The document discusses the sources of international law that the International Court of Justice (ICJ) applies in deciding disputes. There are five main sources according to Article 38(1) of the ICJ Statute: 1) international conventions and treaties, 2) international customs, 3) general principles of law, 4) judicial decisions and writings of publicists, and 5) reason and equity. Treaties can be either law-making or contractual. Customary international law requires consistent state practice and opinio juris. General principles fill gaps where no treaty or custom applies. Judicial decisions and writings are subsidiary sources. The ICJ can decide cases ex aequo et bono if parties agree.
This document discusses the nature and scope of private international law (also known as conflict of laws). It notes that courts sometimes must handle cases with foreign elements, such as parties from different countries or contracts signed in another jurisdiction. In these situations, courts must determine if they have jurisdiction, whether to apply foreign or domestic law, and if/when to recognize foreign judgments. There are no uniform rules on these issues internationally. The document outlines some of the key questions that private international law addresses and notes that uniformity of laws across borders would reduce conflicts but is difficult to achieve in practice.
Role of icj in solving internation disputegagan deep
The International Court of Justice (ICJ) helps resolve international disputes through binding judgments. It is the primary judicial branch of the United Nations, composed of 15 judges elected by the UN General Assembly and Security Council. Only states can bring cases to the ICJ, and its jurisdiction is based on state consent. One example is the 1986 case of Nicaragua v. United States, where the ICJ ruled the US violated international law by supporting Contra rebels against Nicaragua's government. While the decision was binding, the US refused to participate and blocked its enforcement, showing the limited power of the ICJ without state cooperation.
The International Court of Justice has 15 judges elected by the UN General Assembly and Security Council who serve 9-year terms. It has both contentious and advisory jurisdictions. Contentious jurisdiction involves deciding cases between states that consent to the Court's authority, including voluntary, ad hoc, or compulsory types of consent-based jurisdiction. Advisory jurisdiction allows the Court to provide non-binding advisory opinions on legal issues when requested by authorized international bodies.
The document discusses the legal regulation of the use of force under international law. It covers:
1) The law before 1945 permitted the use of force under just war doctrine and states' sovereign rights, though there were attempts to prohibit war through the League of Nations and Kellogg-Briand Pact.
2) After 1945, the UN Charter prohibits the use of force except in self-defense or under UN Security Council authorization. The Nicaragua v. US case established that indirect force and intervention are also prohibited, and that self-defense requires an armed attack and a request from the victim state.
3) There are restrictive and permissive views on interpreting prohibitions on force - the restrictive view
This document discusses the definitions and differences between international law and municipal law. It defines international law as the body of rules considered legally binding by states in their relations with each other. Municipal law refers to the laws applicable within a local government entity. The document also discusses the theories of monism and dualism regarding how international law relates to municipal law, and provides criticisms of each approach.
Pengantar Hukum Internasional - North Sea Continental Shelf CaseMariske Myeke Tampi
The North Sea Continental Shelf case involved a dispute between Germany, Denmark, and the Netherlands over the delimitation of their continental shelf boundaries in the North Sea. The key issues were whether the equidistance principle in Article 6 of the 1958 Continental Shelf Convention should be applied to determine the boundaries, and whether the International Court of Justice had jurisdiction based on the consent of the states involved. The Court ultimately applied the equidistance principle and asserted its jurisdiction based on the consent of Germany, Denmark, and the Netherlands.
Sources of international law (by Advocate Raja Aleem)Raja Aleem
International Law is a rule that has been accepted as such by the "International Community".
The legal process that concerns relations among nations is called international law.
International law is a body of rules that govern relations between states, functioning of international institutions/organizations and rights and duties of individuals.
(There are three International Relationships are governed by “International Law”.)
1)Those between Nations and Nations
2)Those between Nations and persons; and
3)Those between Persons and Persons
Sources of International Law:
The term ‘source’ refers to methods or procedure by which International Law is created.
There are five sources of International law, According to section: 38(1) of the statute of the “International Court of Justice”. These are:
1.International Conventions or called “Treaties”
2.International Customs
3.General Principles of Law recognized by Civilized Nations
4.Decisions of Judicial and Arbitral Tribunals; and
5.Juristic Works or called “Writing of Eminent Jurists”
This document discusses the history and process of codifying international law. It outlines key events and efforts over time to systematically organize international legal rules and principles into written codes and agreements. Some of the major developments mentioned include the Hague Conferences of 1899 and 1907 which resulted in the first international conventions, the work of the League of Nations and United Nations to further codification, and important conventions on topics like the law of the sea, diplomatic relations, and treaties. Both benefits and challenges of the codification process are also reviewed.
The document discusses the sources of international law as outlined in Article 38 of the Statute of the International Court of Justice. The four main sources are: 1) international conventions and treaties, 2) international customs, 3) general principles of law, and 4) judicial decisions and writings of publicists. Treaties can be either law-making or contractual. Customary international law requires consistent state practice and opinio juris. General principles fill gaps where no positive laws exist. Judicial decisions and writings are considered subsidiary sources.
Settlement of international disputes (International Law) Amicable(Rajat Vaish...R V
Types of Settlement of dispute negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement
The methods of peaceful settlement of disputes fall into three categories:
1.) Diplomatic Method
2.) Adjudicative Method
3.) Instituional Method
The document discusses the concept of recognition in international law. It defines recognition as the acknowledgement by members of the international community that a new state has acquired international personality. There are two main theories of recognition: the constitutive theory, which holds that recognition is what grants statehood, and the declarative theory, which argues that statehood exists prior to recognition. The document also discusses recognition of governments, belligerency, and insurgency, as well as the differences between de facto and de jure recognition of states.
The concept of Marriage under Private International Lawcarolineelias239
Marriage is a broad concept under Private international law. Many new rules had been laid down in various decisions, which had developed the international matrimonial law. The relevancy of monogamous or polygamous marriages. And the validity matters like formal validity and essential validity is also discussed here
2) international law and the use of force by statesilyana iskandar
This document provides notes on international law regarding the use of force by states. It discusses the prohibition on the use of force under the UN Charter and customary international law, with limited exceptions for self-defense and UN-authorized actions. It examines key cases like Nicaragua v. US that helped establish the restrictive interpretation of self-defense. While unilateral humanitarian intervention is generally prohibited, collective action authorized by the UN Security Council under Chapter VII is allowed. The principles of non-intervention and necessity/proportionality in self-defense are also summarized.
Extradition refers to the delivery of a person suspected or convicted of a crime by the state they have fled to, to the state that has jurisdiction over them. Generally, states have jurisdiction over people within their territory, but sometimes criminals flee to other countries, preventing justice. To address this, states adopt extradition agreements to hand suspected criminals back to the affected state. However, extradition is subject to several restrictions, including requiring a formal extradition treaty between the states, not extraditing people for political or religious crimes, requiring sufficient evidence of criminal acts, and only prosecuting extradited individuals for the crimes specified in the extradition request. In conclusion, while extradition is important for administering justice, it is
International law recognizes several subjects that possess international legal personality:
1. States are the primary subjects of international law. The criteria for statehood under international law are a defined territory, permanent population, government, and capacity to enter into relations with other states.
2. International organizations like the UN have also been recognized as having international legal personality, though to a limited extent compared to states. They can enter into treaties, have privileges and immunities, and bring international claims.
3. Individuals can be subject to certain obligations under international criminal law for crimes like genocide, war crimes, and crimes against humanity. However, individuals generally do not have standing to access international courts directly.
The Republic of Nicaragua brought a case against the United States to the International Court of Justice (ICJ) regarding US actions against Nicaragua from 1981-1984. The ICJ found that it had jurisdiction and the case was admissible. It determined that the US had violated international law through actions including training/arming rebel groups in Nicaragua, mining Nicaraguan ports, attacks on Nicaraguan territory, and failing to ensure humane treatment of rebel forces. The court rejected the US claim of collective self-defense and ruled the US must cease its actions and make reparations to Nicaragua.
This document discusses the sources of public international law according to the Statute of the International Court of Justice. It covers customary international law and its elements of state practice and opinio juris. It also discusses general principles of law, judicial decisions, treaties, persistent objectors, regional custom, and jus cogens norms.
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1) The Paquete Habana case established that customary international law exempts commercial fishing vessels from being captured as prizes of war. The US Supreme Court examined state practice, repetition over time, and opinio juris to determine this was a customary rule.
2) The North Sea Continental Shelf cases set a dual requirement for customary international law - widespread representative participation and uniform practice, demonstrating general recognition of a legal obligation. While duration is not strictly necessary, generality and consistency are required.
3) The ICJ ruled the equidistance method for delimiting continental shelf boundaries had not met the requirements to be considered customary international law binding on Germany, Denmark, and the Netherlands in this dispute.
The document discusses the various sources of international law, including treaties, customary international law, general principles of law, and subsidiary means for determining rules of law such as judicial decisions and scholarly works. It notes that international treaties are considered the most important primary source, as they reflect agreements between states. It also examines what constitutes customary international law and how judicial decisions can help clarify and develop international legal principles, despite not being binding precedents. The document provides examples to illustrate many of these different sources of international law.
1. The document summarizes a discussion on the UK House of Lords decision in the Jones v. Saudi Arabia case regarding state immunity.
2. The Lords upheld state immunity and immunity for individual state officials for torture committed outside the UK, finding no conflict between immunity rules and international rules prohibiting torture.
3. The Lords rejected arguments that universal civil jurisdiction over torture is required by international law in the same way as universal criminal jurisdiction.
This document provides an overview of public international law, including definitions, the distinction between international law and national legal systems, theories of international law, and methods of enforcement.
The key points covered are:
1) International law governs relations between states and other international actors, and is decentralized with no central authority, in contrast to national legal systems.
2) There are various theories regarding whether international law can truly be considered law due to its lack of centralized institutions and enforcement mechanisms.
3) Methods of enforcing international law include self-help measures such as retorsion and reprisals between states.
This document discusses the sources of international law as outlined in Article 38 of the Statute of the International Court of Justice. It identifies the primary sources as international conventions, international custom, and general principles of law recognized by civilized nations. Treaties are considered the most important mode of developing international law. Customary international law requires consistent state practice and opinio juris. General principles of law are derived from common legal principles found in national legal systems. Judicial decisions and scholarly works are secondary sources used to determine rules of international law.
392655474-Ppt.not the latest one but stillSecretSecret44
Public International Law outlines key concepts in international law. It discusses the principles of par in parem non habet imperium, which means that all states are equal regardless of size or status, and pacta sunt servanda, which means that states must comply with treaties in good faith. Public international law applies to sovereign states and other international entities. It is distinguished from private international law, which deals with conflicts between domestic laws involving foreign elements. International law can become part of domestic law through the doctrines of incorporation or transformation. Primary sources of international law include treaties, customary international law, and general principles of law recognized by civilized nations.
Relation between international law and municipal lawVishvendu pandey
This document discusses the debate between dualists and monists regarding the relationship between international law and municipal law. Dualists believe that municipal law prevails in cases of conflict, while monists believe international law prevails. While the disputants may not differ greatly in practical solutions, they differ in their underlying theories. Some arguments made are that international law is not a fully developed legal system, that it depends on state consent, and that states are sovereign over individuals under municipal law. However, the document also notes that states do not typically claim exemption from international law or assert the primacy of municipal law in diplomatic discussions.
This document discusses private international law and conflict of laws. It begins by explaining the differences between domicile and residence, and between international law and national law. It then discusses public international law, private international law, and supranational law. The document presents several case studies and questions about them to illustrate conflict of laws issues. It explains key concepts in private international law like jurisdiction, choice of law, and recognition and enforcement of foreign judgments. It also discusses areas of law that involve conflict of laws, the stages in a conflict case, and examples of choice of law rules.
This document provides an overview of international law and the international legal system. It defines international law and outlines the main legal persons under international law, including states, international organizations, and individuals. It also discusses key principles of international law such as state sovereignty over territory and the sources of international law obligations.
International humanitarian law (IHL) has its origins in the 19th century but is based on older principles of mitigating human suffering during armed conflict. IHL is derived from both historical sources like the 1864 Geneva Convention and 1907 Hague Regulations, as well as modern treaties like the 1949 Geneva Conventions and 1977 Additional Protocols. These sources aim to balance military necessity with humanitarian protections for civilians and combatants. IHL also includes customary international law derived from widespread and consistent state practice followed out of a sense of legal obligation.
Contracts under private international law is governed by different principles and maxims. This slide gives you an idea about it and included all relevant case laws.
This document provides an overview of international law and the international legal system. It defines international law as the rules governing states and international organizations in their relations with each other and private actors. The key entities under international law are states, international organizations, and individuals through their nationality. States are sovereign over a defined territory and population. International organizations have limited international legal personality as conferred by their founding documents. Customary international law and treaties are the primary sources of international law. Jurisdiction is based primarily on territoriality but states also claim jurisdiction over their nationals abroad and for some universal crimes.
Maintenance is known as Nafaqa and included Food, Cloth and Residence and it have been pointed out that it should include expenditure education of children.
Primary obligation of maintenance arises out of marriage- wife and children
Muslim man is bound to maintain his wife as long as she is faithful to him and obeys his reasonable orders.
No maintenance in irregular marriages and after divorce but in context of divorce SC have laid down decisions.
The document discusses succession and inheritance under the Hindu Succession Act of 1956. Some key points:
- The Act provides a uniform system of inheritance for Hindus, Buddhists, Jains and Sikhs. It abolishes the limited estate of Hindu women and gives them absolute rights over property.
- For intestate succession (without a will), the property of a male Hindu devolves to Class I heirs (relatives like sons/daughters) then Class II heirs like father. Failing which it goes to agnates (by blood) and then cognates.
- For females, the property devolves to sons/daughters and husband. The 2005 amendment allows daughters equal rights in
The PowerPoint presentation is uploaded on behalf of Moot Court Association, Faculty of Law, Swami Vivekanand Subharti University. It will help the law students immensely in preparation of Memorials for either Moot Court Competitions or Internal assessment.
Fundamental Duties are enshrined under Part IV A of the Constitution of India. The duties though not justifiable but are integral to constitutional spirit.
This document provides an overview of the contracts of bailment and pledge under Indian law. It defines bailment and pledge, distinguishes between the two, and outlines their essential elements. Bailment involves the delivery of goods for a specific purpose, while pledge is a type of bailment where goods are delivered as security for a debt. The document discusses the duties of bailors and bailees, as well as the rights of each party. It also covers related topics like finders of lost goods and provides illustrations of bailment and pledge.
Concept of state, recognition and jurisdictionShivani Sharma
The slides discuss in detail the concept of State, State Recognition and Jurisdiction under International Law. Useful for Law Students and professionals.
The slides discuss in detail the concept of Restitution of Conjugal Rights in Hindu, Muslim, Christian, and Parsi laws. Useful for Law Students and professionals.
The slides discuss in detail the concept of Judicial Separation in Hindu, Muslim, Christian, and Parsi laws.
Useful for Law Students and professionals.
The slides introduce the meaning, nature, and scope of marriage in Hindu, Muslim, Christian, and Parsi laws.
Useful for Law Students and professionals.
Useful for Law Students and professionals.
India, most popularly acknowledged as the land of spiritual beliefs, philosophical thinking, culture, has also been the birthplace of quite a few number of religions out of which some of them exist in this era as well.
‘Religion’ is entirely a matter of choice, perception and belief.
People in this country have a strong faith and dependence when it comes to their religion as they perceive that religion adds meaning and reason to their lives.
When it comes to people who are extremely devoted to their religion, they leave no stone unturned in showing a substantial amount of fidelity towards their respective religion.
In the context of the Constitution of India, P.B. Gajendragadkar, former Chief Justice of India, said:
“The concept of social justice is (thus) a revolutionary concept which gives meaning and significance to the democratic way of life and makes the rule of law dynamic. It is this concept of social justice which creates in the minds of the masses of this country a sense of participation in the glory of India’s political freedom”
He further adds,
“Social justice must be achieved by adopting necessary and reasonable measures with courage, wisdom, foresight, sense of balance and fairplay to all the interests concerned. That shortly stated, is the concept of social justice and its implications. If eternal vigilance is the price for national liberty, it is equally the price for sustaining individual freedom and liberty in welfare state”. Now but us discuss various theories of social justice.
The citizens of India are guaranteed certain basic fundamental rights by the state, which cannot be taken away from them except in cases of procedure established by law.
Such a guarantee is instrumental in reducing the arbitrariness of government legislation.
In the absence of fundamental rights, the citizens may not be entitled to any basic human rights.
Thus to prevent this, the constitution-makers incorporated Part III of the Indian Constitution enumerating a list of rights that is to assured by the state.
This document discusses the right against exploitation and cultural and educational rights under Articles 23-24 and 29-30 of the Indian Constitution. It provides an overview of the key provisions, including a prohibition on trafficking and forced labor (Article 23), a ban on child labor (Article 24), protections for minority languages, scripts and cultures (Article 29), and the right of minorities to establish and administer their own educational institutions (Article 30). It also summarizes several important court cases related to these rights and discusses debates around the definition of minorities in India.
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An example of a petition written pro-se by the victim to defend against delusional false accusation by an abuser.
Writ of Certiorari written by an autistic defendant who is a victim of harassment and was falsely accused by her very own abuser.
Individuals with autism has difficulties in communicating, and this gives plenty of advantages for abusers because autistic individuals are naive and not able to defend themselves due to communication issues. The abuser in this case happens to be a school principal who bullies and harasses disabled students and parents on regular basis, but she is able to walk away free because of her craftiness and her exceptional abilities to lie. She is a pathological liar and she is able to deceive law enforcement and the court. This document describes the truth and the ordeal that one of her victims had to go through without being able to get help because the abuser was able to manipulate a large number of people. This document also shows how the current justice system fails to accommodate disabilities especially autism spectrum disorders. Despite a campaign by Pennsylvania Supreme Court to enable autistic individuals to access justice, the courts in Pennsylvania, including the Supreme Court itself is still far far away from understanding Autism. Autistic people have to suffer in silence, and many of them are victims of abuse but they are not able to defend themselves. This explains why suicide rates amongst autistic populations are extremely high.
Introduction
FIU IND, short for Financial Intelligence Unit - India, is an agency responsible for receiving, analyzing, and disseminating information relating to suspicious financial transactions. It plays a crucial role in combating money laundering and terrorist financing. FIU registration is mandatory for certain financial entities to ensure they comply with the legal requirements and contribute to the integrity of the financial system.
Golden Rule of Interpretation by Puja Dwivedilegalpuja22
introduction to the Golden Rule of Interpretation
Definition and Origin:
The Golden Rule of Interpretation is a guiding principle utilized in legal systems worldwide to decipher and implement laws justly and reasonably.
Its roots trace back to ancient legal philosophies, notably derived from the Latin maxim "interpretatio cessat in claris," meaning interpretation ceases when the meaning is clear.
Purpose and Function:
The primary objective of the Golden Rule is to empower judges and legal interpreters to depart from the literal interpretation of statutes when adherence to such interpretations would lead to absurd, unjust, or unreasonable outcomes.
Unlike the strict adherence to the literal meaning prescribed by the Literal Rule, the Golden Rule allows for flexibility in interpretation, ensuring the law's application aligns with the broader principles of justice and fairness.
Evolution and Adaptation:
Over time, the Golden Rule has evolved to meet the changing needs and societal values of legal systems. It adapts to modern contexts, technological advancements, and evolving understandings of justice.
Its application varies across different legal jurisdictions but remains a fundamental tool in statutory interpretation worldwide.
Literal Rule vs. Golden Rule
Literal Rule:
The Literal Rule is a traditional approach to statutory interpretation that mandates strict adherence to the plain and literal meaning of the words used in a statute.
Under this rule, judges are expected to interpret legislation based solely on the language's explicit wording, without considering underlying intentions, societal implications, or potential absurdities that may arise from a literal interpretation.
Golden Rule:
In contrast, the Golden Rule of Interpretation provides judges with the discretion to depart from the literal meaning of statutes when necessary to avoid absurd or unjust outcomes.
It serves as a balancing mechanism, allowing courts to interpret laws in a manner that aligns with broader principles of justice, fairness, and legislative intent.
While the Literal Rule focuses solely on textual analysis, the Golden Rule recognizes the need for flexibility and adaptability in legal interpretation, particularly in complex or ambiguous situations.
Illustrative Example:
Case Law Example: State of Madhya Pradesh v. Azad Bharat Financial Company (1967)
This case exemplifies the application of the Golden Rule, where the literal interpretation of the Opium Act of 1878 would have led to the unjust confiscation of a vehicle due to the presence of contraband.
By applying the Golden Rule, the court interpreted the statute in a manner that prevented injustice, highlighting the rule's essential role in safeguarding fairness and equity in legal proceedings.
HARMONIOUS CONSTRUCTION RULE by Puja Dwivedilegalpuja22
INTRODUCTION TO HARMONIOUS CONSTRUCTION RULE:-
Harmonious construction is a principle of statutory interpretation aimed at reconciling conflicting provisions within a legal framework.
It involves interpreting statutes in a manner that avoids inconsistencies and gives effect to the overall legislative intent.
This rule is pivotal in resolving legal disputes where different laws or constitutional provisions appear to conflict.
PRINCIPLES OF HARMONIOUS CONSTRUCTION RULE:-
Interpret statutes to avoid conflicts and give effect to legislative intent.
Maintain consistency within legal frameworks.
Balance conflicting provisions while upholding constitutional values.
ROLE OF JUDICIARY IN HARMONIOUS CONSTRUCTION:-
Judiciary acts as a mediator in resolving legal conflicts.
Courts ensure harmonious interpretation of laws to uphold justice.
Judicial decisions establish precedents for future legal disputes.
CASE LAWS :-
Venkataramana Devaru v. State of Mysore (1957)
Citation:
Venkataramana Devaru v. State of Mysore, 1957 (AIR 1958 Mys 38)
Fact:
Trustees of Sri Venkataramana Temple filed a suit under Section 92 of CPC regarding the exclusion of Harijans from the temple after the enactment of the Madras Temple Entry Authorization Act (Madras V of 1947).
The temple trustees claimed that the temple was private and exclusively meant for Gowda Saraswath Brahmins, hence exempt from the Madras Act.
Issue:
Whether the Madras Temple Entry Authorization Act applied to Sri Venkataramana Temple despite the trustees' claim of its private nature.
Whether Section 3 of the Madras Act violated Article 26(b) of the Indian Constitution, which protects the rights of religious denominations.
Judgment:
The High Court of Madras ruled that while the public could worship in the temple, the trustees had the right to exclude the general public during certain ceremonies reserved for Gowda Saraswath Brahmins.
The Supreme Court clarified that the Madras Act applied to Sri Venkataramana Temple and harmonized Articles 25(2)(b) and 26(b) of the Constitution to uphold the Act's validity, ensuring access to the temple for all classes of Hindus.
K.M. Nanavati v. State of Maharashtra (1961)
Citation:
K.M. Nanavati v. The State of Maharashtra, 1961 (AIR 1962 SC 605)
Fact:
Naval Commander K.M. Nanavati was accused of murdering his wife's secret lover, Prem Ahuja.
Nanavati was tried under IPC Sections 302 and 304, and a special jury acquitted him.
Issue:
Whether the decision of the special jury acquitting Nanavati was logical given the evidence of the case.
Whether the suspension order by the Governor under Article 161 of the Constitution could be applied while the case was sub-judice.
Judgment:
The High Court of Bombay overturned the jury's decision, holding Nanavati guilty of murder based on the circumstances of the case.
The Supreme Court ruled that Article 161's suspension power couldn't be exercised while the case was pending before the judiciary, emphasizing the importance of harm
Legal Reforms of Jayasthiti Malla in Nepalese History.pptxAsmeeta4
Jayasthiti Malla was one of the prominent Malla King in the history of Nepal. He has made a great contribution in the legal history of Nepal through formulation of Manabnyashastra, a comprehensive legal document.
Literal or Grammatical Rule of Interpretation.pdflegalpuja22
Introduction
The literal or grammatical rule of interpretation is the foremost principle in deciphering statutory language within the realm of legal interpretation.
It emphasizes the importance of interpreting words in their natural or ordinary meaning, without delving into legislative intent or potential consequences.
By prioritizing the text itself, this rule aims to uphold the integrity of legislative language and ensure consistency in legal application.
The literal rule serves as a foundational pillar in statutory construction, providing a solid framework for judicial decision-making.
While offering clarity and predictability, it requires a nuanced approach to balance textual fidelity with broader legislative intent, thus ensuring just outcomes in legal proceedings.
First rule of interpretation.
Interprets words in their natural or ordinary meaning.
Emphasizes natural or ordinary meaning of words.
Legislature's intention deduced from language used.
Court's duty to give effect if language clear, regardless of consequences.
Basic Principle
Words interpreted according to grammar rules.
Legislature's intention expressed through words.
Safest rule of interpretation.
Duty of the Court
Court's duty is to give effect if language is plain.
No consideration of consequences.
Legislature's responsibility for any harsh consequences.
Case Law:
Maqbool Hussain v. State of Bombay (AIR 1953 SC 325)
Appellant found with undeclared gold.
Charged under Sea Customs Act and Foreign Exchange Regulations Act.
Challenged trial under Article 20(2) of Indian Constitution (double jeopardy).
Court held trial valid as appellant not previously prosecuted.
Manmohan Das versus Bishan Das (AIR 1967 SC 643)
Interpretation of U.P Control of Rent and Eviction Act, 1947.
Tenant liable for alterations diminishing property value.
Appellant argued 'or' should be read as 'land'.
Court applied literal interpretation, ruled against appellant.
State of Kerala v. Mathai Verghese and others (1987 AIR 33 SCR(1) 317)
Accused charged with possession of counterfeit currency.
Contention: Sections 498A and 498B of IPC apply only to Indian currency.
Court held 'currency notes' not prefixed, upheld charge.
Advantages of Literal Rule
Provides certainty and predictability.
Reflects legislative intent accurately.
Upholds rule of law.
Criticisms of Literal Rule
Ignores legislative purpose or intent behind words.
May lead to absurd or unjust outcomes.
Limits judicial discretion.
Application of Literal Rule
Commonly used in statutory interpretation.
Guides judges in understanding legislative intent.
Ensures consistency in legal decisions.
Practical Examples of Literal Rule Application
Tax laws: Interpreting tax code provisions
Penal laws: Interpreting penal code provisions.
Petition for Allowance of Appeal Revision.pdfalmondtree2525
A petition for justice. The witness provided false delusional testimony. The court made several errors which include denying witness to testify. The abuser has relationship with the court. The victim is disabled and can't defend herself due to communication disability.
2. INTRODUCTION
The “sources” of International Law are always confused with the “causes” or “factors”
which influence the development of International law.
Oppenheim remarks the difference between the two by an analogy of a spring and
a well:
“The source of spring is to be traced to the spot on the ground wherefrom the stream
of water rises naturally. It is common knowledge that the source of the spring by
which we understand as the spot on the ground wherefrom the stream water gushes
cannot be equated with the cause for the existence of the stream of water”
The rules of international law do not arise from a spot on the ground as water does,
but from facts in the historical development of community. Source of law is, therefore,
the name for a historical fact out of which the rules of conduct come into existence.
3. The sources of international law is two fold:
EXPRESS CONSENT- ARISES BY STATES CONCLUDING
TREATIES OR CONVENTIONS BY STIPULATING RULES
TACIT CONSENT- WHICH GIVES RISE TO INTERNATIONAL
CUSTOMARY LAW BY STATES ADHERING TO CERTAIN
RULES OF INTERNATIONAL CONDUCT WITHOUT ANY
FORMAL DECLARATION
5. SOURCES UNDER ICJ STATUTE
Article 38 (1) of the ICJ’s statute identifies three sources of
international law:
treaties, conventions
judicial decisions and
custom,
general principles.
Because the system of international law is horizontal and
decentralized, the creation of international laws is inevitably
more complicated than the creation of laws in domestic
systems.
Express
Tacit
7. ARTICLE-38, ICJ
1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.
11. Article 38 (1) of the Statute of the International Court of
Justice (ICJ) is considered as an authoritative statement on
sources of international law.
The ICJ is requested to form its opinion based on customary
international law evidenced by “general practice accepted as
law”.
This sets out the two essential components necessary to
form customary international law, which the Court
interpreted as
1. State practice and
2. opinio juris.
12. ELEMENTS OF CUSTOMARY INTERNATIONAL LAW
Article-38(1)(b)-
Customary
International Law
General/State
Practice
(Objective
element)
Consistent/
Uniformity
Generality
Duration
As accepted as
law
(Subjective
element)
Opinio juris
(Obliged to act)
13. OBJECTIVE ELEMENT
The existence of State practice.
In other words, the actions or
omissions by the State must support
the custom; and
widespread and representative
participation, including States whose
interests were specially affected (i.e.
generality); and
virtually uniform practice (i.e.
consistent and uniform usage)
undertaken in a manner that
demonstrates;
Duration
SUBJECTIVE ELEMENT
Acceptance as law.
In other words, States when
performing a custom must do
so because they feel that
they are legally bound to
perform the custom. We call
this opinio juris.
14. NORTH SEA CONTINENTAL SHELF CASE
(GERMANY VS DENMARK AND NETHERLANDS)
• Facts - Netherlands and Denmark had drawn partial
boundary lines based on the equidistance principle
(A-B and C-D).
• An agreement on further prolongation of the
boundary proved difficult because Denmark and
Netherlands wanted this prolongation to take place
based on the equidistance principle (B-E and D-E)
where as Germany was of the view that, together,
these two boundaries would produce an inequitable
result for her.
• Germany stated that due to its concave coastline,
such a line would result in her loosing out on her
share of the continental shelf based on
proportionality to the length of its North Sea
coastline.
Denmark
Germany
17. Issue - Is Germany under a legal obligation to accept
the equidistance-special circumstances principle,
contained in Article 6 of the Geneva Convention on the
Continental Shelf of 1958, either as a customary
international law rule or on the basis of the Geneva
Convention?
The Court had to decide the principles and rules of
international law applicable to this delimitation. In
so, the Court had to decide if the principles espoused
the parties were binding on the parties either through
treaty law or customary international law.
Decision - The use of the equidistance method had not
crystallized into customary law and the method was
obligatory for the delimitation of the areas in the North
Sea related to the present proceedings.
18. Relevant Finding - In the North Sea Continental Shelf Cases, the ICJ
held that in order to argue that a customary rule has emerged one
needed to prove:
(1) The objective element (State practice).
In other words:
a. widespread and representative participation, including States
whose interests were specially affected (i.e. generality); and
b. virtually uniform practice (i.e. consistent and uniform usage)
undertaken in a manner that demonstrates;
(2) a general recognition of the rule of law or legal obligation
(i.e. opinio juris).
In the North Sea Continental Shelf Cases the ICJ held that the passage
of a considerable period of time was unnecessary (i.e. duration) to
form a customary law.
19. NICARGUA VS USA CASE
• Facts - In July 1979, the Government of President
Somoza was replaced by a government installed
by Frente Sandinista de
Liberacion Nacional (FSLN).
• The US – initially supportive of the new
government – changed its attitude when,
according to the United States, it found that
Nicaragua was providing logistical support and
weapons to guerrillas in El Salvador.
• In April 1981 the United States stopped its aid to
Nicaragua and Nicaragua also alleged that the
United States is effectively in control of
the contras (rebels), and some attacks against
Nicaragua were carried out, directly, by the United
States military – with the aim to overthrow the
Government of Nicaragua.
20. Questions before the Court:
Did the United States violate its customary international law obligation not to
intervene in the affairs of another State, when it trained, armed, equipped, and
financed the contra forces or when it encouraged, supported, and aided the military
and paramilitary activities against Nicaragua?
Did the United States violate its customary international law obligation not to use
force against another State, when it directly attacked Nicaragua in 1983 and 1984
and when its activities in point (1) above resulted in the use of force?
Can the military and paramilitary activities that the United States undertook in and
against Nicaragua be justified as collective self-defence?
The Court’s Decision:
The United States violated customary international law in relation to (1), (2), (4) and
(5) above. On (3), the Court found that the United States could not rely on collective
self-defence to justify its use of force against Nicaragua.
21. Relevant Finding - On State practice,
the jurisprudence of the Nicaragua
case contained several important clarifications in
respect of inconsistent State practice (para 186).
The ICJ held that:
1. For a customary rule to come into force, it is
not necessary to have complete
consistency in State practice in respect of
the rule.
2. Inconsistent State practice does not affect
the formation or existence of a customary
principle so long as the inconsistency is
justified by the State as a breach of the rule.
3. This attempt at justifying a violation would
only make the rule’s customary law nature
stronger.
22. BARCELONA TRACTION CASE
Facts - Barcelona Traction, Light and Power Company,
Limited (BTLPC) was incorporated in Toronto, Canada in
1911 for the purpose of creating and developing an
electric power production and distribution system in
Catalonia, Spain.
In 1936, the Spanish government suspended the BTLPC
bonds, issued principally in Sterling, on account of the
civil war in Spain. After the war the Spanish exchange
control authorities refused to authorize the transfer of
the foreign currency necessary for the resumption of the
servicing of the Sterling bonds.
Thereafter in 1948, by an order of the court of Reus, the
company was adjudged bankrupt. The Belgian
government filed an application in 1962 claiming
reparation for the losses suffered by the Belgian
shareholders of the company as a result of the acts
committed contrary to the international law by various
organs of the Spanish State.
23. On the other hand, the Spanish State contended that the claims of Belgium were
inadmissible and unfounded. The Spanish State put forward four preliminary
objections out of which the first and second objections were rejected by the court
and the third and fourth were joined to the merits.
The first and second preliminary objections were to the effect that the discontinuance
of the previous proceedings by Belgium precluded it from instituting the present
proceedings and that the court did not have the jurisdiction to adjudicate upon the
Belgian claims.
The third preliminary objection submitted by Spain was that the Belgian government
lacked the capacity to submit any claims in respect of wrongs done to a Canadian
company even if the shareholders were Belgian. In other words, the Belgian
government did not have the jus standi. The fourth preliminary objection raised by
the Spanish government was to the effect that the local remedies available in Spain
were no exhausted.
24. Issues
The researcher will be dealing with the issues that arose out of the second phase of the judgment:
1. Does Belgium have the Jus standi to exercise diplomatic protection of shareholders in a Canadian
company?
2. Does Belgium have the right and jurisdiction to bring Spain to court for the actions of a Canadian
company?
Judgment
The Court took cognizance of the great amount of documentary and other evidence submitted by the
Parties and fully appreciated the importance of the legal problems raised by the allegation which was at
the root of the Belgian claim and which concerned denials of justice allegedly committed by organs of
the Spanish State. However, the possession by the Belgian Government of a right of protection was a
prerequisite for the examination of such problems. Since no jus standi before the Court had been
established, it was not for the Court to pronounce upon any other aspect of the case.
Accordingly, the Court rejected the Belgian Government’s claim by 15 votes to 1, 12 votes of the
majority being based on the reasons set out above.
25. Ammouri J referring to State Practice “as manifested
within international organizations and conferences”,
observes that it would not be possible to deny,
regard to the resolutions which emerge therefrom,
or better, with regard to the votes expressed therein
in the name of states, that these amount to
precedents contributing to the formation of
customs.
26. S.S. LOTUS (FRANCE VS TURKEY)
• Facts - A collision occurred on the high seas
between a French vessel – Lotus – and a
Turkish vessel – Boz-Kourt. The Boz-Kourt sank
and killed eight Turkish nationals on board the
Turkish vessel.
• The 10 survivors of the Boz-Kourt (including its
captain) were taken to Turkey on board the
Lotus. In Turkey, the officer on watch of the
Lotus (Demons), and the captain of the Turkish
ship were charged with manslaughter.
• Demons, a French national, was sentenced to
80 days of imprisonment and a fine.
• The French government protested, demanding
the release of Demons or the transfer of his
case to the French Courts.
• Turkey and France agreed to refer this dispute
on the jurisdiction to the Permanent Court of
International Justice (PCIJ).
27. Issue - Did Turkey violate international law when Turkish courts exercised
jurisdiction over a crime committed by a French national, outside Turkey? If
yes, should Turkey pay compensation to France?
The Court’s Decision -Turkey, by instituting criminal proceedings against
Demons, did not violate international law.
The first principle of the Lotus Case: A State cannot exercise its
jurisdiction outside its territory unless an international treaty or customary
law permits it to do so. This is what we called the first principle of the Lotus
Case.
The second principle of the Lotus Case: Within its territory, a State may
exercise its jurisdiction, in any matter, even if there is no specific rule of
international law permitting it to do so. In these instances, States have a
measure of discretion, which is only limited by the prohibitive rules of
international law.
28. The Court held that a ship in the high seas is assimilated to the
territory of the flag State. This State may exercise its jurisdiction
over the ship, in the same way as it exercises its jurisdiction over its
land, to the exclusion of all other States. In this case, the Court
equated the Turkish vessel to Turkish territory. The Court held that
the “… offence produced its effects on the Turkish vessel and
consequently in a place assimilated to Turkish territory in which the
application of Turkish criminal law cannot be challenged, even in
regard to offences committed there by foreigners.” The Court
concluded that Turkey had jurisdiction over this case.
The judgment was criticized.
29. ASYLUM CASE (COLUMBIA VS PERU)
Peru issued an arrest warrant against Victor Raul Haya de la
Torre “in respect of the crime of military rebellion” which
took place on October 3, 1949, in Peru.
3 months after the rebellion, Torre fled to the Colombian
Embassy in Lima, Peru.
The Colombian Ambassador confirmed that Torre was
granted diplomatic asylum in accordance with Article 2(2) of
the Havana Convention on Asylum of 1928 and requested
safe passage for Torre to leave Peru.
Subsequently, the Ambassador also stated Colombia had
qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of 1933
(note the term refugee is not the same as the Refugee
Convention of 1951).
Peru refused to accept the unilateral qualification and
refused to grant safe passage.
30. Questions before the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify
offence for the purpose of asylum under treaty law and international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of
safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928
(hereinafter called the Havana Convention) when it granted asylum and is
maintenance of asylum a violation of the treaty?
The court held that the burden of proof on the existence of an alleged customary
law rests with the party making the allegation:
“The Party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other Party… (that) it
in accordance with a (1) constant and uniform usage (2) practiced by the States in
question, and that this usage is (3) the expression of a right appertaining to the State
granting asylum (Colombia) and (4) a duty incumbent on the territorial State (in this
case, Peru). This follows from Article 38 of the Statute of the Court, which refers to
international custom “as evidence of a general practice accepted as law(text in
added).”
31. 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 (see also Mendelson, 1948 and see also Nicaragua case, p. 98,
the legal impact of fluctuations of State practice).
The court also reiterated that the fact that a particular State practice was
followed because of political expediency and not because of a belief that the
said practice is binding on the State by way of a legal obligation (opinio juris)
is detrimental to the formation of a customary law.
The court concluded that Colombia, as the State granting asylum, is not
competent to qualify the offence by a unilateral and definitive decision,
binding on Peru.
33. INTRODUCTION
Treaties are known by a variety of terms—conventions, agreements, pacts,
general acts, charters, and covenants—all of which signify written
instruments in which the participants agree to be bound by the negotiated
terms.
Some agreements are governed by municipal law (e.g., commercial accords
between states and international enterprises), in which case international law
is inapplicable. Informal, nonbinding political statements or declarations are
excluded from the category of treaties.
Treaties may be bilateral or multilateral. Treaties with a number of parties are
more likely to have international significance, though many of the most
important treaties have been bilateral.
35. A number of contemporary treaties, such as
the Geneva Conventions (1949) and the Law
of the Sea treaty (1982); have more than 150
parties to them, reflecting both their
importance and the evolution of the treaty
as a method of general legislation in
international law.
Other significant treaties include the
Convention on the Prevention and
Punishment of the Crime of Genocide (1948),
the Vienna Convention on Diplomatic
Relations (1961), the Antarctic Treaty (1959),
and the Rome Statute establishing
the International Criminal Court (1998).
36. Whereas some treaties create international organizations and
provide their constitutions (e.g., the UN Charter of 1945)
Countries that do not sign and ratify a treaty are not bound by its
provisions.
Nevertheless, treaty provisions may form the basis of an
international custom in certain circumstances, provided that the
provision in question is capable of such generalization or is “of a
fundamentally norm-creating character,” as the ICJ termed the
process in the North Sea Continental Shelf cases (1969).
37. PACTA SUNT SERVANDA
A treaty is based on the consent of the parties
to it, is binding, and must be executed in good
faith.
The concept known by the Latin formula pacta
sunt servanda (“agreements must be kept”) is
arguably the oldest principle of international
law.
Without such a rule, no international
agreement would be binding or enforceable.
Pacta sunt servanda is directly referred to in
many international agreements governing
treaties, including the Vienna Convention on
the Law of Treaties (1969).
38. FORMATION OF A TREATY
There is no prescribed form or procedure for making or concluding
treaties.
They may be drafted between heads of state or between government
departments.
The most crucial element in the conclusion of a treaty is the signaling
of the state’s consent, which may be done by signature, an exchange
of instruments, ratification, or accession.
Ratification is the usual method of declaring consent—unless the
agreement is a low-level one, in which case a signature is usually
sufficient. Ratification procedures vary, depending on the country’s
constitutional structure.
39. Treaties may allow signatories to opt out of a particular provision,
a tactic that enables countries that accept the basic principles of a
treaty to become a party to it even though they may have
concerns about peripheral issues.
These concerns are referred to as “reservations,” which are
distinguished from interpretative declarations, which have no
binding effect.
States may make reservations to a treaty where the treaty does
not prevent doing so and provided that the reservation is not
incompatible with the treaty’s object and purpose.
RESERVATIONS IN TREATY
40. Other states may accept or object to such reservations.
In the former case, the treaty as modified by the terms of the
reservations comes into force between the states concerned.
In the latter case, the treaty comes into force between the
states concerned except for the provisions to which the
reservations relate and to the extent of the reservations.
An obvious defect of this system is that each government
determines whether the reservations are permissible, and
there can be disagreement regarding the legal consequences
if a reservation is deemed impermissible.
41. TERMINATION OF TREATY
• A treaty may be terminated or
suspended in accordance with one
of its provisions (if any exist) or by
the consent of the parties.
• If neither is the case, other
provisions may become relevant.
• If a material breach of a bilateral
treaty occurs, the innocent party
may invoke that breach as a
ground for terminating the treaty
or suspending its operation.
42. • The termination of multilateral treaties is more complex. By unanimous
agreement, all the parties may terminate or suspend the treaty in
whole or in part, and a party specially affected by a breach may
suspend the agreement between itself and the defaulting state.
• Any other party may suspend either the entire agreement or part of it
in cases where the treaty is such that a material breach will radically
change the position of every party with regard to its obligations under
the treaty.
The ICJ, for example, issued an advisory opinion in 1971 that regarded
as legitimate the General Assembly’s termination of
the mandate for South West Africa.
A breach of a treaty is generally regarded as material if there is an
impermissible repudiation of the treaty or if there is a violation of a
provision essential to the treaty’s object or purpose.
43. The concept of rebus sic stantibus (Latin: “things standing thus”) stipulates
that, where there has been a fundamental change of circumstances, a party
may withdraw from or terminate the treaty in question.
An obvious example would be one in which a relevant island has become
submerged. A fundamental change of circumstances, however, is not
sufficient for termination or withdrawal unless the existence of the original
circumstances was an essential basis of the consent of the parties to be
bound by the treaty and the change radically transforms the extent of
obligations still to be performed.
This exception does not apply if the treaty establishes a boundary or if the
fundamental change is the result of a breach by the party invoking it of an
obligation under the treaty or of any other international obligation owed to
any other party to the treaty.
44. CASE STUDY:
In North Sea Continental Shelf Case, ICJ held that
Article 6 of the Geneva Convention on Continental
Shelf of 1958 laying down equidistance rule for
delimitation of continental shelves had not been
subsequently accepted by the Federal Republic of
Germany in the necessary manifest manner and,
therefore, did not bind it.
46. INTRODUCTION
A third source of international law identified by the ICJ’s
statute is “the general principles of law recognized by
civilized nations.”
These principles essentially provide a mechanism to address
international issues not already subject either to treaty
provisions or to binding customary rules.
Such general principles may arise either through municipal
law or through international law, and many are in fact
procedural or evidential principles or those that deal with the
machinery of the judicial process.
47. Perhaps the most important principle of international law is that of good
faith.
It governs the creation and performance of legal obligations and is the
foundation of treaty law.
Another important general principle is that of equity, which permits
international law to have a degree of flexibility in its application and
enforcement.
The Law of the Sea treaty, for example, called for the delimitation on the
basis of equity of exclusive economic zones and continental shelves between
states with opposing or adjacent coasts.
48. The principle, established in Chorzow Factory (Germany vs
Poland) (1927–28), that the breach of an engagement involves
an obligation to make reparation.
Accordingly, in the Chorzow Factory case, Poland was obliged
to pay compensation to Germany for the illegal expropriation
of a factory.
Facts - Polish Government took possession of the factory and
took over its management. During such undertaking, German
Government contends and the Polish Government admits that
the delegate of the latter also took possession of the movable
property, patents, licences, etc
1. NEMO JUDEX IN CAUSA SUA
49. 2. SUBROGATION (SUBSTITUTION)
The Mavrommatis Jerusalem Concessions (Greece v. Britain)-
• Mavrommatis, a Greek national, was in 1914 granted concessions
by the Ottoman authorities for certain public works in what later
became the British mandated territory of Palestine.
• Greece alleged that Great Britain, through the Palestine
Government, had refused fully to recognize the concessions in
Jerusalem and Jaffa.
• The Greek Government sought judgment to effect that the
Britain, in its capacity as mandatory power was bound to
maintain the concessions, or to redeem by paying reasonable
compensation.
50. The PCIJ summarized the ‘legal dispute’ in Mavrommatis as
follows: ‘[…] a dispute is a disagreement on a point of law or
fact, a conflict of legal views or interests between two
persons.’
The PCIJ by applying the principle of Subrogation (or
substitution) held that the concessions concerning Jerusalem
were valid, but since Mavrommatis had suffered no loss, the
claim for an indemnity should be dismissed.
The principle was also endorsed by ICJ in International Status
of South West Africa Case.
51. 3. PRESCRIPTION (A CLAIM TO A
RIGHT FUNDED UPON ENJOYMENT)
Prescription, in international law, is sovereignty
transfer of a territory by the open encroachment by the
new sovereign upon the territory for a prolonged
period of time, acting as the sovereign, without protest
or other contest by the original sovereign.
It is analogous to the common law doctrine
of easement by prescription for private real estate.
52. Island of Palmas case (USA vs Netherlands)-
The Island of Palmas Case was a territorial
dispute over the Island of Palmas between
the Netherlands and the United States which
was heard by the Permanent Court of
Arbitration.
Palmas was declared to be a part of
the Netherlands East Indies and is now part
of Indonesia.
Arbitrator applied principle of prescription and
decided in favor of the Netherlands on the
basis of unchallenged acts of peaceful of
sovereignty by the Netherlands spread over
the period 1700 to 1906.
53. 4. RES JUDICATA
According to the principle of res judicata, final
judgment rendered by a court of competent
jurisdiction on merits is conclusive as to the rights
of the parties and constitutes an absolute bar to
subsequent action involving he same claims,
demands or cause of action
54. 5. ESTOPPEL
Temple of Preah Vihar Case (Cambodia vs Thailand) –
Preah Vihear Temple is an ancient Hindu temple
built during the period of the Khmer Empire, that is
situated atop a 525-metre cliff in the Dângrêk
Mountains, in the Preah
Vihear province, Cambodia.
In 1962, following a lengthy dispute
between Cambodia and Thailand over ownership,
the International Court of Justice (ICJ) in The
Hague ruled that the temple is in Cambodia.
By applying the rule of estoppel, where states are
bound by its previous acts or attitude when they
are in contradiction with its claims in the litigation.
55. 6. EQUITY
Equity is one of the general principles of law
because it has an established place in developed
legal system.
The PCIJ has recognised it as a part of
International Law (Netherlands vs Belgium)
It has recognized that equity as a source of
international law is in no way restricted by special
power conferred upon it “to decide a case ex
aequo et bono (according to the right and good),
if the parties agree thereto”.
In North Sea Continental Shelf case, ICJ refused to
delimit continental shelf by applying equidistance
principle as it resulted in inequity under special
circumstances.
56. OTHER PRINCIPLES
Other principles include:
7. Good Faith (Article-4, UN Charter)
8. Territoriality of Criminal Law (S.S. Lotus case)
9. Obligation to Repair Wrong (Chorzow factory case)
57. Corfu Channel Case (UK vs Albania):
The Corfu Channel case was the first public international
law case heard before the International Court of Justice
between 1947 and 1949, concerning state responsibility for
damages at sea, as well as the doctrine of innocent
A contentious case, it was the first of any type heard by the
ICJ after its establishment in 1945.
Following a series of encounters from May to November
1946 in the Corfu Channel between the United
the People's Republic of Albania—one of which resulted in
damage to two Royal Navy ships and significant loss of
the United Kingdom brought suit in the ICJ seeking
reparations.
After an initial ruling on jurisdiction in 1948, the ICJ issued
separate merits and compensation judgments in 1949.
58. The Court awarded the United Kingdom
£843,947.
This amount remained unpaid for decades,
and British efforts to see it paid led
to another ICJ case to resolve competing
Albanian and Italian claims to more than two
tons of Nazi gold.
In 1996, Albania and the United Kingdom
settled the judgment along with Albania's
outstanding claim to the gold.
Corfu Channel has had a lasting influence on
the practice of international law, especially
the law of the sea.
59. The concept of innocent passage
used by the Court was ultimately
adopted in a number of important
law of the sea conventions.
The stance taken by the Court
on use of force has been of
importance in subsequent decisions,
such as Nicaragua v. United States.
Additionally, the case served to set a
number of procedural trends
followed in subsequent ICJ
proceedings.
62. Case overview-
• Originating in 1933, over how large an area
of water surrounding Norway was
Norwegian waters (that Norway thus had
exclusive fishing rights to) and how much
was 'high seas' (that the UK could thus fish)
• The United Kingdom requested the court
decide if Norway had used a legally
acceptable method in drawing the baseline
from which it measured its territorial sea.
• The United Kingdom argued that
international law did not allow the length
a baseline drawn across a bay to be longer
than ten miles.
64. The United Kingdom argued that; –
Norway could only draw straight lines across
bays
The length of lines drawn on the formations of
the Skaergaard fjord must not exceed 10
nautical miles( the 10 Mile rule)
That certain lines did not follow the general
direction of the coast or did not follow it
sufficiently , or they did not respect certain
connection of sea and land separating them
That the Norwegian system of delimitation was
unknown to the British and lack the notoriety to
provide the basis of historic title enforcement
upon opposable to by the United Kingdom.
65. Norway argued that its delimitation
method was consistent with general
principles of international law.
On 18 December 1951, the ICJ decided
that Norway's claims to the waters were
consistent with international laws
concerning the ownership of local sea-
space.
The Court found that neither the
method employed for the delimitation
by the Decree, nor the lines themselves
fixed by the said Decree, are contrary to
international law.
66. The court consistently referred to positive aspect
that it is state practice and there is lack of objection
of other states on that practice.
The court also said that 10 mile rule is adopted by
several states and also have treaties between states
but other states have adopted different limit.
The 10 mile rule has not acquired by authority of the
general rule of International Law.
68. Article 38(1)(d) of the International Court of Justice
Statute states that the 'teachings of the most highly qualified
publicists of the various nations' are also among the
'subsidiary means for the determination of the rules of law’.
The scholarly works of prominent jurists are not sources of
international law but are essential in developing the rules that
are sourced in treaties, custom and the general principles of
law.
This is accepted practice in the interpretation of international
law and was utilized by the United States Supreme
Court in The Paquete Habana case