1.

) North Sea Continental Shelf Cases (Federal Republic of Germany

vs. Denmark; Federal Republic of Germany vs. Netherlands) (Merits)
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
customary international law.

aspects of the case related to treaty or

Overview: The jurisprudence of the North Sea Continental Shelf Cases sets
out the dual requirement for forming customary international law State
practice (objective element) and opinio juris (subjective element). It
elaborated the criteria necessary to establish State practice widespread
and representative participation. The case highlighted that the State practice
of importance were of those States whose interests were affected by the
custom. It also identified the fact that uniform and consistent practice was
necessary to show opinio juris a belief that the practice amounts to a legal
obligation. The North Sea Continental Self Cases also dispelled the myth that
duration of the practice (i.e. the number of years) was an essential factor in
forming customary international law.
The case involved the delimitation of the continental shelf areas in the North
Sea between Germany and Denmark and Germany and Netherlands beyond
the partial boundaries previously agreed upon by these States. The parties
requested the ICJ to decide the principles and rules of international law that
are applicable to the above delimitation. The parties disagreed on the
applicable principles or rules of delimitation Netherlands and Denmark
relied on the principle of equidistance (the method of determining the
boundaries in such a way that every point in the boundary is equidistant
from the nearest points of the baselines from which the breath of the
territorial sea of each State is measured). Germany sought to get a decision
in favour of the notion that the delimitation of the relevant continental shelf
is governed by the principle that each coastal state is entitled to a just and
equitable share (hereinafter called just and equitable principle/method).
Contrary to Denmark and Netherlands, Germany argued that the principle of
equidistance was neither a mandatory rule in delimitation of the continental
shelf nor a rule of customary international law that was not binding on
Germany. The court was not asked to delimit the parties agreed to delimit
the continental shelf as between their countries, by agreement, after the
determination of the ICJ on the applicable principles.
Facts of the Case:
Netherlands and Denmark had drawn partial boundary lines based on the
equidistance principle (A-B and C-D). An agreement on further prolongation
of the boundary proved difficult because Denmark and Netherlands wished

this prolongation to take place based on the equidistance principle (B-E and
D-E) where as Germany was of the view that, together, these two boundaries
would produce an inequitable result for her. Germany stated that due to its
concave coastline, such a line would result in her loosing out on her share of
the continental shelf based on proportionality to the length of its North Sea
coastline. The Court had to decide the principles and rules of international
law applicable to this delimitation. In doing so, the court had to decide if the
principles espoused by the parties were binding on the parties either through
treaty law or customary international law.
Questions before the Court (as relevant to this post):
Is Germany under a legal obligation to accept the equidistance-special
circumstances principle, contained in Article 6 of the Geneva Convention,
either as a customary international law rule or on the basis of the Geneva
Convention?
The Courts Decision:
The use of the equidistance method had not crystallised into customary law
and was is not obligatory for the delimitation of the areas in the North Sea
related to the present proceedings.
Relevant Findings of the Court:
Nature of the treaty obligation: Is the 1958 Geneva Convention, and in
particular Article 6, binding on Germany?
1. Article 6 of the Geneva Convention on the Continental Shelf states that
unless the parties have agreed on a method for delimitation or unless special
circumstances exist, the equidistance method would apply (see Article 6).
Germany has signed but not ratified the Geneva Convention, while
Netherlands and Denmark are parties to the Convention. The latter two
States argue that while Germany is not a party to the Convention (not having
ratified it), she is still bound by Article 6 of the Convention because:
(1) by conduct, by public statements and proclamations, and in other
ways, the Republic has unilaterally assumed the obligations of the
Convention; or has manifested its acceptance of the conventional regime; or
has recognized it as being generally applicable to the delimitation of
continental shelf areas
(2) the Federal Republic had held itself out as so assuming, accepting or
recognizing, in such a manner as to cause other States, and in particular

Denmark and the Netherlands, to rely on the attitude thus taken up (the
latter is called the principle of estoppel).
2. The Court rejected the first argument. It stated that only a very definite
very consistent course of conduct on the part of a State would allow the
court to presume that a State had somehow become bound by a treaty (by a
means other than in a formal manner: i.e. ratification) when the State was at
all times fully able and entitled to accept the treaty commitments in a
formal manner. The Court held that Germany had not unilaterally assumed
obligations under the Convention. The court also took notice of the fact that
even if Germany ratified the treaty, she had the option of entering into a
reservation on Article 6 following which that particular article would no
longer be applicable to Germany (i.e. even if one were to assume that
Germany had intended to become a party to the Convention, it does not
presuppose that it would have also undertaken those obligations contained
in Article 6).
3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which
came into force in 1980, discusses more fully the obligations of third States
to treaties. It clearly stipulates that an obligation arises for a third State from
a provision of a treaty only if (1) the parties to the treaty intend the provision
to create this obligation for the third States; and (2) the third State expressly
accepts that obligation in writing (A. 35 of the VCLT). The VCLT was not in
force when the ICJ deliberated on this case. However, as seen above, the
ICJs position was consistent the VCLT. (See the relevant provisions of the
Vienna Convention on the Law of Treaties).
4. The court held that the existence of a situation of estoppel would have
allowed Article 6 to become binding on Germany but held that Germanys
action did not support an argument for estoppel. The court also held that the
mere fact that Germany may not have specifically objected to the
equidistance principle as contained in Article 6 is not sufficient to state that
the principle is now binding upon it.
5. In conclusion, the court held that Germany had not acted in any way to
incur obligations contained in Article 6 of the Geneva Convention. The
equidistance special circumstances rule was not binding on Germany by
way of treaty.
Nature of the customary international law obligation: Is Germany bound by
the provisions of Article 6 of the Geneva Convention by way of customary
international law?
6. Netherlands and Denmark argued that Article 6 also reflected the
accepted rule of general international law on the subject of continental shelf

delimitation and existed independently of the Convention. Therefore, they

argued, Germany is bound by it by way of customary international law.
7. To decide if the equidistance principle bound Germany by way of
customary international law, the court examined (1) the status of the
principle contained in Article 6 as it stood when the Convention was being
drawn up (2) and after the latter came into force.
What was the customary law status of Article 6 at the time of drafting the
Convention?
8. The court held the principle of equidistance, as contained in Article 6, did
not form a part of existing or emerging customary international law at the
time of drafting the Convention. The Court supported this finding based on
(1) the hesitation expressed by the drafters of the Convention International
Law Commission on the inclusion of Article 6 (para. 62) and (2) the fact
reservations to Article 6 was permissible under the Convention (Article 12).
The court held:
Article 6 is one of those in respect of which, under the reservations article
of the Convention (Article 12) reservations may be made by any State on
signing, ratifying or acceding for, speaking generally, it is a characteristic of
purely conventional rules and obligations that, in regard to them, some
faculty of making unilateral reservations may, within certain limits, be
admitted; whereas this cannot be so in the case of general or customary law
rules and obligations which, by their very nature, must have equal force for
all members of the international community, and cannot therefore be the
subject of any right of unilateral exclusion exercisable at will by any one of
them in its own favor. The normal inference would therefore be that any
articles that do not figure among those excluded from the faculty of
reservation under Article 12, were not regarded as declaratory of previously
existing or emergent rules of law (see para 65 for a counter argument and
the courts careful differentiation)
Did the provisions in Article 6 on the equidistance principle attain the
customary law status after the Convention came into force?
9. The court then examined whether the rule contained in Article 6 had
become customary international law after the Convention entered into force
either due the convention itself (i.e., if enough States had ratified the
Convention in a manner to fulfil the criteria specified below), or because of
subsequent State practice (i.e. even if adequate number of States had not
ratified the Convention one could find sufficient State practice to meet the
criteria below). The court held that Article 6 of the Convention had not
attained a customary law status (compare the 1958 Geneva Convention with
the four Geneva Conventions on 1949 in the field of international

humanitarian law in terms of its authority as a pronouncement of customary

international law).
10. For a customary rule to emerge the court held that it needed: (1) very
widespread and representative participation in the convention, including
States whose interests were specially affected (i.e. generality); and (2)
virtually uniform practice (i.e. consistent and uniform usage) undertaken in a
manner that demonstrates (3) a general recognition of the rule of law or
legal obligation (i.e. opinio juries). In the North Sea Continental Shelf cases
the court held that the passage of a considerable period of time was
unnecessary (i.e. duration) for the formation of a customary law.
Widespread and representative participation
11. The court held that the first criteria was not met. The number of
ratifications and accessions to the convention (39 States) were not
adequately representative (including of coastal States i.e. those States
whose rights are affected) or widespread.
Duration
12. The court held that duration taken for the customary law rule to emerge
is not as important as widespread and representative participation, uniform
usage and the existence of an opinio juris.
Although the passage of only a short period of time (in this case, 3 5
years) is not necessarily, or of itself, a bar to the formation of a new rule of
customary international law on the basis of what was originally a purely
conventional rule, an indispensable requirement would be that within the
period in question, short though it might be, State practice, including that of
States whose interests are specially affected, should have been both
extensive and virtually uniform in the sense of the provision invoked and
should moreover have occurred in such a way as to show a general
recognition that a rule of law or legal obligation is involved (text in brackets
added).
Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions
(Lotus case) in so far as those acts or omissions are done following a belief
that the said State is obligated by law to act or refrain from acting in a
particular way. (For more on opinio juris click here).
14. The Court examined 15 cases where States had delimited their
boundaries using the equidistance method, after the Convention came into
force (paras. 75 -77). The court concluded, even if there were some State

practice in favour of the equidistance principle the court could not deduct the
necessary opinio juris from this State practice. The North Sea Continental
Shelf Cases confirmed that both State practice (the objective element) and
opinio juris (the subjective element) are essential pre-requisites for the
formation of a customary law rule. This is consistent with Article 38 (1) (b) of
the Statute of the ICJ. The following explains the concept of opinio juris and
the difference between customs (i.e. habits) and customary law:
Not 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 evidence of a
belief that this practice is rendered obligatory by the existence of a rule of
law requiring it. The need for such a belief, i.e, the existence of a subjective
element, is implicit in the very notion of the opinio juris sive necessitatis. The
States concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual character of
the acts is not in itself enough. There are many international acts, e.g., in the
field of ceremonial and protocol, which are performed almost invariably, but
which are motivated only by considerations of courtesy, convenience or
tradition, and not by any sense of legal duty.
15. The court concluded that the equidistance principle was not binding on
Germany by way of treaty or customary international law because, in the
case of the latter, the principle had not attained a customary international
law status at the time of the entry into force of the Geneva Convention or
thereafter. As such, the court held that the use of the equidistance method is
not obligatory for the delimitation of the areas concerned in the present
proceedings.
2.) Aylum Case (Columbia vs. Peru)
Asylum Case: Columbia v Peru 1950 ICJ Rep. 266 Case Summary.
Facts:
Victor Raul Haya de la Torre was a Peruvian national. In Oct 3rd, 1948 one
military rebellion broke out in Peru which is organized and directed by the
American Peoples Revolutionary Alliance led by Haya de la Torre. The
rebellion was unsuccessful. The Peruvian Government issued a warrant for
his arrest on criminal charges related to this political uprising. He fled to the
Columbian embassy in Lima seeking for asylum from them. Columbia the
requested permission from Peru for Haya de la Torres safe passage from the
Columbian embassy, through Peru, goes to Columbia. Peru refused to give
such permission. Columbia then brought this suit against Peru in the
International Court of Justice, based on the agreement made by both named
Act of Lima. These are the submissions made by the two parties:
1) The Columbian had pleaded for the court to declare that Columbia had
properly granted asylum based on 2 submissions:- a. They are competent to
qualify the offence for the purpose of the said asylum. b. That Peru is bound

to give the guarantees necessary for the departure of the Haya de la Torre,
from the country, with due regard to the inviolability of his person.
2) Counter-claim by Peru is that for the court to declare that the grant of
asylum made by the Columbian Ambassador to Haya de la Torre was made in
violation of the Convention on Asylum. Argument Plaintiff (Columbian)
arguments based on the Convention in force which are the Bolivarian
Agreement 1911 on Extradition, the Havana Convention 1928 on Asylum, the
Montevideo Convention 1933 on Political Asylum and American International
Law. The Defendant (Peru) counter-claim relied on the rules of Havana
Convention first, Haya de la Torre was accused, not a political offense but of
a common crime and second, because the urgency which was required under
the Havana Convention in order to justify asylum was absent in that case.
Issue:
1. Whether or not Columbia is competent in granting asylum to qualify the
offence as based on conventions, which in force between both countries, and
in general from American international law.
2. Whether or not Peru is bound to give the guarantees necessary for the
departure of the refugees from the country, with due regard to the
inviolability of his person?
Decision
1) Columbia was not competent to qualify the nature of the offence by a
unilateral and definitive decision binding on Peru.
2) Columbia was not entitled to claim that the Peru was bound to gives
guarantees necessary for the departure of Haya de la Torre, with due regard
to the inviolability of his person.
3) Peru counter-claim that Haya de la Torre was an accused of a common
crime was rejected. Therefore it was not in accordance with Article I,
Paragraph I of the Havana convention.
4) Peru Counter-claim that the grant of asylum by the Columbian government
to Haya de la Torre Torre was made in violation of Article 2, Paragraph 2 of
the Havana Convention was approved by the court.
Ratio Decidendi
1) The court reject the Columbian argument based on Bolivarian Agreement
on the reason that the principle of International Law did not recognize any
rule of unilateral and definitive qualification by the state granting diplomatic
asylum. On the other hand, the Bolivarian Agreement laid down rules on
extradition and it was not possible to deduce from them conclusions
concerning diplomatic asylum as it was different in the meaning. The court

also rejected the Havana Convention invoke by the Columbian as the

convention did not recognize the right of unilateral qualification. And the
third convention, Convention of Montevideo, had not been ratified by Peru
and could not be invoked against it. As for the American international law,
Columbia had failed to prove that it had constant and uniform practice of
unilateral qualification as a right of the State of refuge and an obligation
upon the territorial state. The fact submitted to the court disclosed too much
contradiction and fluctuation, shows that therein a usage peculiar to Latin
America and accepted as law.
2) The court also rejected the Columbian claim based on Havana Convention
that the Peru was bound to gives guarantees necessary for the departure of
Haya de la Torre, on the reason that the convention only applicable if the
territorial State demanded the departure of the refugee from its territory. It
was only after such demand that the diplomatic Agent who granted asylum
could require safe-conduct.
3) Peru counter-claim that Haya de la Torre was an accused of a common
crime was rejected on the reason that the refugee was charged for military
rebellion, which was not a common crime as needed under the Havana
Convention.
4) The court came into conclusion on Peru Counter-claim that the grant of
asylum by the Columbian government to Haya de la Torre Torre was made in
violation of Article 2, Paragraph 2 of the Havana Convention was on the
reason that the absent of element of urgency needed to justify the asylum, in
order to protect the person from danger. In this case the danger that only
faced by Haya de la Torre is legal preceding that will be imposed on him, not
a deprivation of his right. The Havana Convention according to the court was
not intended to protect a citizen who had plotted against the institutions of
his country from regular legal proceedings. Asylum could only intervene
against the action of justice in cases where arbitrary action was substituted
for the rule of law.
Rationale
1) Before a convention can be accepted to be used as the law under Article
38 of Statute of International Court of Justice, it must be ratified by the
contesting state. This has been shown by the reluctance of the court to
used certain provision in the convention as had not been ratified by the party
country. Ie: see rules on Montevideo Convention.
2) The principle of International Law that are not recognizing the rules of
unilateral treaty.

3) This decision also shows us that in order for the custom to be international
custom it must be a general practice. Ie: see rules on American
International Law
3.) Right of Passage over Indian Territory Case (Merits) (Portugal vs.
India)
Right of Passage over Indian Territory (Merits)Court of Justice, I.C.J. Reports,
1960, p. 6
21. Portugal claimed before the International Court that she had a right of
passage through intervening Indian territory to the extent necessary for the
exercise of her sovereignty over two small enclaves and that India had
refused to recognize the obligations imposed by this right.
22. In support of her claim Portugal relied in part on certain agreements
concluded in the 18th century between Portugal and the local Maratha ruler.
Although the Court found that the agreements concerned amounted only to
a revenue grant, and not to a grant of sovereignty together with a right of
passage, it appears to have assumed that any such rights granted would
have been binding on successor States.16
The Court found, however, that:
. . . the situation underwent a change with the advent of the British as
sovereign of that part of the country in place of the Marathas. The British
found the Portuguese in occupation of the villages and exercising full and
exclusive administrative authority over them. They accepted the situation as
they found it and left the Portuguese in occupation of and in exercise of
exclusive authority over, the villages.
The Portuguese held themselves out as sovereign over the villages. The
British did not, as successors of the Marathas, themselves claim sovereignty,
nor did they accord express recognition of Portuguese sovereignty, over
them. The exclusive authority of the Portuguese over the villages was never
brought in question. Thus Portuguese sovereignty over the villages was
recognized by the British in fact and by implication and-was subsequently
recognized by India. As a consequence the villages comprised in the Maratha
grant acquired the character of Portuguese enclaves within Indian
territory.17
23. Concerning the right of passage, the Court reached the conclusion that:
. . . with regard to private persons, civil officials and goods in general there
existed during the British and post-British periods a constant and uniform
practice allowing free passage between Daman and the enclaves. This
practice having continued over a period extending beyond a century and a
quarter unaffected by the change of regime in respect of the intervening
territory which occurred when India became independent, the Court is, in
view of all the circumstances of the case, satisfied that that practice was

accepted as law by the Parties and has given rise to a right and a correlative
obligation/18
In the case of armed forces and armed police, the Court found that their
passage had been dependent on the discretionary power of the territorial
sovereign and that no right of passage as such existed in favour of Portugal.
The course of dealings established between the Portuguese and the British
authorities with respect to the passage of these categories excludes the
existence of any such right. The practice that was established shows that,
with regard to these categories, it was well understood that passage could
take place only by permission of the British authorities. This situation
continued during the post-British period.19
24. The Court held that India had not acted contrary to its obligations
regarding the passage of private persons, since such passage was subject at
all times to Indias power of regulation and control. the Permanent Court of
International Justice held that obligations in the nature of real rights had
been created, which attached to the District of St. Gingolph and remained
binding upon the successor State after sovereignty had passed from Sardinia
to France.
4.) The SS Lotus Case (France vs. turkey) (1927)
Citation. Permanent Court of Intl Justice, P.C.I.J. (ser. A) No. 10 (1927)
Brief Fact Summary. Turkeys (D) assertion of jurisdiction over a French
citizen who had been the first officer of a ship that collided with a Turkish
ship on the high seas was challenged by France (P) as a violation of
international law.
Synopsis of Rule of Law. A rule of international law, which prohibits a state
from exercising criminal jurisdiction over a foreign national who commits acts
outside of the states national jurisdiction, does not exist.
Facts. A collision occurred shortly before midnight on the 2nd of August 1926
between the French (P) mail steamer Lotus and the Turkish (D) collier BozKourt. The French mail steamer was captained by a French citizen by the
name Demons while the Turkish collier Boz-Kourt was captained by Hassan
Bey. The Turks lost eight men after their ship cut into two and sank as a
result of the collision.
Although the Lotus did all it could do within its power to help the ship
wrecked persons, it continued on its course to Constantinople, where it
arrived on August 3. On the 5th of August, Lieutenant Demons was asked by
the Turkish (D) authority to go ashore to give evidence. After Demons was
examined, he was placed under arrest without informing the French (P)
Consul-General and Hassan Bey. Demons were convicted by the Turkish (D)
courts for negligence conduct in allowing the accident to occur.

This basis was contended by Demons on the ground that the court lacked
jurisdiction over him. With this, both countries agreed to submit to the
Permanent Court of International Justice, the question of whether the
exercise of Turkish (D) criminal jurisdiction over Demons for an incident that
occurred on the high seas contravened international law.

Issue. Issue: Does a rule of international law which prohibits a state from
exercising criminal jurisdiction over a foreign national who commits acts
outside of the states national jurisdiction exist?
Held. (Per curiam) No. A rule of international law, which prohibits a state from
exercising criminal jurisdiction over a foreign national who commits acts
outside of the states national jurisdiction, does not exist. Failing the
existence of a permissive rule to the contrary is the first and foremost
restriction imposed by international law on a state and it may not exercise its
power in any form in the territory of another state.
This does not imply that international law prohibits a state from exercising
jurisdiction in its own territory, in respect of any case that relates to acts that
have taken place abroad which it cannot rely on some permissive rule of
international law. In this situation, it is impossible to hold that there is a rule
of international law that prohibits Turkey (D) from prosecuting Demons
because he was aboard a French ship. This stems from the fact that the
effects of the alleged offense occurred on a Turkish vessel.
Hence, both states here may exercise concurrent jurisdiction over this matter
because there is no rule of international law in regards to collision cases to
the effect that criminal proceedings are exclusively within the jurisdiction of
the state whose flag is flown.
Discussion. In 1975, France enacted a law regarding its criminal jurisdiction
over aliens because of this the situation surrounding this case. The law
stipulates that aliens who commit a crime outside the territory of the
Republic may be prosecuted and judged pursuant to French law, when the
victim is of French nationality. This is contained in 102 Journal Du Droit
International 962 (Clunet 1975). Several eminent scholars have criticized the
holding in this case for seeming to imply that international law permits all
that it does not forbid.
5.) Kuroda vs. Jalandoni (G.R. No. L-2662, March 26, 1949)
Kuroda vs. Jalandoni
Facts:
Petitioner, formerly a Lieutenant-General of the Japanese Army and
Commanding General of the Japanese Imperial Forces, was charged before a
military commission set by Executive Order No. 68 of the President of the
Philippines. Said executive order also established a National War Crimes

Office and prescribed rules and regulations governing the trial of accused
war criminals. Petitioner contended that E.O. No. 68 was illegal and
unconstitutional because he cannot be tried fro violation of international
conventions, like the Geneva and Hague Conventions. Furthermore, he
alleged that the participation of two American lawyers in the prosecution was
violative of our national sovereignty.
Issue:
Whether the Philippine Government has the jurisdiction to try and convict
Kuroda for violating prohibited acts of the war.
Ruling:
Executive Order No. 68 is legal and constitutional because Article II, Section
3 of the 1935 Constitution explicitly provides that the Philippines renounces
war as an instrument of national policy, and adopts the generally accepted
principles of international law as part of the law of nation.
In promulgation and enforcement of E.O. No. 68, the President of the
Philippine exercised his power as commander-in-chief of all armed forces.
Moreover, it was in adherence with the generally accepted principles and
policies of international law which form part of our Constitution.
With regards to the contention about the participation of two American
lawyers, the Philippines was under the sovereignty of the United States and
thus, we were equally bound together with the US and Japan, to the rights
and obligations contained in the treaties. These rights and obligations were
not erased by our assumption of full sovereignty.
6.) Yamashita vs. Styer (G.R. No. L-129, December 19, 1945)
Yamashita vs. Styer
G.R. L-129 December 19, 1945
Ponente: Moran, C.J.
Facts:
1. Yamashita was the Commanding General of the Japanese army in the
Philippines during World War 2. He was charged before the American military
commission for war crimes.
2. He filed a petition for habeas corpus and prohibition against Gen. Styer to
reinstate his status as prisoner of war from being accused as a war criminal.
Petitioner also questioned the jurisdiction of the military tribunal.
Issue: Whether or not the military tribunal has jurisdiction
Held:
YES.

1. The military commission was lawfully created in conformity with an act of

Congress sanctioning the creation of such tribunals.
2. The laws of war imposes upon a commander the duty to take any
appropriate measures within his powers to control the troops under his
command to prevent acts which constitute violation of the laws of war.
Hence, petitioner could be legitimately charged with personal responsibility
arising from his failure to take such measure. In this regard the SC invoked
Art. 1 of the Hague Convention No. IV of 1907, as well as Art. 19 of Hague
Convention No. X, Art. 26 of 1929 Geneva Convention among others.
3. Habeas corpus is untenable since the petitioner merely sought for
restoration to his former status as prisoner of war and not a discharge from
confinement. This is a matter of military measure and not within the
jurisdiction of the courts.
4. The petition for prohibition against the respondent will also not life since
the military commission is not made a party respondent in the case. As such,
no order may be issued requiring it to refrain from trying the petitioner.
7.) Nicaragua vs. US (Merits)
FACTS:
In 1946, the US made a declaration containing the following reservation:
this declaration shall remain in force for a period of 5 years and thereafter
until the expiration of 6 months after notice may be given to terminate
thisdeclaration.
In 1984, the US deposited with the UN Sec Gen a notification referring to the
1946 declaration, stating: theaforesaid declaration shall not apply to
disputes with any Central American State or arising out of or related toevents
in Central America, any of which disputes shall be settled in such manner as
the parties to them may agree. Nicaragua filed a claim against the US for
damages in connection with military and paramilitary activities
allegedlysupported by the US in and against Nicaragua. The US argues that
pursuant to the 1984 reservation that it made, theICJ has no jurisdiction over
the controversy, since it involves a dispute with a Central American State.
Nicaraguaargues that the ICJ has jurisdiction under the 1946 declaration,
which was not terminated by the subsequent 1984declaration, since the US
never gave the 6-months notice of termination, as required by the
reservation that it hadmade in 1946.According to Nicaragua, the US
conceived, created, and organized a mercenary army, the contra force, in
Nicaragua.The court found that contra force was not created by the US, but
that a number of the operations were decided and planned, if not actually by
the US advisers, then at least in close collaboration with them, and on the
basis of theintelligence and logistic support which the US was able to offer.
The US gave assistance to the contra force in theform of logistic support, the
supply of information on the location and movements of the Sandinista
troops, the useof sophisticated methods of communication, etc. However,

the evidence does not warrant a finding that the US gavedirect combat
support.
ISSUE:
W/N the declaration is still binding on the US.
HELD:
The ICJ has jurisdiction. The 1946 declaration is still binding on the US.The
US cannot derogate from the time-limit proviso included in its 1946
declaration. The notion of reciprocity isconcerned with the scope and
substance of the commitments entered into, including reservations, and not
withformal conditions of their creation, duration, or extinction. Reciprocity
cannot be invoked in order to excusedeparture from the terms of a States
own declaration. Nicaragua can invoke the six months notice against the
US,not on the basis of reciprocity, but because it is an undertaking which is
an integral part of the instrument thatcontains it. The 1984 notification
cannot override the obligation of the US to submit to the jurisdiction of the
Courtvis--vis Nicaragua.
ISSUE:
Whether the contras can be considered as organs of the US Government, or
as acting on its behalf.
HELD:
No, the contras are not agents of the US government.The evidence is
insufficient to demonstrate the total dependence of the contras on US aid. A
partial dependencymay be inferred from the fact that the leaders were
selected by the US, and from other factors such as theorganization, training
and equipping of the force, planning of operations, the choosing of targets,
and the operationalsupport provided. There is, however, no clear evidence
that the US actually exercised such a degree of control as to justify treating
the contras as acting on its behalf. Therefore, the contras, remain responsible
for their own acts, in particular for alleged violations by them of
humanitarian law. For the US to be legally responsible, it would have to be
proved that the State had effective control of the operations in the course of
which the alleged violations were committed.
8.) Southwest Africa Cases (Second Phase): Ethiopia vs. South
Africa; Liberia vs. South Africa
Judgment of 18 July 1966
The South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa),
which relate to the continued existence of the Mandate for South West Africa
and the duties and performance of South Africa as Mandatory thereunder,
were instituted by Applications of the Governments of Ethiopia and Liberia
filed in the Registry on 4 November 1960. By an Order of 20 May 1961 the
Court joined the proceedings in the two cases. The Government of South
Africa raised preliminary objections to the Court's proceeding to hear the
merits of the case, but these were dismissed by the Court on 21 December

1962, the Court finding that it had jurisdiction to adjudicate upon the merits
of the dispute.
In its Judgment on the second phase of the cases the Court, by the
President's casting vote, the votes being equally divided (seven-seven),
found that the Applicant States could not be considered to have established
any legal right or interest in the subject matter of their claims and
accordingly decided to reject them.
The President, Sir Percy Spender, has appended a Declaration to the
Judgment. Judge Morelli and Judge ad hoc van Wyk have appended separate
opinions. Vice-President Wellington Koo, Judges Koretsky, Tanaka, Jessup,
Padilla Nervo and Forster and Judge ad hoc Sor Louis Mbanefo have
appended dissenting opinions.
*
**
The Applicants, acting in the capacity of States which were members of the
former League of Nations, put forward various allegations of contraventions
of the League of Nations Mandate for South West Africa by the Republic of
South Africa.
The contentions of the Parties covered, inter alia, the following issues:
whether the Mandate for South West Africa was still in force and, if so,
whether the Mandatory's obligation to furnish annual reports on its
administration to the Council of the League of Nations had become
transformed into an obligation so to report to the General Assembly of the
United Nations; whether the Respondent had, in accordance with the
Mandate, promoted to the utmost the material and moral well-being and the
social progress of the inhabitants of the territory, whether the Mandatory had
contravened the prohibition in the Mandate of the "military training of the
natives" and the establishment of military or naval bases or the erection of
fortifications in the territory; and whether South Africa had contravened the
provision in the Mandate that it (the Mandate) can only be modified with the
consent of the Council of the League of Nations, by attempting to modify the
Mandate without the consent of the United Nations General Assembly, which,
it was contended by the Applicants, had replaced the Council of the League
for this and other purposes.
Before dealing with these questions, however, the Court considered that
there were two questions of an antecedent character, appertaining to the
merits of the case, which might render an enquiry into other aspects of the
case unnecessary. One was whether the Mandate skill subsisted at all and
the other was the question of the Applicants' standing in this phase of the
proceedings - i.e. their legal right or interest regarding the subject matter of
their claims. As the Court based its Judgment on a finding that the Applicants
did not possess such a legal right or interest, it did not pronounce upon the
question of whether the Mandate was still in force. Moreover, the Court
emphasized that its 1962 decision on the question of competence was given
without prejudice to the question of the survival of the Mandate - a question
appertaining to the merits of the case, and not in issue in 1962 except in the

sense that survival had to be assumed for the purpose of determining the
purely jurisdictional issue - which was all that was then before the Court.
Turning to the basis of its decision in the present proceedings, the Court
recalled that the mandates system was instituted by Article 22 of the
Covenant of the League of Nations. There were three categories of
mandates, 'A', 'B' and 'C' mandates, which had, however, various features in
common as regards their structure. The principal element of each instrument
of mandate consisted of the articles defining the mandatory's powers and its
obligations in respect of the inhabitants of the territory and towards the
League and its organs. The Court referred to these as the "conduct"
provisions. In addition, each instrument of mandate contained articles
conferring certain rights relative to the mandated territory directly upon the
members of the League as individual States, or in favour of their nationals.
The Court referred to rights of this kind as "special interests", embodied in
the "special interests" provisions of the mandates.
In addition, every mandate contained a jurisdictional clause, which, with a
single exception, was in identical terms, providing for a reference of disputes
to the Permanent Court of International Justice, which, the Court had found in
the first phase of the proceedings, was now, by virtue of Article 37 of the
Court's Statute, to be construed as a reference to the present Court.
The Court drew a distinction between the "conduct" and the "special
interests" provisions of the mandates, the present dispute relating
exclusively to the former. The question to be decided was whether any legal
right or interest was vested in members of the League of Nations individually
as regards the "conduct" clauses of the mandates - i.e., whether the various
mandatories had any direct obligation towards the other members of the
League individually, as regards the carrying out of the "conduct" provisions
of the mandates. If the answer were that the Applicants could not be
regarded as possessing the legal right or interest claimed, then even if the
various allegations of contraventions of the Mandate for South West Africa
were established, the Applicants would still not be entitled to the
pronouncements and declarations which, in their final submissions, they
asked the Court to make.
It was in their capacity as former members of the League of Nations that the
Applicants appeared before the Court, and the rights they claimed were
those that the members of the League were said to have been invested with
in the time of the League. Accordingly, in order to determine the rights and
obligations of the Parties relative to the Mandate, the Court had to place
itself at the point in time when the mandates system was instituted. Any
enquiry into the rights and obligations of the Parties must proceed principally
on the basis of considering the texts of the instruments and provisions in the
setting of their period.
Similarly, attention must be paid to the juridical character and structure of
the institution, the League of Nations, within the framework of which the
mandates system was organized. A fundamental element was that Article 2
of the Covenant provided that the "action of the League under this Covenant

shall be effected through the instrumentality of an Assembly and of a

Council, with a permanent Secretariat". Individual member States could not
themselves act differently relative to League matters unless it was otherwise
specially so provided by some article of the Covenant.
It was specified in Article 22 of the Covenant that the "best method of giving
practical effect to [the] principle" that the "well-being and development" of
those peoples in former enemy colonies "not yet able to stand by
themselves" formed "a sacred trust of civilization" was that "the tutelage of
such peoples should be entrusted to advanced nations . . . who are willing to
accept it" and it specifically added that it was "on behalf of the League" that
"this tutelage should be exercised by those nations as Mandatories". The
mandatories were to be the agents of the League and not of each and every
member of it individually.
Article 22 of the Covenant provided that "securities for the performance" of
the sacred trust were to be "embodied in this Covenant". By paragraphs 7
and 9 of Article 22, every mandatory was to "render to the Council an annual
report in reference to the territory"; and a Permanent Mandates Commission
was to be constituted "to receive and examine" these annual reports and "to
advise the Council on all matters relating to the observance of the
mandates". In addition, it was provided, in the instruments of mandate
themselves, that the annual reports were to be rendered "to the satisfaction
of the Council".
Individual member States of the League could take part in the administrative
process only through their participation in the activities of the organs by
means of which the League was entitled to function. They had no right of
direct intervention relative to the mandatories: this was the prerogative of
the League organs.
The manner in which the mandate instruments were drafted only lends
emphasis to the view that the members of the League generally were not
considered as having any direct concern with the setting up of the various
mandates. Furthermore, while the consent of the Council of the League was
required for any modification of the terms of the mandate, it was not stated
that the consent of individual members of the League was additionally
required. Individual members of the League were not parties to the various
instruments of mandate, though they did, to a limited extent, and in certain
respects only, derive rights from them. They could draw from the
instruments only such rights as these unequivocally conferred.
Had individual members of the League possessed the rights which the
Applicants claimed them to have had, the position of a mandatory caught
between the different expressions of view of some 40 or 50 States would
have been untenable. Furthermore, the normal League voting rule was
unanimity, and as the mandatory was a member of the Council on questions
affecting its mandate, such questions could not be decided against the
mandatory's contrary vote. This system was inconsistent with the position
claimed for individual League members by the Applicants, and if, as

members of the League, they did not possess the rights contended for, they
did not possess them now.
*
**
It had been attempted to derive a legal right or interest in the conduct of the
Mandate from the simple existence, or principle, of the "sacred trust". The
sacred trust, it was said was a "sacred trust of civilization" and hence all
civilized nations had an interest in seeing that it was carried out. But in order
that this interest might take on a specifically legal character the sacred trust
itself must be or become something more than a moral or humanitarian
ideal. In order to generate legal rights and obligations, it must be given
juridical expression and be clothed in legal form. The moral ideal must not be
confused with the legal rules intended to give it effect. The principle of the
"sacred trust" had no residual juridical content which could, so far as any
particular mandate is concerned, operate per se to give rise to legal rights
and obligations outside the system as a whole.
Nor could the Court accept the suggestion that even if the legal position of
the Applicants and of other individual members of the League were as the
Court held it to be, this was so only during the lifetime of the League, and
that on the latter's dissolution the rights previously resident in the League
itself, or in its competent organs, devolved upon the individual States which
were members of it at the date of its dissolution. Although the Court held in
1962 that the members of a dissolved international organization can be
deemed, though no longer members of it, to retain rights which, as
members, they individually possessed when the organization was in being,
this could not extend to ascribing to them, upon and by reason of the
dissolution, rights which, even previously as members, they never did
individually possess. Nor could anything that occurred subsequent to the
dissolution of the League operate to invest its members with rights they did
not previously have as members of the League. The Court could not read the
unilateral declarations, or statements of intention, made by the various
mandatories on the occasion of the dissolution of the League, expressing
their willingness to continue to be guided by the mandates in their
administration of the territories concerned, as conferring on the members of
the League individually any new legal rights or interests of a kind they did
not previously possess.
It might be said that in so far as the Court's view led to the conclusion that
there was now no entity entitled to claim the due performance of the
Mandate, it must be unacceptable, but if a correct legal reading of a given
situation showed certain alleged rights to be non-existent, the consequences
of this must be accepted. To postulate the existence of such rights in order to
avert those consequences would be to engage in an essentially legislative
task, in the service of political ends.
Turning to the contention that the Applicants' legal right or interest had been
settled by the 1962 Judgment and could not now be reopened, the Court
pointed out that a decision on a preliminary objection could never be

preclusive of a matter appertaining to the merits, whether or not it had in

fact been dealt with in connection with the preliminary objection. When
preliminary objections were entered by the defendant party in a case, the
proceedings on the merits were suspended, by virtue of Article 62,
paragraph 3, of the Court's Rules. Thereafter, and until the proceedings on
the merits were resumed, there could be no decision finally determining or
prejudging any issue of merits. A judgment on a preliminary objection might
touch on a point of merits, but this it could do only in a provisional way, to
the extent necessary for deciding the question raised by the preliminary
objection. It could not rank as a final decision on the point of merits involved.
While the 1962 Judgment decided that the Applicants were entitled to invoke
the jurisdictional clause of the Mandate, it remained for them, on the merits,
to establish that they had such a right or interest in the carrying out of the
provisions which they invoked as to entitle them to the pronouncements and
declarations they were seeking from the Court. There was no contradiction
between a decision that the Applicants had the capacity to invoke the
jurisdictional clause and a decision that the Applicants had not established
the legal basis of their claim on the merits.
In respect of the contention that the jurisdictional clause of the Mandate
conferred a substantive right to claim from the Mandatory the carrying out of
the "conduct of the Mandate" provisions, it was to be observed that it would
be remarkable if so important a right had been created in so casual and
almost incidental a fashion. There was nothing about this particular
jurisdictional clause, in fact, to differentiate it from many others, and it was
an almost elementary principle of procedural law that a distinction had to be
made between, on the one hand, the right to activate a court and the right of
a court to examine the merits of a claim and, on the other, the plaintiff's
legal right in respect of the subject matter of its claim, which it would have to
establish to the satisfaction of the Court. Jurisdictional clauses were
adjectival not substantive in their nature and effect: they did not determine
whether parties had substantive rights, but only whether, if they had them,
they could vindicate them by recourse to a tribunal.
The Court then considered the rights of members of the League Council
under the jurisdictional clauses of the minorities treaties signed after the
First World War, and distinguished these clauses from the jurisdictional
clauses of the instruments of mandate. In the case of the mandates the
jurisdictional clause was intended to give the individual members of the
League the means of protecting their "special interests" relative to the
mandated territories; in the case of the minorities treaties, the right of action
of the Members of the Council under the jurisdictional clause was only
intended for the protection of minority populations. Furthermore, any
"difference of opinion" was characterized in advance in the minorities
treaties as being justiciable, because it was to be "held to be a dispute of an
international character". Hence no question of any lack of legal right or
interest could arise. The jurisdictional clause of the mandates on the other

hand had none of the special characteristics or effects of those of the

minorities treaties.
The Court next dealt with what had been called the broad and unambiguous
language of the jurisdictional clause - the literal meaning of its reference to
"any dispute whatever" coupled with the words "between the Mandatory and
another Member of the League of Nations" and the phrase "relating . . . to
the provisions of the Mandate", which, it was said, permitted a reference to
the Court of a dispute about any provision of the Mandate. The Court was not
of the opinion that the word "whatever" in Article 7, paragraph 2, of the
Mandate did anything more than lend emphasis to a phrase that would have
meant exactly the same without it. The phrase "any dispute" (whatever) did
not mean anything intrinsically different from "a dispute"; nor did the
reference to the "provisions" of the Mandate, in the plural, have any different
effect from what would have resulted from saying "a provision". A
considerable proportion of the acceptances of the Court's compulsory
jurisdiction under paragraph 2 of Article 36 of its Statute were couched in
language similarly broad and unambiguous and even wider. It could never be
supposed that on the basis of this wide language the accepting State was
absolved from establishing a legal right or interest in the subject matter of its
claim. The Court could not entertain the proposition that a jurisdictional
clause by conferring competence on the Court thereby and of itself conferred
a substantive right.
The Court next adverted to the question of admissibility. It observed that the
1962 Judgment had simply found that it had "jurisdiction to adjudicate upon
the merits" and that if any question of admissibility were involved it would
fall to be decided now, as occurred in the merits phase of the Nottebohm
case; if this were so the Court would determine the question in exactly the
same way, i.e., looking at the matter from the point of view of the capacity of
the Applicants to advance their present claim, the Court would hold that they
had not got such capacity, and hence that the claim was inadmissible.
Finally, the Court dealt with what had been called the argument of
"necessity". The gist of this was that since the Council of the League had no
means of imposing its views on the Mandatory, and since no advisory opinion
it might obtain from the Court would be binding on the latter, the Mandate
could have been flouted at will. Hence, it was contended, it was essential, as
an ultimate safeguard or security for the sacred trust, that each Member of
the League should be deemed to have a legal right or interest in that matter
and be able to take direct action relative to it. But in the functioning of the
mandates system in practice, much trouble was taken to arrive, by
argument, discussion, negotiation and cooperative effort, at generally
acceptable conclusions and to avoid situations in which the Mandatory would
be forced to acquiesce in the views of the rest of the Council short of casting
an adverse vote. In this context, the existence of substantive rights for
individual members of the League in the conduct of the mandates
exercisable independently of the Council would have been out of place.
Furthermore, leaving aside the improbability that, had the framers of the

mandates system intended that it should be possible to impose a given

policy on a mandatory, they would have left this to be haphazard and
uncertain action of individual members of the League, it was scarcely likely
that a system which deliberately made it possible for mandatories to block
Council decisions by using their veto (though, so far as the Court was aware,
this had never been done) should simultaneously invest individual members
of the League with a legal right of complaint if the mandatory made use of
this veto. In the international field, the existence of obligations that could not
be enforced by any legal process had always been the rule rather than the
exception-and this was even more the case in 1920 than today.
Moreover, the argument of "necessity" amounted to a plea that the Court
should allow the equivalent of an actio popularis, or right resident in any
member of a community to take legal action in vindication of a public
interest. But such a right was not known to international law as it stood at
present: and the Court was unable to regard it as imported by "the general
principles of law" referred to in Article 38, paragraph 1 (c), of its Statute.
In the final analysis, the whole "necessity" argument appeared to be based
on considerations of an extra-legal character, the product of a process of
after-knowledge. It was events subsequent to the period of the League, not
anything inherent in the mandates system as it was originally conceived,
that gave rise to the alleged "necessity", which, if it existed, lay in the
political field and did not constitute necessity in the eyes of the law. The
Court was not a legislative body. Parties to a dispute could always ask the
Court to give a decision ex aequo et bono, in terms of paragraph 2 of Article
38. Failing that, the duty of the Court was plain: its duty was to apply the law
as it found it, not to make it.
It might be urged that the Court was entitled to "fill in the gaps", in the
application of a teleological principle of interpretation, according to which
instruments must be given their maximum effect in order to ensure the
achievement of their underlying purposes. This principle was a highly
controversial one and it could, in any event, have no application to
circumstances in which the Court would have to go beyond what could
reasonably be regarded as being a process of interpretation and would have
to engage in a process of rectification or revision. Rights could not be
presumed to exist merely because it might seem desirable that they should.
The Court could not remedy a deficiency if, in order to do so, it had to exceed
the bounds of normal judicial action.
It might also be urged that the Court would be entitled to make good an
omission resulting from the failure of those concerned to foresee what might
happen and to have regard to what it might be presumed the framers of the
mandate would have wished, or would even have made express provision
for, had they had advance knowledge of what was to occur. The Court could
not, however, presume what the wishes and intentions of those concerned
would have been in anticipation of events that were neither foreseen nor
foreseeable; and even if it could, it would certainly not be possible to make

the assumptions contended for by the Applicants as to what those intentions

were.
For the foregoing reasons, the Court decided to reject the claims of the
Empire of Ethiopia and the Republic of Liberia.
9.) Kookooritchkin vs. the Solicitor General (G.R. No. L-1812, August
27, 1948)
10.) Nuclear Test Cases (Australia vs. France; New Zealand vs.
France) (1974)
Nuclear Tests Case (Australia & New Zealand v. France)
Procedural History: Proceeding before the International Court of Justice.
Overview: Australia and New Zealand (P) demanded that France (D) cease
atmospheric nuclear tests in the South Pacific. France (D) completed a series
of nuclear tests in the South Pacific. Australia and New Zealand (P) applied to
the !.C.). demanding that France (D) cease testing immediately. While the
case was pending, France (D) announced the series of tests was complete
and that it did not plan any further such tests. France (D) moved to dismiss
the applications.
Issue: May declarations made by way of unilateral acts have the effect of
creating legal obligations?
Rule: declerations made by way of unilateral acts may have the effect of
creating legal obligations.
Analysis: The unilateral statements made by French authorities were first
communicated to the government of Australia. To have legal effect there was
no need tor the statements to be directed to any particular state. The
general nature and characteristics of the statements alone were relevant for
evaluation of their legal implications.
Outcome: Yes. Declarations made by way of unilateral acts may have the
effect of creating legal obligations. The sole relevant question is whether the
language employed in any given declaration reveals a clear intention. One of
the basic principles governing the creation and performance of legal
obligations is the principle of good faith. The statements made by the
President of the French Republic must be held to constitute an engagement
of the State in regard to the circumstances and intention with which they
were made. The statements made by the French authorities are therefore
relevant and legally binding. Applications dismissed.

11.) Request for an Examination of the Situation in Accordance with

Par. 63 of the Courts Judgment of 20 December 1974 in Nuclear
Tests Case (New Zealand vs. France) (1995)
12.) Legality of the Use of Nuclear Weapons (1996)
13.) The Paquete Habana Case (1900)
The Paquete Habana Case Brief 175 U.S. 677
Keyed to Damrosch 5th
Status: Supreme Court of the United States, 1900
Facts: Two fishing vessels that were fishing out of Havana, Cuba, sailed under
a Spanish flag were fishing off the Cuba coast. They were owned a Spanish
subject that was born in Cuba and living in Havana. The vessels were
commanded by a subject of Spain, also residing in Havana. Their cargo
consisted of fresh fish, caught by their crew. The fish were kept alive to be
sold alive. Until stopped by the blockading squadron they had no knowledge
of the existence of the war or of any blockade. She had no arms or
ammunition on board, and made no attempt to run the blockade after she
knew of its existence, nor any resistance at the time of the capture.
Procedural History: DC for the Southern District of Florida condemned the two
fishing vessels and their cargos as prizes of war.
Issues: Whether a court may look to established rules of other nations when
their own nation lacks any treaty, legislation, proclamation, or instruction
that is on point for a particular matter?
Analysis: By an ancient usage among civilized nations, beginning centuries
ago, and gradually ripening into a rule of international law, coast fishing
vessels, pursuing their vocation of catching and bringing in fresh fish, have
been recognized as exempt, with their cargoes and crews, from capture as
prize of war.
In 1403 and 1406 Henry IV ordered that fisherman of foreign nations become
under his special protection so that the fisherman in the course of their duty
would not be hindered, interfered, or molested by any of his subjects.
The doctrine which exempts coast fishermen, with their vessels and cargoes,
from capture as prize of war, has been familiar to the United States from the
time of the War of Independence.
On June 5, 1779, Louis XVI., our ally in that war, addressed a letter to his
admiral, informing him that the wish he had always had of alleviating, as far
as he could, the hardships of war, had directed his attention to that class of
his subjects which devoted itself to the trade of fishing, and had no other
means of livelihood; that he had thought that the example which he should
give to his enemies, would determine them to allow to fishermen the same
facilities which he should consent to grant; and that he had therefore given
orders to the commanders of all his ships not to disturb English fishermen,
nor to arrest their vessels laden with fresh fish, provided they had no
offensive arms, and were not proved to have made any signals creating a

suspicion of intelligence with the enemy; and the admiral was directed to
communicate the Kings intentions to all officers under his control.
Among the standing orders made by Sir James Marriott, Judge of the English
High Court of Admiralty, was one of April 11, 1780, by which it was ordered
that all causes of prize of fishing boats or vessels taken from the enemy may
be consolidated in one monition, and one sentence or interlocutory, if under
50 tons burthen, and not more than 6 in number. But by the statements of
his successor, and of both French and English writers, it apears that England,
as well as France, during the American Revolutionary War, abstained from
interfering with the coast fisheries.
In the treaty of 1785 between the United States and Prussia, provided that, if
war should arise between the contracting parties, all women and children,
scholars of every faculty, cultivators of the earth, artisans, manufacturers,
and fishermen, unarmed and inhabiting unfortified towns, villages, or places,
and in general all others whose occupations are for the common subsistence
and benefit of mankind, shall be allowed to continue their respective
employments, and shall not be molested in their persons, nor shall their
houses or goods be burnt or otherwise destroyed, nor their fields wasted by
the armed force of the enemy, into whose power, by the events of war, they
may happen to fall; but if anything is necessary to be taken from them for
the use of such armed force, the same shall be paid for at a reasonable
price. Here was the clearest exemption from hostile molestation or seizure
of the persons, occupations, houses, and goods of unarmed fishermen
inhabiting unfortified places.
Wheatons International Laws, says: In many treaties and decrees,
fishermen catching fish as an article of food are added to the class of
persons whose occupation is not to be disturbed in war.
The English government, soon afterwards, more than once unqualifiedly
prohibited the molestation of fishing vessels employed in catching and
bringing to market fresh fish. On May 23, 1806, it was ordered in council
that all fishing vessels under Prussian and other colors, and engaged for the
purpose of catching fish and conveying them fresh to market, with their
crews, cargoes, and stores, shall not be molested on their fishing voyages
and bringing the same to market.
In the war with Mexico, in 1846, the United States recognized the exemption
of coast fishing boats from capture. It appears that Commodore Conner,
commanding the Home Squadron blockading the east coast of Mexico, on
May 14, 1846, wrote a letter to Mr. Bancroft, the Secretary of the Navy,
inclosing a copy of the commodores instructions to the commanders of the
vessels of the Home Squadron, showing the principles to be observed in the
blockade of the Mexican ports, one of which was that Mexican boats
engaged in fishing on any part of the coast will be allowed to pursue their
labors unmolested; and that on June 10, 1846, those instructions were
approved by the Navy Department.
In the treaty of peace between the United States and Mexico, in 1848, were
inserted the very words of the earlier treaties with Prussia, already quoted,

forbidding the hostile molestation or seizure in time of war of the persons,

occupations, houses, or goods of fishermen.
France in the Crimean war in 1854, and in her wars with Italy in 1859 and
with Germany in 1870, by general orders, forbade her cruisers to trouble the
coast fisheries, or to seize any vessel or boat engaged therein, unless naval
or military operations should make it necessary.
Since the English orders in council of 1806 and 1810, before quoted, in favor
of fishing vessels employed in catching and bringing to market fresh fish, no
instance has been found in which the exemption from capture of private
coast fishing vessels honestly pursuing their peaceful industry has been
denied by England or by any other nation. And the Empire of Japan by an
ordinance promulgated at the beginning of its war with China in August,
1894, established prize courts, and ordained that the following enemys
vessels are exempt from detention, including in the exemption boats
engaged in coast fisheries, as well as ships engaged exclusively on a
voyage of scientific discovery, philanthrophy, or religious mission.
Wheaton observes: Without wishing to exaggerate the importance of these
writers, or to substitute, in any case, their authority for the principles of
reason, it may be affirmed that they are generally impartial in their
judgment. They are witnesses of the sentiments and usages of civilized
nations, and the weight of their testimony increases every time that their
authority is invoked by statesmen, and every year that passes without the
rules laid down in their works being impugned by the avowal of contrary
principles.
Chancellor Kent says: In the absence of higher and more authoritative
sanctions, the ordinances of foreign states, the opinions of eminent
statesmen, and the writings of distinguished jurists, are regarded as of great
consideration on questions not settled by conventional law. In cases where
the principal jurists agree, the presumption will be very great in favor of the
solidity of their maxims; and no civilized nation that does not arrogantly set
all ordinary law and justice at defiance will venture to disregard the uniform
sense of the established writers on international law.
This review of the precedents and authorities on the subject appears to us
abundantly to demonstrate that at the present day, by the general consent
of the civilized nations of the world, and independently of any express treaty
or other public act, it is an established rule of international law, founded on
considerations of humanity to a poor and industrious order of men, and of
the mutual convenience of belligerent states, that coast fishing vessels, with
their implements and supplies, cargoes and crews, unarmed and honestly
pursuing their peaceful calling of catching and bringing in fresh fish, are
exempt from capture as prize of war.
This rule of international law is one which prize courts administering the law
of nations are bound to take judicial notice of, and to give effect to, in the
absence of any treaty or other public act of their own government in relation
to the matter.

Holding: Yes
Judgment: Ordered, that the decree of the District Court be reversed, and the
proceeds of the sale of the vessel, together with the proceeds of any sale of
her cargo, be restored to the claimant, with damages and costs.
Rule: A court may look to established rules of other nations when their own
nation lacks any treaty, legislation, proclamation, or instruction that is on
point for a particular matter.
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.
Dissent or Concurrence: Mr. Chief Justice Fuller, with whom concurred Mr.
Justice Harlan and Mr. Justice McKenna, dissenting:
The district court held these vessels and their cargoes liable because not
satisfied that as a matter of law, without any ordinance, treaty, or
proclamation, fishing vessels of this class are exempt from seizure. This court
holds otherwise, not because such exemption is to be found in any treaty,
legislation, proclamation, or instruction granting it, but on the ground that
the vessels were exempt by reason of an established rule of international law
applicable to them, which it is the duty of the court to enforce.
14.) The Case Concerning the Temple of Preah Vihear (Cambodia vs.
Thailand) (Merits) (1962)
15.) Passage case (Portugal vs. India)
16.) Corfu Channel Case (Uk vs. Albania) (Merits) (1949)
17.) Chorzow Factory Case (Germany vs. Poland) (Indemnity0
(Merits) (1928)
18.) Texaco vs. Libya (1978)
19.) Barcelona Traction, Light and Power Company Case (Belgium vs.
Spain) (1970)