LOTUS CASE

Name of the Case: The Lotus Case (France vs Turkey).

The Court: Permanent Court of International Justice, Contentious Case.
Year of decision: 1927.
Link to the case: ICJ website

Overview:
A collision occurred in the high seas between a French vessel and a Turkish vessel. Victims
were Turkish nationals and the alleged offender was French. Could Turkey exercise its
jurisdiction over this French national under international law?

FACTS OF THE CASE:

A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel –
Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel.
The 10 survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the
Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the captain of the Turkish
ship were charged with manslaughter. Demons, a French national, was sentenced to 80 days of
imprisonment and a fine. The French government protested, demanding the release of Demons
or the transfer of his case to the French Courts. Turkey and France agreed to refer this dispute
on the jurisdiction to the Permanent Court of International Justice (PCIJ).
QUESTIONS BEFORE THE COURT:

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.

Relevant Findings of the Court:

Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an
existing rule of international law or is the mere absence of a prohibition preventing the exercise
of jurisdiction enough?

The first principle of the Lotus Case: 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 Court held that:

“Now the first and foremost restriction imposed by international law upon a State is that –
failing the existence of a permissive rule to the contrary – it may not exercise its power in any
form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot
be exercised by a State outside its territory except by virtue of a permissive rule derived from
international custom or from a convention.” (para 45)

The second principle of the Lotus Case: Within its territory, a State may exercise its jurisdiction,
in any matter, even if there is no specific rule of international law permitting it to do so. In
these instances, States have a wide measure of discretion, which is only limited by the
prohibitive rules of international law. The Court held that:

“It does not, however, follow that international law prohibits a State from exercising jurisdiction
in its own territory, in respect of any case which relates to acts which have taken place abroad,
and in which it cannot rely on some permissive rule of international law. Such a view would only
be tenable if international law contained a general prohibition to States to extend the
application of their laws and the jurisdiction of their courts to persons, property and acts
outside their territory, and if, as an exception to this general prohibition, it allowed States to do
so in certain specific cases. But this is certainly not the case under international law as it stands
at present. Far from laying down a general prohibition to the effect that States may not extend
the application of their laws and the jurisdiction of their courts to persons, property and acts
outside their territory, it leaves them in this respect a wide measure of discretion, which is only
limited in certain cases by prohibitive rules; as regards other cases, every State remains free to
adopt the principles which it regards as best and most suitable. This discretion left to States by
international law explains the great variety of rules which they have been able to adopt without
objections or complaints on the part of other States …In these circumstances all that can be
required of a State is that it should not overstep the limits which international law places upon
its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.”
(paras 46 and 47)
This applied to civil and criminal cases. If the existence of a specific rule was a pre-requisite to
exercise jurisdiction, the Court argued, then “it would…in many cases result in paralysing the
action of the courts, owing to the impossibility of citing a universally accepted rule on which to
support the exercise of their [States’] jurisdiction” (para 48).

The Court based this finding on the sovereign will of States. It held that:

“International law governs relations between independent States. The rules of law binding upon
States therefor emanate from their own free will as expressed in conventions or by usages
generally accepted as expressing principles of law and established in order to regulate the
relations between these co-existing independent communities or with a view to the
achievement of common aims. Restrictions upon the independence of States cannot therefore
be presumed”

[Note: This was one of the more debated aspects of the judgement. Some argued that the
Court placed too much emphasis on sovereignty and consent of States (i.e. took a strong
positivist view)].

Criminal Jurisdiction: Territorial Jurisdiction

France alleged that the flag State of a vessel has exclusive jurisdiction over offences committed
on board the ship in high seas. The Court disagreed. It held that France, as the flag State, did
not enjoy exclusive territorial jurisdiction in the high seas in respect of a collision with a vessel
carrying the flag of another State (paras 71 – 84). The Court held that Turkey and France both
have jurisdiction in respect of the whole incident: in other words, there was concurrent
jurisdiction.

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. It further
said:

“If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying
another flag or in foreign territory, the same principles must be applied as if the territories of
two different States were concerned, and the conclusion must therefore be drawn that there is
no rule of international law prohibiting the State to which the ship on which the effects of the
offence have taken place belongs, from regarding the offence as having been committed in its
territory and prosecuting, accordingly, the delinquent.”

The Lotus Case is also significant in that the Court said that a State would have territorial
jurisdiction, even if the crime was committed outside its territory, so long as a constitutive
element of the crime was committed in that State. Today, we call this subjective territorial
jurisdiction. In order for subjective territorial jurisdiction to be established, one must prove that
the element of the crime and the actual crime are entirely inseparable: in other words, if the
constituent element was absent – the crime would not have happened. The Court said:

“The offence for which Lieutenant Demons appears to have been prosecuted was an act – of
negligence or imprudence – having its origin on board the Lotus, whilst its effects made
themselves felt on board the Boz-Kourt. These two elements are, legally, entirely inseparable,
so much so that their separation renders the offence non-existent… It is only natural that each
should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is
therefore a case of concurrent jurisdiction.”

Customary International Law

The Lotus case gave an important dictum on creating customary international law. France had
alleged that jurisdictional questions on collision cases are rarely heard in criminal cases,
because States tend to prosecute only before the flag State. France argued that this absence of
prosecutions points to a positive rule in customary law on collisions. The Court disagreed and
held that, this:

“…would merely show that States had often, in practice, abstained from instituting criminal
proceedings, and not that they recognized themselves as being obliged to do so; for only if
such abstention were based on their being conscious of having a duty to abstain would it be
possible to speak of an international custom. The alleged fact does not allow one to infer that
States have been conscious of having such a duty; on the other hand, as will presently be seen,
there are other circumstances calculated to show that the contrary is true.”

In other words, opinio juris is reflected not only in acts of States (Nicaragua Case), but also in
omissions when those omissions are made following a belief that the said State is obligated by
law to refrain from acting in a particular way.

Subsequent ICJ Decisions and Separate Opinions That Referred to Principles of the Lotus Case

Advisory Opinion on the Unilateral Declaration of Kosovo (2010)

In the Kosovo Advisory Opinion the Court had to decide if the unilateral declaration of Kosovo
of February 2008 was ‘in accordance with’ international law. The Court inquired and concluded
that the applicable international law did not prohibit an unilateral declaration of independence.
Based on this finding, the Court decided that ‘the adoption of the declaration of independence
did not… violate any applicable rule of international law’.

Judge Simma disagreed, inter alia, with Court’s methodology in arriving at this conclusion. He
imputed the method to the principle established in the Lotus case: that which is not prohibited
is permitted under international law. He criticised the Lotus dictum as an outdated, 19th
century positivist approach that is excessively differential towards State consent. He said that
the Court should have considered the possibility that international law can be deliberately
neutral or silent on the international lawfulness of certain acts. Instead of concluding that an
the absence of prohibition ipso facto meant that a unilateral declaration of independence is
permitted under international law, the Court should have inquired whether under certain
conditions international law permits or tolerates unilateral declarations of independence.
 NICARAGUA VS. USA

Name of the Case: Case Concerning the Military and Paramilitary Activities In and Against
Nicaragua (Nicaragua vs United States)
The Court: International Court of Justice
Year of Decision: 1986.

Overview
The case involved military and paramilitary activities carried out by the US against Nicaragua
from 1981 to 1984. Nicaragua asked the Court to find that these activities violated international
law.

FACTS OF THE CASE:

In July 1979, the Government of President Somoza was replaced by a government installed by
Frente Sandinista de Liberacion Nacional (FSLN). Supporters of the former Somoza Government
and former members of the National Guard opposed the new government. 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 in September 1981,
according to Nicaragua, the United States “decided to plan and undertake activities directed
against Nicaragua”.

The armed activities against the new Government was carried out mainly by (1) Fuerza
Democratica Nicaragüense (FDN), which operated along the border with Honduras, and (2)
Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica.
Initial US support to these groups fighting against the Nicaraguan Government (called
“contras”) was covert. Later, the United States officially acknowledged its support (for example:
In 1983 budgetary legislation enacted by the United States Congress made specific provision for
funds to be used by United States intelligence agencies for supporting “directly or indirectly
military or paramilitary operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in control of the contras, the United
States devised their strategy and directed their tactics, and that the contras were paid for and
directly controlled by the United States. Nicaragua also alleged that some attacks against
Nicaragua were carried out, directly, by the United States military – with the aim to overthrow
the Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan
ports, and other attacks on ports, oil installations, and a naval base. Nicaragua alleged that
aircrafts belonging to the United States flew over Nicaraguan territory to gather intelligence,
supply to the contras in the field, and to intimidate the population.

The United States did not appear before the ICJ at the merit stages, after refusing to accept the
ICJ’s jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing,
however, stated that it relied on an inherent right of collective self-defense guaranteed in A. 51
of the UN Charter when it provided “upon request proportionate and appropriate assistance…”
to Costa Rica, Honduras, and El Salvador in response to Nicaragua’s acts of aggression against
those countries (paras 126, 128).

QUESTIONS BEFORE THE COURT:

1. Did the US 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?
2. Did the US 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?
3. Can the military and paramilitary activities that the US undertook in and against
Nicaragua be justified as collective self-defense?
4. Did the US breach its customary international law obligation not to violate the
sovereignty of another State, when it directed or authorized its aircrafts to fly over the
territory of Nicaragua and because of acts referred to in (2) above?
5. Did the USs breach its customary international law obligations not to violate the
sovereignty of another State, not to intervene in its affairs, not to use force against
another State and not to interrupt peaceful maritime commerce, when it laid mines in
the internal waters and in the territorial sea of Nicaragua?

THE COURT’S DECISION:

The US 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-defense to justify its use
of force against Nicaragua.

RELEVANT FINDINGS OF THE COURT:

1. The Court held that the United States violated its customary international law obligation
not to use force against another State when its activities with the contras resulted in the
threat or use of force. The Court held that:
 The prohibition on the use of force is found both in Article 2(4) of the Charter of the
United Nations (UN Charter) and in customary international law.

In a controversial finding the Court sub-classified the use of force as:

a. “most grave forms of the use of force” (i.e. those that constitute an armed
attack); and
b. “other less grave forms” of the use of force (i.e. organizing, instigating, assisting,
or participating in acts of civil strife and terrorist acts in another State – when
the acts referred to involve a threat or use of force, but not amounting to an
armed attack).

The United States violated the customary international law prohibition on the use of
force when it laid mines in Nicaraguan ports. It also violated this prohibition when it
attacked Nicaraguan ports, oil installations, and a naval base (see below). The United
States could only justify its action on the basis of collective self-defense, if certain
criteria were met (these criteria are discussed below).

The United States violated the customary international law prohibition on the use of
force when it assisted the contras by “organizing or encouraging the organization of
irregular forces and armed bands… for incursion into the territory of another state” and
participated “in acts of civil strife…in another State” and when these acts involved the
threat or use of force.

The supply of funds to the contras did not violate the prohibition on the use of force. On
the contrary, Nicaragua had previously argued before the Court that the United States
determined the timing of offensives against Nicaragua when it provided funds to the
contras. The Court held that “…it does not follow that each provision of funds by the
United States was made to set in motion a particular offensive, and that that offensive
was planned by the United States.” The Court held further that the arming and training
of the contras and the supply of funds, in itself, only amounted to acts of intervention in
the internal affairs of Nicaragua and did not violate the prohibition on the use of force
(para 227) (again, this aspect will be discussed in detail below).

2. The Court held that the United States violated its customary international law obligation
not to use force against another State when it directly attacked Nicaragua in 1983 and
1984.

Note: A controversial but interesting aspect of the Court’s judgement was its definition
of an armed attack. The Court held that an armed attack included:
a. action by regular armed forces across an international border; and
b. “the sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of (sic) armed force against another State of
such gravity as to amount to (inter alia) an actual armed attack conducted by
regular forces, or its (the State’s) substantial involvement therein”.

Note also that that he second point somewhat resembles Article 3(g) of the UNGA
Resolution 3314 (XXIX) on the Definition of Aggression. The Court further held that:
 Mere frontier incidents will not considered as armed attacks, unless, because of its scale
and effects, it would have been classified as an armed attack had it been carried out by
regular forces. Assistance to rebels by providing weapons or logistical support did not
constitute an armed attack. Instead, it can be regarded as a threat or use of force or an
intervention in the internal or external affairs of other States. Under Article 51 of the UN
Charter and under CIL – self-defense is only available against a use of force that
amounts to an armed attack. Note: In in the ICJ’s Case Concerning Oil Platforms and
the ICJ’s Advisory Opinion on the Legal Consequences of of the Construction of a Wall in
the Occupied Palestinian Territory (hereinafter called the Palestine wall case) the ICJ
confirmed the definition of an “armed attack” as proposed in the Nicaragua case. Draft
Articles on State Responsibility, prepared by the International Law Commission, provides
significant guidance as to when acts of non-State actors may be attributed to States.
These articles, together with recent State practice relating attacks on terrorists operating
from other countries may have widened the scope of an armed attack, and
consequently, the right of self-defense, envisaged by the ICJ. (for example, see
discussion surrounding the United States’ attacks in Afghanistan and Iraq) See also a
paper by Max Plank Institute on this topic (2017).

3. The Court held that the United States could not justify its military and paramilitary
activities on the basis of collective self-defense. Note that Article 51 of the UN Charter
sets out the treaty-based requirements on the exercise of the right of self-defense. It
states:

“Nothing in the present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace and
security. Measures taken by Members in the exercise of this right of self-defense shall
be immediately reported to the Security Council.”

The Court held that:

Customary international law allows for exceptions to the prohibition on the use of force,
which includes the right to individual or collective self-defense (see here for a difference
between individual and collective self-defense). The United States, at an earlier stage of
the proceedings, had also agreed that the UN Charter acknowledges the existence of
this customary international law right when it talks of the “inherent” right under Article
51 of the Charter (para.193).

When a State claims that it used force in collective self-defense, the Court would
examine the following:
a. Whether the circumstances required for the exercise of self-defense existed; and
b. Whether the steps taken by the State, which was acting in self-defense,
corresponds to the requirements of international law.

Under international law, several requirements must be met for a State to exercise the
right of individual or collective self-defense:
a. A State must have been the victim of an armed attack;
 b. That State must declare itself as a victim of an armed attack. The assessment on
whether an armed attack had taken place or not, is done by the State who was
subjected to the attack. A third State cannot exercise a right of collective self-
defense based that third State’s own assessment;
c. In the case of collective self-defense, the victim State must request for
assistance. The Court held that “there is no rule permitting the exercise of
collective self-defense in the absence of a request by the State which regards
itself as the victim of an armed attack”;
d. A State that is attacked, does not, under customary international law, have the
same obligation as under Article 51 of the UN Charter to report to the Security
Council that an armed attack happened – but the Court held that “the absence of
a report may be one of the factors indicating whether the State in question was
itself convinced that it was acting in self-defense”.

“Whatever influence the Charter may have had on customary international law in these
matters, it is clear that in customary international law it is not a condition of the
lawfulness of the use of force in self-defense that a procedure so closely dependent on
the content of a treaty commitment and of the institutions established by it, should have
been followed. On the other hand, if self-defense is advanced as a justification for
measures which would otherwise be in breach both of the principle of customary
international law and of that contained in the Charter, it is to be expected that the
conditions of the Charter should be respected. Thus, for the purpose of enquiry into the
customary law position, the absence of a report may be one of the factors indicating
whether the State in question was itself convinced that it was acting in self-defense (See
paras 200, 232 -236)”.

The Court, then, looked extensively into the conduct of Nicaragua, El Salvador, Costa
Rica, and Honduras to determine if (1) an armed attack was undertaken by Nicaragua
against the three countries, which in turn would (2) necessitate those countries to act in
self-defense against Nicaragua (paras 230 – 236). The Court noted that (1) none of the
countries who were allegedly subject to an armed attack by Nicaragua declared
themselves as victims of an armed attack; (2) they did not request assistance from the
United States to exercise its right of self-defense; (3) the United States did not claim
that when it used force, it was acting under Article 51 of the UN Charter; and (4) the
United States did not report that it was acting in self-defense to the Security Council.
The Court concluded that, based on the above, the United States cannot justify its use
of force as collective self-defense. In any event, the Court held that the criteria relating
to necessity and proportionality, that is required to be met when using force in self-
defense – were also not fulfilled (para 237).

4. The Court held that the United States breached its CIL obligation not to intervene in the
affairs of another State, when it trained, armed, equipped and financed the contra
forces or encouraged, supported and aided the military and paramilitary activities
against Nicaragua. The Court held that:

The principle of non-intervention requires that every State has a right to conduct its
affairs without outside interference. In other words, the principle “…forbids States or
groups of States to intervene directly or indirectly in internal or external affairs of other
States.” This is a corollary of the principle of sovereign equality of States. The Court held
that:

“A prohibited intervention must accordingly be one bearing on matters in which each

State is permitted, by the principle of State sovereignty to decide freely. One of these is
the choice of a political, economic, social and cultural system, and the formulation of
foreign policy. Intervention is wrongful when it uses methods of coercion in regard to
such choices, which must remain free ones. The element of coercion, which defines, and
indeed forms the very essence of, prohibited intervention, is particularly obvious in the
case of an intervention which uses force, either in the direct form of military action, or in
the indirect form of support for subversive or terrorist armed activities within another
State (para 205).”

Nicaragua stated that the activities of the United States were aimed to overthrow the
government of Nicaragua, to substantially damage the economy and to weaken the
political system with the aim to coerce the Government of Nicaragua to accept various
political demands of the United States. The Court concluded that: “…first, that the
United States intended, by its support of the contras, to coerce the Government of
Nicaragua in respect of matters in which each State is permitted, by the principle of
State sovereignty, to decide freely (see paragraph 205 above) ; and secondly that the
intention of the contras themselves was to overthrow the present Government of
Nicaragua… The Court considers that in international law, if one State, with a view to
the coercion of another State, supports and assists armed bands in that State whose
purpose is to overthrow the government of that State, that amounts to an intervention
by the one State in the internal affairs of the other, whether or not the political objective
of the State giving such support and assistance is equally far reaching.”

The financial support, training, supply of weapons, intelligence and logistic support given
by the United States to the contras violated the principle of non-interference. “…(N)o
such general right of intervention, in support of an opposition within another State,
exists in contemporary international law”, even if such a request for assistance is made
by an opposition group of that State.

However, in a controversial finding, the Court held that the United States did not devise
the strategy, direct the tactics of the contras or exercise control on them in manner so
as to make their acts committed in violation of international law imputable to the United
States (see in this respect “Determining US responsibility for contra operations under
international law” 81 AMJIL 86). The Court concluded that “a number of military and
paramilitary operations of the contras were decided and planned, if not actually by
United States advisers, then at least in close collaboration with them, and on the basis
of the intelligence and logistic support which the United States was able to offer,
particularly the supply aircraft provided to the contras by the United States” but not all
contra operations reflected strategy and tactics wholly devised by the United States.

“…the various forms of assistance provided to the contras by the United States have
been crucial to the pursuit of their activities, but is insufficient to demonstrate their
complete dependence on United States aid. On the other hand, it indicates that in the
initial years of United States assistance the contra force was so dependent. However,
 whether the United States Government at any stage devised the strategy and directed
the tactics of the contras depends on the extent to which the United States made use of
the potential for control inherent in that dependence. The Court already indicated that it
has insufficient evidence to reach a finding on this point. It is a fortiori unable to
determine that the contra force may be equated for legal purposes with the forces of
the United States…The Court has taken the view (paragraph 110 above) that United
States participation, even if preponderant or decisive, in the financing, organizing,
training, supplying and equipping of the contras, the selection of its military or
paramilitary targets, and the planning of the whole of its operation, is still insufficient in
itself, on the basis of the evidence in the possession of the Court, for the purpose of
attributing to the United States the acts committed by the contras in the course of their
military or paramilitary operations in Nicaragua. All the forms of United States
participation mentioned above, and even the general control by the respondent State
over a force with a high degree of dependency on it, would not in themselves mean,
without further evidence, that the United States directed or enforced the perpetration of
the acts contrary to human rights and humanitarian law alleged by the applicant State.
Such acts could well be committed by members of the contras without the control of the
United States. For this conduct to give rise to legal responsibility of the United States, it
would in principle have to be proved that that State had effective control of the military
or paramilitary.”

Interesting, however, the Court also held that providing “…humanitarian aid to persons
or forces in another country, whatever their political affiliations or objectives, cannot be
regarded as unlawful intervention, or as in any other way contrary to international law”.
In the event one State intervenes in the affairs of another State, the victim State has a
right to intervene in a manner that is short of an armed attack (210). “While an armed
attack would give rise to an entitlement to collective self-defense, a use of force of a
lesser degree of gravity cannot as the Court has already observed (paragraph 211
above) produce any entitlement to take collective countermeasures involving the use of
force. The acts of which Nicaragua is accused, even assuming them to have been
established and imputable to that State, could only have justified proportionate counter-
measures on the part of the State which had been the victim of these acts, namely El
Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a
third State, the United States, and particularly could not justify intervention involving the
use of force.”

5. The United States violated its customary international law obligation not to violate the
sovereignty of another State, when it directed or authorized its aircrafts to fly over
Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its
territorial sea. The Court examined evidence and found that in early 1984 mines were
laid in or close to ports of the territorial sea or internal waters of Nicaragua “by persons
in the pay or acting ion the instructions” of the United States and acting under its
supervision with its logistical support. The United States did not issue any warning on
the location or existence of mines and this resulted in injuries and increases in maritime
insurance rates. The Court found that the United States also carried out high-altitude
reconnaissance flights over Nicaraguan territory and certain low-altitude flights,
complained of as causing sonic booms. It held that a State’s sovereignty extends to its
internal waters, its territorial sea, and the airspace above its territory. The United States
 violated customary international law when it laid mines in the territorial sea and internal
waters of Nicaragua and when it carried out unauthorised overflights over Nicaraguan
airspace by aircrafts that belong to or was under the control of the United States.

International Court of Justice Contentious Case: Case Concerning the Military and Paramilitary
Activities In and Against Nicaragua (Nicaragua vs United States).

Overview:
This case was about military and paramilitary activities conducted by, or with the assistance of,
the United States against Nicaragua from 1981 to 1984.

Due to a United States’ multilateral treaty reservation, (the Vandenberg reservation), the Court
could not rely on the United Nations Charter and was compelled to base its findings in relation
to the use of force customary and general principles of international law. As a result, the
Nicaragua case developed a significant jurisprudence on customary international law relating to
(1) the use of force and non-intervention, (2) elements necessary to form customary
international law, and (3) the relationship between customary and treaty law.

Controversial aspects of the decision included (1) the Court’s methodology used to determine
that the principle of non-intervention had attained customary law status, (2) the Court’s reliance
on resolutions of the General Assembly as a source of opinio juris and (3) the Court’s reliance
on multilateral treaties to determine customary international law despite the Vandenberg
reservation.

QUESTIONS BEFORE THE COURT:

In Nicaragua vs United States, the Court discussed, amongst others:

(1) Was the Court competent to give its determination based on customary international law
when there was a multilateral treaty reservation?
(2) What is the relationship between treaty and customary international law?
(3) What are the elements necessary to form customary international law?
(4) What is the customary international law status of the principle of non-intervention?

RELEVANT FINDINGS OF THE COURT:

(1) The Court held that multilateral treaty reservations cannot preclude the Court from relying
on customary international law, because customary law exists independently of treaty law. The
Court held that the issues raised by Nicaragua – relating the use of force and self defense –
were regulated both by customary law and treaty law, in particular the Charter of the United
Nations. Yet, the United States had entered into a multilateral treaty reservation, which did not,
for example, allow the Court to rely on the Charter of the United Nations. The Court sought to
rely, instead, exclusively on customary law relating to the use of force. In doing so, it held that
multilateral treaty reservations cannot preclude the Court from relying on customary
international law because, even if treaty provisions and customary law deal with the same
subject matter, customary law exists independently of treaty law.

(2) Relationship between treaty and customary international law

The Court examined the relationship in two contexts to demonstrate that customary and treaty
law co-exist:
(a) where the customary law principles were identical to treaty provisions; and
(b) where there were different rights or obligations under customary and treaty law in
respect of the same subject matter.

(a) Situations where the customary law principles were identical to treaty provisions.
1. In situations where customary law principles were identical to treaty provisions, the
Court held that even if principles of customary international law were subsequently
codified into treaties, they continue to exist side by side. For parties to treaties, both
customary and treaty law apply. If, for some reason, the treaty ceases to apply between
treaty parties, the identical customary law provision continues to apply between them.
2. The argument that customary international law exists alongside treaty law was
brought by Norway and Denmark in the North Sea Continental Shelf Cases. In these
cases, the two countries having failed to attribute an obligation under Article 6 of the
Geneva Conventions of 1958 to Germany, sought to bind Germany via customary
international law. The Court held that Article 6 did not reflect customary law at the time
of the codification and had not attained that status at the time of the determination. In
the Nicaragua case, the Court relied on the North Sea Continental Shelf Cases to support
its finding that principles of customary international law can exist side by side with
identical treaty law provisions and that treaties do not supervene in a manner where the
customary law ceases to exist.
3. The Court also relied on Article 51 of the UN Charter to show that a treaty itself can
recognise the existence of customary international law with respect to the same subject
matter. For example, the Court said that the term “inherent” in Article 51 recognised
that customary law rights of self-defense existed alongside treaty provisions.
4. Rules containing the same content could also be treated differently in customary
international law and in treaty law. For example, treaty law may contain institutions or
mechanisms to ensure the effective implementation of its provisions, including
provisions that reflect existing customary law. For example, a State that exercises the
right of self-defense under Article 51, according to the UN Charter, has an obligation to
report the use of force immediately to the Security Council. The Court held that this was
a treaty requirement and one that did not exist under customary law. Interestingly,
while the failure to report did not result in a breach of customary international law, the
Court indicated that the United State’s failure to observe this requirement contradicted
her claim to be acting in self-defense.

(b) Situations where customary and treaty law rights and obligations differed in respect of the
same subject matter.
1. The Court discussed situations where customary international law and treaty law
provisions were not identical. For example, the Court stated that concepts such as
necessity and proportionality, or the definition of what constitutes an armed attack, are
not found under Article 51, or the UN Charter, but in customary law. The Court
concluded that (1) this proves that customary international law continues to exist
alongside treaty law and that (2) areas governed by the two sources of law do not
(always) overlap and the rules do not (always) have the same content. The Court held:
“…the Charter, having itself recognized the existence of this right (inherent customary
law right of self-defense under A. 51 of the UN Charter), does not go on to regulate
 directly all aspects of its content. For example, it does not contain any specific rule
whereby self-defense would warrant only measures which are proportional to the armed
attack and necessary to respond to it, a rule well established in customary international
law. Moreover, a definition of the “armed attack” which, if found to exist, authorises the
exercise of the “inherent right” of self-defense, is not provided in the Charter, and is not
part of treaty law. It cannot therefore be held that Article 51 is a provision which
“subsumes and supervenes” customary international law.”
2. In case of a divergence between treaty law and customary international law, for the
parties to a treaty, amongst themselves, the treaty provisions apply as lex specialis.
3. The Court explained the relationship between the Charter of the United Nations and
customary international law on the use of force and self defense in the following
manner: “However, so far from having constituted a marked departure from a
customary international law which still exists unmodified, the Charter gave expression in
this field to principles already present in customary international law, and that law has in
the subsequent four decades developed under the influence of the Charter, to such an
extent that a number of rules contained in the Charter have acquired a status
independent of it. The essential consideration is that both the Charter and the
customary international law flow from a common fundamental principle outlawing the
use of force in international relations. The differences which may exist between the
specific content of each are not, in the Court’s view, such as to cause a judgment
confined to the field of customary international law to be ineffective or inappropriate (to
the parties of the Charter who are bound by the Charter).
4. The Court concluded that principles such as those of the non-use of force, non-
intervention, respect for the independence and territorial integrity of States, right of
collective self defense and the freedom of navigation, continue to be binding as part of
customary international law, “despite the operation of provisions of conventional law in
which they have been incorporated.”

ANALYSIS: DEVELOPMENT OF A PARALLEL CUSTOMARY INTERNATIONAL LAW?

In addition to the comments made above in italics, another interesting aspect of the judgment
is that it sought to separate customary international law obligation from the identical treaty
obligation because of the jurisdictional bar to consider multilateral treaties. In its consideration
of customary international law it developed certain principles independently of the treaty. For
example, Article 2(4) of the UN Charter prohibits the threat or use of force against another
State. The Court held that the same prohibition on the use of force could be found under
customary international law and as a jus cogens norm. The Court then went on to categorize
the use of force under customary law as either a “grave use of force” (i.e. use of force
amounting to an armed attack) or a “less grave use of force” (i.e. use of force that falls short of
an armed attack – for example, the threat to use force). The Court, then, restricted the right of
self-defense to a situation where there had been a grave use of force (or an armed attack, as
defined by the Court). If one were to hold that the relevant Charter principles were clear,
precise and unambiguous, one could say this divorced interpretation could result in customary
law developing in a manner that is not in line with the Charter and thereby creating separate
rights/ regimes of law that govern the same subject matter. Then the two regimes may become
irreconcilable. However, the fact remains that the Charter does leave room for interpretation –
for example, on the definition of an armed attack or on the use of force. In cases of ambiguity,
Article 31 of the Vienna Convention on the Law of Treaties directs us to look at, inter alia,
subsequent practice and any relevant rules of international law that maybe applicable. In other
words, a treaty can be interpreted with the assistance of customary and general principles of
international law. In this case, the development of customary law would also mean a potential
development of ambiguous treaty law – and a reconciliation of treaty and customary law
provisions.

(3) The Court held that opinio juris and State practice remain necessary elements to determine
the existence of customary international law

1. In the Nicaragua case, as the North Sea Continental Shelf Case, considered both the
subjective element (opinio juris) and the objective element (State practice) as essential
pre-requisites to the formation and elucidation of a customary norm (para 207).
2. On State practice, the jurisprudence of the Nicaragua case contained several
important clarifications in respect of inconsistent State practice (para 186). The Court
held that:
(a) For a customary rule to come into force, it is not necessary to have complete
consistency in State practice in respect of the rule.
(b) Inconsistent State practice does not affect the formation or existence of a
customary principle so long as the inconsistency is justified as a breach of the
rule.
(c) This attempt at justifying a violation would only make the rule’s customary
law nature stronger.
2. On opinio juris, the Nicaragua case jurisprudence elaborated on how to deduct opinio
juris from acts of State. The Court held that the following reflected opinio juris:
(a) the attitude of States towards certain General Assembly resolutions.
“The effect of consent to the text of such resolutions cannot be understood as
merely that of a “reiteration or elucidation” of the treaty commitment undertaken
in the Charter. On the contrary, it may be understood as an acceptance of the
validity of the rule or set of rules declared by the resolution by themselves…It
would therefore seem apparent that the attitude referred to expresses an opinio
juris respecting such rule (or set of rules), to be thenceforth treated separately
from the provisions, especially those of an institutional kind, to which it is subject
on the treaty-law plane of the Charter”
(b) Statements by State representatives.
(c) Obligations undertaken by States in international forums (the Court provided
the example of the Conference on Security and Co-operation in Europe, Helsinki)
(d) The International Law Commission’s findings that a concept amounts to a
customary law principle.
(e) Multilateral conventions.

(4) The principle of non-intervention is customary international law.

1. The Court began its analysis with two questions: “Notwithstanding the multiplicity of
declarations by States accepting the principle of non-intervention, there remain two
questions: first, what is the exact content of the principle… and secondly, is the practice
sufficiently in conformity with it for this to be a rule of customary international law?” The
first question was discussed in a previous post and will not be discussed here.
 3. On State practice, the Court noted that even if “examples of trespass against this
principle (of non-intervention) are not infrequent” (para 202), this did not affect the
customary law nature of the prohibition on non-intervention. The Court held:
“The significance for the Court of cases of State conduct prima facie inconsistent with
the principle of non-intervention lies in the nature of the ground offered as justification.
Reliance by a State on a novel right or an unprecedented exception to the principle
might, if shared in principle by other States, tend towards a modification of customary
international law. In fact however the Court finds that States have not justified their
conduct by reference to a new right of intervention or a new exception to the principle
of its prohibition. The United States authorities have on some occasions clearly stated
their grounds for intervening in the affairs of a foreign State for reasons connected with,
for example, the domestic policies of that country, its ideology, the level of its
armaments, or the direction of its foreign policy. But these were statements of
international policy, and not an assertion of rules of existing international law.”
4. On opinio juris, Court went on to hold, as before, that for a new customary rule to be
formed, Sate practice must be accompanied by the opinio juris. The Court held:
“There have been in recent years a number of instances of foreign intervention for the
benefit of forces opposed to the government of another State… It (the Court) has to
consider whether there might be indications of a practice illustrative of belief in a kind of
general right for States to intervene, directly or indirectly, with or without armed force,
in support of an internal opposition in another State, whose cause appeared particularly
worthy by reason of the political and moral values with which it was identified. For such
a general right to come into existence would involve a fundamental modification of the
customary law principle of non-intervention.” (paras 206, 207).
5. The Court also noted that the United States has not sought to justify its intervention
in Nicaragua on legal grounds, but had only justified it at a political level. The United
States had not asserted for itself legal right of intervention in these circumstances. The
Court, without further analysis into State practice, almost immediately proceeded to find
that “…no such general right of intervention, in support of an opposition within another
State, exists in contemporary international law. The Court concludes that acts
constituting a breach of the customary principle of non-intervention will also, if they
directly or indirectly involve the use of force, constitute a breach of the principle of non-
use of force in international relations (para 209).”
6. The Court held that the prohibition on the use of force contained in Article 2(4) of the
UN Charter has attained the status of a jus cogens norm. The Court found this to be “A
further confirmation of the validity as customary international law of the principle of the
prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the
United Nations…” (para 190).

ANALYSIS: GENERAL ASSEMBLY AND OPINIO JURIS

Some commentators criticized the Court for its reliance on General Assembly resolutions to
deduct opinio juris. They argued that voting patterns in the United Nations are often guided by
policy and not by legal considerations. This is not to say that provisions on General Assembly
Resolutions that guide the international community to act in a certain way may not eventually
become binding international law (either by attaining customary law status or becoming codified
into treaty law) – it can, if there is adequate State practice and opinio juris.
Their argument is that opinio juris cannot be said to exist based merely on a vote in favour of a
non-binding resolution – in the absence of an examination of subsequent consistent and
general State practice (which, in turn, reflects or confirms opinio juris). See also the Nuclear
Weapons Advisory Opinion where the Court, once again, reflected on how General Assembly
resolutions contribute towards the formation of customary law.
 THE ISLAND OF PALMAS CASE
(United States v. The Netherlands)

Citation. Perm. Ct. of Arbitration, 2 U.N. Rep. Int’l Arb. Awards 829 (1928).

Brief Fact Summary. Both the United States (P) laid claim to the ownership of the Island of
Palmas. While the U.S. (P) maintained that it was part of the Philippines, the Netherlands (D)
claimed it as their own.

Synopsis of Rule of Law. A title that is inchoate cannot prevail over a definite title found on the
continuous and peaceful display of sovereignty.

Facts. Both the United States (P) laid claim to the ownership of the Island of Palmas. While the
U.S. (P) maintained that it was part of the Philippines, the Netherlands (D) claimed it as their
own. The claim of the U.S. (P) was back up with the fact that the islands had been ceded by
Spain by the Treaty of Paris in 1898, and as successor to the rights of Spain over the
Philippines, it based its claim of title in the first place on discovery. On the part of the
Netherlands (D), they claimed to have possessed and exercised rights of sovereignty over the
island from 1677 or earlier to the present.

Issue. Can a title which is inchoate prevail over a definite title found on the continuous and
peaceful display of sovereignty?

Held. (Huber, Arb.). No. A title that is inchoate cannot prevail over a definite title found on the
continuous and peaceful display of sovereignty. The peaceful and continuous display of
territorial sovereignty is as good as title. However, discovery alone without subsequent act
cannot suffice to prove sovereignty over the island. The territorial sovereignty of the
Netherlands (D) was not contested by anyone from 1700 to 1906. The title of discovery at best
an inchoate title does not therefore prevail over the Netherlands (D) claims of sovereignty.

Discussion. Evidence of contracts made by the East India Company and the Netherlands (D)
was examined by the arbitrator. The claims made by the Netherlands (D) were also based on
the premise of the convention it had with the princes and native chieftains of the islands.
Hence, at the time of the Treaty of Paris in 1898, Spain was found not to have dominion over
the island.
THE PASSION (CLIPPERTON) ISLAND CASE
(Mexico v. France)