24. Qatar v.

Bahrain (Law of treatise)

Citation. I.C.J., 1994 I.C.J. 112

Brief Fact Summary. A claim to settle a dispute involving sovereignty over certain islands, sovereign
rights over certain shoals and delimitation of a maritime boundary was filed by Qatar (P) in the
International Court of Justice against Bahrain (D). The Court’s jurisdiction was however disputed by
Bahrain (D).

Synopsis of Rule of Law. An international agreement creating rights and obligations can be constituted
by the signatories to the minutes of meetings and letters exchanged.

Facts. A dispute concerning sovereignty over certain islands and shoals, including the delimitation of a
maritime boundary were issues upon which Qatar (P) and Bahrain (D) sought to resolve for 20 years.
During this period of time, letters were exchanged and acknowledged by both parties heads of state. A
Tripartite Committee for the purpose of approaching the International Court of Justice was formed by
representatives of Qatar (P), Bahrain (D) and Saudi Arabia. Though the committee met several time, it
failed to produce an agreement on the specific terms for submitting the dispute to the Court. Eventually,
the meetings culminated in “Minutes”, which reaffirmed the process and stipulated that the parties
“may” submit the dispute to the I.C.J. after giving the Saudi King six months to resolve the dispute. The
Court’s jurisdiction was disputed by Bahrain (D) when Qatar (P) filed a claim in the I.C.J.

Issue. W/N An international agreement creating rights and obligations can be constituted by the
signatories to the minutes of meetings and letters exchanged.

Held: Yes. An international agreement creating rights and obligations can be constituted by the
signatories to the minutes of meetings and letters exchanged. Though Bahrain (D) argued that the
Minutes were only a record of negotiation and could not serve as a basis for the I.C.J.’s jurisdiction, both
parties agreed that the letters constituted an international agreement with binding force.
International agreements do not take a single form under the Vienna Convention on the Law of Treaties,
and the Court has enforced this rule in the past. In this case, the Minutes not only contain the record of
the meetings between the parties, it also contained the reaffirmation of obligations previously agreed to
and agreement to allow the King of Saudi Arabia to try to find a solution to the dispute during a six-
month period, and indicated the possibility of the involvement of the I.C.J. The Minutes stipulated
commitments to which the parties agreed, thereby creating rights and obligations in international law.
This is the basis therefore of the existence of international agreement.
On the part of the Bahrain’s (D) Foreign Minister, he argued that no agreement existed because he
never intended to enter an agreement fails on the grounds that he signed documents creating rights and
obligations for his country. Also, Qatar’s (P) delay in applying to the United Nations Secretariat does not
indicate that Qatar (P) never considered the Minutes to be an international agreement as Bahrain (D)
argued. However, the registration and non-registration with the Secretariat does not have any effect on
the validity of the agreement.

1
Air France v. Saks

Facts:

The claimant suffered damage to and become permanently deaf in one ear as a result of pressurisation
changes while the aircraft descended to land in Los Angeles on a trip from Paris. The pressure system
had worked normally. The airline said that the normal operation of a normal pressurisation system could
not qualify as an Article 17 accident. Article 17 of the Warsaw Convention makes air carriers liable for
injuries sustained by a passenger "if the accident which caused the damage so sustained took place on
board the aircraft or in the course of any of the operations of embarking or disembarking."

Issue:

Whether the airline should be held responsible for injuries proximately caused by the risks inherent in
air travel that qualify as an "accident" within the definition contained in the Convention.

Ruling:

No. Liability under Article 17 arises only if a passenger's injury is caused by an unexpected or unusual
event or happening that is external to the passenger, and not where the injury results from the
passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, in
which case it has not been caused by an accident under Article 17.

The text of the Warsaw Convention suggests that the passenger's injury must be so caused. The
difference in the language of Article 17 imposing liability for injuries to passengers caused by an
"accident" and [470 U.S. 392, 393] Article 18 imposing liability for destruction or loss of baggage by an
"occurrence," implies that the drafters of the Convention understood the word "accident" to mean
something different than the word "occurrence." Moreover, Article 17 refers to an accident which
caused the passenger's injury, and not to an accident which is the passenger's injury. The text thus
implies that, however "accident" is defined, it is the cause of the injury that must satisfy the definition
rather than the occurrence of the injury alone. And, since the Warsaw Convention was drafted in French
by continental jurists, further guidance is furnished by the French legal meaning of "accident" - when
used to describe a cause of injury, rather than the event of injury - as being a fortuitous, unexpected a
unusual, or unintended event. Pp. 397-400.

Abaya v. Sec. Ebdane

GR No. 167919, February 14, 2007

FACTS:
Petitioners Plaridel M. Abaya (a taxpayer, former lawmaker, and a Filipino citizen)
and Plaridel C. Garcia (a taxpayer, former military officer, and a Filipino citizen), sought to
nullify a DPWH resolution which recommended the award to private respondent China Road &
Bridge Corporation of the contract for the implementation of the civil works known
as Contract Package No. 1. They also seek to annul the contract of agreement subsequently
2
entered into by and between the DPWH and China Road & Bridge Corporation pursuant to said
resolution.

The public respondents are the DPWH, as the government agency tasked with the
implementation of government infrastructure projects; the Department of Budget and
Management (DBM) as the government agency that authorizes the release and disbursement of
public funds for the implementation of government infrastructure projects; and the Department
of Finance (DOF) as the government agency that acts as the custodian and manager of all
financial resources of the government. Also named as individual public respondents are
Hermogenes E. Ebdane, Jr., Emilia T. Boncodin and Cesar V. Purisima in their capacities as
former Secretaries of the DPWH, DBM and DOF, respectively. On the other hand, public
respondent Norma L. Lasala was impleaded in her capacity as Treasurer of the Bureau of
Treasury.

On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and
Highways (DPWH) issued a Resolution No. PJHL-A-04-012. It was approved by DPWH Acting
Secretary Florante Soriquez. This resolution recommended the award to China Road & Bridge
Corporation of the contract for the implementation of civil works for Contract Package No. I (CP
I), which consists of the improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga
road, with the length of 79.818 kilometers, in the island province of Catanduanes.
This Loan Agreement No. PH-204 was executed by and between the JBIC and the Philippine
Government pursuant to the exchange of Notes executed by and between Mr. Yoshihisa Ara,
Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign
Affairs Secretary Siazon, in behalf of their respective governments.

ISSUE:
Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine
Government is an executive agreement.

HELD:
Yes. The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated
December 27, 1999 between the Japanese Government and the Philippine Government is an
executive agreement.
An “exchange of notes” is a record of a routine agreement that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other.
…treaties, agreements, conventions, charters, protocols, declarations, memoranda of
understanding, modus vivendi and exchange of notes all are refer to international instruments
binding at international law.
Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are the
result of long practice among the States, which have accepted them as binding norms in their
mutual relations. Therefore, they are regarded as international customary law.

DBM (Department of Budget) vs Kolonwel Trading; Vibal vs Kolonwel Trading; DEPED vs

Kolonwel Trading

3
June 8, 2007

Facts: This is a petition for review to nullify and set aside the Order of the Manila RTC. In 2005,
DepEd undertook a procurement project which is to be jointly funded by the World Bank, thru
the Second Social Expenditure Management Program (SEMP2) of the Philippine (RP)
International Bank for Reconstruction and development (IBRD) Loan Agreement No. 7118-PH
and the Asian Development Bank thru SEDIP Loan No. 1654-PHI. In October, the Deped called
for a bidding for the supply of the Makabayan textbooks and teachers manuals. Earlier, the
Executive Director of the Government Procurement Policy Boar, stated that procurement[s] for
MAKABAYAN textbooks where funds therefore are sourced from World Bank Loan shall be
governed by the applicable procurement guidelines of the foreign lending institution. Of the
entities, foreign and local, only eleven (11) bidders submitted, including private respondent
Kolonwel.

Following the bid and the book content/body evaluation process, DBM committee issued a
resolution disqualifying, among others, Kolonwel for “failure in cover stock testing “. Kolonwel
was informed of this and subsequently filed with RTC Manila a special civil action for certiorari
with a prayer for TRO. The Manila RTC issued a TRO, and later issued a decision wherein
Resolution of the DBM was annulled and set aside. Petitioners urge the annulment of the assailed
RTC order on jurisdictional ground, among others, that the Manila RTC erred in assuming
jurisdiction over the case despite respondent Kolonwels failure to observe the protest mechanism
provided under Sec. 55, Secs. 57, 58 of R.A. No. 9184.

Issue: WON the foreign loan agreements with international financial institutions, partake of an
executive or international agreement and shall govern the procurement of goods necessary to
implement the project.

Ruling: Yes. The decision of the Manila RTC is annulled and set aside. The question as to
whether or not foreign loan agreements with international financial institutions partake of an
executive or international agreement within the purview of the Section 4 of R.A. No. 9184, has
been answered by the Court in the affirmative in Abaya. In that case, the court declared that the
RP-JBIC loan agreement was to be of governing application over the CP I project and that the
JBIC Procurement Guidelines, as stipulated in the loan agreement.

Under the fundamental international principle of pacta sunt servanda, the RP-IBRD (Philippine
International Bank for Reconstruction and development), as borrower bound itself to perform in
good faith the duties and obligations under Loan No. 7118-PH. Applying this postulate, the
DBM IABAC, was legally obliged to comply with, or accord primacy to the World Bank
guidelines on the conduct and implementation of the bidding/procurement process in question.
Foreign loan agreements with international financial institutions, such as Loan No. 7118-PH,
partake of an executive or international agreement within the purview of Sec. 4 of RA9184.

4
Significantly, whatever was stipulated in the loan agreement, shall primarily govern the
procurement of goods necessary to implement the main project.

As in Abaya, there really should be no reason why the policy behind Section 55 of IRR-A on the
procedure for protest cannot be applied, even analogously, to foreign-funded procurement
projects, such as those in this case. Indeed, there is no discernable justification why a different
procedure should obtain with respect to foreign-funded procurement undertakings as opposed to
a locally funded project, and certainly there is no concrete foundation in R.A. 9184 to indicate
that Congress intended such a variance in the protest procedure.

Note: There was an issue of jurisdiction with the RTC Manila.

R.A. No. 9184 sets 3 requirements that must be met by the party desiring to protest the decision
of the Bids and Awards Committee (BAC). These are: 1) the protest must be in writing, in the
form of a verified position paper; 2) the protest must be submitted to the head of the procuring
entity; and 3) the payment of a non-refundable protest fee. The jurisdictional caveat that
authorizes courts to assume or, inversely, precludes courts from assuming, jurisdiction over suits
assailing the BACs decisions is in turn found in the succeeding Section 58 which provides that
the courts would have jurisdiction over such suits only if the protest procedure has already been
completed.

Respondents letters in which it requested reconsideration of its disqualification cannot plausibly

be given the status of a protest in the context of R.A. No. 9184. For one, neither of the letter-
request was addressed to the head of the procuring entity, in this case the DepEd Secretary or the
head of the DBM Procurement Service, as required by law. For another, the same letters were
unverified. And not to be overlooked of course is the fact that the third protest-completing
requirement, i.e., payment of protest fee, was not complied with.

Furthermore, there is, in fact a set of implementing rules and regulations, denominated as IRR-A,
issued and the Joint Congressional Oversight Committee, Section 55, of which provides that
prior to a resort to protest, the aggrieved party must first file a motion for reconsideration of the
decision of the BAC. It is only after the BAC itself denies reconsideration that the protest,
accompanied by a fixed protest fee, shall be filed within the period defined in the IRR.

G.R. No. 151445 April 11, 2002

5
LIM vs. EXECUTIVE SECRETARY

DE LEON, JR., J.:

FACTS: Beginning 2002, personnel from the armed forces of the US started arriving in Mindanao, to take
part, in conjunction with the Philippine military, in “Balikatan 02-1”. In theory, they are a simulation of
joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered
into by the Philippines and the United States in 1951.

On Feb. 2002, Lim filed this petition for certiorari and prohibition, praying that respondents be
restrained from proceeding with the so-called “Balikatan 02-1”, and that after due notice and hearing,
judgment be rendered issuing a permanent writ of injuction and/or prohibition against the deployment
of US troops in Basilan and Mindanao for being illegal and in violation of the Constitution which
prohibits foreign military bases, troops or facilities unless a treaty permits the same. (There is no treaty
allowing foreign military troops to engage in combat with internal elements.)

Petitioners contend that the Republic of PH and the US signed the Mutual Defense Treaty to provide
mutual military assistance in accordance with the “constitutional processes” of each country only in the
case of a armed attack by an external aggressor, meaning a third country, against one of them. They
further argued that it cannot be said that the Abu Sayyaf in Basilan constitutes an external aggressor to
warrant US military assistance in accordance with MDT of 1951. Another contention was that the VFA of
1999 does not authorize American soldiers to engage in combat operations in Philippine territory.

ISSUE: Whether or not Lim’s petition for certiorari and prohibition against respondents should prosper.

RULING: NO. The petition was DISMISSED. The issue in this case was not a fit topic for a special civil
action for certiorari. The Supreme Court is not a trier of facts.

The Constitution regulates the foreign relations powers of the Chief Executive when it provides that no
treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds
of all the members of the Senate.

After the expiration in 1991 of the Agreement between the Republic of the Philippines and the USA
concerning Military Bases, foreign military bases, troops or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting state.

Hence, foreign troops are allowed entry into the Philippines only by way of direct exception.

Bayan vs Zamora

Facts:

6
The Republic of the Philippines and the United States of America entered into an agreement
called the Visiting Forces Agreement (VFA). The agreement was treated as a treaty by the
Philippine government and was ratified by then-President Joseph Estrada with the concurrence
of 2/3 of the total membership of the Philippine Senate.

The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It
provides for the guidelines to govern such visits, and further defines the rights of the U.S. and
the Philippine governments in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and supplies.

Petitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987
Constitution, which provides that “foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the Senate . . . and
recognized as a treaty by the other contracting State.”
Issue

Whether or not the ratification by the president estrada and the senate of the VFA
should be taken as a consent of our nation to be bound by said treaty?

Held:

Yes

Ratification is generally held to be an executive act, undertaken by the head of the state
or of the government, as the case may be, through which the formal acceptance of the treaty is
proclaimed. A State may provide in its domestic legislation the process of ratification of a
treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a)
the treaty provides for such ratification, (b) it is otherwise established that the negotiating
States agreed that ratification should be required, (c) the representative of the State has signed
the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to
ratification appears from the full powers of its representative, or was expressed during the
negotiation.[44] In our jurisdiction, the power to ratify is vested in the President and not, as
commonly believed, in the legislature.

The role of the Senate is limited only to giving or withholding its consent, or
concurrence, to the ratification. With the ratification of the VFA, which is equivalent to final
acceptance, and with the exchange of notes between the Philippines and the United States of
America, it now becomes obligatory and incumbent on our part, under the principles of
international law, to be bound by the terms of the agreement. Thus, no less than Section 2,
Article II of the Constitution, declares that the Philippines adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations
Pimentel vs Exec Secretary

7
Facts:

This is a petition of Senator Aquilino Pimentel and the other parties to ask the Supreme
Court to require the Executive Department to transmit the Rome Statute which established the
International Criminal Court for the Senate’s concurrence in accordance with Sec 21, Art VII of the
1987 Constitution.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and
international law, is a function of the Senate. Hence, it is the duty of the executive department to
transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with
respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a ministerial
duty to ratify the Rome Statute under treaty law and customary international law. Petitioners
invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which
would defeat the object and purpose of a treaty when they have signed the treaty prior to
ratification unless they have made their intention clear not to become parties to the treaty.
The Office of the Solicitor General, commenting for the respondents, questioned the standing of the
petitioners to file the instant suit. It also contended that the petition at bar violates the rule on
hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the
executive department has no duty to transmit the Rome Statute to the Senate for concurrence.

Issue: W/N the executive department has a ministerial duty to transmit the Rome Statute (or any
treaty) to the Senate for concurrence.

Ruling:

No. The President, being the head of state, is regarded as the sole organ and authority in
external relations and is the country’s sole representative with foreign nations. As the chief
architect of foreign policy, the President acts as the country’s mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign states
and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties,
and otherwise transact the business of foreign relations. In the realm of treaty-making, the
President has the sole authority to negotiate with other states.

It should be emphasized that under the Constitution, the power to ratify is vested in the President,
subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or

8
withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification,
refuse to ratify it.

Salonga Petition

Facts:
Respondent Lance Corporal Daniel Smith is a member of the US Armed Forces, charged with
rape committed against a Filipina, petitioner herein, on November 1, 2005.
The accused Smith, Ssgt. Chad Brian Carpenter, Dominic Duplantis, Keith Silkwood, and
Timoteo Soriano, Jr., were charged with the crime of rape:
That on or about the 1st day of November 2005, inside the Subic Bay Freeport Zone, Olongapo
City… the above-named accused, being then members of the United States Marine Corps,
except Timoteo L. Soriano, Jr., conspiring, confederating together and mutually helping one
another, with lewd design and by means of force, threat and intimidation, with abuse of superior
strength and taking advantage of the intoxication of the victim, did then and there willfully,
unlawfully and feloniously sexually abuse and have sexual intercourse with Suzette S. Nicolas,
a 22-year old unmarried woman inside a Starex Van… and driven by accused Timoteo L.
Soriano, Jr., against the will and consent of the said Suzette S. Nicolas…
Pursuant to the Visiting Forces Agreement between the RP and the US entered into on Feb. 10
1998, the US, at its request, was granted custody of defendant Smith pending proceedings.
RTC (Makati): acquitted Carpenter, Silkwood and Duplantis, but found Smith guilty; sentenced
him to suffer the penalty of reclusion perpetua + accessory penalties.
Pursuant to Art. V, par. 10 of the VFA, Smith shall serve his sentence in facilities to be agreed
upon by Philippine and US authorities, and temporarily committed to the Makati City Jail
Smith to indemnify Suzette Nicolas P50k as compensatory damages, plus P50k moral damages
December 29 2006: However, Smith was taken out of the Makati jail by Philippine law
enforcement agents, purportedly acting under orders of the Department of the Interior and Local
Government, and brought to a facility for detention under the control of the US government,
provided for under new agreements between the RP and US:
Romulo-Kenney Agreement of December 19 2006: The RP Government and the US
Government agree that, in accordance with the VFA, Smith be returned to US military custody
at the US Embassy in Manila
Romulo-Kenney Agreement of December 22 2006: The Department of Foreign Affairs and the
US Embassy agree that, in accordance with the VFA upon transfer of Smith from the Makati
City Jail, he will be detained at the US Embassy Compound in a room of approximately 10 x 12
square feet. He will be guarded round the clock by U.S. military personnel. The Philippine police
and jail authorities will have access to the place of detention

Petitioners Challenge to RTC order transferring Daniel Smith from the Makati City Jail to US
custody under an agreement based on the VFA.

Issues:
1. W/N it was necessary to submit the VFA to the US Senate for advice and consent?
2. Whether or not Smith can be detained in the Embassy

Ruling:
1. The VFA in effect is just an implementing agreement to the main RP-US Military Defense
Treaty. It was even in the Preamble of the VFA! “The government of the US of A and the

9
 government of the RP… reaffiriming their obligations under the Mutual Defense Treaty of
August 30 1951…” Thus, as an implementing agreement of the RP-US Mutual Defense
Treaty, it was not necessary to submit the VFA to the US Senate for advice and consent,
but merely to the US Congress under the Case-Zablocki Act within 60 days of its ratification.
It is for this reason that the US has certified that it recognizes the VFA as a binding
international agreement, i.e. a treaty, and this substantially complies with the requirements
of Art. XVIII, sec. 25 of our constitution. The constitutional provision is complied with by
virtue of the fact that the presence of the US Armed Forces through the VFA is a presence
“allowed under” the RP-US Mutual Defense Treaty, which was ratified by both Senates.

2.No. Allowing Smith to be detained in the US Embassy violates the VFA,

There is a different treatment when it comes to detention as against custody. The moment the
accused has to be detained, e.g., after conviction, the rule that governs is the following provision
of
the VFA:
Article V Criminal Jurisdiction Sec. 10. The confinement or detention by Philippine
authorities of United States personnel shall be carried out in facilities agreed on by appropriate
Philippines and United States authorities. United States personnel serving sentences in the
Philippines shall have the right to visits and material assistance.

The above clearly states not only that the detention shall be carried out in facilities agreed on
by authorities of both parties, but also that the detention shall be “by Philippine authorities.”

Therefore, the Romulo-Kenney Agreements of December 19 and 22, 2006, which are
agreements on the detention of the accused in the United States Embassy, are not in accord
with the VFA itself because such detention is not “by Philippine authorities.”

Respondents should therefore comply with the VFA and negotiate with representatives of the
US towards an agreement on detention facilities under Philippine authorities

Extra:
the Court addresses the recent decision of the United States Supreme Court in Medellin v.
Texas which held that treaties entered into by the United States are not automatically part of
their domestic law unless these treaties are self-executing or there is an implementing
legislation to make them enforceable.

32. RESERVATIONS TO THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF

THE CRIME OF GENOCIDE

The question concerning reservations to the Convention on the Prevention and Punishment of
the Crime of Genocide had been referred for an advisory opinion to the Court by the General
Assembly of the United Nations which held, in one of the questons, that a State which has made
and maintained a reservation which has been objected to by one or more of the parties to the
Convention, but not by others, can be regarded as being a party to the Convention if the
reservation is compatible with the object and purpose of the Convention; otherwise, that State
cannot be regarded as being a party to the Convention

Issue: W/N there would be legal effects if an objection to a reservation is made by a signatory
which has not yet ratified.

10
Ruling: No.

An objection to a reservation made by a signatory State which has not yet ratified the
Convention shall have legal effect only upon ratification. Until that moment it merely serves as a
notice to the other state of the eventual attitude of the signatory state.
33. US Diplomatic & Consular Staff (US vs Iran) ICJ Report 1980

FACTS: On 4 November 1979, during the course of a demonstration of approximately 3,000

persons, the United States Embassy compound in Tehran was overrun by a strong armed group
of several hundred people. The Iranian security personnel are reported to have simply
disappeared from the scene; at all events it is established that they made no apparent effort to
deter or prevent the demonstrators from seizing the Embassy's premises. The invading group
(who subsequently described themselves as "Muslim Student Followers of the Imam's Policy",
and who will hereafter be referred to as "the militants") gained access by force to the
compound and to the ground floor of the Chancery building. In the course of the attack, all the
diplomatic and consular personnel and other persons present in the premises were seized as
hostages, and detained in the Embassy compound; subsequently other United States personnel
and one United States private citizen seized elsewhere in Tehran were brought to the
compound and added to the number of hostages. Archives and documents were seized too.

Despite demands for release and request for help from the Iranian government, the latter failed
to protect the Embassy. A Commission was sent to Iraq but failed to settle the situation. A
resolution was issued by the Security Council for the immediate release of the hostages but the
militants remained adamant. Over 50 US nationals (mostly diplomatic and consular staff) were
held for 444 days. The ICJ indicated provisional measures against Iran, and the US sought, in its
Application and Memorial, a declaration inter alia, that Iran had violated the two Vienna
Conventions (1961 and 1963), and calling for the release of the hostages and vacation of the
Embassy and consulates. Iran did not participate in any of the proceedings (no pleadings, no
appearance, etc).

ISSUE: Whether or not Iran had violated, and continued to violate, its obligations under the
Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations,in
the seizure and hostage-taking of members of United States diplomatic and consular staff in
Iran.

HELD: YES. In summary, the Court:

1. Decides that the Islamic Republic of Iran, by the conduct which the Court has set out in this
Judgment, has violated in several respects, and is still violating, obligations owed by it to the
United States of America under international conventions in force between the two countries,
as well as under long-established rules of general international law ;

2. Decides that the violations of these obligations engage the responsibility of the Islamic
Republic of Iran towards the United States of America under international law;

11
3. Decides that the Government of the Islamic Republic of Iran must immediately take all steps
to redress the situation resulting from the events of 4 November 1979 and what followed from
these events, and to that end:
(a) must immediately terminate the unlawful detention of the United States Chargé
d'affaires and other diplomatic and consular staff and other United States nationals now
held hostage in Iran, and must immediately release each and every one and entrust
them to the protecting Power (Article 45 of the 1961 Vienna Convention on Diplomatic
Relations) ;
(b) must ensure that all the said persons have the necessary means of leaving Iranian
territory, including means of transport;
(c) must immediately place in the hands of the protecting Power the premises, property,
archives and documents of the United States Embassy in Tehran and of its Consulates in
Iran;

4. Decides that no member of the United States diplomatic or consular staff may be kept in Iran
to be subjected to any form of judicial proceedings or to participate in them as a witness;

5. Decides that the Government of the Islamic Republic of Iran is under an obligation to make
reparation to the Government of the United States of America for the injury caused to the
latter by the events of 4 November 1979 and what followed from these events;

6. Decides that the form and amount of such reparation, failing agreement between the Parties,
shall be settled by the Court, and reserves for this purpose the subsequent procedure in the
case.

12
Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America)
(March 31, 2004)

Facts: The United States, Mexico, and many other countries are parties to the 1963 Vienna
Convention on Consular Relations (the Convention), 596 U.N.T.S. 261, which guarantees to
foreign nationals the right upon arrest to contact their consulate and to have consular officials
informed of the arrest. Jose Ernesto Medellin, a Mexican national, was involved in the rape and
murder of two Texan girls and was later arrested by Texas police. Medellin was not informed of
his rights under the Convention when arrested, and was later convicted of capital murder and
sentenced to death. Medellin appealed but did not raise a claim based on the purported rights
violations, and his conviction was affirmed. Medellin later filed a state habeas-corpus petition,
this time raising a claim based on violations of the Convention. However, Medellin’s petition
was rejected on the grounds that the claim had been waived. Medellin then filed a federal
habeas petition, raising the same issue. In January 2003, while the petition was pending,
Mexico (plaintiff) filed suit against the United States (defendant) for violations of the
Convention in Medellin’s case, as well as the cases of 53 other Mexican nationals who had
received death sentences in the United States. Mexico’s requested relief included (1) the
overturning of all convictions and sentences and (2) provisional measures effectively staying
any executions of Mexican nationals until the court issued its final decision.

Issue: Whether or not notification of consular rights and a reasonable opportunity for consular
access before the competent authorities of the receiving State may take any action potentially
detrimental to the foreign national’s rights”.

Ruling: Yes. In the present case itis not the convictions and sentences of the Mexican nationals which are to
be regarded as a violation of international law, but solely certain breaches of treaty obligations which preceded
them. Mexico, the Court notes, has further contended that the right to consular notification and consular
communication under the Vienna Convention is a human right of such a fundamental nature that its
infringement will ipso facto produce the effect of vitiating the entire process of the criminal proceedings
conducted in violation of this fundamental right.
Facts:

The Barcelona Traction, Light and Rwer Company, Lim-ited, was incorporated in 1911 in
Toronto (Canada), where it has its head office. For the purpose of creating and developing an
electric power production and distribution system in Catalonia (Spain) it formed a number of
subsidiary companies, of which some had their registered offices in Canada and the others in
Spain. In 1936 the subsidiary companies supplied the major part of Catalonia's electricity
requirements. According to the Belgian Government, some years after the first world war
Barcelona Traction's share capital came to be very largely held by Belgian nationals, but the
Spanish Government contends that the Be1g:ian nationality of the shareholders is not proven.

13
 Barcelona Traction issued several series d bonds, princi-pally in sterling. The sterling
bonds were serviced out of transfers to Barcelona Traction effected by the subsidiary
companies operating in Spain. In 1936 the servicing of the Barcelona l k t i o n bonds was
suspended on account of the Spanish civil war. After that war the Spanish exchange con-trol
authorities refused to authorize the transfer of the foreign currency necessary for the
resumption of the servicing of the sterling bonds. Subsequently, when the Belgian Government
complained of this, the Spanish Government stated that the transfers could not be authorized
unless it ,were shown that the foreign currency was to be used to repay debts arising from the
genuine importation of foreign capital into Spain, and that this had not been established.
Eventually, the company was declared bankrupt. Belgium filed an application with the
International Court of Justice against the Spanish government seeking reparation of damages
claimed to have been caused to the Belgian national shareholders of the company.
Issue:
Whether or not the State of the company can seek redress even if the said company ceased
to exist
Ruling:
No. International law had to refer to those rules generally accepted by municipal legal
systems. An injury to the shareholder's interests resulting from an injury to the rights of the
company was insufficient to found a claim. Where it was a question of an unlawful act
committed against a company representing foreign capital, the general rule of international
law authorized the national State of the company alone to exercise diplomatic protection for
the purpose of seeking redress. No rule of international law expressly conferred such a right on
the shareholder’s national State.

The Court considered whether there might not be, in the present case, special circumstances
for which the general rule might not take effect (Exemption to the general rule): (a) the case of
the company having ceased to exist, and (b) the case of the protecting State of the company
lacking capacity to take action. As regards the first of these possibilities, the Court observed
that whilst Barcelona Traction had lost all of its assets in Spain and been placed in receivership
in Canada, it could not be contended that the corporate entity of the company had ceased to
exist or that it had lost its capacity to take corporate action. So far as the second possibility was
concerned, it was not disputed that the company had been incorporated in Canada and had its
registered office in that country, and its Canadian nationality had received general recognition.
The Canadian Government had exercised the protection of Barcelona traction for a number of
years. If at a certain point the Canadian Government ceased to act on behalf of Barcelona
traction, it nonetheless retained its capacity to do so, which the Spanish Government had not
questioned. Whatever the reasons for the Chadian Government's change of attitude, that fact
could not constitute a justification for the exercise of diplomatic protection by another
government.

14
 It had been maintained that a State could make a claim when investments by its
nationals abroad, such investments being part of a national economic resources, were
prejudicially affected in violation of the right of the state itself to have its nationals enjoy a
certain treatment. But, in the present state of affairs, such a right could only result from a
treaty or special agreement. And no instrument of such a kind was in force between Belgium
and Spain. It also pointed out that the adoption of the theory of diplomatic protection of
shareholders as such would open the door to competing claims on the part of different States,
which could create an atmosphere of insecurity in international economic relations.
Accordingly, and in so far as the company’s national State (Canada) was able to act, the Court
was not of the opinion that jus standi was conferred on the Belgian Government by
considerations of equity. The Court accordingly rejected Belgium’s claim.

Reparation for Injuries Suffered in the Service of the UN

Advisory Opinion (delivered on April 11, 1949)

[Main point: The basis of the claims of the UN is not to represent the agent, but to assert its own
right to secure respect for undertakings entered into towards the Organization.]

Sept. 17, 1948, Count Folke Bernadotte of Sweden, the UN mediator in the Palestine conflict,
and Colonel André Sérot, a French UN observer, were assassinated in Palestine. The
assassination took place before Israel was admitted to the UN. These murders were attributed to

15
a group of Israeli extremists – the Stern Group, whose members have yet to be arrested by the
Israeli authorities.

The UN Gen. Assembly (UNGA) raised two questions to the ICJ:

a.) whether UN as an international organization and in the event of one of its agents suffering
injury in the performance of its duties, has the capacity to bring an international claim against the
responsible de jure or de facto government with a view to obtaining the reparation due in respect
of the damage caused to a.) The UN, b.) To the victim or to persons entitled through him.

b.) the second question related to the conciliation of the UN claim with the one that could be
brought by the national State of the victim.

The Court unanimously concluded that UN is capable of possessing international rights and
duties and has the capacity to maintain its rights by bringing international claims. Such
capacity included the capacity to bring a claim of reparation, because the functions of the
Organization are of such character that could not be discharged without the endowment of
such capacity.

The Court considered such capacity inherent in the international legal responsibility of the
Organization.

The Court enounced the theory of implied powers of international organizations by considering
that the UN ‘must be deemed to have those powers which, though not expressly provided in the
Charter, are conferred upon it by necessary implication as being essential to the performance of
its duties.’ The diplomatic protection rule of the nationality of claims did not bar the UN from
claiming damages caused to the victim, since the ground of such claim would be the breach of
an obligation designed to help an agent of the Organization in the performance of his
duties.

By 11 votes against 4, the Court ruled that ‘functional protection’ of the agents by the
organization ‘arises by necessary intendment outside of the Charter’ as it was essential in order
to ensure the good and independent performance of his duties. The logic of functional protection
is similar to the one of diplomatic protection since ‘claiming reparation based on the injury
suffered by its agent, the Organization does not represent the agent, but is asserting its own
right, the right to secure respect for undertakings entered into towards the Organization’.

While the basis of the claim of the national State is to represent the victim agent. Though the
ordinary practice is that the State refrains from protecting nationals when they are also
considered as nationals of the defendant State(multiple nationality).

April 1950, Israel was asked to present a formal apology, to arrest the culprits, and to pay
indemnity of $54, 624. The amount is with respect to the actual damage suffered by the UN
itself, since the family of Bernadotte did not present any claim. All rights relating to the death of

16
Sérot were expressly reserved. Israel paid the sum, and expressed its regret stating that despite all
its efforts, the criminals have gone undetected. The Israeli government explained at length why it
considered that, failing new evidence, the re-examination of the case, which was not considered
close, would be unlikely to succeed. UN Sec. Gen. considered this as substantial compliance
by Israel with the UN claim.

37. Mavrommatis Case (Greece v. Britain) (1924)

FACTS:

 Mavrommatis, a Greek national, was in 1914 granted concessions by the Ottoman authorities for
certain public works in what later became the British mandated territory of Palestine. The
concessions were related to constructions and working of electric tramway systems and supply of
light power and electric power in Jerusalem and Jaffa, as well as irrigation systems.
 Mavrommatis tried to claim from the concessions granted via ordinary channels, but such claims
were unheeded. Britain refused to recognize Mavrommatis’ rights.
o Ordinary channels resorted to by Mavrommatis: In long correspondence, Mavrommatis
and his solicitors urged his rights with respect to these concessions in the British Colonial
Office. He also got friends to write privately to persons in the British Foreign Office upon
the subject.
 The dispute was initially between a private person (Mavrommatis) and a State (Britain).
 Greece took up Mavrommatis’ case because the latter is a Greek subject. Greece filed a case
before the PCIJ, alleging that Great Britain, through the Palestine Government, had refused to
recognize the concession in Jerusalem and Jaffa, principally by having granted to a Mr.
Rutenberg concessions partially overlapping those enjoyed by Mavrommatis, and accordingly
sought compensation.
 Britain imposed its preliminary objection and argued that Greece had no standing in this case.
 Greece argued that it is entitled to protect its subjects such as Mavrommatis when they have
been injured by acts contrary to international law by another state.

ISSUES: Whether or not there was a dispute?

RULING: YES

 A dispute is a disagreement on a point of law or fact, a conflict of legal views or of

interests between two persons.
 There is a dispute because Greece is asserting its own rights by claiming from Britain indemnity
on the ground that Mavrommatis, one of its subjects, has been treated by Palestine or British
authorities in a manner incompatible with certain international obligations which they were bound
to observe.
o Art 26 of the Mandate of Palestine (legal document which formalized the creation of 2
British protectorates – Palestine, to include a national home for the Jewish people, and
Transjordan; took effect in 1923, following the ratification of The Treaty of Lausanne)

17
 provides that the dispute must be between the Mandatory and another member of the
League of Nations. Although at first, the dispute was between a private person
(Mavrommatis) and a State (Britain), the Greek government took up the case. The
dispute entered into a new phase; it entered the domain of international law, and became
a dispute between the 2 States.
 The dispute could not, in the circumstances of the case, be settled by negotiation.
o For the case to come under PCIJ jurisdiction, it must be that the dispute cannot be settled
by negotiation.
o The Court recognized that the State does not substitute itself for the subject; it is
asserting its own rights and, consequently, factors foreign to the previous discussions
between the individual and the competent authorities may enter into the diplomatic
negotiations. But it recognized that the character of the dispute may render unnecessary
the renewed discussion on opposing contentions from which the original dispute arose. It
is a matter of consideration in each case.
o The Court said that it isn’t necessary to have lengthy correspondences to prove that
negotiation can no longer be had. In the case, it looked at the correspondences which
evidenced the unwillingness of the British government to negotiate and meet the claims
of Mavrommatis.
o “The Court realises to the full the importance of the rule laying down that only disputes
which cannot be settled by negotiation should be brought before it. It recognises, in fact,
that before a dispute can be made the subject of an action at law, its subject matter
should have been clearly defined by means of diplomatic negotiations. Nevertheless, in
applying this rule, the Court cannot disregard, amongst other considerations, the views of
the States concerned, who are in the best position to judge as to political reasons which
may prevent the settlement of a given dispute by diplomatic negotiation. When
negotiations between the private person and the authorities have already -as in the
present case -defined all the points at issue between the two Governments, it would be
incompatible with the flexibility which should characterise international relations to require
the two Governments to reopen a discussion which has in fact already taken place and
on which they rely.”
 Although Protocol XII of the Treaty of Lausanne of 1923 which formed the Peace Treaty with
Turkey, contained provisions expressly relating to the recognition of concessions in Palestine but
without recognizing the Court’s jurisdiction in cases of dispute, it complemented the mandate and
did not render inoperative its jurisdictional
clauses.

Whether or not the Permanent Court of International Justice have jurisdiction over the case?
YES.

 Dispute was between States (Greece and Britain)

 Case cannot be negotiated (see above)
 The Mandate for Palestine provided for the court’s jurisdiction: “It must in the first place be
remembered that at the time when the opposing views of the two Governments took definite
shape (April 1924), and at the time when proceedings were instituted, the Mandate for Palestine
was in force. The Court is of opinion that, in cases of doubt, jurisdiction based on an international
agreement embraces all disputes referred to it after its establishment. In the present case, this
interpretation appears to be indicated by the terms of Article 26 itself where it is laid down that
"any dispute whatsoever .... which may arise" shall be submitted to the Court.”
 The Rutenberg concessions, which is covered by the Mandate, is said to be the alleged breach of
the concessions of Mavrommatis: “If the grant of the Rutenberg Concessions, in so far as they
may be regarded as incompatible, at least in part, with those of Mavrommatis, constitutes the
alleged breach of the terms of the Mandate, this breach, no matter on what date it was first
committed, still subsists, and the provisions of the Mandate are therefore applicable to it.”

18
Whether or not Greece have the standing to bring the present claim in the capacity of sole claimant?
YES.

 A State like Greece can take up the case of its subjects when they are injured by acts
contrary to international law committed by another State from who said subject had been
unable to obtain satisfaction through ordinary channels. The dispute is now a dispute in
international law.
o This is founded on Greece’s right to ensure respect for rules of international law, a right
which in this case appears to have been violated by Britain. By taking up the case of one
of its subjects and by resorting to diplomatic action or international judicial proceedings
on its behalf, a State is in reality asserting its own rights – its right to ensure, in the
person of its subjects, respects for the rules of international law.
o It should not be looked at not as a substitution between Greece and its subject, but as
assertion of its own rights as a State. This will lead to the conclusion that Greece is the
sole claimant in this case.
o Greece has the right to ensure respect for rules of international law. It is not substituting
itself with the citizen, but is actually asserting its own rights.
o The court deemed as irrelevant whether the dispute originated from a personal injury or
not. Once a State has taken up a case on behalf of one of its subjects before an
international tribunal, in the yes of the latter the State is sole claimant. The fact that Great
Britain and Greece are the opposing Parties to the dispute arising out of the
Mavrommatis concessions is sufficient to make it a dispute between 2 States is sufficient
to make it a dispute between 2 States within the meaning of Art. 26 of the Palestine
Mandate.

DISPOSITION: On a 7-5 vote, Court held that it had jurisdiction in the Jerusalem concessions, but not in
the Jaffa concessions.

CERTAIN EXPENSES OF THE UN, ICJ REPORTS, 1962

The Acting Secretary- General of UN wrote a letter to the President of the ICJ requesting the
latter to give advisory opinion on the following question:

“Do the expenditures authorized in General Assembly resolution relating to the UN operations in
the Congo undertaken in pursuance of Secretary Council resolutions, and the expenditures authorized in
General Assembly resolution relating to the operations of the UN Emergency Force constitute “Expenses
of the Organization” within the meaning of Article 17, paragraph 2, of the Charter of the United Nations?”

YES, they were expenses of the organization within the meaning of the UN Charter.

Article 17, paragraph 2 states:

“The expenses of the Organization shall be borne by the Members as apportioned by the General
Assembly.”

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 The aforementioned provision refers to the expenses of the organization without any further
explicit definition of such expenses and would thus lead to the interpretation that “expenses” of any
organization are the amounts paid out to defray the costs of carrying out its purposes, in this case, the
political, economic, social, humanitarian and other purposes of the UN pursuant to its Charter.

The test is to determine the relationship of the expenditures to the purposes of the UN set forth in
Article 1 of the Charter. The purposes may be summarized as:

1. Goal of international peace and security;

2. Friendly relations;
3. Achievement of economic, social, cultural, and humanitarian goals, and respect for human rights;
and
4. To be a center for harmonizing the actions of nations in the attainment of these common ends.

When the organization takes action which warrants the assertion that it was appropriate for the
fulfillment of one of the stated purposes of the UN, the presumption is that such action is not ultra vires
to the Organization. In fact, both national and international law contemplates cases in which body
corporate or politic may be bound by an ultra vires act of its agent as to third parties.

In this case, the financial obligation incurred by the Secretary- General of the General Assembly
pursuant to resolutions of the Security Council for the maintenance of international peace and security
must be presumed to, as in fact they did, constitute “expenses of the organization”.

Province of Contabato v GRP

GR. NO. 183591, October 14, 2008

Facts: President Gloria Macapagal-Arroyo, in line with the government‘s policy of pursuing peace
negotiations with the Moro Islamic Liberation Front (MILF), asked Prime Minister Mahathir Mohammad
to convince the MILF to continue negotiating with the government. MILF, thereafter, convened its
Central Committee and decided to meet with the Government of the Republic of the Philippines
(GRP). Formal peace talks were held in Libya which resulted to the crafting of the GRP-MILF Tripoli
Agreement on Peace (Tripoli Agreement 2001) which consists of three (3) aspects: a.) security aspect; b.)
rehabilitation aspect; and c.) ancestral domain aspect. Various negotiations were held which led to the
finalization of the Memorandum of Agreement on the Ancestral Domain (MOA-AD). The
said memorandum was set to be signed last August 5, 2008. In its body, it grants ―the authority and
jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro to the Bangsamoro
Juridical Entity (BJE). The latter, in addition, has the freedom to enter into any economic cooperation and
trade relation with foreign countries. ―The sharing between the Central Government and the BJE of total
production pertaining to natural resources is to be 75:25 in favor of the BJE. The MOA-AD further
provides for the extent of the territory of the Bangsamoro. It describes it as ―the land mass as well as the
maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space
above it, embracing the Mindanao-Sulu-Palawan geographic region. With regard to governance, on the
other hand, a shared responsibility and authority between the Central Government and BJE was provided.
The relationship was described as ―associative. With the formulation of the MOA-AD,
petitioners aver that the negotiation and finalization of the MOA-AD violates constitutional and statutory
provisions on public consultation, as mandated by Executive Order No. 3, and right to information. They
further contend that it violates the Constitution and laws. Hence, the filing of the petition.

Issue: Whether or not the MOA-AD contemplates that the BJE can be considered as an associated state.

20
Held:The Memorandum of Agreement on Ancestral Domain (MOA-AD) contains many provisions which
are consistent with the international legal concept of association.—In international practice, the
“associated state” arrangement has usually been used as a transitional device of former colonies on their
way to full independence. Examples of states that have passed through the status of associated states as a
transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada.
All have since become independent states. Back to the MOA-AD, it contains many provisions which are
consistent with the international legal concept of association, specifically the following: the BJE’s
capacity to enter into economic and trade relations with foreign countries, the commitment of the Central
Government to ensure the BJE’s participation in meetings and events in the ASEAN and the specialized
UN agencies, and the continuing responsibility of the Central Government over external defense.
Moreover, the BJE’s right to participate in Philippine official missions bearing on negotiation of border
agreements, environmental protection, and sharing of revenues pertaining to the bodiesof water adjacent
to or between the islands forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter
affecting them. These provisions of the MOA indicate, among other things, that the Parties aimed to vest
in the BJE the status of an associated state or, at any rate, a status closely approximating it.
WRIGHT vs CA
G.R. No. 113213 (1994 )

Doctrine: A paramount principle of the law of extradition provides that a State may not
surrender any individual for any offense not included in a treaty of extradition. This
principle arises from the reality of extradition as a derogation of sovereignity. Extradition
is an intrusion into the territorial integriy of the host State and a delimitation of the
sovereign power of the State within its own territory.

FACTS:

Australia and the Government of the Philippines in the suppression of crime, entered into
a Treaty of Extradition on the 7th of March 1988. The said treaty was ratified in accordance with
the provisions of Section 21, Article VII of the 1987 Constitution in a Resolution adopted by the
Senate on September 10, 1990 and became effective 30 days after both States notified each other
in writing that the respective requirements for the entry into force of the Treaty have been
complied with. Petitioner contends that the provision of the Treaty giving retroactive effect to the
extradition treaty amounts to an ex post facto law which violates Section 21 of Article VI of the
Constitution.

On March 17, 1993, Assistant Secretary Sime D. Hidalgo of the Department of Foreign
Affairs indorsed to the Department of Justice Diplomatic Note No. 080/93 dated February 19,
1993 from the Government of Australia to the Department of Justice through Attorney General
Michael Duffy seeking to indict Paul Joseph Wright, an Australian Citizen for:

a. 1 count of Obtaining Property by Deception contrary to Section 81(1) of the Victorian

Crimes Act of 1958 because he and Herbert Lance Orr's, dishonestly obtaining $315,250 from
Mulcahy, Mendelson and Round Solicitors, secured by a mortgage on the property in
Bangholme, Victoria owned by Ruven Nominees Pty. Ltd., a company controlled by a Rodney
and a Mitchell, by falsely representing that all the relevant legal documents relating to the
mortgage had been signed by Rodney and Janine Mitchell

21
b. 13 counts of Obtaining Properties by Deception contrary to Section 81(1) of the Victorian
Crimes Act of 1958 because he and Mr. John Carson Craker's received approximately 11.2 in
commission (including $367,044 in bonus commission) via Amazon Bond Pty. Ltd., by
submitting 215 false life insurance proposals, and paying premiums thereon o the Australian
Mutual Provident Society through the Office of Melbourne Mutual Insurance, where he is an
insurance agent

c. 1 count of Attempting to Obtain Property by Deception contrary to Section 321(m) of the

Victorian Crimes Act of 1958 because he and Mr. Craker's attempted to cause the payment of
$2,870.68 commission to a bank account in the name of Amazon Bond Pty. Ltd. by submitting 1
false proposal for Life Insurance to the AMP Society based on an inexistent policy-holder

d. 1 count of Perjury contrary to Section 314 of Victorian Crimes Act of 1958 because he and
Mr. Craker's signed and swore before a Solicitor holding a current practicing certificate pursuant
to the Legal Profession Practice Act (1958), a Statutory Declaration attesting to the validity of 29
of the most recent Life Insurance proposals of AMP Society and containing 3 false statements.

ISSUE: Can extradition treaty be applied retroactively?

RULING:

NO. Early commentators understood ex post facto laws to include all laws of
retrospective application, whether civil or criminal. However, Chief Justice Salmon P. Chase,
citing Blackstone, The Federalist and other early U.S. state constitutions in Calder vs. Bull
concluded that the concept was limited only to penal and criminal statutes.

As conceived under our Constitution, ex post facto laws are

1) statutes that make an act punishable as a crime when such act was not an offense when
committed; 2) laws which, while not creating new offenses, aggravate the seriousness of a crime;
3) statutes which prescribes greater punishment for a crime already committed; or, 4) laws which
alter the rules of evidence so as to make it substantially easier to convict a defendant.

“Applying the constitutional principle, the (Court) has held that the prohibition applies only to
criminal legislation which affects the substantial rights of the accused.” This being so, there is no
absolutely no merit in petitioner’s contention that the ruling of the lower court sustaining the
Treaty’s retroactive application with respect to offenses committed prior to the Treaty’s coming
into force and effect, violates the Constitutional prohibition against ex post facto laws. As the
Court of Appeals correctly concluded, the Treaty is neither a piece of criminal legislation nor a
criminal procedural statute. “It merely provides for the extradition of persons wanted for
prosecution of an offense or a crime which offense or crime was already committed or
consummated at the time the treaty was ratified.”

22
Short version:

Facts:

Petitioner, an Australian Citizen, was sought by Australian authorities for indictable

crimes in his country. Extradition proceedings were filed against him which ordered the
deportation of petitioner. Said decision was sustained by the Court of Appeals; hence, petitioner
came herein by way of review on certiorari, to set aside the order of deportation, contending that
the provision of the Treaty giving retroactive effect to the extradition treaty amounts to an ex
post facto law which violates Section 21 of Article VI of the Constitution.

ISSUE: Can an extradition treaty be applied retroactively?

HELD:

No. Applying the constitutional principle, the Court has held that the prohibition applies
only to criminal legislation which affects the substantial rights of the accused. This being so,
there is no absolutely no merit in petitioner's contention that the ruling of the lower court
sustaining the Treaty's retroactive application with respect to offenses committed prior to the
Treaty's coming into force and effect, violates the Constitutional prohibition against ex post facto
laws. As the Court of Appeals correctly concluded, the Treaty is neither a piece of criminal
legislation nor a criminal procedural statute. It merely provides for the extradition of persons
wanted for prosecution of an offense or a crime which offense or crime was already committed
or consummated at the time the treaty was ratified.

Government of Hong Kong vs. Olalia

23
Facts:

On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong
signed an "Agreement for the Surrender of Accused and Convicted Persons."

Private respondent Muñoz was charged before the Hong Kong Court with three (3) counts of the offense
of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery
Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to
defraud, penalized by the common law of Hong Kong. On August 23, 1997 and October 25, 1999,
warrants of arrest were issued against him

The DOJ received from the Hong Kong Department of Justice a request for the provisional arrest of
private respondent.

On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private
respondent. That same day, the NBI agents arrested and detained him.

On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining
the validity of the Order of Arrest against private respondent

Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of
private respondent, For his part, private respondent filed, in the same case,- a petition for bail which
was opposed by petitioner.

The RTC issued an Order denying the petition for bail, holding that there is no Philippine law granting
bail in extradition cases and that private respondent is a high "flight risk."

Issue: Whether or not bail could be granted to private respondent in an extradition case

Ruling:

Yes. In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of
Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through
then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the constitutional provision
on bail does not apply to extradition proceedings. It is "available only in criminal proceedings," thus:

As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as
well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and
detained for violation of Philippine criminal laws. It does not apply to extradition proceedings because
extradition courts do not render judgments of conviction or acquittal.

Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every
accused who should not be subjected to the loss of freedom as thereafter he would be entitled to
acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6,

24
September 17, 1971, per Fernando, J., later CJ). It follows that the constitutional provision on bail will
not apply to a case like extradition, where the presumption of innocence is not at issue.

At first glance, the above ruling applies squarely to private respondent’s case. However, this Court
cannot ignore the following trends in international law: (1) the growing importance of the individual
person in public international law who, in the 20th century, has gradually attained global recognition; (2)
the higher value now being given to human rights in the international sphere; (3) the corresponding
duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the
duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and
the law on extradition, on the other.

The modern trend in public international law is the primacy placed on the worth of the individual
person and the sanctity of human rights. Slowly, the recognition that the individual person may
properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects
of international law are limited only to states was dramatically eroded towards the second half of the
past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the
unprecedented spectacle of individual defendants for acts characterized as violations of the laws of
war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle,
Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the
former Yugoslavia. These significant events show that the individual person is now a valid subject of
international law.

The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations
under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to
comply with these obligations is a setback in our foreign relations and defeats the purpose of
extradition. However, it does not necessarily mean that in keeping with its treaty obligations, the
Philippines should diminish a potential extraditee’s rights to life, liberty, and due process. More so,
where these rights are guaranteed, not only by our Constitution, but also by international conventions,
to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply
for bail, provided that a certain standard for the grant is satisfactorily met.

Djumantan vs. Domingo

*Domingo is the commissioner of Commissioners Bureau of Immigration and Deportation

( CID)
(Topic: Deportation)
GR 99358, January 30, 1995

Synopsis of the Rule of Law: Generally, the right of the President to expel or deport aliens
whose presence is deemed inimical to the public interest is as absolute and unqualified as the
right to prohibit and prevent their entry into the country (Annotations, 8 ALR 1286). This right is

25
based on the fact... that since the aliens are not part of the nation, their admission into the
territory is a matter of pure permission and simple tolerance which creates no obligation on the
part of the government to permit them to stay (3 Am. Jur. 2d. 72).

The entry of aliens into the country and their admission as immigrants is not a matter of right,
even if they are legally married to Filipino citizens.

FACTS:Bernard Banez, husband of Marina Cabael, went to Indonesia as a contract worker. He

then embraced and was converted to Islam.

He then, married petitioner in accordance with Islamic rites. Banez then returned to the
Philippines. Petitioner and her two children with Banez arrived in Manila as the “guests” of
Banez. The latter made it appear that he was just a friend of the family of petitioner and was
merely repaying the hospitability extended to him during his stay in Indonesia. Banez executed
an “Affidavit of Guaranty and Support,” for his “guests.” As “guests,” petitioner and her two
children lived in the house of Banez. Petitioner and her children were admitted to the Philippines
as temporary visitors. Marina Cabael discovered the true relationship of her husband and
petitioner. She filed a complaint for “concubinage”, however, subsequently dismissed for lack of
merit. Immigration status of petitioner was changed from temporary visitor to that of permanent
resident.

Petitioner was issued an alien certificate of registration. Banez’ eldest son, Leonardo, filed a
letter complaint subsequently referred to Commissioners Bureau of Immigration and Deportation
(CID). On the basis of the said letter, petitioner was detained at the CID detention cell. Petitioner
moved for the dismissal of the deportation case on the ground that she was validly married to a
Filipino citizen. CID disposed that the second marriage of Bernardo Banes to Djumantan
irregular and not in accordance with the laws of the Philippines. They revoked the visa
previously granted to her. There was thus no basis for giving her the status of permanent
residence, since she was an Indonesian citizen and her marriage with a Filipino citizen was not
valid. Thus, this petition for certiorari.

ISSUE:

Whether or not the Djumantan’s admission and change of immigration status from temporary to
permanent resident is illegal such that an order for her deportation is proper.

RULING:

Yes. There was a blatant abuse of our immigration laws in effecting petitioner’s entry into the
country and the change of her immigration status from temporary visitor to permanent resident.
All such privileges were obtained through misinterpretation .Never was the marriage of
petitioner to Banez disclosed to the immigration authorities in her applications for temporary
visitor’s visa and for permanent residency.

Generally, the right of the President to expel or deport aliens whose presence is deemed inimical
to the public interest is as absolute and unqualified as the right to prohibit and prevent their entry

26
into the country. This right is based on the fact that since the aliens are not part of the nation,
their admission into the territory is a matter of pure permission and simple tolerance which
creates no obligation on the part of the government to permit them to stay.

There is no law guaranteeing aliens married to Filipino citizens the right to be admitted, much
less to be given permanent residency, in the Philippines. The fact of marriage by an alien to a
citizen does not withdraw her from the operation of the immigration laws governing the
admission and exclusion of aliens. Marriage of an alien woman to a Filipino husband does not
ipso facto make her a Filipino citizen and does not excuse her from her failure to depart from the
country upon the expiration of her extended stay here as an alien. It is not mandatory for the CID
to admit any alien who applies for a visitor’s visa. Once admitted into the country, the alien has
no right to an indefinite stay. an alien allowed to stay temporarily may apply for a change of
status and “may be admitted” as a permanent resident. Among those considered qualified to
apply for permanent residency if the wife or husband of a Philippine citizen. The entry of aliens
into the country and their admission as immigrants is not a matter of right, even if they are
legally married to Filipino citizens.

Under clause 1 of Section 37(a) of the Immigration Act of 1940 an “alien who enters the
Philippines after the effective date of this Act by means of false and misleading statements or
without inspection and admission by the immigration authorities at a designated port of entry or
at any place other than at a designated port of entry” is subject to deportation. The deportation of
an alien under said clause has prescriptive period and shall not be effected unless the arrest in the
deportation proceedings is made within five (5) years after the cause for deportation arises.
Tolling the prescriptive period from November 19, 1980, when Leonardo c. Banez informed the
CID of the illegal entry of petitioner into the country, more than five years had elapsed before the
issuance of the order of her deportation on September 27,1990.

43. Secretary of Justice v. Koruga, GR 166199, April 24, 2009

Facts: Bureau of Immigration (BI) Commissioner Andrea Domingo received an anonymous letter requesting the deportation of
respondent as an undesirable alien for having been found guilty of Violation of the Uniform Controlled Substances Act in the State of
Washington, United States of America (USA) for attempted possession of cocaine. After filing a Petition for Bail, respondent was
granted bail and provisionally released from the custody of the BI. The Board of Commissioners (BOC) rendered a Judgment
ordering the deportation of respondent under Section 37(a)(4) of the Philippine Immigration Act of 1940, as amended.

Respondent filed a Petition for Certiorari and Prohibition before the CA. The CA rendered a Decision setting aside the Resolution of
the DOJ Secretary and the Judgment of the BOC and dismissing the deportation case filed against respondent. The CA held that
there was no valid and legal ground for the deportation of respondent since there was no violation of Section 37(a)(4) of the
Philippine Immigration Act of 1940, as amended, because respondent was not convicted or sentenced for a violation of the law on
prohibited drugs since the U.S. Court dismissed the case for violation of the Uniform Controlled Substances Act in the State of
Washington, USA filed against respondent.

Hence, the present petition.

Issues:

1. Whether the exclusive authority of the BOC over deportation proceedings bars judicial review

2. Whether there is a valid and legal ground for the deportation of respondent.

27
Ruling:

1. No. It is beyond cavil that the BI has the exclusive authority and jurisdiction to try and hear cases against an alleged alien, and
that the BOC has jurisdiction over deportation proceedings. Nonetheless, Article VIII, Section 1[25] of the Constitution has vested
power of judicial review in the Supreme Court and the lower courts such as the CA, as established by law. Although the courts are
without power to directly decide matters over which full discretionary authority has been delegated to the legislative or executive
branch of the government and are not empowered to execute absolutely their own judgment from that of Congress or of the
President, the Court may look into and resolve questions of whether or not such judgment has been made with grave abuse of
discretion, when the act of the legislative or executive department is contrary to the Constitution, the law or jurisprudence, or when
executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias

2. The settled rule is that the entry or stay of aliens in the Philippines is merely a privilege and a matter of grace; such privilege is not
absolute or permanent and may be revoked. However, aliens may be expelled or deported from the Philippines only on grounds and
in the manner provided for by the Constitution, the Philippine Immigration Act of 1940, as amended, and administrative issuances
pursuant thereto. Respondent was charged with violation of Section 37(a)(4) of the Philippine Immigration Act of 1940, as amended,
which provides:

Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any other officer
designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a determination by the
Board of Commissioners of the existence of the ground for deportation as charged against the alien.

xxxx

(4) Any alien who is convicted and sentenced for a violation of the law governing prohibited drugs;

xxxx

Respondent contends that the use of the definite article the immediately preceding the phrase law on prohibited drugs emphasizes
not just any prohibited drugs law but the law applicable in this jurisdiction, at that time, the Dangerous Drugs Act of 1972.

The Court disagrees.

Since Section 37(a)(4) makes no distinction between a foreign prohibited drugs law and the Philippine prohibited drugs law, neither
should this Court. Ubi lex non distinguit nec nos distinguere debemos. Thus, Section 37(a)(4) should apply to those convicted of all
prohibited drugs laws, whether local or foreign.

There is no dispute that respondent was convicted of Violation of the Uniform Controlled Substances Act in the State of Washington,
USA for attempted possession of cocaine, as shown by the Order Deferring Imposition of Sentence Probation The BOC did not
commit grave abuse of discretion in ordering the deportation of respondent. Thus, the Judgment BOC of the Bureau of Immigration
ordering the deportation of respondent Christopher Koruga under Section 37(a)(4) of the Philippine Immigration Act of 1940, as
amended, is REINSTATED.

DANTE V. LIBAN vs RICHARD J. GORDON G. R. No. 175352 January 18, 2011

FACTS:
Petitioners Liban filed with the Supreme Court what they styled as “Petition to Declare Richard
J. Gordon as Having Forfeited His Seat in the Senate” against respondent Gordon, who was elected
Chairman of the Philippine National Red Cross (PNRC) Board of Governors during his incumbency as
Senator; which is prohibited under Section 13, Article 6 of the 1987 Constitution. Petitioners cited the
case of Camporedondo vs. NLRC, G.R. No. 129049, decided August 6, 1999, which held that the PNRC
is a GOCC, in supporting their argument that respondent Gordon automatically forfeited his seat in the
Senate when he accepted and held the position of Chairman of the PNRC Board of Governors. The Court
held in its decision in 2009 that the office of the PNRC Chairman is neither a government office nor a
GOCC; hence, Gordon did not forfeit his legislative seat. However, the Court held further that the PNRC
Charter, R.A. 95, as amended by PD 1264 and 1643, is void insofar as it creates the PNRC as a private
corporation. The Court thus directed the PNRC to incorporate under the Corporation Code and register
with the Securities and Exchange Commission if it wants to be a private corporation. Respondent Gordon

28
filed a Motion for Clarification and/or for Reconsideration of the Decision. The PNRC likewise moved
to intervene and filed its own Motion for Partial Reconsideration. They basically questioned the second
part of the Decision with regard to the pronouncement on the nature of the PNRC and
the constitutionality of some provisions of the PNRC Charter.

ISSUE: WON it was correct for the Court to rule on the Constitutionality of the PNRC charter, and what
is the nature of the PNRC?

HELD:
No, it was not correct for the Court to rule on the Constitutionality of the PNRC because it was
not one of the issues raised. It is a well-established rule that a court should not pass upon a constitutional
question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties.
Anent the second issue, the PNRC is sui generis in nature. A closer look at the nature of the PNRC would
show that there is none like it not just in terms of structure, but also in terms of history, public service and
official status accorded to it by the State and the international community. The PNRC was created by act
of Congress after the Philippines was declared as an independent nation, and was proclaimed under the
Geneva Red Cross Convention. By that action the Philippines indicated its desire to participate with the
nations of the world in mitigating the suffering caused by war and to establish in the Philippines a
voluntary organization for that purpose and like other volunteer organizations established in other
countries which have ratified the Geneva Conventions, to promote the health and welfare of the people in
peace and in war.

The PNRC is one of the National Red Cross and Red Crescent Societies, which, together with the
International Committee of the Red Cross (ICRC) and the IFRC and RCS, make up the International Red
Cross and Red Crescent Movement (the Movement). National Societies such as the PNRC act as
auxiliaries to the public authorities of their own countries in the humanitarian field and provide a range of
services including disaster relief and health and social programmes. A National Society partakes of a sui
generis character. It is a protected component of the Red Cross movement under Articles 24 and 26 of the
First Geneva Convention, especially in times of armed conflict. This sui generis character is also
emphasized by the Fourth Geneva Convention which holds that an Occupying Power cannot require any
change in the personnel or structure of a National Society. National societies are therefore
organizations that are directly regulated by international humanitarian law, in contrast to other
ordinary private entities, including NGOs.

The auxiliary status of [a] Red Cross Society means that it is at one and the same time a
private institution and a public service organization because the very nature of its work implies
cooperation with the authorities, a link with the State. The Republic of the Philippines, adhering to the
Geneva Conventions, established the PNRC as a voluntary organization for the purpose contemplated in
the Geneva Convention of 27 July 1929. So must this Court recognize too the country’s adherence to
the Geneva Convention and respect the unique status of the PNRC in consonance with its treaty
obligations. The Geneva Convention has the force and effect of law.21 Under the Constitution, the
Philippines adopts the generally accepted principles of international law as part of the law of the
land.22 This constitutional provision must be reconciled and harmonized with Article XII, Section 16 of
the Constitution, instead of using the latter to negate the former. In sum, the PNRC enjoys a special status
as an important ally and auxiliary of the government in the humanitarian field in accordance with its
commitments under international law. This Court cannot all of a sudden refuse to recognize its existence,
especially since the issue of the constitutionality of the PNRC Charter was never raised by the parties.
ISLAND OF LAS PALMAS CASE (US v. NETHERLANDS) 2 RIAA 829

FACTS: Palmas, also referred to as Miangas, is an island of little economic value or strategic
location. It is two miles in length, three-quarters of a mile in width, and had a population of

29
about 750 when the decision of the arbitrator was handed down. The island is located
between Mindanao, Philippines and the northern most island, known as Nanusa, of what was
the former Netherlands East Indies.

In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898) and
Palmas sat within the boundaries of that cession to the U.S. In 1906, the United States
discovered that the Netherlands also claimed sovereignty over the island, and the two
parties agreed to submit to binding arbitration by the Permanent Court of Arbitration. On
January 23, 1925, the two government signed an agreement to that effect. Ratifications were
exchanged in Washington on April 1, 1925. The agreement was registered in League of
Nations Treaty Series on May 19, 1925.The arbitrator in the case was Max Huber, a Swiss
national.

ISSUE: Whether the Island of Palmas (Miangas), in its entirety, was a part of the territory of
the United States or the Netherlands.

RULING: The Arbitrator, Swiss lawyer Max Huber, ruled in favor of the Netherlands’ position
and stated that the Netherlands held actual title to Palmas.

The Arbitrator in conformity with Article I of the Special Agreement of January 23rd, 1925
DECIDES that:

THE ISLAND OF PALMAS (or MIANGAS) forms in its entirety a part of the
Netherlands territory done at The Hague, this fourth day of April 1928.

Max Huber, Arbitrator Michiels van Verduynen, Secretary-General.

Right by discovery

In the first of its two arguments, the United States argued that it held the island because it
had received actual title through legitimate treaties from the original "discoverer" of the
island, Spain. The United States argued that Spain acquired title to Palmas when Spain
discovered the island and the island was terra nullius. Spain's title to the island, because it
was a part of the Philippines, was then ceded to the United States in the Treaty of Paris
(1898) after Spain's defeat in the Spanish-American War. The arbitrator noted that no new
international law invalidated the legal transfer of territory via cession. However, the
arbitrator noted that Spain could not legally grant what it did not hold and the Treaty of
Paris could not grant to the United States Palmas if Spain had no actual title to it. The
arbitrator concluded that Spain held an inchoate title when Spain discovered Palmas.
However, for a sovereign to maintain its initial title via discovery, the arbitrator said that
the discoverer had to actually exercise authority, even if it were as simple an act as planting
a flag on the beach. In this case, Spain did not exercise authority over the island after
making an initial claim after discovery and so the United States’ claim was based on
relatively weak grounds.

Contiguity

30
The United States also argued that Palmas was United States territory because the island
was closer to the Philippines than to Indonesia which was then held by the Netherlands
East Indies. The arbitrator said there was no positive international law which favored the
United States' approach of terra firma, where the nearest continent or island of considerable
size gives title to the land in dispute. The arbitrator held that mere proximity was not an
adequate claim to land noted that if the international community followed the proposed
United States approach, it would lead to arbitrary results.

Continuous and peaceful display of sovereignty

The Netherlands' primary contention was that it held actual title because the Netherlands
had exercised authority on the island since 1677. The arbitrator noted that the United States
had failed to show documentation proving Spanish sovereignty on the island except those
documents that specifically mentioned the island's discovery. Additionally, there was no
evidence that Palmas was a part of the judicial or administrative organization of the Spanish
government of the Philippines. However, the Netherlands showed that the Dutch East India
Company had negotiated treaties with the local princes of the island since the 17th century
and had exercised sovereignty, including a requirement of Protestantism and the denial of
other nationals on the island. The arbitrator pointed out that if Spain had actually exercised
authority, than there would have been conflicts between the two countries but none are
provided in the evidence. Conclusion.

Under the Palmas decision, three important rules for resolving island territorial disputes were
decided:

Firstly, title based on contiguity has no standing in international law. Secondly, title by
discovery is only an inchoate title. Finally, if another sovereign begins to exercise continuous
and actual sovereignty, (and the arbitrator required that the claim had to be open and
public and with good title), and the discoverer does not contest this claim, the claim by the
sovereign that exercises authority is greater than a title based on mere discovery.

EASTERN GREENLAND CASE

FACTS
Norway made a proclamation in 1931 that it is taking possession of which is ‘officially confirmed’’
and which is placed under ‘Norwegian sovereignty’ of Elrik Raudes Land in Eastern Greenland. It
however, was criticized for not specifying the limits of the occupation. It was presumed that the
occupation was on the eastern side of the sea and the western side of the ‘inland ice’.

The proclamation triggered the dispute between Norway and Denmark. Denmark claims
sovereignty which it has exercised over Greenland for a long time until the present dispute. That,
Norway has recognized Danish sovereignty over the Greenland. However, Norway claims no
sovereignty was possessed by Denmark over the land which the former occupied since the
proclamation was made. During Norway’s occupation, the area was terra nullius.

31
 ISSUE: Whether or not Norway has jurisdiction over the contested area in Eastern Greenland

RULING: NO, Estoppel is applicable against Norway.

1. After termination of the Union between Denmark and Norway in 1814, the latter undertook not to
contend the Danish claim of sovereignty over Greenland. PCIJ held that as a result of various
undertaking resulting from the separation and culminating in Article 9 of the convention of
September 1st, 1819, concluded that Norway acknowledged Danish sovereignty and consequently
it cannot occupy of any part thereof.

2. International Agreements: In many bilateral and multilateral agreements concluded between

Denmark and other countries including Norway, Greenland was described as part of Denmark and
has been excluded at the instance of the latter from operation of the agreements. By ratifying such
agreements, it is followed that Norway recognized whole of Greenland as part of Denmark.

3. Ihlen Declaration: One of the bases for the Denmark's claim was the statement made by Foreign
Minister of Norway Mr. Ihlen in July, 1919 would render their claim for sovereignty futile. Norway
contented that his statement would not bind the Norwegian Government as it lacked requisite
authority.

48. Minquiers and Ecrehos case (Territory, land and outer space)

Facts: The United Kingdom and France requested for the ICJ to determine the country that held
sovereignty over the islets and rocks in the Minquiers and Ecrehos groups. France claimed sovereignty
because it fished in the waters and it had historic sovereignty over the area from the 11th century's
Duchy of Normandy. The United Kingdom claimed that Jersey had historically exercised legal and
administrative jurisdiction over them.

Issue: Which of them should have sovereignty over the disputed islets?

Held: Failure of a State to react to a claim may, under certain conditions, not amount to acquiescence,
though in most cases it will. In the Minquiers and Ecrehos case, France pleaded that it was impossible to
keep under surveillance the activities of the United Kingdom with respect to the islets. Responding to
this argument, Judge Carneiro replied that France was obliged to keep the disputed territory under
surveillance and failure to exercise such surveillance and ignorance of what was going on on the islets
indicate that France was not exercising sovereignty in the area (Judgment, I.C.J. Reports 1953, p. 106).

In the dispute over these islets and rocks, lying between the British island of Jersey and the coast of
France, both Parties produced a number of ancient historical titles, going back to the Middle Ages; but
the United Kingdom presented, as the Court found, better and more convincing evidence of exercise
during the critical period of State sovereignty by the authorities of the British island of Jersey over the
two groups of islets. The finding of the Court was:

32
"The Court further finds that British authorities during the greater part of the nineteenth century and in
the twentieth century have exercised State functions in respect of the group [Ecrehos]. The French
Government, on the other hand, has not produced evidence showing that it has any valid title to the
group. In such circumstances it must be concluded that the sovereignty over the Ecrehos belongs to the
United Kingdom." (I.C.J. Reports 1953, p. 67.)

Sovereignty over the Minquiers group was found to belong to Jersey; primarily on the basis of evidence
of continuous and peaceful exercise of State power, the Court found:

"that the sovereignty over the islets and rocks of the Ecrehos and Minquiers groups, in so far as these
islets and rocks are capable of appropriation, belongs to the United Kingdom" (I.C.J. Reports 1953, p.72).

344. The Court in that case did not however simply disregard the ancient titles, and decide on a basis of
more recent display of sovereignty. It took care to observe that in view of the alleged titles,

"The present case does not therefore present the characteristics of a dispute concerning the acquisition
of sovereignty over terra nullius" (I.C.J. Reports 1953, p. 53).

49. Case concerning sovereignty over pulau ligitan and pulau sipadan (Territory, land and outer space)

Facts: Ligitan and Sipadan are two small islands located in the Celebes Sea off the southeastern coast of
the Malaysian state of Sabah. Sovereignty over the islands has been disputed by Indonesia and Malaysia
since 1969 and intensified in 1991 when Indonesia discovered that Malaysia had built some tourist
facilities on Sipadan island. Indonesia claimed that it had made a verbal agreement with Malaysia in
1969 to discuss the question of sovereignty over the islands. Malaysia however denied the allegation of
an agreement between them, maintaining that the islands have always been part of the territory of its
state of Sabah.[2] Both countries have not delimited their maritime zones in the area and the court was
not asked to rule on this further matter. On 2 November 1998, both countries agreed to bring the
matter to the International Court of Justice (ICJ).

The Philippines had applied during the proceedings to intervene over the case on the basis of their claim
to northern Borneo. According to the Philippine side, the heirs of the Sultan of Sulu has ceded their
rights over North Borneo (present-day Sabah) to the Philippines in 1962. However, a majority of people
in the territory chose to become part of Malaysia in 1963 rather than the Philippines as been seen under
a plebiscite organised by the United Nations. The Philippines motive to intervene was questioned by the
court, as to whether the Philippines had a "sufficiently strong legal interest" with both Indonesia and
Malaysia. The court strongly rejected the Philippines' attempt of intervention and in doing so cited that
the request made by the Philippines did not relate to the subject matter of the case. The Philippines
query was totally dismissed in June 2001 when after oral hearings the court voted it down by a count of
fourteen votes to one.

33
Issue: To whom does the sovereignty over Pulau Ligitan and Pulau Sipadan belong to?

Held: Malaysia. Both of the islands were originally considered as terra nullius. But as Malaysia's
predecessor, Great Britain, significantly developed the islands compared to Indonesia's predecessor, the
Netherlands, especially after Malaysia's formation as a nation the court using this as the main reason
decided to award the islands to Malaysia based on their "effective occupation". In addition, it is also
acknowledged both of the islands were much closer to Malaysia than Indonesia as well with an earliest
documentation from Malaysia over the British 1878 Agreement with the Sultanate of Sulu during which
time they acquired the Sultanate area as part of the British Borneo, while the Indonesian claim is mostly
based on an 1891 Boundary Treaty between Great Britain and the Netherlands.

The Court noted that:

“the activities relied upon by Malaysia . . . [we]re modest in number but . . . they [we]re diverse in
character and include[d] legislative, administrative and quasi-judicial acts. They cover[ed] a considerable
period of time and show[ed] a pattern revealing an intention to exercise State functions in respect of the
two islands in the context of the administration of a wider range of islands.”

The Court further stated that “at the time when these activities were carried out, neither Indonesia nor
its predecessor, the Netherlands, [had] ever expressed its disagreement or protest”.

TEMPLE OF PREAH VEHAR

FACTS:

Cambodia complained that Thailand had occupied a piece of its territory surrounding the ruins of the
Temple of Preah Vihear, a place of pilgrimage and worship for Cambodians, and asked the Court to
declare that territorial sovereignty over the Temple belonged to it and that Thailand was under an
obligation to withdraw the armed detachment stationed there since 1954. Thailand filed preliminary
objections to the Court’s jurisdiction, which were rejected in a Judgment given on 26 May 1961. In its
Judgment on the merits, rendered on 15 June 1962, the Court noted that a Franco-Siamese Treaty of
1904 provided that, in the area under consideration, the frontier was to follow the watershed line, and
that a map based on the work of a Mixed Delimitation Commission showed the Temple on the
Cambodian side of the boundary. Thailand asserted various arguments aimed at showing that the map
had no binding character. One of its contentions was that the map had never been accepted by Thailand
or, alternatively, that if Thailand had accepted it, it had done so only because of a mistaken belief that
the frontier indicated corresponded to the watershed line.

ISSUE: Whether or not the temple was situated in Cambodian territory.

RULING: YES

The final stage of the delimitation was the preparation of maps and amongst them was a map of the
Dangrek range showing Preah Vihear on the Cambodian side.

The Siamese Government and later the Thai Government had raised no query about the Annex I map
prior to its negotiations with Cambodia in Bangkok in 1958. But in 1934-1935 a survey had established a
divergence between the map line and the hue line of the watershed, and other maps had been

34
produced showing the Temple as being in Thailand: Thailand had nevertheless continued also to use and
indeed to publish maps showing Preah Vihear as lying in Cambodia. Moreover, in the course of the
negotiations for the Franco-Siamese Treaties, which confirmed the existing frontiers, and in 1947 in
Washington before the Franco-Siamese Conciliation Commission, it would have been natural for
Thailand to raise the matter: she did not do so. The natural inference was that she had accepted the
frontier at Preah Vihear as it was drawn on the map, irrespective of its correspondence with the
watershed line. Thailand had stated that having been, at all material times, in possession of Preah
Vihear, she had had no need to raise the matter; she had indeed instanced the acts of her administrative
authorities on the ground as evidence that she had never accepted the Annex I line at Preah Vihear. But
the Court found it difficult to regard such local acts as negativing the consistent attitude of the central
authorities. Moreover, when in 1930 Prince Damrong, on a visit to the Temple, was officially received
there by the French Resident for the adjoining Cambodian province, Siam failed to react.

Even if there were any doubt in this connection, Thailand was not precluded from asserting that she had
not accepted it since France and Cambodia had relied upon her acceptance and she had for fifty years
enjoyed such benefits as the Treaty of 1904 has conferred on her. Furthermore, the acceptance of the
Annex I map caused it to enter the treaty settlement; the Parties had at that time adopted m
interpretation of that settlement which caused the map line to prevail over the provisions of the Treaty
and, as there was no reason to think that the Parties had attached any special importance to the line of
the watershed as such, as compared with the overriding importance of a final regulation of their own
frontiers, the Court considered that the interpretation to be given now would be the same.
LIBYA vs CHAD, ICJ Reports 1994 (TERRITORIAL DISPUTE)
FACTS:
The Government of Libya filed a registry of notification of an agreement that it had concluded
with Chad, which it agreed, that in the absence of a political settlement of their territorial dispute,
they undertook to submit such matter to the ICJ. This involves the Aouzou Strip which is in between
the boundaries of Chad and Libya. Libya claims that there exists no boundary between the two
countries by virtue of any international agreement; hence it asks the Court to determine one.
Whereas Chad claims that there is an existing boundary, and asks the Court to declare what that
boundary is. Chad in its submissions has indicated the position of the line which it claims constitutes
its frontier with Libya. Libya, while maintaining in its submissions that in the region in question "there
exists no boundary... between Libya and Chad by virtue of any existing international agreement",
also submits that it "has clear title to all the territory" north of a specified line. The area now in
dispute, between those two lines, has been referred to by Libya in this case as the Libya-Chad
"Borderlands". Libya bases its claim to the Borderlands on a coalescence of rights and titles: those
of the indigenous inhabitants, those of the Senoussi Orderand those of a succession of sovereign
States, namely the Ottoman Empire, Italy, and finally Libya itself. Chad claims a boundary on the
basis of a Treaty of Friendship and Good Neighbourliness concluded by the French Republic and
the United Kingdom of Libya on 10 August 1955. In the alternative, Chad claims that the lines
delimiting the zones of influence in earlier treaties, referred to in the 1955 Treaty, had acquired the
character of boundaries through French effectivites; it claims finally that, even irrespective of treaty
provisions, Chad can rely on those effectivites in regard to the area claimed by it.

ISSUE: WON there exists a boundary between Chad and Libya, and if there is, what is the nature of
that boundary?

HELD:
Yes, there is. It is recognized by both Parties that the 1955 Treaty is the logical starting-point
for consideration of the issues before the Court. Neither Party questions the validity of the 1955
Treaty, nor does Libya question Chad's right to invoke against Libya any such provisions thereof as
relate to the frontiers of Chad. One of the matters specifically addressed was the question of
frontiers, dealt with in Article 3 and Annex 1.The Court said that if the 1955 treaty did not result in a
boundary, this furnishes the answer to the issues raised by the Parties: it would be a response at

35
one and the same time to the Libyan request to determine the limits of the respective territories of
the Parties and to the request of Chad to determine the course of the frontier. According to Article 3
of the 1955 Treaty, the parties "recognize [reconnaissent] that the frontiers . . . are those that result"
from certain international instruments. The word "recognize" used in the Treaty indicates that a legal
obligation is undertaken. To recognize a frontier is essentially to "accept" that frontier, that is, to draw
legal consequences from its existence, to respect it and to renounce the right to contest it in future. It
was clear to the Court that — contrary to what was contended by the Libyan Arab Jamahiriya — the
Parties had agreed to consider the instruments listed as being in force for the purpose of Article 3,
since otherwise they would not have included them in the Annex. Having concluded that the
Contracting Parties wished, by the 1955 Treaty, to define their common frontier, the Court
considered what that frontier was.

Accordingly it proceeded to a detailed study of the instruments relevant to the case,

i.e., (a) to the east of the line of 16° longitude, the Anglo-French Declaration of 1899 — which
defined a line limiting the French zone (or sphere of influence) to the north-east in the direction of
Egypt and the Nile Valley, already under British control — and the Convention of 8 September 1919
signed at Paris between Great Britain and France, which resolved the question of the location of the
boundary of the French zone under the 1899 Declaration ; (b) to the west of the line of 16° longitude,
the Franco-Italian Agreement (Exchange of Letters) of 1 November 1902, which referred to the map
annexed to the Declaration of 21 March 1899.

Having concluded that a frontier resulted from the 1955 Treaty, and having established
where that frontier lay, the Court is in a position to consider the subsequent attitudes of the Parties to
the question of frontiers. The Court now turns to the attitudes of the Parties, subsequent to the 1955
Treaty. Libya did not challenge the territorial dimensions of Chad as set out by France. As for Chad,
it has consistently adopted the position that it does have a boundary with Libya, and that the territory
of Chad includes the "Aouzou strip"Chad submitted a com-plaint to the Organization of African Unity
regarding the occupation by Libya of the Aouzou strip. By a communication of 9 February 1978, the
Head of State of Chad informed the Security Council that Libya had "to this day supplied no
documentation to the OAU to justify its claims to Aouzou". Libya never defended itself nor attempt to
plead before the Council. All of these instances indicate the consistency of Chad's conduct in
relation to the location of its boundary.

Lastly, notwithstanding that the 1955 treaty that it can be terminated after 20 years by either
party, the treaty must be viewed to have determined an established frontier. The establishment of
this boundary is a fact which, from the outset, has had a legal life of its own, independently of the
fate of the 1955 Treaty. Once agreed, the boundary stands, for any other approach would vitiate the
fundamental principle of the stability of boundaries, the importance of which has been repeatedly
emphasized by the Court. A boundary established by treaty thus achieves a permanence which
the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any
way affecting the continuance of the boundary.
Western Sahara Case

ICJ Reports, 1975

FACTS:

The ICJ opinion on Western Sahara was (ironically, in hindsight) requested by Morocco in 1974,
shortly after Spain declared its intent to hold a referendum on independence. On September 30 of
that year, Morocco put a request to the UN General Assembly. Morocco wanted a binding
decision of the World Court as to whether or not Spain had occupied Moroccan territory when it
established a colony in 1885. Mauritania, having also raised a claim on Spanish Sahara, backed

36
Morocco’s request. Spain, however, would not submit to binding arbitration. Instead, Madrid
would accept an advisory opinion on the question of Western Sahara in the context of the UN
charter and applicable resolutions.

So on 17 December 1974, the General Assembly requested an advisory opinion on the following
questions :

“I. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain a
territory belonging to no one (terra nullius) ?”

If the answer to the first question is in the negative,

“II. What were the legal ties between this territory and the Kingdom of Morocco and the
Mauritanian entity?”

This request took place in the context of decolonization of Western Sahara,formerly a

protectorate of Spain. Morocco and Mauritania are rival claimants, both arguing that portions of
the disputed area formed part of their pre-colonial territories and seeking to have the former
colony re-integrated to their respective national territories

ISSUE:

Whether Western Sahara at the time of colonization by Spain was a terra nullius.

RULING:

No. There are legal ties of allegiance between the Sultan of Morocco and some of the tribes
living in the territory of Western Sahara. There are also legal ties between the Mauritanian entity
and the territory of Western Sahara. However such do not establish any tie of territorial
sovereignty between the territory of Western Sahara and Kingdom of Morocco or the
Mauritanian entity. Thus the Court did not find any legal ties of such a nature as might affect the
application of the General Assembly’s 1960 resolution 1514 (XV) — containing the Declaration
on the Granting of Independence to Colonial Countries and Peoples — in the decolonization of
Western Sahara and, in particular, of the principle of self-determination through the free and
genuine expression of the will of the peoples of the territory.

In its Advisory Opinion, delivered on 16 October 1975, the Court replied to Question I in the
negative. Western Sahara was not a No-Man’s- Land. Western Sahara belonged to a people, but
it was neither Morocco nor Mauritania. Based on the evidence, the Court found that the lands
were inhabited by peoples which , if nomadic, were socially and politically organized in tribes
and under chiefs competent to represent them.

In reply to Question II, it expressed the opinion that the materials and information presented to it
showed the existence, at the time of Spanish colonization, of legal ties of allegiance between the

37
Sultan of Morocco and some of the tribes living in the territory of Western Sahara. They equally
showed the existence of rights, including some rights relating to the land, which constituted legal
ties between the Mauritanian entity, as understood by the Court, and the territory of Western
Sahara.

El Salvador vs. Honduras

Facts:

This is a case which concerns the land, island and maritime frontier dispute between the Republic of
Honduras and Republic of Hondura with the Republic of Nicaragua having been permitted to intervene
in this case.

The legal status of the islands located in the Gulf of Fonseca became an issue of dispute; the question of
the land frontier followed in 1861. Border incidents led to mounting tension between the States and,
ultimately, to an armed conflict in 1969. However, in 1972 the parties were able to reach an agreement
on a substantial part of the land border between El Salvador and Honduras; only six sectors of the
frontier remained unsettled. A mediation process initiated in 1978 resulted in the conclusion of a peace
treaty in 1980.

Under this treaty a Joint Border Commission was created to determine the boundary in the remaining
six sectors as well as to decide upon the legal status of the islands and the maritime spaces. In the event
that the parties did not reach a settlement within five years, the treaty provided that the parties, within
six months, conclude a Special Agreement to submit the dispute to the ICJ. Accordingly, a Special
Agreement was concluded on May, 24, 1986 requesting the Court to delimit the frontier between El
Salvador and Honduras in the subject six sectors and to determine the legal status of the islands in the
Gulf of Fonseca especially El Tigre and Meanguerra, and the waters of the Gulf itself.

Issue: Whether or not the legal status of the land are terra nullius?

Whether or not the behavior of the parties could be used to determine the issue of land
boundaries in absence of documentary evidence and presence of conflicting claims

What is the legal status of the Gulf of Fonseca?

Ruling:

1. NO. Thus the principle of utipossidetis juris is concerned as much with title to territory as with the
location of boundaries; certainly a key aspect of the principle is the denial of the possibility of terra
nullius. "The essence of the principle lies in its primary aim of securing respect for the territorial
boundaries at the moment when independence is achieved. Such territorial boundaries might be no
more than delimitations between different administrative divisions or colonies al1 subject to the same
sovereign. In that case, the application of the principle of uti possidetis juris resulted in administrative
boundaries being transformed into international frontiers in the full sense oft he term."

38
2. Yes. Where the relevant administrative boundary was ill-defined or its position disputed, in the view
of the Chamber the behaviour of the two newly independent States in the years following independence
may well serve as a guide to where the boundary was, either in their shared view, or in the view acted
on by one and acquiesced in by the other This aspect of the matter is of particular importance in relation
to the status of the islands, by reason of their history. (Because in this case since both El Salvador and
Honduras just came out of independence when the dispute arise, they can’t present proof of
legislative acts to prove ownership over the land).

The Chamber concludes, in the light of these historical events, that the conduct of both Parties in the
years following independence and the dissolution of the Federal Republic of Central America, was
consistent with the assumption that the island of El Tigre appertained to the newly independent State of
Honduras.

Meanguera on the other hand belongs to El Salvador. Thus the conclusion of the Chamber concerning
Meanguera is that, while the utipossidetis juris position in 182 1 cannot be satisfactorily ascertained on
the basis of colonial titles and effectivités, the fact that El Salvador asserted a claim to the island of
Meanguera in 1854, and was thereafter in effective possession and control of the island, justifies the
conclusion that El Salvador may be regarded as sovereign over the island.

3. It is a historic bay. The Gulf of Fonseca is manifestly not a bay the coasts of which belong to one State;
and the Parties and the intervening State, and commentators generally, are agreed that it is an historic
bay, and that the waters of it are accordingly historic waters.

Thus the Gulf waters, other than the 3-mile maritime belts, are historic waters and subject to a joint
sovereignty of the three coastal States.

The closing line of the Gulf between Punta de Amapala and Punta Cosiguina and determined that the
special regime of the Gulf did not extend beyond this closing line. The legal status of these waters inside
the Gulf were defined by the Court as sui generis, but would be the same as that of internal waters and
not that of territorial sea, except for the three-mile coastal zone of each State.

Since the legal situation on the landward side of the closing line is one of joint sovereignty, it follows
that al1 three of the joint sovereigns must have entitlement outside the closing line to territorial sea,
continental shelf and exclusive economic zone. This must be so, both in respect of continental shelf
rights belonging ipso jure to the three coastal States, and in respect of an exclusive economic zone
which requires proclamation..

Clipperton Island Arbitration (France versus Mexico)

January 28, 1931

39
Doctrine: If an Island is uninhabited,physical occupation is not necessary. Open
declaration is sufficient.

Facts:
Clipperton Island is situated in Pacific Ocean. A French lieutenant on board a commercial
vessel cruising past the uninhabited island declared it to be French territory. The Lieutenant
notified the French consulate, which informed the Government of Hawaii and published the
declaration of French Sovereignty in the local journal. Very little was then done in relation to the
island by the French authorities. Many years later, Mexican gun-boat landed and forced the three
inhabitants to raise the Mexican flag, claiming that the island had been discovered by Spain,
to which Mexico was the Successor State. The Arbitrator held that the discovery by Spain had
not been proved and that France had not abandoned her claim and so had title to the Island.

Issue:

Whether or not France has a stronger title than Mexico over Clipperton Island.

Ruling:

Yes. France successfully acquired title by occupation. Physical occupation is not required
where:

1. Territory is terra nullius

2. At the time the occupying state makes its appearance there: and
3. Taking of possession and intent to possess is shown by a public declaration of
sovereignity.

Clipperton Island is terra nullius considering the territory was uninhabited and without
administration. Sovereignty over the island was declared by France from the moment its
navy members landed on the island in 1858 and was published in Honolulu journal, The
Polynesian in the same year.

Saudi Arabia v Arabian American Oil Company (Aramco)

27 ILR 117

Facts: This petition is concerned with the interpretation of the Concession Agreement between Saudi
Arabia and respondent on 1933 which was created to give Aramco exclusive rights to transport oil
extracted from its concession in Saudi Arabia. Article 1 of this agreement provides that. under the
concession, Aramco has the exclusive right to search petroleum, extract oil, refine petroleum and
produce its derivatives, and to transport, sell abroad, and dispose of it commercially. Article 22 thereof
provides that the company can use all means and facilities it may deem necessary or advisable.
Subsequently, in 1954, the Government concluded the Onassis Agreement which gave the Saudi Arabia
Maritime Tankers, Ltd. (Satco) a 30 years right of priority for the transport of Saudi Arab Oil. Now, the

40
Government avers that the concession agreement purports to authorize Aramco to explore areas
supposed to contain oil deposits, and in case of discovery, to extract and produce the oik, but not to
transport by sea. The term “ transport” in Article 1 only contemplated the internal transport from the
site of the extraction to the port of loading or the Ras Tanura refinery for manufacture. It cannot mean
external transport. The exclusive right of transport by sea was not included within the expectations of
the parties, as no express stipulation to this effect was included in the Agreement.

Issue: Whether or not Aramco has the right to transport oil by sea.

Held: Yes. In its capacity as first concessionaire, Aramco enjoys exclusive rights which have the character
of acquired or vested rights and which cannot be taken away from it by the Government by means of a
contract concluded with a second concessionaire, even if that contract were equal to its own contract
from the legal point of view. The principle of respect for vested rights is one of the fundamental
principles both of public international law and of the municipal law of most civilized States. The fact that
valid contracts bind both Parties and must be performed, for rights resulting from agreements
concluded for due consideration are absolutely secure.
ANGLO- NORWEGIAN FISHERIES CASE, ACJ REPORTS, 1951

Facts:

In 1935, a Norwegian Royal Decree was enacted delimiting the Norwegian Fisheries Zone. This
delimitation made use of straight baselines drawn between fixed points on the Norwegian coastal zone---
a zone which includes its mainland, and the various islands, islets and reefs, fjords and bays which
comprise a distinctive archipelago known as “skjaergaard”. The UK, in light of its various fishing interest in
that area, protested the delimitation, claiming that it was contrary to international law principles.

The UK argued that Norway’s baselines must be reckoned from the low-water mark on the
mainland; the length of lines drawn on the formations of the Skaergaard fjord must not exceeds 10
nautical miles which is contrary to the 10-Mile rule.

On the other hand, the Norway contended that baselines must be reckoned from the low water
mark of the skjaergaard.

Issue:

WON the delimitation practice of Norway is contrary to 10-mile rule.

Ruling:

NO.

Although the ten-mile rule has been adopted by certain States both in their national law and in
their treaties and conventions, and although certain arbitral decisions have applied it as between these
States, other States have adopted a different limit. Consequently, the ten-mile rule has not acquired the
authority of a general rule of international law.

The Court in its judgment held that even if a customary law rule existed on the aforementioned
ten-mile rule, the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has
always opposed any attempt to apply it to the Norwegian coast.

41
 In this case, the Court appears to support the idea that an existing customary law rule would not
apply to a State if (1) it objected to the application of the rule to itself (2) at the initial stages and (3) in a
consistent manner. The Anglo Norwegian Fisheries Case, thus, supports the Asylum Case (Peru vs
Colombia) in articulating what we now call the persistent objector rule.

Furthermore, the fact that this consistent and sufficiently long practice took place without any
objection to the practice from other States (until the time of dispute) indicated that these States did not
consider the Norwegian system to be “contrary to international law”.

The Court alluded to the relationship between national and international law in delimitation of
maritime boundaries. In delimitation cases, States “must be allowed the latitude necessary in order to be
able to adapt its delimitation to practical needs and local requirements…” The Court would also consider
“…certain economic interests peculiar to a region, the reality and importance of which are clearly
evidenced by a long usage.” However, while the act of delimitation can be undertaken by the State, its
legal validity depends on international law.

The delimitation of sea areas has always an international aspect; it cannot be dependent merely
upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of
delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it,
the validity of the delimitation with regard to other States depends upon international law.

El Salvador/Honduras Case

Facts: On 11 December 1986, El Salvador and Honduras notified to the Court a Special
Agreement whereby the Parties requested the Court to form a Chamber (…) in order to (1)
delimit the frontier line in the six sectors not delimited by the 1980 General Treaty of Peace
concluded between the two States in 1980 and (2) determine the legal situation of the
islands in the Gulf of Fonseca and the maritime spaces within and outside it (…)

In November 1989, Nicaragua addressed to the Court an Application under Article 62 of the
Statute for permission to intervene in the case.

The Chamber began by noting the agreement of both Parties that the fundamental principle
for determining the land area is the uti possidetis juris, i.e., the principle, generally
accepted in Spanish America, that international boundaries follow former colonial
administrative boundaries. The Chamber was, moreover, authorized to take into account,
where pertinent, a provision of the 1980 Peace Treaty that a basis for delimitation is to be
found in documents issued by the Spanish Crown or any other Spanish authority during the
colonial period, and indicating the jurisdictions or limits of territories, as well as other
evidence and arguments of a legal, historical, human or any other kind. Noting that the
Parties had invoked the exercise of government powers in the disputed areas and of other
forms of effectivités, the Chamber considered that it might have regard to evidence of
action of this kind affording indications of the uti possidetis juris boundary. The Chamber
then considered successively, from west to east, each of the six disputed sectors of the land
boundary, to which some 152 pages were specifically devoted.

Issue: Whether or not the islands in the gulf is within the jurisdiction of the Chamber

42
Ruling: Yes. With regard to the legal situation of the islands in the Gulf, the Chamber
considered that, although it had jurisdiction to determine the legal situation of all the islands, a
judicial determination was required only for those in dispute, which it found to be El Tigre,
Meanguera and Meanguerita. It rejected Honduras’s claim that there was no real dispute as to El
Tigre. Noting that in legal theory each island appertained to one of the Gulf States by
succession from Spain, which precluded acquisition by occupation, the Chamber observed that
effective possession by one of the States could constitute a post-colonial effectivité shedding
light on the legal situation. Since Honduras had occupied El Tigre since 1849, the Chamber
concluded that the conduct of the Parties accorded with the assumption that El Tigre
appertained to it. The Chamber found Meanguerita, which is very small, uninhabited and
contiguous to Meanguera, to be a “dependency” of Meanguera. It noted that El Salvador had
claimed Meanguera in 1854 and that from the late nineteenth century the presence there of El
Salvador had intensified, as substantial documentary evidence of the administration of
Meanguera by El Salvador showed. A protest in 1991 by Honduras to El Salvador over
Meanguera was considered too late to affect the presumption of acquiescence by Honduras.
The Chamber thus found that Meanguera and Meanguerita appertained to El Salvador.

With respect to the waters outside, the Chamber observed that entirely new concepts of law,
unthought of when the Central American Court gave its Judgment in 1917, were involved, in
particular those regarding the continental shelf and the exclusive economic zone, and found
that, excluding a strip at either extremity corresponding to the maritime belts of El Salvador
and Nicaragua, the three joint sovereigns were entitled, outside the closing line, to a territorial
sea, continental shelf and exclusive economic zone, but must proceed to a division by mutual
agreement. Lastly, as regards the effect of the Judgment on the intervening State, the Chamber
found that it was not res judicata for Nicaragua.

US v. California (1965)

Topic: Territorial Sea

FACTS: The State of California and the Federal Gov’t are trying to determine who owns and
has jurisdiction over the subsoil, seabed of the continental shelf and the resources located therein
along the California coast. To resolve such, the Court discussed the definition of relevant
maritime terms used in the Submerged Lands Act.

It was found that the Federal Gov’t owns and has exclusive jurisdiction over such beyond 3
miles seaward from the coastline. California owns and has exclusive jurisdiction over such
within 3 miles or the tidelands along its coast (defined as the shore of the mainland and of
islands, between the line of mean high water and the line of mean lower low water.)

43
The Court adopts the definitions in the International Convention on the Territorial Sea and the
Contiguous Zone:

“Coastline” – (a) the line of mean lower low water on the mainland, on islands, and on low-tide
elevations lying wholly or partly within 3 geographical miles from the line of mean low lower on
the mainland or on an island; and

(b) The line marking the seaward limit of inland waters.

This includes modifications by natural or artificial means, and includes the outermost permanent
harbor works that form an integral part of the harbor system.

“Island” – means a naturally-formed area of land surrounded by water, which is above the level
of mean high water;

“Low-tide elevation” – means a naturally-formed area of land surrounded by water at mean

lower low water, which is above the level of mean lower low water but not above the level of
mean high water;

“Mean lower low water” – the average elevation of all the daily lower low tides occurring over a
period of 18.6 years;

“Mean high water” – the average elevation of all the high tides occurring over a period of 18.6
years;

“Geographical mile” – a distance of 1852 meters (6076.10333 U.S. Survey Feet or

approximately 6076.11549 International Feet).

“Roadsteads” – waters between islands, and waters between islands and the mainland are not per
se inland waters.

“Inland waters” – waters landward of the baseline of the territorial sea and includes:

a. Any river or stream flowing directly into the sea, landward of a straight line across its
mouth;
b. Any port, landward of its outermost permanent harbor works and a straight line across its
entrance;
c. Any “historic bay” as that term is used in para. 6 of Art. 7 of the Convention, defined
essentially as a bay over which the United States has traditionally asserted and
maintained dominion with the acquiescence of foreign nations;
d. Semi-Circle Test – any other bay (defined as a well-marked coastal indentation having
such penetration, in proportion to the width of its entrance, as to contain landlocked
waters, and having an area, including islands within the bay, at least as great as the area
of a semicircle whose diameter equals the length of the closing line across the entrance of
the bay, or the sum of such closing lines if the bay has more than one entrance),

44
landward of a straight line across its entrance or, if the entrance is more than 24 geographical
miles wide, landward of a straight line not over 24 geographical miles long, drawn within the bay
so as to enclose the greatest possible amount of water. An estuary(where the tide meets the
stream) of a river is treated in the same way as a bay.

US v Louisiana

Facts: The United States and Louisiana filed cross-motions for a supplemental decree designating the
boundary of the lands under the Gulf owned by Louisiana, the parties differing primarily with respect to
that part of the coastline consisting of "the line marking the seaward limit of inland waters." The United
States contends that the definitions of "inland waters" contained in the international Convention on the
Territorial Sea (ICTS) and the Contiguous Zone (hereafter Convention) should determine the location of
that line, while Louisiana urges that the governing boundary is a line it calls the "Inland Water Line"
which was fixed by the Commandant of the Coast Guard pursuant to an 1895 federal statute which
directed the drawing of "lines dividing the high seas from rivers, harbors, and inland waters." Louisiana
urges, alternatively, that the decree proposed by the United States reflects an overly strict construction
of the Convention's provisions.

Issue: Whether or not the definition of inland waters contained in ICTS should prevail over Louisiana’s
contention that it should be the Inland Water Line by Commandment of the Coast Guard

Ruling: Yes. It is to be drawn in accordance with the Convention's definitions. That part of Louisiana's
coastline which, under the Submerged Lands Act, consists of "the line marking the seaward limit of
inland waters.” Congress deliberately "chose to leave the definition of inland waters . . . in the Court's
hands" (United States v. California), and did not intend to tie the meaning of "inland waters" to the 1895
Act, which was enacted to separate the areas in which shipping must follow inland navigation rules from
those in which it must follow international rules.

In United States v. California, the Court held that the Convention's definitions were "the best
and most workable. . . available," and adopted them for the purposes of the Submerged Lands Act.
Nothing in either the enactment of the 1895 Act or in its administration indicates that the United States
has treated the "Inland Water Line" as a territorial boundary. The reasonable regulation of navigation is
not alone a sufficient exercise of dominion to constitute a claim to historic inland waters; and, in any
event, no such claim can be made in the face of longstanding disclaimers of historic title and the
absence of any treatment of the "Inland Water Line" by the United States as delimiting an area within
which it can exercise jurisdiction over anything but navigation.

The Court held that, by the Submerged Lands Act of 1953, the United States had quitclaimed to
Louisiana lands underlying the Gulf of Mexico within three geographical miles of the coastline, the
United States being declared entitled to the lands further seaward. The decree and the Act defined
"coast line" as "the line of ordinary low water along that portion of the coast which is in direct contact
with the open sea and the line marking the seaward limit of inland waters.” The Court's adoption,
in United States v. California, of the Convention definitions was "for the purposes of the Submerged
Lands Act," and not simply for the purpose of delineating a particular State's coastline. If the

45
inconvenience of an ambulatory coastline proves substantial, the problems may be resolved through
legislation or agreement between the parties.

Additional info: Though the Court is able, on the basis of the materials now before it, to decide many
issues involving application of the Convention to the Louisiana coast, the Court has decided to refer to a
Special Master several particularized disputes over the precise boundary between submerged Gulf lands
belonging to the United States and those belonging to Louisiana, since resolution of several of such
disputes cannot be made without evidentiary hearings, and resolution of others in this technical and
unfamiliar area would benefit from the preliminary judgment of a detached referee.

CORFU Channel Case (United Kingdom v. Albania) 1949

Facts: On May 15, 1946, two British ships passed through Albania’s North Corfu Channel where
they were fired at by an Albanian battery. Following this incident, the United Kingdom (plaintiff)
and Albania (defendant) entered into diplomatic discussions about the right of British ships to
pass peacefully through Albanian waters. Albania maintained that the ships should not pass
through without providing prior notification to the Albanian government. However, the United
Kingdom maintained it had a right under international law to innocently pass through the
straits. Between May 15, 1946 and October 22, 1946, the Albanian government allegedly placed
mines in the Corfu Channel in Albanian territorial waters. Albania was at war with Greece, and
the mines were allegedly part of its defense. On October 22nd, British warships attempted to
again pass through the straits, but were destroyed by the mines, with loss of human life. The
United Kingdom brought suit in the International Court of Justice (ICJ) on the ground that
Albania had a duty to warn the approaching British ships of the mines. It sought damages from
Albania. However, Albania argued that its territorial rights had previously been violated by the
British ships passing through its straits on May 15, 1946, and that it was entitled to a
satisfaction.

Issue: Whether or not Albania responsible under international law for the explosions in
Albanian waters and for the damage and loss of human life which resulted from them and is
there any duty to pay compensation?

Ruling: Yes. In its Judgment the Court declared on the first question, by 11 votes against 5, that
Albania was responsible under international law for the explosions, which occurred in Albanian
waters. The obligations incumbent upon the Albanian authorities consisted in notifying, for the
benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in
warning the approaching British warships of the imminent danger to which the minefield
exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VIII,
which is applicable in time of war, but on certain general and well-recognized principles,
namely: elementary considerations of humanity, even more exacting in peace than in war; the

46
principle of the freedom of maritime communication; and every State’s obligation not to allow
knowingly its territory to be used for acts contrary to the rights of other States.

64. The Corfu Channel Case

(United Kingdom of Great Britain and Northern Ireland v. Albania)
ICJ Report 1949

On October 22, 1946, 2 British cruisers and 2 destroyers, coming from south, entered the
North Corfu Strait. The channel they were following, which was Albanian waters, was
regarded as safe. One of the destroyers, Saumarez, struck a mine and was gravely damaged.
The other destroyer, Volage, was sent to her assistance and, while towing her, struck
another mine and was also seriously damaged. 45 British officers and sailors lost their
lives, and 42 others were wounded.

After the explosions on Oct 22, the UK Government sent Note to Tirana announcing its
intention to sweep the Corfu Channel shortly. The reply was that this consent would not be
given unless the operation in question took place outside Albanian territorial waters and
that any sweep undertaken in hose waters would be a violation of Albania’s sovereignty.
The sweep effected by the British Navy took place on Nov 12 and 13, 1946, in Albanian
territorial waters and within the limits of the channel previously swept. 22 moored mines
were cut.

The United Kingdom first seized the Security Council of the United Nations, which, by a
Resolution of April 9th, 1947, recommended the 2 governments to submit the dispute to the
Court

The United Kingdom accordingly submitted an Application which, after an objection to its
admissibility been raised by Albania, was the subject of a Judgment, dated Match 25th,
1948, in which the Court declared that it possessed jurisdiction.

ISSUE
1. Whether or not Albania responsible for the explosions, and is there a duty to pay
compensation?
2. Whether or not the UK violated international law by acts of its Navy in Albanian
waters first on the day on which the explosion occurred and secondly, on November
12th and 13th, 1946, when it undertook a sweep of the strait?

HELD:

1. YES Albania was responsible—the laying of the minefield could not have been
accomplished without the knowledge of Albania. Albania did not notify shipping of
the existence of the minefield, as would be required by international law; and did
not undertake any of the measures of judicial investigation which would seem to be
incumbent on it in such a case. Such an attitude could only be explained if the
Albanian Government, while knowing of the mine laying, desired the circumstances

47
 in which it was effected to remain secret.. As regards the obligations resulting for
her from this knowledge, they are not disputed. It was her duty to notify shipping
and especially to warn the ships proceeding through the Strait on October 22nd of
the danger to which they were exposed. In fact, nothing was attempted by Albania to
prevent the disaster, and these grave omissions involve her international
responsibility.

2. NO. It is, the opinion of the Court, generally recognized and in accordance with
international custom that States in time of peace have a right to send their warships
through straits used for international navigation between two parts of the high seas
without the previous authorization of a coastal State, provided that the passage is
innocent. Unless otherwise prescribed in a n international convention, there is no
right for a coastal State to prohibit such passage through staits in time of peace.
United Kingdom did not violate Albanian sovereignty on October 22 but it declared
unanimously that it violated that sovereignty on November 12th/13th.

RE: October 22
Albania has denied that the passage on October 22 was innocent. She alleges that it was a
political mission and that the methods employed-the number of ships, their formation,
armament, maneuvers, etc. – showed an intention to intimidate. The Court examined the
different Albanian contentions so far as they appeared relevant. Its conclusion is that the
passage was innocent both in its principle, since it was designed to affirm a right which had
been unjustly denied, and in its methods of execution, which were not unreasonable in
view of the firing from the Albanian battery on May 15th.

RE: Nov 12th/13th

It was executed contrary to the clearly expressed wish of the Albanian Government; it did
not have the consent of the international mine clearance organizations; it could not be
justified as the exercise of the right of innocent passage

The United Kingdom has stated that its object was to secure the mines as quickly as
possible for fear lest they should be taken away by the authors of the mine laying or by the
Albanian authorities: this was presented either as a new and special application of the
theory of intervention, by means of which the intervening State was acting to facilitate the
task of the international tribunal, or as a method of self-protection or self-help. The Court
cannot accept these lines of defense. It can only regard the alleged right of intervention as
the manifestation of a policy of force, which cannot find a place in international law. As
regards the notion of self-help, the Court is also unable to accept it: between independent
States the respect for territorial sovereignty is an essential foundation for international
relations.

Certainly, the Court recognizes the Albanian Government's complete failure to carry out its
duties after the explosions and the dilatory nature of its diplomatic Notes as extenuating
circumstances for the action of the United Kingdom. But, to ensure respect for
international law, of which it is the organ, the Court must declare that the action of
48
the British Navy constituted a violation of Albanian sovereignty. This declaration is
in accordance with the request made by Albania through her counsel and is in itself
appropriate satisfaction

ADDITION NOTES. (Please read page 232-235 of the Book of Bernas)

ROQUE: INNOCENT passage through straits is a right recognized by international law.

The decisive criterion is its geographical situation as connecting two parts of the highseas
and the fact of its being used for international navigation. The nature of the Channel
satisfies this Channel. It has been a useful route for intenational matitime traffic. Passage
through it cannot be prohibited by a coastal State in time of peace. Combat formation
determines if a passage is innocent.

International straits are subject to NON-SUSPENDIBLE rights of innocent passage.

65. NORTH SEA CONTINENTAL SHELF CASES

The two Special Agreements had asked the Court to declare the principles and rules of
international law applicable to the delimitation as between the Parties of the areas of the North
Sea continental shelf appertaining to each of them beyond the partial boundaries in the
immediate vicinity of the coast already determined between the Federal Republic of Germany
and the Netherlands.

Denmark and Netherlands had been unable to agree on the prolongation of the partial
boundaries of the continental shelf, mainly because they had wished this prolongation to be
effected on the basis of the equidistance principle, whereas the Federal Republic has
considered that it would unduly curtail what the Federal Republic believed should be its proper
share of the continental shelf area, on the basis of proportionality to the length of the North Sea
coastline.

A boundary based on the equidistance princilple, concerned all those portions of the continental
shelf that were nearer to a point on its own coast than they were to any point on the coast of the
other Party.

Issue: W/N the equidistance method of delimitation was obligatory.

Ruling: No.

The delimitation was to be effected by agreement in accordance with equitable principles and
taking account of all relevant circumstances,in such a way as to leave as much as possible to
each Party all those parts of the continental shelf that constituted a natural prolongation of its
land territory, without encroachment on the natural prolongation of the land territory of the other;
and that, if such delimitation produced overlapping areas, they were to be divided between the
Parties in agreed proportions, or, failing agreement, equally, unless they decided on a regime of
joint jurisdiction, user, or exploitation.

In the course of negotiations, the factors to be taken into account were to include: the general
configuration of the coasts d the Parties, as well as the presence of any special or unusual
features; so far as known or readily ascertainable, the physical and geological structure and
natural resources of the continental shelf areas involved; the element of a reasonable degree of

49
proportionality between the extent of the continental shelf areas appertaining to each State and
the length of its coast measured in the general direction of the coastline, taking into account the
effects, actual or prospective, of any other continental shelf delimitations in the same region.
Libya vs Malta case icj reports 1985

Facts:

On 23 May 1976, a Special Agreement was signed between the Socialist People's Libyan Arab
Jamahiriya and the Republic of Malta providing for the submission to the Court of a dispute concerning
the delimitation of the continental shelf between the two States.

The Parties agreed that the delimitation of the continental shelf was to be effected in accordance with
equitable principles and taking into account all relevant circumstances in order to achieve an equitable
result.

The Parties agreed that the entitlement to continental shelf was the same for an island as for the
mainland. Libya insisted that, for this purpose, no distinction should be made between an island
State and an island politically linked to a mainland State. Malta explained that it did not claim any
privileged status for island States; but that it distinguished for purposes of shelf delimitation between
island States and islands politically linked to a mainland State.

Libya. The fundamental basis of legal title to continental shelf areas is the principle of natural
prolongation.
Libya pointed out that this case was only concerned with the delimitation of the continental shelf. It
contended that the "distance principle" was not a rule of positive international law with regard to the
continental shelf and that the "distance criterion" was inappropriate for application in the Mediterranean.

Libya then advanced the argument of the existence of a "rift zone" in the region of the delimitation.
According to Libya, there were two distinct continental shelves divided by a rift zone and it was "within
and following the general direction of rift zone" that the delimitation should be carried out.

Libya attached great importance to proportionality and placed particular reliance upon the 1982 Judgment
of the Court in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya). It contended
that the delimitation in the present case should reflect a reasonable degree of proportionality, which
would be achieved by a delimitation carried out in accordance with equitable principles, between the
extent of the continental shelf areas appertaining to the respective States and the lengths of the relevant
parts of their coasts.

(ii) Malta. According to Malta, prolongation should no longer be defined by reference to physical
features, geological or bathymetric, but by reference to a certain distance from the coast.
Malta relied on the genesis of the exclusive economic zone concept and its inclusion in the 1982
Convention as confirming the importance of the "distance principle" in the law of the continental shelf
and the detachment of the concept of the shelf from any criterion of physical prolongation.

Relying upon the "distance principle", Malta argued that the new importance of the idea of distance, for
the purposes of delimitation of the continental shelf between opposite coasts, had conferred primacy on
the method of equidistance. Malta considered that the distance principle required that, as a starting point
of the delimitation process, consideration be given to an equidistance line, subject to verification of the
equitableness of the result achieved by this initial delimitation. Malta then contended that the relevant

50
equitable considerations to assess the equitableness of the delimitation included economic factors
(absence of energy resources in the island of Malta, range of its established fishing activity), security and
defense interests.

Malta also invoked the principle of sovereign equality of States as an argument in favour of the
equidistance method pure and simple.

Issues

(i) What principles and rules of international law are applicable to the delimitation of the area of the
continental shelf that appertains to the Republic of Malta and the area of the continental shelf that
appertains to the Libyan Arab Jamahiriya?

(ii) How in practice can the two Parties, in this particular case, apply such principles and rules in order
that they may, without difficulty, delimit the areas concerned by agreement?

Ruling:

The Court held that “with reference to the areas of continental shelf between the coasts of the Parties
within the limits defined in the present Judgment, namely the meridian 13o 50' E and the meridian 15o 10'
E:

"A. The principles and rules of international law applicable for the delimitation, to be effected by
agreement in implementation of the present Judgment, of the areas of continental shelf appertaining to the
Socialist People's Libyan Arab Jamahiriya and to the Republic of Malta respectively are as follows:

(1) the delimitation is to be effected in accordance with equitable principles and taking account of all
relevant circumstances, so as to arrive at an equitable result;
(2) the area of continental shelf to be found to appertain to either Party not extending more than
200 miles from the coast of the Party concerned, no criterion for delimitation of shelf areas can be
derived from the principles of natural prolongation in the physical sense.

"B. The circumstances and factors to be taken into account in achieving an equitable delimitation in the
present case are the following:

(1) the general configuration of the coasts of the Parties, their oppositeness, and their relationship to each
other within the general geographical context;
(2) the disparity in the lengths of the relevant coasts of the Parties and the distance between them;
(3) the need to avoid in the delimitation any excessive disproportion between the extent of the continental
shelf areas appertaining to the coastal State and the length of the relevant part of its coast, measured in the
general direction of the coastlines.

"C. In consequence, an equitable result may be arrived at by drawing, as a first stage in the process, a
median line every point of which is equidistant from the low-water mark of the relevant coast of Malta
(excluding the islet of Filfla), and the low-water mark of the relevant coast of Libya, that initial line being
then

51
"D. The adjustment of the median line referred to in subparagraph (c) above is to be effected by
transposing that line northwards through 18' of latitude (so that it intersects the meridian 15o 10' E at
approximately latitude 34o 30' N) such transposed line then constituting the delimitation line between the
areas of continental shelf appertaining to the Socialist People's [Libyan] Arab Jamahiriya and to the
Republic of Malta respectively.”

The Court found that, as to the law applicable to the delimitation of areas of shelf between neighboring
States, which is governed by article 83 of the 1982 Convention, the Convention sets a goal to be pursued,
namely "to achieve an equitable solution" but is silent as to the method to achieve it.

In the view of the Court, the principles and rules underlying the régime of the exclusive economic zone
could not be left out of consideration in the present case, the two concepts - continental shelf and
exclusive economic zone - being linked together in modern law. Since the right enjoyed by a State over
its continental shelf would also be possessed by it over the seabed and subsoil of any exclusive economic
zone which it might proclaim, one of the relevant circumstances to be taken into account for the
delimitation of the continental shelf of a State is the legally permissible extent of the exclusive economic
zone appertaining to that same State. From practical and juridical reasons, it followed that the distance
criterion must apply to the continental shelf as well as to the exclusive economic zone.

The Court considered that the "rift zone" could not constitute a fundamental discontinuity terminating in a
southward extension of the Maltese shelf and a northward extension of the Libyan as if it were some
natural boundary. According to law, a State has the right to claim a continental shelf up to as far as 200
miles from its coast and, whatever the geological characteristics of the corresponding seabed and subsoil,
there is no reason to ascribe any role to geological or geophysical factors within that distance.

The Court was unable to accept that the equidistance method had to be used, even as a preliminary or
provisional step towards the drawing of a delimitation line. According to the Court, a coastal State might
be entitled to continental shelf rights by reason of distance from the coast and irrespective of the physical
characteristics of the intervening seabed and subsoil, but it would not entail that the equidistance should
be the only appropriate method of delimitation.

The Court rejected the Libyan argument that the landmass provided the legal justification of entitlement
to continental shelf rights. It also did not subscribe to the Maltese contentions that a delimitation should
be influenced by the relative economic position of the two States in question. The Court rejected Malta’s
argument derived from the sovereign equality of States, whereby the maritime extensions generated by
the sovereignty of each State must be of equal juridical value, whatever the length of the coasts. The
Court considered that if coastal States have an equal entitlement, ipso jure and ab ibnitio, to their
continental shelves, this did not imply equality in the extent of these shelves. Furthermore, the reference
to the length of coasts as a relevant consideration could not be excluded a priori.

As to the "proportionality argument", the Court recalled that according to the jurisprudence,
proportionality was one possibly relevant factor among several others to be taken into account.

The Court therefore found it necessary to adjust the delimitation line so as to lie closer to the coasts of
Malta. The coasts of the Parties being opposite to each other and the equidistance line lying broadly west
to east, this adjustment was achieved by transposing the line in a northward direction.

Finally, there remained the aspect, which the Court in its Judgment in the North Sea Continental Shelf
Cases called "the element of a reasonable degree of proportionality ... between the extent of the
continental shelf areas appertaining to the coastal State and the length of its coast".

52
Tunisia vs Libya

Facts:

Tunisia and Libya petitioned the ICJ to apply international law to their border dispute regarding
the overlapping area for both countries of the continental shelf area. In a special agreement signed by
both states, they asked the court to use key principles to define and divide the delimitation area
between the two states without violating any natural prolongations of territory for either state if
possible. Tunisia argues that the special agreement between the states gives the Court the jurisdiction
to not only rule on the principles that may apply to this case, but also apply them to the delimitation
area. Libya asserts that the Court was only given the authority to rule on what principles should apply in
this case but leave it to the states to apply them. They assert that the special agreement between the
two states does not give Court the jurisdiction to apply a practical method to the delimitation area that
they advise should be used.

Issue: W/N the continental shelf should be consider for the delimitation zone

Ruling:

Yes. The Court held that the only area it could rule on was the area of the continental shelf that
was not affected by the jurisdiction of another state unless a treaty or agreement was already in place
between the non-included state and either Tunisia or Libya. For example, because there was already an
existing treaty between Tunisia and Italy concerning their sea boundaries, the Court did not need to take
into account the jurisdiction of Italy when deciding the delimitation area because that area was already
decided. On the other hand, there was no former agreement with Malta between either State
concerning the jurisdiction of shared sea area. Therefore, the Court ruled that it could not take into
account any area that was shared between Libya and Tunisia that was also affected by the jurisdiction of
Malta because Malta had not given its consent to have matters concerning itself arbitrated.

GREECE v TURKEY - AEGEAN SEA CONTINENTAL SHELF CASE

FACTS: On August 10, 1976, Greece instituted proceedings against Turkey in a dispute over the Aegan Sea
continental shelf. It asked the Court in particular to declare that the Greek islands in the area were entitled to their
lawful portion of continental shelf and to delimit the respective parts of that shelf appearing to Greece and Turkey.
At the same time, it requested provisional measures indicating that, pending the Court’s judgment, neither State
should, without the other’s consent, engage in exploration or research with respect to the shelf in question.

Greece argued that the very idea of the continental shelf was wholly unknown in 1928 when the General Act was
concluded, and in 1931 when Greece acceded to the Act.

It also contended that the dispute concerned the delimitation of the continental shelf, said to be entirely
extraneous to the notion of territorial status, and that the continental shelf, not being part of the territory, could
not be considered as connected with territorial status.

53
Turkey, on the other hand, took the position that, whether or not the General Act was assumed to be in force,
Greece's instrument of accession, dated 14 September 1931, was subject to a clause, reservation (b), which would
exclude the Court's competence with respect to the dispute.

The text of reservation (b) is as follows:

The following disputes are excluded from the procedures described in the General Act . .

(b) disputes concerning questions by international law are solely within the domestic jurisdiction of
States, and in particular disputes relating ,to the territorial status of Greece, including disputes relating to
its rights of sovereignty over its ports and lines of communication.

NOTE: Article 17 of the General Act for Pacific Settlement of International Disputes:

"All disputes with regard to which the parties are in conflict as to their respective rights shall, subject to
any reservations which may be made under Adcle 39, be submitted for decision to the Permanent Court of
International Justice, unless the parties agree, in the manner hereinafter provided, to have resort to an arbitral
tribunal. It is understood that the disputes referred to above include in particular those mentioned in Article 36 of
the Statute of the Permanent Court of International Justice."

ISSUE: Whether or not the Court has jurisdiction to resolve the dispute in this case.

RULING: NO. The ICJ does not have jurisdiction since Turkey did not accept such jurisdiction in the Rome
Communique. The dispute is one which relates to the territorial status of Greece.

The Court observes that it would be difficult to accept the proposition that delimitation is entirely extraneous to
the notion of territorial status, and points out that a dispute regarding delimitation of a continental shelf tends
by its very nature to be one relating to territorial status, inasmuch as a coastal State’s rights over the continental
shelf derive from its sovereignty over the adjoining land. It follows that the territorial status of the coastal State
comprises, ipso jure, the rights of exploration and exploitation over the continental shelf to which it is entitled
under international law.

Having regard to those considerations, the Court is of the opinion that the dispute is one which relates to the
territorial status of Greece within the meaning of reservation (b) and that Turkey’s invocation of the reservation
had the effect of excluding the dispute from the application of Article 17 of the General Act. The General act is
therefore not a valid basis for the Court’s jurisdiction.

In its judgment on the question of its jurisdiction the Court found that it is without jurisdiction to entertain the
Application filed by the Government of Greece.

Anglo-French, ICJ reports, 1979

Facts: Between 1960 and 1970, the United Kingdom successfully delimited its continental
shelf in the North Sea through negotiation. During the same period, France delimited, through
negotiation also, its continental shelf in relation to Spain. After informal contacts, in 1964 and

54
1965,the United Kingdom and France began negotiations in October 1970 with a view to
delimiting the continental shelf's areas that lay between them. The negotiations resulted in a
partial agreement on a boundary east of 30 minutes longitude west of Greenwich. However, the
two sides were in fundamental disagreement concerning the portion of the continental shelf
boundary west of 30 minutes longitude west of Greenwich. In order to settle their differences,
the Parties concluded an Arbitration Agreement on 10 July 1975 by which they submitted their
dispute to an ad hoc court of arbitration.

Both States were Parties to the Geneva Convention on the Continental Shelf of 29 April 1958.
Problems arose regarding the effect of the French reservations to article 6 of the Convention as
well as with respect to the three geographic areas in which the following features could
possibly influence the delimitation: (a)the Eddystone Rocks, a group of rocks roughly eight
nautical miles south of Plymouth; (b) the Channel Islands, an archipelago which is British
although lying in the Golfe Breton-Normand close to the French coast; and (c) the Scilly Isles,
a group of small islands some 21 nautical miles south west of Cornwall.

France: France stated that the 1958 Geneva Convention on the Continental Shelf was not in
force between the Parties owing to the French reservations and the objections to them made by
the United Kingdom. However, even if the Court found that the Convention was applicable,
article 6 concerning delimitation was still not applicable on account of the French reservations.
According to France, the rules of international law applicable to the dispute were the rules of
customary law as stated in the North Sea Continental Shelf cases. Therefore, the boundary must
be drawn in conformity with the principle of natural prolongation and in accordance with
equitable principles. Alternatively, France argued that if article 6 were found to be applicable,"
special circumstances" in the Channel Islands and Atlantic areas prohibited recourse to the
equidistance method. As for the Channel sector, France argued that the boundary should follow
the median line between the French coast and the mainland of the United Kingdom and that the
Channel Islands should be entitled to no more than a belt of jurisdiction six miles wide on the
side of those islands facing the English Channel In the Atlantic area, the French argued that the
boundary should follow the bisection of an angle formed by two lines expressing the general
direction of the coasts of the United Kingdom and France, this being more in accord with the
principles of natural prolongation and equity.

UK: The United Kingdom contended that the Geneva Convention on the Continental Shelf in its
entirety was in force between the Parties. Furthermore, the United Kingdom argued that its
objections to the French reservations did not preclude the entry into force of the Convention
between the Parties. In any event, even if the reservations were deemed applicable, they would
not make any difference in the application of the relevant legal principles. Accordingly, the
United Kingdom considered article 6, paragraph 1, of the Convention as applicable and there
fore maintained that the boundary should be determined by application of the principle of
equidistance, giving full effect in that process to the base points from which the territorial sea
was measured, including the Scilly and Channel Islands. It further argued that France had not
55
proved that the circumstances of the relevant areas constituted “special circumstances” within the
meaning of article 6. Alternatively, the United Kingdom argued that if the Court found that
customary law governed, as opposed to article 6 of the Convention, then the boundary line
should be drawn in such a way as to leave as much as possible to each Party of its natural
prolongation without encroachment on the natural prolongation of the other P Since the
continental shelf was essentially of a continuous geologic character, then the equidistant line
should divide the natural prolongation of the two countries. In a further alternative, the United
Kingdom argued that if the Court was of the view that a structural discontinuity existed in the
seabed and subsoil as to disrupt the geologic continuity of the continental shelf, the rule of
international law was that the boundary should be drawn along the axis of this structural
discontinuity thereby leaving to both States those parts of the continental shelf that constituted
the natural prolongation of their land territory.

Issue: WON the 1958 Geneva Convention on the Continental Shelf (equidistance principle)
applies in this case.

The Parties asked the court to decide in accordance with international law course of the
boundary (boundaries) between the portions of the continental shelf appertaining to them in the
English Channel westward of 30 minutes west of the Greenwhich Meridian as far as the 1,000-
metre isobath.

Ruling: No. In its Judgment, delivered on 20 February 1969, the Court found that the boundary
lines in question were to be drawn by agreement between the Parties and in accordance with
equitable principles in such a way as to leave to each Party those areas of the continental shelf
which constituted the natural prolongation of its land territory under the sea, and it indicated
certain factors to be taken into consideration for that purpose. The Court rejected the contention
that the delimitations in question had to be carried out in accordance with the principle of
equidistance as defined in the 1958 Geneva Convention on the Continental Shelf. The Court
took account of the fact that the Federal Republic had not ratified that Convention, and held
that the equidistance principle was not inherent in the basic concept of continental shelf rights,
and that this principle was not a rule of customary international law.

International Court of Justice stated that the "the combined 'equidistance-special circumstances
rule', in effect, gives particular expression to a general norm that, failing agreement, the
boundary between States abutting on the same continental shelf is to be determined on
equitable principles"

Article 6, does not formulate the equidistance principle and “special circumstances” as two
separate rules. The rule there stated in each of the two cases is a single one, a combined
equidistance-special circumstance rule.
Article 6 makes the application of the equidistance principle a matter of treaty obligation
for Parties to the Convention. But the combined character of the equidistance principle-special

56
circumstance rule means that the obligation to apply equidistance principle is always one
qualified by the condition “unless another boundary line is justified by special circumstances...”

Equidistance/Special circumstances rule

The Tribunal noted that Article 6 of the 1958 Convention was so worded as to avoid
inequitable delimitations through rigid application of equidistance in situations of peculiar
configurations. ‘In short, the role of the “special circumstances” condition in Article 6 is to
ensure an equitable delimitation; and the combined “equidistances—special circumstances
rule”, in effect gives particular expression to a general norm that, failing agreement, the
boundary between states abutting on the same continental shelf is to be determined on
equitable principles’.

Although equidistance is only one of many possible ways of equitably delimiting a boundary
under customary law, the Tribunal noted on several occasions that it was the method most
readily applicable where the geographical conditions of the states were generally comparable.
However, other considerations might require another method or combination of methods to
achieve an equitable result. So too with Article 6, the Tribunal held. Lack of definition of
‘special circumstances’ in Article 6 indicated that even under the 1958 Convention, ‘the
question whether the use of the equidistance principle or some other method is appropriate
for achieving an equitable delimitation is very much a matter for appreciation in the light of
the geographical and other circumstances’. Time and again the Tribunal emphasized that
use of equidistance was not a controlling legal norm but was only one element amongst
other relevant considerations to be taken into account."

Article 6

1. Utilisation of an international watercourse in an equitable and reasonable manner within

the meaning of Article 5 requires taking into account all relevant factors and
circumstances, including: (a) Geographic, hydrographic, hydrological, climatic,
ecological and other factors of a natural character;(b) The social and economic needs of
the watercourse states concerned;

(c) The population dependent on the watercourse in each watercourse state;

(d) The effects of the use or uses of the watercourses in one watercourse State on
other watercourse states;

(e) Existing and potential uses of the watercourse;

57
 (f) Conservation, protection, development and economy of use of the water resources of
the watercourse and the costs of measures taken to that effect;

(g) The availability of alternatives, of comparable value, to a particular planned or

existing use.

2. In the application of Article 5 or paragraph 1 of this article, watercourse states concerned

shall, when the need arises, enter into consultations in a spirit of cooperation.
3. The weight to be given to each factor is to be determined by its importance in comparison
with that of other relevant factors. In determining what is a reasonable and equitable use,
all relevant factors are to be considered together and a conclusion reached on the basis of
the whole.

Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen
(Denmark v. Norway)

FACTS:
On 16 August 1988, the Government of Denmark filed in the Registry an Application instituting
proceedings against Norway, by which it seised the Court of a dispute concerning the
delimitation of Denmark’s and Norway’s fishing zones and continental shelf areas in the waters
between the east coast of Greenland and the Norwegian island of Jan Mayen, where both Parties
laid claim to an area of some 72,000 square kilometres. On 14 June 1993, the Court delivered its
Judgment. Denmark had asked the Court to draw a single line of delimitation of those areas at a
distance of 200 nautical miles measured from Greenland’s baseline, or, if the Court did not find
it possible to draw such a line, in accordance with international law. Norway, for its part, had
asked the Court to find that the median line constituted the two lines of separation for the
purpose of the delimitation of the two relevant areas, on the understanding that those lines would
then coincide, but that the delimitations would remain conceptually distinct. A principal
contention of Norway was that a delimitation had already been established between Jan Mayen
and Greenland, by the effect of treaties in force between the Parties — a bilateral Agreement of
1965 and the 1958 Geneva Convention on the Continental Shelf — as both instruments provide
for the drawing of a median line.

ISSUE:
Whether or not a delimitation had already been established between Jan Mayen and Greenland
.by the effect of treaties in force between the parties.

RULING:
No. The Court noted, in the first place, that the 1965 Agreement covered areas different from the
continental shelf between the two countries, and that that Agreement did not place on record any
intention of the Parties to undertake to apply the median line for any of the subsequent
delimitations of that continental shelf. The Court then found that the force of Norway’s argument
relating to the 1958 Convention depended in the circumstances of the case upon the existence of

58
“special circumstances” as envisaged by the Convention. It subsequently rejected the argument
of Norway according to which the Parties, by their “conjoint conduct” had long recognized the
applicability of a median line delimitation in their mutual relations.

The Court examined separately the two strands of the applicable law : the effect of Article 6 of
the 1958 Convention, applicable to the delimitation of the continental shelf boundary, and then
the effect of the customary law which governed the fishery zone. After examining the case law in
this field and the provisions of the 1982 United Nations Convention on the Law of the Sea, the
Court noted that the statement (in those provisions) of an “equitable solution” as the aim of any
delimitation process reflected the requirements of customary law as regards the delimitation both
of the continental shelf and of exclusive economic zones. It appeared to the Court that, both for
the continental shelf and for the fishery zones in the instant case, it was proper to begin the
process of delimitation by a median line provisionally drawn, and it then observed that it was
called upon to examine every particular factor in the case which might suggest an adjustment or
shifting of the median line provisionally drawn.
The 1958 Convention required the investigation of any “special circumstances” ; the customary
law based upon equitable principles for its part required the investigation of the “relevant
circumstances”.
The Court found that, although it was a matter of categories which were different in origin and in
name, there was inevitably a tendency towards assimilation between the two types of
circumstances. The Court then turned to the question whether the circumstances of the instant
case required adjustment or shifting of the median line. To that end it considered a number of
factors.

With regard to the disparity or disproportion between the lengths of the “relevant coasts”, alleged
by Denmark, the Court concluded that the striking difference in lengths of the relevant coasts
constituted a special circumstance within the meaning of Article 6, paragraph 1, of the 1958
Convention. Similarly, as regards the fishery zones, the Court was of the opinion that the
application of the median line led to manifestly inequitable results. The Court concluded
therefrom that the median line should be adjusted or shifted in such a way as to effect a
delimitation closer to the coast of Jan Mayen.

The Court then considered certain circumstances that might also affect the position of the
boundary line, i.e., access to resources, essentially fishery resources (capelin), particularly with
regard to the presence of ice ; population and economy ; questions of security ; conduct of the
Parties. Among those factors, the Court only retained the one relating to access to resources,
considering that the median line was too far to the west for Denmark to be assured of equitable
access to the capelin stock. It concluded that, for that reason also, the median line had to be
adjusted or shifted eastwards. Lastly, the Court proceeded to define the single line of delimitation
as being the line M-N-O-A marked on the sketch-map reproduced.

Spain v. Canada

Facts:

On 9 March 1995, the Estai, a fishing vessel flying the Spanish flag and manned by a Spanish crew, was
intercepted and boarded some 245 miles from the Canadian coast, in Division 3L of the Northwest

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Atlantic Fisheries Organization (NAFO) Regulatory Area, by Canadian Government vessels. The vessel
was seized and its master arrested on charges of violations of the Coastal Fisheries Protection Act, in
particular illegal fishing for Greenland halibut; part of the ship’s catch was confiscated. Spain complained
about a violation of the international law in force, since these acts took place outside the 200-mile zone.
The Canadian Government stated that it had taken the said measures on basis of the amended Section 2
of the Coastal Fisheries Protection Act. It also stated that the Court lacked jurisdiction to deal with the
Application filed by Spain, by reason of paragraph 2 (d) of a Declaration made by Spain on 10 May 1994,
whereby Canada accepted the compulsory jurisdiction of the Court but excluded it under certain
circumstances.

Issue:

Whether or not the ICJ has jurisdiction to adjudicate the case with respect to the present dispute.

Ruling:

No. Subparagraph (d) of paragraph 2 of Canada’s declaration, which excluded the Court’s jurisdiction as
follows: "Disputes arising out of or concerning conservation and management measures taken by
Canada with respect to vessels fishing in the NAFO Regulatory Area, as defined in the Convention on
Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such
measures." The Court held that the dispute between the Parties had its origin in the amendments made
by Canada to its coastal fisheries protection legislation and regulations and in the pursuit, boarding and
seizure of the Estai which resulted therefrom. It thus concluded that the dispute was "arising out of"
and "concerning" "conservation and management measures taken by Canada with respect to vessels
fishing in the NAFO Regulatory Area". Therefore, the dispute came within the terms of the reservation
contained in paragraph 2 (d) of the Canadian declaration of 10 May 1994. The Court consequently had
no jurisdiction to adjudicate upon it.

M/V Saiga (St. Vincent & Grenadines v. Guinea)

Facts:

The M/V Saiga was an oil tanker flying the flag of Saint Vincent and the Grenadines. At the time of the
incident with respect to this application, the M/V Saiga served as a bunkering vessel supplying fuel oil to
fishing vessels and other vessels operating off the coast of Guinea. On 27 October 1997, the M/V Saiga,
having crossed the maritime boundary between Guinea and Guinea Bissau, entered the exclusive
economic zone of Guinea of the Guinean island of Alcatraz. On 28 October 1997, the M/V Saiga was
arrested by Guinean Customs patrol boats. On the same day the vessel was brought into Conakry,
Guinea, where the vessel and its crew were detained. No bond or other financial security was requested
by Guinean authorities for the release of the vessel and its crew or offered by Saint Vincent and the
Grenadines. It was then that Saint Vincent and the Grenadines instituted proceedings with the
International Tribunal for the Law of the Sea under article 292 of the United Nations Convention on the
Law of the Sea (UNCLOS). Saint Vincent and the Grenadines submitted that the Tribunal should
determine that the vessel, her cargo and crew be released immediately without requiring that any bond

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be provided. Nevertheless, the Applicant was prepared to provide any security reasonably imposed by
the Tribunal. Guinea requested the Tribunal to dismiss the Applicant’s action.

Issue:

Whether bunkering fishing vessels in the contiguous zone or in the exclusive economic zone of a State is
freedom of navigation or internationally lawful uses of the sea pursuant to article 58, paragraph 1, of
the Convention.

Ruling:

No. The Applicant submits that bunkering is an aspect of the high-seas freedom of navigation or an
internationally lawful use of the sea related thereto, which, under article 58, paragraph 1, of the
Convention, the M/V Saiga enjoys in the exclusive economic zone of Guinea. It should be pointed out,
however, that bunkering of fishing vessels in the exclusive economic zone is not navigation under the
Convention. The exclusive economic zone, as a zone with its own legal status, is neither a part of the
high seas, nor the territorial sea. Uses of the sea with regard to which the Convention has not expressly
attributed rights or jurisdiction in the exclusive economic zone to the coastal State do not automatically
fall under the freedom of the high seas. Therefore bunkering must not be regarded as falling within the
high seas freedom of navigation or related to it. It is not navigation of the M/V Saiga that is involved, but
its commercial activities of offshore bunkering in the exclusive economic zone of Guinea. The
interpretation that freedom of navigation includes bunkering and all other activities and rights ancillary
to it is incorrect. The view that bunkering is free in the exclusive economic zone because it is free on the
high seas is legally not tenable.

In short, bunkering should not be encouraged, let alone without restraint. On the contrary, the following
conditions are generally required for bunkering: (1) For States wishing to undertake bunkering activities
in the exclusive economic zone to enter into agreement with the coastal State; and (2) for fishing vessels
to obtain licences or approval for bunkering from those States. Unless it is conducted in accordance with
these two conditions, there is no legitimate status for bunkering in the law of the sea.

Camouco Case (Panama v France)

7 Feb 2000

FACTS:

The Camouco was a fishing vessel flying the flag of Panama. Its owner was “Merce-Pesca
(S.A.)”, a company registered in Panama. On 16 September 1999, the Camouco left the port of
Walvis Bay (Namibia) to engage in longline fishing in the Southern seas.

On 28 September 1999, the Camouco was boarded by a French surveillance frigate in the
exclusive economic zone of the Crozet Islands, 160 nautical miles from the northern boundary of
the zone. The Camouco was re-routed and escorted under the supervision of the French navy to
Port-des-Galets, Réunion. The procès-verbal of violation stated that the master of the Camouco
was involved in unlawful fishing in the exclusive economic zone of the Crozet Islands under

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French jurisdiction and failure to declare entry into the exclusive economic zone of the Crozet
Islands, while having six tonnes of frozen Patagonian toothfish on board the vessel.

In its order of 8 October 1999, the court of first instance at Saint-Paul, confirmed the arrest of the
Camouco and ordered that the release of the arrested vessel would be subject to the payment of a
bond in the amount of 20,000,000 FF. On 7 October 1999, the Master was charged and placed
under court supervision by the examining magistrate of the tribunal de grande instance at Saint-
Denis.

The Applicant requested the International Tribunal for the Law of the Sea to find that the French
Republic had failed to observe the provisions of the United Nations Convention on the Law of
the Sea (UNCLOS) concerning prompt release of the Master of the vessel Camouco as well as
the vessel itself.

The Applicant also demanded that the French Republic promptly release the vessel Camouco and
its Master, against payment of a reasonable bond.

The Government of the French Republic rejected all submissions presented on behalf of the
Republic of Panama.

The Tribunal examined the question of admissibility of the application. The objection to
admissibility by the Respondent was that domestic legal proceedings were currently pending
before the court of appeal of Saint-Denis, whose purpose was to achieve precisely the same
result as that sought by the present proceedings under article 292 of the Convention. The
Respondent argued that the Applicant was incompetent to invoke this procedure as “a second
remedy” against a decision of a national court and that the Application clearly pointed to a
“situation of lis pendens which casts doubt on its admissibility”.

ISSUE:
Whether the Tribunal had jurisdiction and whether the claims were admissible.

RULING:

Yes. The Tlibunal has jurisdiction under article 292 of the Convention to entertain the
Application made on behalf of Panama on 17 January 2000. In the view of the Tribunal, it was
not logical to read the requirement of exhaustion of local remedies into article 292. Article 292
of the Convention was designed to free a ship and its crew from prolonged detention on account
of the imposition of unreasonable bonds in municipal jurisdictions. Equally, it safeguarded the
interests of the coastal State by providing for release only upon the posting of a reasonable bond
or other financial security determined by a court or tribunal referred to in article 292, without
prejudice to the merits of the case in the domestic forum against the vessel, its owner or its crew.

Article 292 provided for an independent remedy and not an appeal against a decision of a
national court. No limitation should be read into article 292 that would have the effect of
defeating its very object. Article 292 permitted the making of an application within a short period

62
from the date of detention and it was not normally the case that local remedies could be
exhausted in such a short period.

The Tribunal then analyzed the question of non-compliance with article 73, paragraph 2, of the
Convention. It decided whether the bond imposed by the French court of 20 million FF was
“reasonable”.

The Tribunal considered that a number of factors were relevant in an assessment of the
reasonableness of bonds. They included the gravity of the alleged offences, the penalties
imposed or imposable under the laws of the detaining State, the value of the detained vessel and
of the cargo seized, the amount of the bond imposed by the detaining State and its form.

The Tribunal concluded that the bond of 20 million FF imposed by the French court was not
“reasonable”.

It ordered that France should promptly release the Camouco and its Master upon the posting of a
bond of eight million French Francs.

Gulf of Maine Case (Canada vs US), ICJ reports 1994

Facts: On 25 November 1981, Canada and the United States notified to the Court a Special
Agreement whereby they referred to a Chamber of the Court the question of the delimitation of
the maritime boundary dividing the continental shelf and fisheries zones of the two Parties in the
90,000-square-kilometer Gulf of Maine area. This Chamber was constituted by an Order of 20
January 1982, and it was the first time that a case had been heard by an ad hoc Chamber of the
Court.

Canada and the United States are to share Georges Bank. Canada has jurisdiction over
approximately one-sixth of the Bank, including the resource-rich “Northeast Peak” and most of
the “Northern Edge,” and the United States the remaining area. Since Georges Bank is one of the
world’s most productive fishing grounds, and this was consequently a case about fish more than
a traditional continental shelf delimitation, the Judgment means that these North American
neighbors may have to work out cooperative arrangements for the conservation and management
of the shared living resources of Georges Bank.

Issue: WON the equitable results rule should apply in this case.

Ruling: Yes. The Chamber delivered its Judgment on 12 October 1984. It indicated that the
delimitation was to be effected by the application of equitable criteria and by the use of practical
methods capable of ensuring, with regard to the geographical configuration of the area and the
other relevant circumstances, an equitable result. It rejected the delimitation lines proposed by
the Parties, and defined the criteria and methods which it considered to be applicable to the
single delimitation line which it was asked to draw.

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When the World Court Chamber scrutinized the Canadian line it found something less than
equity. The Chamber pointed out that: The Canadian line . . . consists of a line constructed
almost entirely from the nearest points of the baselines from which the breadth of the territorial
sea is measured. In this instance, this means solely islands, rocks or low-tide elevations. An
exception is however made for the basepoints selected on the coast of Massachusetts, which have
been transferred from the outer end of the peninsula of Cape Cod and Nantucket Island, much
further to the west, to the eastern end of Cape Cod Canal.

In the Chamber's view, the United States was arguing the concept of natural prolongation
through the extension of its primary coastal front in the geographical sense, rather than in the
geological or geomorphological sense. Avoidance of encroachment and cut-off as well as
proportionality were also served by this methodology. Further adjustment was required to ensure
total respect for the ecosystems of Georges Bank and Browns Bank, thus contributing to the stair
step or wedding cake (US line = wedding cake line, Canada line = Canada Line) appearance of
the United States delimitation line. As the Chamber viewed it, the resulting line was a
"compromise solution between two fundamentally different methods: the geometrical method of
the perpendicular to the general direction of the coast and the ecological method of respect for
the unity of the distinct ecosystems. . . and distribution on that basis between the two
neighboring States."'

In the opinion of the Chamber neither of the parties' boundary lines had merit. "In both cases,"
the majority of judges agreed "the outcome of the parties' efforts can be said to have been
preconceived assertions rather than any convincing demonstration of the existence of the rules
that each had hoped to find established by international law." Clearly, the Chamber viewed the
voluminous collections of legal and factual findings submitted by the parties flawed by the "a
priori nature" of their underlying premises and deductions.

It applied criteria of a primarily geographical nature, and used geometrical methods appropriate
both for the delimitation of the sea-bed and for that of the superjacent waters. As for the plotting
of the delimitation line, the Chamber distinguished between three segments, the first two lying
within the Gulf of Maine and the third outside it. In the case of the first segment, it considered
that there was no special circumstance precluding the division into equal parts of the overlapping
of the maritime projections of the two States’ coasts. The delimitation line runs from the starting-
point agreed between the Parties, and is the bisector of the angle formed by the perpendicular to
the coastal line running from Cape Elizabeth to the existing boundary terminus and the
perpendicular to the coastal line running from that boundary terminus to Cape Sable. For the
second segment, the Chamber considered that, in view of the quasi-parallelism between the
coasts of Nova Scotia and Massachusetts, a median line should be drawn approximately parallel
to the two opposite coasts, and should then be corrected to take account of (a) the difference in
length between the coasts of the two States abutting on the delimitation area and (b) the presence

64
of Seal Island off the coast of Nova Scotia. The delimitation line corresponds to the corrected
median line from its intersection with the above-mentioned bisector to the point where it reaches
the closing line of the Gulf. The third segment is situated in the open ocean, and consists of a
perpendicular to the closing line of the Gulf from the point at which the corrected median line
intersects with that line. The terminus of this final segment lies within the triangle defined by the
Parties and coincides with the last point of overlapping of the respective 200-mile zones claimed
by the two States. The co-ordinates of the line drawn by the Chamber are given in the operative
part of the Judgment.

PEOPLE VS LOL-LO AND SARAW; 43 PHIL 19

FACTS
Two boats left matuta, a Dutch possession, for Peta, another Dutch possession. In one of the boats
was one individual, a Dutch subject, and in the other boat eleven men, women, and children,
likewise subjects of Holland. After a number of days of navigation, the second boat arrived between
the Islands of Buang and Bukid in the Dutch East Indies. There the boat was surrounded by
six vintas manned by twenty-four Moros all armed. The Moros first asked for food, but once on the
Dutch boat, took all of the cargo, attacked some of the men, and brutally violated two of the women.
All of the persons on the Dutch boat, with the exception of the two young women, were again placed
on it and holes were made in it with the idea that it would submerge. The Moros finally arrived at
Maruro, a Dutch possession. Two of the Moro marauder were Lol-lo, who also raped one of the
women, and Saraw.

Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine Islands.
There they were arrested and were charged with the crime of piracy. A demurrer was interposed
by counsel de officio for the Moros, based on the grounds that the offense charged was not within
the jurisdiction of any court of the Philippine Islands, and that the facts did not constitute a public
offense, under the laws in force in the Philippine Islands. After the demurrer was overruled by the
trial judge, trial was had, the two defendants were found guilty.

ISSUE: Whether or not the Philippine court had jurisdiction over the case despite the crime was not
committed in its territory.

RULING: YES

Piracy is robbery or forcible depredation on the high seas, without lawful authority and done animo
furandi, and in the spirit and intention of universal hostility.

It cannot be contended with any degree of force as was done in the lower court and as is again done
in this court, that the Court of First Instance was without jurisdiction of the case. Pirates are in
law hostes humani generis. Piracy is a crime not against any particular state but against all mankind.
It may be punished in the competent tribunal of any country where the offender may be found or
into which he may be carried. The jurisdiction of piracy unlike all other crimes has no territorial
limits. As it is against all so may it be punished by all. Nor does it matter that the crime was
committed within the jurisdictional 3-mile limit of a foreign state, "for those limits, though neutral
to war, are not neutral to crimes."

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NEW ZEALAND v AUSTRALIA – SOUTHERN BLUEFIN TUNA CASE

Facts: By notification submitted to Japan on 15 July 1999 New Zealand and Australia instituted arbitral
proceedings before the International Tribunal for the Law of the Sea as provided for in Annex VII to the
United Nations Convention on the Law of the Sea (UNCLOS) in a dispute concerning southern bluefin
tuna.

New Zealand and Australia alleged that Japan had failed to comply with its obligation to cooperate in
the conservation of the southern bluefin tuna stock by, inter alia, undertaking unilateral experimental
fishing for southern bluefin tuna in 1998 and 1999 and had requested an arbitral tribunal to be
constituted. The Applicants asked the arbitral tribunal to declare that Japan had breached its obligations
under Articles 64 and 116 to 119 of UNCLOS.

As a consequence of the said breaches of UNCLOS, Japan should refrain from authorizing or conducting
any further experimental fishing for SBT without the agreement of New Zealand and Australia and
negotiate and co-operate in good faith with New Zealand and Australia with a view to agreeing future
conservation measures and total allowable catch for southern bluefin tuna necessary for restoring the
stock to levels which could produce the maximum sustainable yield.

Pending the constitution of the arbitral tribunal, Australia and New Zealand also requested the Tribunal
to prescribe as provisional measures that Japan immediately cease unilateral experimental fishing and
that the parties ensure that no action of any kind was taken which might aggravate, extend or render
more difficult the solution of the dispute.

Japan contended that the Annex VII tribunal had to have prima facie jurisdiction. This meant among
other things that the dispute had to concern the interpretation or application of UNCLOS and not some
other international agreement. The dispute concerned the interpretation of the Convention for the
Conservation of Southern Bluefin Tuna of 1993 and did not concern the interpretation of the Convention
on the Law of the Sea.
Secondly, Australia and New Zealand had to have attempted in good faith to reach a settlement in
accordance with the provisions of UNCLOS Part XV, Section 1. Australia and New Zealand had satisfied
neither condition. The Tribunal was without authority to prescribe any provisional measures. The
Request for provisional measures by Australia and New Zealand should be denied.

ISSUE: Does the International Tribunal for the Law of the Sea under UNCLOS have jurisdiction to hear
and decide this case?

RULING: YES. The arbitral tribunal found that article 16 of the CCSBT constitutes an agreed list of choices
for the pursuit of peaceful settlement. The UNCLOS and CCSBT are intertwined in that it implements
broad principles set out in UNCLOS. Therefore, this case did have jurisdiction to be heard.

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The Tribunal decided that the fact that the Convention of 1993 applied between the parties did not
exclude their right to invoke the provisions of the Convention on the Law of the Sea in regard to the
conservation and management of southern bluefin tuna.

The Tribunal therefore had to decide whether provisional measures were required pending the
constitution of the arbitral tribunal. It took into consideration that Australia and New Zealand contended
that further catches of southern bluefin tuna, pending the hearing by an arbitral tribunal, would cause
immediate harm to their rights. It also emphasized that the conservation of the living resources of the
sea was an element in the protection and preservation of the marine environment, and that the stock of
southern bluefin tuna was severely depleted and was at its historically lowest levels and that this was a
cause for serious biological concern.

For the above reasons, provisional measures were appropriate in the view of the Tribunal. It prescribed,
intern alia, the following measures:

a. Australia, Japan and New Zealand should each ensure that no action was taken which might
aggravate or extend the disputes submitted to the arbitral tribunal.

b. Australia, Japan and New Zealand should each ensure that no action was taken which might
prejudice the carrying out of any decision on the merits which the arbitral tribunal may render.

c. Australia, Japan and New Zealand should resume negotiations without delay with a view to
reaching agreement on measures for the conservation and management of southern bluefin tuna.

BROWNELL v. SUNLIFE 95 PHIL 228

FACTS: This is a petition instituted in the Court of the First Instance of Manila under the
provisions of the Philippine Property Act of the United States against the Sun Life Assurance
Company of Canada, to compel the latter to comply with the demand of the former to pay
him the sum of P310.10, which represents one-half of the proceeds of an endowment policy
(No. 757199) which matured on August 20, 1946, and which is payable to one Naogiro
Aihara, a Japanese national.

The defenses set up in the court of origin are: (1) that the immunities provided in section 5
(b) (2) of the Trading With the Enemy Act of the United States are of doubtful application
in the Philippines, and have never been adopted by any law of the Philippines as applicable
here or obligatory on the local courts; (2) that the defendant is a trustee of the funds and is
under a legal obligation to see it to that it is paid to the person or persons entitled thereto,
and unless the petitioner executes a suitable discharge and an adequate guarantee to
indemnify and keep it free and harmless from any further liability under the policy, it may
not be compelled to make the payment demanded.

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The Court of First Instance of Manila having approved and granted the petition, the
respondent has appealed to this Court, contending that the Court of origin erred in holding
that the Trading With the Enemy Act of the United States is binding upon the inhabitants of
this country, notwithstanding the attainment of complete independence on July 4, 1946, and
in ordering the payment prayed for.

ISSUE: Whether the United States can acquire jurisdiction over the case

RULING: YES. There is no question that a foreign law may have extraterritorial effect in a
country other than the country of origin, provided the latter, in which it is sought to be
made operative, gives its consent thereto. This principle is supported by the unquestioned
authority.

The jurisdiction of the nation within its territory is necessarily exclusive and absolute. It is
susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity
from an external source, would imply a diminution of its sovereignty to the extent of the
restriction, and an investment of that sovereignty to the same extent in that power in which
would impose such restriction. All exceptions, therefore, to the full and complete power of a
nation within its own territories, must be traced up to the consent of the nation itself. They
can flow from no other legitimate source. This consent may be either express or implied.
(Philippine Political Law by Sinco, pp. 27-28, citing Chief Justice Marshall's statement in the
Exchange, 7 Cranch 116).

In the course of his dissenting opinion in the case of S. S. Lotus, decided by the Permanent
Court of International Justice, John Bassett Moore said:

It is an admitted principle of International Law that a nation possesses and exercises

within its own territory an absolute and exclusive jurisdiction, and that any exception
to this right must be traced to the consent of the nation, either express or implied
(Schooner Exchange vs. McFadden [812], 7 Cranch 116, 136). The benefit of this
principle equally enures to all independent and sovereign States, and is attended with
a corresponding responsibility for what takes place within the national territory.

In the case at bar, our ratification of or concurrence to the agreement for the extension of
the Philippine Property Act of 1946 is clearly implied from the acts of the President of the
Philippines and of the Secretary of Foreign Affairs, as well as by the enactment of Republic
Acts Nos. 7, 8, and 477.

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