International law of treaties group assignment gulf of maine case, icj report, 1984

On 25 November 1981, Canada and the United States notified to the Court a Special Agreement whereby they referred to a Chamber of the Court the question of the delimitation of the mariti

DIPLOMATIC ACADEMY OF VIETNAM

INTERNATIONAL LAW FACULTY

o0o INTERNATIONAL LAW OF TREATIES

Group Assignment

Members - Group 4: Nguyen Huu Dai

Bui Minh Nguyet Nguyen Hoai Phuong Nguyen Ngoc Quynh

Do Thi Phuong Thao

Hanoi, December 10, 2019

 Gulf of Maine case, ICJ Report, 1984

 Asylum case, Colombia v Peru, ICJJ Report, 1950

 Right of Passage over Indian territory, Portugal v India, ICJ

Report, 1960

I. Gulf of Maine case, ICJ Report, 1984

1 Facts:

In the 1970s, Canada and the USA extended their offshore jurisdiction to

200 nautical miles and the Gulf of Maine became the exclusive domain of the Canadian and US fisheries Although the two countries periodically exchanged scientific information, their fisheries were managed independently

On 25 November 1981, Canada and the United States notified to the Court a Special Agreement whereby they referred to a Chamber of the Court the question of the delimitation of the maritime boundary dividing the continental shelf and fisheries zones of the two Parties in the Gulf of Maine area Problems emerged as a result of this management structure The countries’ jurisdictional claims overlapped in an approximately 30,000 sq km area, at the eastern end of Georges Bank The disputed region was home to several commercial ground fish species

The Chamber delivered its Judgment on 12 October 1984, indicated that the delimitation was to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographical configuration of the area and the other relevant circumstances

As for the plotting of the delimitation line, the Chamber distinguished between three segments, the first two lying within the Gulf of Maine and the third outside it

2 Rules governing the matter:

Rules and principles of international law governing the matter

- Treaty rules and rules of customaty international law

- 1958 Convention the Continental Shelf- Enunciation of a fundamental

principle of law and simultaneous prescription of a technical method to

be applied to the delimitation in certain circumstances

- Basic rule supplied by customaty international law and contribution of

international jurisprudence to its formation

- Convention adopted in 1982 by the Third United Nations Conference on

the Law of the Sea

- Fundamental norm recognized by the Parties & Redefinition of such

norm

- Absence in international law of a body of detailed rules concerning the

delimitation of the maritime projections of adjacent States

The Government of Canada and the Government of the United States of America, recognizing that they have been unable Io resolve by negotiation the differences between-them concerning the delimitation of the continental shelf and the fisheries of Canada and the United States of America in the Gulf of Maine area, desiring to reach an early and amicable settlement of these differences Have agreed as follows:

Pursuant to Article 40 of the Statue of the International Court of Justice of the Special Agreement between two Governments to submit to a Chamber of the International Court of Justice

This means the two Governments didn’t submit the case directly to the ICJ but under the Statue of the court, they signed a treaty to establish a Chamber to decide the case

On the other hand, Government of Canada and the Government of the United States of America also had an agreement to submit this case to a court of arbitration

3 Judgment:

The course of the single maritime boundary that divides the continental shelf and the exclusive fisheries zones of Canada and the USA in the area referred to in the Special Agreement shall be defined by geodetic lines:

One preliminary remark is necessary before we come to the essence of the matter, since it seems above essential to stress the distinction to be drawn between what are principles and rules of international law governing the matter and what could be better described as the various equitable criteria and practical methods that may be used to ensure in concreto that a particular situation is dealt with in accordance with the principles and rules

in question

In a matter of this kind, international law - and in this respect the Chamber has logically to refer primarily to customary international law - can of its nature only provide a few basic legal principles, which lay down guidelines

to be followed with a view to an essential objective It cannot also be

expected to specify the equitable criteria to be applied or the practical, often technical, methods to be used for attaining that objective - which remain simply criteria and methods even where they are also, in a different sense, called "principles" Although the practice is still rather sparse, owing to the relative newness of the question, it too is there to demonstrate that each specific case is, in the final analysis, different from all the others, that it is monotypic and that, more often than not, the most appropriate criteria and the method or combination of methods most likely to yield a result consonant with what the law indicates, can only be determined in relation to each particular case and its specific characteristics This precludes the possibility of those conditions arising which are necessary for the formation

of principles and rules of customary law giving specific provisions for subjects like those just mentioned

The same may not, however, be true of international treaty law There is, for instance, nothing to prevent the parties to a convention - whether bilateral

or multilateral - from extending the rules contained in that convention to aspects which it is less likely that customary international law might govern

In that event, however, the text of the convention must be read with caution The first thing to remember in examining the text, and sometimes even a single clause, is the distinction, the importance of which has just been indicated, between principles and rules of international law enunciated in the convention and criteria and methods for whose application it might provide

in particular circumstances

4 The applicable principles and rules of international law

Under the Special Agreement, two Parties required the Chamber “to decide, in accordance with the principles and rules of international law applicable in the matter as between the Parties the course of the single maritime boundary that divides the continental shelf and fisheries zones of Canada and the United States of America ”

After observing that the terms "principles and rules" really convey one and the same idea, the Chamber stresses that a distinction has to be made between such principles or rules and what, rather, are equitable criteria or practical methods for ensuring that a particular situation is dealt with in accordance with those principles and rules Of its nature customary

international law can only provide a few basic legal principles serving as guidelines and cannot be expected also to specify the equitable criteria to be applied or the practical methods to be followed The same may however not

be true of international treaty law

To determine the principles and rules of international law governing maritime delimitation, the Chamber begins by examining the Geneva Convention of 29 April 1958 on the Continental Shelf, which has been ratified by both the Parties to the case, who both also recognize that it is in force between them In particular the Chamber examines Article 6, pargraphs

1 and 2, from which a principle of international law may be deduced to the effect that any delimitation of a continental shelf effected unilaterally by one State regardless of the views of the other State or States concerned is not opposable to those States To this principle may conceivably be added a latent rule that any agreement or other equivalent solution should involve the application of equitable criteria The Chamber goes on to consider the bearing on the problem of various judicial decisions and to comment upon the work of the Third United Nations Conference on the Law of the Sea, noting that certain provisions concerning the continental shelf and the exclusive economic zone were, in the Convention of 1982, adopted without any objections and may be regarded as consonant at present with general international law on the question

The Chamber is one of the view that thay must be the above norm, the Chamber is of the view that they must be looked for not in customary international law but in positive international law, and in that connection it examines those provided for by the 1958 Conventiona on the Continental Shelf, Article 6 paragraph 1 and 2 The Chamber points out that a treaty obligation concerning the delimitation of the continental shelf can not be extended so as to apply to the superjacent waters and after rejecting the Canadian argument that the combined equidistance/special – circumstances rule has become a rule of general international law, finds that Art 6, while in force between the Parties, does not entail either for them or for the Chamber any legal obligation to apply its provisions to the present delimitation

5 Conclusion

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2

Both conventional and customary international law accord priority over all others to the criterion that this delimitation must above al1 be sought, while always respecting international law, through agreement between the parties concerned

Customary international law can only provide a few basic legal principles, which lay down guidelines to be followed with a view to an essential objective

It cannot also be expected to specify the equitable criteria to be applied or the practical, often technical, methods to be used for attaining that objective It is therefore special international law that must be looked to, in order to ascertain whether that law, as at present in force between the Parties to this case, does or does not include some rule specifically requiring the Parties, and consequently the Chamber, to apply certain criteria or certain specific practical methods to the delimitation that is requested

The same may not, however, be true of international treaty law The first thing to remember in exarnining the text, and sometimes even a single clause, is the distinction, the importance of which has just been indicated, between principles and rules of intenational law enunciated in the convention and criteria and methods for whose application it might provide in particular circumstances

II. Asylum case, Colombia v Peru, ICJ Report, 1950

1 Facts:

- On October 3 1948, a military rebellion broke out in the South Americanrd

state of Peru However, the rebellion was quelled within a day and the accused were arrested and charged

- A day after the rebellion was quashed; proceedings were instituted against

Victor Raul Haye De La Torre, a leader of an opposition party known as the American Citizens’ Revolutionary Alliance on the charges of instigating and directing the rebellion

- On January 4 1949, it was brought to the attention of the Peruvianth

authorities that Victor Raul Haye De La Torre had been granted asylum

by the Colombian Mission in Lima and the Colombian ambassador accordingly, requested that De La Torre be granted a right of passage or a safe-conduct so that he may leave the country

- Peru solemnly refused, stating that De La Torre was accused of common

crimes, not entitling him to the protection of political asylum In other words, Peru refused to accept the unilateral qualification and refused to grant safe passage

- Soon, a diplomatic and political stalemate ensued between the two South

American nation-states and after talks broke down in July, they finally agreed to let the International Court of Justice be the judge

2. Questions before the Court:

Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum under treaty law and international law?

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?

(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of

1928 (hereinafter called the Havana Convention) when it granted asylum and is the continued maintenance of asylum a violation of the treaty?

In our presentation, we will focus on the first question concerning

customary law: Is Colombia competent, as the country that grants asylum,

to unilaterally qualify the offence for the purpose of asylum under treaty law and international law?

1 The court stated that in the normal course of granting diplomatic asylum, a diplomatic representative has the competence to make

a provisional qualification of the offence (for example, as a political offence)

and the territorial State has the right to give consent to this qualification

In the Torre’s case, Colombia has asserted, as the State granting asylum, that it is competent to qualify the nature of the offence in a unilateral and definitive manner that is binding on Peru

=> The court had to decide if such a decision was binding on Peru either because of treaty law (in particular the Havana Convention of 1928 and the Montevideo Convention of 1933), other principles of international law or by way of regional or local custom

2 The court held that there was no expressed or implied right of unilateral and definitive qualification of the State that grants asylum under the Havana Convention or relevant principles of international law (p 12, 13) The Montevideo Convention of 1933, which accepts the right of unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was not ratified by Peru => The Convention was not binding on Peru; and considering the low numbers of ratifications, the provisions of the Convention cannot be said to reflect customary international law (p 15)

3 Colombia also argued that regional or local customs support the qualification The court held that the burden of proof on the existence of an alleged customary law rests with the party making the allegation:

“The Colombian Government has finally invoked "American international law in general" In addition to the rules arising from agreements which have already been considered, it has relied on an alleged regional or local custom peculiar to Latin-American States The Party which relies on a custom

of this kind must prove that this custom is established in such a manner that it has become binding on the other Party The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State This follows from Article 38 of the Statute of the Court, which refers to international custom "as evidence of a general practice accepted as law".”

4 The court held that Colombia did not establish the existence of a regional custom because it failed to prove consistent and uniform usage of the alleged custom by relevant States The fluctuations and contradictions in State practice did not allow for the uniform usage The court also reiterated that the fact that a particular State practice was followed because of political expediency and not because of a belief that the said practice is binding on the State by way

of a legal obligation (opinio juris) is detrimental to the formation of a customary law:

“The Colombian Government has referred to a large number of particular cases in which diplomatic asylum was in fact granted and respected But it has not shown that the alleged rule of unilateral and definitive