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The Life of the International Obligation and of its Subjects
Published online by Cambridge University Press: 21 May 2009
Extract
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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References
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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.
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11. Art. 20, para. 3.
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13. Reservations to the Genocide Convention, ICJ Rep. (1951) p. 24.
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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.
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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.
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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).
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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”.
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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.
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60. 1967, Article 6.