I.

CONCEPTS
Commented [GWE1]: Relevant treaties and
Conventions recognizing international law as a
International Law – a body of principles, norms, and processes which regulates the law of the community of states as a whole:
UNCLOS
relations of States and other international persons, and governs their conduct affecting Article 1."Area" means the seabed and ocean floor
the interests of the international community of states as a whole and subsoil thereof, beyond the limits of national
jurisdiction;
 “It is a continuing process of authoritative decisions, it is a system of normative
conduct…, conduct which is regarded by each actor and by the group as a whole, Article 136. The Area and its resources are the
common heritage of mankind.
as being obligatory.” (Rosalyn Higgins s a British former President of the International Court of
Justice (ICJ). She was the first female judge elected to the ICJ, and was elected President in 2006. Article 137(1). No State shall claim or exercise
Her term of office expired on 6 February 2009.) sovereignty or sovereign rights over any part of
the Area or its resources, nor shall any State or
 Restatement of the Law, Third, Foreign Relations Law of the United States natural or juridical person appropriate any part
thereof. No such claim or exercise of sovereignty
§ 101 International Law Defined . International law, as used in this Restatement, or sovereign rights nor such appropriation shall
consists of rules and principles of general application dealing with the conduct be recognized.
of states and of international organizations and with their relations inter se, as
Article 140(1) Activities in the Area shall, as
well as with some of their relations with persons, whether natural or juridical.
specifically provided for in this Part, be carried
out for the benefit of mankind as a whole,
irrespective of the geographical location of States,
Jus cogens / peremptory norm – norm accepted and recognized by the international whether coastal or land-locked, and taking into
community of states as a whole, as a norm from which no derogation is permitted, and particular consideration the interests and needs
which can be modified only by a subsequent norm of general international law having of developing States and of peoples who have not
attained full independence or other self-governing
the same character. (Art. 53, Vienna Convention on the Law of Treaties) status recognized by the United Nations in
accordance with General Assembly resolution
 May be a ground to terminate/invalidate a treaty if in conflict to this norm 1514 (XV) and other relevant General Assembly
resolutions.
 E.g. Prohibition against the use of force under the UN Charter (Nicaragua Case);
Outer Space Treaty
Law on genocide, principle of self-determination, racial non-discrimination, Article I. The exploration and use of outer space,
crimes against humanity, prohibition against slavery and slave trade including the Moon and other celestial bodies,
shall be carried out for the benefit and in the
interests of all countries, irrespective of their
degree of economic or scientific development, and
State Sovereignty – right to exercise in a definite portion of the globe the functions of shall be the province of all mankind. Outer space,
including the Moon and other celestial bodies,
a State to the exclusion of any other State shall be free for exploration and use by all States
without discrimination of any kind, on a basis of
 Independence and equality of a state from other states equality and in accordance with international law,
and there shall be free access to all areas of
celestial bodies. There shall be freedom of
scientific investigation in outer space, including
Obligation erga omnes – obligations of every State towards the international the Moon and other celestial bodies, and States
community as a whole. All States can be held to have a legal interest in their protection. shall facilitate and encourage international
cooperation in such investigation.
 E.g. Acts of aggression, genocide, principles concerning human rights, slavery,
Article II. Outer space, including the Moon and
discrimination other celestial bodies, is not subject to national
appropriation by claim of sovereignty, by means
Obligation inter se – obligation which a State owes to another State. (Barcelona Traction of use or occupation, or by any other means.
Case, ICJ 1970)
Moon Treaty/Agreement
Article 11(1). The moon and its natural resources
are the common heritage of mankind, which finds
its expression in the provisions of this Agreement
and in particular in paragraph 5 or this article. ...
Ex Aequo et bono - The ancient concept of ex aequo et bono is based upon the idea of
‘fundamental fairness’ as a guideline principle in arbitration and other dispute
settlement processes. Provided that the parties expressly agree, it enables judges and
arbitrators to decide a case according to what—in literal translation of the original Latin
phrase—‘is fair (or equitable) and good’ ( Fair and Equitable Treatment ). That is also to
say ‘in good conscience’ and notwithstanding the written law.
http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1402

II. SOURCES – process or method of creating norms of international law

International Court of Justice Statute

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

a. international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states ;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto.

Article 59. The decision of the Court has no binding force except between the parties
and in respect of that particular case.

Formal Sources – methods and procedures by which norms are created

 international conventions/ treaties

– binding only to parties to it
- Article 34. GENERAL RULE REGARDING THIRD STATES A treaty does
not create either obligations or rights for a third State without its
consent.(Vienna Convention on the Law of Treaties)
 Vienna Convention on the Law of Treaties (VCLT)

Article 2. USE OF TERMS 1. For the purposes of the present Convention:

(a) "Treaty" means an international agreement concluded between States in

written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
designation;

Article 34. GENERAL RULE REGARDING THIRD STATES.

A treaty does not create either obligations or rights for a third State without its
consent.

Article 26. "PACTA SUNT SERVANDA".

Every treaty in force is binding upon the parties to it and must be performed by
them in good faith.

 international custom
– binding to all States

Elements:

1. General practice, characterized by uniformity and consistency

*Repetition of practice is also necessary (Judge Hudson’s statement and

Tunkin)

*Universality of practice is not required (Asylum Case, ICJ 1950)

*No particular length of time is required, it is enough that it is extensive and

universally uniform (North Sea Continental Shelf Cases, ICJ 1969)

NOTE:

o A norm may both be a treaty and a custom. (Nicaragua Case, ICJ)

o States may derogate customary norms of international law through a
treaty except customary norms of jus cogens character. (North Sea
Continental Shelf Cases, ICJ 1969)
 2. Opinion Juris or recognition of that practice as legally binding

o Habitual character of the acts is not enough, the States concerned must
feel that they are conforming to what amounts to a legal obligation (North
Sea Continental Shelf Cases, ICJ 1969)

 general principles of law

o apply the principles of municipal jurisprudence, in so far as they are
applicable to relations of States” (Brownlie, taking the view of Oppenheim)

Material Sources – substantive evidence of the existence of norms

 Judicial decisions and the teachings of the most highly qualified publicists of the
various nations

-not sources of law, but subsidiary means for the determination of the rules of
law (Art.38(1)(d), ICJ)
- means to verify rules of law; evidence

NOTE: There is no order of precedence explicitly stated in the application of sources of

international law.
However, in North Sea Continental Shelf Cases, the Geneva Convention was held to
prevail over any rules of general character, or derived from any other source. (Thus,
treaties may prevail over other sources of law.)

“One should first apply those rules to which assent has been expressly given before
having recourse to such rules (such as those from international law and general
principles of law) whose validity depends more on tacit, rather than express consent.”
{I.M. Sinclair, VCLT, 1973 p.2)

Principles that may be used to order of precedence of sources of international law:

 Lex superior derogat inferiori – one source of law prevails over another
 Lex posterior derogat priori – later rule prevails over earlier rule
 Lex specialis derogate generali – special rule prevails over general rule

Rules governing successive treaties. Art. 30, VCLT:

Article 30. APPLICATION OF SUCCESSIVE TREATIES RELATING TO THE SAME

SUBJECT-MATTER
1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations
of States parties to successive treaties relating to the same subject-matter shall be
determined in accordance with the following paragraphs.

2. When a treaty specifies that it is subject to, or that it is not to be considered as

incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.

3. When all the parties to the earlier treaty are parties also to the later treaty but the
earlier treaty is not terminated or suspended in operation under article 59, the earlier
treaty applies only to the extent that its provisions are compatible with those of the later
treaty.

4. When the parties to the later treaty do not include all the parties to the earlier one:
(a) As between States parties to both treaties the same rule applies as in paragraph 3;
(o) As between a State party to both treaties and a State party to only one of the treaties,
the treaty to which both States are parties governs their mutual rights and obligations.

NOTE: There is hierarchy of obligations. Obligations jus cogens/erga omnes prevails

over inter se. (Barcelona Traction Case, ICJ 1970)

United Nations Charter. Article 103. In the event of a conflict between the obligations
of the Members of the United Nations under the present Charter and their obligations
under any other international agreement, their obligations under the present Charter
shall prevail.

NOTE: Unilateral declaration or acts of States concerning factual or legal situation, may
have the effect of creating legal obligations. When it has the intention to be bound by its
declaration. (Nuclear Tests Case, ICJ 1974; Also see Legal Status of Eastern Greenland
Case)

Principle of Persistent Objector – when a State continues to object to a new customary

norm at the time when it is yet in the process of formation, by such persistent objection,
the norm will not be applicable as against the State (Anglo-Norwegian Fisheries Case,
ICJ 1951)

Restatement of the Law, Third, Foreign Relations Law of the United States
§ 102 Sources of International Law

(1) A rule of international law is one that has been accepted as such by the international
community of states
(a) in the form of customary law;
(b) by international agreement; or
(c) by derivation from general principles common to the major legal systems of the world.

(2) Customary international law results from a general and consistent practice of states
followed by them from a sense of legal obligation.
(3) International agreements create law for the states parties thereto and may lead to
the creation of customary international law when such agreements are intended for
adherence by states generally and are in fact widely accepted.

(4) General principles common to the major legal systems, even if not incorporated or
reflected in customary law or international agreement, may be invoked as
supplementary rules of international law where appropriate.

North Sea Continental Shelf Cases, ICJ 1969 (Federal Republic of Germany, Netherland
and Denmark)

SUMMARY:

The dispute, which was submitted to the Court on 20 February 1967, related to the
delimitation of the continental shelf between the Federal Republic of Germany and
Denmark on the one hand, and between the Federal Republic of Germany and the
Netherlands on the other. The Parties asked the Court to state the principles and rules
of international law applicable, and undertook thereafter to carry out the delimitations
on that basis.
The Court rejected the contention of Denmark and the Netherlands to the effect that the
delimitations in question had to be carried out in accordance with the principle of
equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental
Shelf, holding: -that the Federal Republic, which had not ratified the Convention, was
not legally bound by the provisions of Article 6;

-that the equidistance principle was not a necessary consequence of the general
concept ofcontinental shelf rights, and was not a rule of customary international law.

The Court also rejected the contentions of the Federal Republic in so far as these
sought acceptance of the principle of an apportionment of the continental shelf into just
and equitable shares. It held that each Party had an original right to those areas of the
continental shelf which constituted the natural prolongation of its land territory into
and under the sea. It was not a question of apportioning or sharing out those areas, but
of delimiting them.

The Court found that the boundary lines in question were to be drawn by
agreement between the Parties and in accordance with equitable principles, and it
indicated certain factors to be taken into consideration for that purpose. It was now for
the Parties to negotiate on the basis of such principles, as they have aped to do.

RULING:
The Apportionment Theory Rejected (paras. 18-20 of the Judgment)
The doctrine of the just and equitable share was wholly at variance with the most
fundamental of all the rules of law relating to the continental shelf, namely, that the
rights of the coastal State in respect of the area of continental shelf constituting a
natural prolongation of its land territory under the sea existed ipso facto and ab initio,
by virtue of its sovereignty over the land. That right was inherent. In order to exercise
it, no special legal acts had to be performed. It followed that the notion of apportioning
an as yet undelimited area as a whole (which underlay the doctrine of the just and
equitable share) was inconsistent with the basic concept of continental shelf
entitlement.

Non-Applicability of Article 6 of the I958 Continental Shelf Convention

(p,s. 21-36 of the judgment)
The first question to be considered was whether the 1958 Geneva Convention on the
Continental Shelf was binding for all the Parties in the case. Under the formal provisions
of the Convention, it was in force for any individual State that had signed it within the
time-limit provided, only if that State had also sllbsequently ratified it. Denmark and,
the Netherlands had both signed and ratified the Convention and were parties to it, but
the Federal Republic, although one of the signato-ries of the Convention, had never
ratified il:, and was conse-quently not a party.
Only the existence of a situation of estoppel could lend substance to the contention
of Denmark and the Nether-lands-i.e., if the Federal Republic were now precluded from
denying the applicability of the conventional regime, by reason of past conduct,
declarations, etc.., which not only clearly and consistently evinced acceptance of that
regime, but also had caused Denmark or the Netherlands, in reliance on such conduct,
detrimentally to change position or suffer some prejudice. Of this there was no
evidence. Accordingly, Article 6 of the Geneva Convention was not., as such, applicable
to the delimitations involved in the present proceedings.

The Equidistance Principle Not Inherent in the Basic Doctrine of the Continental Shelf
(paras. 37-59 of the Judgment)
A review of the genesis of the equidistance method of delimitation confirmed the
foregoing conclusion. The "'Truman Proclamation" issued by the Government of the
United States on 28 September 1945 could be regarded as a starting point of the positive
law on the subject, and the chief doctrine it enunciated, that the coastal State had an
original, natural and exclusive right to the continental shelf off its shores, had come to
prevail over all others and was now reflected in the 1958 Geneva Convention. With
regard to the delimitation of boundaries between the continental shelves of adjacent
States, the Truman Proclamation had stated that such boundaries "shall be determined
by the United States and the State concerned in accordance with equitable principles".
The Equidistance Principle not a rule of customary international law
(paras. 60-82 of the judgment)
Rejecting the contentions of Denmark and the Netherlands, the Court considered that
the principle of equidistance, as it figured in Article 6 of the Geneva Convention, had
not been proposed by the International Law Commission as an emerging rule of
customary international law. This Article could not be said to have reflected or
crystallized such a rule. This was confirmed by the fact that any State might make
reservations in respect of Article 6, unlike Articles 1 , 2 and 3, on signing, ratifying or
acceding to the Convention
Article 6, however, related directly to continental shelf rights as such, and
since it was not excluded from the faculty of reservation, it was a legitimate
inference that it was not considered to reflect emergent customary law.
In order for this process to occur it was necessary that Article 6 of the Convention
should, at all events potentially, be of a norm-creating character. Article 6 was so
framed, however, as to put the obligation to make use of the equidistance method after
a primary obligation to effect delimitation by agreement. Furthermore, the part played
by the notion of special circumstances in relation to the principle of equidistance, the
controversies as to the exact meaning and scope of that notion, and the faculty of
making reservations to Article 6 must all raise doubts as to the potentially norm-creating
character of that Article.
As regards the time element, although the passage of only a short period of time was
not necessarily a bar to the formation of a new rule of customary international law on
the basis of what was originally a purely conventional rule, it was indispensable that
State practice during that period, including that of States whose interests were specially
affected, should have been both extensive and virtually uniform in the sense of the
provision invoked and should have occurred in such a way as to show a general
recognition that a rule of law was involved. Some 15 cases had been cited in which the
States concerned had agreed to draw or had drawn the boundaries concerned according
to the principle of equidistance, but there was no evidence that they had so acted
because they had felt legally compelled to draw them in that way by reason of a rule of
customary law. The cases cited were inconclusive and insufficient evidence of a settled
practice.

Asylum Case, ICJ 1950 (Columbia v. Peru)

SUMMARY:
The origin of the Colombian-Peruvian Asylum case lies in the asylum granted on
January 3rd. 1949, by the Colombian Ambassador in Lima to M. Victor Raul Haya de
la Torre, head of a political party in Peru, the American People's Revolutionary Alliance.
On October 3rd, 1948,,a military rebellion broke out in Peru and proceedings were
instituted against Haya de la Torre for the instigation and direction of that rebellion. He
was sought out by the Peruvian authorities, but without success; and after asylum had
been granted to the refugee, the Colombian Ambassador in Lima requested a safe-
conduct to enable Haya de la Torre, whom he qualified as a political offender, to leave
the country.
The Government of Peru refused, claiming that Haya de la Tom had committed common
crimes and was not entitled to enjoy the benefits of asylum. Being unable to reach an
agreement, the two Governments submitted to the Court certain questions concerning
their dispute; these questions were set out in an Application submitted by Colombia
and in a Counter-Claim submitted by Peru.

In its Judgment, the Court, by fourteen votes to two, declared that Colombia was not
entitled to qualify unilaterally and in a manner binding upon Peru the nature of the
offence; by fifteen votes to one, it declared that the Government of Peru was not bound
to deliver a safe-conduct to the refugee.
On the other hand, the Court rejected by fifteen votes to one the Peruvian contention
that Haya de la Torre was accused of common crimes; the Court noted that the only
count against Haya de la Torre was that of military rebellion and military rebellion was
not, in itself, a common crime.
Lastly, by ten votes to six, the Court, without criticizing the attitude of the Colombian
Ambassador in Lima, considered that the requirements for asylum to be granted in
conformity with the relevant treaties were not fulfilled at the time when he received Haya
de la Torre. Indeed, according to the interpretation which the Court put upon the
Convention of Havana, asylum could not be an obstacle to proceedings instituted by
legal authorities operating in accordance with the law.

RULING:
Bolivarian, Havana, Montivideo Convention and American International Law
Colombia maintained before the Court that, according to the Convention in force, the
Bolivarian Agreement of 1911 on Extradition, the Havana Convention of 1928 on
Asylum, the Montevideo Convention of 1933 on Political Asylum-and according to
American International Law, she was entitled to qualify the nature of the offence for
the purposes of the asylum. In this connection, the Court considered that, if the
qualification in question were provisional, there could be no doubt on that point: the
diplomatic representative would consider whether the required conditions had been
satisfied, he would pronounce his opinion and if that opinion were contested, a
controversy would then arise which might be settled according to the methods
provided by the Parties.

But it resulted from the proceedings in the case that Colombia claimed the right of
unilateral and definitive qualification binding upon Peru. The first of the Treaties which
it invoked- the Bolivarian Agreement, which is the 'Treaty on extradition-confined itself
in one Article to recognizing the institution of asylum in accordance with the principles
of international law. But these principles do not entail the right of unilateral
qualification. On the other hand, when the Bolivarian Agreement laid down rules for
extradition, it was not possible to deduce from them conclusions concerning diplomatic
asylum. In the case of extradition, the refugee was on the territory of the State of refuge:
if asylum were granted to him, such decision would not derogate from the sovereignty
of the States in which the offence was committed. On the contrary, in the case of
diplomatic asylum, the refugee was on the territory of the State in which he had
committed the offence: the decision to grant asylum derogated from the sovereignty of
the territorial State and removed the offender from the jurisdiction of that State.

As for the second treaty invoked by Colombia-the Havana Convention--it did not
recognize the right of unilateral qualification either explicitly or implicitly. The third
treaty-the Convention of Montevideo-had not been ratified by Peru and could be
invoked against that country.
Finally, as regarded American international law, Colombia had not proved the existence,
either regionally or locally, of a constant and uniform practice of unilateral qualification
as a right of the State of refuge and an obligation upon the territorial State. The facts
submitted to the Court disclosed too much contradiction and fluctuation to make it
possible to discern therein a usage peculiar to Latin America and accepted as law.

It therefore followed that Colombia, as the State granting asylum, was not competent
to qualify the nature of the offence by a unilateral and definitive decision binding on
Peru. ,
Colombia also maintained that Peru was under the obligation to issue a safe-conduct
to enable the refugee to leave the country in safety. The Court, setting aside for the time
being the question of whether asylum was regularly granted and maintained, noted that
the clause in the Havana Convention which provided guaranties for the refugee was
applicable solely to a case where the territorial State demanded the departure of the
refugee from its territory: it was only after such a demand that the diplomatic Agent who
granted asylum could, in turn, require a safe-conduct. There was, of course, a practice
according to which the diplomatic Agent immediately requested a safe-conduct, which
was granted to him: but this practice, which was to be explained by reasons of
expediency, laid no obligation upon the territorial State.

In the present case, Peru had not demanded the departure of the refugee and was
therefore not bound to deliver a safe-conduct.

Counterclaim of Peru
In a counter-claim, Peru had asked the Court to declare that asylum had been granted
to Haya de la Tom in violation of the Havana Convention, first, because Haya de la Torre
was accused, not of a political offence but of a common crime and, secondly, because
the urgency which was required under the Havana Convention in order to justify asylum
was absent in that case.

Having observed that Peru had at no time asked for the sur-render of the refugee, the
Court examined the first point. In this connection, the Court noted that the only charge
against the refugee was that of military rebellion, which was not a common crime.
Consequently, the Court rejected the counter-claim of Peru on that point, declaring it
to be ill-founded.
The Havana Convention was not intended to protect a citizen who had plotted against
the institutions of his country from regular legal proceedings. It was not sufficient to be
accused of a political offence in order to be entitled to receive asylum; asylum could
only intervene against the action of justice in cases where arbitrary action was
substituted for the rule of I law. It had not been proved that the situation in Peru at the
time implied the subordination of justice to the executive or the abolition of judicial
guarantees.

Besides, the Havana Convention was unablle to establish a legal system which would
guarantee to persons accused of political offences the privilege of evading their national
jurisdiction. Such a conception would come into conflict with one of the oldest traditions
of Latin America, that of non-intervention.
 Whilst declaring that at the time at which asylum was granted, on January 3rd,
1949, there was no case of urgency within the meaning of the Havana Convention, the
Judgment declared that this in no way constituted a criticism of the Colombian
Ambassador. His appreciation of the case was not a relevant factor to the question of
the validity of the asylum: only the objective reality of the facts was of importance.

The Court therefore came to the conclusion that the grant of asylum was not in
conformity with Article 2, paragraph 2, of the Havana Convention.