PIL Reviewer Final

San Beda College of Law
PUBLIC INTERNATIONAL LAW
STATES
Western Sahara
Spain was in the process of
decolonization of its foreign holdings
including the Spanish Sahara. The UN
General Assembly ordered Spain to
hold
a
referendum
on
selfdetermination on the said region.
However, Morocco objected to the
holding of a referendum, claiming parts
of the region, particularly Western
Sahara. The Mauritanian entity, for its
parts, also lays claims on the region
alleging that legal ties between the two
territories exist.
Because
of
the
persisting
disputes, UN
General Assembly
Resolution 3292 requested that the
International Court give an advisory
opinion on the following questions:
1. 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)?
2. What were the legal ties between
this territory (Western Sahara)
and the Kingdom of Morocco and
the Mauritanian Entity?
Jurisdiction of the Court
Spain raised its objection on the
competence of the Court to give an
advisory opinion citing the identical
nature of the subject of the question to
the earlier dispute of Morocco and Spain
concerning Western Sahara, its (Spain)
lack of consent to the adjudication of the
questions referred to the Court and the
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academic nature, irrelevance, and lack

of object of the questions submitted.
Under Article 65, par.1 of the
Statute, the Court may give an advisory
opinion on any legal question at the
request of any duly authorized body.
The UN General Assembly is suitably
authorized by Article 96, par.1 of the
Charter and the two questions
submitted are framed in terms of law
and raised problems of the international
law. They are in principle questions of a
legal character, even if they also embody
questions of fact.
Spain considers that the subject
of dispute which Morocco invited it to
submit jointly to the Court for decision
in contentious proceedings, and the
subject of the questions on which the
advisory opinion is requested are
substantially identical; and Spain
invoked the fundamental rule that a
State cannot, without its consent, be
compelled to submit its disputes with
other States to the Courts adjudication.
However, the object of the General
Assembly has not been to bring before
the Court, by way of a request for
Advisory Opinion, a dispute or legal
controversy, in order that it may later,
on the basis of the Courts opinion,
exercise its powers and functions for the
peaceful settlement of that dispute or
controversy. The object of the request is
an entirely different one, and that is to
obtain from the Court an opinion which
the General Assembly deems of
assistance to it for the proper exercise of
its
function
concerning
the
decolonization of the territory.
Question I. Was Western Sahara at the

time of colonization by Spain a
territory belonging to no one (terra
nullius)?
In, law occupation was a
means
of
peaceably
acquiring
sovereignty over territory otherwise
than by cession or succession; it was a
cardinal
condition
of
a
valid
"occupation" that the territory should
be terra nullius. According to the State
practice of that period, territories
inhabited by tribes or peoples having a
social and political organization were
not regarded as terrae nullius: in their
case sovereignty was not generally
considered
as
effected
through
occupation, but through agreements
concluded with local rulers.
The information furnished to the
Court shows (a) that at the time of
colonization Western Sahara was
inhabited by peoples which, if nomadic,
were socially and politically organized
in tribes and under chiefs competent to
represent them; (b) that Spain did not
proceed upon the basis that it was
establishing its sovereignty overterrae
nullius: thus in his Order of 26
December 1884 the King of Spain
proclaimed that he was taking the Rio
de Oro under his protection on the basis
of agreements entered into with the
chiefs of local tribes.
Therefore, the answer to the first
question must be in the negative.
Question II. What were the legal ties of
this territory (Western Sahara) with the
Kingdom of Morocco and the
Mauritanian Entity?
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A) Morocco presented its claim to

legal ties with Western Sahara as a claim
to ties of sovereignty on the ground of
an alleged immemorial possession of the
territory and an uninterrupted exercise
of authority. As evidence of its display
of sovereignty in Western Sahara,
Morocco invoked alleged acts of internal
display
of
Moroccan
authority,
consisting principally of evidence said
to show the allegiance of Saharan caids
to the Sultan, including dahirs and other
documents concerning the appointment
of caids, the alleged imposition of
Koranic and other taxes, and acts of
military
resistance
to
foreign
penetration of the territory.
However, neither the internal nor
the international acts relied upon by
Morocco indicate the existence at the
relevant period of either the existence or
the international recognition of legal ties
of territorial sovereignty between
Western Sahara and the Moroccan State.
Even taking account of the specific
structure of that State, they do not show
that Morocco displayed any effective
and exclusive State activity in Western
Sahara. They do, however, provide
indications that a legal tie of allegiance
existed at the relevant period between
the Sultan and some, but only some, of
the nomadic peoples of the territory,
through Tekna caids of the Noun
region, and they show that the Sultan
displayed, and was recognized by other
States to possess, some authority or
influence with respect to those tribes.
B) Mauritanian Entity denotes
the cultural, geographical and social
entity within which the Islamic Republic
of Mauritania was to be created.

According to Mauritania, that entity, at
the relevant period, was the Bilad
Shinguitti or Shinguitti country, a
distinct human unit, characterized by a
common language, way of life, religion
and system of laws, featuring two types
of political authority: emirates and tribal
groups.
According to Mauritania, the
Mauritanian entity extended from the
Senegal River to the Wad Sakiet El
Hamra. The territory at present under
Spanish administration and the present
territory of the Islamic Republic of
Mauritania thus together constituted
indissociable parts of a single entity and
had legal ties with one another.
While there existed among them
many ties of a racial, linguistic,
religious, cultural and economic nature,
the emirates and many of the tribes in
the entity were independent in relation
to one another; they had no common
institutions or organs. The Mauritanian
entity therefore did not have the
character of a personality or corporate
entity distinct from the several emirates
or tribes which comprised it. The Court
concludes that at the time of
colonization by Spain there did not exist
between the territory of Western Sahara
and the Mauritanian entity any tie of
sovereignty or of allegiance of tribes, or
of simple inclusion in the same legal
entity.
In the relevant period, the
nomadic peoples of the Shinguitti
country possessed rights, including
some rights relating to the lands
through which they migrated. These
rights constituted legal ties between
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Western Sahara and the Mauritanian

entity. They were ties which knew no
frontier between the territories and were
vital to the very maintenance of life in
the region.
East Timor (Portugal v. Australia)
Judgment of June 30, 1995
FACTS: On 22 February 1991 Portugal
had instituted proceedings against
Australia concerning "certain activities
of Australia with respect to East Timor".
Portugal acted as the administering
Power over East Timor in accordance
with Chapter XI of the Charter of the
United Nations. Portugal claimed that
Australia, by the conclusion of a Treaty
of "Cooperation in an area between the
Indonesian Province of East Timor and
Northern Australia of 11 December
1989", had failed to observe the
obligation to respect the powers and
duties of Portugal as the administering
Power of East Timor, as well as the right
of the people of East Timor to selfdetermination and the related rights.
Australia, according to Portugal's
allegations, had thereby incurred
international responsibility vis--vis
both the people of East Timor and
Portugal, which claimed to have
remained the administering Power
according to several resolutions of the
General Assembly and the Security
Council, even though it had left East
Timor definitely when Indonesia
invaded East Timor in 1975. As the basis

of jurisdiction Portugal referred to the
declarations of both States according to
Art. 36 paragraph 2 of the Statute.
Australia objected to the jurisdiction of
the Court and the admissibility of the
application.
ISSUES: The central issue for the Court
was whether the 1989 Treaty could have
been
legally
concluded
between
Indonesia and Australia or whether
Portugal alone was empowered to
conclude treaties on behalf of East
Timor. Thus, the main question was
whether the Court could decide the case
in the absence of Indonesia which had
not accepted the jurisdiction of the
Court and was not inclined to intervene
in the case.
ARGUMENTS: Australia argued that
the Court was confronted with a
situation comparable to that in the
Monetary Gold Case, namely that the
Court would have to decide on the
lawfulness of Indonesia's entry into and
continuing presence in East Timor as
well as the lawfulness of the conclusion
of the Treaty, which could not be done
in the absence of Indonesia. While
Portugal agreed in principle on this
point, it disagreed that the Court had in
fact to decide on the aforementioned
questions. Portugal argued that the
Court had only to judge upon the
objective conduct of Australia, which
consisted
in
having
negotiated,
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concluded and initiated performance of

the 1989 Treaty with Indonesia, and that
this question was perfectly separable
from any question relating to the
lawfulness of the conduct of Indonesia.
HELD: In its judgment, however, the
Court concluded that Australia's
behavior could not be assessed without
first entering into the question of why
Indonesia could not lawfully have
concluded the 1989 Treaty, while
Portugal allegedly could have done so.
The Court was of the opinion that the
very subject-matter of the decision
would necessarily be a determination of
whether Indonesia could or could not
have acquired the power to conclude
treaties on behalf of East Timor relating
to the resources of its continental shelf.
Such a determination, however, could
not be made without the consent of
Indonesia.
The Court also rejected Portugal's
additional argument that the rights
which Australia had allegedly breached
were rights erga omnes and as such
permitted Portugal to sue Australia
individually, regardless of whether or
not another State had conducted itself in
a similarly unlawful manner. The Court
fully shared the assertion of Portugal
that the right of peoples to selfdetermination had an erga omnes
character. Nevertheless, the Court
considered that the erga omnes character
of a norm and the principle of consent to
the Court's jurisdiction were two

different things. Whatever the nature of
the obligations invoked, the Court could
not rule on the lawfulness of the
conduct of a State when its judgment
would imply an evaluation of the
lawfulness of the conduct of another
State not a party to the case.
The Court likewise dismissed the
argument of Portugal that the United
Nations resolutions concerning the
status of Portugal as administering
Power were imposing upon all States an
obligation not to recognize any
authority of Indonesia over East Timor.
The Court found that without prejudice
to the question of the binding or nonbinding nature of these resolutions such
an obligation could not be inferred from
those resolutions. Therefore, the Court
would necessarily have to rule upon the
lawfulness of Indonesia's conduct as a
prerequisite for deciding Portugal's
contention that Australia violated its
obligation to respect Portugal's status as
administering Power and East Timor's
status as a non-self-governing territory
and the right of its people to selfdetermination and to permanent
sovereignty of its natural resources.
Thus, the rights and obligations of
Indonesia would constitute the very
subject-matter of the case and could
only be judged with the consent of
Indonesia. Since this consent was
lacking, the Court had to dismiss the
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case, despite the importance of the

questions raised.
REFERENCE RE SECESSION OF
QUEBEC, [1998]
Secession is the act of withdrawing from an
organization, union, or especially a political
entity.
PROCEDURAL ISSUES:
Issue 1: Whether or not the questions
submitted were within the scope of the
court
and
not
usurping
the
international court?
The Court is not exceeding its
jurisdiction by purporting to act as an
international tribunal. The Court is
providing an advisory opinion to the
Governor in Council in its capacity as a
national court on legal questions
touching and concerning the future of
the Canadian federation. Further,
Question 2 is not beyond the
competence of this Court, as a domestic
court, because it requires the Court to
look at international law rather than
domestic law. More importantly,
Question 2 does not ask an abstract
question of "pure" international law but
seeks to determine the legal rights and
obligations of the legislature or
government of Quebec, institutions that
exist as part of the Canadian legal order.
International law must be addressed
since it has been invoked as a
consideration in the context of this
Reference.
In accordance with well accepted
principles of international law, this
Court's answer to Question 2 would not
purport to bind any other state or

international tribunal that might
subsequently
consider
a
similar
question. The Court nevertheless has
jurisdiction to provide an advisory
opinion to the Governor in Council in its
capacity as a national court on legal
questions touching and concerning the
future of the Canadian federation.
Issue 2: Whether or not the substantive
issues are justiciable?
Since the reference questions may
clearly be interpreted as directed to
legal issues, the Court is in a position to
answer them. In the context of a
reference, the Court, rather than acting
in its traditional adjudicative function, is
acting in an advisory capacity.
The
questions
raise
issues
of
fundamental public importance and
they are not too imprecise or ambiguous
to permit a proper legal answer. Nor has
the Court been provided with
insufficient information regarding the
present context in which the questions
arise. Finally, the Court may deal on a
reference with issues that might
otherwise be considered not yet "ripe"
for decision.
SUBSTANTIVE ISSUES:
Issue 1: Under the Constitution of
Canada, can the National Assembly,
legislature or government of Quebec
effect the secession of Quebec from
Canada unilaterally?
No. Those who support the existence of
such a right found their case primarily
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on the principle of democracy.

Democracy, however, means more than
simple majority rule. As reflected in our
constitutional jurisprudence, democracy
exists in the larger context of other
constitutional values such as those
already mentioned.
In the 131 years since Confederation, the
people of the provinces and territories
have
created
close
ties
of
interdependence (economically, socially,
politically and culturally) based on
shared values that include federalism,
democracy, constitutionalism and the
rule of law, and respect for minorities.
A democratic decision of Quebecers in
favour of secession would put those
relationships at risk. The Constitution
vouchsafes order and stability, and
accordingly secession of a province
"under the Constitution" could not be
achieved unilaterally, that is, without
principled negotiation with other
participants in Confederation within
the existing constitutional framework.
Secession is the effort of a group or
section of a state to withdraw itself from
the political and constitutional authority
of that state, with a view to achieving
statehood for a new territorial unit on
the international plane. The secession of
a province from Canada must be
considered, in legal terms, to require an
amendment to the Constitution, which
perforce requires negotiation.
This right implies a reciprocal duty on
the other participants to engage in
discussions to address any legitimate
initiative to change the constitutional
order. While it is true that some

attempts at constitutional amendment in
recent years have faltered, a clear
majority vote in Quebec on a clear
question in favour of secession would
confer democratic legitimacy on the
secession initiative which
all of the other participants in
Confederation
would
have
to
recognize.
The federalism principle, in conjunction
with the democratic principle, dictates
that the clear repudiation of the existing
constitutional order and the clear
expression of the desire to pursue
secession by the population of a
province would give rise to a reciprocal
obligation
on
all
parties
to
Confederation
to
negotiate
constitutional changes to respond to
that desire.
Quebec could not, despite a clear
referendum result, purport to invoke a
right of self-determination to dictate the
terms of a proposed secession to the
other parties to the federation. The
democratic vote, by however strong a
majority, would have no legal effect on
its own and could not push aside the
principles of federalism and the rule of
law, the rights of individuals and
minorities, or the operation of
democracy in the other provinces or in
Canada as a whole. Democratic rights
under the Constitution cannot be
divorced
from
constitutional
obligations. Nor, however, can the
reverse proposition be accepted. The
continued existence and operation of the
Canadian constitutional order could not
be indifferent to a clear expression of a
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clear majority of Quebecers that they no

longer wish to remain in Canada. The
other provinces and the federal
government would have no basis to
deny the right of the government of
Quebec to pursue secession, should a
clear majority of the people of Quebec
choose that goal, so long as in doing so,
Quebec respects the rights of others. The
negotiations that followed such a vote
would address the potential act of
secession as well as its possible terms
should in fact secession proceed. There
would be no conclusions predetermined
by law on any issue. Negotiations
would need to address the interests of
the other provinces, the federal
government, Quebec and indeed the
rights of all Canadians both within and
outside Quebec, and specifically the
rights of minorities.
The negotiation process would require
the reconciliation of various rights and
obligations by negotiation between two
legitimate majorities, namely, the
majority of the population of Quebec,
and that of Canada as a whole level. The
failure of the duty to undertake
negotiations and pursue them according
to
constitutional
principles
may
undermine that government's claim to
legitimacy which is generally a
precondition for recognition by the
international community. Conversely,
violations of those principles by the
federal or other provincial governments
responding to the request for secession
may undermine their legitimacy. Thus,
a Quebec that had negotiated in
conformity
with
constitutional
principles and values in the face of
unreasonable intransigence on the part

of other participants at the federal or
provincial level would be more likely to
be recognized than a Quebec which did
not itself act according to constitutional
principles in the negotiation process.
Accordingly, the secession of Quebec
from Canada cannot be accomplished
by the National Assembly, the
unilaterally, that is to say, without
principled
negotiations,
and
be
considered a lawful act. Any attempt to
effect the secession of a province from
Canada must be undertaken pursuant to
the Constitution of Canada, or else
violate the Canadian legal order.
However, the continued existence and
operation of the Canadian constitutional
order cannot remain unaffected by the
unambiguous expression of a clear
majority of Quebecers that they no
longer wish to remain in Canada. The
primary means by which that
expression is given effect is the
constitutional duty to negotiate in
accordance with the constitutional
principles that we have described
herein.
In
the
event
secession
negotiations
are
initiated,
our
Constitution, no less than our history,
would call on the participants to work
to reconcile the rights, obligations and
legitimate aspirations of all Canadians
within a framework that emphasizes
constitutional responsibilities as much
as it does constitutional rights.
Issue 2: a) Does international law give
the National Assembly, legislature or
government of Quebec the right to
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effect the secession of Quebec from

Canada unilaterally? b) In this regard,
is there a right to self-determination
under international law that would
give
the
National
Assembly,
the right to effect the secession of
Quebec from Canada unilaterally?
a) It is clear that international law does
not specifically grant component parts
of sovereign states the legal right to
secede unilaterally from their "parent"
state. International law places great
importance on the territorial integrity of
nation states and, by and large, leaves
the creation of a new state to be
determined by the domestic law of the
existing state of which the seceding
entity presently forms a part
Where, as here, unilateral secession
would be incompatible with the
domestic Constitution, international law
is likely to accept that conclusion subject
to the right of peoples to selfdetermination, a topic to which we now
turn.
(b)
The
recognized
sources
of
international law establish that the right
to self determination of a people is
normally fulfilled through internal selfdetermination a people's pursuit of its
political, economic, social and cultural
development within the framework of
an existing state. A right to external
self-determination - [t]he establishment
of a sovereign and independent State,
the free association or integration with
an independent State or the emergence
into any other political status freely
determined by a people constitute
modes of implementing the right of selfdetermination by that people.

While the International Covenant on
Economic, Social and Cultural Rights
and the International Covenant on Civil
and Political Rights do not specifically
refer to the protection of territorial
integrity, they both define the ambit of
the right to selfdetermination in terms
that are normally attainable within the
framework of an existing state. There is
no necessary incompatibility between
the maintenance of the territorial
integrity of existing states, including
Canada, and the right of a "people" to
achieve a full measure of selfdetermination.
A
state
whose
government represents the whole of
the people or peoples resident within
its territory, on a basis of equality and
without discrimination, and respects
the principles of self-determination in
its own internal arrangements, is
entitled to the protection under
international law of its territorial
integrity.
Accordingly, the general state of
international law with respect to the
right to self-determination is that the
right operates within the overriding
protection granted to the territorial
integrity of "parent" states. However,
there are certain defined contexts
within which the right to the selfdetermination of peoples does allow
that right to be exercised "externally",
which, in the context of this Reference,
would potentially mean secession: a)
The right of colonial peoples to
exercise
their
right
to
selfdetermination by breaking away from
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the "imperial" power; b) right to

external self-determination accrues is
where a people is subject to alien
subjugation,
domination
or
exploitation outside a colonial context;
c) when a people is blocked from the
meaningful exercise of its right to selfdetermination internally.
The international law right to selfdetermination only generates, at best, a
right to external self-determination in
situations of former colonies; where a
people is oppressed, as for example
under foreign military occupation; or
where a definable group is denied
meaningful access to government to
pursue their political, economic, social
and cultural development. In all three
situations, the people in question are
entitled to a right to external selfdetermination because they have been
denied the ability to exert internally
their right to self-determination. Such
exceptional
circumstances
are
manifestly inapplicable to Quebec under
existing conditions.
The right to secession only arises under
the principle of self-determination of
peoples at international law where "a
people" is governed as part of a
colonial empire; where "a people" is
subject
to
alien
subjugation,
domination or exploitation; and
possibly where "a people" is denied
any meaningful exercise of its right to
self-determination within the state of
which it forms a part.
A state whose government represents
the whole of the people or peoples
resident within its territory, on a basis of
equality and without discrimination,

and respects the principles of selfdetermination
in
its
internal
arrangements, is entitled to maintain
its
territorial
integrity
under
international law and to have that
territorial integrity recognized by other
states. Quebec does not meet the
threshold of a colonial people or an
oppressed people, nor can it be
suggested that Quebecers have been
denied
meaningful
access
to
government to pursue their political,
economic,
cultural
and
social
development. In the circumstances, the
National Assembly, the legislature or
the government of Quebec do not enjoy
a right at international law to effect the
secession of Quebec from Canada
unilaterally.
De Facto Secession
Although there is no right, under the
Constitution or at international law, to
unilateral secession, that is secession
without negotiation on the basis just
discussed, this does not rule out the
possibility of an unconstitutional
declaration of secession leading to a de
facto secession. The ultimate success of
such a secession would be dependent on
recognition
by
the
international
community, which is likely to consider
the legality and legitimacy of secession
having regard to, amongst other facts,
the conduct of Quebec and Canada, in
determining whether to grant or
withhold recognition. Such recognition,
even if granted, would not, however,
provide any retroactive justification for
the act of secession, either under the
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Constitution
of
international law.
Canada
or
at
ACCORDANCE
WITH
INTERNATIONAL LAW OF THE
UNILATERAL DECLARATION OF
INDEPENDENCE IN RESPECT OF
KOSOVO
FACTS:
Security Council Resolution 1244 (1999)
was promulgated establishing an
international civil and security presence
in Kosovo with full civil and political
authority and sole responsibility for the
governance of Kosovo.
The interim administration in Kosovo
was designed to suspend temporarily
Serbias exercise of its authority flowing
from its continuing sovereignty over the
territory of Kosovo. The purpose of the
legal
regime
established
under
resolution 1244 was to establish,
organize and oversee the development
of local institutions of self-government
in Kosovo under the aegis of the interim
international presence.
When final negotiations with regard to
Kosovos independence failed, members
of the Assembly of Kosovo made a
declaration of independence (February
17, 2008) which aimed at establishing
Kosovo as an independent and
sovereign state.
ISSUE:
Is the unilateral declaration of
independence by the provisional
institutions of Self-Government of
Kosovo in accordance with International
law?
HELD:
YES. The Court arrived at the
conclusion that the authors of the
declaration are persons who acted
together
in
their
capacity
as
representatives of the people of Kosovo
outside the framework of the interim
administration. Thus, exercise of selfdetermination. (note: if the declaration is
within the framework of the interim
administration,
it
will
violate
international law since the adoption will
be contrary to the SC resolution 1244.)
GENERAL INTERNATIONAL LAW
Self-determination
State practice today points clearly
to the conclusion that international law
contained no prohibition of declarations
of independence. International law of
self-determination developed in such a
way as to create a right to independence
for the peoples of non-self-governing
territories and people subject to alien
subjugation,
domination
and
exploitation.
There are however cases when
the declaration of independence is
outside this context
BUT, there is no rule in
international law prohibiting the
making of declaration of independence
in such cases.
Principle of Territotial Integrity
The question is, is it violative of
the principle of territorial integrity?
NO! The principle is that States
must refrain in their international
relations from the threat or use of force
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against the territorial integrity or

political independence of any State.
Thus, the obligation to refrain
from violating the territorial integrity of
States is reposed on sovereign states
(obligasyon sa mga kapwa estado). It is
confined in the relations between states.
So, if concerning only a single state at
within that state a declaration of
independence was made by i.e. province
or anyone within its sovereignty and
territory, DI PA YUN AGAINST the
PRINCIPLE of territorial integrity.
Rhetorical question from Sir: So
ang Mindanao pwede daw bang
gumawa ng unilateral declaration? Di
naman daw kasi violative ng territorial
integrity kasi hindi State ang Mindanao.
The Province of North Cotabato v.
Republic
Facts:
On August 5, 2008, the Government of
the Republic of the Philippines (GRP)
and the MILF, through the Chairpersons
of their respective peace negotiating
panels, were scheduled to sign a
Memorandum of Agreement on the
Ancestral Domain (MOA-AD) Aspect of
the GRP-MILF Tripoli Agreement on
Peace of 2001 in Kuala Lumpur,
Malaysia.
The MILF is a rebel group which was
established in March 1984 when, under
the leadership of the late Salamat
Hashim, it splintered from the Moro
National Liberation Front (MNLF) then
headed by Nur Misuari, on the ground,
among others, of what Salamat
perceived to be the manipulation of the
MNLF away from an Islamic basis

towards Marxist-Maoist orientations.1
The signing of the MOA-AD between
the GRP and the MILF was not to
materialize, however, for upon motion
of petitioners, specifically those who
filed their cases before the scheduled
signing of the MOA-AD, this Court
issued a Temporary Restraining Order
enjoining the GRP from signing the
same.
The MOA-AD was preceded by a long
process of negotiation and the
concluding of several prior agreements
between the two parties beginning in
1996, when the GRP-MILF peace
negotiations began. On July 18, 1997, the
GRP and MILF Peace Panels signed the
Agreement on General Cessation of
Hostilities. The following year, they
signed the General Framework of
Agreement of Intent on August 27, 1998.
In 2005, several exploratory talks were
held between the parties in Kuala
Lumpur, eventually leading to the
crafting of the draft MOA-AD in its final
form, which, as mentioned, was set to be
signed last August 5, 2008.
Relevant ruling as pointed out by Atty.
Velasco:
The President cannot delegate a power
that she herself does not possess. May
the President, in the course of peace
negotiations, agree to pursue reforms
that would require new legislation and
constitutional amendments, or should
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the reforms be restricted only to those

solutions which the present laws allow?
The answer to this question requires a
discussion of
The extent of the Presidents power to
conduct peace negotiations:
The
Presidents power to conduct peace
negotiations is implicitly included in her
powers as Chief Executive and
Commander-in-Chief.
As
Chief
Executive, the President has the general
responsibility to promote public peace,
and as Commander-in-Chief, she has
the more specific duty to prevent and
suppress
rebellion
and
lawless
violence.169
The President may not, of course,
unilaterally implement the solutions
that she considers viable, but she may
not be prevented from submitting them
as recommendations to Congress, which
could then, if it is minded, act upon
them pursuant to the legal procedures
for constitutional amendment and
revision. In particular, Congress would
have the option, pursuant to Article
XVII, Sections 1 and 3 of the
Constitution,
to
propose
the
recommended amendments or revision
to the people, call a constitutional
convention, or submit to the electorate
the question of calling such a
convention. While the President does
not possess constituent powersas
those powers may be exercised only by
Congress, a Constitutional Convention,
or the people through initiative and
referendumshe may submit proposals
for constitutional change to Congress in
a manner that does not involve the

arrogation of constituent powers.
From the foregoing discussion, the
principle may be inferred that the
Presidentin the course of conducting
peace
negotiationsmay
validly
consider implementing even those
policies that require changes to the
Constitution, but she may not
unilaterally implement them without
the intervention of Congress, or act in
any way as if the assent of that body
were assumed as a certainty.
It will be observed that the President
has authority, as stated in her oath of
office,178 only to preserve and defend
the Constitution. Such presidential
power does not, however, extend to
allowing her to change the Constitution,
but simply to recommend proposed
amendments or revision. As long as she
limits herself to recommending these
changes and submits to the proper
procedure
for
constitutional
amendments and revision, her mere
recommendation need not be construed
as an unconstitutional act.
Given the limited nature of the
Presidents
authority
to
propose
constitutional amendments, she cannot
guarantee to any third party that the
required amendments will eventually be
put in place, nor even be submitted to a
plebiscite. The most she could do is
submit
these
proposals
as
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recommendations either to Congress or

the people, in whom constituent powers
are vested.
Paragraph 7 on Governance of the
MOA-AD states, however, that all
provisions thereof which cannot be
reconciled with the present Constitution
and laws shall come into force upon
signing of a Comprehensive Compact
and upon effecting the necessary
changes to the legal framework. This
stipulation does not bear the marks of a
suspensive conditiondefined in civil
law as a future and uncertain event
but of a term. It is not a question of
whether the necessary changes to the
legal framework will be effected, but
when. That there is no uncertainty being
contemplated is plain from what
follows, for the paragraph goes on to
state that the contemplated changes
shall be with due regard to non
derogation of prior agreements and
within the stipulated timeframe to be
contained in the Comprehensive
Compact.
Pursuant to this stipulation, therefore, it
is mandatory for the GRP to effect the
changes to the legal framework
contemplated in the MOA-ADwhich
changes would include constitutional
amendments, as discussed earlier. It
bears noting that, By the time these
changes are put in place, the MOA-AD
itself would be counted among the
prior agreements from which there
could be no derogation.
What remains for discussion in the
Comprehensive Compact would merely
be the implementing details for these
consensus points and, notably, the
deadline for effecting the contemplated

changes to the legal framework.
Plainly, stipulation-paragraph 7 on
GOVERNANCE is inconsistent with the
limits of the Presidents authority to
propose constitutional amendments, it
being a virtual guarantee that the
Constitution and the laws of the
Republic of the Philippines will
certainly be adjusted to conform to all
the consensus points found in the
MOA-AD. Hence, it must be struck
down as unconstitutional.
Framework
Bangsamoro
Agreement
on
the
1. Autonomous Region in Muslim

Mindanao to be replaced by
Bangsamoro
a. Bangsamoro identity include:
i. those who at the time of
conquest and colonization
were considered natives or
original
inhabitants
of
Mindanao and the Sulu
archipelago and its adjacent
islands including Palawan,
and
their
descendants
whether of mixed or full
blood who have identified
themselves as Bangsamoro by
ascription or self-ascription
ii. Spouses ad their
descendants
2. The Bangsamoro shall be governed
by the Bangsamoro Basic Law which
is to be formulated by the
Bangsamoro people and ratified by
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the qualified voters within its

territory.
a. Annexes to be used as a guide in
drafting the Bangsamoro Basic
Law:
i. Power Sharing
ii. Wealth Sharing
iii. Territory
iv. Normalization
3. Power Sharing- there will be
concurrent powers shared by the
Central
Government
and
the
Bangsamoro Government.
a. Non-exclusive list of Powers of
the Central Government:
i. Defense and External Security
ii. Foreign Policy
iii. Common Market and Global
Trade provided that those
economic agreements already
allowed under RA 9054 shall
be
transferred
to
the
Bangsamoro
iv. Coinage and monetary policy
v. Citizenship
and
naturalization
vi. Postal Service
b. Justice
institutions
in
the
Bangsamoro
i. Shariah justice system
ii. Local civil courts
iii. Alternative
dispute
resolution
systemstraditions and customary
rights
of
indigenous
people
4. Wealth Sharing- the Bangsamoro

will have the power to:
a. Create its own source of revenue
b. Receive grants, donations and
subsidies from domestic and
foreign souces
c. Have just and equitable share in
the
revenues
through
the
exploration, development or
utilization of resources in the
areas within its jurisdiction
d. Create its own auditing body and
procedures for accountability
without
prejudice
to
the
authority of the COA
5. Territory- the core territory of the
Bangsamoro shall be composed of:
a. The present geographical area of
ARMM
b. Some municipalities in the
province of Lanao del Norte
c. Barangays
that
voted
for
inclusion in ARMM during the
2001 plebiscite
d. Cities of Cotabato and Isabela
e. All other contiguous areas where
there is a resolution of the LGU
or a petition of at least 10% of the
qualified voters in the area asking
for their inclusion at least 2
months prior to the ratification of
the Bangsamoro Basic Law
* Contiguous areas outside the
core territory where there are
substantial populations of the
Bangsamoro may opt anytime to
15
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be part of the territory upon

petition of at leat 10% of the
residents and approved by
majority of qualified voters in a
plebiscite.
6. Transition and Normalization
a. A Transition Commission shall
be created through an EO and
supported by Congressional
Resolutions.
i. Transition Commission
composed of 15 members
ALL
OF
WHOM
ARE
BANGSAMOROS (7 to be
selected by the Gov. of the
Phil
and
8
members,
including the Chairman, to be
selected by the MILF)
ii. Functions of the Transition
Commission:
1. To work on the drafting of
the Bangsamoro Basic Law
2. To work on the proposals
to
amend
the
Phil.
Constitution
to
accommodate
the
agreements of the Gov. of
the Phil. And the MILF
3. Coordinate
whenever
necessary,
development
programs in Bangsamoro
communities
b. Upon the promulgation and
ratification of the Bangsamoro
Basic Law which provides for the
creation of the Bangsamoro
Transition Authority, the ARMM is

deemed ABOLISHED.
i. All devolved authorities shall
be vested in the Bangsamoro
Transition Authority during
the INTERIM PERIOD
ii. Ministerial form and Cabinet
System of Government shall
commence
c. In 2016, the Bangsamoro Transition
Authority will be immediately
replaced upon the election and
assumption of the members of the
Bangsamoro legislative authority
and the
formation of the
Bangsamoro Gov.
d. Exit
Document
(officially
terminating the peace negotiations)
to be crafted and signed only when
all agreements have been fully
implemented.
e. It is through Normalization that
communities
can
return
to
conditions where they can achieve
their desired quality of life, which
includes the pursuit of sustainable
livelihoods
and
political
participation within a peaceful
deliberative society.
i. Policing
Structure
and
Arrangement
must
be
professional and free from
partisan
political
control
(Civilian in Character)
ii. Independent Commission to
recommend
appropriate
policing within the area
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iii. MILF
to
gradually
decommission its forces
iv. Law enforcement functions to
be transferred from the AFP
to the police force of
Bangsamoro
v. Joint
Normalization
Committeeto
ensure
coordination between the
Gov. and the remaining MILF
forces
until
full
decommissioning
vi. Reduction and control of
firearms in the area and the
disbandment
of
private
armies and other armed
groups.
Burkina Faso v. Republic of Mali

A special agreement was made between
the Republic of Upper Volta (now
known as Burkina Faso) and the
Republic of Mali wherein the two states
agreed to submit to a chamber of the
court a dispute relating to the
delimitation of a part of their common
frontier.
Considerations:
1.
THE
PRINCIPLE
OF
INTANGIBILITY
OF
FRONTIERS
INHERITED FROM COLONIZATION:
This means that frontiers existing at the
time of independence are respected.
This was taken into consideration
because Burkina Faso and Mali were
previously colonized as a part of a
single state. The two states only became
independent through a recent process of

decolonization.
2.
THE
PRINCIPLE
OF
UTI
POSSIDETIS JURIS: This means respect
of the territorial status quo, the
application of which gives rise to the
principle of intangibility of frontiers
inherited from colonization. It is a
principle of general scope (general
principles of law do not represent
binding normative circumstances in the
way that explicit legal norms do, but can
be seen as rules of law which should be
followed as far as possible). This accords
pre-eminence to legal title over effective
possession as a basis of sovereignty.
3. EQUITY: Equity infra legem, that
form of equity which constitutes a
method of interpretation of the law in
force, and which is based on law is
applicable. Equity ex aequo et bono,
meaning "in equity and in good
conscience" is not applicable because the
parties have not requested for it.
4. FRENCH COLONIAL LAW: The
court must look into how the
administrative border, which is now the
border in dispute, was viewed under
colonial rule. This was very confusing
because of the existence of several maps
showing different delimitations. There
was a discussion about which maps
could be relied upon by the court,
taking into consideration the basis of the
representations made on them.
5. PRELIMINARY QUESTION OF
ACQUIESCENCE BY MALI: Burkina
Faso argues that Mali accepted as
binding the solution to the dispute
outlined by the Mediation Commission
17
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(1975). The claim was based on the

following statement made by the
President of Mali to the media: "Mali
extends
over
1,240,000
square
kilometres, and we cannot justify
fighting for a scrap of territory 150
kilometres
long.
Even
if
the
Organization
of
African
Unity
Commission decides objectively that the
frontier line passes through Bamako, my
Government will comply with the
decision." The Court found that there
are no grounds to interpret the
declaration in question as a unilateral
act with legal implications in regard to
the dispute. It was but a witticism of the
kind regularly uttered at press
conferences. It was different from the
statement made in the Nuclear Wars
case because it was not a statement
directed to the whole world.
Separate Opinion of Judge Georges AbiSaab
- French colonial law has been analyzed
in
excessive
detail
- He disassociates himself from the role
attributed to a letter, which was relied
upon in determining the border,
because the declaratory nature of which
it spoke of the territorial boundaries are
mere possibilities, not hardened to
certainty by any evidence. Moreover, he
found that the letter was a simple verbal
reflection of a map and maps, as
determined by the court, are not
sufficient in themselves to constitute
title.
- Equity should have been given a
bigger role. The area concerned was a
nomadic and afflicted by drought.
Access to water is vital there. The
delimitation made does not take this fact

into consideration.
Great Britain/ Costa Rica (Tinoco Case)
The government of Costa Rica, under
President Alfredo Gonzalez, was
overthrown by Frederico Tinoco, then
Secretary of War. Gonzalez fled. Tinoco
assumed power, called an election, and
established a new constitution. His
government continued until August
1919. His government fell in the
September
following.
After
a
provisional government, the
old
constitution was restored.
On 22
August
1922,
the
Constitutional
Congress passed a law known as Law of
Nullities No. 41 (LN). It invalidated all
contracts entered into during the Tinoco
government. The claim of Great Britain
is that the Royal bank of Canada and the
Central Costa Rica are the creditors of
the Government of Costa Rica (GCR) in
the sum of 998,000 colones. The GCR
denies its liabilities for the acts of the
Tinoco govt and alleged that the LN was
a legitimate exercise of its legislative
power.
WON GCRs contention is tenable.
Changes in the govt or the internal
policy of a state do not as a rule affect its
position in the international law.
Though the govt changes, the nation
remains, with rights and obligations
unimpaired. The State is bound by
engagements
entered
into
by
18
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governments that have ceased to exist,

the restored government is generally
liable for the acts of the usurper.
Moreover, the people seemed to have
accepted Tinocos govt as well as by the
other States. The non-recognition by
other nations of a govt claiming to be a
national
personality
is
usually
appropriate evidence that it has not
attained the independence and control
entitling it by international law to be
classed as such. But when recognition
vel non of a government is by such
nations determined by inquiry, not into
its de facto sovereignty and complete
governmental control, but into its
illegitimacy or irregularity of origin,
their non-recognition loses something of
evidential weight.
To hold that a government which
establishes itself and maintains a
peaceful administration with the
acquiescence of the people for a
substantial period of time, does not
become a de facto government unless it
conform to a previous constitution
would be to hold that within the rules of
international law a revolution contrary
to the fundamental law of the existing
government cannot establish a new
govt. This cannot be true. To speak of a
revolution creating a de facto
government, which conforms to the
limitations of the old constitution is to
use a contradiction in terms.
The
United
Nations,
Military
Intervention, and Regime Change in
Libya
Mehrdad Payandeh
FACTS
Moammar Gadhafi came to
power in Libya through a military coup
dtat in 1969, and ran an authoritarian
and repressive regime. Protests started
in January and February 2011 and were
met with immediate violent resistance
by the Gadhafi regime. At this early
stage, the media and several NGOs
reported that the government used
tanks, machine guns, and snipers
against protesters.When the protests
escalated, so did the violence. In March,
the opposition forces consisting of
civilians and former members of the
Gadhafi regime and of the armed forces
that had defected began to organize.
They formed the National Transitional
Council, which soon claimed to be the
legitimate representative organ of the
Libyan people.
These
recent
developments
received an even harsher response from
the Gadhafi regime so the international
community such as the United Nations
(through its SecGen), UN High
Commissioner for Human Rights,
Council of the EU, Council of League of
Arabs States, etc condemned the
excessive use of lethal force. This also
triggered the adoption by the UN
19
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Security Council of Resolution 1970

where it demanded an immediate end
to the violence and called upon Libya to
respect its obligations under human
rights
law
and
international
humanitarian law.
But
the
abovementioned
resolution became futile in the light 0f
the continuing acts of violence in Libya
as the Gadhafi regime reacted with
increased counterattacks and recaptured
parts of the area under rebel control.
It was in this environment that
the Security Council adopted Resolution
1973 on March 17, 2011. It explicitly
determined that the situation in Libya
continued to constitute a threat to
international peace and security and
that it acted under Chapter VII of the
UN Charter. The Security Council
demanded an immediate ceasefire as
well as an end to the attacks against
civilians, and it authorized member states
to take all necessary measures in order to
protect civilians and civilian populated areas
under threat of attack in Libya while
excluding a foreign occupation force of any
form on any part of Libyan territory.
Furthermore, it established a no-fly
zone, banning all flights in Libyan
airspace in order to help protect
civilians, and authorized member states to
take all necessary measures to enforce
compliance.
Thus, a coalition of Western

states began a military intervention in
Libya by launching missiles against
Libyan air defense systems and flying
air strikes against military units outside
of Benghazi. NATO took over the
command of the military operation in
Libya as NATO forces continued to
carry out attacks against military
targets.
Interpreting and Analyzing Security
Council Resolution 1973
The broad language of Resolution
1973 is its most striking characteristic. In
the resolution, the Security Council
authorized member states to take all
necessary measures for the protection
of civilians andcivilian populated areas
With regard to the admissible measures,
the resolution explicitly excludes the
deployment of a foreign occupation
force of any form on any part of Libyan
territory. Resolution 1973 constitutes an
unexpectedly broad authorization for
the use of force in Libya. The mandate
does not allude to a time limit, nor is it
substantially restrained. With regard to
admissible measures, only occupation
forces are explicitly excluded, which
means that the deployment of ground
troops was generally allowed as long as
they did not seize effective control over
parts of the Libyan territory. And while
the authorization has a humanitarian
mandate and is not explicitly aimed at
regime change, the open-textured and
20
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wide objective of the resolution the

protection of civilians and civilian
populated areas allowed for military
measures that facilitated and advanced
the overthrowing of the Gadhafi regime
while protecting human rights.
The conflict in Libya revitalizes
the old discussion of whether human
rights violations constitute a threat to
international peace and security and
whether the Security Council may take
action under Chapter VII of the Charter.
In light of the constant practice of the
Security Council to determine human
rights violations as a threat to the peace,
the growing international awareness
that massive human rights violations
cannot be tolerated, and the incremental
recognition of a responsibility to protect
people from human rights violations, if
necessary with the use of military force,
the legality and legitimacy of Security
Council-mandated
humanitarian
intervention in general can hardly be
disputed. From the perspective of
international law, the intervention in
Libya is interesting but not exactly
groundbreaking.It follows the wellestablished practice of the Security
Council to authorize the use of force by
single states in order to prevent or
contain humanitarian catastrophes. The
authorization
is,
nevertheless,
remarkable for its focus on human
rights violations and the absence of
references to any transboundary, and
thereby in the traditional sense

international elements of the conflict.
Moreover, the scope of the authorization
is unusually broad.
The Opinions of the Badinter
Arbitration Committee
A Second Breath for the SelfDetermination of Peoples
This group of two opinions invites a
reflection on three essential points:
1. the scope of the self determination
principle as it is applied in particular
contexts, with a special focus on
decolonialization;
2. the relationship of this principle to
another of equally fundamental import,
that of the stability of frontiers; and
The Future of Self-Determination
The United Nations Charter extends the
right of self-determination to all peoples.
This shows that the notion of 'people' is
no longer homogeneous and should not
be seen as encompassing the whole
population of any State. Instead of this,
one must recognize that within one
State, various ethnic, religious or
linguistic communities might exist.
These communities similarly would
have the right to see their identity
recognized and to benefit from 'all the
human
rights
and
fundamental
freedoms recognized in international
law, including, where appropriate, the
right to choose their national identity'.
More importantly, the Committee
noted that Article 1 of the two 1966
International Covenants on human
21
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rights establishes that 'the principle of

the right to self-determination serves to
safeguard human rights'. This signifies
that 'by virtue of this right, each human
entity might indicate his or her
belonging to the community (...) of his
or her choice*.
The ultimate objective would be
to allow those persons who so wish to,
to declare themselves as Serbs while
retaining certain civil and political rights
in the territories of Bosnia-Herzegovina
and Croatia - for example the right to
vote in local elections - without thereby
questioning the sovereignty of the State.
Such arrangements would have the
immense merit of guaranteeing the
rights of peoples - and the individuals of
whom they are composed -, while
avoiding
the
fragmentation
and
weakening of States.
The Question of Frontiers
Another source of merit in this type of
solution is to be found in the
disassociation of the concept of
nationality from that of 'territory'.
As they are given the right of
self-determination, individuals may
demand and obtain their recognition as
being part of a group of persons of their
choice. This would be done through
precise mechanisms, bringing with them
guarantees, which have to be negotiated
and settled at international level. This
would not, however, have any effect
upon the territories of those States
concerned. Frontiers would remain
unchanged.
The Arbitration Committee laid
great emphasis upon the fundamental
importance which it attached to the
principle of respect for frontiers existing

at the moment of independence
(utipossidetis juris).
For all that the principle is not as
rigid as some might feel it ought to be.
Stability does not mean intangibility.
Although States are prohibited from
acquiring a territory by force, they
might freely decide, to a modification of
their frontiers 'by agreement'. However,
such an agreement cannot be imposed
by one of the parties as pre-requisite for
a peace settlement: a rectification of this
type could only result from negotiations
between willing States.
Appendix: Opinions of the Arbitration
Committee
Opinion No. 1
ISSUE:
Serbia considers that those Republics
which have declared or would declare
themselves independent or sovereign have
seceded or would secede from the SFRY
which would otherwise continue to exist.
Other Republics on the contrary
consider that there is no question of
secession, but the question is one of a
disintegration or breaking-up of the SDRY
as the result of the concurring will of a
number of Republics. They consider that the
six Republics are to be considered equal
successors to the SFRY, without any of them
or group of them being able to claim to be
the continuation thereof.
1) The Arbitration Committee notes
that:
a) - although the SFRY has until
now
retained
its
international
personality, notably inside international
22
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organizations, the Republics have

expressed their desire for independence;
b) - The composition and
workings of the essential organs
of the Federation, no longer meet
the criteria of participation and
representatives inherent in a
federal state;
c) - The recourse to force has led
to armed conflict between the different
elements of the Federation which has
caused the death of thousands of people
and wrought considerable destruction
within a few months.
2) - Consequently, the Arbitration
Committee is of the opinion:
- that the Socialist Federal
Republic of Yugoslavia is in the process
of dissolution;
- that it is incumbent upon the
Republics to settle such problems of
state succession as may arise from this
process in keeping with the principles
and rules of international law, with
particular regard for human rights and
the rights of peoples and minorities;
- that it is up to those Republics
that so wish, to work together to form a
new association endowed with the
democratic institutions of their choice.
Opinion No. 2
ISSUE:
Does the Serbian population in
Croatia and Bosnia-Herzegovina, as one of
the constituent peoples of Yugoslavia, have
the right to self-determination?
1. The Committee considers that,
whatever the circumstances, the right to
self-determination must not involve

changes to existing frontiers at the time
of independence (uti possidetis juris)
except where the states concerned agree
otherwise.
2. Where there are one or more groups
within a state constituting one or more
ethnic,
religious
or
language
communities, they have the right to
recognition of their identity under
international law.
3. Article 1 of the two 1986 International
Covenants on human rights establishes
that the principle of the right to selfdetermination serves to safeguard
human rights. By virtue of that right
every individual may choose to belong
to whatever ethnic, religious or
language community he or she wishes.
4. The Arbitration Committee
therefore of the opinion:
is
(i) that the Serbian population in BosniaHerzegovina and Croatia is entitled to

all the rights concerned to minorities
and ethnic groups under international
law and under the provisions of the
draft Convention of the Conference on
Yugoslavia of 4 November 1991; and
(ii) that the Republics must afford the
members of those minorities and ethnic
groups all the human rights and
fundamental freedoms recognized in
international law, including, where
appropriate, the right to choose their
nationality.
Opinion No. 3
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ISSUE:
Can the internal boundaries between
Croatia and Serbia and between
Bosnia-Herzegovina and Serbia be
regarded as frontiers in terms of
public international law?
1. The Committee takes the view that
once the process in the SFRY leads to the
creation of one or more independent
states, the issue of frontiers, must be
resolved in accordance with the
following principles:
First-All external frontiers must be
respected in line with the principles
stated in the United Nations Charter, in
the Declaration on Principles of
International Law
Second - The boundaries between
Croatia and Serbia, between BosniaHerzegovina and Serbia, and possibly
other adjacent independent states may
not be altered except by agreement
freely arrived at.
Third- Except where otherwise agreed,
the former boundaries become frontiers
protected by international law. This
conclusion follows from the principle of
respect for the territorial status quo and,
in particular, from the principle of uti
possidetis. Uti possidetis is a general
principle, which is logically connected
with the phenomenon of the obtaining
of independence, wherever it occurs. Its
obvious purpose is to prevent the
independence and stability of new states
being
endangered
by
fratricidal
struggles...
Fourth - According to a well-established

principle of international law the
alteration of existing frontiers or
boundaries by force is not capable of
producing any legal effect.
Nationality
THE NATIONALITY DECREES IN
TUNIS AND MOROCCO
Advisory opinion of 7 February 1923
(series B, no. 4)
FACTS:
On November 8th, 1921, a Decree was
promulgated by the Bey of Tunis, the
first article of which enacts as follows:
With the exception of citizens, subjects
or nationals of the Protecting Power
(other than our own subjects), every
person born in the territory of our
Kingdom of parents one of whom was
also born there, is a Tunisian, subject to
the provisions of conventions or treaties
binding the Tunisian Government.
On the same date, the President of the
French Republic issued a Decree of
which the first article was as follows:
Every person born in the Regency of
Tunis of parents of whom one,
justiciable as a foreigner in the French
Courts of the Protectorate, was also born
there, is French.
24
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Similar legislation was introduced at the

same time in morocco (French Zone).
The British Ambassador in Paris
protested to the French Government
against the application to British
subjects of the decrees promulgated in
Tunis, and also stated that his
Government was unable to recognize
that the decrees put into force in the
French Zone of morocco were applicable
to persons entitled to British nationality.
As it was not found possible to adjust
the divergence of views, the British
Government proposed to the French
that the matter should be referred to the
Court, invoking amongst other things,
the
Franco-British
Arbitration
Convention of October 14th, 1903. The
French Govern- ment refused to submit
the matter to arbitral or judicial
settlement, whereupon the British
Government stated, on July 14th, 1922,
that it had no alternative but to submit
the dispute to the Council of the League
of Nations, relying on Articles 13 and 15
of the Covenant1. The Quai dOrsay
replied that the question was not one for
consideration by the Council of the
League of Nations, having regard to the
reservation made in paragraph 8 of
Article 15 of the Covenant concerning
questions which by international law
are solely within the domestic
jurisdiction of one Party.
The Governments concerned then came
to an agreement, under the auspices of
the Council, to the effect that the latter

should request the Court to give an
advisory opinion on this question of
jurisdiction.
ISSUE: whether the dispute is or is not,
by international law, solely a matter of
domestic jurisdiction.
HELD:
NOT
CONFINED
DOMESTIC JURISDICTION;
TO
On February 7th, 1923, the Court

delivered its Opinion. At the outset, the
Court states that the question before it is
whether the dispute relates to a matter
which, by international law, is solely
within the domestic jurisdiction of
France, and goes on to observe that as it
has to give an opinion upon the nature
of the dispute and not upon the merits,
nothing in the opinion can be
interpreted as indicating a view as
regards the merits of the dispute
between the Parties
In the view of the Court, the exclusive
jurisdiction of States embraces matters
which are not in principle regulated by
international law. The extent of this
jurisdiction, which, in the opinion of the
Court, includes, in principle, questions
of nationality, varies with the
development of international relations;
it is therefore a purely relative question.
moreover, even as regards matters
falling within this domain, the right of a
State to use its discretion may be
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restricted by the effect of international

obligations. Nevertheless, a dispute,
which, in principle, falls within the
domestic jurisdiction of a State, is not
removed from that domain simply
because international engagements are
invoked. These engagements must be
of a nature to justify the provisional
conclusion that they are of juridical
importance for the purposes of the
dispute. Nor does the mere fact that one
of the Parties brings a dispute before the
League of Nations suffice to remove it
from this exclusive domain.
The Court then proceeds to apply this
doctrine to the question before it. For
this purpose, it takes the legal grounds
and arguments advanced by the Parties
one by one; nevertheless, the purpose of
this examination is only to enable the
Court to form an opinion as to the
nature of the dispute, and not as to its
merits. For to give an opinion on the
merits of the case, in order to reply to a
question
regarding
exclusive
jurisdiction, would hardly be in
conformity with the system established
by the Covenant. From this point of
view, the Court considers the contention
that France enjoys in Tunis and morocco
the same exclusive right to legislate on
questions of nationality as in France
itself, and that the local sovereignty of
the protected State in conjunction with
the public powers exercised by the
protecting State may be equivalent to
full sovereignty. Similarly, the Court

alludes to the question whether the
Capitulary rights of Great Britain in
Tunis and morocco still exist, or
whether they have lapsed. It also
considers the argument put forward by
Great Britain based on the most
favoured nation clause, and the French
contention that Great Britain had
formally recognized Frances right to
legislate as to the nationality of persons
in Tunis under the same conditions as in
France itself.
The Court, without going into the merits
of the dispute and confining itself to
consideration of the facts above referred
to, arrives at the conclusion that the
dispute in question does not relate to a
matter which, by international law, is
solely within the domestic jurisdiction
of France; the Council therefore is
competent to deal with the dispute laid
before it by Great Britain regarding the
nationality decrees in Tunis and
morocco.
Barcelona Traction, Light and Power

Company, Limited (Belgium v. Spain)
FACTS:
Barcelona Traction, Light and Power
Company, Limited (referred to herein as
the Company) is incorporated in
Toronto, Canada and is engaged in
creating and developing an electric
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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. The
Companys share capital was mostly
held by Belgian nationals.
The Company then issued several series
of bonds, principally in sterling. The
sterling bonds were effected by the
subsidiary companies operating in
Spain. But in 1936, the servicing of
thesaid bonds was suspended on
account of the Spanish civil war. After
that war, the Spanish exchange control
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.
In 1948, when the Company failed to
pay interest on the bonds,three Spanish
holders of the bonds petitioned the
court of Reus (Province of Tarragona)
for a declaration adjudging the
bankruptcy of the Company. The
Company was then declared bankrupt.
Its assets as well as the assets of two of
its subsidiary companies were seized.

Later on, the principal management
personnel of the subsidiaries were also
dismissed and Spanish directors were
appointed; further, new shares of the
subsidiary companies were created, sold
to Fuerzas Electricas de Cataluna, S.A.
(Fecsa) which thereupon acquired
complete control of the undertaking in
Spain.
The Belgian Government then instituted
a case against the Spanish government
to seek reparation for damage alleged
by Belgium to have been sustained by
Belgian nationals, shareholders in the
company, as a result of acts said to be
contrary to international law committed
towards the company by organs of the
Spanish State.
ISSUE:
Whether or not Belgium lacked jus
standi to exercise diplomatic protection
of shareholders in a Canadian company
with respect to measures taken against
that company in Spain.
HELD:
Yes. In the field of diplomatic
protection, international law was in
continuous evolution and was called
upon to recognize institutions of
municipal law. In municipal law, the
concept of the company was founded on
a firm distinction between the rights of
the company and those of the
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shareholder. Only the company, which

was endowed with legal personality,
could take action in respect of matters
that were of a corporate character. A
wrong done to the company frequently
caused prejudice to its shareholders, but
this did not imply that both were
entitled
to
claim
compensation.
Whenever a shareholder's interests were
harmed by an act done to the company,
it was to the latter that he had to look to
institute appropriate action. An act
infringing only the company's rights did
not involve responsibility towards the
shareholders, even if their interests were
affected. In order for the situation to be
different, the act complained of must be
aimed at the direct rights of the
shareholder as such (which was not the
case here since the Belgian Government
had itself admitted that it had not based
its claim on an infringement of the
direct rights of the shareholders).
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. Two situations
needed to be studied: (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 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 Canadian Government's change of
attitude, that fact could not constitute a
justification for the exercise of
28
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diplomatic protection
government.
by
another
It had been maintained that a State

could make a claim when investments
by
its
nationals
abroad,
such
investments being part of a State's
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 had also been maintained that, for
reasons of equity, a State should be able,
in certain cases, to take up the
protection of its nationals, shareholders
in a company which had been the victim
of a violation of international law. The
Court considered 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. In the
particular circumstances of the present
case, where the company's national
State was able to act, the Court was not
of the opinion that jusstandi was
conferred on the Belgian Government
by considerations of equity.
Nottebohm Case (Liechtenstein v.

Guatemala), ICJ Judgment of Apr.
6,1955, Second Phase
Factsthe Govern-ment of Liechtenstein
instituted proceedings before the Court
in which it claimed restitution and
compensation on the ground that the
Government of Guatemala had "acted
towards the person and property of Mr.
Friedrich Nottebohm, a citizen of
Liechtenstein,in a manner contrary to
international law.the Government of
Guatemala contended that this claim
was inadmissible on a number of
grounds, and one of its objections to the
admissibility of the claim related to the
nationality of the person for whose
protection Liechtenstein had seised the
Court.Nottebohm, born at Hamburg,
was still a German national when, in
October
1939,
he
applied
for
naturalization in Liechtenstein. In 1905
he went to Guatemala, which he made
the centre of his business activities. He
sometimes went to Germany on
business, and also paid a few visits to
Liechtenstein, where one of his brothers
had lived. He continued to have his
fixed abode in Guatemala until 1943,
until the events which constituted the
basis of the present dispute. In 1939
he left Guatemala at approximately the
end of March; he seems to have gone to
Hamburg and to have paid a few brief
visits to Liechtenstein, where he was at
the beginning of October 1939. It was
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then, on 9th October, 1939, a little more

than a month after the opening of the
Second World War, marked by
Germany's attack on Poland, that he
applied
for
naturalization
in
Liechtenstein.In his application for
naturalization
Nottebohm
sought
dispensation from the condition of three
years'
prior
residence,
without
indicating the special circumstances
warranting such a waiver. A Document
dated 15th October, 1939 certifies that
on that date the citizenship had been
conferred upon him. On 20th October
Nottebohm took the oath of allegiance.
A Certificate of Nationality was also
produced to the effect that Nottebohm
had been naturalized by a Supreme
Resolution of the Prince of 13th October,
1939. Nottebohm then obtained a
Liechtenstein passport and had it visaed by the Consul General of Guatemala
in Zurich on 1st December, 1939, and
returned to Guatemala at the beginning
of 1940.When he tried to return to
Guatemala once again in 1943 he was
refused entry as an enemy alien since
the Guatemalan authorities did not
recognise
his
naturalization
and
regarded him as still German. He was
later extradited to the U.S., where he
was held at an internment camp until
the end of the war. All his possessions in
Guatemala were confiscated. After his
release, he lived out the rest of his life in
Liechtenstein.Issuewhether
the
naturalization thus granted could be
validly invoked against Guatemala,

whether it bestowed upon Liechtenstein
a sufficient title to exercise protection in
respect of Nottebohm as against
Guatemala.whether Mr. Notte-bohm,
having acquired the nationality of
Liechtenstein,
that.acquisition
of
nationality is one which must be
recognized
by
other
statesHeldNationality is within the
domestic jurisdiction of the State, which
settles, by its own legislation, the rules
relating to the acquisition of its
nationality. In order to resolve the
conflict, they have sought to ascertain
whether nationality has been conferred
in circumstances such as to give rise to
an obligation on the part of the
respondent State to recognize the effect
of that nationality. In order to decide
this question, they have evolved certain
criteria. They have given their
preference to the real and effective
nationality, that which accorded with
the facts, that based on stronger factual
ties between the person concerned and
one of these States whose nationality is
involved. Different factors are taken into
consideration, and their importance will
vary from one case to the next: there is
the habitual residence of the individual
concerned but also the centre of his
interests,
his
family
ties,
his
participation in public life, attachment
shown by him for a given country and
inculcated in his children, etc.The
character thus recognized on the
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international level as pertaining to

nationality is in no way inconsistent
with the fact that international law
leaves it to each State to lay down the
rules governing the grant of its own
nationality. This is so failing any general
agreement on the rules relating to
nationality. It has been considered that
the best way of making such rules
accord with the varying demographic
conditions in different countries is to
leave the fixing of such rules to the
competence of each State. But, on the
other hand, a State cannot claim that the
rules it has laid down are entitled to
recognition by another State unless it
has acted in conformity with this
general aim of making the nationality
granted accord with an effective link
between
the
State
and
the
individual.At the time of his
naturalization, does Nottebohm appear
to have been more closely attached by
his tradition, his establishment, his
interests, his activities, his family ties,
his intentions for the near future, to
Liechtenstein than to any other
State?Nottebohm always retained his
family and business connections with
Germany and that there is nothing to
indicate that his application for
naturalization in Liechtenstein was
motivated by any desire to dissociate
himself from the Government of his
country. On the other hand, he had been
settled for 34 years in Guatemala, which
was the centre of his interests and his
business activities. He stayed there until

his removal as a result of war measures
in 1943, and complains of Guatemala's
refusal to readmit him. Members of
Nottebohm's family had, moreover,
asserted his desire to spend his old age
in Guatemala. In contrast, his actual
connections with Liechtenstein were
extremely tenuous. There is thus the
absence of any bond of attachment with
Liechtenstein, but there is a longstanding and close connection between
him and Guatemala, a link which his
naturalization in no way weakened.
For these reasons the Court held the
claim
of
Liechtenstein
to
be
inadmissible.
Republic of Guinea v. Democratic

Republic of the Congo
Facts:
On December 28, 1998, Guinea
(plaintiff) filed a diplomatic protection
suit on behalf ofAhmadou Sadio Diallo,
a Guinea national, in the International
Court of Justice (ICJ) against the
Democratic Republic of the Congo
(DRC) (plaintiff). Guinea alleged that
Diallo had lawfully resided in DRC for
thirty-two years and was unlawfully
imprisoned in that State. Guinea also
claimed that Diallos investments,
businesses,
and
property
were
unlawfully expropriated. AfterDiallo
unsuccessfully attempted to recover
31
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sums owed to him by companies owned

by the DRC, Guinea claimed that Diallo
was expelled without judicial process
from DRC by that States authorities. As
Guinea sought to exercise its diplomatic
protection over Diallo, it was necessary
as a preliminary matter to determine
whether Diallo met the requirements for
diplomatic protection.
ISSUES:
1. whether or not he was a national of
Guinea
2. whether he exhausted the local
remedies available in the DRC
HELD:
1. On the first point, the Court observes
that it is not disputed by the DRC that
Mr. Diallos sole nationality is that of
Guinea and that he has continuously
held that nationality from the date of the
alleged injury to the date the
proceedings were initiated.
2. Expulsion was characterized as a
refusal of entry when it was carried
out, as both Parties have acknowledged
and as is confirmed by the notice drawn
up on 31 January 1996 by the national
immigration service of Zaire. It is
apparent that refusals of entry are not
appealable under Congolese law. Article
13 of Legislative Order No. 83-033 of 12
September
1983,
concerning
immigration control, expressly states
that the measure [refusing entry] shall

not be subject to appeal. The Court
considers that the DRC cannot now rely
on an error allegedly made by its
administrative agencies at the time Mr.
Diallo was refused entry to claim that
he should have treated the measure as
an expulsion.
The Court further observes that, even if
this was a case of expulsion and not
refusal of entry, the DRC has also failed
to show that means of redress against
expulsion decisions are available under
its domestic law.
The possibility open to Mr. Diallo of
submitting a request for reconsideration
of the expulsion decision to the
administrative authority having taken it
that is to say the PrimeMinister in
the hope that he would retract his
decision as a matter of grace cannot be
deemed a local remedy to be exhausted.
Admissibility of the Application in so
far as it concerns protection of Mr.
Diallos direct rights as associ in
Africom-Zaire and Africontainers-Zaire
The Court recalls that the exercise by a
State of diplomatic protection on behalf
of a natural or legal person, who is
associ or shareholder, having its
nationality, seeks to engage the
responsibility of another State for an
injury caused to that person by an
internationally wrongful act committed
32
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by that State. What amounts to the

internationally wrongful act, in the case
ofassocis or shareholders, is the
violation by the respondent State of
their direct rights in relation to a legal
person, direct rights that are defined by
the domestic law of that State. On this
basis, diplomatic protection of the direct
rights of associs of an SPRL or
shareholders of a public limited
company is not to be regarded as an
exception to the general legal rgime of
diplomatic protection for natural or
legal persons, as derived from
customary international law.
Having considered the arguments
advanced by the Parties, the Court finds
that Guinea does indeed have standing
in this case in so far as its action
involves a person of its nationality, Mr.
Diallo, and is directed against the
allegedly unlawful acts of the DRC
which are said to have infringed his
rights, particularly his direct rights as
associ of the two companies AfricomZaire and Africontainers-Zaire. The
Court notes that Mr. Diallo, who was
associ in both companies, also held the
position of grant in each of them. An
associ of an SPRL holds parts sociales
in its capital, while the grant is an
organ of the company acting on its
behalf.
Admissibility of the Application in so
far as it concerns the exercise of
diplomatic protection with respect to
Mr. Diallo by substitution for

Africom-Zaire andAfricontainers-Zaire
How is International Human Rights

Law Enforced?
According to the Court, the theory of

protection by substitution seeks to offer
protection to the foreign shareholders of
a company who could not rely on the
benefit of an international treaty and to
whom no other remedy is available, the
allegedly unlawful acts having been
committed against the company by the
State of its nationality. Protection by
substitution would therefore appear
to constitute the very last resort for the
protection of foreign investments.
Having examined State practice and
decisions of international courts and
tribunals, it is of the opinion that these
do not reveal at least at the present
time an exception in customary
international
law
allowing
for
protection by substitution, such as is
relied on by Guinea
Harold Koh: these international norms

of international human rights law are
underenforced imperfectly enforced; but
they are enforced through a complex,
little-understood legal process that I call
transnational
legal
process.
transnational legal process can be
thought of in three phases: the
institutional interaction whereby global
norms of international human rights law
are debated, interpreted, and ultimately
internalized by domestic legal systems.
To claim that this complex transnational
legal proce ss of enforcing international
human rights law via interaction,
interpretation, and internalization
exists is not to say that it always works
or even that it works very well. As I will
be the first to concede, this process
works sporadic ally, and that we often
most clearly see its spectacular failures,
as in Cambodia, Bosnia, and Rwanda.
But
the
process
of
enforcing
international human rights law also
sometimes has its successes, which gives
us reason not to ignore that proce ss, but
to try to develop and nurture it. Just as
doctors used early successes in
addressing
polio
to
push
our
understanding of how the prevention
and healing proce ss works, lawyers can
try to globalize the lessons of human
rights enfor cement. So if the question is
how is international human rights
enforced?, my short answer is through
a transnational legal process of
institutional interaction, interpretation
of legal norms, and attemp ts to
internalize those norms into domestic
legal
The Court cannot accept Guineas claim

to exercise diplomatic protection by
substitution. It is therefore the normal
rule of the nationality of the claims
which
governs
the
question
ofthediplomatic protection of AfricomZaire and Africontainers-Zaire. The
companies in question have Congolese
nationality.
INTERNATIONAL
RIGHTS LAW
33
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HUMAN
systems.
1. Power
2. Self-interest or rational choice
3. Liberal explanations based on
rule-legitimacy
or
political
identity
4. Communitarian explanations
5. Legal processes explanation at
a. STATE TO STATE LEVEL
(HORIZONTAL
or
INTL
LEGAL
PROCESSES
EXPLANATION; and
b. INTERNATIONAL
LEVEL
(VERTICAL
OR
TRANSNATIONAL
LEGAL
PROCESSES)
The discussion of HAROLD KOH is

divided into two:
First, how, in theory, does transnational
legal
process
promote
national
obedience of international human rights
law? Second, how does transnational
legal processthis process that I call
interaction,
interpretation
and
internalizationwork in real cases?
I.
THE
THEORY
OF
TRANSNATIONAL
LEGAL
PROCESS
A. From Compliance to Obedience
What
is
the
relationship
between the law and the
observed
practice?
1. Coincidence explains why
people follow rule but why not
millions of people do the same
(ie, everybody should drive at the
left becos many follows the
norm)
2. Conformity following the norm
becos its convenient
3. Compliance following becos of
the corresponding award or
penalty
4. Obedience the notion that the
person adopts a rule becos he
somehow internalized it and
made it part of internal value
system
B. The
relationship
between
enforcement and obedience
Why do nations obey
international law of any kind?
Five schools of thoughts
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II.
HOW IS INTERNATIONAL
HUMAN
RIGHTS
LAW
ENFORCED?
A. The Horizontal Story (HS)
- Under this view, the principal
enforcers of human rights law
have always been nation-states,
who have always interacted with
one another on an interstate,
government-to-government level.
an international regime
developed in which governments
and
inter-governmental
organizations began to put
pressure on each otheralways
at
a
horizontal,
intergovernmental
levelto
comply with human rights,
invoking such universal treaty
norms as the international
covenants on civil and political
and economic, social and cultural
rights. U.N. organizations, such
as the U.N. Human Rights
Commission, and treaty-based
organizations, such as the U.N.
Human
Rights
Committee,
participated
as
intergovernmental actors in this
horizontal international regime,
which addressed all manner of
global issues: worker rights,
racial discrimination, the rights of
children, women, and indigenous
peoples. As we soon saw, the
difficulties of this horizontal,
state-to-state
enforcement
mechanism were legion: the rules
were largely declaratory and
precatory,
and
the
few
mechanisms created had virtually
no enforcement.
B. The Vertical Story
-
The HS is not the entire picture of

HRights enforcement.
Many efforts at human rights
norm-internalization are begun
not by nation-states, but by
transnational
norm
entrepreneurs,
private
transnational organizations or
individuals
who
mobilize
popular opinion and political
support within their host country
and abroad for the development
of a universal human rights
norm. Such norm entrepreneurs
first became prominent in the
nineteenth
century,
when
activists such as Lord William
Wilberforce and the British and
Foreign Anti-Slavery Society
pressed for treaties prohibiting
the slave trade, xxxx
These nongovernmental actors
seek to develop transnational
issue networks to discuss and
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gene rate political solutions

among concerned individuals at
the domestic, regional and
international
levels,
among
government
agencies,
intergovernmental organizations,
international
and
domestic,
academics,
and
priva
te
foundations. Mo reover, these
norm entrepreneurs seek national
government
officials
and
bureaucracies concerned with the
same issue areas and seek to
enlist them as allies in their
transnational cause.
C. The Pattern Illustrated
- HS is not wrong but it is
incomplete.
A
state-to-state
proce ss account simply does not
capture the full picture of how
international human rights norms
are currently generated, brought
into domestic systems, and then
brought back up to the
international level.
- These are people (Transnational
norms
entrepreneurs)
who
without governmental portfolio
are able to transact a different
kind of process focusing at times
on creating new forums to
develop new international norms.
Their focus is less on the
horizontal proce ss among nation
states as upon what I call
vertical or transnational proce
ss. Their effort is to try to bring
human rights law home, by
trying to internalize it into
domestic systems through a
process
of
interaction,
interpretation,
and
internalization.
- How,
precisely,
is
this
internalization accomplished? In
earlier work, I have sought to
distinguish
among
social,
political and legal internalization:
o Social internalization, I argue,
occurs when a norm acquires so
much public legitimacy that there
is widespread general adherence
to it.
o Political internalization occurs
when the political elites accept an
international norm, and advocate
its adoption as a matter of
government policy.
o Legal
internalization
occurs
when an international norm is
incorporated into the domestic
legal system through executive
action, legislative action, judicial
interpretation,
or
some
combination of the three. Some
legal systems establish their
receptivity to internalization of
international norms through
constitutional
law
rules
regarding the extent to which
treaties are or are not selfexecuting and rules of customary
international law are or are not
automatically incorporated into
domestic law. Virtually all legal
systems also have explicit
mechanisms whereby executive,
legislative,
and
judicial
institutions may domesticate
international norms.
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o Kinds of Legal internalization
executive action (President)
Legislative internalization occurs

when international law norms are
embedded into constitutional
norms or binding dome stic
legislation that officials of a
noncomplying government must
obey as part of the domestic legal
fabric.
Judicial internalization occurs

when litigation in domestic
courts
provokes
judicial
incorporation of international law
norms
into
domestic
law,
statutes, or constitutional norms.
III. CO N C LU S IO N
Let me close with two thoughts. First,
the
foregoing
analysis
teaches
something about our duty, as citizens, to
partic ipate in transnational legal proce
ss. It is sometimes said that someone
who, by acquiring medical training,
comes to understand the human body
acquires as well a moral duty not just to
observe disease, but to try to cure it. In
the same way, I would argue, a lawyer
who acquires knowledge of the body
politic acquires a duty not simply to
observe transnational legal proce ss, but
to try to influence it. Once one comes to
understand the proce ss by which
international human rights norms can
be generated and internalized into
domestic legal systems, one acquires a
concomitant duty, I believe, to try to
influence that proce ss, to try to change
th feelings of that body politic to

promote
greater
obedience
with
international human rights norms
Robert Kennedy:
Each time a man stands up for an ideal,
or acts to improve the lot of others, or
strikes out against injustice, he sends
forth a tiny ripple of hope, and
crossing each other from a million
different centers of energy and daring,
those ripples build a current that can
sweep down the mightiest walls of
oppression and resistance.
Ivcher-Bronstein vs. Peru
February 6, 2001
Inter-American Court of Human Rights
Baruch Ivcher Bronstein, of Israeli
origin, was granted Peruvian nationality
through a resolution issued by the
President of the Republic of Peru.
Bronstein
renounced
his
Israeli
nationality. For 13 years he exercised the
rights accorded to one having Peruvian
nationality.
He
became
majority
stockholder, director and chairman of
the board of company, which operated
Peruvian televisions Channel 2. Per
Peruvian laws, only Peruvian nationals
can own companies with licenses for
television channels in Peru. During his
stint as director and chairman of the
board,
Channel
2
broadcasted
investigative reports denouncing the
alleged torture of agents by members of
the Army Intelligence as well as high
revenues, which an officer of the
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Peruvian Intelligence Service allegedly

obtained. Because of this, the police
retaliated and pushed for the revocation
of Bronsteins nationality. Later, the
Director General of Migration and
Naturalization issued a resolution
annulling his Peruvian nationality. As a
consequence he was also stripped of his
rights as a majority stockholder and
chairman of the board of his company;
hence, Bronsteins application. He
alleged violations of certain rights
guaranteed by the Inter-American
Convention.
The
Inter-American
Commission brought the matter to the
Inter-American Court of Human Rights
against the Republic of Peru.
Judgment:
The Inter-American Court ruled in favor
of Bronstein. The following rights were
violated:
1) Violation of Article 20 (Right to
Nationality)
Right to Nationality is recognized
by international law as well as by the
domestic law of Peru. It is an inherent
right of all human beings. According to
the domestic law, Peruvian nationality
may be annulled within 6 months after
the date on which it was acquired. In
this case, 13 years have passed. In
addition, the authority who annulled his
nationality
(Directorate)
was
incompetent because he was of a lower
rank than the authority who granted the

nationality (President of Peru).
2) Violation of Article 8 (Judicial
Guarantees) and Violation of
Article 25 (Judicial Protection)
Bronstein was never summoned.
The judges did not meet the standards
of
competence,
impartiality
and
independence as required by Article 8(1)
of the Convention. The judicial
recourses werent prompt.
3) Violation of Article 21 (Right to
Private Property)
Bronstein was deprived of right
to property. When he was stripped of
his Peruvian nationality, he was
prevented from exercising his rights as a
majority stockholder and chairman of
the board. Also, he could not continue
directing the editorial line of Channel .
4) Violation of Article 13 (Freedom
of Thought and Expression)
The state not only restricted their
right to circulate news, ideas and
opinions, but also affected the right of
all Peruvians to receive information,
thus limiting their freedom to exercise
political options and develop fully in a
democratic society.
5) Non-compliance with Article 1(1)
(Obligation to Respect Rights)
The state failed to comply with
the general obligation to respect the
rights and freedoms recognized in the
Convention.
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The Court ruled that the state violated

the abovementioned rights and said the
state should take the necessary steps for
the restoration of his nationality and the
recovery of the use and enjoyment of his
rights as majority stockholder. In
addition the state should also pay
compensation for moral damages and
pay judicial costs.
Soering v. United Kingdom
European Court of Human Rights
July 7, 1989
Facts: The applicant, Mr. Jens Soering, a
German national is currently detained
in prison in England pending
extradition to the United States to face
charges
of
murder
in
the
Commonwealth of Virginia. The
homicides were committed in March
1985, when the applicant was only 18
years old, the victims of which were
Spouses Haysom (parents of applicant's
girlfriend). After the commission of the
crime, Mr. Soering and his girlfriend
flew to the United Kingdom, wherein
they were apprehended.
In October 1986 the United States
requested to the United States that in
the vent of Mr. Soering being
surrendered and being convicted of the
crimes for which he has been indicted
upon, the death penalty, if imposed, will
not be carried out.
Applicable Law: Article 3 of the

European Convention, "No one shall be
subjected to torture or to inhuman or
degrading treatment or punishment."
Issue: Whether in the circumstances the
risk of exposure to the "death row
phenomenon" would make extradition a
breach of Article 3?
Conclusion:
As established in the
Court's
case-law,
ill-treatment,
including punishment, must attain a
minimum level of severity if it is to fall
within the scope of Article 3. Treatment
has been held by the Court to be both
inhuman
because
it
was
premeditated, was applied for hours at
a stretch and caused, if not actual
bodily injury, at least intense physical
and mental suffering, and also
degrading because it was such as to
arouse in its victims feelings of fear,
anguish and inferiority capable of
humiliating and debasing them and
possibly breaking their physical or
moral resistance. In order for a
punishment or treatment associated
with it to be inhuman or degrading,
the suffering or humiliation involved
must in any event go beyond that
inevitable element of suffering or
humiliation connected with a given
form of legitimate punishment.
The applicant submitted that he would
be exposed to the risk of the "death row
phenomenon" if it would be decided
39
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that he be extradited to the United

States. He cited in particular the delays
in the appeal and review procedures
following a death sentence, during
which time he would be subject to
increasing tension and psychological
trauma.
The following are the particular
considerations:
a. Length of detention prior to
execution
The period that a condemned prisoner
can expect to spend on death row in
Virginia before being executed is on
average six to eight years. However
well-intentioned and even potentially
beneficial is the provision of the
complex of post sentence procedures in
Virginia, the consequence is that the
condemned prisoner has to endure for
many years the conditions on death row
and the anguish and mounting tension
of
living
in
the ever-present shadow of death.
b. Condition on death row
The severity of a special regime such as
that operated on death row in is
compounded by the fact of inmates
being subject to it for a protracted
period lasting on average six to eight
years. In connection, the United
Kingdom finds it necessary for extra
security for the safe custody of prisoners
condemned to death for murder.
c. The applicant's age and mental state
At the time of the killings, the applicant

was only 18 years old and there is some
psychiatric evidence, that he was
suffering from an abnormality of mind
as substantially impaired his mental
responsibility for his acts. This Court
finds that the applicants youth and his
mental state at the time of the offense,
on the psychiatric evidence as it stands,
are to be taken into consideration as
contributory factors tending to bring the
treatment on death row within the terms
of Article 3.
d. Possibility of extradition to the
Federal Republic of Germany
The possibility of sending Mr. Soering
to be tried in his own country would
remove the danger of a fugitive criminal
going unpunished as well as the risk of
intense and protracted suffering on
death row. It is therefore a circumstance
of relevance for the overall assessment
under Article 3 in that it goes to the
search for the requisite fair balance of
interests and to the proportionality of
the contested extradition decision in the
particular case.
The Court agrees with the Commission
that the machinery of justice to which
the applicant would be subject in the
United States is in itself neither arbitrary
nor unreasonable, but, rather, respects
the rule of law and affords not
inconsiderable procedural safeguards to
the defendant in a capital trial.
However, having regard to the very
long period of time spent on death row
40
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in such extreme conditions, with the

ever present and mounting anguish of
awaiting execution of the death penalty,
and to the personal circumstances of the
applicant, especially his age and mental
state at the time of the offence, the
applicants extradition to the United
States would expose him to a real risk of
treatment going beyond the threshold
set by Article 3.
Decision: After the Court voted
unanimously, it was held that in the
event of the Secretary of State's decision
to extradite Mr.Soering to the United
States of America being implemented,
there would be a violation of Article 3.
DOLLY M.E. FILARTIGA and JOEL
FILARTIGA, Plaintiffs-Appellants, v.
AMERICO
NORBERTO
PENAIRALA, Defendant-Appellee
FACTS:
The appellants contend that on March
29, 1976, Joelito Filartiga was kidnapped
and tortured to death by Pena, who was
then Inspector General of Police in
Asuncion, Paraguay. Later that day, the
police brought Dolly Filartiga to Pena's
home where she was confronted with
the body of her brother, which
evidenced marks of severe torture. As
she fled, horrified, from the house, Pena
followed after her shouting, "Here you
have what you have been looking for for

so long and what you deserve. Now
shut up." The Filartigas claim that
Joelito was tortured and killed in
retaliation for his father's political
activities and beliefs.
Shortly
thereafter,
Dr.
Filartiga
commenced a criminal action in the
Paraguayan courts against Pena and the
police for the murder of his son. Dolly
Filartiga, moreover, has stated that she
will offer evidence of three independent
autopsies demonstrating that her
brother's death "was the result of
professional methods of torture." As a
result, Dr. Filartiga's attorney was
arrested and brought to police
headquarters where, shackled to a wall,
Pena threatened him with death. This
attorney, it is alleged, has since been
disbarred without just cause.
Dolly Filrtiga and Amrico Pea came
separately to the United States. Dolly
applied for political asylum, while Pea
stayed under a visitor's visa. Dolly
learned of Pea's presence in the United
States and reported it to the
Immigration and Naturalization Service,
who arrested Pea for staying well past
the expiration of his visa.
Almost immediately, Dolly caused Pena
to be served with a summons and civil
complaint at the Brooklyn Navy Yard,
where he was being held pending
deportation. The complaint alleged that
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Pena had wrongfully caused Joelito's

death
by
torture
and
sought
compensatory and punitive damages of
$ 10,000,000. The Filartigas also sought
to enjoin Pena's deportation to ensure
his availability for testimony at trial. The
cause of action is stated as arising under
"wrongful death statutes; the U. N.
Charter; the Universal Declaration on
Human Rights; the U. N. Declaration
Against
Torture;
the
American
Declaration of the Rights and Duties of
Man; and other pertinent declarations,
documents and practices constituting
the customary international law of
human rights and the law of nations," as
well as 28 U.S.C. 1350, Article II, sec. 2
and the Supremacy Clause of the U. S.
Constitution. Jurisdiction is claimed
under the general federal question
provision, 28 U.S.C. 1331 and,
principally on this appeal, under the
Alien Tort Statute, 28 U.S.C. 1350.
ISSUE: WON federal court of USA has
jurisdiction over the case?
HELD:
DISTRICT COURT:
Although the district court initially
stayed Peas deportation, it ultimately
granted Peas motion to dismiss the
complaint and allowed his return to
Paraguay, ruling that, although the
proscription of torture had become a
norm of customary international law,
the court was bound to follow appellate
precedents which narrowly limited the

function of international law only to
relations between states.
On Appeal:
On appeal, the circuit reversed,
recognizing that foreign nationals who
are victims of international human
rights violations may sue their
malfeasors in federal court for civil
redress, even for acts which occurred
abroad, so long as the court has
personal
jurisdiction
over
the
defendant. The court ruled that freedom
from torture is guaranteed under
customary international law. This
decision provides a critical forum for
human rights violations.
The U.S. courts eventually ruled in favor
of the Filrtigas, awarding them roughly
$10.4 million. Torture was clearly a
violation of the law of nations, and the
U.S. did have jurisdiction over the case
since the claim was lodged when both
parties were inside the United States.
Additionally, Pea had sought to
dismiss the case based on forum non
conveniens (saying that Paraguay was a
more convenient location for the trial),
but did not succeed
Appellants rest their principal argument
in support of federal jurisdiction upon
the Alien Tort Statute, 28 U.S.C. 1350,
which provides: "The district courts
shall have original jurisdiction of any
civil action by an alien for a tort only,
42
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committed in violation of the law of

nations or a treaty of the United States."
Since appellants do not contend that
their action arises directly under a treaty
of the United States, a threshold
question on the jurisdictional issue is
whether the conduct alleged violates the
law of nations. In light of the universal
condemnation of torture in numerous
international agreements, and the
renunciation of torture as an instrument
of official policy by virtually all of the
nations of the world (in principle if not
in practice), we find that an act of
torture committed by a state official
against one held in detention violates
established norms of the international
law of human rights, and hence the law
of nations.
It is not extraordinary for a court to
adjudicate a tort claim arising outside of
its territorial jurisdiction. A state or
nation has a legitimate interest in the
orderly resolution of disputes among
those within its borders, and where the
lex loci delicti commissi is applied, it is
an expression of comity to give effect to
the laws of the state where the wrong
occurred.
We believe it is sufficient here to
construe the Alien Tort Statute, not as
granting new rights to aliens, but simply
as opening the federal courts for
adjudication of the rights already
recognized by international law. The
statute nonetheless does inform our
analysis of Article III, for we recognize

that questions of jurisdiction "must be
considered part of an organic growth
part of an evolutionary process," and
that the history of the judiciary article
gives meaning to its pithy phrases.
The Framers' overarching concern that
control over international affairs be
vested in the new national government
to safeguard the standing of the United
States among the nations of the world
therefore reinforces the result we reach
today.
Although the Alien Tort Statute has
rarely been the basis for jurisdiction
during its long history, in light of the
foregoing discussion, there can be little
doubt that this action is properly
brought in federal court. This is
undeniably an action by an alien, for a
tort only, committed in violation of the
law of nations. The paucity of suits
successfully maintained under the
section is readily attributable to the
statute's requirement of alleging a
"violation of the law of nations" at the
jurisdictional threshold.
Torture, in turn, is defined as "any act
by which severe pain and suffering,
whether physical or mental, is
intentionally inflicted by or at the
instigation of a public official on a
person for such purposes as ...
intimidating him or other persons." The
Declaration goes on to provide that
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"(w)here it is proved that an act of

torture or other cruel, inhuman or
degrading treatment or punishment has
been committed by or at the instigation
of a public official, the victim shall be
afforded redress and compensation, in
accordance with national law."
Questions: Wouldn't you consider the
Alien Tort Statute as a violation of
Paraguay's jurisdiction? Would it be
acceptable if Iraq, for example, would
exercise jurisdiction over allegations of
torture committed by US citizens
against Pakistanis?
INTERNATIONAL
HUMANITARIAN LAW
Prosecutor v. Dusko Tadic
Facts: Duko Tadi (born October 1,
1955 in the Socialist Republic of Bosnia
and Herzegovina, Yugoslavia) is a
Bosnian Serb war criminal, former SDS
leader in Kozarac and a former member
of the paramilitary forces supporting the
attack on the district of Prijedor. He was
convicted of crimes against humanity,
grave
breaches of the
Geneva
Conventions, and violations of the
customs of war by the International
Criminal Tribunal for the Former
Yugoslavia (ICTY) for his actions in the
Prijedor region, including the Omarska,
Trnopolje
camps.
and
Keraterm
detention
Before the Trial Chamber, Appellant

had launched a three-pronged attack:
a) illegal foundation of the International
Tribunal; b) wrongful primacy of the
International Tribunal over national
courts; c) lack of jurisdiction ratione
materiae.
Ruling:
a) As with the determination of the
existence of a threat to the peace, a
breach of the peace or an act of
aggression, the Security Council has a
very wide margin of discretion under
Article 39 of Security Council Charter to
choose the appropriate course of action
and to evaluate the suitability of the
measures chosen, as well as their
potential contribution to the restoration
or maintenance of peace. But here again,
this discretion is not unfettered;
moreover, it is limited to the measures
provided for in Articles 41 and 42.
Prima facie, the International Tribunal
matches perfectly the description in
Article 41 of "measures not involving
the use of force."
b) This primacy is established by Article
9 of the Statute of the International
Tribunal. To allow the accused to do (
plea of State sovereignty )so would be to
allow him to select the forum of his
choice, contrary to the principles
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relating to coercive criminal jurisdiction.

This is all the more so in view of the
nature of the offences alleged against
Appellant, offences which, if proven, do
not affect the interests of one State alone
but shock the conscience of mankind.
c) Appellant's third ground of appeal is
the claim that the International Tribunal
lacks subject-matter jurisdiction over the
crimes alleged. The basis for this
allegation is Appellant's claim that the
subject-matter
jurisdiction
under
Articles 2, 3 and 5 of the Statute of the
International Tribunal is limited to
crimes committed in the context of an
international armed conflict. Before the
Trial Chamber, Appellant claimed that
the alleged crimes, even if proven, were
committed in the context of an internal
armed conflict. On appeal an additional
alternative claim is asserted to the effect
that there was no armed conflict at all in
the region where the crimes were
allegedly committed.
The Existence Of An Armed Conflict
The definition of "armed conflict" varies
depending on whether the hostilities are
international or internal but, contrary to
Appellant's contention, the temporal
and geographical scope of both internal
and international armed conflicts
extends beyond the exact time and place
of hostilities.
we find that an armed conflict exists
whenever there is a resort to armed
force between States or protracted

armed violence between governmental
authorities and organized armed groups
or between such groups within a State.
Applying the foregoing concept of
armed conflicts to this case, we hold that
the alleged crimes were committed in
the context of an armed conflict.
Fighting among the various entities
within the former Yugoslavia began in
1991, continued through the summer of
1992 when the alleged crimes are said to
have been committed, and persists to
this day.
Does The Statute Refer Only To
International Armed Conflicts?
As the members of the Security Council
well knew, in 1993, when the Statute
was drafted, the conflicts in the former
Yugoslavia
could
have
been
characterized as both internal and
international, or alternatively, as an
internal
conflict
alongside
an
international one, or as an internal
conflict
that
had
become
internationalized because of external
support, or as an international conflict
that had subsequently been replaced by
one or more internal conflicts, or some
combination thereof. The conflict in the
former Yugoslavia had been rendered
international by the involvement of the
Croatian Army in Bosnia-Herzegovina
and by the involvement of the Yugoslav
National Army ("JNA") in hostilities in
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Croatia, as well as in BosniaHerzegovina at least until its formal

withdrawal on 19 May 1992.
NB: Customary Rules of International
Humanitarian Law Governing Internal
Armed Conflicts
International
legal
rules
have
increasingly emerged or have been
agreed upon to regulate internal armed
conflict.
Indeed, elementary considerations of
humanity and common sense make it
preposterous that the use by States of
weapons prohibited in armed conflicts
between themselves be allowed when
States try to put down rebellion by their
own nationals on their own territory.
What is inhumane, and consequently
proscribed, in international wars, cannot
but be inhumane and inadmissible in
civil strife.
DRC vs Uganda
Facts: On 23 June 1999, the Democratic
Republic of the Congo (hereinafter the
DRC) filed an Application instituting
proceedings against the Republic of
Uganda (hereinafter Uganda) in
respect of a dispute concerning acts of
armed aggression perpetrated by
Uganda on the territory of the
Democratic Republic of the Congo, in
flagrant violation of the United Nations
Charter and of the Charter of the
Organization of African Unity
Following President Laurent Desire

Kabilas accession to power in May
1997, Uganda and Rwanda were
granted substantial benefits because of
the previous military help they
extended which proved vital for
president kabilas victory in the
revolution.
Subsequently
however,
president Kabila sought to remove
Uganda and Rwandas forces in DRC
because of talks of conspiracy to
overthrow him. President Kabila
thereafter ordered the withdrawal of
Ugandan and Rwandan forces from
DRC. DRC claims that subsequently
Uganda and Rwanda organized an
airborne operation and within a matter
of months, troops from the Uganda
Peoples Defence Forces (UPDF) had
advanced and progressively occupied a
substantial part of Congolese territory in
several provinces.
The DRC also
submits
that
Uganda
supported
Congolese armed groups opposed to
President Kabilas Government. Such
actions of Uganda led to numerous
human rights violations including acts
of killing, torture etc and occupation of
DRCs territory which lead to wasteful
use of its natural resources.
Issues:
1) Whether or not Uganda is an
occupying power in the parts of
the Congolese territory where its
troops were present
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2) Whether or not there was

violations of international human
rights law and international
humanitarian rights law
Held: 1) The Court observes that, under
customary
international
law,
as
reflected in Article 42 of the Hague
Regulations of 1907, territory is
considered to be occupied when it is
actually placed under the authority of
the hostile army, and the occupation
extends only to the territory where such
authority has been established and can
be exercised.
The Court states that it is not
disputed between the Parties that
General Kazini, commander of the
Ugandan forces in the DRC, created the
new province of Kibali-Ituri in June
1999. It considers that, regardless of
whether or not General Kazini acted in
violation of orders and was punished as
a result, his conduct is clear evidence of
the fact that Uganda established and
exercised authority in Ituri as an
occupying Power. The Court however
observes that the DRC does not provide
any specific evidence to show that
authority was exercised by the Ugandan
armed forces in any areas other than in
Ituri district.
Having concluded that Uganda
was the occupying Power in Ituri at the
relevant time, the Court states that, as
such, it was under an obligation,
according to Article 43 of the Hague

Regulations, to take all measures in its
power to restore, and ensure, as far as
possible, public order and safety in the
occupied area, while respecting, unless
absolutely prevented, the laws in force
in the DRC. This obligation comprised
the duty to secure respect for the
applicable rules of international human
rights
law
and
international
humanitarian law, to protect the
inhabitants of the occupied territory
against acts of violence, and not to
tolerate such violence by any third
party.
The Court finds that Ugandas
responsibility is engaged both for any
acts of its military that violated its
international obligations and for any
lack of vigilance in preventing
violations of human rights and
international humanitarian law by other
actors present in the occupied territory,
including rebel groups acting on their
own account. It notes that Uganda at all
times has responsibility for all actions
and omissions of its own military forces
in the territory of the DRC in breach of
its obligations under the rules of
international human rights law and
international humanitarian law which
are relevant and applicable in the
specific situation.
2) Yes. UPDF troops committed acts of
killing, torture and other forms of
inhumane treatment of the civilian
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population, destroyed villages and

civilian buildings, failed to distinguish
between civilian and military targets
and to protect the civilian population in
fighting with other combatants, incited
ethnic conflict and took no steps to put
an end to such conflicts, was involved in
the training of child soldiers, and failed
to take measures to ensure respect for
human
rights
and
international
humanitarian law in Ituri.
Turning to the question as to whether
acts and omissions of the UPDF and its
officers and soldiers are attributable to
Uganda, the Court states that the
conduct of the UPDF as a whole is
clearly attributable to Uganda, being the
conduct of a State organ. The conduct
of individual soldiers and officers of the
UPDF is to be considered as the conduct
of a State organ. In the Courts view, by
virtue of the military status and function
of Ugandan soldiers in the DRC, their
conduct is attributable to Uganda. It is
furthermore
irrelevant
for
the
attribution of their conduct to Uganda
whether UPDF personnel acted contrary
to the instructions given or exceeded
their authority. According to a wellestablished rule of a customary nature,
as reflected in Article 3 of the Fourth
Hague Convention respecting the Laws
and Customs of War on Land of 1907 as
well as in Article 91 of Protocol I
additional to the Geneva Conventions of
1949, a party to an armed conflict shall
be responsible for all acts by persons

forming part of its armed forces.
were killed following the take over of

the area was considered genocide.
Acts of Genocide Provided in Article II
Bosnia and Herzegovina vs. Serbia and

Montenegro
Application of the Convention on the
Prevention and Punishment of the
Crime of Genocide
February 26, 2007
FACTS:
On January 9, 1992, the Republic of Serb
People of Bosnia and Herzegovina, later
called Republic Srpska, declared its
independence. However, the state never
attained international recognition as a
sovereign state, but it had a de facto
control of substantial territory, and
loyalty of large numbers of Bosnian
Serbs.
Respondent Serbia and Montenegro was
impleaded because of the close ties
between the Government of the
Respondent and the authorities of
Republic Srpska, and the administration
and control of the army of the Republic
Srpska (VRS).
Several atrocities were committed in
various areas but such were not
considered by the court as genocide.
However, the massacre at Srebrenica
where over 7,000 Bosnian Muslim men
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a. Killing members of the group;

b. Causing serious bodily or mental
harm to members of the group;
c. Deliberately inflicting on the
group
conditions
of
life
calculated to bring about its
physical destruction in whole or
in part;
d. Imposing measures intended to
prevent births within the group;
and
e. Forcibly transferring children of
the group to another group
In addition, it must be established
that there is specific intent to destroy
the group in whole or in part (dolus
specialis)
ISSUES:
1. Whether the acts of genocide
could be attributed to respondent
on the basis that those acts were
committed by its organs or
persons
whose
acts
are
attributable to it under customary
rules of State Responsibility.
2. Acts other than genocide itself
under Article III was attributable
to Respondent.
3. Whether
the
Respondent
complied with its twofold
obligation deriving from Article I
of the Convention to prevent and

punish genocide.
RULING:
On the first two issues, the Court
absolved the Respondent because it was
not shown that respondent or any of its
organs took part in the massacre. There
was no proof of direction nor control
from the Respondent.
On the third issue, however, the court
held that the Respondent was guilty of
breaching its obligation in preventing
and punishing genocide.
As to prevention, the court held that
there is failure on the part of
Respondent to employ all means
possible to prevent genocide. It notes
that respondent was in a position of
influence over the Bosnian Serbs unlike
any other States parties to the Genocide
Convention owing to the strength of the
political, military and financial links
between respondent and Republic
Srpska. The court ruled that it does not
need to be proven that the State
concerned definitely had the power to
prevent genocide, it is sufficient that it
had the means to do so and that it
manifestly refrained from using them.
As to punishing the crime, the
Respondent is liable for failing to
cooperate with the international penal
tribunal provided in Article IV of the
Convention. Article IV obliges the
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contracting parties which shall have

accepted its jurisdiction to cooperate
with it, which implies that they will
arrest persons accused of genocide who
are in their territory- even if the crime of
which they are accused was committed
outside it- and, failing prosecution of
them in the parties own courts, that
they will hand them over for trial by the
competent international tribunal. The
respondent failed particularly in respect
of General Ratko Mladic, the alleged
head/leader behind the massacre.
TREATIES
IOANNIS KARDASSOPOULOS and

GEORGIA
FACTS:
On 2 August 2005, Mr. Ioannis
Kardassopoulos (Claimant), a national
of the Hellenic Republic (Greece), filed a
request for arbitration with the
International Centre for Settlement of
Investment Disputes (ICSID). The
dispute among the parties to this
proceeding concerns allegations by
Claimant that the Republic of Georgia
(Respondent) breached its obligations to
Claimant under the Agreement between
the Government of the Hellenic
Republic and the Government of the
Republic of Georgia on the Promotion
and
Reciprocal
Protection
of
Investments (the "Bilateral Investment

Treaty or BIT") and the Energy Charter
Treaty (the ECT) in respect of
Claimant's alleged interest in an oil and
gas
concession
in
Georgia.
The investment dispute between
the parties to this proceeding arose
during the years following Georgia's
emergence as a sovereign State.
Following its independence, Georgia
actively sought foreign investments
specifically to develop the transport of
oil and gas from the oil fields of
Azerbaijan on the Caspian Sea through
Georgia to the Black Sea (also known as
the
Western
Route).
Claimant is one of the shareholders
of Tramex. On 3 March 1992 Tramex
signed a Joint Venture Agreement
(JVA) with SakNavtobi which created
GTI Ltd. (GTI), a joint venture vehicle
owned in equal shares by Tramex and
SakNavtobi. It was created for the
purpose
of
developing
and
strengthening the Georgian Oil and Gas
industry. SakNavtobi was incorporated
as one of four departments of the
Ministry of Fuel and Energy of Republic
of Georgia through the adoption of
Decree No. 1105. In this same Decree,
the entity which held the rights over
Georgia's pipelines, Transneft was
united in the department SakNavtobi.
As a result of this restructuring, the
Parties to the JVA decided that GTI
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should obtain a formal Deed of

Concession from Transneft in order to
confirm the rights it had obtained under
the
JVA.
On 28 April 1993, Transneft
executed a Deed of Concession granting
a long-term concession of the Pipelines
to GTI for a thirty-year period. At the
end of the thirty-year period, GTI was to
return the possession and use of the
Pipelines to Transneft. However, any
investments, improvements, additions
or extensions made to the Pipelines by
GTI were to remain its sole property. It
was provided in the concession
agreement that the Pipelines and all
property owned, leased or used by GTI
in connection therewith is not subject to
expropriation,
confiscation
nationalization or the sale or grant of
any rights to any persons or entities
whatsoever. It also provides that they
are protected in accordance with
regulations of the Georgian legislation
and applicable international treaties and
public
international
law.
By 1995, Azerbaijan International
Operation Company (AIOC) become
interested with Georgia. They wished to
secure the Western Route from the
Azeri oil fields through Georgia to the
Black Sea for the transportation of their
oil. On 11
November 1995, the President

Shevardnadze adopted a Decree, which
established the State-owned company
Georgian International Oil Corporation
(GIOC). The final provision of the
said decree provides that it cancel[s] all
rights (given earlier by the Georgian
Government to any of the parties)
contradicting the present Decree. In
March 1996, Georgia signed a thirtyyear agreement with AIOC for the
transportation of oil through Georgia,
whereby GIOC was appointed for the
construction
of
the
pipeline.
On the other hand, based on
assurances purportedly given by
Georgian Government officials, the
claimant continued to believe that the
interest of GTI would be recognized and
vindicated in the scope of arrangements
made with GIOC relating to Georgia's
oil industry. This continued for many
years without any compensation being
paid to Tramex by Georgia. President
Shevardnadze resigned, and a new
government was established under a
new president, Mr. Mikheil Saakashvili.
Tramex gave notice of its claim for
reimbursement to the Government but
the latter denied its liabilities to the
former.
Hence, Claimant filed his Request
for Arbitration with the ICSID.
Respondent challenged the Tribunal's
jurisdiction ratione temporis under both
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the Energy Charter Treaty and the

Bilateral
Investment
Treaty.
ISSUE:
WON ICSID has jurisdiction ratione
temporis
over
the
case.
HELD:
Jurisdiction Ratione Temporis under the
ECT
The Tribunal's jurisdiction under
the ECT derives from Article 26 of the
ECT. Paragraph (1) of that Article refers
to: Disputes between a Contracting
Party and an Investor of another
Contracting Party relating to an
Investment of the latter in the Area of
the former, which concern an alleged
breach of an obligation of the former
under Part III (Promotion and
Reciprocal Protection of Investments)
[...].
Georgia and Greece both signed the
ECT on 17 December 1994. Entry into
force of the ECT is provided for in
Article 44. The parties agree that the
operation had the effect that the ECT
entered into force under Article 44 on 16
April 1998. Article 45 of the ECT,
however, provides also for the
provisional application of the ECT.
Paragraph (1) of that Article reads:
Each signatory agrees to apply this
Treaty provisionally pending its entry

into force for such signatory in
accordance with Article 44, to the extent
that such provisional application is not
inconsistent with its constitution, laws
or
regulations.
Both States thereupon and thenceforth
accepted the provisional application of
the ECT. The question which has been
raised, and on which the parties differ,
is whether, for the purposes of the
definition of Effective Date in Article
1(6) of the ECT, which defines the term
investment, the date from which the
ECT became provisionally applicable is
to be treated as its date of entry into
force.
Article 1(6) provides [T]he term
Investment includes all investments,
whether existing at or made after the
later of the date of entry into force of
this Treaty for the Contracting Party of
the Investor making the Investment and
that for the Contracting Party in the
Area of which the Investment is made
(hereinafter referred to as the Effective
Date) provided that the Treaty shall
only apply to matters affecting such
Investments after the Effective Date
Provisional application is not the
same as entry into force. But the ECT's
provisional application is a course to
which each signatory agrees thus a
matter of legal obligation. Since that
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application is to be provisional
pending its entry into force the
implication is that it would be applied
on the same basis as would in due
course result from the ECT's (definitive)
entry into force, and as if it had already
done
so.
So long as the intention of the
negotiating States clearly shows that
they intended the treaty to be
provisionally applied, it cannot be
accepted that that clear intention could
be undermined by an insistence on
applying the terms of the treaty in their
strictly literal form. The clear terms of
the treaty providing for provisional
application,
coupled
with
such
provisional application being consistent
with the object and purpose of the
treaty, provide sufficient justification for
interpreting its terms in a sense
equivalent or analogous to their strict
and literal meaning, but as adapted to
the expressly intended situation of
provisional
application.
Thus, respondent's objection to the
Tribunal's jurisdiction ratione temporis
under
the
ECT,
is
denied.
Jurisdiction Ratione Temporis under the
BIT
The parties agree that the substantive
protections set out in the BIT apply from
3 August 1996 onward, and that the BIT
does not apply retrospectively to
conduct which occurred and ended

prior to 3 August 1996. The BIT between
Greece and Georgia was signed on 9
November 1994 and entered into force
on 3 August 1996. Article 12 of the BIT
provides that the treaty applies to
investments made prior to its entry into
force.
It is Respondent's position that the
Tribunal lacks jurisdiction ratione
temporis over Claimant's BIT claims
because all acts which caused
Claimant's purported loss occurred
prior to the BIT's entry into force.
However, the Tribunal notes that in
order to decide whether or not it has
jurisdiction over the alleged violations
of the BIT, it must determine whether
the conduct complained of occurred
after the entry into force of the BIT.
Claimant refers to different sets of
assurances that were allegedly given
by Respondent after the entry into force
of the BIT. Claimant also refers to four
separate commitments which were
purportedly given by Respondent
before the entry into force of the BIT on
3 August 1996, but which were allegedly
breached
after
that
date.
The Tribunal must be briefed by the
parties on the nature of these
assurances and commitments. The
Tribunal is unable to resolve the
jurisdictional question of timing of these
assurances
and
commitments
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without a complete picture of their

scope and content, the circumstances in
which they were made, the different
actors involved and the impact they
may
have
had
on
Claimant's
investment
in
Georgia.
It is well settled that whenever a
jurisdictional issue is closely related to
the facts to be examined at the merits
phase of the case, it can be joined to the
merits. The Tribunal's decision on
jurisdiction here is closely related to the
merits and will depend, to a large
extent, on the same factual questions.
Thus, respondent's objection to the
Tribunal's jurisdiction ratione temporis
under the BIT is joined to the merits.
Democratic Republic of Congo vs
Rwanda
Facts:
DRC instituted proceedings against
Rwanda for the alleged flagrant and
serious violations of human rights and
international
humanitarian
law
resulting from the latters acts of armed
aggression on the territory of DRC. To
establish
ICJs
jurisdiction,
DRC
presented 11 bases.
Issue:
Whether or not the International Court
of Justice has jurisdiction over the case.
Held: I only included those which are

relevant to our discussion on treaties.
ICJ has no jurisdiction. One of the bases
presented by DRC is Article IX of the
Genocide Convention.
The ICJ noted the following:
DRC and Rwanda are parties to

the Genocide Convention
Rwandas
instrument
of
accession
contains
a
RESERVATION
Said
reservation
from
the
application of Art IX of the
Genocide Convention is NOT
WITHRAWN by the Decret-Loi.
o The validity and effect of
the Decret-Loi within the
domestic legal order of
Rwanda is different from
that of its effect within the
international legal order.
o Under ART. 22, Par.3 (a) of
the Vienna Convention, in
order that the withdrawal
of a reservation would
have an effect in the
international legal order,
there must be a notification
of the withdrawal of the
reservation to the other
state parties to the treaty.
Said
reservation
from
the
application of Art IX of the
Genocide Convention is NOT
WITHRAWN by the statement of
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the Minister of Justice of Rwanda

at the 61st session of the United
Nations Commission.
o Under ART. 7, Par. 2 of the
Vienna Convention, the
Head of State, the Head of
Government,
and
the
Minister of Foreign Affairs
are deemed to represent the
State merely by virtue of
exercising their functions,
including
for
the
performance, on behalf of
the said State, of unilateral
acts having the force of
international commitments.
o With increasing frequency
in the modern international
relations, other persons
representing a State in
specific fields may be
authorized by the State to
bind it by their statements
in respect of matters falling
within their purview.
o Although the questions
relating to the protection of
human rights which were
the subject of the statement
fall within the purview of
the
o Minister of Justice, the
Court recalls that statement
of this kind can create legal
obligations only if it is
made in clear and specific
terms (Australia v. France)
o As such, the expression

past reservations not yet
withdrawn refers without
distinction
to
any
reservation
made
by
Rwanda
to
any
international
treaty
to
which it is a party.
o The statement in question
is only a declaration of
intent.
o On jus cogens and erga
omnes:
The
principles
underlying the Genocide
Convention are principles
which are recognized by
civilized nations as binding
on States, even without
conventional
obligation.
The
Court,
however,
observes that the erga
omnes character of a norm
and the rule of consent to
jurisdiction
are
two
different
things.
(East
Timor case)
The Application of the Interim Accord
13 September 1995
[Former
Yugoslav
Republic
Macedonia (FYROM) vs Greece)
of
FACTS:
Before 1991, the Socialist Federal
Republic of Yugoslavia comprised six
constituent republics, including the
55
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Socialist Republic of Macedonia. In

the course of the break-up of
Yugoslavia, the Assembly of the
Socialist
Republic
of
Macedonia
adopted (on 25 January 1991) the
Declaration on the Sovereignty of the
Socialist Republic of Macedonia, which
asserted sovereignty and the right of
self-determination.
the
Applicant
submitted
an
application
for
membership in the United Nations. The
respondent opposed the application as
The Respondent explained that its
opposition was based inter alia on its
view that the term Macedonia
referred to a geographical region in
south-east Europe that included an
important part of the territory and
population of the Respondent and of
certain third States. (according to Atty.
Velasco, mainly because of the historical
significance of the term Macedonia hich
is the place where Alexander The Great
was born.) The Security Council
adopted resolution 817 permitting
applicant to use the name FYROM
pending its application for membership.
The Applicant was admitted to the
United Nations, following the adoption
by the General Assembly but this was
followed by rough relationship between
the applicant and respondent to the
extent of respondent imposing traderelated restrictions. The Parties thus
signed the Interim Accord, providing
for the establishment of diplomatic
relations between them and addressing

other related issues.
to the jurisdictional challenge and its

resolution regarding the merits:
Section 11 of which provides:
JURISDICTION:
RULE: Greece agrees not to object to the

application by or the membership of
FYROM
ART 21 Par 2 provides:
EXCEPT: if applicant uses a name other

than FYROM (in which case Greece now
has a right to object.)
The applicant became a candidate
for membership in NATO which
discussed said candidacy for admission
of applicant in Bucharest Summit
wherein the NATO collectively decided
to defer the proposed admission of
applicant to the organization.
The applicant thus filed a
memorial before the ICJ asking the ICJ
to:
1. establish the violation by the
Respondent of its legal
obligations under Article 11,
paragraph 1, of the Interim
Accord.
2. Compel that the Respondent
to abide by its obligations
under Article 11 of the Interim
Accord.
The ICJ BIFURCATED (new word
we learned from Atty. Velasco ) the
judgment into its resolution with regard
56
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RULE: disputes re interpretation

of Interim Accord shall be brought to
the ICJ
EXCEPT: if it involves the use of
name. (In which case, the court will
have no jurisdiction.)
Applicant: invokes general rule
Respondent: invokes four defenses
1. Exception in Art 21 applies
2. The dispute is attributable to
the NATO as a collective
institution
3. The judgment that ICJ will
render is futile as it will not
affect applicants application
for membership in NATO
4. The ICJ judgment would
interfere in the ongoing
negotiation
between
the
parties
ICJ Judgment:
1. WON the case involves the
exception in Article 21 Par 2
a. No. Issue in art 11 and
issue in art 21 are entirely
different. The former is
about the obligation of
respondent not to object.

The exception in Article 21
is about the use of name.
The present case will not
address the dispute as to
the use of the name
MACEDONIA.
2. WON this dispute is attributable
to the NATO as a collective
institution
a. The memorial is directed
against respondent in
connection to the latters
conduct prior to the
Bucharest Summit. Thus,
NATO is not involved in
the present dispute.
3. WON the judgment that ICJ will
render is futile as it will not affect
applicants
application
for
membership in NATO
a. Yes its true. But that is not
what applicant is asking
for. Applicant is asking
only two things: 1) declare
that respondent violated
Art 11; and 2) compel
respondent to comply
with its obligation not to
object
to
applicants
application
for
membership
in
any
international organization.
Applicant is not asking
from ICJ for help for its
membership in NATO
57
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4. WON the ICJ judgment would

interfere
in
the
ongoing
negotiation between the parties
for the resolution of dispute re
issue
of
use
of
name
MACEDONIA
a. No. ICJ will not resolve the
issue of the use of term
MACEDONIA.
Again,
there are only two things
that applicant is asking
for:
1)
declare
that
respondent violated Art
11;
and
2)
compel
respondent to comply
with its obligation not to
object
to
applicants
application
for
membership
in
any
international organization.
MERITS
1. WON
Respondent
indeed
objected?
a. Yes. Applicant presented
pieces
of
evidence
including aide memoire
and statements of the
Prime
Minister
and
Foreign Minister of Greece
expressing
their
desire/decision to object
to the application for
membership
of
the
applicant.
2. WON such objection is within the

exception mentioned in Art 11
a. To resolve this issue (and
to interpret a treaty in
general), we should look at
the overall object and
purpose of the Interim
Accord as well as the
structure of the treaty.
Structure: some other provisions of the
interim
accord
impose
definite
restrictions such as the prohibition
regarding the use of symbol. If parties
intended to impose an obligation on the
part of the applicant not to use its
constitutional name, they would have
used a more definitive term. They used
the passive voice.
Purpose and Objective of the Interim
Accord:
1. Normalization of the situation
2. To
encourage
continuing
negotiation
3. Provide assurance with regard to
certain circumstances
Based on the foregoing purpose and
objectives, there is nothing which leads
us to conclude that parties intended to
impose new substantial restrictions on
the part of the applicant.
ATTY. VELASCO
agree?
asked
do
you
A: yes. Galing nga nung pagkaresolve

nung issue. Especially that part wherein
58
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the ICJ said we should look at the treaty

in its entirety. Very basic in StatCon.
CASE CONCERNING GABICKOVONAGYMAROS PROJECT
HUNGARY V. SLOVAKIA
Facts:
The Hungarian Peoples Republic
and the Czechoslovak Peoples Republic
entered into what is referred as 1977
Treaty. Said treaty provides for the
construction and operation of a System
of Locks (one at Gabickovo, a
Czechoslovak territory, and one at
Nagymoros, Hungarian territory) as a
joint investment. The system was
designed to attain, as laid down in its
Preamble, to broaden the utilization of
the natural resources of the BratislavaBudapest section of the Danube River
for the development of water resources,
energy, transport, and agriculture.
Moreover,
the
treaty
imposes
obligations upon the parties to maintain
the quality of water.
Also, said treaty provides that the
technical specifications concerning the
system would be included in the Joint
Contractual Plan and that the
construction,
financing
and
management of the works on a joint
basis in which parties should equally
participate.
The schedule of the work had for

its part been fixed in several agreements
between the parties as well as in the
treaty itself; work started in 1978.
However, by virtue of a protocol signed
on October 1983, Hungarys initiative,
the work had to be postponed. And then
by a Protocol signed on February 1989
to accelerate the project, again on
Hungarys initiative. However, as a
result of intense criticism which the
Project had generated in Hungary, the
Hungarian government decided on May
1989 to suspend the works ate
Nagymaros pending the completion of
various studies which the competent
authorities were to finish.
Such
suspension was extended until Hungary
decided to abandon the works at
Nagymaros.
terminating the 1977 Treaty with effect

from May 25, 1992. Note that the
damming of the Danuve river started on
October 1992.
During
the
said
period,
negotiations still took place between the
parties in the hope of coming up with
alternative solutions. One of them, an
alternative
solution
subsequently
known as Variant C included the
construction at Cunovo of an overflow
dam and levee (an embankment built to
prevent the overflow of a river.)
Meanwhile,
discussions
continued
between the two parties but to no avail.
As such, on May 1992, the Hungarian
government
transmitted
to
the
Czechoslovak government a note
verbale (a diplomatic communication in
the 3rd persons and unsigned)
1. State of Necessity
2. Impossibility
of
the
performance of the treaty
3. Occurrence of a fundamental
change of circumstances
4. Material breach of the Treaty
by Czechoslovakia
5. Development of new norms of
international environmental
law
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Issue:
Whether or not the Republic of
Hungary was entitled to suspend and
subsequently abandon the works on
Nagymaros.
In relation, whether or not
Articles 60 to 62 of the Vienna
Convention would apply.
Held:
Hungary
presented
five
arguments in support of the lawfulness
and effectiveness of its notification of
termination. These are:
On Hungarys first defense, the

Court observes that even if a state of
necessity is found to exist, it is not a
ground for the termination of a treaty. It
may only be invoked to exonerate a
State from its responsibility. In the
present case, the Court observes that

there was no such state of necessity on
Hungarys part for the condition of said
peril being grave and imminent was not
present. In order for a state of necessity
to exist, the following conditions must
be present:
1.
It must have been

occasioned
by
an
essential interest of the
State which is the
author of the act
conflicting with one of
its
international
obligations;
2.
The interest must have
been threatened by a
grave and imminent
peril;
3.
The
act
being
challenged must have
been the only means;
4.
The act must not have
seriously impaired an
essential interest of the
State towards which the
obligation existed; and
5.
The State which is the
author of the act must
not have contributed to
the occurrence of the
state of necessity.
According to the Court, the perils
invoked by Hungary were not
sufficiently established nor were they
imminent and that said State had
available to it other means of
responding
to
these
perceived
environmental perils other than the
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suspension and abandonment of the

work.
On Hungarys second defense, it
is necessary to consider Article 61 of the
Vienna Convention.
Article
61:
Supervening
impossibility of performance
1. A party may invoke the
impossibility of performing a treaty as a
ground for terminating or withdrawing
from it if the impossibility results from
the permanent disappearance or
destruction of an object indispensable
for the execution of the treaty. If the
impossibility is temporary, it may be
invoked only as a ground for
suspending the operation of the treaty.
2. Impossibility of performance
may not be invoked by a party as a
ground for terminating, withdrawing
from or suspending the operation of a
treaty if the impossibility is the result of
a breach by that party either of an
obligation under the treaty or of any
other international obligation owed to
any other party to the treaty.
According to the Court, Article 61
of the Vienna Convention cannot be
invoked by Hungary on the ground that
the object of the treaty such as the
Danube River was still existing, that no
such permanent disappearance or
destruction of the treatys object exist.
Also, Hungary may not set impossibility
as a defense for such is the result

Hungarys breach of the treaty which is
expressly prohibited by the Vienna
convention.
invoking it either of an obligation under

the treaty or of any other international
obligation owed to any other party to
the treaty.
On Hungarys third defense,

According to Article 62 of the Vienna
Convention
3. If, under the foregoing paragraphs, a

party may invoke a fundamental change
of circumstances as a ground for
terminating or withdrawing from a
treaty it may also invoke the change as a
ground for suspending the operation of
the treaty.
Fundamental
circumstances
change
of
1.
A
fundamental
change
of
circumstances which has occurred with
regard to those existing at the time of
the conclusion of a treaty, and which
was not foreseen by the parties, may not
be invoked as a ground for terminating
or withdrawing from the treaty unless:
(a) the existence of those
circumstances constituted an essential
basis of the consent of the parties to be
bound by the treaty; and
(b) the effect of the change is
radically to transform the extent of
obligations still to be performed under
the treaty.
2.
A
fundamental
change
of
circumstances may not be invoked as a
ground for terminating or withdrawing
from a treaty:
(a) if the treaty establishes a
boundary; or
(b) if the fundamental change is
the result of a breach by the party
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It is of the Courts view that the

prevalent political conditions invoked
by Hungary were not so closely linked
to the object and purpose of the Treaty
that they constituted an essential basis
of the consent of the parties as such
Article 62 (1) of the Vienna convention
will not apply.
On Hungarys fourth contention,
the States main argument for invoking
a material breach of the Treaty was the
construction and putting into operation
of Variant C. Hungarys decision to
suspend and subsequently abandon the
construction of the works made it
impossible for Czechoslovakia to carry
out the works as initially contemplated
in the 1977 Treaty and as such the latter
had to proceed with a solution.
According to Czechoslovakia, it was the
only possibility remaining to it of
fulfilling not only the purposes of the
treaty but the continuing obligation to
implement it in good faith. More
importantly, the construction of Variant

C started after Hungary notified
Czechoslovakia that it was terminating
the treaty. As such, there was no
material breach of the treaty although
the Court considered such act of
Czechoslovakia
as
an
unlawful
countermeasure.
Article 60 of Vienna Convention
provides,
Termination or suspension of the
operation of a treaty as a consequence of
its breach
1. A material breach of a bilateral treaty
by one of the parties entitles the other to
invoke the breach as a ground for
terminating the treaty or suspending its
operation in whole or in part.
(c) any party other than the defaulting

State to invoke the breach as a ground
for suspending the operation of the
treaty in whole or in part with respect to
itself if the treaty is of such a character
that a material breach of its provisions
by one party radically changes the
position of every party with respect to
the further performance of its
obligations under the treaty.
3. A material breach of a treaty, for the
purposes of this article, consists in:
(a) a repudiation of the treaty not
sanctioned by the present Convention;
or
(b) the violation of a provision essential
to the accomplishment of the object or
purpose of the treaty.
2. A material breach of a multilateral

treaty by one of the parties entitles:
Note: Friends, wala naman tinanong si

sir sa Article nato, pinadictate lang niya.
(a) the other parties by unanimous

agreement to suspend the operation of
the treaty in whole or in part or to
terminate it either:
Lastly, the Court wishes to point

out that newly developed norms of
environmental law are relevant for the
implementation of the Treaty and the
parties could, by agreement, incorporate
them. A treaty is not static, and is open
to adapt to emerging norms of
international law. Considering that the
aim of the parties as reflected in the
treatys preamble is to maintain the
quality of water and protect the
environment. As such, the Court
believes that it is improper to use these
development of new norms of
i) in the relations between

themselves and the defaulting State; or
(ii) as between all the parties;
(b) a party specially affected by the
breach to invoke it as a ground for
suspending the operation of the treaty
in whole or in part in the relations
between itself and the defaulting State;
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international environmental law as a

defense or a ground for Hungarys
termination of the treaty.
In
the
light
of
the
abovementioned conclusions, the Court
finds that the notification of termination
by Hungary did not have the legal effect
of terminating the 1977 treaty and
related instruments.
P.S. Mahaba talaga ang case dahil sa
limang defenses niya. Napagod ako sa
pagrecite nito and napagod din akong
isulat siya. Hahaha. Godbless us all!
THE LAW OF THE SEA
sovereign of the Islands of Palmas. The

critical date is 10 December 1898 (date of
signing of Treaty of Paris)
Contention of the US:

Title by cession: Since the Islands of
Palmas belong to the archipelago of the
Philippines as delimited by the Treaty of
Paris between the US and Spain, the
Islands must belong to the US by reason
of the cession of all rights and properties
of Spain to the US through such treaty.
Spains title to the Islands, which was
founded on discovery of such Islands,
constitutes a valid title. Hence, being
Spains successor, the Islands of Palmas
must belong to the US.
Title by contiguity: By virtue of the
principle of contiguity, since Palmas
forms a geographical part of the
Philippines and is nearer to it, the
Islands must also belong to the power
having sovereignty over the Philippines.
Islands of Palmas (United States v.

Netherlands)
(Laws of the Sea; Contiguity and Treaty
vs. Effective Control)
Facts:
US and Netherlands entered into
a Special Agreement wherein they
submitted themselves to the Permanent
Court of Arbitration at the Hague to
resolve the issue of who is the rightful
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Contention of Netherlands:
Title by effective control: Netherlands,
which was called East India Company
before, have possessed and exercised
rights of sovereignty from 1677 or even
before 1648, to the present day. This
continuous and peaceful display of
sovereignty arose out of conventions
with native princes of the Island of
Sangi (Palmas is part of Sangi) as well as
suzerainty contracts with the different

princes of the islands.
Issue: Whether or not the Islands of
Palmas belong to the US or to
Netherlands, who has effective control
over the Islands and who exercises
actual
sovereignty
over
it.
NETHERLANDS.
Ratio:
As to the United States first
argument (cession): It is a general rule
that No one can transfer a better title in
property than he himself has. Nemo dat
quod non habet. Spain did not validly
acquire title to the Islands of Palmas just
because it has a valid title to the
Philippines. Also, just because the
Islands of Palmas is falling within the
limits traced by the Treaty of Paris,
means that Spain owns the Islands
automatically. Such construction of the
treaty is against the principle in
international
law
being
against
construction disposing rights of third
powers or third-party States. Spains
title to the islands is therefore an
inchoate title, or one that is imperfect,
for failure to exercise acts of sovereignty
over it upon its discovery. Therefore,
cessionary power did not give to the US
those territories on which Spain had no
valid title.
As to the United States second
argument (contiguity): Contiguity has
no foundation in international law. If
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the international community will

recognize this argument, it would lead
to arbitrary results. It also contradicts
the concept of territorial sovereignty,
since this concept recognizes a delimited
space either by natural frontiers or
outward signs of delimitation that are
undisputed or entered into by between
interested neighbors through legal
engagements, frontier conventions or
acts of recognition of States within fixed
boundaries.
As to Netherlands argument
(effective control): If a dispute arises as
to the sovereignty over a portion of
territory, it is customary to examine
which of the States claiming sovereignty
possesses a title (either by cession,
conquest, occupation, etc.) which is
superior to that of the other claimants.
However, if the contestation is based
on the fact that the other party has
actually displayed sovereignty, it
cannot be sufficient to establish title
by which territorial sovereignty was
validly acquired at a certain moment. It
must also be shown that the territorial
sovereignty has continued to exist and
did exist at the moment critical
moment
of
the
dispute.
The
demonstration consists in the actual
display of State activities such as
belongs only to the territorial sovereign.
The arbitrator said that continuous and
peaceful display of sovereignty is as
good as title and that this must prevail
over Spains inchoate title because the
latter never perfected their title to the

Islands although they acquired title to it
by occupation for a long time. Spain also
never contested the acts of sovereignty
of Netherlands in the Islands of Palmas.
A definite title founded on continuous
and peaceful display of sovereignty also
trumps a title of contiguity for the latter
has no foundation in international law.
Netherlands sufficiently showed the
courts that they exercised effective
control even before the critical date (10
December 1898) which gives the a valid
and definite title as against Spain or the
United States.
LEGAL STATUS
GREENLAND
OF
EASTERN
It was about the year 900 A. D.

that Greenland was discovered. The
country was colonized about a century
later and was governed by the
Kingdoms of Norway and Denmark
which were united under the same
Crown in 1380; the character of this
union, which lasted until 1814.
In
1500,
no
colonies
or
settlements existed in Greenland,
contact with it was not entirely lost,
because the waters surrounding it,
especially on the East coast, were
regularly visited by whalers, and the
maps of the period show that the
existence and the general configuration
of Greenland, including the East coast.
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Interest in Greenland arises in

18th century, there were concessions
issued by the King of Demark for the
establishment of trade in Greenland.
Furthermore, the King issued an
Ordinance prohibiting any person,
whether a subject or a foreigner, from
doing business in breach concession in
the colonies already established in
Greenland or to be established
thereafter, provided that the situation
and limits of the colonies. The
Ordinance also prohibited all persons
from robbing the Greenlanders or
committing any acts of violence against
them in any place in Greenland,
whether by land or sea.
In 1813, a war had broken out
between Denmark, on the one hand, and
Sweden and her allies, on the other, the
battle of Leipzig that led to the triumph
of the Allied cause and the Swedish
army compelled Denmark to sign the
Peace Treaty of Kiel, dated January 14th,
1814, the fourth Article of which
provided for the cession to Sweden of
the kingdom of Norway, excluding
however Greenland, the Froe Isles and
Iceland.
In 1919, In a Peace Conference
attended by Denmark and Norway, the
minister of Denmark pointed out that
the Danish Government had been very
anxious for some years past to obtain
the recognition by all the interested
powers of Denmarks Sovereignty over
the whole Greenland to which the

minister for Foreign Affairs of Norway
answered the plans of the (Danish)
Government
respecting
Danish
Soverignty over the whole of Greenland
would meet no difficulties on the part
of Norway.
Later on, Denmark request to the
United States, Britain, France, Italy, and
Japan not to object the extension of its
sovereignty in Greenland, which was
granted by these States. However, when
Demark seeks the recognition of
Norway, the latter refused unless it can
secure their economic rights (hunting
and fishing) in the east coast of
Greenland. After this, negotiations were
conducted until in 1931, where
Norwegian Hunters hoisted a flag in
eastern Greenland claiming that it
became a part of Norway followed by
the declaration of Norway on July 10,
1931 (critical date) that it already
acquired Greenland. As a result,
Denmark filed this case in Permanent
Court of International Justice.
FIRST ISSUE: Whether Norwegian
occupation of part of the East coast of
Greenland is invalid because Denmark
has claimed and exercised sovereign
rights over Greenland as a whole for a
long time and has obtained thereby a
valid title to sovereignty.
A claim to sovereignty based not
upon some particular act or title such as
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a treaty of cession but merely upon

continued display of authority, involves
two elements each of which must be
shown to exist: the intention and will to
act as sovereign, and some actual
exercise or display of such authority.
Such intention and exercise of
such authority can be shown when the
King of Demark granted concessions
and issued orders concerning the
regulation of trade in Greenland. These
orders were not to apply to a specific
colony but extend to the Greenland as a
whole. Legislation is one of the most
obvious forms of the exercise of
sovereign power, and it is clear that the
operation of these enactments was not
restricted to the limits of the colonies.
This instance show that the King of
Demark was in position to grant a valid
monopoly on the East Coast and that his
sovereign right entitled him to do so.
With respect to request for
recognition
of
extension
of
sovereignty, the Court was satisfied
that the aim of Denmark was to secure
an assurance from each of the foreign
governments concerned that it accepted
the Danish point of view that all
Greenland was subject to Danish
Sovereignty and was therefore content
to see an extension of Denmarks
activities to the uncolonized parts of
Greenland.
Second Issue: Whether or not Norway

had given certain undertakings which
recognized Danish sovereignty over all
Greenland. These undertakings have
been fully discussed by the two
Parties, and in three cases the Court
considers that undertakings were
given.
The Court holds that, at the time
of the termination of the Union between
Denmark and Norway (1814 to 1819),
Norway undertook not to dispute
Danish sovereignty over Greenland.
When the King of Denmark was obliged
to renounce, in favour of the King of
Sweden, his kingdom of Norway,
Article 4 of the Treaty of Kiel excepted
from that renunciation Greenland, the
Faroes and Iceland.
A second series of undertakings
by
Norway,
recognizing
Danish
sovereignty over Greenland, is afforded
by
various
bilateral
agreements
concluded by Norway with Denmark,
and by various multilateral agreements
to which both Denmark and Norway
were contracting Parties, in which
Greenland has been described as a
Danish colony or as forming part of
Denmark or in which Denmark has been
allowed to exclude Greenland from the
operation of the agreement. In accepting
these
bilateral
and
multilateral
agreements as binding upon herself,
Norway reaffirmed that she recognized
the whole of Greenland as Danish; and
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thereby she has debarred herself from

contesting Danish sovereignty over the
whole
of
Greenland,
and,
in
consequence, from proceeding to
occupy any part of it.
In addition to the engagements
dealt with above, the Ihlen declaration,
viz. the reply given by M. Ihlen, the
Norwegian Minister for Foreign Affairs,
to the Danish Minister on is also be
considered by the Court.
This declaration by M. Ihlen has
been relied on by Counsel for Denmark
as a recognition of an existing Danish
sovereignty in Greenland. A careful
examination of the words used and of
the circumstances in which they were
used, as well as of the subsequent
developments, shows that M. Ihlens
declaration is unconditional and
definitive. It follows that, as a result of
the undertaking involved in the Ihlen
declaration, Norway is under an
obligation to refrain from contesting
Danish sovereignty over Greenland as a
whole.
NORTH SEA CONTINENTAL SHELF CASES
JUDGMENT OF 20 FEBRUARY 1969
The dispute submitted before the
Court related to the delimitation of the
North Sea Continental Shelf between
Netherlands and the Federal Republic of
Germany on one hand, and between
Denmark and the Federal Republic of
Germany on the other. The Court was

tasked by the parties 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 and the
Netherlands by an agreement of 1
December 1964 and between Federal
Republic and Denmark by an agreement
of 9 June 1965.
The Federal Republic and Denmark
and the Netherlands, respectively, had,
however, been unable to agree on the
prolongation of the partial boundaries
mainly because Denmark and the
Netherlands
had
wished
this
prolongation to be effected on the basis
of the equidistance principle whereas
the Federal Republic had considered
that it would unduly curtail what it
believed should be its proper share of
the Continental Shelf area. Thus, the
Federal Republic has sought acceptance
of the use of the principle of just and
equitable shares.
effect of the equidistance method was to

pull the line of the boundary inwards, in
the direction of the concavity (lines D-E,
B-E.
See
Illustration
below).
Consequently, where two equidistance
lines were drawn, they would, if the
curvature were pronounced, inevitably
meet at a relatively short distance from
the coast, thus "cutting off" the coastal
State from the area of the continental
shelf outside. In contrast, the effect of
convex or outwardly curving coasts,
such as were, to a moderate extent,
those of Denmark and the Netherlands,
was to cause the equidistance lines to
leave the coasts on divergent courses,
thus having a widening tendency on the
area of continental shelf off that coast.
ILLUSTRATION
EQUIDISTANCE PRINCIPLE
A boundary based on the
equidistance
principle,
i.e.,
an
"equidistance line", left to each of the
Parties 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. In the case of a concave or
recessing coast such as that of the
Federal Republic on the North Sea, the
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It had been contended on behalf

of Denmark and the Netherlands that
the whole matter was governed by a
mandatory rule of law which, reflecting
the language of Article 61 of the Geneva

Convention on the Continental Shelf of
29 April 1958, was designated by them
as
the
"equidistance-special
circumstances" rule. That rule was to the
effect that in the absence of agreement
by the parties to employ another
method, all continental shelf boundaries
had to be drawn by means of an
equidistance
line
unless
"special
circumstances" were recognized to exist.
The Federal Republic, for its part,
had contended that the correct rule, at
any rate in such circumstances as those
of the North Sea, was one according to
which each of the States concerned
should have a "just and equitable share"
of the available continental shelf, in
proportion to the length of its seafrontage. It had also contended that in a
sea shaped as is the North Sea, each of
the States concerned was entitled to a
continental shelf area extending up to
the central point of that sea, or at least
extending to its median line.
1958 GENEVA CONVENTION ON
THE CONTINENTAL SHELF NOT
Article 6 1958 Geneva Convention on the Continental Shelf

1. Where the same continental shelf is adjacent to the territories of
two or more States whose coasts are opposite each other, the
boundary of the
continental shelf appertaining to such States shall be determined by
agreement between them. In the absence of agreement, and unless
another
boundary line is justified by special circumstances, the boundary is
the median line, every point of which is equidistant from the nearest
points of
the baselines from which the breadth of the territorial sea of each
State is measured.
2. Where the same continental shelf is adjacent to the territories of
two adjacent States, the boundary of the continental shelf shall be
determined
by agreement between them. In the absence of agreement, and
unless another boundary line is justified by special circumstances, the
boundary shall be determined by application of the principle of
equidistance from the nearest points of the baselines from which the
breadth of the territorial sea of
each State is measured.
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BINDING FOR TO THE PARTIES IN

THE CASE
1. Federal Republic of Germany,
although a signatory, did not ratify the
convention
Under the formal provisions of
the Convention, it was in force for any
individual State that had signed it
within the time-limit provided, only if
that State had also subsequently ratified
it. Denmark and the Netherlands had
both signed and ratified the Convention
and were parties to it, but the Federal
Republic, although one of the
signatories of the Convention, had never
ratified it, and was consequently not a
party.
2. The conduct, public statements and
proclamations of Republic did not
amount to the acceptance of the
Convention
It was admitted on behalf of
Denmark and the Netherlands that in
the circumstances the Convention could
not, as such, be binding on the Federal
Republic. But it was contended that the
rgime of Article 6 of the Convention
had become binding on the Federal
Republic, because, by conduct, by public
statements and proclamations, and in
other ways, the Republic had assumed
the obligations of the Convention. It was
clear that only a very definite, very
consistent course of conduct on the part
of a State in the situation of the Federal
Republic could justify upholding those
contentions. When a number of States
drew up a convention specifically
providing for a particular method by
which the intention to become bound by

the rgime of the convention was to be
manifested, it was not lightly to be
presumed that a State which had not
carried out those formalities had
nevertheless somehow become bound in
another way. Furthermore, had the
Federal Republic ratified the Geneva
Convention, it could have entered a
reservation to Article 6, by reason of the
faculty to do so conferred by Article 12
of the Convention.
EQUIDISTANCE PRINCIPLE: NOT A
RULE
OF
CUSTOMARY
INTERNATIONAL LAW
Rejecting the contentions of
Denmark and the Netherlands, the
Court considered that the principle of
equidistance, as it figured in Article 6 of
the Geneva Convention, had not been
proposed by the International Law
Commission as an emerging rule of
customary international law. This
Article could not be said to have
reflected or crystallized such a rule. This
was confirmed by the fact that any State
might make reservations in respect of
Article 6, unlike Articles 1, 2 and 3, on
signing, ratifying or acceding to the
Convention.
While
certain
other
provisions of the Convention, although
relating to matters that lay within the
field of received customary law, were
also not excluded from the faculty of
reservation, they all related to rules of
general maritime law very considerably
antedating the Convention which were
only incidental to continental shelf
rights as such, and had been mentioned
in the Convention simply to ensure that
they were not prejudiced by the exercise
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of continental shelf rights. Article 6,

however, related directly to continental
shelf rights as such, and since it was not
excluded from the faculty of reservation,
it was a legitimate inference that it was
not considered to reflect emergent
customary law.
1. Not of a norm-creating character
It had been argued on behalf of
Denmark and the Netherlands that even
if at the date of the Geneva Convention
no rule of customary international law
existed in favor of the equidistance
principle, such a rule had nevertheless
come into being since the Convention,
partly because of its own impact, and
partly on the basis of subsequent State
practice. In order for this process to
occur it was necessary that Article 6 of
the Convention should, at all events
potentially, be of a norm-creating
character. Article 6 was so framed,
however, as to put the obligation to
make use of the equidistance method
after a primary obligation to effect
delimitation
by
agreement.
Furthermore, the part played by the
notion of special circumstances in
relation to the principle of equidistance,
the controversies as to the exact
meaning and scope of that notion, and
the faculty of making reservations to
Article 6 must all raise doubts as to the
potentially norm-creating character of
that Article. Furthermore, while a very
widespread
and
representative
participation in a convention might
show that a conventional rule had
become a general rule of international
law, in the present case the number of
ratifications and accessions so far was

hardly
sufficient.
The
Court
consequently concluded that the Geneva
Convention was not in its origins or
inception declaratory of a mandatory
rule of customary international law
enjoining the use of the equidistance
principle, its subsequent effect had not
been constitutive of such a rule, and
State practice up to date had equally
been insufficient for the purpose.
THE PRINCIPLES AND RULES OF
INTERNATIONAL
LAW
APPLICABLE
The legal situation was that the
Parties were under no obligation to
apply the equidistance principle either
under the 1958 Convention or as a rule
of general or customary international
law. It remained for the Court, however,
to indicate to the Parties the principles
and rules of law in the light of which
delimitation was to be effected.
The basic principles in the matter
of delimitation, deriving from the
Truman Proclamation, were that it must
be the object of agreement between the
States concerned and that such
agreement must be arrived at in
accordance with equitable principles.
This obligation was merely a special
application of a principle underlying all
international relations, which was
moreover recognized in Article 33 of the
Charter of the United Nations as one of
the methods for the peaceful settlement
of international disputes.
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The Parties were under an

obligation to act in such a way that in
the particular case, and taking all the
circumstances into account, equitable
principles were applied.
It was precisely a rule of law that
called for the application of equitable
principles, and in such cases as the
present ones the equidistance method
could unquestionably lead to inequity.
Other methods existed and might be
employed, alone or in combination,
according to the areas involved.
Although
the
Parties
intended
themselves to apply the principles and
rules laid down by the Court some
indication was called for of the possible
ways in which they might apply them.
For all the foregoing reasons, the Court
found in each case that:
1. The use of the equidistance method of
delimitation was not obligatory as
between the Parties;
2. The no other single method of
delimitation was in all circumstances
obligatory;
3. 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
4. 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
rgime of joint jurisdiction, user, or
exploitation.
In the course of negotiations, the factors
to be taken into account were to include:
1. The general configuration of the
coasts of the Parties, as well as the
presence of any special or unusual
features;
2. So far as known or readily
ascertainable,
the
physical
and
geological
structure
and
natural
resources of the continental shelf areas
involved; and
3. The element of a reasonable degree
of 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.
Romania
vs
Delimitation
Ukraine
PROCEDURE
FOR
DECLARATION
Maritime
MARITIME
1. Factual Background
- Pursuant to the Treaty on the Relations
of Good Neighbourliness and Cooperation between Romania and
Ukraine signed in 1997, a State Border
Treaty was made providing for the
maritime delimitation of the two
countries . However, no delimitation
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was made with respect to the EEZ and

the continental shelf. This is the subject
of the present action filed by Romania
against Ukraine to finally determine the
maritime delimitation of their own
respective EEZs and continental shelves.
MAIN ISSUE: HOW TO DELIMIT
MARITIME BOUNDARIES
2. Jurisdiction
-The Parties are in agreement that all the
conditions for the Courts jurisdiction
were
satisfied at the time of the filing of the
Application and that the Court
accordingly has
jurisdiction to decide the case. However,
they differ as to the exact scope of the
jurisdiction
conferred upon the Court. The court
ruled that it has no jurisdiction to
delimit the territorial seas of the Parties.
Its jurisdiction covers the delimitation of
their continental shelf and the exclusive
economic zones. However, contrary to
what has been suggested by Ukraine,
nothing hinders that jurisdiction from
being exercised so that a segment of the
line may result in a delimitation
between, on the one hand, the exclusive
economic zone and the continental shelf
of one State, and, on the other hand, the
territorial sea of the other State at its
seaward limit.
3. Process of Maritime Delimitation

under the UNCLOS
-Since the States are parties to the
convention, the procedure of maritime
delimitation provided by the UNCLOS
shall govern.
A) Relevant Coast
-determined to be able to draw the
baseline for the equidistance line
B) Relevant Maritime Area
to
Procedure Proper
1) Single Delimitation Line
-methods
that
are
geometrically
objective and also appropriate for the
geography of the area in which the
delimitation is to take place. For
adjacent coasts, the line is called the
equidistance
line, for opposite coasts the line is
called the median line. Equidistance
and median lines are to be constructed
from the most appropriate points on the
coasts of the two States concerned, with
particular attention being paid to those
protuberant coastal points situated
nearest to the area to the delimited.
- principally determined by the
agreement of the parties subject to
73
2S 2012-2013
Sub-issue: On the part of Ukraine,

Whether Sulina Dyke( a man-made
structure) may be a base point.
On the part of Romania, Whether
Serpent Island may be a base point.
Factors to be determined:
-the relevant area is pertinent

checking disproportionality
dispute resolution by the court if there

be any.
Holding: Sulina Dyke not

considered as permanent harbour
workstherefore capable of being a
base point. For a structure to be
considered as such, it must directly
serve port activities. The Sulina Dyke
only serves to protect the ships from the
hazards of the sea while it docks there.
It
serves no other purpose
For Serpent Island, lying
alone and some 20 nautical miles away
from the mainland, is not one of a
cluster of fringe islands constituting
the coast of Ukraine. Moreover, and
EEZ or Continental shelf that it may
provide is already covered by the coast
of Ukraine.
2) Relevant Circumstances
-whether there are factors calling for the
adjustment or shifting of that line in
order to achieve an equitable result.
Sub-Issue: On the part of Ukraine, it
advances that there is:
a) Disproportionality
-Generally, no role in identifying the

delimitation
line.
Except
where
disparities in the lengths of coasts are
particularly marked. In this case, no
such particularly marked disparities
between the relevant coasts of Ukraine
and Romania. A part of the coast of
Ukraine was taken out in determining
the relevant coast.
- Line provides for a maritime

settlement in a reasonable and mutually
balanced way.
b) The Enclosed Nature of the Black Sea
3) THE DISPROPORTIONALITY
TEST
- to check that the result thus far
arrived at, so far as the envisaged
delimitation line is concerned, does not
lead
to
any
signicant
disproportionality by reference to the
respective
coastal lengths and the
apportionment of areas that ensue.
-court already took notice of the existing

delimitation agreements between third
party states and incorporated the same
in determining the present delimitation
line
c) Presence of Serpent Island
- EEZ or Continental shelf that it may
provide is already covered by the coast
of Ukraine.
d) The Conduct of the Parties
- no agreement in force between the
Parties delimiting the continental shelf
and the exclusive economic zones of the
Parties. Moreover, no evidence has been
submitted to it by Ukraine that any
delimitation line other than that claimed
by it would be likely to entail
catastrophic repercussions for the
livelihood and economic well-being of
the population
e) Any Cutting Off Effect
74
2S 2012-2013
f)Security Considerations
- The provisional equidistance line
determined by the Court fully respects
the legitimate security interests of either
Party.
it is disproportion rather than

any general principle of
proportionality which is the
relevant criterion or factor
This checking can only be
approximate
It sufces for this third stage
for the Court to note that the
ratio of the respective coastal
lengths for Romania and
Ukraine,
measured
as
described
above,
is
approximately 1:2.8 and the
ratio of the relevant area
between
Romania
and
Ukraine is approximately
1:2.1.The Court is not of the
view that this suggests that

the line as constructed, and
checked carefully for any
relevant circumstances that
might
have
warranted
adjustment,
requires
any
alteration.
FINAL
HOLDING:
THE
DELIMITATION LINE PROVIDED
BY
THE
COURT
SHALL
BE
PRESERVED.
BANGLADESH VS. MYANMAR

The arbitral case instituted by the
government of Bangladesh against
Myanmar is an extensive application of
Romania vs. Ukraine. The maritime area
to be delimited in the present case lies in
the northeastern part of the Bay of
Bengal. This bay is situated in the
northeastern Indian Ocean, covering an
area of approximately 2.2 million square
kilometers and is bordered by Sri Lanka,
India, Bangladesh and Myanmar.
Bangladesh Delegation and the Burmese

Delegation regarding the Delimitation
of the Maritime Boundary between the
Two Countries one in 1974, the other
in 2008.
B. Territorial Sea
The issue here is whether the
Parties have in fact delimited their
territorial sea, either by signing the
Agreed Minutes of 1974 and 2008 or by
tacit agreement. The Tribunal also
looked on to the possibility of a creation
of a situation of estoppel.
Here are the arguments and
contra-arguments of the parties:
BANGLADESH
MYANMAR
The 1974 Agreed

Minutes
were
intended to be and
are valid, binding
and effective. It
constitutes
an
agreement within
the meaning of
Article 15 of the
Convention.
Myanmar denies
the existence of
such agreement,
claiming that it
was merely an
understanding
reached
at
a
certain stage of
the technical-level
talks as part of the
ongoing
negotiations.
Bangladesh
contends that the
Burmese delegation
who signed the
1974
Agreed
Myanmar claims
that the Agreed
Minutes
was
limited to the
delegations only
A. History
Prior to the institution of these
proceedings, negotiations on the
delimitation of the maritime boundary
were held between Bangladesh and
Myanmar. The two countries signed the
Agreed
Minutes
between
the
75
2S 2012-2013
Minutes was the

appropriate official
to negotiate with.
Although signed by
a delegate, it was
confirmed by the
state.
and does not

legally bind the
state. Moreover, it
was
only
Commodore
Hlaing, a naval
officer,
who
represented
Myanmar. He was
not one of those
high-ranking
officials referred
to by the Vienna
Convention
The Minutes is
binding because the
parties agreed on a
boundary even in
simplified
form
citing Cameroon vs.
Nigeria: Equatorial
Guinea intervening.
It argues that the

minutes
only
cover the first
sector
of
the
maritime
boundary
and
that more sectors
must
be
negotiated before
a final agreement
is reached.
Citing, Qatar vs.

Bahrain,
nonregistration or late
registration
does
not
have
any
consequence for the
actual validity of
the
agreement
which remains no
less binding upon
Myanmar argues
that both 1974
and 2008 minutes
were
not
registered
with
the UN Secretary
General.
76
2S 2012-2013
the parties.
The Tribunals decision favored

Myanmar. The main basis of the ruling
is the lack of authority of the Burmese
delegation according to Article 7 par. 2
of the Vienna convention. Also, the fact
that the parties did not submit the 1974
Agreed Minutes to the procedure
required
by
their
respective
constitutions for binding international
agreements is an additional indication
that the Minutes were not intended to
be legally binding. From the beginning,
it was clear that Myanmar does not
intend to create a separate agreement on
the territorial seas but a comprehensive
agreement including the continental
shelf and the exclusive economic zone.
As to the issue of estoppels, there
is no evidence that Myanmars conduct
caused Bangladesh to change its
position to its detriment or suffer some
prejudice in reliance on such conduct.
Thus, estoppel cannot be upheld.
Having nullified the efficacy of
the Agreed Minutes, the Tribunal is now
ready to delimit
the
maritime
boundaries of the two parties.
C.
Delimitation
Boundaries
1. Territorial Sea
of
Maritime
The first step to be considered is

the selection of base points from which
the delimitation line will be drawn. The
Parties used base points on the lowwater line of their coasts. The Parties
initially agreed on the initial base points
but disagree in giving effect to the
equidistant line as regards St. Martins
Island.
equidistance line up to the point beyond

which the territorial seas of the parties
no
longer
overlap.
Bangladeshs
sovereignty over its territorial sea
surrounding St. Martins Island (its
territory) is supreme to Myanmars EEZ
and continental shelf.
TRIBUNALS DECISION
MYANMAR AND BANGLADESH

PROPOSED DELIMITATION LINE
2. Continental Shelf and Exclusive

Economic Zone
The Tribunal accepted point 2A
of Bangladesh. And having concluded
that full effect should be given to St.
Martins Island (*only as to territorial
sea, not to the continental shelf and
EEZ), the Tribunal concluded that the
delimitation
should
follow
an
77
2S 2012-2013
After determining and settling

the relevant coasts, the Tribunal decided
on the method to be applied to the
delimitation of the EEZ and the
continental shelf. The Parties are on
opposite sides as to the method to be

used.
BANGLADESHS
ANGLEBISECTOR
METHOD
MYANMARS
EQUIDISTANCE
METHOD
The equidistance
line is inequitable
and can produce
results that appear
to
be
extraordinary,
unnatural
and
unreasonable.
The equidistance
method has an
intrinsic
value
because
of
its
scientific character
and the relative
ease with which it
can be applied.
The equidistance
method,
though
popular is not a
rule of law of
universal
application.
No circumstance
renders unfeasible
the use of the
equidistance
method.
The concavity of
Bangladeshs coast
is
among
the
recognized
situations
where
equidistance
produces irrational
results.
The
ICJ
still
applied
this
method
even
though it yielded
disproportionate
results due to
concave or convex
coasts
citing
Libyan
Arab
Jamahiriya/Malta
The application of
the
equidistance
method
would
prevent
None
of
the
reasons cited by
Bangladesh
is
sufficient
to
78
2S 2012-2013
Bangladesh from warrant

a
exhausting
its departure from the
equidistance
200nm limit.
method.
The Tribunal decided that the use

of equidistance alone could not ensure
an equitable solution in each and every
case. The Tribunal adopted the ruling in
the Black Sea Case as to the three-stage
methodology.
a. Establish
a
provisional
equidistance line using methods
that are geometrically objective
and appropriate to the areas
geography.
Since Bangladesh did not establish any
base points, the Tribunal turned its
attention to the base points of Myanmar.
However, applying the Black Sea case, it
established its own base points. It also
excluded St. Martins Island as a base
point for this would result to a judicial
refashioning of geography.
In consideration of the base points on
the relevant coasts, the Tribunal
established line T as the provisional
delimitation line for the state parties.

Bangladesh and between two
its
neighbors states
together
produces
a
cut-off effect,
an
adjustment
may
be
made.
The
Tribunal
noted that a
cut-off effect
is manifest in
this
case
requiring an
adjustment of
the line.
b. Ascertain whether there are

factors
calling
for
the
adjustment or shifting of the
provisional equidistance line.
BANGLADESH
S
PROPOSED
THREE
RELEVANT
CIRCUMSTANC
ES
1. Concavity and
Cut-off Effect
The
concave
coasts
of
Bangladesh will
push the two
equidistance lines
between
79
2S 2012-2013
TRIBUNAL
S DECISION
Concavity
per se is not a
relevant
circumstance.
However,
when
an
equidistance
line
drawn
2. St. Martins
Island
It is one of the
most important
geographical
features in the
present case and
to ignore this
would lead to
inequitable
results.
To consider
the island as
a
relevant
circumstance
would result
in
a
line
blocking the
seaward
projection
from
Myanmars
coast in a
manner that
would cause
a distortion
of the line.
Thus
the
island
is
irrelevant.
3.
Bengal
Depositional
System
The
physical,
geological
and
geomorphologica
l
connection
between
Bangladeshs
land mass and
the Bay of Bengal
is so clear, so
direct and so
pertinent
that
adopting
a
boundary in the
area
within
200nm would cut
off Bangladesh.

The location
and direction
of the single
maritime
boundary
applicable
both to the
seabed and
subsoil are to
be
determined
on the basis
of geography
of the parties
coasts not on
the geologicy
and
geomorpholo
gy of the
seabed of the
delimitation
area.
ADJUSTED DELIMITATION LINE

(RELEVANT
CIRCUMSTANCE
CONSIDERED)
c. Verify that the delimitation line

did not lead to an inequitable
result by reason of any marked
disproportion
between
the
ration of the respective coastal
lengths and the ratio between
the relevant maritime areas of
each State.
The ratio of the relevant coasts of the
parties are 1:1.42 in favor of Myanmar.
The area after the delimitation yielded a
ratio of 1:1.54 in favor of Myanmar. The
Tribunal concluded that the disparity
between the ratios is not enough to
contend that the delimitation is
disproportionate.
3. AREA BEYOND 200NM
The Tribunal concluded that it
had jurisdiction to settle the boundaries
80
2S 2012-2013
beyond the 200 nm limit so long as no

third party rights are prejudiced. The
Tribunal found that even beyond the
200nm there are still overlapping
entitlements between the Parties.
However, after delimitation of this area,
a grey area was created which is located
beyond 200nm from the coast of
Bangladesh but within 200nm from the
coast of Myanmar yet on the Bangladesh
side of the delimitation line. This
occurred because of the adjustments of
the equidistance line used for the
delimitation of the continental shelf
which went beyond 200nm off
Bangladesh coast and continues until it
reaches 200nm off Myanmar coast. In
this area, the Tribunal refrained from
exercising its jurisdiction and left the
matter to the parties for them to
determine measures they consider
appropriate for this purpose.
GREY AREA
That in all things, God may be glorified.
81
2S 2012-2013

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