NORTH SEA CONTINENTAL SHELF CASES

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
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
12. The court held that duration taken for the customary law rule to emerge is not as important as
widespread and representative participation, uniform usage and the existence of an opinio juris.
Although the passage of only a short period of time (in this case, 3 5 years) is not necessarily, or of
itself, a bar to the formation of a new rule of customary international law on the basis of what was
originally a purely conventional rule, an indispensable requirement would be that within the period in
question, short though it might be, State practice, including that of States whose interests are specially
affected, should have been both extensive and virtually uniform in the sense of the provision invoked and
should moreover have occurred in such a way as to show a general recognition that a rule of law or legal
obligation is involved (text in brackets added).
Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case) in so far as
those acts or omissions are done following a belief that the said State is obligated by law to act or refrain
from acting in a particular way. (For more on opinio juris click here).
14. The Court examined 15 cases where States had delimited their boundaries using the equidistance
method, after the Convention came into force (paras. 75 -77). The court concluded, even if there were
some State practice in favour of the equidistance principle the court could not deduct the necessary opinio
juris from this State practice. The North Sea Continental Shelf Cases confirmed that both State practice
(the objective element) and opinio juris (the subjective element) are essential pre-requisites for the
formation of a customary law rule. This is consistent with Article 38 (1) (b) of the Statute of the ICJ. The
following explains the concept of opinio juris and the difference between customs (i.e. habits) and
customary law:
Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried
out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of
a rule of law requiring it. The need for such a belief, i.e, the existence of a subjective element, is implicit
in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they
are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the
acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol,
which are performed almost invariably, but which are motivated only by considerations of courtesy,
convenience or tradition, and not by any sense of legal duty.
15. The court concluded that the equidistance principle was not binding on Germany by way of treaty or
customary international law because, in the case of the latter, the principle had not attained a customary
international law status at the time of the entry into force of the Geneva Convention or thereafter. As such,
the court held that the use of the equidistance method is not obligatory for the delimitation of the areas
concerned in the present proceedings.
 ASYLUM CASE (SUMMARY)
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, non-intervention [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.

Maritime Delimitation and Territorial Questions between Qatar and Bahrain

(Qatar v. Bahrain)
On 8 July 1991, Qatar filed an Application instituting proceedings before the Court against Bahrain
concerning certain disputes relating to sovereignty over the Hawar islands, sovereign rights over the
shoals of Dibal and Quit'at Jaradah, and the delimitation of the maritime areas of the two states. Qatar
founded the jurisdiction of the Court upon two agreements between the parties dated December 1987 and
December 1990. The subject and scope of the commitment to jurisdiction were to be determined by a
formula proposed by Bahrain to Qatar in October 1988 and accepted by Qatar in December 1990. Bahrain
contested the jurisdiction of the Court arguing that none of the documents referred to by Qatar contained a
commitment to have the dispute settled by the Court.
In 1987, the Parties accepted, in an exchange of letters, proposals by Saudi Arabia which provided for a
settlement by the Court of all matters in dispute between the parties. These proposals included the
formation of a Tripartite Committee, composed of representatives from Bahrain, Qatar and 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."

In 1988, Bahrain transmitted a text to Qatar (the "Bahraini formula") in which the Parties request the
Court "to decide any matter of territorial right or title or interest which may be a matter of difference
between their respective maritime areas of seabed, subsoil and superjacent waters." At the 1990 annual
meeting of the Co-operation Council of Arab States of the Gulf, Qatar let it be known that it was ready to
accept the Bahraini formula. The minutes of the meeting (Doha Minutes) show the two parties reaffirmed
what was agreed previously between them: that they continue to use the good offices of Saudi Arabia
until May 1991, following which date the matter may be submitted to the Court in accordance with the
Bahraini formula. Bahrain contends that neither the 1987 agreements nor the 1990 minutes constitute
legally binding instruments which allow for a unilateral seizure of the Court.

In its judgement of 1 July 1994, the Court concluded that the 1987 exchange of letters and the 1990
minutes were international agreements binding upon the parties. The Court found that the minutes were
not only a simple record of negotiations, but enumerated commitments to which the parties had
consented. They thus created rights and duties in international law for the parties.

As to the content of the agreements, the Court held that already in 1987 the parties had committed
themselves to submit all disputed matters to the Court. The determination of "disputed matters", according
to the Court, was settled by the 1990 minutes, in which Qatar consented to the Bahraini formula.
Therefore, both parties had accepted that the Court, once seized, 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". While permitting the presentation of distinct claims by each of the Parties, the Bahraini formula,
nonetheless, pre-supposed that the whole of the dispute would be submitted to the Court.

As the Court had before it only an Application by Qatar and since Bahrain claimed that this Application
did not comprise the whole dispute, the Court decided to afford the Parties an opportunity to ensure that
the whole of the dispute as comprehended by the 1990 minutes and the Bahraini formula be submitted.
The Parties were given until 30 November 1994 to do this jointly or by separate acts.

In it's judgement of 15 February 1995, the Court decided finally on the questions of jurisdiction and
admissibility. On 30 November 1990, Qatar filed a document entitled "Act to comply with paragraphs (3)
and (4) of operative paragraph 41 of the Judgement of the Court dated 1 July 1994". In this document
Qatar referred to the absence of an agreement between the parties to act jointly and declared that therefore
Qatar was submitting to the Court "the whole of the dispute between Qatar and Bahrain as circumscribed
by the text ... referred to in the 1990 Doha Minutes as the Bahraini formula." Qatar enumerated the
subjects which, in its view, fell within the Court's jurisdiction:

"1. The Hawar Islands, including the island of Janan;

2. Fasht al Dibal and Qit'at Jaradah;
3. The archipelagic baselines;
4. Zubarah;
5. The areas for fishing for pearls and for fishing for swimming fish and other matters
connected with maritime boundaries."
On 30 November 1994, the Registry of the Court received a document from Bahrain entitled "Report of
the State of Bahrain to the International Court of Justice on the attempt by the Parties to implement the
Court's Judgement of 1st July, 1994". In that document Bahrain argued that the Judgement of 1 July 1994
required a consensual submission of the whole of the dispute. Yet, the documents presented by Qatar
rested within the unilateral Application of 8 July 1991. In its observations of 5 December 1994 regarding
Qatar's Act of 30 November 1994, Bahrain argued that the Court did not declare in its Judgement of 1
July 1994 that it had jurisdiction. Bahrain submitted that the Court lacked jurisdiction at that time because
of the unilateral application of Qatar. According to Bahrain, as the Act of 30 November 1994 presented
by Qatar rested within the framework of the initial unilateral application the Court still lacked jurisdiction.
The Court therefore had to decide whether the exchange of letters or the 1990 Doha Minutes permitted a
unilateral application.

The Court held that the exchange of letters, together with the Doha Minutes, constituted an agreement
between the parties to submit the whole of the dispute to the Court. Concerning the modalities of
application, the parties had different views on the interpretation of the arabic term "al-tarafan". Bahrain
argued that it meant both parties whereas Qatar understood it as meaning "each party". The Court
interpreted the term in the light of its context and its aim and came to the conclusion that it meant an
alternative, not cumulative seisen. Therefore, the Court understood the Doha Minutes to allow a unilateral
application by each of the parties.

As to the question of whether the "whole of the dispute" was submitted, the Court held that with the Act
of 30 November 1994 Qatar had indeed submitted the whole of the dispute. The Court therefore
considered that it had jurisdiction and that the case was admissible.

Five Judges appended dissenting opinions. According to Judge Schwebel, the Court did not examine
thoroughly enough the drafting of the 1990 Doha Minutes during which the explicit possibility for each
party to seize the Court was amended to a text which only meant "the parties". This element of the
"travaux prparatoires" led Judge Schwebel to the conclusion that a unilateral application was excluded.
Judge Oda repeated his opinion from the first judgement where he considered the Doha Minutes not to
constitute an agreement within Article 36 (1) of the Court's Statute. Judge Koroma and judge ad-hoc
Valticos were of the opinion that the term "al-tarafan" and the drafting history must lead to the conclusion
that a unilateral application was not intended by the parties. Since no joint action by Bahrain and Qatar
was taken they considered that the Court had no jurisdiction.

Legal Status of Eastern Greenland (Norway v. Denmark)

Occupier (D) v. Sovereign (P)

Overview:
Denmark (P) claimed that a statement made by a Norwegian Minister was binding on Norway (D).
Denmark (P) wanted to obtain from Norway (D) its agreement not to obstruct Danish (P) plans with
regard to Greenland. The Minister for Foreign Affairs made a declaration on behalf of the Norwegian
government (D) that the Norwegian government (D) would not make any difficulty in the settlement of
the question.

Issue:
Is a reply given by the Minister of Foreign Affairs on behalf of his government binding upon the country
to which the Minister belongs?

Rule:
a reply given by the minister of foreign affairs on behalf of his govt. is binding upon the country to which
the minister belongs.

Analysis:
The Vienna Convention on the Law of Treaties is the main source of international law on treaties. The
Convention was ratified by 35 countries but not by the United States. Unilateral statements may also be
binding on states.

Outcome:
Yes. A reply given by the Minister of Foreign Affairs on behalf of his government is binding upon the
country to which the Minister belongs. It is beyond dispute that a reply of the nature given here in
response to a request by the diplomatic representative of a foreign power is binding upon the country the
Minister represents

Pimentel v. Executive Secretary

G.R. No. 158088 July 6, 2005
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.

Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.G. R. No. 167919
February 14, 2007
FACTS:
On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and Highways
(DPWH) issued a Resolution No. PJHL-A-04-012. It was approved by DPWH Acting Secretary Florante
Soriquez. This resolution recommended the award to China Road & Bridge Corporation of the contract
for the implementation of civil works for Contract Package No. I (CP I), which consists of the
improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga road, with the lengt of 79.818
kilometers, in the island province of Catanduanes.
This Loan Agreement No. PH-204 was executed by and between the JBIC and the Philippine Government
pursuant to the exchange of Notes executed by and between Mr. Yoshihisa Ara, Ambassador
Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign Affairs Secretary Siazon,
in behalf of their respective governments.

ISSUE:
Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine Government is a
kind of a treaty.

HELD:
The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated December 27,
1999 between the Japanese Government and the Philippine Government is an executive agreement.
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.
treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding,
modus vivendi and exchange of notes all are refer to international instruments binding at international
law.
Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are the result of
long practice among the States, which have accepted them as binding norms in their mutual relations.
Therefore, they are regarded as international customary law.
That case was dismissed by the SCORP last Feb. 14 2007.

What the petitioners wanted was that Foreign funded projects also undergo the procurement process.
The dismissal of the case somehow gave justification for the delay of the implementing rules for foreign
funded projects (IRR-B) of the procurement law If we recall the decision of the Abaya vs Ebdane was
used by the DOJ when the DOTC Secretary was asking for an opinion from the former, during the ZTE
controversy.as ruled by the Supreme Court in Abaya v. Ebdane, an exchange of notes is considered a form
of an executive agreement, which becomes binding through executive action without need of a vote by the
Senate and that (like treaties and conventions, it is an international instrument binding at international
law,
The second issue involves an examination of the coverage of Republic Act No. 9184, otherwise known as
the Government Procurement Reform Act. Section 4 of the said Act provides that it shall
apply to: the Procurement of infrastructure Projects, Goods and Consulting Services, regardless of
source of funds, whether local or foreign, by all branches and instrumentalities of government, its
departments, offices and agencies, including government-owned and/or -controlled corporations and local
government units, subject to the provisions of Commonwealth Act No. 138. Any treaty or international or
executive agreement affecting the subject matter of this Act to which the Philippine government is a
signatory shall be observed.

Saguisag vs Executive Secretary

Case Digest GR 212426 Jan 12 2016
Facts:

Petitioners, as citizens, taxpayers and former legislators, questioned before the SC the constitutionality of
EDCA (Enhanced Defense Cooperation Agreement), an agreement entered into by the executive
department with the US and ratified on June 6, 2014. Under the EDCA, the PH shall provide the US
forces the access and use of portions of PH territory, which are called Agreed Locations. Aside from the
right to access and to use the Agreed Locations, the US may undertake the following types of activities
within the Agreed Locations: security cooperation exercises; joint and combined training activities;
humanitarian and disaster relief activities; and such other activities that as may be agreed upon by the
parties.

Mainly, petitioners posit that the use of executive agreement as medium of agreement with US violated
the constitutional requirement of Art XVIII, Sec 25 since the EDCA involves foreign military bases,
troops or facilities whose entry into the country should be covered by a treaty concurred in by the Senate.
The Senate, through Senate Resolution 105, also expressed its position that EDCA needs congressional
ratification.

Issue 1: W/N EDCA is a valid agreement entered into by the President

No. EDCA is not a valid executive agreement entered into by the President because it falls under those
treaties and international agreements which need the concurrence of the Philippine Senate.

Article XVIII, Sec 25 of the 1987 Constitution is a special provision that prohibits the entry of foreign
military bases, troops or facilities in the Philippines. As an exception, such would be allowed only if: first,
the stay of foreign military bases, troops, or facilities is allowed by a treaty; second, such treaty is with the
concurrence of the Senate, and when Congress so requires, such treaty should be ratified by majority of
the votes cast by the Filipino people in a national referendum held for the purpose; and third, such treaty
is recognized as a treaty by the other contracting party.

Whether the stay of the foreign troops in the country is permanent or temporary is immaterial because the
Constitution does not distinguish. In the case of EDCA, it clearly involves the entry of foreign military
bases, troops or facilities in the country. Hence, the absence of Senate concurrence to the agreement
makes it an invalid treaty.
Issue 2: W/N the EDCA is merely an implementation of the VFA and the MDT

No. The EDCA is entirely a new treaty, separate and distinct from the VFA and the MDT.

First, while the VFA allows only the presence of US military troops, the EDCA on the other hand
contemplates the presence of not just the troops but also military bases and facilities in the so-called
Agreed Locations.

Second, the MDT covers defensive measures to counter an armed attack against either of the parties
territories or armed forces but there is nothing in the MDT that specifically authorizes the presence,
whether temporary or permanent, of a partys bases, troops, or facilities in the other partys territory even
during peace time or in mere anticipation of an armed attack. The presence of foreign military bases,
troops, or facilities provided under the EDCA cannot be traced to the MDT. Moreover, the general
provisions of the MDT cannot prevail over the categorical and specific provision of Section 25, Article
XVIII of the Constitution.

Hence, the EDCA as an agreement creating new rights and obligations must satisfy the requirements
under Sec 25, Art XIII of the Constitution.

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT v

EXECUTIVE SECRETARY RONALDO ZAMORA
G.R. No. 138570, October 10, 2000
FACTS:

The Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951, To
further strengthen their defense and security relationship. Under the treaty, the parties agreed to respond
to any external armed attack on their territory, armed forces, public vessels, and aircraft.

On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship,
Cooperation and Security which, in effect, would have extended the presence of US military bases in the
Philippines.

On July 18, 1997 RP and US exchanged notes and discussed, among other things, the possible elements
of the Visiting Forces Agreement (VFA).This resulted to a series of conferences and negotiations which
culminated on January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was
respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs,
ratified the VFA. On October 6, 1998, the President, acting through respondent Executive Secretary
Ronaldo Zamora, officially transmitted to the Senate of the Philippines,the Instrument of Ratification, the
letter of the President and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987
Constitution.

Petitions for certiorari and prohibition, petitioners as legislators, non-governmental organizations,

citizens and taxpayers assail the constitutionality of the VFA and impute to herein respondents grave
abuse of discretion in ratifying the agreement.
Petitioner contends, under they provision cited, the foreign military bases, troops, or facilities may be
allowed in the Philippines unless the following conditions are sufficiently met: a) it must be a treaty,b) it
must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum
held for that purpose if so required by congress, and c) recognized as such by the other contracting state.

Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires
for such treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of
the senate.

ISSUES AND RULING:

1. Issue 1: Do the Petitioners have legal standing as concerned citizens, taxpayers, or legislators to
question the constitutionality of the VFA?

NO. Petitioners Bayan Muna, etc. have no standing. A party bringing a suit challenging the
Constitutionality of a law must show not only that the law is invalid, but that he has sustained or is in
immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. Petitioners have failed to show that they are in any danger of
direct injury as a result of the VFA.

As taxpayers, they have failed to establish that the VFA involves the exercise by Congress of its taxing or
spending powers. A taxpayer's suit refers to a case where the act complained of directly involves the
illegal disbursement of public funds derived from taxation. Before he can invoke the power of judicial
review, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of
money raised by taxation and that he will sustain a direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that he has merely a general interest common to all
members of the public. Clearly, inasmuch as no public funds raised by taxation are involved in this case,
and in the absence of any allegation by petitioners that public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.

Similarly, the petitioner-legislators (Tanada, Arroyo, etc.) do not possess the requisite locus standi to sue.
In the absence of a clear showing of any direct injury to their person or to the institution to which they
belong, they cannot sue. The Integrated Bar of the Philippines (IBP) is also stripped of standing in these
cases. The IBP lacks the legal capacity to bring this suit in the absence of a board resolution from its
Board of Governors authorizing its National President to commence the present action.

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues
raised, the Court may brush aside the procedural barrier and takes cognizance of the petitions.

2. Issue 2: Is the VFA governed by section 21, Art. VII, or section 25, Art. XVIII of the Constitution?

Section 25, Art XVIII, not section 21, Art. VII, applies, as the VFA involves the presence of foreign
military troops in the Philippines.

The Constitution contains two provisions requiring the concurrence of the Senate on treaties or
international agreements.

Section 21, Article VII reads: [n]o treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
Section 25, Article XVIII, provides:[a]fter the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the other contracting State.

Section 21, Article VII deals with treaties or international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the treaty
valid and binding to the Philippines. This provision lays down the general rule on treaties. All treaties,
regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of
the Senate to be valid and effective. In contrast, Section 25, Article XVIII is a special provision that
applies to treaties which involve the presence of foreign military bases, troops or facilities in the
Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render
compliance with the constitutional requirements and to consider the agreement binding on the Philippines.
Sec 25 further requires that foreign military bases, troops, or facilities may be allowed in the Philippines
only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required by Congress, and recognized as such by the other
contracting state.

On the whole, the VFA is an agreement which defines the treatment of US troops visiting the Philippines.
It provides for the guidelines to govern such visits of military personnel, and further defines the rights of
the US and RP government in the matter of criminal jurisdiction, movement of vessel and aircraft, import
and export of equipment, materials and supplies. Undoubtedly, Section 25, Article XVIII, which
specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the
instant case. To a certain extent, however, the provisions of Section 21, Article VII will find applicability
with regard to determining the number of votes required to obtain the valid concurrence of the Senate.

It is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the
reason that there is no permanent placing of structure for the establishment of a military base. The
Constitution makes no distinction between transient and permanent. We find nothing in Section 25,
Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the
Philippines. When no distinction is made by law; the Court should not distinguish. We do not subscribe
to the argument that Section 25, Article XVIII is not controlling since no foreign military bases, but
merely foreign troops and facilities, are involved in the VFA. The proscription covers foreign military
bases, troops, or facilities. Stated differently, this prohibition is not limited to the entry of troops and
facilities without any foreign bases being established. The clause does not refer to foreign military bases,
troops, or facilities collectively but treats them as separate and independent subjects, such that three
different situations are contemplated a military treaty the subject of which could be either (a) foreign
bases, (b) foreign troops, or (c) foreign facilities any of the three standing alone places it under the
coverage of Section 25, Article XVIII.

3. Issue 3: Was Sec 25 Art XVIII's requisites satisfied to make the VFA effective?

YES

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the
following conditions are sufficiently met:
(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 Constitution, as there were at
least 16 Senators that concurred.

As to condition (c), the Court held that the phrase recognized as a treaty means that the other
contracting party accepts or acknowledges the agreement as a treaty. To require the US to submit the VFA
to the US 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.

The records reveal that the US Government, through Ambassador Hubbard, has stated that the US has
fully committed to living up to the terms of the VFA. For as long as the US accepts or acknowledges the
VFA as a treaty, and binds itself further to comply with its treaty obligations, there is indeed compliance
with the mandate of the Constitution.

Worth stressing too, is that the ratification by the President of the VFA, and the concurrence of the
Senate, should be taken as a clear and unequivocal expression of our nation's consent to be bound by said
treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state, through which
the formal acceptance of the treaty is proclaimed. A State may provide in its domestic legislation the
process of ratification of a treaty. In our jurisdiction, the power to ratify is vested in the President and not,
as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding
its consent, or concurrence, to the ratification.

With the ratification of the VFA it now becomes obligatory and incumbent on our part, under principles
of international law (pacta sunt servanda), to be bound by the terms of the agreement. Thus, no less than
Section 2, Article II declares that the Philippines 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.

Fisheries Jurisdiction (United Kingdom v. Iceland)

Citation. I.C.J., 1973 I.C.J. 3
Brief Fact Summary. Because some circumstances changed, Iceland (D) claimed that a fishing treaty it
had with the United Kingdom (P) was no longer applicable.

Synopsis of Rule of Law. In order that a change of circumstances may give rise to the premise calling for
the termination of a treaty, it is necessary that it has resulted in a radical transformation of the extent of
the obligations still to be performed.

Facts. Icelands (D) claim to a 12-mile fisheries limit was recognized by the United Kingdom (P) in 1961
in return for Icelands (D) agreement that any dispute concerning Icelandic fisheries jurisdiction beyond
the 12-mile limit be referred to the International Court of Justice. An application was filed before the
I.C.J. when Iceland (D) proposed to extend its exclusive fisheries jurisdiction from 12 to 50 miles around
its shores in 1972. By postulating that changes in circumstances since the 12-mile limit was now generally
recognized was the ground upon which Iceland (D) stood to argue that the agreement was no longer valid.
Iceland (D) also asserted that there would be a failure of consideration for the 1961 agreement.

Issue. In order that a change of circumstances may give rise to a ground for invoking the termination of a
treaty, is it necessary that it has resulted in a radical transformation of the extent of the obligation still to
be performed?

Held. Yes. In order that a change of circumstances may give rise to the premise calling for the termination
of a treaty, it is necessary that it has resulted in a radical transformation of the extent of the obligations
still to be performed. The change of circumstances alleged by Iceland (D) cannot be said to have
transformed radically the extent of the jurisdictional obligation that was imposed in the 1961 Exchange of
Notes.

Discussion. Recourse to the I.C.J. in the event of a dispute was the original agreement between the parties.
The economy of Iceland (D) is dependent on fishing. The merit of Iceland (D) argument was not reached
by the Court in this case, however, but rather dealt with the jurisdictional issues.

Island of Palmas Case (United States v. The Netherlands)

Procedural History:
Arbitration of territorial dispute.

Overview:
-The United States (P) claimed that the Island of Palmas was part of the Philippines but the Netherlands
(D) claimed title as well.
-The United States (P) claimed the Island of Palmas was part of the Philippines and had been ceded by
Spain by the Treaty of Paris in 1898.
-The United States (P), as successor to the rights of Spain over the Philippines, based its claim of title in
the first place on discovery. The Netherlands (D) claimed that it had possessed and exercised rights of
sovereignty over the island from 1677 or earlier to the present.

Issue:
Can an inchoate title prevail over a definite title founded on continuous and peaceful display of
sovereignty?

Rule:
-An inchoate title cannot prevail over a definite title found on continuous and peaceful display of
sovereignty.

Analysis:
The arbitrator examined evidence of contracts made by the East India Company and the Netherlands (D).
The Netherlands (D) also based its claims on conventions it had with the princes and native chieftains of
the islands. Spain was found not to have had dominion over the island at the time of the Treaty of Paris in
1898.
Outcome:
-An inchoate title cannot prevail over a definite title founded on continuous and peaceful display of
sovereignty. The continuous and peaceful display of territorial sovereignty is as good as title. Discovery
alone, without any subsequent act, cannot suffice to prove sovereignty over the island. There is no
positive rule of international law that islands situated outside territorial waters should belong to a state
whose territory forms the nearest continent or large island. No one contested the exercise of territorial
rights by the Netherlands (D) from 1700 to 1906. The title of discovery, at best an inchoate title, does not
prevail over the Netherlands, (D) claim of sovereignty.

Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain)

Procedural History:
Action for damages for the expropriation of a corporation.

Overview:
-Belgium (P) brought an action for damages against Spain (D) on the ground that its nationals as
shareholders of the Barcelona Traction Co., incorporated and registered in Canada, had been seriously
harmed by actions of Spain (D) resulting in expropriation.
-The Barcelona Traction, Light, and Power Co. was incorporated and registered in Canada for the purpose
of developing and operating electrical power in Spain (D).
-After the Spanish Civil War, the company was declared bankrupt by a Spanish court and its assets were
seized.
-After the Canadian interposition ceased, Belgium (P) brought an action for damages against Spain (D)
for what it termed expropriation of the assets of the Traction Co. on the ground that a large majority of the
stock of the company was owned by Belgian (P) nationals.
-Spain (D) raised the preliminary objection that Belgium (P) lacked standing to bring suit for damages to
a Canadian company.

Issue:
Does the state of the shareholders of a company have a right of diplomatic protection if the state whose
responsibility is invoked is not the national state of the company?

Outcome:
No. In order for a state to bring a claim in respect of the breach of an obligation owed to it, it must first
establish its right to do so. This right is predicated on a showing that the defendant state has broken an
obligation toward the national state in respect of its nationals. In the present case it is therefore essential to
establish whether the losses allegedly suffered by Belgian (P) shareholders in Barcelona Traction were the
consequence of the violation of obligations of which they are beneficiaries.
-In the present state of the law, the protection of shareholders requires that recourse be had to treaty
stipulations or special agreements directly concluded between the private investor and the state in which
the investment is placed. Barring such agreements, the obligation owed is to the corporation, and only the
state of incorporation has standing to bring an action for violations of such an obligation. Nonetheless, for
reasons of equity a theory has been developed to the effect that the state of the shareholders has a right of
diplomatic protection when the state whose responsibility is invoked is the national state of the company.
This theory, however, is not applicable to the present case, since Spain (D) is not the national state of
Barcelona Traction. Barcelona Traction could have approached its national state, Canada, to ask for its
diplomatic protection.
-For the above reasons, the Court is of the opinion that Belgium (P) lacks standing to bring this action.

Rule:
the state of a shareholders corporation has a right of diplomatic protection only when the state whose
responsibility is invoked is the national state of the company.

Analysis:
The Restatement of the Foreign Relations Law of the United States. 185, states that failure of a state to
pay just compensation for the taking of the property of an alien is wrongful under international law,
regardless of whether the taking itself is conceived as wrongful. Such a wrongful taking is characterized
either as tortious conduct or as unjust enrichment

The Lotus Case (France vs Turkey)

Overview: A collision occurred on the high seas between a French vessel and a Turkish vessel. Victims
were Turkish nationals and the alleged offender was French. Could Turkey exercise its jurisdiction over
the French national under international law?

Facts of the Case:

A collision occurred on the high seas between a French vessel Lotus and a Turkish vessel Boz-
Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10
survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus. In Turkey, the
officer on watch of the Lotus (Demons), and the captain of the Turkish ship were charged with
manslaughter. Demons, a French national, were sentenced to 80 days of imprisonment and a fine. The
French government protested, demanding the release of Demons or the transfer of his case to the French
Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent Court of
International Justice (PCIJ).

Questions before the Court:

Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed
by a French national, outside Turkey? If yes, should Turkey pay compensation to France?

The Courts Decision:

Turkey, by instituting criminal proceedings against Demons, did not violate international law.

Relevant Findings of the Court:

Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an existing rule
of international law or is the mere absence of a prohibition preventing the exercise of jurisdiction enough?

The first principle of the Lotus case said that jurisdiction is territorial: A State cannot exercise its
jurisdiction outside its territory unless an international treaty or customary law permits it to do so. This is
what we called the first Lotus Principle.

Now the first and foremost restriction imposed by international law upon a State is that failing the
existence of a permissive rule to the contrary it may not exercise its power in any form in the territory of
another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its
territory except by virtue of a permissive rule derived from international custom or from a convention.
(para 45)

The second principle of the Lotus case: Within its territory, a State may exercise its jurisdiction, on any
matter, even if there is no specific rule of international law permitting it to do so. In these instances, States
have a wide measure of discretion, which is only limited by the prohibitive rules of international law.

It does not, however, follow that international law prohibits a State from exercising jurisdiction in its
own territory, in respect of any case which relates to acts which have taken place abroad, and in which it
cannot rely on some permissive rule of international law. Such a view would only be tenable if
international law contained a general prohibition to States to extend the application of their laws and the
jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to
this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the
case under international law as it stands at present. Far from laying down a general prohibition to the
effect that States may not extend the application of their laws and the jurisdiction of their courts to
persons, property and acts outside their territory, it leaves them in this respect a wide measure of
discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State
remains free to adopt the principles which it regards as best and most suitable. This discretion left to
States by international law explains the great variety of rules which they have been able to adopt without
objections or complaints on the part of other States In these circumstances all that can be required of a
State is that it should not overstep the limits which international law places upon its jurisdiction; within
these limits, its title to exercise jurisdiction rests in its sovereignty. (paras 46 and 47)

This applied to civil and criminal cases. If the existence of a specific rule was a pre-requisite to exercise
jurisdiction, PCIJ argued, then it wouldin many cases result in paralysing the action of the courts,
owing to the impossibility of citing a universally accepted rule on which to support the exercise of their
[States] jurisdiction (para 48).

The PCIJ based this finding on the sovereign will of States.

International law governs relations between independent States. The rules of law binding upon States
therefor emanate from their own free will as expressed in conventions or by usages generally accepted as
expressing principles of law and established in order to regulate the relations between these co-existing
independent communities or with a view to the achievement of common aims. Restrictions upon the
independence of States cannot therefore be presumed

[NB: This was one of the more debated aspects of the judgement. Some argued that the Court placed too
much emphasis on sovereignty and consent of States (i.e. took a strong positivist view)].

Criminal Jurisdiction: Territorial Jurisdiction

France alleged that the flag State of a vessel would have exclusive jurisdiction over offences committed
on board the ship in high seas. The PCIJ disagreed. It held that France, as the flag State, did not enjoy
exclusive territorial jurisdiction in the high seas in respect of a collision with a vessel carrying the flag of
another State (paras 71 84). The Court held that Turkey and France both have jurisdiction in respect of
the whole incident: i.e. there is concurrent jurisdiction.

The PCIJ held that a ship in the high seas is assimilated to the territory of the flag State. This State may
exercise its jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land, to the
exclusion of all other States. In this case, the Court equated the Turkish vessel to Turkish territory. In this
case, the PCIJ held that the offence produced its effects on the Turkish vessel and consequently in a
place assimilated to Turkish territory in which the application of Turkish criminal law cannot be
challenged, even in regard to offences committed there by foreigners. Turkey had jurisdiction over this
case.

If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag
or in foreign territory, the same principles must be applied as if the territories of two different States were
concerned, and the conclusion must therefore be drawn that there is no rule of international law
prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from
regarding the offence as having been committed in its territory and prosecuting, accordingly, the
delinquent.

The Lotus Case was also significant in that the PCIJ said that a State would have territorial jurisdiction,
even if the crime was committed outside its territory, so long as a constitutive element of the crime was
committed in that State. Today, we call this subjective territorial jurisdiction. In order for subjective
territorial jurisdiction to be established, one must prove that the element of the crime and the actual crime
are entirely inseparable; i.e., if the constituent element was absent the crime would not have happened.

The offence for which Lieutenant Demons appears to have been prosecuted was an act of negligence or
imprudence having its origin on board the Lotus, whilst its effects made themselves felt on board the
Boz-Kourt. These two elements are, legally, entirely inseparable, so much so that their separation renders
the offence non-existent It is only natural that each should be able to exercise jurisdiction and to do so
in respect of the incident as a whole. It is therefore a case of concurrent jurisdiction.

Customary International Law

The Lotus case gives an important dictum on creating customary international law. France alleged that
jurisdictional questions on collision cases are rarely heard in criminal cases because States tend to
prosecute only before the flag State. France argued that this absence of prosecutions points to a positive
rule in customary law on collisions.The Court held that this would merely show that States had often,
in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as
being obliged to do so; for only if such abstention were based on their being conscious of having a duty to
abstain would it be possible to speak of an international custom. The alleged fact does not allow one to
infer that States have been conscious of having such a duty; on the other hand, as will presently be seen,
there are other circumstances calculated to show that the contrary is true. In other words, 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.

Nottebohn Case (Liechtenstein v. Guatemala)

Brief Fact Summary. A month after the start of World War II, Nottebohn (P), a German citizen who had
lived in Guatemala (D) for 34 years, applied for Liechtenstein (P) citizenship.

Synopsis of Rule of Law. Nationality may be disregarded by other states where it is clear that it was a
mere device since the nationality conferred on a party is normally only the concerns of that nation
Facts. Nottebohn (P), a German by birth, lived in Guatemala (D) for 34 years, retaining his German
citizenship and family and business ties with it. He however applied for Liechtenstein (P) citizenship a
month after the outbreak of World War II. Nottebohm (P) had no ties with Liechtenstein but intended to
remain in Guatemala. The naturalization application was approved by Liechtenstein and impliedly waived
its three-year. After this approval, Nottebohm (P) travelled to Liechtenstein and upon his return to
Guatemala (D), he was refused entry because he was deemed to be a German citizen. His Liechtenstein
citizenship was not honored. Liechtenstein (P) thereby filed a suit before the International Court to
compel Guatemala (D) to recognize him as one of its national. Guatemala (D) challenged the validity of
Nottebohms (P) citizenship, the right of Liechtenstein (P) to bring the action and alleged its belief that
Nottebohm (P) remained a German national.

Issue. Must nationality be disregarded by other states where it is clear that it was a mere device since the
nationality conferred on a party is normally the concerns of that nation?
Held. NO. issues relating to citizenship are solely the concern of the granting nation. This is the general
rule. But it does not mean that other states will automatically accept the conferring states designation
unless it has acted in conformity with the general aim of forging a genuine bond between it and its
national aim. In this case, there was no relationship between Liechtenstein (P) and Nottebohm (P). the
change of nationality was merely a subterfuge mandated by the war. Under this circumstance, Guatemala
(D) was not forced to recognize it. Dismissed.

Discussion. A state putting forth a claim must establish a locus standi for that purpose. Without
interruption and continuously from the time of the injury to the making of an award been a national of the
state making the claim and must not have been a national of the state against whom the claim has been
filed. International law 347 (8th Ed. 1955) Vol.1.

Lasco v. UN Revolving Fund, 241 S 681

FACTS:

Petitioners filed a complaint for illegal dismissal and damages after being dismissed from their
employment with the United Nations Revolving Fund for Natural Resources Exploration (UNRFNRE)
which was involved in a joint project of the Philippine Government and the United Nations for
exploration work in Dinagat Island. The UNRFNRE filed a Motion to Dismiss and alleged that
respondent Labor Arbiter had no jurisdiction over its personality since the UNRFNRE enjoyed diplomatic
immunity pursuant to the 1946 Convention on the Privileges and Immunities of the United Nations. The
respondent attached a letter from the Department of Foreign Affairs acknowledging its immunity from
suit, prompting the Labor Arbiter to issue an order dismissing the complaints. Petitioners filed a motion
for reconsideration which was denied.

ISSUE:

Did the private respondent waive its diplomatic immunity when it engaged in exploration work and
entered into a contract of employment with the petitioners?

HELD:

No. The Supreme Court dismissed the petition, stating that the presence of the private respondent in the
Philippines was not because of a commercial venture but because of a joint project entered into by the
Philippine Government and the United Nations for mineral exploration in Dinagat Island. The mission of
the UNRFNRE was not to exploit our natural resources and gain monetarily but to help improve the
quality of life of the people which included that of the petitioners.

WHO vs Aquino Case Digest

Diplomatic Immunity, Political Question, Suits against International Agencies
Facts:

Dr. Leonce Verstuyft was assigned by WHO to its regional office in Manila as Acting Assistant Director
of Health Services. His personal effects, contained in twelve (12) crates, were allowed free entry from
duties and taxes. Constabulary Offshore Action Center (COSAC) suspected that the crates contain large
quantities of highly dutiable goods beyond the official needs of Verstuyft. Upon application of the
COSAC officers, Judge Aquino issued a search warrant for the search and seizure of the personal effects
of Verstuyft.

Secretary of Foreign Affairs Carlos P. Romulo advised Judge Aquino that Dr. Verstuyft is entitled to
immunity from search in respect for his personal baggage as accorded to members of diplomatic missions
pursuant to the Host Agreement and requested that the search warrant be suspended. The Solicitor
General accordingly joined Verstuyft for the quashal of the search warrant but respondent judge
nevertheless summarily denied the quashal. Verstuyft, thus, filed a petition for certiorari and prohibition
with the SC. WHO joined Verstuyft in asserting diplomatic immunity.

Issue:

Whether or not personal effect of Verstuyft can be exempted from search and seizure under the diplomatic
immunity.

Held:

Yes. The executive branch of the Phils has expressly recognized that Verstuyft is entitled to diplomatic
immunity, pursuant to the provisions of the Host Agreement. The DFA formally advised respondent judge
of the Philippine Government's official position. The Solicitor General, as principal law officer of the
gorvernment, likewise expressly affirmed said petitioner's right to diplomatic immunity and asked for the
quashal of the search warrant.

It is a recognized principle of international law and under our system of separation of powers that
diplomatic immunity is essentially a political question and courts should refuse to look beyond a
determination by the executive branch of the government, and where the plea of diplomatic immunity is
recognized and affirmed by the executive branch of the government as in the case at bar, it is then the
duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law
officer of the government, the Solicitor General in this case, or other officer acting under his discretion.
Courts may not so exercise their jurisdiction by seizure and detention of property, as to embarass the
executive arm of the government in conducting foreign relations.

The Court, therefore, holds the respondent judge acted without jurisdiction and with grave abuse of
discretion in not ordering the quashal of the search warrant issued by him in disregard of the diplomatic
immunity of petitioner Verstuyft. (World Health Organization vs. Aquino, G.R. No. L-35131, November
29, 1972, 48 SCRA 243)

MAGALLONA v. ERMITA, G.R. 187167, August 16, 2011

Facts:

In 1961, Congress passed R.A. 3046 demarcating the maritime baselines of the Philippines as an
Archepelagic State pursuant to UNCLOS I of 9158, codifying the sovereignty of State parties over their
territorial sea. Then in 1968, it was amended by R.A. 5446, correcting some errors in R.A. 3046 reserving
the drawing of baselines around Sabah.

In 2009, it was again amended by R.A. 9522, to be compliant with the UNCLOS III of 1984. The
requirements complied with are: to shorten one baseline, to optimize the location of some basepoints and
classify KIG and Scarborough Shoal as regime of islands.

Petitioner now assails the constitutionality of the law for three main reasons:

1. it reduces the Philippine maritime territory under Article 1;

2. it opens the countrys waters to innocent and sea lanes passages hence undermining our sovereignty
and security; and

3. treating KIG and Scarborough as regime of islands would weaken our claim over those territories.

Issue: Whether R.A. 9522 is constitutional?

Ruling:

1. UNCLOS III has nothing to do with acquisition or loss of territory. it is just a codified norm that
regulates conduct of States. On the other hand, RA 9522 is a baseline law to mark out basepoints along
coasts, serving as geographic starting points to measure. it merely notices the international community of
the scope of our maritime space.

2. If passages is the issue, domestically, the legislature can enact legislation designating routes within the
archipelagic waters to regulate innocent and sea lanes passages. but in the absence of such, international
law norms operate.

the fact that for archipelagic states, their waters are subject to both passages does not place them in lesser
footing vis a vis continental coastal states. Moreover, RIOP is a customary international law, no modern
state can invoke its sovereignty to forbid such passage.

3. On the KIG issue, RA 9522 merely followed the basepoints mapped by RA 3046 and in fact, it
increased the Phils. total maritime space. Moreover, the itself commits the Phils. continues claim of
sovereignty and jurisdiction over KIG.

If not, it would be a breach to 2 provisions of the UNCLOS III:

Art. 47 (3): drawing of basepoints shall not depart to any appreciable extent from the general
configuration of the archipelago.

Art 47 (2): the length of baselines shall not exceed 100 mm.

KIG and SS are far from our baselines, if we draw to include them, well breach the rules: that it should
follow the natural configuration of the archipelago.

Summary of Key Claims and Holdings

The Philippines claims fell into four general categories. The ruling of the Tribunal on each category of
claims is summarized below:

1. The broadest claim was a challenge to Chinas nine-dash line covering most of the South China Sea.
China has never clarified whether the line represents a claim to the islands within the line and their
adjacent waters; a boundary of national sovereignty over all the enclosed waters (including, but not
limited by, the land features inside the line); or a historic claim of sovereignty or some other set of
historic rights to the maritime space within the line. The Philippines sought a declaration that the
countries respective rights and obligations regarding the waters, seabed, and maritime features of the
South China Sea are governed by UNCLOS. As such, Chinas claims based on any historic rights to
waters, seabed, and subsoil within the nine-dash line are contrary to UNCLOS and invalid. (See Table:
Claims 1 and 2)

Holding: UNCLOS comprehensively governs the parties respective rights to maritime areas in the
South China Sea. Therefore, to the extent Chinas nine-dash line is a claim of historic rights to the
waters of the South China Sea, it is invalid.

Reasoning: Whatever historic rights China may have had were extinguished when UNCLOS was adopted,
to the extent those rights were incompatible with UNCLOS.

2. The Philippines sought a determination as to whether certain land features in the Spratly Islands
claimed by both China and the Philippines are properly characterized as islands, rocks, low tide elevations
(LTEs), or submerged banks. Under UNCLOS, an island generates both a territorial sea of 12 nautical
miles and an exclusive economic zone (EEZ) of up to 200 nautical miles, subject to delimitation of a
maritime boundary with any other countries overlapping territorial seas or EEZs. A rock is entitled to a
territorial sea no greater than 12 nautical miles, but not an EEZ. LTEs and submerged banks do not
generate any such entitlements. (See Table: Claims 3, 4, 6, and 7)

Holding: None of the features in the Spratly Islands generates an EEZ, nor can the Spratly Islands
generate an EEZ collectively as a unit. As such, the Tribunal declared certain areas are within the
Philippines EEZ and not overlapped by any possible Chinese entitlement.

Reasoning: The baseline of analysis is what the features can sustain in their natural condition (i.e., not
after construction of artificial islands, installation of desalination plants, etc.). Based on historical
evidence, none of the features in the Spratly Islands can sustain either a stable community of people or
economic activity that is not dependent on outside resources or purely extractive in nature. The current
presence of personnel on the features is dependent on outside support and does not reflect the capacity of
the features in their natural condition.
3. The Philippines sought a declaration that China violated UNCLOS by interfering with the Philippines
rights and freedoms within its EEZs. This includes preventing Philippine fishing around Scarborough
Shoal, violating UNCLOSs environmental protection provisions through construction and fishing
activities that have harmed the marine environment (including at Scarborough Shoal, Second Thomas
Shoal, and Mischief Reef), and by dangerously operating law enforcement vessels around Scarborough
Shoal. (See Table: Claims 5, 8, 9, 10, 11, 12, and 13)

Holding: China violated the Philippines sovereign rights in its EEZ. It did so by interfering with
Philippine fishing and hydrocarbon exploration; constructing artificial islands; and failing to prevent
Chinese fishermen from fishing in the Philippines EEZ. China also interfered with Philippine
fishermens traditional fishing rights near Scarborough Shoal (without prejudice to the question of
sovereignty over Scarborough Shoal). Chinas construction of artificial islands at seven features in the
Spratly Islands, as well as illegal fishing and harvesting by Chinese nationals, violate UNCLOS
obligations to protect the marine environment. Finally, Chinese law enforcement vessels unlawfully
created a serious risk of collision by physically obstructing Philippine vessels at Scarborough Shoal in
2012.

Reasoning: This set of holdings depended on the Tribunal finding that certain areas are within the
Philippines EEZ and not subject to possible overlapping Chinese entitlements. It also depended on
finding that activities such as island construction are, in accordance with Chinas own public statements,
not military activities and therefore not excluded from jurisdiction under UNCLOS. Once this was
established, the Tribunal considered Chinese activities in the relevant areas and found that China had (a)
interfered with Philippine petroleum exploration at Reed Bank, (b) purported to prohibit fishing by
Philippine vessels within the Philippine EEZ, (c) protected and failed to prevent Chinese fishermen from
fishing within the Philippine EEZ at Mischief Reef and Second Thomas Shoal, and (d) constructed
artificial islands/installations at Mischief Reef without the Philippines authorization. As for Scarborough
Shoal, regardless of who has sovereignty, both Philippine and Chinese fishermen have traditional fishing
rights at the Shoal that were not extinguished by UNCLOS, and China violated the Philippines rights by
entirely preventing Filipino fishermen from fishing near Scarborough Shoal after May 2012. In addition,
Chinese artificial island construction has caused severe harm to the coral reef environment and China
has failed to stop its nationals from engaging in harmful and destructive harvesting and fishing of
endangered sea turtles, coral, and giant clams in violation of UNCLOS. Finally, Chinese law enforcement
vessels violated maritime safety obligations by creating a serious risk of collision on two occasions in
April and May 2012 during the Scarborough Shoal standoff.

4. The Philippines sought a declaration that Chinas recent actions, specifically its land reclamation and
construction of artificial islands in the Spratly Islands after the arbitration was commenced, violated the
obligations UNCLOS places on states to refrain from conduct that aggravates and extends a dispute
while dispute resolution proceedings are pending. (See Table: Claim 14)

Holding: China has aggravated and extended the disputes through its dredging, artificial island-building,
and construction activities.

Reasoning: While these proceedings were pending, China has built a large island on Mischief Reed, an
LTE within the Philippines EEZ; caused irreparable harm to the marine ecosystem; and permanently
destroyed evidence of the natural condition of the features at issue.
Table of Philippine Claims and Tribunal Rulings*

Submission
Philippines Claim Jurisdictional Ruling Merits Ruling
Number
(Deferred to merits
Yes: UNCLOS
stage)
comprehensively allocates
Chinas maritime entitlements
rights to maritime areas
in South China Sea may not
1
exceed those established by
UNCLOS Jurisdiction granted
Philippines win
Yes: There is no legal basis for
China to claim historic rights
(Deferred to merits to waters in the South China
Chinas nine-dash line claim stage) Sea (so, to the extent that is
is invalid to the extent it what the nine-dash line means,
exceeds the limits established it is invalid)
2
by UNCLOS
Jurisdiction granted

Philippines win

Yes: Scarborough Shoal is a

rock that generates no EEZ
Scarborough Shoal generates no
EEZ or continental shelf
3 Jurisdiction granted
Philippines win

Yes: Mischief Reef, Second

Mischief Reef, Second Thomas Thomas Shoal, and Subi Reef
Shoal, and Subi Reef are all are LTEs
LTEs that do not generate
4 territorial seas or EEZs, and are Jurisdiction granted
not subject to appropriation
Philippines win

(Deferred to merits Yes: Mischief Reef and

Mischief Reef and Second
stage) Second Thomas Shoal are part
Thomas Shoal are part of the
of the EEZ and continental
Philippines EEZ and
5 shelf of the Philippines
continental shelf
Jurisdiction granted

Gaven Reef and McKennan
Reef (including Hughes Reef)
are LTEs that generate no
maritime entitlements, but may
6 Jurisdiction granted
be used to determine baselines
to measure territorial sea
Johnson Reef, Cuarterton Reef,
and Fiery Cross Reef generate
no entitlements to EEZ or
7 Jurisdiction granted
continental shelf
China has interfered with the
Philippines exercise of
sovereign rights over living and
8 non-living resources within its
EEZ and continental shelf
China has failed to prevent its
nationals and vessels from
exploiting the living resources
9
in the Philippines EEZ
China has prevented Philippine
fishermen from pursuing their
10
livelihoods through traditional
fishing activities around
Philippines win
No: Both Gaven and
McKennan Reef are above
water at high tide; they are
rocks that generate territorial
seas but no EEZ or continental
shelf
Philippines loss
Yes: Johnson Reef, Cuarterton
Reef, and Fiery Cross Reef are
rocks that generate no EEZ or
continental shelf
Philippines win
Yes: China has interfered with
(Deferred to merits Philippine sovereign rights to
stage) fishing and hydrocarbon
exploration within its EEZ
Jurisdiction granted
Philippines win
Yes: China failed to prevent
(Reserved to merits Chinese fishermen from
stage) fishing within the Philippine
EEZ
Jurisdiction granted
Philippines win
Yes: China violated the
Jurisdiction granted Philippines traditional
fishing rights at Scarborough
 Scarborough Shoal Shoal

Philippines win

Yes: China engaged in

environmentally harmful
China has violated UNCLOSs fishing/harvesting practices at
environmental protection Scarborough Shoal and Second
obligations at Scarborough Thomas Shoal
11 Shoal and Second Thomas Jurisdiction granted
Shoal

Philippines win

Yes: Environmental protection

provisions were violated at
Mischief Reef; artificial island
construction violated
Chinas occupation and
(Deferred to merits Philippine sovereign rights
construction on Mischief Reef
stage) within its EEZ; the
violate UNCLOS provisions on
appropriation claim is moot
artificial islands and
because Mischief Reef is an
12 environmental protection, and
LTE not capable of
are unlawful acts of attempted
Jurisdiction granted appropriation
appropriation

Philippines win

Yes: China violated UNCLOS

China has violated UNCLOS by and other treaty provisions on
dangerously operating law maritime safety
enforcement vessels creating
13 serious risk of collision near Jurisdiction granted
Scarborough Shoal
Philippines win

China has unlawfully (Deferred to merits Yes: Although there is no

aggravated and extended the
dispute by interfering with the
14
Philippines rights of navigation
near Scarborough Shoal,
preventing the rotation and
stage) jurisdiction over disputes
involving military activities
such as the Second Thomas
Shoal standoff, China has
Jurisdiction granted in aggravated/extended the
 resupply of Philippine part, denied in part disputes through recent large-
personnel stationed at Second scale land reclamation and
Thomas Shoal, and endangering artificial island construction in
the health of the personnel there the Philippine EEZ

Philippines win

(Deferred to merits
Going forward China shall Qualified yes: This claim
stage)
respect the rights and freedoms simply asks China to do what it
of the Philippines under is required to do under
15 UNCLOS and comply with its UNCLOS; therefore, no further
duties under UNCLOS statement is necessary
Jurisdiction granted

Initial Takeaways

1. Not many people predicted that the Philippines would all but run the table in this case. Its hard to
imagine a much more favorable outcome for their legal team.

2. One of the ironies of the Award is that China has vociferously argued in public statements that it is not
militarizing the South China Sea and that its actions there are for civilian purposes. Those claims turned
out to be crucial to the Tribunals conclusion that it had jurisdiction to consider the legality of certain
Chinese actions such as construction of artificial islands in the South China Sea, because Article
298(1)(b) of UNCLOS excludes disputes concerning military activities from compulsory dispute
settlement. Despite Chinas non-participation in the proceedings, the Tribunal went out of its way to
review the December 2014 position paper issued by Chinas Ministry of Foreign Affairs as well as
numerous public statements of Chinese leaders. This was an example of where those public statements
worked against Chinas legal interests in the arbitration.

3. The Tribunal rejected the possibility that China could claim the entirety of the Spratly Islands as a
single archipelagic feature, as suggested in recent statements by the Ministry of Foreign Affairs as well as
a white paper issued last month by the Chinese Society of International Law. As Julian noted earlier, this
was a bit of a preemptory legal strike against any Chinese attempt to draw straight baselines around the
Spratlys and thus treat the whole area as a single entity for generating maritime rights.

4. Of all the rulings on the status of features in the Spratly Islands, perhaps none will generate more
discussion than the conclusion that Itu Aba (Taiping Island) is a rock and not an island. Many observers
thought that Itu Aba, the largest naturally occurring land feature in the Spratly Islands, had the strongest
claim to being deemed an island entitled to both a territorial sea and an EEZ. The concepts the Tribunal
employed to determine what makes something a rock[] which cannot sustain human habitation or
economic life of [its] own are likely to guide future legal determinations of this character.

It will take time to digest this portion of the opinion, but the Tribunals habitability and economic life
factors seem to include:
The objective capacity of the feature in its natural condition (i.e., without external additions or
modifications and without outside support), to sustain, over an extended period of time, either
(a) a stable community of people for whom the feature constitutes a home and on which they can remain,
or
(b) economic activity that is not
(i) dependent on outside resources, or
(ii) purely extractive in nature without the involvement of a local population.
Factors contributing to the natural capacity of a feature to do so include the presence of water, food, and
shelter in sufficient quantities to enable a group of persons to live on the feature for an indeterminate
period of time.
In assessing these capacity factors, the Tribunal stated, the most reliable evidence of the capacity of a
feature will usually be the historical use to which it has been put. Applying that standard here, the
Tribunal saw no indication that anything fairly resembling a stable human community has ever formed
on the Spratly Islands. Rather, the islands have been a temporary refuge and base of operations for
fishermen and a transient residence for labourers engaged in mining and fishing.
5. Given its sweeping conclusions favoring the Philippines, the Award may seem to have nothing positive
in it for China. But the Tribunal offered an important qualification to its judgment, and perhaps a bit of
an olive branch toward the end of a decision it knew would not be well received in Beijing. We should
not assume, said the Tribunal, that these disputes are the product of bad faith on the part of the PRC;
rather, they are the result of basic disagreements about respective rights and obligations and the
applicability of UNCLOS. From paragraph 1198 of the Award:

The root of the disputes presented by the Philippines in this arbitration lies not in any intention on the
part of China or the Philippines to infringe on the legal rights of the other, but ratheras has been
apparent throughout these proceedingsin fundamentally different understandings of their respective
rights under the Convention in the waters of the South China Sea. In such circumstances, the purpose of
dispute resolution proceedings is to clarify the Parties respective rights and obligations and thereby to
facilitate their future relations in accordance with the general obligations of good faith that both
governments unequivocally recognise.
6. Where does this leave us? Chinas position all along with respect to these proceedings can be summed
up as no acceptance, no participation, no recognition, and no implementation. The PRC Ministry of
Foreign Affairs predictably wasted no time releasing a statement declaring that the award is null and
void and has no binding force. The Philippine Foreign Affairs Secretary welcomed the decision, stating:
The Philippines strongly affirms its respect for this milestone decision as an important contribution to
ongoing efforts in addressing disputes in the South China Sea. No surprises here, especially given that
the Tribunal resolved virtually all the key issues in favor of the Philippines. For its part, the U.S. State
Department issued a measured statement remarking that [t]he decision today by the Tribunal in the
Philippines-China arbitration is an important contribution to the shared goal of a peaceful resolution to
disputes in the South China Sea.

As these statements suggest, the issuance of this Award by no means puts to rest the disputes or the
tensions in the South China Sea. The arbitration was never going to resolve issues of sovereignty over the
islands and rocks in the South China Sea, because disputes over territorial sovereignty are beyond the
jurisdiction of an UNCLOS Tribunal. And since the Tribunal has no power to enforce its nominally
binding decision, questions now turn to what any form of implementation might look like and the effect
this ruling will have on future negotiations over territorial sovereignty.

China, the Philippines, ASEAN countries, and the United States face a range of strategic questions about
the best way forward. Will Beijing demonstrate its disregard for the decision by engaging in land
reclamation at Scarborough Shoal or declaring an Air Defense Identification Zone in the South China Sea,
as some have predicted? Will it continue to insist on conditioning any future bilateral negotiations with
the administration of new Philippine President Rodrigo Duterte on his governments rejection of the
Tribunals Award? Will it worry that some of these behaviors will push the Philippines and other ASEAN
nations closer to the United States? Will we see the U.S. Navy conducting pure freedom of navigation
operations (FONOPs) within 12 nautical miles of the Spratly Island features the Tribunal says are not
entitled to a territorial sea?

Regina v. Bartle, Bow Street Stipendiary Magistrate and Commissioner of Police, Ex

parte Pinochet
Procedural History:
Appeal from arrest and extradition order.

Overview:
-Pinochet (D) claimed that he could not be extradited because he was not guilty of any crime under
English law. An English magistrate issued an arrest warrant for Pinochet (D), the former head of state of
Chile, at the request of a Spanish investigating judge for extradition.
-The House of Lords found that Pinochet (D) could not claim immunity in regard to torture that had been
made a universal crime by the International Convention Against Torture and other Cruel, Inhuman, or
Degrading Treatment or Punishment of 1984.
-Pinochet (D) claimed torture was not strictly an international crime in the highest sense.

Issue:
Is torture an international crime?

Rule:
Yes, torture is an international crime.

Analysis:
The Torture Convention created an exception to the otherwise applicable immunity of present and former
heads of state from criminal process. Pinochet (D) ultimately was found to be too sick to stand trial. He
was allowed to return to Chile.

Outcome:
-Torture is an international crime. The Torture Convention was agreed not to create an international crime
that had not previously existed but to provide an international system under which the international
criminal-the torturer-could find no safe haven.
-All state parties are required to prohibit torture on their territory and to take jurisdiction over any alleged
offender who is found within their territory.
-Torture is to be treated as an extraditable offense and will be considered to have been committed not only
in the place where it occurred but also in the state where either the alleged offender or victim is a national.
 Nuclear Tests Case (Australia & New Zealand v. France)
Procedural History:
Proceeding before the International Court of Justice.

Overview:
Australia and New Zealand (P) demanded that France (D) cease atmospheric nuclear tests in the South
Pacific. France (D) completed a series of nuclear tests in the South Pacific. Australia and New Zealand
(P) applied to the !.C.). demanding that France (D) cease testing immediately. While the case was
pending, France (D) announced the series of tests was complete and that it did not plan any further such
tests. France (D) moved to dismiss the applications.

Issue:
May declarations made by way of unilateral acts have the effect of creating legal obligations?

Rule:
declerations made by way of unilateral acts may have the effect of creating legal obligations.

Analysis:
The unilateral statements made by French authorities were first communicated to the government of
Australia. To have legal effect there was no need tor the statements to be directed to any particular state.
The general nature and characteristics of the statements alone were relevant for evaluation of their legal
implications.

Outcome:
Yes. Declarations made by way of unilateral acts may have the effect of creating legal obligations. The
sole relevant question is whether the language employed in any given declaration reveals a clear intention.
One of the basic principles governing the creation and performance of legal obligations is the principle of
good faith. The statements made by the President of the French Republic must be held to constitute an
engagement of the State in regard to the circumstances and intention with which they were made. The
statements made by the French authorities are therefore relevant and legally binding. Applications
dismissed.

Advisory Opinion on Namibia (1972)

Procedural History:
NATURE OF CASE: Advisory opinion as to legality of occupation.

FACT SUMMARY: south Africa (D) occupied Namibia under a claim of right to annex that territory, but
in violation of a United Nations (U.N.) Security Council Mandate which, though later terminated due to
South Africas breach, empowered the Security Council to enforce its terms.

Overview:
FACTS: South Africa (D) began occupation of Namibia under a claim of right to annex that territory and
under a claim that the people of Namibia desired South African (D) rule. South Africa (D) was a Member
State of the United Nations and was subject to a U.N. Mandate prohibiting Member States from taking
physical control of other territories. The U.N. General Assembly adopted Resolution 2145 (XXI)
terminating the Mandate for South Africa (D), and the Security Council adopted Resolution 276 (1970)
declaring South Africas (D) continued presence in Namibia to be illegal and calling upon the other
Member States to act accordingly. The International Court of justice was called upon to render an
advisory opinion.

Rule:
mandates adopted by the UN are binding upon all member states, and violations or breaches result in a
legal obligation on the part of the violater to rectify the violation and upon the other member states to
recognize the conduct as a violation and refuse to aid in such violation.

Issue:
-Are mandates adopted by the United Nations binding upon all Member States so as to make breaches or
violations thereof result in a legal obligation on the part of the violator to rectify the violation and upon
other Member States to recognize the conduct as a violation and to refuse to aid in such violation?

Outcome:
HOLDING AND DECISION: Yes. Mandates adopted by the United Nations are binding upon all
Member States, and violations or breaches result in a legal obligation on the part ,of the violator to rectify
the violation and upon the other Member States to recognize the conduct as a violation and to refuse to aid
in such violation. The Member States have assumed an obligation to keep intact and preserve the rights of
other States and the people in them. When a party to the Mandate giving rise to this obligation fails to
fulfill its own obligations under it, that party cannot be recognized as retaining the rights that it claims to
derive from the relationship. The General Assembly found that South Africa (D) was in material breach of
the Mandate because of deliberate and persistent violations of it by occupying Namibia. The Assembly
has the right to terminate the Mandate with respect to a violating Member State, which was accomplished
by resolution 2145 (XXI) in this case. The decisions and resolutions of the Security Council in enforcing
such termination are binding upon all Member States, regardless of how they voted on the measure when
adopted. South Africa (D) is thus subject to the Mandate, the resolution terminating it as to South Africa
(D), and the enforcement procedures of the Security Council. South Africas (D) illegal action gives rise
to an obligation to put the violative conduct to an end. Mandates adopted by the United Nations are
binding upon all Member States and violations or breaches result in legal obligations on the part of the
violator to rectify the violation, and upon the other Member States to recognize the conduct as a violation
and to refuse to aid in such violation.

Analysis:
South Africa (D) did not restore independence to Namibia despite agreeing to do so with the United
Nations The General Assembly adopted a number of resolutions imposing mandatory sanctions for
enforcement South Africa [D) was "strongly condemned" for its actions.