A.
INTRODUCTION
Chapter 1: Introduction
The problem of defining IL
term IL first used by Jeremy Bentham on
1780
replaced the term law of nations which
can be traced from Ciceros concept of ius
gentium
German, Dutch, Scandinavian, and Slavic
languages continue to use the term
Volkerrecht
Prior to WWI and WWII, the term was
usually defined as law that governs the
relations between and among states
Positivist doctrine (19th-first half 20th
Century) only states can be subjects of
international law, in a sense of enjoying
international legal personality and being
capable of possessing international rights
and duties
Rise of intergovernmental organizations,
non-governmental organizatons,
transnational companies have made this
definition complicated
Restatement defition of IL 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
Despite the question of definition and the
increase in global interdependence, IL is
still predominantly made and
implemented by states
General and regional international law
General IL rules and principles that are
applicable to a large number of states, on
the basis of either customary international
law or multilateral treaties;
o If they become binding upon all
states, it is referred as universal
international law
Regional international law applies only to
certain group of states
o Particular international law rules
which are binding upon two or a
few states only
International comity mere usage, in the
sense of widespread practice observed
between states WITHOUT any sense of
legal obligation
Characteristics of International Law
primarily concerned with the legal
regulation of the international intercourse
of states which are organized as territorial
entities, which are limited in number, and
consider themselves in formal terms as
sovereign and equal
horizontal legal system lacking a
supreme authority, the centralization of
the use of force, and the differentiation of
the three basic functions of law-making,
law determination, and law enforcement
typically entrusted to central organs
A state that violates an international
obligation is responsible for the act
towards the injured state, or to the
international community as a whole.
o The concept of self-help by injured
state is more predominant in IL.
Sanction available to the injured state:
principle of self-help
o Retorsion lawful act which is
designated to injure the
wrongdoing state (i.e. cutting of
economic aid)
o Reprisals acts that are illegal per
se but are rendered legal by a prior
illegal act committed by another
state; must be proportional to the
original wrong
Disadvantage: double-edged as it may
also injure itself in the imposition of the
sanction; solution collective action
through the UN
Sanctions work less effectively in IL due to
the unequal level of strength among
states
IL as a primitive legal system as it calls
for collective responsibility for the whole
community of a state which has
committed an internationally wrongful act
International law as law
Controversy: IL lacks sanctions in case of
violation of international norms compared
to municipal law; raises the question of
the effectiveness and enforcement of IL
Realist view (Morgenthau, Kennan,
Kissinger) reductionist perception of IL,
emphasizes the role of power and national
interests in IR; the role of IL has always
been limited
Discussion of IL as law is moot
o the general concept of law is
subject to divergent views
throughout the world (Anglo-Saxon
common law, Continental civil law,
Marxist concept of law as a product
of class struggle, Islamic concept of
the union of state, society, and
religion, special traditions in Asia
and Africa)
o IL follows a horizontal system of
law which operates differently from
a centralized one; IL is based on
 reciprocity and consensus rather understanding that cerain
than command, obedience, and rules were necessary for the
enforcement; it remains to provide preservation of society
a framework for conduct of states o Vitoria and Suarez (Spanish)
in IR o Gentili (Italian)
o Zouche (English)
Positivists
Scope of IL o Law was largely man-made, law
The concept of sovereignty of states is and justice are not the same thing
becoming more antiquated in view of the and may vary from time to time
globalization of economy and increasing and drom place to place; it is the
interdependence of states actual behavior of states that
covers vast and complex areas of determine IL.
transnational concerns, including o Bynkershock (Dutch)
traditional topics, such as the position of o von Vattel (Swiss)
state, state succession, state Inherent rights which states
responsibility, etc. derived from natural law
IL has through maturity acquired make states accountable
complexity only to their own
consciences for the
observance of duties
Chapter 2: History and theory imposed by natural law,
unless they had expressly
Origin agreed to treat those duties
Emerged in Europe in the period after the as part of positive law
Peace of Westphalia (1648) after the Thirty Theory of Sovereignty
Years War began as an attempt to analyze the
Grewe (German) Three distinct system of internal structure of the state
IL some entity which possessed supreme
o Spanish age (1494-1648) legislative/political power
o French age (1648-1815) Can be traced back to Machiavelli, Bodin,
o English age (1815-1919) Hobbes
Bernhardt Main proponent: John Austin law as
o 1648-1815 general commands of a sovereign,
o 18-15-WWI supported by the threat of sanctions; thus
o Interwar period IL is not law
o Developments since WWII Transformed to describe sovereignty as
Classical System (1648-1918) based not only to the relationship of a superior to
on the recognition of the modern his inferiors within a state, but also the
sovereign state as the only subject of IL; relationship of the ruler or the state itself
equal states with the unlimited right to towards other states
wage war to enforce claims and protect IL lawyers concept of sovereignty: states
national interests are independent from each other
Modern System (1918-onwards) 1923 Wimbledon case In the conclusion
attempt to organize the international of any treaty is an attribute of state
community and to ban the use of force sovereignty, not an abandonment of it.

Theory: Naturalists and Positivists Legal results of the period up to WWI

Naturalists territorial sovereignty
o Basic principles of all law were freedom of the high seas
derived from the principles of state immunity from jurisdiction from
justice which has a universal and other courts
eternal validity which can be diplomatic and consular relations
discovered through pure reason pacta sunt servanda and the law on
o Leading figure: Hugo Grotius
treaties
(Dutch)
rules on diplomatic protection of
Father of IL
foreigners and their property
Natural law is a product of
neutrality
men living together in a
society capable of
The unlimited right to use force
Central feature of Classical IL
Effective annexation of conquered foreign
territory was a valid legal title to acquire
sovereignty over it.
the concept of IL also served to facilitate
the process of colonization; acquisition of
sovereignty over lands deemed terrae
nullius areas deemed to belong to
nobody, a notion adopted in areas where
there is a lack of strong central power that
can resist conquest
Doctrine of intervention primarily
motivated by religious considerations;
religious intervention founded upon
natural law to protect fellow Christians;
Vattel and Wolffs principle of non-
intervention by the 19th century allows one
exception right of intervention based on
treaties and on the principles of self-help
and self-preservation; developed into
intervention for humanitarian nations
States are mostly pursuing their own ends
when intervening in other states for
alleged human rights purposes.
Peaceful Settlement of Disputes
Evolved since the Peace of Westphalia
Arbitration eliminating a dispute by
binding third-party decision
o 1794 Jay Treaty of Amity,
Commerce, and Navigation
agreement to settle claims for
damages by British and American
nationals whose property had been
confiscated or ships taken by the
enemy government
Prohibition of slave trade
18th century expansion of European trade
which does not only cover goods but also
slaves
Moves for the abolition of slavery
o 1814 - France and Britain
condemned slave trade
o 1815 - Vienna Congress
o 1890 - General Act of the Brussels
Conference relative to the African
Slave Trade
Humanization of the law of warfare
1863 Instructions for United States Armies
in the Field (Lieber Code)
1864 Geneva Convention initiated by
Henry Dunant; founded the International
Committee of the Red Cross
1868 Petersburg Declaration prohibiting
the use of small exploding projectiles
1899 and 1907 Hague Peace
Conferences laid down the development
of modern international humanitarian law
First forms of International Organizations
Commerce required the
internationalization of rivers and
establishment of international river
commissions
Development of technology,
communications, and commerce prepared
the way for international administrative
unions
Hague Peace Conferences of 1899 and 1907
ended the classical international law
First initiated by Tsar Nicolas II, the Second
by President Theodore Rossevelt
1899 Conference
o deals with law of land warfare, law
of sea warfare, pacific settlement
of disputes, and the establishment
of the Permanent Court of
Arbitration; non- binding resolution
on the limitation of military
expenditure of parties
1907 Conference
o addressed similar issues with the
first
Failed to address the major tensions in the
world, the problem of colonialism,
reserved to states the right to determine
for themselves what affected their vital
interests-excluded from the obligation to
arbitrate is left to the discretion of the
states
The watershed after WWI
Treaty of Versailles made Germany
responsible for the war, lost colonies, lost
one-third of its territory, and was made to
pay a ruinous system of reparations
o criticized by John Maynard Keynes
as the precursor to the start of
WWII
Rise of the US and the transformation of
the British Empire into a British
Commonwealth
1917 Russian Revolution made the USSR
at odds with the existing system of IL;
according to Marxism, it denies the
application of one system of IL to both
capitalist and socialist states
League of Nations
President Woodrow Wilsons Fourteen
Points called for the establishment of a
general association of nations under
specific covenants for the purpose of
affording mutual guarantees of political
 independence and territorial integrity
applicable to all states
primary purpose is to promote
international cooperation and the
achievement of peace and security by the
acceptance of obligation not to resort to
war
o three-month cooling period before
resorting to war was in place
Attempt to restrict the use of force
1928 Paris Pact on the Banning of War
(Kellog-Briand Pact) refrained from
establishing an effective enforcement
mechanism, right of self-defense was not
affected (reservation by the British to
defend its vital interests and US kept the
application of the Monroe Doctrine)
Other Functions of the League
disarmament and open diplomacy to
abolish the practice of secret treaties
establishment of a mandates system
puts under international tutelage nascent
nations in former colonies
protection of minorities in Europe, health
and labor standards
Permanent Court of Justice
1921- Creation of the Permanent Court of
International Justice
Enjoyed considerable authority as cases
are mostly between European states
Failure of the League System
US failed to join the League, making the
organization have a hard time achieving
its objectives
Controlled by France and Britain
First composed of 27 victor states signing
the Treaty of Versailles plus the British
Empire, 22 members later added, with 16
members withdrawing later on
Primarily failed due to the inherent
contradiction in the concept of collective
security in the form of mere association of
self-interested sovereign states with the
assumption that all states equally have a
strong interest in preventing aggression
Development after the WWII
26 June 1945 Signing of the UN Charter;
entered into force 24 October 1945
Nuremberg and Tokyo Trials affirmed the
individual responsibility of German and
Japanese leaders in committing crimes
against peace, war crimes, and crimes
against humanity
Prohibition in the use of force and collective
security in the UN Charter
1941 Atlantic Charter prepared the
establishment of a new global
organization of states to preserve the
peace
UN Charter originally signed by 51
states
Article 2(4) comprehensive ban on
the use of force, except of the rights of
states to collective and individual self-
defense against an armed attack (Art.
51)
Chapter VII giving the UN Security
Council the authority to determine
whether there is a threat to or a breach
of international peace and security and
to adopt economic and military
measures against the aggressor state
Collective system did not work due to
the antagonism between former allies
after the war
Decolonization and change in the composition of
the international community
decolonization is based on the principle of
self-determination laid down in the UN
Charter
Completed on 1960 through the adoption
of the UN General Assembly Declaration
on the Granting of Independence to
Colonial Countries and Peoples.
The rise of the Third World made them a
majority in the General Assembly,
however the West continues to dominate
international financial institutions
Attitudes of the third World states towards
international law
leaders of the Third World often argue that
they are not bound by rules which they did
not help to create because they were then
colonies during the formative years of
international law; howecer the necessity of
international law itself as a legal system
regulating intercourse between states was
accepted
Economic interests also affect their
attitudes to IL, (i.e. fisheries dependent
countries are influenced in their position
on law of the seas)
UNGA became main fora to ventilate
claims for a New International Economic
Order, New International Communication
Order, common heritage of mankind
principle to the benefits of deep-sea
mining, and the use of outer space, and
other mechanisms that will have an effect
of recognizing a legal obligation of
 industrialized states to transfer technology
and financial resources to the South
Resentment to their colonial experience
which has not yet led them to making
colonial powers liable; perception that IL
sacrifices their interests to those of
Western states
Universality and the challenge to the unity of IL
Transition from classic to modern IL has
lost its European character and has
embraced a global system
heterogeneous states
development of a concept of international
legal community both referring to
principles and rules of IL with a higher
legal status than other parts of IL
o jus cogens
o international public order
shift from the sole maintenance of peace
and order to furthering economic and
social goals
o manifested by the proliferation of
international organizations active in
a broad variety of fields, appeared
as a new category of international
legal subjects
stronger recognition of the position of the
individual
o firstly considered as a mere object
of IL
o shown in the international
protection of refugees; codification
of international human rights law
as framed by the UDHR,
advancement of IHL with the four
Geneva Conventions of 1945 and
two additional protocols on 1977
end of the West-East and North-South
conflict has led to the resurgence of
nationalism and rise of ethnic conflict and
civil wars
o the end of the Cold War provoked a
controversy on the legality of
democratic intervention
(intervention to support
establish a democratic system of
government in another state
against illegitimate regimes, in
connection with humanitarian
intervention
o theory of the necessary structural
link between democracy and
human rights
o question is the compatibility of
Western system to different
societies with different history,
society, and culture
Fukuyama v. Huntington
o Francis Fukuyama author of the
End of History and the Last Man;
considered the fall of the Berlin
Wall as the victory of capitalism
and democracy
o Samuel Huntington author of the
Clash of Civilizations; civilization
identity will be increasingly
important in the future
Friendly Relations Declaration (1970)
1. the prohibition of the threat or use of
of force by states against the territorial
integrity or political independence of any
state, or in any other manner inconsistent
with the purposes of the Charter;
2. the peaceful settlement of disputes
between states in such a manner that
international peace and security and
justice are not endangered;
3. the duty not to intervene in matters
within the domestic jurisdiction of any
state, in accordance with the Charter;
4. the duty of states to cooperate with one
another in accordance with the Charter;
5. the principle of equal rights and self-
determination of peoples;
6. the principle of sovereign equality of
states; and
7. the principle that states shall fulfill; in
good faith the obligations assumed by
them in accordance with the Charter.
New developments in theory
policy-oriented New Haven school
o Founded by Myres S. McDougal
or o IL as a constant flow of
authoritative decision-making in
which legal argument is only one
factor among many others
Critical Legal Studies
o challenges positivist perception of
IL from a methodological point of
law based on analytical language
philosophy and a hermeneutical
theory of law
o deconstruction of international
legal argumentation IL has a
distinct existence of its own
Utopian theories
o Feminists approach to IL
 o Bridging the Gap between IL and IR
theory
Marxist-Leninist theory of IL has vanished
from the arena and has become a mere
historical interest (MEV: I do not think so. Critical
Legal Studies stemmed out from M-L tradition)
***
B. SOURCES OF INTERNATIONAL LAW
Formal v. Material Sources
Material/Historical sense causal or
historical reference explaining the factual
existence of a given rule of law at a given
place and time
Formal/Legal sense criteria under which
a rule is accepted as valid in a given legal
system at issue;
o distinguishes binding law from
legally non-binding other social or
moral norms
o the law de lege lata (the law as it
currently stands) v. the law de lege
ferenda (the las as it may be, or
should be, in the future)
Article 38(1) of the Statute of the ICJ
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) 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.
Critique: does not list all sources of IL; it includes
aspects which are not genuine sources
Treaties
Law-making treaties and contract treaties
o Law-making treaties (traits-lois)
resemble national statutes in
content, imposes the same
obligations on all parties to the
treaty and seek to regulate the
parties behavior over a long period
of time; purpose is to conclude an
agreement on universal
substantive legal principles; can be
a source of IL
o Contract-treaties (traits-contrat)
resembles contracts; not a source
of IL but merely a legal transaction
Critique: analogy between national statutes and
law-making treaties are misleading: 1) in national
systems, anyone who is contractually competent
can enter into a contract, parliamentary
legislation is passed by a small group of people;
in IL, any state can enter into a treaty, including a
law-making treaty. 2) in national systems of law
contracts, it creates rights and duties only for the
contracting parties while statutes apply to a large
number of people; in IL, parties to a law-making
treaty are more numerous than the parties to a
contract-treaty, but there is no reason as to why
Distinction is one of content, Akehurst believes
that all treaties are sources of law. the law of
treaties applies to both.
Parties to international treaties and
internationalized contracts
o Only subjects of IL states, IOs and
traditionally recognized entities
can conclude treaties under IL
o Internationalized contracts
Contracts between states and
foreign corporations which are not
fully, or partially, placed under a
national law, but under IL, general
principles of law, or only under the
provisions of the contract itself
 Reason: establish a balance
between parties and to
prevent the state party from
evading its obligation by
changing its own national
law
often secured by an
arbitration clause referring
disputes to an international
body
Custom
Nicaragua v. USA: constituted by two
elements the objective one of a general
practice or state practice, and the
subjective one accepted by law or opinio
juris
Libya v. Malta: substance of IL must be
looked for primarily in the actual practice
and opinio juris of States
Evidence of Customary IL
o Main evidence: actual practice
gathered from:
published materials
state laws and judicial
decisions
correspondence with other
States and advice received
from its own legal advisers
writings of international
lawyers
judgments of national and
international tribunals
treaties
bilateral treaties -
treat with care; one
needs to know the
intention of parties
to the treaties in
question before
invoking a standard
treaty provision as
customary law)
multilateral treaties
constitutes
customary IL;
declaratory of
customary law or
intends to codify
customary law can
be invoked against a
state which is not a
party to the treaty
Objective element: What constitutes
general practice?
o relative concept and cannot be
determined in the abstract
o includes the conduct of all states,
which can participate in the
formulation of the rule or the
interests of which are specially
affected
o should reflect wide acceptance
among states particularly involved
in the relevant activity
o does not require the unanimous
practice of all states or other
international subjects
o a state can be bound by general
practice of other states even
against its wishes
EX: Persistent Objector
protests against the
emergence of the rule and
continues persistently to do
so
o it does not only consist of what
states do, but also what they say
o includes omissions; rules in IL
forbid states to do certain acts, and
in proving such rule, it is necessary
to look what they do not do
Subjective or mental Element (opinio juris
sive necessitatis)
o examination of why they do such
action psychological element in
the formation of customary law
o conviction that the state practice
reflects a legal obligation
o contra. comity between states
(courtoisie) habitual acts that are
motivated solely by courtesy or
tradition but not by any sense of
legal duty
o opinio juris sive necessistatis
conviction felt by states that a
certain form of conduct is
permitted in IL
Official statements not
required - opinio juris may
be gathered from acts or
omissions
On permissive rules: prove
by showing some states
acted in one way and other
states did not protest such
acts as illegal
On rules imposing duties:
states regard the action as
obligatory through pointing
to an express
acknowldgement of the
obligation by the states
concerned, or by showing
that failure to act in the
manner required by the
alleged rule has been
condemned as illegal by
other states whose interests
were affected
 o opinio juris can also be interpreted
to mean that states must believe
that something is already law
before it can become law; not true
because what matters is not what
states believe but what they say
(Akehurst)
o Customary IL has a built-in
mechanism for change: if states
agree that a rule should be
changed, a new rule of CIL based
on the new practice can emerge
very quickly
Problem occurs when there
is an fairly balanced number
of states supporting and
resisting the change
uncertainity persists until a
new consensus emerges
Paquete Habana Case (1900)
Facts:
The Paquete Habana (sloop) and
The Lola (schooner) are Cuban
fishing vessels sailing under the
Spanish flag with a cargo of live
fish and no ammunitions. US
warships captured both vessels as
prize of war. The ships were then
auctioned off and their cargoes
confiscated.
Issue:
WON the fishing smacks were
subject to capture by the armed vessels of
the US during US-Spanish War.
Ruling:
No. The capture is unlawful and
without probable cause.
Principle:
Ancient practice, which ripened
into international law: Coast fishing
vessels pursuing their vocation of
catching and bringing fresh firsh
has been recognized as exempt,
with their cargoes and crews, from
capture as prize of war
Where there is no treaty and no
controlling executive or legislative
act or judicial decision, resort must
be had to the customs and usages
of civilized nations
Fishing was considered as a pacific
activity and less contributory to
national wealth engaged mainly
for subsistence of fishermen and
their families
Exemption does not apply: 1) 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; 2)
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.
Law of universal obligation rests
upon the common consent of
civilized communities; force not
because it is prescribed by any
superior power, but because it has
been generally accepted as a rule
of conduct
Instant customary law
o diritto spontaneo, droit spontane
o denies the significance of state
practice and the relevance of time
in the formation of CIL and to rely
solely on opinio juris as expressed
in non-binding resolutions and
declarations as constructive
element of custom
o FRG v. Netherlands, Denmark: IL
may emerge even within a
relatively short passage of time;
reduction of time-element is
carefully balanced with a stronger
emphasis on the scope and nature
of state practice;
Nicaragua v. USA
Facts:
Following the fall of President
Somoza of Nicaragua, a Junta of
National Reconstruction was
created which the armed
opposition to Somoza, the
Sandanistas, led.
To oppose this new government,
supporters of Somoza and former
members of the National Guard
formed themselves into irregular
military forces engaged in limited
armed opposition.
Though favorable to the Junta at
first, US suspended its aid to
Nicaragua which was later on
terminated due to Nicaraguas
logistical support and provision of
arms to the guerillas in El Salvador.
No diplomatic ties were severed.
The armed oppositions were
grouped into two: the Fuerza
Democratica Nicaraguense and
Alianza Revolucionaria
Democratica. It was found out that
 the US, through the US press and
official statements of the President
and high government officials, has
been giving support to the armed
opposition (contras).
The Nicaraguan Government
alleged that due to the activity of
the contras, widespread loss of life
and the killing of prisoners,
civilians, torture, rape, and
kidnapping were committed.
o Planting of mines on the
coast outside Nicaragua,
blasting of oil depots and
pipelines
Moreover, Nicaragua also alleged
that persons paid by the US and
under their direct command
conducted some military or
paramilitary operations.
o Overflight over Nicaraguan
airspace
o Funding of rebel groups
through the CIA and
provision of espionage and
guerrilla guidebooks (i.e.
Operaciones sicologicas en
Guerra de guerrillas)
Nicaragua also claims that the US
has withdrawn its aid to Nicaragua,
drastically reduced the quota for
imports of sugar, imposed trade
embargo, and used its influence to
prevent access to loans to the IBRD
and the Inter-American
Development Bank.
Thus, Nicaragua claims that US
violated the customary IL
obligation to refrain from the threat
or use of force, its actions
tantamount to intervention in the
internal affairs of Nicaragua.
US, in their Counter-Memorial
claims that it only acted in reliance
in the inherent right of self-defense
guaranteed under Article 51 of the
UN Charter. US only acted in
defense of El Salvador whom the
latter alleged that Nicaragua has
sent armaments to El Salvadorian
rebels. Moreso, US claims that
Nicaragua is responsible for cross-
border military attacks on
Honduras and Costa Rica.
o Later on refuted by
Commander Ortega, stating
that the egress of arms is
one of the problemas
principals of the Junta
Issue:
WON US is justified in supporting
the contras as an exercise of the right of
collective self-defense in response to an
armed attack on another State.
Ruling: No, it is a violation of the principle
of
non-intervention
Principle:
The use of force and collective self-
defense are issued which are
regulated both by CIL and treaties,
specifically the UN Charter.
Both Article 51 of the UN Charter
and Article 21 of the Organization
of American States Charter refer to
self-defense as an exception to the
principle of the prohibition of the
use of force.
International conventions and CIL
do not necessarily overlap each
other and are not identical in
content, a multilateral treaty
reservation cannot be made as an
exclusion of the application of any
rule of CIL the content of the same
that of a treaty-law
The actual text of Article 51 of UN
Charter mentions the droit naturel
of individual or collective self-
defense.
o does not subsume or
supervenes CIL as it does
not provide any regulation
as to how self-defense is
used
Identity of content in treaty law
and in CIL can be regarded as
reflective, or as crystalizing,
received, or at least emergent rules
of CIL
If a rule in treaties parallels a rule
of customary international law, two
rules of the same content are
subject to separate treatment as
regards the organs competent to
verify their implementation,
depending on whether they are
customary rules or treaty rules.
Customary International Law
o state practice
o opinio juris
In order to deduce the existence of
customary rules, the conduct of
States should, in general, be
consistent with such rules, and that
instances of State conduct
inconsistent with a given rule
 should generally have been treated involves the right of every
as breaches of that rule, not as sovereign State to conduct its
indications of the recognition of a affairs without outside interference;
new rule. though examples of trespass
In this case, both US and Nicaragua against this principle are not
recognize that the use of force infrequent, it is considered that it is
incorporated in the UN Charter is part and parcel of customary
that which is found in CIL - to international law.
refrain in their international o A prohibited intervention
relations from the threat or use of must accordingly be one
force against the territorial bearing on matters in which
integrity or political independence each State is permitted, by
of any State, or in any other the principle of State
manner inconsistent with the sovereignty, to decide
purposes of the United Nations. freely. One of these is the
Opinio Juris - attitude of the Parties choice of a political,
and the attitude of States towards economic, social and
certain General Assembly cultural system, and the
resolutions, and particularly formulation of foreign policy.
resolution 2625 (XXV) entitled Intervention is wrongful
'Declaration on Principles of when it uses methods of
International Law concerning coercion in regard to such
Friendly Relations and Co-operation choices, which must remain
among States in accordance with free ones. The element of
the Charter of the United Nations' coercion, which defines, and
may be understood as an indeed forms the very
acceptance of the validity of the essence of, prohibited
rule or set of rules declared by the intervention, is particularly
resolution by themselves. obvious in the case of an
'the law of the Charter concerning intervention which uses
the prohibition of the use of force force, either in the direct
in itself constitutes a conspicuous form of military action, or in
example of a rule in international the indirect form of support
law having the character of jus for subversive or terrorist
cogens' in which both US and armed activities within
Nicaragua recognizes another State.
It is also clear that it is the State For a new customary rule to be
which is the victim of an armed formed, not only must the acts
attack which must form and concerned 'amount to a settled
declare the view that it has been so practice', but they must be
attacked. There is no rule in accompanied by the opinio juris
customary international law sive necessitates
permitting another State to no such general right of
exercise the right of collective self- intervention, in support of an
defence on the basis of its own opposition within another State,
assessment of the situation. Where exists in contemporary
collective self-defence is invoked, it international law. The Court
is to be expected that the State for concludes that acts constituting a
whose benefit this right is used will breach of the customary principle
have declared itself to be the of non-intervention will also, if they
victim of an armed attack. directly or indirectly involve the use
In customary international law, of force, constitute a breach of the
whether of a general kind or that principle of non-use of force in
particular to the inter-American international relations.
legal system, there is no rule in international law, if one State,
permitting the exercise of collective with a view to the coercion of
self-defence in the absence of a another State, supports and assists
request by the State which regards armed bands in that State whose
itself as the victim of an armed purpose is to overthrow the
attack. government of that State, that
The principle of non-intervention amounts to an intervention by the
one State in the internal affairs of is equally far reaching.
the other, whether or not the
political objective of the State FRG v. Netherlands; FRG v. Denmark
giving such support and assistance