ARTICLE
27 March 2024

Comparative Case Study Of S.S. Lotus, UK vs. Norway And North Sea Continental Shelf Case In Regards To Customary International Law.

Ka
Khurana and Khurana

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K&K is among leading IP and Commercial Law Practices in India with rankings and recommendations from Legal500, IAM, Chambers & Partners, AsiaIP, Acquisition-INTL, Corp-INTL, and Managing IP. K&K represents numerous entities through its 9 offices across India and over 160 professionals for varied IP, Corporate, Commercial, and Media/Entertainment Matters.
The International Court of Justice (ICJ) is the main judicial body of the United Nations, and it settles disagreements between member states of the United Nations.
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INTRODUCTION:

"The International Court of Justice (ICJ) is the main judicial body of the United Nations, and it settles disagreements between member states of the United Nations. Under Chapter II, Article 38 of the Statute of the International Court of Justice, international customs and general practices of nations shall be one of the court's sources of customary international law and is one of the sources of international law".1 The Statute states that general principles of law fall within the category of positive law. Customary law allows for the formulation of general concepts of law being a separate branch of international law, and it also serves to supplement treaties and international customs. The Customary law is the legal equivalent of frequent and consistent actions or practices that states regard as beneficial and lawful, setting precedents and gaining legal authority. Respecting such customs is consequently required; breaking them is violation of law. Since it outlines interactions and disputes among States and other parties, customary law is crucial to the law of armed conflict and humanitarian intervention. The notion that human law "established by the general consent of mankind" constitutes customary law of nations was acknowledged in one of the Court's early rulings.

FRANCE VS TURKEY2

A Turkish ship, the Boz-Kourt, and a French ship, the Lotus, collided on the high seas. Eight Turkish nationals were killed when the Turkish ship, the Boz-Kourt, sank. The Lotus was used to transport the ten Boz-Kourt survivors including the ship's captain to Turkey. Both the Turkish ship's captain and the officer on watch the Lotus were accused of homicide in Turkey. A French national named as demon received a sentence that included a fine of 22 pounds and 80 days in jail. The French authorities objected and demanded that the French national be freed or that his case be taken before French courts. The Permanent Court of International Justice (PCIJ) will hear this jurisdiction dispute, as agreed upon by Turkey and France.

The Permanent Court of International Justice (PCIJ) in Geneva rendered a ruling on September 7, 1927, addressing the two main problems. First, while both nations had equal control over the collision that happened in the high seas, the Permanent Court of International Justice (PCIJ) determined that Turkey lacked the authority to try French national Lieutenant Demons. However, the Permanent Court of International Justice (PCIJ) eventually found that though France was granted jurisdiction by virtue of flying its flag aboard the ship, France was not granted full authority and power under international law. In this instance, Turkey wasn't acting in violation of international law or in violation of article 15 as required by French authorities, and they were fully within their legal rights as they brought a claim against France.

In light of this, the court determined that the Turkish Court is entitled to try the matter and, as a result, issued an order stating that it has not violated any international law.

UK VS NORWAY3

The Fisheries Case, commonly referred to as United Kingdom v. Norway, was the resolution of a disagreement. Beginning in 1933, the dispute concerned the extent to which the waters encircling Norway belonged to Norway granted exclusive fishing rights and the extent to which they were part of the 'high seas' therefore subject to fishing by the UK.

Following the facts, the Norwegian Sea uses its own method to establish a baseline from the port and bays and to exercise its exclusive fishing rights. The UK stated that this is incorrect since Norway's base-line drafting does not adhere to international law. Both of them the UK & Norway agreed to submit to the ICJ's jurisdiction in this case pursuant article 36(2), with no right of appeal. The arguments made by both nations as well as the problems that make up the case were submitted to the court.

The main points of contention between the two sides had been that Norway was limited to drawing straight lines across bays, and the fact that the total distance of lines established on the Skaergaard fjord structures were restricted to 10 nautical miles. However, some lines failed to follow the coastline generally or adequately, or they failed to acknowledge certain connections between land and sea that separated them, and it was noted that the Norwegian system of division was unidentified by the British and lacked the notoriety to provide the basis of historic title enforcement upon Britain's opposition. Albeit, Norway contended that the basis lines had to be drawn reasonably and in a way that respected the coast's general orientation.

The Permanent Court of International Justice (PCIJ) in Geneva stated that it has repeatedly mentioned the fact that it is state practice and that other states have not objected to it, a vote of 10-2 resulted in the verdict favoring Norway. With an 8-4 vote, the court determined that the methodology used by Norway to delineate the fisheries zone does not violate international law, and it further determined the base line established by the order in application does not violate international law.

The court also stated that Making treaties and agreements between nations is the most obvious method. Customary law is another method where the customary law is a reflection of how states interacted with one another prior to the establishment of an officially recognized international legal framework. When defining a boundary, the court may properly consider rights that are based on the population's essential needs and are supported by long-standing, peaceful usage, as long as it appears that these rights are being maintained within the parameters of what is fair and moderate.

NORTH SEA CONTINENTAL SHELF4:

In this instance, the Court clarified that broad and representative involvement was one of the requirements needed to establish State practice and It made clear that customary law was formed in large part because of the conduct of the States whose objectives were most impacted by the custom. The Netherlands and Denmark's partial boundary lines that were created using the equidistance concept. It was challenging to come to an agreement on the boundary's expansion because Germany believed that the combination of the two boundaries would be unfair, while Denmark and the Netherlands desired the boundary to be extended in accordance with the equidistance principle, Germany claimed that a line like this would deny an area of the continental shelf that was proportionate to the extent of the North Sea coastline because of its concave coastline. The Court was required to determine which international legal norms and principles applied to this delimitation.

"The rule contained in the second sentence or paragraph 2 of Article 6 of the Continental Shelf Convention, prescribing that in the absence of agreement, and unless another boundary is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance, has not become customary international law".5

The Permanent Court of International Justice (PCIJ), after careful consideration and interpretation, concludes that the equidistance approach was not required for the division of the North Sea areas relevant to the current proceedings and that its application had not become ingrained in customary law and Additionally, the court determined the nature of the treaty of obligation, which states that the equidistance approach would be used if both parties had previously reached an agreement on a demarcation strategy or unless there were exceptional circumstances. This is specified in Article 6 of the Geneva Convention. The Netherlands and Denmark are parties in the Geneva Convention, which Germany had agreed to sign but not ratified.

The facts make it abundantly evident that the Court's decision will have a lasting effect on the Geneva Convention's application of the equidistance concept. The Court destroys its legal credibility rather than prohibits its use. Naturally, this has no effect on the remaining provisions of the Geneva Convention. Other than negating the legal weight of the equidistance concept, this judgment has no discernible impact on future decisions because the holding does not provide any particular solution. The contesting states would only be instructed to look to customary international law and collaborate if this case were to be accepted as precedent.

COMPARATIVE ANALYSIS:

Studying past precedents, diplomatic discussions, and international legal concepts are necessary to analyze customary laws from the issues involved in the cases presented:

A crucial insight on the formation of customary international law was provided by the Lotus case. France had claimed that since States typically only bring criminal charges against the flag

State, jurisdictional issues regarding crash cases are rarely considered in criminal proceedings. France contended that the lack of indictments indicates that customary law views collisions favorably; however In addition to State acts, opinio juris can also be seen in State omissions made out of the conviction that the State in question is legally required to abstain from conducting itself in a certain manner. Addressing the application of customary laws from the S.S. Lotus case, which established that customary international law and state practice have developed throughout centuries, frequently with the help of treaties, court rulings, and multilateral agreements. These customs now control the borders of the sea. The difficulties with adapting customary laws to contemporary maritime issues, particularly in areas with conflicting claims and interests, have been highlighted by the disputes between France and Turkey.

The court suggested in the case of Uk vs Norway that positive state conduct and the absence of in contrast state practice verify an existing rule of customary international law, pointing to customary law, international law, and the techniques used to distinguish Norway's maritime territory and fisheries zone. It established a prior provision of customary international law by identifying positive State practice along with the absence of conflicting State practice. In this preliminary ruling, opinio juris was not mentioned. Fishing privileges and territorial seas in the Norwegian Sea, particularly contentions about the accessibility of fisheries and conservation efforts, have historically been at the center of the UK-Norway dispute.

The comparison and issues raised by this were that customary laws regulating the supervision of the fishery have evolved as time passed as a result of state policy, international pacts, and customary legal concepts like a responsibility to cooperate and the equitable use of resources. The resolution of these problems has been largely dependent on diplomatic exchanges and conventions, underscoring the significance of amicable settlement processes in the application of customary laws pertaining to marine resources. Customs, international treaties, and past practices all have a significant influence on the regulatory structure that governs fishing privileges and the handling of resources between the two nations. In line with customary international law, resolving conflicts and advancing appropriate managing fisheries need talks of diplomacy and cooperation agreements.

Following the timelines of the aforementioned instances and acknowledging customary rules, historical traditions, and international agreements, the court in the North Sea Continental Shelf case declared that the position of the equidistance principle in Article 6 both during the Convention's drafting and after it entered into effect in order to determine whether Germany was bound by the principle through customary international law.

The next consideration is if, as a result of either the Convention's ratification itself if sufficient States had ratified the Convention in a way that fulfilled the criteria specified or as a result of subsequent State practice which is even though a suitable number of states were yet to ratify the Convention at that point, one of them might have identified adequate State practice to satisfy the criteria. The rule contained in Article 6 had grown into customary international law after the Convention entered into force. According to the Court, Article 6 of the Convention was still not a part of customary law. The establishment of a customary law norm requires both State practice and opinio juris as the North Sea Continental Shelf Case established. The court went on to discuss opinio juris and the distinction between customs and customary.

The notion was not recognized as customary international law during the moment that the Geneva Convention came into effect or subsequently. Therefore, it is declared that the equidistance approach need not be applied in order to delineate the areas under consideration in the current proceedings.

Thus, a comparative analysis of these important cases involving customary law demonstrates that the implementation of customary international law emphasizes the significance of cooperative approaches, adherence to international agreements, and diplomatic negotiations in resolving maritime disputes and advancing feasible maritime governance. States may address complicated maritime challenges and work toward peaceful settlements that support the supremacy of law while safeguarding common assets for future generations to come by respecting past customs and international standards.

CONCLUSION:

In conclusion, using customary international law as a framework, an analysis of the North Sea continental shelf situation, the UK v. Norway fisheries case, and the France v. Turkey conflict provides important fresh knowledge about managing shared resources and resolving maritime disputes.

These cases highlight how important customary international law is for settling marine conflicts and advancing long-term maritime governance. States can endeavor to peacefully resolve disputes that preserve the supremacy of law and guarantee the prudent management of shared marine resources by recognizing past customs, abiding by international agreements, and sticking to customs.

Footnotes

1 customary international law, CORNELL LAW SCHOOL (Mar. 12, 2024, 7:36 PM), https://www.law.cornell.edu/wex/customary_international_law.

2 S.S Lotus (France vs Turkey), Judgement,1927 P.C.I.J. (Ser. A) No. 10 (Sept. 7).

3 The Fisheries Case ( U.K. v. Norway), Judgement, 1951 I.C.J. 116 (Dec.18).

4North Sea Continental Shelf, Judgement, 1969 I.C.J. 3, (Feb 20).

5 North Sea Continental Shelf, Judgement, 1969 I.C.J. 3, ¶9 (Feb 20).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
27 March 2024

Comparative Case Study Of S.S. Lotus, UK vs. Norway And North Sea Continental Shelf Case In Regards To Customary International Law.

India Transport

Contributor

K&K is among leading IP and Commercial Law Practices in India with rankings and recommendations from Legal500, IAM, Chambers & Partners, AsiaIP, Acquisition-INTL, Corp-INTL, and Managing IP. K&K represents numerous entities through its 9 offices across India and over 160 professionals for varied IP, Corporate, Commercial, and Media/Entertainment Matters.
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