customary international law

Anglo Norwegian Fisheries Case (Summary on Customary International Law)

International Court of Justice, Contentious Case: Anglo Norwegian Fisheries Case (UK vs Norway)

Year of Decision: 1951. 

The Court was asked to decide, amongst others, the validity, under international law, of the methods used to delimit Norway’s territorial sea/ fisheries zone. We will not discuss the technical aspects of the judgment relating to the delimitation, but focus on the Court’s conclusions relating to customary international law.

Background to the case

The United Kingdom requested the court to decide if Norway had used a legally acceptable method in drawing the baseline from which it measured its territorial sea. The United Kingdom argued that customary international law did not allow the length of a baseline drawn across a bay to be longer than ten miles. Norway argued that its delimitation method was consistent with general principles of international law.

Findings of the Court

1. The formation of customary law

The Court referred to (1) positive State practice and (2) lack of contrary State practice  as a confirmation of an existing rule of customary international law (see p. 17 and 18). There was no mention of opinio juris in this early judgment.

In the following passage, the Court considered expressed dissent by States regarding a particular practice to be detrimental to the existence of an alleged general rule. Yet, the Court did not examine further whether these States adopted a contrary practice because, for example, (1) they were claiming an exception to the rule (see the Nicaragua jurisprudence) or (2) because they believed that the said rule did not possess the character of customary law.

“In these circumstances the Court deems it necessary to point out that although the ten-mile rule has been adopted by certain States both in their national law and in their treaties and conventions, and although certain arbitral decisions have applied it as between these States, other States have adopted a different limit. Consequently, the ten-mile rule has not acquired the authority of a general rule of international law.”

1.1. The persistent objector

The Court in its judgment held that even if a customary law rule existed on the aforementioned ten-mile rule,

“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.”

In this case, the Court appears to support the idea that an existing customary law rule would not apply to a State if (1) it objected to the application of the rule to itself (2) at the initial stages and (3) in a consistent manner. The Anglo Norwegian Fisheries Case, thus, supports the Asylum Case (Peru vs Colombia) in articulating what we now call the persistent objector rule.

a. Initial objection

The Court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that, “in spite of the adoption in some treaties of the quite arbitrary distance of 10 sea miles, this distance would not appear to me to have acquired the force of international law. Still less would it appear to have any foundation in reality…”

The Court held that “Language of this kind can only be construed as the considered expression of a legal conception regarded by the Norwegian Government as compatible with international law”. Thus, the Court held that Norway had refused to accept the rule as regards to it in 1870. 

b. Sustained objection

The Court also went on to hold that Norway had followed the principles of delimitation that it considered a part of its system in a consistent and uninterrupted manner from 1869 until the time of the dispute.

In establishing consistent practice, the Court held that “…too much importance need not be attached to the few uncertainties or contradictions, real or apparent, which the United Kingdom Government claims to have discovered in Norwegian practice.”

c.  No objection by other States

The Court held that the 10-mile rule did not form a part of the general law and, in any event, could not bind Norway because of the latter’s objections. Next, the Court inquired whether the Norwegian system of delimitation was nevertheless contrary to international law. To do so, the Court relied on state practice once more.

“The general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact. For a period of more than sixty years the United Kingdom Government itself in no way contested it… The Court notes that in respect of a situation which could only be strengthened with the passage of time, the United Kingdom Government refrained from formulating reservations.”

 

1.2. Contrary State practice of Norway? 

In this case, Norway adopted a contrary practice – a practice that was the subject of litigation.

However, interestingly, Norway was clear that it was not claiming an exception to the rule (i.e. that its practice was not contrary to international law). It emphasized that its practice – even if it was a deviation from the general practice – was in conformity with international law (see page 21).

 “In its (Norway’s) view, these rules of international law take into account the diversity of facts and, therefore, concede that the drawing of base-lines must be adapted to the special conditions obtaining in different regions. In its view, the system of delimitation applied in 1935, a system characterized by the use of straight lines, does not therefore infringe the general law; it is an adaptation rendered necessary by local conditions. ”

The Court held that the fact that this consistent and sufficiently long practice took place without any objection to the practice from other States (until the time of dispute) indicated that these States did not consider the Norwegian system to be “contrary to international law”.

“The notoriety of the facts, the general toleration of the international community, Great Britain’s position in the North Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway’s enforcement of her system against the United Kingdom. The Court is thus led to conclude that the method of straight lines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast; that even before the dispute arose, this method had been consolidated by a consistent and sufficiently long practice, in the face of which the attitude of governments bears witness to the fact that they did not consider it to be contrary to international law.”

2. Relationship between international and national law

The Court alluded to the relationship between national and international law in delimitation of maritime boundaries. In delimitation cases, States “must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements…” The Court would also consider “…certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by a long usage.” However, while the act of delimitation can be undertaken by the State, its legal validity depends on international law.

“The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law. (p. 20)”

Further reading:

T. Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law’, 26 Harvard International Law Journal, 1985, p. 457,

J. Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’, 56 BYIL, 1985, p. 1.

“In fact, the two international court of justice cases which appear to support the persistent objector rule both arose in circumstances where the new rule itself was in substantial doubt. Thus, it was significantly easier for the objector to maintain its status. No case is cited for a circumstance in which the objector effectively maintained its status after the rule became well accepted in international law. In fact, it is unlikely that such a status can be maintained din light of the realities of the international legal system. This is certainly the plight that befell the US, The UK and Japan in the law of the sea. Their objections to expanded coastal state jurisdiction were ultimately to no avail, and they have been forced to accede to 12-mile territorial seas and the 200-mile exclusive economic zone. “

Curtis A. Bradley & Mitu Gulati, ‘Withdrawing from International Custom‘, see also pp. 236 – 239.

 “The Fisheries Case, decided a year later, pitted the United Kingdom against Norway. At issue was whether Norway had used a legally acceptable method in drawing the baseline from which it measured its territorial sea. The United Kingdom argued that CIL did not allow the length of a baseline drawn across a bay to be longer than ten miles. Again, as with the Asylum Case, the primary holding of the case was that the alleged CIL rule did not exist. In the alternative, the court briefly remarked that, had the rule existed, it would not have applied against Norway because Norway had “always opposed any attempt to apply it to the Norwegian coast.”This language is often cited in support of the persistent objector doctrine, but it could just as easily be read to support the Default View of CIL, since there is nothing in this language that suggests that Norway’s opposition must have occurred prior to the establishment of the alleged rule of CIL. The arguments of the parties do not resolve this uncertainty: although the United Kingdom appears to have supported something like the modern persistent objector doctrine, at least for rights historically exercised by a state (while asserting that Norway had not met its requirements),Norway (which prevailed in the case) appears to have supported something closer to the Default View.

 The Asylum and Fisheries decisions provide no more than passing and ambiguous support for the doctrine. State practice since those decisions is also relatively unhelpful, since there have been essentially no instances in which states have invoked the doctrine. As Professor Stein reported in a 1985 article, his research had “failed to turn up any case where an author provided even one instance of a state claiming or granting an exemption from a rule on the basis of the persistent objector principle—excepting of course the Asylum and Fisheries cases themselves.”

© Ruwanthika Gunaratne at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Material, excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne with appropriate and specific direction to the original content.

Lotus Case (Summary)

Permanent Court of International Justice, Contentious Case: The Lotus Case (France vs Turkey);

Year of the decision: 1927.

Overview:

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

 

Facts of the Case:

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

Questions before the Court:

Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by a French national, outside Turkey? If yes, should Turkey pay compensation to France?

The Court’s Decision:

Turkey, by instituting criminal proceedings against Demons, did not violate international law.

Relevant Findings of the Court:

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

The first principle of the Lotus Case: A State cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so. This is what we called the first principle of the Lotus Case. The Court held that:

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

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

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

This applied to civil and criminal cases. If the existence of a specific rule was a pre-requisite to exercise jurisdiction, the Court argued, then “it would…in many cases result in paralysing the action of the courts, owing to the impossibility of citing a universally accepted rule on which to support the exercise of their [States’] jurisdiction” (para 48).

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

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

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

Criminal Jurisdiction: Territorial Jurisdiction

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

The Court held that a ship in the high seas is assimilated to the territory of the flag State. This State may exercise its jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land, to the exclusion of all other States. In this case, the Court equated the Turkish vessel to Turkish territory. The Court held that the “… offence produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners.” The Court concluded that Turkey had jurisdiction over this case. It further said:

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

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

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

Customary International Law

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

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

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

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

Advisory Opinion on the Unilateral Declaration of Kosovo (2010)

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

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

© Ruwanthika Gunaratne at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne with appropriate and specific direction to the original content.