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1. LOTUS CASE
Relevance - The necessity of opinio juris was first pointed out in the Lotus Case. In 1927, the PCIJ required the existence of a legal obligation behind State practice before such a practice could be considered as part of customary law Brief Facts- The case of S.S. Lotus (1927) can be considered to be the first case where the question of jurisdiction was raised for the first time. In S.S. Lotus case, a Turkish ship Boz Court collided with a French ship S.S.Lotus in the high seas on 2nd August 1926. As a result of the collision, the Turkish ship capsized along with the loss of lives of eight Turkish sailors and passengers. When the French ship Lotus reached Turkey, the authorities of Turkey ordered the officer of the watch on board Lotus (who was playing the same role during collision), Monsieur Demons to submit evidence to the Turkish authorities. While doing so, he was arrested by Turkish authorities and along with the Captain of the capsized Turkish ship was tried on the count of manslaughter. He was charged guilty and therefore was punished. The French authorities got concerned by the act of the Turkish authorities and lodged protest with the Turkish authorities. When M. Demons was ordered to be imprisoned for eight days and a fine was imposed the French authorities moved to the Permanent Court of Justice calling the Turkish trial and punishment illegal. The question, therefore, arose in the court whether the Turkish authorities have committed a crime by trying a foreign national in their court for a crime committed outside Turkey and the legality of the pecuniary compensation. The court held that the Turkish authorities have not committed any wrong by trying M. Demons, the French national in their court. The court enunciated two principles, namely – outside its territory and within its territory, collectively known as Lotus principles. The first principle says that a country cannot act beyond its jurisdiction unless the same is being allowed by a convention, custom or a treaty. The second principle says that a state may exercise jurisdiction within its territory even though there is no specific international law or treaty allowing to do so. Discussion - It encapsulated a strict positivist vision of international law. Rather than envisioning international law as preceding the existence of States, the Court
posited that “The rules of law binding upon States … 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 held that Colombia did not establish the existence of a regional custom because it failed to prove consistent and uniform usage of the alleged custom by relevant States. The fluctuations and contradictions in State practice did not allow for the uniform usage. The court held that there was no legal obligation on Peru to grant safe passage either because of the Havana Convention or customary law. In the case of the Havana Convention, a plain reading of Article 2 results in an obligation on the territorial state (Peru) to grant safe passage only after it requests the asylum granting State (Colombia) to send the person granted asylum outside its national territory (Peru). In this case the Peruvian government had not asked that Torre leave Peru. On the contrary, it contested the legality of asylum granted to him and refused to grant safe conduct. The court looked at the possibility of a customary law emerging from State practice where diplomatic agents have requested and been granted safe passage for asylum seekers, before the territorial State could request for his departure. Once more, the court held that these practices were a result of a need for expediency and other practice considerations over an existence of a belief that the act amounts to a legal obligation. “There exists undoubtedly a practice whereby the diplomatic representative who grants asylum immediately requests a safe conduct without awaiting a request from the territorial state for the departure of the refugee…but this practice does not and cannot mean that the State, to whom such a request for safe-conduct has been addressed, is legally bound to accede to it.”
3. PAQUETE HABANA CASE (US Supreme Court) Relevance- Relationship between International Law & Municipal Law. Brief Facts- During the Spanish American War, the United States Navy boarded two private fishing vessels that were flying the Spanish flag, and captured them both as prizes of war.^1 One of which was the Paquete Habana. The owners of the vessels sued in US courts to regain their property. It was argued that customary international law states that fishing vessels are exempt from being captured in war. They were commercial fishermen and not a military target. The US Supreme Court found that the fishing vessels cannot be taken as prizes of war. Discussion- Analysis of The Paquete Habana will illustrate how courts might take a more balanced approach, identifying the custom as well as the convention aspect of customary international law. In this case, which took place more than a hundred years ago, the Supreme Court considered the status of seized fishing boats under customary international law. Before deciding that principles of customary international law dictated that the proceeds from auctioning the ships must be returned to their fisherman owners, the Court examined many sources. The Court commenced with an exploration of "ancient usage among civilized nations, beginning centuries ago." Beginning with Henry IV of England in 1403, the Court cited international practices, with a focus on the acts of Kings. Rather than focusing on the legal conclusions of commentary, the Court referred to historical incidents. In examining American history, the Court noted actual practices of the American government rather than the opinions or statements of policy." After examining American practice, the Court turned to a detailed analysis of the legal literature and cases, domestic and foreign, available on the law of the sea. Even here, however, there was a marked deference to practice, as many of the works cited were written by men with considerable maritime experience. The Supreme Court's analysis in the Paquete Habana demonstrates how a (^1) Prize is a term that is used in admiralty law. Prize refers to equipment, vehicles, vessels, and cargo that is captured during armed conflict. The most common use of prize in the legal sense is the capture of an enemy ship as well as its cargo as a prize of war. In the past, the party that captured would commonly be given a share of the worth of the captured prize.
4. ICJ ADVISORY OPINION ON THE THREAT OF USE OF NUCLEAR
WEAPONS
Relevance- Role of Treaties and Customs used to assess validity of legal principles. Brief Facts - On July 8, 1996, the International Court of Justice (ICJ), popularly known as the World Court, delivered two advisory opinions on separate requests received from the World Health Organization and the General Assembly of the United Nations, respectively, relating to the legality of nuclear weapons under international law. On December 20, 1994, the UN General Assembly requested the ICJ to give an advisory opinion on the question: "Is the threat or use of nuclear weapons in any circumstance permitted under international law?" Discussion- In determining the legality or illegality of the threat or external use of nuclear weapons, the ICJ decided that the most directly relevant applicable law governing the Assembly's question consisted of (1) the provisions of the UN Charter relating to the threat or use of force, (2) the principles and rules of international humanitarian law that form part of the law applicable in armed conflict and the law of neutrality, and (3) any relevant specific treaties on nuclear weapons. In applying this law, the Court considered it imperative to take into account certain unique characteristics of nuclear weapons, in particular their destructive capacity that can cause untold human suffering for generations to come. The ICJ noted that international customary and treaty law do not contain any specific prescription authorizing the threat or use of nuclear weapons or any other weapon in general or in certain circumstances, in particular those of the exercise of legitimate self-defense. Nor, however, is there any principle or rule of international law that would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on a specific authorization. State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorization but is rather formulated in terms of prohibition. The Court examined whether any such prohibition of recourse to nuclear weapons can be found in treaty law. With regard to certain specific treaties dealing with the acquisition, manufacture, possession, deployment and testing of nuclear weapons, the Court noted that these treaties "point to an increasing concern in the international community" with
regard to nuclear weapons, and concluded that they "could therefore be seen as foreshadowing a future general prohibition of the use of such weapons, but they do not constitute such a prohibition by themselves." As to those treaties that address the issue of recourse to nuclear weapons, the Court observed that they "testify to a growing awareness of the need to liberate the community of States and the international public from the dangers resulting from the existence of nuclear weapons," but that these treaties also do not amount to a comprehensive and universal conventional prohibition on the threat or use of nuclear weapons as such. The Court then examined customary international law. First, it determined that the non-use of nuclear weapons does not amount to a customary prohibition, because the world community is profoundly divided on the issue. Second, the Court examined whether certain General Assembly resolutions that deal with nuclear weapons signify the existence of a rule of customary international law prohibiting recourse to nuclear weapons. In the Court's view, although these resolutions are "a clear sign of deep concern regarding the problem of nuclear weapons" and "reveal the desire of a very large section of the international community to take, by a specific and express prohibition of the use of nuclear weapons, a significant step forward along the road to complete nuclear disarmament," they fall short of a customary rule specifically prohibiting the use of nuclear weapons as such. Despite the undisputed applicability of the principles and rules of humanitarian law and of the law of neutrality to nuclear weapons, the ICJ found that the conclusions to be drawn from this applicability were controversial. The Court admitted that, in view of the unique characteristics of nuclear weapons, their use "in fact seems scarcely reconcilable" with the strict requirements dictated by the law applicable in armed conflict. The judges being evenly divided, ICJ President Mohammed Bedjaoui used his casting vote to hold that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict. At the same time, the ICJ held that it did not have a sufficient basis for a definitive conclusion as to whether the use of nuclear weapons would or would not be at variance with the principles and rules of law applicable in armed conflict in an extreme circumstance of self-defense, in which a state's very survival is at stake. Finally, the Court examined the obligation to negotiate in good faith a complete nuclear disarmament,
