NICARAGUA VS UNITED STATES (SUMMARY) ON SELF DEFENCE AND USE OFFORCECase: Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua vs United States)(Merits: focusing on matters relating to the use of force and self-defence)Year of Decision: 1986Court: ICJNB: This blog post will discuss matters onthe use of force and self-defence.If you would like to read about the impact of the Nicaragua judgement on customary international law and the US multilateral reservation please click here.Overview:The case involved military and paramilitary activities conducted by the United States against Nicaragua from 1981 to 1984. Nicaragua asked the Court to find that these activities violated international law.Facts of the Case:In July 1979 the Government of President Somoza collapsed following an armed opposition led by theFrenteSandinista de LiberacibnNacional(FSLN) . The new government installed by FSLN began to meet armed opposition from supporters of the former Somoza Government and ex-members of the National Guard. 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 it terminated United Statesaid to Nicaragua and in September 1981, according to Nicaragua, the United Statesdecided to plan and undertake activities directed against Nicaragua.The armed opposition to the new Government was conducted mainly by (1)FuerzaDemocraticaNicaragense(FDN), which operated along the border with Honduras, and (2)AlianzaRevolucionariaDemocratica(ARDE), which operated along the border with Costa Rica, (see map of the region). Initial US support to these groups fighting against the Nicaraguan Government (called contras) was covert. Later, the United Statesofficially acknowledged its support (for example: In 1983 budgetary legislation enacted by the United States Congress made specific provision for funds to be used by United States intelligence agencies for supporting directly or indirectly military or paramilitary operations in Nicaragua).Nicaragua also alleged that the United Statesis effectively in control of thecontras, the United Statesdevised their strategy and directed their tactics and that they were paidfor and directly controlled by United Statespersonal. Nicaragua also alleged that some attacks were carried out by United Statesmilitary with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil installations and a naval base. Nicaragua alleged thataircrafts belonging to the United Statesflew over Nicaraguan territory to gather intelligence, supply to the contras in the field and to intimidate the population.The United Statesdid not appear before the ICJ at the merit stages, after refusing to accept the ICJs jurisdiction to decide the case. The United Statesat the jurisdictional phase of the hearing, however, stated that it relied on an inherent right of collective self-defence guaranteed in A. 51 of the UNCharter by providing, upon request, proportionate and appropriate assistance to Costa Rica, Honduras and El Salvador in response to Nicaraguas alleged acts aggression against those countries (paras. 126, 128).Questions before the Court: Did the United Statesbreach 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 encouraged, supported and aided the military and paramilitary activities against Nicaragua? Did the United Statesbreach its customary international law obligation not to use force against another State when it directly attacked Nicaragua in 1983 1984 and when its activities in bullet point 1 above resulted in the use of force? If so, can the military and paramilitary activities that the United Statesundertook in and against Nicaragua be justified as collective self-defence? Did the United Statesbreach its customary international law obligation not to violate the sovereignty of another State when it directed or authorized its aircrafts to fly over Nicaraguan territory and by acts referred to in bullet point 2 above? Did the United Statesbreach its customary international law obligations not to violate the sovereignty of another State, not to intervene in its affairs, not to use force against another State and not to interrupt peaceful maritime commerce when it laid mines in the internal waters and the territorial sea of Nicaragua?ICJ decision:The United Statesviolated customary international law in relation to bullet points 1, 2, 4 and 5 above. On bullet point 3, the Court found that the United States could not rely on collective self-defenceto justify its use of force against Nicaragua.Relevant Findings of the Court:1. The court held that theUnited Statesbreached its customary international law obligation not to use force against another State: (1) when it directly attacked Nicaragua in 1983 1984; and (2) when its activities with the contra forces resulted in the threat or use of force(see paras 187 -201).The Court held that: Theprohibition on the use of forceis found inArticle 2(4) of the UN Charterand in customary international law. In a controversial finding the court sub-classified the use of force as: (1) the most grave forms of the use of force (i.e. those that constitute an armed attack) and (2) the less grave form (i.e. organizing, instigating, assisting or participating in acts of civil strife and terrorist acts in another State when the acts referred to involve a threat or use of force not amounting to an armed attack). The United States violated the customary international law prohibition on the use of force when it laid mines in Nicaraguan ports. It violated this prohibition when it attacked Nicaraguan ports, oil installations and a naval base (see below). The United States could justify its action on collective self-defence, if certain criteria were met this aspect is discussed below. The United States violated the customary international law prohibition on the use of force when it assisted the contras by organizing or encouraging the organization of irregular forces and armed bands for incursion into the territory of another state and participated in acts of civil strifein another State when these acts involved the threat or use of force. The supply of funds to the contras did not violate the prohibition on the use of force. Nicaragua argued that the timing ofthe offensives against it was determined by the United States: i.e. an offensive could not be launched until the requisite funds were available. The Court held that it does not follow that each provision of funds by the United States was made to set in motion a particular offensive, and that that offensive was planned by the United States. The Court held further thatwhile the arming and training of the contras involved the threat or use of force against Nicaragua, the supply of funds, in it self, only amounted to an act of intervention in the internal affairs of Nicaragua(para 227) this aspect isdiscussed below.What is anarmed attack? A controversial but interesting aspect of the Courts judgement was its definition of an armed attack. The Court held that an armed attack included:(1) action by regular armed forces across an international border; and(2) the sending by or on behalf ofa State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its (the States) substantialinvolvement thereinNB: The second pointsomewhatresembles Article 3 (g) of theUNGA Resolution 3314 (XXIX) on the Definition of Aggression. Mere frontier incidents are not considered as an armed attack unless because of its scale and effects it would have been classifiedas an armed attack if it was carried out by regular forces. Assistance to rebels in the form of provision of weapons or logistical support did not constitutean armed attack it can beregarded as a threat or use of force, or an intervention in the internal or external affairs of other States (see paras 195, 230). Under Article 51 of the UN Charter and under CIL self-defence is only available against a use of force that amounts to an armed attack(para 211).NB: In in the Case Concerning Oil Platforms and the advisory opinion on the Legal Consequences of of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter called the Palestine wall case) the ICJ upheld the definition of armed attack proposed in the Nicaragua case. In the Palestinian wall case, the attacks from which Israel was claiming self defence originated from non-State actors. However, the Court held that Article 51s inherent right of self defence was available to one State only against another State (para 139). Judges Higgins, Buergenthal and Kooijmans opposed this narrow view. Articles on State Responsibility, prepared by the International Law Commission, provided significant guidance as to when acts of non-State actors may be attributed to States. These articles, together with recent State practice relating attacks on terrorists operating from other countries (see legal opinions surrounding the United States attack on Afghanistan), may have widened the scope of an armed attack, and consequently, the right of self defence, envisaged by the ICJ.2. The Court held that the United States could not justify its military and paramilitary activities on the basis of collective self-defence. Customary international law allows for exceptions to the prohibition on the use of force including the right to individualor collective self-defence (for a difference between the two forms of self defence, clickhere). The United States, at an earlier stage of the proceedings, had asserted that the Charter itself acknowledges the existence of this customary international law right when it talks of the inherent right of a State under Article 51 of the Charter (para.193). When a State claims that it used force in collective self-defence, the Court would look into two aspects:(1) whether the circumstances required for the exercise of self-defence existed and(2) whether the steps taken by the State, which was acting in self-defence, corresponds to the requirements of international law (i.e. did it comply with the principles of necessity and proportionality). Several criteria must bemet for a State to exercise the right of individual or collective self-defence:(1) A State must have been the victim of an armed attack;(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an armed attack took place nor notis done by thestate who was subjected to the attack. A third State cannot exercise a right of collective self-defence based its (the third States) own assessment]; and(3) In the case of collective self-defence the victim State must requestfor assistance (there is no rule permitting the exercise of collective self-defence in the absence ofa request by the State which regards itself as the victim of an armed attack).(4) The State does not, undercustomary international law, have the same obligation as under Article 51 of the UN Charter to report to the Security Council that an armed attack happened but the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence(see below).At this point, the Court may consider whether in customary international law there is any requirementcorresponding to that found in the treaty law of the United Nations Charter, by which the State claiming to use the right of individualor collective self-defence must report to an international body, empowered to determinethe conformity withinternational law of the measures which the State is seeking to justify on that basis. Thus Article 51 of the United Nations Charter requires that measures taken by States in exercise of this right of self-defence must beimmediately reported to the Security Council. As the Court has observed above (paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in customary international law, may well be so unencumbered with the conditions and modalities surrounding it in the treaty. Whatever influence the Charter may have had on customary international law in these matters, it is clear that in customary international law it is not a condition ofthe lawfulness of the use of force in self-defence that a procedure so closely dependent on the content ofa treaty commitment and of the institutions established by it, should have been followed.On the other hand, if self-defence is advancedas a justification for measures which would otherwise be in breach both of the principle of customary international law and of that contained in the Charter, it is to beexpected that the conditions of the Charter should berespected. Thus for the purpose of enquiry into the customary law position, the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence (See paras 200, 232 -236). The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and Honduras in determining whether an armed attack was undertaken by Nicaragua against the three countries which in turn would necessitateself-defence (paras 230 236). The Court referred to statements made by El Salvador, Costa Rica, Honduras and the United Statesbefore the Security Council. None of the countries who were allegedly subject to an armed attack by Nicaragua (1) declared themselves as a victim of an armed attack or requestassistancefrom the United Statesin self-defence at the time when the United Stateswas allegedly acting in collective self-defence; and (2) the United Statesdid not claim that it was acting under Article 51 of the UN Charter and it did not report that it was so acting to the Security Council. The Court concluded that the United States cannot justify its use of force as collective self-defence. The criteria with regard to necessity and proportionality, that is necessary when using force in self-defence was also not fulfilled (para 237).3. The Court held that the United States breached its CIL obligation not to intervene in the affairs of another State when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua. The principle of non- intervention means that every State has a right to conduct its affairs without outside interference i.e it forbids States or groups of States to intervene directly or indirectly in internal or external affairs of other States. . This is a corollary of the principle of sovereign equality of States.A prohibited intervention must accordinglybe one bearing on matters in which each State is permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation offoreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remainfree ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State (para 205). Nicaragua stated that the activities of the United States were aimedto overthrow the government ofNicaragua and to substantially damage the economy and weaken the political system to coerce the Government of Nicaragua to accept various political demands of the United States. The Court held:first, that the United States intended, by its support of the contras, to coerce the Government of Nicaragua in respect of matters in which each State is permitted, by the principle of State sovereignty, to decide freely (see paragraph 205 above) ; and secondly that the intention ofthe contras themselves was to overthrow the present Government of Nicaragua The Court considers that in international law, if one State, with a view tothe coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government ofthat State, that amounts to an intervention by the one State in the internal affairs of the other, whether or not the political objectiveof the State giving such support and assistanceis equally far reaching. The financial support, training, supply of weapons, intelligence and logistic support given by the United States to the contras was a breach of the principle of non-interference. no such general right of intervention, in support of an opposition within another State, exists in contemporary international law, even if such a request for assistanceis made by an opposition group of that State (see para 246 for more). However, in a controversial finding, the Court held that the United States did notdevise the strategy, direct the tactics of the contras or exercise control on them in manner so as to make their acts committed in violation of international law imputable to the United States (see in this respectDetermining US responsibility for contra operations under international law 81 AMJIL 86).The Court concluded that a number of military and paramilitary operations of the contras were decided and planned, if not actually by United States advisers, then at least in close collaboration with them, and on the basis of the intelligence and logistic support which the United States was able to offer, particularly the supply aircraft provided to the contras by the United States butnot all contra operations reflected strategy and tactics wholly devised by the United States.In sum, the evidence available to the Court indicates that the various forms of assistance provided to the contras by the United States have been crucial to the pursuit of their activities, but is insufficient to demonstrate their complete dependence on United States aid. On the other hand, it indicates that in the initial years of United States assistance the contra force was so dependent. However, whether the United States Government at any stage devised the strategy and directed the tactics of the contras depends on the extent to which the United States made use of the potential for control inherent in that dependence. The Court already indicated that it has insufficient evidence to reach a finding on this point. It is a fortiori unable to determine that the contra force may be equated for legal purposes with the forces of the United StatesThe Court has taken the view (paragraph 110 above) that United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary. Interesting, however, the Court also held that providing humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law (para 242). In the event one State intervenes in the affairs of another State, the victim State has a right to intervene in a manner that is short of an armed attack (210).While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of gravity cannot as the Court has already observed (paragraph 21 1 above). produce any entitlement to take collective countermeasures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been establishedand imputable to that State, could only have justified proportionate counter-measures on the part of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They could not justifycounter-measures taken by a third State, the United States, and particularly could not justify intervention involving the use of force.4. The United States breached its customary international law obligation not to violate the sovereignty of another State when it directed or authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its territorial sea. The ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of the territorial sea or internal waters of Nicaragua by persons in the pay or acting ion the instructions of the United Statesand acting under its supervision with its logistical support. The United Statesdid not issue any warning on the location or existence of mines and this resulted in injuries and increases in maritime insurance rates. The court found that the United Statesalso carried out high-altitude reconnaissance flights over Nicaraguan territoryand certain low-altitude flights, complained of as causing sonic booms. The basic concept of State sovereignty in customary international law is found in Article 2(1) of the UN Charter. State sovereignty extends to a States internal waters, its territorial sea and the air space above its territory. The United States violated customary international law when it laid mines in the territorial sea and internal waters of Nicaragua and when it carried outunauthorisedoverflights over Nicaraguan airspace by aircrafts that belong to or was under the control of the United States.Material on the Nicaragua caseThe following contains a list of scholarly articles and other material that discuss the Nicaragua case. If you would like to add to the list, please note your suggestions in the comment box.Thejudgment including separate opinions of individual judgesandsummaries of the judgment and ordersThe World Court and Jus Cogens, 81 AMJIL 93, Gorden A. Christenson.Christenson argues thatan independent development of the customary law right divorced from the treaty can have wider consequences:We have then a double irony. The Court uses the United States position accepting the treaty norm against the threat or use of force also as a customary norm possibly having jus cogens quality, in part, to justify taking jurisdiction as a matter quite independent of the norm that otherwise falls under the multilateral treaty reservation. Since there are two separate sources of the law, the choice of the one source rather than the other means that the norm relied upon survives the jurisdictional bar to the use of the other. Yet the two norms are not different enough to undermine completely the content of the Charter norm. This formalism simply masks the more interesting question of the Courts institutional claim, given the ineffectiveness of the UN Security system, to develop an international public order case by case, by breaking away form the strictures of the Charter and treaty norms. The Court untied the treaty norms from their constraints within the United Nations or regional collective security systems, a potentially destabilizing decision, one whose consequences are unforeseen. The decision based on the validity of an autonomous norm of customary international law free from the Charter is a constitutive one of potential great significance (81 AMJIL 100, 1987).Trashing customary international law, Antony DAmato, 81 AMJIL 102 (1987)(full text): (DAmato discusses the paucity of State practice examined by the international court of justice before concluding that the principle non-intervention formed part of customary international law. He argues that the acceptance of General Assembly resolutions do not manifest opinio juris. He statesthat the Court failed to consider that Article 2(4) continued to evolve through the years.)The World Courts Achievement,Richard Falk, 81 AMJIL 106(Falk takes a generally positive approach to the judgment, gives a good overview of the case and Judge Shwebels dissent)Drawing the right line, Tom J. Farer, 81 AMJIL 112(Farer takes a cold-war contextual approach to the judgment and supports the Courts narrow view of an armed attack and self defence).Some observations on the ICJs procedural and substantive innovations, Thomas M. Franck, 81 AMJIL 116(criticizes the determination of relevant State practice in relation to non-intervention and the reliance on UN resolutions to illicitopinio juris(it alleges that the Court sought to harden soft law prematurely). Frank points out that the interventions falling short of armed attacks would not allow States to target rebel groups in another States territory even if the insurgency is planned, trained, armed and directed from that territory).The Impact of theNicaraguaCase on the Court and Its Role: Harmful, Helpful, or In Between?, Lori Fisler Damrosch(Abstract:At the time the United States withdrew from participation in the Nicaragua case at the International Court of Justice, the US government expressed concern that the course on which the Court may now be embarked could do enormous harm to it as an institution and to the cause of international law. This essay examines whether or to what extent the anticipated negative effects came to pass. It concludes that dire predictions of harm to the Court were overstated. Twenty-five years later, the rate at which states accept the Courts jurisdiction has held steady. Only a few states have added jurisdictional reservations concerning military activities. The mix of cases being brought to the Court has shifted towards a more representative distribution. States are generally complying with the Courts decisions, though some compliance problems remain. The most serious negative impact has been on the willingness of the United States (still the Courts most active litigant) to participate fully in international dispute settlement.The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, by Marcelo Kohen(Abstract:This article focuses on the analysis by the International Court of Justice of the principle of non-intervention in domestic affairs in its judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua and contrasts it with the evolution of international law and practice in this field. It is proposed that the Courts 1986 analysis not only remains of actuality today, but also constitutes a precursor to legal developments that have since taken place. This is particularly the case with regard to the relationship between the protection of human rights on the one hand and the safeguard of state sovereignty and the collective security regime on the other. The 1986 judgment helped to clarify the content of humanitarian assistance. It constituted the starting point for the development of this concept in a series of GA resolutions that were subsequently adopted. The controversial doctrine of humanitarian intervention, as well as state practice in violation of this principle, in no way led to modifying existing international law. Similarly, the new concept of responsibility to protect, which places emphasis on collective security and discounts unilateral action, has not led to the disappearance of the principle of non-intervention either.)

The ruling[edit]On June 27, 1986, the Court made the following ruling:The Court1. Decides that in adjudicating the dispute brought before it by the Application filed by the Republic of Nicaragua on 9 April 1984, the Court is required to apply the "multilateral treaty reservation"contained in proviso (c) to the declaration of acceptance of jurisdiction made under Article 36, paragraph 2, of the Statute of the Court by the Government of the United States of America deposited on 26 August 1946;2. Rejects the justification ofcollective self-defencemaintained by the United States of America in connection with the military and paramilitary activities in and against Nicaragua the subject of this case;3. Decides that the United States of America, by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligation undercustomary international lawnot to intervene in the affairs of another State;4. Decides that the United States of America, by certain attacks on Nicaraguan territory in 1983-1984, namely attacks on Puerto Sandino on 13 September and 14 October 1983, an attack on Corinto on 10 October 1983; an attack on Potosi Naval Base on 4/5 January 1984, an attack on San Juan del Sur on 7 March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March 1984; and an attack on San Juan del Norte on 9 April 1984; and further by those acts of intervention referred to in subparagraph (3) hereof which involve the use of force, has acted, against the Republic of Nicaragua, in breach of its obligation undercustomary international law not to use force against another State;5. Decides that the United States of America, by directing or authorizing over Rights of Nicaraguan territory, and by the acts imputable to the United States referred to in subparagraph (4) hereof, has acted, against the Republic of Nicaragua, in breach of its obligation undercustomary international law not to violate the sovereignty of another State;6. Decides that, by laying mines in the internal or territorial waters of the Republic of Nicaragua during the first months of 1984, the United States of America has acted, against the Republic of Nicaragua, in breach of its obligations undercustomary international law not to use force against another State, not to intervene in its affairs, not to violate its sovereignty and not to interrupt peaceful maritime commerce;7. Decides that, by the acts referred to in subparagraph (6) hereof the United States of America has acted, against the Republic of Nicaragua, in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of Nicaragua signed at Managua on 21 January 1956;8. Decides that the United States of America, by failing to make known the existence and location of the mines laid by it, referred to in subparagraph (6) hereof, has acted in breach of its obligations under customary international law in this respect;9. Finds that the United States of America, by producing in 1983 a manual entitled 'Operaciones sicolgicas en guerra de guerrillas', and disseminating it to contra forces, has encouraged the commission by them of acts contrary to general principles ofhumanitarian law; but does not find a basis for concluding that any such acts which may have been committed are imputable to the United States of America as acts of the United States of America;10. Decides that the United States of America, by the attacks on Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985, has committed acts calculated to deprive of its object and purpose the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956;11. Decides that the United States of America, by the attacks on Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985, has acted in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956;12. Decides that the United States of America is under a duty immediately to cease and to refrain from all such acts as may constitute breaches of the foregoing legal obligations;13. Decides that the United States of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of obligations under customary international law enumerated above;14. Decides that the United States of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956;15. Decides that the form and amount of such reparation, failing agreement between the Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case;16. Recalls to both Parties their obligation to seek a solution to their disputes by peaceful means in accordance with international law.[11]Legal clarification and importance[edit]The ruling did in many ways clarify issues surrounding prohibition of the use of force and the right of self-defence.[14]Arming and training the Contra was found to be in breach with principles of non-intervention and prohibition of use of force, as was laying mines in Nicaraguan territorial waters.Nicaragua's dealings with the armed opposition in El Salvador, although it might be considered a breach with the principle of non-intervention and the prohibition of use of force, did not constitute "an armed attack", which is the wording in article 51 justifying the right of self-defence.The Court considered also the United States claim to be acting in collective self-defence of El Salvador and found the conditions for this not reached as El Salvador never requested the assistance of the United States on the grounds of self-defence.In regards to laying mines, "...the laying of mines in the waters of another State without any warning or notification is not only an unlawful act but also a breach of the principles of humanitarian law underlying theHague Convention No. VIII of 1907."

NUCLEAR TESTS CASE

Brief Fact Summary.Australia and New Zealand (P) requested France (D) to put a halt to atmospheric nuclear test in the South Pacific.

Synopsis of Rule of Law.Declaration made through unilateral acts may have the effect of creating legal obligations.

Facts.A series of nuclear tests was completed by France (D) in the South Pacific. This action made Australia and New Zealand (P) to apply to the I.C.J. demanding that France (D) cease testing immediately. Before the case could be completed, France (D) announced it had completed the test and did not plan any further test. So France (D) moved for the dismissal of the application.

Issue.May declaration made through unilateral act has effect of creating legal obligations?

Nuclear Tests Case (Australia & New Zealand v. France)

Procedural History:Proceeding before the International Court of Justice.

Overview:Australia and New Zealand (P) demanded that France (D) cease atmospheric nuclear tests in the South Pacific. France (D) completed a series of nuclear tests in the South Pacific. Australia and New Zealand (P) applied to the !.C.). demanding that France (D) cease testing immediately. While the case was pending, France (D) announced the series of tests was complete and that it did not plan any further such tests. France (D) moved to dismiss the applications.

Issue:May declarations made by way of unilateral acts have the effect of creating legal obligations?

Rule:declerations made by way of unilateral acts may have the effect of creating legal obligations.

Analysis:The unilateral statements made by French authorities were first communicated to the government of Australia. To have legal effect there was no need for the statements to be directed to any particular state. The general nature and characteristics of the statements alone were relevant for evaluation of their legal implications.

Outcome:Yes.Declarations made by way of unilateral acts may have the effect of creating legal obligations. The sole relevant question is whether the language employed in any given declaration reveals a clear intention. One of the basic principles governing the creation and performance of legal obligations is the principle of good faith. The statements made by the President of the French Republic must be held to constitute an engagement of the State in regard to the circumstances and intention with which they were made. The statements made by the French authorities are therefore relevant and legally binding. Applications dismissed. - See more at: http://www.lawschoolcasebriefs.net/2012/04/nuclear-tests-case-australia-new.html#sthash.SgAv5Zjx.dpufASYLUM CASE (SUMMARY)Name of the Case: Asylum Case (Columbia/Peru); Year of the decision: 1950; and Court: ICJ.Overview:Columbia granted asylum (refuge) to a Peruvian, accused of taking part in a military rebellion in Peru. Was Columbia entitled to make a unilateral and definitive qualification of the offence (as a political offence) in a manner binding on Peru and was Peru was under a legal obligation to provide safe passage for the Peruvian to leave Peru?Facts of the Case: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.Questions before the Court:(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the 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 thecontinued maintenance of asylum a violation of the treaty?The Courts Decision:Relevant Findings of the Court:(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum under treaty law and international law?1. The court stated that in the normal course of granting diplomatic asylum a diplomatic representative has the competence to make aprovisionalqualification of the offence (for example, as a political offence) and the territorial State has the right to give consent to this qualification. In the Torres case, Colombia has asserted, as the State granting asylum, that it is competent to qualify the nature of the offence in a unilateral and definitive manner that is binding on Peru. The court had to decide if such a decision was binding on Peru either because of treaty law (in particular the Havana Convention of 1928 and the Montevideo Convention of 1933), other principles of international law or by way of regional or local custom.2. The court held that there was no expressed or implied right of unilateral and definitive qualification of the State that grants asylum under the Havana Convention or relevant principles of international law (p. 12, 13). The Montevideo Convention of 1933, which accepts the right of unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was not ratified by Peru. The Convention, per say, was not binding on Peru and considering the low numbers of ratifications the provisions of the latter Convention cannot be said to reflect customary international law (p. 15).3. Colombia also argued that regional or local customs support the qualification. 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 is 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 (Columbia) 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 brackets added).4. The court held that Columbia 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 (seeNorth Sea Continental Shelf CasesandLotus Casefor more onopinio juris):[T]he Colombian Government has referred to a large number of particular cases in which diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule of unilateral and definitive qualification was invoked or that it was, apart from conventional stipulations, exercised by the States granting asylum as a right appertaining to them and respected by the territorial States as a duty incumbent on them and not merely for reasons of political expediency. The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence.5. The court held that even if Colombia could prove that such a regional custom existed, it would not be binding on Peru, because Perufar from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offence [as political in nature] in matters of diplomatic asylum. (See in this regard, the lesson onpersistent objectors. Similarly in theNorth Sea Continental Shelf Casesthe court heldin any event the . . . rule would appear to be inapplicable as against Norway in as much as she had always opposed any attempt to apply it to the Norwegian coast.)6. The court concluded that Columbia, as the State granting asylum, is not competent to qualify the offence by a unilateral and definitive decision, binding on Peru.(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?7. 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 (Columbia) 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.8. 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 (see paragraph 4 above).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 refugeebut 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) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and is thecontinued maintenance of asylum a violation of the treaty?9. Article 1 of the Havana Convention states that It is not permissible for States to grant asylum to persons accused or condemned for common crimes (such persons)shall be surrendered upon request of the local government.10.In other words, the person-seeking asylum must not be accused of a common crime (for example, murder would constitute a common crime, while a political offence would not).The accusations that are relevant are those made before the granting of asylum.Torres accusation related to a military rebellion, which the court concluded was not a common crime and as such the granting of asylum complied with Article 1 of the Convention.11. Article 2 (2) of the Havana Convention states thatAsylum granted to political offenders in legations, warships, military camps or military aircraft, shall be respected to the extent in which allowed, as a right or through humanitarian toleration, by the usages, the conventions or the laws of the country in which granted and in accordance with the following provisions:First: Asylum may not be granted except in urgent cases and for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety.12. An essential pre-requisite for the granting of asylum is the urgency or, in other words, the presence of an imminent or persistence of a danger for the person of the refugee. The court held that the facts of the case, including the 3 months that passed betweenthe rebellion and the time when asylum was sought, did not establish the urgency criteria in this case (pp. 20 -23). The court held:In principle, it is inconceivable that the Havana Convention could have intended the term urgent cases to include the danger of regular prosecution to which the citizens of any country lay themselves open by attacking the institutions of that country In principle, asylum cannot be opposed to the operation of justice.13. In other words, Torre was accused of a crime but he could not be tried in a court because Colombia grantedhim asylum. The court held that protection from the operation of regular legal proceedings was not justified under diplomatic asylum.14. The court held:In the case of diplomatic asylum the refugee is within the territory of the State. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognised unless its legal basis is established in each particular case.15. As a result, exceptions to this rule are strictly regulated under international law.An exception to this rule (asylum should not be granted to those facing regular prosecutions) can occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims. Asylum protects the political offender against any measures of a manifestly extra-legal character which a Government might take or attempt to take against its political opponents On the other hand, the safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals. Protection thus understood would authorize the diplomatic agent to obstruct the application of the laws of the country whereas it is his duty to respect them Such a conception, moreover, would come into conflict with one of the most firmly established traditions of Latin-America, namely, non-intervention [for example, by Colombia into the internal affairs of another State like Peru].16. Asylum may be granted on humanitarian grounds to protect political prisoners against the violent and disorderly action of irresponsible sections of the population. (for example during a mob attack where the territorial State is unable to protect the offender). Torre was not in such a situation at the time when he sought refuge in the Colombian Embassy at Lima.17. The court concluded that the grant of asylum and reasons for its prolongation were not in conformity with Article 2(2) of the Havana Convention (p. 25).The grant of asylum is not an instantaneous act which terminates with the admission, at a given moment of a refugee to an embassy or a legation. Any grant of asylum results in, and in consequence, logically implies, a state of protection, the asylum is granted as long as the continued presence of the refugee in the embassy prolongs this protection.NB: The court also discussed the difference between extradition and granting of asylum you can read more on this in pp. 12 13 of the judgment. The discussions on the admissibility of the counter claim of Peru are set out in pp. 18 19.The Paquete Habana, 175 U.S. 677 (1900)The Paquete HabanaNos. 895-896Argued November 7-8, 1899Decided January 8, 1900175 U.S. 677 (1900)APPEALS FROM THE DISTRICT COURT OF THE UNITEDSTATES FOR THE SOUTHERN DISTRICT OF FLORIDASyllabusUnder the Act of Congress of March 3, 1891, c. 517, this Court has jurisdiction of appeals from all final sentences and decrees in prize causes, without regard to the amount in dispute and without any certificate of the district judge as to the importance of the particular case.International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.At the present day, by the general consent of the civilized nations of the world and independently of any express treaty or other public act, it is an established rule of international law that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war. And this rule is one which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter.At the breaking out of the recent war with Spain, two fishing smacks -- the one a sloop, 43 feet long on the keel and of 25 tons burden, and with a crew of three men, and the other a schooner, 51 feet long on the keel and of 35 tons burden, and with a crew of six men -- were regularly engaged in fishing on the coast of Cuba, sailing under the Spanish flag, and each owned by a Spanish subject, residing in Havana; her crew, who also resided there, had no interest in the vessel, but were entitled to shares, amounting in all to two thirds, of her catch, the other third belonging to her owner, and her cargo consisted of fresh fish, caught by her crew from the sea, put on board as they were caught, and kept and sold alive. Each vessel left Havana on a coast fishing voyage, and sailed along the coast of Cuba about two hundred miles to the west end of the island; the sloop there fished for twenty-five days in the territorial waters of Spain, and the schooner extended her fishing trip a hundredPage 175 U. S. 678miles farther across the Yucatan Channel, and fished for eight days on the coast of Yucatan. On her return, with her cargo of live fish, along the coast of Cuba, and when near Havana, each was captured by one of the United States blockading squadron. Neither fishing vessel had any arms or ammunition on board, had any knowledge of the blockade, or even of the war, until she was stopped by a blockading vessel, made any attempt to run the blockade, or any resistance at the time of her capture, nor was there any evidence that she, or her crew, was likely to aid the enemy.Heldthat both captures were unlawful, and without probable cause.The cases are stated in the opinion of the Court.MR. JUSTICE GRAY delivered the opinion of the Court.These are two appeals from decrees of the District Court of the United States for the Southern District of Florida condemning two fishing vessels and their cargoes as prize of war.Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in fishing on the coast of Cuba; sailed under the Spanish flag; was owned by a Spanish subject of Cuban birth, living in the City of Havana; was commanded by a subject of Spain, also residing in Havana, and her master and crew had no interest in the vessel, but were entitled to shares, amounting in all to two-thirds, of her catch, the other third belonging to her owner. Her cargo consisted of fresh fish, caught by her crew from the sea, put on board as they were caught, and kept and sold alive. Until stopped by the blockading squadron, she had no knowledge of the existence of the war or of any blockade. She had no arms or ammunition on board, and made no attempt to run the blockade after she knew of its existence, nor any resistance at the time of the capture.The Paquete Habanawas a sloop, 43 feet long on the keel,Page 175 U. S. 679and of 25 tons burden, and had a crew of three Cubans, including the master, who had a fishing license from the Spanish government, and no other commission or license. She left Havana March 25, 1898, sailed along the coast of Cuba to Cape San Antonio at the western end of the island, and there fished for twenty-five days, lying between the reefs off the cape, within the territorial waters of Spain, and then started back for Havana, with a cargo of about 40 quintals of live fish. On April 25, 1898, about two miles off Mariel, and eleven miles from Havana, she was captured by the United States gunboatCastine.The Lolawas a schooner, 51 feet long on the keel, and of 35 tons burden, and had a crew of six Cubans, including the master, and no commission or license. She left Havana April 11, 1898, and proceeded to Campeachy Sound, off Yucatan, fished there eight days, and started back for Havana with a cargo of about 10,000 pounds of live fish. On April 26, 1898, near Havana, she was stopped by the United States steamshipCincinnati,and was warned not to go into Havana, but was told that she would be allowed to land at Bahia Honda. She then changed her course, and put for Bahia Honda, but on the next morning, when near that port, was captured by the United States steamshipDolphin.Both the fishing vessels were brought by their captors into Key West. A libel for the condemnation of each vessel and her cargo as prize of war was there filed on April 27, 1898; a claim was interposed by her master on behalf of himself and the other members of the crew, and of her owner; evidence was taken, showing the facts above stated, and on May 30, 1898, a final decree of condemnation and sale was entered,"the court not being satisfied that as a matter of law, without any ordinance, treaty, or proclamation, fishing vessels of this class are exempt from seizure."Each vessel was thereupon sold by auction; thePaquete Habanafor the sum of $490 and theLolafor the sum of $800. There was no other evidence in the record of the value of either vessel or of her cargo.It has been suggested in behalf of the United States thatPage 175 U. S. 680this Court has no jurisdiction to hear and determine these appeals because the matter in dispute in either case does not exceed the sum or value of $2,000, and the district judge has not certified that the adjudication involves a question of general importance.The suggestion is founded on 695 of the Revised Statutes, which provides that"an appeal shall be allowed to the Supreme Court from all final decrees of any district court in prize causes, where the matter in dispute, exclusive of costs, exceeds the sum or value of two thousand dollars, and shall be allowed, without reference to the value of the matter in dispute, on the certificate of the district judge that the adjudication involves a question of general importance."The Judiciary Acts of the United States, for a century after the organization of the government under the Constitution, did impose pecuniary limits upon appellate jurisdiction.In actions at law and suits in equity the pecuniary limit of the appellate jurisdiction of this Court from the circuit courts of the United States was for a long time fixed at $2000. Acts of September 24, 1789, c. 20, 22; 1 Stat. 84; March 3, 1803, c. 40; 2 Stat. 244;Gordon v. Ogden,3 Pet. 33; Rev.Stat. 691, 692. In 1875, it was raised to $5,000. Act of February 16, 1875, c. 77, 3; 18 Stat. 316. And in 1889 this was modified by providing that, where the judgment or decree did not exceed the sum of $5,000, this Court should have appellate jurisdiction upon the question of the jurisdiction of the circuit court, and upon that question only. Act of February 25, 1889, c. 236, 1; 25 Stat. 693;Parker v. Ormsby,141 U. S. 81.As to cases of admiralty and maritime jurisdiction, including prize causes, the Judiciary Act of 1789, in 9, vested the original jurisdiction in the district courts, without regard to the sum or value in controversy, and in 21 permitted an appeal from them to the circuit courts where the matter in dispute exceeded the sum or value of $300. 1 Stat. 77, 83, c. 20;The Betsey,3 Dall. 6,3 U. S. 16;The Amiable Nancy,3 Wheat. 546;Stratton v. Jarvis,8 Pet. 4,33 U. S. 11. By the Act of March 3, 1803, c. 40, appeals to the circuit court were permitted from all final decrees of a district court wherePage 175 U. S. 681the matter in dispute exceeded the sum or value of $50, and from the circuit courts to this Court in all cases "of admiralty and maritime jurisdiction, and of prize or no prize" in which the matter in dispute exceeded the sum or value of $2,000. 2 Stat. 244;Jenks v. Lewis,3 Mason 503;Stratton v. Jarvis,above cited;The Admiral,3 Wall. 603,70 U. S. 612. The acts of March 3, 1863, c. 86, 7, and June 30, 1864, c. 174, 13, provided that appeals from the district courts in prize causes should lie directly to this Court, where the amount in controversy exceeded $2,000, or "on the certificate of the district judge that the adjudication involves a question of difficulty and general importance." 12 Stat. 760; 13 Stat. 310. The provision of the act of 1803, omitting the words "and of prize or no prize," was reenacted in 692 of the Revised Statutes, and the provision of the act of 1864, concerning prize causes, was substantially reenacted in 695 of the Revised Statutes, already quoted.But all this has been changed by the Act of March 3, 1891, c. 517, establishing the circuit courts of appeals and creating a new and complete scheme of appellate jurisdiction, depending upon the nature of the different cases, rather than upon the pecuniary amount involved. 26 Stat. 826.By that act, as this Court has declared, the entire appellate jurisdiction from the circuit and district courts of the United States was distributed, "according to the scheme of the act," between this Court and the circuit courts of appeals thereby established, "by designating the classes of cases" of which each of these courts was to have final jurisdiction.McLish v. Roff,141 U. S. 661,141 U. S. 666;American Construction Co. v. Jacksonville Railway,148 U. S. 372,148 U. S. 382;Carey v. Houston & Texas Railway,150 U. S. 170,150 U. S. 179.The intention of Congress, by the act of 1891, to make the nature of the case, and not the amount in dispute, the test of the appellate jurisdiction of this Court from the district and circuit courts clearly appears upon examination of the leading provisions of the act.Section 4 provides that no appeal, whether by writ of error or otherwise, shall hereafter be taken from a district courtPage 175 U. S. 682to a circuit court, but that all appeals, by writ of error or otherwise, from the district courts "shall only be subject to review" in this Court or in the circuit court of appeal "as is hereinafter provided," and "the review by appeal, by writ of error, or otherwise" from the circuit courts, "shall be had only" in this Court or in the circuit court of appeals, "according to the provisions of this act regulating the same."Section 5 provides that "appeals or writs of error may be taken from the district courts, or from the existing circuit courts, direct to the Supreme Court, in the following cases:"First."In any case in which the jurisdiction of the court is in issue; in such cases, the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision."This clause includes "any case," without regard to amount, in which the jurisdiction of the court below is in issue, and differs in this respect from the act of 1889, above cited.Second. "From the final sentences and decrees in prize causes." This clause includes the whole class of "the final sentences and decrees in prize causes," and omits all provisions of former acts regarding amount in controversy, or certificate of a district judge.Third. "In cases of conviction of a capital or otherwise infamous crime." This clause looks to the nature of the crime, and not to the extent of the punishment actually imposed. A crime which might have been punished by imprisonment in a penitentiary is an infamous crime, even if the sentence actually pronounced is of a small fine only.Ex Parte Wilson,114 U. S. 417,114 U. S. 426. Consequently, such a sentence for such a crime was subject to the appellate jurisdiction of this Court, under this clause, until this jurisdiction, so far as regards infamous crimes, was transferred to the circuit court of appeals by the Act of January 20, 1897, c. 68. 29 Stat. 492.Fourth. "In any case, that involves the construction or application of the Constitution of the United States."Fifth."In any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question. "Page 175 U. S. 683Sixth. "In any case in which the Constitution or law of a state is claimed to be in contravention of the Constitution of the United States."Each of these last three clauses, again, includes "any case" of the class mentioned. They all relate to what are commonly called federal questions, and cannot reasonably be construed to have intended that the appellate jurisdiction of this Court over such questions should be restricted by any pecuniary limit -- especially in their connection with the succeeding sentence of the same section:"Nothing in this act shall affect the jurisdiction of the Supreme Court in cases appealed from the highest court of a state, nor the construction of the statute providing for review of such cases."Writs of error from this Court to review the judgments of the highest court of a state upon such questions have never been subject to any pecuniary limit. Act of September 24, 1789, c. 20, 25; 1 Stat. 85;Buel v. Van Ness,8 Wheat. 312; Act of February 5, 1867, c. 28, 2; 14 Stat. 386; Rev.Stat. 709.By section 6 of the act of 1891, this Court is relieved of much of the appellate jurisdiction that it had before; the appellate jurisdiction from the district and circuit courts "in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law," is vested in the circuit court of appeals, and its decisions in admiralty cases, as well as in cases arising under the criminal laws, and in certain other classes of cases, are made final, except that that court may certify to this Court questions of law, and that this Court may order up the whole case by writ of certiorari. It is settled that the words "unless otherwise provided by law," in this section, refer only to provisions of the same act, or of contemporaneous or subsequent acts, and do not include provisions of earlier statutes.Lau Ow Bew v. United States,144 U. S. 47,144 U. S. 57;Hubbard v. Soby,146 U. S. 56;American Construction Co. v. Jacksonville Railway,148 U. S. 372,148 U. S. 383.The act of 1891 nowhere imposes a pecuniary limit upon the appellate jurisdiction, either of this Court or of the circuit court of appeals, from a district or circuit court of the United States. The only pecuniary limit imposed is one ofPage 175 U. S. 684$1,000 upon the appeal to this Court of a case which has been once decided on appeal in the circuit court of appeals, and in which the judgment of that court is not made final by section 6 of the act.Section 14 of the act of 1891, after specifically repealing section 691 of the Revised Statutes and section 3 of the act of February 16, 1875, further provides that"all acts and parts of acts relating to appeals or writs of error, inconsistent with the provisions for review by appeals or writs of error in the preceding sections 5 and 6 of this act, are hereby repealed."26 Stat. 829, 830. The object of the specific repeal, as this Court has declared, was to get rid of the pecuniary limit in the acts referred to.McLish v. Roff,141 U. S. 661,141 U. S. 667. And, although neither section 692 nor section 695 of the Revised Statutes is repealed by name, yet, taking into consideration the general repealing clause, together with the affirmative provisions of the act, the case comes within the reason of the decision in an analogous case, in which this Court said:"The provisions relating to the subject matter under consideration are, however, so comprehensive, as well as so variant from those of former acts, that we think the intention to substitute the one for the other is necessarily to be inferred, and must prevail."Fisk v. Henarie,142 U. S. 459,142 U. S. 468.The decision in this Court in the recent case ofUnited States v. Rider,163 U. S. 132, affords an important, if not controlling, precedent. From the beginning of this century until the passage of the act of 1891, both in civil and in criminal cases, questions of law upon which two judges of the circuit court were divided in opinion might be certified by them to this Court for decision. Act of April 29, 1802, c. 31, 6; 2 Stat. 159; June 1, 1872, c. 255, 1; 17 Stat.196; Rev.Stat. 650-652, 693, 697;Insurance Co. v. Dunham,11 Wall. 1,78 U. S. 21;United States v. Sanges,144 U. S. 310,144 U. S. 320. But inUnited States v. Rider,it was adjudged by this Court that the act of 1891 had superseded and repealed the earlier acts authorizing questions of law to be certified from the circuit court to this Court, and the grounds of that adjudication sufficiently appear byPage 175 U. S. 685the statement of the effect of the act of 1891 in two passages of that opinion:"Appellate jurisdiction was given in all criminal cases by writ of error either from this Court or from the circuit courts of appeals, and in all civil cases by appeal or error, without regard to the amount in controversy, except as to appeals or writs of error to or from the circuit courts of appeals in cases not made final as specified in 6. . . . It is true that repeals by implication are not favored, but we cannot escape the conclusion that, tested by its scope, its obvious purpose, and its terms, the Act of March 3, 1891, covers the whole subject matter under consideration, and furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error, or certificate."163 U. S. 163U.S. 138,163 U. S. 140.That judgment was thus rested upon two successive propositions: first, that the act of 1891 gives appellate jurisdiction, either to this Court or to the circuit court of appeals, in all criminal cases, and in all civil cases "without regard to the amount in controversy;" second, that the act, by its terms, its scope, and its obvious purpose, "furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error, or certificate."As was long ago said by Chief Justice Marshall,"the spirit as well as the letter of a statute must be respected, and where the whole context of the law demonstrates a particular intent in the legislature to effect a certain object, some degree of implication may be called in to aid that intent."Durousseau v. United States,6 Cranch 307,10 U. S. 314. And it is a well settled rule in the construction of statutes, often affirmed and applied by this Court, that,"even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act."United States v. Tynen,11 Wall. 88,78 U. S. 92;King v. Cornell,106 U. S. 395,106 U. S. 396;Tracy v. Tuffly,134 U. S. 206,134 U. S. 223;Fisk v. Henarie,142 U. S. 459,142 U. S. 468;District of Columbia v. Hutton,143 U. S. 18,143 U. S. 27;United States v. Healey,160 U. S. 136,160 U. S. 147.We are of opinion that the act of 1891, upon its face, readPage 175 U. S. 686in the light of settled rules of statutory construction and of the decisions of this Court, clearly manifests the intention of Congress to cover the whole subject of the appellate jurisdiction from the district and circuit courts of the United States, so far as regards in what cases, as well as to what courts, appeals may be taken, and to supersede and repeal, to this extent, all the provisions of earlier acts of Congress, including those that imposed pecuniary limits upon such jurisdiction, and, as part of the new scheme, to confer upon this Court jurisdiction of appeals from all final sentences and decrees in prize causes, without regard to the amount in dispute, and without any certificate of the district judge as to the importance of the particular case.We are then brought to the consideration of the question whether, upon the facts appearing in these records, the fishing smacks were subject to capture by the armed vessels of the United States during the recent war with Spain.By an ancient usage among civilized nations, beginning centuries ago and gradually ripening into a rule of international law, coast fishing vessels pursuing their vocation of catching and bringing in fresh fish have been recognized as exempt, with their cargoes and crews, from capture as prize of war.This doctrine, however, has been earnestly contested at the bar, and no complete collection of the instances illustrating it is to be found, so far as we are aware, in a single published work, although many are referred to and discussed by the writers on international law, notable in 2 Ortolan, Regles Internationales et Diplomatie de la Mer (4th ed.) lib. 3, c. 2, pp. 51-56; in 4 Calvo, Droit International (5th ed.) 2367-2373; in De Boeck, Propriete Privee Ennemie sous Pavillon Ennemi, 191-196, and in Hall, International Law (4th ed.) 148. It is therefore worth the while to trace the history of the rule from the earliest accessible sources through the increasing recognition of it, with occasional setbacks, to what we may now justly consider as its final establishment in our own country and generally throughout the civilized world.The earliest acts of any government on the subject mentionedPage 175 U. S. 687in the books either emanated from, or were approved by, a King of England.In 1403 and 1406, Henry IV issued orders to his admirals and other officers, entitled "Concerning Safety for Fishermen --De Securitate pro Piscatoribus." By an order of October 26, 1403, reciting that it was made pursuant to a treaty between himself and the King of France, and for the greater safety of the fishermen of either country, and so that they could be, and carry on their industry, the more safely on the sea, and deal with each other in peace, and that the French King had consented that English fishermen should be treated likewise, it was ordained that French fishermen might, during the then pending season for the herring fishery, safely fish for herrings and all other fish from the harbor of Gravelines and the Island of Thanet to the mouth of the Seine and the harbor of Hautoune. And by an order of October 5, 1406, he took into his safe conduct and under his special protection, guardianship, and defense all and singular the fishermen of France, Flanders, and Brittany, with their fishing vessels and boats, everywhere on the sea, through and within his dominions, jurisdictions, and territories, in regard to their fishery, while sailing, coming, and going, and at their pleasure, freely and lawfully fishing, delaying, or proceeding, and returning homeward with their catch of fish, without any molestation or hindrance whatever, and also their fish, nets, and other property and goods soever, and it was therefore ordered that such fishermen should not be interfered with, provided they should comport themselves well and properly, and should not, by color of these presents, do or attempt, or presume to do or attempt, anything that could prejudice the King, or his Kingdom of England, or his subjects. 8 Rymer's Foedera 336, 451.The treaty made October 2, 1521, between the Emperor Charles V and Francis I of France, through their ambassadors, recited that a great and fierce war had arisen between them, because of which there had been, both by land and by sea, frequent depredations and incursions on either side, to the grave detriment and intolerable injury of the innocentPage 175 U. S. 688subjects of each, and that a suitable time for the herring fishery was at hand, and, by reason of the sea being beset by the enemy, the fishermen did not dare to go out, whereby the subject of their industry, bestowed by heaven to allay the hunger of the poor, would wholly fail for the year unless it were otherwise provided --quo fit, ut piscaturae commoditas, ad pauperum levandam famen a coelesti numine concessa, cessare hoc anno omnino debeat, nisi aliter provideatur.And it was therefore agreed that the subjects of each sovereign, fishing in the sea or exercising the calling of fishermen, could and might, until the end of the next January, without incurring any attack, depredation, molestation, trouble, or hindrance soever, safely and freely, everywhere in the sea, take herrings and every other kind of fish, the existing war by land and sea notwithstanding; and, further, that, during the time aforesaid, no subject of either sovereign should commit, or attempt or presume to commit, any depredation, force, violence, molestation, or vexation to or upon such fishermen or their vessels, supplies, equipments, nets, and fish, or other goods soever truly appertaining to fishing. The treaty was made at Calais, then an English possession. It recites that the ambassadors of the two sovereigns met there at the earnest request of Henry VIII and with his countenance and in the presence of Cardinal Wolsey, his chancellor and representative. And towards the end of the treaty, it is agreed that the said King and his said representative, "by whose means the treaty stands concluded, shall be conservators of the agreements therein, as if thereto by both parties elected and chosen." 4 Dumont, Corps Diplomatique, pt. 1, pp. 352, 353.The herring fishery was permitted, in time of war, by French and Dutch edicts in 1536. Bynkershoek, Quaestiones Juris Publicae, lib. 1, c. 3; 1 Emerigon des Assurances, c. 4, section 9; c. 12, section 19, section 8.France, from remote times, set the example of alleviating the evils of war in favor of all coast fishermen. In the compilation entitled "Us et Coutumes de la Mer," published by Cleirac in 1661, and in the third part thereof, containing "Maritime or Admiralty Jurisdiction-- la Jurisdiction de laPage 175 U. S. 689Marine ou d'Admiraute-- as well in time of peace as in time of war," article 80 is as follows:"The admiral may in time of war accord fishing truces --tresves pescheresses-- to the enemy and to his subjects, provided that the enemy will likewise accord them to Frenchmen."Cleirac 544. Under this article, reference is made to articles 49 and 79, respectively, of the French ordinances concerning the admiralty in 1543 and 1584, of which it is but a reproduction. 4 Pardessus, Collection de Lois Maritimes 319; 2 Ortolan, 51. And Cleirac adds, in a note, this quotation from Froissart's Chronicles:"Fishermen on the sea, whatever war there were in France and England, never did harm to one another; so they are friends, and help one another at need --Pescheurs sur mer, quelque guerre qui soit en France et Angleterre, jamais ne se firent mal l'un a l'autre; aincois sont amis, et s'aydent l'un a l'autre au besoin."The same custom would seem to have prevailed in France until towards the end of the seventeenth century. For example, in 1675, Louis XIV and the States General of Holland, by mutual agreement, granted to Dutch and French fishermen the liberty, undisturbed by their vessels of war, of fishing along the coasts of France, Holland, and England. D'Hauterive et De Cussy, Traites de Commerce, pt. 1, vol. 2, p. 278. But by the ordinances of 1681 and 1692, the practice was discontinued, because, Valin says, of the faithless conduct of the enemies of France, who, abusing the good faith with which she had always observed the treaties, habitually carried off her fishermen, while their own fished in safety. 2 Valin sur l'Ordonnance de la Marine (1776) 689, 690; 2 Ortolan 52; De Boeck, 192.The doctrine which exempts coast fishermen, with their vessels and cargoes, from capture as prize of war, has been familiar to the United States from the time of the War of Independence.On June 5, 1779, Louis XVI., our ally in that war, addressed a letter to his admiral, informing him that the wish he had always had of alleviating, as far as he could, the hardships of war, had directed his attention to that class of his subjectsPage 175 U. S. 690which devoted itself to the trade of fishing, and had no other means of livelihood; that he had thought that the example which he should give to his enemies, and which could have no other source than the sentiments of humanity which inspired him, would determine them to allow to fishermen the same facilities which he should consent to grant, and that he had therefore given orders to the commanders of all his ships not to disturb English fishermen, nor to arrest their vessels laden with fresh fish, even if not caught by those vessels; provided they had no offensive arms, and were not proved to have made any signals creating a suspicion of intelligence with the enemy, and the admiral was directed to communicate the King's intentions to all officers under his control. By a royal order in council of November 6, 1780, the former orders were confirmed, and the capture and ransom, by a French cruiser, ofThe John and Sarah,an English vessel, coming from Holland, laden with fresh fish, were pronounced to be illegal. 2 Code des Prises (ed. 1784) 721, 901, 903.Among the standing orders made by Sir James Marriott, Judge of the English High Court of Admiralty, was one of April 11, 1780, by which it was"ordered that all causes of prize of fishing boats or vessels taken from the enemy may be consolidated in one monition, and one sentence or interlocutory, if under fifty tons burthen, and not more than six in number."Marriott's Formulary 4. But by the statements of his successor, and of both French and English writers, it appears that England, as well as France, during the American Revolutionary War, abstained from interfering with the coast fisheries.The Young Jacob and Johanna,1 C. Rob. 20; 2 Ortolan 53; Hall, 148.In the treaty of 1785 between the United States and Prussia, article 23 (which was proposed by the American Commissioners, John Adams, Benjamin Franklin, and Thomas Jefferson, and is said to have been drawn up by Franklin), provided that if war should arise between the contracting parties,"all women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers, and fishermen,Page 175 U. S. 691unarmed and inhabiting unfortified towns, villages, or places, and in general all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the enemy, into whose power, by the events of war, they may happen to fall; but if anything is necessary to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price."8 Stat. 96; 1 Kent Com. 91, note; Wheaton, History of the Law of Nations, 306, 308. Here was the clearest exemption from hostile molestation or seizure of the persons, occupations, houses, and goods of unarmed fishermen inhabiting unfortified places. The article was repeated in the later treaties between the United States and Prussia of 1799 and 1828. 8 Stat. 174, 384. And Dana, in a note to his edition of Wheaton's International Laws, says:"In many treaties and decrees, fishermen catching fish as an article of food are added to the class of persons whose occupation is not to be disturbed in war."Wheaton, International Law (8th ed.) 345, note 168.Since the United States became a nation, the only serious interruptions, so far as we are informed, of the general recognition of the exemption of coast fishing vessels from hostile capture, arose out of the mutual suspicions and recriminations of England and France during the wars of the French Revolution.In the first years of those wars, England having authorized the capture of French fishermen, a decree of the French National Convention of October 2, 1793, directed the executive power "to protest against this conduct, theretofore without example; to reclaim the fishing boats seized; and, in case of refusal, to resort to reprisals." But in July, 1796, the Committee of Public Safety ordered the release of English fishermen seized under the former decree, "not considering them as prisoners of war."La Nostra Segnora de la Piedad(1801) cited below; 2 De Cussy, Droit Maritime, 164, 165; 1 Masse, Droit Commercial (2d ed.) 266, 267.Page 175 U. S. 692On January 24, 1798, the English government by express order instructed the commanders of its ships to seize French and Dutch fishermen with their boats. 6 Martens, Recueil des Traites (2d ed.) 505; 6 Schoell, Histoire des Traites, 119; 2 Ortolan, 53. After the promulgation of that order, Lord Stowell (then Sir William Scott) in the High Court of Admiralty of England condemned small Dutch fishing vessels as prize of war. In one case, the capture was in April, 1798, and the decree was made November 13, 1798.The Young Jacob and Johanna,1 C. Rob. 20. In another case, the decree was made August 23, 1799.The Noydt Gedacht,2 C. Rob. 137, note.For the year 1800, the orders of the English and French governments and the correspondence between them may be found in books already referred to. 6 Martens 503-512; 6 Schoell, 118-120; 2 Ortolan 53, 54. The doings for that year may be summed up as follows: on March 27, 1800, the French government, unwilling to resort to reprisals, reenacted the orders given by Louis XVI in 1780, above mentioned, prohibiting any seizure by the French ships of English fishermen, unless armed or proved to have made signals to the enemy. On May 30, 1800, the English government, having received notice of that action of the French government, revoked its order of January 24, 1798. But soon afterward, the English government complained that French fishing boats had been made into fireboats at Flushing, as well as that the French government had impressed and had sent to Brest, to serve in its flotilla, French fishermen and their boats, even those whom the English had released on condition of their not serving, and on January 21, 1801, summarily revoked its last order, and again put in force its order of January 24, 1798. On February 16, 1801, Napoleon Bonaparte, then First Consul, directed the French commissioner at London to return at once to France, first declaring to the English government that its conduct,"contrary to all the usages of civilized nations, and to the common law which governs them, even in time of war, gave to the existing war a character of rage and bitterness which destroyed even the relations usual in a loyal war, "Page 175 U. S. 693and "tended only to exasperate the two nations, and to put off the term of peace," and that the French government, having always made it"a maxim to alleviate as much as possible the evils of war, could not think, on its part, of rendering wretched fishermen victims of a prolongation of hostilities, and would abstain from all reprisals."On March 16, 1801, the Addington Ministry, having come into power in England, revoked the orders of its predecessors against the French fishermen, maintaining, however, that "the freedom of fishing was nowise founded upon an agreement, but upon a simple concession," that "this concession would be always subordinate to the convenience of the moment," and that "it was never extended to the great fishery, or to commerce in oysters or in fish." And the freedom of the coast fisheries was again allowed on both sides. 6 Martens 514; 6 Schoell 121; 2 Ortolan, 54; Manning, Law of Nations (Amos' ed.) 206.Lord Stowell's judgment inThe Young Jacob and Johanna,1 C. Rob. 20, above cited, was much relied on by the counsel for the United States, and deserves careful consideration.The vessel there condemned is described in the report as "a small Dutch fishing vessel taken April, 1798, on her return from the Dogger bank to Holland," and Lord Stowell, in delivering judgment, said:"In former wars, it has not been usual to make captures of these small fishing vessels; but this rule was a rule of comity only, and not of legal decision; it has prevailed from views of mutual accommodation between neighboring countries, and from tenderness to a poor and industrious order of people. In the present war, there has, I presume, been sufficient reason for changing this mode of treatment, and as they are brought before me for my judgment, they must be referred to the general principles of this Court; they fall under the character and description of the last class of cases -- that is, of ships constantly and exclusively employed in the enemy's trade."And he added: "It is a further satisfaction to me in giving this judgment to observe that the facts also bear strong marks of a false and fraudulent transaction."Page 175 U. S. 694Both the capture and the condemnation were within a year after the order of the English government of January 24, 1798, instructing the commanders of its ships to seize French and Dutch fishing vessels, and before any revocation of that order. Lord Stowell's judgment shows that his decision was based upon the order of 1798, as well as upon strong evidence of fraud. Nothing more was adjudged in the case.But some expressions in his opinion have been given so much weight by English writers that it may be well to examine them particularly. The opinion begins by admitting the known custom in former wars not to capture such vessels, adding, however, "but this was a rule of comity only, and not of legal decision." Assuming the phrase "legal decision" to have been there used, in the sense in which courts are accustomed to use it, as equivalent to "judicial decision," it is true