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II Treaty Interpretation and Other Treaty Points, Division B: Other Treaty Points, Ch.III: The Treaty in Action

From: The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence Volume II

Hugh Thirlway

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 08 June 2023

International courts and tribunals, decisions — Treaties, binding force — Treaties, application — Treaties, effect for third states

(p. 1326) Chapter III:  The Treaty in Action

1.  What is Meant by Saying that a Treaty is ‘In Force’?

The discussion of this question in the earlier article168 was directly related to the interpretation by the Court of the term ‘in force’ in Articles 36, paragraph 1, and 37 of the Statute; but it was there noted that the decisions of the Court in this context ‘may also be read…to give some indication of the meaning of an important concept of treaty-law’. In the subsequent period, that concept has been relevant outside the narrow context of the Articles of the Statute referred to.

In the case concerning the Gabčíkovo-Nagymaros Project, a bilateral Treaty between Hungary and Slovakia (as successor to Czechoslovakia) was held to be still in force despite the fact that ‘the Treaty has not been fully implemented for years, and indeed [the parties’] acts of commission and omission have contributed to creating [that] factual situation…’,169 and despite the fact that Hungary had purported to terminate the Treaty in 1992, and had argued before the Court that ‘by their conduct both parties had repudiated the Treaty and that a bilateral treaty repudiated by both parties cannot survive.’170 on this second point, the Court’s ruling is inspired by the need for the stability of treaties, and recognizes the importance of the element of consent, basic to the law of treaties:171

The Court is of the view, however, that although it has found that both Hungary and Czechoslovakia failed to comply with their obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring the Treaty to an end nor justify its termination. The Court would set a precedent with disturbing implications for treaty relations and the integrity of the rule pacta sunt servanda if it were to conclude that a treaty in force between States, which the parties have implemented in considerable measure and at great cost over a period of years, might be unilaterally set aside on grounds of reciprocal noncompliance. It would be otherwise, of course, if the parties decided to terminate the Treaty by mutual consent. But in this case, while Hungary purported to terminate the Treaty, Czechoslovakia consistently resisted this act and declared it to be without legal effect.172

The last sentence however refers back to the separate issue of Hungary’s purported unilateral termination of the Treaty, which was a response to action by Czechoslovakia (the implementation of an operation known as ‘Variant C’) regarded by Hungary as contrary to the Treaty, and based on five legal grounds: the existence of a state of necessity; impossibility of performance; occurrence of a fundamental change of circumstances; material breach of the Treaty by Czechoslovakia; and the development of new norms (p. 1327) of international environmental law.173 Hungary’s argument based on repudiation was different: it was that ‘even on the hypothesis that the 1977 Treaty survived termination by Hungary on 19 May 1992, the implementation of Variant C amounted to a repudiation by Czechoslovakia of the Treaty’.174 Thus the question was not one of a treaty being ‘unilaterally set aside on grounds of reciprocal non-compliance’, as the Court puts it; it was whether the ‘reciprocal wrongful conduct’ in the sense of conduct incompatible with the treaty, of both parties was such as to show that each of them either wished to put an end to the treaty-relationship, or regarded that relationship as ended. The Court’s analysis of the matter as one of ‘consent’ is correct, though that consent might be separate rather than mutual, if both parties independently arrived at the conclusion that the treaty should be, or had been, repudiated, again by both parties. On the facts, there was ample ground for the Court’s conclusion that no bilateral repudiation had occurred; but the use of the term ‘unilaterally’ is perhaps inappropriate, as is the reference to the lengthy and costly implementation of the 1977 Treaty, since if the parties chose to cast aside what had been achieved, they were free to do so, as long as it was by the consent of both of them.

A treaty that has been validly terminated is clearly no longer ‘in force’; what of a treaty that has been suspended? And is there a distinction to be made between suspension of the treaty and suspension of performance of obligations under the treaty? The Vienna Convention on the Law of Treaties refers to ‘suspension of the operation of a treaty’ rather than to the suspension of the treaty itself.175

If a treaty has been validly suspended, performance cannot be demanded of the obligations that it imposes upon each party;176 but does that of itself mean that the treaty is not ‘in force’? If the matter is regarded as one of interpretation of the references in the Court’s Statute to ‘treaties in force’, an answer was given by the Court in the ICAO Appeal case. India was arguing that the suspension of the Chicago Convention conferring jurisdiction on the Court deprived it of jurisdiction. The Court held that it had jurisdiction; but it gave a series of reasons for this, and on the particular point now under discussion its reasoning is a little obscure:

What India has affirmed is that the Treaties—which are multilateral ones— are suspended (or that their operation is suspended) as between herself and Pakistan. This is not the same thing as saying that they are not in force in the definitive sense, or even that they have wholly ceased to be in force as between the two Parties concerned.177

(p. 1328) This does not really resolve the issue; but the problem was that it was Pakistan that was arguing that the Convention was suspended by the action of India; if it had been India that was claiming that its own suspension rendered the Convention ‘not in force’, then India could claim to define for itself what degree of suspension had been its intention, and consistency would suggest that it intended to exclude the Convention from the category of ‘treaties in force’ for purposes of the Statute. The Court does however apparently recognize that a suspension could have the effect that a treaty would become ‘not in force in the definitive sense’—apparently, because it is not clear whether in the passage quoted the Court is saying that what matters is what India was claiming to do, or that a suspension never implies becoming ‘not in force in the definitive sense’. A further complication is that the argument quoted is only one of a set which the Court uses to reject the challenge to jurisdiction, and one of the others is that a jurisdictional clause is in a special category, so as to be unaffected by a suspension of the treaty containing it;178 which necessarily implies, in relation to the terms of Article 36 of the Statute, that the relevant treaty would, with this exception, have ceased to be ‘in force’.

It may be that the necessary conclusion is that how far the effect of a particular act of suspension of a treaty is to render the treaty no longer ‘in force’ depends on the provisions of the treaty itself, and subject thereto, to the intention of the party effecting the suspension; in other words, that the term ‘in force’ in relation to a treaty is not one with a fixed and immutable content.

The effect of a suspension cannot however depend solely on the stated intention of the party declaring it. Whether a purported suspension of a treaty is lawful depends on the terms of the treaty, and general international law; but whether an act is a suspension, lawful or otherwise, or not, may also depend on the treaty and general international law. In the case concerning the Gabčíkovo-Nagymaros Project, Hungary claimed that when in 1989 it suspended works on the Project which it was required to carry out under the 1977 Treaty establishing the Project, ‘although it did suspend or abandon certain works, on the contrary, it never suspended the application of the 1977 Treaty itself’.179 The Court did not accept this contention, interpreting the relevant conduct of Hungary ‘as an expression of its unwillingness to comply with at least some of the provisions of the Treaty’, and, more importantly, noting that its effect was ‘to render impossible the accomplishment of the system of works [on both sides of the frontier] that the Treaty expressly described as “single and indivisible” ’.180 However, the Court went on from this finding to consider whether Hungary had been entitled to suspend the operation of the Treaty on grounds of necessity (as Hungary claimed) and found that it was not; in the light of this, it concluded ‘that Hungary was not entitled to suspend and subsequently abandon, in 1989, the works’ under the Treaty. Thus Hungary was found to have been in breach of the Treaty; but had the Treaty been suspended? The way in which the Court expressed itself suggested that it had been—wrongfully—suspended; but no conclusion was drawn from this, other than that Hungary was in breach of the Treaty.

Hungary’s contention was that in 1989 the 1977 Treaty remained in force, but since ‘the essential continuing obligation on the parties under the Treaty was to seek to resolve difficulties by negotiation in good faith’, its provisions as to timetable of works were flexible and could be adjusted; it drew ‘a distinction between the suspension and even the (p. 1329) termination of works at Nagymaros and the continuation of the Treaty’.181 The force of the distinction appears to be that, in Hungary’s contention, the provisions for negotiation in the Treaty came into effect, so that ‘it was a matter for the parties in good faith to negotiate with a view to resolving the difficulties, if possible, or if not, to adjusting the Project plans, and eventually the 1977 Treaty itself, accordingly’.182 If the Treaty were terminated, and apparently also even if it were merely suspended, these provisions would not have effect. This contention became irrelevant, since in 1992 Hungary purported to terminate the Treaty, and no claim was made by either party the settlement of which turned on whether or not the Treaty was suspended between 1989 and 1992.

It is evident that if a treaty is ‘in force’ at a particular date for purposes of a reference in another treaty-instrument to ‘treaties in force’, that reference is satisfied even if the treaty in question ceases to be effective at some subsequent date. In the Territorial Dispute (Nicaragua/Colombia) the 1948 Pact of Bogotá excluded from its dispute-settlement provisions any matters ‘governed by agreements or treaties in force’ at the date of the Pact. Nicaragua argued that a 1928 Treaty between the Parties did not fall within this provision because it had been invalid; but the Court found that no claim or assertion of invalidity had been made by Nicaragua until 1980, long after the Pact came into force.183

2.  The Claiming of Rights Entails Submission to the Corresponding Obligations*

Mention has been made above184 of the objection presented by the United States to the claim of Mexico in the case of Avena and Other Mexican Nationals, essentially on the basis of the exceptio non adimpleti contractus: the USA suggested that Mexico’s own standards of compliance with the Vienna Convention on Contractual Relations should debar it from presenting a claim based on non-compliance by the United States. This may also be seen as an invocation of the principle discerned by Fitzmaurice and defined as in the title of this Section, which was discussed by him in relation to the South West Africa case.185 As explained above, the Court rejected the objection on the basis that it was inappropriate to a convention of the type represented by the Consular Convention; but in connection with Fitzmaurice’s principle it may also be observed that there must be an element of proportion in its application; a State cannot be debarred from asserting its rights under a treaty as a result of any breach thereof, however trivial, that it has itself committed. if there were cases of United States citizens arrested in Mexico who had not been given the full protection offered by the Convention, this should not in itself prevent Mexico from insisting on proper treatment for its nationals in the United States. It would be otherwise if it were shown that it was the policy of the Mexican authorities to deny the protection of the Convention to alien detainees, or detainees of a particular (p. 1330) nationality. Any failure to comply with the Convention requirements would be a breach of the Convention; but a policy of this kind would be not merely a continuing breach, but in effect a repudiation of the Convention obligation, and it would be that that would, in principle, justify exclusion of the defaulting State from entitlement to claim its Convention rights.

In the particular case, however, of the Consular Convention, and a fortiori in the case of conventions of a humanitarian nature, considerations deriving from the nature of the Convention, as identified by the Court in the Avena case, would over-ride the exceptio: it would, it is suggested, be unacceptable to penalise the citizens of the defaulting State by depriving them of the benefit of the treatment guaranteed by the Convention as a sort of counter-measure because citizens of the receiving State were being denied that benefit in the defaulting State, even if that denial were not sporadic, but a matter of deliberate government policy.186

3.  Implied Powers in Treaty

In the previous article in this series,187 note was taken of the view of Fitzmaurice that the doctrine of implied powers, as a qualification of the principle of speciality, was a matter of treaty interpretation—an application of Fitzmaurice’s Principle of Effectiveness;188 but the present writer ventured to doubt whether this was a correct analysis. It was suggested that the interpretation of a treaty is a process that involves placing oneself at the time when the treaty was concluded, and considering what the draftsmen meant in the light of what they foresaw, or may be deemed to have foreseen. The doctrine of implied powers, on the other hand, might be expressed in the adage, ‘who wills the ends, wills the means’; and the consequence is that, if the alleged need for an implied power only reveals itself many years after the date of the treaty, it is not necessary to take account only of the text of the treaty and ‘such intentions and expectations as might have been in the minds of its signatories’.189

In the case concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, the WHO requested of the Court an advisory opinion on the question whether ‘[i]n view of the health and environmental effects,…the use of nuclear weapons by a state in war or other armed conflict [would] be a breach of its obligations under international law including the WHO Constitution’.190 In accordance with Article 96, paragraph 2, of the Charter, the Court had to be satisfied that that question was one which arose ‘within the scope of [the] activities’ of the WHO. After examining the organization’s constitution, the Court concluded that the question put was not ‘capable of being considered as “arising within the scope of [the] activities” of the WHO’.191 The Court then proceeded to make a classic statement of the principle of speciality, and the doctrine of implied powers:

The Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations (p. 1331) are governed by the ‘principle of speciality’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.192

The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments. Nevertheless, the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international organizations can exercise such powers, known as ‘implied’ powers.193

The Court was not however prepared to find that the question was one arising within the activities of the WHO on the basis of the doctrine of implied powers.

In the opinion of the Court, to ascribe to the WHO the competence to address the legality of the use of nuclear weapons—even in view of their health and environmental effects—would be tantamount to disregarding the principle of speciality; for such competence could not be deemed a necessary implication of the Constitution of the Organization in the light of the purposes assigned to it by its member States.194

This is a curiously negative formulation: it would be natural to say that competence to address the legality of the use of nuclear weapons could not be deemed a necessary implication of the Constitution, and therefore the doctrine of implied powers had no application; but the opposite view would on this basis not be a ‘disregard’ of the principle of speciality, but a misapplication of it.

These findings may be said, at the least, not to conflict with the analysis presented in the previous article. In the first place, the Court makes no mention of the criteria for interpretation of treaties enunciated in the Vienna Convention, with which it regularly prefaces its discussions of the interpretation of a treaty text. Furthermore, the Court indicates as justification for the doctrine of implied powers the fact that ‘the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers…’—that is to say, the fact of such necessities arising, not the fact that the parties had contemplated, at the time of conclusion of the treaty, that such necessities might arise.195

On the other hand, the Court also examined the distribution of competences within the UN system, and found that, simply expressed, questions of public health were for the WHO, but questions of use of force and the regulation of armaments were for the Security Council. In this context it observed that:

The WHO Constitution can only be interpreted, as far as the powers conferred upon that Organization are concerned, by taking due account not only of the general principle of speciality, but also of the logic of the overall system contemplated by the Charter.196

(p. 1332) This is not however to say that the principle of speciality is itself a principle of interpretation, but simply that it is in the light of, inter alia, the results of applying the principle of speciality that the relevant constitutional text requires to be interpreted.

4.  Third Parties and Treaties

(1)  Pactum in favorem tertii

The previous article dealt, under this heading, with aspects of the situation contemplated by Article 36 of the Vienna Convention on the Law of Treaties, namely provision in a treaty giving rise to rights to be enjoyed by a third State, that is to say a State not a party to the treaty. This is not a situation that the Court has had to consider in the period since that article was published. The question was raised in the case of Passage through the Great Belt, in which Finland claimed the benefit of the 1857 Copenhagen Treaty on the Redemption of the Sound Dues, to which it had not been a party, in support of its claim to free passage through the Great Belt for oil drilling rigs;197 that case was however withdrawn following agreement between the parties, and thus the Court was not called upon to rule on the matter.

(2)  Treaties conferring rights on individuals

The Court has however had to deal with a parallel problem: that of a treaty alleged to have conferred rights not merely on the States parties to it, but on the nationals of those States—rights exercisable by those nationals in their own right, and capable of enforcement by diplomatic protection. The question of the nature of the ‘rights’ of a national capable of diplomatic protection was discussed extensively in the first of these articles, by reference to the Barcelona Traction decision.198 Much of the difficulty of that decision arose from the distinction made by the Court between injury to the ‘rights’ of the shareholder and injury merely to his ‘interests’; this provoked the question: given that a ‘right’ can only exist in the context of a legal system, by what law was the existence of a ‘right’, and its status as such, rather than an ‘interest’, to be determined? In view of (inter alia) the established principle that diplomatic protection involves the assertion by the protecting State of its own right (the principle enunciated in the Mavrommatis Palestine Concessions case199), it appeared that only a relevant system of national law could be applied to in order to determine these questions.

As the International Law Commission has noted, much has changed in international law in this respect. ‘The individual is the subject of many primary rules of international law, both under custom and treaty, which protect him at home, against his own Government, and abroad, against foreign Governments.’200 For this reason, the ILC in its Draft Articles on Diplomatic Protection formulated the text ‘in such a way as to leave (p. 1333) open the question whether the State exercising diplomatic protection does so in its own right or that of its national—or both’.201 The ILC referred in this respect to the decisions of the Court in the LaGrand and Avena cases; however, both those cases involved the question whether rights were conferred by treaty on individuals, and it will be convenient to examine them here from the angle of conferral of rights by treaty on entities other than the parties to the treaty.

The treaty in question in these cases was the Vienna Convention on Consular Relations (the Consular Convention). Article 36, paragraph 1(b) of the Convention provided that, when the national of one contracting State was arrested in the territory of another, he was entitled to request the authorities of the arresting State to inform his national consular post; and the text added that ‘[t]he said authorities shall inform the person concerned without delay of his rights under this subparagraph.’202 Furthermore, paragraph 2 of Article 36 provided that:

The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.

Germany in the LaGrand case, and Mexico in the Avena case, relied on both of these provisions, in order to assert simultaneously a direct claim for breach of treaty and a claim of diplomatic protection of their injured nationals.

A first question that arose in the LaGrand case resulted from the request by Germany, granted by the Court, for the indication of provisional measures to restrain the United States authorities from executing Walter LaGrand, a German national who had been tried and condemned to death without the German Consulate having been informed. In its Order, the Court recalled its consistent jurisprudence to the effect that:

the power of the Court to indicate provisional measures under Article 41 of its Statute is intended to preserve the respective rights of the parties pending its decision, and presupposes that irreparable prejudice shall not be caused to rights which are the subject of a dispute in judicial proceedings; whereas it follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant, or to the Respondent;…203

It then found that the execution of Walter LaGrand ‘would cause irreparable harm to the rights claimed by Germany in this particular case’.204 The Court was restricted by the jurisdictional title invoked—the Optional Protocol to the Consular Convention—to determining disputes concerning the interpretation and application of that Convention, and thus could only adjudge rights conferred by the Convention. The last-minute proceedings on the request aimed at saving a man’s life were not the appropriate moment to raise legal niceties of this kind, and the Court cannot be criticized for having issued its Order; but ex post facto doubts may be permitted. What rights conferred by the Convention would be harmed by the execution? The German nationals concerned could claim the right to life, and the State could claim to restrain unlawful injury to one of its citizens; but these were not rights conferred by the Convention; and it was not immediately clear how the rights of notification under Article 36 would be breached by the execution of (p. 1334) the national. The Court referred in its Order to ‘the rights claimed by Germany’; could this refer to rights vested in the German national concerned, and protected on a basis of diplomatic protection?

At the stage of the merits, the Court had before it a submission by Germany that the United States, ‘by failing to take all measures at its disposal’ to prevent the execution of Walter LaGrand was in breach of an international obligation, but that obligation was attributed by Germany to the effect of the Order indicating provisional measures itself. Thus Germany did not assert the existence of any right, having existed at the time of its application to the Court, that would have been violated by the execution, let alone any right of that nature under the Consular Convention.

Setting aside the question of the rights arising out of the provisional measures Order itself, what rights were relevant in the case? It was clear—and conceded by the United States—that the non-notification to the LaGrand brothers (and to Avena and his fellow-citizens in the later case) constituted breaches by the United States of the Consular Convention vis-à-vis Germany and Mexico. The rights of these two claimant States had thus been infringed; it was argued by the United

States in the LaGrand case that the claim to diplomatic protection added nothing, was inappropriate in the context of consular law, and was unsupported by precedent.205 Its relevance was however essentially in connection with the reliance by the Applicants on paragraph 2 of Article 36, with its provision as to giving ‘full effect to the purpose for which the rights accorded under this article are intended’. Once a failure to notify had occurred, a breach of paragraph 1 would be established; if the subsequent criminal proceedings were not such as to remedy the breach ex post facto, the rights of the State of the arrested national would not, it may be suggested, suffer any further diminution. Hence, even assuming (as was disputed by the United States) that paragraph 2 was intended to justify a separate claim for alleged breaches of it, nothing would be added. The original failure of notification would be both a breach of paragraph 1, and a failure to give full effect to the State’s rights as required by paragraph 2.

For this reason the argument of Germany and Mexico was that Article 36, paragraph 1, conferred rights on the individual national, which would be breached by non-notification; that if the subsequent criminal proceedings in the national courts could nullify the effects of the breach (for example, by making it possible for the proceedings to be set aside, and only re-instated after the appropriate consular notification had been made), then ‘full effect’ would have been given to the rights conferred by the Convention on the individual national; but that if such were not the case, then there would have been a failure to give such ‘full effect’, and thus a breach of paragraph 2. This was the argument accepted by the Court, which enabled it to direct the United States, in any future case in which there might be a failure of consular notification, to ‘allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in [the] Convention’.206

Further discussion of these cases will be more appropriate in a further article in the series, dealing with State responsibility; the LaGrand and Avena cases serve however in the present context to confirm both the possibility of conferring rights on individuals by treaty, and the difficulty that may arise in practice in distinguishing them in operation and effect from the rights of the parties to the treaty.

(p. 1335) (3)  Treaties as res inter alios acta*

In the case of the Land and Maritime Boundary between Cameroon and Nigeria the question arose whether the maritime delimitation requested of the Court had to be geographically restricted to take account of the possible rights or interests of third States, specifically Equatorial Guinea (which was intervening in the case as a non-party) and Sao Tome and Principe. Cameroon claimed that no delimitation could affect those States, ‘as the Court’s judgment will be res inter alios acta for all States other than itself and Nigeria’. It invoked the Continental Shelf (Tunisia/Libya) case, and contended that

most of the maritime boundary agreements that are already in force would never have come into being if it had not been possible for the States concerned to reach a bilateral agreement on a maritime boundary without there being any prerequisite as to the participation of all such States as might potentially be involved in the area in question.207

It also referred to the Frontier Dispute (Burkina Faso/Mali) and the Territorial Dispute (Libya/Chad), and argued that

the effect of the Court’s Judgment would be the same as a bilateral maritime delimitation treaty, which will not be opposable as such to third States, but by which the two parties to the treaty may agree to fix their maritime boundary up to a tripoint decided bilaterally, without the participation of the third State concerned.208

In the Frontier Dispute case, the Court had found itself able to define the frontier between the two parties up to the tripoint with the neighbouring State, Niger, on the basis both of Article 59 of the Statute and of a parallel with boundary treaties:

The Parties could at any time have concluded an agreement for the delimitation of their frontier, according to whatever perception they might have had of it, and an agreement of this kind, although legally binding upon them by virtue of the principle pacta sunt servanda, would not be opposable to Niger. A judicial decision, which ‘is simply an alternative to the direct and friendly settlement’ of the dispute between the Parties (P.C.I.J, Series A, No. 22, p. 13), merely substitutes for the solution stemming directly from their shared intention, the solution arrived at by a court under the mandate which they have given it. In both instances, the solution only has legal and binding effect as between the States which have accepted it, either directly or as a consequence of having accepted the Court’s jurisdiction to decide the case.209

In that case, however, the Court drew a distinction between land boundaries and maritime delimitations; it recognized that in the case of the Continental Shelf (Libya/Malta) it had restricted the maritime delimitation so as not to encroach on areas claimed by Italy, for reasons connected with the nature of continental shelf rights.210 In the Cameroon/Nigeria case, the Court followed this precedent, and therefore declined to ‘rule on Cameroon’s claims’ to maritime areas ‘in so far as they might affect rights of Equatorial Guinea and Sao Tome and Principe’.211 It considered that the reasoning in the Burkina Faso/Mali case was not ‘necessarily trans- posable to those concerning maritime boundaries’.212 It would seem to follow that maritime boundary agreements that turn out to deal with areas to (p. 1336) which legally a third State has entitlements are not merely non-opposable to the third State, but actually contrary to law and thus invalid; this indeed was the view expressed in the Frontier Dispute case.213 This does not however prevent States in practice from concluding delimitation agreements defining a line right up to a tripoint, defined as such either specifically or by implication.214 Since the principle is that res inter alios acta nec nocet nec praestat, it is the land boundary delimitation treaty that is the norm, and the maritime boundary delimitation treaty that is the exception in this regard.


168  (1992) BYIL 1, 32 ff.

169  [1997] ICJ Rep 76, para 133.

170  Ibid, 68, para 114.

171  Cf the attitude expressed by some Members of the Court to the similar issue of the possibility of a treaty ceasing to have effect through desuetude, in the Nuclear Tests cases: below, Chapter V, Section 6.

172  [1997] ICJ Rep 68, para 114.

173  Ibid, 58, para 92.

174  Hungarian Memorial, para 10.104. The point that Czechoslovakia had repudiated the Treaty by conduct, and that the repudiation was ‘adopted and intensified’ when Slovakia came into existence, was developed by Prof. Crawford as counsel for Hungary, as an argument quite distinct from that of Hungary’s termination of the Treaty: Verbatim Record of 7 March 1997, CR 97/6, 24 ff.

175  Part V, Section 3 (Articles 57–60).

176  An interesting question is whether performance, during the period of suspension, of acts that would have been required by the treaty, can be regarded as ‘performance’ of an obligation which is, for the time being, non-existent; but the question could probably only be answered in relation to a specific text, and a specific set of acts.

177  [1972] ICJ Rep 53, para 16(a). The reference to the multilateral nature of the Treaties probably indicates that the Court had in mind the matters later dealt with in Article 58 of the Vienna Convention on the law of Treaties, ensuring that suspension of the operation of a multilateral treaty between certain parties does not prejudice the rights of other parties to it.

178  Ibid, 53–54, para 16(b).

179  [1997] ICJ Rep 35, para 40.

180  Ibid, 39, para 48.

181  Hungarian Memorial, para 9.18.

182  Ibid, para 9.24.

183  [2007] ICJ Rep, para 79 of the Judgment of 13 December 2007.

For relevant jurisprudence subsequent to 2007, see Certain Questions of Mutual Assistance in Criminal Matters, [2008] ICJ Rep 220–221, paras. 120–122 (reciprocal execution of obligations); and Application of the Interim Accord of 13 September 1995 (Macedonia v. Greece), Judgment of 5 December 2011, paras 115–117, 161 (the exceptio non adimpleti contractus).

184  Chapter II, Section 1(2).

185  (1950) BYIL 8; (1951) BYIL 51; see the previous article in the present series, (1992) BYIL 1, 40–41.

186  The case does not appear to fall squarely within the limitations laid down in Article 50, paragraph 1, of the International Law Commission’s Articles on State Responsibility, but is comparable to those limitations and to the precedents in the matter, as recounted in the Commission’s Commentary, paras. (1) to (8).

187  (1992) BYIL 1, 42–43.

188  (1951) BYIL 18–19; Collected Edition, I 59–60.

189  (1992) BYIL 1, 43.

190  Quoted in [1996] ICJ Rep 68, para 1.

191  Ibid, 77, para 22.

192  Ibid, 78, para 25, citing Jurisdiction of the European Commission of the Danube, Advisory Opinion, PCIJ, Series B, No. 14, p. 64.

193  Ibid, 79, para 25, citing Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] ICJ Rep 182–183, and Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, [1954] ICJ Rep 57.

194  Ibid, 79, para 25.

195  Cf. also the dissenting opinion of Judge Koroma in which he refers to ‘implied powers, which without conflicting with [the relevant] constitution, are a logical incident of it and contribute to ensuring its effectiveness.’: [1996] ICJ Rep 193–194.

196  Ibid, 80, para 26.

197  See the Finnish Memorial in that case, ICJ Pleadings 322–324, and the Danish response, ibid, 609–611, conceding Finland’s right to the benefit of the 1857 Treaty in accordance with Article 36 of the VCLT. Neither party commented on the doctrinal controversy over whether the consent of the third party is necessary to the validity of a stipulation pour autrui (cf. the discussion in Fitzmaurice and Elias, Contemporary Issues in the Law of Treaties, 276–281), but clearly the use by Finnish ships of the Sound would indicate consent.

198  (1989) BYIL 1, 117–125.

199  [1924] PCIJ, Series A, No. 2, p. 12.

200  Commentary to ILC Draft Articles on State Responsibility, ILC Report on the work of the 58th Session, A/61/10, Article 1, commentary para 4.

201  Ibid, para 5.

202  Quoted in [2001] ICJ Rep 475, para 15.

203  [1999] ICJ Rep 15, para 22.

204  Ibid, para 24.

205  [2001] ICJ Rep 493, para 76.

206  LaGrand, [2001] ICJ Rep 516, para 128(7).

For jurisprudence subsequent to 2007, see Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Honduras for permission to intervene, Judgment of 4 May 2011, paras 50, 54, 59, 71–75.

207  [2002] ICJ Rep 418, para 232.

208  Ibid, 419, para 233.

209  [1986] ICJ Rep 577, para 46.

210  Ibid, 578, para 47, citing [1985] ICJ Rep, 26, para 21.

211  [2002] ICJ Rep 421, para 238.

212  Ibid.

213  [1986] ICJ Rep 578, para 47.

214  Examples in C G Lathrop, ‘Tripoint Issues in Maritime Boundary Delimitation’, in D A Colson and R W Smith (eds), International Maritime Boundaries (2005), Vol V, 3313–3316.