Reservations to the Convention on Genocide.
For the last few
Facts. The convention on Genocide was
unanimously adopted by the United Nations in
1951. Several states made reservations to one
or more of its provisions. An opinion as to
whether a party could express reservations and
still be considered a signatory was laid before
the International Court of Justice.
Issue. May a reservation to the U.N. Convention
on Genocide be made by a state and still be
considered a signatory thereto?
Held. Yes. A reservation to the U.N. Convention
on Genocide may be effected by a state and still
be considered a signatory thereto. In a
multilateral treaty, as long as the reservation
does not defeat the purpose of the treaty, a
reservation is permitted. By virtue of its
sovereignty, it has been argued that a state may
effect any reservation. In this case, the validity
of each reservation must be examined on a
case-by-case basis since numerous reservations
were made by different states. (The court held
that the state objecting to a reservation could if
it desired, consider the reserving state not to be
a party to the Convention.
Discussion. Politics was at play in this case as it
has also been in other cases. Going by
precedence, international law usually held that
reservations to a multilateral treaty had to be
accepted by all other parties. Unanimous
acceptance of the Convention would not have
made the Convention possible if the rule was
followed. The Court was undoubtedly
determined to facilitate such unanimity.
SOUTH CHINA SEA ARBITRATION
The South China Sea has, especially in
contemporary times, emerged as a region of
great interest to global players, in terms of
strategic and economic interests of the
competing States. As Foreign Policy puts it,
“There’s no tenser set of waters in the world
than the South China Sea.
years, China and its neighbors have been
bluffing, threatening, cajoling, and suing for
control of its resources.”[2]
To best understand the current situation in the
South China Sea from a legal point of view, it is
imperative to refer back to the judgment
passed by the Arbitral Tribunal of the
Permanent Court of Arbitration last year, in
response to the claims brought by Philippines
against China, primarily regarding maritime
rights, entitlements and zones in the South
China Sea, as well as for the protection of the
marine life and the environment of the region,
under the United Nations Convention on the
Law of the Sea, 1982.
China has always argued for historic rights, as
demarcated by the ‘Nine Dash Line’ on its
official maps of the region in question; other
stakeholders, however, dispute this claim, as
shown in the arbitral proceedings. As is noted:
… While it was the Philippines which brought
the case, it wasn’t the only interested party in
the Asean. Three other members have claims to
parts of the South China Sea or the Spratly
Islands or the Paracels that conflict with China’s
expansive nine-dash theory: Brunei, Malaysia,
and Vietnam. Indonesia, Asean’s largest
economy, has continuing run-ins with Chinese
fishing vessels and occasionally with the
Chinese Coast Guard in its exclusive economic
zone.[3]
Now, as the Association of South East Nations
(ASEAN) heads towards working on the
enforcement of this arbitration award from last
year (2016), and attempting to employ a code
of conduct for the South China Sea, it becomes
even more important to look at the arbitral
ruling from an objective vantage point.
Case Brief
The South China Sea Arbitration was conducted
between the Republic of the Philippines and the
People’s Republic of China by the Permanent
Court of Arbitration (PCA), under the 1982
United Nations Convention on the Law of the
Sea (UNCLOS). The arbitration is related to
disputes between the Parties regarding the
legal basis of maritime rights and entitlements,
the status of certain geographic features, and
the lawfulness of certain actions taken by China
in the South China Sea; in particular, the
following four issues, as raised by Philippines:
1. To resolve a dispute between the
parties regarding the source of
maritime rights and entitlements in the
South China Sea;
2. To resolve a dispute between the
parties concerning the entitlements to
maritime zones that would be
generated under the Convention by
Scarborough Shoal and certain
maritime features in the Spratly Islands
that are claimed by both the parties;
3. To resolve a series of disputes
concerning the lawfulness of China’s
actions in the South China Sea, vis-à-vis
interfering with Philippine’s rights,
failing to protect and preserve the
marine environment, and inflicting
harm on the marine environment
(through land reclamation and
construction of artificial islands);
4. To find that China has aggravated and
extended the disputes between the
Parties by restricting access to a
detachment of Philippines Marines
stationed at Second Thomas Shoal.
While China and Philippines are both parties to
the UNCLOS, China specifically made a
declaration in 2006 to exclude maritime
boundary delimitation from its acceptance of
compulsory dispute settlement. In addition,
China has shown disagreement with Philippines’
decision to take the matter to arbitration and
has decided neither to agree with the decision
of the Tribunal nor to participate in the
proceedings.
The Tribunal, on its end, has taken cognizance
of these factors and has purported to not deal
with delimiting maritime boundaries.
Furthermore, the Tribunal did not bar the
proceedings, on the basis of Article 9 of Annex
VII of UNCLOS[4]. In addition, the Tribunal also
noted that despite China’s absence from the
proceedings, since it is a party to the UNCLOS,
the decision of the Tribunal would, in fact, be
binding upon it, pursuant to Article 296
(1)[5] and Article 11 of Annex VII[6].
China’s Foreign Ministry, further, stated its
position with regard to the proceedings by
publishing a Position Paper in 2014[7]. It
claimed that the Tribunal lacks jurisdiction over
the matter because:
1. The essence of the subject-matter of
the arbitration is the territorial
sovereignty over the relevant maritime
features in the South China Sea;
2. China and the Philippines have agreed,
through bilateral instruments and the
Declaration on the Conduct of Parties in
the South China Sea, to settle their
relevant disputes through negotiations;
3. Philippines’ disputes would constitute
an integral part of maritime
delimitation between the two
countries.
The Tribunal considered China’s Position Paper
as a plea on jurisdiction, and conducted a
separate hearing on the issue of jurisdiction and
admissibility. Additionally, the Tribunal also
declared that it would honour China’s
declaration of 2006 and the UNCLOS and would
neither delve into issues of maritime boundary
delimitation or questions of sovereignty. The
Philippines also stated that it, “does not seek in
this arbitration a determination of which Party
enjoys sovereignty over the islands claimed by
both of them. Nor does it request a delimitation
of any maritime boundaries.”[8]
Pursuant to this, the Tribunal issued its Award
on Jurisdiction[9] in October 2015, in which it
concluded that it did indeed have jurisdiction in
the case, as per Philippines’ Final
Submissions[10], and that China’s lack of
participation would not prove to be a bar to its
proceedings. It, further, concluded that the
treaties China was relying on were either
political in nature and not legally binding[11], or
that they did were legally binding and yet did
not bar either Party from alternative means of
dispute resolution[12]. In accordance with
Article 283 of the UNCLOS[13], the Tribunal
found that this requirement was met in the
diplomatic communications between the
Parties and that Philippines’ initiation of
proceedings under the UNCLOS did not
constitute an abuse of of process as claimed by
China.
The Tribunal, proceeding with the first two
submissions made by the Philippines,
considered the validity of China’s claim to
historic rights in the maritime region of the
South China Sea and the ‘Nine-Dash Line’.
Through a lengthy analysis of the text and
context of the Convention, in line with the
principles set out in the Vienna Convention on
the Law of Treaties, the Tribunal established
that the Convention supersedes any treaties in
force before its coming into force. It questioned
China’s claim to historical rights in the region,
and established that China’s state practice does
not show that China had been enjoying any
historical rights in the South China Sea; rather,
it was enjoying the freedom of the high seas
and since it did not create bar to other states’
usage of the same, it could not be understood
as being a historical right. Furthermore, since
China’s publishing of the same in its Notes
Verbales in 2009, many states have objected to
its claim as well. “The Tribunal concludes that
the Convention superseded any historic rights
or other sovereign rights or jurisdiction in
excess of the limits imposed
therein.”[14] However, the Tribunal also
concluded that its jurisdiction was limited to the
claims of historic rights on the maritime region
and not to the land masses in the South China
Sea, i.e. if it can claim historic rights on any of
the islands, then it may also be able to claim
maritime zones (as per the Convention) on the
basis of these islands.
Next, the Tribunal looked at Philippines’
submissions 3 to 7, concerning the nature of the
features in the South China Sea. It differentiates
between low-tide elevations[15], high-tide
features[16] and rocks[17]. In its Award on
Jurisdiction, the Tribunal clarified that:
This is not a dispute concerning sovereignty
over the features, notwithstanding any possible
question concerning whether low-tide
elevations may be subjected to a claim of
territorial sovereignty. Nor is this a dispute
concerning sea boundary delimitation: the
status of a feature as a “low-tide elevation”,
“island”, or a “rock” relates to the entitlement
to maritime zones generated by that feature,
not to the delimitation of such entitlements in
the event that they overlap.[18]
The Philippines put forward three categories for
classifying low-tide elevations: where a low-tide
elevation is located within 12 miles of a high-
tide feature[19], where the low-tide elevation is
beyond 12 miles but within the state’s exclusive
economic zone or continental shelf[20], and
where the low-tide elevation is located beyond
the areas of natural jurisdiction[21].
For the purpose of identifying the nature of the
features in the South China Sea, the Tribunal
relied upon satellite imagery that had been
conducted on the area and direct surveys that
had been carried out, by navies or otherwise, in
the area, and relied upon maps that were
sufficiently detailed. They chose a certain tidal
height to maintain uniformity across the
features, and decided to rely, in cases where
there had been significant man-made changes,
alterations or construction on the features,
upon maps/imagery/surveys that depicted the
features as they had been in their original
form.[22]
Again the Tribunal relied upon statements
previously made by China to obtain their stance
on the nature of the features, since China had
neither submitted any document to the
Tribunal nor had it discussed these in its
Position Paper.
The Tribunal concluded that Scarborough Shoal,
Cuarteron Reef, Fiery Cross Reef, Johnson Reef,
McKennan Reef and Gaven Reef (North) were
all found to be high-tide features. The Tribunal
further noted that for the purposes of Article
121(3), the high-tide features at Scarborough
Shoal and the reefs were rocks that cannot
sustain human human habitation or economic
life of their own and so have no exclusive
economic zone or continental shelf. The
Tribunal found the same to be true of the
Spratly Islands and so concluded that China,
therefore, has no entitlement to any maritime
zone in the area of Mischief Reef or Second
Thomas Shoal; they do, however, form part of
the exclusive economic zone and continental
shelf of the Philippines as they lie within 200
nautical miles of the Philippines’ coast and
there are no overlapping entitlements in the
area with respect to China.
On the contrary, Hughes Reef, Gaven Reef
(South), Subi Reef, Mischief Reef and Second
Thomas Shoal were all found to be low-tide
elevations, of which Hughes Reef lay within 12
miles of McKennan Reef and Sin Cowe Island,
Gaven Reef (South) lay within 12 miles of Gaven
Reef (North) and Namyit Island, and Subi Reef
lay within 12 miles of the high-tide feature of
Sandy Cay on the reefs to the west of Thitu.
In the issue of Chinese interference with the
living and non-living resources (primarily
concerned with fishing practices in the South
China Sea and oil and gas exploration and
exploitation) of the Philippines, the Tribunal
considered diplomatic statements from China
to the Philippines and regulations related to the
matter that China had passed domestically. The
Philippines put forward four contentions
related to living resources: China’s prevention
of fishing by Philippine vessels at Mischief Reef
since 1995, and at Second Thomas Shoal since
1995, China’s revision of the Hainan
Regulation[23] and China’s moratorium on
fishing in the South China Sea in 2012[24]. The
Tribunal finds that China had breached Articles
77[25] and 56[26] of the Convention through
the operation of its marine surveillance vessels
(which interfered with Philippines’ oil and gas
exploration) and through its moratorium on
fishing which interfered with the exclusive
economic zone of the Philippines, respectively.
The Tribunal also found China in breach of
Article 58 (3)[27] of the Convention, due to its
failure to prevent fishing by Chinese flagged
ships in the exclusive economic zone of the
Philippines, failing to respect the sovereign
rights of the Philippines over its fisheries in its
exclusive economic zone.
Submission 10 of the Philippines related to
China’s interference with Philippines’ fishing
vessels and practices in the Scarborough Shoal.
While both the states had conflicting views on
the situation (China believed that it was
Philippines who was causing the interference)
and both claimed historic rights (Philippines
distinguished this by clarifying that it only
referred to historic fishing rights) to the region,
the Tribunal opined that China was, in fact, in
contravention of the Convention by interfering
with the traditional fishing practice of the
Philippines in its exclusive economic zone
through the deployment of its official ships in
the region. The Tribunal also noted that this
decision does not depend on the question of
sovereignty, and that the Tribunal once again
refrained from commenting on the matter.
Philippines’ successive contention related to
China’s activities on the reefs in the South China
Sea, with regards the practices it had adopted
for the purpose of large-scale construction and
reclamation at seven locations in the Spratly
Islands[28], and its practices with regards to
fishing[29] in the South China Sea. Philippines
claimed that China had been harming and
causing damage to the marine environment of
the South China Sea through these practices
and despite objections from the surrounding
states, China had not ceased its actions. It was
also noted that while some of the fishing ships
were not state-appointed ships and were being
manned by non-state actors, the Chinese
government had neither condemned their
actions nor made any efforts to stop them from
proceeding. The Tribunal, assisted by three
independent experts on coral reef biology,
expert briefs and satellite imagery, found that
China was in breach of the Convention for
failing to stop the fishing vessels from engaging
in harmful harvesting practices[30] and also for
its island-building activities[31]. The Tribunal
further opined that China’s construction on
Mischief Reef, without authorization from
Philippines was in violation of Philippines’
sovereign rights in its exclusive economic zone
and continental shelf and a breach of the
Convention[32].
The next consideration before the Tribunal was
the demeanour of China’s law enforcement
vessels at Scarborough Shoal[33] and the
lawfulness of these actions. The Philippines also
raised the issue under the relevant provisions of
the Convention on the International Regulations
for Preventing of Collisions at Sea, 1972
(COLREGS). The Tribunal found that China,
through the actions of its law enforcement
vessels, endangered Philippine vessels and
personnel and created a serious risk of collision
and found China in breach of Article 94 of the
Convention[34].
The Tribunal, in response to Submission 14 of
the Philippines, opined that China had, in the
course of the proceedings of this arbitration,
aggravated and extended its disputes with
Philippines, through its actions of dredging,
artificial island-building and construction
activities[35].
Lastly, the Tribunal did not find it necessary to
make any further declaration, owing to the fact
that both the parties are already parties to the
Convention and are already obliged to comply
with it.
Case Relating to the Diversion of the Water
From the Meuse
Facts
On May l2th, 1863, Belgium and the
Netherlands concluded a Treaty the purpose of
which was "to settle permanently and
definitively the regime governing diversions of
water from the Meuse for the feeding of
navigation canals and irrigation
channels.(1) Article I of this Treaty provided for
the construction below Maestricht, in
Netherlands territory, of a new intake which
would constitute "the feeding conduit for all
canals situated below that town and for
irrigation in the Campine and in the
Netherlands.(2)
The Belgian Government accepted the Treaty which the dispute related and to witness

not without reluctance, in view of the fact that practical demonstrations of the operations of

it provided for only one intake and that to be locks and installations connected therewith.

situated in foreign territory.

When the economic development of the Submissions of the Parties

Belgian and Netherlands provinces of Limburg The Netherlands ask the Court in the main to

necessitated the enlargement of certain canals adjudge and declare that the works already

and the construction of new works, the two carried out by Belgium were contrary to the

States signed in 1925 a new agreement Treaty of 1863, that the proposed works would

designed to settle the differences which had be contrary to it and, consequently, to "order

arisen in respect of the construction Belgium a) to discontinue all the works" listed

programmes. After the rejection of this in the Netherlands' submissions and "to restore

agreement by the Netherlands First Chamber, to a condition consistent with the Treaty of

the Netherlands proceeded to construct and 1863 all works constructed in breach of that

complete the Juliana Canal, the Bosscheveld Treaty; b) to discontinue any feeding held to

Lock and the Borgharen barrage. On its part, be contrary to the said Treaty and to refrain

Belgium began the construction of the Albert from any further such feeding.(3)

Canal, unfinished at the time of the judgment, On its part, Belgium asks the Court to declare

a barrage at Monsin and a lock at Neerhaeren. the Netherlands' submissions ill-founded, as

well as to adjudge and declare, in respect of

As no further progress could be made in the
the counter-claim, that the Borgharen barrage
settlement of the points at issue between the
was constructed in breach of the stipulations of
two States, the Netherlands initiated
the Treaty of 1863, that the Juliana Canal is
proceedings in the Court by means of a
subject to the provisions of the Treaty and,
unilateral application, based on the
finally, to reserve the rights accruing to
declarations made by both the Netherlands and
Belgium from the breaches so committed.
Belgium in which they accepted the

compulsory jurisdiction of the Court under

Article 36 (a) of the Statute. Belgium, on its Summary of the Judgment

part, made a counter-claim. Since the questions at issue are governed by

the Treaty of 1863, the Court at the outset

In the course of the proceedings and at the
discards the application to the dispute of the
suggestion of the Belgian Agent, which the
general rules of international river law in
Netherlands Agent did not oppose, the Court
favour of the interpretation and application of
visited the locality in order to see on the spot
the Treaty.
the installations, canals and waterways to
The Netherlands maintain that Article I of the construction and operation of a lock of which

Treaty,(4) which provides for a single feeder, they themselves set an example in the past.

situated in Netherlands territory, gives them

With regard to the supply by Belgium to a
the right to supervise and control all the
section of the Albert Canal of water taken from
intakes, situated not only in their own
the Meuse elsewhere than at Maestricht, the
territory, but also in Belgian territory. This
Court considers that the origin of the water is
contention necessarily implies that "the Treaty
irrelevant. Nothing prevents either Belgium or
of 1863 intended to place the Parties in a
the Netherlands from making such use as they
situation of legal inequality by conferring on
may see fit of the canals covered by the
the Nether-lands a right of control to which
Treaty, when the canals do not leave their own
Belgium could not lay claim.(5) But, in order to
territory. Each of the two States is at liberty in
allow the existence of such inequality between
its own territory to modify such canals, to
the Parties to a treaty freely concluded, the
enlarge them, to trans-form them, to fill them
text of the treaty must say so in precise terms.
in and even to increase the volume of water in
In the absence of such terms, the Court rejects
them, provided that the diversion of water at
the Netherlands' submission.
the feeder mentioned in the Treaty and the
While criticizing the construction by Belgium of
volume of water to be discharged therefrom is
the Neerhaeren Lock, the Netherlands do not
not affected. The same reasoning applies to
invoke a specific provision of the Treaty. The
the Netherlands' criticism of the proposed
Court grants that the Treaty has brought into
supply by Belgium to a section of another canal
existence a certain régime which results from
of water taken from the Meuse elsewhere than
all its provisions taken together and that,
at Maestricht.
accordingly, it forms a complete whole, the

different provisions of which cannot be

Having thus rejected all the Netherlands'
dissociated from the others and considered in
submissions, the Court proceeds to deal with
isolation. This is equally the case with Article I
the Belgian counter-claims, the first of which
which must be interpreted together with the
concerns the Borgharen barrage. The Court
other Articles. In the light of this Article, thus
finds that the Treaty does not forbid the
interpreted, neither the Netherlands'
Netherlands from altering the depth of water in
contention regarding the Neerhaeren Lock, nor
the Meuse at Maestricht without the consent of
the Belgian reply, can be accepted in its
Belgium, provided that neither the discharge of
entirety. Furthermore, the Court, after
water through the feeder, nor the volume of
mentioning the construction by the
water which it must supply, nor the current in
Netherlands of the Bosscheveld Lock, refuses
the Zuid-Willemsvaart is thereby affected. It is
to admit the Netherlands' complaint about the
subject to this condition, and not at their

arbitrary discretion, that the Netherlands are
entitled, under the Treaty, to dispose of the
waters of the Meuse at Maestricht. With regard
to the alleged interference, by the criticized
construction, with the navigability of that part
of the Meuse common to both States, the
Court considers that Belgium has not produced
any proof of it. In reply to the second Belgian
submission, which relates to the Juliana Canal,
the Court finds that the Treaty was designed to
regulate the supply of water to the canals
situated on the left bank of the Meuse only.
Thus, canals situated on the right bank, such
as the Juliana Canal, do not come under the
regime of water supply provided for by the
Treaty.
For these reasons, the Court rejects both the
Netherlands' submissions and the submissions
contained in the Belgian counter-claim.
THE FACTORY AT CHORZOW (GERMANY v.
POLAND)
13 Sept. 1928 1928 P.C.I.J. (ser. A) No. 17
TOPIC: Cases on General Principles of
Law
SUMMARY: Germany sued Poland for the
latter’s act of taking possession of the nitrate
factory in Chorzów, Upper Silesia (now part of
Poland), and the consequent damages suffered
by the 2 German companies, the
Oberschlesische and the Bayerische. The Court
ruled that compensation was indeed owing to
these companies, but an expert enquiry was
needed in order to determine the extent of the
award.
FACTS:
• Mar. 1915 - The German Reich
(“Germany”) entered into a contract with
Bayerische Stickstoffwerke A.-G. (“Bayerische”)
for, among others, the construction of a nitrate
factory in Chorzów, Upper Silesia.
• Dec. 1919 - Another company,
Oberschlesische Stickstoffwerke A.-G.
(“Oberschlesische”), was formed.
Oberschlesische would own the land and
improvements of the factory while Bayerische
would continue handling the management and
operations. Oberschlesische was duly entered in
the land register as owner of the property
constituting the nitrate factory.
• July 1922 - The Polish Court of Huta
Krolewska nullified the registration of
Oberschlesische as owner of the factory, and
restored the right of ownership to the name of
the Polish Treasury.
o Court’s basis: Since the German
Government owned all of the shares of the
Oberschlesische, what happened was merely a
transformation of an ordinary State enterprise
into a State enterprise with a share capital, and
this falls within the category of “property and
possessions belonging to the Empire” acquired
by Poland under Art. 256 of the Treaty of
Versailles.
• M. Ignacy Moscicki was delegated by
the Polish government with full powers to take
charge of the factory. He took possession of the
immovable and movable property (licenses,
patents, etc.) therein.
• Oberschlesische and Bayerische
brought separate actions to recover possession
of the factory before the German-Polish Mixed
Arbitral Tribunal at Paris, but both later
withdrew. Obersclensische then brought an
action for the recovery of the movable
property, but this led to no decision on the
merits.
• Germany initiated direct negotiations
with Poland. Germany saw the impracticability
of restoring the factory, and opted to demand
reparations. However, negotiations were
unsuccessful because, among others, Poland
believed that some of its claims against
Germany should be considered in offsetting the
indemnity to be awarded to the latter.
• Germany submitted a suit to the
Permanent Court of International Justice (PCIJ)
demanding reparation from the Polish
Government, claiming that according to PCIJ
Judgment No. 7, Poland’s acts contradicted Art.
6 of the Geneva Convention. On receipt of
Germany’s complaint, Poland denied the PCIJ’s
jurisdiction, and submitted that the Court
should declare that it had no jurisdiction. This
was overruled.
GERMANY ARGUES: Poland should pay the two
companies the compensation due for the taking
possession of the working capital of the factory
from July 3, 1922, to the date of judgment.
However, this is not an ordinary action for
damages but a dispute between governments;
the German Government has not brought this
suit as representative of the individuals who
have suffered injury, but it may estimate the
damage for which it claims reparation on its
own behalf, according to the measure provided
by the losses suffered by the companies whose
case it has taken up. Finally, Poland should not
be allowed to demand a set-off of claims.
POLAND ARGUES: Germany is modifying the
subject of the dispute; the German claim
assumed another aspect if it was no longer a
question of compensating the companies, but
of compensating the State for the injury
suffered by it. Poland admits the existence of
injury to Bayerische, but denies the existence of
any injurty to Oberschlesische (since its
ownership was null and void) and consequently
submits that Germany's claim should be
dismissed.
[Preliminary] W/N Germany altered the subject
of the dispute by claiming on its own behalf
⇒NO.
• It is a principle of IL that the reparation
of a wrong may consist in an indemnity
corresponding to the damage which the
nationals of the injured State have suffered as a
result of the act which is contrary to IL. This is
even the most usual form of reparation; it is the
form selected by Germany in this case and the
admissibility of it has not been disputed.
• The rules of law governing the
reparation are the rules of IL in force between
the two States concerned, not the law
governing relations between the State and the
individual. However, rights or interests of an
individual are always in a different plane to
rights belonging to a State. The damage
suffered by an individual is never identical in
kind with that which will be suffered by a State;
it can only afford a convenient scale for the
calculation of the reparation due to the State.
• IL does not prevent one State from
granting to another the right to have recourse
to international arbitral tribunals in order to
obtain the direct award to nationals of the
latter State of compensation for damage
suffered by them as a result of infractions of IL
by the first State.
• Germany has been consistent in its
submissions; the indemnities were always
payable to the German Government. The
request to pay to the account of the 2
companies with the Deutsche Bank at Berlin
relates only to the locus solutionis ("law of the
place where performance occurs").
Substantive Issues:
(1) W/N there exists an obligation to make
reparation (and if yes, W/N Poland committed a
breach)
(2) W/N there exists damage which must
serve as a basis for the calculation of the
indemnity.
(3) What is the extent of this damage?
W/N there exists an obligation to make
reparation ⇒YES.
• The Court observes that it is a principle
of IL, and even a general conception of law, that
any breach of an engagement involves an
obligation to make reparation. In Judgment No.
8, the Court has already said that reparation is
the indispensable complement of a failure to
apply a convention, there is no necessity for this
to be stated in the convention itself. This
obligation to make reparation has been
recognized as an element of positive IL.
• On Poland’s breach of an international
engagement: res judicata applies. The
nonconformity of Poland's attitude in respect of
the two Companies with Art. 6 and the
following articles of the Geneva Convention is
established by No. 2 of the operative provisions
of Judgment No. 7.
W/N there exists damage which must serve as a
basis for the calculation of the indemnity ⇒YES.
• In Judgment No. 7, the PCIJ passed
ruled upon the validity of the transactions
through which ownership passed to the
Oberschlesische, and it found that they were
genuine and bona fide. Also, Poland’s reliance
on the provisions of the Treaty of Versailles is
not well-founded.
• The essential principle contained in the
actual notion of an illegal act – a principle which
seems to be established by international
practice and in particular by the decisions of
arbitral tribunals – is that reparation must, as
far as possible, wipe out all the consequences of
the illegal act and re-establish the situation
which would, in all probability, have existed if
that act had not been committed. Restitution in
kind, or, if this is not possible, payment of a sum
corresponding to the value which a restitution
in kind would bear; the award, if need be, of
damages for loss sustained which would not be
covered by restitution in kind or payment in
place of it – such are the principles which
should serve to determine the amount of
compensation due for an act contrary to IL.
What is the extent of the damage? ⇒ Data is
insufficient.
• The whole damage suffered by the one
or the other Company as the result of
dispossession is determined by the value of the
undertaking as such. The legal relationship
between the 2 Companies in no way concerns
the international proceedings and cannot
hinder the Court from adopting the system of a
lump sum corresponding to the value of the
undertaking, if, as is the Court's opinion, such a
calculation is simpler and gives greater
guarantees that it will arrive at a just
appreciation of the amount, and avoid awarding
double damages.
• The Court considers that it cannot be
satisfied with the data for assessment supplied
by the Parties (e.g. the cost of construction of a
factory may not correspond to the value which
that factory will have when built). In order to
obtain further enlightenment in the matter, the
Court, before giving any decision as to the
compensation to be paid by the Polish
Government to the German Government, will
arrange for the holding of an expert enquiry.
W/N Poland is entitled to a set-off of claims ⇒
The Court must abstain from passing upon this.
• Since there is no agreement between
the Parties to submit this question to the Court
(only Germany raised this in its submission), it
remains to be considered whether the Court
has jurisdiction to pass judgment on it. The
Court considers that this argument must be
interpreted in the sense that the prohibition of
set-off is asked for in order to ensure that in the
present case reparation shall be really effective.
• Although in the negotiations, Poland
had put forward a claim to set off a part of the
indemnity against the claim which she put
forward in regard to social insurances in Upper
Silesia. But the Court has already had occasion
to state that it can take no account of
declarations, admissions or proposals which the
Parties may have made during direct
negotiations between them.
CORFU CHANNEL CASE
FACTS OF THE CASE:
• On May 15th 1946 the British warships
passed through the Channel without the
approval of the Albanian government and were
shot at. Later, on October 22nd, 1946, a
squadron of British warships (two cruisers and
two destroyers), left the port of Corfu and
proceeded northward through a channel
previously swept for mines in the North Corfu
Strait. Both destroyers were struck by mine and
were heavily damaged. This incident resulted
also in many deaths. The two ships were mined
in Albanian territorial waters in a previously
swept and check-swept channel.
• After the explosions of October 22nd,
the United Kingdom Government sent a note to
the Albanian Government, in which it
announced its intention to sweep the Corfu
Channel shortly. The Albanian reply, which was
received in London on October 31st, stated that
the Albanian Government would not give its
consent to this unless the operation in question
took place outside Albanian territorial waters.
• Meanwhile, at the United Kingdom
Government’s request, the International
Central Mine Clearance Board decided, in a
resolution of November 1st, 1946, that there
should be a further sweep of the Channel,
subject to Albania’s consent. The United
Kingdom Government having informed the
Albanian Government, in a communication of
November 10th, that the proposed sweep
would take place on November 12th, the
Albanian Government replied on the 11th,
protesting against this ‘unilateral decision of His
Majesty’s Government’. It said it did not
consider it inconvenient that the British fleet
should undertake the sweeping of the channel
of navigation, but added that, before sweeping
was carried out, it considered it indispensable
to decide what area of the sea should be
deemed to constitute this channel, and
proposed the establishment of a Mixed
Commission for the purpose. It ended by saying
that any sweeping undertaken without the
consent of the Albanian Government outside
the channel thus constituted, i.e., inside
Albanian territorial waters where foreign
warships have no reason to sail, could only be
considered as a deliberate violation of Albanian
territory and sovereignty.
• After this exchange of notes, ‘Operation
Retail’ took place on November 12th and 13th.
One fact of particular importance is that the
North Corfu Channel constitutes a frontier
between Albania and Greece, that a part of it is
wholly within the territorial waters of these
States, and that the Strait is of special
importance to Greece by reason of the traffic to
and from the port of Corfu.
ISSUES:
The British government claimed the minefield
which caused the explosions was laid between
May 15th, 1946, and October 22nd, 1946, by or
with the approval or knowledge of the Albanian
Government. Thus Albania was responsible for
the explosions and loss of life and had to
compensate the UK government. In addition to
the passage of the United Kingdom warships on
October 22nd, 1946, the second question in the
Special Agreement relates to the acts of the
Royal Navy in Albanian waters on November
12th and 13th, 1946 when the British
government carried out a minesweeping
operation called ‘Operation Retail’ without the
consent of Albania. UK held the opinion the
passage on October 22nd, 1946 was innocent
and that according to rules of international law
it had the right to innocent passage through the
North Corfu Channel as it is considered part of
international highways and does not need a
previous approval of the territorial state. The
Albanian Government does not dispute that the
North Corfu Channel is a strait in the
geographical sense; but it denies that this
Channel belongs to the class of international
highways through which a right of passage
exists, on the grounds that it is only of
secondary importance and not even a necessary
route between two parts of the high seas, and
that it is used almost exclusively for local traffic
to and from the ports of Corfu. Thus a previous
approval of the territorial state is necessary.
1) Should the North Corfu Channel as it is
considered part of international highways?
2) Is Albania responsible under international
law for the explosions which occurred on the
22nd October 1946 in Albanian waters and for
the damage and loss of human life which
resulted from them and is there any duty to pay
compensation?
ANALYSIS:
The court analyzed the geographical situation of
the channel connecting two parts of the high
seas and was in fact frequently being used for
international navigation. Taking into account
these various considerations, the Court
concluded that the North Corfu Channel should
be considered as belonging to the class of
international highways through which an
innocent passage does not need special
approval and cannot be prohibited by a coastal
State in time of peace. The UK government
claimed that on October 22nd, 1946, Albania
neither notified the existence of the minefield,
nor warned the British warships of the danger
they were approaching.
According to the principle of state
responsibility, they should have done all
necessary steps immediately to warn ships near
the danger zone, more especially those that
were approaching that zone. In fact, nothing
was attempted by the Albanian authorities to
prevent the disaster. These grave omissions
involve the international responsibility of
Albania.But Albania’s obligation to notify
shipping of the existence of mines in her waters
depends on her having obtained knowledge of
that fact in sufficient time before October 22nd;
and the duty of the Albanian coastal authorities
to warn the British ships depends on the time
that elapsed between the moment that these
ships were reported and the moment of the
first explosion.
CONCLUSION OF THE COURT:
The Court therefore reached the conclusion
that Albania is responsible under international
law for the explosions which occurred on the alleged right of intervention as the
October 22nd, 1946, in Albanian waters, and for manifestation of a policy of force, such as has,
the damage and loss of human life which in the past, given rise to most serious abuses
resulted from them, and that there is a duty and such as cannot, whatever be the present
upon Albania to pay compensation to the defects in international organization, The
United Kingdom. United Kingdom Agent, in his speech in reply,
has further classified ‘Operation Retail’ among
In the second part of the Special Agreement,
methods of self-protection or self-help. The
the following question is submitted to the
Court cannot accept this defense either find a
Court:
place in international law.
Has the United Kingdom under international
Final conclusion of the court:
law violated the sovereignty of the Albanian
People’s Republic by reason of the acts of the • On the first question put by the Special
Royal Navy in Albanian waters on the 22nd Agreement of March 25th, 1948,
October and on the 12th and 13th November
The court gives judgment that the People’s
1946 and is there any duty to give satisfaction?
Republic of Albania is responsible under
Albania was in fact in war with Greece which international law for the explosions which
means that the coastal state was not in time of occurred on October 22nd, 1946, in Albanian
peace. UK had not an innocent passage due to waters, and for the damage and loss of human
the way it was carried out. The court assessed life that resulted there from; and Reserves for
the manner of UK warships after they had been further consideration the assessment of the
shot at May 15th. Having thus examined the amount of compensation and regulates the
various contentions of the Albanian procedure on this subject.
Government in so far as they appear to be
2) On the second question put by the Special
relevant, the Court has arrived at the conclusion
Agreement on the violation of state
that the United Kingdom did not violate the
sovereignty, The court gives judgment that the
sovereignty of Albania by reason of the acts of
United Kingdom did not violate the sovereignty
the British Navy in Albanian waters on October
of the People’s Republic of Albania by reason
22nd, 1946. The United Kingdom Government
of the acts of the British Navy in Albanian
does not dispute that ‘Operation Retail’ was
waters on October 22nd, 1946; and
carried out against the clearly expressed wish of
unanimously, gave judgment that by reason of
the Albanian Government. It recognizes that
the acts of the British Navy in Albanian waters
the operation had not the consent of the
in the course of the Operation of November
international mine clearance organizations, that
12th and 13th, 1946, the United Kingdom
it could not be justified as the exercise of a right
violated the sovereignty of the People’s
of innocent passage, and lastly that, in principle,
Republic of Albania, and that this declaration by
international law does not allow a State to
the Court constitutes in itself appropriate
assemble a large number of warships in the
satisfaction.
territorial waters of another State and to carry
out minesweeping in those waters. The United
Kingdom Government states that the operation
was one of extreme urgency, and that it
considered itself entitled to carry it out without
anybody’s consent. The Court can only regard
South-West Africa Cases (Ethiopia v. South
Africa; Liberia v. South Africa); Second Phase
The Applicants, acting in the capacity of States
which were members of the former League of
Nations, put forward various allegations of
The South West Africa cases (Ethiopia v. South
contraventions of the League of Nations
Africa; Liberia v. South Africa), which relate to
Mandate for South West Africa by the Republic
the continued existence of the Mandate for
of South Africa.
South West Africa and the duties and
performance of South Africa as Mandatory
thereunder, were instituted by Applications of
The contentions of the Parties covered, inter
the Governments of Ethiopia and Liberia filed in
alia, the following issues: whether the Mandate
the Registry on 4 November 1960. By an Order
for South West Africa was still in force and, if so,
of 20 May 1961 the Court joined the
whether the Mandatory's obligation to furnish
proceedings in the two cases. The Government
annual reports on its administration to the
of South Africa raised preliminary objections to
Council of the League of Nations had become
the Court's proceeding to hear the merits of the
transformed into an obligation so to report to
case, but these were dismissed by the Court on
the General Assembly of the United Nations;
21 December 1962, the Court finding that it had
whether the Respondent had, in accordance
jurisdiction to adjudicate upon the merits of the
with the Mandate, promoted to the utmost the
dispute.
material and moral well-being and the social
progress of the inhabitants of the territory,
whether the Mandatory had contravened the
In its Judgment on the second phase of the
prohibition in the Mandate of the "military
cases the Court, by the President's casting vote,
training of the natives" and the establishment
the votes being equally divided (seven-seven),
of military or naval bases or the erection of
found that the Applicant States could not be
fortifications in the territory; and whether
considered to have established any legal right
South Africa had contravened the provision in
or interest in the subject matter of their claims
the Mandate that it (the Mandate) can only be
and accordingly decided to reject them.
modified with the consent of the Council of the
League of Nations, by attempting to modify the
Mandate without the consent of the United
The President, Sir Percy Spender, has appended Nations General Assembly, which, it was
a Declaration to the Judgment. Judge Morelli contended by the Applicants, had replaced the
and Judge ad hoc van Wyk have appended Council of the League for this and other
separate opinions. Vice-President Wellington purposes.
Koo, Judges Koretsky, Tanaka, Jessup, Padilla
Nervo and Forster and Judge ad hoc Sor Louis
Mbanefo have appended dissenting opinions.
Before dealing with these questions, however,
the Court considered that there were two
questions of an antecedent character,
* appertaining to the merits of the case, which
might render an enquiry into other aspects of
the case unnecessary. One was whether the
** Mandate skill subsisted at all and the other was
the question of the Applicants' standing in this
phase of the proceedings - i.e. their legal right
or interest regarding the subject matter of their
claims. As the Court based its Judgment on a
finding that the Applicants did not possess such
a legal right or interest, it did not pronounce
upon the question of whether the Mandate was
still in force. Moreover, the Court emphasized
that its 1962 decision on the question of
competence was given without prejudice to the
question of the survival of the Mandate - a
question appertaining to the merits of the case,
and not in issue in 1962 except in the sense that
survival had to be assumed for the purpose of
determining the purely jurisdictional issue -
which was all that was then before the Court.
Turning to the basis of its decision in the
present proceedings, the Court recalled that the
mandates system was instituted by Article 22 of
the Covenant of the League of Nations. There
were three categories of mandates, 'A', 'B' and
'C' mandates, which had, however, various
features in common as regards their structure.
The principal element of each instrument of
mandate consisted of the articles defining the
mandatory's powers and its obligations in
respect of the inhabitants of the territory and
towards the League and its organs. The Court
referred to these as the "conduct" provisions. In
addition, each instrument of mandate
contained articles conferring certain rights
relative to the mandated territory directly upon
the members of the League as individual States,
or in favour of their nationals. The Court
referred to rights of this kind as "special
interests", embodied in the "special interests"
provisions of the mandates.
In addition, every mandate contained a
jurisdictional clause, which, with a single
exception, was in identical terms, providing for
a reference of disputes to the Permanent Court
of International Justice, which, the Court had
found in the first phase of the proceedings, was
now, by virtue of Article 37 of the Court's
Statute, to be construed as a reference to the
present Court.
The Court drew a distinction between the
"conduct" and the "special interests" provisions
of the mandates, the present dispute relating
exclusively to the former. The question to be
decided was whether any legal right or interest
was vested in members of the League of
Nations individually as regards the "conduct"
clauses of the mandates - i.e., whether the
various mandatories had any direct obligation
towards the other members of the League
individually, as regards the carrying out of the
"conduct" provisions of the mandates. If the
answer were that the Applicants could not be
regarded as possessing the legal right or
interest claimed, then even if the various
allegations of contraventions of the Mandate
for South West Africa were established, the
Applicants would still not be entitled to the
pronouncements and declarations which, in
their final submissions, they asked the Court to
make.
It was in their capacity as former members of
the League of Nations that the Applicants
appeared before the Court, and the rights they
claimed were those that the members of the
League were said to have been invested with in
the time of the League. Accordingly, in order to
determine the rights and obligations of the
Parties relative to the Mandate, the Court had
to place itself at the point in time when the
mandates system was instituted. Any enquiry
into the rights and obligations of the Parties
must proceed principally on the basis of
considering the texts of the instruments and
provisions in the setting of their period.
Similarly, attention must be paid to the juridical
character and structure of the institution, the
League of Nations, within the framework of
which the mandates system was organized. A
fundamental element was that Article 2 of the
Covenant provided that the "action of the
League under this Covenant shall be effected
through the instrumentality of an Assembly and
of a Council, with a permanent Secretariat".
Individual member States could not themselves
act differently relative to League matters unless
it was otherwise specially so provided by some
article of the Covenant.
It was specified in Article 22 of the Covenant
that the "best method of giving practical effect
to [the] principle" that the "well-being and
development" of those peoples in former
enemy colonies "not yet able to stand by
themselves" formed "a sacred trust of
civilization" was that "the tutelage of such
peoples should be entrusted to advanced
nations . . . who are willing to accept it" and it
specifically added that it was "on behalf of the
League" that "this tutelage should be exercised
by those nations as Mandatories". The
mandatories were to be the agents of the
League and not of each and every member of it
individually.
Article 22 of the Covenant provided that
"securities for the performance" of the sacred
trust were to be "embodied in this Covenant".
By paragraphs 7 and 9 of Article 22, every
mandatory was to "render to the Council an
annual report in reference to the territory"; and
a Permanent Mandates Commission was to be
constituted "to receive and examine" these
annual reports and "to advise the Council on all
matters relating to the observance of the
mandates". In addition, it was provided, in the
instruments of mandate themselves, that the
annual reports were to be rendered "to the
satisfaction of the Council".
Individual member States of the League could
take part in the administrative process only
through their participation in the activities of
the organs by means of which the League was
entitled to function. They had no right of direct
intervention relative to the mandatories: this
was the prerogative of the League organs.
The manner in which the mandate instruments
were drafted only lends emphasis to the view
that the members of the League generally were
not considered as having any direct concern
with the setting up of the various mandates.
Furthermore, while the consent of the Council
of the League was required for any modification
of the terms of the mandate, it was not stated
that the consent of individual members of the
League was additionally required. Individual
members of the League were not parties to the
various instruments of mandate, though they
did, to a limited extent, and in certain respects
only, derive rights from them. They could draw
from the instruments only such rights as these
unequivocally conferred.
Had individual members of the League
possessed the rights which the Applicants
claimed them to have had, the position of a
mandatory caught between the different
expressions of view of some 40 or 50 States
would have been untenable. Furthermore, the
normal League voting rule was unanimity, and
as the mandatory was a member of the Council
on questions affecting its mandate, such
questions could not be decided against the
mandatory's contrary vote. This system was
inconsistent with the position claimed for
individual League members by the Applicants,
and if, as members of the League, they did not
possess the rights contended for, they did not
possess them now.
* dissolution, rights which, even previously as
**
It had been attempted to derive a legal right or
interest in the conduct of the Mandate from the
simple existence, or principle, of the "sacred
trust". The sacred trust, it was said was a
"sacred trust of civilization" and hence all
civilized nations had an interest in seeing that it
was carried out. But in order that this interest
might take on a specifically legal character the
sacred trust itself must be or become
something more than a moral or humanitarian
ideal. In order to generate legal rights and
obligations, it must be given juridical expression
and be clothed in legal form. The moral ideal
must not be confused with the legal rules
intended to give it effect. The principle of the
"sacred trust" had no residual juridical content
which could, so far as any particular mandate is
concerned, operate per se to give rise to legal
rights and obligations outside the system as a
whole.
Nor could the Court accept the suggestion that
even if the legal position of the Applicants and
of other individual members of the League were
as the Court held it to be, this was so only
during the lifetime of the League, and that on
the latter's dissolution the rights previously
resident in the League itself, or in its competent
organs, devolved upon the individual States
which were members of it at the date of its
dissolution. Although the Court held in 1962
that the members of a dissolved international
organization can be deemed, though no longer
members of it, to retain rights which, as
members, they individually possessed when the
organization was in being, this could not extend
to ascribing to them, upon and by reason of the
members, they never did individually possess.
Nor could anything that occurred subsequent to
the dissolution of the League operate to invest
its members with rights they did not previously
have as members of the League. The Court
could not read the unilateral declarations, or
statements of intention, made by the various
mandatories on the occasion of the dissolution
of the League, expressing their willingness to
continue to be guided by the mandates in their
administration of the territories concerned, as
conferring on the members of the League
individually any new legal rights or interests of a
kind they did not previously possess.
It might be said that in so far as the Court's view
led to the conclusion that there was now no
entity entitled to claim the due performance of
the Mandate, it must be unacceptable, but if a
correct legal reading of a given situation
showed certain alleged rights to be non-
existent, the consequences of this must be
accepted. To postulate the existence of such
rights in order to avert those consequences
would be to engage in an essentially legislative
task, in the service of political ends.
Turning to the contention that the Applicants'
legal right or interest had been settled by the
1962 Judgment and could not now be
reopened, the Court pointed out that a decision
on a preliminary objection could never be
preclusive of a matter appertaining to the
merits, whether or not it had in fact been dealt
with in connection with the preliminary
objection. When preliminary objections were
entered by the defendant party in a case, the
proceedings on the merits were suspended, by
virtue of Article 62, paragraph 3, of the Court's
Rules. Thereafter, and until the proceedings on
the merits were resumed, there could be no
decision finally determining or prejudging any
issue of merits. A judgment on a preliminary
objection might touch on a point of merits, but
this it could do only in a provisional way, to the
extent necessary for deciding the question
raised by the preliminary objection. It could not
rank as a final decision on the point of merits
involved.
While the 1962 Judgment decided that the
Applicants were entitled to invoke the
jurisdictional clause of the Mandate, it
remained for them, on the merits, to establish
that they had such a right or interest in the
carrying out of the provisions which they
invoked as to entitle them to the
pronouncements and declarations they were
seeking from the Court. There was no
contradiction between a decision that the
Applicants had the capacity to invoke the
jurisdictional clause and a decision that the
Applicants had not established the legal basis of
their claim on the merits.
In respect of the contention that the
jurisdictional clause of the Mandate conferred a
substantive right to claim from the Mandatory
the carrying out of the "conduct of the
Mandate" provisions, it was to be observed that
it would be remarkable if so important a right
had been created in so casual and almost
incidental a fashion. There was nothing about
this particular jurisdictional clause, in fact, to
differentiate it from many others, and it was an
almost elementary principle of procedural law
that a distinction had to be made between, on
the one hand, the right to activate a court and
the right of a court to examine the merits of a
claim and, on the other, the plaintiff's legal right
in respect of the subject matter of its claim,
which it would have to establish to the
satisfaction of the Court. Jurisdictional clauses
were adjectival not substantive in their nature
and effect: they did not determine whether
parties had substantive rights, but only
whether, if they had them, they could vindicate
them by recourse to a tribunal.
The Court then considered the rights of
members of the League Council under the
jurisdictional clauses of the minorities treaties
signed after the First World War, and
distinguished these clauses from the
jurisdictional clauses of the instruments of
mandate. In the case of the mandates the
jurisdictional clause was intended to give the
individual members of the League the means of
protecting their "special interests" relative to
the mandated territories; in the case of the
minorities treaties, the right of action of the
Members of the Council under the jurisdictional
clause was only intended for the protection of
minority populations. Furthermore, any
"difference of opinion" was characterized in
advance in the minorities treaties as being
justiciable, because it was to be "held to be a
dispute of an international character". Hence no
question of any lack of legal right or interest
could arise. The jurisdictional clause of the
mandates on the other hand had none of the
special characteristics or effects of those of the
minorities treaties.
The Court next dealt with what had been called
the broad and unambiguous language of the
jurisdictional clause - the literal meaning of its
reference to "any dispute whatever" coupled
with the words "between the Mandatory and
another Member of the League of Nations" and
the phrase "relating . . . to the provisions of the
Mandate", which, it was said, permitted a
reference to the Court of a dispute about any
provision of the Mandate. The Court was not of
the opinion that the word "whatever" in Article
7, paragraph 2, of the Mandate did anything
more than lend emphasis to a phrase that
would have meant exactly the same without it.
The phrase "any dispute" (whatever) did not
mean anything intrinsically different from "a
dispute"; nor did the reference to the
"provisions" of the Mandate, in the plural, have
any different effect from what would have
resulted from saying "a provision". A
considerable proportion of the acceptances of
the Court's compulsory jurisdiction under
paragraph 2 of Article 36 of its Statute were
couched in language similarly broad and
unambiguous and even wider. It could never be
supposed that on the basis of this wide
language the accepting State was absolved from
establishing a legal right or interest in the
subject matter of its claim. The Court could not
entertain the proposition that a jurisdictional
clause by conferring competence on the Court
thereby and of itself conferred a substantive
right.
The Court next adverted to the question of
admissibility. It observed that the 1962
Judgment had simply found that it had
"jurisdiction to adjudicate upon the merits" and
that if any question of admissibility were
involved it would fall to be decided now, as
occurred in the merits phase of the Nottebohm
case; if this were so the Court would determine
the question in exactly the same way, i.e.,
looking at the matter from the point of view of
the capacity of the Applicants to advance their
present claim, the Court would hold that they
had not got such capacity, and hence that the
claim was inadmissible.
Finally, the Court dealt with what had been
called the argument of "necessity". The gist of
this was that since the Council of the League
had no means of imposing its views on the
Mandatory, and since no advisory opinion it
might obtain from the Court would be binding
on the latter, the Mandate could have been
flouted at will. Hence, it was contended, it was
essential, as an ultimate safeguard or security
for the sacred trust, that each Member of the
League should be deemed to have a legal right
or interest in that matter and be able to take
direct action relative to it. But in the functioning
of the mandates system in practice, much
trouble was taken to arrive, by argument,
discussion, negotiation and cooperative effort,
at generally acceptable conclusions and to
avoid situations in which the Mandatory would
be forced to acquiesce in the views of the rest
of the Council short of casting an adverse vote.
In this context, the existence of substantive
rights for individual members of the League in
the conduct of the mandates exercisable
independently of the Council would have been
out of place. Furthermore, leaving aside the
improbability that, had the framers of the
mandates system intended that it should be
possible to impose a given policy on a
mandatory, they would have left this to be
haphazard and uncertain action of individual
members of the League, it was scarcely likely
that a system which deliberately made it
possible for mandatories to block Council
decisions by using their veto (though, so far as
the Court was aware, this had never been done)
should simultaneously invest individual
members of the League with a legal right of
complaint if the mandatory made use of this
veto. In the international field, the existence of
obligations that could not be enforced by any
legal process had always been the rule rather
than the exception-and this was even more the
case in 1920 than today.
Moreover, the argument of "necessity"
amounted to a plea that the Court should allow
the equivalent of an actio popularis, or right
resident in any member of a community to take
legal action in vindication of a public interest.
But such a right was not known to international
law as it stood at present: and the Court was
unable to regard it as imported by "the general
principles of law" referred to in Article 38,
paragraph 1 (c), of its Statute.
In the final analysis, the whole "necessity"
argument appeared to be based on
considerations of an extra-legal character, the
product of a process of after-knowledge. It was
events subsequent to the period of the League,
not anything inherent in the mandates system
as it was originally conceived, that gave rise to
the alleged "necessity", which, if it existed, lay
in the political field and did not constitute
necessity in the eyes of the law. The Court was
not a legislative body. Parties to a dispute could
always ask the Court to give a decision ex aequo
et bono, in terms of paragraph 2 of Article 38.
Failing that, the duty of the Court was plain: its
duty was to apply the law as it found it, not to
make it.
It might be urged that the Court was entitled to
"fill in the gaps", in the application of a
teleological principle of interpretation,
according to which instruments must be given
their maximum effect in order to ensure the
achievement of their underlying purposes. This
principle was a highly controversial one and it
could, in any event, have no application to
circumstances in which the Court would have to
go beyond what could reasonably be regarded
as being a process of interpretation and would
have to engage in a process of rectification or
revision. Rights could not be presumed to exist
merely because it might seem desirable that
they should. The Court could not remedy a
deficiency if, in order to do so, it had to exceed
the bounds of normal judicial action.
It might also be urged that the Court would be
entitled to make good an omission resulting
from the failure of those concerned to foresee
what might happen and to have regard to what
it might be presumed the framers of the
mandate would have wished, or would even
have made express provision for, had they had
advance knowledge of what was to occur. The
Court could not, however, presume what the
wishes and intentions of those concerned
would have been in anticipation of events that
were neither foreseen nor foreseeable; and
even if it could, it would certainly not be
possible to make the assumptions contended
for by the Applicants as to what those
intentions were.
For the foregoing reasons, the Court decided to
reject the claims of the Empire of Ethiopia and
the Republic of Liberia.
Barcelona Traction, Light and Power Company,
Ltd. (Belgium v. Spain)
Procedural History:
Action for damages for the expropriation of a
corporation.
Overview:
-Belgium (P) brought an action for damages
against Spain (D) on the ground that its
nationals as shareholders of the Barcelona
Traction Co., incorporated and registered in
Canada, had been seriously harmed by actions
of Spain (D) resulting in expropriation.
-The Barcelona Traction, Light, and Power Co.
was incorporated and registered in Canada for
the purpose of developing and operating
electrical power in Spain (D).
-After the Spanish Civil War, the company was
declared bankrupt by a Spanish court and its
assets were seized.
-After the Canadian interposition ceased,
Belgium (P) brought an action for damages
against Spain (D) for what it termed
expropriation of the assets of the Traction Co.
on the ground that a large majority of the stock
of the company was owned by Belgian (P)
nationals.
-Spain (D) raised the preliminary objection that
Belgium (P) lacked standing to bring suit for
damages to a Canadian company.
Issue:
Does the state of the shareholders of a
company have a right of diplomatic protection if
the state whose responsibility is invoked is not
the national state of the company?
Outcome:
No. In order for a state to bring a claim in
respect of the breach of an obligation owed to
it, it must first establish its right to do so. This
right is predicated on a showing that the
defendant state has broken an obligation
toward the national state in respect of its
nationals. In the present case it is therefore
essential to establish whether the losses
allegedly suffered by Belgian (P) shareholders in
Barcelona Traction were the consequence of
the violation of obligations of which they are
beneficiaries.
-In the present state of the law, the protection
of shareholders requires that recourse be had
to treaty stipulations or special agreements
directly concluded between the private investor
and the state in which the investment is placed.
Barring such agreements, the obligation owed is
to the corporation, and only the state of
incorporation has standing to bring an action
for violations of such an obligation.
Nonetheless, for reasons of equity a theory has
been developed to the effect that the state of
the shareholders has a right of diplomatic
protection when the state whose responsibility
is invoked is the national state of the company.
This theory, however, is not applicable to the
present case, since Spain (D) is not the national
state of Barcelona Traction. Barcelona Traction
could have approached its national state,
Canada, to ask for its diplomatic protection.
-For the above reasons, the Court is of the
opinion that Belgium (P) lacks standing to bring
this action.
Rule:
the state of a shareholders corporation has a
right of diplomatic protection only when the
state whose responsibility is invoked is the
national state of the company.
Analysis:
The Restatement of the Foreign Relations Law
of the United States. § 185, states that failure of
a state to pay just compensation for the taking
of the property of an alien is wrongful under
international law, regardless of whether the
taking itself is conceived as wrongful. Such a
wrongful taking is characterized either as
tortious conduct or as unjust enrichment
CASE CONCERNING THE DELIMITATION OF
MARITIME BOUNDARY IN THE GULF OF MAINE
(UNITED STATES OF AMERICA VS. CANADA)
FACTS:
The Gulf of Maine area consists of a concave,
island-fringed coastline where the United States
and Canada are situated as adjacent, and in
some places arguably opposite, states. The
Georges Bank, particularly its northeastern third,
is the focus of the jurisdictional dispute because
of the valuable fisheries and hydrocarbon
resources located there.
The ocean-ward extension of the territorial sea
boundary was not an area of serious controversy
for the United States and Canada until the late
1960s. The United States government had issued
the Truman Proclamation in 1945, which
included a provision that the boundary of the
continental shelf was to be determined in
accordance with "equitable principles." In 1964,
relying on principles of equidistance contained in
the 1958 Continental Shelf Convention,' Canada
issued geological exploration permits to
petroleum companies for the Georges Bank area
lying on the Canadian side of the equidistance
line. In 1969, subsequent to the decision in the
North Sea Continental Shelf cases,"' the United
States refused to recognize the validity of the
Canadian permits.
On November 5, 1969, the United States
asserted that the Northeast Channel should be
the boundary in the Gulf of Maine and
challenged the eleven-year-old Canadian
exploration permits. In response, Canada
rejected the American claim and acceded to the
1958 Convention on the Continental Shelf-the
treaty whose equidistance principle formed the
basis of Canada's claim-on February 6, 1970. At
this point the parties began negotiations, but no
progress was made until the mid-1970s.
In the mid- 1970s declarations of 200-mile zones
of jurisdiction and the concept of the exclusive
economic zone were a growing trend worldwide.
On April 13, 1976, the United States Congress
enacted the Fisheries Conservation and
Management Act, which extended the exclusive
fisheries zone-an application of the exclusive
economic zone concept-from 12 to 200 miles as
of March 1, 1977. Canada published its claim to
a 200-mile fishery jurisdiction on November 1,
1976. The boundary line claimed was based on
equidistance principles and was to become
effective on January 1, 1977. On November 4,
1976, the United States published its claimed
boundary, which roughly followed the mid-
channel line of the Northeast Channel.
The parties reached an interim agreement on
reciprocal fisheries for 1977 on February 24 of
that year. On August 2, 1977, special negotiators
of ambassadorial rank were appointed to
conduct a comprehensive negotiation for fishery
resources and maritime boundaries. On June 2,
1978, the Canadians suspended the interim
agreement. Chaos followed. Fishermen from
each country were excluded from the other
country's zone and the disputed areas were
overfished by fishermen from each side." As the
situation worsened, Canada published a revised
claim on September 15, 1978, to an additional
2,880 square miles, including 1,500 square miles,
or 15 percent, of the Georges Bank. The United
States protested this claim vehemently.
Negotiations were resumed. In October 1978,
the negotiators determined that, although they
had reached agreement on most of the fisheries
questions, they were unable to resolve the
maritime boundary question, which they
recommended submitting to binding third-party
settlement. Both governments accepted this
recommendation. On March 29, 1979, the
parties concluded two separate, but
interrelated, agreements: the Fisheries
Agreement and the Boundary Settlement Treaty.
The Fisheries Agreement set forth detailed rules
for harmonious sharing of resources, mutual
access and cooperative management of fish
stocks. Three categories of management were
established: joint management for
transboundary stocks, primary management for
stocks of overriding interest, and independent
management for stocks in undisputed areas. It
also provided for a dispute settlement
mechanism and a joint fisheries commission. The
Agreement was meant to be permanent with
entitlement to the stocks subject to review.
The Agreement was controversial in the United
States. The New England fishing communities
lobbied against it at Congressional hearings.' The
pertinent committees decided that while the
Boundary Settlement Treaty was
uncontroversial and useful, the Fisheries
Agreement should not be ratified because it was
unfair to the United States." On March 6, 1981,
President Reagan withdrew the Fisheries
Agreement from consideration by the Senate
and asserted that "it would be best to uncouple
the two treaties and proceed with ratification of
the Boundary Settlement Treaty. On March 25,
the Senate Foreign Relations Committee agreed
to propose a resolution endorsing this approach,
46 which the full Senate adopted on April 29,
1981.
Canada was displeased with the United States'
decision to accept the Boundary Settlement
Treaty and yet to reject the Fisheries Agreement.
The two agreements had been negotiated
together and were intended to be accepted or
rejected together. Canada, which had already
ratified the two agreements, had to separately
consider ratification of the Boundary Settlement
Treaty alone. On October 8, 1981, the Canadian
Governor General authorized the Secretary of
State for External Affairs to ratify the modified
agreement. Following the provisions of the
Treaty, Canada and the United States
subsequently filed this case with the
International Court of Justice, asking that a
Chamber of the Court delimit a single maritime
boundary dividing both the continental shelf and
fisheries zones of the two countries.
The Boundary Settlement Treaty contains four
articles with two annexed agreements, the
Special Agreement 5 and the Arbitration
Agreement. In Article I of the Treaty the parties
agree to submit the dispute to a Chamber of the
ICJ according to the provisions of the Special
Agreement. Article 1 stipulates that if the
Chamber has not been constituted within six
months of the entry into force of the Treaty,
either party may terminate the Special
Agreement, which activates the Arbitration
Agreement. Article III provides that either party
may terminate the Special Agreement if a
vacancy on the Chamber is not filled to its
satisfaction. Article IV contains the terms for the
entry into force of the Treaty.
The Special Agreement sets forth the procedure
for submitting the dispute to a Chamber. Article
I of the Special Agreement states that the
Chamber shall consist of five persons chosen
after consultation with the parties, pursuant to
Articles 26 and 31 of the Statute of the Court.
Article III defines the issue for the Chamber and
stipulates that the parties shall accept the
decision as final and binding.
As originally drafted and signed in 1979, the
Treaty enabled the parties to "maintain a
virtually absolute veto power over the
composition of the Chamber. This was
accomplished by the interaction of the
provisions of the Treaty with changes in the rules
of the Court 56 made in 1972 and 1978. In
general, the changes in the rules had the effect
of allowing the parties to influence the
composition of an ad hoc chamber of the Court.
For example, in 1972 a requirement was added
that the President of the Court consult with the
parties on the composition of the chamber and
inform the Court of their preferences. The Court,
however, votes by secret ballot for the members
and can ignore the parties' wishes. Prior to the
Gulf of Maine case, commentators felt that, in
general, the Court would implement these
provisions in such a manner as to respect the
parties' wishes.
The version of the Treaty which the parties first
signed avoided the risk that the Court would not
constitute the Chamber according to the parties'
wishes. The Special Agreement originally
provided that the members of the Court would
elect three of the five judges on the Chamber
after consultation with the parties, and the
parties would choose two judges ad hoc who
were not nationals of either party. Article I of the
Treaty stated that the Chamber would not be
deemed constituted until the parties notified the
Court of the two judges they had selected.
Accordingly, a party dissatisfied with the Court's
selection of judges could choose to allow the six-
month termination period of Article II of the
Treaty to pass before notifying the Court of its
choice for an ad hoc judge. The Special
Agreement would then no longer be operative
and the Arbitration Agreement would be
triggered. The original version of the Treaty,
thus, ingeniously took advantage of the Court's
provisions for formation of an ad hoc chamber,
giving the parties the advantages of adjudication
before the International Court of Justice with the
added benefit of a degree of control, otherwise
unavailable in that forum, over the makeup of
the body which would decide the case.
The United States Senate deleted the provision
in the Special Agreement allowing each party to
select a non-national judge, apparently because
of the possibility that the original provision was
not compatible with the Statute and Rules of the
ICJ. Because of these amendments, the Treaty
did not provide a clear escape route for the
parties to withdraw the case from the Court if
they were displeased with the judges selected by
the Court for the Chamber. The parties were,
however, at least guaranteed that each would
have a judge of their nationality on the Chamber,
or, alternatively, a judge ad hoc of their choice,
on the Chamber.
On January 20, 1982, the ICJ constituted the
Chamber which would hear the Gulf of Maine
case.
*The Gulf of Maine case was the first case to
utilize the chambers procedure.
THE ARGUMENTS OF THE PARTIES
The United States memorial stated the rule of
law as follows: "The cardinal principle in
delimiting a single maritime boundary is that the
delimitation shall be in accordance with
equitable principles, taking account of the
relevant circumstances in the area to produce an
equitable solution.
The Canadian memorial stated: "[T]here is an
underlying and fundamental norm or rule of law
to be applied to all maritime boundary
delimitations . . . that maritime boundaries are
to be determined in accordance with equitable
principles, taking account of all relevant
circumstances, in order to achieve an equitable
result.
CANADA  Canada claimed that the relevant
geographical circumstances were those
 Canada identified two main sources of
of the Gulf of Maine area itself rather
applicable law. The first was article 6 of
that any macrogeographical general
the 1958 Geneva Convention on the
direction of the North Atlantic coast. It
Continental Shelf. Canada believed that
cited relevant circumstances based
article 6 was the only clear treaty
upon the socio-economic or "human
provision that would be applicable to the
geography" of the area, including the
case and binding upon the Parties. The
fact that fishing in Georges Bank is
second source of applicable law was the
conducted primarily by communities
unity of the delimitation of the shelf and
located on the coastal wings of Nova
of the exclusive economic zone, as
Scotia, between Digby and Lunenburg,
reflected in the parallel wording of
and of Massachusetts and Rhode Island
articles 74 and 83 of the 1982 United
from Gloucester to Newport. Canada
Nations Convention on the Law of the
also relied upon relevant circumstances
Sea. Two inferences from the exclusive
associated with the conduct of the
economic zone concept were sought
Parties concerning an agreement
from this: the criterion of distance from
between the United States and Canada
the coast gives a new importance to the
on East Coast fishery resources and
factor of proximity in the delimitation of
Canada issuing permits of exploration
maritime boundaries, at least within the
and exploitation of oil and gas resources
200 mile-limit; owing to economic
in the Northeast portion of Georges
considerations, a significant economic
Bank.
dependence upon the resources of the
 Canada regarded Cape Cod and
disputed area is a factor that should be
Nantucket as "incidental special
given special weight.
features" added to the general convexity
 Canada contended that each coastal
of the Massachusetts coast. If the
State should receive as much as possible
equidistance method were to be applied
of its 200-mile entitlement without
in this case, these features would attract
encroaching on the corresponding
a sea area more than eight times their
entitlement of the other Party, and that
land territory, which would result in a
the method most precisely reflecting
situation recognized as inherently
this requirement was equidistance.
inequitable.
 Canada also contended that, as the
 Additionally, Canada claimed that the
name exclusive economic zone implies,
United States’ conduct, which involved
the central purpose is an economic zone,
its consent to the application of the
rooted in the special dependence of
equidistance method, could be taken
coastal States upon the resources off
into account in three ways of varying
their coasts. Canada thus argued that
importance: as evidence of
the coastal populations of South West
acquiescence; as an indication of the
Nova Scotia have a vital dependence on
existence of a modus vivendi; and as a
the fishery resources of Georges Bank.
case of estoppel.
Canada also maintained that its Georges
Bank fishery has deep historical roots. USA
The United States predicated its claim to the and Sherman Bank on the Scotian Shelf,
whole of Georges Bank on four grounds alleged as special features. The United States
to be "equitable principles": also alleged non-geographical
circumstances to be relevant: the three
• The relationship between the coasts of
separate and identifiable ecological
the Parties and the maritime areas in
régimes associated, respectively, with
front of those coasts: this principle of
the Gulf of Maine Basin, Georges Bank,
seaward extension rested upon a
and the Scotian Shelf, and the role of the
distinction between “primary coasts” –
Northeast Channel as a "natural
coasts that follow the general direction
boundary" between ecological régimes
of the mainland coastline as a whole -
of Georges Bank and the Scotian Shelf, a
and the “secondary coasts”, as well as
miscellaneous collection of other State
the notion of perpendicular extension of
activities.
primary coasts.
 These four principles were
• Resource conservation and
supplemented by a broad claim by the
management. This principle rested on
United States of "predominant interest"
two premises: first, the United States
over the entire Gulf of Maine, based
considered that a basic theme of the
upon a number of factors relating to
exclusive economic zone is management
defence, navigation and search and
by a single State wherever possible in
rescue activities.
order to facilitate conservation and
 Historically, the United States claimed
minimize the potential for international
that from the Truman Proclamation of
disputes; secondly, the United States
1945 it had maintained that the Gulf of
contended that there are “three
Maine boundary must be settled by
identifiable and different oceanographic
agreement between the Parties. The
and ecological regimes” in the Gulf of
United States then claimed that Georges
Maine area, with a natural boundary at
Bank fell within the United States
the Northeast Channel.
definition of its continental shelf at the
• Minimizing the potential for
time of the Truman Proclamation, and
international disputes: this third
that subsequent United States
principle was also supposed to be
behaviour and claims were consistent
fulfilled by awarding the whole of
with that understanding.
Georges Bank to the United States, and
thus, minimizing a potential source of The Chamber rejected all the arguments of the
disputes between the two States. parties in its decision.
• Relevant circumstances of the area. The
United States identified nine ISSUE
geographical circumstances alleged to What is the course of the single maritime
be relevant including: the location of the boundary that divides the continental shelf and
land boundary in the far northern corner fishery zones of Canada and the United States of
of the Gulf of Maine; the general America from a point in latitude 44º 11' 12" N,
direction of the coast in the Gulf of longitude 67º 16' 46" W to a point to be
Maine area; the coastal concavity that is determined by the Chamber within an area
the Gulf of Maine; the Northeast bounded by straight lines connecting the
Channel, Georges Bank and Browns Bank following sets of geographic co-ordinates:
latitude 40º N, longitude 67º W; latitude 40º N,
longitude 65º W; latitude 42º N, longitude 65º
W?
RULING
The Chamber noted that the only initial problem
was to what extent it was bound by the starting
point selected by the Parties, and concluded that
it should conform to the terms defined by the
Parties.
As to the possibility of drawing a single boundary
delimiting both the continental shelf and the
fisheries or exclusive economic zones, there was
no rule of international law to the contrary and
there was no material impossibility in drawing a
boundary of this kind. The Chamber defined with
greater precision the geographical area, called
"the Gulf of Maine area". The gulf was a broad,
roughly rectangular indentation, bordered on
three sides by land and on the fourth side open
to the Atlantic Ocean. The delimitation was not
limited to the Gulf of Maine but comprised,
beyond the Gulf closing line, another maritime
expanse including the whole of the Georges
Bank, the main focus of the dispute.
The Chamber noted that the Parties were in
agreement on the unity and uniformity of the
seabed, and that there were no
geomorphological reasons for distinguishing
between the respective natural prolongations of
the United States and Canadian coasts in the
continental shelf of the delimitation area.
As to the water column, the great mass of water
belonging to the delimitation area possessed the
same character of unity and uniformity, which
led to an impossibility to discern any natural
boundary capable of serving as a basis for
carrying out a delimitation of the kind requested
by the Parties.
The Chamber summarized the prescriptions of
general international law for maritime
delimitation between neighbouring States as
follows:
(i) 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.
(ii) 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."
The Chamber believed that, although article 6 of
the 1958 Convention would have been
mandatory in respect of the delimitation of the
continental shelf between Canada and the
United States, there was no obligation to apply it
to the delimitation of a single maritime boundary
for both the continental shelf and the
superjacent fishery zone.
As for Canada's contention about the United
States' conduct concerning the Canadian
continental shelf permits, it found that the
doctrines of estoppel and acquiescence were
unwarranted in these circumstances.
The Chamber stated that the criterion underlying
the United States' line of 1976 was too much
geared to one aspect of the present problem,
i.e., avoiding the splitting of fishing banks, for it
to be capable of being considered equitable in
relation to the characteristics of the case.
As for the 1982 line, the Chamber considered
that “the method of delimitation by the
perpendicular to the coast or to the general
direction of the coast might possibly be
contemplated in cases where the relevant
circumstances lent themselves to its adoption,
but is not appropriate in cases where these
circumstances entail so many adjustments that
they completely distort its character.
Concerning the two lines adopted successively
by Canada, based on the same criterion and both
purported to be the result of applying the
equidistance method, the Chamber recalled that
the application of the equidistance method was
not mandatory between the Parties, but
observed that this did not imply that Canada was
bound to refrain from applying any such method
for drawing the boundary claim it intended to
propose.
Finally, taking action on the question of drawing
a single maritime boundary, the Chamber again
stressed the unprecedented character of the
delimitation that was required, and stated that
such a delimitation "can only be carried out by
the application of a criterion, or combination of
criteria, which does not give preferential
treatment to one of the two objects to the
detriment of the other."
As a result, the Chamber felt bound to turn
towards "an application to the present case of
criteria more especially derived from
geography," this being understood to be "mainly
the geography of coasts, which has primarily a
physical aspect, to which may be added, in the
second place, a political aspect." The
configuration of the coasts of the Gulf of Maine
was found to exclude any possibility that the
maritime boundary could be formed by a
unidirectional single line. It was therefore
obvious that between Point A and the Nantucket
- Cape Sable closing line, the delimitation line
must comprise two segments.
For the first segment, belonging to the sector
closest to the international boundary terminus,
the Chamber drew from Point A two lines
respectively perpendicular to the two basic
coastal lines (from Cape Elizabeth to the
international boundary terminus and from there
to Cape Sable) and bisected the angle thus
formed. The finishing point of the first segment
was to be automatically determined by its
intersection with the line containing the next
segment.
For the second segment of the boundary, the
Chamber was dealing with the "quasi-
parallelism" between the coasts of Nova Scotia
and Massachusetts, and realized that corrections
should be made in order to take into account the
difference in length between the respective
coastlines of the Parties. The ratio between the
coastal fronts of the two States had to be applied
to a line drawn across the Gulf where the coast
of Nova Scotia and Massachusetts are nearest to
each other. The second segment of the boundary
would begin where the corrected median line
intersected the bisector drawn from Point A and
ended where it intersected the Nantucket-Cape
Sable closing line.
The third segment of the boundary is the one
that actually crosses Georges Bank. Since this
segment would inevitably be situated
throughout its entire length in open ocean, it
seemed to the Chamber “obvious that the only
kind of practical method which can be
considered for [delimiting the final segment] is,
once again, a geometrical method,” and that
"the most appropriate is that recommended
above all by its simplicity, namely in this instance
the drawing of a perpendicular to the closing line
of the Gulf." Finally, the Chamber determined
the precise point on the closing line of the Gulf
from which the perpendicular to that line should
be drawn seawards.
Whether the result could be considered
intrinsically equitable did not seem absolutely
necessary for the first two segments of the line,
since their guiding parameters were provided by
geography. The third segment was the principal
area at stake in the dispute because it traversed
Georges Bank. The Chamber considered that the
Parties’ contentions could not be taken into
account as a relevant circumstance or as an
equitable criterion in determining the
delimitation line, and it found there was no
likelihood of catastrophic repercussions for the
livelihood and economic well-being of the
Parties.
The Judgment was rendered on 12 October
1984. By four votes to one, the Chamber held
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 44º 11' 12" 67º 16'
46"
B 42º 53' 14" 67º 44'
35"
C 42º 31' 08" 67º 28'
05"
D 40º 27' 05" 65º 41'
59"
Case Concerning the Continental Shelf (Tunisia
v. Libyan Arab Jamahiriya)
The Republic of Tunisia and the Socialist
People’s Libyan Arab Jamahiriya are both
situated on the northern coastline of the
African Continent, fronting on the
Mediterranean Sea. While the Parties have not
concluded any agreement delimiting any part of
the continental shelf, this has not prevented a
certain amount of exploration and exploitation.
Each Party has granted concessions in respect
of areas regarded by the Party concerned as
appertaining to itself.
Tunisia had an existing concession line. In 1974,
Libya granted a concession the boundary of
which was a line drawn from Ras Ajdir at some
26° to the meridian, further west than the
equidistance line, so the result was an
overlapping of claims in an area some 50 miles
from the coast.
Following protests in 1976 by each Government
at the activities of the other, the Parties signed
a Special Agreement in 1977 by which the
matter was brought before the International
Court of Justice.
THE DISPUTE:
Libya and Tunisia requested the Court to:
A. Determine what principles and rules of
international law may be applied for the
delimitation of the area of the continental shelf
appertaining to each of them;
B. Decide according to equitable principles, and
the relevant circumstances which characterize
the area, as well as the new accepted trends in
the Third Conference on the Law of the Sea,
and;
C. Clarify the practical method for the
application of these principles to enable the
experts to delimit these areas without
difficulties.
The parties have different delimitation existence of a crestline determined by the Zira
methods: and Zuwarah Ridges.

Libyan- Construct a line of delimitation which is

consistent with the northward direction of the
On behalf of Libya:
natural prolongation.

Tunisian methods-
• A state is entitled ipso facto and ab
1. The first group consists in defining the
initio to the continental shelf which is the
natural prolongation of the two States based on
natural prolongation of its land territory into
geological, geophysical and bathymetric data.
and under the sea.
2. The second group is geometrical, based
• Any delimitation should leave as much
on the configurations of the coasts of the two
as possible to each Party all those parts of the
states, with a view to implementing the
continental shelf that constitute its natural
concepts of the coastal front and of
prolongation.
proportionality.
• The natural prolongation of the land
territory of a State into and under the sea
Submissions: establishes its ipso jure title to the appurtenant
continental shelf.
On behalf of the Republic of Tunisia:
• For the purpose of achieving an
equitable delimitation, the whole of the sea-
• The delimitation should be effected in bed and subsoil beyond the low-water mark
such a way, taking into account the physical and along the coast of each party is to be taken into
natural characteristics of the area, as to leave to account.
each party all those parts of the continental
• Given the particular geographical
shelf that constitute a natural prolongation of
configuration, the equidistance method would
its land territory into and under the sea,
result in an delimitation of the continental shelf
without encroachment on the natural
which would be inequitable, inappropriate, and
prolongation of the land territory of the other.
not in conformity with international law.
• The delimitation must not, at any point,
encroach upon the area within which Tunisia
possesses well-established historic rights. The Court’s Ruling

• The delimitation must be effected in A. APPLICABLE PRINCIPLES AND RULES OF

conformity with equitable principles and taking INTERNATIONALLAW
account of all the relevant circumstances which
• The delimitation is to be effected in
characterize the case.
accordance with equitable principles
• The delimitation should lead to the considering all relevant circumstances.
drawing of a line which would not appreciably
• The area relevant for the delimitation
depart from the lines which result from taking
constitutes a single continental shelf as the
into account the geomorphological factors
natural prolongation of the land territory of
peculiar to the region, in particular the
both Parties, therefore principle of natural
prolongation cannot be used.
• In the particular geographical
circumstances of the present case, the physical
structure of the continental shelf areas is not
such as to determine an equitable line of
delimitation
B. THE RELEVANT CIRCUMSTANCES TO BE
TAKENINTO ACCOUNT IN ACHIEVING AN
EQUITABLEDELIMITATION
• The existing and potential delimitations
with other states in the area -- the rights of
third States are reserved
• The general configuration of the coasts
of the Parties, and in particular the marked
change in direction of the Tunisian coastline
• The existence and position of the
Kerkennah Islands
• The land frontier between the Parties,
and their conduct prior to1974 in the grant of
petroleum concessions, resulting in the
employment of a line seawards from Ras Ajdir,
which had in the past been observed as a de
facto maritime limit
• The element of a reasonable degree of
proportionality
C. THE PRACTICAL METHOD FOR
THEAPPLICATION OF THE
AFORESAIDPRINCIPLES AND RULES
• The Court reviewed and rejected the
lines proposed by the parties. It held that a
delimitation based on equitable principles,
taking into account the relevant circumstances,
called for the boundary area to be treated as
two sectors, and it indicated a line of
delimitation in two segments.
• The area is delimited by two lines:
Initial line – The Court took note of the de facto
line employed by each Party dividing their
petroleum concessions.
Second line – The change in direction of the
coast was taken into account. The land territory
of the two States is adjacent but because of the
change in direction of Tunisia’s coast, it seems
opposite at some point.
In determining the angulation of this line, the
existence of Kerkennah Islands was considered.
Causing the delimitation line to run parallel to
the island coastline would amount to giving
excessive weight to the islands and would result
in the diminution of the Libyan continental shelf
METHOD:
Step 1: Determine the initial line
The court chose a De facto line used by parties
to divide their oil concession.
Step 2: Take note of the abrupt change in the
coast’s direction
The Court identified the most westerly
portion of the Tunisian coast.
Step 3: The “Half-effect” Method
To determine the angle of the second line, the
Court employed the “half-effect” method. This
involved drawing two delimitation lines:
• One giving to the island the full-effect
attributed to it by the delimitation method in
use.
• the other disregarding the island totally.
The delimitation line actually adopted is drawn
between the first two lines.
Case Concerning The Land Island and the parties were able to reach an
Maritime Frontier Dispute agreement on a substantial part of the
land border between El Salvador and
(El Salvador/Honduras: Nicaragua
Honduras; only six sectors of the frontier
intervening) Sept 11, 1992
remained unsettled. A mediation process
initiated in 1978 resulted in the conclusion
of a peace treaty in 1980.
On 11 December 1986, El Salvador and
Honduras jointly notified the Court of a
Special Agreement concluded between
Under this treaty a Joint Border
them on 24 May 1986 whereby a dispute
Commission was created to determine the
referred to as "Land, Island and Maritime
boundary in the remaining six sectors as
Frontier Dispute" would be submitted for
well as to decide upon the legal status of
decision by a Chamber to be constituted
the islands and the maritime spaces. In
according to Article 26 para.2 of the
the event that the parties did not reach a
Statute. The Chamber would consist of
settlement within five years, the treaty
three Members of the Court and two
provided that the parties, within six
judges ad hoc chosen by each Party. The
months, conclude a Special Agreement to
Chamber finally consisted of Judges Oda,
submit the dispute to the ICJ. Accordingly,
Sette-Camara and Sir Robert Jennings and
a Special Agreement was concluded on
the ad hoc judges Valticos and Torres
May, 24, 1986 requesting the Court to
Bernárdez (cf. Digest, vol. 1, page 294).
delimit the frontier between El Salvador
and Honduras in the subject six sectors
and to determine the legal status of the
The dispute was essentially rooted in the islands in the Gulf of Fonseca, and the
fall of the Spanish Colonial Empire in waters of the Gulf itself.
Central America in the 19th century. Both
Honduras and El Salvador belonged to the
Captaincy-General of Guatemala, which
Regarding the land boundary, the decision
itself was a part of Mexico at the time. In
of the Court was unanimous for all but the
1821, Honduras and El Salvador joined
fourth sector, which was decided against
the Federal Republic of Central America the vote of ad hoc Judge Valticos.
and became independant in 1839 after the
disintegration of the Federal Republic.
Their respective national borders
The Court relied on the uti possidetis juris
corresponded to the administrative
principle, according to which the national
borders recognized for the former Spanish
boundaries of former colonies correspond
colonies according to the uti possidetis
to the earlier administrative borders of the
iuris principle applied first in Central
colonies. The Court underlined that it was
America and later in Africa.
the application of this principle which
provided States liberated from former
colonial empires with internationally
As early as 1854, the legal status of the
recognized borders. The different titles
islands located in the Gulf of Fonseca
invoked by the parties to the case were of
became an issue of dispute; the question
different legal value; thus, the Court
of the land frontier followed in 1861.
decided to recognize only the title deeds
Border incidents led to mounting tension
granted by the Spanish crown as valid
between the States and, ultimately, to an
proof of title as well as topographical
armed conflict in 1969. However, in 1972
characteristics in order to define a clearly
recognizable borderline.
With regard to the islands in the Gulf of
Fonseca, the Court decided in a vote of 4
to 1 (against : ad hoc Judge Torres
Bernárdez) that, according to Art. 2 para.
2 of the Special Agreement, the parties
had transferred general jurisdiction over
all islands located in the Gulf to the Court
as far as their national affiliation was in
dispute. Accordingly, the Court concluded
that three islands were in dispute, namely
El Tigre, Meanguera and Meanguerita,
refusing Honduras' contention that El
Tigre had been part of Honduras since
1854, without challenge.
The decision of the Court was based on
the assumption that none of the islands
had been terra nullius in 1821, the date of
independance. Thus, sovereignty over the
islands had been achieved according to
the uti possidetis juris principle. However,
the application of this principle suffered
from the lack of documents that might
have testified clearly the appertainance of
the islands to one administrative district
or the other. Thus the Court was forced to
concentrtate more on the behaviour of the
parties with regard to the islands after
1821. On this basis the Court found that
El Tigre appertained to Honduras and
Meanguera and Meanguerita to El
Salvador.
The decision on the legal situation of the
maritime spaces of the Gulf constituted
the part of the proceedings where the
intervention of Nicaragua had been
admitted (Cf. Digest, vol. 1, p. 294f). The
Court, in this context, had first to decide
whether the Special Agreement
empowered it to draw the frontier only
within or also outside the closing line of
the Gulf. Following the argument of El
Salvador, the Court came to the
conclusion that it was not competent to
delimit the waters of the Gulf, because the
Special Agreement did not contain
indications in this sense. According to the
Agreement, the Court had to determine
the legal status of the waters of the Gulf
on the basis of applicable international law
and, insofar as necessary, the General
Peace Treaty of 1980 between El Salvador
and Honduras. In view of its general
characteristics, dimensions and
proportions, the Gulf would today be
regarded as a juridical bay in accordance
with the Convention on the Territorial Sea
and the Contiguous Zone of 1958 and the
Convention on the Law of the Sea of
1982. As a consequence thereof, if the
Gulf was a single State bay, a closing line
could be drawn and the waters thereby
enclosed and considered as internal
waters. However, the Gulf was not a
single State bay but constituted a so
called historical bay, which is neither
defined in the 1958 Convention nor in the
Convention of 1982. From this fact the
Court concluded that its decision had to be
taken on the basis of customary
international law. After reviewing its own
jurisprudence on the topic, the Court
found that it had to examine the history of
the Gulf. In this context, much weight was
accorded to a judgment of the Central
American Court of Justice of 1917 in a
dispute between El Salvador and
Nicaragua. That Court had come to the
conclusion that the Gulf of Fonseca
effectively constituted a "closed sea"
belonging to all three coastal States
communally, with the exception of a three
mile zone established unilaterally by each
coastal State. Thus, the Central American
Court viewed the Gulf of Fonseca as a
condominium resulting from the
succession of the three States from Spain
in 1821. Until then, the Gulf had been a
single State bay belonging to Spain alone.
According to the Court, the decision of the
Central American Court underlined the could not be waters of a historic bay.
fact that at the time of independance, no Therefore, the three coastal States, joint
boundaries were delimited in the Gulf and sovereigns of the internal waters, must
thus the waters had remained undivided. each be entitled outside the closing line to
The Court, however, stressed that the a territorial sea, continental shelf and
decision of the Central American Court exclusive economic zone. It is, however,
constituted a binding judgment only for the three States to decide whether this
between the two parties originally situation should be upheld or replaced by
involved, namely El Salvador and a division and delimitation into three
Nicaragua, and accordingly, the Court had separate zones.
to reach its own decision. With a 4 to 1
vote, the Court affirmed that the Gulf of
Fonseca was a case of "historic waters",
whereby the three coastal States had
succeeded to communal sovereignty. In
contrast to the frontier delimited on land,
the waters of the Gulf had never been
divided or otherwise delimited after the
independance of the three coastal States.
Thus, the communal succession for the
three States was a logical consequence of
the uti possidetis juris principle with
regard to the sovereignty of the Gulf.

Finally, the Court drew the closing line of

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

As to the waters outside the Gulf, the

Chamber noted that intirely new concepts
of maritime law existed present day,
unheard of in 1917. The Chamber held in
this context that there is a territorial sea
proper seawards of the closing line of the
Gulf. Since there is a condominium of the
waters inside the Gulf, there is a tripartite
presence at the closing line. Only seaward
of the closing line could modern territorial
seas exist, as otherwise, the Gulf waters