1. Bughartz v. Switzerland 2. Pretty v. UK
Facts: the applicant was dying of a neuron disease. She was paralyzed but could make decisions. She wanted to die to be spared of suffering and indignity but could not do it by herself. She thus wanted her husband to help her commit suicide. However, it was a crime to assist another to commit suicide under the British laws and her reuest to guarantee guaran tee her husband freedom from prosecution if he helped her was refused. !omplaint: !omplaint: "he "he appl applic ican antt clai claime med d that that the the #.$. #.$. viol violat ated ed %rtic rticle le & 'pro 'prohi hibi biti tion on of inhuman or degrading treatment or punishment(, %rticle ) 'right to life(, %rticle * 'right to respect for private life(, %rticle + 'freedom of conscience( and %rticle - 'prohibition of discrimination( Holding: Holding: the !H/ found no violation of article ), &, *, + and /easoning: /easoning: %rticle ) � en0oined States to refrain from the unlawful taking of life and to take take appro appropr pria iate te steps steps to safe safegu guar ard d lives lives.. %rtic rticle le ) coul could d not not be inte interp rpre rete ted d as conferring a right to die so there was no violation of article ). 1oreover, as article & was construed in con0unction with %rticle ) there was no violation of article & either. 3. Piandiong v. Philippines 4. Kosiek v. Gerany !. "ohnston v. #reland $e%eren&es' $e%eren&es' (1)*+, -/$ 10 )+)0*2 (1)*+, ) -/$$ 23 inks' Bailii Bailii -/$ -/$ Bailii /udo& /udo& "udge "udgent nt 56erit 56erits s and 7ust 7ust satis satis%a& %a&tio tion8 n8 Preli Preliina inary ry o97e&t o97e&tion ion re7e&t re7e&ted ed 5vi&t 5vi&ti8 i8:: Preli Preliina inary ry o97e&t o97e&tion ion re7e&t re7e&ted ed 5non;e 5non;e
rt. >rt. *: Pe&uniary daage ? &lai re7e&ted: @on;pe&uniary daage ? %inding o% violation su%%i&ient: osts and erti&le 14 sa%eguards persons who are pla& pla&ed ed in analog analogous ous situat situation ionsC sC agains againstt dis&ri dis&riin inato atory ry di%%er di%%eren& en&es es o% treatent in the e;B prin&iple5>;B and ;D8. ;D8 . >n agreeent on %urther prolongation o% the 9oundary proved di%%i&ult 9e&ause Denark and @etherlands wished this prolongation to take pla&e 9ased on the eFuidistan eFuidistan&e &e prin&iple 5B;- and D;-8 where D;-8 where as Gerany
was o% the view that together these two 9oundaries would produ&e an ineFuita9le result %or her. Gerany stated that due to its &on&ave &oastline su&h a line would result in her loosing out on her share o% the &ontinental shel% 9ased on proportionality to the length o% its @orth Sea &oastline. Ahe ourt had to de&ide the prin&iples and rules o% international law appli&a9le to this deliitation. #n doing so the &ourt had to de&ide i% the prin&iples espoused 9y the parties were 9inding on the parties either through treaty law or &ustoary international law. uestions 9e%ore the ourt 5as relevant to this post8' #s Gerany under a legal o9ligation to a&&ept the eFuidistan&e;spe&ial &ir&ustan&es prin&iple &ontained in >rti&le + o% the Geneva onvention either as a &ustoary international law rule or on the 9asis o% the Geneva onventionH Ahe ourtCs De&ision' Ahe use o% the eFuidistan&e ethod had not &rystallised into &ustoary law and was is not o9ligatory %or the deliitation o% the areas in the @orth Sea related to the present pro&eedings. $elevant Eindings o% the ourt' @ature o% the treaty o9ligation' #s the 1)!* Geneva onvention and in parti&ular >rti&le + 9inding on GeranyH 1. >rti&le + o% the Geneva onvention on the ontinental Shel% states that unless the parties have agreed on a ethod %or deliitation or unless spe&ial &ir&ustan&es erti&le +8. Gerany has signed 9ut not rati%ied the Geneva onvention while @etherlands and Denark are parties to the onvention. Ahe latter two States argue that while Gerany is not a party to the onvention 5not having rati%ied it8 she is still 9ound 9y >rti&le + o% the onvention 9e&ause' IJ518 9y &ondu&t 9y pu9li& stateents and pro&laations and in other ways the $epu9li& has unilaterally assued the o9ligations o% the onvention: or has ani%ested its a&&eptan&e o% the &onventional regie: or has re&ognized it as 9eing generally appli&a9le to the deliitation o% &ontinental shel% areasJ 528 the Eederal $epu9li& had held itsel% out as so assuing a&&epting or re&ognizing in su&h a anner as to &ause other States and in parti&ular Denark and the @etherlands to rely on the attitude thus taken up 5the latter is &alled the prin&iple o% estoppel8. 2. Ahe ourt re7e&ted the %irst arguent. #t stated that only a very de%inite very &onsistent &ourse o% &ondu&t on the part o% a StateC would allow the &ourt to presue that a State had soehow 9e&oe 9ound 9y a treaty 59y a eans other than in a %oral anner' i.e. rati%i&ation8 when the State was at all ties %ully a9le and entitled toJC a&&ept the treaty &oitents in a %oral anner. Ahe ourt held that Gerany had not unilaterally assued o9ligations under the onvention. Ahe &ourt also took noti&e o% the %a&t that even i% Gerany rati%ied the treaty she had the option o% entering into a reservation on >rti&le + %ollowing whi&h that parti&ular arti&le would no longer 9e appli&a9le to Gerany 5i.e. even i% one were to assue that Gerany had intended to 9e&oe a party to the onvention it does not presuppose that it would have also undertaken those o9ligations &ontained in >rti&le +8. 3. @B' Ahe =ienna onvention on the aw o% Areaties o% 1)+) 5=A8 whi&h &ae into %or&e in 1)* dis&usses ore %ully the o9ligations o% third States to treaties. #t &learly stipulates that an o9ligation arises %or a third State %ro a provision o% a treaty only i% 518 the parties to the treaty intend the provision to &reate this o9ligation %or the third States: and 528 the third State e. 3! o% the =A8. Ahe =A was not in %or&e when the #" deli9erated on this &ase. /owever as seen a9ove the #"Cs position was &onsistent the =A. 5See the relevant provisions o% the =ienna onvention on the aw o% Areaties8.
4. Ahe &ourt held that the erti&le + to 9e&oe 9inding on Gerany ? 9ut held that GeranyCs a&tion did not support an arguent %or estoppel. Ahe &ourt also held that the ere %a&t that Gerany ay not have spe&i%i&ally o97e&ted to the eFuidistan&e prin&iple as &ontained in >rti&le + is not su%%i&ient to state that the prin&iple is now 9inding upon it. !. #n &on&lusion the &ourt held that Gerany had not a&ted in any way to in&ur o9ligations &ontained in >rti&le + o% the Geneva onvention. Ahe eFuidistan&e ? spe&ial &ir&ustan&es rule was not 9inding on G erany 9y way o% treaty. @ature o% the &ustoary international law o9ligation' #s Gerany 9ound 9y the provisions o% >rti&le + o% the Geneva onvention 9y way o% &ustoary international lawH +. @etherlands and Denark argued that >rti&le + also re%le&ted the a&&epted rule o% general international law on the su97e&t o% &ontinental shel% deliitationC and erti&le + as it stood when the onvention was 9eing drawn up 528 and a%ter the latter &ae into %or&e. Lhat was the &ustoary law status o% >rti&le + at the tie o% dra%ting the onventionH *. Ahe &ourt held the prin&iple o% eFuidistan&e as &ontained in >rti&le + did not %or a part o% erti&le + 5para. +28 and 528 the %a&t reservations to >rti&le + was perissi9le under the onvention 5>rti&le 128. Ahe &ourt held' J >rti&le + is one o% those in respe&t o% whi&h under the reservations arti&le o% the onvention 5>rti&le 128 reservations ay 9e ade 9y any State on signing rati%ying or a&&eding %or speaking generally it is a &hara&teristi& o% purely &onventional rules and o9ligations that in regard to the soe %a&ulty o% aking unilateral reservations ay within &ertain liits 9e aditted: whereas this &annot 9e so in the &ase o% general or &ustoary law rules and o9ligations whi&h 9y their very nature ust have eFual %or&e %or all e9ers o% the international &ounity and &annot there%ore 9e the su97e&t o% any right o% unilateral e<&lusion erti&le 12 were not regarded as de&laratory o% previously erti&le + on the eFuidistan&e prin&iple attain the &ustoary law status a%ter the onvention &ae into %or&eH ). Ahe &ourt then erti&le + had 9e&oe &ustoary international law a%ter the onvention entered into %or&e ? either due the &onvention itsel% 5i.e. i% enough States had rati%ied the onvention in a anner to %ul%il the &riteria spe&i%ied 9elow8 or 9e&ause o% su9seFuent State pra&ti&e 5i.e. even i% adeFuate nu9er o% States had not rati%ied the onvention one &ould %ind su%%i&ient State pra&ti&e to eet the &riteria 9elow8. Ahe &ourt held that >rti&le + o% the onvention had not attained a &ustoary law status 5&opare the 1)!* Geneva onvention with the %our Geneva onventions on 1)4) in the %ield o% international huanitarian law in ters o% its authority as a pronoun&eent o% &ustoary international law8.
1. Eor a &ustoary rule to eerge the &ourt held that it needed' 518 very widespread and representative parti&ipation in the &onvention in&luding States whose interests were spe&ially a%%e&ted 5i.e. generality8: and 528 virtually uni%or pra&ti&e 5i.e. &onsistent and uni%or usage8 undertaken in a anner that deonstrates 538 a general re&ognition o% the rule o% law or legal o9ligation 5i.e. opinio 7uries8. #n the @orth Sea ontinental Shel% &ases the &ourt held that the passage o% a &onsidera9le period o% tie was unne&essary 5i.e. duration8 %or the %oration o% a &ustoary law. 0.
