54.

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 provides criteria as basis for their decision. The following are fundamental
considerations inherent in the nature of the territorial sea.

First, the drawing of the baselines must not depart to any appreciable extent from the general direction of
the coast. Ratio for this is because it is the land which confers upon the coastal state the right to the
waters off it coast.

Second, the sea areas lying within the baseline must be closely linked to the land domain to be subject to
the regime of internal waters.

Third, the economic interest peculiar to the region, as evidenced by long usage, should be considered.

Skjaergaard – is made up of around 120,000 insular informations, lying along the coast of the mainland.
The clearest dividing line between land and sea is the skjaergaard, not the coast of the mainland.

126. YUGOSLAVIA VS. US

Facts: The NATO bombing of Yugoslavia was the North Atlantic Treaty Organisation's
(NATO) military operation against the Federal Republic of Yugoslavia (FRY) during
the Kosovo War. The air strikes lasted from March 24, 1999 to June 10, 1999. The official
NATO operation code name was Operation Allied Force; the United States called it
"Operation Noble Anvil",[17] while in Yugoslavia, the operation was incorrectly called
"Merciful Angel"
On 29 April 1999 Yugoslavia filed an Application instituting proceedings against the United
States of America "for violation of the obligation not to use force", accusing that State of
bombing Yugoslav territory "together with other Member States of NATO". On the same
day, it submitted a request for the indication of provisional measures, asking the Court to
order the United States of America to "cease immediately its acts of use of force" and to
"refrain from any act of threat or use of force" against the Federal Republic of Yugoslavia
(FRY).
As a basis for the jurisdiction of the Court, Yugoslavia invoked Article IX of the Convention
on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations
General Assembly on 9 December 1948. Article IX of the Genocide Convention provides
that disputes between the contracting parties relating to the interpretation, application or
fulfilment of the Convention shall be submitted to the International Court of Justice.
However, US made reservations to the said provision of the convention.
ISSUE: WON the ICJ acquired jurisdiction over the controversy?
Ruling: NO. ICJ has no jurisdiction because United States did not consent to the
submission of the dispute. Genocide Convention does not prohibit reservations. Yugoslavia
did not object to the US reservations to Art. IX . Said reservation had the effect to excluding
that Article from the provisions of the Convention in force between the parties. In
consequence, Article IX cannot found the jurisdiction of the Court to entertain a dispute
between Yugoslavia and the US alleged to fall within its provisions. It cannot therefore
indicate any provisional measure whatsoever in order to protect the righrts invoked
therein.

126. YUGOSLAVIA VS. US

Facts: The NATO bombing of Yugoslavia was the North Atlantic Treaty Organisation's
(NATO) military operation against the Federal Republic of Yugoslavia (FRY) during
the Kosovo War. The air strikes lasted from March 24, 1999 to June 10, 1999. The official
NATO operation code name was Operation Allied Force; the United States called it
"Operation Noble Anvil",[17] while in Yugoslavia, the operation was incorrectly called
"Merciful Angel"
On 29 April 1999 Yugoslavia filed an Application instituting proceedings against the United
States of America "for violation of the obligation not to use force", accusing that State of
bombing Yugoslav territory "together with other Member States of NATO". On the same
day, it submitted a request for the indication of provisional measures, asking the Court to
order the United States of America to "cease immediately its acts of use of force" and to
"refrain from any act of threat or use of force" against the Federal Republic of Yugoslavia
(FRY).
As a basis for the jurisdiction of the Court, Yugoslavia invoked Article IX of the Convention
on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations
General Assembly on 9 December 1948. Article IX of the Genocide Convention provides
that disputes between the contracting parties relating to the interpretation, application or
fulfilment of the Convention shall be submitted to the International Court of Justice.
However, US made reservations to the said provision of the convention.
ISSUE: WON the ICJ acquired jurisdiction over the controversy?
Ruling: NO. ICJ has no jurisdiction because United States did not consent to the
submission of the dispute. Genocide Convention does not prohibit reservations. Yugoslavia
did not object to the US reservations to Art. IX . Said reservation had the effect to excluding
that Article from the provisions of the Convention in force between the parties. In
consequence, Article IX cannot found the jurisdiction of the Court to entertain a dispute
between Yugoslavia and the US alleged to fall within its provisions. It cannot therefore
indicate any provisional measure whatsoever in order to protect the righrts invoked
therein.

163. MAURICE MENDELSON, “ WHAT PRICE EXPROPRIATION? COMPENSATION FOR EXPROPRIATION:

THE CASE LAW”

Investment protection treaties almost invariably contain rules on expropriation that, while
differing at the level of small print, would usually define expropriation (as both direct and indirect);
formulate criteria of lawfulness of expropriation (legitimate public purpose, non-discrimination,
compensation, and sometimes also due process); and spell out certain elements in more detail (the
criteria for calculation of compensation, conditions of transfer of compensation, rights of review under
due process, additional assurances of non-discriminatory treatment etc).

Determination of whether direct expropriation has occurred should be fairly straightforward:

the title to property is taken away from its private owner by a public act (and either vested in the State
or another person). Nationalisations of the last century were mostly clear-cut cases of direct
expropriation, with the debate mainly focusing on compensation.

If expropriation is held to have occurred, it may have been lawful or unlawful. Expropriation is
not unlawful if it is carried out with due legal process, for a legitimate public purpose, and in a non-
discriminatory manner, providing also that compensation is paid. If these criteria are not met, then
the taking is unlawful and the property has either to be returned or damages paid for its taking.

The quantum of compensation for a lawful taking is normally calculated on the basis of the
value of the asset before the expropriation occurred or the intention to expropriate became known.

If a going concern, for instance, is expropriated, there is a significant difference in quantum

between the compensation payable for a lawful taking and the damages (which can include lost future
profits) payable if the taking was unlawful. Where the investment is a money claim, however, the
difference may be hard to detect. Compensation will require the payment of the sum (or something
close to it) plus interest; if the conduct is unlawful, repayment of the sum in question comprises the
restitutionary element, whilst interest is the normal way of compensating for the loss of opportunity
to utilise the money in question. Where the financial difference is marginal, respondent States may
not be unduly troubled by the characterisation of their act, and so might not rely too heavily on
necessity to demonstrate the lawfulness of their conduct. But a plea of necessity could make
considerable sense in some serious crises, providing States with breathing space until the extraordinary
circumstances are over, when the obligation will be reactivated.