NORTH SEA CONTINENTAL SHELF CASES
Facts of the Case:
1. Netherlands and Denmark had drawn partial
boundary lines based on the equidistance
principle (A-B and C-D).
2. An agreement on further prolongation of the
boundary proved difficult because Denmark and
Netherlands wanted this prolongation to take
place based on the equidistance principle (B-E
and D-E) where as Germany was of the view
that, together, these two boundaries would
produce an inequitable result for her.
3. Germany stated that due to its concave
coastline, such a line would result in her loosing
out on her share of the continental shelf based
on proportionality to the length of its North Sea
coastline. The Court had to decide the principles
and rules of international law applicable to this
delimitation. In doing so, the Court had to decide
if the principles espoused by the parties were
binding on the parties either through treaty law
or customary international law.
Questions before the Court (as relevant to this post):
Is Germany under a legal obligation to accept the
equidistance-special circumstances principle, contained
in Article 6 of the Geneva Convention on the Continental
Shelf of 1958, either as a customary international law
rule or on the basis of the Geneva Convention?
The Court’s Decision:
The use of the equidistance method had not crystallised
into customary law and the method was not obligatory
for the delimitation of the areas in the North Sea related
to the present proceedings.
Relevant Findings of the Court:
1. Nature of the treaty obligation: Is the 1958 Geneva
Convention, and in particular Article 6, binding on
Germany?
1. Article 6 of the Geneva Convention stated that unless
the parties had already agreed on a method for
delimitation or unless special circumstances exist, the
equidistance method would apply. Germany had signed,
but not ratified, the Geneva Convention, while
Netherlands and Denmark were parties to the
Convention. The latter two States argued that while
Germany is not a party to the Convention (not having
ratified it), she was still bound by Article 6 of the
Convention because:
“…(1) by conduct, by public statements and
proclamations, and in other ways, the Republic has
unilaterally assumed the obligations of the
Convention; or has manifested its acceptance of the
conventional regime; or has recognized it as being
generally applicable to the delimitation of continental
shelf areas…
(2) the Federal Republic had held itself out as so
assuming, accepting or recognizing, in such a manner
as to cause other States, and in particular Denmark and
the Netherlands, to rely on the attitude thus taken up”
(the latter is called the principle of estoppel).
2. The Court rejected the first argument. It said that only
a ‘very definite very consistent course of conduct on the
part of a State would allow the Court to presume that the
State had somehow become bound by a treaty (by a
means other than in the formal manner: i.e. ratification)
when the State was ‘at all times fully able and entitled
to…’ accept the treaty commitments in a formal manner.
The Court held that Germany had not unilaterally
assumed obligations under the Convention. The court
also took notice of the fact that even if Germany ratified
the treaty, she had the option of entering into a
reservation on Article 6, following which that particular
article would no longer be applicable to Germany (in
other words, even if one were to assume that Germany
had intended to become a party to the Convention, it
does not presuppose that it would have also undertaken
those obligations contained in Article 6).
3. Note: The Vienna Convention on the Law of Treaties
of 1969 (VCLT), which came into force in 1980,
discusses in more detail treaty obligations of third States
(those States who are not parties to the treaty). It clearly
stipulates that obligations arise for third States from a
provision of a treaty only if (1) the actual parties to the
treaty intended the provision to create obligations for
third States; and (2) third State expressly accept those
obligations in writing (Article 35 of the VCLT). The VCLT
was not in force when the Court deliberated on this case.
However, as seen above, the Court’s position is
consistent the VCLT. (See the relevant provisions of the
Vienna Convention on the Law of Treaties).
4. The Court held that the existence of a situation of
estoppel would have allowed Article 6 to become binding
on Germany – but held that Germany’s action did not
support an argument for estoppel. The Court also held
that the mere fact that Germany may not have
specifically objected to the equidistance principle as
contained in Article 6, is not sufficient to state that the
principle is now binding upon it.
5. In conclusion, the Court held that Germany had not
acted in any manner so as to incur obligations contained
in Article 6 of the Geneva Convention. The
equidistance–special circumstances rule was not binding
on Germany by way of treaty law.
2. Nature of the customary international law obligation: Is
Germany bound by the provisions of Article 6 of the
Geneva Convention in so far as they reflect customary
international law?
6. Netherlands and Denmark argued that Article 6 also
reflected ‘the accepted rule of general international law
on the subject of continental shelf delimitation’ and that it
existed independently of the Convention. Therefore, they
argued, Germany is bound by the subject matter of
Article 6 by way of customary international law.
7. To decide if the equidistance principle bound
Germany by way of customary international law, the
Court examined (1) the status of the principle contained
in Article 6 as it stood when the Convention was being
drawn up; and (2) its status after the Convention came
into force.
(a) What was the customary law status of Article 6 at the
time of drafting the Convention?
8. The Court held that the principle of equidistance, as
contained in Article 6 did not form a part of existing or
emerging customary international law at the time of
drafting the Convention. The Court supported this finding
based on (1) the hesitation expressed by the drafters of
the Convention, the International Law Commission, on
the inclusion of Article 6 into the Convention and (2) the
fact that reservations to Article 6 was permissible under
the Convention. The Court held:
“… Article 6 is one of those in respect of which, under
the reservations article of the Convention (Article 12)
reservations may be made by any State on signing,
ratifying or acceding, – for speaking generally, it is a
characteristic of purely conventional rules and
obligations that, in regard to them, some faculty of
making unilateral reservations may, within certain limits,
be admitted; whereas this cannot be so in the case of
general or customary law rules and obligations which, by
their very nature, must have equal force for all members
of the international community, and cannot therefore be
the subject of any right of unilateral exclusion
exercisable at will by any one of them in its own favor….
The normal inference would therefore be that any
articles that do not figure among those excluded from
the faculty of reservation under Article 12, were not
regarded as declaratory of previously existing or
emergent rules of law …” (see para 65 for a counter
argument and the Court’s careful differentiation)
(b) Did the provisions in Article 6 on the equidistance
principle attain the customary law status after the
Convention came into force?
9. The Court then examined whether the rule contained
in Article 6 had become customary international law after
the Convention entered into force – either due the
Convention itself (i.e., if enough States had ratified the
Convention in a manner so as to fulfil the criteria
specified below), or because of subsequent State
practice (i.e. even if an adequate number of States had
not ratified the Convention, one could find sufficient
State practice to meet the criteria below). The Court held
that Article 6 of the Convention had not attained a
customary law status. (Compare the 1958 Geneva
Convention with the four Geneva Conventions on 1949
relating to international humanitarian law in terms of the
latter’s authority as a pronouncement of customary
international law).
10. For a customary rule to emerge the Court held that it
needed: (1) very widespread and representative
participation in the Convention, including States whose
interests were specially affected (in this case, they were
coastal States) (i.e. generality); and (2) virtually uniform
practice (i.e. consistent and uniform usage) undertaken
in a manner that demonstrates (3) a general recognition
of the rule of law or legal obligation (i.e. opinio juries). In
the North Sea Continental Shelf cases the court held
that the passage of a considerable period of time was
unnecessary (i.e. duration) for the formation of a
customary law.
Widespread and representative participation
11. The Court held that the first criteria was not met. The
number of ratifications and accessions to the Convention
(39 States) were not adequately representative or
widespread.
Duration
12. The Court held that the duration taken for a
customary law rule to emerge is not as important as
widespread and representative participation, uniform
usage, and the existence of an opinio juris. It held that:
“Although the passage of only a short period of time (in
this case, 3 – 5 years) is not necessarily, or of itself, a
bar to the formation of a new rule of customary
international law on the basis of what was originally a
purely conventional rule, an indispensable requirement
would be that within the period in question, short though
it might be, State practice, including that of States whose
interests are specially affected, should have been both
extensive and virtually uniform in the sense of the
provision invoked and should moreover have occurred in
such a way as to show a general recognition that a rule
of law or legal obligation is involved.”
Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua
Case) or in omissions (Lotus case), in so far as those
acts or omissions were done following a belief that the
said State is obligated by law to act or refrain from acting
in a particular way. (For more on opinio juris click here).
14. The Court examined 15 cases where States had
delimited their boundaries using the equidistance
method, after the Convention came into force (paras. 75
-77). The Court concluded that even if there were some
State practice in favour of the equidistance principle, the
Court could not deduct the necessary opinio juris from
this State practice. The North Sea Continental Shelf
Cases confirmed that both State practice (the objective
element) and opinio juris (the subjective element) are
essential pre-requisites for the formation of a customary
law rule. This is consistent with Article 38 (1) (b) of the
Statute of the ICJ. The Court explained the concept of
opinio juris and the difference between customs (i.e.
habits) and customary law:
“Not only must the acts concerned amount to a settled
practice, but they must also be such, or be carried out in
such a way, as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule
of law requiring it. The need for such a belief, i.e, the
existence of a subjective element, is implicit in the very
notion of the opinio juris sive necessitatis. The States
concerned must therefore feel that they are conforming
to what amounts to a legal obligation. The frequency, or
even habitual character of the acts is not in itself
enough. There are many international acts, e.g., in the
field of ceremonial and protocol, which are performed
almost invariably, but which are motivated only by
considerations of courtesy, convenience or tradition, and
not by any sense of legal duty.” (Para 77).
15. The Court concluded that the equidistance principle
was not binding on Germany by way of treaty or
customary international law. In the case of the latter, the
principle had not attained a customary international law
status at the time of the entry into force of the Geneva
Convention or thereafter. As such, the Court held that
the use of the equidistance method is not obligatory for
the delimitation of the areas concerned in the present
proceedings.
QATAR V BAHRAIN
A claim to settle a dispute involving sovereignty over
certain islands, sovereign rights over certain shoals and
delimitation of a maritime boundary was filed by Qatar
(P) in the International Court of Justice against Bahrain
(D). The Court’s jurisdiction was however disputed by
Bahrain (D).
Synopsis of Rule of Law. An international agreement
creating rights and obligations can be constituted by the
signatories to the minutes of meetings and letters
exchanged.
Facts.
1. A dispute concerning sovereignty over
certain islands and shoals, including the
delimitation of a maritime boundary were
issues upon which Qatar (P) and Bahrain (D)
sought to resolve for 20 years.
2. During this period of time, letters were
exchanged and acknowledged by both
parties heads of state. A Tripartite Committee
“for the purpose of approaching the International
Court of Justice”�..”� was formed by
representatives of Qatar (P), Bahrain (D) and
Saudi Arabia.
3. Though the committee met several time, it
failed to produce an agreement on the
specific terms for submitting the dispute to
the Court. Eventually, the meetings
culminated in “Minutes”�, which reaffirmed
the process and stipulated that the parties
“may”� submit the dispute to the I.C.J. after
giving the Saudi King six months to resolve
the dispute. The Court’s jurisdiction was
disputed by Bahrain (D) when Qatar (P) filed a
claim in the I.C.J.
Issue. Yes. An international agreement creating rights
and obligations can be constituted by the signatories to
the minutes of meetings and letters exchanged. Though
Bahrain (D) argued that the Minutes were only a record
of negotiation and could not serve as a basis for the
I.C.J.’s jurisdiction, both parties agreed that the letters
constituted an international agreement with binding
force.
International agreements do not take a single form under
the Vienna Convention on the Law of Treaties, and the
Court has enforced this rule in the past. In this case, the
Minutes not only contain the record of the meetings
between the parties, it also contained the reaffirmation of
obligations previously agreed to and agreement to allow
the King of Saudi Arabia to try to find a solution to the
dispute during a six-month period, and indicated the SOUTH CHINA SEA ARBITRATION
possibility of the involvement of the I.C.J. The Minutes
stipulated commitments to which the parties agreed, Legal Status of the Award
thereby creating rights and obligations in international
UNCLOS, the international legal basis for the arbitration,
law. This is the basis therefore of the existence of
is very clear in Annex VII, Arbitration, Article 11 that
international agreement.
“[t]he award of the arbitral tribunal shall be final and
On the part of the Bahrain’s (D) Foreign Minister, he binding and without appeal . . . . It shall be complied with
argued that no agreement existed because he never by the parties to the dispute.”[9]
intended to enter an agreement fails on the grounds that
Hence, there is no argument to be made that
he signed documents creating rights and obligations for
nonappearance by a state changes or effects the “final
his country. Also, Qatar’s (P) delay in applying to the
and binding” nature of the Award. Moreover, while China
United Nations Secretariat does not indicate that Qatar
has asserted both after the release of the 2015 Award
(P) never considered the Minutes to be an international
on Jurisdiction and the 2016 Award that the both are
agreement as Bahrain (D) argued. However, the
“null and void” and have “no binding force,”[10] there is
registration and non-registration with the Secretariat
no legal basis in UNCLOS for such assertions.
does not have any effect on the validity of the
agreement.

HELD: Yes. An international agreement creating rights
and obligations can be constituted by the signatories to
the minutes of meetings and letters exchanged. Though
Bahrain (D) argued that the Minutes were only a record
of negotiation and could not serve as a basis for the
I.C.J.’s jurisdiction, both parties agreed that the letters
constituted an international agreement with binding
force.
China has further stated that it “neither accepts nor
recognizes” the Award.[11] There is a modest practice of
states opting not to accept or recognize, and thus not
comply with, decisions of the ICJ, the International
Tribunal for the Law of the Sea (ITLOS), and a tribunal
established pursuant to UNCLOS.

There is no doubt that language plays a vital role in
influencing a court’s decision as to whether an
agreement has been entered into and in this particular
case, the language was the main focus of the I.C.J and it
was the contents of the Minutes that persuaded the
I.C.J. to reject the Bahrain foreign minister’s (D) claim
that he did not intend to enter into an agreement. Where
this is compared to general U.S. contract law, where a
claim by one of the parties that no contract existed
because there was no meeting of the minds might be the
ground upon which a U.S. court would consider whether
a contract did exist with more care and thought than the
I.C.J. gave the foreign minister of Bahrain’s (D) claims.
Rocks/Low-Tide Elevations or Islands
Jurisdiction
The Philippines argued that the Tribunal had
jurisdiction to determine whether certain insular
features in the South China Sea were either rocks
(entitled to a 12 nm territorial sea), low-tide
elevations no territorial sea), or islands (entitled to a
200 nm zone), even though the features in question
were subject to territorial sovereignty disputes, as this
involved interpretation of the relevant provisions of
UNCLOS.[12]
China directly countered this, arguing that the heart of
the dispute concerned territorial sovereignty, not the
“interpretation or application” of UNCLOS. [13] In the
alternative, China argued that the rock-or-island
determination concerned maritime boundary
delimitation, which, as result of China’s Declaration
of August 26, 2006,[14] was exempted from
compulsory adjudicative jurisdiction under
UNCLOS.[15]
In reaching the conclusion that it had jurisdiction to
determine the status of the contested features, the
Tribunal stated that it “does not accept . . . that it follows
from the existence of a dispute over sovereignty that
sovereignty is also the appropriate characterization” of
the Philippine claims that the features were rocks or low-
tide elevations.[16] In making this determination, it noted
that none of the Philippine Submissions required a
determination of sovereignty. [17]
The Tribunal did not accept China’s assessment of the
dispute as involving maritime boundary delimitation,
stating that it was “not convinced,” and that “[i]t does not
follow . . . that a dispute over an issue that may be
considered in the course of a maritime boundary
delimitation constitutes a dispute over maritime
boundary delimitation itself.”[18] More specifically, the
Tribunal commented that entitlement to maritime zones
“is distinct” from delimitation of those zones in an area
where entitlements overlap.”[19]
Merits
In the period immediately prior to the issuing of the
Award, China had significantly modified and
enhanced numerous features in the Spratly Islands.
The Tribunal clearly stated that UNCLOS “requires
that the status of a feature be ascertained on the
basis of its earlier, natural condition, prior to the
onset of significant human habitation.”[20]
The Tribunal accepted that in order to examine the
Submissions regarding the location of the Philippine
exclusive economic zone (EEZ), it was necessary to
determine the legal status of all of the relevant high-tide
features that are part of the Spratly Islands.[21] The
Tribunal focused upon the six largest features, observing
that if these were characterized as rocks under
UNCLOS, then the same conclusion would apply to the
other high-tide features in the Spratly Islands.[22]
Unlike previous international tribunals that had accepted
certain features as islands or rocks without explicitly
applying UNCLOS Article 121(3),[23] the Tribunal
analyzed its application in detail.[24] The Tribunal’s
interpretation placed great emphasis on the physical
conditions of the feature in question such as “the
natural capacity, without external additions . . . to
sustain human habitation or an economic life of its
own.”[25] The Tribunal also delved into the definition
of the terms involved in this standard. Additionally,
the Tribunal directed that where the physical
conditions did not determine clearly whether a
feature is a rock or island then the historical use will
be relevant. In this regard, the Tribunal concluded
“that a feature that has never historically sustained a
human community lacks the capacity to sustain
human habitation.”[26]
Applying their understanding of Article 121(3) to the
relevant high-tide features in the Spratly Islands, the
Tribunal noted that although the features were
“capable of enabling the survival of small groups of
people”[27] and that the features could not be
“dismissed as uninhabitable on the basis of their
physical characteristics,” nevertheless, there was
“no indication that anything fairly resembling a
stable human community has ever formed on the
Spratly Islands” with the result that all of the high-
tide features were classed as rocks.[28]
The Nine-Dash Line and Historic Rights[29]
The principal jurisdictional question concerning the nine-
dash line and possible Chinese historic rights therein
was whether such a claim was captured by the wording
of Article 298(1)(a)(i) of UNCLOS, covering “disputes . .
.involving historic bays or title”[30] and thus that the
Tribunal was without jurisdiction due to China’s 2006
Declaration.[31] On the merits, at issue was the
relationship between the historic rights asserted by
China within the nine-dash line and the rights of the
Philippines based on UNCLOS in areas beyond China’s
EEZ or continental shelf and within the EEZ or
continental shelf of the Philippines.
To deal with both questions, the Tribunal assessed “the
nature of any historic rights claimed by China” within the
nine-dash line, which was “complicated by some
ambiguity in China’s position.”[32] The Tribunal
undertook an examination of China’s statements and
actions[33] concluding “that China claims rights to living
and non-living resources within the ‘nine-dash line’ but
(apart from the territorial sea generated by any islands)
does not consider that those waters form part of its
territorial sea or internal waters.”[34]
The Tribunal indicated that the term historic title in Article
298 centered on the historic title wording in Article 12(1)
of the 1958 Convention on the Territorial Sea and
Contiguous Zone.[35] The Tribunal took the view that the
1958 “historic title” wording was tied directly to the
historic terminology as used in the 1951 Anglo-
Norwegian Fisheries case, where the area in question
was “an area of sea claimed exceptionally as internal
waters.”[36] Based upon this, the Tribunal took the
view that the meaning of historic title in Article 298
was “claims to sovereignty over maritime areas
derived from historical circumstances.”[37] Having
determined that China was claiming historic rights
and not historic title, the Tribunal concluded that
China’s 2006 Declaration was not available as
regards China’s historic claims.[38]
Concerning the merits, the relationship between the
historic rights asserted by China within the nine-
dash line and the rights of the Philippines based on
UNCLOS, the Tribunal sided with the Philippines
concluding that UNCLOS “leaves no space for an
assertion of historic rights,” and that “China’s claim to
historic rights to the living and non-living resources
within the ‘nine-dash line’ is incompatible with the
Convention.”[39]
Concluding Comments
In the immediate aftermath, the reactions indicate little
hope that the South China Sea Award will result in a
period of peaceful management of the tangled disputes
within the South China Sea. China has loudly
condemned the Award and a joint statement from
ASEAN and China did not even mention it. Somewhat
more encouraging are the preparatory talks that have
taken place between the Philippines and China.[40]
It has long been recognized by those who have a
significant history with the South China Sea
disputes that if the numerous maritime features in
the South China Sea were all categorized as either
low-tide elevation or rocks, the result would be that
the 200 nm zones in the region would be measured
from the mainland coasts. This would cause almost
all of the maritime claim disputes to become
bilateral, rather than multilateral, which could in turn
create a possibility for resolution and de-escalation.
Part of this as well is that the nine-dash line be
without legal effect. As of 2009, the South China Sea
ASEAN states advocated such a position.[41] In light
of the Tribunal’s ruling, this could be a potential path
forward.
Article 121(3) was a provision of deliberately negotiated
vagueness, thus Tribunal’s rock/island criteria can be
viewed perhaps as “missionary” work. The rock or island
criteria in the Award may result in states able to more
readily reach maritime boundary agreements and
adjudicative bodies more readily make such
determinations. It will be future tribunals, courts, and
state practice that will determine whether this
“missionary” aspect of the Award finds favour.
Of final note, concerns about whether the Award and
China’s rejection of it have undermined confidence in
UNCLOS dispute resolution procedures are perhaps
misplaced. Subsequent to the commencement of the
South China Sea Arbitration, three parties have brought
cases before ITLOS and two have commenced
UNCLOS, Annex VII arbitration cases.
Summary of Issues:
The Philippines’ claims fell into four general categories.
The ruling of the Tribunal on each category of claims is
summarized below:
1. The broadest claim was a challenge to China’s “nine-
dash line” covering most of the South China Sea. China
has never clarified whether the line represents a
claim to the islands within the line and their adjacent
waters; a boundary of national sovereignty over all
the enclosed waters (including, but not limited by,
the land features inside the line); or a “historic”
claim of sovereignty or some other set of historic
rights to the maritime space within the line. The
Philippines sought a declaration that the countries’
respective rights and obligations regarding the waters,
seabed, and maritime features of the South China Sea
are governed by UNCLOS. As such, China’s claims
based on any “historic rights” to waters, seabed, and
subsoil within the nine-dash line are contrary to
UNCLOS and invalid. (See Table: Claims 1 and 2)
Holding: UNCLOS “comprehensively” governs the
parties’ respective rights to maritime areas in the South
China Sea. Therefore, to the extent China’s nine-dash
line is a claim of “historic rights” to the waters of the
South China Sea, it is invalid.
Reasoning: Whatever historic rights China may have
had were extinguished when UNCLOS was adopted, to
the extent those rights were incompatible with UNCLOS.
2. The Philippines sought a determination as to whether
certain land features in the Spratly Islands claimed by
both China and the Philippines are properly
characterized as islands, rocks, low tide elevations
(LTEs), or submerged banks. Under UNCLOS, an
“island” generates both a territorial sea of 12
nautical miles and an exclusive economic zone
(EEZ) of up to 200 nautical miles, subject to
delimitation of a maritime boundary with any other
countries’ overlapping territorial seas or EEZs. A “rock”
is entitled to a territorial sea no greater than 12
nautical miles, but not an EEZ. LTEs and submerged
banks do not generate any such entitlements. (See
Table: Claims 3, 4, 6, and 7)
Holding: None of the features in the Spratly Islands
generates an EEZ, nor can the Spratly Islands generate
an EEZ collectively as a unit. As such, the Tribunal
declared certain areas are within the Philippines’ EEZ
and not overlapped by any possible Chinese entitlement.
Reasoning: The baseline of analysis is what the features
can sustain in their “natural condition” (i.e., not after
construction of artificial islands, installation of
desalination plants, etc.). Based on historical evidence,
none of the features in the Spratly Islands can
sustain either a stable community of people or
economic activity that is not dependent on outside
resources or purely extractive in nature. The current
presence of personnel on the features is dependent on
outside support and does not reflect the capacity of the
features in their natural condition.
3. The Philippines sought a declaration that China
violated UNCLOS by interfering with the Philippines’
rights and freedoms within its EEZs. This includes
preventing Philippine fishing around Scarborough Shoal,
violating UNCLOS’s environmental protection provisions
through construction and fishing activities that have
harmed the marine environment (including at
Scarborough Shoal, Second Thomas Shoal, and
Mischief Reef), and by dangerously operating law
enforcement vessels around Scarborough Shoal. (See
Table: Claims 5, 8, 9, 10, 11, 12, and 13)
Holding: China violated the Philippines’ sovereign
rights in its EEZ. It did so by interfering with
Philippine fishing and hydrocarbon exploration;
constructing artificial islands; and failing to prevent
Chinese fishermen from fishing in the Philippines’
EEZ. China also interfered with Philippine fishermen’s
traditional fishing rights near Scarborough Shoal (without
prejudice to the question of sovereignty over
Scarborough Shoal). China’s construction of artificial
islands at seven features in the Spratly Islands, as well
as illegal fishing and harvesting by Chinese nationals,
violate UNCLOS obligations to protect the marine
environment. Finally, Chinese law enforcement vessels
unlawfully created a serious risk of collision by physically
obstructing Philippine vessels at Scarborough Shoal in
2012.
Reasoning: This set of holdings depended on the
Tribunal finding that certain areas are within the
Philippines’ EEZ and not subject to possible overlapping
Chinese entitlements. It also depended on finding that
activities such as island construction are, in accordance
with China’s own public statements, not “military
activities” and therefore not excluded from jurisdiction
under UNCLOS. Once this was established, the Tribunal
considered Chinese activities in the relevant areas and
found that China had (a) interfered with Philippine
petroleum exploration at Reed Bank, (b) purported to
prohibit fishing by Philippine vessels within the Philippine
EEZ, (c) protected and failed to prevent Chinese
fishermen from fishing within the Philippine EEZ at
Mischief Reef and Second Thomas Shoal, and (d)
constructed artificial islands/installations at Mischief Reef
without the Philippines’ authorization. As for
Scarborough Shoal, regardless of who has sovereignty,
both Philippine and Chinese fishermen have “traditional
fishing rights” at the Shoal that were not extinguished by
UNCLOS, and China violated the Philippines’ rights by
entirely preventing Filipino fishermen from fishing near
Scarborough Shoal after May 2012. In addition, Chinese
artificial island construction has caused “severe harm to
the coral reef environment” and China has failed to stop
its nationals from engaging in “harmful” and “destructive”
harvesting and fishing of endangered sea turtles, coral,
and giant clams in violation of UNCLOS. Finally,
Chinese law enforcement vessels violated maritime
safety obligations by creating a serious risk of collision
on two occasions in April and May 2012 during the
Scarborough Shoal standoff.
4. The Philippines sought a declaration that China’s
recent actions, specifically its land reclamation and
construction of artificial islands in the Spratly Islands
after the arbitration was commenced, violated the
obligations UNCLOS places on states to refrain from
conduct that “aggravates and extends” a dispute while
dispute resolution proceedings are pending. (See Table:
Claim 14)
Holding: China has aggravated and extended the
disputes through its dredging, artificial island-building,
and construction activities.
Reasoning: While these proceedings were pending,
China has built a large island on Mischief Reed, an LTE
within the Philippines’ EEZ; caused irreparable harm to
the marine ecosystem; and permanently destroyed
evidence of the natural condition of the features at issue.

FISHERIES JURISDICTION
Facts
a. The International Court of Justice delivered judgment,
by 10 votes to 4.
b. Iceland (Althing) attempted to extend its exclusive
fishing rights to 50 nautical miles from the baseline,
over its 12 mile allowance.
c. The law Iceland passed to enact such a regulation
dealt with Scientific Conservation of the continental
shelf.
d. However, Iceland and the United Kingdom reached
an agreement in 1961 stating that the United
Kingdom would recognize the 12 mile fishery zone.
e. Iceland terminated this agreement in 1971 in
which it set up its new fishery zone.
f. United Kingdom has been fishing in this region for
many years and brought this issue to the ICJ when
Iceland set up its new parameters.
g. The ICJ found that it had jurisdiction in this matter.
h. Iceland failed to take part in the proceedings.
Questions
a. Does Iceland have the right to extend its fishery zone
from 12 miles to 50 miles?
b. What role does the agreement between Iceland and
United Kingdom play within the court’s decision?
c. What is the law of the high seas and has it been
established? Can it be enforced?
Decisions
a. The court found that Iceland’s extension of its
fishery zone from 12 to 50 miles is not permissible
and not “opposable” to the United Kingdom. Two
concepts that arose from the second Conference of the
Law of the Sea was that a fishery zone, “between the
territorial sea and the high seas, within the coastal State
could claim exclusive fisheries jurisdiction.” This area
has been accepted to be 12 miles from its baseline.
In international law, if a general practice is accepted
by states and is practiced, then this concept is law.
b. The agreement made between Iceland and the United
Kingdom does play a key factor in the court’s decision. A
signed agreement/treaty between two nations is
binding agreement that must be upheld between
nations. This agreement also proves and shows that
Iceland accepted the 12 mile fishery zone jurisdiction
and was content with it. Thus the United Kingdom has
two factors that play favorably in the courts eyes; the
facts of the case line up with International Law and an
agreement was struck between both nations that lined
up with what International Law would allow.
c. According to the United Nations Conference on the
Law of the Sea it declared freedom of the high seas
and this freedom is to be exercised by all states.
However, nothing arouse from these conferences
concerning fishery jurisdiction and where it stops. All that
was confirmed was a zone between the territorial zone
and the high sea is where fishery jurisdiction stops.
Although it was not established in a treaty, states
accepted this general rule of a 12 mile fishery zone and
given that Iceland did not protest this rule it thus gave
consent to it.
Principles
a. The international law elements of the case are the
laws of the sea, the theory that silence leads to consent,
and sub specie legis ferendae.
b. The rule of law that was used in this case was the
general rule under the United Nations Conference on the
Law of the Sea. This conference set out to establish
rules and regulations for the sea. Although there was no
written rule for fishery jurisdiction, silent consent was
given to the 12 mile regulation thus making it law.
Although the ICJ knew that talk wasgoing to happen to
increase this area, it could not anticipate such a change
(sub specie legis ferendae) and needed to wait until it
was written down.

c. One final principle that is extremely important in noting

is that the United Kingdom has been fishing in these
waters for centuries without any issues. Since Iceland
had no issues prior to this incident, the United Kingdom
had become a permanent part within the region and
cannot be removed. Silence lead to consent, thus if a
state has an issue with a certain action, it should speak
up.
THE M/V SAIGA Decisions

Facts a. Concerning the Question of the violation of customs

a. On 13 November 1997, the Agent of S aint Vincent
and the Grenadines filed in the Registry of the Tribunal
by facsimile an Application under article 292 of the
United Nations Convention on the Law of the Sea,
instituting proceedings against Guinea in respect of
a dispute concerning the prompt release of the M/V
Saiga and its crew.
b. The Saiga was taken into custody by the Guinea
authorities under suspicion of smuggling in the
Exclusive Economic Zone of Guinea.
c. The Saiga was serving as a bunkering vessel,
refuelling fishing vessels and other vessels
operating off the coast of Guinea.
d. When arrested, the Saiga was at a point further
south than the limits of the Guinea specific
economic zone. When being arrested, two
crewmembers were seriously injured on board the
ship. The Saiga was detained and brought back to
Guinea. At the time of arrest, the vessel was drifting
within the Exclusive Economic Zone of
Sierra Leone.
e. Saint Vincent and the Grenadines are asking for the
return of the vessel under
laws of Guinea by the Saiga, the tribunal concluded that
during the time of arrest, the Saiga was not in violation of
any of Guinea’s custom laws as it was acting with no
intention of smuggling. It was acting though as a fishing
vessel in this instance under the facts that it was only
refueling other vessels in the area.
b. Concerning the Article 292 of the Un Convention, the
tribunal found that Guinea was in violation of this code
and was ordered to make reparations to Saint Vincent
and the Grenadines. The crew and vessel was to be
promptly released. Guinea confiscated the oil that the
vessel was carrying and the oil was therefore seen as a
bond. Guinea was ordered to pay for the oil which it had
confiscated as it acted as a bond and was also ordered
to pay Saint Vincent and the Grenadines the sum of four
hundred thousand United States dollars($ 400,000.00).
Principles
a. The main principle in this case as not the question if
the Saiga was in violation of operating the Exclusive
Economic Zone of Guinea, but rather the question if
Guinea was in violation of Article 292 of the UN
Convention and had not proceded correctly in handling
the prompt release of the vessel and crew upon posting
a bail bond.

Article 292 of the United Nations Convention on the

Law of the Sea, concerning the prompt release of
vessels and crews upon the posting of a bond or
other financial security.

f. Guinea argues that it executed a legitimate arrest

as it came about at the end of a hot pursuit following
a violation of customs laws in the contiguous zone of
Guinea.

g. Saint Vincent and the Grenadines and Guinea are

both State parties of the United Nations Convention on
the Law of the Sea. The Tribunal therefore has
jurisdiction in this case.

Questions

a. Was the Saiga in violation of violating customs laws

while in the Exclusive economic zone of Guinea by
refueling other vessels in these waters?

b. Is Guinea in violation of the UN convention, Article

292 for failing to not comply with the prompt release of
the vessel and crew upon receiving bond?
THE M/V VIRGINIA G
FACTS:
• On August 21, 2009, the Panamanian-flagged oil
tanker M/V Virginia G was arrested by the authorities
of Guinea-Bissau for unlawfully bunkering
(refueling) foreign vessels fishing in Guinea-
Bissau’s exclusive economic zone.
• The vessel and the gas oil on board were
confiscated by the government on August 27, 2009.
• Subsequent provisional measures orders of the
Regional Court of Bissau suspended the
confiscation at the request of the owner.
• Nevertheless, the Guinea-Bissau authorities had
the gas oil removed from the ship.
• The government's decision to release the ship more
than a year after its arrest followed “the persistent
request by the Embassy of Spain for its release” and
took into consideration, among other things, Guinea-
Bissau's “friendship and cooperation with the Kingdom of
Spain in the field of fisheries, knowing that although the
vessel has a Panamanian flag, it belongs to a
Spanish company.”
• Proceedings were instituted before the Tribunal on July
4, 2011 through the notification of a special agreement
concluded between the Parties.
• The hearing in the case was held from September 2 to
6, 2013.
MAIN ISSUE: Whether a coastal state may regulate
bunkering* of foreign vessels fishing in its exclusive
economic zone. – YES.
*bunkering – the term used in the shipping industry to
describe the selling of fuel from specialized vessels,
such as oil tankers, which supply fuel (such as light fuel,
gas oil and marine diesel) to other vessels whilst at sea
(as defined by Panama in its memorial)
RULING + RATIO:
The regulation by a coastal State of bunkering of foreign
vessels fishing in its exclusive economic zone is among
those measures which the coastal State may take in its
exclusive economic zone.
On the Tribunal’s jurisdiction
The Tribunal finds that it has jurisdiction over the
dispute. The Tribunal observes that the dispute was
originally brought to an Annex VII arbitral tribunal by
means of the Notification and the “Statement of claim
and grounds on which it is based” submitted by Panama
to Guinea-Bissau on 3 June 2011. It further observes
that Panama and Guinea-Bissau agree that the
proceedings before the Tribunal were instituted on the
basis of a special agreement concluded by an exchange
of letters. The Tribunal finds that the basis of its
jurisdiction in this case is the special agreement between
the Parties, which transferred the dispute to the Tribunal,
together with Articles 286, 287 and 288 of the
Convention and Article 21 of the Statute.
BUNKERING IS A FISHING RELATED MATTER, ALSO
PRECAUTIONARY PRINCIPLE
On the admissibility of Panama’s claims:
Guinea-Bissau objects to the admissibility of the claims
of Panama by contending that there was no genuine link
between the M/V Virginia G and Panama. Guinea-
Bissau maintains that “the registration of the VIRGINIA
G under the flag of Panama does not meet the condition
of an effective jurisdiction of the flag State” and that
“neither the ship owner nor the manning of the ship are
of Panamanian origin, which are essential conditions to
have a genuine link established between the State and
the ship under article 91(1) of the Convention.” It adds
that this situation “is a case of a flag of convenience, as
there is not any connection between the ship and
Panama”. Referring to Paragraph 2 of Article 92 of the
Convention, Guinea-Bissau concludes that “[i]n cases of
lack of a genuine link between the flag State and the
ship, the coastal State should not be bound to
acknowledge the right of navigation of such ship in its
exclusive economic zone.”
Panama contends that it “has and maintains a genuine
link with the VIRGINIA G, with the VIRGINIA G’s owner
and with the VIRGINIA G’s operator” and that it
“exercises full and effective jurisdiction over the
VIRGINIA G.” It also emphasizes that “[i]t is not
contested that the VIRGINIA G was, at all relevant times,
fully registered under the flag of Panama” and that the
vessel was recognized as such by the Guinea-Bissau
authorities, in particular, since the documents attesting
its nationality were examined by the authorities of
Guinea-Bissau and were found to be in order.
The Tribunal examines the counter-claim of Guinea-
Bissau based on the alleged violation by Panama of
Article 91 of the Convention. The Tribunal notes that a
genuine link existed between Panama and the M/V
Virginia G at the time of the incident and, therefore,
concludes that the counter-claim presented by Guinea-
Bissau is unfounded.
Once a ship is registered, the flag State is required,
under article 94 of the Convention, to exercise effective
jurisdiction and control over that ship in order to ensure
that it operates in accordance with generally accepted
international regulations, procedures and practices. This
is the meaning of “genuine link.” The Tribunal notes that,
on the basis of information available to it, there is no
reason to question that Panama exercised effective
jurisdiction and control over the M/V Virginia G at the
time of the incident. Panama’s legislation sets out the
conditions for granting Panamanian nationality to ships,
for the registration of ships in its territory, and for the
right to fly its flag. Under Panamanian law, ship-owners
are required to take specific actions, to carry out certain
activities and to submit substantial information and
documentation to fulfil all these requirements, in line with
Panama’s international obligations. The Tribunal in this
regard notes that the M/V Virginia G obtained the
required documents and technical certificates.
Submission#1: Guinea-Bissau violated Paragraph 2 of
Article 56 and Paragraph 1 of Article 58.
Guinea-Bissau did not violate Panama’s right in terms of
Paragraph 2 of Article 56 and Paragraph 1 of Article 58
of the Convention by regulating bunkering of foreign
vessels fishing in the exclusive economic zone of
Guinea-Bissau.
✓ In examining whether Guinea-Bissau violated
the United Nations Convention on the Law of the Sea
when it arrested, and later confiscated, the M/V Virginia
G, the Tribunal emphasizes at the outset that its task is
to deal with a dispute relating to bunkering activities in
support of foreign vessels fishing in the exclusive
economic zone of a coastal State. In this regard, the
Tribunal holds that “the regulation by a coastal State of
bunkering of foreign vessels fishing in its exclusive
economic zone is among those measures which the
coastal State may take in its exclusive economic zone to
conserve and manage its living resources under article
56 of the Convention, read together with article 62,
paragraph 4, of the Convention” and notes that “this view
is confirmed by State practice which has developed after
the adoption of the Convention.”
✓ The Tribunal also holds that Article 58 of the
Convention does not prevent coastal States from
regulating, under Article 56, bunkering of foreign vessels
fishing in their exclusive economic zones.
✓ The Tribunal also addresses the question of the
conformity of the relevant laws and regulations of
Guinea-Bissau with the Convention. After dealing with
issues such as the definition of “fishing-related activities”
contained in that legislation, the imposition of fees for
granting authorization for bunkering and the procedure
for obtaining such authorization, the Tribunal concludes
that the relevant national legislation of Guinea-Bissau
conforms to Article 56 and Paragraph 4 of Article 62 of
the Convention.
Submission#2: Guinea-Bissau violated Paragraph 1 of
Article 73.
Guinea-Bissau did not violate Paragraph 1 of Article 73
by boarding, inspecting and arresting the M/V Virginia G,
but Guinea-Bissau violated Paragraph 1 of Article 73 by
confiscating the M/V Virginia G and the gas oil on board.
✓ The Tribunal then deals with the question
whether the application of the relevant laws and
regulations of Guinea-Bissau in the case of the M/V
Virginia G violated the Convention. It concludes that the
fisheries laws and regulations of Guinea-Bissau provide
for the possibility of confiscating bunkering vessels. The
Tribunal emphasizes that, according to Paragraph 1 of
Article 73 of the Convention, the coastal State may take
such measures “as may be necessary to ensure
compliance with the laws and regulations adopted by it
in conformity with this Convention.” It adds that it is
within its competence to establish whether the legislation
promulgated by Guinea-Bissau for the exclusive
economic zone is in conformity with the Convention and
whether the measures taken in implementing this
legislation are necessary. The Tribunal states that
providing for the confiscation of a vessel offering
bunkering services to foreign vessels fishing in the
exclusive economic zone of Guinea-Bissau is not per se
in violation of Paragraph 1 of Article 73 of the
Convention, and that whether or not confiscation is
justified in a given case depends on the facts and
circumstances.
✓ In examining whether the confiscation of the
vessel and the gas oil on board was justified, the
Tribunal first notes that Paragraph 1 of Article 73 refers
to the right of coastal States to board, inspect and arrest
the vessels concerned. It finds that neither the boarding
and inspection nor the arrest of the M/V Virginia G
violated the said provision. It then reiterates that
pursuant to the said provision, the enforcement
measures taken have to be “necessary” to ensure
compliance with the laws and regulations adopted by the
coastal State in conformity with the Convention. Having
determined that the M/V Virginia G did not have the
written authorization required by the legislation of
Guinea-Bissau for bunkering, the Tribunal observes that
the failure to obtain a written authorization was rather the
consequence of a misinterpretation of the
correspondence between the representatives of the
fishing vessels and the relevant authorities of Guinea-
Bissau than an intentional violation of the laws and
regulations. The Tribunal finds, in the light of the
circumstances of the case, that the confiscation of the
vessel and the gas oil on board was not necessary either
to sanction the violation committed or to deter the
vessels or their operators from repeating this violation.
The Tribunal, therefore, finds that the confiscation by
Guinea-Bissau of the M/V Virginia G and the gas oil on
board was in violation of article 73, paragraph 1, of the
Convention.
Submission#3: Guinea-Bissau violated Paragraphs 2, 3
and 4 of Article 73.
Guinea-Bissau did not violate Paragraphs 2 and 3 of
Article 73 of the Convention, but Guinea-Bissau violated
Paragraph 4 of Article 73 of the Convention by failing to
notify Panama, as the flag State, of the detention and
arrest of the M/V Virginia G as well as the subsequent
actions taken against the vessel and its cargo.
✓ The Tribunal considers that the applicable law of
Guinea-Bissau concerning the prompt release of
arrested fishing vessels and their crews upon the posting
of a reasonable bond or other financial security is
consistent with the provisions of Paragraph 2 of Article
73. Therefore, the Tribunal finds that Guinea-Bissau did
not violate said provision.
✓ With regard to Panama's allegation that, by de
facto imprisoning the crew, Guinea-Bissau was in breach
of Paragraph 3 of Article 73, the Tribunal finds that in the
present case there was no penalty of imprisonment
imposed on members of the crew of the M/V Virginia G
and that Guinea-Bissau, therefore, did not violate said
provision.
✓ The Tribunal finds that, by failing to notify
Panama as the flag State of the detention and arrest
of the M/V Virginia G and subsequent actions taken
against the vessel and its cargo, Guinea-Bissau
violated the requirements of Paragraph 4 of Article
73 because it deprived Panama of its right as a flag
State to intervene at the initial stages of actions
taken against the M/V Virginia G and during the
subsequent proceedings.
Submission#4: Guinea-Bissau violated principles of
Articles 110, 224, 225 and 300 of the UNCLOS as well
as used excessive force leading to physical injuries or
endangering human life during the boarding and sailing
of the M/V Virginia G to the port of Bissau. Guinea-
Bissau also violated The Convention for the Suppression
of Unlawful Acts Against the Safety of Maritime
Navigation.
Guinea-Bissau did not violate principles of Articles 110,
224, 225 and 300 of the Convention. Guinea-Bissau also
did not use excessive force leading to physical injuries or
endangering human life during the boarding and sailing
of the M/V Virginia G to the port of Bissau. The
Convention for the Suppression of Unlawful Acts Against
the Safety of Maritime Navigation is not applicable in the
present case.
✓ The Tribunal finds that neither Article 110 nor
Article 224 of the Convention is applicable to the
enforcement activities undertaken by the coastal State
pursuant to Paragraph 1 of Article 73. With respect to
the circumstances relating to the boarding of the M/V
Virginia G, the Tribunal considers that the standards
referred to by the Tribunal in the M/V “SAIGA” (No. 2)
Case were met and does not find that Guinea-Bissau
used excessive force leading to physical injuries or
endangering human life during the boarding and the
sailing of the M/V Virginia G to the port of Bissau. The
Tribunal also concludes that Guinea-Bissau did not
violate Article 225 or the fundamental principles of safety
of life at sea and collision prevention. It further decides
that the Convention for the Suppression of Unlawful Acts
Against the Safety of Maritime Navigation (SUA
Convention) is not applicable in the case. Concerning
the claim based on the violation of Article 300, the
Tribunal notes that Panama invoked this provision
without making reference to specific obligations and
rights under the Convention and concludes that it is
therefore not required to deal with the alleged violation of
that article.
Reparation
In light of its findings that Guinea-Bissau violated
Paragraphs 1 and 4 of Article 73 of the Convention, the
Tribunal then considers the issue of reparation due to
Panama. In assessing the compensation claims made
by Panama, the Tribunal finds that only damages and
losses related to the value of the gas oil confiscated and
the cost of repairing the vessel are direct consequences
of the illegal confiscation. The Tribunal then decides to
award Panama compensation as follows: (a) value of
532.2 tonnes of gas oil confiscated at a price of US$ 730
per tonne in the amount of US$ 388,506.00 with interest
at the rate of 2.862%, compounded annually and
payable from 20 November 2009 until the date of the
Judgment; and (b) costs of repairs to the vessel in the
amount of €146,080.80; with interest at the rate of
3.165%, compounded annually and payable from 18
March 2011 until the date of the Judgment.
ADVISORY OPINION
Introduction:
On February 1, 2011, the Seabed Disputes Chamber
unanimously adopted a historic opinion, the Advisory
Opinion on the Responsibilities and Obligations of States
Sponsoring Persons and Entities with respect to
Activities in the Area.â• This is the first time that the
advisory jurisdiction of the International Tribunal for the
Law of the Sea has been invoked and the first time that
the Seabed Disputes Chamber has been called upon. It
is also the first time that the Tribunal€ ”whose
jurisprudence has to date been marked by a multiplicity
of dissenting and separate opinions€ has reached a
completely unanimous ruling in a case referred to it.
Background
1. The 1982 United Nations Convention on the Law
of the Sea declares the seabed area beyond
national jurisdiction (the Area) the common
heritage of mankind.€ •
a. Exploration and exploitation of minerals
in the Area are governed by the
International Seabed Authority (ISA).
b. All prospective exploration and
exploitation activities are required to be
sponsored by a State Party to the 1982
Convention.
c. In applying for an exploration or
exploitation license, an entity submits
two broadly similar areas for
consideration.
d. If a license is granted, the ISA
determines which area will be allotted to
the applicant; the second area is
reserved for activities by the ISA through
the Enterprise or an association with
developing states.€ •
e. However, the Enterprise, the international
body that was originally designed to carry
out such activities for the benefit of
mankind€ was effectively shelved by the
1994 Implementation Agreement that
brought the Convention into force. The
remaining option therefore is for these
reserved sites to be exploited by the ISA an
association with developing states.
Pursuant to this option, in April 2008, Nauru and
Tonga€ ”two small Pacific Island developing
states€ ”each put forward a proposal for activities in
reserved areas. Nauru is a country with a land area of
twenty-one square kilometers, a population of less than
10,000, and a GDP of $34 million.[4] Tonga is an
archipelagic state with a land area of 747 square
kilometers, a population of just over 100,000, and a GDP
of $320 million.[5] Each of these states was sponsoring
a commercial entity to undertake these activities: Nauru
Ocean Resources Inc. and Tonga Offshore Mining Ltd.
After the ISA’s consideration of these proposals began,
both states asked that their applications be deferred. In
March 2010, Nauru requested the ISA Secretary-
General to seek an advisory opinion from the ITLOS
Seabed Disputes Chamber regarding the extent of the
liabilities of a state sponsoring seafloor mining in
international waters.€ • In particular, it stressed that its
sponsorship had originally been based on the
assumption that it could mitigate its potential liabilities. If
this was not the case, it continued, developing countries
would effectively be precluded from taking part in such
activities, despite the fact that their participation was a
basic precept of the Convention.
The Council of the ISA decided to reformulate the Nauru
proposal into three more general but concise questions.[
After these were received by the ITLOS Registrar, the
Seabed Disputes Chamber President invited States
Parties to UNCLOS, the ISA, and intergovernmental
organizations with observer status at the ISA to make
written statements.[8]
The Advisory Opinion
Having found that it had jurisdiction under UNCLOS
Article 191 to render an advisory opinion and that the
request was admissible, the Chamber moved to the first
of the three questions posed by the ISA.
Question 1: What are the legal responsibilities and
obligations of States Parties to the Convention with
respect to the sponsorship of activities in the Area in
accordance with the Convention, in particular Part XI,
and the 1994 Agreement relating to the Implementation
of Part XI of the United Nations Convention on the Law
of the Sea of 10 December 1982?
The Chamber first found that the phrase activities in the
Area€ • did not include every activity associated with
seabed exploration and mining. Relying on the wording
of the Convention, rather than the Nodule and Sulphides
Regulations concluded by the ISA, it found that the
phrase included drilling, dredging, coring, and
excavation; disposal, dumping and discharge . . . of
sediment, wastes or other effluents; and construction
operation or maintenance of installations, pipelines and
other devices related to such activities.€ • It did not
include transportation and processing (although these
are covered by the Regulations). The significance of this
somewhat esoteric distinction should not be
underestimated for it does limit the applicability of the
ruling and also some of the limitations of liability
discussed below. Simply put, the liability regime€ ”the
limitations of which may be disappointing to some€ ”does
not cover all the potentially threatening activities
associated with mining.
On the primary question of legal responsibilities and
obligations of a state sponsoring such activities, the
Convention text is also relatively clear. Article 139(1)
reads:
States Parties shall have the responsibility to ensure
that activities in the Area, whether carried out by
States Parties, or state enterprises or natural or
juridical persons which possess the nationality of
States Parties or are effectively controlled by them
or their nationals, shall be carried out in conformity
with this Part.
States Parties have an obligation to assist the Authority
in this regard, and, under the Convention Annex III,
Article 4, paragraph 4, State sponsors shall also,
pursuant to article 139, have the responsibility to ensure,
within their legal systems, that a contractor so sponsored
shall carry out activities in the Area in conformity with the
terms of its contract and its obligations under this
Convention.
Having recognized that this provision contains an
obligation to ensure€ • the Chamber, in what is from an
environmental law perspective possibly the strongest
part of the opinion, itemized the constituent elements of
this obligation, pointing out that this is an obligation of
conduct rather than of result, i.e., it is not an obligation
that requires the contractor’s compliance in every case.
It is analogous to the obligation of due diligence and
conduct that the International Court of Justice found in
the recent Pulp Mills Case.
International environmental lawyers will most welcome
elements of the requirements of due diligence.€ •
Recognizing that due diligence€ • may impose more
rigorous requirements for riskier activities, the Chamber
first identified what it termed the legal obligation€ • to
apply the precautionary approach as found in Principle
15 of the Rio Declaration. Precaution is recognized by
the ISA Nodules and Sulphides Regulations, but the
Chamber went further, seeing this as an integral part of
the due diligence of sponsoring states which is
applicable even outside the scope of the regulations,€ •
requiring actions where scientific evidence is insufficient
but there are plausible indications of potential risk.€ •
Perhaps most significantly, the Chamber recognized
trend towards making this approach part of customary
international law,€ • which it sees in the Pulp Mills Case
and which this opinion of course further supports.
Other due diligence elements include best environmental
practices,†• which are required by the ISA regulations
and the Standard Clauses for exploration contracts.
Technical and financial guarantees by a contractor, as
well as the availability of financial recourse for prompt
and effective compensation in the event of damage
caused by marine pollution, are also included, as are
requirements for Environmental Impact Assessment
("EIA"), which the Chamber found extended beyond the
scope of the ISA Regulations.
On the wider and controversial question of the treatment
of developing states, the Chamber unequivocally
endorsed the principle of equality, recognizing that the
spread of sponsoring states of convenience€ • (similar
to flags of convenience for ships) would jeopardize the
application of the highest standards of protection.
Question 2: What is the extent of liability of a State Party
for any failure to comply with the provisions of the
Convention, in particular Part XI, and the 1994
Agreement, by an entity whom it has sponsored under
Article 153, paragraph 2(b), of the Convention?
Arguably, this question formed the basis for the most
important part of the opinion, but is also the one for
which the 1982 Convention provides the clearest
answer. Article 139(2) specifies that € without prejudice
to rules of international law . . . damage caused by the
failure of a state party . . . to carry out its
responsibilities under this Part shall involve
liability.€ • However, it goes on to say that a State
Party is not liable for damage caused by a failure to
comply . . . by a person whom it has sponsored . . . if
the State Party has taken all necessary and
appropriate measures to secure effective
compliance.€ • These measures are elaborated as the
requirements that the State Party has adopted laws and
regulations and taken administrative measures which
are, within the framework of its legal system, reasonably
appropriate for securing compliance by persons under its
jurisdiction.
The Chamber ruled that this was a high standard of
due diligence for sponsoring states. However, given
the explicit text of the Convention, it was not a strict
liability regime, despite arguments to the contrary. But if
damage occurred, and the sponsoring state had failed to
take all necessary and appropriate measures to ensure
compliance€ • by its contractor, then the state would be
liable. Moreover, the Chamber pointed out that nothing
would prevent such liability from being introduced in the
future through the mining regulations or the
establishment of a trust fund to cover damage not
covered by the Convention.
Question 3: What are the necessary and appropriate
measures that a sponsoring State must take in order to
fulfill its responsibility under the Convention, in particular
Article 139 and Annex III, and the 1994 Agreement?
As discussed above, the Chamber had effectively
answered this question already. Laws, regulations, and
administrative measures must be in force at all times
that the contract with the Authority is in force. These
measures cannot simply be contractual arrangements
with the sponsored entity. They must be at least as
stringent as those adopted by the Authority and certainly
no less effective than international rules.
Final Thoughts
From an international environmental law point of view,
this is also a historic ruling. The Chamber’s unanimous
opinion sets the highest standards of due diligence
and endorses a legal obligation to apply precaution,
best environmental practices, and EIA. Some
commentators will be disappointed that the Chamber did
not take the view that sponsoring states are strictly liable
for the actions of their sponsored entities. However, the
wording of the Convention itself weighs heavily against
this conclusion. Moreover, the Chamber does suggest
that a strict liability regime could be introduced via the
ISA Mining Regulations and suggests the use of a trust
fund to address residual liability issues. Crucially, it also
rules that developing countries have the same
obligations regarding environmental protection as
developed countries. It not only warns of the risk that
differentiated lower standards might result in the
emergence of the equivalent of flags of convenience€ so
called € sponsoring states of convenience” but also goes
a long way in preventing that from happening.
MAGALLONA v ERMITA
In March 2009, R.A. 9522 was enacted by the Congress
to comply with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS III), which
the Philippines ratified on February 27, 1984.
Professor Merlin Magallona et al questioned the
validity of RA 9522 as they contend, among others,
that the law decreased the national territory of the
Philippines. Some of their particular arguments are as
follows:
1 RA 9522 reduces Philippine maritime
territory, and logically, the reach of the Philippine
state’s sovereign power, in violation of Article 1 of the
1987 Constitution, embodying the terms of the Treaty of
Paris and ancillary treaties.
2 RA 9522 opens the country’s waters
landward of the baselines to maritime passage by all
vessels and aircrafts, undermining Philippine
sovereignty and national security, contravening the
country’s nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional
provisions.
3 RA 9522’s treatmentof the KIG as “regime of
islands” not only results in the loss of a large
maritime area but also prejudices the livelihood of
subsistence fishermen.
Hence, petitioners files action for the writs of certiorari
and prohibition assails the constitutionality of Republic
Act No. 95221 (RA 9522) adjusting the country’s
archipelagic baselines and classifying the baseline
regime of nearby territories.
Issues:
Whether or not RA 9522, the amendatory Philippine
Baseline Law is unconstitutional.
Discussions:

The provision of Art I 198 Constitution clearly affirms the

archipelagic doctrine, which we connect the outermost
points of our archipelago with straight baselines and
consider all the waters enclosed thereby as internal
waters. RA 9522, as a Statutory Tool to Demarcate the
Country’s Maritime Zones and Continental Shelf Under ROMANIA v UKRAINE
UNCLOS III, gave nothing less than an explicit definition
in congruent with the archipelagic doctrine.Rulings:

No. The Court finds R.A. 9522 constitutional. It is a

Statutory Tool to Demarcate the Country’s Maritime
Zones and Continental Shelf Under UNCLOS III, not to
Delineate Philippine Territory. It is a vital step in
safeguarding the country’s maritime zones. It also allows
an internationally-recognized delimitation of the breadth
of the Philippine’s maritime zones and continental shelf.

Additionally, The Court finds that the conversion of

internal waters into archipelagic waters will not risk the
Philippines as affirmed in the Article 49 of the UNCLOS
III, an archipelagic State has sovereign power that
extends to the waters enclosed by the archipelagic
baselines, regardless of their depth or distance from the
coast. It is further stated that the regime of archipelagic
sea lanes passage will not affect the status of its
archipelagic waters or the exercise of sovereignty over
waters and air space, bed and subsoil and the resources
therein.
The Court further stressed that the baseline laws are
mere mechanisms for the UNCLOS III to precisely
describe the delimitations. It serves as a notice to the
international family of states and it is in no way affecting
or producing any effect like enlargement or diminution of
territories
On 16 September 2004, Romania filed an Application
instituting proceedings against Ukraine in respect of a
dispute concerning “the establishment of a single
maritime boundary between the two States in the Black
Sea, thereby delimiting the continental shelf and the
exclusive economic zones appertaining to them”. The
Memorial of Romania and the Counter-Memorial of
Ukraine were filed within the time-limits fixed by an
Order of 19 November 2004. By an Order of 30 June
2006, the Court authorized the filing of a Reply by
Romania and a Rejoinder by Ukraine and fixed 22
December 2006 and 15 June 2007 as the respective
time-limits for the filing of those pleadings. Romania filed
its Reply within the time-limit thus fixed. By an Order of 8
June 2007, the Court extended to 6 July 2007 the time-
limit for the filing of the Rejoinder by Ukraine. The
Rejoinder was filed within the time-limit thus extended.

Following public hearings held in September 2008, the

Court rendered its Judgment in the case on 3 February
2009. On the basis of established State practice and of
its own jurisprudence, the Court declared itself bound by
the three-step approach laid down by maritime
delimitation law, which consisted first of establishing a
provisional equidistance line, then of considering factors
which might call for an adjustment of that line and
adjusting it accordingly and, finally, of confirming that the
line thus adjusted would not lead to an inequitable result
by comparing the ratio of coastal lengths with the ratio of
relevant maritime areas.
` In order to do so, it was obliged to determine
appropriate base points. After examining at length the
characteristics of each base point chosen by the Parties
for the establishment of the provisional equidistance line,
the Court decided to use the Sacalin Peninsula and the
landward end of the Sulina dyke on the Romanian coast,
and Tsyganka Island, Cape Tarkhankut and Cape
Khersones on the Ukrainian coast. It considered it
inappropriate to select any base points on Serpents’
Island (belonging to Ukraine). The Court then proceeded
to establish the provisional equidistance line as follows :
certain security considerations of the Parties. The Court
did not see in these various factors any reason that
would justify the adjustment of the provisional
equidistance line. In particular with respect to Serpents’
Island, it considered that it should have no effect on the
delimitation other than that stemming from the role of the
12-nautical-mile arc of its territorial sea.
Finally, the Court confirmed that the line would not lead
to an inequitable result by comparing the ratio of coastal
lengths with the ratio of relevant maritime areas. The
Court noted that the ratio of the respective coastal
lengths for Romania and Ukraine was approximately
1:2.8 and the ratio of the relevant maritime areas was
approximately 1:2.1.

“In its initial segment the provisional equidistance line

between the Romanian and Ukrainian adjacent coasts is
controlled by base points located on the landward end of In the operative clause of its Judgment, the Court found
the Sulina dyke on the Romanian coast and south- unanimously that :
eastern tip of Tsyganka Island on the Ukrainian coast. It
“starting from Point 1, as agreed by the Parties in Article
runs in a south-easterly direction, from a point lying
1 of the 2003 State Border Régime Treaty, the line of the
midway between these two base points, until Point A
single maritime boundary delimiting the continental shelf
(with co-ordinates 44° 46′ 38.7ʺ N and 30°58′ 37.3ʺ E)
and the exclusive economic zones of Romania and
where it becomes affected by a base point located on
Ukraine in the Black Sea shall follow the 12-nautical-mile
the Sacalin Peninsula on the Romanian coast. At Point A
arc of the territorial sea of Ukraine around Serpents’
the equidistance line slightly changes direction and
Island until Point 2 (with co-ordinates 45°03′ 18.5ʺ N and
continues to Point B (with co-ordinates 44°44′ 13.4ʺ N
30°09′ 24.6ʺ E) where the arc intersects with the line
and 31°10′ 27.7ʺ E) where it becomes affected by the
equidistant from Romania’s and Ukraine’s adjacent
base point located on Cape Tarkhankut on Ukraine’s
coasts. From Point 2 the boundary line shall follow the
opposite coasts. At Point B the equidistance line turns
equidistance line through Points 3 (with co-ordinates
south-south-east and continues to Point C (with co-
44°46′ 38.7ʺ N and 30°58′ 37.3ʺ E) and 4 (with co-
ordinates 44°02′ 53.0ʺ N and 31°24′ 35.0ʺ E), calculated
ordinates 44° 44′ 13.4ʺ N and 31° 10′ 27.7ʺ E) until it
with reference to base points on the Sacalin Peninsula
reaches Point 5 (with co-ordinates 44° 02′ 53.0ʺ N and
on the Romanian coast and Capes Tarkhankut and
31° 24′ 35.0ʺ E). From Point 5 the maritime boundary
Khersones on the Ukrainian coast. From Point C the
line shall continue along the line equidistant from the
equidistance line, starting at an azimuth of 185°23′ 54.5ʺ,
opposite coasts of Romania and Ukraine in a southerly
runs in a southerly direction. This line remains governed
direction starting at a geodetic azimuth of 185°23′ 54.5ʺ
by the base points on the Sacalin Peninsula on the
until it reaches the area where the rights of third States
Romanian coast and Cape Khersones on the Ukrainian
may be affected.”
coast.”

The Court then turned to the examination of relevant

circumstances which might call for an adjustment of the
provisional equidistance line, considering six potential
factors : (1) the possible disproportion between coastal
lengths ; (2) the enclosed nature of the Black Sea and
the delimitations already effected in the region ; (3) the
presence of Serpents’ Island in the area of delimitation ;
(4) the conduct of the Parties (oil and gas concessions,
fishing activities and naval patrols) ; (5) any potential
curtailment of the continental shelf or exclusive
economic zone entitlement of one of the Parties ; and (6)