Repotesriana is bound by the customary rule concerned

The customary international law is generally binding for all states[21]. But there are a few exceptions concerning a local or regional custom, and the concept of persistent objector. However mentioned exceptions are not applicable in the case at hand on the following reasons.

Firstly, the ICJ[22] stated that a local custom can appear between two states as “assimilated to the particular agreements”[23]and “on the basis of long practice”[24]. Under the Compromise there is no information concerning the local character of the rule concerned and the great number of states which accepted the rule at hand as binding (78 states) proves the general character of the custom.

Secondly, in relation to the concept of persistent objector the ICJ stated that the customary rule “appear[s] to be inapplicable as against [a State] inasmuch as she has always opposed any attempt to apply it”[25]. Under the Compromis, there is no information which can prove that the state always demonstrated its permanent opposition to the rule concerned. Moreover Repotesriana signed the Global Oleafa Protection Compact, which can be regarded as an attempt to apply it in future.

The opponent would possibly claim that it is a persistent objector, and the fact that it “was not specifically opposed to the”[26] rule is justified by the fact that it was not “fully aware of what [its] probable effects”[27] at the time of signature of the Compact. However, it is known that as far as in 1928 Repotesriana signed a treaty regulating protection of some species of oleafa, so obviously it was aware of its effects, consequently it cannot refer to the change of circumstances and to the status of persistent objector.

Thus, Repotesriana cannot be regarded as persistent objector and since the custom concerned is not a local one, it is binding for all states including Repotesriana.

Since Repotesriana permitted its national to collect the blue oleafa and according to the custom all species of oleafa are to be protected, it violated the international law custom.

On the foregoing reasons Repotesriana, by permitting its nationals to harvest the blue oleafa, violated international law, namely a customary rule not to “defeat the object and purpose of a treaty when it has signed the treaty”, and an international custom prohibiting harvesting of blue oleafa.

[1] Compromis

[2] Compromis

[3] The Vienna Convention on the Law of Treaties (VCLT), 1969, art. 18

[4] Draft Articles on the Law of Treaties with commentaries, ILC, Yearbook of the International Law Commission, 1966, Vol. II, p. 202, art. 15

[5] The Statute of ICJ, 1945, art 38 (b); North Sea Continental Shelf, Judgment, I.C.J. Reports, 1969, p. 44, para. 77

[6] North Sea Continental Shelf, Judgment, I.C.J. Reports, 1969, p. 55: “the process of the definition and consolidation of … customary law took place through the work of the International Law Commission”

[7] Draft Articles on the Law of Treaties with commentaries, ILC, Yearbook of the International Law Commission, 1966, Vol. II, p. 202, art. 15, commentary, para. 1

[8] Certain German Interests in Polish Upper Silesia case, P.C.I.J. (1926), Series A, No. 7, p. 30

[9] Draft Articles on the Law of Treaties with commentaries, ILC, Yearbook of the International Law Commission, 1966, Vol. II, p. 202, art. 15,

[10] Asylum case, ICJ Reports, 1950, p.266-389, Case concerning the right of passage over Indian territory, ICJ Reports, 1960

[11] David S. Jonas, Thomas N. Saunders, The Object and Purpose of a Treaty: Three Interpretive Methods, Vanderbilt Journal of Transnational Law, vol. 43, 2010, №3, p. 596

[12] David S. Jonas, Thomas N. Saunders, The Object and Purpose of a Treaty: Three Interpretive Methods, Vanderbilt Journal of Transnational Law, vol. 43, 2010, №3, p. 596

[13] The Statute of ICJ, 1945, art 38 (b)

[14] North Sea Continental Shelf, Judgment, I.C.J. Reports, 1969, p. 44, para. 77

[15] North Sea Continental Shelf, Judgment, I.C.J. Reports, 1969, p. 44, para. 77

[16] Continental Shelf, Judgment (Libyan Arab Jamahiriya/Malta), I.C.J. Reports 1985, pp. 29-30, para. 27

[17] VCLT, 1969, art 11

[18] North Sea Continental Shelf, Judgment, I.C.J. Reports, 1969, p. 43, para. 74

[19] North Sea Continental Shelf, Judgment, I.C.J. Reports, 1969, p. 42, para. 72

[20] North Sea Continental Shelf, Judgment, I.C.J. Reports, 1969, p. 42, para. 72

[21] Jurisdictional immunities of the state (Germany v. Italy: Greece intervening), ICJ, Judgment, 2012, p. 44, para. 115: the rule is “to be binding, inasmuch as they reflect customary law”

[22] Asylum case, ICJ Reports, 1950, p.266-389, Case concerning the right of passage over Indian territory, ICJ Reports, 1960

[23] Case concerning the right of passage over Indian territory, ICJ Reports, 1960, p.23

[24] Case concerning the right of passage over Indian territory, ICJ Reports, 1960, p.39

[25] Fisheries Case (United Kingdom v. Norway) ICJ Reports, 1951, p.131

[26] North Sea Continental Shelf, Judgment, I.C.J. Reports, 1969, para.32

[27] North Sea Continental Shelf, Judgment, I.C.J. Reports, 1969, para.32

Date: 2015-12-11; view: 711