The Concept of Customary International Law

Arguments for Asteria (Estoppel and Customary Law)
Estoppel
THE CONCEPT OF CUSTOMARY INTERNATIONAL LAW
 Although the concept of customary international law is elusive, some norms have clearly
emerged internationally through a customary lawmaking process. The law of diplomatic
immunities is one of the best examples. Until the entry into force of the Vienna Convention
on Diplomatic Relations 3 thirty years ago, diplomatic immunities rested almost entirely on
custom. Nevertheless, states recognized diplomatic immunities as binding norms - as
rules stating what they "ought" to do, even when inconvenient or unpopular. Indeed, over
the years, quite elaborate rules of immunity developed, defining the persons or things
covered, the extent of their immunities, and the permissible actions of the receiving state.
 Why should states comply with customary norms?- this question is normative rather than
empirical; it demands an inquiry into the basis of legal obligation. With respect to
international law, this inquiry is of more than philosophical interest. In contrast to Western
domestic legal systems, where compliance typically depends on habit or fear of sanctions
and the authority of the law generally goes unquestioned, compliance with international
law depends on the recognition by states that they should comply.
 Customary international law is made up of rules that come from "a general practice
accepted as law" and that exist independent of treaty law.
 International law comes from both treaty law and rules of what is known as customary
international law. Treaties are written conventions in which States formally establish
certain rules. Customary international law, on the other hand, is not written but derives
from "a general practice accepted as law". To prove that a certain rule is customary, one
has to show that it is reflected in state practice and that the international community
believes that such practice is required as a matter of law.
As for Asteria’s traditional fishing rights
 Historic or traditional fishing rights should be taken into consideration in exceptional

circumstances as laid down in the Gulf of Maine Case, which provides for catastrophic
social and economic repercussions if fisheries rights are ignored. The same is reiterated
in the case between Barbados and Trinidad and Tobago where it was held that fishing
activities are deemed relevant only in such exceptional circumstances. In Philippines v.
China, any historic rights China may have had in the waters of South China Sea beyond
its territorial sea were extinguished by the adoption in the Convention and in customary
law of the concept of the exclusive economic zone. Thus, both Ratona and Asteria are
original members of the UNCLOS and being so, they are bound by the rules UNCLOS
created, including the rules regarding historic titles and EEZ regime. Therefore, any
historical claim, such as traditional fishing rights that Asteria may have in Delfino
Archipelago, will not prevail over Ratona’s sovereign rights as Ratona being a coastal
state, is under no obligation to recognize them since by accepting the EEZ regime, Asteria
has given up any claims it may have had based on traditional or historic fishing rights.
ESTOPPEL
 International law has long recognized the doctrine of estoppel, a principle which prevents
states from acting inconsistently to the detriment of others. Until recently, the use of
estoppel in international law was limited to cases involving territorial claims, where the
World Court had applied estoppel five times. In November 1984, however, the Court twice
applied the doctrine-without specifically identifying it as such against the United States in
finding jurisdiction over a Nicaraguan claim. The Court did so without explanation, analysis
of the principle's elements, or discussion of the ramifications of such an extension. There
are two primary reasons why estoppel should not apply to jurisdiction. First, estoppel
would allow the Court to claim jurisdiction in contravention of its own rules. Second,
jurisdiction by estoppel might vitiate a state's right to withhold consent to jurisdiction, thus
undermining the foundation of international jurisdiction.
 International estoppel requires satisfaction of three elements. First, the statement creating
the estoppel must be clear and unambiguous; second, the statement must be voluntary,
unconditional, and authorized; and finally, there must be good faith reliance upon the
representation of one party by the other party either to the detriment of the relying party
or to the advantage of the party making the representation. The first two elements have
sparked little controversy; the third, however, has occasioned much debate.
 "the party invoking the rule must have 'relied upon' the statements or conduct of the other
party, either to its own detriment or to the other's advantage. Furthermore, in the
Nicaragua case, the ICJ reaffirmed the reliance requirement, stating that "estoppel may
be inferred from the conduct, declarations and the like made by a State which... [has]
caused another State or States, in reliance on such conduct, detrimentally to change
position or suffer some prejudice. The reliance requirement may derive from the municipal
law idea of detrimental reliance, but it performs an independent function in international
law. Without it, international estoppel would severely limit the development of international
policies by individual nations. States would feel bound to maintain outdated policies
regardless of whether any other state had relied on the existence of those policies.
 Estoppel is grounded on a need for good faith dealings among nations, but mere
inconsistency does not necessarily imply a lack of good faith. A change in foreign policy
usually does not, and should not, lead to international condemnation. If a nation changes
its announced policy and thereby injures a third party, international accountability may be
appropriate since, as one writer states, "the consequent change in the position of the
parties means that in order to maintain good faith the party must stand by his
representation.However, if the complaining party never relied on the statement and
consequently did not change its position, the change in policy cannot be said to lack good
faith.
 Claims of international estoppel arise in two contexts: unilateral declarations and

acquiescence. Though facially dissimilar in some regards, the requirements and
applications of estoppel are essentially the same in both contexts.
 A state may act unilaterally in one of two ways: it may make a unilateral promise or it may
make a unilateral statement of fact. Either may give rise to an estoppel. In the Nuclear
Tests case,32 the Court bound France to its unilateral statement that atmospheric nuclear
tests would soon cease, although the Court never used the term "estoppel." However, it
stated: "Just as the very rule of pacta sunt servanda in the law of treaties is based on good
faith, so is the binding character of an international obligation assumed by unilateral
declaration."33 The Court found that binding unilateral declarations made "the State...
thenceforth legally required to follow a course of conduct consistent with the declaration."
4 According to this holding, unilateral declarations bind the state under a good faith
doctrine that fosters consistency in international relations. A doctrine having such an effect
would appear to be estoppel.

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Arguments for Asteria (Estoppel and Customary Law)

THE CONCEPT OF CUSTOMARY INTERNATIONAL LAW

As for Asteria’s traditional fishing rights

 Historic or traditional fishing rights should be taken into consideration in exceptional

 Claims of international estoppel arise in two contexts: unilateral declarations and

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