Within judgments and omissions…”[3]. The issue for State

Within the scope of international law there
are several means which constitute a source of law which are found in Article
38 (1) of the Statute of the International Court of Justice. The first problem
within the question is regarding two of these sources which are treaties and
customs. The Vienna Convention on the Law of Treaties1
`defines a treaty as “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” 2. Secondly,
state practice which is described as “… any act or statement by a State from which views about customary law can be
inferred; it includes physical acts, claims, declarations, national laws,
national judgments and omissions…”3. The
issue for State A and State B practicing this treaty is, although their aim is
to “work together to combat crime” to benefit “public safety”, there is already
numerous amounts of provisions (both binding treaties and customary
international law) which predate their bilateral treaty (signed in 2014) and is
widely accepted by the international community. The problem is that such interrogation
techniques carried out by States A and B fall under the category of ‘torture’. The
United Declaration on Human Rights was the first treaty in which ‘torture’ became
prohibited and since there has been many further treaties (ICCPR and ECHR for
example) which adopt this rule. It is irrelevant that States A and B are not
party to any other international treaty regarding the treatment of prisoners
ect because as an international community it has been confirmed that practicing
torture is a breach of jus cogens which is the
highest form of international law that does not allow for any alteration of its
obligations and cannot be violated by any other state “through international
treaties or local or special customs or even general customary rules not
endowed with the same normative force”4.
Therefore, it can be argued that this treaty should be rendered void under

An issue to raise regarding
States A and B wishing to enter the multilateral treaty5
already enforced by States C, D and E surrounds the legal concept of
reservations to a treaty. A reservation according to Article 2 (1) (d) VCLT “means
a unilateral statement … 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”. From the facts we are aware that States A and B want a reservation
to the effect that any right protected under the treaty may be restricted in
times of public emergency. Reserving states are favoured by the VCLT because it
encourages wide participation of states to a treaty if it means that they can
modify certain elements to suit their interests and needs as a nation, in
addition it eliminates the need for states to make significant domestic
adjustments to their legal systems. Reservations can be requested by any state
before becoming party to a treaty unless “expressly disallowed from doing so” under
Article 19 VCLT, for example Article 309 United Nations Convention on the Laws
of the Sea does not allow for them. Some conventions do not allow for any
reservations to prevent the risk of undermining the treaty but modifying it so
much it destroys the sanctity of the treaty. The questioned posed however is whether
the reservation proposed by States A and B will be allowed considering State D’s
objection to it and States C and E who neither object or accept it. The
advisory opinion of the International Court of Justice (ICJ) held in the
Genocide Conventions case that if a State makes a reservation and another State
party to the treaty objects to it (as State D has) then States A and B can
still be regarded as a party however only if the reservation is compatible with
the objective and purpose of the Convention. According to the facts, the
multilateral treaty has been entered into force to protect human rights such as
fair trial rights and the freedom of religion, therefore could be argued that
the reservation objected to by State D interferes with the initial purpose of
the treaty (to protect human rights). Another issue here that arises under
international law is the fact that this multilateral treaty is reflective of
the International Covenant on Civil and Political Rights (ICCPR) which is
monitored by the United Nations Human Rights Committee. This treaty, under
Article 4 depicts in situation of public emergency (which States A and B are
referring to) parties to the covenant can suspend rights under the treaty,
however Article 4 (2) mentions the criteria that does not allow for any
derogation and under Article 18 the right to practice religion is one from which
no derogation is allowed. It is arguable that the ICCPR is reflective of
customary international law as such practice is continually carried out and
accepted by the international community and as a result of this the reservation
proposed by States A and B would fail.

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The final issue of international
law in the problem question is one of Statehood and Recognition and Self
Determination on behalf of East-Morti. To become independent from the state of
Mortina and practice their own beliefs ect then there is a criterion under
Article 1 Montevideo Convention they must satisfy to prove statehood and be
accepted into the international legal system. The Convention requirements are a
permanent population, defined territory, government and capacity to enter legal
relations. East Morti may have an issue in regard to the ‘permanent population’
and ‘defined territory’ criteria as this is a factual criterion and based on
the facts their population is ‘nomadic’ and therefore not situated in the same
place making it difficult to establish to any tie of territorial sovereignty6.
Furthermore, the final criteria of ‘capacity to enter into legal relations’ may
also be an issue as it is subjective, in other words East Morti can declare
their independence but that does not necessarily mean that they will be
accepted by other States, it is up to other States to chose whether they accept
East Morti as an independent state and chose to enter into legal relations with
them accordingly7. In addition, in terms of
the recognition of states, the UN has attempted to introduce a further element
for refining an effective government. It was noted that the requirement of a
‘government’ under Article 1 could be a case of a dictatorship with complete
control but as long as their was someone to blame if things went wrong/ a
representative then the state had an ‘effective government’, therefore it was
argued (especially post UDHR) we are moving onto the notion of democratic
governments more so8 (therefore, although
elected by the people to be the supreme leader, by only have one ‘supreme
leader’ as a representative of the government East Morti may face criticism
which could be an issue in relation to other states wanting to enter into legal
relations ect with them).

East Morti could potentially
argue Self-Determination which is a established right of international law- a
challenge to the tradition modes of acquisition of sovereignty discussed above.
It is covered by Art.1 (2)9,
and article 55 UN Charter (1945) and applies where there is a “free and genuine
expression of the will of the people concerned”10.
However, the issue that East Morti could face is in relation to the Opinion of
the Badinter Arbitration Committee would placed an emphasis on the uti
possidetis rule11. They held that
self-determination is subject to these boundaries that already exist. However,
the Committee does go on to say that there a jus cogens rule that minorities
are to be respected and protected12
however based on the facts we are unaware that the people of East Morti are
being oppressed by any means making it unlikely that their claim for
self-determination would succeed. A final point to note as well would be that it
doesn’t appear in international law that a region can vote in favour of
independence unless the bigger entity around it agrees to their claim which we
have recently seen in the difference between the Scottish referendum and the
independence of Catalonia from Spain, therefore we would need to know further
facts on the opinion of Mortiana before making a decision on the likeliness of
East Morti’s claim for independence.

 

 

1
VCLT

2
VCLT s.1 (a)

3
M. Akehurst, “Custom as a Source of International Law”, Brit Yearbk of
Int Law.

4
Prosecutor v. Furundzija, International Criminal Tribunal for the Former
Yugoslavia, 2002, 121 International Law Reports 213 (2002)

5
“A multilateral treaty is a treaty to which three or more
sovereign states are parties. Each party owes the same obligations to all other
parties, except to the extent that they have stated reservations”

6
Western Sahara Case, ICJ Adv Op (1975) ICJ Rep 12

7
Kosovo case, ICJ Adv Op
(2010),

8
‘Declarative Theory’ Kosovo
case, ICJ Adv Op (2010),

9
2. To develop friendly relations among nations based on respect for the principle
of equal rights and self-determination of peoples, and to take other
appropriate measures to strengthen universal peace;

10
Advisory Opinion of 21 June 1971 on The Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa): ICJ
Reports 1971, p.31

11
a principle of
customary international law that serves to preserve the boundaries of colonies
emerging as States.

12
As the Committee emphasized in its Opinion No. 1 of 29 November 1991, published
on 7 December, the – now peremptory – norms of international law require states
to ensure respect for the rights of minorities. This requirement applies to all
the Republics vis-à-vis the minorities on their territoryWithin the scope of international law there
are several means which constitute a source of law which are found in Article
38 (1) of the Statute of the International Court of Justice. The first problem
within the question is regarding two of these sources which are treaties and
customs. The Vienna Convention on the Law of Treaties1
`defines a treaty as “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” 2. Secondly,
state practice which is described as “… any act or statement by a State from which views about customary law can be
inferred; it includes physical acts, claims, declarations, national laws,
national judgments and omissions…”3. The
issue for State A and State B practicing this treaty is, although their aim is
to “work together to combat crime” to benefit “public safety”, there is already
numerous amounts of provisions (both binding treaties and customary
international law) which predate their bilateral treaty (signed in 2014) and is
widely accepted by the international community. The problem is that such interrogation
techniques carried out by States A and B fall under the category of ‘torture’. The
United Declaration on Human Rights was the first treaty in which ‘torture’ became
prohibited and since there has been many further treaties (ICCPR and ECHR for
example) which adopt this rule. It is irrelevant that States A and B are not
party to any other international treaty regarding the treatment of prisoners
ect because as an international community it has been confirmed that practicing
torture is a breach of jus cogens which is the
highest form of international law that does not allow for any alteration of its
obligations and cannot be violated by any other state “through international
treaties or local or special customs or even general customary rules not
endowed with the same normative force”4.
Therefore, it can be argued that this treaty should be rendered void under

An issue to raise regarding
States A and B wishing to enter the multilateral treaty5
already enforced by States C, D and E surrounds the legal concept of
reservations to a treaty. A reservation according to Article 2 (1) (d) VCLT “means
a unilateral statement … 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”. From the facts we are aware that States A and B want a reservation
to the effect that any right protected under the treaty may be restricted in
times of public emergency. Reserving states are favoured by the VCLT because it
encourages wide participation of states to a treaty if it means that they can
modify certain elements to suit their interests and needs as a nation, in
addition it eliminates the need for states to make significant domestic
adjustments to their legal systems. Reservations can be requested by any state
before becoming party to a treaty unless “expressly disallowed from doing so” under
Article 19 VCLT, for example Article 309 United Nations Convention on the Laws
of the Sea does not allow for them. Some conventions do not allow for any
reservations to prevent the risk of undermining the treaty but modifying it so
much it destroys the sanctity of the treaty. The questioned posed however is whether
the reservation proposed by States A and B will be allowed considering State D’s
objection to it and States C and E who neither object or accept it. The
advisory opinion of the International Court of Justice (ICJ) held in the
Genocide Conventions case that if a State makes a reservation and another State
party to the treaty objects to it (as State D has) then States A and B can
still be regarded as a party however only if the reservation is compatible with
the objective and purpose of the Convention. According to the facts, the
multilateral treaty has been entered into force to protect human rights such as
fair trial rights and the freedom of religion, therefore could be argued that
the reservation objected to by State D interferes with the initial purpose of
the treaty (to protect human rights). Another issue here that arises under
international law is the fact that this multilateral treaty is reflective of
the International Covenant on Civil and Political Rights (ICCPR) which is
monitored by the United Nations Human Rights Committee. This treaty, under
Article 4 depicts in situation of public emergency (which States A and B are
referring to) parties to the covenant can suspend rights under the treaty,
however Article 4 (2) mentions the criteria that does not allow for any
derogation and under Article 18 the right to practice religion is one from which
no derogation is allowed. It is arguable that the ICCPR is reflective of
customary international law as such practice is continually carried out and
accepted by the international community and as a result of this the reservation
proposed by States A and B would fail.

 

The final issue of international
law in the problem question is one of Statehood and Recognition and Self
Determination on behalf of East-Morti. To become independent from the state of
Mortina and practice their own beliefs ect then there is a criterion under
Article 1 Montevideo Convention they must satisfy to prove statehood and be
accepted into the international legal system. The Convention requirements are a
permanent population, defined territory, government and capacity to enter legal
relations. East Morti may have an issue in regard to the ‘permanent population’
and ‘defined territory’ criteria as this is a factual criterion and based on
the facts their population is ‘nomadic’ and therefore not situated in the same
place making it difficult to establish to any tie of territorial sovereignty6.
Furthermore, the final criteria of ‘capacity to enter into legal relations’ may
also be an issue as it is subjective, in other words East Morti can declare
their independence but that does not necessarily mean that they will be
accepted by other States, it is up to other States to chose whether they accept
East Morti as an independent state and chose to enter into legal relations with
them accordingly7. In addition, in terms of
the recognition of states, the UN has attempted to introduce a further element
for refining an effective government. It was noted that the requirement of a
‘government’ under Article 1 could be a case of a dictatorship with complete
control but as long as their was someone to blame if things went wrong/ a
representative then the state had an ‘effective government’, therefore it was
argued (especially post UDHR) we are moving onto the notion of democratic
governments more so8 (therefore, although
elected by the people to be the supreme leader, by only have one ‘supreme
leader’ as a representative of the government East Morti may face criticism
which could be an issue in relation to other states wanting to enter into legal
relations ect with them).

East Morti could potentially
argue Self-Determination which is a established right of international law- a
challenge to the tradition modes of acquisition of sovereignty discussed above.
It is covered by Art.1 (2)9,
and article 55 UN Charter (1945) and applies where there is a “free and genuine
expression of the will of the people concerned”10.
However, the issue that East Morti could face is in relation to the Opinion of
the Badinter Arbitration Committee would placed an emphasis on the uti
possidetis rule11. They held that
self-determination is subject to these boundaries that already exist. However,
the Committee does go on to say that there a jus cogens rule that minorities
are to be respected and protected12
however based on the facts we are unaware that the people of East Morti are
being oppressed by any means making it unlikely that their claim for
self-determination would succeed. A final point to note as well would be that it
doesn’t appear in international law that a region can vote in favour of
independence unless the bigger entity around it agrees to their claim which we
have recently seen in the difference between the Scottish referendum and the
independence of Catalonia from Spain, therefore we would need to know further
facts on the opinion of Mortiana before making a decision on the likeliness of
East Morti’s claim for independence.

 

 

1
VCLT

2
VCLT s.1 (a)

3
M. Akehurst, “Custom as a Source of International Law”, Brit Yearbk of
Int Law.

4
Prosecutor v. Furundzija, International Criminal Tribunal for the Former
Yugoslavia, 2002, 121 International Law Reports 213 (2002)

5
“A multilateral treaty is a treaty to which three or more
sovereign states are parties. Each party owes the same obligations to all other
parties, except to the extent that they have stated reservations”

6
Western Sahara Case, ICJ Adv Op (1975) ICJ Rep 12

7
Kosovo case, ICJ Adv Op
(2010),

8
‘Declarative Theory’ Kosovo
case, ICJ Adv Op (2010),

9
2. To develop friendly relations among nations based on respect for the principle
of equal rights and self-determination of peoples, and to take other
appropriate measures to strengthen universal peace;

10
Advisory Opinion of 21 June 1971 on The Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa): ICJ
Reports 1971, p.31

11
a principle of
customary international law that serves to preserve the boundaries of colonies
emerging as States.

12
As the Committee emphasized in its Opinion No. 1 of 29 November 1991, published
on 7 December, the – now peremptory – norms of international law require states
to ensure respect for the rights of minorities. This requirement applies to all
the Republics vis-à-vis the minorities on their territory