Here case[4] where there was an issue concerning the

Here there exists a multilateral treaty concerning the “the prohibition
of torture, the prohibition of slavery, fair trial rights, no punishment
without law, freedom of speech and freedom of religion”. Given that it is
treaty, the framework governing the rules on treaties are found in the Vienna
Convention on the Law of Treaties1. Under Article 26 of the
Vienna Convention on the law of treaties (VCLT), it must be certain that the
states are parties to the treaty, and the treaty has entered into force before
the application of the law.2 Based on facts States C, D
and E are all parties to the treaty, state A and B are not. Given by the date
(2016), it is certain that the treaty has entered into force.  However, the issue that arises is whether Article
26 of the VCLT can be applicable to states A and B as they are non-parties.
Article 26 will apply to states A and B who are not parties to the treaty if it
reflects customary international law3. In the Botswana and
Namibia case4
where there was an issue concerning the boundaries of the Kasikili/Sedudu
Island, both parties relied upon the Angolan-German Treaty of July 18905. The ICJ found that Article
26 reflects customary international law largely as the two accepted that the
Vienna Convention reflects customary law6. Therefore, it may be
applicable and the obligations and rules under article 26 and the Vienna
Convention on the Law of treaties will be binding on states A and B.

The other issue that arises here is that states A and B want to be
parties to this multilateral treaty, which is the same subject matter of the
bilateral treaty formed between the states A, and B. The rule governing this
issue is found in Article 53 of the VCLT7, which states that, a
treaty is void if it goes against the ues cogens8, the factors laid down in Article
53 such as torture. Based on several academic writers9, Article 53 can be applied
in this scenario as it also reflects customary international law10. In applying, the bilateral
treaty between states A and B permits the use of sleep deprivation to pressure
to give information; this act of sleep deprivation is clearly torture. Therefore,
the bilateral treaty will be void as it goes against ues cogens.

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The other issue here is that, states A and B want to enter into a
reservation to restrict some provisions of the multilateral treaty. Article 19
of the Vienna Convention on the Law of Treaties governs the rule of reservation11, which can be applicable
to states A and B as it reflects customary law according to the Genocide Convention
(Reservation) case12. Where several states made
reservations to certain provisions to the UN convention on Genocide and the
issue was whether those states could still be parties to the convention13. Under Article 19,
reservations are allowed unless it goes against the subject and aim of the
treaty14. The object and aim of the
multilateral treaty is the protection of human rights. In applying, the
reservation does not go against the aim of the treaty, as it does not stop the
protection of human rights it only limits the protection. However, given that
state D strongly objects to this reservation, under Article 2015, it is stated that if a
state objects to a reservation to a treaty. Article 20 can also be applied
because it reflects customary law. The treaty therefore does not apply to
between the states making the reservation and the state objecting, therefore
States A and B are still parties to the treaty, and concerning the objecting
state, the treaty will therefore not just be binding between the two states.

 

STATEHOOD AND RECOGNITION

The people of the region of East morti have claimed independence from
Mortiana and are keen to enter into legal relations. The issue that arises here
is whether the people of East Morti has are entitled to separate from Mortiana
based on the right to self-determination, because the outcome of a display of
the right to self-determination is territory becoming independent16.

The right to self-determination does exist in international law under the
UN charter, which is a binding decision, but it is subject to boundaries drawn17. The right to
self-determination can arise in the context of colonisation18, however given that the
region were not colonised, it can also arise in the context of succession as
illustrated in the Palestine Wall Advisory Opinion (2004) where the
issue was concerning the legality of the wall constructed by Israel19. Similar instances have
occurred in relation to Yugoslavia where the EC Arbitration Commission found
that the right to self-determination can go beyond colonisation20, further illustrating the
point that the right to self-determination is accessible to the people that
reside in a territory that is part of a state that is already existing, unless
they can prove that they have an acquired the criteria for statehood under the
Article 1 of the 1993 Montevideo Convention21. Therefore, in applying,
the region of East-morti can have the right the self-determination if they
fulfil the criteria set down in Article 1 of the Montevideo Convention.

The criteria for statehood are; Permanent population22, according to the Western
Sahara case23,
there must be a population linked to the territory. Therefore, this is satisfied
as there is a population linked to the region of East-morti. Territory; here
the people of East-Morti must have a physical boundary that separates it from
its neighbouring states. Based on the facts, it is not fully certain whether
there is a physical existence that separates it from its boundaries as there
are mere just a community within Mortiana, therefore this criterion may not be
satisfied but it could be argued that it is. Government; although it is not
indicated on what kind of government, a state who has not fully satisfied this
criterion does not cease to be a state24. An illustration of this
point is an example of the situation in Syria in 201225.  Therefore, what is required is a government
that can exercise control of the territory and the population26, the extent of which that
is required depends on the territory, and also there needs to be a
representative of the state i.e. a representative that can be hold accountable
if need be27.in
applying, based on the facts, the people of East-morti have elected one of its
tribal leaders as the ‘supreme leader’, therefore this satisfies this criterion
as there is a representative.

Concerning the capacity to enter into legal relations, here a territory cannot be regarded
as a state if it is under control either direct or indirect of another state28.
This criterion means legal independence and not factual autonomy. Therefore, a
state will exist of its territory if is not under the lawful sovereign
authority of another state, for example hong-kong is under the legal authority
of china and it has a territory, population and government but it is not a
state. To enter into legal relations with other states, state needs independence.
With indepence, there will will be no requirement of permission.  Based on the facts, the region of east morti
have claimed indepence

Given that
the criteria for statehood are partially satisfied

Concerning recognition, In the case of the region of East-morti, the capacity to enter into legal
relations with other notions will depend on the recognition by other states.

 

However, concerning ethnic grounds. In addition, the EC Commission found
that the right to self-determination would also not extend to ethic groups
within a territory where as for example, it will not be applicable to Muslims
tribes who reside in India.

 

 

 

 

1 Vienna Convention on the Law of Treaties accessed 26th January 2018.

2 Vienna Convention on the Law of Treaties accessed 26th January 2018.

3 Martin Dixon, Textbook on International Law  (Oxford University press, 7TH
edn, 2013) page 63

4 Case concerning Kasikili/Sedudu Island
(Botswana/Namibia)  1999 ICJ Rep 1045

5 Malcolm N Shaw and Malcolm D. Evans, “Case
concerning Kasikili/Sedudu Island (Botswana/Namibia)” (2000)   accessed 26th January 2018

6 Case concerning Kasikili/Sedudu Island (Botswana/Namibia)
1999
ICJ Rep 1045

7 Vienna Convention on the Law of Treaties accessed

8 Rebecca M.M Wallace and Olga Martin-Ortega, International
Law (Sweet & Maxwell) 7th edn) page 264

9 Ulf Linderfalk, “The Creation of Jus Cogens –
Making Sense of Article 53 of the Vienna Convention” (2011) accessed 26th January 2018

10 Ulf Linderfalk, “The Creation of Jus Cogens –
Making Sense of Article 53 of the Vienna Convention” (2011) accessed 26th January 2018

11 Vienna Convention on the Law of Treaties accessed 26th January 2018.

12 Case Concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia-Herzegovina v. Yugoslavia), (1996) accessed 26th January 2018. Antonio
Cassese, International law (Oxford university press, 2nd edn)

13 Case Concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia-Herzegovina v. Yugoslavia), (1996) accessed 26th January 2018

14 Vienna Convention on the Law of Treaties accessed 26th January 2018.

15 Vienna Convention on the Law of Treaties accessed 26th January 2018.

16 M.K Nawaz, “the meaning and range of the
principles of self-determination” (2000) accessed 26th January 2018

17 Rebecca M.M Wallace and Olga Martin-Ortega, International
Law (Sweet & Maxwell) 7th edn) page 343, M.K Nawaz, “the
meaning and range of the principles of self-determination” (2000) accessed 26th January 201

18 Martin Dixon, Textbook on International Law  (Oxford University press, 7TH
edn, 2013) page 172

19 Legal Consequence of the Construction of a Wall in
the Occupied Palestine Territory (Advisory Opinion) 2004 accessed 26th January

20 Alain Pellet, “the Opinions of the Badinter
Arbitration Committee , A Second Breath for the Self-determination of Peoples”
(1992) accessed 26th January 2018

21 Martin Dixon, Textbook on International Law (Oxford
University press, 7TH edn, 2013) page 172, Alain Pellet,

22 Montevideo Convention on the Rights and Duties of
states (1934)

23 Western Sahara Case (Advisory Opinion) (1975)
accessed 26th January 2018

 

24 Ian Brownlie, “Basic
Documents in International Law” (Oxford, 2nd Edn)

25 Martin Dixon, Textbook on International Law (Oxford
University press, 7TH edn, 2013)

26 Rosalyn Cohen, the concept of
statehood in United Nations Practice, (1961) accessed 26th
January 2018.

27 Rebecca M.M Wallace and Olga Martin-Ortega, International Law
(Sweet & Maxwell) 7th edn)

28 Rosalyn Cohen, the concept of statehood in United Nations
Practice, (1961) accessed 26th
January 2018.