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Paquete Habana Case
These are two appeals from decrees of the district court of the United
States for the southern district of Florida condemning two fishing
vessels
and
their
cargoes
as
prize
of
war.
Each vessel was a fishing smack, running in and out of Havana, and
regularly engaged in fishing on the coast of Cuba. It sailed under the
Spanish flag and was owned by a Spanish subject of Cuban birth,
living in the city of Havana. It was commanded by a subject of Spain,
also residing in Havana. Her master and crew had no interest in the
vessel,
but
were
entitled
to
share
her
catch.
Her cargo consisted of fresh fish, caught by her crew from the sea,
put on board as they were caught, and kept and sold alive. Until
stopped by the blockading squadron she had no knowledge of the
existence of the war or of any blockade. She had no arms or
ammunition on board, and made on attempt to run the blockade
after she knew of its existence, nor any resistance at the time of the
capture.
The Paquete Habana (1st vessel) was a sloop and had a crew of
three Cubans, including the master, who had a fishing license from
the Spanish government, and no other commission or license. She
left Havana and was captured by the United States gunboat Castine.
The Lola (2nd vessel) was a schooner and had a crew of six Cubans,
including the master, and no commission or license. She was stopped
by the United States steamship Cincinnati, and was warned not to go
into Havana, but was told that she would be allowed to land at Bahia
Honda. She then set for Bahia Honda, but on the next morning, when
near that port, was captured by the United States steamship Dolphin.
Both the fishing vessels were brought by their captors into Key West.
A libel for the condemnation of each vessel and her cargo as prize of
war was filed. Each vessel was sold by auction (the Paquete Habana
for the sum of $490 and the Lola for the sum of $800). There was no
other evidence in the record of the value of either vessel or of her
cargo.
Issue:Whether or not the fishing smacks were subject to capture
during
the
war
with
Spain.
Held:No. By an ancient usage among civilized nations, beginning
centuries ago, and gradually ripening into a rule of international law,
coast fishing vessels, pursuing their vocation of catching and bringing
in fresh fish, have been recognized as exempt, with their cargoes and
crews, from capture as prize of war. (The case then discussed
instances throughout history where fishing vessels were captured.)
It will be convenient to refer to some leading French treatises on
international law as determined by the general consent of civilized

nations.
'Enemy ships,' say Pistoye and Duverdy, in their Treatise on Maritime
Prizes, published in 1855, 'are good prize. Not all, however; for it
results from the unanimous accord of the maritime powers that an
exception should be made in favor of coast fishermen. Such
fishermen are respected by the enemy so long as they devote
themselves exclusively to fishing.'
De Cussy, in his work on the Phases and Leading Cases of the
Maritime Law of Nations, affirms in the clearest language the
exemption from capture of fishing boats, saying, that 'in time of war
the freedom of fishing is respected by belligerents; fishing boats are
considered as neutral; in law, as in principle, they are not subject
either
to
capture
or
to
confiscation.
Ortolan, in the fourth edition of his Regles Internationales et
Diplomatie de la Mer, after stating the general rule that the vessels
and cargoes of subjects of the enemy are lawful prize, says:
'Nevertheless, custom admits an exception in favor of boats engaged
in the coast fishery; these boats, as well as their crews, are free from
capture and exempt from all hostilities. The coast-fishing industry is,
in truth, wholly pacific, and of much less importance in regard to the
national wealth that it may produce than maritime commerce or the
great fisheries. Peaceful and wholly inoffensive, those who carry it
on, may be called the harvesters of the territorial seas, since they
confine themselves to gathering in the products thereof; they are for
the most part poor families who seek in this calling hardly more than
the means of gaining their livelihood.' Again, after observing that
there are very few solemn public treaties which make mention of the
immunity of fishing boats in time of war, he says: 'From another
point of view the custom which sanctions this immunity is not so
general that it can be considered as making an absolute international
rule; but it has been so often put in practice, and, besides, it accords
so well with the rule in use in wars on land, in regard to peasants
and husbandmen, to whom coast fishermen may be likened, that it
will doubtless continue to be followed in maritime wars to come. (A
lot of opinions of other writers were also included which will not be
mentioned
in
this
digest)
This review of the precedents and authorities on the subject appears
to us abundantly to demonstrate that at the present day, by the
general consent of the civilized nations of the world, and
independently of any express treaty or other public act, it is an
established rule of international law, founded on considerations of
humanity to a poor and industrious order of men, and of the mutual
convenience of belligerent states, that coast fishing vessels, with
their implements and supplies, cargoes and crews, unarmed and
honestly pursuing their peaceful calling of catching and bringing in
fresh fish, are exempt from capture as prize of war.
The exemption, of course, does not apply to coast fishermen or their
vessels if employed for a warlike purpose, or in such a way as to give
aid or information to the enemy; nor when military or naval
operations create a necessity to which all private interests must give
way.
Nor has the exemption been extended to ships or vessels employed

on the high sea in taking whales or seals or cod or other fish which
are not brought fresh to market, but are salted or otherwise cured
and
made
a
regular
article
of
commerce.
This rule of international law is one which prize courts administering
the law of nations are bound to take judicial notice of, and to give
effect to, in the absence of any treaty or other public act of their own
government
in
relation
to
the
matter.
By the practice of all civilized nations, vessels employed only for the
purposes of discovery or science are considered as exempt from the
contingencies of war, and therefore not subject to capture. It has
been usual for the government sending out such an expedition to
give notice to other powers; but it is not essential.
To this subject in more than one aspect are singularly applicable the
words uttered by Mr. Justice Strong, speaking for this court:
'Undoubtedly no single nation can change the law of the sea. The law
is of universal obligation and no statute of one or two nations can
create obligations for the world. Like all the laws of nations, it rests
upon the common consent of civilized communities. It is of force, not
because it was prescribed by any superior power, but because it has
been generally accepted as a rule of conduct. Whatever may have
been its origin, whether in the usages of navigation, or in the
ordinances of maritime states, or in both, it has become the law of
the sea only by the concurrent sanction of those nations who may be
said to constitute the commercial world. Many of the usages which
prevail, and which have the force of law, doubtless originated in the
positive prescriptions of some single state, which were at first of
limited effect, but which, when generally accepted, became of
universal obligation.'
In the case, each vessel was of a moderate size, such as is not
unusual in coast fishing smacks, and was regularly engaged in fishing
on the coast of Cuba. The crew of each were few in number, had no
interest in the vessel, and received, in return for their toil and
enterprise, two thirds of her catch, the other third going to her owner
by way of compensation for her use. Each vessel went out from
Havana to her fishing ground, and was captured when returning
along the coast of Cuba. The cargo of each consisted of fresh fish,
caught by her crew from the sea, and kept alive on board. Although
one of the vessels extended her fishing trip, we cannot doubt that
each was engaged in the coast fishery, and not in a commercial
adventure,
within
the
rule
of
international
law.
The case was adjudged that the capture was unlawful and without
probable cause ordered that the proceeds of the sale of the vessel,
together with the proceeds of any sale of her cargo, be restored to
the claimant, with damages and costs.

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NICARAGUA v. USA

SUMMARY OF THE JUDGMENT

I. Qualits (paras. 1 to 17)

II. Background to the dispute (paras. 18-25)
III. The non-appearance of the Respondent and Article 53 of the
Statute (paras. 26-31)

The Court recalls that subsequent to the delivery of its Judgment of

26 November 1984 on the jurisdiction of the Court and the
admissibility of Nicaragua's Application, the United States decided not
to take part in the present phase of the proceedings. This however
does not prevent the Court from giving a decision in the case, but it
has to do so while respecting the requirements of Article 53 of the
Statute, which provides for the situation when one of the parties
does not appear. The Court's jurisdiction being established, it has in
accordance with Article 53 to satisfy itself that the claim of the party
appearing is well founded in fact and law. In this respect the Court
recalls certain guiding principles brought out in a number of previous
cases, one of which excludes any possibility of a judgment
automatically in favour of the party appearing. It also observes that
it is valuable for the Court to know the views of the non-appearing
party, even if those views are expressed in ways not provided for in
the Rules of Court. The principle of the equality of the parties has to
remain the basic principle, and the Court has to ensure that the party
which declines to appear should not be permitted to profit from its
absence.

IV. Justiciability of the dispute (paras. 32-35)

The Court considers it appropriate to deal with a preliminary
question. It has been suggested that the questions of the use of
force and collective self-defence raised in the case fall outside the
limits of the kind of questions the Court can deal with, in other words
that they are not justiciable. However, in the first place the Parties
have not argued that the present dispute is not a "legal dispute"
within the meaning of Article 36, paragraph 2, of the Statute, and
secondly, the Court considers that the case does not necessarily
involve it in evaluation of political or military matters, which would be
to overstep proper judicial bounds. Consequently, it is equipped to
determine these problems.

V. The significance of the multilateral treaty reservation (paras. 3656)

The United States declaration of acceptance of the compulsory
jurisdiction of the Court under Article 36, paragraph 2, of the Statute
contained a reservation excluding from operation of the declaration
"disputes arising under a multilateral treaty, unless (1) all parties to
the treaty affected by the decision are also parties to the case before
the Court, or (2) the United States of America specially agrees to
jurisdiction".

In its Judgment of 26 November 1984 the Court found, on the basis

of Article 79, paragraph 7, of the Rules of Court, that the objection to
jurisdiction based on the reservation raised "a question concerning
matters of substance relating to the merits of the case" and that the
objection did "not possess, in the circumstances of the case, an
exclusively preliminary character". Since it contained both
preliminary aspects and other aspects relating to the merits, it had to
be dealt with at the stage of the merits.

sufficient to examine the position under the United Nations Charter

and the Charter of the Organization of American States.

The Court examines the impact of the multilateral treaty reservation

on Nicaragua's claim that the United States has used force in breach
of the two Charters. The Court examines in particular the case of El
Salvador, for whose benefit primarily the United States claims to be
exercising the right of collective self-defence which it regards as a
justification of its own conduct towards Nicaragua, that right being
endorsed by the United Nations Charter (Art. 51) and the OAS
Charter (Art. 21). The dispute is to this extent a dispute "arising
under" multilateral treaties to which the United States, Nicaragua and
El Salvador are Parties. It appears clear to the Court that El Salvador
would be "affected" by the Court's decision on the lawfulness of
resort by the United States to collective self-defence.
As to Nicaragua's claim that the United States has intervened in its
affairs contrary to the OAS Charter (Art. 18) the Court observes that
it is impossible to say that a ruling on the alleged breach of the
Charter by the United States would not "affect" El Salvador.

Having thus found that El Salvador would be "affected" by the

decision that the Court would have to take on the claims of Nicaragua
based on violation of the two Charters by the United States, the
Court concludes that the jurisdiction conferred on it by the United
States declaration does not permit it to entertain these claims. It
makes it clear that the effect of the reservation is confined to barring
the applicability of these two multilateral treaties as multilateral
treaty law, and has no further impact on the sources of international
law which Article 38 of the Statute requires the Court to apply,
including customary international law.

VI. Establishment of the facts: evidence and methods employed by

the Court (paras. 57-74)

In order to establish whether its jurisdiction were limited by the

effect of the reservation in question, the Court has to ascertain
whether any third States, parties to the four multilateral treaties
invoked by Nicaragua, and not parties to the proceedings, would be
"affected" by the Judgment. Of these treaties, the Court considers it

The Court has had to determine the facts relevant to the dispute. The
difficulty of its task derived from the marked disagreement between
the Parties, the non-appearance of the Respondent, the secrecy
surrounding certain conduct, and the fact that the conflict is
continuing. On this last point, the Court takes the view, in

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accordance with the general principles as to the judicial process, that

the facts to be taken into account should be those occurring up to
the close of the oral proceedings on the merits of the case (end of
September 1985).

With regard to the production of evidence, the Court indicates how

the requirements of its Statute - in particular Article 53 - and the
Rules of Court have to be met in the case, on the basis that the
Court has freedom in estimating the value of the various elements of
evidence. It has not seen fit to order an enquiry under Article 50 of
the Statute. With regard to certain documentary material (press
articles and various books), the Court has treated these with caution.
It regards than not as evidence capable of proving facts, but as
material which can nevertheless contribute to corroborating the
existence of a fact and be taken into account to show whether certain
facts are matters of public knowledge. With regard tostatements by
representatives of States, sometimes at the highest level, the Court
takes the view that such statements are of particular probative value
when they acknowledge facts or conduct unfavourable to the State
represented by the person who made them. With regard to
the evidence of witnesses presented by Nicaragua - five witnesses
gave oral evidence and another a written affidavit-one consequence
of the absence of the Respondent was that the evidence of the
witnesses was not tested by cross-examination. The Court has not
treated as evidence any part of the testimony which was a mere
expression of opinion as to the probability or otherwise of the
existence of a fact not directly known to the witness. With regard in
particular to affidavits and sworn statements made by members of a
Government, the Court considers that it can certainly retain such
parts of this evidence as may be regarded as contrary to the
interests or contentions of the State to which the witness has
allegiance; for the rest such evidence has to be treated with great
reserve.

The Court is also aware of a publication of the United States State

Department entitled "Revolution Beyond Our Borders, Sandinista
Intervention in Central America" which was not submitted to the
Court in any form or manner contemplated by the Statute and Rules
of Court. The Court considers that, in view of the special
circumstances of this case, it may, within limits, make use of
information in that publication.

VII. The facts imputable to the United States (paras. 75 to 125)

1. The Court examines the allegations of Nicaragua that the mining

of Nicaraguan ports or waters was carried out by United States
military personnel or persons of the nationality of Latin American
countries in the pay of the United States. After examining the facts,
the Court finds it established that, on a date in late 1983 or early
1984, the President of the United States authorized a United States
Government agency to lay mines in Nicaraguan ports, that in early
1984 mines were laid in or close to the ports of El Bluff, Corinto and
Puerto Sandino, either in Nicaraguan internal waters or in its
territorial sea or both, by persons in the pay and acting on the
instructions of that agency, under the supervision and with the
logistic support of United States agents; that neither before the
laying of the mines, nor subsequently, did the United States
Government issue any public and official warning to international
shipping of the existence and location of the mines; and that
personal and material injury was caused by the explosion of the
mines, which also created risks causing a rise in marine insurance
rates.

2. Nicaragua attributes to the direct action of United States

personnel, or persons in its pay, operations against oil installations, a
naval base, etc.,listed in paragraph 81 of the Judgment. The Court
finds all these incidents, except three, to be established. Although it
is not proved that any United States military personnel took a direct
part in the operations, United States agents participated in the
planning, direction and support. The imputability to the United States
of these attacks appears therefore to the Court to be established.
3. Nicaragua complains of infringement of its air space by United
States military aircraft. After indicating the evidence available, the
Court finds that the only violations of Nicaraguan air space imputable
to the United States on the basis of the evidence are high altitude
reconnaissance flights and low altitude flights on 7 to 11 November
1984 causing "sonic booms".

With regard to joint military manoeuvres with Honduras carried out

by the United States on Honduran territory near the
Honduras/Nicaragua frontier, the Court considers that they may be
treated as public knowledge and thus sufficiently established.

4. The Court then examines the genesis, development and activities

of the contra force, and the role of the United States in relation to it.
According to Nicaragua, the United States "conceived, created and
organized a mercenary army, the contra force". On the basis of the
available information, the Court is not able to satisfy itself that the
Respondent State "created" the contra force in Nicaragua, but holds
it established that it largely financed, trained, equipped, armed and
organized the FDN, one element of the force.

It is claimed by Nicaragua that the United States Government

devised the strategy and directed the tactics of the contra force, and
provided direct combat support for its military operations. In the light
of the evidence and material available to it, the Court is not satisfied
that all the operations launched by the contra force, at every stage of
the conflict, reflected strategy and tactics solely devised by the
United States. It therefore cannot uphold the contention of Nicaragua
on this point. The Court however finds it clear that a number of
operations were decided and planned, if not actually by the 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. It is also established in the Court's view that
the support of the United States for the activities of the contras took
various forms over the years, such as logistic support the supply of
information on the location and movements of the Sandinista troops,
the use of sophisticated methods of communication, etc. The
evidence does not however warrant a finding that the United States
gave direct combat support, if that is taken to mean direct
intervention by United States combat forces.

The Court has to determine whether the relationship of

the contras to the United States Government was such that it would
be right to equate thecontras, for legal purposes, with an organ of
the United States Government, or as acting on behalf of that
Government. The Court considers that the evidence available to it is
insufficient to demonstrate the total dependence of the contras on
United States aid. A partial dependency, the exact extent of which
the Court cannot establish, may be inferred from the fact that the
leaders were selected by the United States, and from other factors
such as the organisation, training and equipping of the force,
planning of operations, the choosing of targets and the operational
support provided. There is no clear evidence that the United States
actually exercised such a degree of control as to justify treating
the contras as acting on its behalf.

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5. Having reached the above conclusion, the Court takes the view
that the contras remain responsible for their acts, in particular the
alleged violations by them of humanitarian law. For the United States
to be legally responsible, it would have to be proved that that State
had effective control of the operations in the course of which the
alleged violations were committed.

6. Nicaragua has complained of certain measures of an economic

nature taken against it by the Government of the United States,
which it regards as an indirect form of intervention in its internal
affairs. Economic aid was suspended in January 1981, and
terminated in April 1981; the United States acted to oppose or block
loans to Nicaragua by international financial bodies; the sugar import
quota from Nicaragua was reduced by 90 percent in September
1983; and a total trade embargo on Nicaragua was declared by an
executive order of the President of the United States on 1 May 1985.
VIII. The conduct of Nicaragua (paras. 126-171)

The Court has to ascertain, so far as possible, whether the activities

of the United States complained of, claimed to have been the
exercise of collective self-defence, may be justified by certain facts
attributable to Nicaragua.
1. The United States has contended that Nicaragua was actively
supporting armed groups operating in certain of the neighbouring
countries,particularly in El Salvador, and specifically in the form of
the supply of arms, an accusation which Nicaragua has repudiated.
The Court first examines the activity of Nicaragua with regard to El
Salvador.

Having examined various evidence, and taking account of a number

of concordant indications, many of which were provided by Nicaragua
itself, from which the Court can reasonably infer the provision of a
certain amount of aid from Nicaraguan territory, the Court concludes
that support for the armed opposition in El Salvador from Nicaraguan
territory was a fact up to the early months of 1981. Subsequently,
evidence of military aid from or through Nicaragua remains very

weak, despite the deployment by the United States in the region of

extensive technical monitoring resources. The Court cannot however
conclude that no transport of or traffic in arms existed. It merely
takes note that the allegations of arms traffic are not solidly
established, and has not been able to satisfy itself that any
continuing flow on a significant scale took place after the early
months of 1981.

Even supposing it were established that military aid was reaching the
armed opposition in El Salvador from the territory of Nicaragua, it
skill remains to be proved that such aid is imputable to the
authorities of Nicaragua, which has not sought to conceal the
possibility of weapons crossing its territory, but denies that this is the
result of any deliberate official policy on its part. Having regard to the
circumstances characterizing this part of Central America, the Court
considers that it is scarcely possible for Nicaragua's responsibility for
arms traffic on its territory to be automatically assumed. The Court
considers it more consistent with the probabilities to recognize that
an activity of that nature, if on a limited scale, may very well be
pursued unknown to the territorial government. In any event the
evidence is insufficient to satisfy the Court that the Government of
Nicaragua was responsible for any flow of arms at either period.

2. The United States has also accused Nicaragua of being responsible

for cross-border military attacks on Honduras and Costa Rica. While
not as fully informed on the question as it would wish to be, the
Court considers as established the fact that certain trans-border
military incursions are imputable to the Government of Nicaragua.
3. The Judgment recalls certain events which occurred at the time of
the fall of President Somoza, since reliance has been placed on them
by the United States to contend that the present Government of
Nicaragua is in violation of certain alleged assurances given by its
immediate predecessor. The Judgment refers in particular to the
"Plan to secure peace" sent on 12 July 1979 by the "Junta of the
Government of National Reconstruction" of Nicaragua to the
Secretary-General of the OAS, mentioning, inter alia, its "firm
intention to establish full observance of human rights in our country"
and "to call the first free elections our country has known in this
century". The United States considers that it has a special
responsibility regarding the implementation of these commitments.
IX. The applicable law: customary international law (paras. 172-182)

The Court has reached the conclusion (section V, in fine) that it has
to apply the multilateral treaty reservation in the United States
declaration, the consequential exclusion of multilateral treaties being
without prejudice either to other treaties or other sources of law
enumerated in Article 38 of the Statute. In order to determine the
law actually to be applied to the dispute, it has to ascertain the
consequences of the exclusion of the applicability of the multilateral
treaties for the definition of the content of the customary
international law which remains applicable.

The Court, which has already commented briefly on this subject in

the jurisdiction phase (I.C.J. Reports 1984, pp. 424 and 425, para.
73), develops its initial remarks. It does not consider that it can be
claimed, as the United States does, that all the customary rules
which may be invoked have a content exactly identical to that of the
rules contained in the treaties which cannot be applied by virtue of
the United States reservation. Even if a treaty norm and a customary
norm relevant to the present dispute were to have exactly the same
content, this would not be a reason for the Court to take the view
that the operation of the treaty process must necessarily deprive the
customary norm of its separate applicability. Consequently, the Court
is in no way bound to uphold customary rules only in so far as they
differ from the treaty rules which it is prevented by the United States
reservation from applying.

In response to an argument of the United States, the Court considers

that the divergence between the content of the customary norms and
that of the treaty law norms is not such that a judgment confined to
the field of customary international law would not be susceptible of
compliance or execution by the parties.

X. The content of the applicable law (paras. 183 to 225)

1. Introduction: general observations (paras. 183-186)

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The Court has next to consider what are the rules of customary law
applicable to the present dispute. For this purpose it has to consider
whether a customary rule exists in the opinio juris of States,and
satisfy itself that it is confirmed by practice.

2. The prohibition of the use of force, and the right of selfdefence (paras. 187 to 201)
The Court finds that both Parties take the view that the principles as
to the use of force incorporated in the United Nations Charter
correspond, in essentials, to those found in customary international
law. They therefore accept a treaty-law obligation to refrain in their
international relations from the threat or use of force against the
territorial integrity or political independence of any State, or in any
other manner inconsistent with the purposes of the United Nations
(Art. 2, para. 4, of the Charter). The Court has however to be
satisfied that there exists in customary law an opinio juris as to the
binding character of such abstention. It considers that this opinio
juris may be deduced from, inter alia, the attitude of the Parties and
of States towards certain General Assembly resolutions, and
particularly resolution 2625 (XXV) entitled "Declaration on Principles
of International Law concerning Friendly Relations and Co-operation
among States in Accordance with the Charter of the United Nations".
Consent to such resolutions is one of the forms of expression of
an opinio juris with regard to the principle of non-use of force,
regarded as a principle of customary international law, independently
of the provisions, especially those of an institutional kind, to which it
is subject on the treaty-law plane of the Charter.

The general rule prohibiting force established in customary law allows

for certain exceptions. The exception of the right of individual or
collective self-defence is also, in the view of States, established in
customary law, as is apparent for example from the terms of Article
51 of the United Nations Charter, which refers to an "inherent right",
and from the declaration in resolution 2625 (XXV). The Parties, who
consider the existence of this right to be established as a matter of
customary international law, agree in holding that whether the
response to an attack is lawful depends on the observance of the
criteria of the necessity and the proportionality of the measures
taken in self-defence.

Whether self-defence be individual or collective, it can only be

exercised in response to an "armed attack". In the view of the Court,
this is to be understood as meaning not merely action by regular
armed forces across an international border, but also the sending by
a State of armed bands on to the territory of another State, if such
an operation, because of its scale and effects, would have been
classified as an armed attack had it been carried out by regular
armed forces. The Court quotes the definition of aggression annexed
to General Assembly resolution 3314 (XXIX) as expressing customary
law in this respect.

The Court does not believe that the concept of "armed attack"
includes assistance to rebels in the form of the provision of weapons
or logistical or other support. Furthermore, the Court finds that in
customary international law, whether of a general kind or that
particular to the inter-American legal system, there is no rule
permitting the exercise of collective self-defence in the absence of a
request by the State which is a victim of the alleged attack, this
being additional to the requirement that the State in question should
have declared itself to have been attacked.

3. The principle of non-intervention (paras. 202 to 209)

The principle of non-intervention involves the right of every
sovereign State to conduct its affairs without outside interference.
Expressions of anopinio juris of States regarding the existence of this
principle are numerous. The Court notes that this principle, stated in
its own jurisprudence, has been reflected in numerous declarations
and resolutions adopted by international organizations and
conferences in which the United States and Nicaragua have
participated. The text thereof testifies to the acceptance by the
United States and Nicaragua of a customary principle which has
universal application. As to the content of the principle in customary
law, the Court defines the constitutive elements which appear
relevant in this case: a prohibited intervention must be one bearing
on matters in which each State is permitted, by the principle of State
sovereignty, to decide freely (for example the choice of a political,
economic, social and cultural system, and formulation of foreign
policy). Intervention is wrongful when it uses, in regard to such
choices, methods of coercion, particularly force, either in the direct
form of military action or in the indirect form of support for
subversive activities in another State.

With regard to the practice of States, the Court notes that there have
been in recent years a number of instances of foreign intervention in
one State for the benefit of forces opposed to the government of that
State. It concludes that the practice of States does not justify the
view that any general right of intervention in support of an opposition
within another State exists in contemporary international law; and
this is in fact not asserted either by the United States or by
Nicaragua.

4. Collective counter-measures in response

amounting to armed attack (paras. 210 and 211)

to

conduct

not

The Court then considers the question whether, if one State acts
towards another in breach of the principle of non-intervention, a third
State may lawfully take action by way of counter-measures which
would amount to an intervention in the first State's internal affairs.
This would be analogous to the right of self-defence in the case of
armed attack, but the act giving rise to the reaction would be less
grave, not amounting to armed attack. In the view of the Court,
under international law in force today, States do not have a right of
"collective" armed response to acts which do not constitute an
"armed attack".

5. State sovereignty (paras. 212 to 214)

Turning to the principle of respect for State sovereignty, the Court
recalls that the concept of sovereignty, both in treaty-law and in
customary international law, extends to the internal waters and
territorial sea of every State and to the airspace above its territory. It
notes that the laying of mines necessarily affects the sovereignty of
the coastal State, and that if the right of access to ports is hindered
by the laying of mines by another State, what is infringed is the
freedom of communications and of maritime commerce.

6. Humanitarian law (paras. 215 to 220)

The Court observes that the laying of mines in the waters of another
State without any warning or notification is not only an unlawful act

6
PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii

but also a breach of the principles of humanitarian law underlying the

Hague Convention No. VIII of 1907. This consideration leads the
Court on to examination of the international humanitarian law
applicable to the dispute. Nicaragua has not expressly invoked the
provisions of international humanitarian law as such, but has
complained of acts committed on its territory which would appear to
be breaches thereof. In its submissions it has accused the United
States of having killed, wounded and kidnapped citizens of
Nicaragua. Since the evidence available is insufficient for the purpose
of attributing to the United States the acts committed by
the contras, the Court rejects this submission.

Having set out the facts of the case and the rules of international law
which appear to be in issue as a result of those facts, the Court has
now to appraise the facts in relation to the legal rules applicable, and
determine whether there are present any circumstances excluding
the unlawfulness of particular acts.

The question however remains of the law applicable to the acts of the
United States in relation to the activities of the contrast Although
Nicaragua has refrained from referring to the four Geneva
Conventions of 12 August 1949, to which Nicaragua and the United
States are parties, the Court considers that the rules stated in Article
3, which is common to the four Conventions, applying to armed
conflicts of a non-international character, should be applied. The
United States is under an obligation to "respect" the Conventions and
even to "ensure respect" for them, and thus not to encourage
persons or groups engaged in the conflict in Nicaragua to act in
violation of the provisions of Article 3. This obligation derives from
the general principles of humanitarian law to which the Conventions
merely give specific expression.

Appraising the facts first in the light of the principle of the non-use of
force, the Court considers that the laying of mines in early 1984 and
certain attacks on Nicaraguan ports, oil installations and naval bases,
imputable to the United States constitute infringements of this
principle, unless justified by circumstances which exclude their
unlawfulness. It also considers that the United States has committed
a prima facie violation of the principle by arming and training
the contras, unless this can be justified as an exercise of the right of
self-defence.

1. The prohibition of the use of force and the right of selfdefence (paras. 227 to 238)

On the other hand, it does not consider that military manoeuvres

held by the United States near the Nicaraguan borders, or the supply
of funds to the contras, amounts to a use of force.

neither these incursions nor the alleged supply of arms may be relied
on as justifying the exercise of the right of collective self-defence.
Secondly, in order to determine whether the United States was
justified in exercising self-defence, the Court has to ascertain
whether the circumstances required for the exercise of this right of
collective self-defence were present, and therefore considers whether
the States in question believed that they were the victims of an
armed attack by Nicaragua, and requested the assistance of the
United States in the exercise of collective self-defence. The Court has
seen no evidence that the conduct of those States was consistent
with such a situation.

Finally, appraising the United States activity in relation to the criteria

of necessity and proportionality, the Court cannot find that the
activities in question were undertaken in the light of necessity, and
finds that some of them cannot be regarded as satisfying the
criterion of proportionality.

Since the plea of collective self-defence advanced by the United

States cannot be upheld, it follows that the United States has
violated the principle prohibiting recourse to the threat or use of
force by the acts referred to in the first paragraph of this section.

7. The 1956 treaty (paras. 221 to 225)

2. The principle of non-intervention (paras. 239 to 245)
In its Judgment of 26 November 1984, the Court concluded that it
had jurisdiction to entertain claims concerning the existence of a
dispute between the United States and Nicaragua as to the
interpretation or application of a number of articles of the treaty of
Friendship, Commerce and Navigation signed at Managua on 21
January 1956. It has to determine the meaning of the various
relevant provisions, and in particular of Article XXI, paragraphs
I (c) and I (d), by which the parties reserved the power to derogate
from the other provisions.

XI. Application of the law to the facts (paras. 226 to 282)

The Court has to consider whether the acts which it regards as

breaches of the principle may be justified by the exercise of the right
of collective self-defence, and has therefore to establish whether the
circumstances required are present. For this, it would first have to
find that Nicaragua engaged in an armed attack against El Salvador,
Honduras or Costa Rica, since only such an attack could justify
reliance on the right of self-defence. As regards El Salvador, the
Court considers that in customary international law the provision of
arms to the opposition in another State does not constitute an armed
attack on that State. As regards Honduras and Costa Rica, the Court
states that, in the absence of sufficient information as to the
transborder incursions into the territory of those two States from
Nicaragua, it is difficult to decide whether they amount, singly or
collectively, to an armed attack by Nicaragua. The Court finds that

The Court finds it clearly established that the United States intended,
by its support of the contras, to coerce Nicaragua in respect of
matters in which each State is permitted to decide freely, and that
the intention of the contras themselves was to overthrow the present
Government of Nicaragua. It considers that 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 its government, that
amounts to an intervention in its internal affairs, whatever the
political objective of the State giving support. It therefore finds that
the support given by the United States to the military and
paramilitary activities of the contras in Nicaragua, by financial
support, training, supply of weapons, intelligence and logistic
support, constitutes a clear breach of the principle of nonintervention. Humanitarian aid on the other hand cannot be regarded

7
PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii

as unlawful intervention. With effect from 1 October 1984, the United

States Congress has restricted the use of funds to "humanitarian
assistance" to the contrast The Court recalls that if the provision of
"humanitarian assistance" is to escape condemnation as an
intervention in the internal affairs of another State, it must be limited
to the purposes hallowed in the practice of the Red Cross, and above
all be given without discrimination.

constitutes an infringement, to Nicaragua's detriment, of the freedom

of communications and of maritime commerce.

5. Humanitarian law (paras. 254 to 256)

The Court has found the United States responsible for the failure to
give notice of the mining of Nicaraguan ports.

With regard to the form of indirect intervention which Nicaragua sees

in the taking of certain action of an economic nature against it by the
United States, the Court is unable to regard such action in the
present case as a breach of the customary law principle of nonintervention.

3. Collective counter-measures in response

amounting to armed attack (paras. 246 to 249)

to

conduct

not

Having found that intervention in the internal affairs of another State

does not produce an entitlement to take collective counter-measures
involving the use of force, the Court finds that the acts of which
Nicaragua is accused, even assuming them to have been established
and imputable to that State, 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. State sovereignty (paras. 250 to 253)

The Court finds that the assistance to the contras, the direct attacks
on Nicaraguan ports, oil installations, etc., the mining operations in
Nicaraguan ports, and the acts of intervention involving the use of
force referred to in the Judgment, which are already a breach of the
principle of non-use of force, are also an infringement of the principle
of respect for territorial sovereignty. This principle is also directly
infringed by the unauthorized overflight of Nicaraguan territory.
These acts cannot be justified by the activities in El Salvador
attributed to Nicaragua; assuming that such activities did in fact
occur, they do not bring into effect any right belonging to the United
States. The Court also concludes that, in the context of the present
proceedings, the laying of mines in or near Nicaraguan ports

It has also found that, under general principles of humanitarian law,

the United States was bound to refrain from encouragement of
persons or groups engaged in the conflict in Nicaragua to commit
violations of common Article 3 of the four Geneva Conventions of 12
August 1949. The manual on "Psychological Operations in Guerrilla
Warfare", for the publication and dissemination of which the United
States is responsible, advises certain acts which cannot but be
regarded as contrary to that article.
6. Other grounds mentioned in justification of the acts of the United
States (paras. 257 to 269)

The United States has linked its support to the contras with alleged
breaches by the Government of Nicaragua of certain solemn
commitments to the Nicaraguan people, the United States and the
OAS. The Court considers whether there is anything in the conduct of
Nicaragua which might legally warrant counter-measures by the
United States in response to the alleged violations. With reference to
the "Plan to secure peace" put forward by the Junta of the
Government of National Reconstruction (12 July 1979), the Court is
unable to find anything in the documents and communications
transmitting the plan from which it can be inferred that any legal
undertaking was intended to exist. The Court cannot contemplate the
creation of a new rule opening up a right of intervention by one State
against another on the ground that the latter has opted for some
particular ideology or political system. Furthermore the Respondent
has not advanced a legal argument based on an alleged new principle
of "ideological intervention".

With regard more specifically to alleged violations of human rights

relied on by the United States, the Court considers that the use of
force by the United States could not be the appropriate method to
monitor or ensure respect for such rights, normally provided for in
the applicable conventions. With regard to the alleged militarization
of Nicaragua, also referred to by the United States to justify its
activities, the Court observes that in international law there are no
rules, other than such rules as may be accepted by the State
concerned, by treaty or otherwise, whereby the level of armaments
of a sovereign State can be limited, and this principle is valid for all
States without exception.

7. The 1956 Treaty (paras. 270 to 282)

The Court turns to the claims of Nicaragua based on the Treaty of
Friendship, Commerce and Navigation of 1956, and the claim that
the United States has deprived the Treaty of its object and purpose
and emptied it of real content. The Court cannot however entertain
these claims unless the conduct complained of is not "measures . . .
necessary to protect the essential security interests" of the United
States, since Article XXI of the Treaty provides that the Treaty shall
not preclude the application of such measures. With regard to the
question what activities of the United States might have been such
as to deprive the Treaty of its object and purpose, the Court makes a
distinction. It is unable to regard all the acts complained of in that
light, but considers that there are certain activities which undermine
the whole spirit of the agreement. These are the mining of
Nicaraguan ports, the direct attacks on ports, oil installations, etc.,
and the general trade embargo.

The Court also upholds the contention that the mining of the ports is
in manifest contradiction with the freedom of navigation and
commerce guaranteed by Article XIX of the Treaty. It also concludes
that the trade embargo proclaimed on 1 May 1985 is contrary to that
article.

The Court therefore finds that the United States is prima facie in
breach of an obligation not to deprive the 1956 Treaty of its object
and purpose(pacta sunt servanda), and has committed acts in
contradiction with the terms of the Treaty. The Court has however to
consider whether the exception in Article XXI concerning

8
PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii

"measures . . . necessary to protect the essential security interests"

of a Party may be invoked to justify the acts complained of. After
examining the available material, particularly the Executive Order of
President Reagan of 1 May 1985, the Court finds that the mining of
Nicaraguan ports, and the direct attacks on ports and oil
installations, and the general trade embargo of 1 May 1985, cannot
be justified as necessary to protect the essential security interests of
the United States.

XII. The claim for reparation (paras. 283 to 285)

The Court is requested to adjudge and declare that compensation is
due to Nicaragua, the quantum thereof to be fixed subsequently, and
to award to Nicaragua the sum of 370.2 million US dollars as an
interim award. After satisfying itself that it has jurisdiction to order
reparation, the Court considers appropriate the request of Nicaragua
for the nature and amount of the reparation to be determined in a
subsequent phase of the proceedings. It also considers that there is
no provision in the Statute of the Court either specifically
empowering it or debarring it from making an interim award of the
kind requested. In a cases in which one Party is not appearing, the
Court should refrain from any unnecessary act which might prove an
obstacle to a negotiated settlement. The Court therefore does not
consider that it can accede at this stage to this request by Nicaragua.
XIII. The provisional measures (paras. 286 to 289)

After recalling certain passages in its Order of 10 May 1984, the

Court concludes that it is incumbent on each Party not to direct its
conduct solely by reference to what it believes to be its rights.
Particularly is this so in a situation of armed conflict where no
reparation can efface the results of conduct which the Court may rule
to have been contrary to international law
XIV. Peaceful settlement of disputes; the Contadora process (paras.
290 to 291)

In the present case the Court has already taken note of the
Contadora process, and of the fact that it had been endorsed by the
United Nations Security Council and General Assembly, as well as by

Nicaragua and the United States. It recalls to both Parties to the

present case the need to co-operate with the Contadora efforts in
seeking a definitive and lasting peace in Central America, in
accordance with the principle of customary international law that
prescribes the peaceful settlement of international disputes, also
endorsed by Article 33 of the United Nations Charter.

9
PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii

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 of continental 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 agreed to do.
The proceedings, relating to the delimitation as between the Parties
of the areas of the North Sea continental shelf appertaining to each
of them, were instituted on 20 February 1967 by the communication
to the Registry of the Court of two Special Agreements, between
Denmark and the Federal Republic and the Federal Republic and the
Netherlands respectively. By an Order of 26 April 1968, the Court
joined the proceedings in the two cases.
NORTH SEA CONTINENTAL SHELF CASES
The Court delivered judgment, by 11 votes to 6, in the North Sea
Continental Shelf cases.
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

The Court decided the two cases in a single Judgment, which it

adopted by eleven votes to six. Amongst the Members of the Court
concurring in the Judgment, Judge Sir Muhammad Zafrulla Khan
appended a declaration; and President Bustamante y Rivero and
Judges Jessup, Padilla Nervo and Ammoun appended separate
opinions. In the case of the non-concurring Judges, a declaration of
his dissent was appended by Judge Bengzon; and Vice-President
Koretsky, together with Judges Tanaka, Morelli and Lachs, and
Judge ad hoc Sorensen, appended dissenting opinions.
In its Judgment, the Court examined in the context of the
delimitations concerned the problems relating to the legal rgime of
the continental shelf raised by the contentions of the Parties.

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PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii

The Facts and the Contentions of the Parties (paras. 1-17 of the
Judgment)
The two Special Agreements had asked the Court to declare the
principles and rules of international law applicable to the delimitation
as between the Parties of the areas of the North Sea continental shelf
appertaining to each of them beyond the partial boundaries in the
immediate vicinity of the coast already determined between the
Federal Republic and the Netherlands by an agreement of 1
December 1964 and between the Federal Republic and Denmark by
an agreement of 9 June 1965.The Court was not asked actually to
delimit the further boundaries involved, the Parties undertaking in
their respective Special Agreements to effect such delimitation by
agreement in pursuance of the Court's decision.
The waters of the North Sea were shallow, the whole seabed, except
for the Norwegian Trough, consisting of continental shelf at a depth
of less than 200 metres. Most of it had already been delimited
between the coastal States concerned. The Federal Republic and
Denmark and the Netherlands, respectively, had, however, been
unable to agree on the prolongation of the partial boundaries
referred to above, mainly because Denmark and the Netherlands had
wished this prolongation to be effected on the basis of the
equidistance principle, whereas the Federal Republic had considered
that it would unduly curtail what the Federal Republic believed should
be its proper share of continental shelf area, on the basis of
proportionality to the length of its North Sea coastline. Neither of the
boundaries in question would by itself produce this effect, but only
both of them together - an element regarded by Denmark and the
Netherlands as irrelevant to what they viewed as being two separate
delimitations, to be carried out without reference to the other.
A boundary based on the equidistance principle, i.e., an "equidistance
line", left to each of the Parties concerned all those portions of the
continental shelf that were nearer to a point on its own coast than
they were to any point on the coast of the other Party. In the case of
a concave or recessing coast such as that of the Federal Republic on
the North Sea, the effect of the equidistance method was to pull the
line of the boundary inwards, in the direction of the concavity.
Consequently, where two equidistance lines were drawn, they would,
if the curvature were pronounced, inevitably meet at a relatively
short distance from the coast, thus "cutting off" the coastal State
from the area of the continental shelf outside. In contrast, the effect
of convex or outwardly curving coasts, such as were, to a moderate
extent, those of Denmark and the Netherlands, was to cause the
equidistance lines to leave the coasts on divergent courses, thus
having a widening tendency on the area of continental shelf off that
coast.

It had been contended on behalf of Denmark and the Netherlands

that the whole matter was governed by a mandatory rule of law
which, reflecting the language of Article 6 of the Geneva Convention
on the Continental Shelf of 29 April 1958, was designated by them as
the "equidistance-special circumstances" rule. That rule was to the
effect that in the absence of agreement by the parties to employ
another method, all continental shelf boundaries had to be drawn by
means of an equidistance line unless "special circumstances" were
recognized to exist. According to Denmark and the Netherlands, the
configuration of the German North Sea coast did not of itself
constitute, for either of the two boundary lines concerned, a special
circumstance.
The Federal Republic, for its part, had contended that the correct
rule, at any rate in such circumstances as those of the North Sea,
was one according to which each of the States concerned should
have a "just and equitable share" of the available continental shelf, in
proportion to the length of its sea-frontage. It had also contended
that in a sea shaped as is the North Sea, each of the States
concerned was entitled to a continental shelf area extending up to
the central point of that sea, or at least extending to its median line.
Alternatively, the Federal Republic had claimed that if the
equidistance method were held to bc applicable, the configuration of
the German North Sea coast constituted a special circumstance such
as to justify a departure from that method of delimitation in this
particular case.

Non-Applicability of Article 6 of the 1958

Convention (paras. 21-36 of the Judgment)

Continental

Shelf

The Court then turned to the question whether in delimiting those

areas the Federal Republic was under a legal obligation to accept the
application of the equidistance principle. While it was probably true
that no other method of delimitation had the same combination of
practical convenience and certainty of application, those factors did
not suffice of themselves to convert what was a method into a rule of
law. Such a method would have to draw its legal force from other
factors than the existence of those advantages.
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 subsequently 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 signatories of the Convention, had never ratified it, and
was consequently not a party. It was admitted on behalf of Denmark
and the Netherlands that in the circumstances the Convention could
not, as such, be binding on the Federal Republic. But it was
contended that the rgime of Article 6 of the Convention had
become binding on the Federal Republic, because, by conduct, by
public statements and proclamations, and in other ways, the Republic
had assumed the obligations of the Convention.

The Apportionment Theory Rejected (paras. 18-20 of the Judgment)

The Court felt unable to accept, in the particular form it had taken,
the first contention put forward on behalf of the Federal Republic. Its
task was to delimit, not to apportion the areas concerned. The
process of delimitation involved establishing the boundaries of an
area already, in principle, appertaining to the coastal State and not
the determination de novo of such an area. 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 considered as a
whole (which underlay the doctrine of the just and equitable share)
was inconsistent with the basic concept of continental shelf
entitlement.

It was clear that only a very definite, very consistent course of

conduct on the part of a State in the situation of the Federal Republic
could justify upholding those contentions. When a number of States
drew up a convention specifically providing for a particular method by
which the intention to become bound by the rgime of the
convention was to be manifested, it was not lightly to be presumed
that a State which had not carried out those formalities had
nevertheless somehow become bound in another way. Furthermore,
had the Federal Republic ratified the Geneva Convention, it could
have entered a reservation to Article 6, by reason of the faculty to do
so conferred by Article 12 of the Convention.
Only the existence of a situation of estoppel could lend substance to
the contention of Denmark and the Netherlands - i.e., if the Federal
Republic were now precluded from denying the applicability of the
conventional rgime, by reason of past conduct, declarations, etc.,
which not only clearly and consistently evinced acceptance of that
rgime, 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

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PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii

of the Geneva Convention was not, as such, applicable to the

delimitations involved in the present proceedings.

of equidistance was not an inescapable a priori accompaniment of

basic continental shelf doctrine.

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 the1958 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". These two
concepts, of delimitation by mutual agreement and delimitation in
accordance with equitable principles, had underlain all the
subsequent history of the subject. It had been largely on the
recommendation of a committee of experts that the principle of
equidistance for the delimitation of continental shelf boundaries had
been accepted by the United Nations International Law Commission
in the text it had laid before the Geneva Conference of 1958 on the
Law of the Sea which had adopted the Continental Shelf Convention.
It could legitimately be assumed that the experts had been actuated
by considerations not of legal theory but of practical convenience and
cartography. Moreover, the article adopted by the Commission had
given priority to delimitation by agreement and had contained an
exception in favour of "special circumstances".

It had been maintained by Denmark and the Netherlands that the

Federal Republic was in any event, and quite apart from the Geneva
Convention, bound to accept delimitation on an equidistance basis,
since the use of that method was a rule of general or customary
international law, automatically binding on the Federal Republic.
One argument advanced by them in support of this contention, which
might be termed the a priori argument, started from the position that
the rights of the coastal State to its continental shelf areas were
based on its sovereignty over the land domain, of which the shelf
area was the natural prolongation under the sea. From this notion of
appurtenance was derived the view, which the Court accepted, that
the coastal State's rights existedipso facto and ab initio. Denmark
and the Netherlands claimed that the test of appurtenance must be
"proximity": all those parts of the shelf being considered as
appurtenant to a particular coastal State which were closer to it than
they were to any point on the coast of another State. Hence,
delimitation had to be effected by a method which would leave to
each one of the States concerned all those areas that were nearest to
its own coast. As only an equidistance line would do this, only such a
line could be valid, it was contended.
This view had much force; the greater part of a State's continental
shelf areas would normally in fact be nearer to its coasts than to any
other. But the real issue was whether it followed that every part of
the area concerned must be placed in that way. The Court did not
consider this to follow from the notion of proximity, which was a
somewhat fluid one. More fundamental was the concept of the
continental shelf as being the natural prolongation of the land
domain. Even if proximity might afford one of the tests to be applied,
and an important one in the right conditions, it might not necessarily
be the only, nor in all circumstances the most appropriate, one.
Submarine areas did not appertain to the coastal State merely
because they were near it, nor did their appurtenance depend on any
certainty of delimitation as to their boundaries. What conferred
the ipso jure title was the fact that the submarine areas concerned
might be deemed to be actually part of its territory in the sense that
they were a prolongation of its land territory under the sea.
Equidistance clearly could not be identified with the notion of natural
prolongation, since the use of the equidistance method would
frequently cause areas which were the natural prolongation of the
territory of one State to be attributed to another. Hence, the notion

The Court consequently considered that Denmark and the

Netherlands inverted the true order of things and that, far from an
equidistance rule having been generated by an antecedent principle
of proximity inherent in the whole concept of continental shelf
appurtenance, the latter was rather a rationalization of the former
The Equidistance Principle Not a Rule of Customary International
Law (paras. 60-82 of the Judgment)
The question remained whether through positive law processes the
equidistance principle must now be regarded as a rule of customary
international law.
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. While
certain other provisions of the Convention, although relating to
matters that lay within the field of received customary law, were also
not excluded from the faculty of reservation, they all related to rules
of general maritime law very considerably antedating the Convention
which were only incidental to continental shelf rights as such, and
had been mentioned in the Convention simply to ensure that they
were not prejudiced by the exercise of continental shelf rights. 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.
It had been argued on behalf of Denmark and the Netherlands that
even if at the date of the Geneva Convention no rule of customary
international law existed in favour of the equidistance principle, such
a rule had nevertheless come into being since the Convention, partly
because of its own impact, and partly on the basis of subsequent
State practice. 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.
Furthermore, while a very widespread and representative
participation in a convention might show that a conventional rule had
become a general rule of international law, in the present case the
number of ratifications and accessions so far was hardly sufficient. 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

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PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii

law. The cases cited were inconclusive and insufficient evidence of a

settled practice.

rules laid down by the Court some indication was called for of the
possible ways in which they might apply them.

The Court consequently concluded that the Geneva Convention was

not in its origins or inception declaratory of a mandatory rule of
customary international law enjoining the use of the equidistance
principle, its subsequent effect had not been constitutive of such a
rule, and State practice up to date had equally been insufficient for
the purpose.

For all the foregoing reasons, the Court found in each case that the
use of the equidistance method of delimitation was not obligatory as
between the Parties; that no other single method of delimitation was
in all circumstances obligatory; that delimitation was to be effected
by agreement in accordance with equitable principles and taking
account of all relevant circumstances, in such a way as to leave as
much as possible to each Party all those parts of the continental shelf
that constituted a natural prolongation of its land territory, without
encroachment on the natural prolongation of the land territory of the
other; and that, if such delimitation produced overlapping areas, they
were to be divided between the Parties in agreed proportions, or,
failing agreement, equally, unless they decided on a rgime of joint
jurisdiction, user, or exploitation.

**
The voting was as follows:

The Principles and Rules of Law Applicable (paras. 83-101 of the

Judgment)
The legal situation was that the Parties were under no obligation to
apply the equidistance principle either under the 1958 Convention or
as a rule of general or customary international law. It consequently
became unnecessary for the Court to consider whether or not the
configuration of the German North Sea coast constituted a "special
circumstance". It remained for the Court, however, to indicate to the
Parties the principles and rules of law in the light of which
delimitation was to be effected.
The basic principles in the matter of delimitation, deriving from the
Truman Proclamation, were that it must be the object of agreement
between the States concerned and that such agreement must be
arrived at in accordance with equitable principles. The Parties were
under an obligation to enter into negotiations with a view to arriving
at an agreement and not merely to go through a formal process of
negotiation as a sort of prior condition for the automatic application
of a certain method of delimitation in the absence of agreement;
they were so to conduct themselves that the negotiations were
meaningful, which would not be the case when one of them insisted
upon its own position without contemplating any modification of it.
This obligation was merely a special application of a principle
underlying all international relations, which was moreover recognized
in Article 33 of the Charter of the United Nations as one of the
methods for the peaceful settlement of international disputes.
The Parties were under an obligation to act in such a way that in the
particular case, and taking all the circumstances into account,
equitable principles were applied. There was no question of the
Court's decision being ex aequo et bono. It was precisely a rule of
law that called for the application of equitable principles, and in such
cases as the present ones the equidistance method could
unquestionably lead to inequity. Other methods existed and might be
employed, alone or in combination, according to the areas involved.
Although the Parties intended themselves to apply the principles and

In the course of negotiations, the factors to be taken into account

were to include: the general configuration of the coasts of the
Parties, as well as the presence of any special or unusual features; so
far as known or readily ascertainable, the physical and geological
structure and natural resources of the continental shelf areas
involved, the element of a reasonable degree of proportionality
between the extent of the continental shelf areas appertaining to
each State and the length of its coast measured in the general
direction of the coastline, taking into account the effects, actual or
prospective, of any other continental shelf delimitations in the same
region.

CONTINENTAL SHELF CASE

In its judgment in the case concerning the Continental Shelf between
the Libyan Arab Jamahiriya and Malta, the Court, by 14 votes to 3,
stated what principles and rules of international law are applicable to
the delimitation of the continental shelf between the two States, and
the circumstances and factors to be taken into consideration in order
to achieve an equitable delimitation. It stated that an equitable result
could be obtained first by drawing between the 13 50' and the
15 10' meridians a median line, of which every point is equidistant
from the low-water mark of the relevant coasts of Malta, on the one
hand, and of Libya, on the other, and by then transposing this line
northwards by 18' so as to intersect the 15 10' E meridian at a
latitude of approximately 34 30' N.
*

IN
FAVOUR: President Elias; Vice-President SetteCamara; Judges Lachs, Morozov, Nagendra Singh, Ruda, Ago, ElKhani,
Sir
Robert
Jennings,
de
Lacharrire,
Mbaye,
Bedjaoui; Judges ad hoc Valticos, Jimnz de Archaga.
AGAINST: Judges Mosler, Oda and Schwebel.
*
**
The
Court
was
composed
for
this
case
as
follows: President Elias; Vice-President Sette-Camara; Judges Lachs,
Morozov, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Khani,
Schwebel,
Sir
Robert
Jennings,
de
Lacharrire,
Mbaye,
Bedjaoui; Judges ad hoc Valticos and Jimnz de Archaga.
*
**
Judge El-Khani appended a declaration to the judgment.
Vice-President Sette-Camara appended a separate opinion to the
judgment; Judges Ruda and Bedjaoui, and Judge ad hoc Jimnz
de Archaga appended a joint opinion. Judge Mbaye and Judge ad
hoc Valticos each appended separate opinions.
Judges Mosler, Oda and Schwebel appended dissenting opinions to
the Judgment.
*
**
In these opinions the Judges concerned state and explain the
positions they adopted in regard to certain points dealt with in the
Judgment.
*

13
PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii
**

Proceedings and Submissions of the Parties (Paras. 1-13)

The Court begins by recapitulating the various stages in the
proceedings and setting out the provisions of the Special Agreement
concluded between the Libyan Arab Jamahiriya and Malta for the
purpose of submitting to the Court the dispute between them
concerning the delimitation of their respective continental shelves.
By Article 1 of the Special Agreement, the Court is requested to
decide the following question:
"What principles and rules of international law are applicable to the
delimitation of the area of continental shelf which appertains to the
Republic of Malta and the area of continental shelf which appertains
to the Libyan Arab Republic, and how in practice such principles and
rules can be applied by the two Parties in this particular case in order
that they may without difficulty delimit such area by an agreement
as provided in Article III."
According to Article III:
"Following the final decision of the International Court of Justice the
Government of the Republic of Malta and the Government of the
Libyan Arab Republic shall enter into negotiations for determining the
area of their respective continental shelves and for concluding an
agreement for that purpose in accordance with the decision of the
Court."
Having described the geographical context (paras.14-17) in which
the delimitation of the continental shelf, the subject of the
proceedings, is to be carried out, the Court explains its approach to
the task which it has to discharge (paras. 18-23).
The Parties agree on the task of the Court as regards the definition of
the principles and rules of international law applicable in the case,
but disagree as to the way in which the Court is to indicate the
practical application of these principles and rules. Malta takes the
view that the applicable principles and rules are to be implemented in
practice by the drawing of a specific line (in this case, a median line)
whereas Libya maintains that the Court's task does not extend to the
actual drawing of the delimitation line. Having examined the
intentions of the Parties to the Special Agreement, from which its
jurisdiction derives, the Court considers that it is not debarred by the
terms of the Special Agreement from indicating a delimitation line.

Turning to the scope of the Judgment, the Court emphasizes that the
delimitation contemplated by the Special Agreement relates only to
areas of continental shelf "which appertain" to the Parties, to the
exclusion of areas which might "appertain" to a third State. Although
the Parties have in effect invited the Court not to limit its Judgment
to the area in which theirs are the sole competing claims, the Court
does not regard itself as free to do so, in view of the interest shown
in the proceedings by Italy, which in 1984 submitted an application
for permission to intervene under Article 62 of the Statute, an
application which the Court found itself unable to grant. As the Court
had previously indicated in its Judgment of 21 March 1984, the
geographical scope of the present decision must be limited, and must
be confined to the area in which, according to information supplied
by Italy, that State has no claims to continental shelf rights. Thus the
Court ensures to Italy the protection which it sought to obtain by
intervening. In view of the geographical location of these claims the
Court limits the area within which it will give its decision, on the east
by the 15 10' E meridian, including also that part of the meridian
which is south of the 34 30' N parallel, and on the west by
excluding a pentagonal area bounded on the east by the 13 50' E
meridian. The Parties have no grounds for complaint since, as the
Court says, by expressing a negative opinion on the Italian
Application to intervene, they had shown their preference for a
restriction in the geographical scope of the Judgment which the Court
would be required to deliver.

The two Parties agree that the dispute is to be governed by

customary international law. Malta is a party to the 1958 Geneva
Convention on the Continental Shelf, while Libya is not; both Parties
have signed the 1982 United Nations Convention on the Law of the
Sea, but that Convention has not yet entered into force. However,
the Parties are in accord in considering that some of its provisions
constitute the expression of customary law, while holding different
views as to which provisions have this status. In view of the major
importance of this Convention - which has been adopted by an
overwhelming majority of States - it is clearly the duty of the Court
to consider how far any of its provisions may be binding upon the
Parties as a rule of customary law.

However, on the legal basis of title to continental shelf rights the

views of the Parties are irreconcilable. For Libya the natural
prolongation of the land territory of a State into the sea remains the
fundamental basis of legal title to continental shelf areas. For Malta,
continental shelf rights are no longer defined in the light of physical
criteria; they are controlled by the concept of distance from the
coast.

**
The Court observes that no decisive role is played in the present case
by considerations derived from the history of the dispute, or from
legislative and exploratory activities in relation to the continental
shelf (paras. 24 and 25). In these the Court finds neither
acquiescence by either Party to claims by the other, nor any helpful
indication of any view of either Party as to what would be equitable
differing in any way from the view advanced by that Party before the
Court. Its decision must accordingly be based upon the application to
the submissions made before it of principles and rules of
international law.
*
**
The applicable principles and rules of international law (paras. 26-35)

In this context the Parties have laid some emphasis on a distinction

between the law applicable to the basis of entitlement to areas of
continental shelf and the law applicable to the delimitation of areas of
shelf between neighbouring States. On the second point, which is
governed by Article 83 of the 1982 Convention, the Court notes that
the Convention sets a goal to be pursued, namely "to achieve an
equitable solution", but is silent as to the method to be followed to
achieve it, leaving it to States themselves, or to the courts, to endow
this standard with specific content. It also points out that both
Parties agree that, whatever the status of Article 83 of the 1982
Convention, the delimitation is to be effected in accordance with
equitable principles and taking account of all relevant circumstances.

In the view of the Court, the principles and rules underlying the
rgime of the exclusive economic zone cannot be left out of
consideration in the present case, which relates to the delimitation of
the continental shelf. The two institutions are linked together in
modern law, and one of the relevant circumstances to be taken into
account for the delimitation of the continental shelf of a State is the
legally permissible extent of the exclusive economic zone
appertaining to that same State. The institution of the exclusive
economic zone, with its rule on entitlement by reason of distance, is
shown by the practice of States to have become a part of customary
law; and although the institutions of the continental shelf and the
exclusive economic zone are different and distinct, the rights which
the exclusive economic zone entails over the sea-bed of the zone are
defined by reference to the rgime laid down for the continental

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PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii

shelf. Although there can be a continental shelf where there is no

exclusive economic zone, there cannot be an exclusive economic
zone without a corresponding continental shelf. It follows that, for
juridical and practical reasons, the distance criterion must now apply
to the continental shelf as well as to the exclusive economic zone;
and this quite apart from the provision as to distance in Article 76 of
the 1982 Convention. Within 200 miles of the coast, natural
prolongation is in part defined by distance from the shore. The
concepts of natural prolongation and distance are not opposed but
complementary; and both remain essential elements in the juridical
concept of the continental shelf. The Court is thus unable to accept
the Libyan contention that distance from the coast is not a relevant
element for the decision of the present case.
The Libyan "rift zone " argument (paras. 36-41)
The Court goes on to consider Libya's argument based on the
existence of a "rift zone" in the region of the delimitation. From
Libya's contention that the natural prolongation, in the physical
sense, of the land territory into the sea is still a primary basis of title
to continental shelf, it would follow that, if there exists a fundamental
discontinuing between the shelf area adjacent to one Party and the
shelf area adjacent to the other, the boundary should lie along the
general line of that fundamental discontinuity. According to Libya, in
the present case there are two distinct continental shelves divided by
what it calls the "rift zone", and it is "within, and following the
general direction of, the Rift Zone" that the delimitation should be
carried out.
The Court takes the view that, since the development of the law
enables a State to claim continental shelf up to as far as 200 miles
from its coast, whatever the geological characteristics of the
corresponding sea-bed and subsoil, there is no reason to ascribe any
role to geological or geophysical factors within that distance. Since in
the present instance the distance between the coasts of the Parties is
less than 400 miles, so that no geophysical feature can lie more than
200 miles from each coast, the "rift zone" cannot constitute a
fundamental discontinuity terminating the southward extension of
the Maltese shelf and the northward extension of the Libyan as if it
were some natural boundary. Moreover, the need to interpret the
evidence advanced for and against the Libyan argument would
compel the Court first to make a determination upon a disagreement
between scientists of distinction as to the more plausibly correct
interpretation of apparently incomplete scientific data, a position
which it cannot accept. It therefore rejects the so-called "rift zone"
argument of Libya.

Malta's argument respecting the primacy of equidistance (paras. 4244)

Neither, however, is the Court able to accept Malta's argument that
the new importance of the idea of distance from the coast has
conferred a primacy on the method of equidistance for the purposes
of delimitation of the continental shelf, at any rate between opposite
States, as is the case with the coasts of Malta and Libya. Malta
considers that the distance principle requires that, as a starting point
of the delimitation process, consideration must be given to an
equidistance line, subject to verification of the equitableness of the
result achieved by this initial delimitation. The Court is unable to
accept that, even as a preliminary step towards the drawing of a
delimitation line, the equidistance method is one which must
necessarily be used. It is neither the only appropriate method of
delimitation, nor the only permissible point of departure. Moreover,
the Court considers that the practice of States in this field falls short
of proving the existence of a rule prescribing the use of equidistance,
or indeed of any method, as obligatory.
Equitable principles (paras. 45-47)
The Parties agree that the delimitation of the continental shelf must
be effected by the application of equitable principles in all the
relevant circumstances in order to achieve an equitable result. The
Court lists some of these principles: the principle that there is to be
no question of refashioning geography; the principle of nonencroachment by one Party on areas appertaining to the other; the
principle of the respect due to all relevant circumstances; the
principle that "equity does not necessarily imply equality" and that
there can be no question of distributive justice.
The relevant circumstances (paras. 48-54)
The Court has still to assess the weight to be accorded to the
relevant circumstances for the purposes of the delimitation. Although
there is no closed list of considerations which a court may invoke, the
Court emphasizes that the only ones which will qualify for inclusion
are those which are pertinent to the institution of the continental
shelf as it has developed within the law, and to the application of
equitable principles to its delimitation.
Thus it finds to be unfounded in the practice of States, in the
jurisprudence or in the work of the Third United Nations Conference
on the Law of the Sea the argument of Libya that the landmass
provides the legal justification of entitlement to continental shelf
rights, such that a State with a greater landmass would have a more

intense natural prolongation. Nor does the Court consider, contrary to

the contentions advanced by Malta, that a delimitation should be
influenced by the relative economic position of the two States in
question. Regarding the security or defence interests of the two
Parties, the Court notes that the delimitation which will result from
the application of the present Judgment is not so near to the coast of
either Party as to make these questions a particular consideration. As
for the treatment of islands in continental shelf delimitation Malta has
drawn a distinction between island States and islands politically
linked to a mainland State. In this connection the Court merely notes
that, Malta being independent, the relationship of its coasts with the
coasts of its neighbours is different from what it would be if it were
part of the territory of one of them. This aspect of the matter also
seems to the Court to be linked to the position of the Maltese islands
in the wider geographical context, to which it will return.
The Court rejects another argument of Malta, derived from the
sovereign equality of States, whereby the maritime extensions
generated by the sovereignty of each State must be of equal juridical
value, whatever the length of the coasts. The Court considers that if
coastal States have an equal entitlement, ipso jure and ab initio, to
their continental shelves, this does not imply an equality in the
extent of these shelves, and thus reference to the length of coasts as
a relevant consideration cannot be excluded a priori.
Proportionality (paras. 55-59)
The Court then considers the role to be assigned in the present case
to proportionality, Libya having attached considerable importance to
this factor. It recalls that, according to the jurisprudence,
proportionality is one possibly relevant factor among several others
to be taken into account, without ever being mentioned among "the
principles and rules of international law applicable to the
delimitation" or as "a general principle providing an independent
source of rights to areas of continental shelf". Libya's argument,
however, goes further. Once the submission relating to the rift-zone
has been dismissed, there is no other element in the Libyan
submissions, apart from the reference to the lengths of coastline,
which is able to afford an independent principle and method for
drawing the boundary. The Court considers that to use the ratio of
coastal lengths as self-determinative of the seaward reach and area
of continental shelf proper to each, is to go far beyond the use of
proportionality as a test of equity, in the sense employed in the case
concerning
the Continental
Shelf
(Tunisia/Libyan
Arab
Jamahiriya). Such use finds no support in the practice of States or
their public statements, or in the jurisprudence.
*

15
PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii
**

The delimitation operation and

equidistance line (paras. 60-64)

the

drawing

of

Libya. However, it
adjustment.

remains

to

determine

the

extent

of

this

a provisional

In order to apply the equitable principles which were elicited by

taking account of the relevant circumstances, the Court proceeds by
stages; it begins by making a provisional delimitation, which it then
compares with the requirements derived from other criteria which
may call for an adjustment of this initial result.
Stating that the law applicable to the present dispute is based on the
criterion of distance in relation to the coast (the principle of
adjacency measured by distance), and noting that the equitableness
of the equidistance method is particularly marked in cases where the
delimitation concerns States with opposite coasts, the Court
considers that the tracing of a median line between the coasts of
Malta and Libya, by way of a provisional step in a process to be
continued by other operations, is the most judicious manner of
proceeding with a view to the eventual achievement of an equitable
result. The equidistance method is not the only possible method, and
it must be demonstrated that it in fact leads to an equitable
result - this can be ascertained by examining the result to which it
leads in the context of applying other equitable principles to the
relevant circumstances. At this stage, the Court explains that it finds
it equitable not to take account of the uninhabited Maltese island of
Filfla in the construction of the provisional median line between Malta
and Libya, in order to eliminate the disproportionate effect which it
might have on the course of this line.
Adjustment of the equidistance line, taking account especially of the
lengths of the respective coasts of the Parties (paras. 65-73)
The Court examines whether, in assessing the equitableness of the
result, certain relevant circumstances may carry such weight as to
justify their being taken into account, requiring an adjustment of the
median line which has provisionally been drawn.
One point argued before the Court has been the considerable
disparity in the lengths of the relevant coasts of the Parties. Here,
the Court compares Malta's coasts with the coasts of Libya between
Ras Ajdir (the boundary with Tunisia) and Ras Zarruq (15 10') and
notes that there is a marked disparity between the lengths of these
coasts, since the Maltese coast is 24 miles long and the Libyan coast
192 miles long. This is a relevant circumstance which warrants an
adjustment of the median line, to attribute a greater area of shelf to

A further geographical feature must be taken into consideration as a

relevant circumstance; this is the southern location of the coasts of
the Maltese islands, within the general geographical context in which
the delimitation is to be effected. The Court points to a further
reason for not accepting the median line, without adjustment, as an
equitable boundary: namely that this line is to all intents and
purposes controlled on each side, in its entirety, by a handful of
salient points on a short stretch of the coast (two points 11 miles
apart for Malta; several points concentrated immediately east of Ras
Tadjoura for Libya).
The Court therefore finds it necessary that the delimitation line be
adjusted so as to lie closer to the coasts of Malta. The coasts of the
Parties being opposite to each other, and the equidistance line lying
broadly west to east, this adjustment can be satisfactorily and simply
achieved by transposing it in an exactly northward direction.
The Court then establishes what should be the extreme limit of such
a transposition. It reasons as follows: were it supposed that the
Maltese islands were part of Italian territory, and that there was a
question of the delimitation of the continental shelf between Libya
and Italy, the boundary would be drawn in the light of the coasts of
Libya to the south and of Sicily to the north. However, account would
have to be taken of the islands of Malta, so that this delimitation
would be located somewhat south of the median line between Sicily
and Libya. Since Malta is not part of Italy, but is an independent
State, it cannot be the case that, as regards continental shelf rights,
it will be in a worse position because of its independence. It is
therefore reasonable to assume that an equitable boundary between
Libya and Malta must be to the south of a notional median line
between Libya and Sicily. That line intersects the 15 10' E meridian
at a latitude of approximately 34 36'. The median line between
Malta and Libya (drawn to exclude the islet of Filfla) intersects the
15 10' E meridian at a latitude of approximately 34 12' N. A
transposition northwards of 24' of latitude of the Malta-Libya median
line would therefore be the extreme limit of such an adjustment.
Having weighed up the various circumstances in the case as
previously indicated, the Court concludes that a shift of about twothirds of the distance between the Malta-Libya median line and the
line located 24' further north gives an equitable result, and that the
delimitation line is to be produced by transposing the median line
northwards through 18' of latitude. It will intersect the 15 10' E
meridian at approximately 34 30' N. It will be for the Parties and
their experts to determine the exact position.

The test of proportionality (paras. 74-75)

While considering that there is no reason of principle why a test of
proportionality, based on the ratio between the lengths of the
relevant coasts and the areas of shelf attributed, should not be
employed to verify the equity of the result, the Court states that
there may be certain practical difficulties which render this test
inappropriate. They are particularly evident in the present case, inter
alia because the area to which the Judgment will apply is limited by
reason of the existence of claims of third States, and to apply the
proportionality test simply to the areas within these limits would be
unrealistic. However, it seems to the Court that it can make a broad
assessment of the equity of the result without attempting to express
it in figures. It concludes that there is certainly no manifest
disproportion between areas of shelf attributed to each of the Parties,
such that it might be claimed that the requirements of the test of
proportionality as an aspect of equity are not satisfied.
The Court presents a summary of its conclusions (paras. 76-78) and
its decision, the full text of which follows (para. 79).
OPERATIVE PROVISIONS OF THE COURT'S JUDGMENT
THE COURT,
by fourteen votes to three,
finds that, with reference to the areas of continental shelf between
the coasts of the Parties within the limits defined in the present
Judgment, namely the meridian 13 50' E and the meridian 15 10'
E:
A. The principles and rules of international law applicable for the
delimitation, to be effected by agreement in implementation of the
present Judgment, of the areas of continental shelf appertaining to
the Socialist People's Libyan Arab Jamahiriya and to the Republic of
Malta respectively are as follows:
(1) the delimitation is to be effected in accordance with equitable
principles and taking account of all relevant circumstances, so as to
arrive at an equitable result;
(2) the area of continental shelf to be found to appertain to either
Party not extending more than 200 miles from the coast of the Party
concerned, no criterion for delimitation of shelf areas can be derived
from the principle of natural prolongation in the physical sense.

16
PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii

B. The circumstances and factors to be taken into account in

achieving an equitable delimitation in the present case are the
following:
(1) the general configuration of the coasts of the Parties, their
oppositeness, and their relationship to each other within the general
geographical context;
(2) the disparity in the lengths of the relevant coasts of the Parties
and the distance between them;
(3) the need to avoid in the delimitation any excessive disproportion
between the extent of the continental shelf areas appertaining to the
coastal State and the length of the relevant part of its coast,
measured in the general direction of the coastlines.
C. In consequence, an equitable result may be arrived at by drawing,
as a first stage in the process, a median line every point of which is
equidistant from the low-water mark of the relevant coast of Malta
(excluding the islet of Filfla), and the low-water mark of the relevant
coast of Libya, that initial line being then subject to adjustment in the
light of the above-mentioned circumstances and factors.
D. The adjustment of the median line referred to in subparagraph C
above is to be effected by transposing that line northwards through
eighteen minutes of latitude (so that it intersects the meridian 15
10' E at approximately latitude 34 30' N) such transposed line then
constituting the delimitation line between the areas of continental
shelf appertaining to the Socialist People's Libyan Arab Jamahiriya
and to the Republic of Malta respectively.

ASYLUM CASE
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

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PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii

inconsistency in the rapid succession of conventions on asylum,

ratified by some States and rejected by others, and the practice has
been so much influenced by considerations of political expediency in
the various cases, that it is not possible to discern in all this any
constant and uniform usage, mutually accepted as law, with regard
to the alleged rule of unilateral and definitive qualification of the
offence.
5. The court held that even if Colombia could prove that such a
regional custom existed, it would not be binding on Peru, because
Peru far from having by its attitude adhered to it, has, on the
contrary, repudiated it by refraining from ratifying the Montevideo
Conventions of 1933 and 1939, which were the first to include a rule
concerning the qualification of the offence [as political in nature] in
matters of diplomatic asylum. (See in this regard, the lesson
on persistent objectors. Similarly in the North Sea Continental Shelf
Cases the court held in any event the . . . rule would appear to be
inapplicable as against Norway in as much as she had always
opposed any attempt to apply it to the Norwegian coast.)
6. The court concluded that 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.
8. The court looked at the possibility of a customary law emerging
from State practice where diplomatic agents have requested and
been granted safe passage for asylum seekers, before the territorial
State could request for his departure. Once more, the court held that
these practices were a result of a need for expediency and other
practice considerations over an existence of a belief that the act
amounts to a legal obligation (see paragraph 4 above).
There exists undoubtedly a practice whereby the diplomatic
representative who grants asylum immediately requests a safe

conduct without awaiting a request from the territorial state for the
departure of the 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.

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.

(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?

14. The court held:

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.

In the case of diplomatic asylum the refugee is within the territory

of the State. A decision to grant diplomatic asylum involves a
derogation from the sovereignty of that State. It withdraws the
offender from the jurisdiction of the territorial State and constitutes
an intervention in matters which are exclusively within the
competence of that State. Such a derogation from territorial
sovereignty cannot be recognised unless its legal basis is established
in each particular case.
15. As a result, exceptions to this rule are strictly regulated under
international law.
An exception to this rule (asylum should not be granted to those
facing regular prosecutions) can occur only if, in the guise of justice,
arbitrary action is substituted for the rule of law. Such would be the
case if the administration of justice were corrupted by measures
clearly prompted by political aims. Asylum protects the political
offender against any measures of a manifestly extra-legal character
which a Government might take or attempt to take against its
political opponents On the other hand, the safety which arises out
of asylum cannot be construed as a protection against the regular
application of the laws and against the jurisdiction of legally
constituted tribunals. Protection thus understood would authorize the
diplomatic agent to obstruct the application of the laws of the
country whereas it is his duty to respect them Such a conception,
moreover, would come into conflict with one of the most firmly
established traditions of Latin-America, namely, non-intervention [for
example, by Colombia into the internal affairs of another State like
Peru].
16. Asylum may be granted on humanitarian grounds to protect
political prisoners against the violent and disorderly action of
irresponsible sections of the population. (for example during a mob
attack where the territorial State is unable to protect the offender).
Torre was not in such a situation at the time when he sought refuge
in the Colombian Embassy at Lima.
17. The court concluded that the grant of asylum and reasons for its
prolongation were not in conformity with Article 2(2) of the Havana
Convention (p. 25).

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PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii

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.

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.

No objection

Persistent objector rule

ANGLO-NORWEGIAN FISHERIES
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

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.

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.

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.

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

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.

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
Sustained objection

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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

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)

(2) found that Iceland is not entitled unilaterally to exclude United

Kingdom fishing vessels from areas between the 12-mile and 50-mile
limits, or unilaterally to impose restrictions on their activities in such
areas;
(3) held that Iceland and the United Kingdom are under mutual
obligations to undertake negotiations in good faith for an equitable
solution of their differences;
(4) indicated certain factors which are to be taken into account in
these negotiations (preferential rights of Iceland, established rights
of the United Kingdom, interests of other States, conservation of
fishery resources, joint examination of measures required).
The Court was composed as follows: President Lachs, Judges Forster,
Gros, Bengzon, Petrn, Onyeama, Dillard, Ignacio-Pinto, de Castro,
Morozov, Jimnz de Archaga, Sir Humphrey Waldock, Nagendra
Singh and Ruda.
Among the ten Members of the Court who voted in favour of the
Judgment, the President and Judge Nagendra Singh appended
declarations; Judges Forster, Bengzon, Jimnez de Archaga,
Nagendra Singh (already mentioned) and Ruda appended a joint
separate opinion, and Judges Dillard, de Castro and Sir Humphrey
Waldock appended separate opinions.
Of the four judges who voted against the Judgment, Judge IgnacioPinto appended a declaration and Judges Gros, Petrn and Onyeama
appended dissenting opinions.
In these declarations and opinions the judges concerned make clear
and explain their decisions.

In its Judgment on the merits in the case concerning Fisheries

Jurisdiction (United Kingdom v. Iceland), the Court, by ten votes to
four:
(1) found that the Icelandic Regulations of 1972 constituting a
unilateral extension of the exclusive fishing rights of Iceland to 50
nautical miles from the baselines are not opposable to the United
Kingdom;

(b) that, as against the United Kingdom, Iceland is not entitled

unilaterally to assert an exclusive fisheries jurisdiction beyond the
limit of 12 miles agreed to in an Exchange of Notes in 1961;
(c) that Iceland is not entitled unilaterally to exclude British fishing
vessels from the area of the high seas beyond the 12-mile limit or
unilaterally to impose restrictions on their activities in that area;
(d) that Iceland and the United Kingdom are under a duty to
examine together, either bilaterally or with other interested States,
the need on conservation grounds for the introduction of restrictions
on fishing activities in the said area of the high seas and to negotiate
for the establishment of such a rgime in that area as will inter
alia ensure for Iceland a preferential position consistent with its
position as a State specially dependent on its fisheries.
Iceland did not take part in any phase of the proceedings. By a letter
of 29 May 1972 Iceland informed the Court that it regarded the
Exchange of Notes of 1961 as terminated; that in its view there was
no basis under the Statute for the Court to exercise jurisdiction; and
that, as it considered its vital interests to be involved, it was not
willing to confer jurisdiction on the Court in any case involving the
extent of its fishery limits. In a letter dated 11 January 1974, Iceland
stated that it did not accept any of the statements of fact or any of
the allegations or contentions of law submitted on behalf of the
United Kingdom.

In its Judgment, the Court recalls that proceedings were instituted by

the United Kingdom against Iceland on 14 April 1972. At the request
of the United Kingdom, the Court indicated interim measures of
protection by an Order dated 17 August 1972 and confirmed them by
a further Order dated 12 July 1972. By a Judgment of 2 February
1973 the Court found that it had jurisdiction to deal with the merits
of the dispute.

The United Kingdom having referred to Article 53 of the Statute, the

Court had to determine whether the claim was founded in fact and
law. The facts requiring the Court's consideration in adjudicating
upon the claim were attested by documentary evidence whose
accuracy there appeared to be no reason to doubt. As for the law,
although it was to be regretted that Iceland had failed to appear, the
Court was nevertheless deemed to take notice of international law,
which lay within its own judicial knowledge. Having taken account of
the legal position of each Party and acted with particular
circumspection in view of the absence of the respondent State, the
Court considered that it had before it the elements necessary to
enable it to deliver judgment.

In its final submissions, the United Kingdom asked the Court to

adjudge and declare:

History of the Dispute Jurisdiction of the Court (paras. 19-48 of the

Judgment)

Procedure - Failure of Party to Appear (paras. 1-18 of the Judgment)

FISHERIES JURISDICTION

(a) that the claim by Iceland to be entitled to a zone of exclusive

fisheries jurisdiction extending 50 nautical miles from the baselines is
without foundation in international law and is invalid;

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PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii

The Court recalled that in 1948 the Althing (the Parliament of

Iceland) had passed a law concerning the Scientific Conservation of
the Continental Shelf Fisheries which empowered the Government to
establish conservation zones wherein all fisheries should be subject
to Icelandic rules and control to the extent compatible with
agreements with other countries. Subsequently the 1901 AngloDanish Convention which had fixed a limit for Iceland's exclusive
right of fishery round its coasts was denounced by Iceland as from
1951, new Icelandic Regulations of 1958 proclaimed a 12-mile limit
and the Althing declared by a resolution in 1959 "that recognition
should be obtained of Iceland's right to the entire continental shelf
area in conformity with the policy adopted by the Law of 1948".
Following a number of incidents and a series of negotiations, Iceland
and the United Kingdom agreed on an Exchange of Notes which took
place on 11 March 1961 and specified inter alia that the United
Kingdom would no longer object to a 12-mile fishery zone, that
Iceland would continue to work for the implementation of the 1959
resolution regarding the extension of fisheries jurisdiction but would
give the United Kingdom six months' notice of such extension and
that "in case of a dispute in relation to such extension, the matter
shall, at the request of either Party, be referred to the International
Court of Justice".
In 1971, the Icelandic Government announced that the agreement
on fisheries jurisdiction with the United Kingdom would be
terminated and that the limit of exclusive Icelandic fisheries
jurisdiction would be extended to 50 miles. In an aide-mmoire of
24 February 1972 the United Kingdom was formally notified of this
intention. In reply the latter emphasized that the Exchange of Notes
was not open to unilateral denunciation and that in its view the
measure contemplated "would have no basis in international law". On
14 July 1972 new Regulations were introduced whereby Iceland's
fishery limits would be extended to 50 miles as from 1 September
1972 and all fishing activities by foreign vessels inside those limits be
prohibited. Their enforcement gave rise, while proceedings before the
Court were continuing and Iceland was refusing to recognize the
Court's decisions, to a series of incidents and negotiations which
resulted on 13 November 1973 in an exchange of Notes constituting
an interim agreement between the United Kingdom and Iceland. This
agreement, concluded for two years, provided for temporary
arrangements "pending a settlement of the substantive dispute and
without prejudice to the legal position or rights of either Government
in relation thereto".
The Court considered that the existence of the interim agreement
ought not to lead it to refrain from pronouncing judgment: it could
not be said that the issues before the Court had become without
object, since the dispute still continued and, though it was beyond
the powers of the Court to declare the law between the Parties as it

might be at the date of expiration of the interim agreement, that

could not relieve the Court from its obligation to render a judgment
on the basis of the law as it now existed; furthermore, the Court
ought not to discourage the making of interim arrangements in
future disputes with the object of reducing friction.
Reverting to the 1961 Exchange of Notes, which in the Court's
Judgment of 1973 was held to be a treaty in force, the Court
emphasized that it would be too narrow an interpretation of the
compromissory clause (quoted above) to conclude that it limited the
Court's jurisdiction to giving an affirmative or a negative answer to
the question of whether the Icelandic Regulations of 1972 were in
conformity with international law. It seemed evident that the dispute
between the Parties included disagreements as to their respective
rights in the fishery resources and the adequacy of measures to
conserve them. It was within the power of the Court to take into
consideration all relevant elements
Applicable Rules of International Law (paras. 49-78 of the Judgment)
The first United Nations Conference on the Law of the Sea (Geneva,
1958) had adopted a Convention on the High Seas, Article 2 of which
declared the principle of the freedom of the high seas, that is to say,
freedom of navigation, freedom of fishing, etc., to "be exercised by
all States with reasonable regard to the interests of other States in
their exercise of the freedom of the high seas".
The question of the breadth of the territorial sea and that of the
extent of the coastal State's fishery jurisdiction had been left
unsettled at the 1958 Conference and were not settled at a second
Conference held in Geneva in 1960. However, arising out of the
general consensus at that second Conference, two concepts had
since crystallized as customary law: that of a fishery zone, between
the territorial sea and the high seas within which the coastal State
could claim exclusive fisheries jurisdiction - it now being generally
accepted that that zone could extend to the 12-mile limit - and the
concept, in respect of waters adjacent to the zone of exclusive fishing
rights, of preferential fishing rights in favour of the coastal State in a
situation of special dependence on its fisheries. The Court was aware
that in recent years a number of States had asserted an extension of
their exclusive fishery limits. The Court was likewise aware of present
endeavours, pursued under the auspices of the United Nations, to
achieve in a third Conference on the Law of the Sea the further
codification and progressive development of that branch of the law,
as it was also of various proposals and preparatory documents
produced in that framework. But, as a court of law, it could not
render judgment sub specie legis ferendae or anticipate the law

before the legislator had laid it down. It must take into account the
existing rules of international law and the Exchange of Notes of 1961.
The concept of preferential fishing rights had originated in proposals
submitted by Iceland at the Geneva Conference of 1958, which had
confined itself to recommending that:
". . . where, for the purpose of conservation, it becomes necessary to
limit the total catch of a stock or stocks of fish in an area of the high
seas adjacent to the territorial sea of a coastal State, any other
States fishing in that area should collaborate with the coastal State
to secure just treatment of such situation, by establishing agreed
measures which shall recognize any preferential requirements of the
coastal State resulting from its dependence upon the fishery
concerned while having regard to the interests of the other States".
At the 1960 Conference the same concept had been embodied in an
amendment incorporated by a substantial vote into one of the
proposals concerning the fishing zone. The contemporary practice of
States showed that that concept, in addition to its increasing and
widespread acceptance, was being implemented by agreements,
either bilateral or multilateral. In the present case, in which the
exclusive fishery zone within the limit of 12 miles was not in dispute,
the United Kingdom had expressly recognized the preferential rights
of the other Party in the disputed waters situated beyond that limit.
There could be no doubt of the exceptional dependence of Iceland on
its fisheries and the situation appeared to have been reached when it
was imperative to preserve fish stocks in the interests of rational and
economic exploitation.
However, the very notion of preferential fishery rights for the coastal
State in a situation of special dependence, though it implied a certain
priority, could not imply the extinction of the concurrent rights of
other States. The fact that Iceland was entitled to claim preferential
rights did not suffice to justify its claim unilaterally to exclude British
fishing vessels from all fishing beyond the limit of 12 miles agreed to
in 1961.
The United Kingdom had pointed out that its vessels had been fishing
in Icelandic waters for centuries, that they had done so in a manner
comparable with their present activities for upwards of fifty years and
that their exclusion would have very serious adverse consequences.
There too the economic dependence and livelihood of whole
communities were affected, and the United Kingdom shared the
same interest in the conservation of fish stocks as Iceland, which had
for its part admitted the existence of the Applicant's historic and
special interests in fishing in the disputed waters. Iceland's 1972

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PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii

Regulations were therefore not opposable to the United Kingdom;

they disregarded the established rights of that State and also the
Exchange of Notes of 1961, and they constituted an infringement of
the principle (1958 Convention on the High Seas, Art. 2) of
reasonable regard for the interests of other States, including the
United Kingdom.
In order to reach an equitable solution of the present dispute it was
necessary that the preferential fishing rights of Iceland should be
reconciled with the traditional fishing rights of the United Kingdom
through the appraisal at any given moment of the relative
dependence of either State on the fisheries in question, while taking
into account the rights of other States and the needs of conservation.
Thus Iceland was not in law entitled unilaterally to exclude United
Kingdom fishing vessels from areas to seaward of the limit of 12
miles agreed to in 1961 or unilaterally to impose restrictions on their
activities. But that did not mean that the United Kingdom was under
no obligation to Iceland with respect to fishing in the disputed waters
in the 12-mile to 50-mile zone. Both Parties had the obligation to
keep under review the fishery resources in those waters and to
examine together, in the light of the information available, the
measures required for the conservation and development, and
equitable exploitation, of those resources, taking into account any
international agreement that might at present be in force or might be
reached after negotiation.
The most appropriate method for the solution of the dispute was
clearly that of negotiation with a view to delimiting the rights and
interests of the Parties and regulating equitably such questions as
those of catch-limitation, share allocations and related restrictions.
The obligation to negotiate flowed from the very nature of the
respective rights of the Parties and corresponded to the provisions of
the United Nations Charter concerning peaceful settlement of
disputes. The Court could not accept the view that the common
intention of the Parties was to be released from negotiating
throughout the whole period covered by the 1973 interim agreement.
The task before them would be to conduct their negotiations on the
basis that each must in good faith pay reasonable regard to the legal
rights of the other, to the facts of the particular situation and to the
interests of other States with established fishing rights in the area.

concerning the Legality of the Threat or Use of Nuclear Weapons. The

final paragraph of the Opinion reads as follows:
"For these reasons,
THE COURT
(1) By thirteen votes to one,
Decides to comply with the request for an advisory opinion;
IN
FAVOUR: President Bedjaoui; VicePresident Schwebel; Judges Guillaume,
Shahabuddeen,
Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma,
Vereshchetin, Ferrari Bravo, Higgins;
AGAINST: Judge Oda.
(2) Replies in the following manner to the question put by the
General Assembly:

D. Unanimously,
A threat or use of nuclear weapons should also be compatible with
the requirements of the international law applicable in armed conflict
particularly those of the principles and rules of international
humanitarian law, as well as with specific obligations under treaties
and other undertakings which expressly deal with nuclear weapons;
E. By seven votes to seven, by the President's casting vote,
It follows from the above-mentioned requirements that the threat or
use of nuclear weapons would generally be contrary to the rules of
international law applicable in armed conflict, and in particular the
principles and rules of humanitarian law;
However, in view of the current state of international law, and of the
elements of fact at its disposal, the Court cannot conclude definitively
whether the threat or use of nuclear weapons would be lawful or
unlawful in an extreme circumstance of self-defence, in which the
very survival of a State would be at stake;

A. Unanimously,

IN FAVOUR: President Bedjaoui; Judges Ranjeva,

Fleischhauer, Vereshchetin, Ferrari Bravo;

There is in neither customary nor conventional international law any

specific authorization of the threat or use of nuclear weapons;

AGAINST: Vice-President Schwebel; Judges Oda,

Shahabuddeen, Weeramantry, Koroma, Higgins.

B. By eleven votes to three,

F. Unanimously,

There is in neither customary nor conventional international law any

comprehensive and universal prohibition of the threat or use of
nuclear weapons as such;

There exists an obligation to pursue in good faith and bring to a

conclusion negotiations leading to nuclear disarmament in all its
aspects under strict and effective international control".

IN
FAVOUR: President Bedjaoui; VicePresident Schwebel; Judges Oda, Guillaume, Ranjeva, Herczegh, Shi,
Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;

AGAINST: Judges Shahabuddeen, Weeramantry, Koroma.

Herczegh,

Shi,

Guillaume,

The Court was composed as follows: President Bedjaoui, VicePresident Schwebel; Judges Oda,
Guillaume,
Shahabuddeen,
Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma,
Vereshchetin, Ferrari Bravo, Higgins; Registrar Valencia-Ospina.

C. Unanimously,
LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS
The Court handed down its Advisory Opinion on the request made by
the General Assembly of the United Nations on the question

A threat or use of force by means of nuclear weapons that is contrary

to Article 2, paragraph 4, of the United Nations Charter and that fails
to meet all the requirements of Article 51, is unlawful;

President Bedjaoui, Judges Herczegh, Shi, Vereshchetin and Ferrari

Bravo appended declarations to the Advisory Opinion of the
Court; JudgesGuillaume, Ranjeva and Fleischhauer appended
separate
opinions; Vice-President Schwebel, Judges Oda

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PUBLIC INTERNATIONAL LAW dennisarantupazabriljdii
Shahabuddeen, Weeramantry,
dissenting opinions.

Koroma

and

Higgins

appended

_________
Summary of the Advisory Opinion
Submission of the request and subsequent procedure (paras.
1-9)

their activities. In the view of the Court, it matters little whether this
interpretation of Article 96, paragraph 1, is or is not correct; in the
present case, the General Assembly has competence in any event to
seise the Court. Referring to Articles 10, 11 and 13 of the Charter,
the Court finds that, indeed, the question put to the Court has a
relevance to many aspects of the activities and concerns of the
General Assembly including those relating to the threat or use of
force in international relations, the disarmament process, and the
progressive development of international law.

established its competence to do so. In this context, the Court has

previously noted as follows:
"The Court's Opinion is given not to the States, but to the organ
which is entitled to request it; the reply of the Court, itself an 'organ
of the United Nations', represents its participation in the activities of
the Organization, and, in principle, should not be refused."
(Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950,
p. 71; . . .)"

"Legal Question" (para. 13)

The Court begins by recalling that by a letter dated
19 December 1994, filed in the Registry on 6 January 1995, the
Secretary-General of the United Nations officially communicated to
the Registrar the decision taken by the General Assembly to submit a
question to the Court for an advisory opinion. The final paragraph of
Resolution 49/75 K, adopted by the General Assembly on
15 December 1994, which sets forth the question, provides that the
General Assembly
"Decides, pursuant to Article 96, paragraph 1, of the Charter of the
United Nations, to request the International Court of Justice urgently
to render its advisory opinion on the following question: 'Is the threat
or use of nuclear weapons in any circumstance permitted under
international law?'."
The Court then recapitulates the various stages of the proceedings.

The Court observes that it has already had occasion to indicate that
questions
"framed in terms of law and rais[ing] problems of international
law . . . are by their very nature susceptible of a reply based on
law . . . [and] appear . . . to be questions of a legal character"
(Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 18,
para. 15).
It finds that the question put to the Court by the General Assembly is
indeed a legal one, since the Court is asked to rule on the
compatibility of the threat or use of nuclear weapons with the
relevant principles and rules of international law. To do this, the
Court must identify the existing principles and rules, interpret them
and apply them to the threat or use of nuclear weapons, thus
offering a reply to the question posed based on law.

Jurisdiction of the Court paras. 10-18)

The Court first considers whether it has the jurisdiction to give a
reply to the request of the General Assembly for an Advisory Opinion
and whether, should the answer be in the affirmative, there is any
reason it should decline to exercise any such jurisdiction.
The Court observes that it draws its competence in respect of
advisory opinions from Article 65, paragraph 1, of its Statute, while
Article 96, paragraph 1 of the Charter provides that:
"The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal
question."
Some States which oppose the giving of an opinion by the Court
argued that the General Assembly and Security Council may ask for
an advisory opinion on any legal question only within the scope of

The fact that this question also has political aspects, as, in the nature
of things, is the case with so many questions which arise in
international life, does not suffice to deprive it of its character as a
"legal question" and to "deprive the Court of a competence expressly
conferred on it by its Statute". Nor are the political nature of the
motives which may be said to have inspired the request or the
political implications that the opinion given might have of relevance
in the establishment of the Court's jurisdiction to give such an
opinion.
Discretion of the Court to give an advisory opinion (paras. 1419)
Article 65, paragraph 1, of the Statute provides: "The Court may give
an advisory opinion . . ." (Emphasis added.) This is more than an
enabling provision. As the Court has repeatedly emphasized, the
Statute leaves a discretion as to whether or not it will give an
advisory opinion that has been requested of it, once it has

In the history of the present Court there has been no refusal, based
on the discretionary power of the Court, to act upon a request for
advisory opinion; in the case concerning the Legality of the Use by a
State of Nuclear Weapons in Armed Conflict the refusal to give the
World Health Organization the advisory opinion requested by it was
justified by the Court's lack of jurisdiction in that case.
Several reasons were adduced in these proceedings in order to
persuade the Court that in the exercise of its discretionary power it
should decline to render the opinion requested by the General
Assembly. Some States, in contending that the question put to the
Court is vague and abstract, appeared to mean by this that there
exists no specific dispute on the subject-matter of the question. In
order to respond to this argument, it is necessary to distinguish
between requirements governing contentious procedure and those
applicable to advisory opinions. The purpose of the advisory function
is not to settle - at least directly - disputes between States, but to
offer legal advice to the organs and institutions requesting the
opinion. The fact that the question put to the Court does not relate to
a specific dispute should consequently not lead the Court to decline
to give the opinion requested. Other arguments concerned the fear
that the abstract nature of the question might lead the Court to make
hypothetical or speculative declarations outside the scope of its
judicial function; the fact that the General Assembly has not
explained to the Court for what precise purposes it seeks the
advisory opinion; that a reply from the Court in this case might
adversely affect disarmament negotiations and would, therefore, be
contrary to the interest of the United Nations; and that in answering
the question posed, the Court would be going beyond its judicial role
and would be taking upon itself a law-making capacity.
The Court does not accept those arguments and concludes that it has
the authority to deliver an opinion on the question posed by the
General Assembly, and that there exist no "compelling reasons"
which would lead the Court to exercise its discretion not to do so. It
points out, however, that it is an entirely different question whether,
under the constraints placed upon it as a judicial organ, it will be able

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to give a complete answer to the question asked of it. But that is a

different matter from a refusal to answer at all.

regulates the conduct of hostilities, together with any specific treaties

on nuclear weapons that the Court might determine to be relevant.

Formulation of the question posed (paras. 20 and 22)

Unique characteristics of nuclear weapons (paras. 35 and 36)

The Court finds it unnecessary to pronounce on the possible

divergences between the English and French texts of the question
put. Its real objective is clear: to determine the legality or illegality of
the threat or use of nuclear weapons. And the argument concerning
the legal conclusions to be drawn from the use of the word
"permitted", and the questions of burden of proof to which it was
said to give rise, are found by the Court to be without particular
significance for the disposition of the issues before it.

The Court notes that in order correctly to apply to the present case
the Charter law on the use of force and the law applicable in armed
conflict, in particular humanitarian law, it is imperative for it to take
account of the unique characteristics of nuclear weapons, and in
particular their destructive capacity, their capacity to cause untold
human suffering, and their ability to cause damage to generations to
come.

The Applicable Law (paras. 23-34)

In seeking to answer the question put to it by the General Assembly,
the Court must decide, after consideration of the great corpus of
international law norms available to it, what might be the relevant
applicable law.
The Court considers that the question whether a particular loss of
life, through the use of a certain weapon in warfare, is to be
considered an arbitrary deprivation of life contrary to Article 6 of the
International Covenant on Civil and Political Rights, as argued by
some of the proponents of the illegality of the use of nuclear
weapons, can only be decided by reference to the law applicable in
armed conflict and not deduced from the terms of the Covenant
itself. The Court also points out that the prohibition of genocide
would be pertinent in this case if the recourse to nuclear weapons did
indeed entail the element of intent, towards a group as such,
required by Article II of the Convention on the Prevention and
Punishment of the Crime of Genocide. In the view of the Court, it
would only be possible to arrive at such a conclusion after having
taken due account of the circumstances specific to each case. And
the Court further finds that while the existing international law
relating to the protection and safeguarding of the environment does
not specifically prohibit the use of nuclear weapons, it indicates
important environmental factors that are properly to be taken into
account in the context of the implementation of the principles and
rules of the law applicable in armed conflict.
In the light of the foregoing the Court concludes that the most
directly relevant applicable law governing the question of which it
was seised, is that relating to the use of force enshrined in the United
Nations Charter and the law applicable in armed conflict which

Provisions of the Charter relating to the threat or use of

force (paras. 37-50)
The Court then addresses the question of the legality or illegality of
recourse to nuclear weapons in the light of the provisions of the
Charter relating to the threat or use of force.
In Article 2, paragraph 4, of the Charter the use of force against the
territorial integrity or political independence of another State or in
any other manner inconsistent with the purposes of the United
Nations is prohibited.
This prohibition of the use of force is to be considered in the light of
other relevant provisions of the Charter. In Article 51, the Charter
recognizes the inherent right of individual or collective self-defence if
an armed attack occurs. A further lawful use of force is envisaged in
Article 42, whereby the Security Council may take military
enforcement measures in conformity with Chapter VII of the Charter.
These provisions do not refer to specific weapons. They apply to any
use of force, regardless of the weapons employed. The Charter
neither expressly prohibits, nor permits, the use of any specific
weapon, including nuclear weapons.
The entitlement to resort to self-defence under Article 51 is subject
to the conditions of necessity and proportionality. As the Court stated
in the case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America) (I.C.J.
Reports 1986, p. 94, para. 176): "there is a 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".

The proportionality principle may thus not in itself exclude the use of
nuclear weapons in self-defence in all circumstances. But at the same
time, a use of force that is proportionate under the law of selfdefence, must, in order to be lawful, also meet the requirements of
the law applicable in armed conflict which comprise in particular the
principles and rules of humanitarian law. And the Court notes that
the very nature of all nuclear weapons and the profound risks
associated therewith are further considerations to be borne in mind
by States believing they can exercise a nuclear response in selfdefence in accordance with the requirements of proportionality.
In order to lessen or eliminate the risk of unlawful attack, States
sometimes signal that they possess certain weapons to use in selfdefence against any State violating their territorial integrity or
political independence. Whether a signaled intention to use force if
certain events occur is or is not a "threat" within Article 2,
paragraph 4, of the Charter depends upon various factors. The
notions of "threat" and "use" of force under Article 2, paragraph 4, of
the Charter stand together in the sense that if the use of force itself
in a given case is illegal - for whatever reason - the threat to use
such force will likewise be illegal. In short, if it is to be lawful, the
declared readiness of a State to use force must be a use of force that
is in conformity with the Charter. For the rest, no State - whether or
not it defended the policy of deterrence - suggested to the Court that
it would be lawful to threaten to use force if the use of force
contemplated would be illegal.
Rules on the lawfulness or unlawfulness of nuclear weapons
as such (paras. 49-73)
Having dealt with the Charter provisions relating to the threat or use
of force, the Court turns to the law applicable in situations of armed
conflict. It first addresses the question whether there are specific
rules in international law regulating the legality or illegality of
recourse to nuclear weapons per se; it then examines the question
put to it in the light of the law applicable in armed conflict proper, i.e.
the principles and rules of humanitarian law applicable in armed
conflict, and the law of neutrality.
The Court notes by way of introduction that international customary
and treaty law does not contain any specific prescription authorizing
the threat or use of nuclear weapons or any other weapon in general
or in certain circumstances, in particular those of the exercise of
legitimate self-defence. Nor, however, is there any principle or rule of
international law which would make the legality of the threat or use
of nuclear weapons or of any other weapons dependent on a specific
authorization. State practice shows that the illegality of the use of
certain weapons as such does not result from an absence of

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authorization but, on the contrary, is formulated in terms of

prohibition.
It does not seem to the Court that the use of nuclear weapons can be
regarded as specifically prohibited on the basis of certain provisions
of the Second Hague Declaration of 1899, the Regulations annexed
to the Hague Convention IV of 1907 or the 1925 Geneva Protocol.
The pattern until now has been for weapons of mass destruction to
be declared illegal by specific instruments. But the Court does not
find any specific prohibition of recourse to nuclear weapons in
treaties expressly prohibiting the use of certain weapons of mass
destruction; and observes that, although, in the last two decades, a
great many negotiations have been conducted regarding nuclear
weapons, they have not resulted in a treaty of general prohibition of
the same kind as for bacteriological and chemical weapons.
The Court notes that the treaties dealing exclusively with acquisition,
manufacture, possession, deployment and testing of nuclear
weapons, without specifically addressing their threat or use, certainly
point to an increasing concern in the international community with
these weapons; It concludes from this that these treaties could
therefore be seen as foreshadowing a future general prohibition of
the use of such weapons, but that they do not constitute such a
prohibition by themselves. As to the treaties of Tlatelolco and
Rarotonga and their Protocols, and also the declarations made in
connection with the indefinite extension of the Treaty on the NonProliferation of Nuclear Weapons, it emerges from these instruments
that:
(a) a number of States have undertaken not to use nuclear weapons
in specific zones (Latin America; the South Pacific) or against certain
other States (non-nuclear-weapon States which are parties to the
Treaty on the Non-Proliferation of Nuclear Weapons);
(b) nevertheless, even within this framework, the nuclear-weapon
States have reserved the right to use nuclear weapons in certain
circumstances; and
(c) these reservations met with no objection from the parties to the
Tlatelolco or Rarotonga Treaties or from the Security Council.
The Court then turns to an examination of customary international
law to determine whether a prohibition of the threat or use of nuclear
weapons as such flows from that source of law.
It notes that the Members of the international community are
profoundly divided on the matter of whether non-recourse to nuclear

weapons over the past fifty years constitutes the expression of

an opinio juris. Under these circumstances the Court does not
consider itself able to find that there is such an opinio juris. It points
out that the adoption each year by the General Assembly, by a large
majority, of resolutions recalling the content of resolution 1653
(XVI), and requesting the member States to conclude a convention
prohibiting the use of nuclear weapons in any circumstance, reveals
the desire of a very large section of the international community to
take, by a specific and express prohibition of the use of nuclear
weapons, a significant step forward along the road to complete
nuclear disarmament. The emergence, as lex lata, of a customary
rule specifically prohibiting the use of nuclear weapons as such is
hampered by the continuing tensions between the nascent opinio
juris on the one hand, and the still strong adherence to the doctrine
of deterrence(in which the right to use those weapons in the exercise
of the right to self-defence against an armed attack threatening the
vital security interests of the State is reserved) on the other.
International humanitarian law (paras. 74-87)
Not having found a conventional rule of general scope, nor a
customary rule specifically proscribing the threat or use of nuclear
weapons per se, the Court then deals with the question whether
recourse to nuclear weapons must be considered as illegal in the light
of the principles and rules of international humanitarian law
applicable in armed conflict and of the law of neutrality.
After sketching the historical development of the body of rules which
originally were called "laws and customs of war" and later came to be
termed "international humanitarian law", the Court observes that the
cardinal principles contained in the texts constituting the fabric of
humanitarian law are the following. The first is aimed at the
protection of the civilian population and civilian objects and
establishes the distinction between combatants and non-combatants;
States must never make civilians the object of attack and must
consequently never use weapons that are incapable of distinguishing
between civilian and military targets. According to the second
principle, it is prohibited to cause unnecessary suffering to
combatants: it is accordingly prohibited to use weapons causing
them such harm or uselessly aggravating their suffering. In
application of that second principle, States do not have unlimited
freedom of choice of means in the weapons they use.
The Court also refers to the Martens Clause, which was first included
in the Hague Convention II with Respect to the Laws and Customs of
War on Land of 1899 and which has proved to be an effective means
of addressing the rapid evolution of military technology. A modern

version of that clause is to be found in Article 1, paragraph 2, of

Additional Protocol I of 1977, which reads as follows:
"In cases not covered by this Protocol or by other international
agreements, civilians and combatants remain under the protection
and authority of the principles of international law derived from
established custom, from the principles of humanity and from the
dictates of public conscience."
The extensive codification of humanitarian law and the extent of the
accession to the resultant treaties, as well as the fact that the
denunciation clauses that existed in the codification instruments have
never been used, have provided the international community with a
corpus of treaty rules the great majority of which had already
become customary and which reflected the most universally
recognized humanitarian principles. These rules indicate the normal
conduct and behaviour expected of States.
Turning to the applicability of the principles and rules of humanitarian
law to a possible threat or use of nuclear weapons, the Court notes
that nuclear weapons were invented after most of the principles and
rules of humanitarian law applicable in armed conflict had already
come into existence; the Conferences of 1949 and 1974-1977 left
these weapons aside, and there is a qualitative as well as
quantitative difference between nuclear weapons and all conventional
arms. However, in the Court's view, it cannot be concluded from this
that the established principles and rules of humanitarian law
applicable in armed conflict did not apply to nuclear weapons. Such a
conclusion would be incompatible with the intrinsically humanitarian
character of the legal principles in question which permeates the
entire law of armed conflict and applies to all forms of warfare and to
all kinds of weapons, those of the past, those of the present and
those of the future. In this respect it seems significant that the thesis
that the rules of humanitarian law do not apply to the new weaponry,
because of the newness of the latter, has not been advocated in the
present proceedings.
The principle of neutrality (paras. 88 and 89)
The Court finds that as in the case of the principles of humanitarian
law applicable in armed conflict, international law leaves no doubt
that the principle of neutrality, whatever its content, which is of a
fundamental character similar to that of the humanitarian principles
and rules, is applicable (subject to the relevant provisions of the
United Nations Charter), to all international armed conflict, whatever
type of weapons might be used.

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Conclusions to be drawn from the applicability of international

humanitarian law and the principle of neutrality (paras. 90-97)

nuclear weapons, the Court considers that it needs to examine one

further aspect of the question before it, seen in a broader context.

The Court observes that, although the applicability of the principles

and rules of humanitarian law and of the principle of neutrality to
nuclear weapons is hardly disputed, the conclusions to be drawn
from this applicability are, on the other hand, controversial.

In the long run, international law, and with it the stability of the
international order which it is intended to govern, are bound to suffer
from the continuing difference of views with regard to the legal
status of weapons as deadly as nuclear weapons. It is consequently
important to put an end to this state of affairs: the long-promised
complete nuclear disarmament appears to be the most appropriate
means of achieving that result.

According to one point of view, the fact that recourse to nuclear

weapons is subject to and regulated by the law of armed conflict,
does not necessarily mean that such recourse is as such prohibited.
Another view holds that recourse to nuclear weapons, in view of the
necessarily indiscriminate consequences of their use, could never be
compatible with the principles and rules of humanitarian law and is
therefore prohibited. A similar view has been expressed with respect
to the effects of the principle of neutrality. Like the principles and
rules of humanitarian law, that principle has therefore been
considered by some to rule out the use of a weapon the effects of
which simply cannot be contained within the territories of the
contending States.
The Court observes that, in view of the unique characteristics of
nuclear weapons, to which the Court has referred above, the use of
such weapons in fact seems scarcely reconcilable with respect for the
requirements of the law applicable in armed conflict. It considers
nevertheless, that it does not have sufficient elements to enable it to
conclude with certainty that the use of nuclear weapons would
necessarily be at variance with the principles and rules of law
applicable in armed conflict in any circumstance. Furthermore, the
Court cannot lose sight of the fundamental right of every State to
survival, and thus its right to resort to self-defence, in accordance
with Article 51 of the Charter, when its survival is at stake. Nor can it
ignore the practice referred to as "policy of deterrence", to which an
appreciable section of the international community adhered for many
years.
Accordingly, in view of the present state of international law viewed
as a whole, as examined by the Court, and of the elements of fact at
its disposal, the Court is led to observe that it cannot reach a
definitive conclusion as to the legality or illegality of the use of
nuclear weapons by a State in an extreme circumstance of selfdefence, in which its very survival would be at stake.
Obligation to negotiate nuclear disarmament (paras. 98-103)
Given the eminently difficult issues that arise in applying the law on
the use of force and above all the law applicable in armed conflict to

In these circumstances, the Court appreciates the full importance of

the recognition by Article VI of the Treaty on the Non-Proliferation of
Nuclear Weapons of an obligation to negotiate in good faith a nuclear
disarmament. The legal import of that obligation goes beyond that of
a mere obligation of conduct; the obligation involved here is an
obligation to achieve a precise result - nuclear disarmament in all its
aspects - by adopting a particular course of conduct, namely, the
pursuit of negotiations on the matter in good faith. This twofold
obligation to pursue and to conclude negotiations formally concerns
the 182 States parties to the Treaty on the Non-Proliferation of
Nuclear Weapons, or, in other words, the vast majority of the
international community. Indeed, any realistic search for general and
complete disarmament, especially nuclear disarmament, necessitates
the co-operation of all States.
*
The Court finally emphasizes that its reply to the question put to it by
the General Assembly rests on the totality of the legal grounds set
forth by the Court above (paragraphs 20 to 103), each of which is to
be read in the light of the others. Some of these grounds are not
such as to form the object of formal conclusions in the final
paragraph of the Opinion; they nevertheless retain, in the view of the
Court, all their importance.

LOTUS CASE
A collision occurred on the high seas between a French vessel Lotus
and a Turkish vessel Boz-Kourt. The Boz-Kourt sank and killed
eight Turkish nationals on board the Turkish vessel. The 10 survivors
of the Boz-Kourt (including its captain) were taken to Turkey on
board the Lotus. In Turkey, the officer on watch of the Lotus
(Demons), and the captain of the Turkish ship were charged with
manslaughter. Demons, a French national, was sentenced to 80 days

of imprisonment and a fine. The French government protested,

demanding the release of Demons or the transfer of his case to the
French Courts. Turkey and France agreed to refer this dispute on the
jurisdiction to the Permanent Court of International Justice (PCIJ).
Questions before the Court:
Did Turkey violate international law when Turkish courts exercised
jurisdiction over a crime committed by a French national, outside
Turkey? If yes, should Turkey pay compensation to France?
The Courts Decision:
Turkey, by instituting criminal proceedings against Demons, did not
violate international law.
Relevant Findings of the Court:
Establishing Jurisdiction: Does Turkey need to support its assertion of
jurisdiction using an existing rule of international law or is the mere
absence
of
a
prohibition
preventing
the
exercise
of
jurisdiction enough?
The first principle of the Lotus case 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

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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)].

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.

Criminal Jurisdiction: Territorial Jurisdiction

Customary International Law
France alleged that the flag State of a vessel would have exclusive
jurisdiction over offences committed on board the ship in high seas.

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.

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