Paquete Habana – Case Brief 175 U.S.

677
 (1900)

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 King’s 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.

Wheaton’s 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 commodore’s ‘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 enemy’s 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: 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.
 The Case of S.S. “Lotus”
France v. Turkey
1927 P.C.I.J. (Ser. A) No. 10 (Sept. 7)

On August 2, 1926, the S.S. Lotus, a French steamship, collided on the high seas with the Boz-Kourt, a Turkish collier. The Boz-Kourt split in two and sank,
and eight of its crew members were killed. The Lotus remained to assist the survivors of the Boz-Kourt, including its captain, Hassan Bey, and then continued with
the survivors to Constantinople. Turkish authorities subsequently requested that Lieutenant Demons, the officer of the watch on board the Lotus when the
collision occurred, come ashore to give evidence. At the conclusion of the questioning, Turkish authorities placed Demons and Hassan Bey under arrest pending
trial on charges of manslaughter. At trial, Demons argued that the Turkish court lacked jurisdiction, but the court convicted both Demons and Hassan Bey,
sentencing each to a term of imprisonment. The French government protested the arrest and the conviction and requested that the case be transferred to a
French court. Turkey proposed, and France agreed, to pose the following question to the PCIJ: “(1) Has Turkey . . . acted in
conflict with the principles of international law—and if so, what principles—by instituting . . . criminal proceedings in pursuance of Turkish law against M. Demons .
. .?”

The French government invoked the 1923 Convention of Lausanne in arguing against Turkish jurisdiction. Article 15 of the Convention indicated that “all
questions of jurisdiction shall, as between Turkey and the other contracting Powers, be decided in accordance with the principles of international law.” France
maintained that such principles precluded criminal jurisdiction in this case. The Court, somewhat significantly, condensed the positions of the parties in the
following way:

The French Government contends that the Turkish Courts, in order to have jurisdiction, should be able to point to some title to jurisdiction recognized
by international law in favor 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.

Having thus framed the question as one inquiring whether international law is essentially permissive or prohibitive, the Court then issued its famous dictum:

International law governs relations between independent States. The rules of law binding upon States therefore 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.

The Court ultimately ruled, in a six-six split with President Huber casting the deciding vote, that trying Demons was not an exercise of power on the territory
of another State, that the Court could deduce no rule or principle of international law preventing Turkey from exercising jurisdiction, and that under the
circumstances France and Turkey had concurrent jurisdiction.
 Customs
North Sea Continental Shelf Cases 1969

Delimitation issue between Denmark, Netherlands, and Germany. Denmark and Netherlands insist that the equidistance+special circumstances principle must
govern the delimitation by virtue of its taking on the nature of a customary international law. Germany insists on a just and equitable share. The Court holds that
the equidistance has not become customary international law and that it cannot govern the delimitation here.

DOCTRINE

 As a matter of positive law, customary law is based on the work done in this field by international legal bodies, on State practice, and on the influence
attributed to the Geneva Convention itself – the claim being that these factors have cumulatilvely evidenced or been creative of an opinion of law.

 For State Practice to be considered opinio juris, two conditions must be fulfilled:
o Not only must the acts concerned amount to a settled practice
o 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 belief (the existence of a subjective element) is implicit in the very notion of opinion juris sive necessitates (an opinion
of law or necessity)
 The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. Frequency or habituality is not
enough.

IMPORTANT PEOPLE
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Quisque ac erat placerat turpis suscipit congue id quis erat. Curabitur lobortis metus ut purus venenatis…

FACTS
1. The parties involved, Denmark and Germany (along with the Netherlands) had previously agreed on boundary lines. These previous agreements employed a
method called the “equidistance method”
a. Equidistant line: (one which leaves to each of the parties concerned all those portions of the continental shelf that are nearer to a point on its own
coast than they are to any point on the coast of the other party.)
b. This method proved contentious because of geographical difficulties (the boundaries were contended because the parties had concaving coastlines
making the lines inequitable. Check pages 16 and 17 of the case for illustrations)
2. After negotiations between Germany and the other two parties (Denmark and Netherlands) failed to result in any agreement, tripartite talks took place in the
Hague (Feb 1966), Bonn (May 1966), and then Copenhagen (August 1966). These all proved fruitless.
3. Now the parties are seeking the Court’s judgment to determine the correctness of the agreed boundaries. The court has to determine what principles and
rules of international law are applicable to the delimitation of the areas of continential shelf involved.
4. Although the proceedings are joined, the cases remain separate at least in the sense that they relate to different areas of the North Sea Continental Shelf.
a. Denmark + Netherlands: whole matter is governed partly by a mandatory rule of law reflected in the Convention on the Continental Shelf concluded in
Geneva and partly on general considerations of law lying outside the convention.
i. Equidistance is not merely a method of cartographical construction but the essential rule of law: in the absence of agreement by the parties to
employ another method, all continental shelf boundaries must be drawn by means of an equidistance line unless “special circumstances” are
recognized to exist.
b. Germany: denies the obligatory character for the States not parties to the Geneva Convetion. Contends that the correct rule to be applied is one
according to which each of the States concerned should have a “just and equitable share” of the available continental shelf in proportion to the length
of its coastline or sea-frontage.
i. Germany contends that because of the shape of its coastlines, there was a “cut-off” effect happening leading to an inequitable share of the
shelf.
ISSUE with HOLDING

Preliminarily (you can skip but good for context) :

1. With respect to Germany’s contentions, the court does not feel able to accept them.
a. Delimitation = process which involves establishing the boundaries of an area already appertaining to the coastal State and not the determination de
novo of such an area.
i. Delimitation in an equitable manner is one thing but not the same thing as awarding a just and equitable share (as Germany contends), of a
previously undelimited area even though in a number of cases the results may be comparable or even identical.
ii. There is here an inherent right. In order to exercise it, no special legal process has to be gone through nor have any special legal acts to be
performed.
b. The delimitiation has to be equitably effected but cannot have as its object the awarding of an equitable share.
2. With respect to Denmark and Netherland’s contentions: does the equidistance-special circumstances principle constitute a mandatory rule either
on a conventional or on a customary international law basis? (Is Germany under a legal obligation to accept the application of said principle)
a. The equidistance method is a very convenient one used in a considerable number of cases. However, these factors (practicality of convenience and
certainty of application) do not suffice of themselves to convert this method into a rule of law and thus making it obligatory.
b. If it IS a rule, it must derive its legal force from other factors other than the existence of practicality and certainty.
ISSUES:
1. w/n the Geneve Convention is binding for all parties (thus, whether the use of the equidistance method is rendered obligatory for the present
delimitations) – NO.

 Germany was one of the signatories of the Convention but has never ratified it and is consequently not a party.
 Denmark and Netherlands: admit that the convention as such cannot be binding on Germany in the sens of it being contractually bound – BUT
the former contend that the principles of the convention are binding because of their conduct, public statements, and proclamations and thus
Germany has unilaterally assumed the obligations of the Convention or has manifested its acceptance of the Convention.
 Court:
i. if there had been a real intention to manifest acceptance then why did Germany not take the obvious step of giving expression to this
readiness by simply ratifying the convention? It is not lightly presumed that a state which has not carried out these formalities has
nevertheless somehow become bound in another way.
 ii. Even assuming that they did ratify the Convention (either expressly or impliedly), they could have entered a reservation if it wanted, but
they never did.
 Court: only the principle of estopel could suffice to lend substance to Denmark and Netherlands’ contention – in other words if Germany was
precluded from denying applicability of the convention. Denmark nor the Netherlands presented no evidence whatsoever to prove this case.

2. W/N Germayn may, in any event, be bound to accept delimitation on an equidistance-special circumstances basis as a rule that is part of the
corpus of general international law. Thus, as customary law, is binding on Germany independently of any specific assent, direct or indirect,
given by it. – NO.

 As a matter of positive law, customary law is based on the work done in this field by international legal bodies, on State practice, and on the
influence attributed to the Geneva Convention itself – the claim being that these factors have cumulatilvely evidenced or been creative of an
opinion of law.
 As a matter of fundamentalism, customary law is derived from what might be called the natural law of the continental shelf. In this case: the
equidistance principle is the necessary expression in the field of delimitation of accepted doctrine. In other words, the equidistance principle is a
priori (“a priori” means: preconceived, self-evident propositions) in nature and is a priori a juristic inevitability.
 Put another way, if it is proven that the equidistance principle is to be regarded as inherent in the whole basic concept of continental shelf rights,
then equidistance should constitute the rule.
 According to the a priori argument, the right of the coastal State to its continental shelf areas is based on its sovereignty over the land domain, of
which the shelf area is the natural prolongation into and under the sea (these Coastal state’s rights exist ipso facto and ab initio without there
being any question of having to make a claim to the areas concerned).
 In the present case, although both sides rely on the prolongation principle and deem it fundamental, they interpret it differently – the
interpretations appear to the Court to BOTH be incorrect.
i. Denmark and Netherlands: natural prolongation = closest proximity and equidistance line
ii. Germany: natural prolongation of sovereign rights = just and equitable share

The court needs to look into the history, the creation and development of the equidistance method to confirm whether it can be obligatory via customary law:
 The Truman Proclamation came to be regarded as the starting point of the positive law on the subject. Its chief doctrine: Coastal State has original,
natural, exclusive, vested right to the continental shelf off its shores.
o Boundaries shall be determined by the parties in accordance with equitable principles.
 This came to be reflected in the Geneva Convention.
 The records of the International Law commission show that there was no indicationat all that any of its members supposed that the Commission had to
adopt a rule of equidistance.
o Not only was the notion of equidistance never considered, it was never given any special prominence and certainly no priority.
o Commission discussed other possibilities such as delimitation by agreement, by reference to arbitration, etc.
 Because of these difficulties, the Committee of Experts was consulted. The Committee reported that they had decided that the boundary should be drawn
according to the principle of equidistance from the respective coastlines.
o The Committee added, however, that in a number of cases, this may not lead to an equitable solution. Instead, a solution must be arrived at by
negotiation.
 Thus, from the foregoing, it is clear that at no time was the notion of equidistance an inherent necessity of continental shelf doctrine. In fact, the doctrine
is governed by two beliefs: i) no one single method of delimitation was likely to prove satisfactory in all circumstances and thus delimitation should be carried out
by agreement; ii) it should be effected on equitable principles.
Ratio:
 The Convention itself allows for reservations to be made. Generally speaking, it is a characteristic of purely conventional rules and obligations that some
faculty of making unilateral reservations be admitted – 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 be subjectto any right of exclusion.
o The inference is therefore that any articles figure among those excluded from the faculty of reservation were not regarded as declaratory of
previously existing or emergent rules of law.

The court reaches the conclusion that the Geneva Convention did not embody or crystallize any pre-existing or emergeyn rule of customary law which
states that the delimitation of continental shelf must be carried out on an equidistance-special circumstances basis.
W/N a rule has come into being on the basis of subsequent state practice and thus a customary international law – NO.

 This contention involves treating articles of the Convention as having a norm-creating effect.
 But the Convention’s Article 6 does not seem to be of a norm-creating nature:
o It is framed as to put second the obligation to make use of the equidistance method. The primary method is to delmit by agreement. Thus, the
provision of using equidistance as a principle cannot be considered as a potential general rule of law.
o The part played by the notation of special circumstances raises further doubts as to the potentially norm-creating character of the rule.
o Faculty of making reservations adds a general difficulty of regarding it being norm-creating.
 From the actions of the parties to the Geneva Convention, no inference could legitimately be drawn as to the existence of a rule of customary
international law in favor of the equidistance principle.
 As regards those states which were not and have not become parties to the Convention, the basis of their action can only be entirely speculative. No
inference could justifiably be drawn that they believed themselves to be applying a mandatory rule of customary international law. There is not a shred of
evidence that they did.
 For State Practice to be considered opinio juris, two conditions must be fulfilled:
o Not only must the acts concerned amount to a settled practice
o 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 belief (the existence of a subjective element) is implicit in the very notion of opinion juris sive necessitates (an opinion
of law or necessity)
 The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. Frequency or habituality is not
enough.
DISPOSITIVE PORTION
Use of equidistanc emethod of delimitation is not obligatory
Delimitation is to be effected by agreement in accordance with equitable principles and taking account of all relevant circumstances
 Reservations and Custom
Military and Paramilitary Activities in and against Nicaragua
Nicaragua vs US (1986)
ICJ

On reservation: Nicaragua filed a case against the US. US initially accepted the Court’s jurisdiction wherein it also made a reservation. The reservation contained
a proviso that should the dispute involve multilateral treaties it should be excluded from the Court’s jurisdiction unless the parties affected are also parties to the
case or the US consents. The US did not consent as it refused to participate in the merits stage after an adverse decision on the jurisdiction stage. The Court also
found that the other affected party is not party to the case. The Court ruled that this fact barred only the application of the multilateral treaty as source of law and
since the violation attributed are also based on customary international law, jurisdiction is still acquired.

On custom: US’s main argument is that since customs are already “subsumed” in the UN charter which is also another multilateral treaty cannot be the basis of
Nicaragua’s claim because of the reservation. The ICJ disagreed, customs exist separately with treaties that codify them. First, are governed by treaty law and
customary do not exactly overlap. Also, customary international law continues to exist and to apply, separately from international treaty law, even
where the two categories of law have an identical content.

On use of force and self-defense: Nicaragua claims US supported contras in its territory. US in its defense, argues collective self-defense for El Salvador, Costa
Rica and Honduras on whose territory Nicaragua allegedly is responsible for cross-border military attacks.

DOCTRINEs (the case is so full of them)

IMPORTANT PEOPLE
Republic of Nicaragua
United States of America
Republic of El Salvador

FACTS
1. Nicaragua filed this application with the ICJ against the US for a dispute concerning military and paramilitary activity in and against it.
2. On jurisdiction, Nicaragua claims as basis the Treaty of Friendship, Commerce and Navigation signed by them in 1956. Under the same proceedings, El
Salvador filed a Declaration of Intervention which the ICJ denied as it was not yet related in that phase of the proceedings.
a. ICJ: ruled that it had jurisdiction on the case, as it involved an interpretation or application of the Treaty of Friendship.
b. To this ruling of the ICJ the US expressed disagreement as it was manifestly erroneous in fact and in law, it contended that the ICJ was without
jurisdiction on the dispute and stated further that the US will no longer be participating in the proceedings and reserves its right to any decision
the ICJ may make.
3. Nicaragua claims:
 a. That the US (basically aided and abetted) in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging the military
and paramilitary actions in and against it, in violation of:
i. Art 2 (4) UN Charter- use of force:
ii. Art 18 and 20 Charter of Organization of American States- intervention in internal affairs
iii. Art 8 Convention of Rights and Duties of States
b. That the US breached its obligation in general and customary international law by violating Nicaragua’s sovereignty
i. Armed attacks: air, land, sea
ii. Incursions into territorial waters
iii. Aerial trespass
iv. Efforts direct and indirect to coerce and intimidate Nicaragua
c. Breach of general and customary international law:
i. Force and threat by the US
ii. Intervention in internal affairs
iii. Infringing the freedom of the high seas and interrupting maritime commerce
iv. Killing, wounding, kidnapping citizens of Nicaragua
d. Breach of the Treat of Friendship- its object and purpose
e. Prays that the US be ordered to cease and desist immediately from the use of force and to pay reparations to Nicaragua and its citizens approx.
USD 320m.
4. No pleadings on the merits were filed by the US.
5. The factual background:
a. The events which gave rise to the dispute erupted after Pres. Somoza of Nicaragua was ousted in 1979. He was replaced by the Junta of
National reconstruction and a gov’t was installed by the body that ousted Somoza, the Frente Sandinista de Liberacion Nacional (FSLN);
b. The opposition of this new govt are the Somoza loyalists- formed themselves as irregular military forces
c. Initially, the new govt and US relations were favorable with the latter even granting the former economic aid. This changed in 1981 and ultimately
April of said year the aid was terminated. According to the US, this was because Nicaragua was involved in logistical support for guerillas in El
Salvador.
d. In Nicaragua, the new opposition was organized into 2 main groups: FDN and ARDE. The US allegedly were instrumental in supporting the
contras; ie US Congress was funding them, paying for and directing personnel and operations, flights to intimidate citizens, economically, the US
reduced sugar quota allocation, imposed trade embargo.

ISSUES with RULING(Session 20 issues from #15)

ON RESERVATIONS:
1. On US’s non-appearance or failure to appear:
a. ICJ: Art 53 of the Statute provides that the Court may be called upon to decide in favor of the other party’s claim
b. Effects: the case will continue w/o its participation, it remains a party to the case and is bound by the eventual judgment. But, this does not mean
automatic decision in favor of the party appearing.
2. Whether or not the case is justiciable- YES
a. ICJ: although this issue was not explicitly raised, the Court looked into it as the questions on the use of force and collective self-defenc(S)e arose
 b. It has been suggested that the dispute is not a “legal dispute” within Art 36 (2) of the Statute. In this case however, the US didn’t even raise these in
its pleadings on jurisdiction and admissibility.
c. Moreover, what is in issue is the purported exercise by the US of a right of collective self-defense to an armed attack on another State. The Court has
to determine whether such attack has occurred, and if so whether the measures allegedly taken in self-defense were a legally appropriate action as
collective self-defense. The dispute does not involve military considerations.
3. W/n ICJ has jurisdiction to entertain present case- YES
a. ICJ: the fact the the declaration of acceptance of jurisdiction under the Art 36 (2) of the Statute and Art XXIV of the Treaty of Friendship are
terminated by the time judgement on the merits is to be made does not affect jurisdiction of the ICJ. What is material is that law in force between the
parties at the time of filing entails the compulsory jurisdiction of the Court.
b. w/n ICJ can decide on the objection raised before judgment on the merits- YES,
c. It is argued that the US is excluded from jurisdiction because in its acceptance of jurisdiction, it made a reservation regarding dispute arising from a
multilateral treaty, and w/n the case involved a multilateral treaty is an issue that should be resolved on the merits
d. ICJ: This case is the first one of its kind, and yes the Court may rule on such issue as in this case the preliminary objection “does not possess an
exclusively preliminary character”
4. When should the objection on jurisdiction be ruled upon?
a. The proviso excludes from its application: disputes arising under a multilateral treaty, unless 1) all the parties to the case before the Court or 2) the
US specially agrees to jurisdiction.
b. In its pronouncements on jurisdiction and admissibility the ICJ found it was not yet necessary nor was it possible to tackle on the issue on reservation
as it was not exclusively a preliminary matter It took note also, that Nicaragua bases its claims not only on breach of treaty obligations but on general
and customary international law. Moreover, to do so would make a judgment on the scope of the reservation would have meant giving a
determinative interpretation of the term “affected”. In said judgement the ICJ held that the term “affected” applied not to multilateral treaties but to
parties to such treaties. ICJ declares that the determination of who these affected parties are could not be left to the parties but must be determined
by the Court.
5. What is the legal effect of the US’s proviso in its acceptance of jurisdiction of the ICJ?- The reservation bars the applicability of the multilateral treaties as law
between the parties but has no further impact on other sources of international law which under Art 38 of the Statute includes international law.
a. ICJ: The reservation is not necessarily a bar to the Court’s jurisdiction when another state affected by the decision is not a party to the proceedings.
The US can agree, but which did not happen in this case as refused to further participate on the merits stage and the fact that it participated on the
jurisdiction stage only to question the same. There was no waiver.
b. ICJ: It is now important to determine whether the other parties affected are parties in the case. Nicaragua invokes violations of the UN Charter and
the Charter or Organization of American States. El Salvador for whose benefit the US justifies to have employed collective self-defense for is not a
party to this case. El Savador is an affected party on the Court’s decision on the lawfulness of US’s resort. Under the reservation made by the US this
should take the case out of the jurisdiction of the Court, however Nicaragua in its application also based its claim on customary international and on
this basis the case should nevertheless be tried.

B. ON CONTENT OF APPLICABLE LAW (CUSTOM)

6. What is the applicable law? ICJ: Customary international law
i. US: No multilateral treaty can be the basis of Nicaragua’s claims because of the reservation and since the provisions of the UN Charter
relevant here subsume and supervene relate principles of customary and general international law, it further prevents it fromn applying in its
decision any rule of customary international law the content of which is also the subject of a provision in those multilateral treaties.
ii. ICJ: (ruled preliminarily) cannot dismiss the claims of Nicaragua under principles of customary and general international law, simply because
such principle have been enshrined in the texts of the conventions relied upon by Nicaragua. The fact that the above-mentioned principles,
recognized as such, have been codified or embodied in multilateral conventions does not mean that they cease to exist and to apply as
principles of customary law, even as regards countries that are parties to such conventions. Principles such as those of the non-use of force,
nonintervention, respect for the independence and territorial integrity of States, and the freedom of navigation, continue to be binding as part
of customary international law, despite the operation of provisions of conventional law in which they have been incorporated."
iii. US: principles in the United Nations Charter precludes the possibility that similar rules might exist independently in customary international
law
iv. ICJ: No, ON 2 REASONS:
1. First, because the areas governed by the two sources of law do not exactly overlap, and the substantive rules in which they
are framed are not identical in content.
2. Second, even if a treaty norrn and a custornary norrn relevant to the present dispute were to have exactly the same content,
the operation of the treaty process rnust necessarily deprive the custornary norm of its separate applicability.
7. ON FIRST REASON:
a. The UN Charter by no means covers the whole area of the regulation of the use of force in international relations. In fact, this treaty itself refers to
pre-existing customary international law; in the actual text of Article 5 1, which mentions the "inherent right" of individual or collective self-defense,
which "nothing in the present Charter shall impair" and which applies in the event of an armed attack.
b. Moreover the Charter, having itself recognized the existence of this right, does not go on to regulate directly all aspects of its content. I.e.: it does not
contain any specific rule whereby self-defense would warrant only measures which are proportional to the armed attack and necessary to respond to
it, a rule well established in customary international law.
c. Article 51 shows customary international law continues to exist alongside treaty law.
8. ON SECOND REASON:
a. The existence of identical rules in international treaty law and customary law has been clearly recognized by the Court in North Sea. “a treaty may
have merely codified the custom, or caused it to "crystallize", or because influenced its subsequent adoption.
b. More generally, there are no grounds for holding that when customary international law is comprised of rules identical to those of treaty law, the latter
"supervenes" the former, so that the customary international law has no further existence of its own.
c. If a claim is based on act alleged to have breached a treaty, another claim based on a different treaty but with regard the same breach is deemed
abandoned. That iis not the case with customary international law.
d. Rules which are identical in treaty law and in customary international law are also have different methods of interpretation and application. A State
may accept a rule contained in a treaty not simply because it favours the application of the rule itself, but also because the treaty establishes what
that State regards as desirable institutions or mechanisms to ensure implementation of the rule.
e. It will therefore be clear that customary international law continues to exist and to apply, separately from international treaty law, even where the two
categories of law have an identical content.
9. ON Mootness:
 a. US argues any judgment on the basis of customary law by the ICJ is of no use because either way US and Nicaragua would still be bound to observe
the multilateral treaties on the principle of pacta sunt servanda.
b. ICJ: As already mentioned above, there is no exact similarity as to the content and consequences of the breach of treaty and custom law.
10. 3. What are the rules of customary international law applicable to the present dispute? (Here, in looking for the applicable law ICJ looked into several treaties
and resolution not to make them as actual basis but to determine practice and opinion juris)
11. ICJ directs its attention to the practice and opinion juris of States
12. Although the multilateral treaties cannot be the basis of the ruling of the ICJ because of the reservation of the US, the treaties are still looked into by the Court
to determine practice and/or the opinion juris of states so as to find out what the applicable customary laws are.
13. The mere fact that States declare their recognition of certain rules is not sufficient for the Court to consider these as being part of customary international law,
and as applicable as such to those States.
14. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the
rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such
rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the
recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or
justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to
confirm rather than to weaken the rule.

ON USE OF FORCE:

15. US: the lawfulness of the use of force in inter-State relations, the rules of general and customary international law, and those of the United Nations Charter,
identical.
16. Nicaragua: the rule of customary law will not necessarily be identical in content and mode of application to the conventional rule
17. ICJ: Both parties agree that the principles of the use of force under the UN Charter correspond to those found in int’l law, but the Court still had to satisfy
itself of opinion juris. It looked into:
a. the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled
"Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the
United Nations".
b. The US itself entered into resolutions the texts of which confirm the existence of an opinio juris of the participating States prohibiting the use of force
in international relations.
c. statements by State representatives that the prohibition on the use of force under the Charter as being not only a principle of customary international
law but also a fundamental or cardinal principle of such law.
d. The International Law Commission, expressed the view that "the law of the Charter concerning theprohibition of the use of force in itself constitutes a
conspicuous example of a rule in international law having the character of jus cogens
e. As regards certain particular aspects of the use of force the Court can again draw on the formulations contained in the Declaration 2625. It will be
necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms.
 i. As already observed, the adoption by States of this text affords an indication of their opinio juris as to customary international law on the
question. Alongside certain descriptions which may refer to aggression, this text includes others which refer only to less grave forms of
the use of force. 1
ON SELF-DEFENSE:

18. Exceptions to the prohibition on on use of force are likewise recognized under customary law- self-defense.
a. Does a a right of collective self-defense exist in customary int’l law? Yes, language of Article 5 1 of the United Nations Charter, the inherent right
(or "droit naturel") which any State possesses in the event of an armed attack, covers both collective and individual self-defense. Moreover, just
as the wording of certain General Assembly declarations adopted by States demonstrates their recognition of the principle of the prohibition of
force as definitely a matter of customary international law, some of the wording in those declarations operates similarly in respect of the right of
self-defense (both collective and individual)
19. What are the conditions of the use of the right to self-defense?
a. Parties agree that:
1. it is to be used in the case of an armed attack which has already occurred, and the issue of the lawfulness of a response to the
imminent threat of armed attack has not been raised. Accordingly, the Court expresses no view on that issue.
2. Lawfulness of the response depends on observance of the criteria of the necessity and the proportionality of the measures.
b. ICJ, in addition to necessity and proportionality:
i. In BOTH individual and collective self-defense, the exercise of this right is subject to the State concerned having been the
victim of an armed attack.
ii. nature of the acts to be treated as constituting armed attacks: including not merely action by regular armed forces across an
international border, but also "the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out
acts of armed force against another State of such gravity as to amount to" (inter alia) an actual armed attack conducted by regular forces,
"or its substantial involvement therein". This description, contained in Article 3, paragraph (g), of the Definition of Aggression annexed to
General Assembly resolution 3314 (XXIX), may be taken to reflect customary international law.

1 Every State has the duty to refrain from the threat or use of force to
violate the existing international boundaries of another State or as a
means of solving international disputes, including territorial disputes
and problems concerning frontiers of States.
States have a duty to refrain from acts of reprisa1 involving the use
of force.
Every State has the duty to refrain from any forcible action which
deprives peoples referred to in the elaboration of the principle of
equal rights and self-determination of that right to self-determination
and freedom and independence.
Every State has the duty to refrain from organizing or encouraging
the organization of irregular forces or armed bands, including mercenaries,
for incursion into the territory of another State.
Every State has the duty to refrain from organizing, instigating,
assisting or participating in acts of civil strife or terrorist acts in
another State or acquiescing in organized activities within its territory
directed towards the commission of such acts, when the acts referred
to in the present paragraph involve a threat or use of force."
192. Moreover, in the part of this same resolution devoted to the principle
of non-intervention in matters within the national jurisdiction of
States, a very similar rule is found :
"Also, no State shall organize, assist, foment, finance, incite or
tolerate subversive, terrorist or armed activities directed towards the
violent overthrow of the régime of another State, or interfere in civil
strife in another State."
 1. In customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another
State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a
mere frontier incident had it been carried out by regular armed forces.
2. BUT the Court does not believe that the concept of "armed attack" includes not only acts by armed bands where such
acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or
other support. Such assistance may be regarded as a threat or use of force, or amount to intervention in the internal or
external affairs of other States.
iii. It is also clear that it is the State which is the victim of an armed attack which must form and declare the view that it has been
so attacked. There is no rule in customary international law permitting another State to exercise the right of collective self-defence on the
basis of its own assessment of the situation.
iv. The question remains whether the lawfulness of the use of collective self-defence by the third State for the benefit of the attacked State
also depends on a request addressed by that State to the third State.
1. in customary international law, whether of a general kind or that particular to the inter-American legal system, there is no rule
permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an
armed attack.
v. Question: whether in customary international law there is any requirement like that found in the (Art 51) United Nations Charter, by which
the State claiming to use the right of individual or collective self-defence must report to an international body, empowered to determine
the conformity with international llaw of the measures which the State is seeking to justify on that basis? Nope. As the Court has
observed above a principle enshrined in a treaty, if reflected in customary international law, may well be so unencumbered with the
conditions and modalities surrounding it in the treaty. On the other hand, if self-defense is advanced as a justification for measures which
would otherwise be in breach both of the principle of customary international law and of that contained in the Charter, it is to be expected
that the conditions of the Charter should be respected
Application of the law to the facts:

1. US violated the prohibition on the use of force for the laying of mines in early 1984 and certain attacks on Nicaraguan ports, oil installations and naval
bases, unless justified by circumstances which exclude their unlawfulness. The US also has committed a prima facie violation of the principle by arming
and training the contras, unless this can be justified as an exercise of the right of self-defense.
a. The ICJ however does not consider the military maneuvers held by the US near the Nicaraguan borders or the supply of funds to the contras as
amounting to use of force.
b. ON EFFECTIVE CONTROL: United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and
equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in
itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the
contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above,
and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves
mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human ri ghts and
humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the
United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that
State had EFFECTIVE CONTROL of the military or paramilitary operations in the course of which the alleged violations were
committed.
 i. See other note, conclusion: contras were still responsible for their acts
c. In the view of the Court, while the arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua,
this is not necessarily so in respect of all the assistance given by the United States Government. In particular, the Court considers that the mere
supply of funds to the contras, while undoubtedly an act of intervention in the internal affairs of Nicaragua, as will be explained below, does not in
itself amount to a use of force.
2. Question: whether the acts the aforementioned breaches of the principle(non use of force) may be justified by the exercise of the right of
collective self-defense? NO. US did not follow the conditions(as mentioned in issues #19), its acts are therefore violation of the prohibition on
the use of force under customary int’l law
a. Was there an armed attack on El Salvador, Honduras or Costa Rica?
i. ICJ: In El Salvador, the Court has found that it is satisfied that between July 1979 and the early months of 1981, an intermittent flow of
arms was routed via Nicaragua to the armed opposition in that country. BUT, it is NOT satisfied that assistance has reached the
Salvadorian armed opposition, on a scale of any significance or that the Government of Nicaragua was responsible for any flow
of arms at either period. Even if supply of arms is imputable to the Government of Nicaragua, the Court is unable to consider that in
customary international law, the provision of arms to the opposition in another State constitutes an armed attack on that State.
In the other 2 countries, it is not established that the acts were imputable to the Gov’t of Nic. In a Security Council debate Costa Rica
made no accusation of armed at attack, maintained neutrality and support for the Contadora process during the same Honduras merely
stated it was object of aggression by Nic.
b. Has an armed attack occurred and did these countries make such a request of collective self-defense? None
i. The exercise of the right of collective self-defence presupposes that an armed attack has occurred; and it is evident that it is the victim
State, being the most directly aware of that fact, which is likely to draw general attention to its plight.
ii. It is also evident that if the victim State wishes another State to come to its help in the exercise of the right of collective self-defence, it will
normally make an express request to that effect.
iii. Thus in the Court is entitled to take account the actual conduct of El Salvador, Honduras and Costa Rica at the relevant time, as
indicative of a belief by the State in question that it was the victim of an armed attack by Nicaragua, and of the making of a request by the
victim State to the United States for help in the exercise of collective self-defense.
iv. ICJ: The Court has seen no evidence that the conduct of those States was consistent with such a situation, either at the time
when the US first embarked on the activities which were allegedly justified bynself-defence, or indeed for a long period
subsequently.
1. So far as El Salvador is concerned, it appears it did in fact officially declare itself the victim of an armed attack (1984), and did
ask for the United States to exercise its right of collective self-defense, BUT this occurred only on a date much later than the
commencement of the United States activities (1981) which were allegedly justified by this request
2. As to Honduras and Costa Rica, they also were prompted by the institution of proceedings in this case to address
communications to the Court ; in neither of these is there mention of armed attack or collective self-defence.
c. Has US made a report under Art 51 of the UN Charter? No, although the Court maintains that the treaty is inapplicable (because of the
reservation by the US) and that the case is being decided under customary international law w/c as does not require the report, the Court is
justified in observing that this conduct of the United States hardly conforms with the latter's avowed conviction that it was acting in the context of
collective self-defense as consecrated by Article 51 of the Charter
d. Has there been compliance with the principle of necessity and proportionality?
 i. ICJ: Since US did not conform w/ the conditions sine qua non, even if the US activities in question had been carried on in strict
compliance with the canons of necessity and proportionality, they would not thereby become lawful. If however they were not, this may
constitute an additional ground of wrongfulness.
ii. On necessity, the Court observes that the US measures taken in December 1981 (or, at the earliest, March of that year - paragraph 93
above) cannot be said to correspond to a "necessity on the basis of assistance given by Nicaragua to the armed opposition in El
Salvador.
1. First, these measures were only taken, and began to produce their effects. several months after the major offensive of the armed
opposition against the Government of El Salvador had been completely repulsed (January 1981) and the actions of the
opposition considerably reduced in consequence.
a. Thus it was possible to eliminate the main danger w/ US attack on Nic.
iii. Of proportionality, the Court cannot regard the United States activities relating to the mining of the Nicaraguan ports and the attacks on
ports, oil installations, etc., as satisfying that criterion. Since the exact aid allegedly made by Nic to the ES opposition is uncertain, how
can the US measure its acts as proportional to it.
1. the Court must also observe that the reaction of the United States in the context of what it regarded as self-defence was
continued long after the period in which any presumed armed attack by Nicaragua could reasonably be contemplated.

DISPOSITIVE PORTION

Nicaragua won

DIGESTER: Nikki M.

Other notes:

What are the conduct attributable to each party?

Nicaragua claims US did What US, says Nicaragua did:

whhaaaat??
 mining of Nic ports or waters by
US personnel or Latin
Americans hired by the US
o ICJ: yep, that
happened mines were
located in internal and
territorial waters,
 Nicaragua was actively
supporting armed groups
operating in certain of the
neighbouring countries,
particularly in El Salvador, and
specifically in the form of the
supply of arms
 neither was Nic o Nope, already resolved
warned(int’l shipping) above(application #2a)
before and after they
were placed. Personal
and material injury was
suffered. Marine
insurance rates also
increased
 Operations against oil  responsible for cross-border
installations and naval base etc military attack on Honduras and
o ICJ: although it is not Costa Rica.
proved that the US o ICJ: not satisfied these
military personnel took are imputable to the
direct part in the ops Government of
the agents participated Nicaragua.
in the planning,
direction and support
 Infringement on air space  United States to contend that
the present Government of
Nicaragua is in violation of
certain alleged assurances
given by its immediate
predecessor, based on an
communication ti the OAS. The
United States considers that it
has a special responsibility
regarding the implementation of
these commitments.
 Accdg to Nic, US “conceived, 
created and organized a
mercenary army, the conta
force”
o ICJ: on the basis of
available info, not
sufficient to support the
finding that the same
was created but that it
was largely financed,
 trained, equipped,
armed and organized
FDN, one element of
the force.
 That the US devised the
strategy and directed the tactics
of the contra force, and
provided direct combat support
for its military operations.
o On evid available the
Court is not satisfied
that all the operations
launched by the contra
force, at every stage of
the conflict, reflected
strategy and tactics
solely devised by US
o The Court however
finds it clear that a
number of 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 the
intelligence and logistic
support which the
United States was able
to offer.
 US support took various forms
over the years, such as logistic
support, the supply of
information on the location and
movements of the Sandinista
troops, the use of sophisticated
methods of communication, etc.
o ICJ: Theevidence does
not however warrant a
 finding that the United
States gave direct
combat support
 Is the contra’s relationship w/
the US enough for it to be
considered as an organ of the
US Government, or as acting
on its behalf?
o ICJ: on available
evidence, not total but
partial dependency the
exact extent of which
the Court cannot
establish, may be
inferred from the fact
that the leaders were
selected by the United
States, and from other
factors such as the
organization, training
and equipping of the
force, planning of
operations, the
choosing of targets and
the operational support
provided.
o There is no clear
evidence that the
United States actually
exercised such a
degree of control as to
justify treating
the.contras as acting
on its behalf.
 Measure of economic nature 
fact 5d
 Custom
Asylum Case (Colombia vs Peru)

In 1948, a military rebellion broke out in Peru. Victor Raul Haya de la Torre was found to be the leader of the rebel group American People’s Revolutionary
Alliance. In 1949 De la Torre sought Asylum in the Colombian Embassy in Lima. Colombia argues that the State granting Asylum had the competence to qualify
the nature of the offence by a unilateral and definitive decision binding on the territorial state (Peru). Colombia anchors its claim on convention, treaties, and local
custom as support. Court disagrees with Colombia bc the cited conventions and treaties did not have a provision for a unilateral and definitive qualification.
Custom also does not apply bc the reaction of states to such rule was very inconsistent, contradictory and uncertain that the court said that such could not be
accepted as uniform practice and usage.
DOCTRINE
The Party which relies on a custom of this kind must prove that this custom is established in such a rnanner that it has become binding on the other Party.

The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practiced by the States in question, and
that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State.

FACTS
5. On Oct 3, 1948, a military rebellion broke out in Peru. The next day, the President of the Republic issued a decree in the recitals which a political party, the
American People’s Revolutionary Alliance, was charged with having organized and directed the rebellion.
6. On October 5th, the Minister of the Interior addressed to the Minister for the Navy a "note of denunciation" against the leader of the American People's
Revolutionary Alliance, Victor Raul Haya de la Torre, and other members of the party as responsible for the rebellion. This note was approved the same day.
7. On January 3rd, 1949, Haya de la Torre sought asylum in the Colombian Embassy in Lima. On the next day, the Colombian Ambassador sent the following
note to the Peruvian hIinister for Foreign Affairs and Public Worship:

I have the honour to inform Your Excellency, in accordance with what is provided in Article 2, paragraph 2, of the Convention on Asylum signed
by Our two countries in the city of Havana in the year 1928, that Seiïor Victor Raul Haya de la Torre has been given asylum at the seat of this
mission as from 9 p.m. yesterday.

8. Colombia contends that as the country granting asylum, it is competent to qualify the offence for the purpose of said asylum, within the limits of the obligation
resulting from the Bolivarian Agreement on Extradition of July 18, 1911 and the Convention on Asylum of Feb 20, 1928, and of American intl law in general.
9. 2 ways of interpreting the phrase in par 4:
a. If it is only intended to allege that the State granting the asylum, is competent to qualify the offence only provisionally and without binding effect for Peru,
then there would be no problem. The territorial State is not deprived of its right to contest the qualification.
b. But Colombia claims that the phrase must be understood that Colombia, is competent to qualify the nature of the offence by a unilateral and definitive
decision binding on Peru.
ISSUE with HOLDING (Jump to letter f)
3. Can a State granting asylum competent to qualify the nature of the offence by a unilateral and definitive decision binding on the territorial State – NO

a. Colombia bases its claim to the Bolivarian Agreement of 1911, Art 18 which states that signatory states recognize the institution of asylum in conformity with
principles of intl law.

Court: But the principles of intl law do not recognize any rule of unilateral and definitive qualification by the State granting diplomatic asylum.

b. Colombia also relies on Art 4 of Bolivarian Agreement relating to extradition of a criminal refugee

Court: Extradition and asylum are different.

In the case of extradition, the refugee is within the territory of the State of refuge. A decision with regard to extradition implies only the normal exercise of the
territorial sovereignty. The refugee is outside the territory of the State where the offence was committed, and a decision to grant him asylum in no way derogates
from the sovereignty of that State.

In the case of diplomatic asylum, the refugee is within the territory of the State where the offence was committed. A decision to grant diplomatic asylum involves a
derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which
are exclusively within the competence of that

State.

Such a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case. Thus provisions on extradition
cannot apply to diplomatic asylum.

c. Colombian govt relies on Havana Convention on Asylum of 1928

Court: This Convention lays down certain rules relating to diplomatic asylum, but does not contain any provision conferring on the State granting asylum a
unilateral competence to qualify the offence with definitive and binding force for the territorial State.
A competence of this kind is of an exceptional character. It involves a derogation from the equal rights of qualification which, in the absence of any contrary rule,
must be attributed to each of the States concerned; it thus aggravates the derogation from territorial sovereignty constituted by the exercise of asylum.

As such, the alleged right of unilateral and definitive qualification cannot be regarded as recognized by implication in the Havana Convention.

d. Colombia has invoked Art 2 (1) of the Havana Convention which states:

Asylum granted to political offenders in legations, warships, military camps or military aircraft, shall be respected to the extent in which allowed as a right
or through humanitarian toleration, by the usages, the conventions or the laws of the country in which granted and in accordance with the following
provisions

Court: What the provision says in effect is that the State of refuge shall not exercise asylum to a larger extent than is warranted by its own usages, conventions or
laws and that the asylum granted must be respected by the territorial State only where such asylum would be permitted according to the usages, conventions or
laws of the State of refuge.

e. Colombia referred to the Montevideo Convention on Political Asylum of 1933. It is argued that, by Article 2 of that Convention, the Havana Convention of 1928
is interpreted in the sense that the qualification of a political offence appertains to the State granting asylum.

Court: Articles 6 and 7 of the Montevideo Convention provide that it shall be ratified and will enter into force as and when the ratifications are deposited.

The Montevideo Convention has not been ratified by Peru, and cannot be invoked against that State.

f. The Colombian Government has invokes "American international law in general". In addition to the rules arising from agreements which have
already been considered, it has relied on an alleged regional or local custom peculiar to Latin-American States.
The Party which relies on a custom of this kind must prove that this custom is established in such a rnanner that it has become binding on the other Party.

The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practiced by the States in question, and
that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State.

This is bc Art 38 of the Statute of the Court refers to intl custom “as evidence of a general practice accepted as law.”

The extradition treaties cited by Colombia cannot be considered bc as stated above, extradition and asylum are different.

Colombia has also cited agreements and conventions which do not contain any provision concerning the alleged rule of unilateral and definitive qualification.

It has also invoked treaties which have no bearing bc Peru did not ratify them.

Colombia: Montevideo Convention merely codified principles which were already recognized by Latin-America Custom, and that it is valid against Peru as proof of
customary law.

Court: Only a limited number of States ratified the Convention. Furthermore the preamble states the convention only modified the Havana Convention.

Colombia: There are a lot cases in which diplomatic asylum was granted and respected

Court: Colombia did not show that the alleged rule on unilateral and definitive qualification was invoked or-if in some cases it was in fact invoked-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.
But the facts shows so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum. There has been so much
inconsistency on conventions of asylum as others ratify it and some reject it.

The practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this, any constant
and uniform usage, accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence.

Even if the custom did exist, it cannot be invoked against Peru which, far from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining
from ratifying the Montevideo Conventions of 1933 and 1939.

For these reasons, the Court has arrived at the conclusion that Colombia, as the State granting asylum, is not competent to qualify the offence by a unilateral and
definitive decision, binding on Peru.

DISPOSITIVE PORTION
THE COURT, on the submissions of the Government of Colombia, by fourteen votes to two, rejects the first submission in so far as it involves a right for
Colombia, as the country granting asylum, to qualify the nature of the offence by a unilateral and definitive decision, binding on Peru.

DIGESTER: Kharina
 Advisory Opinion/Use of Force
Threat or Use of Nuclear Weapons (Ad Op)

(Start reading from what is the relevant applicable law).

UN GA:
Is the threat or use of nuclear weapons in any circumstance permitted under IL?
ICJ:
Pwidi, piro dipindi. (Swear.)

On jurisdiction (Court has jurisdiction)

10. Under Art. 65, par. 1 of the ICJ Statute, the Court “may give an advisory opinion on any legal question at the request of whatever body may be authorized by
or in accordance with the Charter of the United Nations to make such a request.”
11. Objection: GA and SC are not entitled to ask for opinions on matters totally unrelated to their work.
12. ICJ: Art. 10 of the UN Charter gives GA competence relating to “any questions or any matters” within the Charter. Art. 11: GA is to consider principles in the
“maintenance of int’l peace and security, including the principles governing disarmament and the regulation of armaments.” Art. 13: GA shall “initiate studies
and make recommendations for the purpose of…encouraging the progressive development of IL and its codification.
13. The GA has an interest in matters relating to the threat or use of force in international relations (IR). Nothing in the UN Charter limits it to requesting opinions
on matters on which it can make binding decisions.
14. What matters is whether the question put to the Court is a legal one. It is, because the Court is asked to rule on the threat or use of nuclear weapons with the
relevant principles and rules of IL.
15. The question has political aspects, but the Court cannot refuse to discharge its judicial task on that account. The political motives which may have spurred the
request for the Ad Op are of no relevance.
16. The ICJ refused to rule on the request for Ad Op by the World Health Organization (WHO) because it lacked jurisdiction.
17. Objection: The question is vague and abstract, as no specific dispute is being alluded to. ICJ: The purpose of an Ad Op is not to settle disputes but to give
legal advice. The Court can give an Ad Op on any legal question, abstract or otherwise.
18. Objection: The GA has not explained to the ICJ what it needs the Ad Op for. ICJ: The Court does not need an explanation. The GA has the right to decide for
itself whether an Ad Op would be useful to it.
19. Objection: An Ad Op might adversely affect disarmament negotiations. ICJ: Any Ad Op would have relevance to the debate on the matter in the GA. Beyond
that, however, the Ad Op would be a matter of appreciation, just another position.
20. Objection: The ICJ would be engaging in law-making by giving this Ad Op. ICJ: No. The Court merely states the existing law and applies it; it does not
legislate.

Does it matter that the question uses the word “permitted”?

21. Some states argue that the question should be whether the threat or use of nuclear weapons (NWs) is prohibited instead of permitted, because under the
Lotus principle, what is not prohibited is allowed.
22. Other states argue that the Lotus dictum was directed to the possession, and not the threat or use of nuclear weapons (nukes).
23. ICJ: It does not matter. The nuclear-weapon States (nuke states) do not dispute that their independence to act is restricted by international humanitarian law
(IHL).
What is the relevant applicable law? (IHL. But before the ICJ gets to the answer, it goes through the laws suggested by the proponents of the Ad Op.)
24. Is it the International Covenant on Civil and Political Rights (ICCPR)? No.
a. Article 6 paragraph 1 provides “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived
of his life.”
b. Negative (NEG/ Nukes NOT permitted): States argue that the use of nukes would violate the right to life as guaranteed by the ICCPR.
c. Affirmative (AFF/ Nukes are allowed): The ICCPR does not mention war or weapons and was not made to regulate the use of nukes. It governs human
rights in peacetime.
d. ICJ: The guarantees of the ICCPR do not cease in times of war.
i. Exception would be certain provisions such as Article 4 that allows certain provisions to be derogated from during national emergencies.
ii. This exception does not apply to right to life. But the prohibition on arbitrary deprivation of life is to be assessed in the context of the law
applicable (lex specialis) in armed conflict.
25. Is it the prohibition against genocide as provided by the Convention on the Prevention and Punishment of the Crime of Genocide 2? No.
a. NEG: The death toll from nukes would be enormous, and the victims would in certain cases include persons of a particular national, ethnic, racial, or
religious group. The intention to destroy such groups could be inferred from the use of nukes given their well-known effects.
b. ICJ: Genocide entails intent. Intent can only be inferred from the circumstances specific to each case.
26. Is it norms relating to the safeguarding and protection of the environment? No.
a. NEG: Invoked several treaties, which apply at all times (in war and in peace)
i. Article 35, paragraph 3 of the Additional Protocol of Geneva Conventions of 1949: prohibits the employment of “methods or means of
warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.”
ii. Article 1 of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques: prohibits
the use of weapons which have “widespread, long-lasting or severe effects” on the environment.

2 any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group; 


(b) Causing serious bodily or mental harm to members of the group ; 


(c) Deliberately inflicting on the group conditions of life calculated 
 to bring about its physical destruction in whole or in part; 


(d) Imposing measures intended to prevent births within the group; 


(e) Forcibly transferring children of the group to another group. 


 iii.Principle 21 of the Stockholm Declaration of 1972 and Principle 2 of the Rio Declaration of 1992: expresses the common conviction that
States have the duty “to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction.”
b. AFF: The purpose of these treaties is the protection of the environment. Warfare is not mentioned in any of them and cannot be interpreted to have been
contemplated. It would destabilize the rule of law and to confidence in international negotiations if such treaties were to be interpreted in such a way as to
prohibit the use of nukes.
c. ICJ: It recognized that the environment is under daily threat and the use of nukes would mean a catastrophe for the environment. The issue is not
whether the environmental treaties are applicable during armed conflict. The question is whether they were intended to be obligations of total restraint
during military conflict.
i. They cannot have been intended to deprive a State of the exercise of its right of self-defense.
ii. Respect for the environment is one of the elements to determine if one’s self-defense is necessary and proportional to the armed attack.
iii. If the treaties are taken together, it shows that there are
I. a general obligation to protect the natural environment against widespread, long-term, and severe environmental damage;
II. a prohibition of methods and means of warfare which are intended or may be expected to cause damage;
III. a prohibition of attacks against the natural environment by way of reprisals.
iv. These are supported by General Assembly resolution 3 and in the Nuclear Tests case (New Zealand v. France)4.
v. Existing IL does not specifically prohibit the use of nukes, but it indicates important environmental factors that must be factored in in
the context of the implementation of the principles and rules of the law applicable in armed conflict.

27. Given the above, the applicable laws to the question are: law on use of force in (1) the UN Charter and 2) law on armed conflict, as well as specific
treaties on nukes.

Characterization of Nukes (ICJ kept this in mind throughout its discussion)

28. Nukes release not only immense quantities of heat and energy, but also powerful and prolonged radiation. This shows that nukes are potentially catastrophic.
29. The destructive power of nukes cannot be contained in either space or time, so it can potentially destroy all civilization and the entire ecosystem of the planet.
30. Radiation affects health, agriculture, natural resources, and demography over a wide area, and future generations.
31. In summary, it must be taken into consideration that nukes’:
a. Destructive capacity
b. Capacity to cause untold human suffering
c. Ability to cause damage to generations to come.

On the UN Charter provisions on the threat or use of force

32. The general rule is provided in Article 2, paragraph 4, which prohibits the threat or use of force against the territorial integrity or political independence of
another State or in any other manner inconsistent with the purposes of the UN.

3
GA Resolution 47/37 on the Protection of the Environment in Times of Armed Conflict: “destruction of the environment, not justified by military necessity and carried out wantonly, is clearly
contrary to existing IL.”
4
“Without prejudice to the obligations of States to respect and protect the natural environment.” Despite the decision applied in the context of nuclear testing, it may also apply in the actual
use of nuclear weapons in armed conflict.
33. Such general prohibition must be taken into consideration with other provisions.
a. Article 51 recognizes the right of individual or collective self-defense.
b. Article 42 recognizes that the SC may take military enforcement measures in conformity with the Chapter VII of the Charter (Action with respect to
threats to the peace, breaches of the peace, and acts of aggression).
34. They do not refer to specific weapons, but to any use of force. The Charter does not expressly prohibit nor permit the use of any weapons such as nukes. In
any case, if the weapon is unlawful per se by treaty or custom, its usage in accordance with the above would not make it lawful.
35. Under customary IL, self-defense requires (1) necessity and (2) proportionality (This was discussed in Military and Paramilitary Activities in and against
Nicaragua). Under Article 51, acts in self-defense must be reported to the SC.
a. The proportionality principle may not in itself exclude the use of nuclear weapons in self-defense in all circumstances.
b. Measures taken under Article 51 does not affect the authority and responsibility of the SC under the Charter to take action as it deems necessary in
order to maintain or restore international peace and security.
i. These requirements apply whatever the means of force used in self-defense.
36. NEG: There is a high probability of escalation of nuclear exchanges and an extremely strong risk of devastation. This would not satisfy the condition of
proportionality.
37. ICJ: We do not have to rule on this. It is enough to note that States would take necessity and proportionality into account when exercising self-defense.

38. AFF: Use of nukes in conduct of reprisals would be lawful.

39. ICJ: The court does not have to examine that question. Basta, such reprisals, like self-defense, should be governed by the principle of proportionality.
40. Sometimes, States signal their possession of nukes against any State violating their territorial integrity or political independence. Whether this is a threat
depends on various factors, but ultimately, what is threatened to be done must also be lawful.
a. The notions of “threat” and “use” of force under Article 2, paragraph 4 stand together in such that if the use of force is illegal in a given case, so would
the threat to use such force is illegal.
b. For it to be lawful, the declared readiness of a State to use force must conform with the UN Charter.

41. NEG: Mere possession of nukes is an unlawful threat to use force. It may be inferred that that one is prepared to use the nukes from the fact that one
possesses them.
42. ICJ: The policy of deterrence, which States use nukes to keep up, depends on a credible intention to use such weapons. Again, the legality of the threat
depends on whether the use of such weapons is lawful.

On the applicable law in situations of armed conflict

43. Neither customary IL or treaty law expressly prohibits or authorizes the use of nukes in general or under certain circumstances. There is no principle or rule of
IL making the legality thereof dependent on a specific authorization. State practice in this area is formulated in terms of prohibition.

A. Law on armed conflict: WON there is treaty law that prohibits the recourse to nukes
44. NEG: Nukes should be treated the same way as poisoned weapons, which are prohibited under the
a. Second Hague Declaration of 1899: prohibits the use of projectiles which diffuse asphyxiating 5 or deleterious gases
b. Hague Convention IV of 1907: forbidden to employ poison or poisoned weapons; and

5
Kill someone by depriving them of air.
 c. Geneva Protocol of 1925: prohibits the use in war of asphyxiating, poisonous, or other gases, and of all analogous liquids, materials, or devices.
45. ICJ: The above do not define poisoned weapons or analogous materials, but State practice has proven their ordinary sense to be weapons whose effect is to
poison or asphyxiate. Consequently, nukes cannot be regarded as poisoned weapons.

46. The pattern now is for weapons of mass destruction to be declared illegal by specific instruments. With respect to nukes, there is no treaty of general
prohibition, unlike in bacteriological and chemical weapons. Treaties have limited their (1) acquisition, manufacture, and possession, (2) deployment, and (3)
testing.
47. There are 3 treaties that directly address recourse to nukes.
a. The Treaty on the Non-Proliferation of Nuclear Weapons of 1968 (Non-Proliferation Treaty) was extended indefinitely. All five nuke States
undertook not to use nukes against non-nuke States that were parties to the Treaty.
i. Exception: If such non-nuke State party to the Treaty invades or attacks them in association or alliance with a nuke State. Here, the matter
would be referred to the SC for immediate measures to assist the victim State.
b. Treaty of Tlatelolco: prohibits nukes in Latin America, has an Additional Protocol for nuke states outside the region to not attack or threaten Latin
American states with nukes.
i. UK and US signed with the declaration that they would reconsider its commitment if an act of aggression by a contracting party were
supported by a nuke state.
ii. France also signed, without prejudice to self-defense measures under UN Charter Art. 51.
iii. China affirmed that it would not be the first to make use of nukes.
iv. Russia reserved the right to review the obligations imposed in the event of an attack by a State party in support of a nuke State or jointly with
such State.
v. None of these statements drew opposition to party States.
c. Treaty of Rarotonga: Does not expressly prohibit use, but State parties undertake not to manufacture, acquire, or possess any nuclear explosive
device. (Some of the above States have ratified but with reservations, others have just signed.)

48. NEG: The treaties (discussed above) show an emergence of a rule of complete legal prohibition on all uses of nukes.
49. AFF: The treaties only regulate possession, use, etc. Non-nuke States do not question the possession of nukes by nuke States, and this shows
that the use thereof may be lawful in certain circumstances.
a. Acceptance of the treaties by the different non-nukes States confirms and reinforces the evident logic upon which those instruments are based.
50. ICJ: The treaties exclusively deal with the acquisition, manufacture, possession, deployment, and testing of nukes without addressing their threat or use.
These treaties can be seen as a foreshadowing of a future general prohibition of the use. From the treaties, it may be concluded that:
a. A number of States have undertaken not to use nukes in specific zones;
b. Nuke-supporting States have reserved the right to use nukes in certain circumstances.
c. Such reservations have not met with objection from non-nuke State parties or the SC.
51. There is no prohibition in treaty law as to the use of nuclear weapons, despite the then-recent signing of the Treaty on the Southeast Asia Nuclear-
Weapon-Free Zone (created a nuke-free zone in Africa).

B. Law on armed conflict: WON there is a prohibition of the treat or use of nuclear weapons based on customary IL (ICJ looked at actual practice and
opinion juris).
52. NEG: State practice shows a consistent non-utilization of nukes since 1945. This shows opinion juris on the part of nuke States.
53. AFF: The practice of deterrence is simply at work. That nukes have not been used does not mean that there is existing or nascent custom on its prohibition.
The non-use is merely due to the fact that the circumstances justifying their use have not arisen. (In short, there is has been no use for nukes since 1945.)
54. ICJ: It did not intend to rule on the policy of deterrence, but it noted that a lot of States have adhered to such practice since the Cold War. It concluded that
there was no opinion juris has been established in favor of prohibition because the international community has been divided for the past 50 years.

C. Resolutions
55. NEG: A series of GA resolutions against nukes confirms that there is a rule of prohibition in customary IL.
56. AFF: GA resolutions are not binding, are not declaratory of any customary rule of prohibition, and have been approved by nuke-supporting States and other
States.
57. ICJ: The resolution expressly proclaiming the illegality of nukes proceeded to qualify the legal nature of nuclear weapons in accordance with general rules of
customary law. This showed that there was no specific rule of customary law applicable; otherwise, the GA could have simply referred to it.
58. The request to conclude a convention prohibiting the use of nukes shows the desire of a very large section of the international community to take a significant
step forward along the road to complete nuke disarmament.
a. The emergence of lex lata of a customary rule specifically prohibiting nukes is hampered by States wanting to continue the practice of deterrence.

D. On IHL
59. Based on several treaties, it may be seen that the conduct of military operations is governed by a body of legal prescriptions because the right of belligerents
to adopt means of injuring the enemy is not absolute as provided by Article 22 of the 1907 Hague Regulations.
a. Hague Law and Regulations Respecting the Laws and Customs of War on Land fixed the rights and duties of belligerents in the conduct of
operations and limited the choice of methods and means of injuring enemies in an international armed conflict.
b. 1925 Geneva Protocol: prohibited the use of explosive projectiles under 400 grams, dum-dum bullets, and asphyxiating gases.
c. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to Be Excessively
Injurious or to Have Indiscriminate Effects: the use of mines, booby traps, incendiary weapons, and anti-personnel land mines.
60. Two cardinal principles under IHL:
a. States must never make civilians the object of attack and must never use weapons incapable of distinguishing civilians and the military.
b. It is prohibited to cause unnecessary suffering to combatants; consequently, weapons that do so are prohibited.
61. Based on the cardinal principles, IHL prohibited certain types of weapons because of (1) their indiscriminate effect on combatants and civilians; or (2) the
unnecessary suffering caused to combatants.
a. Principles of IHL are part of jus cogens. It is so fundamental to the respect of the human person and elementary considerations of humanity (Corfu
Channel case).
b. Nuremberg International Military Tribunal found that the humanitarian rules included in the Regulations annexed to the Hague Convention IV of 1907
were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war.
c. When the Statute for the International Criminal Tribunal for the Former Yugoslavia (ICTY) was introduced in Resolution 827, it was stated that the
ICTY should apply rules of IHL, which are beyond any doubt part of customary law.

62. AFF: These principles and rules evolved prior to the invention of nukes and such treaties did not deal with nukes specifically.
63. ICJ: IHL is applicable even if most of its principles were formulated before nukes were invented.
a. It would be against the intrinsically humanitarian character of the legal principles of IHL, which permeates the entire law of armed conflict and applies
to all forms of warfare and to all kinds of weapons (those in the past, present, and future).
 b. No State in this case ever tried to argue that IHL is inapplicable because nukes are newer than IHL.
64. The applicability and continuing existence of Martens clause: Until a more complete code of the laws of war has been issued, inhabitants and belligerents
remain under the protection and rule of the principles of the law on nations as they result from the usages established among civilized peoples, from the laws
of humanity, and the dictates of the public conscience.

E. On the law of neutrality

65. Legality of the Use by A State of Nuclear Weapons in Armed Conflict: the principle of neutrality was aimed at preventing the incursion of belligerent forces
into neutral territory, or attacks on the persons or ships of neutrals.
66. Neutrality applies here. The territory of neutral powers is inviolable. Belligerent forces may not enter neutral territory.
67. AFF: That recourse to nukes is regulated by the law of armed conflict does not mean that such recourse is prohibited.
68. NEG: Recourse to nukes can never be compatible with the principles and rules of IHL and is therefore prohibited. Nukes cannot distinguish between civilians
and combatants, and their effects which are largely uncontrollable cannot be restricted to lawful military targets. They kill and destroy indiscriminately.
Therefore, its effects cannot be contained within a certain territory and will likely violate neutrality on that account.
69. AFF: There are clean uses of nukes: smaller, low yield tactical nuclear weapons may be used so as to have limited effect.
70. ICJ: None of the parties are giving any basis as to their arguments, so the court cannot make a determination as to the validity of their views.
71. Although the unique characteristics of nuclear weapons make their use difficult to reconcile with the requirement that there be distinction between civilians
and combatants, the Court does not have sufficient elements to conclude with certainty that the use of nukes would necessarily be at variance with
IL in any circumstance.
72. Plus, it cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defense in accordance with Article
51 of the UN Charter.

Conclusion
73. It is important to put an end to the state of affairs (i.e. continuing differences of views with respect to the legal status of nukes) by complete nuclear
disarmament, which is the most appropriate means.
74. Article VI of the Non-Proliferation Treaty6 provides an obligation to negotiate in good faith a nuclear disarmament.
a. The obligation to pursue and conclude negotiations formally concerns 182 States or a vast majority of the international community.
b. Such an obligation has been reaffirmed by several treaties. This shows that this is an objective of vital importance to the entire international
community.

HELD
In view of the present state of IL, the Court cannot reach a definitive conclusion as to the legality or illegality of the use of nukes by a State in an extreme
circumstance of self-defense in which its very survival would be at stake.

6
Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear
disarmament, and on a treaty on general and complete disarmament under strict and effective international control.