NICARAGUA VS UNITED STATES

DEFENSE AND USE OF FORCE

(SUMMARY)

ON

SELF

Case: Case Concerning the Military and Paramilitary

Activities In and Against Nicaragua (Nicaragua vs United
States) (Merits: focusing on matters relating to the use of force
and self-defence)
Year of Decision: 1986
Court: ICJ
Overview: The case involved military and paramilitary activities
conducted by the United States 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 collapsed
following an armed opposition led by the Frente Sandinista de
Liberacibn Nacional (FSLN). The new government installed by
FSLN began to meet armed opposition from supporters of the
former Somoza Government and ex-members of the National
Guard. 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 it terminated United
States aid to Nicaragua and in September 1981, according to
Nicaragua, the United States decided to plan and undertake
activities directed against Nicaragua.
The armed opposition to the new Government was conducted
mainly by (1) Fuerza Democratica Nicaragense (FDN), which
operated
along
the
border
with
Honduras,
and
(2)Alianza Revolucionaria Democratica (ARDE), which operated
along the border with Costa Rica, (see map of the region). 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 they were paid for and directly
controlled by United States personal. Nicaragua also alleged that
some attacks were carried out by United States military with the
aim to overthrow the Government of Nicaragua. Attacks against
Nicaragua included the mining of Nicaraguan ports and 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 ICJs 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 by providing, upon request,
proportionate and appropriate assistance to Costa Rica,
Honduras and El Salvador in response to Nicaraguas alleged acts
aggression against those countries (paras. 126, 128).
Questions before the Court:

Did the United States breach 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 encouraged, supported and aided the
military and paramilitary activities against Nicaragua?

Did the United States breach its customary international

law obligation not to use force against another State
when it directly attacked Nicaragua in 1983 1984 and
when its activities in bullet point 1 above resulted in the
use of force?

If so, can the military and paramilitary activities that the

United States undertook in and against Nicaragua be
justified as collective self-defence?

Did the United States breach 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 by acts referred to in bullet
point 2 above?

Did the United States 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 the territorial sea of Nicaragua?

ICJ decision: The United States violated customary international

law in relation to bullet points 1, 2, 4 and 5 above. On bullet point
3, the Court found that the United States could not rely on
collective self-defence to justify its use of force against Nicaragua.

participating in acts of civil strife and terrorist acts in

another State when the acts referred to involve a threat
or use of force not amounting to an armed attack).

The United States violated the customary international law

prohibition on the use of force when it laid mines in
Nicaraguan ports. It violated this prohibition when it
attacked Nicaraguan ports, oil installations and a naval
base (see below). The United States could justify its action
on collective self-defence, if certain criteria were met this
aspect is 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 strifein
another State 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. Nicaragua argued that the
timing of the offensives against it was determined by the
United States: i.e. an offensive could not be launched until
the requisite funds were available. 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 while the arming and training
of the contras involved the threat or use of force against
Nicaragua, the supply of funds, in it self, only amounted to
an act of intervention in the internal affairs of
Nicaragua (para 227) this aspect is discussed below.

Relevant Findings of the Court:

1. The court held that the United States breached its
customary international law obligation not to use force
against another State: (1) when it directly attacked
Nicaragua in 1983 1984; and (2) when its activities with
the contra forces resulted in the threat or use of force (see
paras 187 -201).
The Court held that:

The prohibition on the use of force is found in Article 2(4) of

the UN Charter and in customary international law.
In a controversial finding the court sub-classified the use of
force as: (1) the most grave forms of the use of force (i.e.
those that constitute an armed attack) and (2) the less
grave form (i.e. organizing, instigating, assisting or

What is an armed attack?

A controversial but interesting aspect of the Courts

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 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
States) substantial involvement therein
NB: The second point somewhat resembles Article 3 (g) of
the UNGA Resolution 3314 (XXIX) on the Definition of Aggression .

Mere frontier incidents are not considered as an armed

attack unless because of its scale and effects it would
have been classified as an armed attack if it was carried
out by regular forces.

Assistance to rebels in the form of provision of weapons or

logistical support did not constitute an armed attack 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 selfdefence is only available against a use of force that
amounts to an armed attack (para 211).

NB: In in the Case Concerning Oil Platforms and the 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 upheld the definition of armed attack
proposed in the Nicaragua case. In the Palestinian wall case, the
attacks from which Israel was claiming self defence originated
from non-State actors. However, the Court held that Article 51s
inherent right of self defence was available to one State only
against another State (para 139). Judges Higgins, Buergenthal and
Kooijmans opposed this narrow view. Articles on State
Responsibility, prepared by the International Law Commission,
provided 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 (see legal opinions surrounding the United States attack
on Afghanistan), may have widened the scope of an armed attack,
and consequently, the right of self defence, envisaged by the ICJ.
2. The Court held that the United States could not justify
its military and paramilitary activities on the basis of
collective self-defence.

Customary international law allows for exceptions to the

prohibition on the use of force including the right to
individual or collective self-defence (for a difference
between the two forms of self defence, click here). The
United States, at an earlier stage of the proceedings, had
asserted that the Charter itself acknowledges the existence
of this customary international law right when it talks of
the inherent right of a State under Article 51 of the
Charter (para.193).

When a State claims that it used force in collective selfdefence, the Court would look into two aspects:

(1) whether the circumstances required for the exercise of selfdefence existed and
(2) whether the steps taken by the State, which was acting in selfdefence, corresponds to the requirements of international law (i.e.
did it comply with the principles of necessity and proportionality).

Several criteria must be met for a State to exercise the

right of individual or collective self-defence:

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

(2) This State must declare itself as a victim of an armed attack;
[NB: the assessment whether an armed attack took place nor not is
done by the state who was subjected to the attack. A third State
cannot exercise a right of collective self-defence based its (the
third States) own assessment]; and

(3) In the case of collective self-defence the victim State must

request for assistance (there is no rule permitting the exercise of
collective self-defence in the absence of a request by the State
which regards itself as the victim of an armed attack).

The Court looked extensively into the conduct of

Nicaragua, El Salvador, Costa Rica and Honduras in
determining whether an armed attack was undertaken by
Nicaragua against the three countries which in turn would
necessitate self-defence (paras 230 236). The Court
referred to statements made by El Salvador, Costa Rica,
Honduras and the United States before the Security
Council. None of the countries who were allegedly subject
to an armed attack by Nicaragua (1) declared themselves
as a victim of an armed attack or request assistance from
the United States in self-defence at the time when the
United States was allegedly acting in collective selfdefence; and (2) the United States did not claim that it was
acting under Article 51 of the UN Charter and it did not
report that it was so acting to the Security Council. The
Court concluded that the United States cannot justify its
use of force as collective self-defence.

The criteria with regard to necessity and proportionality,

that is necessary when using force in self-defence was
also not fulfilled (para 237).

(4) The State 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
absence of a report may be one of the factors indicating whether
the State in question was itself convinced that it was acting in selfdefence (see below).
At this point, the Court may consider whether in customary
international law there is any requirement corresponding to that
found in the treaty law of the United Nations Charter, by which the
State claiming to use the right of individual or collective selfdefence must report to an international body, empowered to
determine the conformity with international law of the measures
which the State is seeking to justify on that basis. Thus Article 51
of the United Nations Charter requires that measures taken by
States in exercise of this right of self-defence must
be immediately reported to the Security Council. As the Court
has observed above (paragraphs 178 and 188), a principle
enshrined in a treaty, if reflected in customary international law,
may well be so unencumbered with the conditions and modalities
surrounding it in the treaty. Whatever influence the Charter may
have had on customary international law in these matters, it is
clear that in customary international law it is not a 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).

3. 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 principle of non- intervention means that every State

has a right to conduct its affairs without outside
interference i.e it forbids States or groups of States to
intervene directly or indirectly in internal or external affairs
of other States. . This is a corollary of the principle of
sovereign equality of States.

A prohibited intervention must accordingly be one bearing on

matters in which each State is permitted, by the principle of State
sovereignty to decide freely. One of these is the choice of a
political, economic, social and cultural system, and the formulation

of foreign policy. Intervention is wrongful when it 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 and
to substantially damage the economy and weaken the
political system to coerce the Government of Nicaragua to
accept various political demands of the United States. The
Court held:

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 was a breach of the principle of noninterference. no 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).T he 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.

In sum, the evidence available to the Court indicates that 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 StatesThe 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 21 1 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 countermeasures 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.
4. The United States breached its customary international
law obligation not to violate the sovereignty of another
State when it directed or authorized its aircrafts to fly
over Nicaraguan territory and when it laid mines in the
internal waters of Nicaragua and its territorial sea.

The ICJ 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.

The basic concept of State sovereignty in customary

international law is found in Article 2(1) of the UN Charter.
State sovereignty extends to a States internal waters, its
territorial sea and the air space 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 unauthorized overflights
over Nicaraguan airspace by aircrafts that belong to or was
under the control of the United States.

NICARAGUA VS UNITED STATES: AN ANALYSIS

JURISPRUDENCE ON CUSTOMARY INTERNATIONAL LAW

OF

Case: Case Concerning the Military and Paramilitary

Activities In and Against Nicaragua (Nicaragua vs United
States)
Year of Decision: 1986. Court: ICJ.
Overview: The case involved military and paramilitary activities
conducted by, or with the assistance of, the United States against
Nicaragua from 1981 to 1984. Due to a multilateral treaty
reservation of the United States (hereinafter called the
Vandenberg reservation), the Court was compelled to base its
findings only on customary and general principles of international
law. As a result, the Nicaragua case developed significant
jurisprudence on clarifying customary international law on the use
of force and non-intervention, elements necessary to form
customary international law and the relationship between the
latter and treaty law. Controversial aspects of the decision
included the courts methodology used to determine that the
principle of non-intervention had attained customary law status,
the courts reliance on UN resolutions as a source of opinio juris
and the courts reliance on multilateral treaties to determine
customary international law in face of the Vandenberg reservation.
Recommendation: The Nicaragua case contains in-depth
discussions on the relationship between treaty and customary
international law. Students may wish to read this post on the
relationship before reading the synopsis of the case.

In the Nicaragua case, the ICJ discussed:

The competence of the ICJ to give its determination based

on customary international law in the face of the
Vandenberg reservation of the United States.

The relationship
international law.

between

treaty

law

and

customary

Elements of customary international law.

The prohibition on the use of force as a jus cogens norm.

Customary international law status of the principle of nonintervention.

The competence of the ICJ to give its determination based

on customary international law
1. The United States when accepting the compulsory jurisdiction of
the ICJ (under Article 36(2) of the ICJ Statute) entered into the
Vandenberg reservation. This reservation barred the ICJ from using
certain multilateral treaties in the adjudication of the dispute.
2. The United States held that this reservation barred the Court
from determining the case even on the basis of customary and
general principles of international law because customary law
provisions, on which Nicaragua relied on, were identical to
provisions in treaties sought to be excluded. Because of the
identical content, the United States argued, treaty provisions
supervene and subsume the parallel customary law provision (see
below).

at the merits stage (see the declaration made by the United

States in this regard). Although the Court was barred from
resorting to multilateral treaties, it referred to the latter, including
the UN Charter, to identify the existence, nature and scope of
various customary law principles. Commentators criticised the
Court for circumventing the multilateral reservation in this manner.
Relationship
between
international law

treaty

law

and

customary

4. As we noted before, the United States argued that when

customary international law and treaty law contain the same
content; the treaty law subsumes and supervenes customary
international law. In other words, the existence of principles in the
United Nations Charter precludes the possibility that similar rules
might exist independently in customary international law, either
because existing customary rules had been incorporated into the
Charter, or because the Charter influenced the later adoption of
customary rules with a corresponding content (para 174).
5. In its response, the Court distinguished two situations:
(a) Situations where the customary law principles were identical
to treaty provisions; and
(b)
Situations where customary law and treaty law rights and
obligations differed in respect of the same subject matter.

3. The Court disagreed. It held that multilateral treaty reservations

could not preclude the Court from determining cases relying
customary
international
law
because
the
latter
exists
independently of treaty law.

6. In situations where customary law principles were identical to

treaty provisions (reflected as (a) above), the Court, quite
correctly, disagreed with the view of the United States. It held that
even if principles of customary international law are codified into
treaties, the former continues to exist side by side with the latter.
For treaty parties, both customary and treaty law apply and if, for
some reason, the treaty ceases to apply the identical customary
law provision continues to apply between them unaffected (see
more on para 178).

NB: The United States disagreed with the Courts determination to

proceed with the case and refused to participate further, including

7. The fact that customary international law exists alongside treaty

law was an argument 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. In this case the Court
determined that Article 6 neither reflected customary law at the
time of the codification, nor had it 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 the assertion that
principles of customary international law can exist side by side with
identical treaty law provisions and the latter does not supervene
the former in a manner where the former ceases to exist (para
177).
8. 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 on the same subject matter. The term inherent
in Article 51 recognised that customary law rights of self-defense
existed alongside treaty provisions.
9. Rules containing the same content could 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 those that reflect
customary law. One could take the Courts reading of Article 51 as
an 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, although the failure to report
did not result in a breach of customary international law, the Court
indicated that the United States failure to observe this
requirement contradicted her claim to be acting in self defence
(see paras 200, 235).
10. The Court discussed situations where customary international
law and treaty law provisions were not identical (see point (b)
above). For example, the Court referred to the fact that concepts
such and 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 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.
11. In case of a divergence between treaty law and customary
international law, for the parties to the treaty, amongst
themselves, the treaty provisions apply as lex specialis. The courts
support for this principle can be found in paras 180 and 181. The
Court, in conclusion, explained the relationship between the UN
Charter and customary international law 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 (on the use of force and self
defence) 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 Courts 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).

and that instances of State conduct inconsistent with a given rule

should generally have been treated as breaches of that rule, not as
indications of the recognition of a new rule.

The relationship between customary international law and

jus cogens

If a State acts in a way prima facie incompatible with a recognized

rule, but defends its conduct by appealing to exceptions or
justifications contained within the rule itself, then whether or not
the States conduct is in fact justifiable on that basis, the
significance of that attitude is to confirm rather than to weaken the
rule. (para 186)

13. The court cited material presented by Nicaragua, the United

States and the International Law Commission to argue 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).
The necessary elements to determine the existence of
customary international law
14. The Court, similar to 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 international law norm
(para 207). The jurisprudence of the Nicaragua case contained an
important clarification inconsistent State practice does not affect
the formation or continued existence of a customary principle so
long as the inconsistency is justified as a breach of the rule.
It is not to be expected that in the practice of States the
application of the rules in question should have been perfect, in
the sense that States should have refrained, with complete
consistency, from the use of force or from intervention in each
others internal affairs.
The Court does not consider that, for a rule to be established as
customary, the corresponding practice must be in absolutely
rigorous conformity with the rule. In order to deduce the
existence of customary rules, the Court deems it sufficient that the
conduct of States should, in general, be consistent with such rules,

15. The Nicaragua jurisprudence explained how one could

deduct opinio juris from acts of State. The Court held that opinio
juris could be deduced from:
the attitude of States towards certain General Assembly
resolutions. For example, the Declaration on Principles of
International Law concerning Friendly Relations (hereafter called
the Declaration on Friendly Relations). The Court held that:
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 themselvesIt 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
- Statements by State representatives.
- Obligations undertaken by participating States in international
forums (the Court provided the example of the Conference on
Security and Co-operation in Europe, Helsinki)
The International Law Commissions findings that a concept
amounts to a customary law principle.

- Multilateral conventions.
NB: The fact that the Court relied on resolutions of the United
Nations to deduct opinio juris was subject to criticism. As you
know, opinio juris is the subjective element necessary to form
customary law. Opinio juris is reflected in instances where the
State undertakes a particular practice because it believes that it is
legally bound to do so. Voting patterns in the United Nations are
often guided by policy considerations over legal merits. The
General Assemblys subject matter is more policy oriented than
legal (for which we have the 6th Committee). For example, when
the United States voted for the Friendly Relations Declaration it
stated on record its belief that the Declaration was only a
statement of political intention and not an expression of the law.
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. The
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).
Customary international law relating to principles of nonintervention
16. The Court held that Principles such as those of the non-use of
force (para 191), non-intervention (para 192), respect for the
independence and territorial integrity of States, right of collective
self defence (para 193) 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 (text in brackets added).
17. The Courts finding that principle of non-intervention formed a
part of customary international law invited criticism from
commentators, partly because they disagreed that the principle
formed customary international law and partly because of the

Courts own contradictions in coming to its conclusions and

inadequacy of analysis (see below). The Courts contradiction
stems from this statement: The principle of non-intervention
involves the right of every sovereign State to conduct its affairs
without outside interference; though examples of trespass
against this principle are not infrequent, the Court considers
that it is part and parcel of customary international
law(emphasis added. Para 202).
18.
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 so
accepted, 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.
18. Although the question seemed to direct the Court towards
identifying an existing custom, in its response the Court seemed to
have already determined that the customary law prohibition of
non-intervention existed. In the following passage the Court
deliberates if, in contrast, a customary law right to intervention
had evolved.
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. The Court is not here concerned with the process of
decolonisation It 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
nonintervention. (paras 206, 207).

19. The Court went on to hold, as before, that for a new customary
rule to be formed, not only must the acts concerned amount to a
settled practice, but they must be accompanied by the opinio juris
sive necessitates.
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.
20. 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 nonintervention 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).
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 divorce
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. This is because, then, the two regimes would be
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.

Did Turkey violate international law when Turkish courts exercised

jurisdiction over a crime committed by a French national, outside
Turkey? If yes, should Turkey pay compensation to France?
The Courts Decision:
Turkey, by instituting criminal proceedings against Demons, did not
violate international law.
Relevant Findings of the Court:

LOTUS CASE (SUMMARY)

Name of the Case: The Lotus Case (France vs Turkey); Year of the
decision: 1927; and Court: PCIJ.
Overview: A collision occurred on the high seas between a French
vessel and a Turkish vessel. Victims were Turkish nationals and the
alleged offender was French. Could Turkey exercise its jurisdiction
over the French national under international law?
Facts of the Case:
A collision occurred on the high seas between a French vessel
Lotus and a Turkish vessel Boz-Kourt. The Boz-Kourt sank and
killed eight Turkish nationals on board the Turkish vessel. The 10
survivors of the Boz-Kourt (including its captain) were taken to
Turkey on board the Lotus. In Turkey, the officer on watch of the
Lotus (Demons), and the captain of the Turkish ship were
charged with manslaughter. Demons, a French national, was
sentenced to 80 days of imprisonment and a fine. The French
government protested, demanding the release of Demons or the
transfer of his case to the French Courts. Turkey and France agreed
to refer this dispute on the jurisdiction to the Permanent Court of
International Justice (PCIJ).
Questions before the Court:

Establishing Jurisdiction: Does Turkey need to support its assertion

of jurisdiction using an existing rule of international law or is the
mere absence of a prohibition preventing the exercise of
jurisdiction enough?
The first principle of the Lotus case said that jurisdiction is
territorial: A State cannot exercise its jurisdiction outside its
territory unless an international treaty or customary law permits
it to do so. This is what we called the first Lotus Principle.
Now the first and foremost restriction imposed by international
law upon a State is that failing the existence of a permissive rule
to the contrary it may not exercise its power in any form in the
territory of another State. In this sense jurisdiction is certainly
territorial; it cannot be exercised by a State outside its territory
except by virtue of a permissive rule derived from international
custom or from a convention. (para 45)
The second principle of the Lotus case: Within its territory, a
State may exercise its jurisdiction, on any matter, even if there is
no specific rule of international law permitting it to do so. In these
instances, States have a wide measure of discretion, which is only
limited by the prohibitive rules of international law.
It does not, however, follow that international law prohibits a
State from exercising jurisdiction in its own territory, in respect of
any case which relates to acts which have taken place abroad, and
in which it cannot rely on some permissive rule of international law.
Such a view would only be tenable if international law contained a

general prohibition to States to extend the application of their laws

and the jurisdiction of their courts to persons, property and acts
outside their territory, and if, as an exception to this general
prohibition, it allowed States to do so in certain specific cases. But
this is certainly not the case under international law as it stands at
present. Far from laying down a general prohibition to the effect
that States may not extend the application of their laws and the
jurisdiction of their courts to persons, property and acts outside
their territory, it leaves them in this respect a wide measure of
discretion, which is only limited in certain cases by prohibitive
rules; as regards other cases, every State remains free to adopt
the principles which it regards as best and most suitable. This
discretion left to States by international law explains the great
variety of rules which they have been able to adopt without
objections or complaints on the part of other States In these
circumstances all that can be required of a State is that it should
not overstep the limits which international law places upon its
jurisdiction; within these limits, its title to exercise jurisdiction rests
in its sovereignty. (paras 46 and 47)
This applied to civil and criminal cases. If the existence of a specific
rule was a pre-requisite to exercise jurisdiction, PCIJ argued,
then it wouldin many cases result in paralysing the action of the
courts, owing to the impossibility of citing a universally accepted
rule on which to support the exercise of their [States]
jurisdiction (para 48).
The PCIJ based this finding on the sovereign will of States.
International law governs relations between independent States.
The rules of law binding upon States therefor emanate from their
own free will as expressed in conventions or by usages generally
accepted as expressing principles of law and established in order
to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims.
Restrictions upon the independence of States cannot therefore be
presumed

[NB: This was one of the more debated aspects of the judgement.
Some argued that the Court placed too much emphasis on
sovereignty and consent of States (i.e. took a strong positivist
view)].
Criminal Jurisdiction: Territorial Jurisdiction
France alleged that the flag State of a vessel would have exclusive
jurisdiction over offences committed on board the ship in high
seas. The PCIJ disagreed. It held that France, as the flag State, did
not enjoy exclusive territorial jurisdiction in the high seas in respect
of a collision with a vessel carrying the flag of another State (paras
71 84). The Court held that Turkey and France both have
jurisdiction in respect of the whole incident: i.e. there is concurrent
jurisdiction.
The PCIJ held that a ship in the high seas is assimilated to the
territory of the flag State. This State may exercise its jurisdiction
over the ship, in the same way as it exercises its jurisdiction over
its land, to the exclusion of all other States. In this case, the Court
equated the Turkish vessel to Turkish territory. In this case, the
PCIJ held that the offence produced its effects on the Turkish
vessel and consequently in a place assimilated to Turkish territory
in which the application of Turkish criminal law cannot be
challenged, even in regard to offences committed there by
foreigners. Turkey had jurisdiction over this case.
If, therefore, a guilty act committed on the high seas produces its
effects on a vessel flying another flag or in foreign territory, the
same principles must be applied as if the territories of two different
States were concerned, and the conclusion must therefore be
drawn that there is no rule of international law prohibiting the State
to which the ship on which the effects of the offence have taken
place belongs, from regarding the offence as having been
committed in its territory and prosecuting, accordingly, the
delinquent.
The Lotus Case was also significant in that the PCIJ said that a
State would have territorial jurisdiction, even if the crime was

committed outside its territory, so long as a constitutive element of

the crime was committed in that State. Today, we call this
subjective territorial jurisdiction. In order for subjective territorial
jurisdiction to be established, one must prove that the element
of the crime and the actual crime are entirely inseparable; i.e., if
the constituent element was absent the crime would not have
happened.
The offence for which Lieutenant Demons appears to have been
prosecuted was an act of negligence or imprudence having its
origin on board the Lotus, whilst its effects made themselves felt
on board the Boz-Kourt. These two elements are, legally, entirely
inseparable, so much so that their separation renders the offence
non-existent It is only natural that each should be able to
exercise jurisdiction and to do so in respect of the incident as a
whole. It is therefore a case of concurrent jurisdiction.
Customary International Law
The Lotus case gives an important dictum on creating customary
international law. France alleged that jurisdictional questions
on collision cases are rarely heard in criminal cases because States
tend to prosecute only before the flag State. France argued that
this absence of prosecutions points to a positive rule in customary
law on collisions.The Court held that this would merely show
that States had often, in practice, abstained from instituting
criminal proceedings, and not that they recognized themselves as
being obliged to do so; for only if such abstention were based on
their being conscious of having a duty to abstain would it be
possible to speak of an international custom. The alleged fact does
not allow one to infer that States have been conscious of having
such a duty; on the other hand, as will presently be seen, there are
other circumstances calculated to show that the contrary is
true. In other words, opinio juris is reflected in acts of States
(Nicaragua Case) or in omissions (Lotus case) in so far as those
acts or omissions are done following a belief that the said State is
obligated by law to act or refrain from acting in a particular way.
(For more on opinio juris click here)

Subsequent ICJ Decisions and Separate Opinions

Referred to Principles of the Lotus Case

That

1. Advisory Opinion on the Unilateral Declaration of Kosovo (2010)

In the Kosovo Advisory Opinion the Court had to decide
if the unilateral declaration of Kosovo of February 2008 was in
accordance with international law. The Court inquired and
concluded that the applicable international law did not prohibit an
unilateral declaration of independence. Based on this finding,
the Court decided that the adoption of the declaration of
independence did not violate any applicable rule of international
law.
Judge Simma disagrees, inter alia, with Courts methodology in
arriving at this conclusion. He imputes the method to the principle
established in the Lotus case: that which is not prohibited is
permitted under international law. He criticises the Lotus
dictum as an out dated, 19th century positivist approach that is
excessively differential towards State consent. He says that the
Court should have considered the possibility that international law
can be deliberately neutral or silent on the international lawfulness
of certain acts. Instead of concluding that an the absence of
prohibition ipso facto meant that a unilateral declaration of
independence is permitted under international law, the court
should have inquired whether under certain conditions
international law permits or tolerates unilateral declarations of
independence.

ASYLUM CASE (SUMMARY)

Name of the Case: Asylum Case (Columbia/Peru); Year of the
decision: 1950; and Court: ICJ.
Overview:
Columbia granted asylum to a Peruvian, accused of taking part in a
military rebellion in Peru. Was Columbia 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 Courts 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 Torres 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 (Columbia) 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 Columbia 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.

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).

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.)

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 refugeebut 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.

6. The court concluded that Columbia, 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 (Columbia) 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.

(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. Torres accusation related to a military rebellion, which
the court concluded was not a common crime and as such the
granting of asylum complied with Article 1 of the Convention.
11. Article 2 (2) of the Havana Convention states that Asylum
granted to political offenders in legations, warships, military camps
or military aircraft, shall be respected to the extent in which
allowed, as a right or through humanitarian toleration, by the
usages, the conventions or the laws of the country in which
granted and in accordance with the following provisions: First:

Asylum may not be granted except in urgent cases and for the
period of time strictly indispensable for the person who has sought
asylum to ensure in some other way his safety.
12. An essential pre-requisite for the granting of asylum is the
urgency or, in other words, the presence of an imminent or
persistence of a danger for the person of the refugee. The court
held that the facts of the case, including the 3 months that passed
between the rebellion and the time when asylum was sought, did
not establish the urgency criteria in this case (pp. 20 -23). The
court held:
In principle, it is inconceivable that the Havana Convention could
have intended the term urgent cases to include the danger of
regular prosecution to which the citizens of any country lay
themselves open by attacking the institutions of that country In
principle, asylum cannot be opposed to the operation of justice.
13. In other words, Torre was accused of a crime but he could not
be tried in a court because Colombia granted him asylum. The
court held that protection from the operation of regular legal
proceedings was not justified under diplomatic asylum.
14. The court held:
In the case of diplomatic asylum the refugee is within the territory
of the State. A decision to grant diplomatic asylum involves a
derogation from the sovereignty of that State. It withdraws the
offender from the jurisdiction of the territorial State and
constitutes an intervention in matters which are exclusively within
the competence of that State. Such a derogation from territorial
sovereignty cannot be recognised unless its legal basis is
established in each particular case.
15. As a result, exceptions to this rule are strictly regulated under
international law.
An exception to this rule (asylum should not be granted to those
facing regular prosecutions) can occur only if, in the guise of
justice, arbitrary action is substituted for the rule of law. Such

would be the case if the administration of justice were corrupted

by measures clearly prompted by political aims. Asylum protects
the political offender against any measures of a manifestly extralegal character which a Government might take or attempt to take
against its political opponents On the other hand, the safety
which arises out of asylum cannot be construed as a protection
against the regular application of the laws and against the
jurisdiction of legally constituted tribunals. Protection thus
understood would authorize the diplomatic agent to obstruct the
application of the laws of the country whereas it is his duty to
respect them Such a conception, moreover, would come into
conflict with one of the most firmly established traditions of LatinAmerica, namely, non-intervention [for example, by Colombia into
the internal affairs of another State like Peru].
16. Asylum may be granted on humanitarian grounds to protect
political prisoners against the violent and disorderly action of
irresponsible sections of the population. (for example during a
mob attack where the territorial State is unable to protect the
offender). Torre was not in such a situation at the time when he
sought refuge in the Colombian Embassy at Lima.
17. The court concluded that the grant of asylum and reasons for
its prolongation were not in conformity with Article 2(2) of the
Havana Convention (p. 25).
The grant of asylum is not an instantaneous act which terminates
with the admission, at a given moment of a refugee to an embassy
or a legation. Any grant of asylum results in, and in consequence,
logically implies, a state of protection, the asylum is granted as
long as the continued presence of the refugee in the embassy
prolongs this protection.
NB: The court also discussed the difference between extradition
and granting of asylum you can read more on this in pp. 12 13
of the judgment. The discussions on the admissibility of the
counter claim of Peru are set out in pp. 18 19.

ANGLO NORWEGIAN FISHERIES CASE

CUSTOMARY INTERNATIONAL LAW)

(SUMMARY

Case: Anglo Norwegian Fisheries Case (UK vs Norway)

ON

Year of Decision: 1951. Court: ICJ.

The Court was asked to decide, inter-alia, the validity, under

international law, of the methods used to delimit Norways
territorial sea/ fisheries zone. We would not discuss the technical
aspects of the judgment. The judgment contained declarations on
customary international law. However, the value of the
jurisprudence was diminished because these declarations lacked
in-depth discussion.

Background to the case

The United Kingdom requested the court to decide if Norway had
used a legally acceptable method in drawing the baseline from
which it measured its territorial sea. The United Kingdom argued
that customary international law did not allow the length of a
baseline drawn across abay to be longer than ten miles. Norway
argued that its delimitation method was consistent with general
principles of international law.
Formation of customary law
The court consistently referred to positive (1) state practice and (2)
lack of objections of other states on that practice as a confirmation
of an existing rule of customary international law (see p. 17 and
18). There was no mention of opinio juris in this early judgment.
In the following passage, the court considered that expressed state
dissent regarding a particular practice was detrimental to the
existence of an alleged general rule. It did not elaborate whether
these states adopted a contrary practice because it was claiming
an exception to the rule (see the Nicaragua jurisprudence) or
because it believed that the said rule did not possess the character
of customary law.

In these circumstances the Court deems it necessary to point out

that although the ten-mile rule has been adopted by certain States
both in their national law and in their treaties and conventions, and
although certain arbitral decisions have applied it as between
these States, other States have adopted a different limit.
Consequently, the ten-mile rule has not acquired the authority of a
general rule of international law.

Persistent objector rule

The court in its judgment held that even if a customary law rule
existed on the ten-mile rule,
the ten-mile rule would appear to be inapplicable as against
Norway inasmuch as she has always opposed any attempt to apply
it to the Norwegian coast.
In this case, the court appears to support the idea that an existing
customary law rule would not apply to a state if it objected to any
outside attempts to apply the rule to itself, at the initial stages and
in a consistent manner, and if other states did not object to her
resistance. In this manner, the Anglo Norwegian fisheries case
joined the asylum case (Peru vs Colombia) in articulating what we
now call the persistent objector rule.

Initial objection
In the present case, the court pointed out that the Norwegian
Minister of Foreign Affairs, in 1870, stated that, in spite of the
adoption in some treaties of the quite arbitrary distance of 10 sea
miles, this distance would not appear to me to have acquired the
force of international law. Still less would it appear to have any
foundation in reality
The court held that Language of this kind can only be construed
as the considered expression of a legal conception regarded by the

Norwegian Government as compatible with international law.The

court held that Norway had refused to accept the rule as regards to
it by 1870.

Sustained objection
The court also went on to hold that Norway followed the principles
of delimitation that it considers a part of its system in a consistent
and uninterrupted manner from 1869 until the time of the dispute.
In establishing consistent practice, the court held that too much
importance need not be attached to the few uncertainties or
contradictions, real or apparent, which the United Kingdom
Government claims to have discovered in Norwegian practice.

No objection
After the court held that the 10-mile rule did not form a part of the
general law and, in any event, could not bind Norway because of
its objections, the court inquired whether the Norwegian system of
delimitation, itself, was contrary to international law. To do so, the
court referred to state practice once more.
The general toleration of foreign States with regard to the
Norwegian practice is an unchallenged fact. For a period of more
than sixty years the United Kingdom Government itself in no way
contested it The Court notes that in respect of a situation which
could only be strengthened with the passage of time, the United
Kingdom Government refrained from formulating reservations.

However, interestingly, Norway was clear that it was not claiming

an exception to the rule (i.e. that its practice was not contrary to
international law) but rather it claimed that its practice was in
conformity with international law (see page 21).
In its (Norways) view, these rules of international law take into
account the diversity of facts and, therefore, concede that the
drawing of base-lines must be adapted to the special conditions
obtaining in different regions. In its view, the system of delimitation
applied in 1935, a system characterized by the use of straight
lines, does not therefore infringe the general law; it is an
adaptation rendered necessary by local conditions.
Conclusion
The court held that the fact that this consistent and sufficiently
long practice took place without any objection to the practice from
other states (until the time of dispute) indicated that states did not
consider the Norwegian system to be contrary to international
law.
The notoriety of the facts, the general toleration of the
international community, Great Britains position in the North Sea,
her own interest in the question, and her prolonged abstention
would in any case warrant Norways enforcement of her system
against the United Kingdom. The Court is thus led to conclude that
the method of straight lines, established in the Norwegian system,
was imposed by the peculiar geography of the Norwegian coast;
that even before the dispute arose, this method had been
consolidated by a consistent and sufficiently long practice, in the
face of which the attitude of governments bears witness to the fact
that they did not consider it to be contrary to international law.
Relationship between international and national law

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

The court alluded to the relationship between national and

international law in delimitation of maritime boundaries. In
delimitation cases, states must be allowed the latitude necessary
in order to be able to adapt its delimitation to practical needs and

local requirements The court would also consider certain

economic interests peculiar to a region, the reality and importance
of which are clearly evidenced by a long usage. However, while
the act of delimitation can be undertaken by the State, its legal
validity depends on international law.
The delimitation of sea areas has always an international aspect;
it cannot be dependent merely upon the will of the coastal State as
expressed in its municipal law. Although it is true that the act of

delimitation is necessarily a unilateral act, because only the

coastal State is competent to undertake it, the validity of the
delimitation with regard to other States depends upon international
law. (p. 20)