EN BANC
Philippines ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF.
HARRY C. ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
STUDENTS, ALITHEA BARBARA ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ,
FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR BARRACA, JOSE JAVIER
BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN MARRI
CAETE, VANN ALLEN DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN,
SHARON ESCOTO, RODRIGO FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER,
CARLA REGINA GREPO, ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY ANN JOY
LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO,
JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT
REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN
RIVERO, DIANNE MARIE ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS,
CRISTINE MAE TABING, VANESSA ANNE TORNO, MARIA ESTER VANGUARDIA, and
MARCELINO VELOSO III, Petitioners,
- versus -
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS,
HON. ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS
ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE INFORMATION
AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF
THE PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED
NATIONS,
Respondents. July 16, 2011
x -----------------------------------------------------------------------------------------x
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality
of Republic Act No. 95221 (RA 9522) adjusting the countrys archipelagic baselines and
classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime
baselines of the Philippines as an archipelagic State.3 This law followed the framing of
the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS
I),4codifying, among others, the sovereign right of States parties over their territorial
sea, the breadth of which, however, was left undetermined. Attempts to fill this void
during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile.
Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for
legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical
errors and reserving the drawing of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under
scrutiny. The change was prompted by the need to make RA 3046 compliant with the
terms of the United Nations Convention on the Law of the Sea (UNCLOS III),5 which the
water-land ratio, length, and contour of baselines of archipelagic States like the
Philippines7 and sets the deadline for the filing of application for the extended
continental shelf.8 Complying with these requirements, RA 9522 shortened one
baseline, optimized the location of some basepoints around the Philippine archipelago
and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the
Scarborough Shoal, as regimes of islands whose islands generate their own applicable
maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective capacities
as citizens, taxpayers or x x x legislators,9 as the case may be, assail the constitutionality
of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime
territory, and logically, the reach of the Philippine states sovereign power, in violation of
Article 1 of the 1987 Constitution,10 embodying the terms of the Treaty of Paris11 and
ancillary treaties,12and (2) RA 9522 opens the countrys waters landward of the baselines
to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and
national security, contravening the countrys nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional provisions. 13
In addition, petitioners contend that RA 9522s treatment of the KIG as regime of islands
not only results in the loss of a large maritime area but also prejudices the livelihood of
subsistence fishermen.14 To buttress their argument of territorial diminution, petitioners
facially attack RA 9522 for what it excluded and included its failure to reference either
the Treaty of Paris or Sabah and its use of UNCLOS IIIs framework of regime of islands to
determine the maritime zones of the KIG and the Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning (1)
the petitions compliance with the case or controversy requirement for judicial review
grounded on petitioners alleged lack of locus standi and (2) the propriety of the writs of
certiorari and prohibition to assail the constitutionality of RA 9522. On the merits,
respondents defended RA 9522 as the countrys compliance with the terms of UNCLOS
III, preserving Philippine territory over the KIG or Scarborough Shoal. Respondents add
that RA 9522 does not undermine the countrys security, environment and economic
interests or relinquish the Philippines claim over Sabah.
Respondents also question the normative force, under international law, of petitioners
assertion that what Spain ceded to the United States under the Treaty of Paris were the
islands and all the waters found within the boundaries of the rectangular area drawn
under the Treaty of Paris.
We left unacted petitioners prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Preliminarily
1
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to assail the
constitutionality of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this
suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to test
the constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522
unconstitutional.
On the Threshold Issues
Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and
taxpayers because the petition alleges neither infringement of legislative
prerogative15 nor misuse of public funds,16 occasioned by the passage and
implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as
citizens with constitutionally sufficient interest in the resolution of the merits of the
case which undoubtedly raises issues of national significance necessitating urgent
resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult
to find other litigants possessing a more direct and specific interest to bring the suit,
thus satisfying one of the requirements for granting citizenship standing.17
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary grounds, respondents seek a
strict observance of the offices of the writs of certiorari and prohibition, noting that the
writs cannot issue absent any showing of grave abuse of discretion in the exercise of
judicial, quasi-judicial or ministerial powers on the part of respondents and resulting
prejudice on the part of petitioners.18
Respondents submission holds true in ordinary civil proceedings. When this Court
exercises its constitutional power of judicial review, however, we have, by tradition,
viewed the writs of certiorari and prohibition as proper remedial vehicles to test the
constitutionality of statutes,19 and indeed, of acts of other branches of
government.20 Issues of constitutional import are sometimes crafted out of statutes
which, while having no bearing on the personal interests of the petitioners, carry such
relevance in the life of this nation that the Court inevitably finds itself constrained to
take cognizance of the case and pass upon the issues raised, non-compliance with the
letter of procedural rules notwithstanding. The statute sought to be reviewed here is
one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 dismembers a large portion of the national
territory21because it discards the pre-UNCLOS III demarcation of Philippine territory
under the Treaty of Paris and related treaties, successively encoded in the definition of
national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize
that this constitutional definition trumps any treaty or statutory provision denying the
Philippines sovereign control over waters, beyond the territorial sea recognized at the
time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners
argue that from the Treaty of Paris technical description, Philippine sovereignty over
territorial waters extends hundreds of nautical miles around the Philippine archipelago,
embracing the rectangular area delineated in the Treaty of Paris.
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral
treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial
waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from
the baselines], exclusive economic zone [200 nautical miles from the baselines]), and
continental shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of
decades-long negotiations among United Nations members to codify norms regulating
the conduct of States in the worlds oceans and submarine areas, recognizing coastal and
archipelagic States graduated authority over a limited span of waters and submarine
lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States
parties to mark-out specific basepoints along their coasts from which baselines are
drawn, either straight or contoured, to serve as geographic starting points to measure
the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on
archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf. The breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf shall be
measured from archipelagic baselines drawn in accordance with article 47. (Emphasis
supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties
to delimit with precision the extent of their maritime zones and continental shelves. In
turn, this gives notice to the rest of the international community of the scope of the
2
maritime space and submarine areas within which States parties exercise treaty-based
rights, namely, the exercise of sovereignty over territorial waters (Article 2), the Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters
jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by
contiguous zone (Article 33), and the right to exploit the living and non-living resources optimizing the location of basepoints, increased the Philippines total maritime space
in the exclusive economic zone (Article 56) and continental shelf (Article 77). (covering its internal waters, territorial sea and exclusive economic zone) by 145,216
square nautical miles, as shown in the table below:29
Even under petitioners theory that the Philippine territory embraces the islands and all
the waters within the rectangular area delimited in the Treaty of Paris, the baselines of Extent of maritime area using RA Extent of maritime area
the Philippines would still have to be drawn in accordance with RA 9522 because this is 3046, as amended, taking into using RA 9522, taking into
the only way to draw the baselines in conformity with UNCLOS III. The baselines cannot account the Treaty of Paris account UNCLOS III (in
be drawn from the boundaries or other portions of the rectangular area delineated in delimitation (in square nautical miles) square nautical miles)
the Treaty of Paris, but from the outermost islands and drying reefs of the archipelago.24
Internal or
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement archipelagic 166,858 171,435
or, as petitioners claim, diminution of territory. Under traditional international law waters
typology, States acquire (or conversely, lose) territory through occupation, accretion,
cession and prescription,25 not by executing multilateral treaties on the regulations of
sea-use rights or enacting statutes to comply with the treatys terms to delimit maritime Territorial Sea 274,136 32,106
zones and continental shelves. Territorial claims to land features are outside UNCLOS III,
and are instead governed by the rules on general international law.26
Exclusive
RA 9522s Use of the Framework Economic 382,669
of Regime of Islands to Determine the Zone
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent TOTAL 440,994 586,210
with the Philippines Claim of Sovereignty
Over these Areas
Thus, as the map below shows, the reach of the exclusive economic zone drawn under
RA 9522 even extends way beyond the waters covered by the rectangular demarcation
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to under the Treaty of Paris. Of course, where there are overlapping exclusive economic
draw the baselines, and to measure the breadth of the applicable maritime zones of the zones of opposite or adjacent States, there will have to be a delineation of maritime
KIG, weakens our territorial claim over that area.27 Petitioners add that the KIGs (and boundaries in accordance with UNCLOS III.30
Scarborough Shoals) exclusion from the Philippine archipelagic baselines results in the
loss of about 15,000 square nautical miles of territorial waters, prejudicing the Further, petitioners argument that the KIG now lies outside Philippine territory because
livelihood of subsistence fishermen.28 A comparison of the configuration of the the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself.
baselines drawn under RA 3046 and RA 9522 and the extent of maritime space Section 2 of the law commits to text the Philippines continued claim of sovereignty and
encompassed by each law, coupled with a reading of the text of RA 9522 and its jurisdiction over the KIG and the Scarborough Shoal:
congressional deliberations, vis--vis the Philippines obligations under UNCLOS III, belie
this view. SEC. 2. The baselines in the following areas over which the Philippines likewise
exercises sovereignty and jurisdiction shall be determined as Regime of Islands under
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA the Republic of the Philippines consistent with Article 121 of the United Nations
9522 merely followed the basepoints mapped by RA 3046, save for at least nine Convention on the Law of the Sea (UNCLOS):
basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
length of one baseline (and thus comply with UNCLOS IIIs limitation on the maximum b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough
Shoal lie outside of the baselines drawn around the Philippine archipelago. This
undeniable cartographic fact takes the wind out of petitioners argument branding RA Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the
9522 as a statutory renunciation of the Philippines claim over the KIG, assuming that Philippine archipelago, adverse legal effects would have ensued. The Philippines would
baselines are relevant for this purpose. have committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS
3
III requires that [t]he drawing of such baselines shall not depart to any appreciable
extent from the general configuration of the archipelago. Second, Article 47 (2) of
UNCLOS III requires that the length of the baselines shall not exceed 100 nautical miles,
save for three per cent (3%) of the total number of baselines which can reach up to 125
nautical miles.31
Although the Philippines has consistently claimed sovereignty over the KIG32 and the
Scarborough Shoal for several decades, these outlying areas are located at an
appreciable distance from the nearest shoreline of the Philippine archipelago, 33 such
that any straight baseline loped around them from the nearest basepoint will inevitably
depart to an appreciable extent from the general configuration of the archipelago.
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took
pains to emphasize the foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys
and the Scarborough Shoal are outside our archipelagic baseline because if we put them
inside our baselines we might be accused of violating the provision of international law
which states: The drawing of such baseline shall not depart to any appreciable extent
from the general configuration of the archipelago. So sa loob ng ating baseline, dapat
magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin
masasabing malapit sila sa atin although we are still allowed by international law to
claim them as our own.
This is called contested islands outside our configuration. We see that our archipelago is
defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo
ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa
ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya
kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong
dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United
Nations because of the rule that it should follow the natural configuration of the
archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits. The
need to shorten this baseline, and in addition, to optimize the location of basepoints
using current maps, became imperative as discussed by respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines to draw
the outer limits of its maritime zones including the extended continental shelf in the
manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by
R.A. 5446, the baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to
Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed
under Article 47(2) of the [UNCLOS III], which states that The length of such baselines
shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of
baselines enclosing any archipelago may exceed that length, up to a maximum length of
125 nautical miles.
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or
deleted from the baselines system. This will enclose an additional 2,195 nautical miles of
water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established
by geodetic survey methods. Accordingly, some of the points, particularly along the
west coasts of Luzon down to Palawan were later found to be located either inland or
on water, not on low-water line and drying reefs as prescribed by Article 47.35
Hence, far from surrendering the Philippines claim over the KIG and the Scarborough
Shoal, Congress decision to classify the KIG and the Scarborough Shoal as Regime[s] of
Islands under the Republic of the Philippines consistent with Article 12136 of UNCLOS III
manifests the Philippine States responsible observance of its pacta sunt
servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any naturally
formed area of land, surrounded by water, which is above water at high tide, such as
portions of the KIG, qualifies under the category of regime of islands, whose islands
generate their own applicable maritime zones.
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize the
Philippines claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446,
which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of the
baselines of the territorial sea around the territory of Sabah, situated in North Borneo,
over which the Republic of the Philippines has acquired dominion and sovereignty.
(Emphasis supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitutions
Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that the law
unconstitutionally converts internal waters into archipelagic waters, hence subjecting
these waters to the right of innocent and sea lanes passage under UNCLOS III, including
overflight. Petitioners extrapolate that these passage rights indubitably expose
Philippine internal waters to nuclear and maritime pollution hazards, in violation of the
Constitution.38
Whether referred to as Philippine internal waters under Article I of the Constitution39 or
as archipelagic waters under UNCLOS III (Article 49 [1]), the Philippines exercises
sovereignty over the body of water lying landward of the baselines, including the air
space over it and the submarine areas underneath. UNCLOS III affirms this:
4
Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters
and of their bed and subsoil.
1. The sovereignty of an archipelagic State extends to the waters enclosed by the
archipelagic baselines drawn in accordance with article 47, described as archipelagic
waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well as
to their bed and subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall not in other
respects affect the status of the archipelagic waters, including the sea lanes,or the
exercise by the archipelagic State of its sovereignty over such waters and their air
space, bed and subsoil, and the resources contained therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation, consistent with the international law principle of
freedom of navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate innocent and
sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes passage are
now pending in Congress.41
In the absence of municipal legislation, international law norms, now codified in
UNCLOS III, operate to grant innocent passage rights over the territorial sea or
archipelagic waters, subject to the treatys limitations and conditions for their
exercise.42 Significantly, the right of innocent passage is a customary international
law,43 thus automatically incorporated in the corpus of Philippine law.44 No modern
State can validly invoke its sovereignty to absolutely forbid innocent passage that is
exercised in accordance with customary international law without risking retaliatory
measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the
right of innocent passage and sea lanes passage45 does not place them in lesser
footing vis--vis continental coastal States which are subject, in their territorial sea, to the
right of innocent passage and the right of transit passage through international straits.
The imposition of these passage rights through archipelagic waters under UNCLOS III
was a concession by archipelagic States, in exchange for their right to claim all the
waters landward of their baselines, regardless of their depth or distance from the coast,
as archipelagic waters subject to their territorial sovereignty. More importantly, the
recognition of archipelagic States archipelago and the waters enclosed by their
baselines as one cohesive entity prevents the treatment of their islands as separate
islands under UNCLOS III.46 Separate islands generate their own maritime zones, placing
the waters between islands separated by more than 24 nautical miles beyond the States
territorial sovereignty, subjecting these waters to the rights of other States under
UNCLOS III.47
Petitioners invocation of non-executory constitutional provisions in Article II
(Declaration of Principles and State Policies)48 must also fail. Our present state of
jurisprudence considers the provisions in Article II as mere legislative guides, which,
absent enabling legislation, do not embody judicially enforceable constitutional rights x
x x.49Article II provisions serve as guides in formulating and interpreting implementing
legislation, as well as in interpreting executory provisions of the Constitution.
Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology
under Section 16 of Article II as an exception, the present petition lacks factual basis to
substantiate the claimed constitutional violation. The other provisions petitioners cite,
relating to the protection of marine wealth (Article XII, Section 2, paragraph 2 51) and
subsistence fishermen (Article XIII, Section 752), are not violated by RA 9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive
economic zone, reserving solely to the Philippines the exploitation of all living and non-
living resources within such zone. Such a maritime delineation binds the international
community since the delineation is in strict observance of UNCLOS III. If the maritime
delineation is contrary to UNCLOS III, the international community will of course reject it
and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates
a sui generis maritime space the exclusive economic zone in waters previously part of
the high seas. UNCLOS III grants new rights to coastal States to exclusively exploit the
resources found within this zone up to 200 nautical miles. 53 UNCLOS III, however,
preserves the traditional freedom of navigation of other States that attached to this
zone beyond the territorial sea before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was
not bound to pass RA 9522.54 We have looked at the relevant provision of UNCLOS
III55and we find petitioners reading plausible. Nevertheless, the prerogative of choosing
this option belongs to Congress, not to this Court. Moreover, the luxury of choosing this
option comes at a very steep price. Absent an UNCLOS III compliant baselines law, an
archipelagic State like the Philippines will find itself devoid of internationally acceptable
baselines from where the breadth of its maritime zones and continental shelf is
measured. This is recipe for a two-fronted disaster: first, it sends an open invitation to
the seafaring powers to freely enter and exploit the resources in the waters and
submarine areas around our archipelago; and second, it weakens the countrys case in
any international dispute over Philippine maritime space. These are consequences
Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and
adjacent areas, as embodied in RA 9522, allows an internationally-recognized
delimitation of the breadth of the Philippines maritime zones and continental shelf. RA
9522 is therefore a most vital step on the part of the Philippines in safeguarding its
maritime zones, consistent with the Constitution and our national interest.
WHEREFORE, we DISMISS the petition.
5

SO ORDERED.
CLAIM OF THE BRITISH SHIP IM ALONE V. UNITED STATES
(1935) 29 Am. J. Int. L. 327
REPORTS OF THE COMMISSIONERS
The Im Alone, a British ship of Canadian registry, but de facto owned,
controlled and managed by a group of American citizens engaged in smuggling liquor
into the United States, was sunk on the high seas in the Gulf of Mexico by a United
States coast guard patrol boat, with the loss of one member of the Im Alones crew, on
March 22, 1929, after hot pursuit which bean on March 20 within twelve miles of the
United States coast. (See article in this Journal, Vol. 23, p. 351.)
Held, that under the Convention of Jan. 23, 1924, between the United States
and Great Britain to prevent the smuggling of intoxicating liquors into the United States,
the Commissioners could inquire into the beneficial ownership of the Im Alone, and
that the United States might use necessary and reasonable force to board, search, seize
and bring the suspected vessel into port; but that the admittedly intentional sinking of
the vessel was not justified by anything in the Convention or by any principle of
international law.
Held further, that no compensation ought to be paid in respect of the loss of
the ship or cargo, but that the United States ought to apologize to Canada and pay that
Government the sum of $25,000 as a material amend, and also pay the additional sum
of $26,666.50 for the benefit of the captain and crew of the Im Alone, none of whom
was a party to the illegal conspiracy to smuggle liquor into the United States and sell the
same there.
JOINT INTERIM REPORT OF THE COMMISSIONERS
Dated the 30th June, 1933
The Honourable the Secretary of State For the United States of America; and
The Right Honourable The Minister of External Affairs for Canada.
Excellencies:
Willis Van Devanter and Lyman Poore Duff, the Commissioners appointed
respectively by the high contracting parties pursuant to Article 4 of the Convention of
the 23rd day of January, 1924, between His Majesty the King of the United Kingdom of
Great Britain and Ireland and of the British Dominions beyond the Seas and the
President of the United States of America, beg leave to present the following interim
report and recommendations.
In compliance with a direction given on the 28th of January, 1932, the agents
and counsel of the high contracting parties respectively have submitted briefs and oral
argument in relation to certain preliminary questions which are here set forth; and the
Commissioners, in the exercise of their duty under the authority conferred upon them
by the appointment aforesaid, have given and do give the answers hereinafter
respectively appended to these questions:
The question numbered one is in the following terms:
The first question is whether the Commissioners may enquire into the
beneficial or ultimate ownership of the Im Alone or of the shares of the corporation
that owned the ship. If the commissioners are authorized to make this enquiry, a further
question arises as to the effect of indirect ownership and control by citizens of the
United States upon the Claim; viz, whether it would be an answer to the Claim under the
Convention, or whether it would go to mitigation of damages, or whether it would
merely be a circumstance that should actuate the claimant Government in refraining
from pressing the claim, in whole or in part.
The answer given to this question is as follows:
The Commissioners think they may enquire into the beneficial or ultimate
ownership of the Im Alone and of the shares of the corporation owning the ship; as well
as into the management and control of the ship and the venture in which it was
engaged; and that this may be done as a basis for considering the recommendations
which they shall make. But the Commissioners reserve for further consideration the
extent to which, if at all, the facts of such ownership, management and control may
affect particular branches or phases of the claim presented.
The question numbered two is in the following terms:
The second question relates to the right of hot pursuit. Further, it has two
aspects, and it is based upon the assumption that the averments in the Answer with
regard to the location and speed of the Im Alone are true. The question in its first
aspect is whether the Government of the United States under the Convention has the
right of hot pursuit where the offending vessel is within an hours sailing distance of the
shore at the commencement of the pursuit and beyond that distance at its termination.
The question in its second aspect is whether the Government of the United States has
the right of hot pursuit of a vessel when the pursuit commenced within the distance of
twelve miles established by the revenue law as of the United States and was terminated
on the high seas beyond that distance.
The answer to this question is as follows:
As respect the question in its first aspect, viz,
whether the Government of the United States under the Convention has the
right of hot pursuit where the offending vessel is within an hours sailing distance of the
shore at the commencement of the pursuit and beyond that distance at its termination,
the Commissioners are as yet not in agreement as to the proper answer, nor have they
reached a final disagreement on the matter. The Commissioners, therefore, suggest that
6
the proceeding go forward and that the evidence be produced in an orderly way, leaving
the Commissioners free to give further consideration to the matter and to announce
their agreement or disagreement thereon as the case may be.
The question in its second aspect need not be answered because the
Government of the United States has now withdrawn so much of its answer as led to
the propounding of that aspect of the question.
The question numbered three is in the following terms:
The third question is based upon the assumption that the United States
Government had the right of hot pursuit in the circumstances and was entitled to
exercise the rights under Article 2 of the Convention at the time when the Dexter joined
the Wolcott in the pursuit of the Im Alone. It is also based upon the assumption that
the averments set forth in paragraph eight of the Answer are true. The question is
whether, in the circumstances, the Government of the United States was legally justified
in sinking the Im Alone.
The answer given to this question is as follows:
On the assumptions stated in the question, the United States might,
consistently with the Convention, use necessary and reasonable force for the purpose of
effecting the objects of boarding, searching, seizing and bringing into port the suspected
vessel; and if sinking should occur incidentally, as a result of the exercise of necessary
and reasonable force for such purpose, the pursuing vessel might be entirely blameless.
But the Commissioners think that, in the circumstances stated in paragraph eight of the
Answer, the admittedly intentional sinking of the suspected vessel was not justified by
anything in the Convention.
Having thus answered the preliminary questions, the Commissioners have had
under consideration the practical application of their answers to the future conduct of
the case.
They, accordingly, make to the two Governments the following
recommendations:
First: that the agents be instructed by their respective Governments to
prepare and submit to the Commissioners separate statements setting forth in detail
the contentions of their respective Governments as to the ultimate beneficial interests
in the vessel and in the cargo, together with specifications of the documents and
witnesses relied upon to substantiate their respective contentions:
Second: that the agents be similarly instructed to submit to the
Commissioners either a joint statement or separate statements (in either case
specifically itemized) of the sums which should be payable by the United States in case
the Commissioners finally determine that compensation is payable by that Government.
Upon compliance with the foregoing recommendations the Commissioners will notify
the agents by what procedure the resulting issues of fact will be determined and upon
such determination will make a final recommendation.
The Commissioners have the honour to be, Excellencies,
Your most humble, obedient servants,
Willis Van
Devanter
Lyman P.
Duff
JOINT FINAL REPORT OF THE COMMISSIONERS
Dated January 5, 1935
(Filed with the Secretary of State at Washington and the Minister of External Affairs for
Canada at Ottawa, January 9, 1935)
The Honourable the Secretary of State for the United States of America; and The Right
Honourable
The Minister of External Affairs for Canada
Excellencies:
The Commissioners appointed respectively by the High Contracting Parties
pursuant to Article 4 of the Convention of the 23rd of January, 1924, between His
Majesty the King of the United Kingdom of Great Britain and Ireland and the of the
British dominions beyond the Seas, and the President of the United States of America,
did, no the 30th of June, 1933, present an interim report and recommendations
concerning the matters submitted to them for consideration.
The Interim report and recommendations are before Your Excellencies.
The Commissioners therein returned answers to certain preliminary questions,
set forth in a direction given by them on the 28th of January, 1932, in relation to which
the agents and counsel of the High Contracting Parties had submitted briefs and oral
argument.
Only questions numbered One and Three and the answers given thereto are
now material. These are stated in the interim report as follows:
The question numbered one is in the following terms:
The first question is whether the commissioners may enquire into the beneficial or
ultimate ownership of the I'm Alone or of the shares of the corporation that owned the
ship. If the Commissioners are authorized to make this enquire, a further question arises
as to the effect of indirect ownership and control by citizens of the United States upon
the Claim; viz, whether it would be an answer to the Claim under the Convention, or
7
whether it would go to mitigation of damages, or whether it would merely be a
circumstance that should actuate the claimant Government in refraining from pressing
the claim, in whole or in part.
The answer given to this question is as follows:
The Commissioners think they may enquire into the beneficial or ultimate ownership of
the I'm Alone and of the shares of the corporation owning the ship; as well as into the
management and control of the ship and the venture in which it was engaged; and that
this may be done as a basis for considering the recommendations which they shall
make. But the Commissioners reserve for further consideration the extent to which, if at
all, the facts of such ownership, management and control may affect particular branches
or phases of the claim presented.
The question numbered three is in the following terms:
The third question is based upon the assumption that the United States Government
has the right of hot pursuit in the circumstances and was entitled to exercise the rights
under Article 2 of the Convention at the time when the Dexter joined the Wolcott in the
pursuit of the I'm Alone. It is also based upon the assumption that the averments set
forth in paragraph eight of the Answer are true. The question is whether, in the
circumstances, the Government of the United States was legally justified in sinking the
I'm Alone.
The answer given to this question is as follows:
On the assumptions stated in the question, the United States might, consistently with
the Convention, use necessary and reasonable force for the purpose of effecting the
objects of boarding, searching, seizing and bringing into port the suspected vessel; and if
sinking should occur incidentally, as a result of the exercise of necessary and reasonable
force for such purpose, the pursuing vessel might be entirely blameless. But the
Commissioners think that, in the circumstances stated in paragraph eight of the Answer,
the admittedly intentional sinking of the suspected vessel was not justified by anything
in the Convention.
The preliminary questions having been answered, the Commissioners made
the following recommendations as to the future conduct of the case:
First: that the agents be instructed by their respective Governments to prepare and
submit to the Commissioners separate statements setting forth in detail the contentions
of their respective Governments as to the ultimate beneficial interests in the vessel and
in the cargo, together with specifications of the documents and witnesses relied upon to
substantiate their respective contentions.
Second: that the agents be similarly instructed to submit to the Commissioners either a
joint statement or separate statements (in either case specifically itemized) of the sums
which should be payable by the United States in case the Commissioners finally
determine that compensation is payable by that Government.
Statements were submitted to the Commissioners pursuant to these
recommendations; and, on the 28th of December, 1934, the Commissioners convened
for the purpose of hearing further evidence and oral argument touching the matters in
dispute; and the hearing was concluded on the 3rd of January, 1935. The Commissioners
now present their joint final report.
It will be recalled that the I'm Alone was sunk on the 22nd day or March, 1929,
on the high seas, in the Gulf of Mexico, by the United States revenue cutter Dexter. By
their interim report the Commissioners found that the sinking of the vessel was not
justified by anything in the Convention. The Commissioners now add that it could not be
justified by any principle of international law.
The vessel was a British ship of Canadian registry; after her construction she
was employed for several years in rum running, the cargo being destined for illegal
introduction into, and sale in, the United States. In December, 1928, and during the
early months of 1929, down to the sinking of the vessel on the 22nd of March, of that
year, she was engaged in carrying liquor from Belize, in British Honduras, to an agreed
point or points in the Gulf of Mexico, in convenient proximity to the coast of Louisiana,
where the liquor was taken from her in smaller craft, smuggled into the United States,
and sold there.
We find as a fact that, from September, 1928, down to the date when she was
sunk, the I'm Alone, although a British ship of Canadian registry, was de facto owned,
controlled, and at the critical times, managed, and her movements directed and her
cargo dealt with and disposed of, by a group of persons acting in concert who were
entirely, or nearly so, citizens of the United States, and who employed her for the
purposed mentioned. The possibility that one of the group may not have been of United
States nationality we regard as of no importance in the circumstances of this case.
The Commissioners consider that, in view of the facts, no compensation ought
to be paid in respect of the loss of the ship or the cargo.
The act of sinking the ship, however, by officers of the United States Coast
Guard, was, as we have already indicated, an unlawful act; and the Commissioners
consider that the United States ought formally to acknowledge its illegality, and to
apologize to His Majesty's Canadian Government therefor; and, further, that as a
material amend in respect of the wrong the United States should pay the sum of
$25,000 to His Majesty's Canadian Government; and they recommend accordingly.
The Commissioners have had under consideration the compensation which
ought to be paid by the United States to His Majesty's Canadian Government for the
benefit of the captain and members of the crew, none of whom was a party to the
illegal conspiracy to smuggle liquor into the United States and sell the same there. The
Commissioners recommend that compensation be paid as follows:
For the captain, John Thomas Randell, the sum of $7,906.00
For John Williams, deceased, to be paid to his proper representatives 1,250.50
For Jens Jansen 1,098.00
For James Barrett 1,032.00
8
For William Wordsworth, deceased, to be paid to his proper representatives 907.00
For Eddie Young 999.50
For Chesley Hobbs 1,323.50
For Edward Fouchard 965.00
For Amanda Mainguy, as compensation in respect of the death of Leon Mainguy,
for the benefit of herself and the children of Leon Mainguy (Henriette Mainguy,
Jeanne Mainguy and John Mainguy) the sum of 10,185.00
In submitting this, their final report,
The Commissioners have the honour to be, Excellencies,
Your most humble, obedient servants,
(Signed) Willis Van Devanter
(Signed) Lyman Poore Duff
United States Supreme Court
CHURCH v. HUBBART, (1804)
Argued: Decided: February 1, 1804
ERROR to the circuit court of the district of Massachusetts.
In the circuit court of Massachusetts, John Barker Church, Jun. instituted an action
against the defendant on two policies of insurance, whereby he had caused to be
insured twenty thousand dollars upon the cargo of the brigantine Aurora, Shaler,
master, at and from New York, to one or two Portuguese ports on the coast of Brazil,
and at and from thence back to New York. At the foot of one of the policies was the
following memorandum: 'the insurers are not to be liable for seizure by the Portuguese
for illicit trade.' In the body of the other policy was inserted the following: 'N. B. The
insurers do not take the risk of illicit trade with the Portuguese.'
The Aurora cleared out for the cape of Good Hope, the plaintiff being on board as
supercargo. She proceeded to Rio Janeiro, where she remained some days; and under a
permit some of the cargo was sold; and afterwards sailed for Para on the coast of Brazil,
and in company with another vessel came to anchor about four or five leagues from the
land. The destination of the vessel after she left Rio Janeiro was by order of the plaintiff
kept secret; and it was said by the master at the time, that the anchoring off the river
Para was for wood and water, which were actually wanted. [6 U.S. 187, 188] The
plaintiff went on shore in a boat, asserting that he left the Aurora for the purpose of
procuring a pilot, to take the vessel up for wood and water and to sell the cargo if
permitted. Mr. Church was arrested when on shore, and imprisoned; and the Aurora
and the vessel in her company were taken possession of by a body of armed men, and
carried into Para.
It was in evidence, that the trade to Para was prohibited, although by bribery of the
Portuguese officers, cargoes were frequently sold there, the vessels which brought
them alleging on arricval a pretence of want of repairs, want of water, or something of
that kind. [6 U.S. 187, 189] The vessel and cargo were condemned by the governor of
the capital of Para, as having been seized for illicit trade. The defense against the claims
of the plaintiff on both policies was, that the loss occurred from a prohibited or illicit
trade; for which the defendant, as an insurer, was not liable, according to the exception
in both policies.
To prove that the trade to Para was illicit, the defendant offered a copy of a law of
Portugal, passed the 18th of March 1605, entitled 'a law by which foreign vessels are
prohibited from entering the ports of India, Brazil, Guiana, and Islands, and other
provinces of Portugal.' The terms of this law expressly prohibit the trade, and subject
the vessel and cargo, violating its provisions, to seizure and forfeiture, and the persons
engaged in the same to the punishment of death.
[6 U.S. 187, 191] The law was certified in the following term: 'I, William Jarvis, consul of
the United States of America in this city of Lisbon, &c. do hereby certify to all whom it
may or doth concern, that the law in the Portuguese language, hereunto annexed, dated
the 18th of March 1605, is a true and literal copy from the original law of this realm of
that date, prohibiting the entry of foreign vessels into the colonies of this kingdom, and
as such, full faith and credit ought to be given it in courts of judicature or elsewhere. I
further certify, that the foregoing is a just and true translation of the aforesaid law.
'In testimony whereof, I have hereunto set my hand and affixed my seal of office, at
Lisbon, this 12th day of April 1803.
'WILLIAM JARVIS.'
Another law was produced, made on the 8th of February 1711, which provides for the
punishment of the officers of the government who shall suffer the law of 1605 to be
violated, and for the detection and punishment of offenders. This law was certified in
the same manner. [6 U.S. 187, 192] To establish the defense that the Aurora and cargo
were seized and condemned for illicit and prohibited trade, the defendant offered in
evidence 'the sentence of the governor of the capital of Para, on the brig Aurora.'
'In consequence of the acts of examination made on board the brig Aurora, questions
put to Nathaniel Shaler, who it is said is the captain of her, and to those said to be the
officers and crew, and according to the act of examination made in the journal annexed,
which they present as such passport and dispatches, together with other papers; I think
the motives hereby alleged for having put into a port of this establishment, are
unprecedented and inadmissible, and the causes assigned cannot be proved. I therefore
believe it to be all affected for the purpose of introducing here commercial and
contraband articles of which the cargo is composed; (if there are not other motives
besides these, of which there is the greatest presumption,) 1. Because it cannot be
supposed than an involuntary want to water and wood would take place in thirty-four
days voyage from Rio Janeiro where the said vessel was provided with every necessary,
until she passed the Salinas, without alleging and proving an unforeseen accident, when
there was none in sixty-four days passage from New York to said port of Rio Janeiro, and
it appears by these papers and by the information [6 U.S. 187, 193] from the
commanders of registry or guard at the Salinas, and it is not to be believed that they did
not see that land at the hour of the morning which they passed it on the 9th day of the
present month, as well as they were seen; and when it ought to be supposed that they
should have solicited immediately the remedy for such urgent necessity as they wish to
make it. 2. Because, after they were in sight and opposite to the village of Vigia on the
9
12th of the said month, having also got clear and passed safely by the shoals, and after
by violent means having boarded and obliged different vessels to board him, it does not
appear that any of those that were brought to the village as prisoners, alleged the want
of water as a motive for coming in; nor that they had made the least endeavours, or
demanded to be supplied with such want; it being very well known on the contrary, that
all their endeavours were to obtain Pratic, and to proceed to this capital, alleging the
pretext of being leaky, but which, from the examination made on board by the masters
of the arsenal, did not appear to be true. 3. And finally because in the space of eight or
ten days from the time they passed the cape of St. Agostinho till they passed by the
Salinas, should their want of water be true, they might have supplied themselves with it,
in any of the numerous ports on the northern coast of the Brazils till that of
Pernambuco, or they would have directed their course directly for the destined port of
Martinico and Antilles as they say; it appearing very strange they should come to sound
all the coast, the excuse of the winds not being admissible. But by the same informer's
journal it appears that from the 28th of May, when by observation they were northward
of St. Agostinho, they had constantly the trade winds upon the quarter until the 3d
instant, with which they steered always along the coast, when they ought only to have
gone to this latitude to have continued the same winds to the said islands, and to have
got clear of the calms and currents of the coast; if it had not been their only intention to
look for the same coast and to this port for business and sumggling, which he could not
perform at the Rio Janeiro for the reason which is specified in the letters annexed to
folio _____; it being presumed that the master of this brigantine [6 U.S. 187, 194]
ought to be understood as having the same disposition as that of the schooner Four
Brothers, with which he sailed and fell into conversation.
'Therefore I command that in conformity to the law made on the 5th October 1715, the
observance of which has been so repeatedly recommended and revived to me by
government, let their papers be brought to the house of justice to be continued as
prescribed in the same law and laws of the kingdom, (they remaining in prison until the
final decision) for which they gave cause by the hostile means which they practised.
Palace of Para, the 27th of June 1801.
'D. FRANCISCO DE SOUZA COUTINHO.'
'On the 27th of June 1801, the deeds were given to me by his excellency the governor
and captain general of state, D. Francisco de Souza Coutinho, with his sentence ut supra,
of which I made this term; and I, Joseph Damazo Alvares Bandiera, wrote and finished
the same.
'It is hereby determined by the court, &c. that in the certainty of it being affected and
unprecedented that the brig Aurora captain Nathaniel Shaler putting into this port as in
the decision folio 43; as it is justly declared and adopted for the same incontestable
causes there specified, that in consequence thereof, and of the respective laws thereto
applying, she ought to be condemned, they concurring to convince that it was the
project of the said captain (if he had no other reason beside these, of which there is
suspicion) to look for a market for the merchandise which were found, not only as it
appears by the letters hereunto annexed, but in the society and conversation in which
he sailed with the schooner Four Brothers, which captain is convicted, by very clear
proofs, of such an intention, and the same specious pretext with which he pretends to
colour the cause for putting into this port, manifesting in this manner that he was not
ignorant of the laws of the state concerning coming in and doing business therein. [6
U.S. 187, 195] 'Therefore they declare him to have incurred the transgression of the
order folio 1 to 107, and decree of the 28th of March 1605, and they order that after
proceeding in the sequester on the vessel and cargo, to send the captain as prisoner,
with the necessary information by the competent secretary, that his royal highness may
be pleased to determine about him, as may be his royal pleasure.
'Para, 27th of June 1801. D. Jono de Almeida de Mello de Castro, of the council of state
of the prince regent our lord and his minister and secretary of state of the foreign affairs
and war departments, &c. do hereby certify that the present is a faithful copy taken
from the original deeds relative to the brig Aurora. In witness whereof I order this
attestation to be passed and goes by me signed and sealed with the seal of my arms.
Lisbon, the 27th of January 1803.
'D. JONO DE ALMEIDA DE MELLO DE CASTRO.'
These proceedings were certified as follows:
'I, William Jarvis, consul of the United States of America in this city of Lisbon, &c. do
hereby certify unto all whom it may concern, that the foregoing is a true and just
translation of a copy from the proceedings against the brig Aurora, Nathaniel Shaler
master, at Para in the Brazils, which is hereto annexed and attested by his excellency
Don Jono de Almeida de Mello de Castro, whose attestation is dated the 27th of January
1803.
'In testimony whereof, I have hereunto set my hand and affixed my seal of office, in
Lisbon this 16th day of April, one thousand eight hundred and three.
'WILLIAM JARVIS.'
To the admission of this evidence the plaintiff objected, [6 U.S. 187, 196] but the
objection was overruled by the circuit court; and the plaintiff took a bill of exceptions,
upon which the case was brought before this court; the jury in the circuit court having
found for the defendant.
The opinion of Mr. Justice CHSHING, which came up with the record, was the following:
'The first objection to this action is, that it is brought in the name of John B. Church, Jun.
when the contract was not made with him, but with his father, John B. [6 U.S. 187, 197]
Church. But from the evidence of Mr. Samuel Blagge, it is plain the policy was made for
the son, in pursuance of the express application and direction of the witness. The
property of ship and cargo is proved to be in the plaintiff.
'The principal question is, whether the brig Aurora and cargo ( insured by these policies)
were seized by the Portuguese for (or on account of) illicit trade? If so seized, the
insurer is not liable; if not seized for illicit trade, the defendant must answer for the
sums by him insured.
'The brig went to Brazil for the purpose of trade: first to Janeiro, where, with leave, part
of the cargo was sold; then proceeded to Para. It is pretty well understood, that a trade
10
there is illicit and prohibited, unless particular license can be obtained; sometimes it is
obtained, sometimes not; and in want of leave seizures have been made.
'It seems that the seizure and sequestration which took place at Para, were on account
of attempting to trade there. The sentence of the government of Para appears to me
decisive as to this point, that there was an attempt to trade, and that was against the
effect of the Portuguese law referred to in the decree. It is contended that this vessel
was not within the Portuguese dominions, and therefore not in violation of any of their
laws.
'It appears the vessel was hovering on the coast of Para, and anchored upon that coast,
and that the plaintiff, with others from the vessel, went on shore in the boat among the
inhabitants.
'It is said that this sentence has no appearance of an admiralty decree; but there does
not appear any other authority at Para, to condemn for illicit trade, than that of the
governor. The governor does undertake to decide, and I do not know that he had not
authority, according to their modes of colony government, so to do. One thing seems
certain, that is, that the propery was seized and sequestered and taken away, by [6 U.S.
187, 198] the governor's sentence, on account of prohibited trade; in part at least.
'As to a design against the country, it is said there were suspicions. It does not seem
probable that the government of Para could seriously think the country endangered, by
a few Americans coming with a cargo for trade.
'I am therefore of opinion, that it falls within the meaning and true intent of the
exceptions in the policies, viz. 'that the insurers should not be liable for seizure by the
Portuguese for illicit trade,' and that you ought to find for the defendant.'
For the plaintiff in error it was contended,
That the circuit court erred,
1. On the general merits of the case.
2. In admitting improper evidence to go to the jury. [6 U.S. 187, 199] As to the merits.
The exception in the policies is of the case of seizure for illicit trade, and not of seizure
for an attempt to trade. Cited Park, 42, 43, (47), 268, 359. Doug. 512. Vattel, b. 1, c. 23,
280, 289. 4 Bac. Ab. 543.
As to the admission of the evidence. Cited 4 Rob. 55. Peake, L. E. 46, 47, 48. 1 P. Wms.
431. Cowp. 174. 2 East, 260, 272, 273. Buller's N. P. 226, et seq. 10 Co. 93. 9 Mod. 66. 1
Mod. 117. 2 Lord Ray. 893. Peuke, L. E. 48.
For the defendant in error, the following cases were cited: 12 Viner, 123. Bingham v.
Cabot, 3 Dall. 19 to 42.
[6 U.S. 187, 232]
Mr.Chief Justice MARSHALL delivered the opinion of the court.
If in this case the court had been of opinion, that the circuit court had erred in its
construction of the policies, which constitute the ground of action; that is, if we had
conceived that the defence set up, would have been insufficient, admitting it to have
been clearly made out in point of fact, we should have deemed it right to have declared
that opinion, although the case might have gone off on other points; because it is
desirable to terminate every cause upon its real merits, if those merits are fairly before
the court, and to put an end to litigation where it is in the power of the court to do so.
But no error is perceived in the opinion given on the construction of the policies. If the
proof is sufficient to show that the loss of the vessel and cargo was occasioned by
attempting an illicit trade with the Portuguese; that an offense was actually committed
against the laws of that nation, and that they were condemned by the government on
that account; the case comes fairly within the exception of the policies and the risk was
one not intended to be insured against.
The words of the exception in the first policy are, 'the insurers are not liable for seizure
by the Portuguese for illicit trade.'
In the second policy, the words are 'the insurers do not take the risk of illicit trade with
the Portuguese.'
The counsel on both sides insist that these words ought to receive the same
construction, and that each exception is substantially the same.
The court is of the same opinion. The words themselves are not essentially variant from
each other, and no reason is perceived for supposing any intention in the contracting
parties to vary the risk.
For the plaintiff it is contended, that the terms used require an actual traffic between
the vessel and inhabi- [6 U.S. 187, 233] tants, and a seizure in consequence of that
traffic, or at least that the vessel should have been brought into port, in order to
constitute a case which comes within the exception of the policy. But such does not
seem to be the necessary import of the words. The more enlarged and liberal
construction given to them by the defendants, is certainly warranted by common usage;
and wherever words admit of a more extensive or more restricted signification, they
must be taken in that sense which is required by the subject matter, and which will best
effectuate what it is reasonable to suppose was the real intention of the parties.
In this case, the unlawfulness of the voyage was perfectly understood by both parties.
That the crown of Portugal excluded, with the most jealous watchfulness, the
commercial intercourse of foreigners with their colonies, was probably a fact of as much
notoriety as that foreigners had devised means to elude this watchfulness, and to carry
on a gainful but very hazardous trade with those colonies. If the attempt should succeed
it would be very profitable, but the risk attending it was necessarily great. It was this risk
which the underwriters, on a fair construction of their words, did not mean to take upon
themselves. 'They are not liable,' they say, 'for seizure by the Portuguese for illicit trade.'
'They do not take the risk of illicit trade with the Portuguese.' Now this illicit trade was
the sole and avowed object of the voyage, and the vessel was engaged in it from the
time of her leaving the port of New York. The risk of this illicit trade is separated from
the various other perils to which vessels are exposed at sea, and excluded from the
policy. Whenever the risk commences the exception commences also, for it is apparent
11
that the underwriters meant to take upon themselves no portion of that hazard which
was occasioned by the unlawfulness of the voyage.
If it could have been presumed by the parties to this contract, that the laws of Portugal,
prohibiting commercial intercourse between their colonies and foreign merchants,
permitted vessels to enter their ports, or to hover off their coasts for the purposes of
trade, with impunity, and only subjected them to seizure and condemnation [6 U.S. 187,
234] after the very act had been committed; or if such are really their laws; then
indeed the exception might reasonably be supposed to have been intended to be as
limited in its construction as is contended for by the plaintiff. If the danger did not
commence till the vessel was in port, or till the act of bargain and sale, without a permit
from the governor, had been committed, then it would be reasonable to consider the
exception as only contemplating that event. But this presumption is too extravagant to
have been made. If indeed the fact itself should be so, then there is an end of
presumption, and the contract will be expounded by the law; but as a general principle,
the nation which prohibits commercial intercourse with its colonies, must be supposed
to adopt measures to make that prohibition effectual. They must, therefore, be
supposed to seize vessels coming into their harbours or hovering on their coasts in a
condition to trade, and to be afterwards governed in their proceedings with respect to
those vessels by the circumstances which shall appear in evidence. That the officers of
that nation are induced occasionally to dispense with their laws, does not alter them, or
legalize the trade they prohibit. As they may be executed at the will of the governor,
there is always danger that they will be executed, and that danger the insurers have not
chosen to take upon themselves.
That the law of nations prohibits the exercise of any act of authority over a vessel in the
situation of the Aurora, and that this seizure is on that account a mere marine trespass,
not within the exception, cannot be admitted. To reason from the extent of protection a
nation will afford to foreigners to the extent of the means it may use for its own security
does not seem to be perfectly correct. It is opposed by principles which are universally
acknowledged. The authority of a nation within its own territory is absolute and
exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an
invasion of the territory, and is a hostile act, which it is its duty to repel. But its power to
secure itself from injury may certainly be exercised beyond the limits of its territory.
Upon this principle the right of a belligerent to search a neutral vessel on the high seas
for contraband of war, is uni- [6 U.S. 187, 235] versally admitted, because the
belligerent has a right to prevent the injury done to himself by the assistance intended
for his enemy: so too a nation has a right to prohibit any commerce with its colonies.
Any attempt to violate the laws made to protect this right, is an injury to itself which it
may prevent, and it has a right to use the means necessary for its prevention. These
means do not appear to be limited within any certain marked boundaries, which remain
the same at all times and in all situations. If they are such as unnecessarily to vex and
harass foreign lawful commerce, foreign nations will resist their exercise. If they are
such as are reasonable and necessary to secure their laws from violation, they will be
submitted to.
In different seas and on different coasts, a wider or more contracted range, in which to
exercise the vigilance of the government, will be assented to. Thus in the channel,
where a very great part of the commerce to and from all the north of Europe, passes
through a very narrow sea, the seizure of vessels on suspicion of attempting an illicit
trade, must necessarily be restricted to very narrow limits; but on the coast of South
America, seldom frequented by vessels but for the purpose of illicit trade, the vigilance
of the government may be extended somewhat further; and foreign nations submit to
such regulations as are reasonable in themselves, and are really necessary to secure that
monopoly of colonial commerce, which is claimed by all nations holding distant
possessions.
If this right be extended too far, the exercise of it will be resisted. It has occasioned long
and frequent contests, which have sometimes ended in open war. The English, it will be
well recollected, complained of the right claimed by Spain to search their vessels on the
high seas, which was carried so far that the guarda costas of that nation, seized vessels
not in the neighbourhood of their coasts. This practice was the subject of long and
fruitless negotiations, and at length of open war. The right of the Spaniards was
supposed to be exercised unreasonably and vexatiously, but it never was contended
that it could only be exercised within the range of the cannon from their batteries.
Indeed the [6 U.S. 187, 236] right given to our own revenue cutters, to visit vessels four
leagues from our coast, is a declaration that in the opinion of the American government,
no such principle as that contended for, has a real existence.
Nothing then is to be drawn from the laws or usages of nations, which gives to this part
of the contract before the court the very limited construction which the plaintiff insists
on, or which proves that the seizure of the Aurora, by the Portuguese governor, was an
act of lawless violence.
The argument that such act would be within the policy, and not within the exception, is
admitted to be well founded. That the exclusion from the insurance of 'the risk of illicit
trade with the Portuguese,' is an exclusion only of that risk, to which such trade is by law
exposed, will be readily conceded.
It is unquestionably limited and restrained by the terms 'illicit trade.' No seizure, not
justifiable under the laws and regulations established by the crown of Portugal, for the
restriction of foreign commerce with its dependencies, can come within this part of the
contract, and every seizure which is justifiable by those laws and regulations, must be
deemed within it.
To prove that the Aurora and her cargo were sequestered at Para, in conformity with
the laws of Portugal, two edicts and the judgment of sequestration have been produced
by the defendants in the circuit court. These documents were objected to on the
principle that they were not properly authenticated, but the objection was overruled,
and the judges permitted them to go to the jury.
The edicts of the crown are certified by the American consul at Lisbon to be copies from
the original law of the realm, and this certificate is granted under his official seal.
Foreign laws are well understood to be facts which must, like other facts, be proved to
exist before they can be received in a court of justice. The principle [6 U.S. 187, 237]
that the best testimony shall be required which the nature of the thing admits of; or in
other words, that no testimony shall be received which presupposes better testimony
12
attainable by the party who offers it, applies to foreign laws as it does to all other facts.
The sanction of an oath is required for their establishment, unless they can be verified
by some other such high authority that the law respects it not less than the oath of an
individual.
In this case the edicts produced are not verified by an oath. The consul has not sworn;
he has only certified that they are truly copied from the originals. To give to this
certificate the force of testimony it will be necessary to show that this is one of those
consular functions to which, to use its own language, the laws of this country attach full
faith and credit.
Consuls, it is said, are officers known to the law of nations, and are entrusted with high
powers. This is very true, but they do not appear to be entrusted with the power of
authenticating the laws of foreign nations. They are not the keepers of those laws. They
can grant no official copies of them. There appears no reason for assigning to their
certificate respecting a foreign law any higher or different degree of credit, than would
be assigned to their certificates of any other fact.
It is very truly stated that to require respecting laws, or other transactions, in foreign
countries that species of testimony which their institutions and usages do not admit of,
would be unjust and unreasonable. The court will never require such testimony. In this
as in all other cases, no testimony will be required which is shown to be unattainable.
But no civilized nation will be presumed to refuse those acts for authenticating
instruments which are usual, and which are deemed necessary for the purposes of
justice. It cannot be presumed that an application to authenticate an edict by the seal of
the nation would be rejected, unless the fact should appear to the court. Nor can it be
presumed that any difficulty exists in obtaining a copy. Indeed in this very case the very
testimony offered would contradict such a presumption. The paper offered to the [6
U.S. 187, 238] court is certified to be a copy compared with the original. It is impossible
to suppose that this copy might not have been authenticated by the oath of the consul
as well as by his certificate.
It is asked in what manner this oath should itself have been authenticated, and it is
supposed that the consular seal must ultimately have been resorted to for this purpose.
But no such necessity exists. Commissions are always granted for taking testimony
abroad, and the commissioners have authority to administer oaths and to certify the
depositions by them taken.
The edicts of Portugal, then, not having been proved, ought not to have been laid before
the jury.
The paper offered as a true copy from the original proceedings against the Aurora, is
certified under the seal of his arms by D. Jono de Almeida de Mello de Castro, who
states himself to be the secretary of state for foreign affairs, and the consul certifies the
English copy which accompanies it to be a true translation of the Portuguese original.
Foreign judgments are authenticated,
1. By an exemplification under the great seal.
2. By a copy proved to be a true copy.
3. By the certificate of an officer authorized by law, which certificate must itself be
properly authenticated.
These are the usual and appear to be the most proper, if not the only modes of verifying
foreign judgments. If they be all beyond the reach of the party, other testimony inferior
in its nature might be received. But it does not appear that there was any insuperable
impediment to the use of either of these modes, and the court cannot presume such
impediment to have existed. Nor is the certificate which has been obtained an
admissible substitute for either of them.
If it be true that the decrees of the colonies are trans- [6 U.S. 187, 239] mitted to the
seat of government, and registered in the department of state, a certificate of that fact
under the great seal, with a copy of the decree authenticated in the same manner,
would be sufficient prima facie evidence of the verity of what was so certified; but the
certificate offered to the court is under the private seal of the person giving it, which
cannot be known to this court, and of consequence can authenticate nothing. The
paper, therefore, purporting to be a sequestration of the Aurora and her cargo in Para
ought not to have been laid before the jury.
Admitting the originals in the Portuguese language to have been authenticated
properly, yet there was error in admitting the translation to have been read on the
certificate of the consul. Interpreters are always sworn, and the translation of a consul
not on oath, can have no greater validity than that of any other respectable man.
If the court erred in admitting as testimony papers which ought not to have been
received, the judgment is, of course, to be reversed and a new trial awarded. It is urged
that there is enough in the record to induce a jury to find a verdict for the defendants,
independent of the testimony objected to, and that, in saying what judgment the court
below ought to have rendered, a direction to that effect might be given. If this was even
true in point of fact, the inference is not correctly drawn. There must be a new trial, and
at that new trial each party is at liberty to produce new evidence. Of consequence this
court can give no instructions respecting that evidence.
The judgment must be reversed with costs, and the cause remanded to be again tried in
the circuit court, with instructions not to permit the copies of the edicts of Portugal, and
the sentence in the proceeding mentioned, to go to the jury, unless they be
authenticated according to law.
13
The Anglo-Norwegian Fisheries Case
Since 1911 British trawlers had been seized and condemned for violating measures
taken by the Norwegian government specifying the limits within which fishing was
prohibited to foreigners. In 1935, a decree was adopted establishing the lines of
delimitation of the Norwegian fisheries zone.
On 24th September 1949 the government of the United Kingdom filed the registry of
the international court of justice an application instituting proceedings against Norway.
The subject of the proceeding was the validity, under international law, of the lines of
delimitation of the Norwegian fisheries zone as set forth in a Decree of 12th July 1935.
The application referred to the declaration by which the united Kingdom and Norway
had accepted the compulsory jurisdiction of the International Court of Justice in
accordance with article 36 (2) of its statute.
The parties involved in this case were Norway and the United Kingdom, of Great Britain
and Northern Ireland. The implementation of the Royal Norwegian Decree of the 1935
was met with resistance from the United Kingdom. The decree covers the drawing of
straight lines, called baselines 4 miles deep into the sea. This 4 miles area is reserved
fishing exclusive for Norwegian nationals. Under article 36(2) both UK and Norway were
willing to accept the jurisdiction of the ICJ on this case and with no appeal. The issues
that constitute the case were submitted to the court and the arguments presented by
both countries. The issues claims the court to: declare the principles of international law
applicable in defining the baselines by reference to which Norwegian government was
entitled to delimit a fisheries zone and exclusively reserved to its nationals; and to
define the said base lines in the light of the arguments of the parties in order to avoid
further legal difference; and secondly to award damages to the government of the
United Kingdom in respect of all interferences by the Norwegian authorities with British
fishing vessels outside the fisheries zone, which in accordance with ICJ's decision, the
Norwegian government may be entitled to reserve for its nationals.
The United Kingdom argued that;
Norway could only draw straight lines across bays
The length of lines drawn on the formations of the Skaergaard fjord must not
exceed 10 nautical miles( the 10 Mile rule)
That certain lines did not follow the general direction of the coast or did not
follow it sufficiently , or they did not respect certain connection of sea and
land separating them
That the Norwegian system of delimitation was unknown to the British and
lack the notoriety to provide the basis of historic title enforcement upon
opposable to by the United Kingdom
The Kingdom of Norway argued;
That the base lines had to be drawn in such a way as to respect the general
direction of the coast and in a reasonable manner.
The case was submitted to the International Court of Justice by the government of the
United Kingdom. The government of United Kingdom wants the ICJ to declare the
validity of the base lines under international law and receive compensation for damages
caused by Norwegian authorities as to the seizures of British Fishing vessels.
The judgment of the court first examines the applicability of the principles put forward
by the government of the UK, then the Norwegian system, and finally the conformity of
that system with international law. The first principle put forward by the UK is that the
baselines must be low water mark, this indeed is the criterion generally adopted my
most states and but differ as to its application. (Johnson 154). The court considered the
methods of drawing the lines but, the court rejected the trace Parallele which consists
of drawing the outer limits of the belt following the coast and all its sinuosity. The court
also rejected the courbe tangent (arcs of a circle) and it is not obligatory under
international law to use these methods of drawing the lines. The court also paid
particular attention to the geographical aspect of the case. The geographical realities
and historic control of the Norwegian coast inevitably contributed to the final decision
by the ICJ. The coast of Norway is too indented and is an exception under international
law from the 3 miles territorial waters rule. The fjords, Sunds along the coastline which
have the characteristic of a bay or legal straits should be considered Norwegian for
historical reasons that the territorial sea should be measured from the line of low water
mark. So it was agreed on the outset of both parties and the court that Norway had the
right to claim a 4 mile belt of territorial sea. The court concluded that it was the outer
line of the Skaergaard that must be taken into account in admitting the belt of the
Norwegian territorial waters. (Johnson 154- 158). There is one consideration not to be
overlooked, the scope of which extends beyond geographical factors. That of certain
economic interests peculiar to a region, the reality and importance of which are clearly
evidenced by a long usage (Johnson 160)
The law relied upon mainly international Law of the sea; how far a state can modify its
territorial waters and its control over it, exclusively reserving fishing for its nationals. In
this case, rules that are practiced for instance how long a baseline should be. Only a 10
mile long straight line is allowed and this has been the practice by most states however
it is different in the case of Norway because of Norway's geographic indentation, islands
and islets.
The international customary law has been a law of reference in the court arguments.
Judge Read from Canada asserts that Customary international law does not recognize
the rule according to which belts of territorial waters of coastal states is to be
measured. More so public international law has been relied upon in this case. It
regulates relation between states; the United Kingdom and Norway.
Maritime Law
Coastline Rule
The judgment was rendered in favor of Norway on the 18th December 1951. By 10
votes to 2 the court held that the method employed in the delimitation of the fisheries
zone by the Royal Norwegian decree of the 12th July 1935 is not contrary to
international law. By 8 votes to 4 votes the court also held that the base lines fixed by
this decree in application are not contrary to international law. However there are
separate opinions and dissenting opinions from the judges in the court.
14
Judge Hackworth declared that he concurred with the operative part of the judgment
because he considered that the Norwegian government had proved the existence of
historic title of the disputed areas of water.
Judge Alvarez from Chile relied on the evolving principles of the law of nations
applicable to the law of the sea.
States have the right to modify the extent of the of their territorial sea
Any state directly concerned may object to another state's decision as to the
extent of its territorial sea
International status of bays and straits must be determined by the coastal
state directly concerned with due regard to the general interest and
Historic rights and concept of prescription in international law.
Judge Hsu Mo from china opinions diverge from the court's with regards to conformity
with principles of international law to the straight lines drawn by the Decree of 1935. He
allowed possibility in certain circumstances, for instance, belt measured at low tide,
Norway's geographic and historic conditions. But drawing the straight lines as of the
1935 degree is a moving away from the practice of the general rule. (Johnson 171)
The dissenting opinions from judge McNair rested upon few rules of law of international
waters. Though there are exceptions, in case of bays, the normal procedure to calculate
territorial waters in from the land, a line which follows the coastline. Judge McNair
rejected the argument upon which Norway based its decree including:
Protecting Norway's economic and other social interests
The UK should not be precluded from objecting the Norwegian system
embodied in the Decree because previous acquiescence in the system and
An historic title allowing the state to acquire waters that would otherwise
have the status of deep sea. Judge McNair concluded that the 1935 decree is
not compatible with international law.(Johnson173)
Furthermore, Judge Read from Canada was unable to concur with parts of the
judgment. Read rejected justification by Norway for enlarging her maritime domain and
seizing and condemning foreign ships (Johnson 173);
Sovereignty of the coastal state is not the basis for Norway to claim 4 mile belt
from straight base lines
Customary international law does not recognize the rule according to which
belts of territorial waters of coastal states is to be measured.
Norwegian system cannot be compatible with international law.
CORFU CHANNEL CASE (MERITS) Judgment of 9 April 1949
The Corfu Channel Case (United Kingdom of Great Britain and Northern IrelandAlbania)
arose from incidents that occurred on October 22nd 1946, in the Corfu Strait: two
British destroyers struck mines in Albanian waters and suffered damage, including
serious loss of life. The United Kingdom first seized the Security Council of the United
Nations which, by a Resolution of April 9th, 1947, recommended the two Governments
to submit the dispute to the Court. The United Kingdom accordingly submitted an
Application which, after an objection to its admissibility had been raised by Albania, was
the subject of a Judgment, dated March 25th, 1948, in which the Court declared that it
possessed jurisdiction. On the same day the two Parties concluded a Special Agreement
asking the Court to give judgment on the following questions:
1. Is Albania responsible for the explosions, and is there a duty to pay compensation?
2. Has the United Kingdom violated international law by the acts of its Navy in Albanian
waters, first on the day on which the explosions occurred and, secondly, on November
12th and 13th, 1946, when it undertook a sweep of the Strait?
In its Judgment the Court declared on the first question, by 11 votes against 5, that
Albania was responsible.
In regard to the second question, it declared by 14 votes against 2 that the United
Kingdom did not violate Albanian sovereignty on October 22nd; but it declared
unanimously that it violated that sovereignty on November 12th/13th, and that this
declaration, in itself, constituted appropriate satisfaction.
The facts are as follows. On October 22nd, 1946, two British cruisers and two
destroyers, coming from the south, entered the North Corfu Strait. The channel they
were following, which was in Albanian waters, was regarded as safe: it had been swept
in 1944 and check-swept in 1945. One of the destroyers, the Saumarez, when off
Saranda, struck a mine and was gravely damaged. The other destroyer, the Volage, was
sent to her assistance and, while towing her, struck another mine and was also seriously
damaged. Forty-five British officers and sailors lost their lives, and forty-two others were
wounded. An incident had already occurred in these waters on May 15th, 1946: an
Albanian battery had fired in the direction of two British cruisers. The United Kingdom
Government had protested, stating that innocent passage through straits is a right
recognized by international law; the Albanian Government had replied that foreign
warships and merchant vessels had no right to pass through Albanian territorial waters
without prior authorization; and on August 2nd, 1946, the United Kingdom Government
had replied that if, in the future, fire was opened on a British warship passing through
the channel, the fire would be returned. Finally, on September 21st, 1946, the Admiralty
in London had cabled to the British Commander-in-Chief in the Mediterranean to the
following x effect: "Establishment of diplomatic relations with Albania is again under
consideration by His Majesty's Government who wish to know whether the Albanian
Government have learnt to behave themselves. Information is requested whether any
ships under your command have passed through the North Corfu Strait since August
and, if not, whether you intend them to do so shortly."
15
After the explosions on October 22nd, the United Kingdom Government sent a Note to
Tirana announcing its intention to sweep the Corfu Channel shortly. The reply was that
this consent would not be given unless the operation in question took place outside
Albanian territorial waters and that any sweep undertaken in those waters would be a
violation of Albania's sovereignty.
The sweep effected by the British Navy took place on November 12th/13th 1946, in
Albanian territorial waters and within the limits of the channel previously swept.
Twenty-two moored mines were cut; they were mines of the German GY type.
* of the existence of the minefield, as would be required by international law; and she did
**
The first question put by the Special Agreement is that of Albania's responsibility, under
international law, for the explosions on October 22nd, 1946.
The Court finds, in the first place, that the explosions were caused by mines belonging
to the minefield discovered on November 13th. It is not, indeed, contested that this
minefield had been recently laid; it was in the channel, which had been previously swept
and check-swept and could be regarded as safe, that the explosions had taken place.
The nature of the damage shows that it was due to mines of the same type as those
swept on November 13th; finally, the theory that the mines discovered on November
13th might have been laid after the explosions on October 22nd is too improbable to be
accepted.
In these circumstances the question arises what is the legal basis of Albania's
responsibility? The Court does not feel that it need pay serious attention to the
suggestion that Albania herself laid the mines: that suggestion was only put forward pro
memoria, without evidence in support, and could not be reconciled with the undisputed
fact that, on the whole Albanian littoral, there are only a few launches and motor boats.
But the United Kingdom also alleged the connivance of Albania: that the mine laying had
been carried out by two Yugoslav warships by the request of Albania, or with her
acquiescence. The Court finds that this collusion has not been proved. A charge of such
exceptional gravity against a State would require a degree of certainty that has not been
reached here, and the origin of the mines laid in Albanian territorial waters remains a
matter for conjecture.
The United Kingdom also argued that, whoever might be the authors of the mine laying,
it could not have been effected without Albania's knowledge. True, the mere fact that
mines were laid in Albanian waters neither involves prima facie responsibility nor does it
shift the burden of proof. On the other hand, the exclusive control exercised by a State
within its frontiers may make it impossible to furnish direct proof of facts which would
involve its responsibility in case of a violation of international law. The State which is the
victim must, in that ease, be allowed a more liberal recourse to inferences of fact and
circumstantial evidence; such indirect evidence must be regarded as of especial weight
when based on a series of facts, linked together and leading logically to a single
conclusion.
In the present case two series of facts, which corroborate one another, have to be
considered.
The first relates to the Albanian Government's attitude before and after the
catastrophe. The laying of the mines took place in a period in which it had shown its
intention to keep a jealous watch on its territorial waters and in which it was requiring
prior authorization before they were entered, this vigilance sometimes going so far as to
involve the use of force: all of which render the assertion of ignorance a priori
improbable. Moreover, when the Albanian Government had become fully aware of the
existence of a minefield, it protested strongly against the activity of the British Fleet, but
not against the laying of the mines, though this act, if effected without her consent,
would have been a very serious violation of her sovereignty; she did not notify shipping
not undertake any of the measures of judicial investigation which would seem to be
incumbent on her in such a case. Such an attitude could only be explained if the
Albanian Government, while knowing of the mine laying, desired the circumstances in
which it was effected to remain secret.
The second series of facts relates to the possibility of observing the mine laying from the
Albanian coast. Geographically, the channel is easily watched: it is dominated by heights
offering excellent observation points, and it runs close to the coast (the nearest mine
was 500 m. from the shore). The methodical and wellthought-out laying of the mines
compelled the minelayers to remain from two to two-and-a-half hours in the waters
between Cape Kiephali and the St. George's Monastery. In regard to that point, the
naval experts appointed by the Court reported, after enquiry and investigation on the
spot, that they considered it to be indisputable that, if a normal look-out was kept at
Cape Kiephali, Denta Point, and St. George's Monastery, and if the lookouts were
equipped with binoculars, under normal weather conditions for this area, the mine-
laying operations must have been noticed by these coastguards. The existence of a look-
out post at Denta Point was not established; but the Court, basing itself on the
declarations of the Albanian Government that lock-out posts were stationed at other
points, refers to the following conclusions in the experts' report: that in the case of mine
laying 1) from the North towards the South, the minelayers would have been seen from
Cape Kiephali; if from South towards the North, they would have been seen from Cape
Kiephali and St. George's Monastery.
From all the facts and observations mentioned above, the Court draws the conclusion
that the laying of the minefield could not have been accomplished without the
knowledge of Albania. As regards the obligations resulting for her from this knowledge,
they are not disputed. It was her duty to notify shipping and especially to warn the ships
proceeding through the Strait on October 22nd of the danger to which they were
exposed. In fact, nothing was attempted by Albania to prevent the disaster, and these
grave omissions involve her international responsibility.
The Special Agreement asks the Court to say whether, on this ground, there is "any
duty" for Albania "to pay compensation" to the United Kingdom. This text gave rise to
certain doubts: could the Court not only decide on the principle of compensation but
also assess the amount? The Court answered in the affirmative and, by a special Order,
it has fixed dine-limits to enable the Parties to submit their views to it on this subject.
***
16
The Court then goes on to the second question in the Special Agreement: Did the
United Kingdom violate Albanian sovereignty on October 22nd, 1946, or on November
12th/13th, 1946?
The Albanian claim to make the passage of ships conditional on a prior authorization
conflicts with the generally admitted principle that States, in time of peace, have a right
to send their warships through straits used for international navigation between two
parts of the high seas, provided that the passage is innocent. The Corfu Strait belongs
geographically to this category, even though it is only of secondary importance (in the
sense that it is not a necessary route between two parts of the high seas) and
irrespective of the volume of traffic passing through it. A fact of particular importance is
that it constitutes a frontier between Albania and Greece, and that a part of the strait is
wholly within the territorial waters of those States. It is a fact that the two States did not
maintain normal relations, Greece having made territorial claims precisely with regard
to a part of the coast bordering the strait. However, the Court is of opinion that Albania
would have been justified in view of these exceptional circumstances, in issuing
regulations in respect of the passage, but not in prohibiting such passage or in
subjecting it to the requirement of special authorization.
Albania has denied that the passage on October 22 was innocent. She alleges that it was
a political mission and that the methods employed - the number of ships, their
formation, armament, manoeuvres, etc. - showed an intention to intimidate. The Court
examined the different Albanian contentions so far as they appeared relevant. Its
conclusion is that the passage was innocent both in its principle, since it was designed to
affirm a right which had been unjustly denied, and in its methods of execution, which
were not unreasonable in view of the firing from the Albanian battery on May 15th.
As regards the operation on November 12th/13th, it was executed contrary to the
clearly expressed wish of the Albanian Government; it did not have the consent of the
international mine clearance organizations; it could not be justified as the exercise of
the right of innocent passage. The United Kingdom has stated that its object was to
secure the mines as quickly as possible for fear lest they should be taken away by the
authors of the mine laying or by the Albanian authorities: this was presented either as a
new and special application of the theory of intervention, by means of which the
intervening State was acting to facilitate the task of the international tribunal, or as a
method of self-protection or self-help. The Court cannot accept these lines of defence. It
can only regard the alleged right of intervention as the manifestation of a policy of force
which cannot find a place in international law. As regards the notion of self-help, the
Court is also unable to accept it: between independent States the respect for territorial
sovereignty is an essential foundation for international relations. Certainly, the Court
recognises the Albanian Government's complete failure to carry out its duties after the
explosions and the dilatory nature of its diplomatic Notes as extenuating circumstances
for the action of the United Kingdom. But, to ensure respect for international law, of
which it is the organ, the Court must declare that the action of the British Navy
constituted a violation of Albanian sovereignty. This declaration is in accordance with
the request made by Albania through her counsel and is in itself appropriate
satisfaction.
* * * To the Judgment of the Court there are attached one declaration and the
dissenting opinions of fudges Alvarez, Winiarski, Zoricic, Badawi Pasha, Krylov and
Azevedo, and also that of Dr. Ecer, Judge ad hoc.
Fisheries Jurisdiction (United Kingdom v. Iceland)
A. Introduction
1 These two parallel cases arose out of the extension by Iceland to 50 nautical miles
(nm) of its exclusive fishery zone (Fishery Zones and Limits) announced in 1971. The
proceedings against Iceland were instituted in the International Court of Justice (ICJ) by
the United Kingdom on 14 April 1972 and by the Federal Republic of Germany (FRG) on
5 June 1972. The two applicants shortly thereafter requested the Court to indicate
interim (provisional) measures of protection. The court indicated certain measures in its
orders of 17 August 1972 and confirmed them on 12 July 1973. Since Iceland informed
the Court that it was not willing to confer jurisdiction and would not appoint an agent
(International Courts and Tribunals, Procedure), the Court decided that it would first
have to consider whether it had jurisdiction (International Courts and Tribunals,
Jurisdiction and Admissibility of Inter-State Applications). It upheld its jurisdiction in two
almost identical judgments on 2 February 1973. The merits of the cases were
adjudicated in two very similar judgments rendered on 25 July 1974.
B. Facts
2 In 1948 Icelands parliament enacted a law entitled Law concerning the Scientific
Conservation of the Continental Shelf Fisheries, which authorized the government to
establish conservation zones within the limits of Icelands continental shelf wherein all
fisheries would be subject to its jurisdiction and control. In 1952 Iceland established a
four-mile exclusive fishery zone around its coast which Iceland extended in 1958 to 12
miles (Fisheries, Coastal). The new regulations prohibited all fishing activities by foreign
vessels within the zone. The UK raised protest on both occasions and the FRG did not
accept the validity of the extension of the zone to 12 miles and also made its position
known to Iceland (Protest). While German vessels, following the recommendation of
their authorities, abstained from fishing within the 12-mile zone in order to prevent
incidents, the UKs fishing vessels continued to fish inside the 12-mile zone, which led to
a number of incidentsknown as the first cod war. Following a series of negotiation[s],
Iceland and the UK reached a settlement through an exchange of notes on 11 March
1961 (Diplomatic Communications, Forms of). It specified that the UK would no longer
object to a 12-mile Icelandic fishery zone, that for a period of three years Iceland would
not object to UK vessels fishing within certain specified areas and during certain months
of the year, and that Iceland would continue to work on the implementation of its
parliament resolution regarding the extension of fisheries jurisdiction but should give to
the UK six months notice of such extension, and, in the case of a dispute in relation to
such extension, the matter should, at the request of either party, be referred to the ICJ.
Iceland informed the FRG about the settlement reached with the UK. Thereupon
negotiations commenced and a very similar agreement was reached between Iceland
and the FRG through an exchange of notes on 19 July 1961.
17

3 In 1971, the government of Iceland issued a policy statement in which it announced
that the agreements on fisheries jurisdiction with the UK and the FRG would be
terminated and the limit of Icelandic fisheries jurisdiction extended to 50 nm with effect
not later than 1 September 1972 (Treaties, Termination). The UK and the FRG in reaction
to the statement expressed the view that the exchanges of notes were not open to
unilateral termination (Unilateral Acts of States in International Law). The UK further
drew the attention of Iceland to the right of either party, under the terms of the
exchange of notes of 1961, to refer to the Court any extension of Icelands fishery limits.
Germany explained that the Icelandic fisheries zone could not be extended unilaterally.
Further negotiations and an exchange of diplomatic notes did not bring about any
change in Icelands position. After Icelands parliament adopted a resolution on 15
February 1972, in which it declared that the provisions of the exchanges of notes of
1961 no longer constituted an obligation for Iceland and resolved that the fishery limits
would be extended to 50 miles with effect no later than 1 September 1972, the UK on
14 April, and the FRG on 5 June 1972, instituted proceedings in the ICJ against Iceland.
Iceland maintained in a letter to the Court from its Minister of Foreign Affairs that the
exchanges of notes were no longer in force and informed the Court that it was not
willing to confer jurisdiction on the Court and would not appoint an agent (International
Courts and Tribunals, Agents, Counsel and Advocates). No pleadings were filed by
Iceland in the two cases and it did not appear in the hearings (International Courts and
Tribunals, Non-Appearance). The UK and the FRG called upon the court, under Art. 53
ICJ Statute, to decide in favour of their claims.
C. Orders on Interim Measures of Protection of 1972 and 1973
4 Following the extension of the Icelandic fishery zone to 50 nm and the prohibition of
all foreign fishing activities therein by regulations of 14 July 1972, the UK, on 19 July
1972, and the FRG, on 21 July 1972, requested the Court to indicate, pending the final
decision in the case, certain interim measures of protection. The court, on 17 August
1972, rendered two orders in which it indicated specific provisional measures. Each of
the parties were to ensure that no action of any kind was taken which would aggravate
or extend the dispute submitted to the Court or which would prejudice the rights of the
other party. Moreover, Iceland was to refrain from enforcing its regulations of 14 July
1972 against vessels of the UK and Germany engaged in fishing activities outside the 12-
mile zone. Iceland was also to refrain from applying administrative, judicial or other
measures against ships registered in the UK or in the FRG or their crews because of their
fishing activities in the waters around Iceland outside the 12-mile fishery zone (see also
Ships, Diverting and Ordering into Port; Ships, Visit and Search). On the other hand, the
UK was to ensure that the annual catch by British vessels in these waters did not surpass
the limit of 170,000 metric tons of fish and the FRG was to ensure that its vessels catch
did not exceed 119,000 metric tons. These limits were based on the average annual
catch in the period 196771 for which statistical data were available. Furthermore, the
UK and the FRG were to provide to Iceland and the Court all relevant information
concerning the control and regulation of fish catches in the area. Finally, the Court was
to review, at the request of either party, whether the above measures were to be
continued, modified or revoked at an appropriate time before 15 August 1973 if it had
not in the meantime delivered its final judgment. The final judgment not having been
rendered before that date, the Court, upon the requests made by the UK and the FRG
on 22 June 1973, confirmed in its orders of 12 July 1973 that the provisional measures
indicated in its orders of 17 August 1972 remained operative until the Court was to give
final judgment in the case.
5 Iceland did not consider the orders binding and made efforts to enforce its
regulations against British and German fishing vessels. Incidents involving ships of the
British navy, Icelandic coastal patrol boats and German fishery protection vessels
became increasingly frequentthe so-called second cod war. The UK and Iceland
reached an interim agreement on 13 November 1973, which dealt with the British
fishing, reducing the limit of its annual catch to 130,000 tonnes, in the 50-mile zone for
a period of two years. No such interim agreement was reached with the FRG.
D. Judgments on the Jurisdiction of the Court
6 Since Iceland asserted that there was no basis for the Court to exercise jurisdiction in
the two cases and further informed the Court that it was not willing to confer
jurisdiction on the Court and refused to appoint an agent, the Court decided that it
would limit the first stage of the proceedings to the determination of its jurisdiction and
directed the parties to address in its written pleadings that issue only. While the UK and
the FRG filed their memorials within a time-limit fixed by the Court, Iceland did not file
any written pleadings and did not take part in the subsequent hearings. The Court,
having found the UK and the FRG in the same interest for the purpose of determining
the Courts jurisdiction, refused the request of the FRG for the appointment of a judge
ad hoc (International Courts and Tribunals, Judges and Arbitrators), in view of the
presence of a judge of UK nationality among the members of the Court. The Court
recalled that in the case of non-appearance of the respondent it must, under Art. 53 ICJ
Statute, satisfy itself that it has jurisdiction before considering the merits of the case.
Therefore the Court considered those objections which, in its view, Iceland might have
raised against its jurisdiction.
7 The UK invoked as a basis for the Courts jurisdiction Art. 36 (1) ICJ Statute and the
compromissory clause contained in the exchange of notes of 11 March 1961. The court
determined that the dispute before it related to the extension by Iceland of its fisheries
jurisdiction beyond the 12-mile limit and that the dispute fell exactly within the terms of
the compromissory clause. The court further considered certain contentions, as it
understood these from a communication of Iceland, to the effect that the exchanges of
notes were either void ab initio or had since ceased to operate (see also Treaties,
Validity). The court ruled out that the exchanges of notes were made under duress and
concluded that those instruments were freely negotiated by the interested parties. It
further rejected a contention that the compromissory clause either had lapsed or was
terminable since the clause established the jurisdiction of the Court to deal with a
concrete type of dispute which was foreseen and specifically anticipated by the parties
and the dispute submitted to it was precisely of that sort.
8 The court also considered whether Iceland could not have relied on the changed
circumstances as a ground for terminating the exchanges of notes of 1961 (Treaties,
Fundamental Change of Circumstances). It observed that conditions and exceptions to
which this ground for termination of treaties is subjected were embodied in Art. 62
Vienna Convention on the Law of Treaties (1969), which may in many respects be
18
considered as a codification of existing customary law on the subject of the termination
of a treaty relationship on account of change of circumstances (Fisheries Jurisdiction
Case [United Kingdom of Great Britain and Northern Ireland v Iceland][Jurisdiction of
the Court]) [1973] ICJ Rep at 18, para. 36; see also Codification and Progressive
Development of International Law). The court noted that the claimed change of
circumstances must have been a fundamental one. In relation to Icelands reference to
developments in fishing techniques resulting in the increased exploitation of the fishery
resources in the seas around Iceland and to the danger of further exploitation, the Court
observed that there was a serious divergence of views between the parties as to
whether these developments have resulted in fundamental or vital changes for Iceland
but that those changes might be relevant for the decision on the merits of the dispute
(see also Vital Interests). But the Court took the view that alleged changes could not
have affected the obligation to accept the Courts jurisdiction. The Court recalled that
for a change of circumstances to give rise to a ground for invoking the termination of a
treaty, it is also necessary that such change should have resulted in a radical
transformation of the extent of the obligations still to be performed. The Court
explained that the change must have increased the burden of the obligations to be
executed to the extent of rendering the performance essentially different from that
originally undertaken. That condition was not satisfied in the case; not only had the
jurisdictional obligation not been radically transformed in its extent, but it remained
precisely the same as it was in 1961. In fact, the exchange of notes of 1961 provided, in
the view of the Court, the procedural complement to the doctrine of changed
circumstances since it specifically called upon the parties to have recourse to the Court
in the event of a dispute relating to Icelands extension of fisheries jurisdiction.
9 The FRG was not, when it seised the Court, party to its Statute as it was not yet a
member of the United Nations (International Organizations or Institutions,
Membership). Therefore it relied in its application on the exchange of notes of 19 July
1961, and also on a declaration, under United Nations Security Council (UNSC)
Resolution 9 (1946) of 15 October 1946 (see also Declaration; United Nations, Security
Council), which it made on 29 October 1971 and deposited with the registrar of the
Court on 22 November 1971. Iceland in its communication to the Court pointed to the
fact that the FRG accepted the jurisdiction of the Court only after it had been notified by
the government of Iceland, on 31 August 1971, that the object and purpose of the
provision for recourse to judicial settlement of certain matters had been fully achieved
(Judicial Settlement of International Disputes). The court observed that the binding
force of the exchange of notes had no relation to the date on which the declaration
required by the UNSC resolution was deposited with the registrar. The court clearly
ascribed different purposes to these two instruments; the exchange of notes was
designed to establish the jurisdiction of the Court over a particular kind of dispute, while
the declaration provided for access to the Court of a State which was not party to the ICJ
Statute. Moreover, the declaration was deposited timely, ie prior to the appearance of
the FRG before the Court.
E. Judgments on the Merits
10 The court decided not to join the proceedings in the two cases because, while the
basic legal issues in each case appeared to be identical, there were differences between
the positions and submissions of the two applicants. The court considered that the
joinder would be contrary to their wishes. In particular, the UK in its submissions asked
the Court to declare that the claim by Iceland to be entitled to a zone of 50 nm was
without foundation in international law and was invalid erga omnes (see also
Obligations erga omnes), while the FRG limited its request to the declaration that such
unilateral extension by Iceland of its zone of exclusive fishery jurisdiction had, as against
the FRG, no basis in international law and could not be invoked against Germany and its
fishing vessels. On the other hand, only Germany asked the Court to order Iceland to
make compensation for alleged acts of harassment of German fishing vessels by
Icelandic coastal patrol boats.
11 The court was aware that when it was considering these two cases, international law
of the sea, in particular the law relating to fisheries and to the conservation of the living
resources of the sea (Marine Living Resource, International Protection), was undergoing
a process of fairly rapid evolution. The question of extending the coastal States fisheries
jurisdiction (beyond 12 miles) had been at the forefront of the Third United Nations
Conference on the Law of the Sea which started in 1973 (Conferences on the Law of the
Sea). The court nevertheless pointed out that it could not render judgment sub specie
legis ferendae, or anticipate the law before States have laid it down. Therefore, the
Court intentionally avoided ruling on the first submission of the UK that the extension of
the fishery zone by Iceland was invalid.
12 The court found that: a) Icelands unilateral extension of its exclusive fishing rights
were not opposable to the UK or to the FRG; b) Iceland was not entitled unilaterally to
exclude the UK and German fishing vessels from areas between the 12-mile and 50-mile
limits or unilaterally to impose restrictions on their activities in such areas; and c) the
parties were under a mutual obligation to undertake negotiations in good faith for an
equitable solution of their differences relating to the apportionment of the fishery
resources (Equity in International Law; Good Faith [Bona Fide]), taking into account the
preferential rights of Iceland, the established rights of the UK and of the FRG,
respectively, as well as any interest of other States and a conservation of fishery
resources as pertinent factors in these negotiations.
13 The court took as a starting point of its analysis the 1958 and 1960 United Nations
Conferences on the Law of the Sea, and the subsequent evolution of international law
through State practice. The court concluded that two concepts crystallized as customary
international law; the concept of the fishery zone up to a 12-mile limit from the
baselines as the area in which a coastal State was entitled to exclusive fishery
jurisdiction independently of its territorial sea, and the concept of preferential rights of
fishing in adjacent water in favour of the coastal State in a situation of special
dependence on its coastal fisheries. In the view of the Court, however, the concept of
preferential rights of the coastal State was not compatible with the exclusion of all
fishing activities of other States. The concept implies a certain priority of the coastal
States rights but cannot imply the extinction of the concurrent rights of other States, in
particular of those States which, like the applicants, had for many years been engaged in
fishing in the waters in question. The fact that Iceland was entitled to claim preferential
rights did not suffice to justify its unilateral exclusion of British and German vessels from
all fishing activity in the waters beyond the 12-mile limit agreed to in the exchanges of
notes. The court considered the exchanges of notes as an implied acknowledgment by
Iceland of the existence of the fishery interests of the UK and of the FRG in the waters
19
adjacent to the 12-mile limit. The unilateral extension by Iceland of the fishery zone to
50 miles constituted, in the view of the Court, an infringement of the principle
enshrined in Art. 2 1958 Geneva Convention on the High Seas, which required all States,
including coastal States, to pay reasonable regard to the interests of other States in
exercising their freedom of fishing (Fisheries, High Seas). Icelands extension also
disregarded the applicants rights as derived from the exchanges of notes of 1961. The
extension could thus not be used against the UK or the FRG. On the other hand, that did
not mean that the applicants were under no obligation to Iceland with respect to fishing
in the disputed waters in the 12 to 50-mile zone. The Court stressed a need to reconcile
by negotiation the preferential fishing rights of Iceland with the traditional fishing rights
of the UK and of the FRG (see also Conciliation), indicating factors to be taken into
account to achieve an equitable solution-the relative dependence of either State on
the fisheries at any given moment, while taking into account the rights of other States
and the needs of conservation of natural resources. The objectives of the negotiations
moreover were to be the delimitation of the rights and interests of the parties, the
balancing and equitable regulation of such questions as catch-limitation, share
allocations and restrictions concerning areas closed to fishing, as well as settling other
modalities relating to the exercise of their respective rights. The court was of the view
that the obligation of the parties to negotiate followed from the very nature of their
respective rights. To direct them to negotiate was considered by the Court as a proper
exercise of its judicial function in the two cases.
14 The court did not accede to the claim for compensation, submitted by the FRG, since
it was presented in an abstract form and was not supported by detailed evidence as to
the existence and the amount of each head of damage (International Courts and
Tribunals, Evidence).
F. Assessment
15 The judgments did not settle the dispute. Iceland did not comply with the
judgments, but continued to maintain that the Court was without jurisdiction in the two
cases. In fact, less than a year after the judgments were rendered, on 15 July 1975,
Iceland established a 200-nm exclusive fishery zone, effective as of 15 October 1975
(Regulations concerning the Fishery Limits off Iceland [1975]). In the meantime, further
incidents occurred. Iceland took enforcement action against German and British
fishermen who did not respect the limits of Icelands fishery zone. Iceland and the FRG
concluded a fisheries agreement on 28 November 1975 which allowed fishing by
German vessels on a limited scale within certain areas of the Icelandic fishery zone for a
period of two years (Fisheries Agreement between Iceland and the Federal Republic of
Germany relating to the Extension of the Icelandic Fishery Limits to 200 Nautical Miles
[1976]). Incidents between Iceland and the UK became even more serious with the
involvement of navy vessels-the third cod war. Iceland brought a complaint about the
use of force to the UNSC in December 1975 (Use of Force, Prohibition of). The Council
considered the matter on 16 December 1975, but took no action. Finally, the two
parties reached an agreement on 1 June 1976, limited to a period of six months only,
which allowed the British vessels to fish in the zone under the agreed conditions
(Iceland-United Kingdom: Agreement concerning British Fishing in Icelandic Waters
[1976]).
G. Relevance
16 The judgments on the merits lost their practical effects at the moment when the
FRG on 21 December 1976 and the UK on 22 December 1976 themselves established
200-mile fishery zones. They were thus prevented from objecting to the Icelandic fishery
zone. The judgments did not have a significant impact on the evolution of the law of the
sea. They form part of the Courts history rather than of its relevant jurisprudence. The
judgments on the jurisdiction provide authority for interpretation of changed
circumstances as a ground for termination of a treaty. They also point to a distinction to
be made between the issue of access to the ICJ and that of its jurisdiction which is based
on consent.
Judgment of 2 February 1973
In its Judgment on the question of its jurisdiction in the case concerning Fisheries
Jurisdiction (Federal Republic of Germany v. Iceland), the Court found by 14 votes to 1
that it had jurisdiction to entertain the Application filed by the Federal Republic on 5
June 1972 and to deal with the merits of the dispute.
The Court was composed as follows: President Sir Muhammad Zafrulla Khan, Vice-
President Ammoun and Judges Sir Gerald Fitzmaurice, Padilla Nervo, Forster, Gros,
Bengzon, Petrn, Lachs, Onyeama, Dillard, Ignacio-Pinto de Castro, Morozov and
Jimnez de Archaga.
The President of the Court appended a declaration to the Judgment. Judge Sir Gerald
Fitzmaurice appended a separate opinion, and Judge Padilla Nervo a dissenting opinion.
*
**
Rsum of the Proceedings
(paras. 1-13 of the Judgment)
In its Judgment the Court recalls that on 5 June 1972 the Government of the Federal
Republic of Germany instituted proceedings against Iceland in respect of a dispute
concerning the proposed extension by the Icelandic Government of its exclusive
fisheries jurisdiction to a distance of 50 nautical miles from the baselines round its
coasts. By a letter of 27 June 1972 the Minister for Foreign Affairs of Iceland informed
the Court that his Government was not willing to confer jurisdiction on it and would not
appoint an Agent. By Orders of 17 and 18 August 1972 the Court indicated certain
interim measures of protection at the request of the Federal Republic and decided that
the first written pleadings should be addressed to the question of its jurisdiction to deal
with the case. The Government of the Federal Republic of Germany filed a Memorial,
whereas the Government of Iceland filed no pleadings.
Taking into account the proceedings instituted against Iceland by the United Kingdom
on 14 April 1972 in the case concerning Fisheries Jurisdiction and the composition of the
Court in this case, which includes a judge of United Kingdom nationality, the Court
decided by eight votes to five that there was in the present phase, concerning the
jurisdiction of the Court, a common interest in the sense of Article 31, paragraph 5, of
the Statute which justified the refusal of the request of the Federal Republic of Germany
for the appointment of a judge ad hoc.
On 8 January 1973 a public hearing was held in the course of which the Court heard oral
argument on the question of its jurisdiction on behalf of the Federal Republic of
Germany, but Iceland was not represented at the hearing.
20

In order to found the jurisdiction of the Court the Government of the Federal Republic
of Germany relies (a) on an Exchange of Notes between the Government of the Federal
Republic and the Government of Iceland dated 19 July 1961, and (b) on a declaration for
the purpose of securing access to the Court, in accordance with a Security Council
resolution of 15 October 1946, which it made on 29 October 1971 and deposited with
the Registrar of the Court on 22 November 1971. On28 July 1972 the Minister for
Foreign Affairs of Iceland pointed out in a telegram that the Federal Republic had thus
accepted the jurisdiction of the Court only "after it had been notified by the
Government of Iceland, in its aide-mmoire of 31 August 1971, that the object and
purpose of the provision for recourse to judicial settlement of certain matters had been
fully achieved". The Court observes that the binding force of the 1961 Exchange of
Notes bears no relation to the date of deposit of the declaration required by the
Security Council resolution and that the Government of the Federal Republic complied
with the terms both of the resolution in question and of Article 36 of the Rules of Court.
It is, the Court observes, to be regretted that the Government of Iceland has failed to
appear to plead the objections to the Court's jurisdiction which it is understood to
entertain. Nevertheless the Court, in accordance with its Statute and its settled
jurisprudence, must examine the question on its own initiative, a duty reinforced by
Article 53 of the Statute whereby, whenever one of the parties does not appear, the
Court must satisfy itself that it has jurisdiction before finding on the merits. Although
the Government of Iceland has not set out the facts and law on which its objection is
based, or adduced any evidence, the Court proceeds to consider those objections which
might, in its view, be raised against its jurisdiction. In so doing, it avoids not only all
expressions of opinion on matters of substance, but also any pronouncement which
might prejudge or appear to prejudge any eventual decision on the merits.
Compromissory clause of the 1961 Exchange of Notes
(paras. 14-23 of the Judgment)
By the 1961 Exchange of Notes the Federal Republic of Germany undertook to recognize
an exclusive Icelandic fishery zone up to a limit of 12 miles and to withdraw its fishing
vessels from that zone over a period of less than 3 years. The Exchange of Notes
featured a compromissory clause in the following terms:
"The Government of the Republic of Iceland shall continue to work for the
implementation of the Althing Resolution of 5 May, 1959, regarding the extension of the
fishery jurisdiction of Iceland. However, it shall give the Government of the Federal
Republic of Germany six months' notice of any such extension; in case of a dispute
relating to such an extension, the matter shall, at the request of either party, be
referred to the International Court of Justice."
The Court observes that there is no doubt as to the fulfilment by the Government of the
Federal Republic of its part of this agreement and that the Government of Iceland, in
1971, gave the notice provided for in the event of a further extension of its fisheries
jurisdiction. Nor is there any doubt that a dispute has arisen, that it has been submitted
to the Court by the Federal Republic of Germany and that, on the face of it the dispute
thus falls exactly within the terms of the compromissory clause.
Although, strictly speaking, the text of this clause is sufficiently clear for there to be no
need to investigate the preparatory work, the Court reviews the history of the
negotiations which led to the Exchange of Notes, finding confirmation therein of the
parties' intention to provide the Federal Republic, in exchange for its recognition of the
12-mile limit and the withdrawal of its vessels, with the same assurance as that given a
few weeks previously to the United Kingdom, including the right of challenging before
the Court the validity of any further extension of Icelandic fisheries jurisdiction beyond
the 12-mile limit.
It is thus apparent that the Court has jurisdiction.
Validity and duration of the 1961 Exchange of Notes
(paras. 24-25 of the Judgment)
The Court next considers whether, as has been contended, the agreement embodied in
the 1961 Exchange of Notes either was initially void or has since ceased to operate.
In the above-mentioned letter of 27 June 1972 the Minister for Foreign Affairs of Iceland
said that the 1961 Exchange of Notes "took place under extremely difficult
circumstances" and the Federal Republic of Germany has interpreted this statement as
appearing "to intimate that the conclusion of the 1961 Agreement had taken place, on
the part of the Government of Iceland, under some kind of pressure and not by its own
free will". The Court, however, notes that the agreement appears to have been freely
negotiated on the basis of perfect equality and freedom of decision on both sides.
In the same letter the Minister for Foreign Affairs of Iceland expressed the view that "an
undertaking for judicial settlement cannot be considered to be of a permanent nature"
and, as indicated above, the Government of Iceland had indeed, in an aide-mmoire of
31 August 1971, asserted that the object and purpose of the provision for recourse to
judicial settlement had been fully achieved. The Court notes that the compromissory
clause contains no express provision regarding duration. In fact, the right of the Federal
Republic of Germany to challenge before the Court any claim by Iceland to extend its
fisheries zone was subject to the assertion of such a claim and would last so long as
Iceland might seek to implement the 1959 Althing resolution.
In a statement to the Althing (the Parliament of Iceland) on 9 November 1971, the
Prime Minister of Iceland alluded to changes regarding "legal opinion on fisheries
jurisdiction". His argument appeared to be that as the compromissory clause was the
price that Iceland had paid at the time for the recognition by the Federal Republic of
Germany of the 12-mile limit, the present general recognition of such a limit constituted
a change of legal circumstances that relieved Iceland of its commitment. The Court
observes that, on the contrary, since Iceland has received benefits from those parts of
the agreement already executed, it behoves it to comply with its side of the bargain.
The letter and statement just mentioned also drew attention to "the changed
circumstances resulting from the ever increasing exploitation of the fishery resources in
21
the seas surrounding Iceland". It is, notes the Court, admitted in international law that if
a fundamental change of the circumstances which induced parties to accept a treaty
radically transforms the extent of the obligations undertaken, this may, under certain
conditions, afford the party affected a ground for invoking the termination or
suspension of the treaty. It would appear that in the present case there is a divergence
of views between the Parties as to whether there have been any fundamental changes
in fishing techniques in the waters around Iceland. Such changes would, however, be
relevant only for any eventual decision on the merits. It cannot be said that the change
of circumstances alleged by Iceland has modified the scope of the jurisdictional
obligation agreed to in the 1961 Exchange of Notes. Moreover, any question as to the
jurisdiction of the Court, deriving from an alleged lapse of the obligation through
changed circumstances, is for the Court to decide by virtue of Article 36, paragraph 6, of
its Statute.
The North Sea Continental Shelf Cases (Germany/Denmark;
Germany/Netherlands); Year of Decision: 1969; and Court: ICJ.
NB: This post discussed only aspects of the case related to treaty or customary
international law.
Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual
requirement for forming customary international law State practice (objective
element) and opinio juris (subjective element). It elaborated the criteria necessary to
establish State practice widespread and representative participation. The case
highlighted that the State practice of importance were of those States whose interests
were affected by the custom. It also identified the fact that uniform and consistent
practice was necessary to show opinio juris a belief that the practice amounts to a
legal obligation. The North Sea Continental Self Cases also dispelled the myth that
duration of the practice (i.e. the number of years) was an essential factor in
forming customary international law.
The case involved the delimitation of the continental shelf areas in the North Sea
between Germany and Denmark and Germany and Netherlands beyond the partial
boundaries previously agreed upon by these States. The parties requested the ICJ to
decide the principles and rules of international law that are applicable to the above
delimitation. The parties disagreed on the applicable principles or rules of delimitation
Netherlands and Denmark relied on the principle of equidistance (the method of
determining the boundaries in such a way that every point in the boundary is equidistant
from the nearest points of the baselines from which the breath of the territorial sea of
each State is measured). Germany sought to get a decision in favour of the notion that
the delimitation of the relevant continental shelf is governed by the principle that each
coastal state is entitled to a just and equitable share (hereinafter called just and
equitable principle/method). Contrary to Denmark and Netherlands, Germany argued
that the principle of equidistance was neither a mandatory rule in delimitation of the
continental shelf nor a rule of customary international law that was not binding on
Germany. The court was not asked to delimit the parties agreed to delimit the
continental shelf as between their countries, by agreement, after the determination of
the ICJ on the applicable principles.
Facts of the Case:
Netherlands and Denmark had drawn partial boundary lines based on the equidistance
principle (A-B and C-D). An agreement on further prolongation of the boundary proved
difficult because Denmark and Netherlands wished this prolongation to take place based
on the equidistance principle (B-E and D-E) where as Germany was of the view that,
together, these two boundaries would produce an inequitable result for her. Germany
stated that due to its concave coastline, such a line would result in her loosing out on
her share of the continental shelf based on proportionality to the length of its North Sea
coastline. The Court had to decide the principles and rules of international law
applicable to this delimitation. In doing so, the court had to decide if the principles
espoused by the parties were binding on the parties either through treaty law or
customary international law.
Questions before the Court (as relevant to this post):
Is Germany under a legal obligation to accept the equidistance-special circumstances
principle, contained in Article 6 of the Geneva Convention, either as a customary
international law rule or on the basis of the Geneva Convention?
The Courts Decision:
The use of the equidistance method had not crystallised into customary law and was is
not obligatory for the delimitation of the areas in the North Sea related to the present
proceedings.
Relevant Findings of the Court:
Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article
6, binding on Germany?
1. Article 6 of the Geneva Convention on the Continental Shelf states that unless the
parties have agreed on a method for delimitation or unless special circumstances exist,
the equidistance method would apply (see Article 6). Germany has signed but not
ratified the Geneva Convention, while Netherlands and Denmark are parties to the
Convention. The latter two States argue that while Germany is not a party to the
Convention (not having ratified it), she is still bound by Article 6 of the Convention
because:
(1) by conduct, by public statements and proclamations, and in other ways, the
Republic has unilaterally assumed the obligations of the Convention; or has manifested
its acceptance of the conventional regime; or has recognized it as being generally
applicable to the delimitation of continental shelf areas
22
(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in
such a manner as to cause other States, and in particular Denmark and the Netherlands,
to rely on the attitude thus taken up (the latter is called the principle of estoppel).
2. The Court rejected the first argument. It stated that only a very definite very
consistent course of conduct on the part of a State would allow the court to presume
that a State had somehow become bound by a treaty (by a means other than in a formal
manner: i.e. ratification) when the State was at all times fully able and entitled to
accept the treaty commitments in a formal manner. The Court held that Germany had
not unilaterally assumed obligations under the Convention. The court also took notice of
the fact that even if Germany ratified the treaty, she had the option of entering into a
reservation on Article 6 following which that particular article would no longer be
applicable to Germany (i.e. even if one were to assume that Germany had intended to
become a party to the Convention, it does not presuppose that it would have also
undertaken those obligations contained in Article 6).
3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into
force in 1980, discusses more fully the obligations of third States to treaties. It clearly
stipulates that an obligation arises for a third State from a provision of a treaty only if (1)
the parties to the treaty intend the provision to create this obligation for the third
States; and (2) the third State expressly accepts that obligation in writing (A. 35 of the
VCLT). The VCLT was not in force when the ICJ deliberated on this case. However,
as seen above, the ICJs position was consistent the VCLT. (See the relevant provisions
of the Vienna Convention on the Law of Treaties).
4. The court held that the existence of a situation of estoppel would have allowed
Article 6 to become binding on Germany but held that Germanys action did not
support an argument for estoppel. The court also held that the mere fact that Germany
may not have specifically objected to the equidistance principle as contained in Article 6
is not sufficient to state that the principle is now binding upon it.
5. In conclusion, the court held that Germany had not acted in any way to incur
obligations contained in Article 6 of the Geneva Convention. The equidistance special
circumstances rule was not binding on Germany by way of treaty.
Nature of the customary international law obligation: Is Germany bound by the
provisions of Article 6 of the Geneva Convention by way of customary international law?
6. Netherlands and Denmark argued that Article 6 also reflected the accepted rule of
general international law on the subject of continental shelf delimitation and existed
independently of the Convention. Therefore, they argued, Germany is bound by it by
way of customary international law.
7. To decide if the equidistance principle bound Germany by way of customary
international law, the court examined (1) the status of the principle contained in Article
6 as it stood when the Convention was being drawn up (2) and after the latter came into
force.
What was the customary law status of Article 6 at the time of drafting the Convention?
8. The court held the principle of equidistance, as contained in Article 6, did not form a
part of existing or emerging customary international law at the time of drafting the
Convention. The Court supported this finding based on (1) the hesitation expressed by
the drafters of the Convention International Law Commission on the inclusion of
Article 6 (para. 62) and (2) the fact reservations to Article 6 was permissible under the
Convention (Article 12). The court held:
Article 6 is one of those in respect of which, under the reservations article of the
Convention (Article 12) reservations may be made by any State on signing, ratifying or
acceding for, speaking generally, it is a characteristic of purely conventional rules and
obligations that, in regard to them, some faculty of making unilateral reservations may,
within certain limits, be admitted; whereas this cannot be so in the case of general or
customary law rules and obligations which, by their very nature, must have equal force
for all members of the international community, and cannot therefore be the subject of
any right of unilateral exclusion exercisable at will by any one of them in its own favor.
The normal inference would therefore be that any articles that do not figure among
those excluded from the faculty of reservation under Article 12, were not regarded as
declaratory of previously existing or emergent rules of law (see para 65 for a counter
argument and the courts careful differentiation)
Did the provisions in Article 6 on the equidistance principle attain the customary law
status after the Convention came into force?
9. The court then examined whether the rule contained in Article 6 had become
customary international law after the Convention entered into force either due the
convention itself (i.e., if enough States had ratified the Convention in a manner to fulfil
the criteria specified below), or because of subsequent State practice (i.e. even if
adequate number of States had not ratified the Convention one could find sufficient
State practice to meet the criteria below). The court held that Article 6 of the
Convention had not attained a customary law status (compare the 1958 Geneva
Convention with the four Geneva Conventions on 1949 in the field of international
humanitarian law in terms of its authority as a pronouncement of customary
international law).
10. For a customary rule to emerge the court held that it needed: (1) very widespread
and representative participation in the convention, including States whose interests
were specially affected (i.e. generality); and (2) virtually uniform practice (i.e. consistent
and uniform usage) undertaken in a manner that demonstrates (3) a general recognition
of the rule of law or legal obligation (i.e. opinio juries). In the North Sea Continental
Shelf cases the court held that the passage of a considerable period of time was
unnecessary (i.e. duration) for the formation of a customary law.
Widespread and representative participation
11. The court held that the first criteria was not met. The number of ratifications and
accessions to the convention (39 States) were not adequately representative (including
of coastal States i.e. those States whose rights are affected) or widespread.
Duration
23
12. The court held that duration taken for the customary law rule to emerge is not as
important as widespread and representative participation, uniform usage and the
existence of an opinio juris.
Although the passage of only a short period of time (in this case, 3 5 years) is not
necessarily, or of itself, a bar to the formation of a new rule of customary international
law on the basis of what was originally a purely conventional rule, an indispensable
requirement would be that within the period in question, short though it might be, State
practice, including that of States whose interests are specially affected, should have been
both extensive and virtually uniform in the sense of the provision invoked and should
moreover have occurred in such a way as to show a general recognition that a rule of
law or legal obligation is involved (text in brackets added).
Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case)
in so far as those acts or omissions are done following a belief that the said State is
obligated by law to act or refrain from acting in a particular way. (For more on opinio
juris click here).
14. The Court examined 15 cases where States had delimited their boundaries using the
equidistance method, after the Convention came into force (paras. 75 -77). The court
concluded, even if there were some State practice in favour of the equidistance
principle the court could not deduct the necessary opinio juris from this State
practice. The North Sea Continental Shelf Cases confirmed that both State practice (the
objective element) and opinio juris (the subjective element) are essential pre-requisites
for the formation of a customary law rule. This is consistent with Article 38 (1) (b) of the
Statute of the ICJ. The following explains the concept of opinio juris and the difference
between customs (i.e. habits) and customary law:
Not only must the acts concerned amount to a settled practice, but they must also be
such, or be carried out in such a way, as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it. The need for such a
belief, i.e, the existence of a subjective element, is implicit in the very notion of the opinio
juris sive necessitatis. The States concerned must therefore feel that they are conforming
to what amounts to a legal obligation. The frequency, or even habitual character of the
acts is not in itself enough. There are many international acts, e.g., in the field of
ceremonial and protocol, which are performed almost invariably, but which are
motivated only by considerations of courtesy, convenience or tradition, and not by any
sense of legal duty.
15. The court concluded that the equidistance principle was not binding on Germany by
way of treaty or customary international law because, in the case of the latter, the
principle had not attained a customary international law status at the time of the entry
into force of the Geneva Convention or thereafter. As such, the court held that the use
of the equidistance method is not obligatory for the delimitation of the areas concerned
in the present proceedings.
INTERNATIONAL COURT OF JUSTICE
DELIMITATION OF THE MARITIME BOUNDARY IN THE GULF OF MAINE AREA
CANADA v. UNITED STATES
III. Origins and development of the dispute (paras. 60-78)
Beginning with a reference to the Truman Proclamations of 1945, the Chamber
summarizes the origins and development of the dispute, which first materialized in the
1960s in relation to the continental shelf, as soon as petroleum exploration had begun
on either side, more particularly in certain locations on Georges Bank. In 1976-1977
certain events occurred which added to the continental shelf dimension that of the
waters and their living resources, for both States proceeded to institute an exclusive 200
mile fishery zone off their coasts and adopted regulations specifying the limits of the
zone and continental shelf they claimed. In its account of the negotiations which
eventually led to the reference of the dispute to the Court, the Chamber notes that in
1976 the United States adopted a line limiting both the continental shelf and the fishing
zones and the adoption by Canada of a first line in 1976 (Map No. 2).
The Chamber takes note of the respective delimitation lines now proposed by each
Party (Map No. 3). The Canadian line, described like that of 1976 as an equidistance line,
is one constructed almost entirely from the nearest points of the baselines from which
the breadth of the territorial sea is measured. Those points happen to be exclusively
islands, rocks or low-tide elevations, yet the basepoints on the Massachusetts coast
which had initially been chosen for the 1976 line have been shifted westward so that
the new line no longer takes account of the protrusion formed by Cape Cod and
Nantucket Island and is accordingly displaced west. The line proposed by the United
States is a perpendicular to the general direction of the coast from the starting-point
agreed upon by the Parties, adjusted to avoid the splitting of fishing banks. It differs
from the "Northeast Channel line" adopted in 1976 which, according to its authors, had
been based upon the "equidistance/special circumstances" rub of Article 6 of the 1958
Geneva Convention. The Chamber notes that the two successive lines put forward by
Canada were both drawn primarily with the continental shelf in mind, whereas the
United States lines were both drawn up initially on the basis of different considerations
though both treated the fishery rgime as essential.
IV. The applicable principles and rules of international law (paras. 79-112)
After observing that the terms "principles and rules" really convey one and the same
idea, the Chamber stresses that a distinction has to be made between such principles or
rules and what, rather, are equitable criteria or practical methods for ensuring that a
particular situation is dealt with in accordance with those principles and rules. Of its
nature, customary international law can only provide a few basic legal principles serving
as guidelines and cannot be expected also to specify the equitable criteria to be applied
or the practical methods to be followed. The same may however not be true of
international treaty law.
To determine the principles and rules of international law governing maritime
delimitation, the Chamber begins by examining the Geneva Convention of 29 April 1958
on the Continental Shelf, which has been ratified by both the Parties to the case, who
both also recognize that it is in force between them. In particular the Chamber examines
24
Article 6, paragraphs 1 and 2, from which a principle of international law may be
deduced to the effect bat any delimitation of a continental shelf effected unilaterally by
one State regardless of the views of the other State or States concerned is not
opposable to those States. To this principle may conceivably be added a latent rule that
any agreement or other equivalent solution should involve the application of equitable
criteria. The Chamber goes on to consider the bearing on the problem of various judicial
decisions and to comment upon the work of the Third United Nations Conference on the
Law of the Sea, noting that certain provisions concerning the continental shelf and the
exclusive economic zone were, in the Convention of 1982, adopted without any
objections and may be regarded as consonant at present with general international law
on the question.
As regards the respective positions of the Parties in the light of those findings, the
Chamber notes their agreement as to the existence of a fundamental norm of
international law calling for a single maritime boundary to be determined in accordance
with the applicable law, in conformity with equitable principles, having regard to all
relevant circumstances, in order to achieve an equitable result. However, there is no
longer agreement between the Parties when each separately seeks to ascertain whether
international law might also contain other mandatory rules in the same field. The
Chamber rejects the Canadian argument from geographical adjacency to the effect that
a rule exists whereby a State any part of whose coasts is less distant from the zones to
be attributed than those of the other State concerned would be entitled to have the
zones recognized as its own. The Chamber also finds unacceptable the distinction made
by the United States between "primary" and "secondary" coasts and the consequent
preferential relationship said to exist between the "principal" coasts and the maritime
and submarine areas situated frontally before them.
In concluding this part of its considerations, the Chamber sets out a more precise
reformulation of the fundamental norm acknowledged by the Parties:
"No maritime delimitation between States with opposite or adjacent coasts may be
effected unilaterally by one of those States. Such delimitation must be sought and
effected by means of an agreement, following negotiations conducted in good faith and
with the genuine intention of achieving a positive result. Where, however, such
agreement cannot be achieved, delimitation should be effected by recourse to a third
party possessing the necessary competence.
"In either case delimitation is to be effected by the application of equitable criteria and
by the use of practical methods capable of ensuring, with regard to the geographic
configuration of the area and other relevant circumstances, an equitable result." (Para.
112.)
V. The equitable criteria and practical methods applicable to the delimitation (paras.
113-163)
Turning to the question of the criteria and methods which are capable of ensuring an
equitable result and whose application is prescribed by the above norm, the Chamber is
of the view that they must be looked for not in customary international law but in
positive international law, and in that connection it examines those provided for by the
1958 Convention on the Continental Shelf, in Article 6 (median line in the case of
opposite coasts, lateral equidistance line in the case of adjacent coasts). The Chamber
points out that a treaty obligation concerning the delimitation of the continental shelf
cannot be extended so as to apply to the superjacent waters and, after rejecting the
Canadian argument that the combined equidistance/special-circumstances rule has
become a rule of general international law, finds that Article 6, while in force between
the Parties, does not entail either for them or for the Chamber any legal obligation to
apply its provisions to the present delimitation.
The Chamber next turns to the question whether any obligation of that kind can have
resulted from the conduct of the Parties and whether the conduct of one of them might
not have constituted an acquiescence in the application of a specific method or resulted
in a modus vivendi with regard to a line corresponding to such an application. Dealing
first with a Canadian argument that the conduct of the United States had evinced a form
of consent to the application of the equidistance method, especially in the Georges Bank
sector, the Chamber finds that reliance on acquiescence or estoppel is not warranted in
the circumstances and that the conduct of the Parties not prove the existence of any
such modus vivendi. As for the argument of the United States based on Canada's failure
to react to the Truman Proclamation, that amounted to claiming that delimitation must
be effected in accordance with equitable principles; consequently, the United States
position on that point merely referred back to the "fundamental norm" acknowledged
by both Parties. On the basis of that analysis, the Chamber concludes that the Parties, in
the current state of the law governing relations between them, are not bound, under a
rule of treaty law or other rule, to apply certain criteria or certain methods for the
establishment of the single maritime boundary, and that the Chamber is not so bound
either.
Regarding possible criteria, the Chamber does not consider that it would be useful to
undertake a more or less complete enumeration in the abstract of those that might be
theoretically conceivable, or an evaluation of their greater or lesser degree of equity. It
also notes, in regard to the practical methods, that none would intrinsically bring
greater justice or be of greater practical usefulness than others, and that there must be
willingness to adopt a combination of different methods whenever circumstances so
require.
VI. The criteria and methods proposed by the Parties and the lines resulting from their
application to the delimitation (paras. 164-189)
Once the dispute had taken on its present dual dimension (first the continental shelf
and subsequently fisheries) both Parties took care to specify and publish their respective
claims, proposing the application of very different criteria and the use of very different
practical methods. Each had successively proposed two delimitation lines (Maps Nos. 2
and 3).
The United States had first proposed, in 1976, a criterion attaching determinative value
to the natural, especially ecological, factors of the area. Its line corresponded
approximately to the line of the greatest depths, leaving German Bank to Canada and
Georges Bank to the United States. The Chamber considers that this line, inspired as it
was by the objective of distributing fishery resources in accordance with a "natural"
25
criterion, was too biased towards one aspect (fisheries) to be considered as equitable in
relation to the overall problem. In 1982 the United States proposed a second line with
the general direction of the coast as its central idea, the criterion applied being that of
the frontal projection of the primary coastal front. This application resulted in a
perpendicular to the general direction of the coastline, adjusted however to take
account of various relevant circumstances, in particular such ecological circumstances as
the existence of fishing banks. The Chamber considers it almost an essential condition
for the use of such a method that the boundary to be drawn should concern two
countries whose territories lie successively along a more or less rectilinear coast, for a
certain distance at least. But it would be difficult to imagine a case less conducive to the
application of that method than the Gulf of Maine case. The circumstances would
moreover entail so many adjustments that the character of the method would be
completely distorted.
As for the Canadian proposals, the Chamber considers together the two lines proposed
respectively in 1976 and 1977, as they are essentially based on the same criterion, that
of the equal division of disputed areas - and the same method - equidistance. Canada
described the first line as a strict equidistance line, and the second as an equidistance
line corrected on account of the special circumstance formed by the protrusion of
Nantucket Island and the Cape Cod peninsula, alleged to be geographical anomalies that
Canada is entitled to discount, so that its delimitation line is displaced towards the west.
The Chamber notes that in the case before it the difference in the lengths of the two
States' coastlines within the delimitation area is particularly marked and would
constitute a valid ground for making a correction even if this factor in itself furnished
neither a criterion nor a method of delimitation. Furthermore, the Canadian line
appears to neglect the difference between two situations clearly distinguished by the
1958 Convention, namely that of adjacent coasts and that of opposite coasts, and fails
to take account of the fact that the relationship of lateral adjacency between on the one
hand, part of the coast of Nova Scotia and its prolongation across the opening of the Bay
of Fundy and, on the other hand, the coast of Maine, gives way to a relationship of
frontal opposition between the other relevant part of the coast of Nova Scotia and the
coast of Massachusetts. The Canadian line fails to allow for this new relationship, which
is nevertheless the most characteristic feature of the objective situation in the context
of which the delimitation is to be effected.
VII. The criteria and methods held by the Chamber to be applicable. Line resulting from
their application to the delimitation (paras. 190-229)
The Chamber considers that, having regard to all those considerations, it must put
forward its own solution independently of the Parties. It must exclude criteria which,
however equitable they may appear in themselves, are not suited to the delimitation of
both of the two objects in respect of which the delimitation is requested - the
continental shelf and the fishery zones. Inevitably, criteria will be preferred which, by
their more neutral character, are best suited for use in a multipurpose delimitation. The
Chamber feels bound to turn in the present case to criteria more especially derived from
geography, and it is inevitable that its basic choice should favour the criterion whereby
one should aim at an equal division of areas where the maritime projections of the
coasts of the States between which delimitation is to be effected converge and overlap.
However, some corrections must be made to certain effects of applying that criterion
that might be unreasonable, so that the concurrent use of auxiliary criteria may appear
indispensable. As regards the practical methods to be used for giving effect to the
criteria indicated, the Chamber considers that, like the criteria themselves, they must be
basically founded upon geography and be as suitable for the delimitation of the sea-bed
and subsoil as to that of the superjacent waters and their living resources. In the
outcome, therefore, only geometrical methods will serve.
Turning to the concrete choice of the methods it considers appropriate for
implementing the equitable criteria it has decided to apply, the Chamber notes that the
coastal configuration of the Gulf of Maine excludes any possibility of the boundary's
being formed by a basically unidirectional line, given the change of situation noted in
the geography of the Gulf. It is only in the northeastern vector of the Gulf that the
prevailing relationship of the coasts of the United States and Canada is one of lateral
adjacency. In the sector closest to the closing line, it is one of oppositeness. In the
Chamber's view it is therefore obvious that, between point A and the line from
Nantucket to Cape Sable, i.e. within the limits of the Gulf of Maine proper, the
delimitation line must comprise two segments.
In the case of the first segment, the one closest to the international boundary terminus,
there is no special circumstance to militate against the division into, as far as possible,
equal parts of the overlapping created by the lateral superimposition of the maritime
projections of the two States' coasts. Rejecting the employment of a lateral equidistance
line on account of the disadvantages it is found to entail, the Chamber follows the
method of drawing, from point A, two perpendiculars to the two basic coastal lines,
namely the line from Cape Elizabeth to the international boundary terminus and the line
running thence to Cape Sable. At point A, those two perpendiculars form an acute angle
of 278. It is the bisector of this angle which is prescribed for the first sector of the
delimitation line (Map No. 4).
In turning to the second segment, the Chamber proceeds by two stages. First, it decides
the method to be employed in view of the quasi-parallelism between the coasts of Nova
Scotia and Massachusetts. As these are opposite coasts, the application of a geometrical
method can only result in the drawing of a median delimitation line approximately
parallel to them. The Chamber finds, however, that, while a median line would be
perfectly legitimate if the international boundary ended in the very middle of the coast
at the back of the Gulf, in the actual circumstances where it is situated at the
northeastern corner of the rectangle which geometrically represents the shape of the
Gulf the use of a median line would result in an unreasonable effect, in that it would
give Canada the same overall maritime projection in the delimitation area as if the
entire eastern part of the coast of Maine belonged to Canada instead of the United
States. That being so, the Chamber finds a second stage necessary, in which it corrects
the median line to take account of the undeniably important circumstance of the
difference in length between the two States' coastlines abutting on the delimitation
area. As the total length of the United States coastlines on the Gulf is approximately 284
nautical miles, and that of the Canadian coasts (including part of the coast of the Bay of
Fundy) is approximately 206 nautical miles, the ratio of the coastlines is 1.38 to 1.
However, a further correction is necessitated by the presence of Seal Island off Nova
Scotia. The Chamber considers that it would be excessive to consider the coastline of
Nova Scotia as displaced in a southwesterly direction by the entire distance between
26
Seal Island and that coast, and therefore considers it appropriate to attribute half effect
to the island. Taking that into account, the ratio to be applied to determine the position
of the corrected median line on a line across the Gulf between the points where the
coasts of Nova Scotia and Massachusetts are closest (i.e. a line from the tip of Cape Cod
to Chebogue Point) becomes 1.32 to 1. The second segment of the delimitation will
therefore correspond to the median line as thus corrected, from its intersection with
the bisector drawn from point A (first segment) to the point where it reaches the closing
line of the Gulf (Map No. 4).
As for the third segment of the delimitation, relating to that part of the delimitation
area lying outside the Gulf of Maine, this portion of the line is situated throughout its
length in the open ocean. It appears obvious that the most appropriate geometrical
method for this segment is the drawing of a perpendicular to the closing line of the Gulf.
One advantage of this method is to give the final segment of the line practically the
same orientation as that given by both Parties to the final portion of the respective lines
they envisaged. As for the exact point on the closing line from which the perpendicular
should be drawn seawards, it will coincide with the intersection of that line with the
corrected median line. Starting from that point, the third segment crosses Georges Bank
between points on the 100-fathom depth line with the following coordinates:
42 11'.8 N, 67 11'.0 W
41 10'.1 N, 66 17'.9 W
The terminus of this final segment will be situated within the triangle defined by the
Special Agreement and coincide with the last point it reaches within the overlapping of
the respective 200-mile zones claimed by the two States.
VIII. Verification of the equitable character of the result (paras. 230-241)
Having drawn the delimitation line requested by the Parties, the final task of the
Chamber is to verify whether the result obtained can be considered as intrinsically
equitable in the light of all the circumstances. While such verification is not absolutely
necessary where the first two segments of the line are concerned, since the Chamber's
guiding parameters were provided by geography, the situation is different as regards
the third segment, which is the one of greatest concern to the Parties on account of the
presence in the area it traverses of Georges Bank, the principal stake in the proceedings
on account of the potential resources of its subsoil and the economic importance of its
fisheries.
In the eyes of the United States, the decisive factor lies in the fishing carried on by the
United States and its nationals ever since the country's independence and even before,
activities which they are held to have been alone in pursuing over the greater part of
that period, and which were accompanied by other maritime activities concerning
navigational assistance, rescue, research, defence, etc. Canada laid greater emphasis on
the socio-economic aspects, concentrating on the recent past, especially the last 15
years, and presenting as an equitable principle the idea that a single maritime boundary
should ensure the maintenance of the existing structures of fishing which, according to
it, were of vital importance to the coastal communities of the area.
The Chamber explains why it cannot subscribe to these contentions and finds that it is
clearly out of the question to consider the respective scale of activities in the domain of
fishing or petroleum exploitation as an equitable criterion to be applied in determining
the delimitation line. What the Chamber would regard as a legitimate scruple lies rather
in concern lest, unexpectedly, the overall result should appear radically inequitable as
entailing disastrous repercussions on the subsistence and economic development of the
populations concerned. It considers that there is no reason to fear any such danger in
the present case on account of the Chamber's choice of delimitation line or, more
especially, the course of its third segment, and concludes that the overall result of the
delimitation is equitable. Noting the long tradition of friendly and fruitful co-operation
in maritime matters between Canada and the United States, the Chamber considers that
the Parties will be able to surmount any difficulties and take the right steps to ensure
the positive development of their activities in the important domains concerned.
For these reasons, the Chamber renders the decision couched in the following terms:
OPERATIVE PROVISIONS OF THE CHAMBER'S JUDGMENT
THE CHAMBER,
by four votes to one,
Decides
That the course of the single maritime boundary that divides the continental shelf and
the exclusive fisheries zones of Canada and the United States of America in the Area
referred to in the Special Agreement concluded by those two States on 29 March 1979
shall be defined by geodetic lines connecting the points with the following co-ordinates:
Latitude North Longitude West
A. 44 11' 12" 67 16' 46"
B. 42 53' 14" 67 44' 35"
C. 42 31' 08" 67 28' 05"
D. 40 27' 05" 65 41' 59"
IN FAVOUR: President Ago; Judges Mosler and Schwebel, Judge ad hoc Cohen;
AGAINST: Judge Gros."
27
UNITED STATES of America, Plaintiff, v. F/V TAIYO MARU, NUMBER 28, SOI 600, and
her Tackle, Apparel, Furniture, Appurtenances, Cargo and Stores, Defendant.
UNITED STATES of America v. Masatoshi KAWAGUCHI
Civ. No. 74-101 SD, Cr. No. 74-46 SD.
United States District Court, D. Maine, S. D.
June 17, 1975.
*414 Peter Mills, U. S. Atty., John B. Wlodkowski, Asst. U. S. Atty., Portland, Me., Edward
F. Bradley, Jr., Land & Natural Resources Div., U. S. Dept. of Justice, Washington, D. C.,
Charles E. Kuenlen, National Marine Fisheries Service, U. S. Dept. of Commerce,
Gloucester, Mass., for plaintiff.
Fred C. Scribner, Jr., Portland, Me., Peter J. Gartland, Wender, Murase & White, New
York City, for defendant.
OPINION AND ORDER OF THE COURT
GIGNOUX, District Judge.
These two proceedings arise from the seizure of a Japanese fishing vessel, the F/V TAIYO
MARU 28, by the United States Coast Guard for violation of United States fisheries law.
On September 5, 1974, the Coast Guard sighted the TAIYO MARU 28 fishing at Latitude
43-35.9 North, Longitude 69-20 West. That point is approximately 16.25 miles off the
coast of the State of Maine and approximately 10.5 miles seaward from Monhegan
Island. It is conceded to be within the contiguous fisheries zone of the United States. 16
U.S. C. 1092. The Coast Guard signaled the TAIYO MARU 28 to stop, but the vessel
attempted to escape by accelerating toward the high seas. The Coast Guard
immediately pursued and seized the vessel on the high seas at Latitude 42-58 North,
Longitude 68-24 West, a point approximately 67.9 miles at sea from the mainland of the
continental United States. The vessel was thereafter delivered to the port of
Portland, *415 and on September 6, 1974, the United States filed in this Court a civil
complaint for condemnation and forfeiture of the vessel and a criminal information
against the master, Masatoshi Kawaguchi. Both actions charge violations of 16 U.S.C.
1081 and 1091 and seek imposition of the sanctions for such violations provided by 16
U.S.C. 1082.[1] On October 4, 1974, Miho Maguro Gyogyo Kabushiki Kaisha of Shimizi,
Japan, a corporation, as the sole owner and party entitled to possesion of the TAIYO
MARU 28, appeared through local counsel and filed its demand for restitution and right
to defend, and an answer to the complaint, in the forfeiture action.[2] On October 18,
1974, the master was arraigned and pleaded not guilty to the criminal information.[3]
Presently before the Court are identical motions for dismissal of the complaint and
information filed by the claimant in the forfeiture action and the master in the criminal
action (hereinafter collectively referred to as defendant). Defendant seeks dismissal of
all proceedings on the ground that the Court lacks jurisdiction, since the vessel,
unlawfully, was seized on the high seas in violation of the territorial limitations imposed
by international agreements on the power of the United States to pursue and seize
foreign vessels and arrest foreign nationals for violation of its domestic fisheries law.
The issue thus presented is before the Court on the basis of the pleadings, supplemental
stipulations, and the written and oral arguments of counsel.[4]
For the reasons to be stated, defendant's motions to dismiss for lack of jurisdiction are
denied.
I
Summary of Facts and Contentions of the Parties
There is no dispute as to the events, recited above, which led to the seizure of the TAIYO
MARU 28. For the purposes of the instant motions, the following undisputed facts are
significant: (1) On September 5, 1974, the United States Coast Guard sighted the TAIYO
MARU 28, a commercial Japanese fishing vessel, within waters which the United States
claims as part of its contiguous fisheries zone, and had reasonable cause to believe that
the vessel was fishing in the zone in violation of United States fisheries law; and (2) at
that point, the Coast Guard signaled the TAIYO MARU 28 and, after giving immediate
and continuous hot pursuit, effected seizure of the vessel on the high seas.
The United States contends that, by fishing in the contiguous fisheries zone, the TAIYO
MARU 28 and her captain violated the Bartlett Act, 16 U.S.C. 1081 et seq., and the
Contiguous Fisheries Zone Act, 16 U.S.C. 1091 et seq., and that international law
permits, and United States law authorizes, the hot pursuit of a foreign vessel from the
contiguous fisheries zone and the seizure of the vessel on the high seas for violation of
domestic fisheries law. Defendant's position is that this Court lacks jurisdiction over the
TAIYO MARU 28 and her master, because the vessel was seized on the high seas in
violation of the 1958 Geneva Convention on the High Seas, opened for signature April
29, 1958, 13 U.S.T. 2312 (entered into force September 20, 1962), a
multilateral *416 treaty agreement to which both Japan and the United States are
parties signatory.
II
The Statutes Involved
By the Bartlett Act, enacted in 1964, Congress made it unlawful for any foreign vessel, or
for the master of such a vessel, to engage in fishing within the territorial waters of the
United States, or "within any waters in which the United States has the same rights in
respect to fisheries as it has in its territorial waters . . . except . . . as expressly provided
by an international agreement to which the United States is a party." 16 U.S.C.
1081.[5] The Bartlett Act established criminal penalties for violators and provided for the
seizure and forfeiture of any vessel and its catch found in violation. 16 U.S.C.
1082.[6] In enacting the Bartlett Act, the intent of Congress was to fill a gap in existing
law by making it clear that foreign vessels are denied the privilege of fishing within the
territorial waters of the United States and by providing effective sanctions for unlawful
fishing by foreign vessels within territorial waters. H.R.Rep. (Merchant Marine and
28
Fisheries Committee) No. 1356 (1964), U.S.Cong. & Admin.News, 1964, pp. 2183, 2183-
84. The Bartlett Act did not define the width of the territorial sea, "thereby leaving the
opportunity for the United States to follow the lead of Canada and other nations in
establishing a limit beyond the present 3 miles for fishery purposes." Id. at p. 2187. The
words "within any waters in which the United States has the same rights in respect to
fisheries as it has in its territorial waters" were added in anticipation of the United
States extending its fishery jurisdiction out to 12 miles. See H.R.Rep. (Merchant Marine
and Fisheries Committee) No. 2086 (1966), U.S.Cong. & Admin.News, 1966, pp. 3282,
3289.
By the Contiguous Fisheries Zone Act, enacted in 1966, Congress established a fisheries
zone contiguous to the territorial waters of the United States and provided with respect
to such zone:
The United States will exercise the same exclusive rights in respect to fisheries in the
zone as it has in its territorial sea, subject to the continuation of traditional fishing by
foreign states within this zone as may be recognized by the United States. 16 U. S.C.
1091.[7]
*417 The contiguous fisheries zone was defined by Congress in the Contiguous Fisheries
Zone Act as having "as its inner boundary the outer limits of the territorial sea and as its
seaward boundary a line drawn so that each point on the line is nine nautical miles from
the nearest point in the inner boundary." 16 U.S.C. 1092.[8] In so defining the
contiguous zone, Congress recognized that the territorial sea of the United States
extends three miles from the United States, which is where Thomas Jefferson set the
outer limit in 1793 and where "it has remained unaltered to this day."
H.R.Rep.No.2086, supra at pp. 3284-85. See Cunard Steamship Co. v. Mellon, 262 U.S.
100, 122-23, 43 S. Ct. 504, 167 L. Ed. 894 (1923).[9] It was the expressed intent of
Congress in the 1966 legislation to "unilaterally establish a fishery zone contiguous to
the present 3-mile territorial sea of the United States by extending our exclusive
fisheries rights to a distance of 12 miles from our shores." H.R.Rep.No.2086, supra at p.
3285.
III
The Right of Hot Pursuit From the Contiguous Fisheries Zone
Defendant makes no contention that the contiguous fisheries zone created by the
United States in the Contiguous Fisheries Zone Act violates customary international law.
Defendant also recognizes that, within the three-mile territorial sea, the United States
has the right to prohibit foreign fishing and that Article 23 of the Convention on the High
Seas provides express authority for the United States to conduct hot pursuit from the
territorial sea onto the high seas for the purpose of apprehending foreign ships which
have violated domestic fisheries law within the territorial sea. And defendant does not
contest that the Contiguous Fisheries Zone Act extended to a zone nine miles from the
seaward limit of the territorial sea all the rights with respect to fisheries which the
United States previously had in its territorial sea, and that, unless restricted by treaty,
the United States has the right to conduct hot pursuit from a contiguous zone onto the
high seas for violations of its domestic law. See The Newton Bay, 36 F.2d 729, 731-32
(2d Cir. 1929); Gillam v. United States, 27 F.2d 296, 299-300 (4th Cir.), cert. denied, 278
U.S. 635, 49 S. Ct. 32, 73 L. Ed. 552 (1928); The Resolution, 30 F.2d 534, 537
(E.D.La.1929); The Pescawha, 45 F.2d 221, 222 (D.Ore.1928); The Vinces, 20 F.2d 164,
172-73 (E.D.S.C. 1927). Defendant's sole contention is that the United States had no
right to conduct hot pursuit from the contiguous zone and to effect seizure of the TAIYO
MARU 28, because the vessel was seized on the high seas in violation of Article 23 of the
1958 Convention on the High Seas.
The Convention on the High Seas provides, in Article 2, that:
The high seas being open to all nations, no State may validly purport to subject any part
of them to its sovereignty. Freedom of the high seas . . . comprises, inter alia, both for
coastal and non-coastal States:
......
(2) Freedom of fishing; . . .
Article 5 of the Convention vests "exclusive jurisdiction" in each signatory over its
vessels "on the high seas." Article 23 of the Convention, however, recognizes certain
instances in which a State *418 may seize a foreign vessel on the high seas, based on
hot pursuit:
The hot pursuit of a foreign ship may be undertaken when the competent authorities of
the coastal State have good reason to believe that the ship has violated the laws and
regulations of that State. Such pursuit must be commenced when the foreign ship or
one of its boats is within the internal waters or the territorial sea or the contiguous zone
of the pursuing State, and may only be continued outside the territorial sea or the
contiguous zone if the pursuit has not been interrupted. . . . If the foreign ship is within a
contiguous zone, as defined in article 24 of the Convention on the Territorial Sea and
the Contiguous Zone, the pursuit may only be undertaken if there has been a violation
of the rights for the protection of which the zone was established.
Article 24 of the Convention on the Territorial Sea and the Contiguous Zone, opened for
signature April 29, 1958, 15 U.S.T. 1607 (entered into force September 10, 1964),
contains the following pertinent provisions:
1. In a zone of the high seas contiguous to its territorial sea, the coastal State may
exercise the control necessary to:
(a) Prevent infringement of its customs, fiscal, immigration or sanitary regulations within
its territory or territorial sea;
(b) Punish infringement of the above regulations committed within its territory or
territorial sea.
2. The contiguous zone may not extend beyond twelve miles from the baseline from
which the breadth of the territorial sea is measured.
29
Defendant asserts that Article 23 of the Convention on the High Seas must be read in
conjunction with Article 24 of the Convention on the Territorial Sea and the Contiguous
Zone. The argument is that since Article 24 only authorizes the establishment of a
contiguous zone for the purposes of enforcing the coastal State's customs, fiscal,
immigration or sanitary regulations, and since Article 23 permits hot pursuit of a foreign
ship from such a contiguous zone only for the four purposes listed in Article 24, the
United States was without authority to commence hot pursuit of the TAIYO MARU 28
from within the contiguous fisheries zone for the purpose of enforcing its fisheries
regulations.
Both parties recognize that the general rule of law is that the power of the government
to enforce a forfeiture or to prosecute a defendant is not impaired by the illegality of
the method by which it has acquired control over the property or the defendant. Dodge
v. United States, 272 U.S. 530, 532, 47 S. Ct. 191, 71 L. Ed. 392 (1926); The
Caledonian, 17 U.S. 100, 4 Wheat. 100, 103, 4 L. Ed. 523 (1819); The Richmond, 13 U.S.
102, 9 Cranch. 102, 3 L. Ed. 670 (1815) (unlawful seizure of property); Frisbie v.
Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436,
444, 7 S. Ct. 225, 30 L. Ed. 421 (1886); Lujan v. Gengler, 510 F.2d 62, 65-68 (2d Cir.
1975); but cf. United States v. Toscanino, 500 F.2d 267, 271-79 (2d Cir. 1974) (unlawful
apprehension of defendant). Defendant relies upon the exception to this general rule
established in Cook v. United States, 288 U.S. 102, 53 S. Ct. 305, 77 L. Ed. 641 (1933).
In Cook, the United States Coast Guard seized a British vessel, the Mazel Tov, caught in
rum-running, on the high seas outside the American jurisdictional limits set by a British-
American treaty covering the apprehension of prohibition law violators. [10] The
Supreme *419 Court held that the United States "lacking power to seize, lacked power,
because of the Treaty, to subject the vessel to our laws. To hold that adjudication may
follow a wrongful seizure would go far to nullify the purpose and effect of the
Treaty." Id. at 121-22, 53 S. Ct. at 312. See also The Golmaccan, 8 F. Supp. 338
(D.Me.1934); The Which One, 2 F. Supp. 890 (E.D. N.Y.1933); United States v. Ferris, 19
F.2d 925 (N.D.Cal.1927) (seizure of vessel); Ford v. United States, 273 U.S. 593, 605-06,
47 S. Ct. 531, 71 L. Ed. 793 (1927); United States v. Rauscher, 119 U.S. 407, 430-32, 7 S.
Ct. 234, 30 L. Ed. 425 (1886); United States v. Toscanino, supra, 500 F.2d at 278-79
(apprehension of defendant). Mr. Justice Brandeis made clear, however, that the
exception to the general rule recognized in Cook covers the particular situation where
the United States has by treaty "imposed a territorial limitation upon its own authority."
Cook v. United States, supra, 288 U.S. at 121, 53 S. Ct. at 312. As stated in Autry v. Wiley,
440 F.2d 799 (1st Cir. 1971), the Cook doctrine is a "narrow" exception to the general
rule; it "applies only to violations of a specific territorial jurisdictional circumscription set
by treaty." Id. at 802.
Defendant strenuously argues that the Cook exception destroys the jurisdiction of this
Court in these proceedings because by Article 23 of the Convention on the High Seas,
read together with Article 24 of the Convention of the Territorial Sea and the
Contiguous Zone, the United States has undertaken a specific obligation not to institute
hot pursuit of a foreign ship from the contiguous fisheries zone for violation of its
fisheries law. Defendant's position is that Article 23 limits the government's right of hot
pursuit from a contiguous zone to the four purposes for which Article 24 authorizes the
establishment of such a zone, and the enforcement of domestic fisheries law is not one
of the purposes recognized by Article 24. The Court is persuaded, however, that neither
the language nor the history of the Conventions shows that the signatory parties
intended to limit the right of a coastal State to exercise exclusive fishery jurisdiction
within 12 miles of its coast, to establish a contiguous zone for such a purpose, or to
conduct hot pursuit from such a zone.
Analysis of the text of Article 23 of the Convention on the High Seas shows that the
Article provides general authority to undertake hot pursuit from a contiguous zone
when the authorities of the coastal State have good reason to believe that a foreign
vessel has violated the coastal State's laws and regulations. It is true that Article 23
permits hot pursuit from a contiguous zone, created for one of the four purposes
enumerated in Article 24 of the Convention on the Territorial Sea and the Contiguous
Zone, only if there has been a violation of the rights for the protection of which the zone
was established. But Article 23 does not in terms deny a coastal State the right to
commence hot pursuit from a contiguous zone established for a purpose other than one
of the purposes listed in Article 24. Nor does Article 24 in terms prohibit the
establishment of a contiguous zone for a purpose other than one of those specified in
the Article. The language of Article 24, relating to the purposes for which a contiguous
zone may be established, is permissive, rather than restrictive. It provides that a coastal
State "may" establish a contiguous zone for the purposes of enforcing its customs, fiscal,
immigration or sanitary regulations. Although Article 24 only affirmatively recognizes
the right of a coastal State to create a contiguous zone for one of the four enumerated
purposes, nothing in the Article precludes the establishment of such a zone for other
purposes, including the enforcement of domestic fisheries law. In short, unlike the
British-American *420 treaty in Cook,[11] the Conventions in the case at bar contain no
specific undertaking by the United States not to conduct hot pursuit from a contiguous
fisheries zone extending 12 miles from its coast. The Cook exception, therefore, is not
applicable, because the United States has not by treaty "imposed a territorial limitation
upon its own authority."
The history of the 1958 Conventions confirms the conclusion that the United States did
not specifically undertake to limit its authority to exercise exclusive fisheries jurisdiction
within 12 miles of its coast, to establish a contiguous zone for such a purpose, or to
conduct hot pursuit from such a zone. The Convention on the High Seas and the
Convention on the Territorial Sea and the Contiguous Zone were the product of the
Conference on the Law of the Sea, convened at Geneva in 1958 pursuant to Resolution
1105 of the General Assembly of the United Nations. U.N. General Assembly, 11th Sess.,
Official Records, Supp. No. 17 (A/3572). Although the Conference was convened to
resolve a variety of matters pertaining to the codification of the Law of the Sea, most
commentators agree that the two principal issues presented for the Conference's
consideration were the question of the breadth of the territorial sea, and the closely-
related question of whether there should be an additional contiguous zone in which the
coastal States could exercise exclusive jurisdiction over fishing. See, e. g., McDougal and
Burke, The Public Order of the Oceans, 524-48 (1st ed. 1962); Fitzmaurice, Some Results
of the Geneva Conference on the Law of the Sea, 8 International and Comparative Law
Quarterly 73, 73-75 (1959); Dean, The Geneva Conference on the Law of the Sea: What
Was Accomplished, 52 The American Journal of International Law 607, 607-08
(1958). See also Hearings on the Conventions on the Law of the Sea, Executives J, K, L,
M, N, before the Committee on Foreign Relations, United States Senate, 86th Cong. 2nd
Sess., p. 4 (January 20, 1960). The 1958 Geneva Conference was unable to achieve
agreement on either issue, primarily because of the volatile political ramifications
involved in setting a limit to the territorial sea. [12] In recommending that the Senate give
30
its advice and consent to ratification of the Conventions, the Senate Report from the
Committee on Foreign Relations made clear that the Convention on the
Territorial *421 Sea and the Contiguous Zone did not define the width of the territorial
sea, or circumscribe the right of a coastal State to assert exclusive fisheries jurisdiction:
This convention does not fix the breadth of the territorial sea. This subject and the
closely related one of the extent to which the coastal state should have exclusive fishing
rights in the sea off its coast were hotly debated without any conclusion being reached.
Exec. Rept. No. 5, Law of the Sea Conventions, to accompany Ex. J to N, inclusive, 86th
Cong. 1st Sess., p. 4 (1960).
It is clear from the foregoing history that, in becoming a signatory to the 1958
Conventions, the United States could not have intended to accept any limitation on its
right to conduct hot pursuit for violations of exclusive fishery rights occurring within 12
miles of its coast, since the Geneva Conference could not agree as to whether a
contiguous zone could be established for the purpose of enforcing domestic fisheries
law.
It is apparent that Congress was well aware of its obligations under the 1958
Conventions when the 1966 Contiguous Fisheries Zone Act was enacted, and that
Congress perceived no conflict between the Act and the treaty provisions. This is
evident from the House Report, which discusses the Conventions and their relationship
to the proposed legislation:
In 1958, and again in 1960, the Law of the Sea Conferences held in Geneva, Switzerland,
left unresolved the twin questions of the width of the territorial sea and to the extent to
which a coastal state could claim exclusive fishing rights in the high seas off its coast. At
the second conference in 1960, the United States and Canada put forward a
compromise proposal for a 6-mile territorial sea, plus a 6-mile exclusive fisheries zone
(12 miles of exclusive jurisdiction in all) subject to the continuation for 10 years of
traditional fishing by other states in the outer 6 miles. This compromise proposal failed
by one vote to obtain the two-thirds vote necessary for adoption.
Since the 1958 Law of the Sea Conference, there has been a trend toward the
establishment of a 12-mile fisheries rule in international practice. Thirty-nine countries
acting individually or in concert with other countries have extended their fisheries limits
to 12 miles since 1958. H.R.Rep. No. 2086, supra at p. 3286.
The Report also notes that, as of July 1, 1966, of the 99 United Nations coastal nations,
slightly more than 60 countries asserted a 12-mile exclusive fishery zone, either as
territorial sea or as territorial sea plus a contiguous zone. Idem.[13]
IV
Order
Since the seizure of the TAIYO MARU 28 on the high seas following hot pursuit from the
contiguous zone was not in violation of Article 23 of the 1958 Convention on the High
Seas, and, moreover, was sanctioned by domestic law and in conformity with the
prevailing consensus of international law and practice, this Court has jurisdiction to
decide the present proceedings on their merits. Defendant's motions to dismiss for lack
of jurisdiction are therefore denied.
It is so ordered.
NOTES
[1] Jurisdiction of the civil action is predicated on 28 U.S.C. 1331, 1345 and 1355;
jurisdiction of the criminal action is based on 18 U.S.C. 3231.
[2] On October 24, 1974, claimant filed an amended demand for restitution, noting a
restricted appearance under Fed.R.Civ.P.Supp. Rule E(8).
[3] The vessel, its captain, and the crew have since been released upon posting a bond
conditioned upon the payment of any penalty or fine which might be imposed in these
proceedings.
[4] Counsel agree that defendant's alternative motions to dismiss for failure to state a
claim upon which relief can be granted and for failure to state an offense against the
United States present disputed factual questions and are not ripe for determination at
this time.
[5] 16 U.S.C. 1081 provides in relevant part:
It is unlawful for any vessel, except a vessel of the United States, or for any master or
other person in charge of such a vessel, to engage in the fisheries within the territorial
waters of the United States, . . . or within any waters in which the United States has the
same rights in respect to fisheries as it has in its territorial waters or in such waters to
engage in activities in support of a foreign fishery fleet or to engage in the taking of any
Continental Shelf fishery resource which appertains to the United States except as
provided in this chapter or as expressly provided by an international agreement to
which the United States is a party. * * *
[6] 16 U.S.C. 1082(a) and (b) provide:
(a) Any person violating the provisions of this chapter shall be fined not more than
$100,000, or imprisoned not more than one year, or both.
(b) Every vessel employed in any manner in connection with a violation of this chapter
including its tackle, apparel, furniture, appurtenances, cargo, and stores shall be subject
to forefeiture and all fish taken or retained in violation of this chapter or the monetary
value thereof shall be forfeited. For the purposes of this chapter, it shall be a rebuttable
presumption that all fish found aboard a vessel seized in connection with such violation
of this chapter were taken or retained in violation of this chapter.
16 U.S.C. 1082(c) makes applicable to such seizures and forfeitures the existing law
relating to seizure, forfeiture and condemnation of a vessel for violations of the customs
laws, except when inconsistent with the provisions of the Act.
[7] 16 U.S.C. 1091 reads in full:
There is established a fisheries zone contiguous to the territorial sea of the United
States. The United States will exercise the same exclusive rights in respect to fisheries in
the zone as it has in its territorial sea, subject to the continuation of traditional fishing
by foreign states within this zone as may be recognized by the United States.
[8] 16 U.S.C. 1092 reads in full:
The fisheries zone has as its inner boundary the outer limits of the territorial sea and as
its seaward boundary a line drawn so that each point on the line is nine nautical miles
from the nearest point in the inner boundary.
31
[9] It is not disputed that the territorial sea extends a distance of three miles around
Monhegan Island, as well as from the coastline of the mainland. See Convention on the
Territorial Sea and the Contiguous Zone, infra, Art. 10(2).
[10] The Mazel Tov was seized more than one hour's sail from the United States
coastline. By prior treaty with Great Britain, the United States had limited its customs
jurisdiction over British vessels to offenses which were discovered within one hour's sail
from the coast.
[11] See note 10, supra.
[12] The position of the United States at the Conference was that the territorial sea
should be defined as narrowly as possible, preferably at the three-mile limit which it had
traditionally recognized. In advocating this position, a major concern of the United
States was to avoid undue limitation of its right to fish off the coasts of other nations. In
this position, it was supported primarily by the maritime nations, which had traditionally
engaged in fishing off foreign shores. Opposition to the American position was centered
principally in the Soviet bloc countries and the newly-emerging and underdeveloped
countries. When it became apparent that any proposal for a three-mile territorial sea
would fail to attract the two-thirds vote necessary for adoption, the United States
sponsored a compromise proposal which called for a six-mile territorial sea and a
further six-mile contiguous fisheries zone. This proposal barely failed of passage, and
since no other proposal was able to attract a two-thirds vote, the final Conventions do
not define the breadth of the territorial sea, or the extent to which a coastal State may
assert exclusive fisheries jurisdiction. See generally Dean, supra at 613-16; McDougal
and Burke, supra at 529-48; Hearings, supra at 4-9, 21-22.
When the Law of the Sea Conference was reconvened at Geneva in 1960, the
participants again were unable to agree on the width of the territorial sea or the extent
to which a coastal State could exercise exclusive fishing jurisdiction in the waters off its
coast. See generally Dean, Second Geneva Conference on the Law of the Sea: The Fight
for Freedom of the Seas, 54 Am.J. Int'l L. 751, 779-81 (1960). A joint American-Canadian
compromise proposal, in most respects similar to that made by the United States at the
1958 Conference, failed of passage by one vote. See McDougal and Burke, supra at 547.
[13] In this connection, it should also be noted that the Convention on the Territorial
Sea and the Contiguous Zone does not define the breadth of the territorial sea. See Arts.
1, 3 and 6. Thus, nothing in the language of the Convention precludes the United States
from claiming a territorial sea of 12 miles, in which it could exercise exclusive fishing
rights.

32