INTERNATIONAL LAW CASES/DOCUMENTS
International Law What it deals with
Reparations for Injuries - ICJ Test for establishing international Legal personality
Advisory Opinion International legal personality is the capacity to possess international rights and obligations and
to be able to enforce them by the way of making international claims
Test: An entity is considered to have international legal personality if:
a) It has rights and duties under international law; and
b) It has the capacity to maintain those rights by bringing international claims
Both parts are important
Implied Powers:
‘Under international law, [an international organization] must be deemed to have those powers
which, though not expressly provided [in its constituent instrument] are conferred upon it by
necessary implication as being essential to the performance of its duties’
Montevideo Convention, 1933 Art 1: Criteria for Statehood
a) Permanent Population
Size of population is irrelevant
b) A Defined Territory
Size of territory is irrelevant
Borders do not need to be precise/settled; just needs to be control over a consistent area of
undisputed territory, e.g. Israel
c) An Effective Government (Requirements for an effective government are dealt in Palmas)
Type of government is irrelevant
Once statehood is established, the absence of an effective government cannot negate the
designation of statehood
pg. 1
, INTERNATIONAL LAW CASES/DOCUMENTS
d) Capacity to enter into relations with other States `
Refers to legal independence, i.e. the state must be legally allowed to act without interference
from other entities
N.B. States can still be denied statehood even if they fulfil all of the criteria if the state has been
created illegally, e.g. Rhodesia, Turkish Republic of Northern Cyprus – ex injuria non oritur
Art 2: Mentions that Federal States should be considered to be a single entity for international law
Island of Palmas – Permanent Test for establishing whether a Government is effective/Who has sovereignty
Court of Arbitration
Test: The Court establishes the following test to assess competing claims of sovereignty
a) Examine which states possess a title (discover, cession, occupation, etc.)
In Palmas, both the U.S.A and NL have a title; Court then moved to second criteria
b) States must demonstrate sovereignty through activities typical of a sovereign before the critical
date
Critical date: Moment from which the potential rights of the parties manifested themselves to
the extent that subsequent acts could not alter their positions, i.e. you have to have been doing
sovereign things all along
In Palmas, NL had already entered into conversations with the natives
References Re-Secession of Quebec The differences between two types of Self-determination:
1. Internal Self-Determination: When a people pursue their political, economic, social and cultural
development within the framework of the existing state (i.e. through autonomy/recognition of
language etc.)
2. External Self-Determination: When a people pursue their political, economic, social and cultural
development by seceding from the ‘mother-state’ which oppressed them and creating their
own state.
pg. 2
, INTERNATIONAL LAW CASES/DOCUMENTS
Case of the S.S. ‘Lotus’ – The Lotus Principle:
Permanent Court of International
Justice - States are free to act they see fit, unless there is an explicit prohibition which they have
accepted
- International law is a system of mostly dispositive rules (jus dispositivisum), that is, one cannot
assume the existence of an obligation -> Consent to be bound
- The will of states and their acceptance of rules is the foundation of sources of international law
The North Sea Continental Shelf Establishing a Rule of CIL:
Cases – ICJ Judgement
a) Usus – Consistent State Practice
- Objective element of the rule
- All Public state acts (physical and verbal) are considered, and the acts of IOs constitute the sum
of individual acts by the participating states, e.g. Adopting legislation, domestic court decisions
- Three elements of establishing consistent state practice:
1. Consistency: The practice must be reasonably uniform (Nicaragua – Deviation from CIL)
2. Duration: State practice generally evolves gradually over long periods of time
3. Generality: Unanimity is not required, but most states should practice the rule
b) Opinio Iuris – Accepted as legally binding
- Subjective element of the rule
- We look for evidence of opinio iuris where there is good reason to believe that states are acting
due to non-legal motivations
Example: Civilian objects in armed conflict
a) Usus – During armed conflict states do not target civilian objects (Schools, hospitals, etc.)
b) Opinio Iuris – They do this because they believe in a legally binding rule prohibiting such
conduct
pg. 3
International Law What it deals with
Reparations for Injuries - ICJ Test for establishing international Legal personality
Advisory Opinion International legal personality is the capacity to possess international rights and obligations and
to be able to enforce them by the way of making international claims
Test: An entity is considered to have international legal personality if:
a) It has rights and duties under international law; and
b) It has the capacity to maintain those rights by bringing international claims
Both parts are important
Implied Powers:
‘Under international law, [an international organization] must be deemed to have those powers
which, though not expressly provided [in its constituent instrument] are conferred upon it by
necessary implication as being essential to the performance of its duties’
Montevideo Convention, 1933 Art 1: Criteria for Statehood
a) Permanent Population
Size of population is irrelevant
b) A Defined Territory
Size of territory is irrelevant
Borders do not need to be precise/settled; just needs to be control over a consistent area of
undisputed territory, e.g. Israel
c) An Effective Government (Requirements for an effective government are dealt in Palmas)
Type of government is irrelevant
Once statehood is established, the absence of an effective government cannot negate the
designation of statehood
pg. 1
, INTERNATIONAL LAW CASES/DOCUMENTS
d) Capacity to enter into relations with other States `
Refers to legal independence, i.e. the state must be legally allowed to act without interference
from other entities
N.B. States can still be denied statehood even if they fulfil all of the criteria if the state has been
created illegally, e.g. Rhodesia, Turkish Republic of Northern Cyprus – ex injuria non oritur
Art 2: Mentions that Federal States should be considered to be a single entity for international law
Island of Palmas – Permanent Test for establishing whether a Government is effective/Who has sovereignty
Court of Arbitration
Test: The Court establishes the following test to assess competing claims of sovereignty
a) Examine which states possess a title (discover, cession, occupation, etc.)
In Palmas, both the U.S.A and NL have a title; Court then moved to second criteria
b) States must demonstrate sovereignty through activities typical of a sovereign before the critical
date
Critical date: Moment from which the potential rights of the parties manifested themselves to
the extent that subsequent acts could not alter their positions, i.e. you have to have been doing
sovereign things all along
In Palmas, NL had already entered into conversations with the natives
References Re-Secession of Quebec The differences between two types of Self-determination:
1. Internal Self-Determination: When a people pursue their political, economic, social and cultural
development within the framework of the existing state (i.e. through autonomy/recognition of
language etc.)
2. External Self-Determination: When a people pursue their political, economic, social and cultural
development by seceding from the ‘mother-state’ which oppressed them and creating their
own state.
pg. 2
, INTERNATIONAL LAW CASES/DOCUMENTS
Case of the S.S. ‘Lotus’ – The Lotus Principle:
Permanent Court of International
Justice - States are free to act they see fit, unless there is an explicit prohibition which they have
accepted
- International law is a system of mostly dispositive rules (jus dispositivisum), that is, one cannot
assume the existence of an obligation -> Consent to be bound
- The will of states and their acceptance of rules is the foundation of sources of international law
The North Sea Continental Shelf Establishing a Rule of CIL:
Cases – ICJ Judgement
a) Usus – Consistent State Practice
- Objective element of the rule
- All Public state acts (physical and verbal) are considered, and the acts of IOs constitute the sum
of individual acts by the participating states, e.g. Adopting legislation, domestic court decisions
- Three elements of establishing consistent state practice:
1. Consistency: The practice must be reasonably uniform (Nicaragua – Deviation from CIL)
2. Duration: State practice generally evolves gradually over long periods of time
3. Generality: Unanimity is not required, but most states should practice the rule
b) Opinio Iuris – Accepted as legally binding
- Subjective element of the rule
- We look for evidence of opinio iuris where there is good reason to believe that states are acting
due to non-legal motivations
Example: Civilian objects in armed conflict
a) Usus – During armed conflict states do not target civilian objects (Schools, hospitals, etc.)
b) Opinio Iuris – They do this because they believe in a legally binding rule prohibiting such
conduct
pg. 3
