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The Life of the International Obligation and of its Subjects

Published online by Cambridge University Press:  21 May 2009

A.J.P. Tammes
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International obligations may rest on all sorts of persons: states, organizations, corporations, human beings; in short, all entities capable of being influenced by the contents of the obligation. It may be said that an international obligation so incumbent upon a person makes him an international person, which does not exclude him at the same time from remaining or becoming a person under some national or other system of law. The content of an obligation aims at directing the future conduct of the obligee. It must, however, be noticed that some kinds of obligation are not incumbent on persons as such, but on a society as a whole, in its constitutional function of making the legal system work, such as rules on decision-making or of conflict resolution, or the rules on securing compliance with obligations and pacta sunt servanda. They are to be applied above all by authorities (organs). They are, as it were, the rules of the game.

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Articles
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Netherlands International Law Review , Volume 31 , Issue 1 , May 1984 , pp. 1 - 30
Copyright
Copyright © T.M.C. Asser Press 1984

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References

1. See, for instance, Arts. 8 and 45 of the Vienna Convention, as opposed to Art. 52. According to the I.C.J., expenses of the United Nations for peace-keeping operations shall be borne by the Members even “if the action was taken by the wrong organ”. ICJ Rep. 1962, p. 168.

2. Art. 34, Vienna Convention on the Law of Treaties.

3. The Lotus, PCIJ Series A, No. 10, p. 18 (1927).

4. Art. 17 Vienna Convention on the Law of Treaties.

5. Particularly those of a quasi-legislative nature. Thus reservations were made at the adoption of the “Declaration on the establishment of a new international economic order” at the 6th Special Session of the General Assembly of the U.N.

6. Lauterpacht, , “Recognition” p. 374Google Scholar, has the example of the International Telegraphic Convention of 1865 to which Austria, when signing together with the representative of the King of Italy, intended to make the reservation that Austria recognized him only as King of Sardinia.

7. Ruda, , ‘Reservations to treaties', RdC (1975) II pp. 115 et seq.Google Scholar

8. Art. 20, para. 2 Vienna.

9. Art. 20, para. 5, 2nd part.

10. Art. 20, para. 5, 1st part.

11. Art. 20, para. 3.

12. Art. 22 Vienna, under the conditions and with the effects provided there.

13. Reservations to the Genocide Convention, ICJ Rep. (1951) p. 24.

14. Art. 19.

15. Perhaps the recognition, by Great Britain and a number of other States in 1884, of the Association of Congo “as a friendly government”. Lauterpacht, , ‘Recognition', p. 29Google Scholar.

16. Hare, , The Promising Game, in Hudson, (Ed.), The ‘is-ought’ question, pp. 149 et seqGoogle Scholar.

17. Nuclear Tests Cases, Australia, New Zealand resp. v. France, Judgments ICJ Rep. (1974) pp. 267; 472Google Scholar.

18. Parts. 44–51; 47–53 resp.

19. Vienna Convention, Art. 36.

20. von Wright, G. H., Norm and Action, p. 86Google Scholar.

21. In the Eastern Greenland Case (PCIJ, ser.A/B No. 53) the effect had to be examined of a suggestion by the Danish Minister at Christiania to the Norwegian Government not to make difficulties in the settlement of the question of the Danish Government extending their political and economic interests to the whole of Greenland, and answered by the Norwegian Minister of Foreign Affairs Ihlen replying that the Norwegian Government would not make any difficulties in the settlement of this question. Suy, [Les actes juridiques unilatéraux en droit international public (1962) p. 124Google Scholar] considers the declaration as part of an agreement and subscribes in this respect to Anzilotti's dissenting opinion (loc.cit. p. 91), but the Court itself refers to the binding undertaking involved in the Ihlen declaration as a “promise” (loc.cit. p. 73).

22. Passage over Indian Territory (Portugal/India) Merits, Judgment ICJ Rep. (1960) p. 40.

23. Temple Case (Cambodia/Thailand), Merits, ICJ Rep. (1962) p. 23.

24. ICJ Rep. (1953) pp. 71 et seq. But see the individual opinion of Judge Basdevant at p. 81.

25. Arbitral Award made by the King of Spain, ICJ Rep. (1960) pp. 213–214.

26. ILC Yearbook (1966), Vol. II, p. 239.

27. Ait. 16(c) of the Vienna Convention on the Law of Treaties. This, as also the earlier mentioned points made by Suy, , in Festschrift Röling, (1977) p. 270Google Scholar.

28. Jessup in Studi in Onore di G. Morelli, p. 401 “Procedure by consensus” “Silence gives consent” p. 401 et seq. (1975).

29. Vattel, Livre II, ch. 11, par. 144. In his dissenting opinion appended to the International Court's decision in the Temple Case (ICJ Rep. (1962) p. 128) Judge Spender paid attention to the fact that in the early part of this century Siam was apprehensive about the aspirations of France. This was given as the reason why the Thai Government did not protest about the presence at the Temple of a French officer in full military uniform. Thus lack of protest was among the facts which, in the view of the Court, amounted to “tacit recognition” by Siam of the sovereignty of Cambodia (under French Protectorate) over the Temple area (loc.cit. pp. 30, 31). And see the dissenting opinion of Judge Altamira in The Lotus, Series A, No. 10, p. 98.

30. At the Thiid U.N. Conference on the Law of the Sea a Declaration incorporating a “Gentlemen's Agreement” was made by the President and endorsed by the Conference on 2 June 1974 which refers to the desirability of adopting a Convention on the Law of the Sea which will secure the widest possible acceptance, and reads further “The Conference should make every effort to reach agreement on substantive matters by way of consensus and there should be no voting on such matters until all efforts at consensus have been exhausted”. An elaborate code of rules on decision-making was based on this “gentlemen's agreement”, approved by resolution of the General Assembly – soft law in itself. See AJIL (1975) p. 124, n. 16.

31. For instance the North Atlantic Treaty, Art. 8; formerly L.o.N. Covenant, Art. 20. See p. 10.

32. North Atlantic Treaty, Art. 7.

33. See the I.C.J. in the Continental Shelf (Tunis/Libya) Judgment, ICJ Rep. (1982) par. 71.

34. In Art. 19(2) of the draft on State Responsability as originally adopted by the I.L.C. mention is made of “an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole”. In paragraph 3 a number of examples of serious breaches of such obligations are listed (prohibition of aggression, acts against self-determination, slavery, genocide, apartheid and against the preservation of the human environment).

35. Many other examples may be found in Suy, , The Concept of Jus Cogens p. 65 andGoogle ScholarBlix, , Treaty Maker's Handbook p. 214Google Scholar.

36. Turkish Indemnity Case, Russia/Turkey 1912, Arbitral Awards XI, p. 443; Serbian Loans/France/Serbia 1929, PCIJ Series A, Nos. 20/21, pp. 39 et seq.

37. Draft on State Responsibility, Art. 31, YILC 1979, Vol. II, Part two, and comp. Convention on the Law of Treaties, Art. 61.

38. Declaration on Principles of international law concerning friendly relations and cooperation among States, principle (c).

39. Rawls, J.. Juiffce (1972) par. 77Google Scholar.

40. European Economic Community Treaty, Art. 129.

41. Hilf, , “Der abhängige juristische Person des Europäischen Gemeinschaftsrecht”, ZaöRV (1976) i–3, pp. et seqGoogle Scholar.

42. Leading case: PCIJ Series B, No. 15 at pp. 17–21 (Danzig Railway Officials Case).

43. ILC Rep. (1981), Ch. III, Art. 6 “Capacity of international organization to conclude treaties”.

44. Kunz, , “Die Staatenverbindungen” (1929) XIII, Kap. dei StaatenbundGoogle Scholar.

45. For instance the International Committee of Weights and Measures, Chiu, , ‘The capacity of international organizations to conclude treaties” (1966) p. 6Google Scholar.

46. ‘Mandate falls within the category of “matters specially provided for in Treaties and Conventions in force” under the terms of Article 36 of the Statute’. Mavromatis Palestine Concession (Jurisdiction), PCIJ Series A, No. 2 at p. 12 (1924). Similarly the jurisprudence of the ICJ with respect to the South-West Africa cases, in particular where the mandate was said to be “agreed between the Mandatory and the Council representing the League and its Members” (ICJ Rep. 1962, p. 331).

47. The prohibition in Article 2(4) ends with the phrase “or in any other manner inconsistent with the purposes of the United Nations”.

48. In the Rhodesia Case the Security Council decided “to call upon all States not to recognize this illegal racist minority regime in Southern Rhodesia… “ (12 November 1965).

49. The conflict may however be decided by the contract itself in favour of the international obligation of the contracting State. Example in Böckstiegel, , Der Staat als Vertragspartner ausländischer Privatunternehmen (1971) p. 217Google Scholar.

50. According to the ICJ (Western Sahara, Advisory Opinion, Reports 1975 p. 32) the basis for the decolonization process since 1960 was provided by resolution 1514 (XV) “Declaration on the Granting of Independence to Colonial Countries and Peoples”, adopted 14 December 1960, 89 in favour, 9 abstentions, none against.

51. External obligations are those outside the hierarchical relationships.

52. The European Economic Community has such a general consent of its members in Article 228 (2) of the Treaty establishing it: “Agreements concluded under the conditions laid down above shall be binding on the institutions of the Community and on MemberStates”.

53. Essays on the Intellectual Powers of Man, 1785, in Personal Identity, Perry, J. (Ed.)Google Scholar.

54. Harvard Research, Law of Treaties, Art. 24, AJIL Suppl. (1935) pp. 1044 et seq.

55. The 1970 Declaration of Principles of International Law: “no territorial acquisition resulting from the threat of use of force shall be recognized as legal”.

56. Particularly if there were to be lack of proportionality between violation and reprisal, as decided in the Naulilaa Case (A.D. 1927–28, Case 360): extensive occupation of foreign territory after a minor frontier incident.

57. De jure belli ac Pacis L.II c. xx, par. xL.

58. Though a protest against the incompatibility of a USA Act with an earlier equal obligation was rejected on the ground that the Act was not yet applied. Nair, Mc., IMW of Treaties (1961) p. 547Google Scholar.

59. Wright, Quincy, “The Denunciation of Treaty Violations”, 21 AJIL (1938), pp. 526–535Google Scholar, referring to Elihu Root, a former U.S. Secretary of State writing in 1915.

60. 1967, Article 6.