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Summary Public International Law Colloquia Answers and Case Notes
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Comprehensive case notes and summaries for weekly colloquia in Public International Law.
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Sources of international law:North Sea Continental Shelf (Federal Republic of Germany/Denmark Federal Republic of
Germany/Netherlands), Judgment, 20 February 1969, ICJ Reports 1969, 24-29 and 37-46
The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement for the
formation of customary international law: (1) State practice (the objective element) and (2)
opinio juris (the subjective element). In these cases, the Court explained the criteria necessary to
establish State practice – widespread and representative participation. It highlighted that the
practices of those States whose interests were specially affected by the custom were especially
relevant in the formation of customary law. It also held that uniform and consistent practice was
necessary to demonstrate opinio juris – opinio juris is the belief that State 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.
Facts: Opposed Germany to Denmark and the Netherlands. Germany wanted the continental shelf to
be determined by
Issues: Whether the equity rule consists a binding rule by customary rule or by convention rule ?
Argumentation:
Event though the equity is practicable, Germany did not ratify the Geneva Convention: not
applicable. Germany did not have any obligations.
Customary IL before: decide to see whether there as such a customary rule before. The ILC
took the equidistant rule not really as a first choice, almost ‘by mistake’. Does not show that the
rule was present before the Article. In addition, the state can disagree with this article : not
customary rule . = Geneva Convention was not codifiying this rule.
Customary IL now: whether state practice as extensive and uniform : not the case. Germany did
not explicitly say no, it is not saying yes. Whether the rule was of a nirm creating charater : no
the case because the rule said ‘ if states cannot agree they can use the equidistant rule’
Court said that even though the number of ratification was ok, it was not enough for the rule to be
unanimously accepted.
Is equity a rule of PIL ?
PH 27 : it is in his fundamenlist aspect, necessary// The fact that equity is practicable and natural,
does not mean it is a rule of PIL !
In order for a rule to become a custom:
The provision at stake should have a normative character: allows or prohibits a conduct (Ph
71)
It has to be reflective in a widespread and participation especially for the countries
affected. (PH73). The notion of ‘specially affected’ is tricky. This reflects a very positivist
approach of IL. E.g. Bolivia does not have access to the sea but it has a marine = importance of
the sea. Problems :
o It is a bit contradictory to the principle of sovereign equality of State.
o If we live in a society, all the members are allowed to have a view of what is unlawful
and lawful in the society => this would go against the idea of the Lotus case. Sovereingn
equality of States
The practice the most interested is the practice of those who are not bound by the
treaty. (PH 76). Theses states are complying w/ this norm because they think it is binding =
the most clear view of a customary law character of provisional state
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,Article 6 of the Geneva convention is not binding, and not enough state practice : article 6 would not
be customary law.
Asylum case (Colombia/Peru), Judgment, 20 November 1950, ICJ Reports 1950, 276-278
The Asylum case refers to the two elements doctrine: ‘constant and uniform’ practice + opinion juris.
Need to analyse if the practice is defined in the same manner. In this case, the ‘opinio juris’ has to be
established. Even if a general customs was being formed, if the country does not agree, the customs
will not be binding for this country.
Facts : Colombia granted asylum to a Peruvian. Haya de la Torre wanted …
Issues : Can regional customary law be established ?
Argumentation:
1) ‘constant and uniform usage’ => no regional customary law
2) Persistent objector: ‘Peru has repudiated it by refraining’ // similar to the Fisheries case
(1951).
Customary law can be established if it has been applied “constant and uniform. Established the
definition.
A persistent objector does not consent to treaties, conventions and customary law. Silence viewed as
objection in regional customary law. State has to voice their opposition.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, 27 June 1986, ICJ Reports 1986, 92-111
This case was about military and paramilitary activities conducted by, or with the assistance of, the
United States against Nicaragua from 1981 to 1984.
Due to a United States’ multilateral treaty reservation, (the Vandenberg reservation), the Court could
not rely on the United Nations Charter and was compelled to base its findings in relation to the use of
force customary and general principles of international law. As a result, the Nicaragua case developed
a significant jurisprudence on customary international law relating to (1) the use of force and non-
intervention, (2) elements necessary to form customary international law, and (3) the relationship
between customary and treaty law.
Controversial aspects of the decision included (1) the Court’s methodology used to determine that the
principle of non-intervention had attained customary law status, (2) the Court’s reliance on
resolutions of the General Assembly as a source of opinio juris and (3) the Court’s reliance on
multilateral treaties to determine customary international law despite the Vandenberg reservation.
Source of IL:
Separate character of sources: Customary law and treaties have independent existence and
apply separately.
Elements of Customary of IL: the Nicaragua case is supported by ‘opinio juris’.
Uniformity and consistency of the practice: the prohibition of the use of force have been
violated. The Court said that the practice had to be ‘in absolutely rigorous conformity’.
3 reasons why this case is important:
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, - Nicaragua was written in 1986, it’s covered a huge numbers of PIL issues. READ IT.
- Nicaragua case said that customary and treaty law rules are separate. They have a separate and
distinct legal existence, even when they contained the same rule. (PH 179)
- The word practice does not mean necessarily the fact. E.g the prohibition of torture: what if the
rule is present but the practice not? (PH : rule of two elements).
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports
1996, 253-255
Brief Fact Summary. An advisory opinion as to whether states are permitted to use nuclear weapons
under international law was placed before the International Court of Justice by the U.N. General
Assembly.
Synopsis of Rule of Law. Under certain circumstance, threat or use of nuclear weapons is permitted
under international law.
Facts. A request for an advisory opinion as to whether states are permitted to use nuclear weapons
under international law was laid on the table of the International Court of Justice by the U.N. General
Assembly.
Issue. Under certain circumstances, are threats or use of nuclear weapons permitted under
international law?// Can the court exercise jurisdiction ?
Held. Yes. Under certain circumstance, threat or use of nuclear weapons are permitted under
international law. The threat or use of nuclear weapons in all circumstances is not authorized or
prohibited by either the customary or conventional international nuclear law.
Under the U.N. Charter, the threat or use of nuclear weapons would be considered legal if all
requirements of Article 51, which deals with state’s rights to self-defense, are met. However, in
whatever the situation can be, a state obligation exists to pursue in good faith and bring to a
conclusion negotiations leading to nuclear disarmament in all its aspect under strict and effective
international control.
Discussion. The idea that despite steps taken by a very large part of the international community
towards complete nuclear disarmament, in which no customary rule specifically proscribe the threat
or use of nuclear weapons that exists is illustrated by this case. Reservations about the notion that
there are no imaginable circumstances warranting their use have been expressed by too many
dissenters.
States moved to the General assembly for this resolution because it is the only area where we could
have a decision w/o Veto is the General Assembly. The majority of the voice will vote against nuclear
weapons.
The Court does not deny the possibility of General assembly resolution reflected customary law. Here
the ‘opinio juris ‘ is inexistence because they did not use nuclear weapons because the opportunity did
not come.
They are changing btw desire and ‘opinio juris’. What is desirable, is not always the ‘opinio juris’
ICTY, Trial Chamber, The Prosecutor v. Kupreskic, IT-95-16-T, 14 January 2014, paras. 527-534
Case held before the ICTY.
Facts: ethnic cleansing in Ahmici (1993)
Issues : Why IHL as contained in the the Geneva Conventions was accorded customary international
law status ?
Argumentation:
Formation of customary IL ,the doctrine of two elements in IHL.
State practice, Martens Clause (PH 527)
Opinio juris : prevails over state practice
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, Theses two cases are very interesting because it is no longer between two states; it changes the setting
: International organization, IHL.
The tribunal said that the practice of using reprisals … The tribunal think about how can we interpret
the practice and ‘opinio juris’ to find custumar law.
PH27 : there are area of the law where practice and ‘OJ’ is not always what you think. The course said
that the increasing demande for humanity is important even when practice is inconsistent. It is
indispensable in his views that reprisals are prohibited in a conflict;
PH531 : due to the pressure, a customary rule has emerged. In this context, OP takes a step before?
PH533 : the tribunal relies on the fact that no state said I have the right to use reprisals, they said they
used it because an other states used reprisals. ‘States that have participated in the conflict have
normally refrained that they have the right to use reprisals on civilians ‘ => it is no longer xhat States
do but what they refrained from doing or saying. But they used the practice.
IHL tribunals used a different approach that general PIL: this is the reason why States was not happy,
they requested the ICL not make a study.
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