Problem:

The Chief UN Truce Negotiator Count

Bernadotte, a Swedish national, was killed on
September 17,1948 in Jerusalem. The
assassins were allegedly a gang of terrorists.
Israel was not a member of the UN at the
time of the incident.
Issue: Whether or not the UN had
"international legalpersonality "to bring a
claim in an international tribunal with the
view to obtaining reparations in respect to
the damage caused to itself, to the victim or
persons entitled through the victim.

Definitions
Law"

of

"Public

Briefly: "the body of rules and principles

of action which are binding upon civilized
states in their relations with one
another.
Hackworth: "it is that branch of public law
which regulates the relations of states
and other entities which have been
granted an
international personality
Jessup: prefers the term "transnational
law" than "public international law''.
Jessup refers to "transnational law" as
"that which regulates actions or events
that transcend national frontiers"

Modem Definition:
Section 101, Restatement [Third] of the Law
by the American Law Institute of Foreign
Relations Law of the United States: rules
and principles of general application dealing
with the conduct of states
and of
international organizations and with their
relations inter se, as well as with some of
their relations with persons, whether natural
or juridical
Public vs. Private International Law

Examples
1.

X, a citizen of State A, is the Ambassador

to State B. X's official archives and
documents were seized by the police of
State B and X was subsequently
subjected to a state- sponsored torture in
State B. State A filed a suit for
compensation before the 10. Is State B
liable?

2.

X, a citizen of State A, is the Ambassador

to State B. X maintained funds in various
banks in State B and also acquired in
State B certain condominium units. X died
in State C. It was learned that X also has
funds and properties in State C and State
D. What law shall govern the distribution
of the estate of X?

International

Traditional Definitions:

Public International Law governs the

activities of states and other international
persons/entities in relation to each other.

It governs "relationships" of international

persons inter se.
Private International Law governs the
activities of individuals, corporations, and
other private entities when they cross
national borders and in controversies
involving foreign element.
It resolves
"conflict of laws".

THE PAQUETE HABANA, 175 U.S. 677 (1900)

Facts:
These are two appeals from decrees of the
district court of the United States for the
southern district of Florida condemning two
fishing vessels and their cargoes as prize of
war.
Each vessel was a fishing smack, running in
and out of Havana, and regularly engaged in
fishing on the coast of Cuba. It sailed under
the Spanish flag and was owned by a
Spanish subject of Cuban birth, living in the
city of Havana. It was commanded by a
subject of Spain, also residing in Havana. Her
master and crew had no interest in the
vessel, but were entitled to share her catch.
Her cargo consisted of fresh fish, caught by
her crew from the sea, put on board as they
1 | Page

were caught, and kept and sold alive. Until

stopped by the blockading squadron she had
no knowledge of the existence of the war or
of any blockade. She had no arms or
ammunition on board, and made on attempt
to run the blockade after she knew of its
existence, nor any resistance at the time of
the capture.
The Paquete Habana (1st vessel) was a sloop
and had a crew of three Cubans, including
the master, who had a fishing license from
the Spanish government, and no other
commission or license. She left Havana and
was captured by the United States gunboat
Castine.
The Lola (2nd vessel) was a schooner and
had a crew of six Cubans, including the
master, and no commission or license. She
was stopped by the United States steamship
Cincinnati, and was warned not to go into
Havana, but was told that she would be
allowed to land at Bahia Honda. She then set
for Bahia Honda, but on the next morning,
when near that port, was captured by the
United States steamship Dolphin.
Both the fishing vessels were brought by
their captors into Key West. A libel for the
condemnation of each vessel and her cargo
as prize of war was filed. Each vessel was
sold by auction (the Paquete Habana for the
sum of $490 and the Lola for the sum of
$800). There was no other evidence in the
record of the value of either vessel or of her
cargo.

Issue:

Whether or not the fishing smacks were

subject to capture during the war with Spain.
Held:
No. By an ancient usage among civilized
nations, beginning centuries ago, and
gradually ripening into a rule of international
law, coast fishing vessels, pursuing their
vocation of catching and bringing in fresh

fish, have been recognized as exempt, with

their cargoes and crews, from capture as
prize of war. (The case then discussed
instances throughout history where fishing
vessels were captured.)
It will be convenient to refer to some leading
French treatises on international law as
determined by the general consent of
civilized nations.
'Enemy ships,' say Pistoye and Duverdy, in
their Treatise on Maritime Prizes, published in
1855, 'are good prize. Not all, however; for it
results from the unanimous accord of the
maritime powers that an exception should be
made in favor of coast fishermen. Such
fishermen are respected by the enemy so
long as they devote themselves exclusively
to fishing.'
De Cussy, in his work on the Phases and
Leading Cases of the Maritime Law of
Nations, affirms in the clearest language the
exemption from capture of fishing boats,
saying, that 'in time of war the freedom of
fishing is respected by belligerents; fishing
boats are considered as neutral; in law, as in
principle, they are not subject either to
capture or to confiscation.

Ortolan, in the fourth edition of his Regles

Internationales et Diplomatie de la Mer, after
stating the general rule that the vessels and
cargoes of subjects of the enemy are lawful
prize, says: 'Nevertheless, custom admits an
exception in favor of boats engaged in the
coast fishery; these boats, as well as their
crews, are free from capture and exempt
from all hostilities. The coast-fishing industry
is, in truth, wholly pacific, and of much less
importance in regard to the national wealth
that it may produce than maritime
commerce or the great fisheries. Peaceful
and wholly inoffensive, those who carry it on,
may be called the harvesters of the territorial
seas, since they confine themselves to
gathering in the products thereof; they are
for the most part poor families who seek in
this calling hardly more than the means of
2 | Page

gaining their livelihood.' Again, after

observing that there are very few solemn
public treaties which make mention of the
immunity of fishing boats in time of war, he
says: 'From another point of view the custom
which sanctions this immunity is not so
general that it can be considered as making
an absolute international rule; but it has
been so often put in practice, and, besides, it
accords so well with the rule in use in wars
on land, in regard to peasants and
husbandmen, to whom coast fishermen may
be likened, that it will doubtless continue to
be followed in maritime wars to come. (A lot
of opinions of other writers were also
included which will not be mentioned in this
digest)
This review of the precedents and authorities
on the subject appears to us abundantly to
demonstrate that at the present day, by the
general consent of the civilized nations of
the world, and independently of any express
treaty or other public act, it is an established
rule of international law, founded on
considerations of humanity to a poor and
industrious order of men, and of the mutual
convenience of belligerent states, that coast
fishing vessels, with their implements and
supplies, cargoes and crews, unarmed and
honestly pursuing their peaceful calling of
catching and bringing in fresh fish, are
exempt from capture as prize of war.
The exemption, of course, does not apply to
coast fishermen or their vessels if employed
for a warlike purpose, or in such a way as to
give aid or information to the enemy; nor
when military or naval operations create a
necessity to which all private interests must
give way.
Nor has the exemption been extended to
ships or vessels employed on the high sea in
taking whales or seals or cod or other fish
which are not brought fresh to market, but
are salted or otherwise cured and made a
regular article of commerce.
This rule of international law is one which
prize courts administering the law of nations

are bound to take judicial notice of, and to

give effect to, in the absence of any treaty or
other public act of their own government in
relation to the matter.
By the practice of all civilized nations,
vessels employed only for the purposes of
discovery or science are considered as
exempt from the contingencies of war, and
therefore not subject to capture. It has been
usual for the government sending out such
an expedition to give notice to other powers;
but it is not essential.
To this subject in more than one aspect are
singularly applicable the words uttered by
Mr. Justice Strong, speaking for this court:
'Undoubtedly no single nation can change
the law of the sea. The law is of universal
obligation and no statute of one or two
nations can create obligations for the world.
Like all the laws of nations, it rests upon the
common consent of civilized communities. It
is of force, not because it was prescribed by
any superior power, but because it has been
generally accepted as a rule of conduct.
Whatever may have been its origin, whether
in the usages of navigation, or in the
ordinances of maritime states, or in both, it
has become the law of the sea only by the
concurrent sanction of those nations who
may be said to constitute the commercial
world. Many of the usages which prevail, and
which have the force of law, doubtless
originated in the positive prescriptions of
some single state, which were at first of
limited effect, but which, when generally
accepted, became of universal obligation.'
In the case, each vessel was of a moderate
size, such as is not unusual in coast fishing
smacks, and was regularly engaged in fishing
on the coast of Cuba. The crew of each were
few in number, had no interest in the vessel,
and received, in return for their toil and
enterprise, two thirds of her catch, the other
third going to her owner by way of
compensation for her use. Each vessel went
out from Havana to her fishing ground, and
was captured when returning along the coast
of Cuba. The cargo of each consisted of fresh
3 | Page

fish, caught by her crew from the sea, and

kept alive on board. Although one of the
vessels extended her fishing trip, we cannot
doubt that each was engaged in the coast
fishery, and not in a commercial adventure,
within the rule of international law.

plan

The case was adjudged that the capture was

unlawful and without probable cause ordered
that the proceeds of the sale of the vessel,
together with the proceeds of any sale of her
cargo, be restored to the claimant, with
damages and costs.

, which operated along the border with

and

undertake

activities

directed

against Nicaragua.
The

armed

opposition

Government

was

to

the

conducted

new

mainly

by

(1) Fuerza Democratica Nicaragense (FDN)

Honduras,

and

(2)Alianza Revolucionaria Democratica (ARD

E),

which

operated

along

the

border

with Costa Rica, (see map of the region).

Initial

support

to

these

groups

fighting

Case: Nicaragua vs United States

against the Nicaraguan Government (called

Case: Case Concerning the Military and

contras) was covert. Later, the US officially

Paramilitary Activities In and Against

acknowledged its support (for example: In

Nicaragua

1983

(Nicaragua

vs

United

budgetary

legislation

enacted

by

States) (Merits:focusing on matters relating

the United States Congress made specific

to the use of force and self-defense)

provision for funds to be used by United

Year of Decision: 1986

States intelligence agencies for supporting

Court: ICJ

directly or indirectly military or paramilitary

Overview: The

case

involved military and

operations in Nicaragua).

paramilitary activities conducted by the US

Nicaragua also

against

effectively in control of the contras, the US

Nicaragua

from

1981

to

1984.

Nicaragua asked the Court to find that these

devised

alleged

that

their strategy and

the

US

directed

is

their

activities violated international law.

tactics and that they were paid for and

Facts of the Case:

directly controlled by US personal and some

In July 1979 the Government of President

attacks were carried out by US military with

Somoza

the aim to overthrow the Government of

collapsed

following

an

armed

opposition led by the Frente Sandinista de

Nicaragua.

Liberacibn Nacional (FSLN)

new

included the mining of Nicaraguan ports and

government installed by FSLN began to

attacks on ports, oil installations and a naval

encounter armed opposition from supporters

base. Nicaragua alleged that US aircrafts

of the formerSomoza Government and ex-

flew over Nicaraguan territory to gather

members of the National Guard. The US

intelligence, supply to the contras in the field

initially supportive of the new government

and to intimidate the population.

changed its attitude when, according to the

Questions before the Court:

The

US, it found that Nicaragua was providing

1.

Attacks

against

Nicaragua

Did the US breach its customary

logistical support and weapons to guerrillas

international law obligation not to

in El Salvador. In April 1981 it terminated US

intervene in the affairs of another State

aid to Nicaragua and in September 1981,

when it trained, armed, equipped and

according to Nicaragua, the US decided to

financed

the

contra

forces

or

4 | Page

encouraged, supported and aided the

1984; and (2) when its activities with

military

the contra forces resulted in the threat

and

paramilitary

activities

against Nicaragua?
2.

or use of force. See paras 187 -201.

Did the US breach its customary

international law obligation not to use
force against another State when it

The Court held that:

1.

principle that can be found in Article

directly attacked Nicaragua in 1983

2(4)

1984 and when its activities in bullet

point 1 above resulted in the use of
force?
3.

Can

the

military

and

Nicaragua

be

2.

its aircrafts to

directed
fly

or

over

authorized
Nicaraguan

the acts referred to involve a threat or

use of force).
3.

Nicaraguan
If

international law obligations not to

sovereignty

of

to

interrupt

peaceful

maritime

4.

and

US

breached

its

customary

international law obligation not to use

force against another State: (1) when it
directly attacked Nicaragua in 1983

of

another

state

and

participating in acts of civil strifein

another State and when these acts

collective self-defence and held that US

The

used in

The US violated the CIL prohibition on

territory

The Court rejected the US justification of

Relevant Findings of the Court:

was

armed bands for incursion into the

above.

violated the prohibition on the use of force.

force

the organization of irregular forces and

ICJ decision: US violated CIL in relation to

3,

the

contras by organizing or encouraging

Nicaragua?
2,

however,

the use of force when it assisted the

internal waters and the territorial sea of

points

its

below on self-defence).

commerce when it laid mines in the

bullet

attacked

was justified in the use of force (see

State, not to intervene in its affairs, not

not

and

collective self- defence, then the US

another

to use force against another State and

ports

ports, oil installations and a naval base.

Did the US breach its customary

the

The US violated the CIL prohibition on

the use of force when it laid mines in

bullet point 2 above?

violate

Use of force can be: (1) most grave

terrorist acts in another State when

territory and by acts referred to in

5.

in

participating in acts of civil strife and

violate the sovereignty of another State

it

and

(i.e. organizing, instigating, assisting or

international law obligation not to

when

Charter

(2) less grave forms of use of force

as

Did the US breach its customary

UN

that constitute an armed attack) and

collective self-defence?
4.

the

forms of the use of force (i.e. those

paramilitary
justified

of

customary international law (CIL).

activities that the US undertook in and

against

The prohibition on the use of force is a

involved the threat or use of force.

5.

The supply of funds to the contras

does not violate the prohibition on the
use of force.

while

the

arming

and

training

of

the contras can certainly be said to involve

5 | Page

the

threat

or

use

of

force

against

amounts

Nicaragua the Court considers that the

mere supply of funds to the contras, while
undoubtedly an act of intervention in the
internal affairs of Nicaragua does not in
itself amount to a use of force. (para 227)
An armed attack includes (1) action

US

1.

amount to (inter alia) an actual

2.

are

because of its scale and effects it would

have

been

classified as

an

armed

attack if it was carried out by regular

forces.

Assistance to rebels in the form of

provision of weapons or logistical
support

does

not

constitute an

armed attack it can be regarded

as a threat or use of force, or an
intervention

in

the

interna1

or

external affairs of other States (see

para 195, 230).

Under Article 51 of the UN Charter and

under

CIL

self-defence

is

only

available against a use of force that

use

right

of

of

the

force

individual or

When a State claims that it used force

circumstances required for the exercise

of self-defence existed and (2) whether
the steps taken by the State, which was
acting in self-defence, corresponds to
the requirements of international law

not

considered as an armed attack unless

the

the

to

look into two aspects : (1) whether the

therein

incidents

on

exceptions

in collective self-defence, the Court will

(XXIX) on the Definition of Aggression].

frontier

for

(para.193).

3 (g) of the UNGA Resolution 3314

Mere

allows

of the inherent right of a State

[the second point is taken from Article

and

existence of this CIL right when it talks

its

substantial involvement

military

the Charter itself acknowledges the

armed attack conducted by regular

or

the

collective self-defence. US asserted that

against

another State of such gravity as to

CIL

including

or mercenaries, which carry out

forces,

justify

prohibition

of armed bands, groups, irregulars

force

cannot

in and against Nicaragua as collective

sending by or on behalf of a State

armed

attack (para

paramilitary activities that it undertook

international border; and (2) the

of

armed

211).

by regular armed forces across an

acts

an

self-defence.

What is an armed attack?

to

(i.e. necessity and proportionality).

3.

Several criteria must be met for a

State to exercise the right of individual
or collective self-defence:

(1) A State must have been the victim of an

armed attack;
(2) This State must declare itself as a victim
of an armed attack; [NB: the assessment
whether an armed attack took place nor
not is done by the state who was subjected
to the attack. A third State cannot exercise a
right of collective self-defence based its (the
third States) own assessment]; and
(3) in the case of collective self-defence the
victim State must request for assistance
(there is no rule permitting the exercise of
collective self-defence in the absence of a
6 | Page

request by the State which regards itself as

have been followed. On the other hand, if

the victim of an armed attack);

self-defence is advanced as a justification for

(4) the State does not, under CIL, have the

measures

same obligation as under Article 51 of the

breach both of the principle of customary

UN Charter to report to the Security Council

international law and of that contained in the

that an armed attack happened but the

Charter,

absence of a report may be one of the

conditions

factors

be respected.

indicating

whether

the

State

in

which

it

is

would

to

of

otherwise

be expected
the

Thus

for

Charter
the

be

that

in

the

should

purpose

of

question was itself convinced that it was

enquiry into the customary law position, the

acting in self-defence(see below).

absence of a report may be one of the

Para 200: At this point, the Court may

factors

consider whether in customary international

question was itself convinced that it was

law there is any requirement corresponding

acting in self-defence (emphasis added)(See

to that found in the treaty law of the United

also paras 232 -236).

Nations Charter, by which the State claiming

to use the right of individual or collective
self-defence must report to an international
body,

empowered

conformity

to

determine the

with international

law

of

the

measures which the State is seeking to

justify on that basis. Thus Article 51 of the
United

Nations

Charter

requires

that

measures taken by States in exercise of this

right of self-defence must be immediately
reported to the Security Council.As the
Court has observed above (paragraphs
178 and 188), a principle enshrined in a
treaty,

if

international

reflected
law,

in

may

customary
well

be

so

unencumbered with the conditions and

modalities surrounding it in the treaty.
Whatever influence the Charter may
have had on customary international
law in these matters, it is clear that in
customary international law it is not a

4.

indicating

whether

the

State

in

The Court looked extensively into the

conduct of Nicaragua, El Salvador, Costa Rica

and Honduras in determining whether an
armed attack was undertaken by Nicaragua
against the three countries which in turn
would necessitate self-defence (paras 230 236) . The Court referred to statements
made by El Salvador, Costa Rica, Honduras
and the US before the Security Council. None
of the countries who were allegedly subject
to

an

armed

attack

by

Nicaragua

(1)

declared themselves as a victim of an armed

attack or request assistance from the US in
self-defence at the time when the US was
allegedly acting in collective self-defence;
and (2) the US did not claim that it was
acting under Article 51 of the UN Charter and
it did not report that it was so acting to the
Security Council. US cannot justify its use of
force as collective self-defence.

condition of the lawfulness of the use of

5.

force in self-defence that a procedure

proportionality, that is necessary when using

so closely dependent on the content

force in self-defence was also not fulfilled

of a

(para 237).

treaty

commitment

and

of

the

The criteria with regard to necessity and

institutions established by it, should

7 | Page

weakening the political system so as to

The US breached its CIL obligation not

coerce the Government of Nicaragua to

to intervene in the affairs of another

accept US political demands. The Court held:

State

when

equipped

and

it

trained,

financed

armed,

the

contra

forces or encouraged, supported and

aided

the

military

and

paramilitary

activities against Nicaragua.

1.

The

principle

of

non-

intervention

means that every State has a right to

conduct

its

affairs

without

outside

interference I.e it forbids States or

groups of States to intervene directly or
indirectly in internal or external affairs
of other States. . This is a corollary of
the principle of sovereign equality of
States.
A

prohibited

intervention

must

accordingly be one bearing on matters in

which

each

State

is permitted,

by the

principle of State sovereignty to decide

freely. One of these is the choice of a
political,

economic,

social

and

cultural

system, and the formulation of foreign policy.

Intervention

is

wrongful

when

it

first, that the United States intended, by

its support of the contras, to coerce the
Government

of

Nicaragua

in

respect

of

matters in which each State is permitted, by

the principle of State sovereignty, to decide
freely (see paragraph 205 above) ; and
secondly that the intention of the contras
themselves was to overthrow the present
Government

of

Nicaragua

The

Court

considers that in international law, if one

State, with a view to the coercion of another
State, supports and assists armed bands in
that State whose purpose is to overthrow the
government of that State, that amounts to
an intervention by the one State in the
internal affairs of the other, whether or not
the political objective of the State giving
such support and assistance is equally far
reaching.
3.

The financial support, training, supply

uses

of weapons, intelligence and logistic support

methods of coercion in regard to such

given by the US to the contras was a breach

choices, which must remain free ones. The

of the principle of non-interference. no

element of coercion, which defines, and

such general right of intervention, in support

indeed forms the very essence of, prohibited

of an opposition within another State, exists

intervention, is particularly obvious in the

in contemporary international law, even if

case of an intervention which uses force,

such a request for assistance is made by an

either in the direct form of military action, or

opposition group of that State (see para 246

in the indirect form of support for subversive

for more).

or terrorist armed activities within another

4.

State (para 205).

2.

Nicaragua stated that the activities

of the US was aimed at (1) overthrowing the

government

of Nicaragua

and

(2)

substantially damaging the economy and

Interesting, however, the Court also

held that providing humanitarian aid to

persons
whatever

or

forces

their

in

another

political

country,

affiliations

or

objectives, cannot be regarded as unlawful

8 | Page

intervention, or as in any other way contrary

waters of Nicaragua and when it carried out

to international law (para 242).

unauthorized

5.

In the event one State intervenes in

the affairs of another State, the second State

has a right to intervene in a manner that is
short of an armed attack (210).
While an armed attack would give rise to an
entitlement to collective self-defence, a use
of force of a lesser degree of gravity cannot
as

the

Court

(paragraph
entitlement

21

has
1

already

above).

to

observed

produce

take

any

collective

countermeasures involving the use of force.

The acts of which Nicaragua is accused, even
assuming

them

to

have

been

established and imputable to that State,

could

only

have

justified

proportionate

counter-measures on the part of the State

which had been the victim of these acts,
namely El Salvador, Honduras or Costa Rica.
They

could

not

justify counter-measures

taken by a third State, the United States, and

particularly could not justify intervention
involving the use of force.
The

US

breached

its

customary

international law obligation not to

violate the sovereignty of another State
when it directed or authorized its
aircrafts to fly over Nicaraguan territory
and when it laid mines in the internal
waters of Nicaragua and its territorial
sea.
The basic concept of State sovereignty in
CIL is found in Article 2(1) of the UN Charter.
State sovereignty extends to its internal
waters, territorial sea and the air space
above its territory. The US violated CIL when
it laid mines in the territorial sea and internal

overflights

over Nicaraguan

airspace by aircrafts belong to or under the

control of the US.
Parties:
Federal Republic
Denmark and
of Germany
vs.
the Netherlands
Dispute:
Delimitation of the Continental Shelf.
The positions of the parties:

Denmark and the Netherlands:

wished prolongation to be effected on
the basis of the equidistance
principle
(Article
6,
Geneva
Convention on the Continental Shelf
1958)
the principle of equidistance is meant
to be customary international law
Geneva Convention on the Continental
Shelf (1958)
Article 6
1. Where the same continental shelf is
adjacent to the territories of two or more
States whose coasts are opposite each other,
the boundary of the continental shelf
appertaining to such States shall be
determined by agreement between them. In
the absence of agreement, and unless
another boundary line is justified by special
circumstances, the boundary is the median
line, every point of which is equidistant from
the nearest points of the baselines from
which the breadth of the territorial sea of
each State is measured.
2. Where the same continental shelf is
adjacent to the territories of two
adjacent States, the boundary of the
continental shelf shall be determined by
agreement between them. In the
absence of agreement, and unless
another boundary line is justified by
special circumstances, the boundary
shall be determined by application of
the principle of equidistance from the
9 | Page

nearest points of the baselines from

which the breadth of the territorial sea
of each State is measured.
3. In delimiting the boundaries of the
continental shelf, any lines which are drawn
in accordance with the principles set out in
paragraphs 1 and 2 of this article should be
defined with reference to charts and
geographical features as they exist at a
particular date, and reference should be
made to fixed permanent identifiable points
on the land.
Federal Republic of Germany:
contended that the correct rule was
one according to which each of the
States concerned should have a "just
and equitable share" of the available
continental shelf, in proportion to the
length of its sea-frontage.
Legal questions:
Article 6 of Geneva Convention on the
Continental Shelf (1958) binding for all
the parties in the case ?
customary international law applicable
?
The judgement:
Non-Applicability of Article 6 of the
Continental Shelf Convention (1958):
The legal situation was that the parties
were under no obligation to apply the
equidistance principle either under the
Convention or as a rule of general or
customary international law.

The Apportionment Theory Rejected.

The Principles and Rules of law
Applicable:
The court at the end advice
negotiation as the best way to
solve the conflict.

Article 38
1. The Court, whose function is to decide in
accordance with international law such
disputes as are submitted to it, shall apply:

a. international conventions, whether general

or particular, establishing rules expressly
recognized by the contesting states;
b. international custom, as evidence of a
general practice accepted as law;
c. the general principles of law recognized by
civilized nations;
d. subject to the provisions of Article 59,
judicial decisions and the teachings of the
most highly qualified publicists of the various
nations, as subsidiary means for the
determination of rules of law.
2. This provision shall not prejudice the
power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.
2.1. CUSTOMARY INTERNATIONAL LAW
AS A SOURCE OF LAW
Article

38

(1)

of

the

Statute

of

the

International Court of Justice is considered as

an authoritative statement on sources of
international law.

Article 38 (1) of the Statute of the ICJ. Article

38(1) (b) discusses customary international
law.
The court is requested to form its opinion
based

on

customary

international

law

evidenced by general practice accepted as

law.

This

sets

out

the

two

essential

components necessary to form customary

international law.
In the North Sea Continental Shelf Case, the
ICJ held that for a customary rule to emerge
that it needed:
(1) the objective element or State practice
(1)

very

widespread

and

representative

participation in the convention, including

10 | P a g e

States

whose

interests

were

specially

affected (i.e. generality); and

State practice that is necessary for the

formation of a CIL must be (1) consistent
and uniform; (2) generally accepted by

(2) virtually uniform practice (i.e. consistent

States; and (3) of a certain duration.

and uniform usage) undertaken in a manner

that demonstrates

(3) a general recognition of the rule of law or

legal obligation (i.e. opinio juries).
In the North Sea Continental Shelf cases the
court held that the passage of a considerable
period

of

time

was

unnecessary

(i.e.

duration) to form a customary law.

Elements of CIL

1. OBJECTIVE ELEMENT: the existence of

State practice. In other words, the actions or

.Customary international law can be general

omissions by the State must support the

or particular. Particular CIL embodies local or

custom; and

regional customs. This type of CIL doesnt

2.

SUBJECTIVE

ELEMENT: acceptance

as

law. In other words, States when performing

a custom must do so because they feel that
they are

legally bound to perform the

custom. We call this concept Opinio juris.

.
STATE PRACTICE
.
State practice can be seen in the actual
actions performed by the State (acts or
omissions), statements made by authorized
representatives

in

international

fora

or

through national laws and judicial decisions

that deal with international relations. See
further the ILA report on the formation of CIL
paras. 7-11.

bind all States; but, binds some States that

share a common interest or that are in a
similar geographical location.
The
Colombian
Ambassador
in Lima,
Per allowed Vctor Ral Haya de la Torre,
head of the American People's Revolutionary
Alliance sanctuary after his faction lost a
one-day civil war in Peru on 3 October 1949.
The Colombian government granted him
asylum, but the Peruvian government
refused to grant him safe passage out of
Peru.
Colombia maintained that according to the
Conventions
in
force
the Bolivian
Agreement
of
1911
on
Extradition,
the Havana Convention of 1928 on Asylum,
the Montevideo Convention of 1933 on
Political
Asylum[2] and
according
to
American International Law, they were
entitled to decide if asylum should be
granted and their unilateral decision on this
was binding on Per.[3]
11 | P a g e

Judgment[edit]
Both submissions of Colombia were rejected
by the Court. It was not found that the
custom of Asylum was uniformly or
continuously
executed
sufficiently
to
demonstrate that the custom was of a
generally applicable character.
[International Law] Asylum Case: Columbia v
Peru 1950 ICJ Rep. 266 Case Summary.
Facts
Victor Raul Haya de la Torre was a Peruvian
national. In Oct 3rd, 1948 one military
rebellion broke out in Peru which is organized
and directed by the American Peoples
Revolutionary Alliance led by Haya de la
Torre. The rebellion was unsuccessful. The
Peruvian Government issued a warrant for
his arrest on criminal charges related to this
political uprising. He fled to the Columbian
embassy in Lima seeking for asylum from
them. Columbia the requested permission
from Peru for Haya de la Torres safe passage
from the Columbian embassy, through Peru,
goes to Columbia. Peru refused to give such
permission. Columbia then brought this suit
against Peru in the International Court of
Justice, based on the agreement made by
both named Act of Lima.
These are the submissions made by the two
parties:
1) The Columbian had pleaded for the court
to declare that Columbia had properly
granted asylum based on 2 submissions: They are competent to qualify the
offence for the purpose of the said
asylum.
That Peru is bound to give the
guarantees necessary for the departure
of the Haya de la Torre, from the
country, with due regard to the
inviolability of his person.
2) Counter-claim by Peru is that for the court
to declare that the grant of asylum made by
the Columbian Ambassador to Haya de la

Torre was made in

Convention on Asylum.

violation

of

the

Argument
Plaintiff (Columbian) arguments based on the
Convention in force which are the Bolivarian
Agreement 1911 on Extradition, the Havana
Convention 1928 on Asylum, the Montevideo
Convention 1933 on Political Asylum and
American International Law.
The Defendant (Peru) counter-claim relied on
the rules of Havana Convention first, Haya de
la Torre was accused, not a political offense
but of a common crime and second, because
the urgency which was required under the
Havana Convention in order to justify asylum
was absent in that case.
Issue
1. Based on conventions, which in
force between both countries, and in general
from American international law, whether
Columbia competent, as the country granting
asylum, to qualify the offence for the
purpose of said asylum?
2. Was Peru bound to give the
guarantees necessary for the departure of
the refugees from the country, with due
regard to the inviolability of his person?
Decision
1) Columbia was not competent to
qualify the nature of the offence by a
unilateral and definitive decision binding on
Peru.
2) Columbia was not entitled to claim
that the Peru was bound to gives guarantees
necessary for the departure of Haya de la
Torre, with due regard to the inviolability of
his person.
3) Peru counter-claim that Haya de la Torre
was an accused of a common crime was
rejected, therefore it was not in accordance
with Article I, Paragraph I of the Havana
convention.
4) Peru Counter-claim that the grant of
asylum by the Columbian government to
Haya de la Torre Torre was made in violation
12 | P a g e

of Article 2, Paragraph 2 of the Havana

Convention was approved by the court.
Ratio Decidendi
1) The court reject the Columbian
argument based on Bolivarian Agreement on
the reason that the principle of International
Law did not recognize any rule of unilateral
and definitive qualification by the state
granting diplomatic asylum.
On the other hand, the Bolivarian Agreement
laid down rules on extradition and it was not
possible to deduce from them conclusions
concerning diplomatic asylum as it was
different in the meaning.
The court also rejected the Havana
Convention invoke by the Columbian as the
convention did not recognize the right of
unilateral qualification.
And the third convention, Convention of
Montevideo, had not been ratified by Peru
and could not be invoked against it.
As for the American international law,
Columbia had failed to prove that it had
constant and uniform practice of unilateral
qualification as a right of the State of refuge
and an obligation upon the territorial state.
The fact submitted to the court disclosed too
much contradiction and fluctuation, shows
that therein a usage peculiar to Latin
America and accepted as law.
2) The court also rejected the
Columbian
claim
based
on
Havana
Convention that the Peru was bound to gives
guarantees necessary for the departure of
Haya de la Torre, on the reason that the
convention only applicable if the territorial
State demanded the departure of the
refugee from its territory. It was only after
such demand that the diplomatic Agent who
granted asylum could require safe-conduct.
3) Peru counter-claim that Haya de la Torre
was an accused of a common crime was
rejected on the reason that the refugee was
charged for military rebellion, which was not
a common crime as needed under the
Havana Convention.

4) The court came into conclusion on Peru

Counter-claim that the grant of asylum by
the Columbian government to Haya de la
Torre Torre was made in violation of Article 2,
Paragraph 2 of the Havana Convention was
on the reason that the absent of element of
urgency needed to justify the asylum, in
order to protect the person from danger.
In this case the danger that only faced by
Haya de la Torre is legal preceding that will
be imposed on him, not a deprivation of his
right.
The Havana Convention according to the
court was not intended to protect a citizen
who had plotted against the institutions of
his country from regular legal proceedings.
Asylum could only intervene against the
action of justice in cases where arbitrary
action was substituted for the rule of law.
Rationale
1) Before a convention can be accepted to
be used as the law under Article 38 of
Statute of International Court of Justice, it
must be ratified by the contesting state.
- This has been shown by the reluctance of
the court to used certain provision in the
convention as had not been ratified by the
party country.
- Ie: see rules on Montevideo Convention.
2) The principle of International Law that are
not recognizing the rules of unilateral treaty.
3) This decision also shows us that in order
for the custom to be international custom it
must be a general practice.
- Ie: see rules on American International Law
The United Kingdom v Norway [1951] ICJ 3 also
known as the Fisheries Case was the culmination of a
dispute, originating in 1933, over how large an area of
water surrounding Norway was Norwegian waters
(that Norway thus had exclusive fishing rights to) and
how much was 'high seas' (that the UK could thus
fish).

13 | P a g e

History[edit]
The situation which gave rise to the dispute
and the facts which preceded the filing of the
British Application are recalled in the
Judgment. The coastal zone concerned in the
dispute is of a distinctive configuration. Its
length as the crow flies exceeds 1,500
kilometers. Mountainous along its whole
length, very broken by fjords and bays,
dotted with countless islands, islets and reefs
(certain of which form a continuous
archipelago known as the skjaergaard, "rock
rampart"), the coast does not constitute, as
it does in practically all other countries in the
world a clear dividing line between land and
sea. The land configuration stretches out into
the sea and what really constitutes the
Norwegian coastline is the outer line of the
land formations viewed as a whole. Along the
coastal zone are situated shallow banks
which are very rich in fish. These have been
exploited from time immemorial by the
inhabitants of the mainland and of the
islands:
they
derive
their
livelihood
essentially from such fishing. In past
centuries British fisherman had made
incursions in the waters near the Norwegian
coast. As a result of complaints from the King
of Norway, they abstained from doing so at
the beginning of the 17th century and for
300 years. But in 1906 British vessels
appeared again. These were trawlers
equipped with improved and powerful gear.
The local population became perturbed, and
measures were taken by Norway with a view
to specifying the limits within which fishing
was prohibited to foreigners. Incidents
occurred, became more and more frequent,
and on July 12, 1935 the Norwegian
Government
delimited
the
Norwegian
fisheries zone by Decree. Negotiations had
been entered into by the two Governments;
they were pursued after the Decree was
enacted, but without success. A considerable
number of British trawlers were arrested and
condemned in 1948 and 1949. It was then

that the United Kingdom Government

instituted proceedings before the Court.
Facts[edit]
On 24 September 1949, the UK requested
that
the International
Court
of
Justice determine how far Norway's territorial
claim extended to sea, and to award the UK
damages in compensation for Norwegian
interference with UK fishing vessels in the
disputed waters, claiming that Norway's
claim to such an extent of waters was
against international law.
Judgment[edit]
On 18 December 1951, the ICJ decided that
Norway's claims to the waters were not
inconsistent
with
international
laws
concerning the ownership of local sea-space.
The Court found that neither the method
employed for the delimitation by the Decree,
nor the lines themselves fixed by the said
Decree, are contrary to international law; the
first finding being adopted by ten votes to
two, and the second by eight votes to four.
Three Judges MM. Alvarez, Hackworth and
Hsu Mo appended to the Judgment a
declaration or an individual opinion stating
the particular reasons for which they reached
their conclusions; two other JudgesSir
Arnold McNair and Mr. J. E. Readappended
to the Judgment statements of their
dissenting Opinions.

Name of the Case: The Lotus Case

(France vs Turkey); Year of the decision:
1927; and Court: PCIJ.
Overview: A collision occurred on the high
seas between a French vessel and a Turkish
vessel. Victims were Turkish nationals and
the
alleged
offender
was
French.
Could Turkey exercise its jurisdiction over
the French national under international law?
14 | P a g e

Facts of the Case:

A collision occurred on the high seas
between a French vessel Lotus and a
Turkish vessel Boz-Kourt. The BozKourt sank and killed eight Turkish nationals
on board the Turkish vessel. The 10 survivors
of the Boz-Kourt (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 (PCIJ).
Questions before the Court:
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?
The Courts Decision:
Turkey, by instituting criminal proceedings
against Demons, did not violate international
law.
Relevant Findings of the Court:
Establishing Jurisdiction: Does Turkey need to
support its assertion of jurisdiction using an
existing rule of international law or is the
mere absence of a prohibition preventing the
exercise of jurisdiction enough?
The first principle of the Lotus case said that
jurisdiction is territorial: A State cannot
exercise
its
jurisdiction outside
its
territory unless an international treaty or
customary law permits it to do so. This is
what we called the first Lotus Principle.
Now the first and foremost restriction
imposed by international law upon a State is
that failing the existence of a permissive
rule to the contrary it may not exercise its
power in any form in the territory of another
State. In this sense jurisdiction is certainly

territorial; it cannot be exercised by a State

outside its territory except by virtue of a
permissive rule derived from international
custom or from a convention. (para 45)
The
second
principle
of
the
Lotus
case: 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.
It
does
not,
however,
follow
that
international law prohibits a State from
exercising jurisdiction in its own territory, in
respect of any case which relates to acts
which have taken place abroad, and in which
it cannot rely on some permissive rule of
international law. Such a view would only be
tenable if international law contained a
general prohibition to States to extend the
application of their laws and the jurisdiction
of their courts to persons, property and acts
outside their territory, and if, as an exception
to this general prohibition, it allowed States
to do so in certain specific cases. But this is
certainly not the case under international law
as it stands at present. Far from laying down
a general prohibition to the effect that States
may not extend the application of their laws
and the jurisdiction of their courts to
persons, property and acts outside their
territory, it leaves them in this respect a wide
measure of discretion, which is only limited
in certain cases by prohibitive rules; as
regards other cases, every State remains
free to adopt the principles which it regards
as best and most suitable. This discretion left
to States by international law explains the
great variety of rules which they have been
able to adopt without objections or
complaints on the part of other States In
these circumstances all that can be required
of a State is that it should not overstep the
limits which international law places upon its
jurisdiction; within these limits, its title to
15 | P a g e

exercise
jurisdiction
rests
in
its
sovereignty. (paras 46 and 47)
This applied to civil and criminal cases. If the
existence of a specific rule was a prerequisite to exercise jurisdiction, PCIJ argued,
then it wouldin many cases result in
paralysing the action of the courts, owing to
the impossibility of citing a universally
accepted rule on which to support the
exercise of their [States] jurisdiction (para
48).
The PCIJ based this finding on the sovereign
will of States.
International law governs relations between
independent States. The rules of law binding
upon States therefor emanate from their own
free will as expressed in conventions or by
usages generally accepted as expressing
principles of law and established in order
to regulate the relations between these coexisting independent communities or with a
view to the achievement of common aims.
Restrictions upon the independence of States
cannot therefore be presumed
[NB: This was one of the more debated
aspects of the judgement. Some argued that
the Court placed too much emphasis on
sovereignty and consent of States (i.e. took a
strong positivist view)].
Criminal
Jurisdiction:
Territorial
Jurisdiction
France alleged that the flag State of a vessel
would have exclusive jurisdiction over
offences committed on board the ship in high
seas. The PCIJ disagreed. It held that 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 (paras 71 84). The
Court held that Turkey and France both have
jurisdiction in respect of the whole incident:
i.e. there is concurrent jurisdiction.
The PCIJ held that 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. In this case, the Court

equated the Turkish vessel to Turkish
territory. In this case, the PCIJ held that the
offence 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. Turkey had
jurisdiction over this case.
If, therefore, a guilty act committed on the
high seas produces its effects on a vessel
flying another flag or in foreign territory, the
same principles must be applied as if the
territories of two different States were
concerned, and
the
conclusion
must
therefore be drawn that there is no rule of
international law prohibiting the State to
which the ship on which the effects of the
offence have taken place belongs, from
regarding the offence as having been
committed in its territory and prosecuting,
accordingly, the delinquent.
The Lotus Case was also significant in that
the PCIJ said that a State would have
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. Today, we call this
subjective territorial jurisdiction. In order for
subjective territorial jurisdiction to be
established, one must prove that the
element of the crime and the actual crime
are entirely inseparable; i.e., if the
constituent element was absent the crime
would not have happened.
The offence 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 BozKourt. These two elements are, legally,
entirely inseparable, so much so that their
separation
renders
the
offence
nonexistent It is only natural that each should
be able to exercise jurisdiction and to do so
16 | P a g e

in respect of the incident as a whole. It is

therefore a case of concurrent jurisdiction.
Customary International Law
The Lotus case gives an important dictum on
creating customary international law. France
alleged
that
jurisdictional
questions
on collision cases are rarely heard in criminal
cases because States tend to prosecute only
before the flag State. France argued that this
absence of prosecutions points to a positive
rule in customary law on collisions.The Court
held that this would merely show that
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. In other words,
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. (For more on opinio
juris click here)
Subsequent
ICJ
Decisions
and Separate Opinions That Referred to
Principles of the Lotus Case
1. Advisory Opinion on the Unilateral
Declaration of Kosovo (2010)
In the Kosovo Advisory Opinion the Court had
to decide if the unilateral declaration of
Kosovo of February 2008 was in accordance
with international law. The Court inquired
and
concluded
that the
applicable
international law did not prohibit an
unilateral declaration of independence.
Based on this finding, the Court decided that
the adoption of the declaration of
independence did
not
violate
any
applicable rule of international law.

Judge Simma disagrees, inter alia, with

Courts methodology in arriving at this
conclusion. He imputes the method to the
principle established in the Lotus case: that
which is not prohibited is permitted under
international law. He criticises the Lotus
dictum as an out
dated,
19th
century
positivist
approach that
is
excessively
differential towards State consent. He
says that the Court should have considered
the possibility that international law can be
deliberately neutral or silent on the
international lawfulness of certain acts.
Instead of concluding that an the absence of
prohibition ipso facto meant that a unilateral
declaration of independence is permitted
under international law, the court should
have inquired whether under certain
conditions international law permits or
tolerates
unilateral
declarations
of
independence.

Erga omnes is a Latin phrase which means "towards

all" or "towards everyone". In legal terminology, erga
omnes rights or obligations are owed toward all. For
instance

a property

right is

an erga

omnes entitlement, and therefore enforceable against

anybody infringing that right. An erga omnes right (a
statutory right) can here be distinguished from a right
based on contract, unenforceable except against the
contracting party.
In international law it has been used as a legal term
describing obligations owed by states towards the
community

of

states

as

whole.

An erga

omnes obligation exists because of the universal and

undeniable interest in the perpetuation of critical rights
(and the prevention of their breach). Consequently,
any state has the right to complain of a breach.
Examples

of

erga

include piracy and genocide.

omnes
The

concept

norms
was

recognized in the International Court of Justice's

decision in theBarcelona Traction case [(Belgium v

17 | P a g e

Spain) (Second Phase) ICJ Rep 1970 3 at paragraph

obligations

33]:

contemporary international law, from the

" an essential distinction should be drawn
between the obligations of a State towards the
international community as a whole, and
those arising vis--vis another State in the
field of diplomatic protection. By their very
nature, the former are the concern of all
States. In view of the importance of the rights
involved, all States can be held to have a
legal interest in their protection; they are
obligations

erga

omnes.

[at

34]

Such

derive,

for

example,

in

outlawing of acts of aggression, and of

genocide, as also from the principles and
rules concerning the basic rights of the human
person, including protection from slavery and
racial

discrimination.

corresponding

rights

Some
of

of

the

protection

have

entered into the body of general international

law . . . others are conferred by international
instruments of a universal or quasi-universal
character."

18 | P a g e