PUBLIC INTERNATIONAL LAW

Meaning and nature of international law

101 International Law Defined
International law, as used in this Restatement, consists of rules and principles of
general application dealing with the conduct of states and of international
organizations and with their relations inter se, as well as with some of their relations
with persons, whether natural or juridical.
- Restatement of the Law, Third, Foreign Relations Law of the United States
Historical development of Public international law
>Traced back way back in time to Mesopotamian City-States
>Greeks, Romans
>Renaissance
>Hugo Grotius, father of International Law
>Peace of Westphalia
>WW1/League of Nations
>WW2/UN
>Positivism vs. Naturalist theory

Sources of international law

By sources one means those provisions operating within the legal system on a
technical level, and such ultimate sources as reason or morality are excluded, as are
more functional sources such as libraries and journals.
What is intended is a survey of the process whereby rules of international law
emerge. Article 38(1) of the Statute of the International Court of Justice is widely
recognised as the most authoritative and complete statement as to the sources of
international law. It provides that:
the Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply: (a) international conventions, whether
general or particular, establishing rules expressly recognized by the contesting
states; (b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognised by civilised nations; (d) subject to the
provisions of Article 59, judicial decisions AND the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination
of rules of law.

 102 Sources of International Law

(1) A rule of international law is one that has been accepted as such by the
international community of states
(a) in the form of customary law;
(b) by international agreement; or
(c) by derivation from general principles common to the major legal systems of the
world.
(2) Customary international law results from a general and consistent practice of
states followed by them from a sense of legal obligation.
(3) International agreements create law for the states parties thereto and may lead
to the creation of customary international law when such agreements are intended
for adherence by states generally and are in fact widely accepted.
(4) General principles common to the major legal systems, even if not incorporated
or reflected in customary law or international agreement, may be invoked as
supplementary rules of international law where appropriate.
103 Evidence of International Law
(1) Whether a rule has become international law is determined by evidence
appropriate to the particular source from which that rule is alleged to derive (
102).
(2) In determining whether a rule has become international law, substantial weight
is accorded to
(a) judgments and opinions of international judicial and arbitral tribunals;
(b) judgments and opinions of national judicial tribunals;
(c) the writings of scholars;
(d) pronouncements by states that undertake to state a rule of international law,
when such pronouncements are not seriously challenged by other states.

Scope of public international law

Legal personality of the United Nations

Reparation for Injuries Suffered in the Service of the United Nations

Advisory Opinion, ICJ Reports 1949, p 174

In 1948 the United Nations Mediator in the Middle East, Count Bernadotte, a
Swedish diplomat, was murdered by terrorists in territory under the control of the
provisional government of Israel. Although this action was immediately disowned
and deplored by the Israeli government, the question arose whether the United
Nations possessed the capacity to make an international claim against Israel for
reparation in respect of the damage suffered by the United Nations as the result of
Count Bernadottes death.
The General Assembly of the United Nations requested an advisory opinion on this
question from the International Court of Justice. The court unanimously answered
the question in the affirmative. In particular, after consideration of the Charter of
the United Nations and the purposes and powers of the organization, the court held
that the test of functional necessity required the attribution to the United Nations of
a legal personality separate from the legal personalities of its member states. Thus,
as a subject of public international law, the United Nations was capable of
possessing rights and duties, including the capacity to maintain its rights by
bringing an international claim against a sovereign state.

Notes

1. The diplomatic settlement of the dispute between the United Nations and Israel arising
out of the murder of Count Bernadotte is instructive. In April 1950 the Secretary-General
of the United Nations submitted to the Israeli government a claim for reparation in the
sum of $US54,628. The claim was based on three elements of state responsibility:
(1) failure by Israel to exercise due diligence and to take all reasonable measures for
the
prevention of the murder;
(2)
liability of the Israeli government for acts committed by irregular forces in
territory under its control; and
(3)
failure by Israel to take all measures required by public international law to
bring the
perpetrators to justice.
In June 1950 the Israeli government, without formal admission of liability, paid the claim.
The payment was accompanied by a letter from the Minister for Foreign Affairs of Israel,
addressed to the Secretary-General of the United Nations, which stated that Israel
sincerely regretted that this dastardly assassination had taken place on Israeli territory.
2. The behind the scenes nature of diplomatic settlement of international disputes is
illustrated by the following examples:
A. In 1988 a United States warship, USS Vincennes, operating in the Persian Gulf, shot
down an unarmed civilian airliner operated by Iran Air killing all 290 persons on
board. In 1996 the United States State Department announced that the United
States and Iran had settled Irans claims arising out of this incident, such settlement

involving substantial payment by the United States to the survivors of each victim.
See 90 AJIL 278 (1996).
B. In May 1999 during an eleven week air campaign against the Federal Republic of
Yugoslavia, United States military aircraft operating under NATO command bombed,
in error, the Chinese Embassy in Belgrade, killing three Chinese nationals and
wounding twenty others. On 30 July 1999 the United States and China reached
agreement for the payment of
compensation by the United States to the families
of the persons killed and to the persons
injured in this incident.
Subsequently
agreement was reached on the payment of
compensation
for
property
damage. See 94 AJIL 127 (2000).
_______________________________________

ICJ: Sweden is not precluded from bringing the claim itself insofar that Count Bernadotte was
a Swedish national.
international legal personality
>personality is derived from member states
international claim is not limited through suits. Arbitration, mediation and other mediums
are recognized.

Subjects: those that enjoy international legal personality and being capable of
possessing international claims
Primary: States
Secondary: Non-state actors; individuals
The Paquete Habana Case
In April 1898 two fishing vessels, the Paquete Habana and the Lola, separately left Cuban ports in
Havana in order to fish. The two vessels were eventually captured by US Naval vessels as part
of Admiral William T. Sampson's blockade of Cuba, who was ordered to execute the blockade 'in
pursuance of the laws of the United States, and the law of nations applicable to such cases.' The
vessels were placed within Cuba's territorial waters at the onset of the SpanishAmerican War and
then taken to Key West, where both vessels were eventually auctioned by the district court. Both
vessels were valued under the price of $2,000(US) and were thus not originally thought to be
exempt from seizure.
Admiral Sampson justified the seizures by stating that most fishing vessels, flying under the Spanish
banner were manned by excellent seamen, "liable for further service" as naval reserves, an asset
that could eventually be used against US interests in the Spanish-American War.
The owners of the vessels however made an appeal to the circuit courts, citing a long held tradition
by nations of exempting fishing vessels from prize capture in times of war. This "tradition", a primary

example of customary international law, dates back from an order by Henry IV in 1403, and has
more or less been observed by a large majority of States ever since.
At the time of capture both vessels had no evidence of aiding the enemy, and were unaware of the
US naval blockade. No arms were found on board, and no attempts were made to either run the
blockade or resist capture.

Ruling:
The United States Supreme Court cited lengthy legal precedents established to support the
existence of a customary international law that exempted fishing vessels from prize capture, dating
all the way back to ancient times and occurring repeatedly between Great Britain and France. In
1403, King Henry IV of England issued his officers leave fisherman alone during times of war. He
then signed a treaty with France reaffirming this act between both parties. Again in 1521 between
Emperor Charles V and Francis I of France a treaty was assigned. This treaty was invoked due to a
desperate rise in the markets for herring. With the war between the two countries raging on,
fisherman dared not venture out to sea. Therefore, a treaty was necessary on both accounts to
prevent starvation among those who relied upon cheap herring, namely the lower classes. Situations
similar to this continued to crop up throughout history prior to the Paquete case. Using this as a
basis for customary law, the court then eventually found the capture of both vessels as "unlawful and
without probable cause", reversed the District Court's decision, and ordered the proceeds of the
auction as well as any profits made from her cargo to be restored to the claimant, "with damages
and costs".

Nicaragua v. United States

The Republic of Nicaragua v. The United States of America (1986) ICJ 1 is a public international
law case decided by the International Court of Justice (ICJ). The ICJ ruled in favor of Nicaragua and
against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had
violated international law by supporting the Contras in their rebellion against the Nicaraguan
government and by mining Nicaragua's harbors. The United States refused to participate in the
proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case.
The U.S. also blocked enforcement of the judgment by the United Nations Security Council and
thereby prevented Nicaragua from obtaining any compensation. [2] Nicaragua, under the later, postFSLN government of Violeta Chamorro, withdrew the complaint from the court in September 1992
following a repeal of the law which had required the country to seek compensation. [3]
The Court found in its verdict that the United States was "in breach of its obligations under
customary international law not to use force against another State", "not to intervene in its affairs",
"not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of its
obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the
Parties signed at Managua on 21 January 1956."
The Court had 16 final decisions upon which it voted. In Statement 9, the Court stated that while the
U.S. encouraged human rightsviolations by the Contras by the manual entitled Psychological
Operations in Guerrilla Warfare, this did not make such acts attributable to the U.S.[4]

Nicaragua charged:

(a) That the United States, in recruiting, training, arming, equipping, financing,
supplying and otherwise encouraging, supporting, aiding, and directing military
and paramilitaryactions in and against Nicaragua, had violated its treaty obligations to
Nicaragua under:
Article 2 (4) of the United Nations Charter;
Articles 18 and 20 of the Charter of the Organization of American States;
Article 8 of the Convention on Rights and Duties of States;
Article I, Third, of the Convention concerning the Duties and Rights of States in the Event of
Civil Strife.
(b) That the United States had breached international law by
1. violating the sovereignty of Nicaragua by:
>armed attacks against Nicaragua by air, land and sea;
>incursions into Nicaraguan territorial waters;
>aerial trespass into Nicaraguan airspace;
>efforts by direct and indirect means to coerce and intimidate the Government of Nicaragua.
2. using force and the threat of force against Nicaragua.
3. intervening in the internal affairs of Nicaragua.
4. infringing upon the freedom of the high seas and interrupting peaceful maritime
commerce.
5. killing, wounding and kidnapping citizens of Nicaragua.
Nicaragua demanded that all such actions cease and that the United States had an
obligation to pay reparations to the government for damage to their people, property,
and economy.
It is noteworthy that the United States, the defaulting party, was the only member that
put forward arguments against the validity of the judgment of the court, arguing that it
passed a decision that it "had neither the jurisdiction nor the competence to render."
Members that sided with the United States in opposing Nicaragua's claims did not
challenge the court's jurisdiction, its findings, nor the substantive merits of the case.
[9]
Pursuant to general and customary international law, the United States has an
obligation to Nicaragua to respect the sovereignty of Nicaragua. ii. Pursuant to general
and customary international law, the United States has an obligation to Nicaragua not to
use force or the threat of force against Nicaragua. iii. Pursuant to general and
customary international law, the United States has an obligation to Nicaragua not to
intervene in the internal affairs of Nicaragua.

Findings
The court found evidence of an arms flow between Nicaragua and insurgents in El Salvador
between 1979-81. However, there was not enough evidence to show that the Nicaraguan
government was imputable for this or that the US response was proportional. The court also found
that certain transborder incursions into the territory of Guatemala and Costa Rica, in 1982, 1983 and
1984, were imputable to the Government of Nicaragua. However, neither Guatemala nor Costa Rica
had made any request for US intervention; El Salvador did in 1984, well after the US had intervened
unilaterally.
"As regards El Salvador, the Court considers that in customary international law the provision of
arms to the opposition in another State does not constitute an armed attack on that State. As

regards Honduras and Costa Rica, the Court states that, in the absence of sufficient information as
to the transborder incursions into the territory of those two States from Nicaragua, it is difficult to
decide whether they amount, singly or collectively, to an armed attack by Nicaragua. The Court finds
that neither these incursions nor the alleged supply of arms may be relied on as justifying the
exercise of the right of collective self-defence."[11]
Regarding human rights violations by the Contras, "The Court has to determine whether the
relationship of the contras to the United States Government was such that it would be right to equate
the Contras, for legal purposes, with an organ of the United States Government, or as acting on
behalf of that Government. The Court considers that the evidence available to it is insufficient to
demonstrate the total dependence of the contras on United States aid. A partial dependency, the
exact extent of which the Court cannot establish, may be inferred from the fact that the leaders were
selected by the United States, and from other factors such as the organisation, training and
equipping of the force, planning of operations, the choosing of targets and the operational support
provided. There is no clear evidence that the United States actually exercised such a degree of
control as to justify treating the contras as acting on its behalf... Having reached the above
conclusion, the Court takes the view that the Contras remain responsible for their acts, in particular
the alleged violations by them of humanitarian law. For the United States to be legally responsible, it
would have to be proved that that State had effective control of the operations in the course of which
the alleged violations were committed."[11]
The Court concluded that the United States, despite its objections, was subject to the Court's
jurisdiction. The Court had ruled on November 26 by 11 votes to one that it had jurisdiction in the
case on the basis of either Article 36 (i.e. compulsory jurisdiction) or the 1956 Treaty of Friendship,
Commerce and Navigation between the United States and Nicaragua. The Charter provides that, in
case of doubt, it is for the Court itself to decide whether it has jurisdiction, and that each member of
the United Nations undertakes to comply with the decision of the Court. The Court also ruled by
unanimity that the present case was admissible. The United States then announced that it had
"decided not to participate in further proceedings in this case." About a year after the Court's
jurisdictional decision, the United States took the further, radical step of withdrawing its consent to
the Court's compulsory jurisdiction, ending its previous 40 year legal commitment to binding
international adjudication. The Declaration of acceptance of the general compulsory jurisdiction of
the International Court of Justice terminated after a 6-month notice of termination delivered by the
Secretary of State to the United Nations on October 7, 1985.
Although the Court called on the United States to "cease and to refrain" from the unlawful use of
force against Nicaragua and stated that the US was "in breach of its obligation under customary
international law not to use force against another state" and ordered it to pay reparations, the United
States refused to comply.[14] As a permanent member of the Security Council, the U.S. has been able
to block any enforcement mechanism attempted by Nicaragua.[15] On November 3, 1986 the United
Nations General Assemblypassed, by a vote of 94-3 (El Salvador, Israel and the US voted against),
a non-binding[16] resolution urging the US to comply.

U.S. defense and response

The United States refused to participate in the merits phase of the proceedings, but the Court found
that the US refusal did not prevent it from deciding the case. The Court also rejected the United
States defense that its action constituted collective self-defense. The United States argued that the
Court did not have jurisdiction, with U.S. ambassador to the United Nations Jeane
Kirkpatrick dismissing the Court as a "semi-legal, semi-juridical, semi-political body, which nations
sometimes accept and sometimes don't. ayyy lmao

The United States had signed the treaty accepting the Court's decision as binding, but with the
exception that the court would not have the power to hear cases based on multilateral treaty
obligations unless it involved all parties to the treaty affected by that decision or the United States
specially agreed to jurisdiction. The court found that it was obliged to apply this exception and
refused to take on claims by Nicaragua based on the United Nations Charter and Organization of
American States charter, but concluded that it could still decide the case based on customary
international law obligations with 11-4 majority.
After five vetoes in the Security Council between 1982 and 1985 of resolutions concerning the
situation in Nicaragua, the United States made one final veto on 28 October 1986 [27] (France,
Thailand, and United Kingdom abstaining) of a resolution calling for full and immediate compliance
with the Judgement.
When the same resolution was brought before the United Nations General Assembly on 3 November
it was passed.[29] Only El Salvador and Israel voted with the U.S. against it. El Salvador's
ruling junta was at that time receiving substantial funding and military advisement from the U.S.,
which was aiming to crush a Sandinista-like revolutionary movement by the FMLN. In spite of this
resolution, the U.S. still chose not to pay the fine.

Name of the Case: The North Sea Continental Shelf Cases (Germany/Denmark;
Germany/Netherlands); Year of Decision: 1969; and Court: ICJ.
NB: This post discussed only aspects of the case related to treaty or customary international
law.
Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual
requirement for forming customary international law State practice (objective element)
and opinio juris (subjective element). It elaborated the criteria necessary to establish State
practice widespread and representative participation. The case highlighted that the State
practice of importance were of those States whose interests were affected by the custom. It
also identified the fact that uniform and consistent practice was necessary to show
opinio juris a belief that the practice amounts to a legal obligation. The North Sea
Continental Self Cases also dispelled the myth that duration of the practice (i.e. the number
of years) was an essential factor in forming customary international law.
The case involved the delimitation of the continental shelf areas in the North Sea between
Germany and Denmark and Germany and Netherlands beyond the partial boundaries
previously agreed upon by these States. The parties requested the ICJ to decide the
principles and rules of international law that are applicable to the above delimitation. The
parties disagreed on the applicable principles or rules of delimitation Netherlands and
Denmark relied on the principle of equidistance (the method of determining the boundaries
in such a way that every point in the boundary is equidistant from the nearest points of the
baselines from which the breath of the territorial sea of each State is measured). Germany
sought to get a decision in favour of the notion that the delimitation of the relevant
continental shelf is governed by the principle that each coastal state is entitled to a just and
equitable share (hereinafter called just and equitable principle/method). Contrary to
Denmark and Netherlands, Germany argued that the principle of equidistance was neither a
mandatory rule in delimitation of the continental shelf nor a rule of customary international
law that was not binding on Germany. The court was not asked to delimit the parties
agreed to delimit the continental shelf as between their countries, by agreement, after the
determination of the ICJ on the applicable principles.
Facts of the Case:
Netherlands and Denmark had drawn partial boundary lines based on the equidistance
principle (A-B and C-D). An agreement on further prolongation of the boundary proved
difficult because Denmark and Netherlands wished this prolongation to take place based on
the equidistance principle (B-E and D-E) where as Germany was of the view that, together,
these two boundaries would produce an inequitable result for her. Germany stated that due
to its concave coastline, such a line would result in her loosing out on her share of the
continental shelf based on proportionality to the length of its North Sea coastline. The Court
had to decide the principles and rules of international law applicable to this delimitation. In
doing so, the court had to decide if the principles espoused by the parties were binding on
the parties either through treaty law or customary international law.
Questions before the Court (as relevant to this post):

Is Germany under a legal obligation to accept the equidistance-special circumstances

principle, contained in Article 6 of the Geneva Convention, either as a customary
international law rule or on the basis of the Geneva Convention?
The Courts Decision:
The use of the equidistance method had not crystallised into customary law and
was is not obligatory for the delimitation of the areas in the North Sea related to the present
proceedings.
Relevant Findings of the Court:
Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6,
binding on Germany?
1. Article 6 of the Geneva Convention on the Continental Shelf states that unless the parties
have agreed on a method for delimitation or unless special circumstances exist, the
equidistance method would apply (see Article 6). Germany has signed but not ratified
the Geneva Convention, while Netherlands and Denmark are parties to the Convention. The
latter two States argue that while Germany is not a party to the Convention (not having
ratified it), she is still bound by Article 6 of the Convention because:
(1) by conduct, by public statements and proclamations, and in other ways, the Republic
has unilaterally assumed the obligations of the Convention; or has manifested its
acceptance of the conventional regime; or has recognized it as being generally applicable to
the delimitation of continental shelf areas
(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such
a manner as to cause other States, and in particular Denmark and the Netherlands, to rely
on the attitude thus taken up (the latter is called the principle of estoppel).
2. The Court rejected the first argument. It stated that only a very definite very consistent
course of conduct on the part of a State would allow the court to presume that a State had
somehow become bound by a treaty (by a means other than in a formal manner: i.e.
ratification) when the State was at all times fully able and entitled to accept the treaty
commitments in a formal manner. The Court held that Germany had not unilaterally
assumed obligations under the Convention. The court also took notice of the fact that even if
Germany ratified the treaty, she had the option of entering into a reservation on Article 6
following which that particular article would no longer be applicable to Germany (i.e. even if
one were to assume that Germany had intended to become a party to the Convention, it
does not presuppose that it would have also undertaken those obligations contained in
Article 6).
3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force
in 1980, discusses more fully the obligations of third States to treaties. It clearly stipulates
that an obligation arises for a third State from a provision of a treaty only if (1) the parties to
the treaty intend the provision to create this obligation for the third States; and (2) the third
State expressly accepts that obligation in writing (A. 35 of the VCLT). The VCLT was not in
force when the ICJ deliberated on this case. However, as seen above, the ICJs position was

consistent the VCLT. (See the relevant provisions of the Vienna Convention on the Law of
Treaties).
4. The court held that the existence of a situation of estoppel would have allowed Article 6 to
become binding on Germany but held that Germanys action did not support an argument
for estoppel. The court also held that the mere fact that Germany may not have specifically
objected to the equidistance principle as contained in Article 6 is not sufficient to state that
the principle is now binding upon it.
5. In conclusion, the court held that Germany had not acted in any way to incur obligations
contained in Article 6 of the Geneva Convention. The equidistance special circumstances
rule was not binding on Germany by way of treaty.
Nature of the customary international law obligation: Is Germany bound by the provisions of
Article 6 of the Geneva Convention by way of customary international law?
6. Netherlands and Denmark argued that Article 6 also reflected the accepted rule of
general international law on the subject of continental shelf delimitation and existed
independently of the Convention. Therefore, they argued, Germany is bound by it by way of
customary international law.
7. To decide if the equidistance principle bound Germany by way of customary international
law, the court examined (1) the status of the principle contained in Article 6 as it stood when
the Convention was being drawn up (2) and after the latter came into force.
What was the customary law status of Article 6 at the time of drafting the Convention?
8. The court held the principle of equidistance, as contained in Article 6, did not form a part
of existing or emerging customary international law at the time of drafting the Convention.
The Court supported this finding based on (1) the hesitation expressed by the drafters of the
Convention International Law Commission on the inclusion of Article 6 (para. 62) and (2)
the fact reservations to Article 6 was permissible under the Convention (Article 12). The
court held:
Article 6 is one of those in respect of which, under the reservations article of the
Convention (Article 12) reservations may be made by any State on signing, ratifying or
acceding for, speaking generally, it is a characteristic of purely conventional rules and
obligations that, in regard to them, some faculty of making unilateral reservations may,
within certain limits, be admitted; whereas this cannot be so in the case of general or
customary law rules and obligations which, by their very nature, must have equal force for
all members of the international community, and cannot therefore be the subject of any
right of unilateral exclusion exercisable at will by any one of them in its own favor. The
normal inference would therefore be that any articles that do not figure among those
excluded from the faculty of reservation under Article 12, were not regarded as declaratory
of previously existing or emergent rules of law (see para 65 for a counter argument and the
courts careful differentiation)
Did the provisions in Article 6 on the equidistance principle attain the customary law status
after the Convention came into force?

9. The court then examined whether the rule contained in Article 6 had become customary
international law after the Convention entered into force either due the convention itself
(i.e., if enough States had ratified the Convention in a manner to fulfil the criteria specified
below), or because of subsequent State practice (i.e. even if adequate number of States had
not ratified the Convention one could find sufficient State practice to meet the criteria
below). The court held that Article 6 of the Convention had not attained a customary law
status (compare the 1958 Geneva Convention with the four Geneva Conventions on 1949 in
the field of international humanitarian law in terms of its authority as a pronouncement of
customary international law).
10. For a customary rule to emerge the court held that it needed: (1) very widespread and
representative participation in the convention, including States whose interests were
specially affected (i.e. generality); and (2) virtually uniform practice (i.e. consistent and
uniform usage) undertaken in a manner that demonstrates (3) a general recognition of the
rule of law or legal obligation (i.e. opinio juries). In the North Sea Continental Shelf cases
the court held that the passage of a considerable period of time was unnecessary (i.e.
duration) for the formation of a customary law.
Widespread and representative participation (generality)
11. The court held that the first criteria was not met. The number of ratifications and
accessions to the convention (39 States) were not adequately representative (including of
coastal States i.e. those States whose rights are affected) or widespread.
Duration (consistent and uniform usage)
12. The court held that duration taken for the customary law rule to emerge is not as
important as widespread and representative participation, uniform usage and the existence
of an opinio juris.
Although the passage of only a short period of time (in this case, 3 5 years) is not
necessarily, or of itself, a bar to the formation of a new rule of customary international law
on the basis of what was originally a purely conventional rule, an indispensable requirement
would be that within the period in question, short though it might be, State practice,
including that of States whose interests are specially affected, should have been both
extensive and virtually uniform in the sense of the provision invoked and should moreover
have occurred in such a way as to show a general recognition that a rule of law or legal
obligation is involved (text in brackets added).
Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case) in
so far as those acts or omissions are done following a belief that the said State is
obligated by law to act or refrain from acting in a particular way. (For more on opinio
juris click here).
14. The Court examined 15 cases where States had delimited their boundaries using the
equidistance method, after the Convention came into force (paras. 75 -77). The court
concluded, even if there were some State practice in favour of the equidistance principle the
court could not deduct the necessary opinio juris from this State practice. The North Sea

Continental Shelf Cases confirmed that both State practice (the objective element)
and opinio juris (the subjective element) are essential pre-requisites for the formation of a
customary law rule. This is consistent with Article 38 (1) (b) of the Statute of the ICJ. The
following explains the concept of opinio jurisand the difference between customs (i.e. habits)
and customary law:
Not only must the acts concerned amount to a settled practice, but they must also be such,
or be carried out in such a way, as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it. The need for such a belief,
i.e, the existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual character of the acts is not in
itself enough. There are many international acts, e.g., in the field of ceremonial and
protocol, which are performed almost invariably, but which are motivated only by
considerations of courtesy, convenience or tradition, and not by any sense of legal duty.
15. The court concluded that the equidistance principle was not binding on Germany by way
of treaty or customary international law because, in the case of the latter, the principle had
not attained a customary international law status at the time of the entry into force of the
Geneva Convention or thereafter. As such, the court held that the use of the equidistance
method is not obligatory for the delimitation of the areas concerned in the present
proceedings.

International Law Commission: Interpreting body of U.N. for Conventions.

Lex lata- the law as it is
Lex ferrenda- the law as it should be
Laws of Peace
>Treaties
>Law of the sea
> Diplomatic relations
Laws of War
Jus ad bellum (casus belli; legality of the reason of the war)
Jus in bello (legality of conduct in the war; international humanitarian law)
Laws of neutrality

ANGLO NORWEGIAN FISHERIES CASE

Background to the case
The United Kingdom requested the court to decide if Norway had used a legally acceptable
method in drawing the baseline from which it measured its territorial sea. The
United Kingdom argued that customary international law did NOT allow the length of a

baseline drawn across a bay to be longer than ten miles. Norway argued that its delimitation
method was consistent with general principles of international law.

Formation of customary law

The court consistently referred to positive (1) state practice and (2) lack of objections of
other states on that practice as a confirmation of an existing rule of customary international
law (see p. 17 and 18). There was no mention of opinio juris in this early judgment.
In the following passage, the court considered that expressed state dissent regarding a
particular practice was detrimental to the existence of an alleged general rule. It did not
elaborate whether these states adopted a contrary practice because it was claiming an
exception to the rule (see the Nicaragua jurisprudence) or because it believed that the said
rule did not possess the character of customary law.
In these circumstances the Court deems it necessary to point out that although the TENMILE RULE has been adopted by certain States both in their national law and in their treaties
and conventions, and although certain arbitral decisions have applied it as between these
States, other States have adopted a different limit. Consequently, the ten-mile rule has not
acquired the authority of a general rule of international law.

Persistent objector rule

The court in its judgment held that even if a customary law rule existed on the ten-mile rule,
the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has
always opposed any attempt to apply it to the Norwegian coast.
In this case, the court appears to support the idea that an existing customary law rule would
not apply to a state if it objected to any outside attempts to apply the rule to itself, at the
initial stages and in a consistent manner, and if other states did not object to her resistance.
In this manner, the Anglo Norwegian fisheries case joined the asylum case (Peru vs
Colombia) in articulating what we now call the persistent objector rule.
Requisites:
1. Initial Objection
2. Sustained Objection
3. No objection (of the objection from other states)

Initial objection
In the present case, the court pointed out that the Norwegian Minister of Foreign Affairs, in
1870, stated that, in spite of the adoption in some treaties of the quite arbitrary distance of

10 sea miles, this distance would not appear to me to have acquired the force of
international law. Still less would it appear to have any foundation in reality
The court held that Language of this kind can only be construed as the considered
expression of a legal conception regarded by the Norwegian Government as compatible with
international law.The court held that Norway had refused to accept the rule as regards to it
by 1870.

Sustained objection
The court also went on to hold that Norway followed the principles of delimitation that it
considers a part of its system in a consistent and uninterrupted manner from 1869 until the
time of the dispute. In establishing consistent practice, the court held that too much
importance need not be attached to the few uncertainties or contradictions, real or
apparent, which the United Kingdom Government claims to have discovered in Norwegian
practice.

No objection
After the court held that the 10-mile rule did not form a part of the general law and, in any
event, could not bind Norway because of its objections, the court inquired whether the
Norwegian system of delimitation, itself, was contrary to international law. To do so, the
court referred to state practice once more.
The general toleration of foreign States with regard to the Norwegian practice is an
unchallenged fact. For a period of more than sixty years the United Kingdom Government
itself in no way contested it The Court notes that in respect of a situation which could only
be strengthened with the passage of time, the United Kingdom Government refrained from
formulating reservations.

Contrary practice
In this case, Norway adopted a contrary practice a practice that was the subject of
litigation.
However, interestingly, Norway was clear that it was not claiming an exception to the rule
(i.e. that its practice was not contrary to international law) but rather it claimed that its
practice was in conformity with international law (see page 21).
In its (Norways) view, these rules of international law take into account the diversity of
facts and, therefore, concede that the drawing of base-lines must be adapted to the special
conditions obtaining in different regions. In its view, the system of delimitation applied in
1935, a system characterized by the use of straight lines, does not therefore infringe the
general law; it is an adaptation rendered necessary by local conditions.

Conclusion
The court held that the fact that this consistent and sufficiently long practice took place
without any objection to the practice from other states (until the time of dispute) indicated
that states did not consider the Norwegian system to be contrary to international law.
The notoriety of the facts, the general toleration of the international community, Great
Britains position in the North Sea, her own interest in the question, and her prolonged
abstention would in any case warrant Norways enforcement of her system against the
United Kingdom. The Court is thus led to conclude that the method of straight lines,
established in the Norwegian system, was imposed by the peculiar geography of the
Norwegian coast; that even before the dispute arose, this method had been consolidated by
a consistent and sufficiently long practice, in the face of which the attitude of governments
bears witness to the fact that they did not consider it to be contrary to international law.

Relationship between international and national law

The court alluded to the relationship between national and international law in delimitation
of maritime boundaries. In delimitation cases, states must be allowed the latitude
necessary in order to be able to adapt its delimitation to practical needs and local
requirements The court would also consider certain economic interests peculiar to a
region, the reality and importance of which are clearly evidenced by a long
usage. However, while the act of delimitation can be undertaken by the State, its legal
validity depends on international law.
The delimitation of sea areas has always an international aspect; it cannot be dependent
merely upon the will of the coastal State as expressed in its municipal law. Although it is true
that the act of delimitation is necessarily a unilateral act, because only the coastal State
is competent to undertake it, the validity of the delimitation with regard to other States
depends upon international law. (p. 20)

Further reading:
T. Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in
International Law, 26 Harvard International Law Journal, 1985, p. 457,
J. Charney, The Persistent Objector Rule and the Development of Customary International
Law,56 BYIL, 1985, p. 1.
In fact, the two international court of justice cases which appear to support the persistent
objector rule both arose in circumstances where the new rule itself was in substantial doubt.
Thus, it was significantly easier for the objector to maintain its status. No case is cited for a
circumstance in which the objector effectively maintained its status after the rule became
well accepted in international law. In fact, it is unlikely that such a status can be maintained
din light of the realities of the international legal system. This is certainly the plight that
befell the US, The UK and Japan in the law of the sea. Their objections to expanded coastal
state jurisdiction were ultimately to no avail, and they have been forced to accede to 12-mile
territorial seas and the 200-mile exclusive economic zone.

Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, see also pp. 236
239.
The Fisheries Case, decided a year later, pitted the United Kingdom against Norway. At
issue was whether Norway had used a legally acceptable method in drawing the baseline
from which it measured its territorial sea. The United Kingdom argued that CIL did not allow
the length of a baseline drawn across a bay to be longer than ten miles. Again, as with the
Asylum Case, the primary holding of the case was that the alleged CIL rule did not exist. In
the alternative, the court briefly remarked that, had the rule existed, it would not have
applied against Norway because Norway had always opposed any attempt to apply it to the
Norwegian coast.This language is often cited in support of the persistent objector doctrine,
but it could just as easily be read to support the Default View of CIL, since there is nothing in
this language that suggests that Norways opposition must have occurred prior to the
establishment of the alleged rule of CIL. The arguments of the parties do not resolve this
uncertainty: although the United Kingdom appears to have supported something like the
modern persistent objector doctrine, at least for rights historically exercised by a state (while
asserting that Norway had not met its requirements),Norway (which prevailed in the case)
appears to have supported something closer to the Default View.
The Asylum and Fisheries decisions provide no more than passing and ambiguous support
for the doctrine. State practice since those decisions is also relatively unhelpful, since there
have been essentially no instances in which states have invoked the doctrine. As Professor
Stein reported in a 1985 article, his research had failed to turn up any case where an author
provided even one instance of a state claiming or granting an exemption from a rule on the
basis of the persistent objector principleexcepting of course the Asylum and Fisheries
cases themselves.

LIBYA-MALTA CONTINENTAL SHELF CASES

ASYLUM CASES
Overview:
Columbia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru.
Was Columbia entitled to make a unilateral and definitive qualification of the offence (as a
political offence) in a manner binding on Peru and was Peru was under a legal obligation to
provide safe passage for the Peruvian to leave Peru?
Facts of the Case:
Peru issued an arrest warrant against Victor Raul Haya de la Torre in respect of the crime of
military rebellion which took place on October 3, 1949, in Peru. 3 months after the rebellion,
Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed
that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana
Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru.
Subsequently, the Ambassador also stated Colombia had qualified Torre as a political
refugee in accordance with Article 2 Montevideo Convention on Political Asylum of 1933
(note the term refugee is not the same as the Refugee Convention of 1951). Peru refused to
accept the unilateral qualification and refused to grant safe passage.

Questions before the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the
offence for the purpose of asylum under treaty law and international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter
called the Havana Convention) when it granted asylum and is the continued maintenance of
asylum a violation of the treaty?
The Courts Decision:
Relevant Findings of the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the
offence for the purpose of asylum under treaty law and international law?
1. The court stated that in the normal course of granting diplomatic asylum a diplomatic
representative has the competence to make a provisional qualification of the offence (for
example, as a political offence) and the territorial State has the right to give consent to this
qualification. In the Torres case, Colombia has asserted, as the State granting asylum, that it
is competent to qualify the nature of the offence in a unilateral and definitive manner that is
binding on Peru. The court had to decide if such a decision was binding on Peru either
because of treaty law (in particular the Havana Convention of 1928 and the Montevideo
Convention of 1933), other principles of international law or by way of regional or local
custom.
2. The court held that there was no expressed or implied right of unilateral and definitive
qualification of the State that grants asylum under the Havana Convention or relevant
principles of international law (p. 12, 13). The Montevideo Convention of 1933, which
accepts the right of unilateral qualification, and on which Colombia relied to justify its
unilateral qualification, was not ratified by Peru. The Convention, per say, was not binding on
Peru and considering the low numbers of ratifications the provisions of the latter Convention
cannot be said to reflect customary international law (p. 15).
3. Colombia also argued that regional or local customs support the qualification. The court
held that the burden of proof on the existence of an alleged customary law rests with the
party making the allegation:
The Party which relies on a custom of this kind must prove that this custom is established
in such a manner that it has become binding on the other Party (that) it is in accordance
with a (1) constant and uniform usage (2) practiced by the States in question, and that this
usage is (3) the expression of a right appertaining to the State granting asylum (Columbia)
and (4) a duty incumbent on the territorial State (in this case, Peru). This follows from Article
38 of the Statute of the Court, which refers to international custom as evidence of a
general practice accepted as law(text in brackets added).

4. The court held that Columbia did not establish the existence of a regional custom because
it failed to prove consistent and uniform usage of the alleged custom by relevant States. The
fluctuations and contradictions in State practice did not allow for the uniform usage (see also
Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of
State practice). The court also reiterated that the fact that a particular State practice was
followed because of political expediency and not because of a belief that the said practice is
binding on the State by way of a legal obligation (opinio juris) is detrimental to the formation
of a customary law (see North Sea Continental Shelf Cases and Lotus Case for more
on opinio juris):
[T]he Colombian Government has referred to a large number of particular cases in which
diplomatic asylum was in fact granted and respected. But it has not shown that the alleged
rule of unilateral and definitive qualification was invoked or that it was, apart from
conventional stipulations, exercised by the States granting asylum as a right appertaining to
them and respected by the territorial States as a duty incumbent on them and not merely
for reasons of political expediency. The facts brought to the knowledge of the Court disclose
so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise
of diplomatic asylum and in the official views expressed on various occasions, there has
been so much inconsistency in the rapid succession of conventions on asylum, ratified by
some States and rejected by others, and the practice has been so much influenced by
considerations of political expediency in the various cases, that it is not possible to discern
in all this any constant and uniform usage, mutually accepted as law, with regard to the
alleged rule of unilateral and definitive qualification of the offence.
5. The court held that even if Colombia could prove that such a regional custom existed, it
would not be binding on Peru, because Peru far from having by its attitude adhered to it,
has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions
of 1933 and 1939, which were the first to include a rule concerning the qualification of the
offence [as political in nature] in matters of diplomatic asylum. (See in this regard, the
lesson on persistent objectors. Similarly in the North Sea Continental Shelf Cases the court
held in any event the . . . rule would appear to be inapplicable as against Norway in as
much as she had always opposed any attempt to apply it to the Norwegian coast.)
6. The court concluded that Columbia, as the State granting asylum, is not competent to
qualify the offence by a unilateral and definitive decision, binding on Peru.
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?
7. The court held that there was no legal obligation on Peru to grant safe passage either
because of the Havana Convention or customary law. In the case of the Havana Convention,
a plain reading of Article 2 results in an obligation on the territorial state (Peru) to grant safe
passage only after it requests the asylum granting State (Columbia) to send the person
granted asylum outside its national territory (Peru). In this case the Peruvian government
had not asked that Torre leave Peru. On the contrary, it contested the legality of asylum
granted to him and refused to grant safe conduct.
8. The court looked at the possibility of a customary law emerging from State practice where
diplomatic agents have requested and been granted safe passage for asylum seekers,
before the territorial State could request for his departure. Once more, the court held that
these practices were a result of a need for expediency and other practice considerations

over an existence of a belief that the act amounts to a legal obligation (see paragraph 4
above).
There exists undoubtedly a practice whereby the diplomatic representative who grants
asylum immediately requests a safe conduct without awaiting a request from the territorial
state for the departure of the refugeebut this practice does not and cannot mean that the
State, to whom such a request for safe-conduct has been addressed, is legally bound to
accede to it.
(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted
asylum and is the continued maintenance of asylum a violation of the treaty?
9. Article 1 of the Havana Convention states that It is not permissible for States to grant
asylum to persons accused or condemned for common crimes (such persons) shall be
surrendered upon request of the local government.
10. In other words, the person-seeking asylum must not be accused of a common crime (for
example, murder would constitute a common crime, while a political offence would not).The
accusations that are relevant are those made before the granting of asylum. Torres
accusation related to a military rebellion, which the court concluded was not a common
crime and as such the granting of asylum complied with Article 1 of the Convention.
11. Article 2 (2) of the Havana Convention states that Asylum granted to political offenders
in legations, warships, military camps or military aircraft, shall be respected to the extent in
which allowed, as a right or through humanitarian toleration, by the usages, the conventions
or the laws of the country in which granted and in accordance with the following
provisions: First: Asylum may not be granted except in urgent cases and for the period of
time strictly indispensable for the person who has sought asylum to ensure in some other
way his safety.
12. An essential pre-requisite for the granting of asylum is the urgency or, in other words,
the presence of an imminent or persistence of a danger for the person of the refugee. The
court held that the facts of the case, including the 3 months that passed between the
rebellion and the time when asylum was sought, did not establish the urgency criteria in this
case (pp. 20 -23). The court held:
In principle, it is inconceivable that the Havana Convention could have intended the term
urgent cases to include the danger of regular prosecution to which the citizens of any
country lay themselves open by attacking the institutions of that country In principle,
asylum cannot be opposed to the operation of justice.
13. In other words, Torre was accused of a crime but he could not be tried in a court because
Colombia granted him asylum. The court held that protection from the operation of regular
legal proceedings was not justified under diplomatic asylum.
14. The court held:
In the case of diplomatic asylum the refugee is within the territory of the State. A decision
to grant diplomatic asylum involves a derogation from the sovereignty of that State. It
withdraws the offender from the jurisdiction of the territorial State and constitutes an

intervention in matters which are exclusively within the competence of that State. Such a
derogation from territorial sovereignty cannot be recognised unless its legal basis is
established in each particular case.
15. As a result, exceptions to this rule are strictly regulated under international law.
An exception to this rule (asylum should not be granted to those facing regular
prosecutions) can occur only if, in the guise of justice, arbitrary action is substituted for the
rule of law. Such would be the case if the administration of justice were corrupted by
measures clearly prompted by political aims. Asylum protects the political offender against
any measures of a manifestly extra-legal character which a Government might take or
attempt to take against its political opponents On the other hand, the safety which arises
out of asylum cannot be construed as a protection against the regular application of the
laws and against the jurisdiction of legally constituted tribunals. Protection thus understood
would authorize the diplomatic agent to obstruct the application of the laws of the country
whereas it is his duty to respect them Such a conception, moreover, would come into
conflict with one of the most firmly established traditions of Latin-America, namely, nonintervention [for example, by Colombia into the internal affairs of another State like Peru].
16. Asylum may be granted on humanitarian grounds to protect political prisoners against
the violent and disorderly action of irresponsible sections of the population. (for example
during a mob attack where the territorial State is unable to protect the offender). Torre was
not in such a situation at the time when he sought refuge in the Colombian Embassy at
Lima.
17. The court concluded that the grant of asylum and reasons for its prolongation were not
in conformity with Article 2(2) of the Havana Convention (p. 25).
The grant of asylum is not an instantaneous act which terminates with the admission, at a
given moment of a refugee to an embassy or a legation. Any grant of asylum results in, and
in consequence, logically implies, a state of protection, the asylum is granted as long as the
continued presence of the refugee in the embassy prolongs this protection.
NB: The court also discussed the difference between extradition and granting of asylum
you can read more on this in pp. 12 13 of the judgment. The discussions on the
admissibility of the counter claim of Peru are set out in pp. 18 19.

FISHERIES JURISDICTION CASE (UK vs. ICELAND)

In its Judgment on the merits in the case concerning Fisheries Jurisdiction (United
Kingdom v. Iceland), the Court, by ten votes to four:
(1) found that the Icelandic Regulations of 1972 constituting a unilateral extension of the exclusive
fishing rights of Iceland to 50 nautical miles from the baselines are not opposable to the United
Kingdom;
(2) found that Iceland is not entitled unilaterally to exclude United Kingdom fishing vessels from
areas between the 12-mile and 50-mile limits, or unilaterally to impose restrictions on their activities
in such areas;

(3) held that Iceland and the United Kingdom are under mutual obligations to undertake negotiations
in good faith for an equitable solution of their differences;
(4) indicated certain factors which are to be taken into account in these negotiations (preferential
rights of Iceland, established rights of the United Kingdom, interests of other States, conservation of
fishery resources, joint examination of measures required).
In its Judgment, the Court recalls that proceedings were instituted by the United Kingdom against
Iceland on 14 April 1972. At the request of the United Kingdom, the Court indicated interim measures
of protection by an Order dated 17 August 1972 and confirmed them by a further Order dated
12 July 1972. By a Judgment of 2 February 1973 the Court found that it had jurisdiction to deal with
the merits of the dispute.
In its final submissions, the United Kingdom asked the Court to adjudge and declare:
(a) that the claim by Iceland to be entitled to a zone of exclusive fisheries jurisdiction extending 50
nautical miles from the baselines is without foundation in international law and is invalid;
(b) that, as against the United Kingdom, Iceland is not entitled unilaterally to assert an exclusive
fisheries jurisdiction beyond the limit of 12 miles agreed to in an Exchange of Notes in 1961;
(c) that Iceland is not entitled unilaterally to exclude British fishing vessels from the area of the high
seas beyond the 12-mile limit or unilaterally to impose restrictions on their activities in that area;
(d) that Iceland and the United Kingdom are under a duty to examine together, either bilaterally or
with other interested States, the need on conservation grounds for the introduction of restrictions on
fishing activities in the said area of the high seas and to negotiate for the establishment of such a
regime in that area as will inter alia ensure for Iceland a preferential position consistent with its
position as a State specially dependent on its fisheries.
Iceland did not take part in any phase of the proceedings. By a letter of 29 May 1972 Iceland
informed the Court that it regarded the Exchange of Notes of 1961 as terminated; that in its view
there was no basis under the Statute for the Court to exercise jurisdiction; and that, as it considered
its vital interests to be involved, it was not willing to confer jurisdiction on the Court in any case
involving the extent of its fishery limits. In a letter dated 11 January 1974, Iceland stated that it did
not accept any of the statements of fact or any of the allegations or contentions of law submitted on
behalf of the United Kingdom.
The United Kingdom having referred to Article 53 of the Statute, the Court had to determine whether
the claim was founded in fact and law. The facts requiring the Court's consideration in adjudicating
upon the claim were attested by documentary evidence whose accuracy there appeared to be no
reason to doubt. As for the law, although it was to be regretted that Iceland had failed to appear, the
Court was nevertheless deemed to take notice of international law, which lay within its own judicial
knowledge. Having taken account of the legal position of each Party and acted with particular
circumspection in view of the absence of the respondent State, the Court considered that it had
before it the elements necessary to enable it to deliver judgment.
History of the Dispute Jurisdiction of the Court (paras. 19-48 of the Judgment)
The Court recalled that in 1948 the Althing (the Parliament of Iceland) had passed a law concerning
the Scientific Conservation of the Continental Shelf Fisheries which empowered the Government to
establish conservation zones wherein all fisheries should be subject to Icelandic rules and control to
the extent compatible with agreements with other countries. Subsequently the 1901 Anglo-Danish

Convention which had fixed a limit for Iceland's exclusive right of fishery round its coasts was
denounced by Iceland as from 1951, new Icelandic Regulations of 1958 proclaimed a 12-mile limit
and the Althing declared by a resolution in 1959 "that recognition should be obtained of Iceland's
right to the entire continental shelf area in conformity with the policy adopted by the Law of 1948".
Following a number of incidents and a series of negotiations, Iceland and the United Kingdom
agreed on an Exchange of Notes which took place on 11 March 1961 and specified inter alia that the
United Kingdom would no longer object to a 12-mile fishery zone, that Iceland would continue to
work for the implementation of the 1959 resolution regarding the extension of fisheries jurisdiction
but would give the United Kingdom six months' notice of such extension and that "in case of a
dispute in relation to such extension, the matter shall, at the request of either Party, be referred to
the International Court of Justice".
In 1971, the Icelandic Government announced that the agreement on fisheries jurisdiction with the
United Kingdom would be terminated and that the limit of exclusive Icelandic fisheries jurisdiction
would be extended to 50 miles. In an aide-memoire of 24 February 1972 the United Kingdom was
formally notified of this intention. In reply the latter emphasized that the Exchange of Notes was not
open to unilateral denunciation and that in its view the measure contemplated "would have no basis
in international law". On 14 July 1972 new Regulations were introduced whereby Iceland's fishery
limits would be extended to 50 miles as from 1 September 1972 and all fishing activities by foreign
vessels inside those limits be prohibited. Their enforcement gave rise, while proceedings before the
Court were continuing and Iceland was refusing to recognize the Court's decisions, to a series of
incidents and negotiations which resulted on 13 November 1973 in an exchange of Notes
constituting an interim agreement between the United Kingdom and Iceland. This agreement,
concluded for two years, provided for temporary arrangements "pending a settlement of the
substantive dispute and without prejudice to the legal position or rights of either Government in
relation thereto".
The Court considered that the existence of the interim agreement ought not to lead it to refrain from
pronouncing judgment: it could not be said that the issues before the Court had become without
object, since the dispute still continued and, though it was beyond the powers of the Court to declare
the law between the Parties as it might be at the date of expiration of the interim agreement, that
could not relieve the Court from its obligation to render a judgment on the basis of the law as it now
existed; furthermore, the Court ought not to discourage the making of interim arrangements in future
disputes with the object of reducing friction.
Reverting to the 1961 Exchange of Notes, which in the Court's Judgment of 1973 was held to be a
treaty in force, the Court emphasized that it would be too narrow an interpretation of the
compromissory clause (quoted above) to conclude that it limited the Court's jurisdiction to giving an
affirmative or a negative answer to the question of whether the Icelandic Regulations of 1972 were in
conformity with international law. It seemed evident that the dispute between the Parties included
disagreements as to their respective rights in the fishery resources and the adequacy of measures to
conserve them. It was within the power of the Court to take into consideration all relevant elements
Applicable Rules of International Law (paras. 49-78 of the Judgment)
The first United Nations Conference on the Law of the Sea (Geneva, 1958) had adopted a
Convention on the High Seas, Article 2 of which declared the principle of the freedom of the high
seas, that is to say, freedom of navigation, freedom of fishing, etc., to "be exercised by all States with
reasonable regard to the interests of other States in their exercise of the freedom of the high seas".
The question of the breadth of the territorial sea and that of the extent of the coastal State's fishery
jurisdiction had been left unsettled at the 1958 Conference and were not settled at a second
Conference held in Geneva in 1960. However, arising out of the general consensus at that second
Conference, two concepts had since crystallized as customary law: that of a fishery zone, between

the territorial sea and the high seas within which the coastal State could claim exclusive fisheries
jurisdiction - it now being generally accepted that that zone could extend to the 12-mile limit - and the
concept, in respect of waters adjacent to the zone of exclusive fishing rights, of preferential fishing
rights in favour of the coastal State in a situation of special dependence on its fisheries. The Court
was aware that in recent years a number of States had asserted an extension of their exclusive
fishery limits. The Court was likewise aware of present endeavours, pursued under the auspices of
the United Nations, to achieve in a third Conference on the Law of the Sea the further codification
and progressive development of that branch of the law, as it was also of various proposals and
preparatory documents produced in that framework. But, as a court of law, it could not render
judgment sub specie legis ferendae or anticipate the law before the legislator had laid it down. It
must take into account the existing rules of international law and the Exchange of Notes of 1961.
The concept of preferential fishing rights had originated in proposals submitted by Iceland at the
Geneva Conference of 1958, which had confined itself to recommending that:
". . . where, for the purpose of conservation, it becomes necessary to limit the total catch of a stock
or stocks of fish in an area of the high seas adjacent to the territorial sea of a coastal State, any
other States fishing in that area should collaborate with the coastal State to secure just treatment of
such situation, by establishing agreed measures which shall recognize any preferential requirements
of the coastal State resulting from its dependence upon the fishery concerned while having regard to
the interests of the other States".
At the 1960 Conference the same concept had been embodied in an amendment incorporated by a
substantial vote into one of the proposals concerning the fishing zone. The contemporary practice of
States showed that that concept, in addition to its increasing and widespread acceptance, was being
implemented by agreements, either bilateral or multilateral. In the present case, in which the
exclusive fishery zone within the limit of 12 miles was not in dispute, the United Kingdom had
expressly recognized the preferential rights of the other Party in the disputed waters situated beyond
that limit. There could be no doubt of the exceptional dependence of Iceland on its fisheries and the
situation appeared to have been reached when it was imperative to preserve fish stocks in the
interests of rational and economic exploitation.
However, the very notion of preferential fishery rights for the coastal State in a situation of special
dependence, though it implied a certain priority, could not imply the extinction of the concurrent
rights of other States. The fact that Iceland was entitled to claim preferential rights did not suffice to
justify its claim unilaterally to exclude British fishing vessels from all fishing beyond the limit of
12 miles agreed to in 1961.
The United Kingdom had pointed out that its vessels had been fishing in Icelandic waters for
centuries, that they had done so in a manner comparable with their present activities for upwards of
fifty years and that their exclusion would have very serious adverse consequences. There too the
economic dependence and livelihood of whole communities were affected, and the United Kingdom
shared the same interest in the conservation of fish stocks as Iceland, which had for its part admitted
the existence of the Applicant's historic and special interests in fishing in the disputed waters.
Iceland's 1972 Regulations were therefore not opposable to the United Kingdom; they disregarded
the established rights of that State and also the Exchange of Notes of 1961, and they constituted an
infringement of the principle (1958 Convention on the High Seas, Art. 2) of reasonable regard for the
interests of other States, including the United Kingdom.
In order to reach an equitable solution of the present dispute it was necessary that the preferential
fishing rights of Iceland should be reconciled with the traditional fishing rights of the United Kingdom
through the appraisal at any given moment of the relative dependence of either State on the
fisheries in question, while taking into account the rights of other States and the needs of

conservation. Thus Iceland was not in law entitled unilaterally to exclude United Kingdom fishing
vessels from areas to seaward of the limit of 12 miles agreed to in 1961 or unilaterally to impose
restrictions on their activities. But that did not mean that the United Kingdom was under no obligation
to Iceland with respect to fishing in the disputed waters in the 12-mile to 50-mile zone. Both Parties
had the obligation to keep under review the fishery resources in those waters and to examine
together, in the light of the information available, the measures required for the conservation and
development, and equitable exploitation, of those resources, taking into account any international
agreement that might at present be in force or might be reached after negotiation.
The most appropriate method for the solution of the dispute was clearly that of negotiation with a
view to delimiting the rights and interests of the Parties and regulating equitably such questions as
those of catch-limitation, share allocations and related restrictions. The obligation to negotiate flowed
from the very nature of the respective rights of the Parties and corresponded to the provisions of the
United Nations Charter concerning peaceful settlement of disputes. The Court could not accept the
view that the common intention of the Parties was to be released from negotiating throughout the
whole period covered by the 1973 interim agreement. The task before them would be to conduct
their negotiations on the basis that each must in good faith pay reasonable regard to the legal rights
of the other, to the facts of the particular situation and to the interests of other States with
established fishing rights in the area. For those reasons, the Court gave (Judgment, para. 79) the
decision indicated above.
LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS was an advisory opinion
delivered by the International Court of Justice (ICJ) on 8 July 1996.
The initial request for an advisory opinion by the ICJ was presented by the World Health
Organization (WHO) [issue raised: In view of the health and environmental effects, would the use of
nuclear weapons by a state in war or other armed conflict be a breach of its obligations under
international law including the WHO Constitution?] on 3 September 1993, but the ICJ did not render
an opinion on this request because the WHO was ultra vires, or acting outside its legal capacity.
Another request was presented by the United Nations General Assembly in December 1994 and
accepted by the Court in January 1995. The ICJ handed down an advisory opinion on 8 July 1996
the Legality of the Threat or Use of Nuclear Weapons case. The decision provides one of the few
authoritative judicial decisions concerning the legality under international law of the use or the
threatened use of nuclear weapons.
Beyond the central question, many more general issues were touched upon by the Court or raised in
the pleadings. These included institutional issues such as the proper role of international judicial
bodies, and the ICJ's advisory function. The main substantive issues regarded sources of
international legal obligation and the interaction of various branches of international law, particularly
the norms of international humanitarian law (jus in bello) and the rules governing the use of force
(jus ad bellum). In addition, the proceedings explored the status of "Lotus approach" [if not
prohibited, it is not violative of CIL or it is permitted; permissive aspect of opinion juris] , and
employed the concept of non liquet. There were also strategic questions such as the legality of the
practice of nuclear deterrence or the meaning of Article VI of the 1968 Treaty on the NonProliferation of Nuclear Weapons.
The hypothetical possibility of outlawing the use of nuclear weapons in an armed conflict was raised
as early as June 30, 1950, by the Dutch representative to the International Law Commission (ILC)
J.P.A. Franois, who suggested this "would in itself be an advance". In addition, the Polish
government requested this issue to be examined by the ILC as a crime against the peace of
mankind. However, the issue became moot due to Cold War tensions.

On 15 December 1994 the UN General Assembly adopted resolution A/RES/49/75K.[9] This asked
the ICJ urgently to render its advisory opinion on the following question:
Is the threat or use of nuclear weapons in any circumstances permitted under international law

Court's analysis[edit]
Deterrence and "threat"
The court considered the matter of deterrence, which involves a threat to use nuclear weapons
under certain circumstances on a potential enemy or an enemy. Was such a threat illegal? The court
decided, with some judges dissenting, that, if a threatened retaliatory strike was [if] consistent
with military necessity and proportionality, it would not necessarily be illegal. (Judgement paragraphs
3750)
The legality of the possession of nuclear weapons
The court then considered the legality of the possession, as opposed to actual use, of nuclear
weapons. The Court looked at various treaties, including the UN Charter, and found no treaty
language that specifically forbade the possession of nuclear weapons in a categorical way.
The UN Charter was examined in paragraphs 37-50 (paragraph 37: "The Court will now address the
question of the legality or illegality of recourse to nuclear weapons in the light of the provisions of the
Charter relating to the threat or use of force"). Paragraph 39 mentions: "These provisions [i.e. those
of the Charter] do not refer to specific weapons. They apply to any use of force, regardless of the
weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific
weapon, including nuclear weapons. A weapon that is already unlawful per se, whether by treaty or
custom, does not become lawful by reason of its being used for a legitimate purpose under the
Charter."
Treaties were examined in paragraphs 53-63 (paragraph 53: "The Court must therefore now
examine whether there is any prohibition of recourse to nuclear weapons as such; it will first
ascertain whether there is a conventional prescription to this effect"), as part of the law applicable in
situations of armed conflict (paragraph 51, first sentence: "Having dealt with the Charter provisions
relating to the threat or use of force, the Court will now turn to the law applicable in situations of
armed conflict"). In particular, with respect to "the argument [that] has been advanced that nuclear
weapons should be treated in the same way as poisoned weapons", the Court concluded that "it
does not seem to the Court that the use of nuclear weapons can be regarded as specifically
prohibited on the basis of the [...] provisions of the Second Hague Declaration of 1899, the
Regulations annexed to the Hague Convention IV of 1907 or the 1925 Protocol" (paragraphs 54 and
56)". It was also argued by some that the Hague Conventions concerning the use of bacteriological
or chemical weapons would also apply to nuclear weapons, but the Court was unable to adopt this
argument ("The Court does not find any specific prohibition of recourse to nuclear weapons in
treaties expressly prohibiting the use of certain weapons of mass destruction", paragraph 57 in fine).

With respect to treaties that "deal [...] exclusively with acquisition, manufacture, possession,
deployment and testing of nuclear weapons, without specifically addressing their threat or use," the
Court notes that those treaties "certainly point to an increasing concern in the international
community with these weapons; the Court concludes from this that these treaties could therefore be
seen as foreshadowing a future general prohibition of the use of such weapons, but they do not
constitute such a prohibition by themselves" (paragraph 62). Also, regarding regional treaties
prohibiting resource, namely those of Tlatelolco (Latin America) and Rarotonga (South Pacific) the
Court notes that while those "testify to a growing awareness of the need to liberate the community of
States and the international public from the dangers resulting from the existence of nuclear
weapons", "[i]t [i.e. the Court] does not, however, view these elements as amounting to a
comprehensive and universal conventional prohibition on the use, or the threat of use, of those
weapons as such." (paragraph 63).
Customary international law also provided insufficient evidence that the possession of nuclear
weapons had come to be universally regarded as illegal.
Ultimately, the court was unable to find an opinio juris (that is, legal consensus) that nuclear
weapons are illegal to possess. (paragraph 65) However, in practice, nuclear weapons have not
been used in war since 1945 and there have been numerous UN resolutions condemning their use
(however, such resolutions are not universally supportedmost notably, the nuclear powers object
to them).(paragraph 68-73) The ICJ did not find that these facts demonstrated a new and clear
customary law absolutely forbidding nuclear weapons.
However, there are many universal humanitarian laws applying to war. For instance, it is illegal for a
combatant specifically to target civilians and certain types of weapons that cause indiscriminate
damage are categorically outlawed. All states seem to observe these rules, making them a part
of customary international law, so the court ruled that these laws would also apply to the use of
nuclear weapons.(paragraph 86) The Court decided not to pronounce on the matter of whether the
use of nuclear weapons might possibly be legal, if exercised as a last resort in extreme
circumstances (such as if the very existence of the state was in jeopardy)

Decision[edit]
The court undertook seven separate votes, all of which were passed: [14]
1. The court decided to comply with the request for an advisory opinion; [15]
2. The court replied that "There is in neither customary nor conventional international law any
specific authorization of the threat or use of nuclear weapons";[16]
3. The court replied that "There is in neither customary nor conventional international law any
comprehensive and universal prohibition of the threat or use of nuclear weapons as such"; [17]
4. The court replied that "A threat or use of force by means of nuclear weapons that is contrary
to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the
requirements of Article 51, is unlawful";[18]
5. The court replied that "A threat or use of nuclear weapons should also be compatible with the
requirements of the international law applicable in armed conflict, particularly those of the

principles and rules of humanitarian law, as well as with specific obligations under treaties
and other undertakings which expressly deal with nuclear weapons"[19]
6. The court replied that "the threat or use of nuclear weapons would generally be contrary to
the rules of international law applicable in armed conflict, and in particular the principles and
rules of humanitarian law; However, in view of the current state of international law, and of
the elements of fact at its disposal, the Court cannot conclude definitively whether the threat
or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of selfdefence, in which the very survival of a State would be at stake" [20]
7. The court replied that "There exists an obligation to pursue in good faith and bring to a
conclusion negotiations leading to nuclear disarmament in all its aspects under strict and
effective international control".[21]
Split decision
The only significantly split decision was on the matter of whether "the threat or use of nuclear
weapons would generally be contrary to the rules of international law applicable in armed conflict",
not including "in an extreme circumstance of self-defence, in which the very survival of a State would
be at stake". However, three of the seven "dissenting" judges (namely, Judge Shahabuddeen of
Guyana, Judge Weeramantry of Sri Lanka, and Judge Koroma of Sierra Leone) wrote separate
opinions explaining that the reason they were dissenting was their view that there is NO exception
under any circumstances (including that of ensuring the survival of a State) to the general principle
that use of nuclear weapons is illegal. A fourth dissenter, Judge Oda of Japan, dissented largely on
the ground that the Court simply should not have taken the case.
Vice President Schwebel remarked in his dissenting opinion that
It cannot be accepted that the use of nuclear weapons on a scale which would - or could - result in
the deaths of many millions in indiscriminate inferno and by far-reaching fallout, have pernicious
effects in space and time, and render uninhabitable much or all of the earth, could be lawful.
And Higgins noted that she did not
exclude the possibility that such a weapon could be unlawful by reference to the humanitarian law, if
its use could never comply with its requirements.
Nevertheless, the Court's opinion did not conclude definitively and categorically, under the existing
state of international law at the time, whether in an extreme circumstance of self-defence in which
the very survival of a State would be a stake, the threat or use of nuclear weapons would necessarily
be unlawful in all possible cases. However, the court's opinion unanimously clarified that the world's
states have a binding duty to negotiate in good faith, and to accomplish, nuclear disarmament.

Is Public International Law a law?

In a sense that a law is defined in a traditional sense, PIL cannot be considered a law. It is not
legislated and enforced by a supreme authority. Austins definition of law: handed down by a
sovereign with the threat of punishment finds no application to PIL which governs sovereign states.
Horizontal system of law based on principles of reciprocity and consensus rather than on command

But in a sense it could also be considered a law in a sense that it is considered binding and
authoritative by states and that noncompliance could be punished by alienation and retaliation by
affected states. It could be a law because of its coercive effect upon states.
A system of law designed primarily for the external relations of states does not work like any internal
legal system of a state. After all, there is no reason to assume that the international legal system
must, or should, follow the historical models of centralized systems of national law. In effect, what
distinguishes the rules and principles of international law from mere morality is that they are
accepted in practice as legally binding by states in their intercourse because they are useful to
reduce complexity and uncertainty in international relations.
Other argument is i.e.: it is still a law if not defined in our classical notions of law is which is based
on a vertical legal system where there is a supreme authority. PIL is a legal system on its own, a
horizontal one, which arose out of the necessity of finding a system to govern co-equal entities in
dealing with each other.
Why do sovereign states obey international law?
Because of the threat of alienation and retaliation by the civilized world or the bigger community of
states. They also obey based on opinion juris, in other words because they feel they are obliged to.
Underlying logic remains: they are afraid of the consequences from their peers if they do not obey/
Why do states obey PIL?
1. Self-interest theory: they do because it is to their best interest
2. Acculturation theory: acculturation is the process of cultural change and psychological
change that results following meeting between cultures.
3. Legitimacy theory
4. Positivist theory

Doctrine of self-help
Retortion [?]=economic sanctions
Reprisal (counter-measure)=use of force
How is public international law formed and enforced to make it a law?
Formed by consensus and practice. Enforced through state acts such as economic sanctions and
even war.

formal sources (legal procedures and methods for creating binding rules) and
material sources (providing evidence of the content of rules in the sense of
substantive law)

Formal sources: A source imparting to a given rule the force of law (such as treaties, custom,
or general principles of law recognized by civilized nations); to be distinguished from material

sources. (Answers the question: Why is the law binding/ Will it bind? Because it is CIL,
Treaty, etc)
Material sources: The means by which the substance of a rule of international law is derived,
e.g., State practice, the material source. (Answers the question: Where can we find the
source of the law? This treaty, that convention)

The Lotus principle or Lotus approach, usually considered a foundation of international law, says
that sovereign states may act in any way they wish so long as they do not contravene an explicit
prohibition. The application of this principle an outgrowth of the Lotus case to future incidents
raising the issue of jurisdiction over people on the high seas was changed by article 11[1] of the 1958
High Seas Convention. The convention, held in Geneva, laid emphasis on the fact that only the flag
state or the state of which the alleged offender was a national had jurisdiction over sailors regarding
incidents occurring in high seas.
The principle has also been used in arguments against the reasons of the United States of America,
for opposing the existence of the International Criminal Court (ICC)

River Meuse Case (Equity)

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 not without reluctance, in view of the fact that it
provided for only one intake and that to be situated in foreign territory.
When the economic development of the Belgian and Netherlands provinces of Limburg necessitated
the enlargement of certain canals and the construction of new works, the two States signed in 1925 a
new agreement designed to settle the differences which had arisen in respect of the construction

programmes. After the rejection of this agreement by the Netherlands First Chamber, the Netherlands
proceeded to construct and complete the Juliana Canal, the Bosscheveld Lock and the
Borgharen barrage. On its part, Belgium began the construction of the Albert Canal,
unfinished at the time of the judgment, a barrage at Monsin and a lock at Neerhaeren.
As no further progress could be made in the settlement of the points at issue between the two States,
the Netherlands initiated proceedings in the Court by means of a unilateral application, based on the
declarations made by both the Netherlands and Belgium in which they accepted the compulsory
jurisdiction of the Court under Article 36 (a) of the Statute. Belgium, on its part, made a counterclaim.
In the course of the proceedings and at the suggestion of the Belgian Agent, which the Netherlands
Agent did not oppose, the Court visited the locality in order to see on the spot the installations, canals
and waterways to which the dispute related and to witness practical demonstrations of the operations
of locks and installations connected therewith.

Submissions of the Parties

The Netherlands ask the Court in the main to adjudge and declare that the works already carried out
by Belgium were contrary to the Treaty of 1863, that the proposed works would be contrary to it and,
consequently, to "order Belgium a) to discontinue all the works" listed in the Netherlands' submissions
and "to restore to a condition consistent with the Treaty of 1863 all works constructed in breach of
that Treaty; b) to discontinue any feeding held to be contrary to the said Treaty and to refrain from
any further such feeding.(3)
On its part, Belgium asks the Court to declare the Netherlands' submissions ill-founded, as well as to
adjudge and declare, in respect of the counter-claim, that the Borgharen barrage was constructed in
breach of the stipulations of the Treaty of 1863, that the Juliana Canal is subject to the provisions of
the Treaty and, finally, to reserve the rights accruing to Belgium from the breaches so committed.

Summary of the Judgment

Since the questions at issue are governed by the Treaty of 1863, the Court at the outset discards the
application to the dispute of the general rules of international river law in favour of the interpretation
and application of the Treaty.

The Netherlands maintain that Article I of the Treaty,(4) which provides for a single feeder, situated in
Netherlands territory, gives them the right to supervise and control all the intakes, situated not only in
their own territory, but also in Belgian territory. This contention necessarily implies that "the Treaty of
1863 intended to place the Parties in a situation of legal inequality by conferring on the Nether-lands a
right of control to which Belgium could not lay claim. (5) But, in order to allow the existence of such
inequality between the Parties to a treaty freely concluded, the text of the treaty must say so in
precise terms. In the absence of such terms, the Court rejects the Netherlands' submission.
While criticizing the construction by Belgium of the Neerhaeren Lock, the Netherlands do not invoke a
specific provision of the Treaty. The Court grants that the Treaty has brought into existence a certain
rgime which results from all its provisions taken together and that, accordingly, it forms a complete
whole, the different provisions of which cannot be dissociated from the others and considered in
isolation. This is equally the case with Article I which must be interpreted together with the other
Articles. In the light of this Article, thus interpreted, neither the Netherlands' contention regarding the
Neerhaeren Lock, nor the Belgian reply, can be accepted in its entirety. Furthermore, the Court, after
mentioning the construction by the Netherlands of the Bosscheveld Lock, refuses to admit the
Netherlands' complaint about the construction and operation of a lock of which they themselves set an
example in the past.
With regard to the supply by Belgium to a section of the Albert Canal of water taken from the Meuse
elsewhere than at Maestricht, the Court considers that the origin of the water is irrelevant. Nothing
prevents either Belgium or the Netherlands from making such use as they may see fit of the canals
covered by the Treaty, when the canals do not leave their own territory. Each of the two States is at
liberty in its own territory to modify such canals, to enlarge them, to trans-form them, to fill them in
and even to increase the volume of water in them, provided that the diversion of water at the feeder
mentioned in the Treaty and the volume of water to be discharged therefrom is not affected. The same
reasoning applies to the Netherlands' criticism of the proposed supply by Belgium to a section of
another canal of water taken from the Meuse elsewhere than at Maestricht.
Having thus rejected all the Netherlands' submissions, the Court proceeds to deal with the Belgian
counter-claims, the first of which concerns the Borgharen barrage. The Court finds that the Treaty
does not forbid the Netherlands from altering the depth of water in the Meuse at Maestricht without
the consent of Belgium, provided that neither the discharge of water through the feeder, nor the
volume of water which it must supply, nor the current in the Zuid-Willemsvaart is thereby affected. It

is 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. (Basically leaves both parties in their original positions?)

Individual Opinion of Hudson

While he concurs in the judgment of the Court, Mr. Hudson considers that there is room to apply here
the principle of equity. "A sharp division between law and equity, such as prevails in the administration
of justice in some States, should find no place in international jurisprudence. (10) The question here is
of a general principle of law re-cognized by civilized nations in the sense of Article 38 of the Statute,
and the Court's recognition of equity as part of international law is in no way restricted by the special
power conferred on it to decide a case ex aequo et bono if the Parties so agree. "It would seem to be
an important principle of equity that where two parties have assumed an identical or a reciprocal
obligation; one party which is engaged in a continuing non-performance of that obligation should not
be permitted to take advantage of a similar non-performance of that obligation by the other party.
(11)

A tribunal, bound by international law, ought not to shrink from applying a principle of such

obvious fairness. In equity, the Netherlands cannot ask Belgium to discontinue the operation of the
Neerhaeren Lock when the Netherlands remain free to continue the operation of the Bosscheveld Lock.
Neither of these two requests should be granted where the circumstances are such that the judgment
would disturb that equality which is equity. If it preserves the equality between the Parties, the
judgment may better serve to facilitate their negotiations on the conclusion of a new treaty to replace
that of 1863.

GENERAL PRINCIPLES OF LAW

1. South-West Africa Case [Advisory Opinion]
Judgment of 18 July 1966
The South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), which relate to the continued
existence of the Mandate for South West Africa and the duties and performance of South Africa as Mandatory
thereunder, were instituted by Applications of the Governments of Ethiopia and Liberia filed in the Registry on 4
November 1960. By an Order of 20 May 1961 the Court joined the proceedings in the two cases. The Government
of South Africa raised preliminary objections to the Court's proceeding to hear the merits of the case, but these were
dismissed by the Court on 21 December 1962, the Court finding that it had jurisdiction to adjudicate upon the merits
of the dispute.

In its Judgment on the second phase of the cases the Court, by the President's casting vote, the votes being equally
divided (seven-seven), found that the Applicant States could not be considered to have established any legal right or
interest in the subject matter of their claims and accordingly decided to reject them.

The President, Sir Percy Spender, has appended a Declaration to the Judgment. Judge Morelli and Judge ad hoc van
Wyk have appended separate opinions. Vice-President Wellington Koo, Judges Koretsky, Tanaka, Jessup, Padilla
Nervo and Forster and Judge ad hoc Sor Louis Mbanefo have appended dissenting opinions.
*
**
The Applicants, acting in the capacity of States which were members of the former League of Nations, put forward
various allegations of contraventions of the League of Nations Mandate for South West Africa by the Republic of
South Africa.

The contentions of the Parties covered, inter alia, the following issues: whether the Mandate for South West Africa
was still in force and, if so, whether the Mandatory's obligation to furnish annual reports on its administration to the
Council of the League of Nations had become transformed into an obligation so to report to the General Assembly of
the United Nations; whether the Respondent had, in accordance with the Mandate, promoted to the utmost the
material and moral well-being and the social progress of the inhabitants of the territory, whether the Mandatory had
contravened the prohibition in the Mandate of the "military training of the natives" and the establishment of military
or naval bases or the erection of fortifications in the territory; and whether South Africa had contravened the
provision in the Mandate that it (the Mandate) can only be modified with the consent of the Council of the League of
Nations, by attempting to modify the Mandate without the consent of the United Nations General Assembly, which,
it was contended by the Applicants, had replaced the Council of the League for this and other purposes.

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" (in this case Union of South Africa/Republic of South Africa to the League for the
South West African 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.

*
**
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 (lex lata vs. lex ferenda). 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 dissolution, rights which, even previously as 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 (jurisdiction vs. standing), 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.

2. BARCELONA TRACTION CASE

Facts
Barcelona Traction, Light, and Power Company, Ltd was a corporation incorporated
in Canada, with Toronto headquarters, that made and supplied electricity in Spain. It had
issued bonds to non-Spanish investors, but during the Spanish Civil War (1936-9) the
Spanish government refused to allow BTLP to transfer currency to pay bondholders the
interest they were due. In 1948 a group of bondholders sued in Spain to declare that
BTLP had defaulted on the ground it had failed to pay the interest. The Spanish court
allowed their claim. The business was sold, the surplus distributed to the bondholders,
and a small amount was paid to shareholders.
The shareholders in Canada succeeded in persuading Canada and other states to
complain that Spain had denied justice and violated a series of treaty obligations.
However, Canada eventually accepted that Spain had the right to prevent BTLP from
transferring currency and declaring BTLP bankrupt. Of the shares, 88 per cent were
owned by Belgians, and the Belgian government complained, insisting the Spanish
government had not acted properly. They made an initial claim at the International
Court of Justicein 1958, but later withdrew it to allow negotiations. Subsequent
negotiations broke down, and a new claim was filed in 1962. Spain contended that
Belgium had no standing because BTLP was a Canadian company.

Judgment
The International Court of Justice held that Belgium had no legal interest in the matter
to justify it bringing a claim. Although Belgian shareholders suffered if a wrong was done
to the company, it was only the company's rights that could have been infringed by
Spain's actions. It would only be if direct shareholder rights (such as to dividends) were
affected, that the state of the shareholders would have an independent right of action. It
was a general rule of international law that when an unlawful act was committed
against a company, only the state of incorporation of the company could sue, and
because Canada had chosen not to, this was the end. The idea of a "diplomatic
protection" of shareholders was unsound because it would create confusion and

insecurity in economic relations as shares are 'widely scattered and frequently change
hands'. The court also said that a state is bound to give the same legal protection to
foreign investments and nationals, either for natural or legal persons, when it admits
them to its territory.

In this context, one must consider the Barcelona Traction case between Belgium and Spain.
The International Court of Justice relied heavily upon the municipal law concept of the limited liability
company and emphasised that if the Court were to decide the case in disregard of the relevant
institutions of municipal law it would, without justification, invite serious legal difficulties. It would lose
touch with reality, for there are no corresponding institutions of international law to which the Court
could resort. However, international law did not refer to the municipal law of a particular state, but
rather to the rules generally accepted by municipal legal systems which, in this case, recognize the
idea of the limited company.

>A limited liability company (LLC) is a corporate structure whereby the members of the
company cannot be held personally liable for the company's debts or liabilities. Limited liability
companies are essentially hybrid entities that combine the characteristics of a corporation and
a partnership or sole proprietorship.

Preah Vihear Temple Case

Judgment of 15 June 1962
Theme: Alleged error cannot be invoked in the light of acquiescence.
Proceedings in the case concerning the Temple of Preah Vihear, between Cambodia
and Thailand, were instituted on 6 October 1959 by an Application of the
Government of Cambodia; the Government of Thailand having raised two
preliminary objections, the Court, by its Judgment of 26 May 1961, found that it had
jurisdiction.
In its Judgment on the merits the Court, by nine votes to three, found that the
Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia
and, in consequence, that Thailand was under an obligation to withdraw any
military or police forces, or other guards or keepers, stationed by her at the Temple,
or in its vicinity on Cambodian territory.
By seven votes to five, the Court found that Thailand was under an obligation to
restore to Cambodia any sculptures, stelae, fragments of monuments, sandstone
model and ancient pottery which might, since the date of the occupation of the
Temple by Thailand in 1954, have been removed from the Temple or the Temple
area by the Thai authorities.
Judge Tanaka and Judge Morelli appended to the Judgment a Joint Declaration. VicePresident Alfaro and Judge Sir Gerald Fitzmaurice appended Separate Opinions;
Judges Moreno Quintana, Wellington Koo and Sir Percy Spender appended
Dissenting Opinions.

*
**
In its Judgment, the Court found that the subject of the dispute was sovereignty
over the region of the Temple of Preah Vihear. This ancient sanctuary, partially in
ruins, stood on a promontory of the Dangrek range of mountains which constituted
the boundary between Cambodia and Thailand. The dispute had its fons et origo in
the boundary settlements made in the period 1904-1908 between France, then
conducting the foreign relations of Indo-China, and Siam. The application of the
Treaty of 13 February 1904 was, in particular, involved. That Treaty established the
general character of the frontier the exact boundary of which was to be delimited by
a Franco-Siamese Mixed Commission
In the eastern sector of the Dangrek range, in which Preah Vihear was situated, the
frontier was to follow the watershed line. For the purpose of delimiting that frontier,
it was agreed, at a meeting held on 2 December 1906, that the Mixed Commission
should travel along the Dangrek range carrying out all the necessary
reconnaissance, and that a survey officer of the French section of the Commission
should survey the whole of the eastern part of the range. It had not been contested
that the Presidents of the French and Siamese sections duly made this journey, in
the course of which they visited the Temple of Preah Vihear. In January-February
1907, the President of the French section had reported to his Government that the
frontier-line had been definitely established. It therefore seemed clear that a frontier
had been surveyed and fixed, although there was no record of any decision and no
reference to the Dangrek region in any minutes of the meetings of the Commission
after 2 December 1906. Moreover, at the time when the Commission might have
met for the purpose of winding up its work, attention was directed towards the
conclusion of a further Franco-Siamese boundary treaty, the Treaty of 23 March
1907.
The final stage of the delimitation was the preparation of maps. The Siamese
Government, which did not dispose of adequate technical means, had requested
that French officers should map the frontier region. These maps were completed in
the autumn of 1907 by a team of French officers, some of whom had been members
of the Mixed Commission, and they were communicated to the Siamese
Government in 1908. Amongst them was a map of the Dangrek range showing
Preah Vihear on the Cambodian side. It was on that map (filed as Annex I to its
Memorial) that Cambodia had principally relied in support of her claim to
sovereignty over the Temple. Thailand, on the other hand, had contended that the
map, not being the work of the Mixed Commission, had no binding character; that
the frontier indicated on it was not the true watershed line and that the true
watershed line would place the Temple in Thailand, that the map had never been
accepted by Thailand or, alternatively, that if Thailand had accepted it she had done
so only because of a mistaken belief that the frontier indicated corresponded with
the watershed line.
The Annex I map was never formally approved by the Mixed Commission, which had
ceased to function some months before its production. While there could be no

reasonable doubt that it was based on the work of the surveying officers in the
Dangrek sector, the Court nevertheless concluded that, in its inception, it had no
binding character. It was clear from the record, however, that the maps were
communicated to the Siamese Government as purporting to represent the outcome
of the work of delimitation; since there was no reaction on the part of the Siamese
authorities, either then or for many years, they must be held to have acquiesced.
The maps were moreover communicated to the Siamese members of the Mixed
Commission, who said nothing to the Siamese Minister of the Interior, Prince
Damrong, who thanked the French Minister in Bangkok for them, and to the Siamese
provincial governors, some of whom knew of Preah Vihear. If the Siamese
authorities accepted the Annex I map without investigation, they could not now
plead any error vitiating the reality of their consent.
The Siamese Government and later the Thai Government had raised no query about
the Annex I map prior to its negotiations with Cambodia in Bangkok in 1958. But in
1934-1935 a survey had established a divergence between the map line and the
true line of the watershed, and other maps had been produced showing the Temple
as being in Thailand: Thailand had nevertheless continued also to use and indeed to
publish maps showing Preah Vihear as lying in Cambodia. Moreover, in the course of
the negotiations for the 1925 and 1937 Franco-Siamese Treaties, which confirmed
the existing frontiers, and in 1947 in Washington before the Franco-Siamese
Conciliation Commission, it would have been natural for Thailand to raise the
matter: she did not do so. The natural inference was that she had accepted the
frontier at Preah Vihear as it was drawn on the map, irrespective of its
correspondence with the watershed line. Thailand had stated that having been, at
all material times, in possession of Preah Vihear, she had had no need to raise the
matter; she had indeed instanced the acts of her administrative authorities on the
ground as evidence that she had never accepted the Annex I line at Preah Vihear.
But the Court found it difficult to regard such local acts as negativing the consistent
attitude of the central authorities. Moreover, when in 1930 Prince Damrong, on a
visit to the Temple, was officially received there by the French Resident for the
adjoining Cambodian province, Siam failed to react.
From these facts, the court concluded that Thailand had accepted the Annex I map.
Even if there were any doubt in this connection, Thailand was not precluded from
asserting that she had not accepted it since France and Cambodia had relied upon
her acceptance and she had for fifty years enjoyed such benefits as the Treaty of
1904 has conferred on her. Furthermore, the acceptance of the Annex I map caused
it to enter the treaty settlement; the Parties had at that time adopted an
interpretation of that settlement which caused the map line to prevail over the
provisions of the Treaty and, as there was no reason to think that the Parties had
attached any special importance to the line of the watershed as such, as compared
with the overriding importance of a final regulation of their own frontiers, the Court
considered that the interpretation to be given now would be the same.
The Court therefore felt bound to pronounce in favour of the frontier indicated on
the Annex I map in the disputed area and it became unnecessary to consider
whether the line as mapped did in fact correspond to the true watershed line.

For these reasons, the Court upheld the submissions of Cambodia concerning
sovereignty over Preah Vihear.

Anglo Iranian Oil Case (UK vs. Iran)

Theme: Can a dispute settlement, in the form of a concessionary contract,
concluded between two governments be considered as a treaty? No.
The Anglo-Iranian Oil Company case had been submitted to the Court by the United
Kingdom Government on May 26th, 1951, and had been the subject of an Objection
on the ground of lack of jurisdiction by the Government of Iran.
By nine votes against five, the Court declared that it lacked jurisdiction. The
Judgment was followed by a separate opinion by Sir Arnold McNair, President of the
Court, who while concurring in the conclusion reached in the Judgment for which he
had voted, added some reasons of his own which had led him to that conclusion.
The Judgment was also followed by four dissenting opinions by judges Alvarez,
Hackworth, Read and Levi Carneiro.
On July 5th, 1951, the Court had indicated interim measures of protection in this
case, pending its final decision, stating expressly that the question of the
jurisdiction of the merits was in no way prejudged. In its Judgment, the Court
declared that the Order of July 5th, 1951, ceased to be operative and that the
provisional measures lapsed at the same time.
*
**
The Judgment begins by recapitulating the facts. In April, 1933, an agreement was
concluded between the Government of Iran and the Anglo-Iranian Oil Company. In
March, April and May, 1951, laws were passed in Iran, enunciating the principle of
the nationalization of the oil industry in Iran and establishing procedure for the
enforcement of this principle. The result of these laws was a dispute between Iran
and the Company. The United Kingdom adopted the cause of the latter, and in
virtue of its right of diplomatic protection it instituted proceedings before the Court,
whereupon Iran disputed the Court's jurisdiction.
The Judgment refers to the principle according to which the will of the Parties is the
basis of the Court's jurisdiction, and it notes that in the present case the jurisdiction
depends on the Declarations accepting the compulsory jurisdiction of the Court
made by Iran and by the United Kingdom under Article 36, paragraph 2, of the
Statute. These Declarations contain the condition of reciprocity, and as that of Iran
is more limited, it is upon that Declaration that the Court must base itself.
According to this Declaration, the Court has jurisdiction only when a dispute relates
to the application of a treaty or convention accepted by Iran. But Iran maintains
that, according to the actual wording of the text, the jurisdiction is limited to

treaties subsequent to the Declaration. The United Kingdom maintains, on the

contrary, that earlier treaties may also come into consideration. In the view of the
Court, both contentions might, strictly speaking, be regarded as compatible with the
text. But the Court cannot base itself on a purely grammatical interpretation: it must
seek the interpretation which is in harmony with a natural and reasonable way of
reading the text, having due regard to the intention of Iran at the time when it
formulated the Declaration. A natural and reasonable way of reading the text leads
to the conclusion that only treaties subsequent to the ratification come into
consideration. In order to reach an opposite conclusion, special and clearly
established reasons would be required: but the United Kingdom was not able to
produce them. On the contrary, it may be admitted that Iran had special reasons for
drafting her Declaration in a very restrictive manner, and for excluding the earlier
treaties. For, at that time, Iran had denounced all the treaties with other States
relating to the regime of capitulations; she was uncertain as to the legal effect of
these unilateral denunciations. In such circumstances, it is unlikely that she should
have been willing on her own initiative to agree to submit to an international court
disputes relating to all these treaties. Moreover, the Iranian law by which the Najlis
approved and adopted the Declaration, before it was ratified, provides a decisive
confirmation of Iran's intention, for it states that the treaties and conventions which
come into consideration are those which "the Government will have accepted after
the ratification".
The earlier treaties are thus excluded by the Declaration, and the United Kingdom
cannot therefore rely on them. It has invoked some subsequent treaties: namely
those of 1934 with Denmark and Switzerland, and that of 1937 with Turkey, by
which Iran had undertaken to treat the nationals of those Powers in accordance with
the principles and practice of ordinary international law. The United Kingdom claims
that the Anglo-Iranian Oil Company has not been treated in accordance with those
principles and that practice; and in order to rely on the above-mentioned treaties,
though concluded with third parties, it founds itself on the most-favoured-nation
clause contained in two instruments which it concluded with Iran: the treaty of 1857
and the commercial convention of 1903. But the two latter treaties, which form the
sole legal connection with the treaties of 1934 and 1937, are anterior to the
Declaration: the United Kingdom cannot therefore rely on them, and, consequently,
it cannot invoke the subsequent treaties concluded by Iran with third States.
But did the settlement of the dispute between Iran and the United Kingdom,
effected in 1933 through the mediation of the League of Nations, result in an
agreement between the two Governments which may be regarded as a treaty or
convention? The United Kingdom maintains that it did: it claims that the agreement
signed in 1933 between the United Kingdom and the Company had a double
character: being at once a concessionary contract and a treaty between the two
States. In the view of the Court, that it is not the case. The United Kingdom is not a
party to the contract [?], which does not constitute a link between the two
Governments or in any way regulate the relations between them. Under the
contract, Iran cannot claim from the United Kingdom any rights which it may claim
from the Company, nor can it be called upon to perform towards the United

Kingdom any obligations which it is bound to perform towards the Company. This
juridical situation is not altered by the fact that the concessionary contract was
negotiated through the good offices of the Council of the League of Nations, acting
through its rapporteur. The United Kingdom in submitting its dispute with Iran to the
League Council, was only exercising its right of diplomatic protection in favour of
one of its nationals.
Thus the Court arrives at the conclusion that it lacks jurisdiction.

QATAR vs. BAHRAIN

Theme: An international agreement which creates rights and obligations is not necessarily a treaty
History of the case (paras. 1-14)
In its Judgment the Court recalls that on 8 July 1991 the Minister for Foreign Affairs of the State of
Qatar filed in the Registry of the Court an Application instituting proceedings against the State of
Bahrain in respect of certain disputes between the two States relating to sovereignty over the Hawar
islands, sovereign rights over the shoals of Dibal and Qit'at Jaradah, and the delimitation of the
maritime areas of the two States.
The Court then recites the history of the case. It recalls that in its Application Qatar founded the
jurisdiction of the Court upon two agreements between the Parties stated to have been concluded in
December 1987 and December 1990 respectively, the subject and scope of the commitment to
jurisdiction being determined, according to the Applicant, by a formula proposed by Bahrain to Qatar
on 26 October 1988 and accepted by Qatar in December 1990. Bahrain contested the basis of
jurisdiction invoked by Qatar.
The Court then refers to the different stages of the proceedings before it and to the submissions of
the Parties.
Summary of the circumstances in which a solution to the dispute between Bahrain and Qatar
has been sought over the past two decades (paras. 15-20)
Endeavors to find a solution to the dispute took place in the context of a mediation, sometimes
referred to as "good offices", beginning in 1976, by the King of Saudi Arabia with the agreement of
the Amirs of Bahrain and Qatar, which led, during a tripartite meeting in March 1983, to the approval
of a set of "Principles for the Framework for Reaching a Settlement". The first of these principles
specified that "All issues of dispute between the two countries, relating to sovereignty over the
islands, maritime boundaries and territorial waters, are to be considered as complementary,
indivisible issues, to be solved comprehensively together."
Then, in 1987, the King of Saudi Arabia sent the Amirs of Qatar and Bahrain letters in identical
terms, in which he put forward new proposals. The Saudi proposals which were adopted by the two
Heads of State, included four points, the first of which was that:
"All the disputed matters shall be referred to the International Court of Justice, at The Hague, for a
final ruling binding upon both parties, who shall have to execute its terms."
The third provided for formation of a Tripartite Committee, composed of representatives of the States
of Bahrain and Qatar and of the Kingdom of Saudi Arabia, "for the purpose of approaching the

International Court of Justice, and satisfying the necessary requirements to have the dispute
submitted to the Court in accordance with its regulations and instructions so that a final ruling,
binding upon both parties, be issued".
Then, in 1988, following an initiative by Saudi Arabia, the Heir Apparent of Bahrain, when on a visit
to Qatar, transmitted to the Heir Apparent of Qatar a text (subsequently known as the Bahraini
formula) which reads as follows:
"Question
The Parties request the Court to decide any matter of territorial right or other title or interest which
may be a matter of difference between them; and to draw a single maritime boundary between their
respective maritime areas of seabed, subsoil and superjacent waters."
The matter was again the subject of discussion two years later, on the occasion of the annual
meeting of the Co-operation Council of Arab States of the Gulf at Doha in December 1990. Qatar
then let it be known that it was ready to accept the Bahraini formula. The minutes of the meeting
which then took place stated that the two parties had reaffirmed what was agreed previously
between them; had agreed to continue the good offices of King Fahd of Saudi Arabia until May 1991;
that after this period, the matter might be submitted to the International Court of Justice in
accordance with the Bahraini formula, while Saudi Arabia's good offices would continue during the
submission of the matter to arbitration; and that, should a brotherly solution acceptable to the two
parties be reached, the case would be withdrawn from arbitration.
The good offices of King Fahd did not lead to the desired outcome within the time-limit thus fixed,
and on 8 July 1991 Qatar instituted proceedings before the Court against Bahrain.
According to Qatar, the two States: "have made express commitments in the Agreements of
December 1987 ... and December 1990 ..., to refer their disputes to the ... Court". Qatar therefore
considers that the Court has been enabled "to exercise jurisdiction to adjudicate upon those
disputes" and, as a consequence, upon the Application of Qatar.
Bahrain maintains on the contrary that the 1990 Minutes do not constitute a legally binding
instrument. It goes on to say that, in any event, the combined provisions of the 1987 exchanges of
letters and of the 1990 Minutes were not such as to enable Qatar to seise the Court unilaterally and
concludes that the Court lacks jurisdiction to deal with the Application of Qatar.
The nature of the exchanges of letters of 1987 and of the 1990 Doha Minutes (paras. 21-30)
The Court begins by enquiring into the nature of the texts upon which Qatar relies before turning to
an analysis of the content of those texts. It observes that the Parties agree that the exchanges of
letters of December 1987 constitute an international agreement with binding force in their mutual
relations, but that Bahrain maintains that the Minutes of 25 December 1990 were no more than a
simple record of negotiations, similar in nature to the Minutes of the Tripartite Committee; that
accordingly they did not rank as an international agreement and could not, therefore, serve as a
basis for the jurisdiction of the Court.
After examining the 1990 Minutes (see above, p. 4) the Court observes that they are not a simple
record of a meeting, similar to those drawn up within the framework of the Tripartite Committee; they
do not merely give an account of discussions and summarize points of agreement and
disagreement. They enumerate the commitments to which the Parties have consented. They thus
create rights and obligations in international law for the Parties. They constitute an international
agreement.

Bahrain maintains that the signatories of the 1990 Minutes never intended to conclude an
agreement of that kind. The Court does not however find it necessary to consider what might have
been, in that regard, the intentions of the Foreign Minister of Bahrain or, for that matter, those of the
Foreign Minister of Qatar. Nor does it accept Bahrain's contention that the subsequent conduct of
the Parties showed that they never considered the 1990 Minutes to be an agreement of this kind.
The content of the exchanges of letters of 1987 and of the 1990 Doha Minutes (paras. 31-39)
Turning to an analysis of the content of these texts, and of the rights and obligations to which they
give rise, the Court first observes that, by the exchanges of letters of December 1987 (see above,
pp. 3-4), Bahrain and Qatar entered into an undertaking to refer all the disputed matters to the Court
and to determine, with the assistance of Saudi Arabia (in the Tripartite Committee), the way in which
the Court was to be seised in accordance with the undertaking thus given.
The question of the determination of the "disputed matters" was only settled by the Minutes of
December 1990. Those Minutes placed on record the fact that Qatar had finally accepted the
Bahraini formula. Both Parties thus accepted that the Court, once seised, should decide "any matter
of territorial right or other title or interest which may be a matter of difference between [the Parties]";
and should "draw a single maritime boundary between their respective maritime areas of seabed,
subsoil and superjacent waters."
The formula thus adopted determined the limits of the dispute with which the Court would be asked
to deal. It was devised to circumscribe that dispute, but, whatever the manner of seisin, it left open
the possibility for each of the Parties to present its own claims to the Court, within the framework
thus fixed. However, while the Bahraini formula permitted the presentation of distinct claims by each
of the Parties, it nonetheless pre-supposed that the whole of the dispute would be submitted to the
Court.
The Court notes that at present it has before it solely an Application by Qatar setting out the
particular claims of that State within the framework of the Bahraini formula. Article 40 of the Court's
Statute provides that when cases are brought before the Court "the subject of the dispute and the
parties shall be indicated". In the present case the identity of the parties presents no difficulty, but
the subject of the dispute is another matter.
In the view of Bahrain the Qatar Application comprises only some of the elements of the subjectmatter intended to be comprised in the Bahraini formula and that was in effect acknowledged by
Qatar.
The Court consequently decides to afford the Parties the opportunity to ensure the submission to the
Court of the whole of the dispute as it is comprehended within the 1990 Minutes and the Bahraini
formula, to which they have both agreed. The Parties may do so by a joint act or by separate acts;
The result should in any case be that the Court has before it "any matter of territorial right or other
title or interest which may be a matter of difference between" the Parties, and a request that it "draw
a single maritime boundary between their respective maritime areas of seabed, subsoil and
superjacent waters".
__________
__________
Dissenting opinion of Judge Oda
Judge Oda finds himself unable to vote in favour of the present Judgment as it transforms the
unilateral Application by Qatar into a unilateral filing of an agreement which is found to have been
improperly drafted. In his view the Court should rather have determined whether it had jurisdiction to
entertain that unilateral Application. The Court now appears - for the first time in its history- to render
an interlocutory judgment. Judge Oda maintains, however, that it cannot take this course without first
having settled the jurisdictional issue. What will happen if the Parties do not "take action" to submit
the whole of the dispute to the Court? Will either or both Parties be considered not to have complied

with the present Judgment; or will the Court simply decide to discontinue the present case which has
already been entered in the General List and of which it will assume that it has been seised? It
seems to Judge Oda that the Court is simply making a gesture of issuing an invitation, in the guise
of a Judgment, to the Parties to proceed to the submission of a new case independently of the
present Application.
The question in the present case is whether the "1987 Agreement" or the "1990 Agreement" are of
the nature of "treaties and conventions in force" within the meaning of Article 36 (1) of the Statute,
i.e., whether they contain a compromissory clause. After an examination of the nature and contents
of the 1987 and 1990 documents, Judge Oda comes to the conclusion that neither Agreement falls
within this category.
What were Qatar and Bahrain then trying to achieve in the negotiations by endorsing those
documents?
After examining the negotiations which had been going on for more than two decades, Judge Oda
concludes that if any mutual understanding was reached between Qatar and Bahrain in December
1987, it was simply an agreement to form a Tripartite Committee, which was to facilitate the drafting
of a special agreement; he further concludes that the Tripartite Committee was unable to produce an
agreed draft of a special agreement; and that the Parties in signing the minutes of the Doha meeting
agreed that reference to the International Court of Justice was to be an alternative to Saudi Arabia's
good offices, which did not, however, imply any authorization such as to permit one Party to make
an approach to the Court by unilateral application, ignoring "what was agreed previously between
the two parties", that is to say, the drafting of a special agreement in accordance with the Bahraini
Formula.
In conclusion, Judge Oda is confident that neither the "1987 Agreement" nor the "1990 Agreement"
can be deemed to constitute a basis for the jurisdiction of the Court in the event of a unilateral
application under Article 38 (1) of the Rules of Court and that the Court is not empowered to
exercise jurisdiction in respect of the relevant disputes unless they are jointly referred to the Court
by a special agreement under Article 39 (1) of the Rules of Court which, in his view, has not
occurred in this case. The Court has nonetheless opted for the role of conciliator instead of finding,
as he believes it ought to have done, that it lacks jurisdiction to entertain the Application filed by
Qatar on 8 July 1991.
Gabcikovo-Nagymaros Project (Hungary/Slovakia)
Review of the proceedings and statement of claims (paras. 1-14)
The Court begins by recalling that proceedings had been instituted on 2 July 1993 by a joint
notification, by Hungary and Slovakia, of a Special Agreement, signed at Brussels on 7 April 1993.
After setting out the text of the Agreement, the Court recites the successive stages of the
proceedings, referring, among other things, to its visit, on the invitation of the parties, to the area,
from 1 to 4 April 1997. It further sets out the submissions of the Parties.
History of the dispute (paras. 15-25)
The Court recalls that the present case arose out of the signature, on 16 September 1977, by the
Hungarian People's Republic and the Czechoslovak People's Republic, of a treaty "concerning the
construction and operation of the Gabcikovo-Nagymaros System of Locks" (hereinafter called the
"1977 Treaty"). The names of the two contracting States have varied over the years; they are
referred to as Hungary and Czechoslovakia. The 1977 Treaty entered into force on 30 June 1978. It
provides for the construction and operation of a System of Locks by the parties as a "joint
investment". According to its Preamble, the system was designed to attain "the broad utilization of
the natural resources of the Bratislava-Budapest section of the Danube river for the development of

water resources, energy, transport, agriculture and other sectors of the national economy of the
Contracting Parties". The joint investment was thus essentially aimed at the production of
hydroelectricity, the improvement of navigation on the relevant section of the Danube and the
protection of the areas along the banks against flooding. At the same time, by the terms of the
Treaty, the contracting parties undertook to ensure that the quality of water in the Danube was not
impaired as a result of the Project, and that compliance with the obligations for the protection of
nature arising in connection with the construction and operation of the System of Locks would be
observed.
The sector of the Danube river with which this case is concerned is a stretch of approximately 200
kilometres, between Bratislava in Slovakia and Budapest in Hungary.
The 1977 Treaty describes the principal works to be constructed in pursuance of the Project. It
provided for the building of two series of locks, one at Gabcikovo (in Czechoslovak territory) and the
other at Nagymaros (in Hungarian territory), to constitute "a single and indivisible operational system
of works" (see sketch-map No. 2, (85 Kb) ). The Treaty further provided that the technical
specifications concerning the system would be included in the "Joint Contractual Plan" which was to
be drawn up in accordance with the Agreement signed by the two Governments for this purpose on
6 May 1976. It also provided for the construction, financing and management of the works on a joint
basis in which the Parties participated in equal measure.
The Joint Contractual Plan, set forth, on a large number of points, both the objectives of the system
and the characteristics of the works. It also contained "Preliminary Operating and Maintenance
Rules", Article 23 of which specified that "The final operating rules [should] be approved within a
year of the setting into operation of the system."
The Court observes that the Project was thus to have taken the form of an integrated joint project
with the two contracting parties on an equal footing in respect of the financing, construction and
operation of the works. Its single and indivisible nature was to have been realized through the Joint
Contractual Plan which complemented the Treaty. In particular, Hungary would have had control of
the sluices at Dunakiliti and the works at Nagymaros, whereas Czechoslovakia would have had
control of the works at Gabcikovo.
*
The schedule of work had for its part been fixed in an Agreement on mutual assistance signed by the
two parties on 16 September 1977, at the same time as the Treaty itself. The Agreement made some
adjustments to the allocation of the works between the parties as laid down by the Treaty. Work on
the Project started in 1978. On Hungary's initiative, the two parties first agreed, by two Protocols
signed on 10 October 1983 to slow the work down and to postpone putting into operation the power
plants, and then, by a Protocol signed on 6 February 1989 to accelerate the Project.
As a result of intense criticism which the Project had generated in Hungary, the Hungarian
Government decided on 13 May 1989 to suspend the works at Nagymaros pending the completion
of various studies which the competent authorities were to finish before 31 July 1989. On 21 July
1989, the Hungarian Government extended the suspension of the works at Nagymaros until 31
October 1989, and, in addition, suspended the works at Dunakiliti until the same date. Lastly, on 27
October 1989, Hungary decided to abandon the works at Nagymaros and to maintain the status quo
at Dunakiliti.
During this period, negotiations took place between the parties. Czechoslovakia also started
investigating alternative solutions. One of them, an alternative solution subsequently known as
"Variant C", entailed a unilateral diversion of the Danube by Czechoslovakia on its territory some 10
kilometres upstream of Dunakiliti (see sketch-map No. 3, (90 Kb) ). In its final stage, Variant C
included the construction at Cunovo of an overflow dam and a levee linking that dam to the south
bank of the bypass canal. Provision was made for ancillary works.

On 23 July 1991, the Slovak Government decided "to begin, in September 1991, construction to put
the Gabcikovo Project into operation by the provisional solution". Work on Variant C began in
November 1991. Discussions continued between the two parties but to no avail.
On 19 May 1992, the Hungarian Government transmitted to the Czechoslovak Government a Note
Verbale terminating the 1977 Treaty with effect from 25 May 1992. On 15 October 1992,
Czechoslovakia began work to enable the Danube to be closed and, starting on 23 October,
proceeded to the damming of the river.
The Court finally takes note of the fact that on 1 January 1993 Slovakia became an independent
State; that in the Special Agreement thereafter concluded between Hungary and Slovakia the Parties
agreed to establish and implement a temporary water management regime for the Danube; and that
finally they concluded an Agreement in respect of it on 19 April 1995, which would come to an end
14 days after the Judgment of the Court. The Court also observes that not only the 1977 Treaty, but
also the "related instruments" are covered in the preamble to the Special Agreement and that the
Parties, when concentrating their reasoning on the 1977 Treaty, appear to have extended their
arguments to the "related instruments".
Suspension and abandonment by Hungary, in 1989, of works on the Project (paras. 27-59)
In terms of Article 2, paragraph 1 (a), of the Special Agreement, the Court is requested to decide first
"whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the
works on the Nagymaros Project and on the part of the Gabcikovo Project for which the Treaty
attributed responsibility to the Republic of Hungary".
The Court observes that it has no need to dwell upon the question of the applicability or nonapplicability in the present case of the Vienna Convention of 1969 on the Law of Treaties, as argued
by the Parties. It needs only to be mindful of the fact that it has several times had occasion to hold
that some of the rules laid down in that Convention might be considered as a codification of existing
customary law. The Court takes the view that in many respects this applies to the provisions of the
Vienna Convention concerning the termination and the suspension of the operation of treaties, set
forth in Articles 60 to 62. Neither has the Court lost sight of the fact that the Vienna Convention is in
any event applicable to the Protocol of 6 February 1989 whereby Hungary and Czechoslovakia
agreed to accelerate completion of the works relating to the Gabcikovo-Nagymaros Project.
Nor does the Court need to dwell upon the question of the relationship between the law of treaties
and the law of State responsibility, to which the Parties devoted lengthy arguments, as those two
branches of international law obviously have a scope that is distinct. A determination of whether a
convention is or is not in force, and whether it has or has not been properly suspended or
denounced, is to be made pursuant to the law of treaties.
On the other hand, an evaluation of the extent to which the suspension or denunciation of a
convention, seen as incompatible with the law of treaties, involves the responsibility of the State
which proceeded to it, is to be made under the law of State responsibility.
The Court cannot accept Hungary's argument to the effect that, in 1989, in suspending and
subsequently abandoning the works for which it was still responsible at Nagymaros and at Dunakiliti,
it did not suspend the application of the 1977 Treaty itself or then reject that Treaty. The conduct of
Hungary at that time can only be interpreted as an expression of its unwillingness to comply with at
least some of the provisions of the Treaty and the Protocol of 6 February 1989, as specified in the
Joint Contractual Plan. The effect of Hungary's conduct was to render impossible the
accomplishment of the system of works that the Treaty expressly described as "single and
indivisible".

The Court then considers the question of whether there was, in 1989, a state of necessity which
would have permitted Hungary, without incurring international responsibility, to suspend and
abandon works that it was committed to perform in accordance with the 1977 Treaty and related
instruments.
The Court observes, first of all, that the state of necessity is a ground recognized by customary
international law for precluding the wrongfulness of an act not in conformity with an international
obligation. It considers moreover that such ground for precluding wrongfulness can only be accepted
on an exceptional basis. The following basic conditions set forth in Article 33 of the Draft Article on
the International Responsibility of States by the International Law Commission are relevant in the
present case: it must have been occasioned by an "essential interest" of the State which is the
author of the act conflicting with one of its international obligations; that interest must have been
threatened by a "grave and imminent peril"; the act being challenged must have been the "only
means" of safeguarding that interest; that act must not have "seriously impair[ed] an essential
interest" of the State towards which the obligation existed; and the State which is the author of that
act must not have "contributed to the occurrence of the state of necessity". Those conditions reflect
customary international law.
The Court has no difficulty in acknowledging that the concerns expressed by Hungary for its natural
environment in the region affected by the Gabckovo-Nagymaros Project related to an "essential
interest" of that State.
It is of the view, however, that, with respect to both Nagymaros and Gabcikovo, the perils invoked by
Hungary, without prejudging their possible gravity, were not sufficiently established in 1989, nor were
they "imminent"; and that Hungary had available to it at that time means of responding to these
perceived perils other than the suspension and abandonment of works with which it had been
entrusted. What is more, negotiations were under way which might have led to a review of the
Project and the extension of some of its time-limits, without there being need to abandon it.
The Court further notes that Hungary when it decided to conclude the 1977 Treaty, was presumably
aware of the situation as then known; and that the need to ensure the protection of the environment
had not escaped the parties. Neither can it fail to note the positions taken by Hungary after the entry
into force of the 1977 Treaty. Slowly, speeded up. The Court infers that, in the present case, even if it
had been established that there was, in 1989, a state of necessity linked to the performance of the
1977 Treaty, Hungary would not have been permitted to rely upon that state of necessity in order to
justify its failure to comply with its treaty obligations, as it had helped, by act or omission to bring it
about.
In the light of the conclusions reached above, the Court finds that Hungary was not entitled to
suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part
of the Gabcikovo Project for which the 1977 Treaty and related instruments attributed responsibility
to it.
Czechoslovakia's proceeding, in November 1991, to "Variant C" and putting into
operation, from October 1992, this Variant (paras. 60-88)
By the terms of Article 2, paragraph 1 (b), of the Special Agreement, the Court is asked in the
second place to decide
"(b)whether the Czech and Slovak Federal Republic was entitled to proceed, in November 1991, to
the 'provisional solution' and to put into operation from October 1992 this system".

Czechoslovakia had maintained that proceeding to Variant C and putting it into operation did not
constitute internationally wrongful acts; Slovakia adopted this argument. During the proceedings
before the Court Slovakia contended that Hungary's decision to suspend and subsequently abandon
the construction of works at Dunakiliti had made it impossible for Czechoslovakia to carry out the
works as initially contemplated by the 1977 Treaty and that the latter was therefore entitled to
proceed with a solution which was as close to the original Project as possible. Slovakia invoked what
it described as a "principle of approximate application" to justify the construction and operation of
Variant c. It explained that this was the only possibility remaining to it "of fulfilling not only the
purposes of the 1977 Treaty, but the continuing obligation to implement it in good faith".
The Court observes that it is not necessary to determine whether there is a principle of international
law or a general principle of law of "approximate application" because, even if such a principle
existed, it could by definition only be employed within the limits of the treaty in question. In the view
of the Court, Variant C does not meet that cardinal condition with regard to the 1977 Treaty.
As the Court has already observed, the basic characteristic of the 1977 Treaty is, according to Article
1, to provide for the construction of the Gabcikovo-Nagymaros System of Locks as a joint
investment constituting a single and indivisible operational system of works. This element is equally
reflected in Articles 8 and 10 of the Treaty providing for joint ownership of the most important works
of the Gabcikovo-Nagymaros project and for the operation of this joint property as a co-ordinated
single unit. By definition all this could not be carried out by unilateral action. In spite of having a
certain external physical similarity with the original Project, Variant C thus differed sharply from it in
its legal characteristics. The Court accordingly concludes that Czechoslovakia, in putting Variant C
into operation, was not applying the 1977 Treaty but, on the contrary, violated certain of its express
provisions, and, in so doing, committed an internationally wrongful act.
The Court notes that between November 1991 and October 1992, Czechoslovakia confined itself to
the execution, on its own territory, of the works which were necessary for the implementation of
Variant C, but which could have been abandoned if an agreement had been reached between the
parties and did not therefore predetermine the final decision to be taken. For as long as the Danube
had not been unilaterally dammed, Variant C had not in fact been applied. Such a situation is not
unusual in international law or, for that matter, in domestic law. A wrongful act or offence is frequently
preceded by preparatory actions which are not to be confused with the act or offence itself. It is as
well to distinguish between the actual commission of a wrongful act (whether instantaneous or
continuous) and the conduct prior to that act which is of a preparatory character and which "does not
qualify as a wrongful act".
Slovakia also maintained that it was acting under a duty to mitigate damages when it carried out
Variant c. It stated that "It is a general principle of international law that a party injured by the nonperformance of another contract party must seek to mitigate the damage he has sustained." But the
Court observes that, while this principle might thus provide a basis for the calculation of damages, it
could not, on the other hand, justify an otherwise wrongful act. The Court further considers that the
diversion of the Danube carried out by Czechoslovakia was not a lawful countermeasure because it
was not proportionate.
In the light of the conclusions reached above, the Court finds that Czechoslovakia was entitled to
proceed, in November 1991, to Variant C in so far as it then confined itself to undertaking works
which did not predetermine the final decision to be taken by it. On the other hand, Czechoslovakia
was not entitled to put that Variant into operation from October 1992.
Notification by Hungary, on 19 May 1992, of the termination of the 1977 Treaty and related
instruments (paras. 89-115)

By the terms of Article 2, paragraph 1 (c), of the Special Agreement, the Court is asked, thirdly, to
determine
"what are the legal effects of the notification, on 19 May 1992, of the termination of the Treaty by the
Republic of Hungary".
During the proceedings, Hungary presented five arguments in support of the lawfulness, and thus
the effectiveness, of its notification of termination. These were the existence of a state of necessity;
the impossibility of performance of the Treaty; the occurrence of a fundamental change of
circumstances; the material breach of the Treaty by Czechoslovakia; and, finally, the development of
new norms of international environmental law. Slovakia contested each of these grounds.
1. State of necessity
The Court observes that, even if a state of necessity is found to exist, it is not a ground for the
termination of a treaty. It may only be invoked to exonerate from its responsibility a State which has
failed to implement a treaty.
2. Impossibility of performance
The Court finds that it is not necessary to determine whether the term "object" in Article 61 of the
Vienna Convention of 1969 on the Law of Treaties (which speaks of "permanent disappearance or
destruction of an object indispensable for the execution of the treaty" as a ground for terminating or
withdrawing from it) can also be understood to embrace a legal regime (i.e. favorable
socio/economic/political climate) as in any event, even if that were the case, it would have to
conclude that in this instance that regime had not definitively ceased to exist. The 1977 Treaty and
in particular its Articles 15, 19 and 20 actually made available to the parties the necessary means to
proceed at any time, by negotiation, to the required readjustments between economic imperatives
and ecological imperatives.
3. Fundamental change of circumstances
In the Court's view, the prevalent political conditions were not so closely linked to the object and
purpose of the Treaty that they constituted an essential basis of the consent of the parties and, in
changing, radically altered the extent of the obligations still to be performed. The same holds good
for the economic system in force at the time of the conclusion of the 1977 Treaty. Nor does the Court
consider that new developments in the state of environmental knowledge and of environmental law
can be said to have been completely unforeseen. What is more, the formulation of Articles 15, 19
and 20 is designed to accommodate change. The changed circumstances advanced by Hungary are
thus, in the Court's view, not of such a nature, either individually or collectively, that their effect would
radically transform the extent of the obligations still to be performed in order to accomplish the
Project.
(Change of political climate did not necessarily affect the object and purpose of the
treaty. Moreover, treaty provisions provide for adjustments in case of change of
circumstance)
4. Material breach of the Treaty
Hungary's main argument for invoking a material breach of the Treaty was the construction and
putting into operation of Variant c. The Court pointed out that it had already found that
Czechoslovakia violated the Treaty only when it diverted the waters of the Danube into the bypass
canal in October 1992.
In constructing the works which would lead to the putting into operation of Variant C, Czechoslovakia
did not act unlawfully. In the Court's view, therefore, the notification of termination by Hungary on 19
May 1992 was premature. No breach of the Treaty by Czechoslovakia had yet taken place and

consequently Hungary was not entitled to invoke any such breach of the Treaty as a ground for
terminating it when it did.
(When Slovakia was still constructing Variant C, there was still no breach because it the Danube was
not yet affected. Hungary acted prematurely. Only when it made it operational did the breach occur.)
5. Development of new norms of international environmental law
The Court notes that neither of the Parties contended that new peremptory norms of environmental
law had emerged since the conclusion of the 1977 Treaty; and the Court will consequently not be
required to examine the scope of Article 64 of the Vienna Convention on the Law of Treaties (which
treats of the voidance and termination of a treaty because of the emergence of a new peremptory
norm of general international law (jus cogens)). On the other hand, the Court wishes to point out that
newly developed norms of environmental law are relevant for the implementation of the Treaty and
that the parties could, by agreement, incorporate them through the application of Articles 15, 19 and
20 of the Treaty. These articles do not contain specific obligations of performance but require the
parties, in carrying out their obligations to ensure that the quality of water in the Danube is not
impaired and that nature is protected, to take new environmental norms into consideration when
agreeing upon the means to be specified in the Joint Contractual Plan. By inserting these evolving
provisions in the Treaty, the parties recognized the potential necessity to adapt the Project.
Consequently, the Treaty is not static, and is open to adapt to emerging norms of international law.
By means of Articles 15 and 19, new environmental norms can be incorporated in the Joint
Contractual Plan. The awareness of the vulnerability of the environment and the recognition that
environmental risks have to be assessed on a continuous basis have become much stronger in the
years since the Treaty's conclusion. These new concerns have enhanced the relevance of Articles
15, 19 and 20. The Court recognizes that both Parties agree on the need to take environmental
concerns seriously and to take the required precautionary measures, but they fundamentally
disagree on the consequences this has for the joint Project. In such a case, third-party involvement
may be helpful and instrumental in finding a solution, provided each of the Parties is flexible in its
position.
Finally, the Court is of the view that although it has found that both Hungary and Czechoslovakia
failed to comply with their obligations under the 1977 Treaty, this reciprocal wrongful conduct
did not bring the Treaty to an end nor justify its termination.
In the light of the conclusions it has reached above, the Court finds that the notification of termination
by Hungary of 19 May 1992 did not have the legal effect of terminating the 1977 Treaty and related
instruments.
Dissolution of Czechoslovakia (paras. 117-124)
The Court then turns to the question whether Slovakia became a party to the 1977 Treaty as
successor to Czechoslovakia. As an alternative argument, Hungary contended that, even if the
Treaty survived the notification of termination, in any event it ceased to be in force as a treaty on 31
December 1992, as a result of the "disappearance of one of the parties" On that date
Czechoslovakia ceased to exist as a legal entity, and on 1 January 1993 the Czech Republic and the
Slovak Republic came into existence.
The Court does not find it necessary for the purposes of the present case to enter into a discussion
of whether or not Article 34 of the 1978 Vienna Convention on Succession of States in respect of
treaties (in which a rule of automatic succession to all treaties is provided for) reflects the state of
customary international law. More relevant to its present analysis is the particular nature and
character of the 1977 Treaty. An examination of this Treaty confirms that, aside from its undoubted
nature as a joint investment, its major elements were the proposed construction and joint operation
of a large, integrated and indivisible complex of structures and installations on specific parts of the
respective territories of Hungary and Czechoslovakia along the Danube. The Treaty also established

the navigational regime for an important sector of an international waterway, in particular the
relocation of the main international shipping lane to the bypass canal. In so doing, it inescapably
created a situation in which the interests of other users of the Danube were affected. Furthermore,
the interests of third States were expressly acknowledged in Article 18, whereby the parties
undertook to ensure "uninterrupted and safe navigation on the international fairway" in accordance
with their obligations under the Convention of 18 August 1948 concerning the Regime of Navigation
on the Danube.
The Court then refers to Article 12 of the 1978 Vienna Convention on Succession of States in
respect of Treaties, which reflects the principle that treaties of a territorial character have been
regarded both in traditional doctrine and in modern opinion as unaffected by a succession of States.
The Court considers that Article 12 reflects a rule of customary international law; and notes that
neither of the Parties disputed this. It concludes that the content of the 1977 Treaty indicates that it
must be regarded as establishing a territorial regime within the meaning of Article 12 of 1978 Vienna
Convention. It created rights and obligations "attaching to" the parts of the Danube to which it
relates; thus the Treaty itself could not be affected by a succession of States. The Court therefore
concludes that the 1977 Treaty became binding upon Slovakia on 1 January 1993.
Legal consequences of the Judgment (paras. 125-154)
The Court observes that the part of its Judgment which answers the questions in Article 2, paragraph
1, of the Special Agreement has a declaratory character. It deals with the past conduct of the Parties
and determines the lawfulness or unlawfulness of that conduct between 1989 and 1992 as well as its
effects on the existence of the Treaty. Now the Court has, on the basis of the foregoing findings, to
determine what the future conduct of the Parties should be. This part of the Judgment is prescriptive
rather than declaratory because it determines what the rights and obligations of the Parties are. The
Parties will have to seek agreement on the modalities of the execution of the Judgment in the light of
this determination, as they agreed to do in Article 5 of the Special Agreement.
In this regard it is of cardinal importance that the Court has found that the 1977 Treaty is still in force
and consequently governs the relationship between the Parties. That relationship is also determined
by the rules of other relevant conventions to which the two States are party, by the rules of general
international law and, in this particular case, by the rules of State responsibility; but it is governed,
above all, by the applicable rules of the 1977 Treaty as a lex specialis. The Court observes that it
cannot, however, disregard the fact that the Treaty has not been fully implemented by either party for
years, and indeed that their acts of commission and omission have contributed to creating the
factual situation that now exists. Nor can it overlook that factual situation or the practical
possibilities and impossibilities to which it gives rise when deciding on the legal requirements for
the future conduct of the Parties. What is essential, therefore, is that the factual situation as it has
developed since 1989 shall be placed within the context of the preserved and developing treaty
relationship, in order to achieve its object and purpose in so far as that is feasible. For it is only then
that the irregular state of affairs which exists as the result of the failure of both Parties to comply with
their treaty obligations can be remedied.
The Court points out that the 1977 Treaty is not only a joint investment project for the production of
energy, but it was designed to serve other objectives as well: the improvement of the navigability of
the Danube, flood control and regulation of ice-discharge, and the protection of the natural
environment. In order to achieve these objectives the parties accepted obligations of conduct,
obligations of performance, and obligations of result. The Court is of the opinion that the Parties are
under a legal obligation, during the negotiations to be held by virtue of Article 5 of the Special
Agreement, to consider, within the context of the 1977 Treaty, in what way the multiple objectives of
the Treaty can best be served, keeping in mind that all of them should be fulfilled.

It is clear that the Project's impact upon, and its implications for, the environment are of necessity a
key issue. In order to evaluate the environmental risks, current standards must be taken into
consideration. This is not only allowed by the wording of Articles 15 and 19, but even prescribed, to
the extent that these articles impose a continuing and thus necessarily evolving oblihgation on
the parties to maintain the quality of the water of the Danube and to protect nature. The Court is
mindful that, in the field of environmental protection, vigilance and prevention are required on
account of the often irreversible character of damage to the environment and of the limitations
inherent in the very mechanism of reparation of this type of damage. New norms and standards
have been developed, set forth in a great number of instruments during the last two decades. Such
new norms have to be taken into consideration, and such new standards given proper weight, not
only when States contemplate new activities but also when continuing with activities begun in the
past. For the purposes of the present case, this means that the Parties together should look afresh
at the effects on the environment of the operation of the Gabckovo power plant. In particular they
must find a satisfactory solution for the volume of water to be released into the old bed of the
Danube and into the side-arms on both sides of the river.
What is required in the present case by the rule pacta sunt servanda, as reflected in Article 26 of the
Vienna Convention of 1969 on the Law of Treaties, is that the Parties find an agreed solution within
the co-operative context of the Treaty. Article 26 combines two elements, which are of equal
importance. It provides that "Every treaty in force is binding upon the parties to it and must be
performed by them in good faith". This latter element, in the Court's view, implies that, in this case, it
is the purpose of the Treaty, and the intentions of the parties in concluding it, which should prevail
over its literal application. The principle of good faith obliges the Parties to apply it in a reasonable
way and in such a manner that its purpose can be realized.
The 1977 Treaty not only contains a joint investment programme, it also establishes a rgime.
According to the Treaty, the main structures of the System of Locks are the joint property of the
Parties; their operation will take the form of a co-ordinated single unit; and the benefits of the project
shall be equally shared. Since the Court has found that the Treaty is still in force and that, under its
terms, the joint rgime is a basic element, it considers that, unless the Parties agree otherwise,
such a rgime should be restored. The Court is of the opinion that the works at Cunovo should
become a jointly operated unit within the meaning of Article 10, paragraph 1, in view of their pivotal
role in the operation of what remains of the Project and for the water-management r gime. The
dam at Cunovo has taken over the role which was originally destined for the works at Dunakiliti, and
therefore should have a similar status. The Court also concludes that Variant C, which it considers
operates in a manner incompatible with the Treaty, should be made to conform to it. It observes that
re-establishment of the joint rgime will also reflect in an optimal way the concept of common
utilization of shared water resources for the achievement of the several objectives mentioned in the
Treaty.
Having thus far indicated what in its view should be the effects of its finding that the 1977 Treaty is
still in force, the Court turns to the legal consequences of the internationally wrongful acts committed
by the Parties, as it had also been asked by both Parties to determine the consequences of the
Judgment as they bear upon payment of damages.
The Court has not been asked at this stage to determine the quantum of damages due, but to
indicate on what basis they should be paid. Both Parties claimed to have suffered considerable
financial losses and both claim pecuniary compensation for them.
In the Judgment, the Court has concluded that both Parties committed internationally wrongful acts,
and it has noted that those acts gave rise to the damage sustained by the Parties; consequently,
Hungary and Slovakia are both under an obligation to pay compensation and are both entitled to
obtain compensation. The Court observes, however, that given the fact, that there have been

intersecting wrongs by both Parties, the issue of compensation could satisfactorily be resolved in the
framework of an overall settlement if each of the Parties were to renounce or cancel all financial
claims and counter-claims. At the same time, the Court wishes to point out that the settlement of
accounts for the construction of the works is different from the issue of compensation, and must be
resolved in accordance with the 1977 Treaty and related instruments. If Hungary is to share in the
operation and benefits of the Cunovo complex, it must pay a proportionate share of the building and
running costs.
The operative paragraphs reads as follows:
"155. For these reasons,
THE COURT,
(1) Having regard to Article 2, paragraph 1, of the Special Agreement,
A. Finds, by fourteen votes to one, that Hungary was not entitled to suspend and subsequently
abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabckovo Project
for which the Treaty of 16 September 1977 and related instruments attributed responsibility to it;
B. Finds, by nine votes to six, that Czechoslovakia was entitled to proceed, in November 1991, to
the "provisional solution" as described in the terms of the Special Agreement;
C. Finds, by ten votes to five, that Czechoslovakia was not entitled to put into operation, from
October 1992, this "provisional solution";
D. Finds, by eleven votes to four, that the notification, on 19 May 1992, of the termination of the
Treaty of 16 September 1977 and related instruments by Hungary did not have the legal effect of
terminating them;
(2) Having regard to Article 2, paragraph 2, and Article 5 of the Special Agreement,
A. Finds, by twelve votes to three, that Slovakia, as successor to Czechoslovakia, became a party to
the Treaty of 16 September 1977 as from 1 January 1993;
B. Finds, by thirteen votes to two, that Hungary and Slovakia must negotiate in good faith in the light
of the prevailing situation, and must take all necessary measures to ensure the achievement of the
objectives of the Treaty of 16 September 1977, in accordance with such modalities as they may
agree upon;
C. Finds, by thirteen votes to two, that, unless the Parties otherwise agree, a joint operational
rgime must be established in accordance with the Treaty of 16 September 1977;
D. Finds, by twelve votes to three, that, unless the Parties otherwise agree, Hungary shall
compensate Slovakia for the damage sustained by Czechoslovakia and by Slovakia on account of
the suspension and abandonment by Hungary of works for which it was responsible; and Slovakia
shall compensate Hungary for the damage it has sustained on account of the putting into operation
of the "provisional solution" by Czechoslovakia and its maintenance in service by Slovakia;
E. Finds, by thirteen votes to two, that the settlement of accounts for the construction and operation
of the works must be effected in accordance with the relevant provisions of the Treaty of 16
September 1977 and related instruments, taking due account of such measures as will have been
taken by the Parties in application of points 2 B and C of the present operative paragraph.
Tanada v. Angara

Facts :
This is a petition seeking to nullify the Philippine ratification of the World Trade Organization (WTO)
Agreement. Petitioners question the concurrence of herein respondents acting in their capacities as
Senators via signing the said agreement.
The WTO opens access to foreign markets, especially its major trading partners, through the reduction
of tariffs on its exports, particularly agricultural and industrial products. Thus, provides new
opportunities for the service sector cost and uncertainty associated with exporting and more
investment in the country. These are the predicted benefits as reflected in the agreement and as
viewed by the signatory Senators, a free market espoused by WTO.
Petitioners on the other hand viewed the WTO agreement as one that limits, restricts and impair
Philippine economic sovereignty and legislative power. That the Filipino First policy of the
Constitution was taken for granted as it gives foreign trading intervention.
Issue : Whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Senate in giving its concurrence of the said WTO agreement.
Held:
In its Declaration of Principles and state policies, the Constitution adopts the generally accepted
principles of international law as part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity , with all nations. By the doctrine of incorporation,
the country is bound by generally accepted principles of international law, which are considered
automatically part of our own laws. Pacta sunt servanda international agreements must be performed
in good faith. A treaty is not a mere moral obligation but creates a legally binding obligation on the
parties.
Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute because
it is a regulation of commercial relations among nations. Such as when Philippines joined the United
Nations (UN) it consented to restrict its sovereignty right under the concept of sovereignty as
autolimitation. What Senate did was a valid exercise of authority. As to determine whether such
exercise is wise, beneficial or viable is outside the realm of judicial inquiry and review. The act of
signing the said agreement is not a legislative restriction as WTO allows withdrawal of membership
should this be the political desire of a member. Also, it should not be viewed as a limitation of
economic sovereignty. WTO remains as the only viable structure for multilateral trading and the
veritable forum for the development of international trade law. Its alternative is isolation, stagnation if
not economic self-destruction. Thus, the people be allowed, through their duly elected officers, make
their free choice.

Pimentel v. Romulo

Facts:
1. The petitioners filed a petition for mandamus to compel the Office of the Executive
Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome
Statute of the International Criminal Court to the Senate of the Philippinesfor its
concurrence pursuant to Sec. 21, Art VII of the 1987 Constitution.
2. The Rome Statute established the Int'l Criminal Court which will have jurisdiction over
the most serious crimes as genocide, crimes against humanity, war crimes and crimes of
aggression as defined by the Statute. The Philippines through the Chargie du Affairs in UN.
The provisions of the Statute however require that it be subject to ratification, acceptance or
approval of the signatory state.

3. Petitioners contend that ratification of a treaty, under both domestic and international law,
is a function of the Senate, hence it is the duty of the Executive Department to transmit the
signed copy to the senate to allow it to exercise its discretion.
Issue: Whether or not the Exec. Secretary and the DFA have the ministerial duty to
transmit to the Senate the copy of the Rome Statute signed by a member of the
Philippine mission to the U.N. even without the signature of the President.
The Supreme Court held NO.
1. The President as the head of state is the sole organ and authorized in the external relations
and he is also the country's sole representative with foreign nations, He is the mouthpiece
with respect to the country's foreign affairs.
2. In treaty-making, the President has the sole authority to negotiate with other states and
enter into treaties but this power is limited by the Constitution with the 2/3 required vote of
all the members of the Senate for the treaty to be valid. (Sec. 21, Art VII).
3. The legislative branch part is essential to provide a check on the executive in the field of
foreign relations, to ensure the nation's pursuit of political maturity and growth.

La Chemise Lacoste vs. Fernandez

Facts:
Petitioner La Chemise Lacoste is a foreign corporation and the actual owner of the trademarks
Lacoste, Chemise Lacoste, and Crocodile Device used on clothing and other goods that are sold
in many parts of the world. Herein respondent Hemadas & Co., a domestic firm, applied and was
granted registration of the mark Chemise Lacoste and Crocodile Device for its garment products.
Sometime later, petitioner applied for the registration of its mark Crocodile Device and Lacoste but
was opposed by herein respondent. Later, petitioner filed a letter-complaint of unfair competition
before the NBI which led to the issuance of search warrants and the seizure of goods of respondent
Hemadas. Respondent moved to quash the warrants alleging that its trademark was different from
petitioners trademark. Respondent court ruled to set aside the warrants and to return the seized
goods.
Issue: Whether or not petitioners trademark is a well-known mark protected under the Paris
Convention.
Ruling: YES.
In upholding the right of the petitioner to maintain the present suit before our courts for unfair
competition or infringement of trademarks of a foreign corporation, we are moreover recognizing our
duties and the rights of foreign states under the Paris Convention for the Protection of Industrial
Property to which the Philippines and France are parties.

Pursuant to this obligation, the Ministry of Trade issued a memorandum addressed to the Director of
the Patents Office directing the latter to reject all pending applications for Philippine registration of
signature and other world famous trademarks by applicants other than its original owners or users.
The conflicting claims over internationally known trademarks involve such name brands as Lacoste,
et. al. It is further directed that, in cases where warranted, Philippine registrants of such trademarks
should be asked to surrender their certificates of registration, if any, to avoid suits for damages and
other legal action by the trademarks foreign or local owners or original users.
The Intermediate Appellate Court, in the La Chemise Lacoste S.A. v. Sadhwani decision which we
cite with approval sustained the power of the Minister of Trade to issue the implementing
memorandum and declared La Chemise Lacoste S.A. the owner of the disputed trademark, stating:
In the case at bar, the Minister of Trade, as the competent authority of the country of registration,
has found that among other well-known trademarks Lacoste is the subject of conflicting claims. For
this reason, applications for its registration must be rejected or refused, pursuant to the treaty
obligation of the Philippines.
Bayan vs. Executive Secretary
I.

THE FACTS

The Republic of the Philippines and the United States of America entered into an agreement
called the Visiting Forces Agreement (VFA). The agreement was treated as a treaty by the Philippine
government and was ratified by then-President Joseph Estrada with the concurrence of 2/3 of the
total membership of the Philippine Senate.
The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It
provides for the guidelines to govern such visits, and further defines the rights of the U.S. and the
Philippine governments in the matter of criminal jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment, materials and supplies.
Petitioners argued, inter alia, that the VFA violates 25, Article XVIII of the 1987 Constitution,
which provides that foreign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate . . . and recognized as a treaty by the other
contracting State.
II.

THE ISSUE
Was the VFA unconstitutional?

III. THE RULING

[The Court DISMISSED the consolidated petitions, held that the petitioners did not commit
grave abuse of discretion, and sustained the constitutionality of the VFA.]
NO, the VFA is not unconstitutional.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country,
unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty
must be duly concurred in by the Senate and, when so required by congress, ratified by a majority
of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the
other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions
of the Constitution . . . the provision in [in 25, Article XVIII] requiring ratification by a majority of the
votes cast in a national referendum being unnecessary since Congress has not required it.
xxx

xxx

xxx

This Court is of the firm view that the phrase recognized as a treaty means that the other
contracting party accepts or acknowledges the agreement as a treaty. To require the other
contracting state, the United States of America in this case, to submit the VFA to the United States
Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their
ordinary meaning except where technical terms are employed, in which case the significance thus
attached to them prevails. Its language should be understood in the sense they have in common
use.
Moreover, it is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a treaty. To be
sure, as long as the VFA possesses the elements of an agreement under international law, the said
agreement is to be taken equally as a treaty.
xxx

xxx

xxx

The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up to the terms
of the VFA. For as long as the United States of America accepts or acknowledges the VFA as a
treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution.
USAFFE Veterans Assoc vs. Treasurer
FACTS:
Romulo-Snyder Agreement (1950): RP Govt undertook to return to the US Govt in 10 annual
installments, a total of about $35M advanced by the US to, but unexpended by, the Natl Defense
Forces of the RP.
Oct 1954: The Usaffe Veterans Associations Inc prayed in its complaint before the CFI that said
Agreement be annulled; that payments thereunder be declared illegal; & that defendants as officers
of RP be restrained from disbursing any funds in the Natl Treasury in pursuance of said Agreement.
Usaffe Veterans further asked that the moneys available, instead of being remitted to the US,
should be turned over to the Finance Service of the AFP for the payment of all pending claims of the
veterans represented by plaintiff.
3 PROPOSITIONS OF PLAINTIFF IN COMPLAINT: 1) that the funds to be returned under the
Agreement were funds appropriated by the US Congress for the RP Army, actually delivered to the
RP Govt & actually owned by the said Government; 2) that U.S Secretary Snyder of the Treasury,
had no authority to retake such funds from the RP Govt; 3) The RP Foreign Secretary Carlos P.
Romulo had no authority to return or promise to return the aforesaid sums of money through the
Agreement.
The court eventually upheld the validity of the Agreement. Plaintiff appealed.

 July 26, 1941: Foreseeing the War in the Pacific, Pres Roosevelt, called into the service of the US
Armed Forces, for the duration of the emergency, all organized mil forces of the Commonwealth.
(His order was published here by Proc No 740 of Pres Quezon on Aug 10, 1941)
October 1941: By 2 special orders, MacArthur, Commanding Gen of USAFFE, placed under his
command all the RP Army units including Phil Constabulary.
Thus, US Congress provided in its Appropriation Act of Dec 17, 1941 (Public Law No. 353): For all
expenses necessary for the mobilization, operation & maintenance of the RP Army, including
expenses connected w/ calling into the service RP mil forces$269,000.00; to remain available til
June 30, 1943, w/c shall be available for payment to the Commonwealth upon its written request,
either in advance of or in reimbursement for all or any part of the estimated or actual costs, as
authorized by the USAFFE Commanding Gen, of the necessary expenses for the purposes
aforesaid.
Pursuant to the power reserved to him under Public Law 353, Roosevelt issued EO 9011: 2(a)
Necessary expenditures from funds in the Phil Treasury for the purposes authorized by Public Law
353, will be made by disbursing officers of the RP Army on the approval of authority of the
Commandign General, USAFFE, & such purposes as he may deem proper
P570,863,000.00 was transferred directly to the AFP by means of vouchers w/c stated Advance of
Funds under Public Law 353 & EO 9011 This was used mostly to discharge in RP the monetary
obligations assumed by the US as a result of the induction of the AFP into the US Army, & its
operations beginning in 1941.
There remained unexpended & uncommitted $35M in the possession of the AFP as of Dec 31,
1949. Because the RP Govt then badly needed funds, Pres Quirino, through CB Gov Cuaderno,
proposed to US officials the retention of the $35M as a loan, & for its repayment in 10 annual
installments. This was the Romulo-Snyder Agreement, signed in Washington on Nov 6, 1950 by
RP Foreign Affairs Sec Romulo, & US Sec of Treasury, John Snyder.
PRESENT ACTION: Usaffes arguments 1) the money delivered by the US to the AFP were
straight payments for mil services; ownership thus vested in RP Govt upon delivery, & consequently,
there was nothing to return, nothing to consider as a loan; 2) the Agreement was void bec there was
no loan to be repaid & bec it was not binding on the RP Govt for lack of authority of the officers who
concluded it.
ISSUES
Basic issue: Validity of the Romulo-Snyder Agreement Court cant pass judgment
1. WON there is obligation to repay - YES
2. WON the officers who promised to repay had authority to bind this Govt YES
RATIO:
1. YES
Note that the $269M appropriated in Public Law 353 (see 8th bullet) expressly said that the money
is to be handed to the RP Govt either in advance of or in reimbursement thereof.
In any system of accounting, advances of funds for expenditures contemplate disbursements to be
reported, & credited if approved, against such advances, the unexpended sums to be returned later.
Congressional law itself required accounting in the manner prescribed by US Pres - & said Pres in
EO 9011, outlined the procedure whereby advanced funds shall be accounted for.
It also requires as a condition sine qua non that all expenditures shall first be approved by the
USAFFE Commanding Gen.
These ideas of funds advanced to meet expenditures of the Phil Army as may be approved by the
USAFFE Comm-Gen, in connection w/ the accounting requirement, evidently contradict appellants

thesis that the moneys represented straight payments to RP Govt for its armed services, & passed
into the absolute control of such Govt
Instead of returning such amount into one lump sum, our Exec Dept arranged for its repayment in
10 annual installments. Prima facie such arrangement should raise no valid objection, given the
obligation to return.
2. YES (They have authority to bind Govt even w/o Senate concurrence)
There is no doubt Pres Quirino approved the negotiations. And he had the power to contract
budgetary loans under RA 213, amending RA 16.
The most impt argument, however, rests on the lack of ratification of the Agreement by RP Senate
to make it binding on the Govt.
The ff explanation of the defendant was considered persuasive by the Court
The agreement is not a treaty as that term is used in CONSTI. However, a treaty is not the only
form that an intl agreement may assume. For the grant of treaty making power to the Executive &
the Senate does not exhaust the power of the govt over intl relations.
Executive agreements may be entered into w/ other states & are effective even w/o concurrence
of Senate.
In intl law, theres no difference betn treaties & executive agreements in their binding effect upon
states concerned as long as the negotiating functionaries have remained w/n their powers.
The distinction between executive agreements & treaties is purely a constitutional one & has not
intl legal significance.
Altman v. US: An intl compact negotiated between the reps of 2 sovereign nations & made in the
name or behalf of the contracting parties & dealing w/ important commercial relations between the 2
countries, is a treaty both internationally although as an executive agreement it is not technically a
treaty requiring the advice & consent of the Senate
2 classes of Executive Agreements: 1) agreements made purely as executive acts affecting
external relations & independent of or w/o legislative authorization, w/c may be termed as
presidential agreements; 2) agreements entered into in pursuance of acts of Cong, w/c have been
designated as Congressional-Executive Agreements
The Romulo-Snyder Agreement may fall under any of these 2 classes for on Sept 18, 1946, RP
Congress authorized the RP Pres to obtain such loans or incur such indebtedness w/ the US.
Even granting theres no legal authorization, the Agreement was legally & validly entered into to
conform to the 1st category, namely, as agreements entered into purely as executive acts w/o legal
authorization, which usually includes money agreements.
The Agreement was not submitted to the US Senate either. But the Phil Senates Resolution No. 15
practically admits the validity & binding force of such Agreement.
Further, the acts of Congress appropriating funds for the yearly installments necessary to comply
w/ such Agreement constitute a ratification thereof, W/C PLACES THE QUESTION OF VALIDITY
OUT OF THE COURTS REACH, NO CONSTITUTIONAL PRINCIPLE HAVING BEEN INVOKED TO
RESTRICT CONGRESS PLENARY POWER TO APPROPRIATE FUNDS LOAN OR NO LOAN.
HELD: Plaintiff failed to make a clear case for the relief demanded. Petition DENIED.

FACTS:
Having a key determinative bearing on this case is the Rome Statute establishing
the International Criminal Court (ICC) with the power to exercise its jurisdiction over
persons for the most serious crimes of international concern and shall be
complementary to the national criminal jurisdictions. The serious crimes adverted to
cover those considered grave under international law, such as genocide, crimes
against humanity, war crimes, and crimes of aggression.

On December 28, 2000, the RP, through Charge d'Affaires Enrique A. Manalo,
signed the Rome Statute which, by its terms, is subject to ratification, acceptance or
approval by the signatory states. As of the filing of the instant petition, only 92 out of
the 139 signatory countries appear to have completed the ratification, approval and
concurrence process. The Philippines is not among the 92.
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note
No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the nonsurrender bilateral agreement (Agreement, hereinafter) between the USA and the
RP.
Via Exchange of Notes No. BFO-028-03 dated May 13, 2003 (E/N BFO-028-03,
hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and
accepted the US proposals embodied under the US Embassy Note adverted to and
put in effect the Agreement with the US government. In essence, the Agreement
aims to protect what it refers to and defines as persons of the RP and US from
frivolous and harassment suits that might be brought against them in international
tribunals.[8]It is reflective of the increasing pace of the strategic security and defense
partnership between the two countries. As of May 2, 2003, similar bilateral
agreements have been effected by and between the US and 33 other countries.
In response to a query of then Solicitor General Alfredo L. Benipayo on the status of
the non-surrender agreement, Ambassador Ricciardone replied in his letter of
October 28, 2003 that the exchange of diplomatic notes constituted a legally binding
agreement under international law; and that, under US law, the said agreement did
not require the advice and consent of the US Senate.
In this proceeding, petitioner imputes grave abuse of discretion to respondents in
concluding and ratifying the Agreement and prays that it be struck down as
unconstitutional, or at least declared as without force and effect.
For their part, respondents question petitioners standing to maintain a suit and
counter that the Agreement, being in the nature of an executive agreement, does not
require Senate concurrence for its efficacy. And for reasons detailed in their
comment, respondents assert the constitutionality of the Agreement.
ISSUES:
1) whether or not the Agreement was contracted validly, which resolves itself into
the question of whether or not respondents gravely abused their discretion in
concluding it; and
2) whether or not the Agreement, which has not been submitted to the Senate for
concurrence, contravenes and undermines the Rome Statute and other treaties. But

because respondents expectedly raised it, we shall first tackle the issue of
petitioners legal standing.
HELD: This petition is bereft of merit.
BAYAN MUNA VS. ROMULO
REMEDIAL

LAW:locus

standi

of

petitioner

In the case at bar, petitioners representatives have complied with the qualifying
conditions or specific requirements exacted under thelocus standirule.As citizens,
their interest in the subject matter of the petition is direct and personal. At the very
least, their assertions questioning the Agreement are made of a public right, i.e., to
ascertain that the Agreement did not go against established national policies,
practices, and obligations bearing on the States obligation to the community of
nations.
POLITICAL

LAW:

Validity

of

the

RP-US

Non-Surrender

Agreement

Petitioners initial challenge against the Agreement relates to form, its threshold
posture being that E/N BFO-028-03 cannot be a valid medium for concluding the
Agreement.
Petitioners contention perhaps taken unaware of certain well-recognized
international doctrines, practices, and jargon is untenable. One of these is the
doctrine of incorporation, as expressed in Section 2, Article II of the Constitution,
wherein the Philippines adopts the generally accepted principles of international law
and international jurisprudence as part of the law of the land and adheres to the
policy of peace, cooperation, and amity with all nations. An exchange of notes falls
into the category of inter-governmental agreements, which is an internationally
accepted form of international agreement. The United Nations Treaty Collections
(Treaty Reference Guide) defines the term as follows:
An exchange of notes is a record of a routine agreement, that has many similarities
with the private law contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the accepting State repeats
the text of the offering State to record its assent. The signatories of the letters may
be government Ministers, diplomats or departmental heads. The technique of
exchange of notes is frequently resorted to, either because of its speedy procedure,
or, sometimes, to avoid the process of legislative approval.
In another perspective, the terms exchange of notes and executive agreements
have been used interchangeably, exchange of notes being considered a form of

executive agreement that becomes binding through executive action. On the other
hand, executive agreements concluded by the President sometimes take the form of
exchange of notes and at other times that of more formal documents denominated
agreements or protocols. As former US High Commissioner to the Philippines
Francis B. Sayre observed in his work,The Constitutionality of Trade Agreement
Acts:
The point where ordinary correspondence between this and other governments ends
and agreements whether denominated executive agreements or exchange of notes
or otherwise begin, may sometimes be difficult of ready ascertainment. It is fairly
clear from the foregoing disquisition that E/NBFO-028-03be it viewed as the NonSurrender Agreement itself, or as an integral instrument of acceptance thereof or as
consent to be bound is a recognized mode of concluding a legally binding
international written contract among nations.
POLITICAL LAW: Senate Concurrence Not Required; treaties
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as an
international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instrumentsand whatever its particular designation. International agreements may be
in the form of (1) treaties that require legislative concurrence after executive
ratification; or (2) executive agreements that are similar to treaties, except that they
do not require legislative concurrence and are usually less formal and deal with a
narrower range of subject matters than treaties.
Under international law, there is no difference between treaties and executive
agreements in terms of their binding effects on the contracting states concerned, as
long as the negotiating functionaries have remained within their powers. Neither,on
the domestic sphere, can one be held valid if it violates the Constitution. Authorities
are, however, agreed that one is distinct from another for accepted reasons apart
from the concurrence-requirement aspect. As has been observed by US
constitutional scholars, a treaty has greater dignity than an executive agreement,
because its constitutional efficacy is beyond doubt, a treaty having behind it the
authority of the President, the Senate, and the people; a ratified treaty, unlike an
executive agreement, takes precedence over any prior statutory enactment.
POLITICAL LAW: The Agreement Not in Contravention of the Rome Statute
Contrary to petitioners pretense, the Agreement does not contravene or undermine,
nor does it differ from, the Rome Statute.Far from going against each other, one
complements the other. As a matter of fact, the principle of complementarity
underpins the creation of the ICC.As aptly pointed out by respondents and admitted
by petitioners, the jurisdiction of the ICC is to be complementary to national criminal
jurisdictions of the signatory states. Art. 1 of the Rome Statute pertinently provides:

Article 1
The Court
An International Crimininal Court(the Court) is hereby established. It x x xshall have
the power to exercise its jurisdiction over persons for the most serious crimes of
international concern, as referred to in this Statute, and shall be complementary to
national criminal jurisdictions. The jurisdiction and functioning of the Court shall be
governed by the provisions of this Statute.
Significantly, the sixth preambular paragraph of the Rome Statute declares that it is
the duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes. This provision indicates that primary jurisdiction over the socalled international crimes rests, at the first instance, with the state where the crime
was committed; secondarily, with the ICC in appropriate situations contemplated
under Art. 17, par. 1 of the Rome Statute.
Of particular note is the application of the principle ofne bis in idem under par. 3 of
Art. 20, Rome Statute, which again underscores the primacy of the jurisdiction of a
state vis-a-vis that of the ICC .As far as relevant, the provision states that no person
who has been tried by another court for conduct [constituting crimes within its
jurisdiction] shall be tried by the [International Criminal] Court with respect to the
same conduct.
The foregoing provisions of the Rome Statute, taken collectively, argue against the
idea of jurisdictional conflict between the Philippines, as party to the non-surrender
agreement, and the ICC; or the idea of the Agreement substantially impairing the
value of the RPs undertaking under the Rome Statute. Ignoring for a while the fact
that the RP signed the Rome Statute ahead of the Agreement, it is abundantly clear
to us that the Rome Statute expressly recognizes the primary jurisdiction of states,
like the RP, over serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when the signatory
states are unwilling or unable to prosecute.
Given the above consideration, petitioners suggestion that the RP, by entering into
the Agreement, violated its duty required by the imperatives of good faith and
breached its commitment under the Vienna Convention to refrain from performing
any act tending to impair the value of a treaty, e.g., the Rome Statute has to be
rejected outright. For nothing in the provisions of the Agreement, in relation to the
Rome Statute, tends to diminish the efficacy of the Statute, let alone defeats the
purpose of the ICC. Lest it be overlooked, the Rome Statute contains a proviso that
enjoins the ICC from seeking the surrender of an erring person, should the process
require the requested state to perform an act that would violate some international
agreement it has entered into.We refer to Art. 98(2) of the Rome Statute, which

reads:
Article 98
Cooperation with respect to waiver of immunity and consent to surrender
2. The Court may not proceed with a request for surrender which would require the
requested State to act inconsistently with its obligations under international
agreements pursuant to which the consent of a sending State is required to
surrender a person of that State to the Court, unless the Court can first obtain the
cooperation of the sending State for the giving of consent for the surrender.
Moreover, under international law, there is a considerable difference between a
State-Party and a signatory to a treaty. Under the Vienna Convention on the Law of
Treaties, a signatory state is only obliged to refrain from acts which would defeat the
object and purpose of a treaty;whereas a State-Party, on the other hand, is legally
obliged to follow all the provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a signatory to the
Rome Statute and not a State-Party for lack of ratification by the Senate. Thus, it is
only obliged to refrain from acts which would defeat the object and purpose of the
Rome Statute. Any argument obliging the Philippines to follow any provision in the
treaty would be premature.
As a result, petitioners argument that State-Parties with non-surrender agreements
are prevented from meeting their obligations under the Rome Statute, specifically
Arts. 27, 86, 89 and 90, must fail. These articles are only legally binding upon StateParties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that the Agreement is not
incompatible with the Rome Statute. Specifically, Art. 90(4) provides that if the
requesting State is a State not Party to this Statute the requested State, if it is not
under an international obligation to extradite the person to the requesting State, shall
give priority to the request for surrender from the Court In applying the provision,
certain undisputed facts should be pointed out:first, the US is neither a State-Party
nor a signatory to the Rome Statute; and second, there is an international
agreement between the US and the Philippines regarding extradition or surrender of
persons, i.e., the Agreement. Clearly, even assuming that the Philippines is a StateParty, the Rome Statute still recognizes the primacy of international agreements
entered into between States, even when one of the States is not a State-Party to the
Rome Statute.
POLITICAL LAW: Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated its

sovereignty by bargaining away the jurisdiction of the ICC to prosecute US

nationals, government officials/employees or military personnel who commit serious
crimes of international concerns in the Philippines.Formulating petitioners argument
a bit differently, the RP,by entering into the Agreement, does thereby abdicate its
sovereignty, abdication being done by its waiving or abandoning its right to seek
recourse through the Rome Statute of the ICC for erring Americans committing
international crimes in the country.
We are not persuaded.As it were, theAgreementis but a form of affirmance and
confirmance of thePhilippines national criminal jurisdiction.National criminal
jurisdiction being primary, as explained above, it is always the responsibility and
within the prerogative of the RP either to prosecute criminal offenses equally
covered by the Rome Statute or to accede to the jurisdiction of the ICC.Thus,
thePhilippinesmay decide to try persons of theUS, as the term is understood in
theAgreement, under our national criminal justice system.Or it may opt not to
exercise its criminal jurisdiction over its erring citizens or overUSpersons committing
high crimes in the country and defer to the secondary criminal jurisdiction of the ICC
over them.As to persons of the US whom the Philippines refuses to prosecute, the
country would, in effect, accorddiscretion to the US to exercise either its national
criminal jurisdiction over the person concerned or to give its consent to the referral of
the matter to the ICC for trial.In the same breath, theUSmust extend the same
privilege to thePhilippineswith respect to persons of the RP committing high crimes
withinUSterritorial jurisdiction.
To be sure, the nullity of the subject non-surrender agreement cannot be predicated
on the postulate that some of its provisions constitute a virtual abdication of its
sovereignty.Almost every time a state enters into an international agreement, it
voluntarily sheds off part of its sovereignty.The Constitution, as drafted, did not
envision a reclusivePhilippinesisolated from the rest of the world.It even adheres, as
earlier stated, to the policy of cooperation and amity with all nations.
By their nature, treaties and international agreements actually have a limiting effect
on the otherwise encompassing and absolute nature of sovereignty.By their
voluntary act, nations may decide to surrender or waive some aspects of their state
power or agree to limit the exercise of their otherwise exclusive and absolute
jurisdiction.The usual underlying consideration in this partial surrender may be the
greater benefits derived from a pact or a reciprocal undertaking of one contracting
party to grant the same privileges or immunities to the other.On the rationale that the
Philippines has adopted the generally accepted principles of international law aspart
of the law of the land, a portion of sovereignty may be waived without violating the
Constitution. Such waiver does not amount to an unconstitutional diminution or
deprivation of jurisdiction of Philippine courts.
POLITICAL LAW: Agreement Not Immoral/Not at Variance with Principles of
International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing
immoral obligations and/or being at variance with allegedly universally recognized
principles of international law. The immoral aspect proceeds from the fact that the
Agreement, as petitioner would put it, leaves criminals immune from responsibility
for unimaginable atrocities that deeply shock the conscience of humanity; it
precludes our country from delivering an American criminal to the ICC.
The above argument is a kind of recycling of petitioner's earlier position, which, as
already discussed, contends that the RP, by entering into the Agreement,virtually
abdicated its sovereignty and in the process undermined its treaty obligations under
the Rome Statute, contrary to international law principles.
The Court is not persuaded. Suffice it to state in this regard that the non-surrender
agreement, as aptly described by the Solicitor General, is an assertion by the
Philippines of its desire to try and punish crimes under its national law. The
agreement is a recognition of the primacy and competence of the country's judiciary
to try offenses under its national criminal laws and dispense justice fairly and
judiciously.
Petitioner, we believe, labors under the erroneous impression that the Agreement
would allow Filipinos and Americans committing high crimes of international concern
to escape criminal trial and punishment. This is manifestly incorrect. Persons who
may have committed acts penalized under the Rome Statute can be prosecuted and
punished in the Philippines or in the US; or with the consent of the RP or the US,
before the ICC, assuming, for the nonce, that all the formalities necessary to bind
both countries to the Rome Statute have been met.
For perspective, what the Agreement contextually prohibits is the surrender by either
party of individuals to international tribunals, like the ICC, without the consent of
the other party, which may desire to prosecute the crime under its existing laws.
With the view we take of things, there is nothing immoral or violative of international
law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant
to the non-surrender agreement over an offense considered criminal by both
Philippine laws and the Rome Statute.
POLITICAL LAW: Agreement Need Not Be in the Form of a Treaty

Prescinding from the foregoing premises, the view thus advanced considers the
Agreement inefficacious, unless it is embodied in a treaty duly ratified with the
concurrence of the Senate, the theory being that a Senate- ratified treaty partakes of
the nature of a municipal law that can amend or supersede another law, in this

instance Sec. 17 of RA 9851 and the status of the Rome Statute as constitutive of
enforceable domestic law under Sec. 2, Art. II of the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that the
Agreement does not amend or is repugnant to RA 9851.For another, the view does
not clearly state what precise principles of law, if any, the Agreement alters.And for a
third, it does not demonstrate in the concrete how the Agreement seeks to frustrate
the objectives of the principles of law subsumed in the Rome Statute.
Nonetheless, despite the lack of actual domestic legislation, the US notably follows
the doctrine of incorporation.As early as 1900, the esteemed Justice Gray inThe
Paquete Habana case already held international law as part of the law of theUS, to
wit:
International law is part of our law, and must be ascertained and administered by the
courts of justice of appropriate jurisdiction as often as questions of right depending
upon it are duly presented for their determination. For this purpose, where there is
no treaty and no controlling executive or legislative act or judicial decision, resort
must be had to the customs and usages of civilized nations, and, as evidence of
these, to the works of jurists and commentators who by years of labor, research, and
experience have made themselves peculiarly well acquainted with the subjects of
which they treat. Such works are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the law ought to be, but for the
trustworthy evidence of what the law really is.
Thus, a person can be tried in the US for an international crime despite the lack of
domestic legislation.The cited ruling in U.S. v. Coolidge,which in turn is based on the
holding inU.S. v. Hudson, only applies to common law and not to the law of nations
or international law.Indeed, the Court inU.S. v. Hudson only considered the question,
whether the Circuit Courts of the United States can exercise a common law
jurisdiction in criminal cases.Stated otherwise, there is no common law crime in the
US but this is considerably different from international law.
TheUSdoubtless recognizes international law as part of the law of the land,
necessarily including international crimes, even without any local statute.In fact,
years later, US courts would apply international law as a source of criminal liability
despite the lack of a local statute criminalizing it as such. So it was that in Ex Parte
Quir in the US Supreme Court noted that from the very beginning of its history this
Court has recognized and applied the law of war as including that part of the law of
nations which prescribes, for the conduct of war, the status, rights and duties of
enemy nations as well as of enemy individuals. It went on further to explain that
Congress had not undertaken the task of codifying the specific offenses covered in
the law of war, thus:
It is no objection that Congress in providing for the trial of such offenses has not

itself undertaken to codify that branch of international law or to mark its precise
boundaries, or to enumerate or define by statute all the acts which that law
condemns. An Act of Congress punishing the crime of piracy as defined by the law
of nations is an appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10,
to define and punish the offense since it has adopted by reference the sufficiently
precise definition of international law. Similarly by the reference in the 15th Article of
War to offenders or offenses that by the law of war may be triable by such military
commissions. Congress has incorporated by reference, as within the jurisdiction of
military commissions, all offenses which are defined as such by the law of war, and
which may constitutionally be included within that jurisdiction.
This rule finds an even stronger hold in the case of crimes against humanity. It has
been held that genocide, war crimes and crimes against humanity have attained the
status of customary international law.Some even go so far as to state that these
crimes have attained the status of jus cogens.
Customary international law or international custom is a source of international law
as stated in the Statute of the ICJ. It is defined as the general and consistent
practice of states recognized and followed by them from a sense of legal
obligation.In order to establish the customary status of a particular norm, two
elements must concur: State practice, the objective element; andopinio juris sive
necessitates, the subjective element.
State practice refers to the continuous repetition of the same or similar kind of acts
or norms by States.It is demonstrated upon the existence of the following elements:
(1) generality; (2) uniformity and consistency; and (3) duration. While,opinio juris, the
psychological element, requires that the state practice or norm 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 term jus cogens means the compelling law.Corollary, a jus cogens norm holds
the highest hierarchical position among all other customary norms and principles.As
a result,jus cogensnorms are deemed peremptory and non-derogable.When applied
to international crimes, jus cogens crimes have been deemed so fundamental to the
existence of a just international legal order that states cannot derogate from them,
even by agreement.
These jus cogens crimes relate to the principle of universal jurisdiction, i.e., any
state may exercise jurisdiction over an individual who commits certain heinous and
widely condemned offenses, even when no other recognized basis for jurisdiction
exists.The rationale behind this principle is that the crime committed is so egregious
that it is considered to be committed against all members of the international
community and thus granting every State jurisdiction over the crime.
Therefore, even with the current lack of domestic legislation on the part of the US, it

still has both the doctrine of incorporation and universal jurisdiction to try these
crimes.
WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby
DISMISSED for lack of merit.
Art. 18. OBLIGATION NOT TO DEFEAT THE OBJECT AND PURPOSE OF A TREATY PRIOR TO
ITS ENTRY INTO FORCE
Art. 65 of VCLT
>Notification in writing. Contains: basis and proposed measure (e.g. suspend, terminate etc).
>3 months period before notifying state can enact measure.
No objection- state can proceed with measure
Objection- 12 month period of settlement with the use of pacific means of settling disputes under Art.
33 of the UN Charter

Art. 33 of the U.N. Charter

Good Office
Arbitration
Conciliation
>After which= go to the ICJ.