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SOURCES
OF
INTERNATIONAL
LAW
INTRODUCTION
 The “sources” of International Law are always confused with the “causes” or “factors”
which influence the development of International law.
 Oppenheim remarks the difference between the two by an analogy of a spring and
a well:
“The source of spring is to be traced to the spot on the ground wherefrom the stream
of water rises naturally. It is common knowledge that the source of the spring by
which we understand as the spot on the ground wherefrom the stream water gushes
cannot be equated with the cause for the existence of the stream of water”
The rules of international law do not arise from a spot on the ground as water does,
but from facts in the historical development of community. Source of law is, therefore,
the name for a historical fact out of which the rules of conduct come into existence.
 The sources of international law is two fold:
EXPRESS CONSENT- ARISES BY STATES CONCLUDING
TREATIES OR CONVENTIONS BY STIPULATING RULES
TACIT CONSENT- WHICH GIVES RISE TO INTERNATIONAL
CUSTOMARY LAW BY STATES ADHERING TO CERTAIN
RULES OF INTERNATIONAL CONDUCT WITHOUT ANY
FORMAL DECLARATION
SOURCES UNDER ICJ STATUTE
 Article 38 (1) of the ICJ’s statute identifies three sources of
international law:
 treaties, conventions
 judicial decisions and
 custom,
 general principles.
 Because the system of international law is horizontal and
decentralized, the creation of international laws is inevitably
more complicated than the creation of laws in domestic
systems.
Express
Tacit
HORIZONTAL AND
DECENTRALISED SYSTEM
VERTICALAND
CENTRALISEDSYSTEM
ARTICLE-38, ICJ
1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.
SOURCES
FORMAL
WILL OF
STATE
WILL OF
PEOPLE
JUDICIAL
DECISIONS
INFORMAL/
MATERIAL
LEGAL
LEGISLATION TREATY CUSTOM PRECEDENTS
HISTORICAL
LOCAL
CUSTOM
RELIGIOUS
BELIEF
OPINION
OF JURISTS
LAW
DERIVES
ITS
MATTER
LAW
DERIVES
ITS
VALIDITY
SOURCES
BY ICJ
STATUTE
CUSTOM TREATY &
CONVENTIONS
GENERAL
PRINCIPLES
OF LAW
JUDICIAL
DECISIONS &
JURISTIC
WRITINGS
CUSTOMARY INTERNATIONAL LAW
 Article 38 (1) of the Statute of the International Court of
Justice (ICJ) is considered as an authoritative statement on
sources of international law.
 The ICJ is requested to form its opinion based on customary
international law evidenced by “general practice accepted as
law”.
 This sets out the two essential components necessary to
form customary international law, which the Court
interpreted as
1. State practice and
2. opinio juris.
ELEMENTS OF CUSTOMARY INTERNATIONAL LAW
Article-38(1)(b)-
Customary
International Law
General/State
Practice
(Objective
element)
Consistent/
Uniformity
Generality
Duration
As accepted as
law
(Subjective
element)
Opinio juris
(Obliged to act)
OBJECTIVE ELEMENT
 The existence of State practice.
 In other words, the actions or
omissions by the State must support
the custom; and
 widespread and representative
participation, including States whose
interests were specially affected (i.e.
generality); and
 virtually uniform practice (i.e.
consistent and uniform usage)
undertaken in a manner that
demonstrates;
 Duration
SUBJECTIVE ELEMENT
 Acceptance as law.
 In other words, States when
performing a custom must do
so because they feel that
they are legally bound to
perform the custom. We call
this opinio juris.
NORTH SEA CONTINENTAL SHELF CASE
(GERMANY VS DENMARK AND NETHERLANDS)
• Facts - Netherlands and Denmark had drawn partial
boundary lines based on the equidistance principle
(A-B and C-D).
• An agreement on further prolongation of the
boundary proved difficult because Denmark and
Netherlands wanted this prolongation to take place
based on the equidistance principle (B-E and D-E)
where as Germany was of the view that, together,
these two boundaries would produce an inequitable
result for her.
• Germany stated that due to its concave coastline,
such a line would result in her loosing out on her
share of the continental shelf based on
proportionality to the length of its North Sea
coastline.
Denmark
Germany
 Issue - Is Germany under a legal obligation to accept
the equidistance-special circumstances principle,
contained in Article 6 of the Geneva Convention on the
Continental Shelf of 1958, either as a customary
international law rule or on the basis of the Geneva
Convention?
 The Court had to decide the principles and rules of
international law applicable to this delimitation. In
so, the Court had to decide if the principles espoused
the parties were binding on the parties either through
treaty law or customary international law.
 Decision - The use of the equidistance method had not
crystallized into customary law and the method was
obligatory for the delimitation of the areas in the North
Sea related to the present proceedings.
Relevant Finding - In the North Sea Continental Shelf Cases, the ICJ
held that in order to argue that a customary rule has emerged one
needed to prove:
(1) The objective element (State practice).
In other words:
a. widespread and representative participation, including States
whose interests were specially affected (i.e. generality); and
b. virtually uniform practice (i.e. consistent and uniform usage)
undertaken in a manner that demonstrates;
(2) a general recognition of the rule of law or legal obligation
(i.e. opinio juris).
In the North Sea Continental Shelf Cases the ICJ held that the passage
of a considerable period of time was unnecessary (i.e. duration) to
form a customary law.
NICARGUA VS USA CASE
• Facts - In July 1979, the Government of President
Somoza was replaced by a government installed
by Frente Sandinista de
Liberacion Nacional (FSLN).
• The US – initially supportive of the new
government – changed its attitude when,
according to the United States, it found that
Nicaragua was providing logistical support and
weapons to guerrillas in El Salvador.
• In April 1981 the United States stopped its aid to
Nicaragua and Nicaragua also alleged that the
United States is effectively in control of
the contras (rebels), and some attacks against
Nicaragua were carried out, directly, by the United
States military – with the aim to overthrow the
Government of Nicaragua.
Questions before the Court:
 Did the United States violate its customary international law obligation not to
intervene in the affairs of another State, when it trained, armed, equipped, and
financed the contra forces or when it encouraged, supported, and aided the military
and paramilitary activities against Nicaragua?
 Did the United States violate its customary international law obligation not to use
force against another State, when it directly attacked Nicaragua in 1983 and 1984
and when its activities in point (1) above resulted in the use of force?
 Can the military and paramilitary activities that the United States undertook in and
against Nicaragua be justified as collective self-defence?
The Court’s Decision:
 The United States violated customary international law in relation to (1), (2), (4) and
(5) above. On (3), the Court found that the United States could not rely on collective
self-defence to justify its use of force against Nicaragua.
Relevant Finding - On State practice,
the jurisprudence of the Nicaragua
case contained several important clarifications in
respect of inconsistent State practice (para 186).
The ICJ held that:
1. For a customary rule to come into force, it is
not necessary to have complete
consistency in State practice in respect of
the rule.
2. Inconsistent State practice does not affect
the formation or existence of a customary
principle so long as the inconsistency is
justified by the State as a breach of the rule.
3. This attempt at justifying a violation would
only make the rule’s customary law nature
stronger.
BARCELONA TRACTION CASE
 Facts - Barcelona Traction, Light and Power Company,
Limited (BTLPC) was incorporated in Toronto, Canada in
1911 for the purpose of creating and developing an
electric power production and distribution system in
Catalonia, Spain.
 In 1936, the Spanish government suspended the BTLPC
bonds, issued principally in Sterling, on account of the
civil war in Spain. After the war the Spanish exchange
control authorities refused to authorize the transfer of
the foreign currency necessary for the resumption of the
servicing of the Sterling bonds.
 Thereafter in 1948, by an order of the court of Reus, the
company was adjudged bankrupt. The Belgian
government filed an application in 1962 claiming
reparation for the losses suffered by the Belgian
shareholders of the company as a result of the acts
committed contrary to the international law by various
organs of the Spanish State.
 On the other hand, the Spanish State contended that the claims of Belgium were
inadmissible and unfounded. The Spanish State put forward four preliminary
objections out of which the first and second objections were rejected by the court
and the third and fourth were joined to the merits.
 The first and second preliminary objections were to the effect that the discontinuance
of the previous proceedings by Belgium precluded it from instituting the present
proceedings and that the court did not have the jurisdiction to adjudicate upon the
Belgian claims.
 The third preliminary objection submitted by Spain was that the Belgian government
lacked the capacity to submit any claims in respect of wrongs done to a Canadian
company even if the shareholders were Belgian. In other words, the Belgian
government did not have the jus standi. The fourth preliminary objection raised by
the Spanish government was to the effect that the local remedies available in Spain
were no exhausted.
 Issues
The researcher will be dealing with the issues that arose out of the second phase of the judgment:
1. Does Belgium have the Jus standi to exercise diplomatic protection of shareholders in a Canadian
company?
2. Does Belgium have the right and jurisdiction to bring Spain to court for the actions of a Canadian
company?
 Judgment
The Court took cognizance of the great amount of documentary and other evidence submitted by the
Parties and fully appreciated the importance of the legal problems raised by the allegation which was at
the root of the Belgian claim and which concerned denials of justice allegedly committed by organs of
the Spanish State. However, the possession by the Belgian Government of a right of protection was a
prerequisite for the examination of such problems. Since no jus standi before the Court had been
established, it was not for the Court to pronounce upon any other aspect of the case.
Accordingly, the Court rejected the Belgian Government’s claim by 15 votes to 1, 12 votes of the
majority being based on the reasons set out above.
 Ammouri J referring to State Practice “as manifested
within international organizations and conferences”,
observes that it would not be possible to deny,
regard to the resolutions which emerge therefrom,
or better, with regard to the votes expressed therein
in the name of states, that these amount to
precedents contributing to the formation of
customs.
S.S. LOTUS (FRANCE VS TURKEY)
• Facts - A collision occurred on the high seas
between a French vessel – Lotus – and a
Turkish vessel – Boz-Kourt. The Boz-Kourt sank
and killed eight Turkish nationals on board the
Turkish vessel.
• The 10 survivors of the Boz-Kourt (including its
captain) were taken to Turkey on board the
Lotus. In Turkey, the officer on watch of the
Lotus (Demons), and the captain of the Turkish
ship were charged with manslaughter.
• Demons, a French national, was sentenced to
80 days of imprisonment and a fine.
• The French government protested, demanding
the release of Demons or the transfer of his
case to the French Courts.
• Turkey and France agreed to refer this dispute
on the jurisdiction to the Permanent Court of
International Justice (PCIJ).
 Issue - Did Turkey violate international law when Turkish courts exercised
jurisdiction over a crime committed by a French national, outside Turkey? If
yes, should Turkey pay compensation to France?
 The Court’s Decision -Turkey, by instituting criminal proceedings against
Demons, did not violate international law.
 The first principle of the Lotus Case: A State cannot exercise its
jurisdiction outside its territory unless an international treaty or customary
law permits it to do so. This is what we called the first principle of the Lotus
Case.
 The second principle of the Lotus Case: Within its territory, a State may
exercise its jurisdiction, in any matter, even if there is no specific rule of
international law permitting it to do so. In these instances, States have a
measure of discretion, which is only limited by the prohibitive rules of
international law.
 The Court held that a ship in the high seas is assimilated to the
territory of the flag State. This State may exercise its jurisdiction
over the ship, in the same way as it exercises its jurisdiction over its
land, to the exclusion of all other States. In this case, the Court
equated the Turkish vessel to Turkish territory. The Court held that
the “… offence produced its effects on the Turkish vessel and
consequently in a place assimilated to Turkish territory in which the
application of Turkish criminal law cannot be challenged, even in
regard to offences committed there by foreigners.” The Court
concluded that Turkey had jurisdiction over this case.
 The judgment was criticized.
ASYLUM CASE (COLUMBIA VS PERU)
 Peru issued an arrest warrant against Victor Raul Haya de la
Torre “in respect of the crime of military rebellion” which
took place on October 3, 1949, in Peru.
 3 months after the rebellion, Torre fled to the Colombian
Embassy in Lima, Peru.
 The Colombian Ambassador confirmed that Torre was
granted diplomatic asylum in accordance with Article 2(2) of
the Havana Convention on Asylum of 1928 and requested
safe passage for Torre to leave Peru.
 Subsequently, the Ambassador also stated Colombia had
qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of 1933
(note the term refugee is not the same as the Refugee
Convention of 1951).
 Peru refused to accept the unilateral qualification and
refused to grant safe passage.
 Questions before the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify
offence for the purpose of asylum under treaty law and international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of
safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928
(hereinafter called the Havana Convention) when it granted asylum and is
maintenance of asylum a violation of the treaty?
 The court held that the burden of proof on the existence of an alleged customary
law rests with the party making the allegation:
“The Party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other Party… (that) it
in accordance with a (1) constant and uniform usage (2) practiced by the States in
question, and that this usage is (3) the expression of a right appertaining to the State
granting asylum (Colombia) and (4) a duty incumbent on the territorial State (in this
case, Peru). This follows from Article 38 of the Statute of the Court, which refers to
international custom “as evidence of a general practice accepted as law(text in
added).”
 The court held that Colombia did not establish the existence of a regional
custom because it failed to prove consistent and uniform usage of the alleged
custom by relevant States.
 The fluctuations and contradictions in State practice did not allow for the
uniform usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98,
the legal impact of fluctuations of State practice).
 The court also reiterated that the fact that a particular State practice was
followed because of political expediency and not because of a belief that the
said practice is binding on the State by way of a legal obligation (opinio juris)
is detrimental to the formation of a customary law.
 The court concluded that Colombia, as the State granting asylum, is not
competent to qualify the offence by a unilateral and definitive decision,
binding on Peru.
TREATIES
INTRODUCTION
 Treaties are known by a variety of terms—conventions, agreements, pacts,
general acts, charters, and covenants—all of which signify written
instruments in which the participants agree to be bound by the negotiated
terms.
 Some agreements are governed by municipal law (e.g., commercial accords
between states and international enterprises), in which case international law
is inapplicable. Informal, nonbinding political statements or declarations are
excluded from the category of treaties.
 Treaties may be bilateral or multilateral. Treaties with a number of parties are
more likely to have international significance, though many of the most
important treaties have been bilateral.
PLURILATERAL
TREATY
BILATERAL TREATY
MULTILATERAL TREATY
 A number of contemporary treaties, such as
the Geneva Conventions (1949) and the Law
of the Sea treaty (1982); have more than 150
parties to them, reflecting both their
importance and the evolution of the treaty
as a method of general legislation in
international law.
 Other significant treaties include the
Convention on the Prevention and
Punishment of the Crime of Genocide (1948),
the Vienna Convention on Diplomatic
Relations (1961), the Antarctic Treaty (1959),
and the Rome Statute establishing
the International Criminal Court (1998).
 Whereas some treaties create international organizations and
provide their constitutions (e.g., the UN Charter of 1945)
 Countries that do not sign and ratify a treaty are not bound by its
provisions.
 Nevertheless, treaty provisions may form the basis of an
international custom in certain circumstances, provided that the
provision in question is capable of such generalization or is “of a
fundamentally norm-creating character,” as the ICJ termed the
process in the North Sea Continental Shelf cases (1969).
PACTA SUNT SERVANDA
 A treaty is based on the consent of the parties
to it, is binding, and must be executed in good
faith.
 The concept known by the Latin formula pacta
sunt servanda (“agreements must be kept”) is
arguably the oldest principle of international
law.
 Without such a rule, no international
agreement would be binding or enforceable.
 Pacta sunt servanda is directly referred to in
many international agreements governing
treaties, including the Vienna Convention on
the Law of Treaties (1969).
FORMATION OF A TREATY
 There is no prescribed form or procedure for making or concluding
treaties.
 They may be drafted between heads of state or between government
departments.
 The most crucial element in the conclusion of a treaty is the signaling
of the state’s consent, which may be done by signature, an exchange
of instruments, ratification, or accession.
 Ratification is the usual method of declaring consent—unless the
agreement is a low-level one, in which case a signature is usually
sufficient. Ratification procedures vary, depending on the country’s
constitutional structure.
 Treaties may allow signatories to opt out of a particular provision,
a tactic that enables countries that accept the basic principles of a
treaty to become a party to it even though they may have
concerns about peripheral issues.
 These concerns are referred to as “reservations,” which are
distinguished from interpretative declarations, which have no
binding effect.
 States may make reservations to a treaty where the treaty does
not prevent doing so and provided that the reservation is not
incompatible with the treaty’s object and purpose.
RESERVATIONS IN TREATY
 Other states may accept or object to such reservations.
 In the former case, the treaty as modified by the terms of the
reservations comes into force between the states concerned.
 In the latter case, the treaty comes into force between the
states concerned except for the provisions to which the
reservations relate and to the extent of the reservations.
 An obvious defect of this system is that each government
determines whether the reservations are permissible, and
there can be disagreement regarding the legal consequences
if a reservation is deemed impermissible.
TERMINATION OF TREATY
• A treaty may be terminated or
suspended in accordance with one
of its provisions (if any exist) or by
the consent of the parties.
• If neither is the case, other
provisions may become relevant.
• If a material breach of a bilateral
treaty occurs, the innocent party
may invoke that breach as a
ground for terminating the treaty
or suspending its operation.
• The termination of multilateral treaties is more complex. By unanimous
agreement, all the parties may terminate or suspend the treaty in
whole or in part, and a party specially affected by a breach may
suspend the agreement between itself and the defaulting state.
• Any other party may suspend either the entire agreement or part of it
in cases where the treaty is such that a material breach will radically
change the position of every party with regard to its obligations under
the treaty.
 The ICJ, for example, issued an advisory opinion in 1971 that regarded
as legitimate the General Assembly’s termination of
the mandate for South West Africa.
 A breach of a treaty is generally regarded as material if there is an
impermissible repudiation of the treaty or if there is a violation of a
provision essential to the treaty’s object or purpose.
 The concept of rebus sic stantibus (Latin: “things standing thus”) stipulates
that, where there has been a fundamental change of circumstances, a party
may withdraw from or terminate the treaty in question.
 An obvious example would be one in which a relevant island has become
submerged. A fundamental change of circumstances, however, is not
sufficient for termination or withdrawal unless the existence of the original
circumstances was an essential basis of the consent of the parties to be
bound by the treaty and the change radically transforms the extent of
obligations still to be performed.
 This exception does not apply if the treaty establishes a boundary or if the
fundamental change is the result of a breach by the party invoking it of an
obligation under the treaty or of any other international obligation owed to
any other party to the treaty.
CASE STUDY:
 In North Sea Continental Shelf Case, ICJ held that
Article 6 of the Geneva Convention on Continental
Shelf of 1958 laying down equidistance rule for
delimitation of continental shelves had not been
subsequently accepted by the Federal Republic of
Germany in the necessary manifest manner and,
therefore, did not bind it.
GENERAL PRINCIPLES OF LAW
INTRODUCTION
 A third source of international law identified by the ICJ’s
statute is “the general principles of law recognized by
civilized nations.”
 These principles essentially provide a mechanism to address
international issues not already subject either to treaty
provisions or to binding customary rules.
 Such general principles may arise either through municipal
law or through international law, and many are in fact
procedural or evidential principles or those that deal with the
machinery of the judicial process.
 Perhaps the most important principle of international law is that of good
faith.
 It governs the creation and performance of legal obligations and is the
foundation of treaty law.
 Another important general principle is that of equity, which permits
international law to have a degree of flexibility in its application and
enforcement.
 The Law of the Sea treaty, for example, called for the delimitation on the
basis of equity of exclusive economic zones and continental shelves between
states with opposing or adjacent coasts.
 The principle, established in Chorzow Factory (Germany vs
Poland) (1927–28), that the breach of an engagement involves
an obligation to make reparation.
 Accordingly, in the Chorzow Factory case, Poland was obliged
to pay compensation to Germany for the illegal expropriation
of a factory.
 Facts - Polish Government took possession of the factory and
took over its management. During such undertaking, German
Government contends and the Polish Government admits that
the delegate of the latter also took possession of the movable
property, patents, licences, etc
1. NEMO JUDEX IN CAUSA SUA
2. SUBROGATION (SUBSTITUTION)
The Mavrommatis Jerusalem Concessions (Greece v. Britain)-
• Mavrommatis, a Greek national, was in 1914 granted concessions
by the Ottoman authorities for certain public works in what later
became the British mandated territory of Palestine.
• Greece alleged that Great Britain, through the Palestine
Government, had refused fully to recognize the concessions in
Jerusalem and Jaffa.
• The Greek Government sought judgment to effect that the
Britain, in its capacity as mandatory power was bound to
maintain the concessions, or to redeem by paying reasonable
compensation.
 The PCIJ summarized the ‘legal dispute’ in Mavrommatis as
follows: ‘[…] a dispute is a disagreement on a point of law or
fact, a conflict of legal views or interests between two
persons.’
 The PCIJ by applying the principle of Subrogation (or
substitution) held that the concessions concerning Jerusalem
were valid, but since Mavrommatis had suffered no loss, the
claim for an indemnity should be dismissed.
 The principle was also endorsed by ICJ in International Status
of South West Africa Case.
3. PRESCRIPTION (A CLAIM TO A
RIGHT FUNDED UPON ENJOYMENT)
 Prescription, in international law, is sovereignty
transfer of a territory by the open encroachment by the
new sovereign upon the territory for a prolonged
period of time, acting as the sovereign, without protest
or other contest by the original sovereign.
 It is analogous to the common law doctrine
of easement by prescription for private real estate.
Island of Palmas case (USA vs Netherlands)-
 The Island of Palmas Case was a territorial
dispute over the Island of Palmas between
the Netherlands and the United States which
was heard by the Permanent Court of
Arbitration.
 Palmas was declared to be a part of
the Netherlands East Indies and is now part
of Indonesia.
 Arbitrator applied principle of prescription and
decided in favor of the Netherlands on the
basis of unchallenged acts of peaceful of
sovereignty by the Netherlands spread over
the period 1700 to 1906.
4. RES JUDICATA
 According to the principle of res judicata, final
judgment rendered by a court of competent
jurisdiction on merits is conclusive as to the rights
of the parties and constitutes an absolute bar to
subsequent action involving he same claims,
demands or cause of action
5. ESTOPPEL
Temple of Preah Vihar Case (Cambodia vs Thailand) –
 Preah Vihear Temple is an ancient Hindu temple
built during the period of the Khmer Empire, that is
situated atop a 525-metre cliff in the Dângrêk
Mountains, in the Preah
Vihear province, Cambodia.
 In 1962, following a lengthy dispute
between Cambodia and Thailand over ownership,
the International Court of Justice (ICJ) in The
Hague ruled that the temple is in Cambodia.
 By applying the rule of estoppel, where states are
bound by its previous acts or attitude when they
are in contradiction with its claims in the litigation.
6. EQUITY
 Equity is one of the general principles of law
because it has an established place in developed
legal system.
 The PCIJ has recognised it as a part of
International Law (Netherlands vs Belgium)
 It has recognized that equity as a source of
international law is in no way restricted by special
power conferred upon it “to decide a case ex
aequo et bono (according to the right and good),
if the parties agree thereto”.
 In North Sea Continental Shelf case, ICJ refused to
delimit continental shelf by applying equidistance
principle as it resulted in inequity under special
circumstances.
OTHER PRINCIPLES
 Other principles include:
7. Good Faith (Article-4, UN Charter)
8. Territoriality of Criminal Law (S.S. Lotus case)
9. Obligation to Repair Wrong (Chorzow factory case)
Corfu Channel Case (UK vs Albania):
 The Corfu Channel case was the first public international
law case heard before the International Court of Justice
between 1947 and 1949, concerning state responsibility for
damages at sea, as well as the doctrine of innocent
 A contentious case, it was the first of any type heard by the
ICJ after its establishment in 1945.
 Following a series of encounters from May to November
1946 in the Corfu Channel between the United
the People's Republic of Albania—one of which resulted in
damage to two Royal Navy ships and significant loss of
the United Kingdom brought suit in the ICJ seeking
reparations.
 After an initial ruling on jurisdiction in 1948, the ICJ issued
separate merits and compensation judgments in 1949.
 The Court awarded the United Kingdom
£843,947.
 This amount remained unpaid for decades,
and British efforts to see it paid led
to another ICJ case to resolve competing
Albanian and Italian claims to more than two
tons of Nazi gold.
 In 1996, Albania and the United Kingdom
settled the judgment along with Albania's
outstanding claim to the gold.
 Corfu Channel has had a lasting influence on
the practice of international law, especially
the law of the sea.
 The concept of innocent passage
used by the Court was ultimately
adopted in a number of important
law of the sea conventions.
 The stance taken by the Court
on use of force has been of
importance in subsequent decisions,
such as Nicaragua v. United States.
 Additionally, the case served to set a
number of procedural trends
followed in subsequent ICJ
proceedings.
JUDICIAL DECISIONS
Case overview-
• Originating in 1933, over how large an area
of water surrounding Norway was
Norwegian waters (that Norway thus had
exclusive fishing rights to) and how much
was 'high seas' (that the UK could thus fish)
• The United Kingdom requested the court
decide if Norway had used a legally
acceptable method in drawing the baseline
from which it measured its territorial sea.
• The United Kingdom argued that
international law did not allow the length
a baseline drawn across a bay to be longer
than ten miles.
ANGLO NORWEGIAN FISHERIES CASE
(UK VS. NORWAY)
The United Kingdom argued that; –
 Norway could only draw straight lines across
bays
 The length of lines drawn on the formations of
the Skaergaard fjord must not exceed 10
nautical miles( the 10 Mile rule)
 That certain lines did not follow the general
direction of the coast or did not follow it
sufficiently , or they did not respect certain
connection of sea and land separating them
 That the Norwegian system of delimitation was
unknown to the British and lack the notoriety to
provide the basis of historic title enforcement
upon opposable to by the United Kingdom.
 Norway argued that its delimitation
method was consistent with general
principles of international law.
 On 18 December 1951, the ICJ decided
that Norway's claims to the waters were
consistent with international laws
concerning the ownership of local sea-
space.
 The Court found that neither the
method employed for the delimitation
by the Decree, nor the lines themselves
fixed by the said Decree, are contrary to
international law.
 The court consistently referred to positive aspect
that it is state practice and there is lack of objection
of other states on that practice.
 The court also said that 10 mile rule is adopted by
several states and also have treaties between states
but other states have adopted different limit.
 The 10 mile rule has not acquired by authority of the
general rule of International Law.
JURISTIC WORKS
 Article 38(1)(d) of the International Court of Justice
Statute states that the 'teachings of the most highly qualified
publicists of the various nations' are also among the
'subsidiary means for the determination of the rules of law’.
 The scholarly works of prominent jurists are not sources of
international law but are essential in developing the rules that
are sourced in treaties, custom and the general principles of
law.
 This is accepted practice in the interpretation of international
law and was utilized by the United States Supreme
Court in The Paquete Habana case

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fnaf lore.pptx ...................................
 

Sources of international law

  • 2. INTRODUCTION  The “sources” of International Law are always confused with the “causes” or “factors” which influence the development of International law.  Oppenheim remarks the difference between the two by an analogy of a spring and a well: “The source of spring is to be traced to the spot on the ground wherefrom the stream of water rises naturally. It is common knowledge that the source of the spring by which we understand as the spot on the ground wherefrom the stream water gushes cannot be equated with the cause for the existence of the stream of water” The rules of international law do not arise from a spot on the ground as water does, but from facts in the historical development of community. Source of law is, therefore, the name for a historical fact out of which the rules of conduct come into existence.
  • 3.  The sources of international law is two fold: EXPRESS CONSENT- ARISES BY STATES CONCLUDING TREATIES OR CONVENTIONS BY STIPULATING RULES TACIT CONSENT- WHICH GIVES RISE TO INTERNATIONAL CUSTOMARY LAW BY STATES ADHERING TO CERTAIN RULES OF INTERNATIONAL CONDUCT WITHOUT ANY FORMAL DECLARATION
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  • 5. SOURCES UNDER ICJ STATUTE  Article 38 (1) of the ICJ’s statute identifies three sources of international law:  treaties, conventions  judicial decisions and  custom,  general principles.  Because the system of international law is horizontal and decentralized, the creation of international laws is inevitably more complicated than the creation of laws in domestic systems. Express Tacit
  • 7. ARTICLE-38, ICJ 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
  • 8. SOURCES FORMAL WILL OF STATE WILL OF PEOPLE JUDICIAL DECISIONS INFORMAL/ MATERIAL LEGAL LEGISLATION TREATY CUSTOM PRECEDENTS HISTORICAL LOCAL CUSTOM RELIGIOUS BELIEF OPINION OF JURISTS LAW DERIVES ITS MATTER LAW DERIVES ITS VALIDITY
  • 9. SOURCES BY ICJ STATUTE CUSTOM TREATY & CONVENTIONS GENERAL PRINCIPLES OF LAW JUDICIAL DECISIONS & JURISTIC WRITINGS
  • 11.  Article 38 (1) of the Statute of the International Court of Justice (ICJ) is considered as an authoritative statement on sources of international law.  The ICJ is requested to form its opinion based on customary international law evidenced by “general practice accepted as law”.  This sets out the two essential components necessary to form customary international law, which the Court interpreted as 1. State practice and 2. opinio juris.
  • 12. ELEMENTS OF CUSTOMARY INTERNATIONAL LAW Article-38(1)(b)- Customary International Law General/State Practice (Objective element) Consistent/ Uniformity Generality Duration As accepted as law (Subjective element) Opinio juris (Obliged to act)
  • 13. OBJECTIVE ELEMENT  The existence of State practice.  In other words, the actions or omissions by the State must support the custom; and  widespread and representative participation, including States whose interests were specially affected (i.e. generality); and  virtually uniform practice (i.e. consistent and uniform usage) undertaken in a manner that demonstrates;  Duration SUBJECTIVE ELEMENT  Acceptance as law.  In other words, States when performing a custom must do so because they feel that they are legally bound to perform the custom. We call this opinio juris.
  • 14. NORTH SEA CONTINENTAL SHELF CASE (GERMANY VS DENMARK AND NETHERLANDS) • Facts - Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle (A-B and C-D). • An agreement on further prolongation of the boundary proved difficult because Denmark and Netherlands wanted this prolongation to take place based on the equidistance principle (B-E and D-E) where as Germany was of the view that, together, these two boundaries would produce an inequitable result for her. • Germany stated that due to its concave coastline, such a line would result in her loosing out on her share of the continental shelf based on proportionality to the length of its North Sea coastline. Denmark Germany
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  • 17.  Issue - Is Germany under a legal obligation to accept the equidistance-special circumstances principle, contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a customary international law rule or on the basis of the Geneva Convention?  The Court had to decide the principles and rules of international law applicable to this delimitation. In so, the Court had to decide if the principles espoused the parties were binding on the parties either through treaty law or customary international law.  Decision - The use of the equidistance method had not crystallized into customary law and the method was obligatory for the delimitation of the areas in the North Sea related to the present proceedings.
  • 18. Relevant Finding - In the North Sea Continental Shelf Cases, the ICJ held that in order to argue that a customary rule has emerged one needed to prove: (1) The objective element (State practice). In other words: a. widespread and representative participation, including States whose interests were specially affected (i.e. generality); and b. virtually uniform practice (i.e. consistent and uniform usage) undertaken in a manner that demonstrates; (2) a general recognition of the rule of law or legal obligation (i.e. opinio juris). In the North Sea Continental Shelf Cases the ICJ held that the passage of a considerable period of time was unnecessary (i.e. duration) to form a customary law.
  • 19. NICARGUA VS USA CASE • Facts - In July 1979, the Government of President Somoza was replaced by a government installed by Frente Sandinista de Liberacion Nacional (FSLN). • The US – initially supportive of the new government – changed its attitude when, according to the United States, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador. • In April 1981 the United States stopped its aid to Nicaragua and Nicaragua also alleged that the United States is effectively in control of the contras (rebels), and some attacks against Nicaragua were carried out, directly, by the United States military – with the aim to overthrow the Government of Nicaragua.
  • 20. Questions before the Court:  Did the United States violate its customary international law obligation not to intervene in the affairs of another State, when it trained, armed, equipped, and financed the contra forces or when it encouraged, supported, and aided the military and paramilitary activities against Nicaragua?  Did the United States violate its customary international law obligation not to use force against another State, when it directly attacked Nicaragua in 1983 and 1984 and when its activities in point (1) above resulted in the use of force?  Can the military and paramilitary activities that the United States undertook in and against Nicaragua be justified as collective self-defence? The Court’s Decision:  The United States violated customary international law in relation to (1), (2), (4) and (5) above. On (3), the Court found that the United States could not rely on collective self-defence to justify its use of force against Nicaragua.
  • 21. Relevant Finding - On State practice, the jurisprudence of the Nicaragua case contained several important clarifications in respect of inconsistent State practice (para 186). The ICJ held that: 1. For a customary rule to come into force, it is not necessary to have complete consistency in State practice in respect of the rule. 2. Inconsistent State practice does not affect the formation or existence of a customary principle so long as the inconsistency is justified by the State as a breach of the rule. 3. This attempt at justifying a violation would only make the rule’s customary law nature stronger.
  • 22. BARCELONA TRACTION CASE  Facts - Barcelona Traction, Light and Power Company, Limited (BTLPC) was incorporated in Toronto, Canada in 1911 for the purpose of creating and developing an electric power production and distribution system in Catalonia, Spain.  In 1936, the Spanish government suspended the BTLPC bonds, issued principally in Sterling, on account of the civil war in Spain. After the war the Spanish exchange control authorities refused to authorize the transfer of the foreign currency necessary for the resumption of the servicing of the Sterling bonds.  Thereafter in 1948, by an order of the court of Reus, the company was adjudged bankrupt. The Belgian government filed an application in 1962 claiming reparation for the losses suffered by the Belgian shareholders of the company as a result of the acts committed contrary to the international law by various organs of the Spanish State.
  • 23.  On the other hand, the Spanish State contended that the claims of Belgium were inadmissible and unfounded. The Spanish State put forward four preliminary objections out of which the first and second objections were rejected by the court and the third and fourth were joined to the merits.  The first and second preliminary objections were to the effect that the discontinuance of the previous proceedings by Belgium precluded it from instituting the present proceedings and that the court did not have the jurisdiction to adjudicate upon the Belgian claims.  The third preliminary objection submitted by Spain was that the Belgian government lacked the capacity to submit any claims in respect of wrongs done to a Canadian company even if the shareholders were Belgian. In other words, the Belgian government did not have the jus standi. The fourth preliminary objection raised by the Spanish government was to the effect that the local remedies available in Spain were no exhausted.
  • 24.  Issues The researcher will be dealing with the issues that arose out of the second phase of the judgment: 1. Does Belgium have the Jus standi to exercise diplomatic protection of shareholders in a Canadian company? 2. Does Belgium have the right and jurisdiction to bring Spain to court for the actions of a Canadian company?  Judgment The Court took cognizance of the great amount of documentary and other evidence submitted by the Parties and fully appreciated the importance of the legal problems raised by the allegation which was at the root of the Belgian claim and which concerned denials of justice allegedly committed by organs of the Spanish State. However, the possession by the Belgian Government of a right of protection was a prerequisite for the examination of such problems. Since no jus standi before the Court had been established, it was not for the Court to pronounce upon any other aspect of the case. Accordingly, the Court rejected the Belgian Government’s claim by 15 votes to 1, 12 votes of the majority being based on the reasons set out above.
  • 25.  Ammouri J referring to State Practice “as manifested within international organizations and conferences”, observes that it would not be possible to deny, regard to the resolutions which emerge therefrom, or better, with regard to the votes expressed therein in the name of states, that these amount to precedents contributing to the formation of customs.
  • 26. S.S. LOTUS (FRANCE VS TURKEY) • Facts - A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel – Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. • The 10 survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were charged with manslaughter. • Demons, a French national, was sentenced to 80 days of imprisonment and a fine. • The French government protested, demanding the release of Demons or the transfer of his case to the French Courts. • Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent Court of International Justice (PCIJ).
  • 27.  Issue - Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by a French national, outside Turkey? If yes, should Turkey pay compensation to France?  The Court’s Decision -Turkey, by instituting criminal proceedings against Demons, did not violate international law.  The first principle of the Lotus Case: A State cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so. This is what we called the first principle of the Lotus Case.  The second principle of the Lotus Case: Within its territory, a State may exercise its jurisdiction, in any matter, even if there is no specific rule of international law permitting it to do so. In these instances, States have a measure of discretion, which is only limited by the prohibitive rules of international law.
  • 28.  The Court held that a ship in the high seas is assimilated to the territory of the flag State. This State may exercise its jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land, to the exclusion of all other States. In this case, the Court equated the Turkish vessel to Turkish territory. The Court held that the “… offence produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners.” The Court concluded that Turkey had jurisdiction over this case.  The judgment was criticized.
  • 29. ASYLUM CASE (COLUMBIA VS PERU)  Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the crime of military rebellion” which took place on October 3, 1949, in Peru.  3 months after the rebellion, Torre fled to the Colombian Embassy in Lima, Peru.  The Colombian Ambassador confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru.  Subsequently, the Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the same as the Refugee Convention of 1951).  Peru refused to accept the unilateral qualification and refused to grant safe passage.
  • 30.  Questions before the Court: (1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify offence for the purpose of asylum under treaty law and international law? (2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage? (3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter called the Havana Convention) when it granted asylum and is maintenance of asylum a violation of the treaty?  The court held that the burden of proof on the existence of an alleged customary law rests with the party making the allegation: “The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party… (that) it in accordance with a (1) constant and uniform usage (2) practiced by the States in question, and that this usage is (3) the expression of a right appertaining to the State granting asylum (Colombia) and (4) a duty incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute of the Court, which refers to international custom “as evidence of a general practice accepted as law(text in added).”
  • 31.  The court held that Colombia did not establish the existence of a regional custom because it failed to prove consistent and uniform usage of the alleged custom by relevant States.  The fluctuations and contradictions in State practice did not allow for the uniform usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of State practice).  The court also reiterated that the fact that a particular State practice was followed because of political expediency and not because of a belief that the said practice is binding on the State by way of a legal obligation (opinio juris) is detrimental to the formation of a customary law.  The court concluded that Colombia, as the State granting asylum, is not competent to qualify the offence by a unilateral and definitive decision, binding on Peru.
  • 33. INTRODUCTION  Treaties are known by a variety of terms—conventions, agreements, pacts, general acts, charters, and covenants—all of which signify written instruments in which the participants agree to be bound by the negotiated terms.  Some agreements are governed by municipal law (e.g., commercial accords between states and international enterprises), in which case international law is inapplicable. Informal, nonbinding political statements or declarations are excluded from the category of treaties.  Treaties may be bilateral or multilateral. Treaties with a number of parties are more likely to have international significance, though many of the most important treaties have been bilateral.
  • 35.  A number of contemporary treaties, such as the Geneva Conventions (1949) and the Law of the Sea treaty (1982); have more than 150 parties to them, reflecting both their importance and the evolution of the treaty as a method of general legislation in international law.  Other significant treaties include the Convention on the Prevention and Punishment of the Crime of Genocide (1948), the Vienna Convention on Diplomatic Relations (1961), the Antarctic Treaty (1959), and the Rome Statute establishing the International Criminal Court (1998).
  • 36.  Whereas some treaties create international organizations and provide their constitutions (e.g., the UN Charter of 1945)  Countries that do not sign and ratify a treaty are not bound by its provisions.  Nevertheless, treaty provisions may form the basis of an international custom in certain circumstances, provided that the provision in question is capable of such generalization or is “of a fundamentally norm-creating character,” as the ICJ termed the process in the North Sea Continental Shelf cases (1969).
  • 37. PACTA SUNT SERVANDA  A treaty is based on the consent of the parties to it, is binding, and must be executed in good faith.  The concept known by the Latin formula pacta sunt servanda (“agreements must be kept”) is arguably the oldest principle of international law.  Without such a rule, no international agreement would be binding or enforceable.  Pacta sunt servanda is directly referred to in many international agreements governing treaties, including the Vienna Convention on the Law of Treaties (1969).
  • 38. FORMATION OF A TREATY  There is no prescribed form or procedure for making or concluding treaties.  They may be drafted between heads of state or between government departments.  The most crucial element in the conclusion of a treaty is the signaling of the state’s consent, which may be done by signature, an exchange of instruments, ratification, or accession.  Ratification is the usual method of declaring consent—unless the agreement is a low-level one, in which case a signature is usually sufficient. Ratification procedures vary, depending on the country’s constitutional structure.
  • 39.  Treaties may allow signatories to opt out of a particular provision, a tactic that enables countries that accept the basic principles of a treaty to become a party to it even though they may have concerns about peripheral issues.  These concerns are referred to as “reservations,” which are distinguished from interpretative declarations, which have no binding effect.  States may make reservations to a treaty where the treaty does not prevent doing so and provided that the reservation is not incompatible with the treaty’s object and purpose. RESERVATIONS IN TREATY
  • 40.  Other states may accept or object to such reservations.  In the former case, the treaty as modified by the terms of the reservations comes into force between the states concerned.  In the latter case, the treaty comes into force between the states concerned except for the provisions to which the reservations relate and to the extent of the reservations.  An obvious defect of this system is that each government determines whether the reservations are permissible, and there can be disagreement regarding the legal consequences if a reservation is deemed impermissible.
  • 41. TERMINATION OF TREATY • A treaty may be terminated or suspended in accordance with one of its provisions (if any exist) or by the consent of the parties. • If neither is the case, other provisions may become relevant. • If a material breach of a bilateral treaty occurs, the innocent party may invoke that breach as a ground for terminating the treaty or suspending its operation.
  • 42. • The termination of multilateral treaties is more complex. By unanimous agreement, all the parties may terminate or suspend the treaty in whole or in part, and a party specially affected by a breach may suspend the agreement between itself and the defaulting state. • Any other party may suspend either the entire agreement or part of it in cases where the treaty is such that a material breach will radically change the position of every party with regard to its obligations under the treaty.  The ICJ, for example, issued an advisory opinion in 1971 that regarded as legitimate the General Assembly’s termination of the mandate for South West Africa.  A breach of a treaty is generally regarded as material if there is an impermissible repudiation of the treaty or if there is a violation of a provision essential to the treaty’s object or purpose.
  • 43.  The concept of rebus sic stantibus (Latin: “things standing thus”) stipulates that, where there has been a fundamental change of circumstances, a party may withdraw from or terminate the treaty in question.  An obvious example would be one in which a relevant island has become submerged. A fundamental change of circumstances, however, is not sufficient for termination or withdrawal unless the existence of the original circumstances was an essential basis of the consent of the parties to be bound by the treaty and the change radically transforms the extent of obligations still to be performed.  This exception does not apply if the treaty establishes a boundary or if the fundamental change is the result of a breach by the party invoking it of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
  • 44. CASE STUDY:  In North Sea Continental Shelf Case, ICJ held that Article 6 of the Geneva Convention on Continental Shelf of 1958 laying down equidistance rule for delimitation of continental shelves had not been subsequently accepted by the Federal Republic of Germany in the necessary manifest manner and, therefore, did not bind it.
  • 46. INTRODUCTION  A third source of international law identified by the ICJ’s statute is “the general principles of law recognized by civilized nations.”  These principles essentially provide a mechanism to address international issues not already subject either to treaty provisions or to binding customary rules.  Such general principles may arise either through municipal law or through international law, and many are in fact procedural or evidential principles or those that deal with the machinery of the judicial process.
  • 47.  Perhaps the most important principle of international law is that of good faith.  It governs the creation and performance of legal obligations and is the foundation of treaty law.  Another important general principle is that of equity, which permits international law to have a degree of flexibility in its application and enforcement.  The Law of the Sea treaty, for example, called for the delimitation on the basis of equity of exclusive economic zones and continental shelves between states with opposing or adjacent coasts.
  • 48.  The principle, established in Chorzow Factory (Germany vs Poland) (1927–28), that the breach of an engagement involves an obligation to make reparation.  Accordingly, in the Chorzow Factory case, Poland was obliged to pay compensation to Germany for the illegal expropriation of a factory.  Facts - Polish Government took possession of the factory and took over its management. During such undertaking, German Government contends and the Polish Government admits that the delegate of the latter also took possession of the movable property, patents, licences, etc 1. NEMO JUDEX IN CAUSA SUA
  • 49. 2. SUBROGATION (SUBSTITUTION) The Mavrommatis Jerusalem Concessions (Greece v. Britain)- • Mavrommatis, a Greek national, was in 1914 granted concessions by the Ottoman authorities for certain public works in what later became the British mandated territory of Palestine. • Greece alleged that Great Britain, through the Palestine Government, had refused fully to recognize the concessions in Jerusalem and Jaffa. • The Greek Government sought judgment to effect that the Britain, in its capacity as mandatory power was bound to maintain the concessions, or to redeem by paying reasonable compensation.
  • 50.  The PCIJ summarized the ‘legal dispute’ in Mavrommatis as follows: ‘[…] a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between two persons.’  The PCIJ by applying the principle of Subrogation (or substitution) held that the concessions concerning Jerusalem were valid, but since Mavrommatis had suffered no loss, the claim for an indemnity should be dismissed.  The principle was also endorsed by ICJ in International Status of South West Africa Case.
  • 51. 3. PRESCRIPTION (A CLAIM TO A RIGHT FUNDED UPON ENJOYMENT)  Prescription, in international law, is sovereignty transfer of a territory by the open encroachment by the new sovereign upon the territory for a prolonged period of time, acting as the sovereign, without protest or other contest by the original sovereign.  It is analogous to the common law doctrine of easement by prescription for private real estate.
  • 52. Island of Palmas case (USA vs Netherlands)-  The Island of Palmas Case was a territorial dispute over the Island of Palmas between the Netherlands and the United States which was heard by the Permanent Court of Arbitration.  Palmas was declared to be a part of the Netherlands East Indies and is now part of Indonesia.  Arbitrator applied principle of prescription and decided in favor of the Netherlands on the basis of unchallenged acts of peaceful of sovereignty by the Netherlands spread over the period 1700 to 1906.
  • 53. 4. RES JUDICATA  According to the principle of res judicata, final judgment rendered by a court of competent jurisdiction on merits is conclusive as to the rights of the parties and constitutes an absolute bar to subsequent action involving he same claims, demands or cause of action
  • 54. 5. ESTOPPEL Temple of Preah Vihar Case (Cambodia vs Thailand) –  Preah Vihear Temple is an ancient Hindu temple built during the period of the Khmer Empire, that is situated atop a 525-metre cliff in the Dângrêk Mountains, in the Preah Vihear province, Cambodia.  In 1962, following a lengthy dispute between Cambodia and Thailand over ownership, the International Court of Justice (ICJ) in The Hague ruled that the temple is in Cambodia.  By applying the rule of estoppel, where states are bound by its previous acts or attitude when they are in contradiction with its claims in the litigation.
  • 55. 6. EQUITY  Equity is one of the general principles of law because it has an established place in developed legal system.  The PCIJ has recognised it as a part of International Law (Netherlands vs Belgium)  It has recognized that equity as a source of international law is in no way restricted by special power conferred upon it “to decide a case ex aequo et bono (according to the right and good), if the parties agree thereto”.  In North Sea Continental Shelf case, ICJ refused to delimit continental shelf by applying equidistance principle as it resulted in inequity under special circumstances.
  • 56. OTHER PRINCIPLES  Other principles include: 7. Good Faith (Article-4, UN Charter) 8. Territoriality of Criminal Law (S.S. Lotus case) 9. Obligation to Repair Wrong (Chorzow factory case)
  • 57. Corfu Channel Case (UK vs Albania):  The Corfu Channel case was the first public international law case heard before the International Court of Justice between 1947 and 1949, concerning state responsibility for damages at sea, as well as the doctrine of innocent  A contentious case, it was the first of any type heard by the ICJ after its establishment in 1945.  Following a series of encounters from May to November 1946 in the Corfu Channel between the United the People's Republic of Albania—one of which resulted in damage to two Royal Navy ships and significant loss of the United Kingdom brought suit in the ICJ seeking reparations.  After an initial ruling on jurisdiction in 1948, the ICJ issued separate merits and compensation judgments in 1949.
  • 58.  The Court awarded the United Kingdom £843,947.  This amount remained unpaid for decades, and British efforts to see it paid led to another ICJ case to resolve competing Albanian and Italian claims to more than two tons of Nazi gold.  In 1996, Albania and the United Kingdom settled the judgment along with Albania's outstanding claim to the gold.  Corfu Channel has had a lasting influence on the practice of international law, especially the law of the sea.
  • 59.  The concept of innocent passage used by the Court was ultimately adopted in a number of important law of the sea conventions.  The stance taken by the Court on use of force has been of importance in subsequent decisions, such as Nicaragua v. United States.  Additionally, the case served to set a number of procedural trends followed in subsequent ICJ proceedings.
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  • 62. Case overview- • Originating in 1933, over how large an area of water surrounding Norway was Norwegian waters (that Norway thus had exclusive fishing rights to) and how much was 'high seas' (that the UK could thus fish) • The United Kingdom requested the court decide if Norway had used a legally acceptable method in drawing the baseline from which it measured its territorial sea. • The United Kingdom argued that international law did not allow the length a baseline drawn across a bay to be longer than ten miles.
  • 63. ANGLO NORWEGIAN FISHERIES CASE (UK VS. NORWAY)
  • 64. The United Kingdom argued that; –  Norway could only draw straight lines across bays  The length of lines drawn on the formations of the Skaergaard fjord must not exceed 10 nautical miles( the 10 Mile rule)  That certain lines did not follow the general direction of the coast or did not follow it sufficiently , or they did not respect certain connection of sea and land separating them  That the Norwegian system of delimitation was unknown to the British and lack the notoriety to provide the basis of historic title enforcement upon opposable to by the United Kingdom.
  • 65.  Norway argued that its delimitation method was consistent with general principles of international law.  On 18 December 1951, the ICJ decided that Norway's claims to the waters were consistent with international laws concerning the ownership of local sea- space.  The Court found that neither the method employed for the delimitation by the Decree, nor the lines themselves fixed by the said Decree, are contrary to international law.
  • 66.  The court consistently referred to positive aspect that it is state practice and there is lack of objection of other states on that practice.  The court also said that 10 mile rule is adopted by several states and also have treaties between states but other states have adopted different limit.  The 10 mile rule has not acquired by authority of the general rule of International Law.
  • 68.  Article 38(1)(d) of the International Court of Justice Statute states that the 'teachings of the most highly qualified publicists of the various nations' are also among the 'subsidiary means for the determination of the rules of law’.  The scholarly works of prominent jurists are not sources of international law but are essential in developing the rules that are sourced in treaties, custom and the general principles of law.  This is accepted practice in the interpretation of international law and was utilized by the United States Supreme Court in The Paquete Habana case