Lotus case
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This article is about the French steamer. For the schooner, see S.S.S. Lotus.
The Lotus case concerns a criminal trial which was the result of the August 02, 1926 collision
between S.S. Lotus, a French steamship (or steamer), and the S.S. Boz-Kourt, a Turkish steamer,
in a region just north of Mytilene. As a result of the accident, eight Turkish nationals aboard the
Boz-Kourt drowned when the vessel was torn apart by the Lotus.
Contents
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1 Background
2 Lotus principle
3 References
4 Resources
5 See also
[edit] Background
On September 07, 1927, the case was presented before the Permanent Court of International
Justice, the judicial branch of the League of Nations, the predecessor of the United Nations.
The issue at stake was Turkey's jurisdiction to try the French officer on watch duty at the time of
the collision. Since the collision occurred on the high seas, France claimed that only the state
whose flag the vessel flew had exclusive jurisdiction over the matter. France proffered case law,
through which it attempted to show at least state practice in support of its position. However,
those cases both involved ships that flew the flag of the flag state and were thus easily
distinguishable. The Court, therefore, rejected France's position stating that there was no rule to
that effect in international law.
[edit] Lotus principle
The Lotus principle or Lotus approach, usually considered a foundation of international law,
says that sovereign states may act in any way they wish so long as they do not contravene an
explicit prohibition. This principle – an outgrowth of the Lotus case – was later overruled by
article 11[1] of the 1958 High Seas Convention. The convention, held in Geneva, laid emphasis
on the fact that only the flag state or the state of which the alleged offender was a national had
jurisdiction over sailors regarding incidents occurring in high seas.
The principle has also been used in arguments[2] by the United States of America, opposing the
existence of the International Criminal Court (ICC).
[edit] References
1. ^ Convention of the High Seas (1958)
2. ^ US Opposition to the International Criminal Court
[edit] Resources
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The Case of The S.S. Lotus Document in PDF format includes information on Judgment.
The Case of The S.S. Lotus French version of document, interspersed with English
translations
[edit] See also

United Nations Convention on the Law of the Sea
Retrieved from "http://en.wikipedia.org/wiki/Lotus_case"
Categories: International law | Permanent Court of International Justice cases
INTRODUCTION
POWER, OBLIGATION, AND CUSTOMARY
INTERNATIONAL LAW
MICHAEL BYERS*
FOOTNOTES
A dwarf is as much a man as a giant is; a small Republic is no less a sovereign State than the most
powerful Kingdom.1
When Emmerich de Vattel wrote these words in 1758, he was expressing a basic tenet of
eighteenth century international law. Sovereign equality remains a central aspect of the
international legal system today, with Article 2(1) of the United Nations Charter stating: "[t]he
Organization is based on the principle of the sovereign equality of all its Members."2
The struggle to achieve and maintain equal rights for all is fundamental to the history of many
national legal systems.3 Although some individuals possess infinitely more wealth and influence
than others, legal equality matters as it provides the possibility of access to [*pg 82] legal
institutions, including law-making processes. Legal equality is likewise vital to the international
legal system composed of approximately 190 nation-states. Referred to as "sovereign equality"
in this context, legal equality in international law enables weaker states to enter into treaties with
powerful states with the expectation that the treaties will be upheld.4 Sovereign equality also
provides states with equal votes in many international organizations5 and ensures them the equal
benefit of essential privileges such as diplomatic immunity for their representatives abroad.6
But just as Bill Gates has more influence than most other Americans on the development and
application of U.S. law, there are limits to the concept of sovereign equality in international law.
Some of these limits are legally formalized: there are only five permanent, veto-holding
members of the U.N. Security Council, for example.7 Similarly, the votes of certain
economically powerful states are accorded greater weight than those of other member states of
the World Bank and International Monetary Fund.8 These formal differences are often the results
of disparities in negotiating power among the states that established these organizations. In most
treaty negotiations, weak states attach greater value to the stability offered by conventional
instruments than powerful states and are therefore often willing to make significant concessions
in order to secure a legal regime. And powerful states, with their greater resources and broader
range of activities and interests, are better able to link bargaining issues and negotiating arenas
strategically so as to offer incentives -- and disincentives -- across and among a wider range of
topics, thereby constraining the options of less powerful states in ways that are subtle yet often
extremely effective. In the Uruguay Round negotiations [*pg 83] leading to the creation of the
World Trade Organization, for example, the developed world obtained far-reaching concessions
on intellectual property and trade in services in return for a binding dispute settlement
mechanism and further progress -- and the promise of further negotiations -- on two other issue
areas of profound concern to the developing world: textiles and agriculture.9
Similar strategies are applied by states within international organizations when resolutions and
declarations having direct or potential legal effect are negotiated and adopted. The United States,
for example, used financial incentives (including the provision of aid, the lifting of trade
sanctions, and support both for World Bank loans and for increased aid flows from other states)
as well as promises to exclude certain states from international conferences and resume normal
diplomatic relations with others, in order to secure greater legitimacy for Operation Desert Storm
through the adoption of Security Council Resolution 678 in November 1990.10 A powerful state's
application of economic and political pressure in one situation can also give it a reputation for
throwing its weight around -- a reputation that may prove beneficial to it in later situations. For
example, it is well known that Yemen lost seventy million dollars in annual aid from the United
States because of its vote against Resolution 678.11 Accordingly, other developing states will
now likely think twice before voting against the United States in the Security Council.
Customary international law is traditionally considered to be comprised of two elements: state
practice and opinio juris, with opinio juris being a subjective feeling of legal obligation
regarding the practice in question.12 Since subjective feelings are difficult to identify, the
analysis of customary rules has almost always focused on state practice.13 The questions asked
include the following: what kinds of be- [*pg 84] havior count as state practice,14 how many
states need to participate in the practice,15 and over how long a period of time?16
If state practice is treated as the primary element of customary international law, it becomes
difficult to regard disparities of wealth and military power as irrelevant in the formation of
customary rules. In terms of their ability to engage in practice across a wide range of issues, and
thereby to influence the development of customary rules, the tiny island country of Tuvalu
(population 10,600) and the United States are patently unequal, even though both formally have
the same degree of access to the international legal system.
Charles de Visscher, observing that the "slow growth of international custom has been compared
to the gradual formation of a road across vacant land," wrote in 1953:
Among the users are always some who mark the soil more deeply with their footprints than others,
either because of their weight, which is to say their power in this world, or because their interests bring
them more frequently this way.17
Michael Reisman is another international lawyer who has recognized that inequality plays an
important role in the formation of customary international law. In 1987, he suggested that the
United States should shift the focus of its law-making efforts from treaties and international
organizations towards customary international law. This reorientation was advocated as the
United States, due to its greater wealth and military power, could better influence law-making in
an informal environment than in more formalized procedural domains such as the United Nations
and multilateral negotiating confer- [*pg 85] ences.18
There has long been a rich literature on customary international law,19 which has realized a
marked increase in recent years as interdisciplinary approaches between international law and
international relations develop,20 and as scholars within some countries -- particularly [*pg 86]
the United States -- become increasingly aware that customary international law may
automatically be part of national legal systems.21
With state practice remaining the focus of analysis, however, the second element of customary
international law is increasingly ignored. To the degree that opinio juris is actually discussed, it
is usually confined to the tight constraints of legal theory. Within these artificial limits the focus
is on whether opinio juris represents a kind of individualized consent22 or whether it precedes or
follows the associated state practice, thus constituting an articulation of legal intent,23 expression
of law-making desire,24 or mistaken belief.25
The question of whether the limits on sovereign equality that exist with respect to state practice
also pertain to opinio juris has received virtually no attention. In my own writing, I have
suggested -- albeit without examining the issue in great detail -- that opinio juris has traditionally
served two closely-related functions:
First, it was used to distinguish legally relevant from legally irrelevant State practice. Secondly, and
perhaps less obviously, it was used to control the abuse of power by States within the process of
customary international law. In short, the requirement of opinio juris meant that only some instances of
State practice counted for the purposes of the customary process, since a State had to believe that its
behaviour was already required by customary international law. This test controlled the abuse of power,
and promoted stability and determinacy, by excluding a great deal of State practice which might
otherwise have contributed to the development, maintenance or change of customary rules. It thus
fulfilled what would [*pg 87] appear to be an essential function within any developed society, that of
socialising the behaviour of society's members by imposing the framework of a legal system upon them,
of enabling them to think rationally about the future and not to focus on short-term calculations of
interest and risk.26
This analysis rests upon an optimistic view of the relationship between power and the second
element of customary international law. It reflects the influence of recent theoretical
developments -- most notably "sociological institutionalism" (now frequently referred to as
"constructivism") -- which explore how perspectives and understandings shared among different
actors make the world of international law and institutions differ fundamentally from the selfish,
mechanistic world described by traditional "realists."27
Drawing upon the work of regime theorists and institutionalists, I argued that some aspects of the
international legal system -- such as opinio juris -- have an entrenched specificity that makes
them at least somewhat resistant to short-term fluctuations of interest and power.28 Brigitte
Stern's article, reproduced in translation below, presents a less optimistic view. Stern argues that
opinio juris, though held by all states, is in fact a creation of powerful states that is imposed upon
the weak. This argument carries the insights of de Visscher and others to a new level and helps
make Stern's article one of the most important pieces ever written about customary international
law. Power is intrinsic to both elements of customary international law, which therefore needs to
be analyzed and understood on that basis.
Originally published in 1981, the relevance of Stern's article now extends even further due to the
subsequent literature developed at the intersection between international relations and
international law. By explaining how inequality affects opinio juris, Stern's analysis [*pg 88]
poses something of a challenge to constructivism, institutionalism, and similar theoretical
approaches. The article forces us to reconsider the degree to which power is restrained as a result
of communities, shared understandings, and international institutions -- and thus makes a major
contribution towards explaining the full impact of international politics on the structures and
content of international law.
FOOTNOTES
Copyright © 2001 by Michael Byers.
*
Associate Professor, Duke University School of Law. I am grateful to Brigitte Stern for making this an
"approved translation," Joseph Eckhardt (J.D./LL.M. 2002, Duke University) for his able research
assistance and Anne Denise (B.A. 1996, Cambridge University). Anne, who now works at Merrill
Lynch, not only provided essential assistance with the first draft of the translation, but opened my
eyes to the wealth of writing on international law in languages other than English.
1. EMMERICH DE VATTEL, LES DROIT DES GENS, OU PRINCIPES DE LA LOI NATURELLE, APPLIQUɓ ?LA
CONDUITE ET AUX AFFAIRES DES NATIONS ET SOUVERAINS ? 18, 7 (Charles Fenwick
trans., 1916).
2. U.N. Charter, art. 2(1) (visited Sept. 10, 2000) <http://www.un.org/aboutun/charter/index.html>.
3. Protection of equality in U.S. law is found in the fifth and fourteenth amendments of the
Constitution, which served as a foundation for twentieth century civil rights legislation. See MARY
ANN HARRELL, EQUAL JUSTICE UNDER LAW: THE SUPREME COURT IN AMERICAN LIFE (4th ed. 1982).
Analysis of equal rights in various countries can be found in scholarship on comparative
constitutional law. See, e.g., CONSTITUTIONAL PROTECTION OF EQUALITY (T. Koopmans ed., 1975);
VICKI JACKSON, COMPARATIVE CONSTITUTIONAL LAW (1999); MICHAEL VON LOTHAR, DER
ALLGEMEINE GLEICHHEITSSATZ ALS METHODENNORM KOMPARATIVER SYSTEME:
METHODENRECHTLICHE ANALYSE UND FORTENTWICKLUNG DER THEORIE DER "BEWEGLICHEN
SYSTEME" (1997); MARCEL PRELOT, INSTITUTIONS POLITIQUES ET DROIT CONSTITUTIONNEL (Jean
Boulouis ed., 11th ed. 1990).
4. Article 6 of the 1969 Vienna Convention on the Law of Treaties establishes that "[e]very State
possesses the capacity to conclude treaties," and Article 26 codifies the principle of pacta sunt
servanda: states parties are bound to perform their treaty obligations in good faith. Vienna
Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 U.N.T.S. 331, reprinted
in 8 I.L.M. 679.
5. See, e.g., U.N. CHARTER, supra note 2, in art. 2 (1) and art. 18 (1) ("Each member of the General
Assembly shall have one vote.").
6. See Vienna Convention on Diplomatic Relations, April 18, 1961, art. 29-31, 23 U.S.T. 3227, 500
U.N.T.S. 95; see also EILEEN DENZA, DIPLOMATIC LAW (1998).
7. See, e.g., U.N. CHARTER, supra note 2, art. 27(3).
8. See 1944 Articles of Agreement of the International Bank for Reconstruction and Development
(World Bank), art. 5(3)(a), 2 U.N.T.S. 39, 134, 606 U.N.T.S. 266 (visited Sept. 10, 2000)
<http://www.worldbank.org/html/extdr/backgrd/ibrd/arttoc.htm>; 1944 Articles of Agreement of
the International Monetary Fund, art. 12(5)(a) and (b), 726 U.N.T.S. 266 (visited Sept. 10, 2000)
<http://www.imf.org/external/pubs/ft/aa/index.htm>.
9. See generally JOHN H. JACKSON, THE WORLD TRADING SYSTEM: LAW AND POLICY OF
INTERNATIONAL ECONOMIC RELATIONS 305-17 (2d ed. 1997); TERENCE P. STEWART, THE GATT
URUGUAY ROUND: A NEGOTIATING HISTORY (1986-1992), at 2241 (Trade-Related Aspects of
Intellectual Property Rights) and 2335 (Services) (1993).
10. See Burns H. Weston, Security Council Resolution 678 and Persian Gulf Decision Making: Precarious
Legitimacy, 85 AM. J. INT'L L. 516, 523-524 (1991).
11. See Judith Miller, Mideast Tensions: Kuwaiti Envoy Says Baker Vowed 'No Concessions' to Iraqis, N.Y.
TIMES, Dec. 5, 1990, at A22.
12. See Lotus Case (France v. Turkey) 1927 P.C.I.J. (ser. A) No. 9, at 18, 28; Asylum Case (Colombia v.
Peru) 1950 I.C.J. 265, at 276-7; Right of Passage Case (Portugal v. India) 1960 I.C.J. 6, at 42-43; North
Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark / Federal Republic of Germany
v. Netherlands) 1969 I.C.J. 3, at 44, ? 77.
13. Peter Haggenmacher has convincingly argued that the International Court of Justice does not even
attempt to analyze opinio juris when evaluating the existence and content of customary rules. See
Peter Haggenacher, La doctrine des deux 鬩ments du droit coutumier dans la pratique de la cour
internationale, 90 REVUE GɎɒALE DE DROIT INTERNATIONAL PUBLIC 5 (1986).
14. See ANTHONY D'AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW (1971); Michael
Akehurst, Custom as a Source of International Law, 47 BRIT. Y.B. INT'L L. 1, 1-3 (1974-75); ANTHONY
D'AMATO, INTERNATIONAL LAW: PROCESS AND PROSPECT 124 (1987) (discussing the debate
between Michael Akehurst and Anthony D'Amato over which kinds of behavior count as state
practice).
15. See North Sea Continental Shelf Cases 1969 (Federal Republic of Germany v. Denmark / Federal
Republic of Germany v. Netherlands) I.C.J. 3, at 42, ? 73.
16. See South West Africa Cases (Second Phase) (Ethiopia v. South Africa / Liberia v. South Africa), 1966
I.C.J. 6, at 250, 291 (dissenting opinion of Judge Tanaka); North Sea Continental Shelf Cases 1969
(Federal Republic of Germany v. Denmark / Federal Republic of Germany v. Netherlands) I.C.J. 3, at
43, ? 74; MARK VILLIGER, CUSTOMARY INTERNATIONAL LAW AND TREATIES 4 (1997); Bin Cheng,
United Nations Resolutions on Outer Space: "Instant" International Customary Law?, 5 INDIAN J.
INT'L L. 23 (1965).
17. CHARLES DE VISSCHER, THEORY AND REALITY IN PUBLIC INTERNATIONAL LAW 147 (Percy Corbett
trans., 1957).
18. See Michael Reisman, The Cult of Custom in the Late 20th Century, 17 CAL. W. INT'L L.J. 133 (1987).
Other scholars who have considered briefly the role of power in the formation of customary
international law include Oscar Schachter, New Custom: Power, Opinio Juris and Contrary Practice, in
THEORY OF INTERNATIONAL LAW AT THE THRESHOLD OF THE 21ST CENTURY: ESSAYS IN HONOUR
OF KRZYSZTOF SKUBISZEWSKI 531 (Jerzy Makarczyk ed., 1996); SERGE SUR, RELATIONS
INTERNATIONALES 246-9 (1995).
19. Some of the more significant contributions include: Michael Akehurst, Custom as a Source of
International Law, 47 BRIT. Y.B. INT'L L. 1 (1974-75); Percy Corbett, The Consent of States and the
Sources of the Law of Nations, 6 BRIT. Y.B. INT'L L. 20 (1925); ANTHONY D'AMATO, THE CONCEPT OF
CUSTOM (1971); Ren魊ean Dupuy, Coutume sage et coutume sauvage, in MɌANGES OFFERTS
?CHARLES ROUSSEAU 75 (1974); Paul Guggenheim, Les deux 鬩ments de la coutume en droit
international, in 1 LA TECHNIQUE ET LES PRINCIPES DU DROIT PUBLIC: ɔUDES EN L'HONNEUR DE
GEORGES SCELLE 275 (1950); Peter Haggenacher, La doctrine des deux 鬩ments du droit
coutumier dans la pratique de la cour internationale, 90 REVUE GɎɒALE DE DROIT
INTERNATIONAL PUBLIC [R.G.D.I.P.] 5 (1986); Hans Kelsen, Th鯲ie du droit international
coutumier, REVUE INTERNATIONALE DE LA THɏRIE DU DROIT [R.I.T.D.] (new series) 253 (1939);
Lazare Kopelmanas, Custom as a Means of the Creation of International Law, 18 BRIT. Y.B. INT'L L.
127 (1937); Joseph Kunz, The Nature of Customary International Law, 47 AM. J. INT'L L. 662 (1953);
Vaughan Lowe, Do General Rules of International Law Exist? 9 REV. INT'L STUD. 207 (1983); Iain
MacGibbon, Customary International Law and Acquiescence, 33 BRIT. Y.B. INT'L L. 115 (1957); Myres
S. McDougal, The Hydrogen Bomb Tests and the International Law of the Sea, 49 AM. J. INT'L L. 356
(1955); Venkata Raman, Towards a General Theory of International Customary Law, in TOWARDS
WORLD ORDER AND HUMAN DIGNITY: ESSAYS IN HONOR OF MYRES S. MCDOUGAL 365 (Michael
Reisman & Burns Weston eds., 1976); Oscar Schachter, Entangled Treaty and Custom, in
INTERNATIONAL LAW AT A TIME OF PERPLEXITY: ESSAYS IN HONOUR OF SHABTAI ROSENNE 717
(Yoram Dinstein ed., 1989); SERGE SUR, LA COUTUME INTERNATIONAL (1990); HUGH THIRLWAY,
INTERNATIONAL CUSTOMARY LAW AND CODIFICATION (1972); KAROL WOLFKE, CUSTOM IN
PRESENT INTERNATIONAL LAW (2d ed. 1993); NANCY KONTOU, THE TERMINATION AND REVISION
OF TREATIES IN LIGHT OF NEW CUSTOMARY INTERNATIONAL LAW (1994); Rein M?on, The Interplay
of Objective and Subjective Elements in Customary International Law, in INTERNATIONAL LAW:
THEORY AND PRACTICE: ESSAYS IN HONOUR OF ERIC SUY 161 (Karel Wellens ed., 1998). See also
Rudolf Bernhardt, Customary International Law, in 1 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL
LAW 898 (Rudolf Bernhardt ed., 1992).
20. On bridges between international law and international relations, see generally Judith Goldstein et
al., Legalization and World Politics, 54 INT'L ORG. 385 (2000); THE ROLE OF LAW IN INTERNATIONAL
POLITICS (Michael Byers ed., 2000); Anne-Marie Slaughter, Andrew S. Tulumello and Stepan Wood,
International Law and International Relations Theory: Toward a New Generation of Interdisciplinary
Scholarship, 92 AM. J. INT'L L. 367 (1998). On interdisciplinary approaches to customary
international law, see FRIEDRICH KRATOCHWIL, RULES, NORMS, AND DECISIONS: ON THE
CONDITIONS OF PRACTICAL LEGAL REASONING IN INTERNATIONAL RELATIONS AND DOMESTIC
AFFAIRS 84-93 (1989); SERGE SUR, LA COUTUME INTERNATIONAL (1990); Harold Hongju Koh,
Contemporary Conceptions of Customary International Law: Remarks, 92 AM. SOC. OF INT'L L. PROC.
37 (1998); MICHAEL BYERS, CUSTOM, POWER AND THE POWER OF RULES (1999); Jack L. Goldsmith
& Eric A. Posner, A Theory of Customary International Law, 66 U. CHI. L. REV. 1113 (1999); Stephen
Toope, Emerging Patterns of Governance and International Law, in THE ROLE OF LAW IN
INTERNATIONAL POLITICS 91, (Michael Byers ed., 2000); Gerry Simpson, The Situation on the
International Legal Theory Front: The Power of Rules and the Rule of Power, 11 EUR. J. INT'L L. 439
(2000).
21. See, e.g., Philip Trimble, A Revisionist View of Customary International Law, 33 UCLA L. REV. 665
(1986); Curtis A. Bradley & Jack L. Goldsmith, Federal Courts and the Incorporation of International
Law, 111 HARV. L. REV. 2260 (1998); and the response from Harold Hongju Koh, Is International Law
Really State Law? 111 HARV. L. REV. 1824 (1998).
22. See, e.g., Olufemi Elias, The Nature of the Subjective Element in Customary International Law, 44
INT'L & COMP. L.Q. 501 (1995); I.M. Lobo de Souza, The Role of State Consent in the Customary
Process, 44 INT'L & COMP. L.Q. 521 (1995); Maurice Mendelson, The Subjective Element in
Customary International Law, 66 BRIT. Y.B. of INT'L L. 177 (1995).
23. See ANTHONY D'AMATO, THE CONCEPT OF CUSTOM 74-75 (1971).
24. See JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 238-45 (1980); James Crawford & Thomas
Viles, International Law on a Given Day, in V֌KERRECHT ZWISCHEN NORMATIVEM
ANSPRUCH UND POLITISCHER REALITĔ: FESTSCHRIFT F‫ ܒ‬KARL ZEMANEK 45 (1994).
25. See Peter Benson, Fran篩s G鮹's Doctrine of Customary Law, 20 CAN. Y.B. of INT'L L. 267, 276-7
(1982) (discussing FRANǏIS GɎY, MɔHODE D'INTERPRɔATION ET SOURCES EN DROIT
PRIVɠPOSITIF 367-71 (2nd. 1919)).
26. MICHAEL BYERS, CUSTOM, POWER AND THE POWER OF RULES 212 (1999).
27. For constructivist perspectives, see, for example, JOHN RUGGIE, CONSTRUCTING THE WORLD
POLITY: ESSAYS ON INTERNATIONAL INSTITUTIONALIZATION (1998); ALEXANDER WENDT, SOCIAL
THEORY oF INTERNATIONAL POLITICS (1999); Benedict Kingsbury, "Indigenous Peoples" in
International Law: A Constructivist Approach to the Asian Controversy, 92 AM. J. INT'L L. 414 (1998);
Benedict Kingsbury, The Concept of Compliance as a Function of Competing Conceptions of
International Law, 19 MICH. J. INT'L L. 345 (1998). For traditional realist perspectives, see, for
example, EDWARD CARR, THE TWENTY YEARS' CRISIS (2nd ed. 1946); HANS MORGENTHAU, POLITICS
AMONG NATIONS (2d ed. 1954); GEORGE F. KENNAN, AMERICAN DIPLOMACY (1984); KENNETH
WALTZ, THEORY OF INTERNATIONAL POLITICS (1979).
28. On regime theory and institutionalism, see ROBERT KEOHANE, INTERNATIONAL INSTITUTIONS AND
STATE POWER (1989); Stephen Krasner, Structural Causes and Regime Consequences: Regimes as
Intervening Variables, in STEPHEN KRASNER, INTERNATIONAL REGIMES 1 (1983); ORAN YOUNG,
INTERNATIONAL COOPERATION (1989).
Opinio juris sive necessitatis
From Wikipedia, the free encyclopedia
(Redirected from Opinio juris)
Jump to: navigation, search
Opinio juris sive necessitatis ("an opinion of law or necessity") or simply opinio juris' ("an
opinion of law") is the belief that an action was carried out because it was a legal obligation. This
is in contrast to an action being the result of different cognitive reaction, or behaviors that were
habitual to the individual. This term is frequently used in legal proceedings such as a defense for
a case.
Opinio juris is the subjective element of customary international law as it refers to beliefs. The
other element is state practice, which is more objective as it is readily discernible. To qualify as
state practice, the acts must be consistent and general international practice.
[edit] State applications
A situation where opinio juris would be feasible is a case concerning self-defense. A condition
must be met where the usage of force is limited to the situation at hand. The act of striking an
attacker may be done with legal justification, however legal territory limits the acceptability of
such a claim. Even in this case, the usage of force must be acceptable to the conditions of the
environment, the attacker, and the physical conditions of the people involved, as well as any
weapons or tools used.
[edit] International applications
In international law, opinio juris is the subjective element which is used to judge whether the
practice of a state is due to a belief that it is legally obliged to do a particular act. It can
sometimes be difficult to establish opinio juris, but where there is consistent practice over a
length of time, the need for opinio juris is lessened. Where there is more sporadic state practice,
the presence of opinio juris becomes more important. In addition, the existence of custom in
general need not be world-wide, but can also be restrained to the region. Customary international
law has been deemed a source of international law under Article 38(1)(b) of the Statute of the
International Court of Justice.
Retrieved from "http://en.wikipedia.org/wiki/Opinio_juris_sive_necessitatis"
Nicaragua v. United States
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Jump to: navigation, search
This article may require cleanup to meet Wikipedia's quality standards.
Please improve this article if you can. (March 2008)
The Republic of Nicaragua v. The United States of America[1] was a case heard in 1986 by the
International Court of Justice which ruled in favor of Nicaragua and against the United States. As
part of its judgment, the World Court awarded reparations to Nicaragua. The World Court found
that the United States had violated international law by supporting Contra guerrillas in their war
against the Nicaraguan government and by mining Nicaragua's harbors. The Court ruled in
Nicaragua's favor after the United States lost the argument that the ICJ lacked jurisdiction to hear
the case, and refused to participate. It later blocked enforcement making attempts at obtaining
compliance futile.[2]
The court found in its legal verdict that the US was "in breach of its obligations under customary
international law not to use force against another State," "not to intervene in its affairs," "not to
violate its sovereignty," "not to interrupt peaceful maritime commerce," and "in breach of its
obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between
the Parties signed at Managua on 21 January 1956."
The court had 16 final decisions which it voted upon. In Statement 9, the court stated that the US
encouraged human rights violations by the Contras by the manual entitled Operaciones
sicologicas en guerra de guerrillas. However, this did not make such acts attributable to the US.[3]
Contents
[hide]





1 Prior to the hearings
2 Arguments
o 2.1 Nicaragua
o 2.2 United States
3 Judgement
o 3.1 Findings
o 3.2 The ruling
o 3.3 Legal clarification and importance
o 3.4 How the judges voted
4 Third party interpretations
5 Certain witnesses against the US
o 5.1 First witness: Commander Luis Carrion
o 5.2 Second witness: Dr. David MacMichael
o
o
o
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



5.3 Third witness: Professor Michael Glennon
5.4 Fourth witness: Father Jean Loison
5.5 Fifth witness: William Hupper
6 UN Voting
7 See also
8 Notes
9 References
10 External links
[edit] Prior to the hearings
The United States had already submitted to the compulsory jurisdiction of the International Court
of Justice (ICJ) pursuant to the Declaration of President Harry S Truman of August 14, 1946.
However, in anticipation of the outcome of the Court case, in 1984 the United States deposited
with the Secretary-General of the United Nations a notification stating that the United States was
temporarily modifying the 1946 Declaration. The 1984 notification provided that the 1946
Declaration "shall not apply to disputes with any Central American State or arising out of or
related to events in Central America," and that the notification would "take effect immediately
and shall remain in force for two years." Some academics have noted that the modification of the
1946 Declaration by the President acting alone raises serious constitutional problems and that
some form of congressional concurrence was required. [4] Historian William Leogrande argues
that the U.S. decision to withdraw from the World Court jurisdiction "was of dubious legality."
"When the Senate ratified President Harry S. Truman's declaration accepting compulsory
jurisdiction before the court in 1946, it added a passage requiring six months advance notice
before the United States could temporarily suspend the court's jurisdiction. The Senate intended
to proscribe any suspension designed to avoid specific litigation- which is just what the State
Department had in mind in the Nicaraguan case. By acting without the requisite six month's
notice, the administration was violating a duly ratified treaty which constitutionally had the force
of domestic law." [5]
[edit] Arguments
[edit] Nicaragua
Nicaragua charged that
(a) That the United States, in recruiting, training, arming, equipping, financing, supplying
and otherwise encouraging, supporting, aiding, and directing military and paramilitary
actions in and against Nicaragua, had violated its treaty obligations to Nicaragua under:
Article 2 (4) of the United Nations Charter;
Articles 18 and 20 of the Charter of the Organization of American States;
Article 8 of the Convention on Rights and Duties of States;
Article I, Third, of the Convention concerning the Duties and Rights of States in the
Event of Civil Strife.
(b) That the United States had breached international law by
1. violating the sovereignty of Nicaragua by:
armed attacks against Nicaragua by air, land and sea;
incursions into Nicaraguan territorial waters;
aerial trespass into Nicaraguan airspace;
efforts by direct and indirect means to coerce and intimidate the Government of
Nicaragua.
2. using force and the threat of force against Nicaragua.
3. intervening in the internal affairs of Nicaragua.
4. infringing upon the freedom of the high seas and interrupting peaceful maritime
commerce.
5. killing, wounding and kidnapping citizens of Nicaragua.
Nicaragua furthermore demanded that all such actions cease and that the United States had an
obligation to pay reparations to the government for damage to their people, property, and
economy.
[edit] United States
The U.S. argued that its actions were "primarily for the benefit of El Salvador, and to help it to
respond to an alleged armed attack by Nicaragua, that the United States claims to be exercising a
right of collective self-defense, which it regards as a justification of its own conduct towards
Nicaragua. El Salvador, joined the US in their Declaration of Intervention which it submitted on
15 August 1984, where it alleged itself the victim of an armed attack by Nicaragua, and that it
had asked the United States to exercise for its benefit the right of collective self-defence."[1]
The CIA claimed that the purpose of the manual was to "moderate" activities already being done
by the Contras.[6]
The United States argued that the Court did not have jurisdiction, with U.S. ambassador to the
United Nations Jeane Kirkpatrick dismissing the Court as a "semi-legal, semi-juridical, semipolitical body, which nations sometimes accept and sometimes don't." [6]
It is noteworthy that the United States, the defaulting party, was the only Member of that put
forward arguments against the validity of the judgment of the Court arguing that it has passed a
decision that it `had neither the jurisdiction nor the competence to render'. Other Members who
sided with the United States in opposing Nicaragua's claims, did not challenge the Court's
findings either as to its jurisdiction, or on the substantive merits of the case.[7]
[edit] Judgement
The very long judgement first listed 291 points. Among them that the United States had been
involved in the "unlawful use of force". The alleged violations included attacks on Nicaraguan
facilities and naval vessels, the mining of Nicaraguan ports, the invasion of Nicaraguan air space,
and the training, arming, equipping, financing and supplying of forces (the "Contras") and
seeking to overthrow Nicaragua's Sandinista government. This was followed by the statements
that the judges voted on.[8]
[edit] Findings
The court found evidence for an arms flow between Nicaragua and to the insurgents in El
Salvador in 1979-81. However, there was not enough evidence to show that the Nicaraguan
government was imputable for this or that the US response was proportional. The court also
found established that certain transborder incursions into the territory of Guatemala and Costa
Rica, in 1982, 1983 and 1984, were imputable to the Government of Nicaragua. However,
neither Guatemala and Costa Rica made any request for intervention by the US and El Salvador
only in 1984, well after the US intervention started.[2]
"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 neither these incursions nor the alleged supply of arms may be relied on as
justifying the exercise of the right of collective self-defence."[9]
Regarding human rights violations by the Contras, "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 the contras, 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."
"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."[10]
The Court concluded that the United States, despite its objections, was subject to the Court's
jurisdiction. The Court had ruled on 26 November by 11 votes to one that it had jurisdiction in
the case on the basis of either Article 36 (i.e. compulsory jurisdiction) or the 1956 Treaty of
Friendship, Commerce and Navigation between the United States and Nicaragua. The Charter
provides that, in case of doubt, it is for the Court itself to decide whether it has jurisdiction, and
that each member of the United Nations undertakes to comply with the decision of the Court.
The Court also ruled by unanimity that the present case was admissible. [7] The United States
then announced that it had "decided not to participate in further proceedings in this case." About
a year after the Court's jurisdictional decision, the United States took the further, radical step of
withdrawing its consent to the Court's compulsory jurisdiction, ending its previous 40 year legal
commitment to binding international adjudication. The Declaration of acceptance of the general
compulsory jurisdiction of the International Court of Justice terminated after a 6-month notice of
termination delivered by the Secretary of State to the United Nations on October 7, 1985. [11]
Although the Court called on the United States to "cease and to refrain" from the unlawful use of
force against Nicaragua, and that the US was in "in breach of its obligation under customary
international law not to use force against another state" and ordered to pay reparations, the
United States refused to comply. [3] Compliance proved futile as the United States being a
permanent member of the Security Council blocked any enforcement mechanism attempted by
Nicaragua. [12] This is despite the fact that November 3, 1986 the United Nations General
Assembly voted on a non-binding resolution urging the US to comply. It was adopted by ninetyfour votes to three (El Salvador, Israel and the United States voting against).[4]
[edit] The ruling
On June 27, 1986, the Court found that:

Decides that in adjudicating the dispute brought before it by the Application filed by the
Republic of Nicaragua on 9 April 1984, the Court is required to apply the "multilateral
treaty reservation"contained in proviso (c) to the declaration of acceptance of jurisdiction
made under Article 36, paragraph 2, of the Statute of the Court by the Government of the
Untied States of America deposited on 26 August 1946;

Rejects the justification of collective self-defence maintained by the United States of
America in connection with the military and paramilitary activities in and against
Nicaragua the subject of this case;

Decides that the United States of America, by training, arming, equipping, financing and
supplying the contra forces or otherwise encouraging, supporting and aiding military and
paramilitary activities in and against Nicaragua, has acted, against the Republic of
Nicaragua, in breach of its obligation under customary international law not to intervene
in the affairs of another State;

Decides that the United States of America, by certain attacks on Nicaraguan territory in
1983-1984, namely attacks on Puerto Sandino on 13 September and 14 October 1983, an
attack on Corinto on 10 October 1983; an attack on Potosi Naval Base on 4/5 January
1984, an attack on San Juan del Sur on 7 March 1984; attacks on patrol boats at Puerto
Sandino on 28 and 30 March 1984; and an attack on San Juan del Norte on 9 April 1984;
and further by those acts of intervention referred to in subparagraph (3) hereof which
involve the use of force, has acted, against the Republic of Nicaragua, in breach of its
obligation under customary international law not to use force against another State;

Decides that the United States of America, by directing or authorizing over Rights of
Nicaraguan territory, and by the acts imputable to the United States referred to in
subparagraph (4) hereof, has acted, against the Republic of Nicaragua, in breach of its
obligation under customary international law not to violate the sovereignty of another
State;

Decides that, by laying mines in the internal or territorial waters of the Republic of
Nicaragua during the first months of 1984, the United States of America has acted,
against the Republic of Nicaragua, in breach of its obligations under customary
international law not to use force against another State, not to intervene in its affairs, not
to violate its sovereignty and not to interrupt peaceful maritime commerce;

Decides that, by the acts referred to in subparagraph (6) hereof the United States of
America has acted, against the Republic of Nicaragua, in breach of its obligations under
Article XIX of the Treaty of Friendship, Commerce and Navigation between the United
States of America and the Republic of Nicaragua signed at Managua on 21 January 1956;

Decides that the United States of America, by failing to make known the existence and
location of the mines laid by it, referred to in subparagraph (6) hereof, has acted in breach
of its obligations under customary international law in this respect;

Finds that the United States of America, by producing in 1983 a manual entitled
'Operaciones sicológicas en guerra de guerrillas', and disseminating it to contra forces,
has encouraged the commission by them of acts contrary to general principles of
humanitarian law; but does not find a basis for concluding that any such acts which may
have been committed are imputable to the United States of America as acts of the United
States of America;

Decides that the United States of America, by the attacks on Nicaraguan territory referred
to in subparagraph (4) hereof, and by declaring a general embargo on trade with
Nicaragua on 1 May 1985, has committed acts calculated to deprive of its object and
purpose the Treaty of Friendship, Commerce and Navigation between the Parties signed
at Managua on 21 January 1956;

Decides that the United States of America, by the attacks on Nicaraguan territory referred
to in subparagraph (4) hereof, and by declaring a general embargo on trade with
Nicaragua on 1 May 1985, has acted in breach of its obligations under Article XIX of the
Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua
on 21 January 1956;

Decides that the United States of America is under a duty immediately to cease and to
refrain from all such acts as may constitute breaches of the foregoing legal obligations;

Decides that the United States of America is under an obligation to make reparation to
the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of
obligations under customary international law enumerated above;

Decides that the United States of America is under an obligation to make reparation to
the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of the
Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua
on 21 January 1956;

Decides that the form and amount of such reparation, failing agreement between the
Parties, will be settled by the Court, and reserves for this purpose the subsequent
procedure in the case;

Recalls to both Parties their obligation to seek a solution to their disputes by peaceful
means in accordance with international law.[13]
[edit] Legal clarification and importance
The ruling did in many ways clarify issues surrounding prohibition of the use of force and the
right of self-defence. [14] Arming and training the Contra was found to be in breach with
principles of non-intervention and prohibition of use of force, as was laying mines in Nicaraguan
territorial waters.
Nicaragua's dealings with the armed opposition in El Salvador, although it might be considered a
breach with the principle of non-intervention and the prohibition of use of force, did not
constitute "an armed attack," which is the wording in article 51 justifying the right of selfdefence.
The Court considered also the United States claim to be acting in collective self-defence of El
Salvador and found the conditions for this not reached as El Salvador never requested the
assistance of the United States on the grounds of self-defence.
In regards to laying mines, "...the laying of mines in the waters of another State without any
warning or notification is not only an unlawful act but also a breach of the principles of
humanitarian law underlying the Hague Convention No. VIII of 1907."
[edit] How the judges voted
Votes of Judges - Nicaragua v. United States
Operative Paragraph
Judge
President Nagendra Singh
(India)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
Vice-President de Lacharrière
Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
(France)
Judge Ago (Italy)
Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
Judge Bedjaoui (Algeria)
Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
Judge Elias (Nigeria)
No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
Judge Lachs (Poland)
Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
Judge Mbaye (Senegal)
Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
Judge Ni (People's Republic of
China)
No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
Judge Oda (Japan)
Yes No No No No No Yes No No No No No No Yes Yes Yes
Judge Ruda (Argentina)
No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
Judge Schwebel (United States) Yes No No No No No No Yes Yes No No No No No No Yes
Judge Sette-Camara (Brazil)
No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
Judge Sir Robert Jennings
(United Kingdom)
Yes No No No No No Yes Yes Yes No No No No Yes Yes Yes
Judge ad hoc Colliard (France) Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes
[edit] Third party interpretations
Professor of International Law, Anthony D'Amato, writing for the American Journal of
International Law, Vol. 80, 1986, commented on this case, stating that "...law would collapse if
defendants could only be sued when they agreed to be sued, and the proper measurement of that
collapse would be not just the drastically diminished number of cases but also the necessary
restructuring of a vast system of legal transactions and relations predicated on the availability of
courts as a last resort. There would be talk of a return to the law of the jungle." The author also
notes that the case resulted in an unusual candor. A month after the announced withdrawal,
Secretary of State Shultz suggested, and President Reagan later confirmed in a press conference,
that the goal of U.S. policy was to overthrow the Sandinista Government of Nicaragua (see N.Y.
Times, Feb. 22, 1985, at A10, cols. 1, 3). Although this was what Nicaragua had alleged to be the
U.S. goal, while the case was actively pending, the United States could not concede that goal
without serious risk of undermining its litigating position.[5]
Noam Chomsky has argued that the United States refused to participate in the merits phase of the
proceedings, but the court had explicitly rejected the claim of "collective self-defense" as a
possible justification, but also rejected the charges against Nicaragua as groundless after
examining the evidence in official U.S. government documents. Moreover, the court noted that
El Salvador had not charged "armed attack" until August 1984, four months after Nicaragua had
brought its claim to the court. [6]
David Horowitz has argued that the Court has no jurisdiction over sovereign states unless they
themselves so agree, which the US did not since the Soviet Bloc states were outside its
jurisdiction but they still sent judges to the court.[15]
[edit] Certain witnesses against the US
Note that the court stated that the US encouraged human rights violations by the Contras by the
manual entitled Operaciones sicologicas en guerra de guerrillas. However, this did not make
such acts attributable to the US.[3]
[edit] First witness: Commander Luis Carrion
The first witness called by Nicaragua was Nicaragua's first Vice Minister of the Interior,
Commander Luis Carrion. Commander Carrion had overall responsibility for state security and
was in charge of all government operations in the "principal war zone". He was responsible for
monitoring United States involvement in military and paramilitary activities against Nicaragua,
directing Nicaragua's military and intelligence efforts against the contra guerrillas.
Commander Carrion began by explaining the condition of the contras prior to United States' aid
in December 1981. Commander Carrion stated that the contras consisted of insignificant bands
of poorly armed and poorly organized members of Somoza's National Guard, who carried out
uncoordinated border raids and rustled cattle (presumably for food).
In December 1981, the U.S. Congress authorized an initial appropriation of 19 million dollars to
finance paramilitary operations in Nicaragua and elsewhere in Central America. Because of this
aid, Commander Carrion stated that the contras began to become centralized and received both
training and weapons from the CIA. During 1982 the contra guerrillas engaged the Sandinista
armed forces in a series of hit and run border raids and carried out a number of sabotage
operations including:
1. the destruction of two key bridges in the northern part of Nicaragua, and
2. the planting of bombs in Nicaraguan civil aircraft in Mexico and in the baggage area of a
Nicaraguan port.
The United States Central Intelligence Agency, and Argentinean military officers financed by the
CIA, were engaged in the training of the contra forces. The guerrillas received both basic
infantry training as well as training in specialized sabotage and demolition for "special operation
groups".
The U.S. Congress apportioned new funds for the contras to the amount of $30 million at the end
of 1982. This made it possible for the contra forces to launch a military offensive against
Nicaragua. According to Commander Carrion, the offensive known as "C Plan" had the objective
of capturing the Nicaraguan border town of Jalapa in order to install a provisional government,
which could receive international recognition. This plan failed.
After the failure of the Jalapa offensive the contras changed their tactics from frontal assaults to
economic warfare against State farms, coffee plantations, grain storage centers, road junctions,
etc.
The CIA began to support the contras by setting up and coordinating a communications and
logistical system. The CIA supplied aircraft and the construction of airfields in the Honduran
border area next to Nicaragua. This allowed the contras to carry out deep penetration raids into
the more developed and populated areas of the Nicaraguan interior. U.S. Army engineers created
this airfield. The purpose of these deep penetration attacks upon economic targets was to weaken
the Nicaraguan economy, causing a shortages of goods.
As a part of its training program for the contras, the CIA prepared and distributed a manual
entitled Psychological Operations in Guerrilla Warfare. This manual included instructions in the
"use of implicit and explicit terror", and in the "selective use of violence for propaganda effects".
Commander Carrion explained that the manual was given to the Contras, "All of these terrorist
instructions have the main purpose of alienating the population from the Government through
creating a climate of terror and fear, so that nobody would dare support the Government". The
manual calls for the "neutralization" (i.e. assassination) of Sandinista local government officials,
judges, etc. for purposes of intimidation. It was openly admitted by the President Reagan in a
press conference that the manual had been prepared by a CIA contract employee.
After the United States Congress approved an additional $24 million aid to the contras in
December 1983, a new offensive was launched, named Plan Sierra. This offensive involved
approximately 7000 members of the contra forces. As in earlier attacks, the initial objective of
this offensive was to capture the border town of Jalapa to install a provisional government, which
the CIA informed the contras would be immediately recognized by the United States
Government. But this contra offensive was also repulsed by the Nicaraguan government forces.
In the beginning of 1984, the contras made a major effort to prevent the harvesting of the coffee
crop, which is one of Nicaragua's most important export products. Coffee plantations and state
farms where coffee is grown were attacked, vehicles were destroyed, and coffee farmers were
killed.
Commander Carrion testified that the ability of the contras to carry out military operations was
completely dependent upon United States funding, training and logistical support. Carrion stated
that the U.S. Government supplied the contras with uniforms, weapons, communications
equipment, intelligence, training, and coordination in using this material aid.
In September 1983, CIA operatives blew up Nicaragua's only oil pipeline, which was used to
transport oil from off-loading facilities to storage tanks on shore. The United States was also
directly involved in a large scale sabotage operation directed against Nicaragua's oil storage
facilities. This last attack was carried out by CIA contract employees termed by that organization
as "Unilaterally Controlled Latin Assets" (UCLAs). The CIA personnel were also directly
involved in a helicopter attack on a Nicaraguan army training camp. One of the helicopters was
shot down by Nicaraguan ground fire resulting in the death of two U.S. citizens.
Commander Carrion testified that the United States was involved in the mining of Nicaragua's
ports between February - April 1984. The mining operation was carried out by CIA ships
directing the operation from international waters, while the actual mining was carried out by CIA
employees on board speedboats operating inshore. After the mine-laying was completed the
speedboats returned to the mother vessel.[16][17]
Carrion stated that 3,886 people had been killed and 4,731 wounded in the four years since the
contras began their attacks. Carrion estimated property damage at $375 million.[18]
Commander Carrion stated if the United States stopped aid, support and training, this would
result in the end of the contras military activities within three months. Asked why he was so sure
of this, Commander Carrion answered, "Well, because the contras are an artificial force,
artificially set up by the United States, that exists only because it counts on United States
direction, on United States training, on United States assistance, on United States weapons, on
United States everything...Without that kind of support and direction the contras would simply
disband, disorganize, and thus lose their military capacity in a very short time".[16]
[edit] Second witness: Dr. David MacMichael
David MacMichael was an expert on counter-insurgency, guerrilla warfare, and Latin American
affairs, he was also a witness because he was closely involved with U.S. intelligence activities as
a contract employee from March 1981 - April 1983. MacMichael worked for Stanford Research
Institute, which was contracted by the U.S. Department of Defense. After this he worked two
years for the CIA as a "senior estimates officer", preparing the National Intelligence Estimate.
Dr. MacMichael's responsibility was centered upon Central America. He had top-secret
clearance. He was qualified and authorized to have access to all relevant U.S. intelligence
concerning Central America, including intelligence relating to alleged Nicaraguan support for,
and arms shipments to the anti-Government insurgents in El Salvador. He took part in high level
meetings of the Latin American affairs office of the CIA. Including a fall 1981 meeting, which
submitted the initial plan to set up a 1500 man covert force on the Nicaraguan border, shipping
arms from Nicaragua to the El Salvador insurgents. This plan was approved by President
Reagan.[19][18]
"The overall purpose (for the creation of the contras) was to weaken, even destabilize the
Nicaraguan Government and thus reduce the menace it allegedly posed to the United States'
interests in Central America..."
Contra paramilitary actions would "hopefully provoke cross-border attacks by Nicaraguan forces
and thus serve to demonstrate Nicaragua's aggressive nature and possibly call into play the
Organization of American States' provisions (regarding collective self-defense). It was hoped
that the Nicaraguan Government would clamp down on civil liberties within Nicaragua itself,
arresting its opposition, so demonstrating its allegedly inherent totalitarian nature and thus
increase domestic dissent within the country, and further that there would be reaction against
United States citizens, particularly against United States diplomatic personnel within Nicaragua
and thus to demonstrate the hostility of Nicaragua towards the United States".
In response to repeated questions as to whether there was any substantial evidence of the supply
of weapons to the guerrilla movement in El Salvador- either directly by the Nicaraguan
Government itself-or with the knowledge, approval or authorization of the Nicaraguan
Government of either non-official Nicaraguan sources, or by third country nationals inside or
outside Nicaragua, using Nicaraguan territory for this purpose, Dr. MacMichael answered that
there was no such evidence. In the opinion of the witness it would not have been possible for
Nicaragua to send arms to the insurgents in El Salvador in significant amounts (as alleged by the
U.S. Government) and over a prolonged period, without this being detected by the U.S.
intelligence network in the area...Counsel for Nicaragua, asked the witness several times whether
any detection of arms shipments by or through Nicaragua had taken place during the period he
was employed by the CIA. (MacMichael) answered repeatedly that there was no such evidence.
He also stated that after his employment had terminated, nothing had occurred that would cause
him to change his opinion. He termed the evidence that had been publicly disclosed by the U.S.
Government concerning Nicaraguan arms deliveries to the El Salvadoran insurgents as both
"scanty" and "unreliable". The witness did however state that based on evidence, which had been
gathered immediately prior to his employment with the CIA, evidence he had already actually
seen, there was substantial evidence that arms shipments were reaching El Salvador from
Nicaragua - with the probable involvement and complicity of the Nicaraguan Government through late 1980 up until the spring of 1981....But this evidence, which most importantly had
included actual seizures of weapons, which could be traced to Nicaragua, as well as documentary
evidence and other sources, had completely ceased by early 1981. Since then, no evidence
linking Nicaragua to shipments of arms in any substantial quantities had resumed coming in.[19]
[edit] Third witness: Professor Michael Glennon
Mr. Glennon testified about a fact-finding mission he had conducted in Nicaragua to investigate
alleged human rights violations committed by the contra guerrillas, sponsored by the
International Human Rights Law Group, and the Washington Office on Latin America. Glennon
conducted the investigation with Mr. Donald T. Fox who is a New York attorney and a member
of the International Commission of Jurists.
They traveled to Nicaragua, visiting the northern region where the majority of contra military
operations took place. The two lawyers interviewed around 36 northern frontier residents who
had direct experience with the contras. They also spoke with the U.S. Ambassador to Nicaragua,
and with senior officials of the U.S. Department of State in Washington after returning to the
United States.
No hearsay evidence was accepted. Professor Glennon stated that those interviewed were closely
questioned and their evidence was carefully cross-checked with available documentary evidence.
Doubtful "testimonies" were rejected, and the results were published in April l985. The
conclusions of the report were summarized by Glennon in Court:
"We found that there is substantial credible evidence that the contras were engaged with some
frequency in acts of terroristic violence directed at Nicaraguan civilians. These are individuals
who have no connection with the war effort-persons with no economic, political or military
significance. These are Individuals who are not caught in the cross-fire between Government and
contra forces, but rather individuals who are deliberately targeted by the contras for acts of
terror. "Terror" was used in the same sense as in recently enacted United States law, i.e. "an
activity that involves a violent act or an act dangerous to human life that Is a violation or the
criminal law, and appears to be intended to intimidate or coerce a civilian population, to
Influence the policy of a government by intimidation or coercion, or to affect the conduct of a
government by assassination or kidnapping".
In talks with U.S. State Department officials, at those in Managua U.S. Embassy, and with
officials in Washington, Professor Glennon had inquired whether the U.S. Government had ever
investigated human rights abuses by the contras. Professor Glennon testified that no such
investigation had ever been conducted, because in the words of a ranking State Department
official who he could not name, the U.S. Government maintained a policy of "intentional
ignorance" on the matter. State Department officials in Washington- had admitted to Glennon
that "it was clear that the level of atrocities was enormous". Those words "enormous" and
"atrocities" were the ranking State Department official's words.[20]
[edit] Fourth witness: Father Jean Loison
Note: Despite Father Jean Loison testimony, the court decided that the US encouraged human
rights violations by the Contras by the manual entitled Operaciones sicologicas en guerra de
guerrillas. However, this did not make such acts attributable to the US.[3]
Father Jean Loison was a French priest who worked as a nurse in a hospital in the northern
frontier region close to Honduras.
Asked whether the contras engaged in acts of violence directed against the civilian population,
Father Loison answered:
"Yes, I could give you several examples. Near Quilali, at about 30 kilometers east of Quilali,
there was a little village called El Coco. The contras arrived, they devastated it, they destroyed
and burned everything. They arrived in front of a little house and turned their machinegun fire on
it, without bothering to check if there were any people inside. Two children, who had taken
fright and hidden under a bed, were hit. I could say the same thing of a man and woman who
were hit, this was in the little co-operative of Sacadias Olivas. It was just the same. They too had
taken fright and got into bed. Unlike El Coco, the contras had just been on the attack, they had
encountered resistance and were now in flight. During their flight they went into a house, and
seeing that there were people there, they threw grenade. The man and the woman were killed and
one of the children was injured."
About contra kidnappings:
"I would say that kidnappings are one of the reasons why some of the peasants have formed
themselves into groups. Here (indicates a point on the map) is Quilali. Between Quilali and
Uilili, in this region to the north, there are hardly any peasants left of any age to bear arms,
because they have all been carried off"."
Father Loison described many examples of violence, mostly indiscriminate, directed at the
civilian population in the region where he resides. The picture that emerges from his testimony is
that the contras engage in brutal violation of minimum standards of humanity. He described
murders of unarmed civilians, including women and children, rape followed in many instances
by torture or murder, and indiscriminate terror designed to coerce the civilian population. His
testimony was similar to various reports including the International Human Rights Law Group,
Amnesty International, and others.[21]
[edit] Fifth witness: William Hupper
William Hupper was Nicaragua's Minister of Finance. He testified about Nicaragua economic
damage, including the loss of fuel as a result of the attack in the oil storage facilities at Corinto,
the damage to Nicaragua's commerce as a result of the mining of its ports, and other economic
damage.[22]
[edit] UN Voting
After five vetoes in the Security Council between 1982 and 1985 of resolutions concerning the
situation in Nicaragua[7], the United States made one final veto on 28 October 1986[23] (France,
Thailand, and United Kingdom abstaining) of a resolution calling for full and immediate
compliance with the Judgement.[24]
Nicaragua brought the matter to the U.N. Security Council, where the United States vetoed a
resolution (11 to 1, 3 abstentions) calling on all states to observe international law. Also turned to
the General Assembly, which passed a resolution 94 to 3 calling for compliance with the World
Court ruling. Two states, Israel and El Salvador, joined the United States in opposition. At that
time, El Salvador was receiving substantial funding and military advisement from the U.S.,
which was aiming to crush a Sandinista-like revolutionary movement by the FMLN. At the same
session, Nicaragua called upon the U.N. to send an independent fact-finding mission to the
border to secure international monitoring of the borders after a conflict there; the proposal was
rejected by Honduras with U.S. backing. A year later, on November 12, 1987, the General
Assembly again called for "full and immediate compliance" with the World Court decision. This
time only Israel joined the United States in opposing adherence to international law. [25][26]
[edit] See also


Iran-Contra Affair
Psychological Operations in Guerrilla Warfare
[edit] Notes
1. ^ Official name: Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.),
Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986.
2. ^ Morrison, Fred L. (January 1987). "Legal Issues in The Nicaragua Opinion". American Journal
of International Law 81: 160–166. doi:10.2307/2202146. "Appraisals of the ICJ's Decision.
Nicaragua vs United State (Merits)"
3. ^ a b c "Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America) Merits, Judgment, I.C.J. Reports 1986, p. 14.". International Court of Justice.
Retrieved on 2006-09-05.
"Summary of the Judgment of 27 June 1986". International Court of Justice. Retrieved on 200609-05.
4. ^ Michael J. Glennon (January 1985). "Nicaragua V. United States: Constitutionality of U.S.
Modification of ICJ Jurisdiction". American Journal of International Law 79: 8.
5. ^ Leogrande, William M. Our Own Backyard: The United States in Central America, 1977-1992,
University of North Carolina Press
6. ^ a b "International Law PSCI 0236 > International Law PSCI 0236 > Introduction".
middlebury.edu. Retrieved on 2006-09-05.
7. ^ a b "United States Decides Not to Participate in World Court Case Initiated by Nicaragua"
(January 1985). UN Chronicle 22 (January).
8. ^ "International Court of Justice Year 1986, 27 June 1986, General list No. 70, paragraphs 251,
252, 157, 158, 233.". International Court of Justice. Retrieved on 2006-07-30. Large PDF file
from the ICJ website
9. ^ ICJ Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America)
10. ^ ICJ Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America)
11. ^ Robert J. Delahunty, John Yoo (2006). "Executive Power V. International Law". Harvard
Journal of Law & Public Policy 30.
12. ^ Constanze Schulte (January 2004). COMPLIANCE WITH DECISIONS OF THE
INTERNATIONAL COURT OF JUSTICE 81, 282-285.
13. ^ ICJ Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America)
14. ^ UN Charter art.2(4) and art. 51, both considered to be customary international law
15. ^ David Horowitz. Chomsky and 9/11. Page 172-4 In The Anti-Chomsky Reader (2004) Peter
Collier and David Horowitz, editors. Encounter Books.
16. ^ a b Gill, Terry D. (1989). Litigation strategy at the International Court a case study of the
Nicaragua v United States dispute. Dordrecht. ISBN 0-7923-0332-6. p. 187-191
17. ^ "Nicaragua Mining: Self-defense or Terrorism?;Recovery: Is It Reagan's?;Ancestors -- FiftyThree Fossils Transcript #2229" (April 12 1984). The MacNeil/Lehrer NewsHour. Senator Barry
Goldwater said he was told in a letter from CIA Director William Casey that President Reagan
himself had approved the mining in writing. This was confirmed by Secretary Dam on the
MacNeil/Lehrer NewsHour: "Well, let me put it this way. All covert action programs are
approved by the President or they don't go forward."
18. ^ a b "World Court Hears Charges vs. U.S" (September 20 1985). Facts on File World News
Digest: 702 D1.
19. ^ a b Gill, p. 191-193
20. ^ Gill, p. 193-195.
21. ^ Gill, p. 195.
22. ^ Gill, p. 195-196.
23. ^ United Nations Security Council Verbatim Report meeting 2718 page 40 on 28 October 1986
(retrieved 2007-09-19)
24. ^ United Nations Security Council Document S-18428 on 28 October 1986 (retrieved 2007-0919)
25. ^ United Nations General Assembly Resolution 31 session 41 on 3 November 1986 (retrieved
2007-09-19)
26. ^ Noam Chomsky (1989). Necessary Illusions, Adjuncts of Government.
[edit] References










D'Amato, Anthony (1985). "Modifying U.S. Acceptance of the Compulsory Jurisdiction of the
World Court". American Journal of International Law 79: 385. doi:10.2307/2201709. [PDF file]
D'Amato, Anthony (1987). "Trashing Customary International Law". American Journal of
International Law 81 (1): 101–105. doi:10.2307/2202136. "Appraisals of the ICJ's Decision.
Nicaragua vs United State (Merits)" [PDF file]
D'Amato, Anthony (1986). "The United States Should Accept, By a New Declaration, The
General Compulsory Jurisdiction of The World Court". American Journal of International Law
80: 331. doi:10.2307/2201963. [PDF file]
Falk, Richard (1987). "The World Court's Achievement". American Journal of International Law
81 (1): 106. doi:10.2307/2202137. "Appraisals of the ICJ's Decision."
Franck, Thomas M. (1987). "Some Observations on the ICJ's Procedural and Substantive
Innovations". American Journal of International Law 81 (1): 116–121. doi:10.2307/2202139.
"Appraisals of the ICJ's Decision. Nicaragua vs United States (Merits)"
Gill, Terry D. (1989). Litigation strategy at the International Court a case study of the Nicaragua
v United States dispute. Dordrecht. ISBN 0-7923-0332-6.
Howard Friel; Richard A. Falk (2004). The Record of the Paper: How the New York Times
Misreports US Foreign Policy. Verso. ISBN 1-84467-019-8. p. 184.
(January 1, 2000) Case Concerning Military and Paramilitary Activities in and Against
Nicaragua (Nicaragua V. United States of America). United Nations Publications. ISBN 92-1070826-1.
Maier, Harold G. (January 1987). "Appraisals Of The ICJ's Decision: Nicaragua V. United States
(Merits)". The American Society of International Law 81: 77. 81 A.J.I.L. 77
Morrison, Fred L. (January 1987). "Legal Issues in The Nicaragua Opinion". American Journal of
International Law 81: 160–166. doi:10.2307/2202146. "Appraisals of the ICJ's Decision.
Nicaragua vs United State (Merits)"


Schachter, Oscar (April 1989). "Self-Defense and the Rule of Law". American Journal of
International Law 83: 259. doi:10.2307/2202738. 83 A.J.I.L. 259
Scheffer, David J. (July 11 1986). "U.S. Must Not Be the Outlaw on Nicaragua". Los Angeles
Times: 5.
[edit] External links

"Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United
States Of America) - overview". International Court of Justice. Retrieved on June 16,
2007.

"Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United
States Of America) - Summary of the Judgment of 27 June 1986". International Court of
Justice. Retrieved on June 16, 2007.
Retrieved from "http://en.wikipedia.org/wiki/Nicaragua_v._United_States"
Categories: Foreign relations of Nicaragua | Issues in international law | 1986 in law | United
States-Central American relations | International Court of Justice cases | History of Nicaragua |
Iran-Contra affair
Hidden categories: Cleanup from March 2008 | All pages needing cleanup
Is General International Law Customary
Law Only?
II. The Prevailing Theory
When the science of international law first appeared a few centuries ago it was evident that
general international law, at that time European international law, was customary law only.
There was not a single international treaty embracing all European states, or even one that was
intended to do so. It was also evident that treaties only created particular international rules.
Vattel wrote:
As soon as it is evident that a treaty binds only the contracting parties, conventional international law is
not general but particular law.3
In the main this theory prevails even now, and it follows as a necessary consequence that
international treaties create only particular norms. General international law is customary law
only. Conventional norms, even if all States are parties to a treaty, need the opinio juris of these
States to become norms of general international law. In other words, treaty provisions must be
converted into customary norms, in order for them to become norms of general international law.
This postulate is accepted by most international lawyers. For example, Baxter in his lectures at
the Hague Academy on `Treaties and Custom' did not use the term `general international law'.4
Brownlie speaks of `customary (or general) international law',5 which means that treaty law
cannot be general international law.6
It is regrettable but not unexpected that the International Court of Justice has also contributed to
the maintenance of this doctrine. In its otherwise historic judgment on the Nicaragua case the
Court stated:
Where two States agree to incorporate a particular rule in a treaty, their agreement suffices to make
that rule a legal one binding upon them; but in the field of customary international law, the shared view
of the parties as to the content or what they regarded as the rule is not enough. The Court must satisfy
itself that the existence of the rule in the opinio juris of States is confirmed by practice.7
Similar pronouncements can be found in other judgments of the Court.8
The prevailing theory actually leads to the conclusion that there are two separate and actually
independent branches or bodies of international law, customary law and conventional law.
General international law cannot be changed by international treaties and conventional
international law cannot be changed by custom. This is in flagrant contradiction with the presentday realities of international law.
Sources of international law
From Wikipedia, the free encyclopedia
Jump to: navigation, search
Sources of international law are the materials and processes out of which the rules and
principles regulating the international community are developed. They have been influenced by a
range of political and legal theories. During the 19th century, it was recognised by legal
positivists that a sovereign could limit its authority to act by consenting to an agreement
according to the principle pacta sunt servanda. This consensual view of international law was
reflected in the 1920 Statute of the Permanent Court of International Justice, and preserved in
Article 38(1) of the 1946 Statute of the International Court of Justice.[1]
Article 38(1) is generally recognised as a definitive statement of the sources of international law.
It requires the Court to apply, among other things, (a) international conventions "expressly
recognized by the contesting states", and (b) "international custom, as evidence of a general
practice accepted as law". To avoid the possibility of non liquet, sub-paragraph (c) added the
requirement that the general principles applied by the Court were those that had been "the
general principles of the law recognized by civilized nations". As it is states that by consent
determine the content of international law, sub-paragraph (d) acknowledges that the Court is
entitled to refer to "judicial decisions" and the most highly qualified juristic writings "as
subsidiary means for the determination of rules of law".
On the question of preference between sources of international law, rules established by treaty
will take preference if such an instrument exists. It is also argued however that international
treaties and international custom are sources of international law of equal validity; this is that
new custom may supersede older treaties and new treaties may override older custom. Certainly,
judicial decisions and juristic writings are regarded as auxiliary sources of international, whereas
it is unclear whether the general principles of law recognized by 'civilized nations' should be
recognized as a principal or auxiliary source of international law.
It may be argued that the practice of international organizations, most notably that of the United
Nations, as it appears in the resolutions of the Security Council and the General Assembly, are an
additional source of international law, even though it is not mentioned as such in Article 38(1) of
the 1946 Statute of the International Court of Justice. Article 38(1) is closely based on the
corresponding provision of the 1920 Statute of the Permanent Court of International Justice, thus
predating the role that international organizations have come to play in the international plane.
That is, the provision of Article 38(1) may be regarded as dated, and this can most vividly be
seen in the mention made to 'civilized nations', a mentioning that appears all the more quaint
after the decolonization process that took place in the early 1960s and the participation of nearly
all nations of the world in the United Nations.
It is also possible, though less common, for a treaty to be modified by practices arising between
the parties to that treaty. The other situation in which a rule would take precedence over a treaty
provision would be where the rule has the special status of being part of the jus cogens.
Contents
[hide]








1 International custom
o 1.1 State practice
o 1.2 Opinio juris
o 1.3 Jus cogens
2 Treaties as law
o 2.1 Treaties as custom
3 General principles of law
4 Judicial decisions and juristic writings
o 4.1 Judicial decisions
o 4.2 Juristic writings
5 Notes and references
6 References
7 Further reading
8 External links
[edit] International custom
Main article: Customary international law
Article 38.1(b) of the ICJ Statute refers to "international custom" as a source of international law,
specifically emphasizing the two requirements of state practice plus acceptance of the practice as
obligatory or opinio juris sive necessitatis (usually abbreviated as opinio juris).
Derived from the consistent practice of (originally) Western states accompanied by opinio juris
(the conviction of States that the consistent practice is required by a legal obligation), customary
international law is differentiated from acts of comity by the presence of opinio juris (although in
some instances, acts of comity have developed into customary international law, i.e. diplomatic
immunity). Treaties have gradually displaced much customary international law. This
development is similar to the replacement of customary or common law by codified law in
municipal legal settings, but customary international law continues to play a significant role in
international law.
[edit] State practice
When examining state practice to determine relevant rules of international law, it is necessary to
take into account every activity of the organs and officials of states that relate to that purpose.
There has been continuing debate over where a distinction should be drawn as to the weight that
should be attributed to what states do, rather than what they say represents the law. In its most
extreme form, this would involve rejecting what states say as practice and relegating it to the
status of evidence of opinio juris.[2] A more moderate version would evaluate what a state says
by reference to the occasion on which the statement was made.[3] It is only relatively powerful
countries with extensive international contacts and interests that have regular opportunities of
contributing by deed to the practice of international law. The principal means of contribution to
state practice for the majority of states will be at meetings of international organisations,
particularly the UN General Assembly, by voting and otherwise expressing their view on matters
under consideration. Moreover, there are circumstances in which what states say may be the only
evidence of their view as to what conduct is required in a particular situation.[4]
The notion of practice establishing a customary rule implies that the practice is followed
regularly, or that such state practice must be "common, consistent and concordant".[5] Given the
size of the international community, the practice does not have to encompass all states or be
completely uniform. There has to be a sufficient degree of participation, especially on the part of
states whose interests are likely be most affected,[6] and an absence of substantial dissent.[7]
There have been a number of occasions on which the ICJ has rejected claims that a customary
rule existed because of a lack of consistency in the practice brought to its attention.[8]
Within the context of a specific dispute, however, it is not necessary to establish the generality of
practice. A rule may apply if a state has accepted the rule as applicable to it individually, or
because the two states belong to a group of states between which the rule applies.[9]
A dissenting state is entitled to deny the opposability of a rule in question if it can demonstrate
its persistent objection to that rule,[10] either as a member of a regional group[11] or by virtue of its
membership of the international community.[12] It is not easy for a single state to maintain its
dissent. Also, rules of the jus cogens have a universal character and apply to all states,
irrespective of their wishes.[13]
Demand for rules that are responsive to increasingly rapid changes has led to the suggestion that
there can be, in appropriate circumstances, such a concept as "instant custom". Even within
traditional doctrine, the ICJ has recognised that passage of a short period of time is not
necessarily a bar to the formation of a new rule.[14] Because of this, the question is sometimes
raised as to whether the word "custom" is suitable to a process that could occur with great
rapidity.
[edit] Opinio juris
A wealth of state practice will usually carry with it a presumption that opinio juris exists. It
would then be for the state against which the rule is pleaded to rebut that presumption by
demonstrating the absence of opinio juris in the activities being relied upon by the other party.[15]
In cases where practice (of which evidence is given) comprises abstentions from acting,
consistency of conduct might not establish the existence of a rule of customary international law.
The fact that no nuclear weapons have been used since 1945, for example, does not render their
use illegal on the basis of a customary obligation because the necessary opinio juris was
lacking.[16]
Although the ICJ has frequently referred to opinio juris as being an equal footing with state
practice,[17] the role of the psychological element in the creation of customary law is uncertain.
[edit] Jus cogens
A peremptory norm or jus cogens (Latin for "compelling law" or "strong law") is a principle of
international law considered so fundamental that it overrides all other sources of international
law, including even the Charter of the United Nations. The principle of jus cogens is enshrined in
Article 53 of the Vienna Convention on the Law of Treaties:
For the purposes of the present Convention, a peremptory norm of general international
law is a norm accepted and recognised by the international community of States as a
whole as a norm from which no derogation is permitted and which can be modified only
by a subsequent norm of general international law having the same character.[1]
Rules of jus cogens generally require or forbid the state to do particular acts or respect certain
rights. However, some define criminal offences which the state must enforce against individuals.
Generally included on lists of such norms are prohibitions of such crimes and internationally
wrongful acts as waging aggressive war, war crimes, crimes against humanity, piracy, genocide,
slavery and torture.
The evidence supporting the emergence of a rule of jus cogens will be essentially similar to that
required to establish the creation of a new rule of customary international law. Indeed, jus cogens
could be thought of as a special principle of custom with a superadded opinio juris. The
European Court of Human Rights has stressed the international public policy aspect of the jus
cogens.
[edit] Treaties as law
Main article: Treaties
Treaties can play the role of contracts between two or more parties, such as an extradition treaty
or a defence pact. They can also be legislation to regulate a particular aspect of international
relations, or form the constitutions of international organisations. Whether or not all treaties can
be regarded as sources of law, they are sources of obligation for the parties to them. Article
38(1)(a), which uses the term "international conventions", concentrates upon treaties as a source
of contractual obligation but also acknowledges the possibility of a state expressly accepting the
obligations of a treaty to which it is not formally a party.
For a treaty-based rule to be a source of law, rather than simply a source of obligation, it must
either be capable of affecting non-parties or have consequences for parties more extensive than
those specifically imposed by the treaty itself.
[edit] Treaties as custom
Some treaties are the result of codifying existing customary law, such as laws governing the
global commons, and jus ad bellum. While the purpose is to establish a code of general
application, its effectiveness depends upon the number of states that ratify or accede to the
particular convention. Relatively few such instruments have a sufficient number of parties to be
regarded as international law in their own right. The most obvious examples are the 1949 Geneva
Conventions for the Protection of War Victims.
Most multi-lateral treaties fall short of achieving such a near universal degree of formal
acceptance, and are dependent upon their provisions being regarded as representing customary
international law and, by this indirect route, as binding upon non-parties. This outcome is
possible in a number of ways:


When the treaty rule reproduces an existing rule of customary law, the rule will be
clarified in terms of the treaty provision. A notable example is the Vienna Convention on
the Law of Treaties 1969, which was considered by the ICJ to be law even before it had
been brought into force.[18]
When a customary rule is in the process of development, its incorporation in a
multilateral treaty may have the effect of consolidating or crystallising the law in the
form of that rule. It is not always easy to identify when this occurs. Where the practice is
less developed, the treaty provision may not be enough to crystallise the rule as part of
customary international law.[19]


Even if the rule is new, the drafting of the treaty provision may be the impetus for its
adoption in the practice of states, and it is the subsequent acceptance of the rule by states
that renders it effective as part of customary law.[20] If a broad definition is adopted of
state practice, the making of a treaty would fall within the definition. Alternatively, it is
possible to regard the treaty as the final act of state practice required to establish the rule
in question, or as the necessary articulation of the rule to give it the opinio juris of
customary international law.
Convention-based "instant custom" has been identified by the ICJ on several occasions as
representing customary law without explanation of whether the provision in question was
supported by state practice. This has happened with respect to a number of provisions of
the Vienna Convention on the Law of Treaties 1969. If "instant custom" is valid as law, it
could deny to third parties the normal consequences of non-accession to the treaty.
[edit] General principles of law
The scope of general principles of law, to which Article 38(1) of the Statute of the ICJ refers, is
unclear and controversial but may include such legal principles that are common to a large
number of systems of municipal law. Given the limits of treaties or custom as sources of
international law, Article 38(1) may be looked upon as a directive to the Court to fill any gap in
the law and prevent a non liquet by reference to the general principles.
In earlier stages of the development of international law, rules were frequently drawn from
municipal law. In the 19th century, legal positivists rejected the idea that international law could
come from any source that did not involve state will or consent, but were prepared to allow for
the application of general principles of law, provided that they had in some way been accepted
by states as part of the legal order. Thus Article 38(1)(c), for example, speaks of general
principles "recognised" by states. An area that demonstrates the adoption of municipal
approaches is the law applied to the relationship between international officials and their
employing organisations,[21] although today the principles are regarded as established
international law.
The significance of general principles has undoubtedly been lessened by the increased intensity
of treaty and institutional relations between states. Nevertheless, the concepts of estoppel and
equity have been employed in the adjudication of international disputes. For example, a state that
has, by its conduct, encouraged another state to believe in the existence of a certain legal or
factual situation, and to rely upon that belief, may be estopped from asserting a contrary situation
in its dealings.[22] The principle of good faith was said by the ICJ to be "[o]ne of the basic
principles governing the creation and performance of legal obligations".[23] Similarly, there have
been frequent references to equity.[24] It is generally agreed that equity cannot be employed to
subvert legal rules (that is, operate contra legem).[25] This "equity as law" perception is
reinforced by references to equitable principles in the text of the United Nations Convention on
the Law of the Sea 1982, though this may be little more than an admission as to the existence,
and legitimation, of the discretion of the adjudicator.
However, the principles of estoppel and equity in the international context do not retain all the
connotations they do under common law. The reference to the principles as "general" signify
that, if rules were to be adapted from municipal law, they should be at a sufficient level of
generality to encompass similar rules existing in many municipal systems. Principles of
municipal law should be regarded as sources of inspiration rather than as sources of rules of
direct application.[26]
[edit] Judicial decisions and juristic writings
According to Article 38(1)(d) of its Statute, the ICJ is also to apply "judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as subsidiary means for
the determination of rules of law". It is difficult to tell what influence these materials have on the
development of the law. Pleadings in cases before the ICJ are often replete with references to
case law and to legal literature.
[edit] Judicial decisions
The decisions of international and municipal courts and the publications of academics can be
referred to, not as a source of law as such, but as a means of interpreting the law established in
other sources. In practice the International Court of Justice does not refer to domestic decisions
although it does invoke its previous case-law.
There is no rule of stare decisis in international law. The decision of the Court has no binding
force except between the parties and in respect of that particular case.[27] Nevertheless, often the
Court would refer to its past decisions and advisory opinions to support its explanation of a
present case.
The International Court of Justice will often consider the draft Articles on international law
published by the International Law Commission as authoritative statements on international law.
Often they will consider General Assembly resolutions as indicative of customary international
law.
[edit] Juristic writings
[edit] Notes and references
1. ^ Statute of the International Court of Justice.
2. ^ D'Amato, A., The Concept of Custom in International Law (Cornell University Press: Ithaca,
New York, 1971) at 88.
3. ^ Thirlway, H., International Customary Law and its Codification (A. W. Sijthoff: Leiden, 1972)
at 58.
4. ^ See Case Concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States of America) (Merits) [1986] ICJ Reports 14.
5. ^ Fisheries Jurisdiction Case (United Kingdom v Iceland) (Merits) [1974] ICJ Reports 3 at 50.
6. ^ North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal
Republic of Germany v Netherlands) [1969] ICJ Reports 4 at 42.
7. ^ Nicaragua case (Merits), note 4 at 98.
8. ^ Asylum Case (Colombia v Peru) [1950] ICJ Rep 266 at 277; Advisory Opinion on the Legality
of the Threat or Use by a State of Nuclear Weapons in Armed Conflict [1996] ICJ Reports 226.
9. ^ Case Concerning Right of Passage over Indian Territory (Portugal v India) (Merits) [1960] ICJ
Reports 6 at 39; Asylum case, note 8 at 276.
10. ^ North Sea Continental Shelf cases, note 6 at 229, 232 per Judge Lachs.
11. ^ Asylum case, note 8 at 277-8.
12. ^ Fisheries Case (United Kingdom v Norway) (Judgment) [1951] ICJ Reports 116, at 131.
13. ^ See North Sea Continental Shelf cases, note 6 at 229 per Judge Lachs.
14. ^ North Sea Continental Shelf cases, note 6 at 43.
15. ^ See North Sea Continental Shelf cases, note 6 at 44.
16. ^ Legality of Nuclear Weapons Advisory Opinion (GA), note 8.
17. ^ Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v Malta) (Judgment) [1985]
ICJ Reports 13 at 29; Legality of Nuclear Weapons Advisory Opinion (GA), note 8 at 16.
18. ^ Legal Consequences for States of the Continued Presence of South Africa in Namibia (SouthWest Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971]
ICJ Reports 16 at 47.
19. ^ North Sea Continental Shelf cases, note 6 at 38.
20. ^ North Sea Continental Shelf cases, note 6 at 41. See also Trial of the Major War Criminals
before the International Military Tribunal, Vol. 1, Judgment, 171 at 253-4.
21. ^ Amerasinghe, C., The Law of the International Civil Service, 2nd rev. edn, vol. 1 (Clarendon
Press: Oxford, 1994) at 151-8.
22. ^ See North Sea Continental Shelf cases, note 6 at 26; Flegenheimer Claim 25 ILR 91; Case
Concerning the Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Reports 6 at
32-3.
23. ^ Nuclear Tests Cases (Australia v France; New Zealand v France) [1974] ICJ Reports 253 at
268.
24. ^ River Meuse Case (Netherlands v Belgium) PCIJ Reports Series A/B No 70 76 at 76 per Judge
Hudson.
25. ^ Case Concerning the Frontier Dispute (Burkina Faso v Republic of Mali) (Judgment) [1986]
ICJ Reports 554 at 567-8; North Sea Continental Shelf cases, note 6 at 46-50.
26. ^ International Status of South-West Africa (Advisory Opinion) [1950] ICJ Reports 128 at 148.
27. ^ Article 59 of the ICJ Statute Statute of the International Court of Justice.
[edit] References
1. ^ 1155 UNTS 331.
[edit] Further reading


D'Amato, A., The Concept of Custom in International Law (Cornell University Press:
Ithaca, New York, 1971).
Thirlway, H., International Customary Law and its Codification (A. W. Sijthoff: Leiden,
1972).
[edit] External links

A Brief Primer on International Law With cases and commentary. Nathaniel Burney,
2007.



Official United Nations website
Official UN website on International Law
Official website of the International Court of Justice
Retrieved from "http://en.wikipedia.org/wiki/Sources_of_international_law"
Categories: International law
NORTH SEA CONTINENTAL SHELF CASES
Judgment of 20 February 1969
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 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.
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 nonconcurring 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 régime
of the continental shelf raised by the contentions of the Parties.
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.
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.
Non-Applicability of Article 6 of the 1958 Continental Shelf Convention (paras. 21-36 of the Judgment)
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 régime 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.
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 régime 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 régime, by reason of past
conduct, declarations, etc., which not only clearly and consistently evinced acceptance of that régime, but also had caused
Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice. Of this
there was no evidence. Accordingly, Article 6 of the Geneva Convention was not, as such, applicable to the delimitations
involved in the present proceedings.
The Equidistance Principle Not Inherent in the Basic Doctrine of the Continental Shelf (paras. 37-59 of the Judgment)
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 existed ipso 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 of equidistance was not an
inescapable a priori accompaniment of basic continental shelf doctrine.
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".
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 law. The cases cited were inconclusive and insufficient evidence of a settled practice.
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.
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 rules laid
down by the Court some indication was called for of the possible ways in which they might apply them.
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 régime of joint jurisdiction, user, or exploitation.
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.
INTERNATIONAL COURT OF JUSTICE
20 February 1969
NORTH SEA CONTINENTAL SHELF
CASES
(FEDERAL REPUBLIC OF GERMANY/DENMARK; FEDERAL REPUBLIC
OF GERMANY/NETHERLANDS)
[...]
Dissenting Opinion
PAGE 100
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SEPARATE OPINION OF JUDGE FOUAD
AMMOUN
[Translation]
1. The Legal Basis and the Definition of the Continental Shelf.
Since the Court was called upon, under the Special Agreements by the
notification of which it was seised, to state the principles and rules applicable
to the disputes between the Federal Republic of Germany and the Kingdoms
of Denmark and the Netherlands as to the delimitation of the areas of the
continental shelf which makes up the whole of the North Sea which
appertain to each of these countries, the Court had to establish in the first
place the actual concept of the continental shelf the delimitation of which
was in issue.
Even up to the time of the Conference on the Law of the Sea held at Geneva
in 1958, this concept was still subject to controversy1; and even last year, in
1968, in the course of the deliberations of the Ad Hoc Committee set up by
the United Nations to study the peaceful uses of the seabed and the ocean
floor, the limits, if not the definition, of the continental shelf provided
material for discussion by the representatives of States, who apparently did
not find the definition either sufficiently precise or sufficiently
comprehensive2. What is more, in the course of the hearings in the present
cases, the representative of the Federal Republic of Germany stated that "it
is not possible to speak of the continental shelf concept as an already fixed
or completed concept3". This observation, coming from one of the Parties, is
fraught with consequences, in particular for the time when the Parties, on
the basis of the Courts Judgment, come to exercise their rights over the area
of continental shelf which has been recognized as appertaining to each of
them. It will be sufficient in this connection to mention the differences of
opinion, to which I shall refer later, as to the extension of the sovereignty of
the coastal State over the continental shelf4 and as to its outer limits5.
[...]
PAGE 120
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[...]
22. The Federal Government's delegation announced, as is mentioned in the
minutes of the negotiations with the Netherlands Government dated 4
August 19642, that its Government "is seeking to bring about a conference
of States adjacent to the North Sea . . . in accordance with the first sentence
of paragraph 1 and the first sentence of paragraph 2 of Article 6 of the
Geneva Convention on the Continental Shelf" and that "the Netherlands
delegation has taken note of this intention". But this commitment, expressly
limited to two provisions of Article 6 concerning the advisability of preferably
having recourse to agreements for the delimitation of the continental shelf,
cannot be interpreted as a declaration referring to the whole of the
provisions of that Article. The letter of the text is categorically opposed to
such an interpretation. In particular, the provision concerning delimitation of
the continental shelf by application of the equidistance rule remains outside
this commitment.
An attempt has nonetheless been made to see in the treaties of 1 December
1.964 and 9 June 1965, between the Federal Republic of Germany on the
one side and the Kingdom of the Netherlands and the Kingdom of Denmark
on the other, an acquiescence in the application of the equidistance rule.
Acquiescence flowing from a unilateral legal act, or inferred from the
conduct or attitude of the person to whom it is to be opposed-either
by application of the concept of estoppel by conduct of AngloAmerican equity, or by virtue of the principle of western law that
allegans contraria non audiendus est, which has its parallel in
Muslim law3 - is numbered among the general principles of law
accepted by international law as
PAGE 121
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forming part of the law of nations, and obeying the rules of
.interpretation relating thereto. Thus when the acquiescence alleged
is tacit, as it would be in the present case inasmuch as it is inferred
from the conduct of the party against whom it is relied on, it
demands that the intention be ascertained by the manifestation of a
definite expression of will, free of ambiguity.
But the Federal Government formally declared in the joint minutes of 4
August 1964, referred to above, that "it must not be concluded from the
direction of the proposed partial boundary that the latter would have to be
continued in the same direction". It was also mentioned in the Protocol to
the German-Danish Treaty of 9 June 19651, that "as regards the further
course of the dividing line, each Contracting Party reserves its legal
standpoint".
Considering that the negotiations which culminated in the treaty of 1
December 1964, as well as those which culminated in the treaty of 9 June
1965 and the annexed Protocol of the same date, constitute an indivisible
whole, the Court cannot disassociate therefrom the declarations mentioned
above of 4 August 1964 and 9 June 1965 which brought each set of
negotiations to a close, and of which the meaning does not lend itself to any
equivocation, and is such as not to allow any doubt to subsist as to the
intention of the Federal Republic of Germany to exclude the application of
equidistance pure and simple to the delimitation beyond latitude 54 degrees
north. There is in fact no reason why, in the interpretation of unilateral
declarations, the settled jurisprudence of the Court should not be followed,
to the effect that the terms of the treaty should be interpreted "in their
natural and ordinary meaning2". It should also be remarked that the
German-Danish treaty allegedly includes only one equidistance point, the
terminal of the partial boundary3.
It would be no less incorrect to say, as a result of similar reasoning
concerning the true intention of the Federal Government, that the latter, by
its Proclamation of 20 January 1964 and the exposé des motifs of the law on
the continental shelf which it promulgated on 24 July of the same year,
"acknowledges the Geneva Convention as an expression of customary
international law", as the other Parties to the case claim4. Nor is this in fact
the case as regards the provisions of the 1958 Convention concerning the
equidistance line, which could naturally not acquire, by means of a
recognition which for the purposes of argument
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we will suppose to be efficacious, the status of a customary law rule which it
does not possess1.
Furthermore, what legal effect should be attributed to the signature by the
Federal Republic of Germany of the Protocol for Provisional Application of the
European Fisheries Convention of 9 March 1964, Article 7 of which provides
for recourse to the median line, every point of which is equidistant from the
coasts of each of the adjacent or opposite parties? The commitment of the
Federal Republic to the application of the equidistance line to fishing zones,
which it confirmed by the aide-mémoire of 16 March 1967, is not open to
argument. But does its scope, exceeding the object for which it was agreed,
extend to the continental shelf? The reply is more than doubtful, because of
the express opposition by the Federal Government to the application of the
equidistance line, in the documents which have successively been discussed,
dated 4 August 1964, 9 June 1965, 20 January 1964 and 24 July 1964. Such
seems to be the interpretation to be given to the intention of the Federal
Republic.
This being the case, the Court does not have to embark, in addition, on an
enquiry into the private thoughts of the Federal Republic, as the Netherlands
Government calls upon it to do, by asking in its Counter-Memorial why the
Federal Republic stressed, in the minutes of 4 August 1968, that the
boundary should be determined with due regard to the special circumstances
prevailing in the mouth of the Ems, if it did not have in mind the terms of
paragraph 2 of Article 6 of the Geneva Convention, i.e., the equidistance
rule.
It is not therefore possible to interpret the treaties of 1 December 1964 and
9 June 1965, between the Federal Republic on the one side, and the
Netherlands and Denmark on the other, in the light of the minutes of 4
August 1964 and the Protocol of 9 June 1965, nor the declaration of the
Federal Government of 20 January 1964 and the exposé des motifs of the
law of 24 July of the same year, as an acquiescence in the application of the
equidistance line as contemplated in the Convention of 29 April 1958 on the
Continental Shelf.
[...]
Footnotes
Print
1) See statements to the Conference made by the representatives of France,
Greece, and the Federal Republic of Germany (Official Records, Vol. VI, p. 1
and pp. 5-7).
2) Report of the Ad Hoc Committee to the General Assembly of the United
Nations, 1968.
3) Address of 5 November 1968.
4) Infra, para. 17.
5) Infra, para. 7.
2) Memorial, Annex 4.
3) Majallat EI Ahkam, Art. 100.
1) Memorial, Annex 7.
2) Advisory Opinion of 28 May 1948 an Admission of a State to Membership
in the United Nations; Advisory Opinion of 3 March 1950 on the Competence
of the General Assembly for the Admission of a State to the United Nations;
Judgment in the Asylum case of 20 November 1950; Advisory Opinion of 8
June 1960 on the Constitution of the Maritime Safety Committee.
3) Reply, para. 29.
4) Counter-Memorial of the Danish Government, para. 24 and CounterMemorial of the Netherlands Government, para. 25.
1) Infra, paras. 24-30.
Hierarchy in International Law: A Sketch
Martti Koskenniemi1
Full text available: PDF format *
Geometry is the archetype of modern mind. The grid is its ruling trope ... Taxonomy,
classification, inventory, catalogue and statistics are paramount strategies of modern practice.
Modern mastery is the power to divide, classify and allocate - in thought, in practice, in the
practice of thought and in the thought of practice. Paradoxically, it is for this reason that
ambivalence is the main affliction of modernity and the most worrying of its concerns.2
Legal reason is a hierarchical form of reason, establishing relationships of inferiority and
superiority between units and levels of legal discourse.3 Sometimes law's hierarchical character
is elaborated as an essential aspect thereof. Classical and modern naturalisms, for instance, often
conceptualize the law in terms of systemic derivations that assume the existence of relationships
of entailment between normative units and levels. St Thomas Aquinas posits a many-layered
structure of behavioural norms deriving from other norms, existing at progressively higher
hierarchical levels.4 The naturalism of an argument in this respect (i.e., in respect of superior
norms), however, is not dependent on its being an explicit part of naturalist theory. The concept
of `fundamental', used in human rights law, as well as the ideas of jus cogens or imperative
norms and rules valid in an erga omnes way each presuppose relationships of normative
hierarchy that implicate some form of moral naturalism.5
Law's hierarchical character is by no means, however, only a naturalist credo. It is shared equally
by its two main contestants, formalism and the social concept of law. The best-known example
of the former is, of course, Hans Kelsen's Pure Theory of Law. For Kelsen, what is specific to
legal norms is that they enjoy a `validity' (in contrast to moral goodness or sociological
effectiveness), which they receive by delegation from norms assumed to exist (or to be valid) at
hierarchically higher levels. These latter norms, again, receive their validity in a similar way
from norms at even higher levels ... and so on until we reach the basic norm whose validity can
no longer be derived from normative delegation, but is a transcendental (or perhaps cultural)
presupposition that must be made in order for what we know of the validity of other legal norms
to be true.6
Social concepts of law employ less articulate conceptions of hierarchy.7 They build upon a
priority of a sociological (often economic, but equally psychological or biological) base to a
normative (legal, moral, institutional) superstructure. A basic level, often called `reality' (or the
`will of the sovereign' or `basic social needs'), is installed in a hierarchically controlling position
vis-à-vis other, ephemeral aspects, such as law. Frequently, the relationship is portrayed in an
instrumental way. The determining base has recourse to the superstructural element in order to
better fulfil its internal dynamism. If turning Hegelian hierarchies on their head was the Marxian
battle-call for social revolution, the same turn and the same hierarchy is used by neoliberal
politics to buttress the foundational position of the market for social reconstruction. The
language of `levels', `reflexions' and `determination' betrays a rigorously hierarchical structure of
thought behind the social conception.
Whatever difference there is between naturalism, formalism and realism, each portrays law in a
hierarchical light. While the systemic aspects of hierarchy are highly elaborated in formalism,
but less so in naturalism or realism, each understands the law as a working out, or a making
express, of normative superior/inferior relations, conceptualized in terms of what is good (right)
and what is bad (wrong), what is valid and what is not, or what works and what does not.8
***
In this paper I shall draw a rapid sketch of the role of hierarchy in international legal thought and
practice. My argument is developed in three parts. The first part sets out a (non-exhaustive)
typology of hierarchies employed by jurists when dealing with international law topics. The
second part presents a (deconstructive) challenge to the typology and the modes of juristic
discourse operating it by arguing that each superior/inferior relationship can always be reversed
to produce its contrary by the use of impeccable legal argument. The third part looks beyond
deconstruction and outlines a way of thinking about international law that respects the principle
of reversibility but sees law as nonetheless a meaningful social practice.
One caveat is in order. The following presentation is a violent schematization. Within the
confines of this paper, it is not possible to deal with the very large number of argumentative
strategies used by lawyers to constantly challenge and reestablish threatened hierarchies, deal
with hard or boundary cases in innovative ways and break the rules of the game so as to ensure
its continued, subtle success. Also, it may be possible to outline many more modes, theories, or
argumentative and hierarchical structures than I have been able to canvas. The scheme has no
pretension of being a grand theory - not even `the' postmodern theory - of international law. I
have simply tried to provide a scaffolding, as it were, or a summary, of certain critiques that have
been presented and responses given in an attempt to `reconceive' or `reimagine' international law
since neither the ideal of a stable and structured legal reason nor the prevalent intuitionist
pragmatism seem able to reflect upon themselves without embarrassment.
I
Hierarchical relationships are employed in each of the three modes of juristic discourse,
distinguished from the more concrete towards the more abstract as the modes of control, exegesis
and philosophy.
The mode of control is directed at behaviour, seeking to describe it by reference to a binary
normative code of `lawful'/'unlawful' in all its innumerable transformations (right/duty;
conformity/violation; permitted/prohibited).9 The mode of control appears in at least three
different contexts of juristic practice.
In dispute-settlement, parties present contrasting and normally incompatible theses about
whether a particular behaviour should be seen as `permitted' or `prohibited'. It is the judge's
function to fix the place of the contested behaviour within the relation. Apart from a substantive
qualification, dispute-settlement always also involves the reaffirmation of the hierarchical
position of the judge, or the third party vis-à-vis the litigants, or public power vis-à-vis political
passion.
In diplomatic discourse as well, contestants seek to qualify behaviour in binary terms. However,
unlike in dispute-settlement, no authoritative resolution need necessarily be forthcoming. On the
contrary, diplomatic discourse often leaves the final determination suspended and instead moves
for a procedural reconciliation. Whether through agreement or procedural displacement, the
process involves a re-entrenchment of the authority of the disputants over the subject-matter, or
sovereignty over law.
Legislative discourse seeks to control future behaviour by producing generic statements about
the lawfulness (illegality) of particular types of behaviour. Ideal hierarchies (good/bad) inform
legislators' moral beliefs and institutional objectives. They also provide the basis from which
legislative hierarchies are inferred, which in turn appear as more or less successful reproductions
of the former in terms of legal permissions or prohibitions, law over sovereignty.
The mode of control is directed towards the qualification of social behaviour. Two types of
hierarchy are implicated. One is a hierarchy between forms of behaviour, the other is a hierarchy
of controlling authorities. The two hierarchies are ambiguously linked. On the one hand,
controlling authority is itself assumed to be controlled by requirements of substantive legality; on
the other hand, substantive legality is derived from controlling authority. The relationship
between the two has been a perpetual puzzle within the mode of control: does law defer to
authority or vice versa?
Hierarchical thought is not exclusively directed at behaviour but equally at the law itself.
Employing the mode of legal exegesis, lawyers grapple with problems of the content of the law
and its systematization.10 The outcome of exegesis is not the qualification of particular behaviour
but the abstract elucidation of what norms say and how they are linked into systemic wholes. In
interpretation, exegesis seeks to establish the better of two contested meanings of legal norms as
linguistic (for example, treaty text) or behavioural units (for instance, customary behaviour).
Systematization aims to make explicit the origin and relationships of norms so as to answer
questions about normative authority and to solve problems of normative conflict.11 International
law exegesis breaks down into two doctrines that have their own problematique.
Sources doctrine grapples with the origin and binding force of international norms. It deals with
treaties, customs and general principles of law, attempting to link ambiguous or contested
meanings to something outside those sources themselves, most frequently to ideas about party
consent and international justice, so as to resolve their meaning.
Sovereignty doctrine grapples with the opposition between effectiveness and legitimacy. It deals
with sovereign rights, competence of international and national bodies, jurisdiction, territory and
immunity, and hopes to justify a contested allocation of power either by reference to sociological
realities or normative ideas about them.
Sources and sovereignty constitute opposing openings into the legal substance. Although they
seem initially incompatible (law/power), exegetic manoeuvres constantly reduce them into each
other. From the perspective of sources doctrine, `sovereignty' has no independent normative
sense but is just a pale shadow of results received within it: jurisdiction (for example) is what
treaties, customs or general principles say it is. From the perspective of sovereignty doctrines,
again, the meaning of legal sources is merely to describe whatever sovereignty, in particular
relationships, means and what sovereigns have decided. This structure provides a perpetual
movement for exegesis, while ensuring that its horizon is never lifted from what it is that can be
seen from its two alternative openings: a uniform and stable `law' and a uniform and stable
`sovereignty'.
Finally, the mode of philosophy poses directly the question of the nature and possibility as well
as the limits of the knowledge of the law. The mode of philosophy is expressed normally in
terms of various theories that are often borrowed from outside the legal discipline and seeks to
grapple with the ontological and epistemological issues of legal control and exegesis.
Theories of the nature of law seek to describe the law either in terms of social processes or in
terms of normative standards or, briefly, `facts' and `ideas'. They appear not only as grand
theories but as implications of the methodological or historical accounts of international law's
growth as a social practice and a scientific discipline. They employ distinctions such as
positivism/naturalism; formalism/realism; Western/Third World approaches.
Theories of the limits of law seek to establish the relationship between law and neighbouring
fields of discourse, such as politics, history, diplomacy, literature, and the corresponding
academic factions of sociology, political theory, anthropology. The relevant hierarchies are
constituted from arguments about whether law is prior to or derived from such disciplines.
Theories about nature and limits are also interconnected. If law indeed seems like a matter of
behavioural regularities, then sociology becomes its foundational discipline; if critique is what
we wish to do, then law can only exist as a political Utopia.
The three modes are not independent from each other but normally set themselves again in
hierarchical relationships. For example, a practitioner or a diplomat might consider control as
prior and exegesis and (a fortiori) philosophy as secondary and (if at all necessary) perhaps in an
instrumental relationship to it. A university professor might believe exegesis to be the superior
mode; control would then become its derivation and philosophy its auxiliary. A legal theorist
might view both exegesis and control as inferences (of first and second degree) from resolutions
attained within the mode of philosophy. And so on.