 Introudction

o Sources of law determine the rules of legal society

o Sources of international law contain the legal answers to the questions that cannot be
answered in national law
o In domestic law, identification of relevant legal sources is rarely a problem because
domestic legal order is hierarchical in nature
o In international law the lack of a unversal legislature and a system of courts with compulsory
jurisdiction make it difficult to find the law
o International is a decentralized legal system where legal obligations may derive from more
than one source
o Law exists to servev a social need but it needs to be expressed in a legal form
o All international legal obligations are derived from the consent of the state
o But not all answers to international law can be found in freely undertaken obligations, but
are bound to those behavioral rules that are required for the maintenance of peaceful
coexistence
 Article 38 of the ICJ
o Classic attemptp of listing sources of international law
 International conventions establishing rules
 International custom, a general practice accepted as law
 General principles of law recognized by civilized nations
 Subject to article 59, judicial decisions and the teachings of the most highly qualified
publicists as subsidiary means for determination of rules of law
o These sources shall not prejudice the power of court to decide ex aqueo et bono, on what
they consider to be fair and equitable
o ICJ has relied on sources not mentioned in article 38
o Primary source/creating law - treaties, international customary law, general principles - they
create
o Secondary source/identifying law - judicial decisions and scholarly contributions - merely
apply
 Convention/ treaties as a legal source
o Is the most formal way for states to create rights and obligations under international law
o It's legal basis is state consent
o Mistake to assume that all international obligations derive from consent (except in treaties)
o Pacta sunt sesrvanda, bound to honor treaty based obligations
o Bilateral treaties cover a particular issue of mutual interest and resembles a contract
o Multilateral treaties often have general application and law making features
o Constituent treaties create international organizations
 A state party to a constituent treaty consents to be bound by subequent legal
instruments adopted pursuant thereto
 Customs as a source of international law
o The things that have always been done becomes the thing that mut be done
o Arises when a particular way of behaving is
 Followed ass a general practice among states
 Belief by those states as legally binding
o Customary rule binds all states unless it is a persistent objector
o Customary legal norms need not be universal in scope
 Long continued practive between two states can form the basis of mutual rights and
obligations between those two states
  Could create a local custom binding only on the regional states
o To be binding a custom must be:
 Constant and uniform practice
 Includes physical acts and public verbal acts
 Does not need to be completely consistent so long as it is generally consistent
with the rule and that inconsistencies are treated as a breach of the rule
 Duration
 Passage of short time is not necessarily a bar to the formation of a new
customary law
 Consistency and representation are of more importance
 Generality
 How widespread participation in the practice must be
 Unanimity not required but practice should include the majority of states
 States which are particularly active in one area are more likely to be devoted to
developing applicable practices than other states
o Persistent objector rule will only apply to:
 new and emerging customary rules
 NON-peremptory norms/ Jus cogens
o Opinio juris sive necessitatis - state practic no matter how general or representative, only
legally binding when it is accepted as law
 The objective element/ general and representative practice is USUALLY enough to
create a binding custom
 Only look for opinio juris if there is reason to believe that it stems from non-legal
motivations like good neighbor relations
 Breach of a custom may lead to a new custom but will depend on the justification
offered
 Appealing a breach based on its exception contained in the rule itself will only
confirm the rule
 As l ong as opiniojuris of their status continues to exist
o Relationship between custom and treaty law
 When a treaty codifies international law, parties will be bound by both, while non-
parties will only be bound by the custom, bu all will still have the same substantial
obligation
 Treaty can become a customary law when its contents crystallize
 Like provisions of the hague relations
 Must attempt to reconcile the two sources if possible
 If one of the two sources has Jus Cogens character then it prevails
 Since treaty is a deliberate act of law creation it usually prevails
 Less clear when a custom develops due to inconsistent treaty based rule
 Usually that which is later in time prevails
 Lex Specialis also prevails
 A customary norm may also modify the contents of the treaty based rule

CASES
1. Paquete Habana Case
a. Facts
i. 2 spanish fishing vessels at the cuba coast but was commanded by a subject of spain
living in havana
ii. It was stopped by a blockading squadron
iii. The spanish vessels had no ammunition and made no attempt to run the blockade after
knowing f its existence
iv. US condemned the fishing vessels and their cargos as prizes of war
b. Issue and ruling
i. WON court can look at established rules of other nations when they have no treaty or
legislation that fits a particular matter
1. Centuries ago, fishing vessels and their cargos are recognized as exempt from
capture a prize of war
2. For fishermen who had no other means of livelihood
a. Not armed
b. Not intelligence for enemies
3. Made reference to another law where villages in unfortified towns whoe
occupation is for subsistence shall be allowed to continue
4. Yes, a court can go to established rules of other nations when their own is lacking.
Resort must be had to the customs and usages of civilized nations
ii. Harlan and Mckenna hold that:
1. Exempt from seizure not because a treaty, legislation, or instruction granting it
BUT because the vessels were exempt by reason of an established rule of
international law applicable to them, which is the duty of the court to enforce
2. Asylum Case (columbia v. Peru)
a. Facts
i. A rebellion broke out in Peru and proceedings were instituted against Haya de la Torre
for the instigation and direction of that rebellion
ii. after asylum had been granted to the refugee, the Colombian Ambassador in Lima
requested a safe-conduct to enable Haya de la Tom, w:hom he qualified as a political
offender, to leave the country
iii. The Government of Peru refused, claiming that Haya de la Tom had committed common
crimes and was not entitled to enjoy the benefits of asylum
iv. it declared ;that the Govemment of Peru was not bound to deliver a safe-conduct to the
refugee. On the other hand, the Court rejected by fifteen votes to one the Peruvian
contention that Elaya de la Torre was accused of common crimes; the Court noted that
the only count against Haya de la Torre was that of military rebellion and military
rebellion was not, in itself, a common crime.
b. Issues and ruling
i. Is Colombia competent, as the country that grants asylum, to unilaterally qualify the
offence for the purpose of asylum under treaty law and international law
1. The Montevideo Convention of 1933, which accepts the right of unilateral
qualification, and on which Colombia relied to justify its unilateral qualification,
was not ratified by Peru. The Convention, per say, was not binding on Peru and
considering the low numbers of ratifications the provisions of the latter
Convention cannot be said to reflect customary international law
2. The court held that the burden of proof on the existence of an alleged customary
law rests with the party making the allegation
1. Paquete Habana Case
a. Facts
i. 2 spanish fishing vessels at the cuba coast but was commanded by a subject of spain
living in havana
ii. It was stopped by a blockading squadron
iii. The spanish vessels had no ammunition and made no attempt to run the blockade after
knowing f its existence
iv. US condemned the fishing vessels and their cargos as prizes of war
b. Issue and ruling
i. WON court can look at established rules of other nations when they have no treaty or
legislation that fits a particular matter
1. Centuries ago, fishing vessels and their cargos are recognized as exempt from
capture a prize of war
2. For fishermen who had no other means of livelihood
a. Not armed
b. Not intelligence for enemies
3. Made reference to another law where villages in unfortified towns whoe
occupation is for subsistence shall be allowed to continue
4. Yes, a court can go to established rules of other nations when their own is lacking.
Resort must be had to the customs and usages of civilized nations
ii. Harlan and Mckenna hold that:
1. Exempt from seizure not because a treaty, legislation, or instruction granting it
BUT because the vessels were exempt by reason of an established rule of
international law applicable to them, which is the duty of the court to enforce
2. Asylum Case (columbia v. Peru)
a. Facts
i. A rebellion broke out in Peru and proceedings were instituted against Haya de la Torre
for the instigation and direction of that rebellion
ii. after asylum had been granted to the refugee, the Colombian Ambassador in Lima
requested a safe-conduct to enable Haya de la Tom, w:hom he qualified as a political
offender, to leave the country
iii. The Government of Peru refused, claiming that Haya de la Tom had committed common
crimes and was not entitled to enjoy the benefits of asylum
iv. it declared ;that the Govemment of Peru was not bound to deliver a safe-conduct to the
refugee. On the other hand, the Court rejected by fifteen votes to one the Peruvian
contention that Elaya de la Torre was accused of common crimes; the Court noted that
the only count against Haya de la Torre was that of military rebellion and military
rebellion was not, in itself, a common crime.
b. Issues and ruling
i. Is Colombia competent, as the country that grants asylum, to unilaterally qualify the
offence for the purpose of asylum under treaty law and international law
1. The Montevideo Convention of 1933, which accepts the right of unilateral
qualification, and on which Colombia relied to justify its unilateral qualification,
was not ratified by Peru. The Convention, per say, was not binding on Peru and
considering the low numbers of ratifications the provisions of the latter
Convention cannot be said to reflect customary international law
2. The court held that the burden of proof on the existence of an alleged customary
law rests with the party making the allegation
 3. “[T]he Colombian Government has referred to a large number of particular cases
in which diplomatic asylum was in fact granted and respected. But it has not
shown that the alleged rule of unilateral and definitive qualification was invoked
or … that it was, apart from conventional stipulations, exercised by the States
granting asylum as a right appertaining to them and respected by the territorial
States as a duty incumbent on them and not merely for reasons of political
expediency
4. The court concluded that Colombia, as the State granting asylum, is not
competent to qualify the offence by a unilateral and definitive decision, binding
on Peru
ii. The court concluded that Colombia, as the State granting asylum, is not competent to
qualify the offence by a unilateral and definitive decision, binding on Peru
1. there was no legal obligation on Peru to grant safe passage either because of the
Havana Convention or customary law.
2. 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)
3. 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
iii. Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted
asylum and is the continued maintenance of asylum a violation of the treaty
1. Article 1 of the Havana Convention states that “It is not permissible for States to
grant asylum… to persons accused or condemned for common crimes… (such
persons) shall be surrendered upon request of the local government.
2. An essential pre-requisite for the granting of asylum is the urgency or, in other
words, the presence of “an imminent or persistence of a danger for the person of
the refugee”
3. In other words, Torre was accused of a crime but he could not be tried in a court
because Colombia granted him asylum. The court held that “protection from the
operation of regular legal proceedings” was not justified under diplomatic asylum.
4. . Asylum protects the political offender against any measures of a manifestly
extra-legal character which a Government might take or attempt to take against
its political opponents
5. Asylum may be granted on “humanitarian grounds to protect political prisoners
against the violent and disorderly action of irresponsible sections of the
population.” (for example during a mob attack where the territorial State is
unable to protect the offender). Torre was not in such a situation at the time
when he sought refuge in the Colombian Embassy at Lima
3. Fisheries jurisdiction case UK v. Iceland
a. Facts
i. In 1961, the United Kingdom (Plaintiff) recognized Iceland's (D) claim to a 12-mile
fisheries limit. This was in return for Iceland's (D) agreement that any dispute
concerning Icelandic fisheries jurisdiction beyond the 12-mile limit be referred to the
International Court of Justice.
ii. -In 1972, Iceland proposed to extend its exclusive fisheries jurisdiction from 12 to 50
miles around its shores.
iii. As a result, the United Kingdom (P) filed an application before the ICJ.
 iv. Iceland (D) claimed that the agreement was no longer valid due to changed
circumstances - being that the 12-mile limit was now generally recognized and that
there would be a failure of consideration for the 1961 agreement.
b. Issues and Ruling
i. Does Iceland have the right to extend its fishery zone from 12 miles to 50 miles?
1. The change of circumstances alleged by Iceland in this case cannot be said to have
transformed radically the extent of the jurisdictional obligation that was imposed
in the 1961 Exchange of Notes
2. Two concepts that arose from the second Conference of the Law of the Sea was
that a fishery zone, “between the territorial sea and the high seas, within the
coastal State could claim exclusive fisheries jurisdiction.” This area has been
accepted to be 12 miles from its baseline. In international law, if a general
practice is accepted by states and is practiced, then this concept is law
3. Law of the Sea it declared freedom of the high seas and this freedom is to be
exercised by all states. However, nothing arouse from these conferences
concerning fishery jurisdiction and where it stops. All that was confirmed was a
zone between the territorial zone and the high sea is where fishery jurisdiction
stops. Although it was not established in a treaty, states accepted this general rule
of a 12 mile fishery zone and given that Iceland did not protest this rule it thus
gave consent to it.
4. The international law elements of the case are the laws of the sea, the theory that
silence leads to consent, and sub specie legis ferendae
ii. What role does the agreement between Iceland and United Kingdom play within the
court’s decision?
1. The agreement made between Iceland and the United Kingdom does play a key
factor in the court’s decision. A signed agreement/treaty between two nations is
binding agreement that must be upheld between nations. This agreement also
proves and shows that Iceland accepted the 12 mile fishery zone jurisdiction and
was content with it
4. Lotus Case
a. Facts
i. submitted to the Permanent Court of International Justice the question of jurisdiction
which has arisen between them following upon the collision which occurred
ii. According to the French jurisdiction to entertain criminal proceedings against the officer
of the watch of a French ship, in connection with the collision which occurred on the
high seas between that vesse1 and a Turkish ship, belongs exclusively to the French
Courts
iii. acts performed on the high seas on board a merchant ship are, in principle and from the
point of view of criminal proceedings, amenable only to the jurisdiction of the courts of
the State whose flag the vessel flies and that the nationality of the victim is not a
sufficient ground to override this rule
iv. a collision occurred between the French mail steamer Lotus, proceeding to
Constantinople, and the Turkish collier Boz-Kour
v. The Boz-Kourt, which was cut in two, sank, and eight Turkish nationals who were on
board perished. After having done everything possible to succour the shipwrecked
persons, of whom ten were able to be saved, the Lotus continued on its course to
Constantinople
 vi. At the time of the collision, the officer of the watch on board the Lotus was Monsieur
Demons, whilst the movements of the Boz-Kourt were directed by its captain, Hassan
Bey
vii. This arrest, which has been characterized by the Turkish Agent as arrest pending trial
(arrestation préventive), was effected in order to ensure that the criminal prosecution
instituted against the two officers, on a charge of manslaughter
viii. The action of the Turkish judicial authorities with regard to Lieutenant Demons at once
gave rise to many diplomatic representations and other steps on the part of the French
Government or its representatives in Turkey, either protesting against the arrest of
Lieutenant Demons or demanding his release, or with a view to obtaining the transfer of
the case from the Turkish Courts to the French Courts
ix. the Government of the Turkish Republic declared on September 2nd, 1926, that "it
would have no objection to the reference of the conflict of jurisdiction to the Court at
The Hague

2. Issues and Ruling

a. whether Turkey has or has not, according to the principles of international law,
jurisdiction to prosecute in this case
i. The Court is asked to state whether or not the principles of international law
prevent Turkey from instituting criminal proceedings against Lieutenant Demons
under Turkish law
ii. It is Article 15 of the Convention of Lausanne of July z4th, 1923, respecting
conditions of residence and business and jurisdiction, which refers the contracting
Parties to the principles of international law as regards the delimitation of their
respective jurisdiction.
iii. The French Government contends that the Turkish Courts, in order to have
ju~isdiction, should be able to point to some title to jurisdiction recognized by
international law in favour of Turkey. On the other hand, the Turkish Government
takes the view that Article 15 allows Turkey jurisdiction whenever such
jurisdiction does not come into conflict with a principle of international law
iv. al1 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
v. the principle of freedom, in virtue of which each State may regulate its legislation
at its discretion, provided that in so doing it does not come in conflict with a
restriction imposed by international law, would also apply as regards law
governing the scope of jurisdiction in criminal cases
vi. it must be recognized that, in the absence of a treaty provision, its correctness
depends upon whether there is a custom having the force of law establishing it
vii. no such rule of international law exists. No argument has come to the knowledge
of the Court from which it could be deduced that States recognize themselves to
be under an obligation towards each other only to have regard to the place where
the author of the offence happens to be at the time of the offence. On the
contrary, it is certain that the courts of many countries, even of countries which
have given their criminal legislation a strictly territorial character, interpret
criminal law in the sense that offences, the authors of which at the moment of
commis^' JIO~ are in the territory of another State, are nevertheless to be
regarded as having been cornmitted in the national territory, if one of the
 constituent elements of the offence, and more especially its effects, have taken
place there.
viii. there is no reason preventing the Court from confiningitself to observing that, in
this case, a prosecution may also be justified from the point of view of the so-
called territorial principle.
ix. the effect is a factor of outstanding importance in offences such as manslaughter,
which are punished precisely in consideration of their effects rather than of the
subjective intention of the delinquent
b. The second argument put forward by the French Government is the principle that the
State whose flag is flown has exclusive jurisdiction over everything which occurs on
board a merchant ship on the high seas
i. A corollary of the principle of the freedom of the seas is that a ship on the high
seas is assimilated to the territory of the State the flag of which it flies, for, just as
in its own territory, that State exercises its authority upon it, and no other State
may do so
ii. 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.
iii. a British seaman who . had committed homicide on board an American vessel,
stating that she did not dispute the jurisdiction of the United States but that she
was entitled to exercise hers concurrently. This case, to which others might be
added, is relevant in spite of Anderson's British nationality, in order to show that
the principle of the exclusive jurisdiction of the country whose flag the vessel flies
is not universally accepted.
iv. Above al1 it should be pointed out that the offences contemplated by the
conventions in question only concern a single ship ; it is impossible therefore to
make any deduction from them in regard to matters which concern two ships and
consequently tfie jurisdiction of two different States. The Court therefore has
arrived at the conclusion that the second argument put fonvard by the French
Government does not, any more than the first, establish the existence of a rule of
international law prohibiting Turkey from prosecuting Lieutenant Demons.
v. It is therefore a case of concurrent j urisdiction.
5. Legality of the threat and use of nuclear weapons
a. Facts
i. The secretary general communicated to the registrar to submit a question to the court
for an advisory opinion
ii. s asked to rule on the compatibility of the threat or use of nuclear weapons with the
relevant principles and rules of international law.
iii. the Court concludes that the most directly relevant applicable law governing the
question of which it was seised is that relating to the use of force enshrined in the
Charter of the United Nations and the law applicable in armed conflict which regulates
the conduct of hostilities, together with any specific treaties on nuclear weapons that
the Court might determine to be relevant
iv. In Alticle 2, paragraph 4, of the Charter, the use of force against the territorial integrity
or political independence of another State or in any other manner inconsistent with the
purpose:^ of the United Nations is prohibited
 v. In order to lessen or eliminate the risk of unlawful attack, States sometimes signal that
they possess certain weapons to use in self-defence against any State violating their
territorial integrity or political independence.
vi. The pattern until now has been for weapons of mass destnlction to be declared illegal
by specific instruments. But the Court does not find any specific prohibition of recourse
to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass
destruction; and observes that, although, in the last two dec.ades, a great many
negotiations have been conducted regarding nuclear weapons, they have not resulted in
a treaty of general prohibition of the same kind as for bacteriological and che:mical
weapons
vii. The Court then turns to an examination of customary international law to determine
whether a prohibition of the threat or use of nuclear weapons as such flows from that
source of law
viii. The emergence, as lex lata, of a customary rule specifically prohibiting the use of
nuclear weapons as such is hampered by the continuing tensions between the nascent
opinio juris, on the one hand, and the still strong adherence to the doctrine of
deterrence (in which the right to use those weapons in the exercise of the right to self-
defence against an armed attack threatening the vital security interests of the State is
reserved), on the other.
ix. Not having found a conventional rule of general scope, nor a customary rule specifically
proscribing the threat or use of nuclear weapons per se, the Court then deals with the
question whether recourse to nuclear weapons must be considered as illegal in the light
of the principles and rules of international humanitarian law applicable in armed conflict
and of the law of neutrality.
x. the Court notes that nuclear weapons were invented after most of the principles and
rules of humanitarian law applicable in armed conflict had already come into existence;
the Conferences of 1949 and 1974-1977 left these weapons aside, and there is a
qualitative as well as quantitative difference between nuclear weapons and all
conventional arms. However, in the Court's view, it cannot be concluded from this that
the established principles and rules of humanitarian law applicable in armed conflict did
not apply to nuclear weapons. Such a conclusion would be incompatible with the
intrinsically humanitarian character of the legal principles in question which permeates
the entire law of armed conflict and applies to all forms of warfare and to all kinds of
weapons, those of the past, those of the present and those of the future. In this respect
it seems significant that the thesis that the rules of humanitarian law do not apply to the
new weaponry, because of the newness of the latter, has not been advocated in the
present proceedings.
b. Rulings
i. President Bedjaoui considered that "self-defence-if exercised under extreme
circumstances in whic.h the very survival of a State is in question-cannot engender a
situation :in which a State would exonerate itself from compliance with the
'intran~gressi~ble' norms of international humanitarian law". According to him, it would
be very rash to accord, without any hesitation, a higher priclrity to the survival of a State
than to the survival of humanity itself.
ii. In his view, "nuclear deterrence" is an instrument of policy to which certain nuclear-
weapon States, supported by those States accepting nuclear umbrella protection,
adhere in their relations with other States. This practice is within the realm of
 international politics and has no legal value from the standpoint of the formation of a
customary rule prohibiting the use of the weapons as such
iii. In a separate opinion: Moving on to an analysis of the law applicable to armed conflict,
he notes that that law essentially implies comparisons in which humanitarian
considerations have to be weighed against military requirements. Thus, the collateral
damage caused to the civilian population must not be 'Lexcessive" as compared to the
"military advantage" offered. The harm caused to combatants must not be "greater
than that unavoidable to achieve legitimate military objectives". On that account,
nuclear weapons of mass destruction can only be used lawfully in extreme cases. No
one can detract from the natural right of self defense
iv. In another separate opinion: Th'e separate opinion continues that the Cou~t could and
should have gone further ar~d that it could and should have statecl that in order to
reco~icile the conflicting principles, their smallest common denominator would apply.
That means that recourse to nulslear weapons could remain a justified legal option in an
extreme case of individual or collec%ive self-defence as the last resort of a State victim
of an attack with nuclear, bacteriological or chemical weapons or otherwise threatening
its very existence. The separate opinion sees a confirmation. of this view in the legally
relevant State practice relating to matters of self-defence.