PUBLIC INTERNATIONAL LAW

I: INTERNATIONAL LAW AND ITS SOURCES

1.

What is jus inter gentes?

Jus inter gentes consists of agreements between nations and includes the
body of treaties, UN conventions, international agreements, and
internationally recognized human rights.

2.

Who are the subjects and objects of international law?

YE, according to the Reparations Case, a subject of international law is an
entity capable of possessing international rights and duties and having the
capacity to maintain its rights by bringing international claims. Objects of
international law, on the other hand, are those who indirectly have rights
under, or are beneficiaries of, international law through subjects of
international law.

3.

Are individuals subjects or objects of international law?

YE, generally, individuals are regarded as objects of international law.
However, with the progression of human rights, individuals in some
instances are regarded as subjects of international law.

4.

What are the Sources of International Law?

According to Article 38 of the ICJ Statute, the formal sources of
international law include international conventions, international custom
and general principles of law. On the other hand, judicial decisions and the
teachings of the most highly qualified publicists are a subsidiary means of
determining international law.

5.

6.

Is there a hierarchy among the sources of International Law

enumerated in Article 38?
No. The provisions are not stated in a hierarchy, but the draftsmen intended
to give an order and in one draft the word successively was used.
What is the difference between formal and material sources of
International Law?
Formal sources are those legal procedures and methods for the creation of
rules of general application which are legally binding on the addressees.
Material sources, on the other hand, provide evidence for the existence of

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rules, which, when proved, have the status of legally binding rules of
general application.
7.

What is a treaty?
Article 2(1)(a) of the 1969 Vienna Convention on the Law of Treaties
provides that a treaty is an international agreement conducted between
states in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and
whatever particular designation they may be given.

8.

What is jus cogens?

According to Article 53 of the Vienna Convention on the Law of Treaties, a
peremptory norm of international law is a norm accepted and recognized by
the international community of states as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character.

9.

What are law-making treaties?

Law-making treaties create legal obligations the observance of which does
not dissolve the treaty obligation. According to McNair, such treaties are in
principle binding only on parties, but the number of parties, the explicit
acceptance of rules of law, and in some cases, the declaratory nature of the
provisions produce a strong law-creating effect at least as great as the
general practice considered sufficient to support a customary rule.

10. What is custom?

Custom is a source of international law under Article 38 of the ICJ Statute.
According to the North Sea Continental Shelf Cases, it consists of unwritten
rules evinced from the generality and uniformity of the practice of States
and is adhered to by such states out of a sense of legal obligation or opinio
juris.
11. What is the difference between custom and usage?
According to most highly qualified publicist Ian Brownlie, usage is a
general practice of States which does not reflect a legal obligation. Custom
on the other hand is a general practice of States borne out of a sense of legal
obligation.
12. What are the evidence or material sources of custom?

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The material sources of custom are very numerous and include: diplomatic
correspondence, policy statements, press releases, the opinions of official
legal advisers, official manuals on legal questions, comments by
governments on drafts produced by the International Law Commission,
state legislation, international and national judicial decisions, recitals in
treaties and other international instruments, a pattern of treaties in the same
form, the practice of international organs, and resolutions relating to legal
questions in the UN General Assembly.
13. What are the elements of custom?
According to the North Sea Continental Shelf Cases, the elements of
custom are (a) duration; (b) uniformity and consistency of the practice; (c)
generality of the practice; (d) a sense of legal obligation or opinion juris et
necessitates.
14. How long should a practice last before it is considered as customary?
Provided the consistency and consistency and generality of a practice are
proved, no particular duration is required, although the passage of time will
be a part of the evidence of generality and consistency. However, a long
practice is not necessary and as a matter of fact, the court recognized in the
North Sea Continental Shelf Cases that an instant custom, involving a fairly
quick maturing of practice, may emerge.
15. What about the uniformity and consistency of practice?
Complete or total uniformity is not required, but substantial uniformity is.
According to the Asylum Case, the party relying on custom must prove that
the custom is established in such a manner that it has become binding on
other States.
16. Is it required that all States are involved in the practice of custom for
such to be binding?
No. Universality of practice is not required. As a matter of fact, according
to the Asylum Case, there are instances when a regional custom, or a
practice present and binding only to a particular region, may arise.
17. What is opinio juris?
According to most highly qualified publicist Brierly, it is the recognition by
States that a certain practice is obligatory and that it requires a conception
that the practice is required by or consistent with prevailing international

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law. It means that a State abides by a practice because of a sense of legal

obligation, as opposed to motives of courtesy, fairness, or morality.
18. Are all States bound by custom?
Customary rules are generally binding on all states, regardless of whether
the state has explicitly consented to be bound by the rule involved or
whether the rule may also be found in treaty form. However, in cases of a
regional custom, only a particular region or group of States shall be bound
by the practice.
19. What is the concept of a persistent objector?
A State may not be bound by custom if since the process of formation and
development of the custom, such State has expressed his objection to the
practice. The evidence of objection must be clear and there is probably a
presumption of acceptance which is to be rebutted.
20. What is the value of the Resolutions adopted by the UN General
Assembly?
In general, resolutions are not binding on member states, but when they are
concerned with general norms of international law, then acceptance by a
majority vote constitutes evidence of the opinions of governments in the
widest forum for the expression of such opinions, thus evincing State
practice. In some cases, a resolution may have direct legal effect as an
authoritative interpretation and application of the principles of the UN
Charter.
21. What is a general principle of law?
YE, general principles are principles of municipal law common to the
legal systems of the world. YE, International tribunals must have recourse
to rules typically found in domestic courts and domestic legal systems in
order to address procedural and other issues.
22. How can judicial decisions be a source of law?
Judicial decisions are not, strictly speaking, a formal source, but are
regarded as authoritative evidence of the state of law.
23. Is the International Court of Justice bound by its past decisions?
No. Article 59 of the ICJ Statute provides that the decision of the Court
has no binding force except as between the parties and in respect of a
particular case. Thus, the Court does not adhere to the principle of stare

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decisis and the system of binding precedents. However, it must be noted
that the Court nevertheless strives to maintain judicial consistency.
24. Can the Court apply decisions of national courts?
Yes. Article 38(1)(d) of the ICJ Statute is not confined to international
decisions and decisions of national tribunals have evidential value. Some
decisions may provide indirect evidence of the practice of the state of the
forum on the question involved; while others may result in the careful
exposition of the law.
25. How can the teachings of the most highly qualified publicists be a
source of International Law?
As a subsidiary means of determining international law, teachings of most
highly qualified publicists only constitute evidence of the law, although in
some subjects, individual writers have had a formative influence.
26. What is the International Law Commission?
Established in 1948, the International Law Commission is a subsidiary
organ of the General Assembly. Its mandate is the progressive development
and codification of International Law in accordance with the UN Charter.
27. What is codification?
Codification involves the setting down, in a comprehensive and ordered
form, of rules of existing law and the approval of the resulting text by a
law-determining agency.
IV. INCIDENCE OF CONTINUITY AND STATEHOOD
28. What is a State?
A State is a type of legal person recognized by international law. According
to Article 1 of the Montevideo Convention, the State as a person of
international law should possess the following qualifications: first, a
permanent population; second, a defined territory; third, government; and
fourth, sovereignty or the capacity to enter into relations with the other
States.
29. What constitutes a population?
Article 1 of the Montevideo conventions refers to a permanent population
and connotes a stable community.

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30. What is a defined territory?

It is not necessary that there exists a fully defined territory. What is
important, however, is the existence of a stable political community in
control of a certain geographic area.
31. What kind of government is necessary?
According to most highly qualified publicist Rosalyn Higgins, it is
necessary that an effective government exists with centralized
administrative and legislative organs.
32. What is sovereignty as contemplated in the Montevideo Convention?
According to Former Justice of the International Court of Justice, Jessup,
Pursuant to the Montevideo Convention, sovereignty or independence is the
capacity to enter into relations with other States.
33. When is there a State in statu nascendi?
In exceptional circumstances, a people may be recognized by the
international community, and by interested parties, as having entitlement to
statehood, and thus as being a State in statu nascendi. It is akin to a de
facto government and the legal consequences of its acts before full
statehood are recognized by governments and foreign courts.
34. Does the illegal occupation of a State terminate the Statehood or
personality another?
According to Ian Brownlie, a state remains independent, in the sense of
retaining separate personality, if a foreign legal order impinges on it,
provided that the impingement occurs under a title of international law.
Illegal occupation cannot of itself terminate Statehood pursuant to the
principle of ex injuria non oritur jus.
35. What is continuity of states?
According to the Tinoco Arbitration, State continuity involves the changes
in the head of State or the internal form of government. Such change does
not affect the legal rights and responsibility of States.
36. What is state succession?
State succession arises when one international personality takes the place of
another, for example, by union or lawful annexation. In general, it is
assumed that State succession is likely to involve changes in the legal status
and rights of the entities concerned.

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37. Can micro-states have international personality?

Yes, albeit limited at times. Membership of the United Nations or other
international organizations is not expressed to be conditioned by the size of
the State concerned. However, it is necessary according to Article 4 of the
UN Charter that the State has the ability to carry out the obligations
contained in the Charter a requirement of admission to membership.
V. RECOGNITION OF STATES AND GOVERNMENTS
38. What is the value of protest and recognition?
It depends. Acts of protest and recognition play a subsidiary but, in
practice, not insubstantial role in the resolution of disputes. They may, at
times, provide good evidence of the state of the law on the issues involved.
On the other hand, protest or recognition based solely on pure acts of policy
and not purporting to be legal characterizations of acts of other States has
little value.
39. What is the effect if a government is not recognized by other nations?
According to the Tinoco Concessions Arbitration, non-recognition by other
States of a government claiming to be a national personality is usually
evidence that it has not yet attained the independence and control entitling it
by international law to be classed as such. However, if the non-recognition
goes into its illegitimacy or irregularity or origin, their non recognition loses
evidential weight.
40. What is the declaratory theory of recognition?
The declaratory theory of recognition states that the political act of
recognition is a precondition of the existence of legal rights: in its most
extreme form this is to say that the very personality of a State depends on
the political decision of other states.

of convenience rather than principle.

cannot be retroactive.

Generally however, recognition

VI. TERRITORIAL SOVEREIGNTY

43. What is sovereignty?
According to most highly qualified publicist Ian Brownlie, sovereignty is
the right of a State to exercise supreme political authority over a geographic
region and its inhabitants.
44. What is the extent of territorial sovereignty?
Territorial sovereignty extends principally over land territory, the territorial
sea appurtenant to the land, and the seabed, and subsoil of the territorial sea.
It includes islands, islets, rocks, and reefs.
45. What is a terra nullius?
According to most highly qualified publicist Malcolm Shaw, a terra nullius
is land that is legally susceptible to acquisition by States but not as yet
placed under territorial sovereignty.
46. What is the concept of res communis?
A res communis, such as the high seas and outer space, is not capable of
being placed under state sovereignty.
47. Is sovereignty lost by the belligerent occupation of another State?
No. The important features of sovereignty in such cases are the continued
existence of legal personality of the ousted State and the attribution to that
legal person and not to the holders for the time being.
48. What is residual sovereignty?
VII. IMMUNITIES FROM JURISDICTION

41. What is the constitutive theory of recognition?

The constitutive theory allows certain rights prior to recognition.
42. Can recognition be retroactive?
The practice of British and American courts have applied the principle of
retroactivity in following or interpreting the views of the executive in
matters of recognition, although Oppenheim opines that such practice is one

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49. What is the relationship between territorial jurisdiction and sovereign

immunity?
The classic illustration of this relationship has been penned by US Supreme
Court Chief Justice Marshall who wrote in The Schooner Exchange v.
Mcfaddon that the jurisdiction of a State within its territory was exclusive
and absolute, but it did not encompass foreign sovereigns. In Pinochet, it

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was held that it is a basic principle of international law that one sovereign
State does not adjudicate the conduct of a foreign State.
50. What are the limitations on immunity?
As a general principle, the immunity of foreign sovereigns is delimited by a
right on the part of the receiving State to use reasonable force to prevent or
terminate activities which are in excess of the licence conferred or are
otherwise in breach of international law.
51. What is the reason behind the immunity?
According to Oppenheim, the immunity given to foreign sovereigns is a
consequence of the equality and independence of States that municipal
courts accept the validity and refrain from reviewing the acts of foreign
States and their agents, including legislation.
52. Whats the difference between non-justiciability and immunity as a
jurisdictional bar?
VIII. THE LAW OF RESPONSIBILITY
53. When will the international responsibility of a State arise?
In Phosphates in Morocco, the Permanent Court of International Justice
declared that when a State commits an internationally wrongful act against
another State, international responsibility is established immediately as
between the two States.
54. Is State responsibility essentially bilateral?
No. The International Court of Justice recognized in the Barcelona
Traction that an essential distinction should be drawn between obligations
of a State to the international community as a whole and those arising vis-vis another State. It can be said that all States have a legal interest in the
former, as they are obligations erga omnes.
55. What is the coverage of international responsibility?
According to James Crawford, international responsibility covers relations
which arise under international law from the internationally wrongful act of
a State whether such relations are limited to the wrongdoing State and one
injured State or whether they also extend to other States or subjects of
international law.

56. When is there an internationally wrongful act?

According to Article 2 of the Articles on State Responsibility, two elements
are required to establish the existence of an internationally wrongful act of
the state. First, the conduct in question must be attributable to the state
under international law. Second, for responsibility to attach to the act of the
state, the conduct must constitute a breach of an international legal
obligation in force for that state at that time.
57. What are the consequences of an internationally wrongful act?
YE, according to this Honorable Court in the Chorzow Factory Case, aside
from the obligation of cessation and assurances or guarantees of nonrepetition, the consequence of a commission of an internationally wrongful
act involves an obligation to make reparation in an adequate form.
Reparation must, so far as possible, wipe out all the consequences of the
illegal act and re-establish the situation which would, in all probability, have
existed if the wrongful act had not been committed.
58. Is the characterization of a States conduct as internationally
wrongful affected by that States internal law?
No. According to Article 3 of the Articles on State Responsibility, the
characterization of an act of a State as internationally wrongful is governed
by international law. Such characterization is not affected by the
characterization of the same act as lawful by the States internal law.
59. What are the different modes of attribution?
YE, according to the Articles on State Responsibility, The acts which may
be attributed to the state may be acts of state organs, the acts of other
persons empowered by the government to exercise governmental
authority, or is acting on the instructions of, or under the direction or
control of, the state, or the acts of revolutionaries.
60. What is a State organ?
According to Article 4 of the Articles n State Responsibility, a State organ
includes entities exercising legislative executive, or judicial or any other
functions, whatever position it holds in the organization of a State, and
whatever its character as an organ of the central government or of a
territorial unit of the State. It also includes any person or entity which has
that status in accordance with the internal law of the State.
61. Are all acts of a State organ attributable to the State?

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No. However, Responsibility may only be excluded in cases where the act
had no connection with the official function and constituted a purely private
act. Ultra Vires acts of an organ are nevertheless considered as an act of the
State.
62. Can the conduct of non State organs exercising governmental functions
be attributable to the State?
Yes. According to Article 5 of the Articles on State Responsibility, the
conduct of any person or entity which is not an organ of a State but which is
empowered by the law of that State to exercise elements of governmental
authority shall be considered an act of the State under international law,
provided the person or entity is acting in that capacity in the particular
instance.

acting on the instructions of, or under the direction and control of, that State
in carrying out the conduct.
67. What conduct can be attributable to the State in the absence or default
of official authorities?
According to Article 9 of the Articles on State Responsibility, the conduct of
a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact exercising
elements of the governmental authority in the absence or default of the
official authorities in circumstances such as to call for the exercise of those
elements of authority.

63. What is an entity?

An entity, for purposes of State responsibility, is the wide variety of bodies
which, though not organs, may be empowered by the law of a State to
exercise elements of governmental authority. This may include public
corporations, semi-public entities, and even private companies in some
instances.

68. To whom shall the conduct of an insurrectional movement be

attributed?
It depends. If the movement becomes the new government a State, then the
conduct of the insurrectional movement shall be considered as an act of that
State under international law. If the insurrectional movement succeeds in
establishing a new State in part of the territory of the pre-existing State,
then its conduct shall be considered as an act of the new State under
international law.

64. What about organs placed at the disposal of a State by another State?
According to Article 6 of the Articles on State Responsibility, the conduct of
an organ placed at the disposal of a State by another State shall be
considered an act of the former State under international law if the organ is
acting in the exercise of elements of the governmental authority of the State
at whose disposal it is placed.

69. Can a State subsequently ratify the acts of a private person or entity?
Yes. In such a case, according to Article 11 of the Articles on State
Responsibility, the conduct which is not attributable to a State shall
nevertheless be considered an act of that State under international law if and
to the extent that the State acknowledges and adopts the conduct in
question.

65. Can the acts of State organs or entities in excess of their authority or
contravention of instructions be attributable to the State?
Yes. It is clear from Article 7 of the Articles on State Responsibility that the
conduct of an organ of a State or of a person or entity empowered to
exercise elements of the governmental authority shall be considered an act
of the State under international law if the organ, person or entity acts in that
capacity, even if it exceeds its authority or contravenes instructions.

70. When is there breach of an international obligation?

According to Article 12 of the Articles of State Responsibility, there is a
breach of an international obligation by a State when an act of that State is
not in conformity with what is required of it by that obligation regardless of
its origin or character.

66. Is a conduct directed or controlled by the State attributable to the

State?
Yes. The conduct of a person or group of persons shall be considered an act
of a State under international law if the person or group of persons is in fact

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71. What if the State is not bound by an international obligation at the time
the act contrary to such obligation was committed, can there be a
breach?
No. According to Article 13 of the Articles on State Responsibility, an act
of a State does not constitute a breach of an international obligation if a
State is not bound by the obligation in question at the time the act occurs.

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72. What are the circumstances that preclude the wrongfulness of a States
action?
YE, according to Chapter V of the Articles on State Responsibility, a
wrongful act of a State is precluded in cases of a valid consent, self-defense,
countermeasures, force majeure, distress, and a state of necessity.
73. How can consent preclude the wrongfulness of an act?
According to Article 20 of the Articles on State Responsibility, consent by a
State to particular conduct by another State precludes the wrongfulness of
that act in relation to the consenting State, provided the consent is valid and
to the extent that the conduct remains within the limits of the consent given.
74. Can a State invoke self-defence?
Yes. According to Article 21 of the Articles on State Responsibility, the
wrongfulness of an act of a State is precluded if the act constitutes a lawful
measure of self-defense taken in conformity with the Charter of the United
Nations.

There is necessity where the only way a State can safeguard an essential
interest threatened by a grave and imminent peril is, for the time being, not
to perform some other international obligation of lesser weight or urgency.
79. When can necessity be invoked?
According to Article 25 of the Articles on State Responsibility, necessity
may be invoked if the act is: first, the only means for the State to safeguard
an essential interest against a grave and imminent peril; and second, such
does not seriously impair an interest of the State or States towards which the
obligation exists, or of the international community as a whole.
80. What are the instances wherein a State cannot invoke necessity?
According to Article 25 of the Articles on State Responsibility, a State
cannot invoke necessity if the international obligation in question excludes
the possibility of necessity or if the State has contributed to the situation of
necessity.

75. What is a countermeasure?

According to the Gabcikovo-Nagymaros Project case, a countermeasure is a
conduct of a State in response to a previous international wrongful act of
another State and directed against that State.

81. Can a State invoke any of the circumstances precluding wrongfulness

of an act for its violation of a peremptory norm?
No. According to Article 26 of the Articles on State Responsibility states
that nothing in the Articles precludes the wrongfulness of any act of a State
which is not in conformity with an obligation arising under a peremptory
norm of general international law.

76. What are the elements of force majeure?

Force majeure may only be invoked if three elements are met: first, the act
in question must be brought about by an irresistible force or an unforeseen
event; second, such should be beyond the control of the State concerned;
and third, such makes it materially impossible in the circumstances for the
State to perform the obligation.

82. What are the consequences of invoking a circumstance which preclude

the wrongfulness of an act?
YE, According to Article 27 of the Articles on State Responsibility, the State
should comply with its obligation, if and to the extent that the circumstance
precluding the wrongfulness no longer exists; and in some instances,
compensation for any material loss caused by the act in question.

77. When can distress be invoked?

There is distress when the agent of a State adopts a conduct inconsistent
with the States international obligations because the agent had no other
reasonable way of saving lives. In distress, the interest concerned is the
immediate one of saving peoples lives (such as an aircraft experiencing a
mechanical failure).

83. What are the different forms of reparation?

According to Article 34 of the Articles on State Responsibility, full
reparation for injury caused by an internationally wrongful act shall take the
form of restitution, compensation and satisfaction, either singly or in
combination.

78. When is there a state of necessity?

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84. What is restitution?

According to the Factory at Chorzow case, restitution consists of the
obligation of the responsible State to restore the undertaking and, if such is

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not possible, to pay its value at the time of the indemnification, which value
is designed to take place of restitution which has become impossible.
85. What is compensation?
According to Article 36 of the Articles on State Responsibility,
compensation for damage covers any financially assessable damage
including loss of profits insofar as established. The State responsible for an
internationally wrongful act is under an obligation to compensate for the
damage caused, insofar as such damage is not made good by restitution.
86. What is satisfaction?
Satisfaction may consist in an acknowledgement of the breach, an
expression of regret, a formal apology, or another appropriate modality. It
must not be out of proportion to the injury and may not take a form
humiliating to the responsible State.
87. Can the Responsible State rely on the provisions of its internal law?
No. According to Article 32 of the Articles on State Responsibility, a State
cannot rely on the provisions of its internal law as justification for failure to
comply with its obligations. This is an affirmation of Article 27 of the
VCLT.
88. Can there be an award of interest in international cases?
Yes. According to Article 38 of the Articles on State Responsibility, interest
on any principal sum shall be payable when necessary in order to ensure full
reparation. Interest runs from the date when the principal sum should have
been paid until the date the obligation to pay is fulfilled.
89.

Is the conduct of the injured State taken into account in awarding

reparations?
Yes. According to Article 39 of the Articles on State Responsibility, in
determining reparation, account shall be taken of the contribution to the
injury by willful and negligent action or omission of the injured State or any
person or entity in relation to whom reparation is sought.

90. When can an injured State invoke the responsibility of another State?
According to Article 42 of the Articles on State Responsibility, a State is
entitled as an injured State to invoke the responsibility of another State if
the obligation breached is owed to either: (a) that State individually; or (b) a
group of States including that State, or the international community as a

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whole, and the breach of the obligation: specifically affects that State; or is
of such a character as radically to change the position of all other States to
which the obligation is owed with respect to the further performance of the
obligation.
91. When can a State lose the right to invoke responsibility?
According to Article 45 of the Articles on State Responsibility, the
responsibility of a State may not be invoked if: first, the injured State has
validly waived the claim; or second, the injured State may be considered to
have validly acquiesced.
92. What happens if there are several States injured by the same
internationally wrongful act?
According to Article 46 of the Articles on State Responsibility, in such a
case, each State may separately invoke the responsibility of the State which
has committed the internationally wrongful act.
IX. ADMISSIBILITY OF CLAIMS
93. What are the requisites of admissibility?
According to Article 44 of the Articles on State Responsibility, the
Responsibility of a State may only be invoked if: first, the claim is brought
in accordance with any applicable rule relating to the nationality of claims;
and second, all available and effective local remedies have been exhausted.
XI. THE LAW OF TREATIES
94. When can a States unilateral declaration become binding upon such
State?
YE, according to the International Court of Justice in the Nuclear Tests
Case, unilateral declarations concerning a legal or factual situation may
create legal obligations when it is the intention of the state making the
declaration to become bound according to its terms, that intention confers
on the declaration the character of a legal undertaking, the state being
thenceforth legally required to follow a course of conduct consistent with
the declaration.
95. What grounds can be invoked to terminate a treaty?
YE, according to Article 54 of the Vienna Convention on the Laws of
Treaties, A treaty may be terminated or a party may withdraw in conformity

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with the provisions of the treaty or at any time by consent of all the parties
after consultation with the other contracting states. Material breach,
supervening impossibility of performance, and rebus sic stantibus will also
terminate the treaty.
96. In what instances can a non-party be bound by a treaty?
YE, a third party will be bound by a treaty if such treaty is a codification of
custom or jus cogens. Further YE, if the third State consents to be bound by
the treaty then such State shall be bound pursuant to the principle of pacta
tertiis nec noscent nec prosunt.

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