A.

UN General Assembly Resolutions

United Nations Charter 1945

Arts. 10, 18 and 25

FUNCTIONS and POWERS

Article 10
The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the
powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make
recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.

VOTING

Article 18
1. Each member of the General Assembly shall have one vote.
2. Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present
and voting. These questions shall include: recommendations with respect to the maintenance of international peace and
security, the election of the non-permanent members of the Security Council, the election of the members of the Economic and
Social Council, the election of members of the Trusteeship Council in accordance with paragraph 1 (c) of Article 86, the
admission of new Members to the United Nations, the suspension of the rights and privileges of membership, the expulsion of
Members, questions relating to the operation of the trusteeship system, and budgetary questions.
3. Decisions on other questions, including the determination of additional categories of questions to be decided by a two-thirds
majority, shall be made by a majority of the members present and voting.

FUNCTIONS and POWERS

Article 25
The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the
present Charter.

1. Generally

Legality of the Threat or Use of Nuclear Weapons, ICJ Advisory Opinion, 1996

OVERVIEW OF THE CASE

By a letter dated 19 December 1994, filed in the Registry on 6 January 1995, the Secretary-General of the United Nations
officially communicated to the Registry a decision taken by the General Assembly, by its resolution 49/75 K adopted on 15
December 1994, to submit to the Court, for advisory opinion, the following question : “Is the threat or use of nuclear weapons in
any circumstance permitted under international law ?” The resolution asked the Court to render its advisory opinion “urgently”.
Written statements were filed by 28 States, and subsequently written observations on those statements were presented by two
States. In the course of the oral proceedings, which took place in October and November 1995, 22 States presented oral
statements.

On 8 July 1996, the Court rendered its Advisory Opinion. Having concluded that it had jurisdiction to render an opinion on the
question put to it and that there was no compelling reason to exercise its discretion not to render an opinion, the Court found that
the most directly relevant applicable law was that relating to the use of force, as enshrined in the United Nations Charter, and
the law applicable in armed conflict, together with any specific treaties on nuclear weapons that the Court might find relevant.

The Court then considered the question of the legality or illegality of the use of nuclear weapons in the light of the provisions of
the Charter relating to the threat or use of force. It observed, inter alia, that those provisions applied to any use of force,
regardless of the weapons employed. In addition it stated that the principle of proportionality might not in itself exclude the use of
nuclear weapons in self-defence in all circumstances. However at the same time, a use of force that was proportionate under the
law of self-defence had, in order to be lawful, to meet the requirements of the law applicable in armed conflict, including, in
1
particular, the principles and rules of humanitarian law. It pointed out that the notions of a “threat” and “use” of force within the
meaning of Article 2, paragraph 4, of the Charter stood together in the sense that if the use of force itself in a given case was
illegal — for whatever reason — the threat to use such force would likewise be illegal.

The Court then turned to the law applicable in situations of armed conflict. From a consideration of customary and conventional
law, it concluded that the use of nuclear weapons could not be seen as specifically prohibited on the basis of that law, nor did it
find any specific prohibition of the use of nuclear weapons in the treaties that expressly prohibited the use of certain weapons of
mass destruction. The Court then turned to an examination of customary international law to determine whether a prohibition of
the threat or use of nuclear weapons as such flowed from that source of law. Noting that the members of the international
community were profoundly divided on the matter of whether non-recourse to nuclear weapons over the past 50 years
constituted the expression of an opinio juris, it did not consider itself able to find that there was such an opinio juris. The
emergence, as lex lata, of a customary rule specifically prohibiting the use of nuclear weapons as such was hampered by the
continuing tensions between the nascent opinio juris on the one hand, and the still strong adherence to the doctrine of
deterrence on the other. The Court then dealt with the question whether recourse to nuclear weapons ought to be considered as
illegal in the light of the principles and rules of international humanitarian law applicable in armed conflict and of the law of
neutrality. It laid emphasis on two cardinal principles : (a) the first being aimed at the distinction between combatants and non-
combatants ; States must never make civilians the object of attack and must consequently never use weapons that are
incapable of distinguishing between civilian and military targets while (b) according to the second of those principles,
unnecessary suffering should not be caused to combatants. It follows that States do not have unlimited freedom of choice in the
weapons they use. The Court also referred to the Martens Clause, according to which civilians and combatants remained under
the protection and authority of the principles of international law derived from established custom, the principles of humanity and
the dictates of public conscience.

The Court indicated that, although the applicability to nuclear weapons of the principles and rules of humanitarian law and of the
principle of neutrality was not disputed, the conclusions to be drawn from it were, on the other hand, controversial. It pointed out
that, in view of the unique characteristics of nuclear weapons, the use of such weapons seemed scarcely reconcilable with
respect for the requirements of the law applicable in armed conflict. The Court was led to observe that “in view of the current
state of international law and of the elements of fact at its disposal, [it] cannot conclude definitively whether the threat or use of
nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State
would be at stake”. The Court added, lastly, that there was an obligation to pursue in good faith and to conclude negotiations
leading to nuclear disarmament in all its aspects under strict and effective international control.

Brief Fact Summary. An advisory opinion as to whether states are permitted to use nuclear weapons under international law was
placed before the International Court of Justice by the U.N. General Assembly.

Synopsis of Rule of Law. Under certain circumstance, threat or use of nuclear weapons is permitted under international law.

Facts. A request for an advisory opinion as to whether states are permitted to use nuclear weapons under international law was
laid on the table of the International Court of Justice by the U.N. General Assembly.

Issue. Under certain circumstances, are threats or use of nuclear weapons permitted under international law?

Held. Yes. Under certain circumstance, threat or use of nuclear weapons are permitted under international law. The threat or
use of nuclear weapons in all circumstances is not authorized or prohibited by either the customary or conventional international
nuclear law.

Under the U.N. Charter, the threat or use of nuclear weapons would be considered legal if all requirements of Article 51 which
deals with state’s rights to self-defense are met. However, in whatever the situation can be, a state obligation exists to pursue in
good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspect under strict and effective
international control.

Discussion. The idea that despite steps taken by a very large part of the international community towards complete nuclear
disarmament, in which no customary rule specifically proscribe the threat or use of nuclear weapons that exists is illustrated by

2
 this case. Reservations about the notion that there are no imaginable circumstances warranting their use have been expressed
by too many dissenters.

South West Africa Cases, ICJ Rep., 1966, Dissenting Op., Judge Tanaka

OVERVIEW OF THE CASE

On 27 October 1966, the General Assembly decided that the Mandate for South West Africa was terminated and that South
Africa had no other right to administer the Territory. In 1969 the Security Council called upon South Africa to withdraw its
administration from the Territory, and on 30 January 1970 it declared that the continued presence of the South African
authorities in Namibia was illegal and that all acts taken by the South African Government on behalf of or concerning Namibia
after the termination of the Mandate were illegal and invalid; it further called upon all States to refrain from any dealings with the
South African Government that were incompatible with that declaration. On 29 July 1970, the Security Council decided to
request of the Court an advisory opinion on the legal consequences for States of the continued presence of South Africa in
Namibia. In its Advisory Opinion of 21 June 1971, the Court found that the continued presence of South Africa in Namibia was
illegal and that South Africa was under an obligation to withdraw its administration immediately. It found that States Members of
the United Nations were under an 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 implying recognition of the legality of, or lending support
or assistance to, such presence and administration. Finally, it stated that it was incumbent upon States which were not Members
of the United Nations to give assistance in the action which had been taken by the United Nations with regard to Namibia.

2. As evidence of state practice

Western Sahara Case, Advisory Opinion, ICJ Reports, 1975

OVERVIEW OF THE CASE

On 13 December 1974, the General Assembly requested an advisory opinion on the following questions : “I. Was Western
Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius) ?” If
the answer to the first question is in the negative, “II. What were the legal ties between this territory and the Kingdom of Morocco
and the Mauritanian entity ?” In its Advisory Opinion, delivered on 16 October 1975, the Court replied to Question I in the
negative. In reply to Question II, it expressed the opinion that the materials and information presented to it showed the
existence, at the time of Spanish colonization, of legal ties of allegiance between the Sultan of Morocco and some of the tribes
living in the territory of Western Sahara. They equally showed the existence of rights, including some rights relating to the land,
which constituted legal ties between the Mauritanian entity, as understood by the Court, and the territory of Western Sahara. On
the other hand, the Court’s conclusion was that the materials and information presented to it did not establish any tie of territorial
sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court did
not find any legal ties of such a nature as might affect the application of the General Assembly’s 1960 resolution 1514 (XV) —
containing the Declaration on the Granting of Independence to Colonial Countries and Peoples — in the decolonization of
Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the
peoples of the territory.

Background

After Morocco gained independence in 1956, the Istiqlal Party presented its vision for the new state's boundaries.[2] These
nationalists appealed to the idea of a Greater Morocco, based upon the territory of the Sharifian empire which preceded French
and British colonization. This area included what was at the time the Spanish Sahara, French West Africa, and French Algeria.
The Moroccan state itself formally adopted the 'Greater Morocco' vision under Mohammed V in 1958.[2] After Maurtianian and
Algerian independence in the early 1960s, Morocco released claim to most of Greater Morocco. However, it has maintained its
irredentist claim over Western Sahara.

During the 1960s, Morocco[citation needed] succeeded in getting Spanish Sahara to be listed on the list of territories to be
decolonized, and on December 20, 1966, United Nations General Assembly Resolution 2229 called on Spain to hold a
referendum on self-determination in the region.

3
After initially resisting all claims by Morocco and Mauritania (which also started laying claims to parts of the region), Spain
announced on August 20, 1974, that a referendum on self-determination would be held in the first six months of 1975 and took a
census of the region in order to assess the voting population.

Morocco declared it cannot accept a referendum which would include an option for independence and renewed its demands for
the integration of the remaining provinces of Saguia el-Hamra and Rio de Oro to the country's sovereignty[citation needed]. In
Mauritania, a smaller movement existed to overtake some amount of the territory, partitioning it with Morocco.

Algerian-Moroccan relations had been strained since Algeria's independence in 1962, culminating in the Sand war, and a lack of
normalized relations[citation needed]. Algeria, after initially supporting Morocco and Mauritania in their demands[citation
needed], started in 1975 to support the independence of the territory. The Algerian official position was that it supported the right
of self-determination of the people of the former Spanish colony, as it had supported the right of self-determination of the
peoples of the rest of the African colonized countries. The Polisario Front, created in 1973, a national liberation movement
known as Polisario (Spanish: "Frente Popular de Liberación de Saguia el-Hamra y Río de Oro" English: "Popular Front for the
Liberation of Saguia el-Hamra and Rio de Oro") was formed in 1973 to expel the Spaniards. They engaged in several attacks
against Spanish garrisons or patrols, and also attacked the Fosbucraa conveyor belt, which exported the rich local phosphates
to the El Marsa port.

On September 17, 1974, King Hassan II announced his intention to bring the issue to the ICJ[citation needed]. In December,
Spain agreed to delay the referendum pending the opinion of the court. They gave their support to ICJ submission on the
grounds that it be a non-binding, advisory opinion, rather than a "contentious issue", where the ruling would oblige the interested
states to act in a particular manner.

On December 13, the United Nations General Assembly voted on submission, resulting in UN General Assembly Resolution
3292, affirming it and defining the wording of the questions to be submitted. Algeria was among the nations voting in favor, and
several Third World nations abstained.

Submission

UN General Assembly Resolution 3292[3] requested that the International Court give an advisory opinion on the following
questions:

:I. Was Western Sahara (Río de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one
(terra nullius)?

And, should the majority opinion be "no", the following would be addressed:

:II. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?

In the meantime, Morocco and Mauritania jointly agreed to not contest the issue of partition or sovereignty. On January 16,
1975, Spain officially announced the suspension of the referendum plan, pending the opinion of the court. From May 12 through
to May 19, a small investigative team made of citizens from Cuba, Iran, and Côte d'Ivoire was sent into the region to assess
public support for independence. They also performed inquiries in Algeria, Mauritania, Morocco, and Spain.

In the summer, the questions were submitted by King Hassan II and Spain. Algeria, Mauritania, Morocco, and Spain were all
given permission to present evidence at the hearings (the Polisario was locked out as only internationally recognized states
have a right to speak - Algeria largely represented the Sahrawis). Twenty-seven sessions were held in June and July before the
Court called the proceedings final.

The arguments presented by Morocco and Mauritania were essentially similar: that either one had a sovereign right over the
territory. In the case of Morocco, the kingdom of Morocco claimed the allegiance of a variety of tribes in surrounding territory.
The modern Moroccan monarchy is derived from this kingdom[citation needed]. In the case of Mauritania, there was no clearly
defined state that existed at the time. Instead, Mauritania argued that a similar entity existed which they called "bilad Chinguetti".
Spain argued against Moroccan sovereignty, citing the relationship that Spanish explorers and colonizers had established with
4
the sultan, none of which ever recognized his authority over the region. Algeria also defended the position that the Sahrawis
were a distinct people[citation needed], and not under the subjection of Morocco or Mauritania.

The Opinion

On October 15, a UN visiting mission sent by the General Assembly to tour the region and investigate the political situation
published its findings, showing that the Sahrawi population were "overwhelmingly" in favor of independence from both Spain and
Morocco/Mauritania. These findings were submitted to the Court, who published their opinion the next day.

For the former question, the Court decided by a vote of 13 to three that the court could make a decision on the matter, and
unanimously voted that at the time of colonization (defined as November 28, 1884), the territory was not terra nullius (that is, the
territory, did belong to someone).

For the latter question, the Court decided by a vote of 14 to two that it would decide. It was of the opinion, by 14 votes to two,
that there were legal ties of allegiance between this territory and the Kingdom of Morocco. Furthermore, it was of opinion, by 15
votes to one, that there were legal ties between this territory and the "Mauritanian entity". However, the Court defined the nature
of these legal ties in the penultimate paragraph of its opinion, and declared that neither legal tie implied sovereignty or rightful
ownership over the territory. These legal ties also did not apply to "self-determination through the free and genuine expression of
the will of the peoples of the Territory."(ICJ Reports (1975) p. 68, para. 162)

Results

While Morocco and Mauritania found in the answers to the two questions a recognition that their claims are legitimate and
historically based, Algeria and the Polisario Front focused on the penultimate paragraph that stated that the court's decision was
not to hinder the application of self-determination through the ongoing Spanish referendum.

King Hassan II declared the organisation of a peaceful march to force Spain to start negotiations on the status of the territory, to
which Spain finally agreed. A round of talks between Spain, Morocco and Mauritania were held in Madrid and culminated in a
tripartite agreement, becoming known as the Madrid Accords On November 16, 1975, where Spain formally ceded the
administration of the northern two thirds of the territory to Morocco, while the southern third was to be administrated by
Mauritania. Algeria protested the agreement, and president Boumedienne retaliated by expelling all Moroccans living in
Algeria[citation needed]. The text of the Madrid Accords have never been made public record.

In consequence, the Court's decisions were largely disregarded by the interested parties. On October 31, 1975 the first
Moroccan troops invaded Western Sahara from the north-east. Algeria sent its troops into the territory of Western Sahara to help
in the logistic of the evacuation of the Sahrawi refugees who have been bombarded by Moroccan air forces, which led to the first
and last direct military confrontation between units of the Moroccan armed forces and the Algerian national army in the First
Battle of Amgala (1976). The Algerian army suffered hundreds of deaths and more than a hundred soldiers were made prisoners
by the Moroccan army. Diplomatic intervention from Saudi Arabia and Egypt prevented the situation from escalating further.

Spain's last soldier departed the territory on February 26, 1976[citation needed]. The next day, the Saharawi Arab Democratic
Republic was declared by Polisario Front representatives[citation needed]. Morocco intensified their military presence in the
region, and by the end of the year, Mauritania and Morocco had partitioned the territory. Mauritania was too weak militarily and
economically to compete against POLISARIO, though, and were forced to renounce their claims in 1979[citation needed].
Morocco immediately annexed that territory in addition. To this day, most of Western Sahara is administered by Morocco, but its
sovereignty has not been recognized by the UN or any country in the world. At the same time, 82 governments have recognized
the Sahrawi Republic as the legitimate government of Western Sahara.

Cf G.A. Resn. 1514 (XV), December 14, 1960, G.A.O.R., 15 Session, Supp. 16

Declaration on the Granting of Independence to Colonial Countries and Peoples

Adopted by General Assembly resolution 1514 (XV) of 14 December 1960

The General Assembly,

5
Mindful of the determination proclaimed by the peoples of the world in the Charter of the United Nations to reaffirm faith in
fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations
large and small and to promote social progress and better standards of life in larger freedom,

Conscious of the need for the creation of conditions of stability and well-being and peaceful and friendly relations based on
respect for the principles of equal rights and self-determination of all peoples, and of universal respect for, and observance of,
human rights and fundamental freedoms for all without distinction as to race, sex, language or religion,

Recognizing the passionate yearning for freedom in all dependent peoples and the decisive role of such peoples in the
attainment of their independence,

A ware of the increasing conflicts resulting from the denial of or impediments in the way of the freedom of such peoples, which
constitute a serious threat to world peace,

Considering the important role of the United Nations in assisting the movement for independence in Trust and Non-Self-
Governing Territories,

Recognizing that the peoples of the world ardently desire the end of colonialism in all its manifestations,

Convinced that the continued existence of colonialism prevents the development of international economic co-operation,
impedes the social, cultural and economic development of dependent peoples and militates against the United Nations ideal of
universal peace,

Affirming that peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any
obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law,

Believing that the process of liberation is irresistible and irreversible and that, in order to avoid serious crises, an end must be
put to colonialism and all practices of segregation and discrimination associated therewith,

Welcoming the emergence in recent years of a large number of dependent territories into freedom and independence, and
recognizing the increasingly powerful trends towards freedom in such territories which have not yet attained independence,

Convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of
their national territory,

Solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations;

And to this end Declares that:

1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights,
is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.

2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development.

3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying
independence.

4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them
to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be
respected.

5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained
independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance

6
 with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy
complete independence and freedom.

6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible
with the purposes and principles of the Charter of the United Nations.

7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of
Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and
respect for the sovereign rights of all peoples and their territorial integrity.

3. As affirmation of extant law

B. Codification and Development of International Law

UK Statement to the Sixth Committee of the General Assembly, 12 November 1996, 67 British Yearbook of International
Law 703 (1996)

Part III: The Law on Treaties

Vienna Convention on the Law of Treaties (1969)

Art. 2

Use of terms

1. For the purposes of the present Convention:

(a) “treaty” means an international agreement concluded 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 its particular designation;
(b) “ratification”, “acceptance”, “approval” and “accession” mean in each case the international act so named whereby a State
establishes on the international plane its consent to be bound by a treaty;

7
 (c) “full powers” means a document emanating from the competent authority of a State designating a person or persons to
represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be
bound by a treaty, or for accomplishing any other act with respect to a treaty;
(d) “reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in
their application to that State;
(e) “negotiating State” means a State which took part in the drawing up and adoption of the text of the treaty;
(f) “contracting State” means a State which has consented to be bound by the treaty, whether or not the treaty has entered into
force;
(g) “party” means a State which has consented to be bound by the treaty and for which the treaty is in force;
(h) “third State” means a State not a party to the treaty;
(i) “international organization” means an intergovernmental organization.

2. The provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those
terms or to the meanings which may be given to them in the internal law of any State.

1. Treaty: Definition and Nature

Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain)
(Jurisdiction, First Phase), ICJ Rep. 1994 112, pars. 22-30

Maritime Delimitation and Territorial Questions between Qatar and Bahrain

(Qatar v. Bahrain)

On 8 July 1991, Qatar filed an Application instituting proceedings before the Court against Bahrain concerning certain disputes
relating to sovereignty over the Hawar islands, sovereign rights over the shoals of Dibal and Quit'at Jaradah, and the delimitation
of the maritime areas of the two states. Qatar founded the jurisdiction of the Court upon two agreements between the parties
dated December 1987 and December 1990. The subject and scope of the commitment to jurisdiction were to be determined by
a formula proposed by Bahrain to Qatar in October 1988 and accepted by Qatar in December 1990. Bahrain contested the
jurisdiction of the Court arguing that none of the documents referred to by Qatar contained a commitment to have the dispute
settled by the Court.

In 1987, the Parties accepted, in an exchange of letters, proposals by Saudi Arabia which provided for a settlement by the Court
of all matters in dispute between the parties. These proposals included the formation of a Tripartite Committee, composed of
representatives from Bahrain, Qatar and the Kingdom of Saudi Arabia, "for the purpose of approaching the International Court of
Justice and satisfying the necessary requirements to have the dispute submitted to the Court in accordance with its regulations
and instructions so that a final ruling, binding upon both parties, be issued."

In 1988, Bahrain transmitted a text to Qatar (the "Bahraini formula") in which the Parties request the Court "to decide any matter
of territorial right or title or interest which may be a matter of difference between their respective maritime areas of seabed,
subsoil and superjacent waters." At the 1990 annual meeting of the Co-operation Council of Arab States of the Gulf, Qatar let it
be known that it was ready to accept the Bahraini formula. The minutes of the meeting (Doha Minutes) show the two parties
reaffirmed what was agreed previously between them: that they continue to use the good offices of Saudi Arabia until May 1991,
following which date the matter may be submitted to the Court in accordance with the Bahraini formula. Bahrain contends that
neither the 1987 agreements nor the 1990 minutes constitute legally binding instruments which allow for a unilateral seizure of
the Court.

In its judgement of 1 July 1994, the Court concluded that the 1987 exchange of letters and the 1990 minutes were international
agreements binding upon the parties. The Court found that the minutes were not only a simple record of negotiations, but
enumerated commitments to which the parties had consented. They thus created rights and duties in international law for the
parties.

As to the content of the agreements, the Court held that already in 1987 the parties had committed themselves to submit all
disputed matters to the Court. The determination of "disputed matters", according to the Court, was settled by the 1990 minutes,
in which Qatar consented to the Bahraini formula. Therefore, both parties had accepted that the Court, once seized, should
decide "any matter of territorial right or other title or interest which may be a matter of difference between [the Parties]; and
should "draw a single maritime boundary between their respective maritime areas of seabed, subsoil and superjacent waters".
8
While permitting the presentation of distinct claims by each of the Parties, the Bahraini formula, nonetheless, pre-supposed that
the whole of the dispute would be submitted to the Court.

As the Court had before it only an Application by Qatar and since Bahrain claimed that this Application did not comprise the
whole dispute, the Court decided to afford the Parties an opportunity to ensure that the whole of the dispute as comprehended
by the 1990 minutes and the Bahraini formula be submitted. The Parties were given until 30 November 1994 to do this jointly or
by separate acts.

In it's judgement of 15 February 1995, the Court decided finally on the questions of jurisdiction and admissibility. On 30
November 1990, Qatar filed a document entitled "Act to comply with paragraphs (3) and (4) of operative paragraph 41 of the
Judgement of the Court dated 1 July 1994". In this document Qatar referred to the absence of an agreement between the parties
to act jointly and declared that therefore Qatar was submitting to the Court "the whole of the dispute between Qatar and Bahrain
as circumscribed by the text ... referred to in the 1990 Doha Minutes as the Bahraini formula." Qatar enumerated the subjects
which, in its view, fell within the Court's jurisdiction:

1. The Hawar Islands, including the island of Janan;

2. Fasht al Dibal and Qit'at Jaradah;
3. The archipelagic baselines;
4. Zubarah;
5. The areas for fishing for pearls and for fishing for swimming fish and other matters connected with
maritime boundaries.

On 30 November 1994, the Registry of the Court received a document from Bahrain entitled "Report of the State of Bahrain to
the International Court of Justice on the attempt by the Parties to implement the Court's Judgement of 1st July, 1994". In that
document Bahrain argued that the Judgement of 1 July 1994 required a consensual submission of the whole of the dispute. Yet,
the documents presented by Qatar rested within the unilateral Application of 8 July 1991. In its observations of 5 December
1994 regarding Qatar's Act of 30 November 1994, Bahrain argued that the Court did not declare in its Judgement of 1 July 1994
that it had jurisdiction. Bahrain submitted that the Court lacked jurisdiction at that time because of the unilateral application of
Qatar. According to Bahrain, as the Act of 30 November 1994 presented by Qatar rested within the framework of the initial
unilateral application the Court still lacked jurisdiction. The Court therefore had to decide whether the exchange of letters or the
1990 Doha Minutes permitted a unilateral application.

The Court held that the exchange of letters, together with the Doha Minutes, constituted an agreement between the parties to
submit the whole of the dispute to the Court. Concerning the modalities of application, the parties had different views on the
interpretation of the arabic term "al-tarafan". Bahrain argued that it meant both parties whereas Qatar understood it as meaning
"each party". The Court interpreted the term in the light of its context and its aim and came to the conclusion that it meant an
alternative, not cumulative seisen. Therefore, the Court understood the Doha Minutes to allow a unilateral application by each of
the parties.

As to the question of whether the "whole of the dispute" was submitted, the Court held that with the Act of 30 November 1994
Qatar had indeed submitted the whole of the dispute. The Court therefore considered that it had jurisdiction and that the case
was admissible.

Five Judges appended dissenting opinions. According to Judge Schwebel, the Court did not examine thoroughly enough the
drafting of the 1990 Doha Minutes during which the explicit possibility for each party to seize the Court was amended to a text
which only meant "the parties". This element of the "travaux préparatoires" led Judge Schwebel to the conclusion that a
unilateral application was excluded. Judge Oda repeated his opinion from the first judgement where he considered the Doha
Minutes not to constitute an agreement within Article 36 (1) of the Court's Statute. Judge Koroma and judge ad-hoc Valticos
were of the opinion that the term "al-tarafan" and the drafting history must lead to the conclusion that a unilateral application was
not intended by the parties. Since no joint action by Bahrain and Qatar was taken they considered that the Court had no
jurisdiction.

M. Craven, ‘Legal Differentation and the Concept of Human Rights Treaty in International Law’, 11 European Journal of
International Law 489 (2000)

9
 Abstract

The purpose of this article is to explore a question that is commonly posed, but infrequently answered: what is the nature of the
relationship between conventional human rights law, and general principles governing treaty law? In its broadest sense the
question, as posed, is part of wider ongoing debate as to the potential 'fragmentation' of international law - a debate which has
been encouraged particularly by the development of specific legal regimes with dedicated mechanisms for dispute resolution.
More narrowly, the question is concerned with the compatibility of the existing treaty law framework for those legal instruments
that purport to protect legal interests other than those of the contracting states. The central point of focus is upon the role and
significance of reciprocity in the conceptual structure of human rights 'treaties'. It is argued that, whilst it is possible to maintain
that human rights treaties are constructed on the basis of reciprocity, doing so has certain theoretical and practical costs which
are not necessarily outweighed by the envisaged harm of understanding them as legal instruments possessing certain distinct
characteristics.

N. White, ‘The United Nations System: Conference, Contract or Constitutional Order?’ 4 Singapore Journal of
International and Comparative Law 281 (2000)

2. Unilateral Statements

Nuclear Test Cases (Australia v. France and New Zealand v. France), Merits, ICJ Rep. 1974, pars. 43-51

OVERVIEW OF THE CASE

On 9 May 1973, Australia and New Zealand each instituted proceedings against France concerning tests of nuclear weapons
which France proposed to carry out in the atmosphere in the South Pacific region. France stated that it considered the Court
manifestly to lack jurisdiction and refrained from appearing at the public hearings or filing any pleadings. By two Orders of 22
June 1973, the Court, at the request of Australia and New Zealand, indicated provisional measures to the effect, inter alia , that
pending judgment France should avoid nuclear tests causing radioactive fall-out on Australian or New Zealand territory. By two
Judgments delivered on 20 December 1974, the Court found that the Applications of Australia and New Zealand no longer had
any object and that it was therefore not called upon to give any decision thereon. In so doing the Court based itself on the
conclusion that the objective of Australia and New Zealand had been achieved inasmuch as France, in various public

10
statements, had announced its intention of carrying out no further atmospheric nuclear tests on the completion of the 1974
series.

Brief Fact Summary. Australia and New Zealand (P) requested France (D) to put an halt to atmospheric nuclear test in the
South Pacific.

Synopsis of Rule of Law. Declaration made through unilateral acts may have the effect of creating legal obligations.

Facts. A series of nuclear tests was completed by France (D) in the South Pacific. This action made Australia and New Zealand
(P) to apply to the I.C.J. demanding that France (D) cease testing immediately. Before the case could be completed, France (D)
announced it had completed the test and did not plan any further test. So France (D) moved for the dismissal of the application.

Issue. May declaration made through unilateral act has effect of creating legal obligations?

Held. Yes. Declaration made through unilateral acts may have the effect of creating legal obligations. In this case, the statement
made by the President of France must be held to constitute an engagement of the State in regard to the circumstances and
intention with which they were made. Therefore, these statement made by the France (D) are relevant and legally binding.
Application was dismissed.

Discussion. The unilateral statements made by French authorities were first relayed to the government of Australia. There was
no need for the statements to be directed to any particular state for it to have legal effect. The general nature and characteristics
of the statements alone were relevant for evaluation of their legal implications.

11