PIL Mga Kaso Ito

7/26/2019 PIL Mga Kaso Ito

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NORTH SEA CONTINENTAL SHELF CASES (SUMMARY)

Name of the Case:The North Sea Continental Shelf Cases (Germany/Denmark;Germany/Netherlands); Year of Decision:1969; and Court:ICJ

NB: This post discussed only aspects of the case related to treaty or customary international law.

Overview:The !"ris#r"den$e of the North Sea Continental Shelf Cases sets o"t the d"al re%"irementfor formin& $"stomary international la' State #ra$ti$e (o!e$ti*e element) and o#inio !"ris (s"!e$ti*eelement) It elaorated the $riteria ne$essary to estalish State #ra$ti$e 'ides#read and re#resentati*e

#arti$i#ation The $ase hi&hli&hted that the State #ra$ti$e of im#ortan$e 'ere of those States 'hoseinterests 'ere a+e$ted y the $"stom It also identi,ed the fa$t that "niform and $onsistent #ra$ti$e 'asne$essary to sho' o#inio !"ris a elief that the #ra$ti$e amo"nts to a le&al oli&ation The North SeaContinental Self Cases also dis#elled the myth that d"ration of the #ra$ti$e (ie the n"mer of years) 'asan essential fa$tor in formin& $"stomary international la'

The $ase in*ol*ed the delimitation of the $ontinental shelf areas in the North Sea et'een Germany andDenmark and Germany and Netherlands eyond the #artial o"ndaries #re*io"sly a&reed "#on y these

States The #arties re%"ested the ICJ to de$ide the #rin$i#les and r"les of international la' that area##li$ale to the ao*e delimitation The #arties disa&reed on the a##li$ale #rin$i#les or r"les ofdelimitation Netherlands and Denmark relied on the #rin$i#le of e%"idistan$e (the method of determinin&the o"ndaries in s"$h a 'ay that e*ery #oint in the o"ndary is e%"idistant from the nearest #oints of theaselines from 'hi$h the reath of the territorial sea of ea$h State is meas"red) Germany so"&ht to &et ade$ision in fa*o"r of the notion that the delimitation of the rele*ant $ontinental shelf is &o*erned y the

#rin$i#le that ea$h $oastal state is entitled to a !"st and e%"itale share (hereinafter $alled !"st ande%"itale #rin$i#le/method) Contrary to Denmark and Netherlands- Germany ar&"ed that the #rin$i#le ofe%"idistan$e 'as neither a mandatory r"le in delimitation of the $ontinental shelf nor a r"le of $"stomaryinternational la' that 'as not indin& on Germany The $o"rt 'as not asked to delimit the #arties a&reedto delimit the $ontinental shelf as et'een their $o"ntries- y a&reement- after the determination of theICJ on the a##li$ale #rin$i#les

Facts of the Case:

Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle(AB and !D". An a#reement on further prolon#ation of the boundary pro$ed di%cult because Denmark andNetherlands wished this prolon#ation to take place based on the equidistance principle (B& and D&"where as 'ermany was of the $iew that to#ether these two boundaries would produce an inequitableresult for her. 'ermany stated that due to its conca$e coastline such a line would result in her loosin# outon her share of the continental shelf based on proportionality to the len#th of its North )ea coastline. The!ourt had to decide the principles and rules of international law applicable to this delimitation. *n doin# sothe court had to decide if the principles espoused by the parties were bindin# on the parties either throu#htreaty law or customary international law.

Questions efo!e the Cou!t (as !e"e#ant to this $ost):

*s 'ermany under a le#al obli#ation to accept the equidistancespecial circumstances principle containedin Article + of the 'ene$a !on$ention either as a customary international law rule or on the basis of the'ene$a !on$ention,

The Cou!t%s &ecision:

The use of the equidistance method had not crystallised into customary law and was is not obli#atory forthe delimitation of the areas in the North )ea related to the present proceedin#s.

Re"e#ant Fin'ins of the Cou!t:
https://ruwanthikagunaratne.wordpress.com/2014/02/28/north-sea-continental-shelf-cases-summary/http://iilj.org/courses/documents/SketchMap.pdfhttp://iilj.org/courses/documents/SketchMap.pdfhttp://iilj.org/courses/documents/SketchMap.pdfhttp://iilj.org/courses/documents/SketchMap.pdfhttp://iilj.org/courses/documents/SketchMap.pdfhttps://ruwanthikagunaratne.wordpress.com/2014/02/28/north-sea-continental-shelf-cases-summary/http://iilj.org/courses/documents/SketchMap.pdfhttp://iilj.org/courses/documents/SketchMap.pdfhttp://iilj.org/courses/documents/SketchMap.pdfhttp://iilj.org/courses/documents/SketchMap.pdf


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Nature of the treaty obli#ation: *s the 1/0 'ene$a !on$ention and in particular Article + bindin# on'ermany,

1. Article + of the 'ene$a !on$ention on the !ontinental )helf states that unless the parties ha$e a#reedon a method for delimitation or unless special circumstances eist the equidistance method would apply(see Article +". 'ermany has si#ned but not rati2ed the 'ene$a !on$ention while Netherlands andDenmark are parties to the !on$ention. The latter two )tates ar#ue that while 'ermany is not a party to

the !on$ention (not ha$in# rati2ed it" she is still bound by Article + of the !on$ention because:

.(1) y $ond"$t- y #"li$ statements and #ro$lamations- and in other 'ays- the 0e#"li$ has"nilaterally ass"med the oli&ations of the Con*ention; or has manifested its a$$e#tan$e of the$on*entional re&ime; or has re$o&nied it as ein& &enerally a##li$ale to the delimitation of $ontinentalshelf areas

(2) the 3ederal 0e#"li$ had held itself o"t as so ass"min&- a$$e#tin& or re$o&niin&- in s"$h a manner asto $a"se other States- and in #arti$"lar Denmark and the Netherlands- to rely on the attit"de th"s taken"#4 (the latter is $alled the #rin$i#le of esto##el)

-. The !ourt re3ected the 2rst ar#ument. *t stated that only a 4$ery de2nite $ery consistent course ofconduct on the part of a )tate5 would allow the court to presume that a )tate had somehow become boundby a treaty (by a means other than in a formal manner: i.e. rati2cation" when the )tate was 4at all timesfully able and entitled to65 accept the treaty commitments in a formal manner. The !ourt held that'ermany had not unilaterally assumed obli#ations under the !on$ention. The court also took notice of thefact that e$en if 'ermany rati2ed the treaty she had the option of enterin# into a reser$ation on Article +followin# which that particular article would no lon#er be applicable to 'ermany (i.e. e$en if one were toassume that 'ermany had intended to become a party to the !on$ention it does not presuppose that itwould ha$e also undertaken those obli#ations contained in Article +".

7. NB: The 8ienna !on$ention on the 9aw of Treaties of 1+ (8!9T" which came into force in 10discusses more fully the obli#ations of third )tates to treaties. *t clearly stipulates that an obli#ation arisesfor a third )tate from a pro$ision of a treaty only if (1" the parties to the treaty intend the pro$ision tocreate this obli#ation for the third )tates; and (-" the third )tate epressly accepts that obli#ation inwritin# (A. 7/ of the 8!9T". The 8!9T was not in force when the *!< deliberated on this case. =owe$er asseen abo$e the *!


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0. The court held the principle of equidistance as contained in Article + did not form a part of eistin# oremer#in# customary international law at the time of draftin# the !on$ention. The !ourt supported this2ndin# based on (1" the hesitation epressed by the drafters of the !on$ention ? *nternational 9aw!ommission ? on the inclusion of Article + (para. +-" and (-" the fact reser$ations to Article + waspermissible under the !on$ention (Article 1-". The court held:

6 Article + is one of those in respect of which under the reser$ations article of the !on$ention (Article 1-"

reser$ations may be made by any )tate on si#nin# ratifyin# or accedin# for speakin# #enerally it is acharacteristic of purely con$entional rules and obli#ations that in re#ard to them some faculty of makin#unilateral reser$ations may within certain limits be admitted; whereas this cannot be so in the case of#eneral or customary law rules and obli#ations which by their $ery nature must ha$e equal force for allmembers of the international community and cannot therefore be the sub3ect of any ri#ht of unilateraleclusion eercisable at will by any one of them in its own fa$or6. The normal inference would thereforebe that any articles that do not 2#ure amon# those ecluded from the faculty of reser$ation under Article1- were not re#arded as declaratory of pre$iously eistin# or emer#ent rules of law (see para +/ for acounter ar#ument and the court5s careful diCerentiation"6

Did the pro$isions in Article + on the equidistance principle attain the customary law status after the!on$ention came into force,

. The court then eamined whether the rule contained in Article + had become customary internationalaw after the !on$ention entered into force ? either due the con$ention itself (i.e. if enou#h )tates hadrati2ed the !on$ention in a manner to ful2l the criteria speci2ed below" or because of subsequent )tatepractice (i.e. e$en if adequate number of )tates had not rati2ed the !on$ention one could 2nd su%cient)tate practice to meet the criteria below". The court held that Article + of the !on$ention had not attaineda customary law status (compare the 1/0 'ene$a !on$ention with the four 'ene$a !on$entions on 1>in the 2eld of international humanitarian law in terms of its authority as a pronouncement of customaryinternational law".

1. Eor a customary rule to emer#e the court held that it needed: (1" $ery widespread and representati$eparticipation in the con$ention includin# )tates whose interests were specially aCected (i.e. #enerality";and (-" $irtually uniform practice (i.e. consistent and uniform usa#e" undertaken in a manner thatdemonstrates (7" a #eneral reco#nition of the rule of law or le#al obli#ation (i.e. opinio 3uries". *n the North

)ea !ontinental )helf cases the court held that the passa#e of a considerable period of time wasunnecessary (i.e. duration" for the formation of a customary law.

i'es$!ea' an' !e$!esentati#e $a!tici$ation

11. The court held that the 2rst criteria was not met. The number of rati2cations and accessions to thecon$ention (7 )tates" were not adequately representati$e (includin# of coastal )tates ? i.e. those )tateswhose ri#hts are aCected" or widespread.

&u!ation

1-. The court held that duration taken for the customary law rule to emer#e is not as important as

widespread and representati$e participation uniform usa#e and the eistence of an opinio 3uris.

.5ltho"&h the #assa&e of only a short #eriod of time (in this $ase- 7 years) is not ne$essarily- or ofitself- a ar to the formation of a ne' r"le of $"stomary international la' on the asis of 'hat 'asori&inally a #"rely $on*entional r"le- an indis#ensale re%"irement 'o"ld e that 'ithin the #eriod in%"estion- short tho"&h it mi&ht e- State #ra$ti$e- in$l"din& that of States 'hose interests are s#e$iallya+e$ted- sho"ld ha*e een oth e8tensi*e and *irt"ally "niform in the sense of the #ro*ision in*oked andsho"ld moreo*er ha*e o$$"rred in s"$h a 'ay as to sho' a &eneral re$o&nition that a r"le of la' or le&aloli&ation is in*ol*ed (te8t in ra$kets added)4

O$inio *u!is


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17. #inio !"ris is re@ected in acts of )tates (Nicara#ua !ase" or in omissions (9otus case" in so far as thoseacts or omissions are done followin# a belief that the said )tate is obli#ated by law to act or refrain fromactin# in a particular way. (Eor more on o#inio !"risclick here".

1>. The !ourt eamined 1/ cases where )tates had delimited their boundaries usin# the equidistancemethod after the !on$ention came into force (paras. / ". The court concluded e$en if there weresome )tate practice in fa$our of the equidistance principle the court could not deduct the necessary opinio

3uris from this )tate practice. The North )ea !ontinental )helf !ases con2rmed that both)tatepractice (the ob3ecti$e element" and opinio 3uris (the sub3ecti$e element" are essential prerequisites forthe formation of a customary law rule.This is consistent with Article 70 (1" (b" of the )tatute of the *!


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both states are said to be eempt from their respecti$e treaty and customary international law obli#ationsand in caseHH of (-" for the treaty ceased to ha$e an eCect on the party that withdraws (with the eceptionof continuin# obli#ations" but subsequent ob3ector remains bound by the customary law principle that itseeks to re3ect. (HHthere are some doubts as to the theoretical assumption presented in point (1" as will beseen below". e will 2rst discuss le#al issues surroundin# the persistent ob3ector and then the subsequentob3ector.

+e!sistent o*ecto!

The court in the5n&lo Nor'e&ian 3isheries $ase held that e$en if a customary law rule eisted (on a tenmile rule relatin# to strai#ht baselines"

.the tenmile rule would appear to be inapplicable as a#ainst Norway inasmuch as she has alwaysopposed any attempt to apply it to the Norwe#ian coast.

In the other hand in the5syl"m $asethe court found that a state is not bound by a customary law rulewhen the state refrained from becomin# a party to a con$ention that was the 2rst to introduce the rulethat had crystalliGed into custom.

JBut e$en if it could be supposed that such a custom eisted between certain 9atinAmerican )tates onlyit could not be in$oked a#ainst Keru which far from ha$in# by its attitude adhered to it has on thecontrary repudiated it by refrainin# from ratifyin# the Lonte$ideo !on$entions of 177 and 17 whichwere the 2rst to include a rule concernin# the quali2cation of the oCence in matters of diplomatic asylum.

NB: *t is ar#uable whether this can apply as a #eneral rule because there are many reasons that a statemay refuse to si#n a con$ention ? for eample political moral or economic reasons. e also know that thestate has the option to enter into a treaty and reser$e out of the ob3ectionable treaty pro$ision. Ine cannotalways assume unless the state has epressed itself on the matter that a state refuses to si#n a particulartreaty because it refutes the le#ality of a particular pro$ision within the treaty.

*n both these cases the court did not set out the criteria to determine if a state is a persistent ob3ector. *tdid howe$er allude to certain criteria in the An#loNorwe#ian 2sheries case 3urisprudence. The3urisprudence of the case appears to support the idea that an eistin# customary law rule would not applyto a state if

(1" it ob3ected to any outside attempts to apply the rule to itself ? (a" at the initial sta#es and (b" in aconsistent manner and

(-" if other states did not ob3ect to her resistance (read more in the case summary a$ailable here".

!ommentators ha$e stated on the other hand that for a state to become a persistent ob3ector the statemust

(1" ob3ect to the practice at the initial sta#es of the formation of customary law and continue to ob3ect in a

sustained manner; or

(-" adopt a contrary practice at the initial sta#es of the formation of customary law and continue to do so asustained manner.

The ob3ection must be epressed ? either $erbally or as contrary practice. There is no rule that )tates ha$eto take physical action to preser$e their ri#hts (see the commentary (1/" to the *9A customary law study".

)ome ar#ue that the notion of a persistent ob3ector is a 2#ment of the ima#ination of internationallawyers. !urtisquotes )tein in statin# that the latter5s research Jfailed to turn up any case where anauthor pro$ided e$en one instance of a state claimin# or #rantin# an eemption from a rule on the basis ofthe persistent ob3ector principle ? eceptin# of course the Asylum and Eisheries cases themsel$es.
https://ruwanthikagunaratne.wordpress.com/2014/04/11/anglo-norwegian-fisheries-summary/https://ruwanthikagunaratne.wordpress.com/2014/03/02/asylum-case-summary/https://ruwanthikagunaratne.wordpress.com/2014/03/02/asylum-case-summary/https://ruwanthikagunaratne.files.wordpress.com/2011/04/ila-customary-law-study.pdfhttp://www.yalelawjournal.org/article/withdrawing-from-international-customhttp://www.yalelawjournal.org/article/withdrawing-from-international-customhttps://ruwanthikagunaratne.wordpress.com/2014/04/11/anglo-norwegian-fisheries-summary/https://ruwanthikagunaratne.wordpress.com/2014/03/02/asylum-case-summary/https://ruwanthikagunaratne.files.wordpress.com/2011/04/ila-customary-law-study.pdfhttp://www.yalelawjournal.org/article/withdrawing-from-international-custom


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The basis of a persistent ob3ector in academic literature appears to be that the ob3ectin# state claims aneemption from a potential and actual rule. *n the Eisheries case Norway did not claim such an eemption.Norway was clear that it was not claimin# an eception to the rule (i.e. that its practice was not contrary tointernational law" but rather it claimed that its practice was in conformity with international law (see pa#e-1".

J6 JThe Norwe#ian 'o$ernment does not rely upon history to 3ustify eceptional ri#hts to claim areas of

sea which the #eneral law would deny; it in$okes history to#ether with other factors to 3ustify the way inwhich it applies the #eneral law. 6*n its (Norway5s" $iew these rules of international law take into accountthe di$ersity of facts and therefore concede that the drawin# of baselines must be adapted to the specialconditions obtainin# in diCerent re#ions. *n its $iew the system of delimitation applied in 17/ a systemcharacteriGed by the use of strai#ht lines does not therefore infrin#e the #eneral law; it is an adaptationrendered necessary by local conditions.

*n other words Norway did not plead an eemption to the #eneral rule and the court5s 2ndin# to supportthis position. *t is possible that Norway did not plead this eemption because it did not belie$e the rule toeist. Eor eample the Norwe#ian Linister of Eorei#n ACairs in 10 stated that-

Jin spite of the adoption in some treaties of the quite arbitrary distance of 1 sea miles this distancewould not appear to me to ha$e acquired the force of international law. )till less would it appear to ha$e

any foundation in reality6

A state cannot plead for an eemption of a rule that it does not reco#niGe to eist. Therefore as Norwaydid it would instead plead that its action is in conformity with international law.

But what if the rule had crystalliGed into a #eneral customary international law rule, *n this caseirrespecti$e of the reco#nition of an indi$idual state the rule would eist and the state wishin# to bene2tas a persistent ob3ector would undoubtedly claim an eemption to the rule. *n reality there ha$e not beencases before the international court of 3ustice of this nature where a state claims that it is eempted fromcustomary international law after the rule had formed.

*s it then possible to ar#ue that the court en$isa#ed a socalled persistent ob3ector rule is possible only at

the time of the formation of customary international law, As !harneypoints out in both the Asylum andEisheries cases the court was dealin# with a customary law whose eistence was uncertain. *n otherwords the rule was at its initial sta#es where it could ha$e or could not ha$e e$ol$ed into a customary law.

J*n fact the two international court of 3ustice cases which appear to support the persistent ob3ector ruleboth arose in circumstances where the new rule itself was in substantial doubt. Thus it was si#ni2cantlyeasier for the ob3ector to maintain its status. No case is cited for a circumstance in which the ob3ectoreCecti$ely maintained its status after the rule became well accepted in international law. *n fact it isunlikely that such a status can be maintained in li#ht of the realities of the international le#al system. Thisis certainly the pli#ht that befell the M) The M and


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(-" The other ar#ument is that persistent ob3ection cannot aCect or look to absol$e the state5s obli#ationsof 3us co#ens norms. Eor eample a state cannot said to ha$e a ri#ht or escape from the prohibition oftorture simply because it had been a persistent ob3ector. This would be consistent with the position intreaty law ? states cannot make treaties or treaty reser$ations that con@ict with 3us co#ens norms.

But what about other fundamental norms that fall short of the 3us co#ens status ? consider for eamplehuman ri#hts obli#ations that do not form 3us co#ens norms. Eor eample in the hypothetical scenario that

a state ob3ected initially and persistently to the freedom of epression or reli#ion would the state then beecused if it $iolated people5s ri#hts to freedom and reli#ion, Ir would we say that these people did notha$e the ri#hts because the state chose the path of a persistent ob3ector,

(7" hat if the rule that the persistent ob3ector ob3ected to was an obli#ation, Assume for eample thehuntin# of a certain endan#ered animal is prohibited under treaty and customary law. Assume that state Bhad consistently ob3ected to this prohibition and continues to hunt that animal e$en after the prohibitionbecomes a customary law ri#ht. Does this mean that state B is now absol$ed from the prohibition and cancontinue to hunt re#ardless of the customary law ban,

*n $iew of the abo$e it maybe more prudent and practical to ar#ue that a state can only be a persistentob3ector ? and ha$e the bene2ts of bein# a persistent ob3ector ? at the time of the formation of thecustomary law. This is also consistent with the fact that eistin# customary law binds new states and that

they cannot withdraw from customary law after they attain statehood. The two decisions of the*nternational !ourt of


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Reco--en'e' Rea'in

Case "a.

5n&lo Nor'e&ian 3isheries Case- *!


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Bradley et al. J!ustomary *nternational 9aw and ithdrawal Oi#hts in the A#e of TreatiesDuke


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NORTH SEA CONTINENTAL SHELF CASES/u'-ent of 01 Fe!ua!2 3454

The !ourt deli$ered 3ud#ment by 11 $otes to + in the North )ea !ontinental )helf cases.

The dispute which was submitted to the !ourt on - Eebruary 1+ related to the

delimitation of the continental shelf between the Eederal Oepublic of 'ermany and Denmarkon the one hand and between the Eederal Oepublic of 'ermany and the Netherlands on theother. The Karties asked the !ourt to state the principles and rules of international lawapplicable and undertook thereafter to carry out the delimitations on that basis.

The !ourt re3ected the contention of Denmark and the Netherlands to the eCect that thedelimitations in question had to be carried out in accordance with the principle ofequidistance as de2ned in Article + of the 1/0 'ene$a !on$ention on the !ontinental )helfholdin#:

that the Eederal Oepublic which had not rati2ed the !on$ention was not le#ally bound by

the pro$isions of Article +;

that the equidistance principle was not a necessary consequence of the #eneral concept ofcontinental shelf ri#hts and was not a rule of customary international law.

The !ourt also re3ected the contentions of the Eederal Oepublic in so far as these sou#htacceptance of the principle of an apportionment of the continental shelf into 3ust andequitable shares. *t held that each Karty had an ori#inal ri#ht to those areas of thecontinental shelf which constituted the natural prolon#ation of its land territory into andunder the sea. *t was not a question of apportionin# or sharin# out those areas but ofdelimitin# them.

The !ourt found that the boundary lines in question were to be drawn by a#reementbetween the Karties and in accordance with equitable principles and it indicated certainfactors to be taken into consideration for that purpose. *t was now for the Karties to ne#otiateon the basis of such principles as they ha$e a#reed to do.

The proceedin#s relatin# to the delimitation as between the Karties of the areas of the North)ea continental shelf appertainin# to each of them were instituted on - Eebruary 1+ bythe communication to the Oe#istry of the !ourt of two )pecial A#reements betweenDenmark and the Eederal Oepublic and the Eederal Oepublic and the Netherlandsrespecti$ely. By an Irder of -+ April 1+0 the !ourt 3oined the proceedin#s in the two cases.

The !ourt decided the two cases in a sin#le


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the Karties.

The Facts and the Contentions of the Parties ($a!as6 3738 of the /u'-ent)

The two )pecial A#reements had asked the !ourt to declare the principles and rules of

international law applicable to the delimitation as between the Karties of the areas of theNorth )ea continental shelf appertainin# to each of them beyond the partial boundaries inthe immediate $icinity of the coast already determined between the Eederal Oepublic and theNetherlands by an a#reement of 1 December 1+> and between the Eederal Oepublic andDenmark by an a#reement of


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circumstances as those of the North )ea was one accordin# to which each of the )tatesconcerned should ha$e a V3ust and equitable shareV of the a$ailable continental shelf inproportion to the len#th of its seafronta#e. *t had also contended that in a sea shaped as isthe North )ea each of the )tates concerned was entitled to a continental shelf areaetendin# up to the central point of that sea or at least etendin# to its median line.

Alternati$ely the Eederal Oepublic had claimed that if the equidistance method were held tobc applicable the con2#uration of the 'erman North )ea coast constituted a specialcircumstance such as to 3ustify a departure from that method of delimitation in this particularcase.

The Apportionment Theory Rejected($a!as6 39701 of the /u'-ent)

The !ourt felt unable to accept in the particular form it had taken the 2rst contention putforward on behalf of the Eederal Oepublic. *ts task was to delimit not to apportion the areasconcerned. The process of delimitation in$ol$ed establishin# the boundaries of an areaalready in principle appertainin# to the coastal )tate and not the determination de no*o ofsuch an area. The doctrine of the 3ust and equitable share was wholly at $ariance with the

most fundamental of all the rules of law relatin# to the continental shelf namely that theri#hts of the coastal )tate in respect of the area of continental shelf constitutin# a naturalprolon#ation of its land territory under the sea eisted i#so fa$to and a initio- by $irtue of itsso$erei#nty o$er the land. That ri#ht was inherent. *n order to eercise it no special le#alacts had to be performed. *t followed that the notion of apportionin# an as yet undelimitedarea considered as a whole (which underlay the doctrine of the 3ust and equitable share" wasinconsistent with the basic concept of continental shelf entitlement.

NonApp!ica"i!ity of Artic!e # of the $%&' Continenta! (he!f Convention ($a!as6 037

5 of the /u'-ent)

The !ourt then turned to the question whether in delimitin# those areas the Eederal Oepublicwas under a le#al obli#ation to accept the application of the equidistance principle. hile itwas probably true that no other method of delimitation had the same combination ofpractical con$enience and certainty of application those factors did not su%ce of themsel$esto con$ert what was a method into a rule of law. )uch a method would ha$e to draw its le#alforce from other factors than the eistence of those ad$anta#es.

The 2rst question to be considered was whether the 1/0 'ene$a !on$ention on the!ontinental )helf was bindin# for all the Karties in the case. Mnder the formal pro$isions ofthe !on$ention it was in force for any indi$idual )tate that had si#ned it within the timelimitpro$ided only if that )tate had also subsequently rati2ed it. Denmark and the Netherlandshad both si#ned and rati2ed the !on$ention and were parties to it but the Eederal Oepublicalthou#h one of the si#natories of the !on$ention had ne$er rati2ed it and wasconsequently not a party. *t was admitted on behalf of Denmark and the Netherlands that inthe circumstances the !on$ention could not as such be bindin# on the Eederal Oepublic. Butit was contended that the r#ime of Article + of the !on$ention had become bindin# on theEederal Oepublic because by conduct by public statements and proclamations and in otherways the Oepublic had assumed the obli#ations of the !on$ention.

*t was clear that only a $ery de2nite $ery consistent course of conduct on the part of a )tatein the situation of the Eederal Oepublic could 3ustify upholdin# those contentions. hen anumber of )tates drew up a con$ention speci2cally pro$idin# for a particular method by


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which the intention to become bound by the r#ime of the con$ention was to be manifestedit was not li#htly to be presumed that a )tate which had not carried out those formalities hadne$ertheless somehow become bound in another way. Eurthermore had the Eederal Oepublicrati2ed the 'ene$a !on$ention it could ha$e entered a reser$ation to Article + by reason ofthe faculty to do so conferred by Article 1- of the !on$ention.

Inly the eistence of a situation of estoppel could lend substance to the contention ofDenmark and the Netherlands i.e. if the Eederal Oepublic were now precluded from denyin#the applicability of the con$entional r#ime by reason of past conduct declarations etc.which not only clearly and consistently e$inced acceptance of that r#ime but also hadcaused Denmark or the Netherlands in reliance on such conduct detrimentally to chan#eposition or suCer some pre3udice. If this there was no e$idence. Accordin#ly Article + of the'ene$a !on$ention was not as such applicable to the delimitations in$ol$ed in the presentproceedin#s.

The )*uidistance Princip!e Not +nherent in the ,asic Doctrine of the Continenta!

(he!f ($a!as6 87;4 of the /u'-ent)

*t had been maintained by Denmark and the Netherlands that the Eederal Oepublic was inany e$ent and quite apart from the 'ene$a !on$ention bound to accept delimitation on anequidistance basis since the use of that method was a rule of #eneral or customaryinternational law automatically bindin# on the Eederal Oepublic.

Ine ar#ument ad$anced by them in support of this contention which mi#ht be termed the a#riori ar#ument started from the position that the ri#hts of the coastal )tate to itscontinental shelf areas were based on its so$erei#nty o$er the land domain of which theshelf area was the natural prolon#ation under the sea. Erom this notion of appurtenance wasderi$ed the $iew which the !ourt accepted that the coastal )tateUs ri#hts eistedi#so

fa$to and a initio Denmark and the Netherlands claimed that the test of appurtenancemust be VproimityV: all those parts of the shelf bein# considered as appurtenant to aparticular coastal )tate which were closer to it than they were to any point on the coast ofanother )tate. =ence delimitation had to be eCected by a method which would lea$e toeach one of the )tates concerned all those areas that were nearest to its own coast. As onlyan equidistance line would do this only such a line could be $alid it was contended.

This $iew had much force; the #reater part of a )tateUs continental shelf areas wouldnormally in fact be nearer to its coasts than to any other. But the real issue was whether itfollowed that e$ery part of the area concerned must be placed in that way. The !ourt did notconsider this to follow from the notion of proimity which was a somewhat @uid one. Lorefundamental was the concept of the continental shelf as bein# the natural prolon#ation ofthe land domain. &$en if proimity mi#ht aCord one of the tests to be applied and animportant one in the ri#ht conditions it mi#ht not necessarily be the only nor in allcircumstances the most appropriate one. )ubmarine areas did not appertain to the coastal)tate merely because they were near it nor did their appurtenance depend on any certaintyof delimitation as to their boundaries. hat conferred the i#so !"re title was the fact that thesubmarine areas concerned mi#ht be deemed to be actually part of its territory in the sensethat they were a prolon#ation of its land territory under the sea. &quidistance clearly couldnot be identi2ed with the notion of natural prolon#ation since the use of the equidistancemethod would frequently cause areas which were the natural prolon#ation of the territory ofone )tate to be attributed to another. =ence the notion of equidistance was not an


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inescapable a#riori accompaniment of basic continental shelf doctrine.

A re$iew of the #enesis of the equidistance method of delimitation con2rmed the fore#oin#conclusion. The VTruman KroclamationV issued by the 'o$ernment of the Mnited )tates on-0 )eptember 1>/ could be re#arded as a startin# point of the positi$e law on the sub3ect

and the chief doctrine it enunciated that the coastal )tate had an ori#inal natural andeclusi$e ri#ht to the continental shelf oC its shores had come to pre$ail o$er all others andwas now re@ected in the1/0 'ene$a !on$ention. ith re#ard to the delimitation ofboundaries between the continental shel$es of ad3acent )tates the Truman Kroclamation hadstated that such boundaries Vshall be determined by the Mnited )tates and the )tateconcerned in accordance with equitable principlesV. These two concepts of delimitation bymutual a#reement and delimitation in accordance with equitable principles had underlain allthe subsequent history of the sub3ect. *t had been lar#ely on the recommendation of acommittee of eperts that the principle of equidistance for the delimitation of continentalshelf boundaries had been accepted by the Mnited Nations *nternational 9aw !ommission inthe tet it had laid before the 'ene$a !onference of 1/0 on the 9aw of the )ea which hadadopted the !ontinental )helf !on$ention. *t could le#itimately be assumed that the eperts

had been actuated by considerations not of le#al theory but of practical con$enience andcarto#raphy. Loreo$er the article adopted by the !ommission had #i$en priority todelimitation by a#reement and had contained an eception in fa$our of VspecialcircumstancesV.

The !ourt consequently considered that Denmark and the Netherlands in$erted the trueorder of thin#s and that far from an equidistance rule ha$in# been #enerated by anantecedent principle of proimity inherent in the whole concept of continental shelfappurtenance the latter was rather a rationaliGation of the former

The )*uidistance Princip!e Not a Ru!e of Customary +nternationa! -aw ($a!as6 517

90 of the /u'-ent)

The question remained whether throu#h positi$e law processes the equidistance principlemust now be re#arded as a rule of customary international law.

Oe3ectin# the contentions of Denmark and the Netherlands the !ourt considered that theprinciple of equidistance as it 2#ured in Article + of the 'ene$a !on$ention had not beenproposed by the *nternational 9aw !ommission as an emer#in# rule of customaryinternational law. This Article could not be said to ha$e re@ected or crystalliGed such a rule.This was con2rmed by the fact that any )tate mi#ht make reser$ations in respect of Article +unlike Articles 1 - and 7 on si#nin# ratifyin# or accedin# to the !on$ention. hile certainother pro$isions of the !on$ention althou#h relatin# to matters that lay within the 2eld ofrecei$ed customary law were also not ecluded from the faculty of reser$ation they allrelated to rules of #eneral maritime law $ery considerably antedatin# the !on$ention whichwere only incidental to continental shelf ri#hts as such and had been mentioned in the!on$ention simply to ensure that they were not pre3udiced by the eercise of continentalshelf ri#hts. Article + howe$er related directly to continental shelf ri#hts as such and sinceit was not ecluded from the faculty of reser$ation it was a le#itimate inference that it wasnot considered to re@ect emer#ent customary law.

*t had been ar#ued on behalf of Denmark and the Netherlands that e$en if at the date of the'ene$a !on$ention no rule of customary international law eisted in fa$our of the


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equidistance principle such a rule had ne$ertheless come into bein# since the !on$entionpartly because of its own impact and partly on the basis of subsequent )tate practice. *norder for this process to occur it was necessary that Article + of the !on$ention should at alle$ents potentially be of a normcreatin# character. Article + was so framed howe$er as toput the obli#ation to make use of the equidistance method after a primary obli#ation to

eCect delimitation by a#reement. Eurthermore the part played by the notion of specialcircumstances in relation to the principle of equidistance the contro$ersies as to the eactmeanin# and scope of that notion and the faculty of makin# reser$ations to Article + mustall raise doubts as to the potentially normcreatin# character of that Article.

Eurthermore while a $ery widespread and representati$e participation in a con$ention mi#htshow that a con$entional rule had become a #eneral rule of international law in the presentcase the number of rati2cations and accessions so far was hardly su%cient. As re#ards thetime element althou#h the passa#e of only a short period of time was not necessarily a barto the formation of a new rule of customary international law on the basis of what wasori#inally a purely con$entional rule it was indispensable that )tate practice durin# thatperiod includin# that of )tates whose interests were specially aCected should ha$e been

both etensi$e and $irtually uniform in the sense of the pro$ision in$oked and should ha$eoccurred in such a way as to show a #eneral reco#nition that a rule of law was in$ol$ed.)ome 1/ cases had been cited in which the )tates concerned had a#reed to draw or haddrawn the boundaries concerned accordin# to the principle of equidistance but there was noe$idence that they had so acted because they had felt le#ally compelled to draw them inthat way by reason of a rule of customary law. The cases cited were inconclusi$e andinsu%cient e$idence of a settled practice.

The !ourt consequently concluded that the 'ene$a !on$ention was not in its ori#ins orinception declaratory of a mandatory rule of customary international law en3oinin# the use ofthe equidistance principle its subsequent eCect had not been constituti$e of such a rule and

)tate practice up to date had equally been insu%cient for the purpose.

The Princip!es and Ru!es of -aw App!ica"!e ($a!as6 97313 of the /u'-ent)

The le#al situation was that the Karties were under no obli#ation to apply the equidistanceprinciple either under the 1/0 !on$ention or as a rule of #eneral or customary internationallaw. *t consequently became unnecessary for the !ourt to consider whether or not thecon2#uration of the 'erman North )ea coast constituted a Vspecial circumstanceV. *tremained for the !ourt howe$er to indicate to the Karties the principles and rules of law inthe li#ht of which delimitation was to be eCected.

The basic principles in the matter of delimitation deri$in# from the Truman Kroclamationwere that it must be the ob3ect of a#reement between the )tates concerned and that sucha#reement must be arri$ed at in accordance with equitable principles. The Karties wereunder an obli#ation to enter into ne#otiations with a $iew to arri$in# at an a#reement andnot merely to #o throu#h a formal process of ne#otiation as a sort of prior condition for theautomatic application of a certain method of delimitation in the absence of a#reement; theywere so to conduct themsel$es that the ne#otiations were meanin#ful which would not bethe case when one of them insisted upon its own position without contemplatin# anymodi2cation of it. This obli#ation was merely a special application of a principle underlyin# allinternational relations which was moreo$er reco#niGed in Article 77 of the !harter of the


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Mnited Nations as one of the methods for the peaceful settlement of international disputes.

The Karties were under an obli#ation to act in such a way that in the particular case andtakin# all the circumstances into account equitable principles were applied. There was noquestion of the !ourtUs decision bein# e8 ae%"o et ono. *t was precisely a rule of law that

called for the application of equitable principles and in such cases as the present ones theequidistance method could unquestionably lead to inequity. Ither methods eisted andmi#ht be employed alone or in combination accordin# to the areas in$ol$ed. Althou#h theKarties intended themsel$es to apply the principles and rules laid down by the !ourt someindication was called for of the possible ways in which they mi#ht apply them.

Eor all the fore#oin# reasons the !ourt found in each case that the use of the equidistancemethod of delimitation was not obli#atory as between the Karties; that no other sin#lemethod of delimitation was in all circumstances obli#atory; that delimitation was to beeCected by a#reement in accordance with equitable principles and takin# account of allrele$ant circumstances in such a way as to lea$e as much as possible to each Karty all thoseparts of the continental shelf that constituted a natural prolon#ation of its land territory

without encroachment on the natural prolon#ation of the land territory of the other; and thatif such delimitation produced o$erlappin# areas they were to be di$ided between the Kartiesin a#reed proportions or failin# a#reement equally unless they decided on a r#ime of3oint 3urisdiction user or eploitation.

*n the course of ne#otiations the factors to be taken into account were to include: the#eneral con2#uration of the coasts of the Karties as well as the presence of any special orunusual features; so far as known or readily ascertainable the physical and #eolo#icalstructure and natural resources of the continental shelf areas in$ol$ed the element of areasonable de#ree of proportionality between the etent of the continental shelf areasappertainin# to each )tate and the len#th of its coast measured in the #eneral direction of

the coastline takin# into account the eCects actual or prospecti$e of any other continentalshelf delimitations in the same re#ion.


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N*!AOA'MA 8) MN*T&D )TAT&) ()MLLAOP" IN )&9E D&E&N!& AND M)&IE EIO!&

X Ouwanthika 'unaratne and Kublic *nternational 9aw at https:WWruwanthika#unaratne.wordpress.com

-0 ? present. MnauthoriGed use andWor duplication of this material without epress and written

permission from this blo#5s author andWor owner is strictly prohibited. &cerpts and links may be usedpro$ided that full and clear credit is #i$en to Ouwanthika 'unaratne and Kublic *nternational 9aw with

appropriate and speci2c direction to the ori#inal content.

Case: Case Conce!nin the Mi"ita!2 an' +a!a-i"ita!2 Acti#ities In an' Aainst Nica!aua

(Nica!aua #s Unite' States) (>erits? fo$"sin& on matters relatin& to the "se of for$e and self@defen$e)

Yea! of &ecision: 3495

Cou!t: IC/

NA? This lo& #ost 'ill dis$"ss matters on the "se of for$e and self@defen$e +f you wou!d !i.e to read

a"out the impact of the Nicara/ua jud/ement on customary internationa! !aw and the 0(

mu!ti!atera! reservation p!ease c!ic. here1

Overview:The $ase in*ol*ed military and #aramilitary a$ti*ities $ond"$ted y the Bnited States a&ainst

Ni$ara&"a from 191 to 19 Ni$ara&"a asked the Co"rt to ,nd that these a$ti*ities *iolated

international la'

Facts of the Case:

*n


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)tates military ? with the aim to o$erthrow the 'o$ernment of Nicara#ua. Attacks a#ainst Nicara#ua

included the minin# of Nicara#uan ports and attacks on ports oil installations and a na$al base. Nicara#ua

alle#ed that aircrafts belon#in# to the Mnited )tates @ew o$er Nicara#uan territory to #ather intelli#ence

supply to the contras in the 2eld and to intimidate the population.

The Mnited )tates did not appear before the *!< at the merit sta#es after refusin# to accept the *!e' Nica!aua in 349 = 349?@

an' (0) .hen its acti#ities .ith the cont!a fo!ces !esu"te' in the th!eat o! use of fo!ce (see

paras 10 -1".

The !ourt held that:


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1

The prohibition on the use of force is found in Article -(>" of the MN !harter and in customary

international law.

*n a contro$ersial 2ndin# the court subclassi2ed the use of force as: (1" the Jmost #ra$e forms of

the use of force (i.e. those that constitute an armed attack" and (-" the Jless #ra$e form (i.e

or#aniGin# insti#atin# assistin# or participatin# in acts of ci$il strife and terrorist acts in another

)tate ? when the acts referred to in$ol$e a threat or use of force not amountin# to an armed

attack".

The Mnited )tates $iolated the customary international law prohibition on the use of force when it

laid mines in Nicara#uan ports. *t $iolated this prohibition when it attacked Nicara#uan ports oi

installations and a na$al base (see below". The Mnited )tates could 3ustify its action on collecti$e

selfdefence if certain criteria were met ? this aspect is discussed below.

The Mnited )tates $iolated the customary international law prohibition on the use of force when it

assisted the contras by Jor#aniGin# or encoura#in# the or#aniGation of irre#ular forces and armed

bands6 for incursion into the territory of another state and participated Jin acts of ci$il strife6inanother )tate when these acts in$ol$ed the threat or use of force.

The supply of funds to the contras did not $iolate the prohibition on the use of force. Nicara#ua

ar#ued that the timin# of the oCensi$es a#ainst it was determined by the Mnited )tates: i.e. an

oCensi$e could not be launched until the requisite funds were a$ailable. The !ourt held that J6it

does not follow that each pro$ision of funds by the Mnited )tates was made to set in motion a

particular oCensi$e and that that oCensi$e was planned by the Mnited )tates. The !ourt held

further that while the armin# and trainin# of the contras in$ol$ed the threat or use of force a#ainst

Nicara#ua the supply of funds in it self only amounted to an act of inter$ention in the interna

aCairs of Nicara#ua (para --" ? this aspect is discussed below.

hat is an a!-e' attac>

A contro$ersial but interestin# aspect of the !ourt5s 3ud#ement was its de2nition of an armed

attack. The !ourt held that an armed attack included:

(1) a$tion y re&"lar armed for$es a$ross an international order; and

(2) .the sendin& y or on ehalf of a State of armed ands- &ro"#s- irre&"lars or mer$enaries- 'hi$h $arry

o"t a$ts of armed for$e a&ainst another State of s"$h &ra*ity as to amo"nt to (inter alia) an a$t"al armed

atta$k $ond"$ted y re&"lar for$es- or its (the StateHs) s"stantial in*ol*ement therein4

NA? The se$ond #ointsome'hatresemles 5rti$le (&) of theBNG5 0esol"tion 1 (I) on the

De,nition of 5&&ression

Lere frontier incidents are not considered as an armed attack ? unless because of its scale and

eCects it would ha$e been classi2ed as an armed attack if it was carried out by re#ular forces.
https://ruwanthikagunaratne.wordpress.com/2011/04/11/lesson-5-1-prohibition-on-the-use-of-force-and-the-un-charter/https://ruwanthikagunaratne.wordpress.com/2011/04/11/lesson-5-2-article-24-of-the-un-charter/http://books.google.lk/books?id=mCLKAgAAQBAJ&pg=PA140&dq=the+sending+by+or+on+behalf+of+a+State+of+armed+bands,+groups,+irregulars+or+mercenaries,+which+carry+out+acts+of+armed+force+against+another+State+of+such+gravity+as+to+amount+to+(inter+alia)+an+actual+armed+attack+conducted+by+regular+forces,+or+its+substantial+involvement+therein%22&hl=en&sa=X&ei=PKskU64fyOWsB-zkgMAL&redir_esc=y#v=onepage&q=the%20sending%20by%20or%20on%20behalf%20of%20a%20State%20of%20armed%20bands%2C%20groups%2C%20irregulars%20or%20mercenaries%2C%20which%20carry%20out%20acts%20of%20armed%20force%20against%20another%20State%20of%20such%20gravity%20as%20to%20amounhttp://books.google.lk/books?id=mCLKAgAAQBAJ&pg=PA140&dq=the+sending+by+or+on+behalf+of+a+State+of+armed+bands,+groups,+irregulars+or+mercenaries,+which+carry+out+acts+of+armed+force+against+another+State+of+such+gravity+as+to+amount+to+(inter+alia)+an+actual+armed+attack+conducted+by+regular+forces,+or+its+substantial+involvement+therein%22&hl=en&sa=X&ei=PKskU64fyOWsB-zkgMAL&redir_esc=y#v=onepage&q=the%20sending%20by%20or%20on%20behalf%20of%20a%20State%20of%20armed%20bands%2C%20groups%2C%20irregulars%20or%20mercenaries%2C%20which%20carry%20out%20acts%20of%20armed%20force%20against%20another%20State%20of%20such%20gravity%20as%20to%20amounhttp://jurist.law.pitt.edu/3314.htmhttp://jurist.law.pitt.edu/3314.htmhttp://jurist.law.pitt.edu/3314.htmhttp://jurist.law.pitt.edu/3314.htmhttps://ruwanthikagunaratne.wordpress.com/2011/04/11/lesson-5-1-prohibition-on-the-use-of-force-and-the-un-charter/https://ruwanthikagunaratne.wordpress.com/2011/04/11/lesson-5-2-article-24-of-the-un-charter/http://books.google.lk/books?id=mCLKAgAAQBAJ&pg=PA140&dq=the+sending+by+or+on+behalf+of+a+State+of+armed+bands,+groups,+irregulars+or+mercenaries,+which+carry+out+acts+of+armed+force+against+another+State+of+such+gravity+as+to+amount+to+(inter+alia)+an+actual+armed+attack+conducted+by+regular+forces,+or+its+substantial+involvement+therein%22&hl=en&sa=X&ei=PKskU64fyOWsB-zkgMAL&redir_esc=y#v=onepage&q=the%20sending%20by%20or%20on%20behalf%20of%20a%20State%20of%20armed%20bands%2C%20groups%2C%20irregulars%20or%20mercenaries%2C%20which%20carry%20out%20acts%20of%20armed%20force%20against%20another%20State%20of%20such%20gravity%20as%20to%20amounhttp://jurist.law.pitt.edu/3314.htmhttp://jurist.law.pitt.edu/3314.htmhttp://jurist.law.pitt.edu/3314.htm


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(7" *n the case of collecti$e selfdefence ? the $ictim )tate must request for assistance (Jthere is no rule

permittin# the eercise of collecti$e selfdefence in the absence of a request by the )tate which re#ards

itself as the $ictim of an armed attack".

(>" The )tate does not under customary international law ha$e the same obli#ation as under Article /1 of

the MN !harter to report to the )ecurity !ouncil that an armed attack happened ? but Jthe absence of a

report may be one of the factors indicatin# whether the )tate in question was itself con$inced that it was

actin# in selfdefence(see elo')

JAt this point the !ourt may consider whether in customary international law there is any

requirement correspondin# to that found in the treaty law of the Mnited Nations !harter by which the

)tate claimin# to use the ri#ht of indi$idual or collecti$e selfdefence must report to an international body

empowered to determine the conformity with international law of the measures which the )tate is seekin#

to 3ustify on that basis. Thus Article /1 of the Mnited Nations !harter requires that measures taken by

)tates in eercise of this ri#ht of selfdefence must be Jimmediately reported to the )ecurity !ouncil. As

the !ourt has obser$ed abo$e (para#raphs 10 and 100" a principle enshrined in a treaty if re@ected in

customary international law may well be so unencumbered with the conditions and modalities surroundin#it in the treaty. hate$er in@uence the !harter may ha$e had on customary international law in these

matters it is clear that in customary international law it is not a condition of the lawfulness of the use of

force in selfdefence that a procedure so closely dependent on the content of a treaty commitment and of

the institutions established by it should ha$e been followed. In the other hand if selfdefence is

ad$anced as a 3usti2cation for measures which would otherwise be in breach both of the principle of

customary international law and of that contained in the !harter it is to be epected that the conditions of

the !harter should be respected. Thus for the purpose of enquiry into the customary law position the

absence of a report may be one of the factors indicatin# whether the )tate in question was itself con$inced

that it was actin# in selfdefence ()ee paras - -7- -7+".

The !ourt looked etensi$ely into the conduct of Nicara#ua &l )al$ador !osta Oica and =onduras

in determinin# whether an armed attack was undertaken by Nicara#ua a#ainst the three countries ?

which in turn would necessitate selfdefence (paras -7 ? -7+". The !ourt referred to statements

made by &l )al$ador !osta Oica =onduras and the Mnited )tates before the )ecurity !ouncil. None

of the countries who were alle#edly sub3ect to an armed attack by Nicara#ua (1" declared

themsel$es as a $ictim of an armed attack or request assistance from the Mnited )tates in self

defence ? at the time when the Mnited )tates was alle#edly actin# in collecti$e selfdefence; and (-"

the Mnited )tates did not claim that it was actin# under Article /1 of the MN !harter and it did not

report that it was so actin# to the )ecurity !ouncil. The !ourt concluded that the Mnited )tates

cannot 3ustify its use of force as collecti$e selfdefence.

The criteria with re#ard to necessity and proportionality that is necessary when usin# force in self

defence ? was also not ful2lled (para -7".

6 The Cou!t he"' that the Unite' States !eache' its CIL o"iation = not to inte!#enein the aBai!s of anothe! State = .hen it t!aine' a!-e' e,ui$$e' an' Dnance' the

cont!a fo!ces o! encou!ae' su$$o!te' an' ai'e' the -i"ita!2 an' $a!a-i"ita!2

acti#ities aainst Nica!aua6


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The principle of non inter$ention means that e$ery )tate has a ri#ht to conduct its aCairs without

outside interference ? i.e it J6forbids )tates or #roups of )tates to inter$ene directly or indirectly in

internal or eternal aCairs of other )tates. . This is a corollary of the principle of so$erei#n equality

of )tates.

A prohibited inter$ention must accordin#ly be one bearin# on matters in which each )tate is permitted by

the principle of )tate so$erei#nty to decide freely. Ine of these is the choice of a political economic socia

and cultural system and the formulation of forei#n policy. *nter$ention is wron#ful when it uses methods of

coercion in re#ard to such choices which must remain free ones. The element of coercion which de2nes

and indeed forms the $ery essence of prohibited inter$ention is particularly ob$ious in the case of an

inter$ention which uses force either in the direct form of military action or in the indirect form of support

for sub$ersi$e or terrorist armed acti$ities within another )tate (para -/".

Nicara#ua stated that the acti$ities of the Mnited )tates were aimed to o$erthrow the #o$ernment

of Nicara#ua and to substantially dama#e the economy and weaken the political system to coerce

the 'o$ernment of Nicara#ua to accept $arious political demands of the Mnited )tates. The !ourt

held:

J62rst that the Mnited )tates intended by its support of the contras to coerce the 'o$ernment of

Nicara#ua in respect of matters in which each )tate is permitted by the principle of )tate so$erei#nty to

decide freely (see para#raph -/ abo$e" ; and secondly that the intention of the contras themsel$es was

to o$erthrow the present 'o$ernment of Nicara#ua6 The !ourt considers that in international law if one

)tate with a $iew to the coercion of another )tate supports and assists armed bands in that )tate whose

purpose is to o$erthrow the #o$ernment of that )tate that amounts to an inter$ention by the one )tate in

the internal aCairs of the other whether or not the political ob3ecti$e of the )tate #i$in# such support and

assistance is equally far reachin#.

The 2nancial support trainin# supply of weapons intelli#ence and lo#istic support #i$en by the

Mnited )tates to the contras was a breach of the principle of noninterference. J6no such #enera

ri#ht of inter$ention in support of an opposition within another )tate eists in contemporary

international law e$en if such a request for assistance is made by an opposition #roup of that

)tate (see para ->+ for more".

=owe$er in a contro$ersial 2ndin# the !ourt held that the Mnited )tates did not de$ise the

strate#y direct the tactics of the contras or eercise control on them in manner so as to make their

acts committed in $iolation of international law imputable to the Mnited )tates (see in this

respect JDeterminin# M) responsibility for contra operations under international law 01 AL


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initial years of Mnited )tates assistance the contra force was so dependent. =owe$er whether the Mnited

)tates 'o$ernment at any sta#e de$ised the strate#y and directed the tactics of the contras depends on

the etent to which the Mnited )tates made use of the potential for control inherent in that dependence.

The !ourt already indicated that it has insu%cient e$idence to reach a 2ndin# on this point. *t is a fortior

unable to determine that the contra force may be equated for le#al purposes with the forces of the Mnited

)tates6The !ourt has taken the $iew (para#raph 11 abo$e" that Mnited )tates participation e$en if

preponderant or decisi$e in the 2nancin# or#aniGin# trainin# supplyin# and equippin# of the contras the

selection of its military or paramilitary tar#ets and the plannin# of the whole of its operation is still

insu%cient in itself on the basis of the e$idence in the possession of the !ourt for the purpose of

attributin# to the Mnited )tates the acts committed by the contras in the course of their military or

paramilitary operations in Nicara#ua. All the forms of Mnited )tates participation mentioned abo$e and

e$en the #eneral control by the respondent )tate o$er a force with a hi#h de#ree of dependency on it

would not in themsel$es mean without further e$idence that the Mnited )tates directed or enforced the

perpetration of the acts contrary to human ri#hts and humanitarian law alle#ed by the applicant )tate.

)uch acts could well be committed by members of the contras without the control of the Mnited )tates. Eor

this conduct to #i$e rise to le#al responsibility of the Mnited )tates it would in principle ha$e to be pro$ed

that that )tate had eCecti$e control of the military or paramilitary.

*nterestin# howe$er the !ourt also held that pro$idin# J6humanitarian aid to persons or forces in

another country whate$er their political a%liations or ob3ecti$es cannot be re#arded as unlawfu

inter$ention or as in any other way contrary to international law (para ->-".

*n the e$ent one )tate inter$enes in the aCairs of another )tate the $ictim )tate has a ri#ht to

inter$ene in a manner that is short of an armed attack (-1".

Jhile an armed attack would #i$e rise to an entitlement to collecti$e selfdefence a use of force of a

lesser de#ree of #ra$ity cannot as the !ourt has already obser$ed (para#raph -1 1 abo$e". produce anyentitlement to take collecti$e countermeasures in$ol$in# the use of force. The acts of which Nicara#ua is

accused e$en assumin# them to ha$e been established and imputable to that )tate could only ha$e

3usti2ed proportionate countermeasures on the part of the )tate which had been the $ictim of these acts

namely &l )al$ador =onduras or !osta Oica. They could not 3ustify countermeasures taken by a third

)tate the Mnited )tates and particularly could not 3ustify inter$ention in$ol$in# the use of force.

?6 The Unite' States !eache' its custo-a!2 inte!nationa" "a. o"iation = not to #io"ate the

so#e!eint2 of anothe! State = .hen it 'i!ecte' o! autho!ie' its ai!c!afts to 2 o#e!

Nica!auan te!!ito!2 an' .hen it "ai' -ines in the inte!na" .ate!s of Nica!aua an' its

te!!ito!ia" sea6

The *!< eamined e$idence and found that in early 10> mines were laid in or close to ports of the

territorial sea or internal waters of Nicara#ua Jby persons in the pay or actin# ion the instructions

of the Mnited )tates and actin# under its super$ision with its lo#istical support. The Mnited

)tates did not issue any warnin# on the location or eistence of mines and this resulted in in3uries

and increases in maritime insurance rates.

The court found that the Mnited )tates also carried out hi#haltitude reconnaissance @i#hts o$er

Nicara#uan territory and certain lowaltitude @i#hts complained of as causin# sonic booms.


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->

The basic concept of )tate so$erei#nty in customary international law is found in Article -(1" of the

MN !harter. )tate so$erei#nty etends to a )tate5s internal waters its territorial sea and the air

space abo$e its territory. The Mnited )tates $iolated customary international law when it laid mines

in the territorial sea and internal waters of Nicara#ua and when it carried

out unauthorised o$er@i#hts o$er Nicara#uan airspace by aircrafts that belon# to or was under the

control of the Mnited )tates.

Mate!ia" on the Nica!aua case

The follo'in& $ontains a list of s$holarly arti$les and other material that dis$"ss the Ni$ara&"a $ase If yo"

'o"ld like to add to the list- #lease note yo"r s"&&estions in the $omment o8

The3ud#ment includin# separate opinions of indi$idual 3ud#es and summaries of the 3ud#ment and orders

The orld !ourt and " continued to e$ol$e throu#h the years."

The orld !ourt5s Achie$ement Oichard Ealk 01 AL


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-/

Erank points out that the inter$entions fallin# short of armed attacks would not allow )tates to tar#et rebel

#roups in another )tate5s territory e$en if the insur#ency is planned trained armed and directed from that

territory".

Krotectin# the !ourt5s institutional interests: hy not the Larbury approach, Lichael


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-+

The Krinciple of Non*nter$ention -/ Pears after the Nicara#ua


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O+INIO /URIS

hat is o$inio *u!is

1. Article 70 (1" (b" of the )tatute of the *nternational !ourt of . The fact that a state undertakes a particular because of political epediency and not because of a beliefthat the said practice is bindin# on the )tate by way of a le#al obli#ation (o#inio !"ris" is detrimental to theformation of a customary law. *n the Asylum case the !ourt said: Jconsiderations of con$enience orpolitical epediency seemed to ha$e prompted the territorial )tate to reco#nise asylum without such adecision bein# dictated by any feelin# of le#al obli#ation.(see also North )ea !ontinental )helf!ases and9otus !ase".

7 #inio !"ris is re@ected in acts of states (Nicara#ua !ase" or in omissions (9otus case" in so far as thoseacts or omissions are done followin# a belief that the said )tate is obli#ated by law to act or refrain fromactin# in a particular way. *n the 9otus case Erance alle#ed that 3urisdictional questions on collision casesare rarely heard in criminal cases because )tates tend to prosecute only before the @a# )tate. Erancear#ued that this absence of prosecutions points to a positi$e rule in customary law on collisions. The !ourtheld that this

J6would merely show that )tates had often in practice abstained from institutin# criminal proceedin#sand not that they reco#niGed themsel$es as bein# obli#ed to do so; for only if such abstention werebased on their bein# conscious of ha$in# a duty to abstain would it be possible to speak of an internationalcustom. The alle#ed fact does not allow one to infer that )tates ha$e been conscious of ha$in# such a
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-0

duty; on the other hand as will presently be seen there are other circumstances calculated to show thatthe contrary is true.

+.*n the North )ea !ontinental )helf !ases the *!< eplained the diCerence between customs (i.e. habits"and customary law:

JNot only must the acts concerned amount to a settled practice but they must also be such or be carried

out in such a way as to be e$idence of a belief that this practice is rendered obli#atory by the eistence ofa rule of law requirin# it. The need for such a belief i.e the eistence of a sub3ecti$e element is implicit inthe $ery notion of the opinio 3uris si$e necessitatis. The )tates concerned must therefore feel that they areconformin# to what amounts to a le#al obli#ation. The frequency or e$en habitual character of the acts isnot in itself enou#h. There are many international acts e.#. in the 2eld of ceremonial and protocol whichare performed almost in$ariably but which are moti$ated only by considerations of courtesy con$enienceor tradition and not by any sense of le#al duty.

. *f a state acts in a particular way usin# its discretion then too the rele$ant o#inio !"risis lackin#. *n theOi#hts of Kassa#e case the *!< held:

J*t would thus appear that durin# the British and postBritish periods Kortu#uese armed forces and armedpolice did not pass between Daman and the encla$es as of ri#ht and that after 100 such passa#e could

only take place with pre$ious authoriGation by the British and later by *ndia accorded either under areciprocal arran#ement already a#reed to or in indi$idual cases. =a$in# re#ard to the specialcircumstances of the case this necessity for authoriGation before passa#e could take place constitutes inthe $iew of the !ourt a ne#ation of passa#e as of ri#ht. The practice predicates that the territorialso$erei#n had the discretionary power to withdraw or to refuse permission. *t is ar#ued that permissionwas always #ranted but this does not in the opinion of the !ourt aCect the le#al position. There isnothin# in the record to show that #rant of permission was incumbent on the British or on *ndia as anobli#ation.

Does Kortu#al ha$e a customary ri#ht o$er *ndian territory to its encla$es,Decision&ditA ri#ht of passa#e does eist in re#ional custom.

Oeasons&dit*ndia ar#ued before the !ourt that practice between only two states was not su%cient to form a localcustom. The !ourt re3ected this reasonin# 2ndin# no reason why a century and a quarter of practice basedon mutual ri#hts and obli#ations was insu%cient for local custom to arise. This local practice thuspre$ailed o$er any #eneral rules.

Oatio&dit9ocal customary law can eist as lon# as the elements in the North )ea !ontinental )helf case are madeout.

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