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1.

LOTUS CASE

Relevance- The necessity of opiniojuris was first pointed out in the Lotus Case. In
1927, the PCIJ required the existence of a legal obligation behind State practice
before such a practice could be considered as part of customary law

Brief Facts- The case of S.S. Lotus (1927) can be considered to be the first case
where the question of jurisdiction was raised for the first time. In S.S. Lotus case, a
Turkish ship Boz kourt collided with a French ship S.S.Lotus in the high seas on 2nd
August 1926. As a result of the collision, the Turkish ship capsized along with the
loss of lives of eight Turkish sailors and passengers. When the French ship Lotus
reached Turkey, the authorities of Turkey ordered the officer of the watch on board
Lotus (who was playing the same role during collision), Monsieur Demons to submit
evidence to the Turkish authorities. While doing so, he was arrested by Turkish
authorities and along with the Captain of the capsized Turkish ship was tried on the
count of manslaughter. He was charged guilty and therefore was punished. The
French authorities got concerned by the act of the Turkish authorities and lodged
protest with the Turkish authorities. When M. Demons was ordered to be imprisoned
for eight days and a fine was imposed the French authorities moved to the Permanent
Court of Justice calling the Turkish trial and punishment illegal. The question,
therefore, arose in the court whether the Turkish authorities have committed a crime
by trying a foreign national in their court for a crime committed outside Turkey and
the legality of the pecuniary compensation. The court held that the Turkish authorities
have not committed any wrong by trying M. Demons, the French national in their
court. The court enunciated two principles, namely – outside its territory and within
its territory, collectively known as Lotus principles. The first principle says that a
country cannot act beyond its jurisdiction unless the same is being allowed by a
convention, custom or a treaty. The second principle says that a state may exercise
jurisdiction within its territory even though there is no specific international law or
treaty allowing to do so.

Discussion- It encapsulated a strict positivist vision of international law. Rather


than envisioning international law as preceding the existence of States, the Court
posited that “The rules of law binding upon States … 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.”
2. ASYLUM CASE

Relevance- Customary International Law as source of International Law.

Brief Facts - Peru issued an arrest warrant against Victor Raul Haya de la Torre “in
respect of the crime of military rebellion” which took place on October 3, 1949, in
Peru. 3 months after the rebellion, Torre fled to the Colombian Embassy in Lima,
Peru. The Colombian Ambassador confirmed that Torre was granted diplomatic
asylum in accordance with Article 2(2) of the Havana Convention on Asylum of 1928
and requested safe passage for Torre to leave Peru. Subsequently, the Ambassador
also stated Colombia had qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee
is not the same as the Refugee Convention of 1951). Peru refused to accept the
unilateral qualification and refused to grant safe passage.

The court had to decide if such a decision was binding on Peru either because of
treaty law (in particular the Havana Convention of 1928 and the Montevideo
Convention of 1933), other principles of international law or by way of regional or
local custom.

Discussion- Colombia argued that regional or local customs support the qualification.
The court held that the burden of proof on the existence of an alleged customary law
rests with the party making the allegation:

“The Party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other Party… (that) it
is in accordance with a (1) constant and uniform usage (2) practiced by the States in
question, and that this usage is (3) the expression of a right appertaining to the State
granting asylum (Colombia) and (4) a duty incumbent on the territorial State (in this
case, Peru). This follows from Article 38 of the Statute of the Court, which refers to
international custom “as evidence of a general practice accepted as law(text in
brackets added).”
The court held that Colombia did not establish the existence of a regional custom
because it failed to prove consistent and uniform usage of the alleged custom by
relevant States. The fluctuations and contradictions in State practice did not allow for
the uniform usage.

The court held that there was no legal obligation on Peru to grant safe passage either
because of the Havana Convention or customary law. In the case of the Havana
Convention, a plain reading of Article 2 results in an obligation on the territorial state
(Peru) to grant safe passage only after it requests the asylum granting State
(Colombia) to send the person granted asylum outside its national territory (Peru). In
this case the Peruvian government had not asked that Torre leave Peru. On the
contrary, it contested the legality of asylum granted to him and refused to grant safe
conduct.

The court looked at the possibility of a customary law emerging from State practice
where diplomatic agents have requested and been granted safe passage for asylum
seekers, before the territorial State could request for his departure. Once more, the
court held that these practices were a result of a need for expediency and other
practice considerations over an existence of a belief that the act amounts to a legal
obligation.

“There exists undoubtedly a practice whereby the diplomatic representative who


grants asylum immediately requests a safe conduct without awaiting a request from
the territorial state for the departure of the refugee…but this practice does not and
cannot mean that the State, to whom such a request for safe-conduct has been
addressed, is legally bound to accede to it.”
3. PAQUETE HABANA CASE (US Supreme Court)

Relevance- Relationship between International Law & Municipal Law.

Brief Facts- During the Spanish American War, the United States Navy boarded two
private fishing vessels that were flying the Spanish flag, and captured them both as
prizes of war.1 One of which was the Paquete Habana.The owners of the vessels sued
in US courts to regain their property. It was argued that customary international
law states that fishing vessels are exempt from being captured in war.They were
commercial fishermen and not a military target.The US Supreme Court found that the
fishing vessels cannot be taken as prizes of war.

Discussion-
Analysis of The Paquete Habana will illustrate how courts might take a more
balanced approach, identifying the custom as well as theconvention aspect of
customary international law. In this case, which tookplace more than a hundred years
ago, the Supreme Court considered thestatus of seized fishing boats under customary
international law. Beforedeciding that principles of customary international law
dictated that theproceeds from auctioning the ships must be returned to their
fishermanowners, the Court examined many sources. The Court commenced with
anexploration of "ancient usage among civilized nations, beginning centuriesago."
Beginning with Henry IV of England in 1403, the Court citedinternational practices,
with a focus on the acts of Kings. Rather thanfocusing on the legal conclusions of
commentary, the Court referred tohistorical incidents. In examining American history,
the Court noted actualpractices of the American government rather than the opinions
or statementsof policy." After examining American practice, the Court turned to
adetailed analysis of the legal literature and cases, domestic and foreign,available on
the law of the sea. Even here, however, there was a markeddeference to practice, as
many of the works cited were written by men withconsiderable maritime experience.
The Supreme Court's analysis in the Paquete Habana demonstrates how a court can
1
Prize is a term that is used in admiralty law. Prize refers to equipment, vehicles, vessels, and cargo that is
captured during armed conflict. The most common use of prize in the legal sense is the capture of an enemy
ship as well as its cargo as a prize of war. In the past, the party that captured would commonly be given a share
of the worth of the captured prize.
explore an issue of customary international law while directingattention to both
custom and convention. In today's cases, a less historically-focused approach than that
taken in the Paquete Habana would bepreferable, as customary international law
admittedly evolves at a faster pacethan it did in 1900. However, the fast pace of
modern customary internationallaw development does not excuse the utter disregard
given to practiceby current U.S. courts. So long as custom remains an element of
customaryinternational law, courts must include analysis of international practice in
their decisions on customary international law.

The US Supreme Court found that there was no specific US law defining a prize of
war. However, the Court stated that customary international law made fishing vessels
exempt from being taken as a prize of war.There are a number of factors that will
determine if something is customary international law. In this case, the Court found
that:There was State practice by a number of different countries that commercial
fishing vessels were exempt.There was repetition of this practice over a period of
time.There was opiniojuris that commercial fishing vessels were exempt.Opiniojuris
is a subjective element that is used to judge whether the practice of a state is due to a
belief that it is legally obliged to do a particular act.This case lays out the important
factors that courts use to determine if something has become customary international
law.Customary international law can be thought of as a kind of international common
law. It is not explicitly defined anywhere, however everyone seems to agree with it.
The judge quoted “For the purpose where there is no treaty, and no controlling
executive or legislative act or judicial decision, resort must be had to the customs and
usages of civilized nations; and, as evidence of these, to the works of jurists and
commentators, who by years of labor, research and experience, have made themselves
peculiarly well acquainted with the subjects of which they treat. (The Paquete
Habana, 175 U.S. 677 1900)”
4. ICJ ADVISORY OPINION ON THE THREAT OF USE OF NUCLEAR
WEAPONS

Relevance- Role of Treaties and Customs used to assess validity of legal principles.

Brief Facts- On July 8, 1996, the International Court of Justice (ICJ), popularly known as the
World Court, delivered two advisory opinions on separate requests received from the World
Health Organization and the General Assembly of the United Nations, respectively, relating
to the legality of nuclear weapons under international law.

On December 20, 1994, the UN General Assembly requested the ICJ to give an advisory
opinion on the question: "Is the threat or use of nuclear weapons in any circumstance
permitted under international law?"

Discussion-In determining the legality or illegality of the threat or external use of nuclear
weapons, the ICJ decided that the most directly relevant applicable law governing the
Assembly's question consisted of (1) the provisions of the UN Charter relating to the threat or
use of force, (2) the principles and rules of international humanitarian law that form part of
the law applicable in armed conflict and the law of neutrality, and (3) any relevant specific
treaties on nuclear weapons. In applying this law, the Court considered it imperative to take
into account certain unique characteristics of nuclear weapons, in particular their destructive
capacity that can cause untold human suffering for generations to come.

The ICJ noted that international customary and treaty law do not contain any specific
prescription authorizing the threat or use of nuclear weapons or any other weapon in general
or in certain circumstances, in particular those of the exercise of legitimate self-defense. Nor,
however, is there any principle or rule of international law that would make the legality of the
threat or use of nuclear weapons or of any other weapons dependent on a specific
authorization. State practice shows that the illegality of the use of certain weapons as such
does not result from an absence of authorization but is rather formulated in terms of
prohibition. The Court examined whether any such prohibition of recourse to nuclear
weapons can be found in treaty law. With regard to certain specific treaties dealing with the
acquisition, manufacture, possession, deployment and testing of nuclear weapons, the Court
noted that these treaties "point to an increasing concern in the international community" with
regard to nuclear weapons, and concluded that they "could therefore be seen as
foreshadowing a future general prohibition of the use of such weapons, but they do not
constitute such a prohibition by themselves." As to those treaties that address the issue of
recourse to nuclear weapons, the Court observed that they "testify to a growing awareness of
the need to liberate the community of States and the international public from the dangers
resulting from the existence of nuclear weapons," but that these treaties also do not amount to
a comprehensive and universal conventional prohibition on the threat or use of nuclear
weapons as such.

The Court then examined customary international law. First, it determined that the non-use of
nuclear weapons does not amount to a customary prohibition, because the world community
is profoundly divided on the issue. Second, the Court examined whether certain General
Assembly resolutions that deal with nuclear weapons signify the existence of a rule of
customary international law prohibiting recourse to nuclear weapons. In the Court's view,
although these resolutions are "a clear sign of deep concern regarding the problem of nuclear
weapons" and "reveal the desire of a very large section of the international community to
take, by a specific and express prohibition of the use of nuclear weapons, a significant step
forward along the road to complete nuclear disarmament," they fall short of a customary rule
specifically prohibiting the use of nuclear weapons as such.

Despite the undisputed applicability of the principles and rules of humanitarian law and of the
law of neutrality to nuclear weapons, the ICJ found that the conclusions to be drawn from this
applicability were controversial. The Court admitted that, in view of the unique
characteristics of nuclear weapons, their use "in fact seems scarcely reconcilable" with the
strict requirements dictated by the law applicable in armed conflict. The judges being evenly
divided, ICJ President Mohammed Bedjaoui used his casting vote to hold that the threat or
use of nuclear weapons would generally be contrary to the rules of international law
applicable in armed conflict. At the same time, the ICJ held that it did not have a sufficient
basis for a definitive conclusion as to whether the use of nuclear weapons would or would not
be at variance with the principles and rules of law applicable in armed conflict in an extreme
circumstance of self-defense, in which a state's very survival is at stake.Finally, the Court
examined the obligation to negotiate in good faith a complete nuclear disarmament,
recognized in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of 1968.
The ICJ judges held unanimously that the obligation enshrined in Article VI involves "an
obligation to achieve a precise result-nuclear disarmament in all its aspects-by adopting a
particular course of conduct, namely, the pursuit of negotiations on the matter in good faith."
The Court noted that this twofold obligation to pursue and conclude negotiations in
accordance with the basic principle of good faith formally concerns the 182 states parties to
the Treaty on the Non-Proliferation of Nuclear Weapons, constituting the vast majority of the
international community.

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