INTERNATIONAL COURT OF JUSTICE CONTENTIOUS CASE:
THE NORTH SEA CONTINENTAL SHELF CASES Netherlands and Denmark relied on the principle of equidistance (the
(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.
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.
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North Sea Continental Shelf Cases (commons.wikimedia.org)
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 invariably, but which are motivated only by considerations of courtesy,
convenience or tradition, and not by any sense of legal duty.” (Para 77).
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 15. The Court concluded that the equidistance principle was not binding
following a belief that the said State is obligated by law to act or refrain on Germany by way of treaty or customary international law. In the case of
from acting in a particular way. (For more on opinio juris click here). 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.
14. The Court examined 15 cases where States had delimited their As such, the Court held that the use of the equidistance method is not
boundaries using the equidistance method, after the Convention came into obligatory for the delimitation of the areas concerned in the present
force (paras. 75 -77). The Court concluded that even if there were some proceedings.
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
 INTERNATIONAL COURT OF JUSTICE CONTENTIOUS CASE:
CASE CONCERNING THE MILITARY AND PARAMILITARY
ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA VS
UNITED STATES).
Year of Decision: 1986.
Overview
The case involved military and paramilitary activities carried out by the US
against Nicaragua from 1981 to 1984. Nicaragua asked the Court to find
that these activities violated international law.
FACTS OF THE CASE:
In July 1979, the Government of President Somoza was replaced by a
government installed by Frente Sandinista de Liberacion Nacional (FSLN).
Supporters of the former Somoza Government and former members of the
National Guard opposed the new government. The US – initially
supportive of the new government – changed its attitude when, according
to the United States, it found that Nicaragua was providing logistical
support and weapons to guerrillas in El Salvador. In April 1981 the United
States stopped its aid to Nicaragua and in September 1981, according to
Nicaragua, the United States “decided to plan and undertake activities
directed against Nicaragua”.
The armed activities against the new Government was carried out mainly
by (1) Fuerza Democratica Nicaragüense (FDN), which operated along
the border with Honduras, and (2) Alianza Revolucionaria Democratica
(ARDE), which operated along the border with Costa Rica. Initial US
support to these groups fighting against the Nicaraguan Government
(called “contras”) was covert. Later, the United States officially
acknowledged its support (for example: In 1983 budgetary legislation
enacted by the United States Congress made specific provision for funds to
be used by United States intelligence agencies for supporting “directly or
indirectly military or paramilitary operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in control of the
contras, the United States devised their strategy and directed their tactics,
and that the contras were paid for and directly controlled by the United
States. Nicaragua also alleged that some attacks against Nicaragua were
carried out, directly, by the United States military – with the aim to
overthrow the Government of Nicaragua. Attacks against Nicaragua
included the mining of Nicaraguan ports, and other attacks on ports, oil
installations, and a naval base. Nicaragua alleged that aircrafts belonging to
the United States flew over Nicaraguan territory to gather intelligence,
supply to the contras in the field, and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after
refusing to accept the ICJ’s jurisdiction to decide the case. The United
States at the jurisdictional phase of the hearing, however, stated that it
relied on an inherent right of collective self-defence guaranteed in A. 51 of
the UN Charter when it provided “upon request proportionate and
appropriate assistance…” to Costa Rica, Honduras, and El Salvador in
response to Nicaragua’s acts of aggression against those countries (paras
126, 128).
QUESTIONS BEFORE THE COURT:
Did the US violate its customary international law obligation not to
intervene in the affairs of another State, when it trained, armed, equipped,
and financed the contra forces or when it encouraged, supported, and aided
the military and paramilitary activities against Nicaragua?
Did the US violate its customary international law obligation not to use
force against another State, when it directly attacked Nicaragua in 1983 and
1984 and when its activities in point (1) above resulted in the use of force?
Can the military and paramilitary activities that the US undertook in and
against Nicaragua be justified as collective self-defence?
Did the US breach its customary international law obligation not to violate
the sovereignty of another State, when it directed or authorized its aircrafts
to fly over the territory of Nicaragua and because of acts referred to in (2)
above?
Did the USs breach its customary international law obligations not to
violate the sovereignty of another State, not to intervene in its affairs, not to
use force against another State and not to interrupt peaceful maritime
commerce, when it laid mines in the internal waters and in the territorial
sea of Nicaragua?
THE COURT’S DECISION:
The US violated customary international law in relation to (1), (2), (4) and
(5) above. On (3), the Court found that the United States could not rely on
collective self-defence to justify its use of force against Nicaragua.
RELEVANT FINDINGS OF THE COURT:
1. The Court held that the United States violated its customary international
law obligation not to use force against another State when its activities with
the contras resulted in the threat or use of force (see paras 191-201).
The Court held that:
The prohibition on the use of force is found both in Article 2(4) of the
Charter of the United Nations (UN Charter) and in customary international
law.
In a controversial finding the Court sub-classified the use of force as:
(1) “most grave forms of the use of force” (i.e. those that constitute an
armed attack); and
(2) “other less grave forms” of the use of force (i.e. organizing, instigating,
assisting, or participating in acts of civil strife and terrorist acts in another
State – when the acts referred to involve a threat or use of force, but not
amounting to an armed attack). (Para 191),
The United States violated the customary international law prohibition on
the use of force when it laid mines in Nicaraguan ports. It also violated this
prohibition when it attacked Nicaraguan ports, oil installations, and a naval
base (see below). The United States could only justify its action on the
basis of collective self-defence, if certain criteria were met (these criteria
are discussed below).
The United States violated the customary international law prohibition on
the use of force when it assisted the contras by “organizing or encouraging
the organization of irregular forces and armed bands… for incursion into
the territory of another state” and participated “in acts of civil strife…in
another State” and when these acts involved the threat or use of force.
The supply of funds to the contras did not violate the prohibition on the use
of force. On the contrary, Nicaragua had previously argued before the
Court that the United States determined the timing of offensives against
Nicaragua when it provided funds to the contras. The Court held that “…it
does not follow that each provision of funds by the United States was made
to set in motion a particular offensive, and that that offensive was planned
by the United States.” The Court held further that the arming and training
of the contras and the supply of funds, in itself, only amounted to acts of
intervention in the internal affairs of Nicaragua and did not violate the
prohibition on the use of force (para 227) (again, this aspect will be
discussed in detail below).
2. The Court held that the United States violated its customary international
law obligation not to use force against another State when it directly
attacked Nicaragua in 1983 and 1984 (see paras 187 – 201).
Note: A controversial but interesting aspect of the Court’s judgement was
its definition of an armed attack. The Court held that an armed attack
included:
(1) action by regular armed forces across an international border; and
(2) “the sending by or on behalf of a State of armed bands, groups,
irregulars or mercenaries, which carry out acts of (sic) armed force against
another State of such gravity as to amount to (inter alia) an actual armed
attack conducted by regular forces, or its (the State’s) substantial
involvement therein”.
Note also that that he second point somewhat resembles Article 3(g) of the
UNGA Resolution 3314 (XXIX) on the Definition of Aggression.
The Court further held that:
Mere frontier incidents will not considered as armed attacks, unless,
because of its scale and effects, it would have been classified as an armed
attack had it been carried out by regular forces.
Assistance to rebels by providing weapons or logistical support did not
constitute an armed attack. Instead, it can be regarded as a threat or use of
force or an intervention in the internal or external affairs of other States
(see paras 195, 230).
Under Article 51 of the UN Charter and under CIL – self-defence is only
available against a use of force that amounts to an armed attack (para 211).
Note: In in the ICJ’s Case Concerning Oil Platforms and the ICJ’s
Advisory Opinion on the Legal Consequences of of the Construction of a
Wall in the Occupied Palestinian Territory (hereinafter called the Palestine
wall case) the ICJ confirmed the definition of an “armed attack” as
proposed in the Nicaragua case. Draft Articles on State Responsibility,
prepared by the International Law Commission, provides significant
guidance as to when acts of non-State actors may be attributed to States.
These articles, together with recent State practice relating attacks on
terrorists operating from other countries may have widened the scope of an
armed attack, and consequently, the right of self defence, envisaged by the
ICJ. (for example, see discussion surrounding the United States’ attacks in
Afghanistan and Iraq) See also a paper by Max Plank Institute on this topic
(2017).
Screen Shot 2017-04-06 at 9.20.34 PM.png
F 2. The most serious use of force and its consequences. Full diagram is
here.
3. The Court held that the United States could not justify its military and
paramilitary activities on the basis of collective self-defence.
Note that Article 51 of the UN Charter sets out the treaty based
requirements on the exercise of the right of self-defense. It states:
“Nothing in the present Charter shall impair the inherent right of individual
or collectiveself-defence if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to
maintain international peace and security. Measures taken by Members in
the exercise of this right of self-defence shall be immediately reported to
the Security Council.”
The Court held that:
Customary international law allows for exceptions to the prohibition on the
use of force, which includes the right to individual or collective self-
defence (see here for a difference between individual and collective self
defense). The United States, at an earlier stage of the proceedings, had also
agreed that the UN Charter acknowledges the existence of this customary
international law right when it talks of the “inherent” right under Article 51
of the Charter (para.193).
When a State claims that it used force in collective self-defence, the Court
would examine the following:
(1) Whether the 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.
Under international law, several requirements 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) That State must declare itself as a victim of an armed attack. The
assessment on whether an armed attack had taken place or not, is done by
the State who was subjected to the attack. A third State cannot exercise a
right of collective self-defence based that third State’s own assessment;
(3) In the case of collective self-defence, the victim State must request for
assistance. The Court held that “there is no rule permitting the exercise of
collective self-defence in the absence of a request by the State which
regards itself as the victim of an armed attack”;
(4) A State that is attacked, does not, under customary international law,
have the same obligation as under Article 51 of the UN Charter to report to
the Security Council that an armed attack happened – but the Court held
that “the absence of a report may be one of the factors indicating whether
the State in question was itself convinced that it was acting in self-defence”
(see paras 200, 232 -236).
“…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 condition of the lawfulness of the use of force in self-defence
that a procedure so closely dependent on the content of a treaty
commitment and of the institutions established by it, should have been
followed. On the other hand, if self-defence is advanced as a justification
for measures which would otherwise be in breach both of the principle of
customary international law and of that contained in the Charter, it is to be
expected that the conditions of the Charter should be respected. Thus for
the purpose of enquiry into the customary law position, the absence of a
report may be one of the factors indicating whether the State in question
was itself convinced that it was acting in self-defence (See paras 200, 232
-236)”.
The Court, then, looked extensively into the conduct of Nicaragua, El
Salvador, Costa Rica, and Honduras to determine if (1) an armed attack
was undertaken by Nicaragua against the three countries, which in turn
would (2) necessitate those countries to act in self-defence against
Nicaragua (paras 230 – 236). The Court noted that (1) none of the
countries who were allegedly subject to an armed attack by Nicaragua
declared themselves as victims of an armed attack; (2) they did not request
assistance from the United States to exercise its right of self-defence; (3)
the United States did not claim that when it used force, it was acting under
Article 51 of the UN Charter; and (4) the United States did not report that it
was acting in self-defense to the Security Council. The Court concluded
that, based on the above, the United States cannot justify its use of force as
collective self-defence.
In any event, the Court held that the criteria relating to necessity and
proportionality, that is required to be met when using force in self-defence
– were also not fulfilled (para 237).
4. The Court held that the United States breached its CIL obligation not to
intervene in the affairs of another State, when it trained, armed, equipped
and financed the contra forces or encouraged, supported and aided the
military and paramilitary activities against Nicaragua.
The Court held that:
The principle of non-intervention requires that every State has a right to
conduct its affairs without outside interference. In other words, the
principle “…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. The Court held that:
“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 uses methods of coercion in regard to such choices,
which must remain free ones. The element of coercion, which defines, and
indeed forms the very essence of, prohibited intervention, is particularly
obvious in the case of an intervention which uses force, either in the direct
form of military action, or in the indirect form of support for subversive or
terrorist armed activities within another State (para 205).”
Nicaragua stated that the activities of the United States were aimed to
overthrow the government of Nicaragua, to substantially damage the
economy and to weaken the political system with the aim to coerce the
Government of Nicaragua to accept various political demands of the United
States. The Court concluded that:
“…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.”
The financial support, training, supply of weapons, intelligence and logistic
support given by the United States to the contras violated the principle of
non-interference. “…(N)o such general right of intervention, in support of
an opposition within another State, exists in contemporary international
law”, even if such a request for assistance is made by an opposition group
of that State (see para 246 for more).
However, in a controversial finding, the Court held that the United States
did not devise the strategy, direct the tactics of the contras or exercise
control on them in manner so as to make their acts committed in violation
of international law imputable to the United States (see in this respect
“Determining US responsibility for contra operations under international
law” 81 AMJIL 86). The Court concluded that “a number of military and
paramilitary operations of the contras were decided and planned, if not
actually by United States advisers, then at least in close collaboration with
them, and on the basis of the intelligence and logistic support which the
United States was able to offer, particularly the supply aircraft provided to
the contras by the United States” but not all contra operations reflected
strategy and tactics wholly devised by the United States.
“…the various forms of assistance provided to the contras by the United
States have been crucial to the pursuit of their activities, but is insufficient
to demonstrate their complete dependence on United States aid. On the
other hand, it indicates that in the initial years of United States assistance
the contra force was so dependent. However, whether the United States
Government at any stage devised the strategy and directed the tactics of the
contras depends on the extent to which the United States made use of the
potential for control inherent in that dependence. The Court already
indicated that it has insufficient evidence to reach a finding on this point. It
is a fortiori unable to determine that the contra force may be equated for
legal purposes with the forces of the United States…The Court has taken
the view (paragraph 110 above) that United States participation, even if
preponderant or decisive, in the financing, organizing, training, supplying
and equipping of the contras, the selection of its military or paramilitary
targets, and the planning of the whole of its operation, is still insufficient in
itself, on the basis of the evidence in the possession of the Court, for the
purpose of attributing to the United States the acts committed by the
contras in the course of their military or paramilitary operations in
Nicaragua. All the forms of United States participation mentioned above,
and even the general control by the respondent State over a force with a
high degree of dependency on it, would not in themselves mean, without
further evidence, that the United States directed or enforced the
perpetration of the acts contrary to human rights and humanitarian law
alleged by the applicant State. Such acts could well be committed by
members of the contras without the control of the United States. For this
conduct to give rise to legal responsibility of the United States, it would in
principle have to be proved that that State had effective control of the
military or paramilitary.”
Interesting, however, the Court also held that providing “…humanitarian
aid to persons or forces in another country, whatever their political
affiliations or objectives, cannot be regarded as unlawful intervention, or as
in any other way contrary to international law” (para 242).
In the event one State intervenes in the affairs of another State, the victim
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 has
already observed (paragraph 211 above) produce any entitlement to take
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.”
5. The United States violated 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 Court examined evidence and found that in early 1984 mines were
laid in or close to ports of the territorial sea or internal waters of Nicaragua
“by persons in the pay or acting ion the instructions” of the United States
and acting under its supervision with its logistical support. The United
States did not issue any warning on the location or existence of mines and
this resulted in injuries and increases in maritime insurance rates.
The Court found that the United States also carried out high-altitude
reconnaissance flights over Nicaraguan territory and certain low-altitude
flights, complained of as causing sonic booms. It held that a State’s
sovereignty extends to its internal waters, its territorial sea, and the airspace
above its territory. The United States violated customary international law
when it laid mines in the territorial sea and internal waters of Nicaragua
and when it carried out unauthorised overflights over Nicaraguan airspace
by aircrafts that belong to or was under the control of the United States..
RELEVANT FINDINGS OF THE COURT:
(1) The Court held that multilateral treaty reservations cannot preclude the
Court from relying on customary international law, because customary law
exists independently of treaty law. (paras 172 – 178)
The Court held that the issues raised by Nicaragua – relating the use of
force and self defense – were regulated both by customary law and treaty
law, in particular the Charter of the United Nations. Yet, the United States
had entered into a multilateral treaty reservation, which did not, for
example, allow the Court to rely on the Charter of the United Nations. The
Court sought to rely, instead, exclusively on customary law relating to the
use of force. In doing so, it held that multilateral treaty reservations cannot
preclude the Court from relying on customary international law because,
even if treaty provisions and customary law deal with the same subject
matter, customary law exists independently of treaty law.
(2) Relationship between treaty and customary international law
The Court examined the relationship in two contexts to demonstrate that
customary and treaty law co-exist:
(a) where the customary law principles were identical to treaty
provisions; and
(b) where there were different rights or obligations under customary and
treaty law in respect of the same subject matter.
(a) Situations where the customary law principles were identical to treaty
provisions.
1. In situations where customary law principles were identical to treaty
provisions, the Court held that even if principles of customary international
law were subsequently codified into treaties, they continue to exist side by
side. For parties to treaties, both customary and treaty law apply. If, for
some reason, the treaty ceases to apply between treaty parties, the identical
customary law provision continues to apply between them (para 178).
2. The argument that customary international law exists alongside treaty
law was brought by Norway and Denmark in the North Sea Continental
Shelf Cases. In these cases, the two countries having failed to attribute an
obligation under Article 6 of the Geneva Conventions of 1958 to Germany,
sought to bind Germany via customary international law. The Court held
that Article 6 did not reflect customary law at the time of the codification,
and had not attained that status at the time of the determination. In the
Nicaragua case, the Court relied on the North Sea Continental Shelf Cases
to support its finding that principles of customary international law can
exist side by side with identical treaty law provisions and that treaties do
not supervene in a manner where the customary law ceases to exist (para
177).
3. The Court also relied on Article 51 of the UN Charter to show that a
treaty itself can recognise the existence of customary international law with
respect to the same subject matter. For example, the Court said that the
term “inherent” in Article 51 recognised that customary law rights of self-
defense existed alongside treaty provisions.
4. Rules containing the same content could also be treated differently in
customary international law and in treaty law. For example, treaty law may
contain institutions or mechanisms to ensure the effective implementation
of its provisions, including provisions that reflect existing customary law.
For example, a State that exercises the right of self-defence under Article
51, according to the UN Charter, has an obligation to report the use of force
immediately to the Security Council. The Court held that this was a treaty
requirement and one that did not exist under customary law. Interestingly,
while the failure to report did not result in a breach of customary
international law, the Court indicated that the United State’s failure to
observe this requirement contradicted her claim to be acting in self defense
(see paras 200, 235).
(b) Situations where customary and treaty law rights and obligations
differed in respect of the same subject matter.
1. The Court discussed situations where customary international law and
treaty law provisions were not identical. For example, the Court stated that
concepts such as necessity and proportionality, or the definition of what
constitutes an armed attack, are not found under Article 51, or the UN
Charter, but in customary law. The Court concluded that (1) this proves
that customary international law continues to exist alongside treaty law and
that (2) areas governed by the two sources of law do not (always) overlap
and the rules do not (always) have the same content. The Court held:
“…the Charter, having itself recognized the existence of this right (inherent
customary law right of self-defence under A. 51 of the UN Charter), does
not go on to regulate directly all aspects of its content. For example, it does
not contain any specific rule whereby self-defence would warrant only
measures which are proportional to the armed attack and necessary to
respond to it, a rule well established in customary international law.
Moreover, a definition of the “armed attack” which, if found to exist,
authorises the exercise of the “inherent right” of self-defence, is not
provided in the Charter, and is not part of treaty law. It cannot therefore be
held that Article 51 is a provision which “subsumes and supervenes”
customary international law.”
2. In case of a divergence between treaty law and customary international
law, for the parties to a treaty, amongst themselves, the treaty provisions
apply as lex specialis. (see paras 180 and 181).
3. The Court explained the relationship between the Charter of the United
Nations and customary international law on the use of force and self
defense in the following manner:
“However, so far from having constituted a marked departure from a
customary international law which still exists unmodified, the Charter gave
expression in this field to principles already present in customary
international law, and that law has in the subsequent four decades
developed under the influence of the Charter, to such an extent that a
number of rules contained in the Charter have acquired a status
independent of it. The essential consideration is that both the Charter and
the customary international law flow from a common fundamental
principle outlawing the use of force in international relations. The
differences which may exist between the specific content of each are not, in
the Court’s view, such as to cause a judgment confined to the field of
customary international law to be ineffective or inappropriate (to the parties
of the Charter who are bound by the Charter)… (text in brackets added)
(para 181).”
4. The Court concluded that principles such as those of the non-use of
force, non-intervention, respect for the independence and territorial
integrity of States, right of collective self defense and the freedom of
navigation, continue to be binding as part of customary international law,
“despite the operation of provisions of conventional law in which they have
been incorporated.” (paras 191-193).
Analysis: Development of a parallel customary international law?
In addition to the comments made above in italics, another interesting
aspect of the judgment is that it sought to separate customary international
law obligation from the identical treaty obligation because of the
jurisdictional bar to consider multilateral treaties. In its consideration of
customary international law it developed certain principles independently
of the treaty.
For example, Article 2(4) of the UN Charter prohibits the threat or use of
force against another State. The Court held that the same prohibition on the
use of force could be found under customary international law and as a jus
cogens norm. The Court then went on to categorize the use of force under
customary law as either a “grave use of force” (i.e. use of force amounting
to an armed attack) or a “less grave use of force” (i.e. use of force that falls
short of an armed attack – for example, the threat to use force). The Court,
then, restricted the right of self-defense to a situation where there had been
a grave use of force (or an armed attack, as defined by the Court).
If one were to hold that the relevant Charter principles were clear, precise
and unambiguous, one could say this divorced interpretation could result in
customary law developing in a manner that is not in line with the Charter
and thereby creating separate rights/ regimes of law that govern the same
subject matter. Then the two regimes may become irreconcilable.
However, the fact remains that the Charter does leave room for
interpretation – for example, on the definition of an armed attack or on the
use of force. In cases of ambiguity, Article 31 of the Vienna Convention on
the Law of Treaties directs us to look at, inter alia, subsequent practice and
any relevant rules of international law that maybe applicable. In other
words, a treaty can be interpreted with the assistance of customary and
general principles of international law.
In this case, the development of customary law would also mean a potential
development of ambiguous treaty law – and a reconciliation of treaty and
customary law provisions.
(3) The Court held that opinio juris and State practice remain necessary
elements to determine the existence of customary international law
1. In the Nicaragua case, as the North Sea Continental Shelf Case,
considered both the subjective element (opinio juris) and the objective
element (State practice) as essential pre-requisites to the formation and
elucidation of a customary norm (para 207).
2. On State practice, the jurisprudence of the Nicaragua case contained
several important clarifications in respect of inconsistent State practice
(para 186). The Court held that:
(a) For a customary rule to come into force, it is not necessary to have
complete consistency in State practice in respect of the rule.
(b) Inconsistent State practice does not affect the formation or existence of
a customary principle so long as the inconsistency is justified as a breach of
the rule.
(c) This attempt at justifying a violation would only make the rule’s
customary law nature stronger.

2. On opinio juris, the Nicaragua case jurisprudence elaborated on how to
deduct opinio juris from acts of State. The Court held that the following
reflected opinio juris:
(a) the attitude of States towards certain General Assembly resolutions.
“The effect of consent to the text of such resolutions cannot be understood
as merely that of a “reiteration or elucidation” of the treaty commitment
undertaken in the Charter. On the contrary, it may be understood as an
acceptance of the validity of the rule or set of rules declared by the
resolution by themselves…It would therefore seem apparent that the
attitude referred to expresses an opinio juris respecting such rule (or set of
rules), to be thenceforth treated separately from the provisions, especially
those of an institutional kind, to which it is subject on the treaty-law plane
of the Charter”
(b) Statements by State representatives.
(c) Obligations undertaken by States in international forums (the Court
provided the example of the Conference on Security and Co-operation in
Europe, Helsinki)
(d) The International Law Commission’s findings that a concept amounts
to a customary law principle.
(e) Multilateral conventions.
(4) The principle of non-intervention is customary international law.
1. The Court began its analysis with two questions: “Notwithstanding the
multiplicity of declarations by States accepting the principle of non-
intervention, there remain two questions: first, what is the exact content of
the principle… and secondly, is the practice sufficiently in conformity with
it for this to be a rule of customary international law?” The first question
was discussed in a previous post and will not be discussed here.
3. On State practice, the Court noted that even if “examples of trespass
against this principle (of non-intervention) are not infrequent” (para 202),
this did not affect the customary law nature of the prohibition on non-
intervention. The Court held:
“The significance for the Court of cases of State conduct prima facie
inconsistent with the principle of non-intervention lies in the nature of the
ground offered as justification. Reliance by a State on a novel right or an
unprecedented exception to the principle might, if shared in principle by
other States, tend towards a modification of customary international law. In
fact however the Court finds that States have not justified their conduct by
reference to a new right of intervention or a new exception to the principle
of its prohibition. The United States authorities have on some occasions
clearly stated their grounds for intervening in the affairs of a foreign State
for reasons connected with, for example, the domestic policies of that
country, its ideology, the level of its armaments, or the direction of its
foreign policy. But these were statements of international policy, and not
an assertion of rules of existing international law.”
4. On opinio juris, Court went on to hold, as before, that for a new
customary rule to be formed, Sate practice must be accompanied by the
opinio juris. The Court held:
“There have been in recent years a number of instances of foreign
intervention for the benefit of forces opposed to the government of another
State… It (the Court) has to consider whether there might be indications of
a practice illustrative of belief in a kind of general right for States to
intervene, directly or indirectly, with or without armed force, in support of
an internal opposition in another State, whose cause appeared particularly
worthy by reason of the political and moral values with which it was
identified. For such a general right to come into existence would involve a
fundamental modification of the customary law principle of non-
intervention.” (paras 206, 207).
5. The Court also noted that the United States has not sought to justify its
intervention in Nicaragua on legal grounds, but had only justified it at a
political level. The United States had not asserted for itself legal right of
intervention in these circumstances. The Court, without further analysis
into State practice, almost immediately proceeded to find that “…no such
general right of intervention, in support of an opposition within another
State, exists in contemporary international law. The Court concludes that
acts constituting a breach of the customary principle of non-intervention
will also, if they directly or indirectly involve the use of force, constitute a
breach of the principle of non-use of force in international relations (para
209).”
6. The Court held that the prohibition on the use of force contained in
Article 2(4) of the UN Charter has attained the status of a jus cogens norm.
The Court found this to be “A further confirmation of the validity as
customary international law of the principle of the prohibition of the use of
force expressed in Article 2, paragraph 4, of the Charter of the United
Nations…” (para 190).
ANALYSIS: GENERAL ASSEMBLY AND OPINIO JURIS
Some commentators criticized the Court for its reliance on General
Assembly resolutions to deduct opinio juris.They argued that voting
patterns in the United Nations are often guided by policy and not by legal
considerations. This is not to say that provisions on General Assembly
Resolutions that guide the international community to act in a certain way
may not eventually become binding international law (either by attaining
customary law status or becoming codified into treaty law) – it can, if there
is adequate State practice and opinio juris.
Their argument is that opinio juris cannot be said to exist based merely on a
vote in favour of a non-binding resolution – in the absence of an
examination of subsequent consistent and general State practice (which, in
turn, reflects or confirms opinio juris). See also the Nuclear Weapons
Advisory Opinion where the Court, once again, reflected on how General
Assembly resolutions contribute towards the formation of customary law.
 NAME OF THE CASE: ASYLUM CASE (COLOMBIA/PERU);

Court: International Court of Justice

Year of the decision: 1950

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 would come into conflict with one of the most firmly established traditions
justified under diplomatic asylum. of Latin-America, namely, non-intervention [for example, by Colombia
into the internal affairs of another State like Peru]….
14. The Court held:
16. Asylum may be granted on “humanitarian grounds to protect political
“In the case of diplomatic asylum the refugee is within the territory of the prisoners against the violent and disorderly action of irresponsible sections
State. A decision to grant diplomatic asylum involves a derogation from the of the population.” (for example during a mob attack where the territorial
sovereignty of that State. It withdraws the offender from the jurisdiction of State is unable to protect the offender). Torre was not in such a situation at
the territorial State and constitutes an intervention in matters which are the time when he sought refuge in the Colombian Embassy at Lima.
exclusively within the competence of that State. Such a derogation from
territorial sovereignty cannot be recognised unless its legal basis is 17. The Court concluded that the grant of asylum and reasons for its
established in each particular case.” prolongation were not in conformity with Article 2(2) of the Havana
Convention (p. 25).
15. As a result, exceptions to this rule are strictly regulated under
international law. “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.
An exception to this rule (asylum should not be granted to those facing Any grant of asylum results in, and in consequence, logically implies, a
regular prosecutions) can occur only if, in the guise of justice, arbitrary state of protection, the asylum is granted as long as the continued presence
action is substituted for the rule of law. Such would be the case if the of the refugee in the embassy prolongs this protection.”
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,
 PAQUETE HABANA AND THE LOLA

RULE:
International law is part of American law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction, as often as
questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty, and no controlling
executive or legislative act or juricial decision, resort must be had to the
customs and usages of civilized nations; and, as evidence of these, to the
works of jurists and commentators, who by years of labor, research and
experience, have made themselves peculiarly well acquainted with the
subjects of which they treat. Such works are resorted to by judicial
tribunals, not for the speculations of their authors concerning what the law
ought to be, but for trustworthy evidence of what the law really is.

FACTS:
- This case deals with two fishing boats, known as the Paquete Habana
and the Lola, flying the Spanish flag and belonging to a Spanish national.
- In 1898, during the war between America and Spain, the warships of
America blockaded the northern coast of Cuba, which was then a colony of
Spain.
- During this time, the Paquete Habana and the Lola were out at sea,
fishing along the coast of Cuba and near Yucatan. The said boats were then
captured by the blockading squadrons.
- The American warships seized the Paquete Habana and the Lola, and
in order to punish them, started proceedings against them in the District
Court of America. They were brought before the Court for condemnation.
- The question which fell before their lordships was whether, under
the customary international law, fishing boats were subject to capture by
the armed vessels of the United States during war with Spain.
- The trial Court held that such vessels could be captured and
condemned as prizes of war.
- The owners of the ships preferred an Appeal in the Supreme Court of
America against the said Order.
- The Supreme Court of America had to decide whether the fishing
vessels could be seized and their crew apprehended during the state of
blockade. The Supreme Court had to determine the International law on
this point and also had to clarify whether the State law of America
followed International law.
- On an appeal, the judgment of the lower court was reversed and it
was held that such fishing boats were free from capture and condemnation.
- After making an exhaustive reference to various jurists, their
lordships came to the conclusion that “in the absence of higher and more
authoritative sanctions, the ordinances of foreign states, the opinions of
eminent statesmen, and writings of distinguished jurists as regarded as of
great consideration on questions not settled by conventional law.
- In case where the principal jurists agree, the presumptions will be
very great in favour of the solidity of their maxims, and no civilized
nation, that does not arrogantly set all ordinary law and justice at defiance
will venture to disregard the uniform sense of the established writers on
international law. 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.
ISSUE:
Was it proper for the court to issue a decree of condemnation and auction
the fishing vessels?
ANSWER: No
CONCLUSION:
Under the law of nations, in each case the capture was unlawful and
without probable cause. It was a rule of international law that coast fishing
vessels, pursuing their vocation of catching and bringing in fresh fish, were
exempt, with their cargoes and crews, from capture as prize of war.
Although not reduced to treaty or statutory law, courts were obligated to
take notice of and give effect to that rule. Thus, the decrees condemning
the vessels were reversed and, in each case, it was ordered that the
proceeds of the sales of each vessel and cargo be restored to the respective
claimant, with compensatory damages and costs. The Court also noted that
it had appellate jurisdiction over the controversy without regard to the
amount in dispute and without certification from the district court, as
required by prior statutory law.
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.

This case is relevant for the understanding of the ‘sources of international

law’, particularly “ancient custom” as followed by the civilized nations,
and it also throws light on the effects of recognition of a State by another or
more members of the international comity of nations. This may be de facto
or de jure recognition, whether a normal case of recognition on the
emergence of a new State or the case of insurgents having successfully
rebelled against the parent State and exercising full authority over a given
territory under their possession and observing principles or rules of
international law and fulfilling all the obligations there under. The case
illustrates the point that the acts of a recognized State are considered to be
acts of a sovereign, independent State, and therefore no national is entitled
to sue such a State in any court of law; the simple reason being that no
sovereign is subject to the jurisdiction of the Courts of another sovereign.
This is the ancient custom which has been recognized by all civilized
nations and the decision in this case was in fact founded and grounded on
the principle of custom which exists as to the immunity of a sovereign
before the judicial forums of another sovereign.