establish stations etc. In 1905 the Danish Minister issued a decree specifying the limits of the territorial waters around Greenland. Denmark promulgated a law concerning the administration of Greenland in 1908 and colonies on the West coast were divided into Northern and Southern districts. On December 27th, 1915 the United States as a quid pro quo to Denmark's cession of West Indian Islands declared that it would not object to the Danish Government extending their political and economic interests to the whole of Greenland. The Danish government in bilateral or multilateral commercial conventions relating to economic questions had excluded Greenland from the operation of such conventions to secure the insertion of a stipulation.Meanwhile Norway in apart from expeditions to the East coast from 1889 onwards, an expedition in 1922 resulted in establishing a provisional wireless station at Mygg-Bukta to which Denmark lodged its protect immediately against such erection. Latter, large number of houses and cabins of Norwegian origin were built.On July 10th, 1931 by a Norwegian Royal Resolution the King of Norway declared the occupation of the country in Eastern Greenland between Carlsberg Fjord on the south and Bessel Fjord on the north.Intertemporal LawThe doctrine of intertemporal law states that the crystallisation of a right must be analysed through the application of international law as it existed at the point in time when the right arose. Hence, if a dispute regarding sovereignty over a certain territory arose in the 18th century, international law as it existed then must be applied to analyse the factual matrix. In the Clipperton Island arbitration, a dispute arose between France and Mexico and through the application of intertemporal law of the 18th century, arrived at the conclusion that symbolic annexation, or a first and decisive act of sovereignty, was a valid means of acquiring territory. In Island of palmas case intertemporal law of the 19th century was applied by Judge Huber, the sole arbitrator in the proceedings and through the application of intertemporal law it was held that mere discovery, conferring an inchoate title, was not an accepted means of acquiring sovereignty over a parcel of territory but was in fact effective occupation, or actual occupation and administration over the territory.The court in the instant case applied intertemporal law and thus analysed the facts of the case with respect to the doctrine of effective occupation and the then modes of acquisition of territory.Critical DateIn certain cases of dispute vis--vis territorial sovereignty, there arises a point in time wherein the rights and stances of the parties have crystallised to such an extent that no action they take beyond that particular date will alter their legal position. A critical date of crystallisation of a dispute is sometimes determined, the events occurring after which are not considered in determining title. This is with a view to exclude from judicial consideration unilateral actions of parties seeking to strengthen their respective positions in the dispute.Acts undertaken after the critical date shall not be taken into consideration, unless such acts are a normal continuation of prior acts and are not undertaken for the purpose of improving the legal position of the party relying on them. However, in case of disputes concerning current title over a territory the critical date is irrelevant. In the Minquiers and Ecrehos Case, the court held that while the critical date has an important role to play, in certain cases it is irrelevant. Therefore the court did not consider the critical date in that dispute but however emphasised on its importance.In the Eastern Greenland case, the Danish Government contended that the date on which Danish sovereignty should have existed is July 10th, 1931 in order to make the Norwegian declaration meaningless. The PCIJ considered the Norwegian proclamation on July 10th, 1931 as the critical date. It held that it is sufficient [for Denmark] to establish that valid title in the period immediately preceding the occupation.For a valid title, it is not needed to establish sovereignty over Greenland throughout the period before the critical date. Despite the material adduced to the Court is thought to be insufficient to establish the existence of that sovereignty during earlier periods or otherwise, what is relevant for consideration is the finding that who has sovereignty immediately preceding the occupation.Territorial SovereigntyTheoretical FrameworkThe passage of intertemporal law has been a varied one through the centuries. Changes and alterations have taken place at various points in time, as the laws of acquisition of territorial sovereignty evolved. At one point in time, prior to the 1700s, mere discovery was sufficient to establish a complete title over a parcel of territory.However, during the 1700s, discovery was opined to have transferred an inchoate title coupled with acts of symbolic annexation. Acts of symbolic annexation included the planting of a flag as stated by Judge Huber in the Island of Palmas case. However, this inchoate title had to be consolidated within a reasonable period of time else the title would be forfeited.During the 1700s, though state practice accepted symbolic annexation as the accepted means of obtaining sovereignty, jurists in their writings, however, demanded that effective occupation be the requisite mode for acquiring territory. However, it was not until the 19th century that widespread state practice accepted effective occupation as the mode of acquiring territory. Effective occupation had two requirements:1. Animus occupandi2. Corpus possesionisAnimus occupandi, or animus possidendi is the will to act as sovereign over a particular territory and is the subjective element of effective occupation and corps possession, the objective element, is the actual steps that have been taken to further that intention.Corpus possessionis includes the actual possession and administration over the territory concerned. Administration has to be for a reasonable period of time though. In the territorial dispute between Burkina Faso and Mali, the court held that some twenty years is far too short a time to establish a title.However, if the territory is highly inaccessible or is located upon the high seas then the threshold of corpus possessionis is minimal. Furthermore, if the territory is not populated too the threshold is very low.Eastern Greenland Case:One of the distinguishing feature of this case was till 1931 there was no claim by any sovereign other than Denmark to the sovereignty over Greenland.Danish Government placed reliance on Palmas Island decision of the Permanent Court of Arbitration which stated that a title "founded on the peaceful and continuous display of State authority over the island". It stressed on various conventions and treaties ratified by the Denmark with other countries where a stipulation for non-application of such convention over Greenland was inserted to demonstrate that other nations admitted that Denmark has right to exclude Greenland.These treaties are sufficient to establish Denmark's will and intention to act exercise sovereignty. From the facts stated above i.e. legislations on Greenland for administration, various treaties ratified, concessions granted for erection of telegraph lines, fixing limits on territorial waters, etc are manifestations of the exercise of sovereign authority.Regarding uncertainty over sovereignty during 1814 to 1915, the Court said that taking into account the above facts and circumstances Denmark should be regarded as having displayed her sovereign authority. Despite considering just the period from 1921 to 1931 the Court concluded that Denmark regarded itself as possessing sovereignty over Greenland.The PCIJ after it was satisfied about the valid title to the sovereignty over Greenland at the critical date adjudged the contention in favour of the Danish Government. It said havingregard to a pattern of activity between 1921 and 1931, including the enforcement by legislation of a state trade monopoly, the granting of trading, mining, and other concessions, the exercise of governmental functions and administration, and the making of numerous treaties in the terms of which Danish rights over Greenland were explicit. The Norwegian occupation was illegal and invalid, since Denmark, at the very least in the 10 years previous to the Norwegian occupation, had displayed and exercised her sovereign rights to an extent sufficient to constitute a valid title to sovereignty'.Undertakings Of Norway & Ihlen DeclarationThe Danish Government contended that Norway had given certain undertakings recognizing its sovereignty over Greenland to the effect.1. After termination of the Union between Denmark and Norway in 1814, the latter undertook not to contend the Danish claim of sovereignty over Greenland. PCIJ held that as a result of various undertaking resulting from the separation and culminating in Article 9 of the convention of September 1st, 1819, concluded that Norway acknowledged Danish sovereignty and consequently it cannot occupy of any part thereof.2. International Agreements: In many bilateral and multilateral agreements concluded between Denmark and other countries including Norway, Greenland was described as part of Denmark and has been excluded at the instance of the latter from operation of the agreements. By ratifying such agreements, it is followed that Norway recognized whole of Greenland as part of Denmark.3. Ihlen Declaration: One of the bases for the Denmark's claim was the statement made by Foreign Minister of Norway Mr. Ihlen in July, 1919 would render their claim for sovereignty futile. Norway contented that his statement would not bind the Norwegian Government as it lacked requisite authority.The Danish Minister at Chirstiania under the instruction of Danish Minister for Foreign Affairs on July 12th, 1919 renewed before a Committee constituted at the Peace Conference for the purpose of considering the claims that may be put forward by different countries to Spitzbergen the unofficial assurance given to the Norwegian Government on April 2nd, 1919 stating that Denmark has no special interests at stake in Spitzbergen and they would not raise any objections to its claims. At this occasion the Minister took the liberty and stated that recognition of Denmark's political and economic interest to the whole of Greenland would not encounter any difficulties on the part of the Norwegian Government. To this Mr. Ihlen, replied by stating that the Plans of the Royal [Danish] Government respecting Danish sovereignty over the whole of Greenland... would meet with no difficulties on the part of Norway.Denmark contented relying on this declaration claimed recognition of an existing Danish sovereignty.Norway contented that Mr. Ihlen was in error as to the effect of his statement and the consent was therefore invalid. Norway maintained that Mr. Ihlen had the knowledge of the consequences of extension of Danish sovereignty i.e., elimination of Norwegian right over fishing and hunting. Therefore, Mr. Ilhen has not consented to such declaration. The Court did not entertain this argument as Mr. Ihlen's in ability to foresee the consequences of his actions cannot be a valid ground.Following are the arguments of Norway:1. Ihlen's declaration is a mere diplomatic assurance of the benevolent attitude of the Norwegian Government in the event of subsequent negotiations concerning a definitive settlement; that2. A verbal declaration is not internationally binding, especially when it would involve the renunciation of important national interests; that3. Ihlen could not bind Norway by such a statement, since international law attaches legal force only to those acts of a foreign minister which fall within his constitutional competence; and that4. The Danish recognition of Norwegian sovereignty over Spitzbergen did not constitute a quid pro quo, in that Denmark did not possess in Spitzbergen interests comparable to those of Norway in East Greenland.PCIJ rejected the argument of Denmark that the declaration is recognition of existing Danish sovereignty. On careful examination of the circumstances and the words used it cannot be inferred that the declaration is a definitive recognition of its sovereignty. However, the Court based on the relevant material concluded that the Norwegian attitude in Greenland and Danish attitude in the Spitzbergen are interdependent. The affirmative reply by the Minister had the ability of creating a bilateral engagement. Even if there is no such engagement, what Norway desired from Denmark regarding Spitzbegen is similar to Denmark's wish from Norway. Hence the reply by Mr. Ihlen on July 22nd, 1919 is definitely affirmative.The PCIJ made the reply of Mr. Ihlen binding on the Norwegian Government by stating that:The Court considers it beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the Minister belongsHowever, it is not clear which facts contributed for characterizing it a reply of this nature.Dissenting Opinion Of Judge AnzilottiHe observed that the international competence of a Minister for Foreign Affairs has neither brought to the knowledge of the Court previously nor there are any settled legal authorities. Minister of Foreign Affairs is direct agent of the chief of the State authorised to represent the State. Statement made his authority is binding upon the State.Any mistake pleaded should be of an excusable characterBut even accepting for a moment, the supposition that Mr. Ihlen was mistaken as to the results which might ensue from an extension of Danish sovereignty it must be admitted that this mistake was not such as to entail the nullity of the agreement. If a mistake is pleaded it must be of an excusable character; and one can scarcely believe that a government could be ignorant of the legitimate consequences following upon the extension of sovereignty... Norway was the least likely to be ignorant of the Danish methods of administration in Greenland, or of the part played therein by the monopoly system.ConclusionPCIJ by twelve votes to two adjudged that the promulgation by the Norwegian Government on July 10th, 1931 on occupation over Greenland and any steps in furtherance of the declaration would amount to violation of existing legal situation and are accordingly unlawful and invalid. To ascertain the legal status of Eastern Greenland, the PCJ relied on the following premises:1. The continuous and peaceful exercise of sovereignty over Greenland resulted in the title towards Denmark.2. The Court made the Ihlen declaration binding thereby conferring the sovereignty to Denmark.The Eastern Greenland case has reiterated the principles of International law laid down in Clipperton Island arbitration and Island of Palmas/Miangas arbitration. Furthermore this has influenced the decision in the recent case concerning sovereignty over Pulau ligitan and Pulau sipadan, a contentious case between Indonesia and Malaysia where in the Court ruled in favour of the latter after relying on the decision and reasoning of the Eastern Greenland case.

Nuclear Tests Case: New Zealand v. FranceI.C.J. Reports 1973-1974

Facts

1. This case was brought to the International Court of Justice on 9 May 1973 when New Zealand instituted proceedings against France in terms of a dispute concerning the legality of atmospheric nuclear tests conducted by France in the South Pacific region.

2. The government of New Zealand asked the Court to declare that the nuclear tests run by the French government in the South Pacific which lead to radioactive fallout were a violation of New Zealands rights under international law. The French Government stated that it considered the Court was manifestly not competent in the case and that it could not accept its jurisdiction, further requesting the removal of the case from the Court list. New Zealand filed a Memorial and presented argument at public hearings supporting that the Court had jurisdiction. France did not file Counter-Memorial and was not represented at the hearings. The Court then rejected Frances request to remove the case from the Court list and affirmed its jurisdiction in this case. When the case was heard in 1974, France had issued numerous public statements within that year that it planned to hold no further nuclear tests in the South Pacific.

3. New Zealand, the plaintiff, claimed that its rights under international law were violated by the French governments nuclear testing in the South Pacific.

4. France, the defendant, argued in the first place that the Court did not have sufficient competence to hear the case. When this was dismissed, France contended that it no longer had plans to continue testing in the South Pacific and therefore, no further ruling on the claims of the plaintiff could take place.

Questions

1. Does a dispute still exist between New Zealand and France that the Court can adjudicate?

Decision

1. The Court ruled that a dispute no longer existed at the time of the case hearing between New Zealand and France. The court recognized that public statements made by the Office of the President of the French Republic and other government officials since the case originated conveyed an announcement of the French government to cease nuclear-testing after the completion of its 1974 series. These public statements in effect created certain Rynone 2 legal obligations for the French government, the binding character of which is based on good faith and that interested States are entitled to require that the obligation be respected.

2. Thus, the court stated, in a vote of 9 to 6, that the objective of New Zealand for the total cessation of nuclear-atmospheric testing by the French government had been reached and there no longer existed a dispute for which the Court could contemplate and adjudicate.

Principles

1. New Zealand cited international law in reference to its rights that were being compromised by the French governments nuclear testing program in the South Pacific.

2. To found jurisdiction of the Court, New Zealand cited the General Act for the Pacific Settlement of International Disputes concluded at Geneva in 1928, as well as Articles 36 and 37 of the Statute of the Court.

3. This case also illustrates the necessity for the existence of a dispute at the time of the case hearing for the Court to be able to make any judgment concerning said dispute.

4. This case also illustrates the principle of good faith in citing the French governments public statements about the end of their nuclear testing program as evidence enough that in fact they were going to do so and should be held responsible for this sentiment.

Conclusion

In order for the Court to have been able to make any sort of ruling in this case, the nuclear testing which New Zealand objected to needed to be going on at the time of the case hearing. This principle prevents the court from taking unnecessary and extraneous action against a State who has already met the demands of the State filing suit against the other. This case illustrates an important respect for legal boundaries that the Court should be expected to obey in the sense of not intervening in the affairs of states when no conflict exists. This case would hold relevance today in any situation in which a conflict has essentially been resolved in a way that satisfies the objective that the plaintiff wanted the Court to accomplish, making it unnecessary for the Court to rule on the matter.

CaseBELILOS v. SWITZERLAND Application no. 10328/83

PartiesApplicant: BELILOS State Party: SWITZERLAND

FactsIn a report of 16 April 1981, the Lausanne police laid an information against Belilos for having contravened the municipalitys General Police Regulations by having taken part in a demonstration in the streets of the city on 4 April for which permission had not been sought in advance.Mrs. Belilos complained that she had not been tried by an independent and impartial tribunal within the meaning of Article 6 1 (art. 6-1) of the Convention, with full jurisdiction to determine questions both of law and of fact.The Government maintained: A. the Court has no jurisdiction to consider the merits of the case; B.there has been no infringement of that provision as it is applicable to Switzerland.

Procedural PostureMrs. Belilos applied to the Criminal Cassation Division of the Vaud Cantonal Court to have that decision declared null and void. The Criminal Cassation Division dismissed the appeal on 25 November 1981.The applicant lodged a public-law appeal against this decision with the Federal Court. On 2 November 1982, the Federal Court (1st Public-Law Division) delivered a judgment dismissing the appeal.The case was referred to the Court by the European Commission of Human Rights and by the Government of the Swiss Confederation on 18 July and 22 September 1986 respectively. It originated in an application (no. 10328/83) against Switzerland lodged with the Commission under Article 25 (art. 25) by Mrs. Marlne Belilos, a Swiss national, on 24 March 1983.

Issues1. Whether the declaration was a mere interpretative declaration or not have the effect of a reservation?2. Is the Courts competent to determine the validity under Article 64 (art. 64) of the Convention of a reservation or, where appropriate, of an interpretative declaration has not given rise to dispute in the instant case?

RightsDirectly: the right to a fair trial

Holding & ReasoningThe Court must see to it that the obligations arising under the Convention are not subject to restrictions which would not satisfy the requirements of Article 64 (art. 64) as regards reservations. Accordingly, it will examine the validity of the interpretative declaration in question, as in the case of a reservation, in the context of this provision.The declaration in question does not satisfy two of the requirements of Article 64 (art. 64) of the Convention, with the result that it must be held to be invalid.The Court notes that the Convention does not give it jurisdiction to direct the Swiss State - even supposing that the latter could itself comply with such a direction.The Court notes, like the Delegate of the Commission, that the applicant did not produce details, with supporting documents, of the expenses not covered by legal aid.

Rules of LawIn order to establish the legal character of such a declaration, one must look behind the title given to it and seek to determine the substantive content.The Court notes that the Convention does not empower it to order the State to alter its legislation; the Courts judgment leaves to the State the choice of the means to be used in its domestic legal system to give effect to its obligation under Article 53.

DecisionThere has been a breach of Article 6 1 (art. 6-1) of the Convention.The respondent State is to pay the applicant in respect of costs and expenses the sum of 11.750 Swiss francs.

ValidityLegally binding

Summary:Effect of an interpretative declaration made in respect to article 6(1) of the Convention. The Court declared the declaration invalid and found a violation of article 6(1) because the applicant was not able to secure a determination by a tribunal of the questions of fact in her case.

The applicant is a Swiss national, who lives in Lausanne and was a student there at the material time. The Lausanne police laid an information against her for having contravened the municipality's General Police Regulations by having taken part in a demonstration in the streets of the city on 4 April for which permission had not been sought in advance. The march had been organised by the "Lausanne bouge" movement, requesting that the municipality should provide an autonomous youth centre. Switzerland argued that the applicants' application was incompatible with the international undertakings entered into by Switzerland under article 6-1 of the Convention. This declaration estimates that no appeal is available to a court with unlimited jurisdiction against an administrative fine.

Article 6(1)The Lausanne Police Board is described as "municipal authority" and as "administrative authority": such terms are not decisive but an important indication as to the nature of the body. The appointment of the sole member by the municipality is not sufficient as to cast doubt on the independence and impartiality of the persons appointed. A municipal civil servant but sitting in personal capacity, not subject of orders, taking a different oath from one taken by policemen, and in principle not liable to dismissal during the time of office, does not call in question the personal impartiality. However, account needs to be taken of considerations relating to functions exercised and internal organisation: importance of appearances. He is senior civil servant from police headquarters, liable to return to other departmental duties; the applicant could legitimately have doubts as to the independence and organisational impartiality of the Police Board. Federal Court: The public-law appeal is the only one available in the instant case: no re-examination of questions of fact or of law, the court's power is limited to ensuring that there had been no arbitrariness; accordingly, the shortcomings found at the level of the Police Board are not remedied. Conclusion: violation.

Article 50No jurisdiction to direct respondent state to cancel the applicant's conviction and sentence; therefore, it is impossible to speculate as to the outcome of proceedings, had the violation of the Convention not occurred. The court is not empowered to order the respondent State to alter its legislation. Reimbursement of court fees and lawyers fees in respect of national proceedings. Switzerland is to pay specific sum.

Human Rights Committee, General Comment 24 (52), General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994).1

1. As of 1 November 1994, 46 of the 127 States parties to the International Covenant on Civil and Political Rights had, between them, entered 150 reservations of varying significance to their acceptance of the obligations of the Covenant. Some of these reservations exclude the duty to provide and guarantee particular rights in the Covenant. Others are couched in more general terms, often directed to ensuring the continued paramountcy of certain domestic legal provisions. Still others are directed at the competence of the Committee. The number of reservations, their content and their scope may undermine the effective implementation of the Covenant and tend to weaken respect for the obligations of States Parties. Is it important for States Parties to know exactly what obligations they, and other States Parties, have in fact undertaken. And the Committee, in the performance of its duties under either Article 40 of the Covenant or under the Optional Protocols, must know whether a State is bound by a particular obligation or to what extent. This will require a determination as to whether a unilateral statement is a reservation or an interpretative declaration and a determination of its acceptability and effects.2. For these reasons the Committee has deemed it useful to address in a General Comment the issues of international law and human rights policy that arise. The General Comment identifies the principles of international law that apply to the making of reservations and by reference to which their acceptability is to be tested and their purport to be interpreted. It addresses the role of States Parties in relation to the reservations of others. It further addresses the role of the Committee itself in relation to reservations. And it makes certain recommendations to present States Parties for a reviewing of reservations and to those States that are not yet parties about legal and human rights policy considerations to be borne in mind should they consider ratifying or acceding with particular reservations.3. It is not always easy to distinguish a reservation from a declaration as to a States's understanding of the interpretation of a provision, or from a statement of policy. Regard will be had to the intention of the State, rather than the form of the instrument. If a statement, irrespective of its name or title, purports to exclude or modify the legal effect of a treaty in its application to the State, it constitutes a reservation.2Conversely, if a so-called reservation merely offers a State's understanding of a provision but does not exclude or modify that provision in its application to that State, it is, in reality, not a reservation.4. The possibility of entering reservations may encourage States which consider that they have difficulties in guaranteeing all the rights in the Covenant nonetheless to accept the generality of obligations in that instrument. Reservations may serve a useful function to enable States to adapt specific elements in their laws to the inherent rights of each person as articulated in the Covenant. However, it is desirable in principle that States accept the full range of obligations, because the human rights norms are the legal expression of the essential rights that every person is entitled to as a human being.5. The Covenant neither prohibits reservations nor mentions any type of permitted reservation. The same is true of the first Optional Protocol. The Second Optional Protocol provides, in article 2, paragraph 1, that "No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime". Paragraphs 2 and 3 provide for certain procedural obligations.6. The absence of a prohibition on reservations does not mean that any reservation is permitted. The matter of reservations under the Covenant and the first Optional Protocol is governed by international law. Article 19(3) of the Vienna Convention on the Law of Treaties provides relevant guidance.3It stipulates that where a reservation is not prohibited by the treaty or falls within the specified permitted categories, a State may make a reservation provided it is not incompatible with the object and purpose of the treaty. Even though, unlike some other human rights treaties, the Covenant does not incorporate a specific reference to the object and purpose test, that test governs the matter of interpretation and acceptability of reservations.7. In an instrument which articulates very many civil and political rights, each of the many articles, and indeed their interplay, secures the objectives of the Covenant. The object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken.8. Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant. Although treaties that are mere exchanges of obligations between States allow them to reserveinter seapplication of rules of general international law, it is otherwise in human rights treaties, which are for the benefit of persons within their jurisdiction. Accordingly, provisions in the Covenant that represent customary international law (and a fortiori when they have the character of peremptory norms) may not be the subject of reservations. Accordingly, a State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture, profess their own religion, or use their own language. And while reservations to particular clauses of Article 14 may be acceptable, a general reservation to the right to a fair trial would not be.9. Applying more generally the object and purpose test to the Covenant, the Committee notes that, for example, reservation to article 1 denying peoples the right to determine their own political status and to pursue their economic, social and cultural development, would be incompatible with the object and purpose of the Covenant. Equally, a reservation to the obligation to respect and ensure the rights, and to do so on a non-discriminatory basis (Article 2(1) would not be acceptable. Nor may a State reserve an entitlement not to take the necessary steps at the domestic level to give effect to the rights of the Covenant (Article 2(2)).10. The Committee has further examined whether categories of reservations may offend the "object and purpose" test. In particular, it falls for consideration as to whether reservations to the non-derogable provisions of the Covenant are compatible with its object and purpose. While there is no hierarchy of importance of rights under the Covenant, the operation of certain rights may not be suspended, even in times of national emergency. This underlines the great importance of non-derogable rights. But not all rights of profound importance, such as articles 9 and 27 of the Covenant, have in fact been made non-derogable. One reason for certain rights being made non-derogable is because their suspension is irrelevant to the legitimate control of the state of national emergency (for example, no imprisonment for debt, in article 11). Another reason is that derogation may indeed be impossible (as, for example, freedom of conscience). At the same time, some provisions are non-derogable exactly because without them there would be no rule of law. A reservation to the provisions of article 4 itself, which precisely stipulates the balance to be struck between the interests of the State and the rights of the individual in times of emergency, would fall in this category. And some non-derogable rights, which in any event cannot be reserved because of their status as peremptory norms, are also of this character - the prohibition of torture and arbitrary deprivation of life are examples.4While there is no automatic correlation between reservations to non-derogable provisions, and reservations which offend against the object and purpose of the Covenant, a State has a heavy onus to justify such a reservation.11. The Covenant consists not just of the specified rights, but of important supportive guarantees. These guarantees provide the necessary framework for securing the rights in the Covenant and are thus essential to its object and purpose. Some operate at the national level and some at the international level. Reservations designed to remove these guarantees are thus not acceptable. Thus, a State could not make a reservation to article 2, paragraph 3, of the Covenant, indicating that it intends to provide no remedies for human rights violations. Guarantees such as these are an integral part of the structure of the Covenant and underpin its efficacy. The Covenant also envisages, for the better attainment of its stated objectives, a monitoring role for the Committee. Reservations that purport to evade that essential element in the design of the Covenant, which is also directed to securing the enjoyment of the rights, are also incompatible with its object and purpose. A State may not reserve the right not to present a report and have it considered by the Committee. The Committee's role under the Covenant, whether under article 40 or under the Optional Protocols, necessarily entails interpreting the provisions of the Covenant and the development of a jurisprudence. Accordingly, a reservation that rejects the Committee's competence to interpret the requirements of any provisions of the Covenant would also be contrary to the object and purpose of that treaty.12. The intention of the Covenant is that the rights contained therein should be ensured to all those under a State's party's jurisdiction. To this end certain attendant requirements are likely to be necessary. Domestic laws may need to be altered properly to reflect the requirements of the Covenant; and mechanisms at the domestic level will be needed to allow the Covenant rights to be enforceable at the local level. Reservations often reveal a tendency of States not to want to change a particular law. And sometimes that tendency is elevated to a general policy. Of particular concern are widely formulated reservations which essentially render ineffective all Covenant rights which would require any change in national law to ensure compliance with Covenant obligations. No real international rights or obligations have thus been accepted. And when there is an absence of provisions to ensure that Covenant rights may be sued on in domestic courts, and, further, a failure to allow individual complaints to be brought to the Committee under the first Optional Protocol, all the essential elements of the Covenant guarantees have been removed.13. The issue arises as to whether reservations are permissible under the first Optional Protocol and, if so, whether any such reservation might be contrary to the object and purpose of the Covenant or of the first Optional Protocol itself. It is clear that the first Optional Protocol is itself an international treaty, distinct from the Covenant but closely related to it. Its object and purpose is to recognise the competence of the Committee to receive and consider communications from individuals who claim to be victims of a violation by a State party of any of the rights in the Covenant. States accept the substantive rights of individuals by reference to the Covenant, and not the first Optional Protocol. The function of the first Optional Protocol is to allow claims in respect of those rights to be tested before the Committee. Accordingly, a reservation to an obligation of a State to respect and ensure a right contained in the Covenant, made under the first Optional Protocol when it has not previously been made in respect of the same rights under the Covenant, does not affect the State's duty to comply with its substantive obligation. A reservation cannot be made to the Covenant through the vehicle of the Optional Protocol but such a reservation would operate to ensure that the State's compliance with that obligation may not be tested by the Committee under the first Optional Protocol. And because the object and purpose of the first Optional Protocol is to allow the rights obligatory for a State under the Covenant to be tested before the Committee, a reservation that seeks to preclude this would be contrary to the object and purpose of the first Optional Protocol, even if not of the Covenant. A reservation to a substantive obligation made for the first time under the first Optional Protocol would seem to reflect an intention by the State concerned to prevent the Committee from expressing its views relating to a particular article of the Covenant in an individual case.14 The Committee considers that reservations relating to the required procedures under the first Optional Protocol would not be compatible with its object and purpose. The Committee must control its own procedures as specified by the Optional Protocol and its rules of procedure. Reservations have, however, purported to limit the competence of the Committee to acts and events occurring after entry into force for the State concerned of the first Optional Protocol. In the view of the Committee this is not a reservation but, most usually, a statement consistent with its normal competence ratione temporis. At the same time, the Committee has insisted upon its competence, even in the face of such statements or observations, when events or acts occurring before the date of entry into force of the first Optional Protocol have continued to have an effect on the rights of a victim subsequent to that date. Reservations have been entered which effectively add an additional ground of inadmissibility under article 5, paragraph 2, by precluding examination of a communication when the same matter has already been examined by another comparable procedure. Insofar as the most basic obligation has been to secure independent third party review of the human rights of individuals, the Committee has, where the legal right and the subject matter are identical under the Covenant and under another international instrument, viewed such a reservation as not violating the object and purpose of the first Optional Protocol.15. The primary purpose of the Second Optional Protocol is to extend the scope of the substantive obligations undertaken under the Covenant, as they relate to the right to life, by prohibiting execution and abolishing the death penalty.5It has its own provision concerning reservations, which is determinative of what is permitted. Article 2, paragraph 1, provides that only one category of reservation is permitted, namely one that reserves the right to apply the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime. Two procedural obligations are incumbent upon State parties wishing to avail themselves of such a reservation. Article 2, paragraph 1, obliges such a State to inform the Secretary General, at the time of ratification or accession, of the relevant provisions of its national legislation during warfare. This is clearly directed towards the objectives of specificity and transparency and in the view of the Committee a purported reservation unaccompanied by such information is without legal effect. Article 2, paragraph 3, requires a State making such a reservation to notify the Secretary General of the beginning or ending of a state of war applicable to its territory. In the view of the Committee, no State may seek to avail itself of its reservation (that is, have execution in time of war regarded as lawful) unless it has complied with the procedural requirement of article 2, paragraph 3.16. The Committee finds it important to address which body has the legal authority to make determinations as to whether specific reservations are compatible with the object and purpose of the Covenant. As for international treaties in general, the International Court of Justice has indicated in theReservations to the Genocide Convention Case(1951) that a State which objected to a reservation on the grounds of incompatibility with the object and purpose of a treaty could, through objecting, regard the treaty as not in effect as between itself and the reserving State. Article 20, paragraph 4, of the Vienna Convention on the Law of Treaties 1969 contains provisions most relevant to the present case on acceptance of and objection to reservations. This provides for the possibility of a State to object to a reservation made by another State. Article 21 deals with the legal effects of objections by States to reservations made by other States. Essentially, a reservation precludes the operation, as between the reserving and other States, of the provision reserved; and an objection thereto leads to the reservation being in operation as between the reserving and objecting State only to the extent that it has not been objected to.17. As indicated above, it is the Vienna Convention on the Law of Treaties that provides the definition of reservations and also the application of the object and purpose test in the absence of other specific provisions. But the Committee believes that its provisions on the role of State objections in relation to reservations are inappropriate to address the problem of reservations to human rights treaties. Such treaties, and the Covenant specifically, are not a web of inter-State exchanges of mutual obligations. They concern the endowment of individuals with rights. The principle of inter-State reciprocity has no place, save perhaps in the limited context of reservations to declarations on the Committee's competence under article 41. And because the operation of the classic rules on reservations is so inadequate for the Covenant, States have often not seen any legal interest in or need to object to reservations. The absence of protest by States cannot imply that a reservation is either compatible or incompatible with the object and purpose of the Covenant. Objections have been occasional, made by some States but not others, and on grounds not always specified; when an objection is made, it often does not specify a legal consequence, or sometimes even indicates that the objecting party nonetheless does not regard the Covenant as not in effect as between the parties concerned. In short, the pattern is so unclear that it is not safe to assume that a non-objecting State thinks that a particular reservation is acceptable. In the view of the Committee, because of the special characteristics of the Covenant as a human rights treaty, it is open to question what effect objections have between States inter se. However, an objection to a reservation made by States may provide some guidance to the Committee in its interpretation as to its compatibility with the object and purpose of the Covenant.18. It necessarily falls to the Committee to determine whether a specific reservation is compatible with the object and purpose of the Covenant. This is in part because, as indicated above, it is an inappropriate task for States parties in relation to human rights treaties, and in part because it is a task that the Committee cannot avoid in the performance of its functions. In order to know the scope of its duty to examine a State's compliance under article 40 or a communication under the first Optional Protocol, the Committee has necessarily to take a view on the compatibility of a reservation with the object and purpose of the Covenant and with general international law. Because of the special character of a human rights treaty, the compatibility of a reservation with the object and purpose of the Covenant must be established objectively, by reference to legal principles, and the Committee is particularly well placed to perform this task. The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.19. Reservations must be specific and transparent, so that the Committee, those under the jurisdiction of the reserving State and other States parties may be clear as to what obligations of human rights compliance have or have not been undertaken. Reservations may thus not be general, but must refer to a particular provision of the Covenant and indicate in precise terms its scope in relation thereto. When considering the compatibility of possible reservations with the object and purpose of the Covenant, States should also take into consideration the overall effect of a group of reservations, as well as the effect of each reservation on the integrity of the Covenant, which remains an essential consideration. States should not enter so many reservations that they are in effect accepting a limited number of human rights obligations, and not the Covenant as such. So that reservations do not lead to a perpetual non-attainment of international human rights standards, reservations should not systematically reduce the obligations undertaken only to the presently existing in less demanding standards of domestic law. Nor should interpretative declarations or reservations seek to remove an autonomous meaning to Covenant obligations, by pronouncing them to be identical, or to be accepted only insofar as they are identical, with existing provisions of domestic law. States should not seek through reservations or interpretative declarations to determine that the meaning of a provision of the Covenant is the same as that given by an organ of any other international treaty body.20. States should institute procedures to ensure that each and every proposed reservation is compatible with the object and purpose of the Covenant. It is desirable for a State entering a reservation to indicate in precise terms the domestic legislation or practices which it believes to be incompatible with the Covenant obligation reserved; and to explain the time period it requires to render its own laws and practices compatible with the Covenant, or why it is unable to render its own laws and practices compatible with the Covenant. States should also ensure that the necessity for maintaining reservations is periodically reviewed, taking into account any observations and recommendations made by the Committee during examination of their reports. Reservations should be withdrawn at the earliest possible moment. Reports to the Committee should contain information on what action has been taken to review, reconsider or withdrawn reservations.

General Comment 24 on Reservations to the International Covenant on Civil and Political Rights

Despite the limited obligations and enforcement mechanisms of the Covenant, many states have sought to further limit their responsibility under the Covenant by attaching reservations or declarations to their ratifications. By 1994, the number and extent of the proposed reservations threatened the integrity of the Covenant, which was already endangered by its weak adjudication and enforcement procedures.

The Covenant itself says nothing about the admissibility of reservations. Only the Second Optional Protocol mentions reservations, providing that "[n]o reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime. '49 Therefore, except for reservations to the Second Optional Protocol, the express language of the Covenant does not govern the question of reservations.

It is in this context that the Human Rights Committee, faced with a devastating array of reservations and declarations, promulgated the controversial General Comment 24. Presumably aware of the furor the Comment would ignite, the Committee carefully couched its statement of purpose in descriptive terms: the Comment would "identify the [applicable] principles of international law," "address ... the role of States Parties," "address ... the role of the Committee itself," and finally, in its one admitted law-making act, "make... certain recommendations" to states parties regarding reservations. 50 In fact, since the Covenant does not discuss the issue of reservations, the Comment is entirely prescriptive, creating substantial powers for the Committee and imposing a new reservations regime.

General Comment 24 establishes three substantive policies to be applied to reservations to the Covenant: the Committee is to have legal authority to determine which reservations are permissible; 52 the test for whether a reservation is permissible is to be whether the reservation is compatible with the Covenant's object and purpose; 53 and if a reservation is incompatible, it is to be severed and the reserving state is to be a party to the Covenant without its reservation.54 These policies represent the full range of the spectrum in terms of their basis in international law and custom. The object and purpose test is the accepted standard for addressing the validity of reservations. In contrast, the policy of severing incompatible reservations is rarely utilized, and the Committee's claim of legal authority is quite controversial.

The Comment discusses the application of the object and purpose test to the Covenant at length, although (or perhaps because) this is the aspect of the Covenant with the most support in international legal custom. 55 It is only in a single paragraph at the beginning and a few paragraphs toward the end of General Comment 24 that the Committee justifies its claim that it has authority to adjudicate reservations.56 It describes this evolution in its function as an inevitable result of the states parties' failure to put the Covenant into effect, both by making unsuitable reservations and by failing to object to other states' unsuitable reservations.5 7 On the contentious issue of its decision to sever incompatible reservations, the Committee offers no explanation or justification whatsoever, but simply makes a flat statement of policy: "the normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.",5 8

Although the Committee did not elucidate the legal and practical issues raised by General Comment 24, these issues have a rich history in the international literature and practice on reservations. This literature and practice demonstrate that the policies of the Comment are neither as novel nor as extreme as they initially appear. Rather, these policies are a renewed attempt to address recurring, fundamental issues about the goals and functions of human rights treaties and about the rights and obligations of the sovereign states parties to those treaties.

Advisory Opinion of 18 July 1950The advisory opinion summarized here deals with the second phase of the question concerning the Interpretation of Peace Treaties signed with Bulgaria, Hungary and Romania. By a Resolution ofOctober 22nd, 1949, the General Assembly of the United Nations had submitted to the Court for advisory opinion the following four questions:"I. Do the diplomatic exchanges between Bulgaria, Hungary and Romania on the one hand and certain Allied and Associated Powers signatories to the Treaties of Peace on the other, concerning the implementation of Article 2 of the Treaties with Bulgaria and Hungary and Article3 of the Treaty with Romania, disclose disputes subject to the provisions for the settlement of disputes contained in Article 36 of the Treaty of Peace with Bulgaria, Article40 of the Treaty of Peace with Hungary and Article 38 of the Treaty of Peace with Romania?"In the event of an affirmative reply to Question I:"II. Are the Governments of Bulgaria, Hungary and Romania obligated to carry out the provisions of the Articles referred to in Question I, including the provisions for the appointment of their representatives to the Treaty Commissions?"In the event of an affirmative reply to Question II and if within thirty days from the date when the Court delivers its opinion, the Governments concerned have not notified the Secretary-General that they have appointed their representatives to the Treaty Commissions, and the Secretary-General has so advised the International Court of Justice:"III. If one party fails to appoint a representative to a Treaty Commission under the Treaties of Peace with Bulgaria, Hungary and Romania where that party is obligated to appoint a representative to the Treaty Commission, is the Secretary-General of the United Nations authorized to appoint the third member of the Commission upon the request of the other party to a dispute according to the provisions of the respective Treaties?"In the event of an affirmative reply to Question III:"IV. Would a Treaty Commission composed of a representative of one party and a third member appointed by the Secretary-General of the United Nations constitute a Commission, within the meaning of the relevant Treaty articles, competent to make a definitive binding decision in settlement of a dispute?"On March 30th, 1950, the Court answered the first two questions by saying that diplomatic exchanges disclosed the existence of disputes subject to the Treaty provisions for the settlement of disputes and that the Governments of Bulgaria, Hungary and Romania were under obligation to appoint their representatives to the Treaty Commissions.OnMay 1st, 1950, the Acting Secretary-General of the United Nations notified the Court that, within 30 days of the date of the delivery of the Court's Advisory Opinion on the first two questions, he had not received information that any one of the three Governments concerned had appointed its representative to the Treaty Commissions.OnJune 22nd, 1950, the Government of the United States of America sent a written statement. The United Kingdom Government had previously stated its views on Questions III and IV in the written statement submitted during the first phase of the case.At public sittings held on June 27th and 28th, 1950, the Court heard oral statements submitted on behalf of the Secretary-General of the United Nations by the Assistant Secretary-General incharge of the Legal Department and on behalf of the Government of the United States of America and of the Government of the United Kingdom.In its opinion the Court said that, although the literal sense did not completely exclude the possibility of appointing the third member before appointing both national commissioners, the natural and ordinary meaning of the term required that the latter be appointed before the third member. This clearly resulted from the sequence of events contemplated by the Article. Moreover, it was the normal order in arbitration practice and, in the absence of any express provision to the contrary, there was no reason to suppose that the parties wished to depart from it.The Secretary-General's power to appoint a third member derived solely from the agreement of the parties, as expressed in the disputes clause of the treaties. By its very nature such a clause was to be strictly construed and could be applied only in the case expressly provided thereby. The case envisaged in the Treaties was that of the failure of the parties to agree upon the selection of the third member and not the much more serious one of a complete refusal of cooperation by one of them, taking the form of refusing to appoint its own Commissioner.A change in the normal sequence of appointments could only be justified if it were shown by the attitude of the parties that they desired such a reversal to facilitate the constitution of Commissions in accordance with the terms of the Treaties. But such was not the present case. In these circumstances the appointment of the third member by the Secretary-General, instead of bringing about the constitution of a three-member Commission provided for by the Treaties, would result only in the constitution of a two-member Commission, not the kind of Commission for which the Treaties had provided. The opposition of the one national Commissioner could prevent the Commission from reaching any decision. It could decide only by unanimity, whereas the disputes clause provided for a majority decision. There was no doubt that the decisions of a two-member Commission, one of which was designated by one party only, would not have the same degree of moral authority as those of a three-member Commission.In short, the Secretary-General would be authorized to proceed to the appointment of a third member only if it were possible to constitute a Commission in conformity with the Treaty provisions.The Court had declared in its Opinion of March 30th that the Governments of Bulgaria, Hungary and Romania were under an obligation to appoint their representative to the Treaty Commissions. Refusal to fulfil a Treaty obligation would involve international responsibility. Nevertheless, such a refusal could not alter the conditions contemplated in the Treaties for the exercise of the Secretary-General's power of appointment. These conditions were not present in this case and their lack was not supplied by the fact that their absence was due to the breach of a Treaty obligation. The failure of machinery for settling disputes by reason of the practical impossibility of creating the Commission provided for in the Treaties was one thing; international responsibility another. One could not remedy the breach of a Treaty obligation by creating a Commission which was not the kind of Commission contemplated by the Treaties. It was the Court's duty to interpret Treaties, not to revise them.Nor could the principle that a clause must be interpreted so as to give it practical effect justify the Court in attributing to the provisions a meaning which would be contrary to their letter and spirit.The fact that an arbitration commission may make a valid decision although the original number of its members is later reduced, for instance, by withdrawal of one of the arbitrators, did not permit drawing an analogy with the case of the appointment of a third member by the Secretary-General in circumstances other than those contemplated in the Treaties, because this raised precisely the question of the initial validity of the constitution of the Commission.Nor could it be said that a negative answer to Question III would seriously jeopardize the future of the many similar arbitration clauses in other treaties. The practice of arbitration showed that, whereas craftsmen of arbitration conventions often took care to provide for the consequences of the inability of the parties to agree upon the appointment of a third member, they had, apart from exceptional cases, refrained from contemplating the possibility of a refusal by a party to appoint its own Commissioner. The few Treaties containing express provisions on the matter indicated that the signatory States in those cases felt the impossibility of remedying the situation simply by way of interpretation of the Treaties. In fact, the risk was a small one as, normally, each party had a direct interest in the appointment of its Commissioner and must, in any case, be presumed to observe its Treaty obligations. That this was not so in the present case did not justify the Court in exceeding its judicial function on the pretext of remedying a default for the occurrence of which the Treaties had made no provision.For those reasons the Court decided to answer Question III in the negative and therefore it was not necessary for it to consider Question IV.The Court's answer was given by 11 votes to 2.Judge Krylov, while joining in the conclusions of the Opinion and the general line of argument, declared himself unable to concur in the reasons dealing with international responsibility as, in his opinion, this problem went beyond the scope of the question put to the Court.Judge Read and Azevedo appended statements of their dissenting opinions.

Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia NOTWITHSTANDING SECURITY COUNCIL RESOLUTION 276 (1970)

Advisory Opinion of21 June 1971In its advisory opinion on the question put by the Security Council of the United Nations, "What are the legal consequences for States of the continued presence of South Africa in Namibia notwithstanding Security Council resolution 276 (1970)?", the Court was of opinion,by 13 votes to 2,(1) that, the continued presence of South Africa in Namibia being illegal, South Africa is under obligation to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory;by 11 votes to 4,(2) that States Members of the United Nations are under obligation to recognize the illegality of South Africa's presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts and in particular any dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, such presence and administration;(3) that it is incumbent upon States which are not Members of the United Nations to give assistance, within the scope of subparagraph (2) above, in the action which has been taken by the United Nations with regard to Namibia.** *For these proceedings the Court was composed as follows: President Sir Muhammad Zafrulla Khan; Vice-President Ammoun; Judges Sir Gerald Fitzmaurice, Padilla Nervo, Forster, Gros, Bengzon, Petrn, Lachs, Onyeama, Dillard, Ignacio-Pinto, de Castro, Morozov and Jimnez de Archaga.The President of the Court, Sir Muhammad Zafrulla Khan, has appended a declaration to the Advisory Opinion. Vice-President Ammoun and Judges Padilla Nervo, Petrn, Onyeama, Dillard and de Castro have appended separate opinions. Judge Sir Gerald Fitzmaurice and Judge Gros have appended dissenting opinions.

Course of the Proceedings(paras. 1-18 of the Advisory Opinion)The Court first recalls that the request for the advisory opinion emanated from the United Nations Security Council, which decided to submit it by resolution 284 (1970) adopted on 29July1970. The Court goes on to recapitulate the different steps in the subsequent proceedings.It refers in particular to the three Orders of26 January 1971whereby the Court decided not to accede to the objections raised by the Government of South Africa against the participation in the proceedings of three Members of the Court. These objections were based on statements which the Judges in question had made in a former capacity as representatives of their Governments in United Nations organs dealing with matters concerning Namibia, or on their participation in the same capacity in the work of those organs. The Court came to the conclusion that none of the three cases called for the application of Article 17, paragraph 2, of its Statute.

Objections against the Court's Dealing with the Question(paras. 19-41 of the Advisory Opinion)The Government of South Africa contended that the Court was not competent to deliver the opinion, because Security Council resolution 284 (1970) was invalid for the following reasons:(a)two permanent members of the Council abstained during the voting (Charter of the United Nations, Art. 27, para. 3);(b)as the question related to a dispute between South Africa and other Members of the United Nations, South Africa should have been invited to participate in the discussion (Charter, Art. 32) and the proviso requiring members of the Security Council which are parties to a dispute to abstain from voting should have been observed (Charter, Art. 27, para. 3). The Court points out that(a)for a long period the voluntary abstention of a permanent member has consistently been interpreted as not constituting a bar to the adoption of resolutions by the Security Council;(b)the question of Namibia was placed on the agenda of the Council as asituationand the South African Government failed to draw the Council's attention to the necessity in its eyes of treating it as adispute.In the alternative the Government of South Africa maintained that even if the Court had competence it should nevertheless, as a matter of judicial propriety, refuse to give the opinion requested, on account of political pressure to which it was contended, the Court had been or might be subjected. On 8 February 1971, at the opening of the public sittings, the President of the Court declared that it would not be proper for the Court to entertain those observations, bearing as they did on the very nature of the Court as the principal judicial organ of the United Nations, an organ which, in that capacity, acts only on the basis of law, independently of all outside influences or interventions whatsoever.The Government of South Africa also advanced another reason for not giving the advisory opinion requested: that the question was in reality contentious, because it related to an existing dispute between South Africa and other States. The Court considers that it was asked to deal with a request put forward by a United Nations organ with a view to seeking legal advice on the consequences of its own decisions. The fact that, in order to give its answer, the Court might have to pronounce on legal questions upon which divergent views exist between South Africa and the United Nations does not convert the case into a dispute between States. (There was therefore no necessity to apply Article 83 of the Rules of Court, according to which, if an advisory opinion is requested upon a legal question "actually pending between two or more States", Article 31 of the Statute, dealing with judgesad hoc,is applicable; the Government of South Africa having requested leave to choose a judgead hoc,the Court heard its observations on that point on 27January 1971 but, in the light of the above considerations, decided by the Order of 29January1971 not to accede to that request.)In sum, the Court saw no reason to decline to answer the request for an advisory opinion.

History of the Mandate(paras. 42-86 of the Advisory Opinion)Refuting the contentions of the South African Government and citing its own pronouncements in previous proceedings concerning South West Africa (Advisory Opinions of 1950, 1955 and 1956; Judgment of 1962), the Court recapitulates the history of the Mandate.The mandates system established by Article 22 of the Covenant of the League of Nations was based upon two principles of paramount importance: the principle of non-annexation and the principle that the well-being and development of the peoples concerned formed a sacred trust of civilisation. Taking the developments of the past half century into account, there can be little doubt that the ultimate objective of the sacred trust was self-determination and independence. The mandatory was to observe a number of obligations, and the Council of the League was to see that they were fulfilled. The rights of the mandatory as such had their foundation in those obligations.When the League of Nations was dissolved, the raison d'etre and original object of these obligations remained. Since their fulfilment did not depend on the existence of the League, they could not be brought to an end merely because the supervisory organ had ceased to exist. The Members of the League had not declared, or accepted even by implication, that the mandates would be cancelled or lapse with the dissolution of the League.The last resolution of the League Assembly and Article 80, paragraph 1, of the United Nations Charter maintained the obligations of mandatories. The International Court of Justice has consistently recognized that the Mandate survived the demise of the League, and South Africa also admitted as much for a number of years. Thus the supervisory element, which is an essential part of the Mandate, was bound to survive. The United Nations suggested a system of supervision which would not exceed that which applied under the mandates system, but this proposal was rejected by South Africa.

Resolutions by the General Assembly and the Security Council(paras. 87-116 of the Advisory Opinion)Eventually, in 1966, the General Assembly of the United Nations adopted resolution 2145 (XXI), whereby it decided that the Mandate was terminated and that South Africa had no other right to administer the Territory. Subsequently the Security Council adopted various resolutions including resolution 276(1970) declaring the continued presence of South Africa in Namibia illegal. Objections challenging the validity of these resolutions having been raised, the Court points out that it does not possess powers of judicial review or appeal in relation to the United Nations organs in question. Nor does the validity of their resolutions form the subject of the request for advisory opinion. The Court nevertheless, in the exercise of its judicial function, and since these objections have been advanced, considers them in the course of its reasoning before determining the legal consequences arising from those resolutions.It first recalls that the entry into force of the United Nations Charter established a relationship between all Members of the United Nations on the one side, and each mandatory Power on the other, and that one of the fundamental principles governing that relationship is that the party which disowns or does not fulfil its obligations cannot be recognized as retaining the rights which it claims to derive from the relationship. Resolution 2145 (XXI) determined that there had been a material breach of the Mandate, which South Africa had in fact disavowed.It has been contended(a)that the Covenant of the League of Nations did not confer on the Council of the League power to terminate a mandate for misconduct of the mandatory and that the United Nations could not derive from the League greater powers than the latter itself had,(b)that, even if the Council of the League had possessed the power of revocation of the Mandate, it could not have been exercised unilaterally but only in co-operation with the Mandatory;(c)that resolution 2145 (XXI) made pronouncements which the General Assembly, not being a judicial organ, was not competent to make;(d)that a detailed factual investigation was called for(e)that one part of resolution 2145 (XXI) decided in effect a transfer of territory.The Court observes(a)that, according to a general principle of international law (incorporated in the Vienna Convention on the Law of Treaties), the right to terminate a treaty on account of breach must be presumed to exist in respect of all treaties, even if unexpressed;(b)that the consent of the wrongdoer to such a form of termination cannot be required;(c)that the United Nations, as a successor to the League, acting through its competent organ, must be seen above all as the supervisory institution competent to pronounce on the conduct of the Mandatory;(d)that the failure of South Africa to comply with the obligation to submit to supervision cannot be disputed;(e)that the General Assembly was not making a finding on facts, but formulating a legal situation; it would not be correct to assume that, because it is in principle vested with recommendatory powers, it is debarred from adopting, in special cases within the framework of its competence, resolutions which make determinations or have operative design.The General Assembly, however, lacked the necessary powers to ensure the withdrawal of South Africa from the Territory and therefore, acting in accordance with Article 11, paragraph 2, of the Charter, enlisted the co-operation of the Security Council. The Council for its part, when it adopted the resolutions concerned, was acting in the exercise of what it deemed to be its primary responsibility for the maintenance of peace and security. Article 24 of the Charter vests in the Security Council the necessary authority. Its decisions were taken in conformity with the purposes and principles of the Charter, under Article 25 of which it is for member States to comply with those decisions, even those members of the Security Council which voted against them and those Members of the United Nations who are not members of the Council.

Legal Consequences for States of the Continued Presence of South Africa in Namibia(paras. 117-127 and 133 of the Advisory Opinion)The Court stresses that a binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence.South Africa, being responsible for having created and maintained that situation, has the obligation to put an end to it and withdraw its administration from the Territory. By occupying the Territory without title, South Africa incurs international responsibilities arising from a continuing violation of an international obligation. It also remains accountable for any violations of the rights of the people of Namibia, or of its obligations under international law towards other States in respect of the exercise of its powers in relation to the Territory.The member States of the United Nations are under obligation to recognize the illegality and invalidity of South Africa's continued presence in Namibia and to refrain from lending any support or any form of assistance to South Africa with reference to its occupation of Namibia. The precise determination of the acts permitted-what measures should be selected, what scope they should be given and by whom they should be applied-is a matter which lies within the competence of the appropriate political organs of the United Nations acting within their authority under the Charter. Thus it is for the Security Council to determine any further measures consequent upon the decisions already taken by it. The Court in consequence confines itself to giving advice on those dealings with the Government of South Africa which, under the Charter of the United Nations and general international law, should be considered as inconsistent with resolution 276 (1970) because they might imply recognizing South Africa's presence in Namibia as legal:(a)Member States are under obligation (subject to(d)below) to abstain from entering into treaty relations with South Africa in all cases in which the Government of South Africa purports to act on behalf of or concerning Namibia. With respect to existing bilateral treaties member States must abstain from invoking or applying those treaties or provisions of treaties concluded by South Africa on behalf of or concerning Namibia which involve active intergovernmental co-operation. With respect to multilateral treaties, the same rule cannot be applied to certain general conventions such as those with humanitarian character, the non-performance of which may adversely affect the people of Namibia: it will be for the competent international organs to take specific measures in this respect.(b)Member States are under obligation to abstain from sending diplomatic or special missions to South Africa including in their jurisdiction the territory of Namibia, to abstain from sending consular agents to Namibia, and to withdraw any such agents already there; and to make it clear to South Africa that the maintenance of diplomatic or consular relations does not imply any recognition of its authority with regard to Namibia.(c)Member States are under obligation to abstain from entering into economic and other forms of relations with South Africa on behalf of or concerning Namibia which may entrench its authority over the territory.(d)However, non-recognition should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, the illegality or invalidity of actsperformed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate cannot be extended to such acts as the registration of births, deaths and marriages.As to States not members of the United Nations, although they are not bound by Articles 24 and 95 of the Charter, they have been called upon by resolution 276 (1970) to give assistance in the action which has been taken by the United Nations with regard to Namibia. In the view of the Court, the termination of the Mandate and the declaration of the illegality of South Africa's presence in Namibia are opposable to all States in the sense of barringerga omnesthe legality of the situation which is maintained in violation of international law. In particular, no State which enters into relations with South Africa concerning Namibia may expect the United Nations or its Members to recognize the validity or effects of any such relationship. The Mandate having been terminated by a decision of the international organization in which the supervisory authority was vested, it is for non-member States to act accordingly. All States should bear in mind that the entity injured by the illegal presence of South Africa in Namibia is a people which must look to the international community for assistance in its progress towards the goals for which the sacred trust was instituted.Accordingly, the Court has given the replies reproduced above on page 1.

Propositions by South Africa concerning the Supply of Further Factual Information and the Possible Holding of a Plebiscite(paras. 128-132 of the Advisory Opinion)The Government of South Africa had expressed the desire to supply the Court with further factual information concerning the purposes and objectives of its policy of separate development, contending that to establish a breach of its substantive international obligations under the Mandate it would be necessary to prove that South Africa had failed to exercise its powers with a view to promoting the well-being and progress of the inhabitants. The Court found that no factual evidence was needed for the purpose of determining whether the policy of apartheid in Namibia was in conformity with the international obligations assumed by South Africa. It is undisputed that the official governmental policy pursued by South Africa in Namibia is to achieve a complete physical separation of races and ethnic groups. This means the enforcement of distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights. This the Court views as a flagrant violation of the purposes and principles of the Charter of the United Nations.The Government of South Africa had also submitted a request that a plebiscite should be held in the Territory of Namibia under the joint supervision of the Court and the Government of South Africa. The Court having concluded that no further evidence was required, that the Mandate had been validly terminated and that in consequence South Africa's presence in Namibia was illegal and its acts on behalf of or concerning Namibia illegal and invalid, it was not able to entertain this proposal.By a letter of14 May 1971the President informed the representatives of the States and organizations which had participated in the oral proceedings that the Court had decided not to accede to the two above-mentioned requests.** *DECLARATION AND SEPARATE ORDISSENTING OPINIONSSubparagraph 1 of the operative clause of the Advisory Opinion (illegality of the presence of South Africa in Namibia-see page 1 of this Communiqu) was adopted by 13 votes to 2. Subparagraphs 2 and 3 were adopted by 11 votes to 4.Judge Sir Gerald Fitzmaurice (dissenting opinion) considers that the Mandate was not validly revoked, that the Mandatory is still subject to the obligations of the Mandate whatever these may be, and that States Members of the United Nations are bound to respect the position unless and until it is changed by lawful means.Judge Gros (dissenting opinion) disagrees with the Court's conclusions as to the legal validity and effects of General Assembly resolution 2145 (XXI), but considers that South Africa ought to agree to negotiate on the conversion of the Mandate into a United Nations trusteeship.Judges Petrn and Onyeama (separate opinions) voted for subparagraph 1 of the operative clause but against subparagraphs 2 and 3, which in their view ascribe too broad a scope to the effects of non-recognition.Judge Dillard (separate opinion), concurring in the operative clause, adds certain mainly cautionary comments on subparagraph 2.Judges Sir Gerald Fitzmaurice, Gros, Petrn, Onyeama and Dillard also criticize certain decisions taken by the Court with reference to its composition.The President (declaration) and Judges Padilla Nervo and de Castro (separate opinions) accept the operative clause in full.The Vice-President (separate opinion) while sharing the views expressed in the Advisory Opinion considers that the operative clause is not sufficiently explicit or decisive.

Fisheries Jurisdiction Case(United Kingdom v. Iceland)I.C.J. Reports 1974

Factsa. The International Court of Justice delivered judgment, by 10 votes to 4.b. Iceland (Althing) attempted to extend its exclusive fishing rights to 50 nautical miles from the baseline, over its 12 mile allowance.c. The law Iceland passed to enact such a regulation dealt with Scientific Conservation of the continental shelf.d. However, Iceland and the United Kingdom reached an agreement in 1961 stating that the United Kingdom would recognize the 12 mile fishery zone.e. Iceland terminated this agreement in 1971 in which it set up its new fishery zone.f. United Kingdom has been fishing in this region for many years and brought this issue to the ICJ when Iceland set up its new parameters.g. The ICJ found that it had jurisdiction in this matter.h. Iceland failed to take part in the proceedings.

Questions

a. Does Iceland have the right to extend its fishery zone from 12 miles to 50 miles? b. What role does the agreement between Iceland and United Kingdom play within the courts decision?c. What is the law of the high seas and has it been established? Can it be enforced?

Decisionsa. The court found that Icelands extension of its fishery zone from 12 to 50 miles is not permissible and not opposable to the United Kingdom. Two concepts that arose from the second Conference of the Law of the Sea was that a fishery zone, between the territorial sea and the high seas, within the coastal State could claim exclusive fisheries jurisdiction. This area has been accepted to be 12 miles from its baseline. In international law, if a general practice is accepted by states and is practiced, then this concept is law.

b. The agreement made between Iceland and the United Kingdom does play a key factor in the courts decision. A signed agreement/treaty between two nations is binding agreement that must be upheld between nations. This agreement also proves and shows that Iceland accepted the 12 mile fishery zone jurisdiction and was content with it. Thus the United Kingdom has two factors that play favorably in the courts eyes; the facts of the case line up with International Law and an agreement was struck between both nations that lined up with what International Law would allow.

c. According to the United Nations Conference on the Law of the Sea it declared freedom of the high seas and this freedom is to be exercised by all states. However, nothing arouse from these conferences concerning fishery jurisdiction and where it stops. All that was confirmed was a zone between the territorial zone and the high sea is where fishery jurisdiction stops. Although it was not established in a treaty, states accepted this general rule of a 12 mile fishery zone and given that Iceland did not protest this rule it thus gave consent to it.

Principlesa. The international law elements of the case are the laws of the sea, the theory that silence leads to consent, and sub specie legis ferendae.

b. The rule of law that was used in this case was the general rule under the United Nations Conf