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

Here there exists a multilateral treaty concerning the “the prohibitionof torture, the prohibition of slavery, fair trial rights, no punishmentwithout law, freedom of speech and freedom of religion”. Given that it istreaty, the framework governing the rules on treaties are found in the ViennaConvention on the Law of Treaties1. Under Article 26 of theVienna Convention on the law of treaties (VCLT), it must be certain that thestates are parties to the treaty, and the treaty has entered into force beforethe application of the law.2 Based on facts States C, Dand 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 Article26 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 itreflects customary international law3. In the Botswana andNamibia case4where there was an issue concerning the boundaries of the Kasikili/SeduduIsland, both parties relied upon the Angolan-German Treaty of July 18905. The ICJ found that Article26 reflects customary international law largely as the two accepted that theVienna Convention reflects customary law6. Therefore, it may beapplicable and the obligations and rules under article 26 and the ViennaConvention on the Law of treaties will be binding on states A and B.

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The other issue that arises here is that states A and B want to beparties to this multilateral treaty, which is the same subject matter of thebilateral treaty formed between the states A, and B. The rule governing thisissue is found in Article 53 of the VCLT7, which states that, atreaty is void if it goes against the ues cogens8, the factors laid down in Article53 such as torture. Based on several academic writers9, Article 53 can be appliedin this scenario as it also reflects customary international law10. In applying, the bilateraltreaty between states A and B permits the use of sleep deprivation to pressureto give information; this act of sleep deprivation is clearly torture. Therefore,the bilateral treaty will be void as it goes against ues cogens.The other issue here is that, states A and B want to enter into areservation to restrict some provisions of the multilateral treaty.

Article 19of the Vienna Convention on the Law of Treaties governs the rule of reservation11, which can be applicableto states A and B as it reflects customary law according to the Genocide Convention(Reservation) case12. Where several states madereservations to certain provisions to the UN convention on Genocide and theissue 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 thetreaty14.

The object and aim of themultilateral treaty is the protection of human rights. In applying, thereservation does not go against the aim of the treaty, as it does not stop theprotection of human rights it only limits the protection. However, given thatstate D strongly objects to this reservation, under Article 2015, it is stated that if astate objects to a reservation to a treaty. Article 20 can also be appliedbecause it reflects customary law. The treaty therefore does not apply tobetween the states making the reservation and the state objecting, thereforeStates A and B are still parties to the treaty, and concerning the objectingstate, the treaty will therefore not just be binding between the two states. STATEHOOD AND RECOGNITIONThe people of the region of East morti have claimed independence fromMortiana and are keen to enter into legal relations. The issue that arises hereis whether the people of East Morti has are entitled to separate from Mortianabased on the right to self-determination, because the outcome of a display ofthe right to self-determination is territory becoming independent16.

The right to self-determination does exist in international law under theUN charter, which is a binding decision, but it is subject to boundaries drawn17. The right toself-determination can arise in the context of colonisation18, however given that theregion were not colonised, it can also arise in the context of succession asillustrated in the Palestine Wall Advisory Opinion (2004) where theissue was concerning the legality of the wall constructed by Israel19. Similar instances haveoccurred in relation to Yugoslavia where the EC Arbitration Commission foundthat the right to self-determination can go beyond colonisation20, further illustrating thepoint that the right to self-determination is accessible to the people thatreside in a territory that is part of a state that is already existing, unlessthey can prove that they have an acquired the criteria for statehood under theArticle 1 of the 1993 Montevideo Convention21. Therefore, in applying,the region of East-morti can have the right the self-determination if theyfulfil the criteria set down in Article 1 of the Montevideo Convention.The criteria for statehood are; Permanent population22, according to the WesternSahara case23,there must be a population linked to the territory. Therefore, this is satisfiedas there is a population linked to the region of East-morti. Territory; herethe people of East-Morti must have a physical boundary that separates it fromits neighbouring states. Based on the facts, it is not fully certain whetherthere is a physical existence that separates it from its boundaries as thereare mere just a community within Mortiana, therefore this criterion may not besatisfied but it could be argued that it is.

Government; although it is notindicated on what kind of government, a state who has not fully satisfied thiscriterion does not cease to be a state24. An illustration of thispoint is an example of the situation in Syria in 201225.  Therefore, what is required is a governmentthat can exercise control of the territory and the population26, the extent of which thatis required depends on the territory, and also there needs to be arepresentative of the state i.

e. a representative that can be hold accountableif need be27.inapplying, based on the facts, the people of East-morti have elected one of itstribal leaders as the ‘supreme leader’, therefore this satisfies this criterionas there is a representative.Concerning the capacity to enter into legal relations, here a territory cannot be regardedas a state if it is under control either direct or indirect of another state28.This criterion means legal independence and not factual autonomy. Therefore, astate will exist of its territory if is not under the lawful sovereignauthority of another state, for example hong-kong is under the legal authorityof china and it has a territory, population and government but it is not astate. 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 mortihave claimed indepenceGiven thatthe criteria for statehood are partially satisfiedConcerning recognition, In the case of the region of East-morti, the capacity to enter into legalrelations with other notions will depend on the recognition by other states. However, concerning ethnic grounds. In addition, the EC Commission foundthat the right to self-determination would also not extend to ethic groupswithin a territory where as for example, it will not be applicable to Muslimstribes who reside in India.    1 Vienna Convention on the Law of Treaties

pdf > accessed 26th January 2018.2 Vienna Convention on the Law of Treaties

pdf > accessed 26th January 2018.3 Martin Dixon, Textbook on International Law  (Oxford University press, 7THedn, 2013) page 634 Case concerning Kasikili/Sedudu Island(Botswana/Namibia)  1999 ICJ Rep 10455 Malcolm N Shaw and Malcolm D. Evans, “Caseconcerning Kasikili/Sedudu Island (Botswana/Namibia)” (2000)  

cambridge.org/core/services/aop-cambridge-core/content/view/FDBF40F4AD246C5FF2D510A26820AE04/S0020589300064782a.pdf/i_case_concerning_kasikilisedudu_island_botswananamibia.pdf > accessed 26th January 20186 Case concerning Kasikili/Sedudu Island (Botswana/Namibia)1999ICJ Rep 10457 Vienna Convention on the Law of Treaties

pdf > accessed8 Rebecca M.M Wallace and Olga Martin-Ortega, InternationalLaw (Sweet & Maxwell) 7th edn) page 2649 Ulf Linderfalk, “The Creation of Jus Cogens –Making Sense of Article 53 of the Vienna Convention” (2011)

de/71_2011/71_2011_2_a_359_378.pdf > accessed 26th January 201810 Ulf Linderfalk, “The Creation of Jus Cogens –Making Sense of Article 53 of the Vienna Convention” (2011) accessed 26th January 201811 Vienna Convention on the Law of Treaties

un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf > accessed 26th January 2018.

12 Case Concerning Application of theConvention on the Prevention and Punishment of the Crime of Genocide(Bosnia-Herzegovina v. Yugoslavia), (1996)

pdf > accessed 26th January 2018. AntonioCassese, International law (Oxford university press, 2nd edn)13 Case Concerning Application of theConvention on the Prevention and Punishment of the Crime of Genocide(Bosnia-Herzegovina v. Yugoslavia), (1996) accessed 26th January 201814 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 theprinciples of self-determination” (2000) accessed 26th January 201817 Rebecca M.M Wallace and Olga Martin-Ortega, InternationalLaw (Sweet & Maxwell) 7th edn) page 343, M.K Nawaz, “themeaning and range of the principles of self-determination” (2000) accessed 26th January 20118 Martin Dixon, Textbook on International Law  (Oxford University press, 7THedn, 2013) page 17219 Legal Consequence of the Construction of a Wall inthe Occupied Palestine Territory (Advisory Opinion) 2004 accessed 26th January20 Alain Pellet, “the Opinions of the BadinterArbitration Committee , A Second Breath for the Self-determination of Peoples”(1992) accessed 26th January 201821 Martin Dixon, Textbook on International Law (OxfordUniversity press, 7TH edn, 2013) page 172, Alain Pellet, 22 Montevideo Convention on the Rights and Duties ofstates (1934) 23 Western Sahara Case (Advisory Opinion) (1975) accessed 26th January 2018 24 Ian Brownlie, “BasicDocuments in International Law” (Oxford, 2nd Edn) 25 Martin Dixon, Textbook on International Law (OxfordUniversity press, 7TH edn, 2013)26 Rosalyn Cohen, the concept ofstatehood in United Nations Practice, (1961) accessed 26thJanuary 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 NationsPractice, (1961) accessed 26thJanuary 2018.