Name of the Case: Asylum Case (Colombia/Peru); Year of the decision: 1950; and Court: ICJ.

Overview:

Colombia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru. Was Colombia entitled to make a
unilateral and definitive qualification of the offence (as a political offence) in a manner binding on Peru and was Peru was under a
legal obligation to provide safe passage for the Peruvian to leave Peru?

Facts of the Case:

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.

Questions before the Court:

(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?

The Court’s Decision:

Relevant Findings of the Court:

(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?

1. The court stated that 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. In the Torre’s case, 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.

2. The court held that 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 (p. 12, 13). 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 (p. 15).

3. 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 (Colombia) 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(text in brackets added).”

4. The court held that Colombia 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
usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of State practice). 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
(see North Sea Continental Shelf Cases and Lotus Case for more on opinio juris):

“[T]he Colombian Government has referred to a large number of particular cases in which diplomatic asylum was in fact granted
and respected. But it has not shown that the alleged rule of unilateral and definitive qualification was invoked or … that it was, apart
from conventional stipulations, exercised by the States granting asylum as a right appertaining to them and respected by the
territorial States as a duty incumbent on them and not merely for reasons of political expediency. The facts brought to the knowledge
of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic
asylum and in the official views expressed on various occasions, there has been so much inconsistency in the rapid succession of
conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by
considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage,
mutually accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence.”

5. The court held that 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’.)

6. The court concluded that Colombia, as the State granting asylum, is not competent to qualify the offence by a unilateral and
definitive decision, binding on Peru.

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?

7. The court held that 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 (Colombia) 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.

8. 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. Once more, the court held
that 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 (see paragraph 4 above).

“There exists undoubtedly a practice whereby the diplomatic representative who grants asylum immediately requests a safe conduct
without awaiting a request from the territorial state for the departure of the refugee…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.”

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and is the continued maintenance of
asylum a violation of the treaty?

9. 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.”

10. In other words, 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. Torre’s 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.

11. 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.”
12. 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 (pp. 20 -23). The court held:

“In principle, it is inconceivable that the Havana Convention could have intended the term “urgent cases” to include the danger of
regular prosecution to which the citizens of any country lay themselves open by attacking the institutions of that country… In
principle, asylum cannot be opposed to the operation of justice.”

13. In other words, 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.

14. The court held:

“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.” 

15. As a result, exceptions to this rule are strictly regulated under international law.

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]….

16. 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.

17. The court concluded that the grant of asylum and reasons for its prolongation were not in conformity with Article 2(2) of the
Havana Convention (p. 25).

“The grant of asylum is not an instantaneous act which terminates with the admission, at a given moment of a refugee to an embassy
or a legation. Any grant of asylum results in, and in consequence, logically implies, a state of protection, the asylum is granted as
long as the continued presence of the refugee in the embassy prolongs this protection.”

NB: The court also discussed the difference between extradition and granting of asylum – you can read more on this in pp. 12 – 13 of
the judgment. The discussions on the admissibility of the counter claim of Peru are set out in pp. 18 – 19.

Additional reading (on diplomatic asylum/ also called extra territorial asylum):

 Extraterritorial asylum under international law, pp. 115 – 129.

 F. Morgenstern, ‘‘Extra-Territorial’ Asylum’, 25 BYIL (1948)
 F. Morgenstern, ‘Diplomatic Asylum’, 67 The Law Quarterly Review (1951)

Nicaragua v. United States

Citation. I.C.J. 1984 I.C.J. 39

Brief Fact Summary. Nicaragua (P) brought a suit against the United States (D) on the ground that the United States (D) was
responsible for illegal military and paramilitary activities in and against Nicaragua. The jurisdiction of the International Court of
Justice to entertain the case as well as the admissibility of Nicaragua’s (P) application to the I.C.J. was challenged by the United States
(D).

Synopsis of Rule of Law. Nicaragua (P) brought a suit against the United States (D) on the ground that the United States (D) was
responsible for illegal military and paramilitary activities in and against Nicaragua. The jurisdiction of the International Court of
Justice to entertain the case as well as the admissibility of Nicaragua’s (P) application to the I.C.J. was challenged by the United States
(D).

Facts. The United States (D) challenged the jurisdiction of the I.C.J when it was held responsible for illegal military and paramilitary
activities in and against Nicaragua (P) in the suit the plaintiff brought against the defendant in 1984. Though a declaration accepting
the mandatory jurisdiction of the Court was deposited by the United States (D) in a 1946, it tried to justify the declaration in a 1984
notification by referring to the 1946 declaration and stating in part that the declaration “shall not apply to disputes with any Central
American State….”
Apart from maintaining the ground that the I.C.J lacked jurisdiction, the States (D) also argued that Nicaragua (P) failed to deposit a
similar declaration to the Court. On the other hand, Nicaragua (P) based its argument on its reliance on the 1946 declaration made by
the United states (D) due to the fact that it was a “state accepting the same obligation” as the United States (D) when it filed charges in
the I.C.J. against the United States (D).  Also, the plaintiff intent to submit to the compulsory jurisdiction of the I.C.J. was pointed out
by the valid declaration it made in 1929 with the I.C.J’s predecessor, which was the Permanent Court of International Justice, even
though Nicaragua had failed to deposit it with that court. The admissibility of Nicaragua’s (P) application to the I.C.J. was also
challenged by the United States (D).

Issue. (1) Is the jurisdiction to entertain a dispute between two states, if they both accept the Court’s jurisdiction, within the
jurisdiction of the International Court of Justice?
(2) Where no grounds exist to exclude the application of a state, is the application of such a state to the International Court of Justice
admissible?

Held. (1) Yes. The jurisdiction of the Court to entertain a dispute between two states if each of the States accepted the Court’s
jurisdiction is within the jurisdiction of the International Court of Justice. Even though Nicaragua (P) declaration of 1929 was not
deposited with the Permanent Court, because of the potential effect it had that it would last for many years, it was valid.
Thus, it maintained its effect when Nicaragua became a party to the Statute of the I.C.J because the declaration was made
unconditionally and was valid for an unlimited period. The intention of the current drafters of the current Statute was to maintain the
greatest possible continuity between it and the Permanent Court. Thus, when Nicaragua (P) accepted the Statute, this would have been
deemed that the plaintiff had given its consent to the transfer of its declaration to the I.C.J.

(2) Yes. When no grounds exist to exclude the application of a state, the application of such a state to the International Court of Justice
is admissible. The five grounds upon which the United States (D) challenged the admissibility of Nicaragua’s (P) application were that
the plaintiff failed because there is no “indispensable parties” rule when it could not bring forth necessary parties, Nicaragua’s (P)
request of the Court to consider the possibility of a threat to peace which is the exclusive province of the Security Council, failed due
to the fact that I.C.J. can exercise jurisdiction  which is concurrent with that of the Security Council, that the I.C.J. is unable to deal
with situations involving ongoing armed conflict and that there is nothing compelling the I.C.J. to decline to consider one aspect of a
dispute just because the dispute has other aspects due to the fact that the case is incompatible with the Contadora process to which
Nicaragua (P) is a party.

Discussion. Although the questions of jurisdiction and admissibility are primarily based on the principle that the I.C.J. has only as
much power as that agreed to by the parties, these can be quite complicated. The 1946 declaration of the United States and the 1929
declaration of Nicaragua was the main focus of the case on declaration and each of these declarations pointed out the respective
parties’ intent as it related to the I.C.J’s jurisdiction.

NORTH SEA CONTINENTAL SHELF CASES (SUMMARY)

International Court of Justice Contentious Case: The North Sea Continental Shelf Cases (Germany/Denmark;
Germany/Netherlands).

Year of Decision: 1969.

Note: This post discusses only  aspects of the case related to treaty and customary international law.

Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement for the formation of customary
international law: (1) State practice (the objective element) and (2) opinio juris (the subjective element). In these cases,
the Court explained the criteria necessary to establish State practice – widespread and representative participation.
It highlighted that the practices of those States whose interests were specially affected by the custom were especially relevant in the
formation of customary law. It also held that uniform and consistent practice was necessary to demonstrate opinio juris – opinio
juris is the belief that State practice amounts to a legal obligation. The North Sea Continental Self Cases also dispelled the myth that
duration of the practice (i.e. the number of years) was an essential factor in forming customary international law. 

The case involved the delimitation of the continental shelf areas in the North Sea between Germany and Denmark and Germany and
Netherlands beyond the partial boundaries previously agreed upon by these States. The parties requested the Court  to decide the
principles and rules of international law that are applicable to the above delimitation because the parties disagreed on the applicable
principles or rules of delimitation. Netherlands and Denmark relied on the principle of equidistance (the method of determining the
boundaries in such a way that every point in the boundary is equidistant from the nearest points of the baselines from which the
breath of the territorial sea of each State is measured). Germany sought to get a decision in favour of the notion that the delimitation
of the relevant continental shelf was governed by the principle that each coastal state is entitled to a just and equitable share
(hereinafter called just and equitable principle/method). Contrary to Denmark and Netherlands, Germany argued that the principle of
equidistance was neither a mandatory rule in delimitation of the continental shelf nor a rule of customary international law that was
binding on Germany. The Court was not asked to delimit because the parties had already agreed to delimit the continental shelf as
between their countries, by agreement, after the determination of the Court on the applicable principles.

Facts of the Case:

Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle (A-B and C-D). An agreement on
further prolongation of the boundary proved difficult because Denmark and Netherlands wanted this prolongation to take place based
on the equidistance principle (B-E and D-E) where as Germany was of the view that, together, these two boundaries would produce an
inequitable result for her. Germany stated that due to its concave coastline, such a line would result in her loosing out on her share of
the continental shelf based on proportionality to the length of its North Sea coastline. The Court had to decide the principles and rules
of international law applicable to this delimitation. In doing so, the Court had to decide if the principles espoused by the parties were
binding on the parties either through treaty law or customary international law.

Questions before the Court (as relevant to this post):

Is Germany under a legal obligation to accept the equidistance-special circumstances principle, contained in Article 6 of the Geneva
Convention on the Continental Shelf of 1958, either as a customary international law rule or on the basis of the Geneva Convention?

The Court’s Decision:

The use of the equidistance method had not crystallised into customary law and the method was not obligatory for the delimitation of
the areas in the North Sea related to the present proceedings.

Relevant Findings of the Court:

1. Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6, binding on Germany?

1. Article 6 of the Geneva Convention  stated that unless the parties had already agreed on a method for delimitation or unless special
circumstances exist, the equidistance method would apply. Germany had signed, but not ratified, the Geneva Convention, while
Netherlands and Denmark were parties to the Convention. The latter two States argued that while Germany is not a party to the
Convention (not having ratified it), she was still bound by Article 6 of the Convention because:

“…(1)  by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally assumed the obligations
of the Convention; or has manifested its acceptance of the conventional regime; or has recognized it as being generally applicable to
the delimitation of continental shelf areas…

(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as to cause other States, and
in particular Denmark and the Netherlands, to rely on the attitude thus taken up” (the latter is called the  principle of estoppel).

2. The Court rejected the first argument. It said that only a ‘very definite very consistent course of conduct on the part of a State would
allow the Court to presume that the State had somehow become bound by a treaty (by a means other than in the formal manner: i.e.
ratification) when the State was ‘at all times fully able and entitled to…’ accept the treaty commitments in a formal manner. The Court
held that Germany had not unilaterally assumed obligations under the Convention. The court also took notice of the fact that even if
Germany ratified the treaty, she had the option of entering into a reservation on Article 6, following which that particular article would
no longer be applicable to Germany (in other words, even if one were to assume that Germany had intended to become a party to the
Convention, it does not presuppose that it would have also undertaken those obligations contained in Article 6).

3. Note: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in 1980, discusses in more
detail treaty obligations of third States (those States who are not parties to the treaty). It clearly stipulates that obligations arise for
third States from a provision of a treaty only if (1) the actual parties to the treaty intended the provision to create obligations for third
States; and (2) third State expressly accept those obligations in writing (Article 35 of the VCLT). The VCLT was not in force when
the Court deliberated on this case. However, as  seen above, the Court’s position is consistent the VCLT. (See the relevant provisions
of the Vienna Convention on the Law of Treaties).

4. The Court held that the existence of a situation of estoppel  would have allowed Article 6 to become binding on Germany – but held
that Germany’s action did not support an argument for estoppel. The Court also held that the mere fact that Germany may not have
specifically objected to the equidistance principle as contained in Article 6, is not sufficient to state that the principle is now binding
upon it.

5. In conclusion, the Court held that Germany had not acted in any manner so as to incur obligations contained in Article 6 of the
Geneva Convention. The equidistance–special circumstances rule was not binding on Germany by way of treaty law.

2. Nature of the customary international law obligation: Is Germany bound by the provisions of Article 6 of the Geneva Convention in
so far as they reflect customary international law?

6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of general international law on the subject of
continental shelf delimitation’ and that it existed independently of the Convention. Therefore, they argued, Germany is bound by the
subject matter of Article 6 by way of customary international law.

7. To decide if the equidistance principle bound Germany by way of customary international law, the Court examined (1) the status of
the principle contained in Article 6 as it stood when the Convention was being drawn up; and (2) its status after the Convention  came
into force.

(a) What was the customary law status of Article 6 at the time of drafting the Convention?

8. The Court held that the principle of equidistance, as contained in Article 6 did not form a part of existing or emerging customary
international law at the time of drafting the Convention. The Court supported this finding based on (1) the hesitation expressed by the
drafters of the Convention, the International Law Commission, on the inclusion of Article 6 into the Convention and (2) the fact that
reservations to Article 6 was permissible under the Convention. The Court held:

“… Article 6 is one of those in respect of which, under the reservations article of the Convention (Article 12) reservations may be
made by any State on signing, ratifying or acceding, – for speaking generally, it is a characteristic of purely conventional rules and
obligations that, in regard to them, some faculty of making unilateral reservations may, within certain limits, be admitted; whereas
this cannot be so in the case of general or customary law rules and obligations which, by their very nature, must have equal force for
all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will
by any one of them in its own favor…. The normal inference would therefore be that any articles that do not figure among those
excluded from the faculty of reservation under Article 12, were not regarded as declaratory of previously existing or emergent rules
of law …” (see para 65 for a counter argument and the Court’s careful differentiation)

(b) Did the provisions in Article 6 on the equidistance principle attain the customary law status after the Convention came into force?

9. The Court then examined whether the rule contained in Article 6 had become customary international law after the Convention
entered into force – either due the Convention itself (i.e., if enough States had ratified the Convention in a manner so as to fulfil the
criteria specified below), or because of subsequent State practice (i.e. even if an adequate number of States had not ratified the
Convention, one could find sufficient State practice to meet the criteria below). The Court held that Article 6 of the Convention had
not attained a customary law status. (Compare the 1958 Geneva Convention with the four Geneva Conventions on 1949 relating
to international humanitarian law in terms of the latter’s authority as a pronouncement of customary international law).

10. For a customary rule to emerge the Court held that it needed: (1) very widespread and representative participation in the
Convention, including States whose interests were specially affected (in this case, they were coastal States) (i.e. generality); and  (2)
virtually uniform practice (i.e. consistent 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) for the formation of a customary law.
Widespread and representative participation

11. The Court held that the first criteria was not met. The number of ratifications and accessions to the Convention (39 States) were
not adequately representative or widespread.

Duration

12. The Court held that the duration taken for a customary law rule to emerge is not as important as widespread and representative
participation, uniform usage, and the existence of an opinio juris. It held that:

“Although the passage of only a short period of time (in this case, 3 – 5 years) is not necessarily, or of itself, a bar to the formation of
a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable
requirement would be that within the period in question, short though it might be, State practice, including that of States whose
interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should
moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.”

Opinio juris

13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case), in so far as those acts or omissions
were 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).

14. The Court examined 15 cases where States had delimited their boundaries using the equidistance method, after the Convention
came into force (paras. 75 -77). The Court concluded that even if there were some State practice in favour of the equidistance
principle, the Court could not deduct the necessary opinio juris from this State practice. The North Sea Continental Shelf Cases
confirmed that both State practice (the objective element) and opinio juris (the subjective element) are essential pre-requisites for the
formation of a customary law rule. This is consistent with Article 38 (1) (b) of the Statute of the ICJ. The Court explained the concept
of opinio juris and the difference between customs (i.e. habits) and customary law:

“Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to
be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a
belief, i.e, the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned
must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the
acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed
almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal
duty.” (Para 77).

15.  The Court concluded that the equidistance principle was not binding on Germany by way of treaty or customary international law.
In the case of the latter, the principle had not attained a customary international law status at the time of the entry into force of the
Geneva Convention or thereafter. As such, the Court held that the use of the equidistance method is not obligatory for the delimitation
of the areas concerned in the present proceedings.

LOTUS CASE (SUMMARY)

Permanent Court of International Justice, Contentious Case: The Lotus Case (France vs Turkey);

Year of the decision: 1927.

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 this French national under international law? 

Facts of the Case:

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 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 Court’s 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: 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 principle of the Lotus Case. The Court held that:

“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, in 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.The Court held that:

“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 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 pre-requisite to exercise jurisdiction, the Court argued,
then “it would…in 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 Court based this finding on the sovereign will of States. It held that:

“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 co-existing independent communities or with a view to the achievement of common aims.
Restrictions upon the independence of States cannot therefore be presumed”

[Note: 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 has exclusive jurisdiction over offences committed on board the ship in high seas. The
Court 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: in other words, there was concurrent jurisdiction.

The Court 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. The Court 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.” The Court concluded that Turkey had jurisdiction over this case. It further said:

 “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 is also significant in that the Court 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: in other words, if the constituent element was absent – the crime would not have
happened. The Court said:

“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 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. It is therefore a case of concurrent jurisdiction.”

Customary International Law

The Lotus case gave an important dictum on creating customary international law. France had 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 disagreed and 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 not only in acts of States (Nicaragua Case), but also in omissions when those omissions are
made following a belief that the said State is obligated by law to  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

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 disagreed, inter alia, with  Court’s methodology in arriving at this conclusion. He imputed the method to the principle
established in the Lotus case: that which is not prohibited is permitted under international law. He criticised the Lotus dictum as an out
dated, 19th century positivist approach that is excessively differential towards State consent. He said 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. Read more here. 
ANGLO NORWEGIAN FISHERIES CASE (SUMMARY ON CUSTOMARY INTERNATIONAL LAW)

International Court of Justice, Contentious Case: Anglo Norwegian Fisheries Case (UK vs Norway)

Year of Decision: 1951. 

The Court was asked to decide, amongst others, the validity, under international law, of the methods used to delimit Norway’s
territorial sea/ fisheries zone. We will not discuss the technical aspects of the judgment relating to the delimitation, but focus on the
Court’s conclusions relating to customary international law.

Background to the case

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 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.

Findings of the Court

1. The formation of customary law

The Court referred to (1) positive State practice and (2) lack of contrary State practice  as a confirmation of an existing rule of
customary international law (see p. 17 and 18). There was no mention of opinio juris in this early judgment.

In the following passage, the Court considered expressed dissent by States regarding a particular practice to be detrimental to the
existence of an alleged general rule. Yet, the Court did not examine further whether these States adopted a contrary practice because,
for example, (1) they were claiming an exception to the rule (see the Nicaragua jurisprudence) or (2) because they believed that the
said rule did not possess the character of customary law.

“In these circumstances the Court deems it necessary to point out that 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.”

1.1. The persistent objector

The Court in its judgment held that even if a customary law rule existed on the aforementioned ten-mile rule,

“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to
the Norwegian coast.”

In this case, the Court appears to support the idea that an existing customary law rule would not apply to a State if (1) it objected  to the
application of the rule to itself (2) at the initial stages and (3) in a consistent manner. The  Anglo Norwegian Fisheries Case, thus,
supports the Asylum Case (Peru vs Colombia) in articulating what we now call the persistent objector rule.

a. Initial objection

The Court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that, “in spite of the adoption in some treaties
of the quite arbitrary distance of 10 sea miles, this distance would not appear to me to have acquired the force of international law.
Still less would it appear to have any foundation in reality…”

The Court held that “Language of this kind can only be construed as the considered expression of a legal conception regarded by the
Norwegian Government as compatible with international law”. Thus, the Court held that Norway had refused to accept the rule as
regards to it in 1870. 
b. Sustained objection

The Court also went on to hold that Norway had followed the principles of delimitation that it considered a part of its system in a
consistent and uninterrupted manner from 1869 until the time of the dispute.

In establishing consistent practice, the Court held that “…too much importance need not be attached to the few uncertainties or
contradictions, real or apparent, which the United Kingdom Government claims to have discovered in Norwegian practice.”

c.  No objection by other States

The Court held that the 10-mile rule did not form a part of the general law and, in any event, could not bind Norway because of the
latter’s objections. Next, the Court inquired whether the Norwegian system of delimitation was nevertheless contrary to international
law. To do so, the Court relied on state practice once more.

“The general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact. For a period of more than sixty
years the United Kingdom Government itself in no way contested it… The Court notes that in respect of a situation which could only
be strengthened with the passage of time, the United Kingdom Government refrained from formulating reservations.”

1.2. Contrary State practice of Norway? 

In this case, Norway adopted a contrary practice – a practice that was the subject of litigation.

However, interestingly, Norway was clear that it was not claiming an exception to the rule (i.e. that its practice was not contrary to
international law). It emphasized that its practice – even if it was a deviation from the general practice – was in conformity with
international law (see page 21).

 “In its (Norway’s) view, these 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. ”

The Court held that the fact that this consistent and sufficiently long practice took place without any objection to the practice from
other States (until the time of dispute) indicated that these States did not consider the Norwegian system to be “contrary to
international law”.

“The notoriety of the facts, the general toleration of the international community, Great Britain’s position in the North Sea, her own
interest in the question, and her prolonged abstention would in any case warrant Norway’s 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.”

2. Relationship between international and national law

The Court alluded to the relationship between national and international law in delimitation of maritime boundaries. 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. (p. 20)”
Further reading:

T. Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law’, 26  Harvard
International Law Journal, 1985, p. 457,

J. Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’,  56 BYIL, 1985, p. 1.

“In fact, the two international court of justice cases which appear to support the persistent objector rule both arose in circumstances
where the new rule itself was in substantial doubt. Thus, it was significantly easier for the objector to maintain its status. No case is
cited for a circumstance in which the objector effectively maintained its status after the rule became well accepted in international law.
In fact, it is unlikely that such a status can be maintained din light of the realities of the international legal system. This is certainly the
plight that befell the US, The UK and Japan in the law of the sea. Their objections to expanded coastal state jurisdiction were
ultimately to no avail, and they have been forced to accede to 12-mile territorial seas and the 200-mile exclusive economic zone. “

Curtis A. Bradley & Mitu Gulati, ‘Withdrawing from International Custom‘, see also pp. 236 – 239.

 “The Fisheries Case, decided a year later, pitted the United Kingdom against Norway. At issue was whether Norway had used a
legally acceptable method in drawing the baseline from which it measured its territorial sea. The United Kingdom argued that CIL did
not allow the length of a baseline drawn across a bay to be longer than ten miles. Again, as with the Asylum Case, the primary holding
of the case was that the alleged CIL rule did not exist. In the alternative, the court briefly remarked that, had the rule existed, it would
not have applied against Norway because Norway had “always opposed any attempt to apply it to the Norwegian coast.”This language
is often cited in support of the persistent objector doctrine, but it could just as easily be read to support the Default View of CIL, since
there is nothing in this language that suggests that Norway’s opposition must have occurred prior to the establishment of the alleged
rule of CIL. The arguments of the parties do not resolve this uncertainty: although the United Kingdom appears to have supported
something like the modern persistent objector doctrine, at least for rights historically exercised by a state (while asserting that Norway
had not met its requirements),Norway (which prevailed in the case) appears to have supported something closer to the Default View.

 The Asylum and Fisheries decisions provide no more than passing and ambiguous support for the doctrine. State practice since those
decisions is also relatively unhelpful, since there have been essentially no instances in which states have invoked the doctrine. As
Professor Stein reported in a 1985 article, his research had “failed to turn up any case where an author provided even one instance of a
state claiming or granting an exemption from a rule on the basis of the persistent objector principle—excepting of course the Asylum
and Fisheries cases themselves.”