01_Case Digests

North Sea Continental Shelf cases (Germany vs Denmark, Germany vs Netherlands)

Facts: Delimitation of the North Sea continental shelf between Germany and Denmark and Germany and the
Netherlands parties asked the Court to state the principles and rules of international law applicable, and
undertook thereafter to carry out the delimitations on that basis.
Denmark and the Netherlands: (1) Delimitations had to be carried out in accordance with the principle of
equidistance* as defined in Article 6 of the 1958 Geneva Convention** on the Continental Shelf, holding: that the
Federal Republic, which had not ratified the Convention, was not legally bound by the provisions of Article 6;
(2) that the equidistance principle was a necessary consequence of the general concept of continental shelf
rights, and was a rule of customary international law automatically binding on Germany.
Germany: Just apply the principle of an apportionment of the available continental shelf into just and equitable
shares, in proportion to the length of its sea-frontage. In a sea shaped as is the North Sea, each of the States
concerned was entitled to a continental shelf area extending up to the central point of that sea, or at least
extending to its median line. And besides, if the equidistance method were held to be applicable, the
configuration of the German North Sea coast constituted a special circumstance such as to justify a departure
from the equidistance method of delimitation in this particular case.
Court: All three states are incorrect. Each Party has an original right to those areas of the continental shelf which
constituted the natural prolongation of its land territory into and under the sea. It was not a question of
apportioning or sharing out those areas, but of delimiting*** them. The boundary lines in question were to be
drawn by agreement between the Parties and in accordance with equitable principles, and it indicated certain
factors to be taken into consideration**** for that purpose. It was for the Parties to negotiate as their respective
Special Agreements entered into dictate. The Court was not asked actually to delimit the further boundaries.
Equidistance clearly could not be identified with the notion of natural prolongation, since the use of the
equidistance method would frequently cause areas which were the natural prolongation of the territory of one
State to be attributed to another. Hence, the notion of equidistance was not an inescapable a priori
accompaniment of basic continental shelf doctrine. The Equidistance principle is not a rule of customary
international law*****, as such had not been proposed by the International Law Commission as an emerging
rule of customary international law and as any State may make reservations to it.
Summary of court ruling:

The use of the equidistance method of delimitation was not obligatory as between the Parties;

That no other single method of delimitation was in all circumstances obligatory;

That delimitation was to be effected by agreement in accordance with equitable principles and
taking account of all relevant circumstances, in such a way as to leave as much as possible to each
Party all those parts of the continental shelf that constituted a natural prolongation of its land
territory, without encroachment on the natural prolongation of the land territory of the other;

And that, if such delimitation produced overlapping areas, they were to be divided between the
Parties in agreed proportions, or, failing agreement, equally, unless they decided on a regime of
joint jurisdiction, user, or exploitation

*A boundary based on the equidistance principle, i.e., an "equidistance line", left to each of the Parties
concerned all those portions of the continental shelf that were nearer to a point on its own coast than they were
to any point on the coast of the other Party. In the case of a concave or recessing coast such as that of the
Federal Republic on the North Sea, the effect of the equidistance method was to pull the line of the boundary
inwards, in the direction of the concavity. Consequently, where two equidistance lines were drawn, they would,
if the curvature were pronounced, inevitably meet at a relatively short distance from the coast, thus "cutting off"

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the coastal State from the area of the continental shelf outside. In contrast, the effect of convex or outwardly
curving coasts, such as were, to a moderate extent, those of Denmark and the Netherlands, was to cause the
equidistance lines to leave the coasts on divergent courses, thus having a widening tendency on the area of
continental shelf off that coast. The Equidistance Principle is not inherent in the basic doctrine of the Continental
Shelf.
** Denmark and the Netherlands had both signed and ratified the Convention and were parties to it, but the
Federal Republic of Germany, although one of the signatories of the Convention, had never ratified it, and was
consequently not a party. Art 6 of the Convention is not applicable herein.
***The process of delimitation involved establishing the boundaries of an area already, in principle, appertaining
to the coastal State and not the determination de novo of such an area. The doctrine of the just and equitable
share was wholly at variance with the most fundamental of all the rules of law relating to the continental shelf,
namely, that the rights of the coastal State in respect of the area of continental shelf constituting a natural
prolongation of its land territory under the sea existed ipso facto and ab initio, by virtue of its sovereignty over
the land. That right was inherent. In order to exercise it, no special legal acts had to be performed. It followed
that the notion of apportioning an as yet undelimited area considered as a whole (which underlay the doctrine of
the just and equitable share) was inconsistent with the basic concept of continental shelf entitlement.
****Factors to be considered include: general configuration of the coasts of the Parties, as well as the presence
of any special or unusual features; so far as known or readily ascertainable, the physical and geological structure
and natural resources of the continental shelf areas involved, the element of a reasonable degree of
proportionality between the extent of the continental shelf areas appertaining to each State and the length of its
coast measured in the general direction of the coastline, taking into account the effects, actual or prospective, of
any other continental shelf delimitations in the same region.
*****While a very widespread and representative participation in a convention might show that a
conventional rule had become a general rule of international law, in the present case the number of
ratifications and accessions so far was hardly sufficient. As regards the time element, although the passage of
only a short period of time was not necessarily a bar to the formation of a new rule of customary international
law on the basis of what was originally a purely conventional rule, it was indispensable that State practice
during that period, including that of States whose interests were specially affected, should have been both
extensive and virtually uniform in the sense of the provision invoked and should have occurred in such a way
as to show a general recognition that a rule of law was involved.

Continental Shelf Case

Issue: What principles and rules of international law are applicable to the delimitation of the area of continental
shelf which appertains to the Malta and the area of continental shelf which appertains to the Libya, and how in
practice such principles and rules can be applied by the two Parties in this particular case in order that they may
without difficulty delimit such area by an agreement as provided in Article III: Following the final decision of the
International Court of Justice the Government of the Republic of Malta and the Government of the Libyan Arab
Republic shall enter into negotiations for determining the area of their respective continental shelves and for
concluding an agreement for that purpose in accordance with the decision of the Court.
Malta: Lets draw a specific line (a median* line). The natural prolongation of the land territory of a State into
the sea remains the fundamental basis of legal title to continental shelf areas. Delimitation should also be
influenced by the relative economic position of the two States in question***. Derived from the sovereign

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equality of States, the maritime extensions generated by the sovereignty of each State must be of equal juridical
value, whatever the length of the coasts****.
Libya: Courts task does not extend to the actual drawing of the delimitation line. The continental shelf rights are
no longer defined in the light of physical criteria; they are controlled by the concept of distance from the coast.
The natural prolongation, in the physical sense, of the land territory into the sea is still a primary basis of title to
continental shelf. Here, there are two distinct continental shelves divided by what is called the "rift zone**", and
it is "within, and following the general direction of, the Rift Zone" that the delimitation should be carried out.
The landmass*** provides the legal justification of entitlement to continental shelf rights, such that a State with
a greater landmass would have a more intense natural prolongation
Court:
(1) Malta is a party to the 1958 Geneva Convention on the Continental Shelf, while Libya is not; both
Parties have signed the 1982 United Nations Convention on the Law of the Sea, but that Convention
has not yet entered into force. However, the Parties are in accord in considering that some of its
provisions constitute the expression of customary law, while holding different views as to which
provisions have this status.
(2) The institution of the exclusive economic zone, with its rule on entitlement by reason of distance, is
shown by the practice of States to have become a part of customary law; and although the institutions
of the continental shelf and the exclusive economic zone are different and distinct, the rights which the
exclusive economic zone entails over the sea-bed of the zone are defined by reference to the regime
laid down for the continental shelf. Although there can be a continental shelf where there is no
exclusive economic zone, there cannot be an exclusive economic zone without a corresponding
continental shelf. It follows that, for juridical and practical reasons, the distance criterion must now
apply to the continental shelf as well as to the exclusive economic zone (ie, 200 miles from coast).
(3) *The equidistance method is not one which must necessarily be used. It is not the only appropriate
method of delimitation, nor the only permissible point of departure. Moreover, the Court considers
that the practice of States in this field falls short of proving the existence of a rule prescribing the use
of equidistance, or indeed of any method, as obligatory.
(4) **Rift zone concept is rejected. Since the development of the law enables a State to claim continental
shelf up to as far as 200 miles from its coast, whatever the geological characteristics of the
corresponding sea-bed and subsoil, there is no reason to ascribe any role to geological or geophysical
factors within that distance. Since in the present instance the distance between the coasts of the
Parties is less than 400 miles, so that no geophysical feature can lie more than 200 miles from each
coast, the "rift zone" cannot constitute a fundamental discontinuity terminating the southward
extension of the Maltese shelf and the northward extension of the Libyan as if it were some natural
boundary.
(5) The delimitation of the continental shelf must be effected by the application of equitable principles in
all the relevant circumstances in order to achieve an equitable result, viz:
a. the principle that there is to be no question of refashioning geography;
b. the principle of non-encroachment by one Party on areas appertaining to the other;
c. the principle of the respect due to all relevant circumstances; the principle that "equity does
not necessarily imply equality" and that there can be no question of distributive justice.
(6) ***The practice of States re: landmass basis, in the jurisprudence or in the work of the Third United
Nations Conference on the Law of the Sea is unfounded. Nor does the Court consider Maltas
contention re: relative economic position. Regarding the security or defence interests of the two
Parties, the Court notes that the delimitation which will result from the application of the present
Judgment is not so near to the coast of either Party as to make these questions a particular

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(7)

(8)

(9)

(10)

(11)

consideration. As for the treatment of islands in continental shelf delimitation Malta has drawn a
distinction between island States and islands politically linked to a mainland State. In this connection
the Court merely notes that, Malta being independent, the relationship of its coasts with the coasts of
its neighbours is different from what it would be if it were part of the territory of one of them. This
aspect of the matter also seems to the Court to be linked to the position of the Maltese islands in the
wider geographical context, to which it will return.
****If coastal States have an equal entitlement, ipso jure and ab initio, to their continental shelves,
this does not imply an equality in the extent of these shelves, and thus reference to the length of
coasts as a relevant consideration cannot be excluded a priori.
To use the ratio of coastal lengths as self-determinative of the seaward reach and area of continental
shelf proper to each, is to go far beyond the use of proportionality as a test of equity, in the sense
employed in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya). Such use finds
no support in the practice of States or their public statements, or in the jurisprudence.
Provisional equidistance: The law applicable to the present dispute is based on the criterion of
distance in relation to the coast (the principle of adjacency measured by distance), and noting that the
equitableness of the equidistance method is particularly marked in cases where the delimitation
concerns States with opposite coasts, the Court considers that the tracing of a median line between
the coasts of Malta and Libya, by way of a provisional step in a process to be continued by other
operations, is the most judicious manner of proceeding with a view to the eventual achievement of an
equitable result.
Adjustment of the equidistance line, grounds: (a) disparity in the lengths of the relevant coasts of the
Parties to attribute a greater are of shelf to Libya Maltese coast is 24 miles long and the Libyan coast
192 miles long; (b) southern location of the coasts of the Maltese islands delimitation line be
adjusted so as to lie closer to the coasts of Malta; (c) independence of Malta from Italy an equitable
boundary between Libya and Malta must be to the south of a notional median line between Libya and
Sicily.
Proportionality test: Although a test of proportionality may be used, based on the ratio between the
lengths of the relevant coasts and the areas of shelf attributed, there may be certain practical
difficulties which render this test inappropriate. They are particularly evident in the present case, inter
alia because the area to which the Judgment will apply is limited by reason of the existence of claims of
third States, and to apply the proportionality test simply to the areas within these limits would be
unrealistic.

Summary of court ruling:

The principles and rules of international law applicable for the delimitation, to be effected by
agreement in implementation of the present Judgment, of the areas of continental shelf
appertaining to the Socialist People's Libyan Arab Jamahiriya and to the Republic of Malta
respectively are as follows:
o the delimitation is to be effected in accordance with equitable principles and taking
account of all relevant circumstances, so as to arrive at an equitable result;
o the area of continental shelf to be found to appertain to either Party not extending more
than 200 miles from the coast of the Party concerned, no criterion for delimitation of
shelf areas can be derived from the principle of natural prolongation in the physical
sense.

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The circumstances and factors to be taken into account in achieving an equitable delimitation in
the present case are the following:
o the general configuration of the coasts of the Parties, their oppositeness, and their
relationship to each other within the general geographical context;
o the disparity in the lengths of the relevant coasts of the Parties and the distance
between them;
o the need to avoid in the delimitation any excessive disproportion between the extent of
the continental shelf areas appertaining to the coastal State and the length of the
relevant part of its coast, measured in the general direction of the coastlines.
In consequence, an equitable result may be arrived at by drawing, as a first stage in the process, a
median line every point of which is equidistant from the low-water mark of the relevant coast of
Malta (excluding the islet of Filfla), and the low-water mark of the relevant coast of Libya, that
initial line being then subject to adjustment in the light of the above-mentioned circumstances
and factors.
The adjustment of the median line referred to in subparagraph C above is to be effected by
transposing that line northwards through eighteen minutes of latitude (so that it intersects the
meridian 15 10' E at approximately latitude 34 30' N) such transposed line then constituting the
delimitation line between the areas of continental shelf appertaining to the Socialist People's
Libyan Arab Jamahiriya and to the Republic of Malta respectively.

Asylum Case
Facts: Peru issued an arrest warrant against Victor Raul Haya de la Torre in respect of the crime of military
rebellion which took place on October 3, 1949, in Peru. 3 months after the rebellion, Torre fled to the
Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that Torre was granted diplomatic
asylum in accordance with Article 2(2) of the Havana Convention on Asylum of 1928 and requested safe passage
for Torre to leave Peru. Subsequently, the Ambassador also stated Colombia had qualified Torre as a political
refugee in accordance with Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee
is not the same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification and
refused to grant safe passage.
Issues:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose
of asylum under treaty law and international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter called the Havana
Convention) when it granted asylum and is the continued maintenance of asylum a violation of the treaty?
Court:
On issue no. 1:

In the normal course of granting diplomatic asylum a diplomatic representative has the competence to
make a provisional qualification of the offence (for example, as a political offence) and the territorial
State has the right to give consent to this qualification. Colombia has asserted, as the State granting
asylum, that it is competent to qualify the nature of the offence in a unilateral and definitive manner
that is binding on Peru. The court had to decide if such a decision was binding on Peru either because
of treaty law (in particular the Havana Convention of 1928 and the Montevideo Convention of 1933),
other principles of international law or by way of regional or local custom.

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There was no expressed or implied right of unilateral and definitive qualification of the State that
grants asylum under the Havana Convention or relevant principles of international law. The
Montevideo Convention of 1933, which accepts the right of unilateral qualification, and on which
Colombia relied to justify its unilateral qualification, was not ratified by Peru. The Convention, per say,
was not binding on Peru and considering the low numbers of ratifications the provisions of the latter
Convention cannot be said to reflect customary international law.

Colombia also argued that regional or local customs support the qualification. The court held that the
burden of proof on the existence of an alleged customary law rests with the party making the
allegation:
The Party which relies on a custom of this kind must prove that this custom is established in
such a manner that it has become binding on the other Party (that) it is in accordance with
a (1) constant and uniform usage (2) practiced by the States in question, and that this usage
is (3) the expression of a right appertaining to the State granting asylum (Columbia) and (4) a
duty incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the
Statute of the Court, which refers to international custom as evidence of a general practice
accepted as law.

Columbia did not establish the existence of a regional custom because it failed to prove consistent and
uniform usage of the alleged custom by relevant States. The fluctuations and contradictions in State
practice did not allow for the uniform. The court also reiterated that the fact that a particular State
practice was followed because of political expediency and not because of a belief that the said practice
is binding on the State by way of a legal obligation (opinio juris) is detrimental to the formation of a
customary law.

Even if Colombia could prove that such a regional custom existed, it would not be binding on Peru,
because Peru far from having by its attitude adhered to it, has, on the contrary, repudiated it by
refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to
include a rule concerning the qualification of the offence [as political in nature] in matters of
diplomatic asylum. (See in this regard, the lesson on persistent objectors. Similarly in the North Sea
Continental Shelf Cases the court held in any event the . . . rule would appear to be inapplicable as
against Norway in as much as she had always opposed any attempt to apply it to the Norwegian
coast.)

Columbia, as the State granting asylum, is not competent to qualify the offence by a unilateral and
definitive decision, binding on Peru.
On issue no. 2:

There was no legal obligation on Peru to grant safe passage either because of the Havana Convention
or customary law. In the case of the Havana Convention, a plain reading of Article 2 results in an
obligation on the territorial state (Peru) to grant safe passage only after it requests the asylum granting
State (Columbia) to send the person granted asylum outside its national territory (Peru). In this case
the Peruvian government had not asked that Torre leave Peru. On the contrary, it contested the
legality of asylum granted to him and refused to grant safe conduct.

The court looked at the possibility of a customary law emerging from State practice where diplomatic
agents have requested and been granted safe passage for asylum seekers, before the territorial State
could request for his departure. These practices were a result of a need for expediency and other
practice considerations over an existence of a belief that the act amounts to a legal obligation.
but this practice does not and cannot mean that the State, to whom such a request for
safe- conduct has been addressed, is legally bound to accede to it.

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On issue no. 3:

Article 1 of the Havana Convention states that It is not permissible for States to grant asylum to
persons accused or condemned for common crimes (such persons) shall be surrendered upon
request of the local government. IOW, the person-seeking asylum must not be accused of a common
crime (for example, murder would constitute a common crime, while a political offence would not).The
accusations that are relevant are those made before the granting of asylum. Torres accusation related
to a military rebellion, which the court concluded was not a common crime and as such the granting of
asylum complied with Article 1 of the Convention.

Article 2 (2) of the Havana Convention states that Asylum granted to political offenders in legations,
warships, military camps or military aircraft, shall be respected to the extent in which allowed, as a
right or through humanitarian toleration, by the usages, the conventions or the laws of the country in
which granted and in accordance with the following provisions: First: Asylum may not be granted
except in urgent cases and for the period of time strictly indispensable for the person who has sought
asylum to ensure in some other way his safety.

An essential pre-requisite for the granting of asylum is the urgency or, in other words, the presence of
an imminent or persistence of a danger for the person of the refugee. The court held that the facts of
the case, including the 3 months that passed between the rebellion and the time when asylum was
sought, did not establish the urgency criteria in this case. IOW, Torre was accused of a crime but he
could not be tried in a court because Colombia granted him asylum. The court held that protection
from the operation of regular legal proceedings was not justified under diplomatic asylum.

GR: In the case of diplomatic asylum the refugee is within the territory of the State. A decision to grant
diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender
from the jurisdiction of the territorial State and constitutes an intervention in matters which are
exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot
be recognised unless its legal basis is established in each particular case.
X: An exception to this rule (asylum should not be granted to those facing regular prosecutions) can
occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such would be
the case if the administration of justice were corrupted by measures clearly prompted by political aims.
Asylum protects the political offender against any measures of a manifestly extra-legal character which
a Government might take or attempt to take against its political opponents On the other hand, the
safety which arises out of asylum cannot be construed as a protection against the regular application of
the laws and against the jurisdiction of legally constituted tribunals. Protection thus understood would
authorize the diplomatic agent to obstruct the application of the laws of the country whereas it is his
duty to respect them Such a conception, moreover, would come into conflict with one of the most
firmly established traditions of Latin-America, namely, non-intervention [for example, by Colombia into
the internal affairs of another State like Peru].

Asylum may be granted on humanitarian grounds to protect political prisoners against the violent and
disorderly action of irresponsible sections of the population. (for example during a mob attack where
the territorial State is unable to protect the offender). Torre was not in such a situation at the time
when he sought refuge in the Colombian Embassy at Lima.

The grant of asylum and reasons for its prolongation were not in conformity with Article 2(2) of the
Havana Convention.

Anglo Norwegian Fisheries Case

Facts: The United Kingdom requested the court to decide if Norway had used a legally acceptable method in
drawing the baseline from which it measured its territorial sea. The United Kingdom argued that customary

MHH_2.2_Public International Law

international law did not allow the length of a baseline drawn across a bay to be longer than ten miles. Norway
argued that its delimitation method was consistent with general principles of international law.
Norway: Our practice was in conformity* with international law. The rules of international law take into account
the diversity of facts and, therefore, concede that the drawing of base-lines must be adapted to the special
conditions obtaining in different regions. In its view, the system of delimitation applied in 1935, a system
characterized by the use of straight lines, does not therefore infringe the general law; it is an adaptation
rendered necessary by local conditions.
Court: Positive (1) state practice and (2) lack of objections of other states on that practice confirm an existing
rule of customary international law. There was no mention of opinio juris in this early judgment.

Formation of Customary Law: Expressed state dissent regarding a particular practice was detrimental
to the existence of an alleged general rule. It did not elaborate whether these states adopted a
contrary practice because it was claiming an exception to the rule or because it believed that the said
rule did not possess the character of customary law. Although the ten-mile rule has been adopted by
certain States both in their national law and in their treaties and conventions, and although certain
arbitral decisions have applied it as between these States, other States have adopted a different
limit. Consequently, the ten-mile rule has not acquired the authority of a general rule of
international law.

Persistent Objector Rule: Even if a customary law rule existed on the ten-mile rule, the ten-mile rule
would appear to be inapplicable as against Norway inasmuch as she has always opposed (since 1870)
any attempt to apply it to the Norwegian coast. An existing customary law rule would not apply to a
state if it objected to any outside attempts to apply the rule to itself, at the initial stages and in a
consistent manner, and if other states did not object to her resistance.

Sustained objection: Norway followed the principles of delimitation that it considers a part of its
system in a consistent and uninterrupted manner from 1869 until the time of the dispute.
*Norways system was not contrary to international law.
The notoriety of the facts, the general toleration of the international community, Great
Britains position in the North Sea, her own interest in the question, and her prolonged
abstention would in any case warrant Norways enforcement of her system against the
United Kingdom. The Court is thus led to conclude that the method of straight lines,
established in the Norwegian system, was imposed by the peculiar geography of the
Norwegian coast; that even before the dispute arose, this method had been consolidated
by a consistent and sufficiently long practice, in the face of which the attitude of
governments bears witness to the fact that they did not consider it to be contrary to
international law.

International and national law: In delimitation cases, states must be allowed the latitude necessary in
order to be able to adapt its delimitation to practical needs and local requirements The court would
also consider certain economic interests peculiar to a region, the reality and importance of which
are clearly evidenced by a long usage. However, while the act of delimitation can be undertaken by
the State, its legal validity depends on international law.
The delimitation of sea areas has always an international aspect; it cannot be dependent
merely upon the will of the coastal State as expressed in its municipal law. Although it is true
that the act of delimitation is necessarily a unilateral act, because only the coastal State is
competent to undertake it, the validity of the delimitation with regard to other States
depends upon international law.

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MHH_2.2_Public International Law

Fisheries Jurisdiction Case (UK vs Iceland)

Facts: Following a number of incidents and a series of negotiations, Iceland and the United Kingdom agreed on
an Exchange of Notes in 1961 and specified inter alia that the United Kingdom would no longer object to a 12mile fishery zone, that Iceland would continue to work for the implementation of the 1959 resolution regarding
the extension of fisheries jurisdiction but would give the United Kingdom six months' notice of such extension
and that "in case of a dispute in relation to such extension, the matter shall, at the request of either Party, be
referred to the International Court of Justice. However in 1971, Iceland extended their limit of exclusive fisheries
jurisdiction to 50 miles, and in 1972 it started prohibiting fishing activities by foreign vessels therein. UK and
Iceland entered in to an Interim Agreement pending a settlement of the substantive dispute and without
prejudice to the legal position or rights of either Government in relation thereto.
UK: (a) The claim by Iceland to be entitled to a zone of exclusive fisheries jurisdiction extending 50 nautical miles
from the baselines is without foundation in international law and is invalid;
(b) that, as against the United Kingdom, Iceland is not entitled unilaterally to assert an exclusive fisheries
jurisdiction beyond the limit of 12 miles agreed to in an Exchange of Notes in 1961;
(c) Iceland is not entitled unilaterally to exclude British fishing vessels from the area of the high seas beyond
the 12-mile limit or unilaterally to impose restrictions on their activities in that area;
(d) Iceland and the United Kingdom are under a duty to examine together, either bilaterally or with other
interested States, the need on conservation grounds for the introduction of restrictions on fishing activities in
the said area of the high seas and to negotiate for the establishment of such a regime in that area as will
inter alia ensure for Iceland a preferential position consistent with its position as a State specially dependent
on its fisheries.
Iceland: (did not take part in the proceedings, but thru a letter) The Exchange of Notes of 1961 was regarded as
terminated. There was no basis under the Statute for the Court to exercise jurisdiction. As vital interests are
involved, it was not willing to confer jurisdiction on the Court in any case involving the extent of its fishery limits.
It did not accept any of the statements of fact or any of the allegations or contentions of law submitted on behalf
of the United Kingdom.
Court: By virtue of the 1961 Exchange of Notes, Court had jurisdiction.

Applicable rules of International Law: The first United Nations Conference on the Law of the Sea
(Geneva, 1958) had adopted a Convention on the High Seas, Article 2 of which declared the principle of
the freedom of the high seas, that is to say, freedom of navigation, freedom of fishing, etc., to "be
exercised by all States with reasonable regard to the interests of other States in their exercise of the
freedom of the high seas". The question of the breadth of the territorial sea and that of the extent of
the coastal State's fishery jurisdiction had been left unsettled at the 1958 Conference and were not
settled at a second Conference held in Geneva in 1960. However, arising out of the general consensus
at that second Conference, two concepts had since crystallized as customary law: that of a fishery
zone, between the territorial sea and the high seas within which the coastal State could claim exclusive
fisheries jurisdiction - it now being generally accepted that that zone could extend to the 12-mile limit and the concept, in respect of waters adjacent to the zone of exclusive fishing rights, of preferential
fishing rights in favour of the coastal State in a situation of special dependence on its fisheries. The
Court was aware that in recent years a number of States had asserted an extension of their exclusive
fishery limits. But, as a court of law, it could not render judgment sub specie legis ferendae or
anticipate the law before the legislator had laid it down.

There could be no doubt of the exceptional dependence of Iceland on its fisheries and the situation
appeared to have been reached when it was imperative to preserve fish stocks in the interests of
rational and economic exploitation. However, the very notion of preferential fishery rights for the
coastal State in a situation of special dependence, though it implied a certain priority, could not imply

the extinction of the concurrent rights of other States. The United Kingdom had pointed out that its
vessels had been fishing in Icelandic waters for centuries, that they had done so in a manner
comparable with their present activities for upwards of fifty years and that their exclusion would have
very serious adverse consequences. There too the economic dependence and livelihood of whole
communities were affected, and the United Kingdom shared the same interest in the conservation of
fish stocks as Iceland. Iceland disregarded the established rights of that State and also the Exchange
of Notes of 1961, and they constituted an infringement of the principle (1958 Convention on the
High Seas, Art. 2) of reasonable regard for the interests of other States, including the United
Kingdom.
The most appropriate method for the solution of the dispute was clearly that of negotiation with a
view to delimiting the rights and interests of the Parties and regulating equitably such questions as
those of catch-limitation, share allocations and related restrictions. The obligation to negotiate flowed
from the very nature of the respective rights of the Parties and corresponded to the provisions of the
United Nations Charter concerning peaceful settlement of disputes.

Summary of ruling:

The Icelandic Regulations of 1972 constituting a unilateral extension of the exclusive fishing rights
of Iceland to 50 nautical miles from the baselines are not opposable to the United Kingdom;

Iceland is not entitled unilaterally to exclude United Kingdom fishing vessels from areas between
the 12-mile and 50-mile limits, or unilaterally to impose restrictions on their activities in such
areas;

Iceland and the United Kingdom are under mutual obligations to undertake negotiations in good
faith for an equitable solution of their differences;

Certain factors which are to be taken into account in these negotiations (preferential rights of
Iceland, established rights of the United Kingdom, interests of other States, conservation of fishery
resources, joint examination of measures required)

Advisory Opinion re: Legality of the threat or use of Nuclear Weapons

In 1995, the UN Secretary General wrote the Registrar of the decision of the General assembly to ask for AO.
Article 96, paragraph 1 of the Charter provides that: "The General Assembly or the Security Council may request
the International Court of Justice to give an advisory opinion on any legal question."
This is a Legal Question: Questions "framed in terms of law and raising problems of international law . . . are by
their very nature susceptible of a reply based on law . . . and appear . . . to be questions of a legal character". The
fact that this question also has political aspects, as, in the nature of things, is the case with so many questions
which arise in international life, does not suffice to deprive it of its character as a "legal question" and to
"deprive the Court of a competence expressly conferred on it by its Statute".
Advisory Opinion: The purpose of the advisory function is not to settle - at least directly - disputes between
States, but to offer legal advice to the organs and institutions requesting the opinion. The fact that the question
put to the Court does not relate to a specific dispute should consequently not lead the Court to decline to give
the opinion requested. The court has the authority to deliver an opinion on the question posed by the General
Assembly, and that there exist no "compelling reasons" which would lead the Court to exercise its discretion not
to do so.
Applicable Laws: (1) Refer to the Law applicable in armed conflict and not from the provisions of International
Covenant on Civil and Political Rights. (2) The prohibition of genocide would be pertinent in this case if the

01_Case Digests
recourse to nuclear weapons did indeed entail the element of intent, towards a group as such, required by
Article II of the Convention on the Prevention and Punishment of the Crime of Genocide. (3) While the existing
international law relating to the protection and safeguarding of the environment does not specifically prohibit
the use of nuclear weapons, it indicates important environmental factors that are properly to be taken into
account in the context of the implementation of the principles and rules of the law applicable in armed conflict.
(4) The most directly relevant applicable law governing the question of which it was seized, is that relating to the
use of force enshrined in the United Nations Charter and the law applicable in armed conflict which regulates the
conduct of hostilities, together with any specific treaties on nuclear weapons.
Unique characteristics of nuclear weapons: They have destructive capacity; capacity to cause untold human
suffering, and ability to cause damage to generations to come.
Neutrality: The principle of neutrality, whatever its content, which is of a fundamental character similar to that
of the humanitarian principles and rules, is applicable (subject to the relevant provisions of the United Nations
Charter), to all international armed conflict, whatever type of weapons might be used.
Proscription of the threat or use of nuclear weapons per se under:
1. Provisions of the Charter relating to the threat or use of force: NONE. The use of force
against the territorial integrity or political independence of another State or in any other
manner inconsistent with the purposes of the United Nations is prohibited. However, the
Charter recognizes the inherent right of individual or collective self-defense (subject to the
conditions of necessity and proportionality) if an armed attack occurs. Security Council may
take military enforcement measures in conformity with Chapter VII of the Charter. But all
these provisions do not refer to specific weapons. They apply to any use of force, regardless
of the weapons employed. The Charter neither expressly prohibits, nor permits, the use of
any specific weapon, including nuclear weapons. Whether a signaled intention to use force
if certain events occur is or is not a "threat" within Article 2, paragraph 4, of the Charter
depends upon various factors. The notions of "threat" and "use" of force under Article 2,
paragraph 4, of the Charter stand together in the sense that if the use of force itself in a
given case is illegal - for whatever reason - the threat to use such force will likewise be
illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a
use of force that is in conformity with the Charter. For the rest, no State - whether or not it
defended the policy of deterrence - suggested to the Court that it would be lawful to
threaten to use force if the use of force contemplated would be illegal.
2. Customary rule: NONE. Nuclear weapons, lawful or not? State practice shows that the
illegality of the use of certain weapons as such does not result from an absence of
authorization but, on the contrary, is formulated in terms of prohibition. It does not seem to
the Court that the use of nuclear weapons can be regarded as specifically prohibited on the
basis of certain provisions of the Second Hague Declaration of 1899, the Regulations annexed
to the Hague Convention IV of 1907 or the 1925 Geneva Protocol. Members of the
international community are profoundly divided on the matter of whether non-recourse to
nuclear weapons over the past fifty years constitutes the expression of an opinio juris. The
emergence, as lex lata, of a customary rule specifically prohibiting the use of nuclear
weapons as such is hampered by the continuing tensions between the nascent opinio juris on
the one hand, and the still strong adherence to the doctrine of deterrence (in which the right
to use those weapons in the exercise of the right to self-defence against an armed attack
threatening the vital security interests of the State is reserved) on the other.
3. International Humanitarian Law applicable in armed conflict and of the law of neutrality:

MHH_2.2_Public International Law

1st principle is aimed at protection of the civilian population and civilian objects and
establishes the distinction between combatants and non-combatants; States must
never make civilians the object of attack and must consequently never use
weapons that are incapable of distinguishing between civilian and military targets.
b. 2nd principle: It is prohibited to cause unnecessary suffering to combatants: it is
accordingly prohibited to use weapons causing them such harm or uselessly
aggravating their suffering. In application of that second principle, States do not
have unlimited freedom of choice of means in the weapons they use.
It cannot be concluded from this that the established principles and rules of
humanitarian law applicable in armed conflict did not apply to nuclear weapons. Such a
conclusion would be incompatible with the intrinsically humanitarian character of the
legal principles in question which permeates the entire law of armed conflict and applies
to all forms of warfare and to all kinds of weapons, those of the past, those of the
present and those of the future.
a.

AO Rulings:

There is in neither customary nor conventional international law any specific authorization of the
threat or use of nuclear weapons.

There is in neither customary nor conventional international law any comprehensive and universal
prohibition of the threat or use of nuclear weapons as such.

A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the
United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful.

A threat or use of nuclear weapons should also be compatible with the requirements of the
international law applicable in armed conflict particularly those of the principles and rules of
international humanitarian law, as well as with specific obligations under treaties and other
undertakings which expressly deal with nuclear weapons.

It follows from the above-mentioned requirements that the threat or use of nuclear weapons would
generally be contrary to the rules of international law applicable in armed conflict, and in particular the
principles and rules of humanitarian law; However, in view of the current state of international law,
and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat
or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense,
in which the very survival of a State would be at stake;

There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to
nuclear disarmament in all its aspects under strict and effective international control.

Lotus Case (France vs Turkey)

Facts: A collision occurred on the high seas between a French vessel Lotus and a Turkish vessel Boz-Kourt.
The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10 survivors of the BozKourt (including its captain) were taken to Turkey on board the Lotus. In Turkey, the officer on watch of the Lotus
(Demons), and the captain of the Turkish ship were charged with manslaughter. Demons, a French national, was
sentenced to 80 days of imprisonment and a fine. The French government protested, demanding the release of
Demons or the transfer of his case to the French Courts. Turkey and France agreed to refer this dispute on the
jurisdiction to the Permanent Court of International Justice.
France: The flag State* of a vessel would have exclusive jurisdiction over offences committed on board the ship
in high seas.
Issue: Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by
a French national, outside Turkey? If yes, should Turkey pay compensation to France?

01_Case Digests
Court: No. Turkey, by instituting criminal proceedings against Demons, did not violate international law.

First Lotus Principle: Jurisdiction is territorial: A State cannot exercise its jurisdiction outside its
territory unless an international treaty or customary law permits it to do so.
X: Subjective Territorial jurisdiction even if the crime was committed outside its territory, so long as
a constitutive element of the crime was committed in that State. One must prove that the element of
the crime and the actual crime are entirely inseparable (ie, if the constituent element was absent the
crime would not have happened).

Second Lotus Principle: Within its territory, a State may exercise its jurisdiction, on any matter, even if
there is no specific rule of international law permitting it to do so. In these instances, States have a
wide measure of discretion, which is only limited by the prohibitive rules of international law.

*Concurrent jurisdiction: France, as the flag State, did not enjoy exclusive territorial jurisdiction in the
high seas in respect of a collision with a vessel carrying the flag of another State. Both Turkey and
France have jurisdiction in respect of the whole incident: i.e. there is concurrent jurisdiction. The
offense for which Lieutenant Demons appears to have been prosecuted was an act of negligence or
imprudence having its origin on board the Lotus, whilst its effects made themselves felt on board the
Boz-Kourt. These two elements are, legally, entirely inseparable, so much so that their separation
renders the offence non-existent. It is only natural that each should be able to exercise jurisdiction and
to do so in respect of the incident as a whole.

A ship in the high seas is assimilated to the territory of the flag State. This State may exercise its
jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land, to the exclusion
of all other States. Ergo, the offense produced its effects on the Turkish vessel and consequently in a
place assimilated to Turkish territory in which the application of Turkish criminal law cannot be
challenged, even in regard to offences committed there by foreigners. There is no rule of international
law prohibiting the State to which the ship on which the effects of the offense have taken place
belongs, from regarding the offense as having been committed in its territory and prosecuting,
accordingly, the delinquent.

States had often, in practice, abstained from instituting criminal proceedings, and not that they
recognized themselves as being obliged to do so; for only if such abstention were based on their being
conscious of having a duty to abstain would it be possible to speak of an international custom. The
alleged fact does not allow one to infer that States have been conscious of having such a duty; on the
other hand, as will presently be seen, there are other circumstances calculated to show that the
contrary is true. IOW, opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus
case) in so far as those acts or omissions are done following a belief that the said State is obligated by
law to act or refrain from acting in a particular way.

MHH_2.2_Public International Law