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The Concept of Conventional International Law Situated Within the Framework of Obligation and the Framework of Authorization

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The Function of Public International Law

Abstract

The present chapter analyzes the concept of conventional international law from the perspectives of the framework of obligation and the framework of authorization. In comparison with the concepts of general principles of law and customary international law—unwritten public international law, the concept of conventional international law may be seen as relatively unproblematic, because it consists of textually formulated rules to which States have, or have not, given their consent. Moreover, in contrast with the concepts of general principles of law and customary international law, the concept of conventional international law, in the form of the Vienna Convention on the Law of Treaties, contains within itself a body of ‘secondary’ rules, rules about conventional international law. Nevertheless, when analyzed from the perspectives of the framework of obligation and the framework of authorization, the concept of conventional international law is incoherent, relying on inconsistent assumptions relating to the origin of rules of public international law and to the way in which the members of international society are situated in respect of each other.

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Notes

  1. 1.

    Harvard Research in International Law 1935, Article 1 (a), p. 657.

  2. 2.

    Harvard Research in International Law 1935, Comment to Article 1 (a), pp. 690–691.

  3. 3.

    Harvard Research in International Law 1935, Article 20, p. 661.

  4. 4.

    Harvard Research in International Law 1935, Comment to Article 1 (a), p. 692.

  5. 5.

    McNair 1961, p. 4.

  6. 6.

    Reuter 1995, paras 63–75.

  7. 7.

    Klabbers 1996, pp. 51–54.

  8. 8.

    Lauterpacht 1927, para 70; Grotius 1964, Book II, Chap. XV, Section I; Dupuy 2002, pp. 26, 128–130.

  9. 9.

    Raftopoulos 1990, pp. 207–214, 238–254.

  10. 10.

    Report of the Appellate Body, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 15: ‘The WTO Agreement is a treaty—the international equivalent of a contract.’

  11. 11.

    Friedmann 1964, p. 124; Zemanek 1997, paras 320–331.

  12. 12.

    Raftopoulos 1990, passim.

  13. 13.

    Bergbohm 1877, pp. 79–81.

  14. 14.

    Triepel 1899, pp. 35–45.

  15. 15.

    Triepel 1899, pp. 49–62.

  16. 16.

    Triepel 1899, pp. 29–35; Dupuy 2002, pp. 123–127.

  17. 17.

    Roxburgh 1917, para 3.

  18. 18.

    Roxburgh 1917, para 38.

  19. 19.

    McNair 1930, pp. 101–102.

  20. 20.

    McNair 1930, pp. 105–106.

  21. 21.

    McNair 1930, pp. 112–114.

  22. 22.

    McNair 1961, Chap. XIV.

  23. 23.

    McNair 1930, pp. 115–116.

  24. 24.

    McNair 1930, pp. 115, 116–118.

  25. 25.

    Dupuy 2002, pp. 141–145.

  26. 26.

    Strupp 1934, pp. 324–329; Waldock 1962, pp. 74–76.

  27. 27.

    Fitzmaurice 1958a, pp. 157–160.

  28. 28.

    Lauterpacht 1936, p. 54.

  29. 29.

    Lauterpacht 1936, p. 54.

  30. 30.

    Case of the S.S. Wimbledon, Judgment No. 1 of 17 August 1923, Series A.—No. 1, 25: ‘The Court declines to see in the conclusion of any Treaty by which a State undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty. No doubt any convention creating an obligation of this kind places a restriction upon the exercise of the sovereign rights of the State, in the sense that it requires them to be exercised in a certain way. But the right of entering into international engagements is an attribute of State sovereignty.’

    Klabbers 1998, pp. 359–364; Dupuy 2002, pp. 93–94.

  31. 31.

    Report of the Appellate Body, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 15: ‘It is self-evident that in an exercise of their sovereignty, and in pursuit of their own respective national interests, the Members of the WTO have made a bargain. In exchange for the benefits they expect to derive as Members of the WTO, they have agreed to exercise their sovereignty according to the commitments they have made in the WTO Agreement.’

  32. 32.

    Tomuschat 1999, Chap. IX, para 9.

  33. 33.

    Case Concerning the Gabćíkovo-Nagymaros Project, Judgment of 25 September 1997, ICJ Reports 1997, 7, para 114.

    Klabbers 1996, pp. 37–40; Dupuy 2002, pp. 123–127.

  34. 34.

    Tomuschat 1999, Chap. IX, para 12.

  35. 35.

    Basdevant 1936, pp. 640–643; Weil 1992, pp. 66–81.

  36. 36.

    Triepel 1899, pp. 45–62.

  37. 37.

    Case Concerning Kasikili/Sedudu Island, Judgment of 13 December 1999, ICJ Reports 1999, 1045, para 18; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136, para 94; Case Concerning Certain Questions of Mutual Assistance in Criminal Matters, Judgment of 4 June 2008, ICJ Reports 2008, 177, paras 153–154; Dispute Regarding Navigational and Related Rights, Judgment of 13 July 2009, ICJ Reports 2009, 213, para 47.

    Report of the Appellate Body, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 17; Report of the Appellate Body, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 10.

  38. 38.

    Case of the S.S. “Wimbledon”, Judgment No. 1 of 17 August 1923, Series A.—No. 1, 22; ICJ, Case Concerning Kasikili/Sedudu Island, Judgment of 13 December 1999, ICJ Reports 1999, 1045, para 20.

    Report of the Appellate Body, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 17–18; Report of the Appellate Body, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 11.

    Vattel 1916, Book II, para 271; Yasseen 1976, pp. 25–26; Gardiner 2008, pp. 161–177.

  39. 39.

    Dispute Regarding Navigational and Related Rights, Judgment of 13 July 2009, ICJ Reports 2009, 213, paras 51–56.

    Case Concerning the Air Service Agreement of 27 March 1946 between the United States of America and France, Arbitral Award of 9 December 1978, XVIII Reports of International Arbitral Awards, 417–493, para 48.

    Report of the Appellate Body, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 18; Report of the Appellate Body, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 11–12.

    Vattel 1916, Book II, para 285; Yasseen 1976, pp. 33–36; Gardiner 2008, pp. 177–189.

  40. 40.

    Case Concerning Kasikili/Sedudu Island, Judgment of 13 December 1999, ICJ Reports 1999, 1045, paras 43–45; Dispute Regarding Navigational and Related Rights, Judgment of 13 July 2009, ICJ Reports 2009, 213, paras 68–69 (permanent settlement).

    Report of the Appellate Body, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 18; Report of the Appellate Body, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 12.

    Vattel 1916, Book II, para 287; Yasseen 1976, pp. 55–59; Gardiner 2008, pp. 189–201.

  41. 41.

    Report of the Appellate Body, European Communities – Customs Classification of Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R, para 238.

  42. 42.

    Corfu Channel Case (Merits), Judgment of 9 April 1949, ICJ Reports 1949, 4, 24; Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Preliminary Objections), Judgment of 1 April 2011, not yet reported, para 133.

    Report of the Appellate Body, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 23; Report of the Appellate Body, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 12.

    Vattel 1916, Book II, para 283; Yasseen 1976, pp. 71–75; Gardiner 2008, pp. 159–161.

  43. 43.

    Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Preliminary Objections), Judgment of 1 April 2011, Dissenting Opinion of Judge Cançado Trindade, not yet reported, paras 64–87.

    Gardiner 2008, pp. 200–201.

  44. 44.

    Dispute Regarding Navigational and Related Rights, Judgment of 13 July 2009, ICJ Reports 2009, 213, para 48: ‘A treaty provision which has the purpose of limiting the sovereign powers of a State must be interpreted like any other provision of a treaty, i.e. in accordance with the intention of its authors as reflected by the text of the treaty and the other relevant factors in terms of interpretation.’; paras 63–66.

    Report of the Appellate Body, European Communities – Customs Classification of Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, para 84: ‘The purpose of treaty interpretation under Article 31 of the Vienna Convention is to ascertain the common intentions of the parties. These common intentions cannot be ascertained on the basis of the subjective and unilaterally determined “expectations” of one of the parties to a treaty.’

    Vattel 1916, Book II, para 270; Yasseen 1976, pp. 16, 25–26, 57–59.

  45. 45.

    Ost and Van de Kerchove 2002, pp. 391–411.

  46. 46.

    Koskenniemi 2005, pp. 333–345.

  47. 47.

    See, for example, Article 3.2 of the DSU: ‘The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with the customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations in the covered agreements.’

  48. 48.

    Report of the Appellate Body, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, para 156: ‘Turning to the chapeau of Article XX, we consider that it embodies the recognition on the part of the WTO Members of the need to maintain a balance of rights and obligations between the right of a Member to invoke one or another of the exceptions of Article XX, specified in paras (a) to (j), on the one hand, and the substantive rights of the other Members under the GATT 1994, on the other hand. Exercise by one Member of its right to invoke an exception, such as Article XX(g), if abused or misused, will, to that extent, erode or render naught the substantive treaty rights in, for example, Article XI:1, of other Members. Similarly, because the GATT 1994 itself makes available the exceptions of Article XX, in recognition of the legitimate nature of the policies and interests there embodied, the right to invoke one of those exceptions is not to be rendered illusory. The same concept may be expressed from a slightly different angle of vision, thus, a balance must be struck between the right of a Member to invoke an exception under Article XX and the duty of that same Member to respect the treaty rights of other Members. To permit one Member to abuse or misuse its right to invoke an exception would be effectively to allow that Member to degrade its own treaty obligations as well as to devalue the treaty rights of other Members. If the abuse or misuse is sufficiently grave or extensive, the Member, in effect, reduces its treaty obligation to a merely facultative one and dissolves its juridical character, and, in doing so, negates altogether the treaty rights of other Members. The chapeau was installed at the head of the list of “General Exceptions” in Article XX to prevent such far-reaching consequences.’

  49. 49.

    Report of the Appellate Body, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, para 159: ‘The task of interpreting and applying the chapeau is, hence, essentially the delicate one of locating and marking out a line of equilibrium between the right of a Member to invoke an exception under Article XX and the rights of the other Members under varying substantive provisions (e.g., Article XI) of the GATT 1994, so that neither of the competing rights will cancel out the other and thereby distort and nullify or impair the balance of rights and obligations constructed by the Members themselves in that Agreement. The location of the line of equilibrium, as expressed in the chapeau, is not fixed and unchanging; the line moves as the kind and the shape of the measures at stake vary and as the facts making up specific cases differ.’

  50. 50.

    Diversion of Water from the Meuse, Judgment of 28 June 1937, Series A./B.—No. 70, 4, 21: ‘The Treaty brought into existence a certain regime which results from all of its provisions in conjunction. It forms a complete whole, the different provisions of which cannot be dissociated from the other and considered apart by themselves.’

  51. 51.

    Diversion of Water from the Meuse, Judgment of 28 June 1937, Series A./B.—No. 70, 4, 25–27.

  52. 52.

    Diversion of Water from the Meuse, Judgment of 28 June 1937, Series A./B.—No. 70, 4, 31–32.

  53. 53.

    Diversion of Water from the Meuse, Judgment of 28 June 1937, Series A./B.—No. 70, 4, 29–30.

  54. 54.

    Diversion of Water from the Meuse, Judgment of 28 June 1937, Dissenting Opinion Vice-President Hurst, Series A./B. – No. 70, 4, 34–35; Dissenting Opinion Judge Anzilotti, para 4.

  55. 55.

    Diversion of Water from the Meuse, Judgment of 28 June 1937, Series A./B.—No. 70, 4, 20–25: ‘The Court cannot refrain from comparing the case of the Belgian lock with that of The Netherlands lock at Bosscheveld. Neither of these locks constitutes a feeder, yet both of them discharge their lock-water into the canal, and thus take part in feeding it with water otherwise than through the treaty feeder, though without producing an excessive current in the Zuid-Willemsvaart. In these circumstances, the Court finds it difficult to admit that The Netherlands are now warranted in complaining of the construction and operation of a lock of which they themselves set an example in the past.’

  56. 56.

    Diversion of Water from the Meuse, Judgment of 28 June 1937, Dissenting Opinion Judge Anzilotti, Series A./B.—No. 70, 4, para 3; Separate Opinion Judge Hudson, 75–78.

  57. 57.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, ICJ Reports 1997, 7, paras 27–59.

  58. 58.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, ICJ Reports 1997, 7, paras 60–88.

  59. 59.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, ICJ Reports 1997, 7, para 114.

  60. 60.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, ICJ Reports 1997, 7, para 132.

  61. 61.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, ICJ Reports 1997, 7, para 133.

  62. 62.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, ICJ Reports 1997, 7, para 142.

  63. 63.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, ICJ Reports 1997, 7, para 144.

  64. 64.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, ICJ Reports 1997, 7, para 145.

  65. 65.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, ICJ Reports 1997, 7, para 146.

  66. 66.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, ICJ Reports 1997, 7, para 147.

  67. 67.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, Declaration President Schwebel, ICJ Reports 1997, 7; Separate Opinion Judge Bedjaoui, paras 28–52; Dissenting Opinion Judge Ranjeva, passim; Dissenting Opinion Judge Herczegh, 190–196; Dissenting Opinion Judge Fleischhauer, para 1.

  68. 68.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, Separate Opinion Vice-President Weeramantry, ICJ Reports 1997, 7, Section A.

  69. 69.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, Separate Opinion Judge Koroma, ICJ Reports 1997, 7, 145–152; Dissenting Opinion Judge Oda, paras 21–24; Dissenting Opinion Judge Parra-Aranguren, paras 2–15; Dissenting Opinion Judge ad hoc Skubiszewski, Sections I and III.

  70. 70.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, Dissenting Opinion Judge Vereshchetin, ICJ Reports 1997, 7, 219–226; Dissenting Opinion Judge Parra-Araguren, paras 16–19.

  71. 71.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, Dissenting Opinion Judge ad hoc Skubiszewski, ICJ Reports 1997, 7, Section II.

  72. 72.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, Declaration Judge Rezek, ICJ Reports 1997, 7.

  73. 73.

    Case Concerning the Gabćikovo-Nagymaros Project, Judgment of 25 September 1997, Separate Opinion Vice-President Weeramantry, ICJ Reports 1997, 7, Section C.

  74. 74.

    Case Concerning Certain German Interests in Polish Upper Silesia (Merits), Judgment No. 7 of 25 May 1926, Series A.—No. 7, 29: ‘A treaty only creates law as between the States which are parties to it (…)’.

  75. 75.

    Roxburgh 1917, para 23; McNair 1961, Chap. XVI, pp. 309–321; Chinkin 1993, pp. 25–26; Reuter 1995, paras 153, 194.

  76. 76.

    Harvard Research in International Law 1935, Article 18, p. 661.

  77. 77.

    Chinkin 1993, pp. 32–34.

  78. 78.

    Chinkin 1993, pp. 32–34, 39–44.

  79. 79.

    Harvard Research in International Law 1935, Comment to Article 18 (b), p. 936.

  80. 80.

    Roxburgh 1917, para 24.

  81. 81.

    McNair 1961, Chap. XII, pp. 213–224; Chap. XVI, p. 321.

  82. 82.

    Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Ålands Islands Question, 5 September 1920, League of Nations Official Journal, Special Supplement No. 3, October 1920, 3, 14.

  83. 83.

    Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Ålands Islands Question, 5 September 1920, League of Nations Official Journal, Special Supplement No. 3, October 1920, 15.

  84. 84.

    Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Ålands Islands Question, 5 September 1920, League of Nations Official Journal, Special Supplement No. 3, October 1920, 15–16.

  85. 85.

    Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Ålands Islands Question, 5 September 1920, League of Nations Official Journal, Special Supplement No. 3, October 1920, 16–17, 19.

  86. 86.

    Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Ålands Islands Question, 5 September 1920, League of Nations Official Journal, Special Supplement No. 3, October 1920, 17–18.

  87. 87.

    Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Ålands Islands Question, 5 September 1920, League of Nations Official Journal, Special Supplement No. 3, October 1920, 18.

  88. 88.

    Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Ålands Islands Question, 5 September 1920, League of Nations Official Journal, Special Supplement No. 3, October 1920, 18.

  89. 89.

    Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Ålands Islands Question, 5 September 1920, League of Nations Official Journal, Special Supplement No. 3, October 1920, 18: ‘As concerns Sweden, no doubt she has no contractual rights under the provisions of 1856 as she was not a signatory Power. Neither can she make use of these provisions as a third party in whose favour the contracting parties had created a right under the Treaty, since – though it may, generally speaking, be possible to create a right in favour of a third party in an international convention – it is clear that this possibility is hardly admissible in the case in point, seeing that the Convention of 1856 does not mention Sweden, either as having any direct rights under its provisions, or even as being intended to profit indirectly by the provisions.’

  90. 90.

    Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Ålands Islands Question, 5 September 1920, League of Nations Official Journal, Special Supplement No. 3, October 1920, 18-19: ‘Nevertheless by reason of the objective nature of the settlement of the Ålands Islands Question by the Treaty of 1856, Sweden may, as a Power directly interested, insist upon compliance with the provisions of this Treaty in so far as the contracting parties have not cancelled it.’

  91. 91.

    Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Ålands Islands Question, 5 September 1920, League of Nations Official Journal, Special Supplement No. 3, October 1920, 19.

  92. 92.

    Case of the Free Zones of Upper Savoy and the District of Gex, Judgment of 7 June 1932, Series A./B.—No. 46, 96, 147: ‘It follows from all the foregoing that the creation of the Gex zone forms part of a territorial arrangement in favour of Switzerland, made as a result of an agreement between that country and the Powers, which agreement confers on this zone the character of a contract to which Switzerland is a Party.’

  93. 93.

    Case of the Free Zones of Upper Savoy and the District of Gex, Judgment of 7 June 1932, Series A./B.—No. 46, 96, 148: ‘All the instruments above mentioned and the circumstances in which they were drawn up establish, in the Court’s opinion, that the intention of the Powers was, beside “rounding out” the territory of Geneva and ensuring direct communication between the Canton of Geneva and the rest of Switzerland, to create in favour of Switzerland a right, on which that country could rely, to the withdrawal of the French customs barrier behind the political frontier of the District of Gex, that is to say, of the Gex free zone.’

  94. 94.

    Case of the Free Zones of Upper Savoy and the District of Gex, Judgment of 7 June 1932, Series A./B.—No. 46, 96, 147–148: ‘The Court, having reached this conclusion simply on the basis of an examination of the situation of fact in regard to this case, need not consider the legal nature of the Gex zone from the point of view of whether it constitutes a stipulation in favour of a third Party. But were the matter also to be envisaged from this aspect, the following observations should be made: It cannot be lightly presumed that stipulations favourable to a third State have been adopted with the object of creating an actual right in its favour. There is however nothing to prevent the will of sovereign States from having this object and this effect. The question of the existence of a right acquired under an instrument drawn between other States is therefore one to be decided in each particular case: it must be ascertained whether the States which have stipulated in favour of a third State meant to create for that State an actual right which the latter has accepted as such.’

  95. 95.

    Case of the Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, Series A.—No. 22, 19–20, 20: ‘Whereas all these instruments, taken together, as also the circumstances in which they were executed, establish, in the Court’s opinion, that the intention of the Powers was, besides “rounding out” the territory of Geneva and assuring direct communication between the Canton of Geneva and the rest of Switzerland, to create in favour of Switzerland a right, on which she could rely, to the withdrawal of the French customs barrier from the political frontier of the District of Gex, that is to say, a right to the free zone of Gex; Whereas the Court, having reached this conclusion simply on the basis of an examination of the situation of fact in regard to this case, need not decide as to the extent to which international law takes cognizance of the principle of “stipulations in favour of third Parties”.’

  96. 96.

    Chinkin 1993, pp. 27–28.

  97. 97.

    Case of the Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, Dissenting Opinion Judge Nyholm, Series A.—No. 22, 26–27.

  98. 98.

    Case of the Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, Dissenting Opinion Judge Negulesco, Series A.—No. 22, 36-39, 38: ‘As the Treaty says nothing, it is to be concluded that the Great Powers signatory of the Treaty of 1815 are the holders of the rights to be exercised against France. It is impossible, by reason of the silence of a treaty, to create rights in favour of third States. It is clear that Switzerland has a great interest in the existence of this zone, but this interest does not justify the exercise of a right.’

  99. 99.

    Case of the Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, Dissenting Opinion Judge Dreyfus, Series A.—No. 22, 42–43 (contractual relation), 43–45 (stipulation pour autrui).

  100. 100.

    Chinkin 1993, p. 32.

  101. 101.

    Chinkin 1993, p. 32.

  102. 102.

    Roxburgh 1917, para 38; McNair 1930, pp. 112–114; Waldock 1962, pp. 77–81.

  103. 103.

    International Status of South West-Africa, Advisory Opinion of 11 July 1950, Separate Opinion Sir Arnold McNair, ICJ Reports 1950, 128, 153–155: ‘From time to time it happens that a group of great Powers, or a large number of States both great and small, assume a power to create by multipartite treaty some new international regime or status, which soon acquires a degree of acceptance and durability extending beyond the limits of the actual contracting parties, and giving it an objective existence. This power is used when some public interest is involved, and its exercise often occurs in the course of the peace settlement at the end of a great war.’

  104. 104.

    Danilenko 1993, pp. 61–64.

  105. 105.

    Harvard Research in International Law 1935, Comment on Article 18 (a), pp. 922–923.

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    Jan Anne Vos

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Vos, J.A. (2013). The Concept of Conventional International Law Situated Within the Framework of Obligation and the Framework of Authorization. In: The Function of Public International Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-861-3_9

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