The Concept of a Legal Norm

VCLT, Art. 53 ”a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”

The concept of a legal norm A legal norm is not to be identified with the utterance or utterances expressing the norm. In order to fully reconstruct the contents of a legal norm having a regulative character, we need to be able to state: the specific kind of conduct or state of affairs prescribed, prohibited, or permitted, and each and every single condition, of which the prescription, prohibition, or permission is to be dependent, including to whom it applies.

UNCLOS, Art. 109 § 4: “On the high seas, a State having jurisdiction in accordance with paragraph 3 may, in conformity with article 110, arrest any person or ship engaged in unauthorized broadcasting and seize the broadcasting apparatus.”

UNCLOS, Art. 219: “Subject to section 7, States which, upon request or on their own initiative, have ascertained that a vessel within one of their ports or at one of their offshore terminals is in violation of applicable international rules and standards relating to seaworthiness of vessels and thereby threatens damage to the marine environment shall as far as practicable, take administrative measures to prevent the vessel from sailing.”

Elements of a jus cogens norm The prohibition of the use of force The right of sel-defence The right to take forcible action pursuant to an authorizing decision taken by the UNSC

Use of Nuclear Weapons Advsory Opinion “[A]ccording to the law of self-defence, in order for a use of force to be proportionate, it must meet ”the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law” (ICJ Reports 1996, p. 245).

UN Charter, Art. 51 ”Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security”.

VCLT, Art. 53 ”a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”

Difference between rules and principles Whereas rules apply in an ”all-or-nothing”-fashion, principles call for optimization Whereas rules are conclusive reasons for action, principles are not Conflicts between rules and principles are resolved differently

Opposite coasts

Adjacent coasts

Opposite and adjacent coasts

Maritime delimitation, applicable law “Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.” (UNCLOS Art. 15) “The delimitation of the exclusive economic zone [or the continental shelf] between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.” (UNCLOS Arts. 73 and 83)

Equitable principles Principle of equal division Principle of non-encroachment of natural prolongation Principle of no cutting-off Principle of sovereign equality Principle of predominant interest Principle of proportionality What parties have accepted should be legally recognised

English Channel Maritime Delimitation Case

Norway-Russia Maritime Delimitation

North Sea Continental Shelf Cases

Jan Mayen

Black Sea Maritime Delimitation Case Purpose: To achieve an equitable solution Metodology: (1) Establish the median line/line of equidistance (2) Investigate the existence and importance of relevant circumstances (3) The (dis-)proportionality test

The provisional equidistance line

Relevant circumstances Lengths of coasts Other Black Sea delimitation agreements used equidistance as the method Serpents Island Conduct of the parties Cutting-off effect Security consideration of the parties The (dis-)proportionality test

Questions to reflect upon What kind of activities are governed by international legal principles? Why is an activity governed by principles rather than rules?