Nicolas vs Romulo Kenney executed agreements that pursuant to the VFA,

Smith be returned to the US military custody and be

FACTS detained at the first floor, Rowe Building, US Embassy
Compound.
1. December 4, 2006: Lance Corporal Daniel
Smith was convicted for the rape of Suzette
Petitioner Jovito Salonga, et al. challenged the validity of
Nicolas and was sentenced reclusion perpetua.
the said agreements contending that the Philippines should
2. December 29, 2006: Smith was taken out of
have custody of Smith because, first of all, the VFA is void
the Makati jail by a contingent of Philippine
and unconstitutional since it violates Art. XVlll, Sec. 25 of
law enforcement agents, purportedly acting
the constitution.
under orders of the Department of the
Interior and Local Government, and brought to
Is the VFA constitutional? Granting that it is
a facility for detention under the control of
constitutional, Are the Romulo-Kenney Agreements in
the United States government, provided for
accordance with the provisions of the VFA itself?
under new agreements between the Philippines
and the United States, referred to as the
Romulo-Kenney1 Agreement of December 19,
SUGGESTED ANSWER:
2006 .
3. The matter was brought before the Court of
The SC ruled The Visiting Forces Agreement (VFA)
Appeals but was dismissed for being moot.
between the Republic of the Philippines and the United
Hence, the petition. Petitioners contend that
States, entered into on February 10, 1998, is constitutional,
the Philippines should have custody of
but the Romulo-Kenney Agreements of December 19 and
defendant L/CPL Smith because, first of all,
22, 2006 are DECLARED not in accordance with the VFA.
the VFA is void and unconstitutional.

Lance Corporal Daniel Smith Case
Lance Corporal Daniel Smith, member of the US Armed
Forces, was found guilty beyond reasonable doubt of the
crime of rape in the RTC of Makati. The court ordered
Smith detained at the Makati City Jail until further
orders.
VFA is Constitutional
The SC ruled that “the VFA was duly concurred in by the
Philippine Senate and has been recognized as a treaty by
the United States,” and “the fact that (it) was not
submitted for advice and consent of the United States
does not detract from its status as a binding international
agreement or treaty recognized by the said State.”

On December 19 and 22, 2006, Philippine Foreign Affairs
Secretary Alberto Romulo and US Ambassador Kristie
1
The Department of Foreign Affairs of the Republic
of the Philippines and the Embassy of the United
States of America agree that, in accordance with
the Visiting Forces Agreement signed between the
two nations, upon transfer of Lance Corporal Daniel
J. Smith, United States Marine Corps, from the
Makati City Jail, he will be detained at the first floor,
Rowe (JUSMAG) Building, U.S. Embassy
Compound in a room of approximately 10 x 12
square feet. He will be guarded round the clock by
U.S. military personnel. The Philippine police and
jail authorities, under the direct supervision of the
Philippine Department of Interior and Local
Government (DILG) will have access to the place of
detention to ensure the United States is in
compliance with the terms of the VFA.
Section 25, Article XVIII, 1987 Constitution provides that
“foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly
concurred in by the Senate and, 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.”
The issue, the Court said, is “whether or not the presence
of the US Armed Forces in Philippine territory pursuant to
the VFA is allowed ‘under a treaty duly concurred in by the
Senate and recognized as a treaty by the other contracting
State.’” “It is,” the Court ruled. “The VFA, which is the
instrument agreed upon to provide for the joint RP-US
military exercises, is simply an implementing agreement to
the main RP-US Mutual Defense Treaty,” the Court held.
visit fellester.blogspot.com The RP-US Mutual Defense
Treaty of August 30, 1951 was signed and duly ratified with
the concurrence of both the Philippine Senate and the
United States Senate.
Romulo-Kenney Agreements not in accord with the VFA
itself
The Court however ruled that “the Romulo-Kenney
Agreements of December 19 and 22, 2006, which are
agreements on the detention of the accused in the United
States Embassy, are not in accord with the VFA itself
because such detention is not “by Philippine authorities.”
Article V, Section 10 of the VFA provides that “the
confinement or detention by Philippine authorities of the
United States personnel shall be carried out in facilities
agreed on by appropriate Philippines and United States
authorities.” (Suzette Nicolas y Sombilon Vs. Alberto
Romulo, G.R. No. 175888, February 11, 2009)
DISSENTING OPINION
In his dissent, Chief Justice Puno maintained his view in the
earlier case of Bayan v. Zamora that the VFA falls short of
the requirement set by Sec. 25, Art. XVIII, 1987
Constitution, which provides that the agreement allowing
the presence of foreign military troops in the Philippines
must be “recognized as a treaty by the other contracting
state.” For the Chief Justice, the majority of the Court in
Bayan v. Zamora gave undue deference to the statement of
former US Ambassador Thomas Hubbard that US Senate
advice and consent was not needed to consider a treaty
binding on the US, “then jumped to the conclusion that the
US recognized the VFA as a treaty, and that the
constitutional requirements had been satisfied.” (Suzette
Nicolas y Sombilon Vs. Alberto Romulo, G.R. No. 175888,
February 11, 2009)
SUZETTE NICOLAS Y SOMBILON v. ALBERTO
ROMULO, GR No. 175888, 2009-02-11
Facts:
Respondent Lance Corporal (L/CPL) Daniel Smith is a
member of the United States Armed Forces. He was
charged with the crime of rape committed against a
Filipina, petitioner herein, sometime on November 1, 2005
Pursuant to the Visiting Forces Agreement (VFA) between
the Republic of the Philippines and the United States,
entered into on February 10, 1998, the United States, at
its request, was granted custody of defendant Smith
pending the proceedings.
United States Government faithfully complied with its
undertaking to bring defendant Smith to the trial court
every time his presence was... required.
RTC of Makati, following the end of the trial, rendered its
Decision, finding defendant Smith guilt
As a result, the Makati court ordered Smith detained at
the Makati jail until further orders.
Smith was taken out of the Makati jail by a contingent of
Philippine law enforcement agents, purportedly acting under
orders of the Department of the Interior and Local
Government, and brought to a facility for detention under
the control... of the United States government, provided
for under new agreements between the Philippines and the
United States, referred to as the Romulo-Kenney
Agreement... in accordance with the Visiting Forces
Agreement signed between our two nations, Lance Corporal
Daniel J. Smith, United States Marine Corps, be returned...
to U.S. military custody at the U.S. Embassy in Manila.
He will be guarded round the clock by U.S. military
personnel. The Philippine police and jail... authorities, under
the direct supervision of the Philippine Department of
Interior and Local Government (DILG) will have access to
the place of detention to ensure the United States is in
compliance with the terms of the VFA.
Clark and Subic and the other places in the Philippines
covered by the RP-US Military Bases Agreement of 1947
were not Philippine territory, as they were excluded from
the cession and retained by the US.
Accordingly, the Philippines had no jurisdiction over these
bases except to the extent allowed by the United States.
RP-US Military Bases Agreement was never advised for
ratification by the United States Senate, a disparity in
treatment, because the Philippines... regarded it as a treaty
and had it concurred in by our Senate.
Subsequently, the United States agreed to turn over these
bases to the Philippines; and with the expiration of the RP-
US Military Bases Agreement in 1991, the territory
covered by these bases were finally ceded to the
Philippines.
whether or not the presence of US Armed Forces in
Philippine territory pursuant to the VFA is allowed "under a
treaty duly concurred in by the Senate xxx and recognized
as a treaty by the other... contracting State."
Issues:
whether or not the presence of US Armed Forces in
Philippine territory pursuant to the VFA is allowed "under a
treaty duly concurred in by the Senate xxx and recognized
as a treaty by the other... contracting State."
Petitioners contend that these undertakings violate
another provision of the Constitution, namely, that
providing for the exclusive power of this Court to adopt
rules of procedure for all courts in the Philippines (Art.
VIII, Sec. 5[5]). They argue that to... allow the transfer of
custody of an accused to a foreign power is to provide for a
different rule of procedure for that accused, which also
violates the equal protection clause of the Constitution
(Art. III, Sec. 1.).
Ruling:
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,[5] the VFA was duly
concurred in by the Philippine Senate and has been
recognized as a treaty by the United States as attested
and certified by the duly authorized representative of the
United States... government.
The fact that the VFA was not submitted for advice and
consent of the United States Senate does not detract
from its status as a binding international agreement or
treaty recognized by the said State. For this is a matter of
internal United States law.
The second reason has to do with the relation between the
VFA and the RP-US Mutual Defense Treaty of August 30,
1951. This earlier agreement was signed and duly ratified
with the concurrence of both the Philippine Senate and the
United States Senate.
Clearly, therefore, joint RP-US military exercises for the
purpose of developing the capability to resist an armed
attack fall squarely under the provisions of the RP-US
Mutual Defense Treaty. The VFA, which is the instrument
agreed upon to provide for the joint RP-US military...
exercises, is simply an implementing agreement to the main
RP-US Military Defense Treaty.
The Preamble of the VFA states
Reaffirming their obligations under the Mutual Defense
Treaty of August 30, 1951;
Accordingly, as an implementing agreement of the RP-US
Mutual Defense Treaty, it was not necessary to submit the
VFA to the US Senate for advice and consent, but merely
to the US Congress under the Case-Zablocki Act within 60
days of its ratification. It is for this reason that... the US
has certified that it recognizes the VFA as a binding
international agreement, i.e., a treaty, and this substantially
complies with the requirements of Art. XVIII, Sec. 25 of
our Constitution.
The provision of Art. XVIII, Sec. 25 of the Constitution, is
complied with by virtue of the fact that the presence of
the US Armed Forces through the VFA is a presence
"allowed under" the RP-US Mutual Defense Treaty.
The VFA provides that in cases of offenses committed by
the members of the US Armed Forces in the Philippines,
the following rules apply:
The custody of any United States personnel over whom the
Philippines is to exercise jurisdiction shall immediately
reside with United States military authorities, if they so
request, from the commission of the offense until
completion of all judicial proceedings.
this Court finds no violation of the Constitution.
Nothing in the Constitution prohibits such agreements
recognizing immunity from jurisdiction or some aspects of
jurisdiction (such as custody), in relation to long-recognized
subjects of such immunity like Heads of State, diplomats
and members of the armed forces contingents of... a
foreign State allowed to enter another State's territory.
On the contrary, the Constitution states that the
Philippines adopts the generally accepted principles of
international law as part of the law of the land.
Applying, however, the provisions of VFA, the Court finds
that there is a different treatment when it comes to
detention as against custody. The moment the accused has
to be detained, e.g., after conviction, the rule that governs
is the following provision of the
VFA:
The confinement or detention by Philippine authorities of
United States personnel shall be carried out in facilities
agreed on by appropriate Philippines and United States
authorities. United States personnel serving sentences in
the Philippines shall have the right to... visits and material
assistance.
It is clear that the parties to the VFA recognized the
difference between custody during the trial and detention
after conviction, because they provided for a specific
arrangement to cover detention.
not only that the detention shall... be carried out in
facilities agreed on by authorities of both parties, but also
that the detention shall be "by Philippine authorities."
Therefore, the Romulo-Kenney Agreements of December 19
and 22, 2006, which are agreements on the detention of
the accused in the United
States Embassy, are not in accord with the VFA itself
because such detention is not "by Philippine authorities."
Next, the Court addresses the recent decision of the
United States Supreme Court in Medellin v. Texas ( 552 US
___ No. 06-984, March 25, 2008), which held that treaties
entered into by the United States are not automatically
part of their domestic law unless these... treaties are self-
executing or there is an implementing legislation to make
them enforceable.
First, the VFA is a self-executing Agreement, as that term
is defined in Medellin itself, because the parties intend its
provisions to be enforceable, precisely because the
Agreement is intended to carry out obligations and
undertakings under the RP-US
Mutual Defense Treaty.
Secondly, the VFA is covered by implementing legislation,
namely, the Case-Zablocki Act, USC Sec. 112(b), inasmuch
as it is the very purpose and intent of the US Congress
that executive agreements registered under this Act
within 60 days from their ratification be... immediately
implemented.
VFA differs from the Vienna Convention on Consular
Relations and the Avena decision of the International Court
of Justice (ICJ), subject matter of the Medellin decision.
The Convention and the ICJ decision are not self-executing
and are not... registrable under the Case-Zablocki Act, and
thus lack legislative implementing authority.
inally, the RP-US Mutual Defense Treaty was advised and
consented to by the US Senate
Principles:
The rule in international law is that a foreign armed forces
allowed to enter one's territory is immune from local
jurisdiction, except to the extent agreed upon. The Status
of Forces Agreements involving foreign military units
around the world vary in terms and conditions,... according
to the situation of the parties involved, and reflect their
bargaining power. But the principle remains, i.e., the
receiving State can exercise jurisdiction over the forces of
the sending State only to the extent agreed upon by the
parties.
As a result, the situation involved is not one in which the
power of this Court to adopt rules of procedure is curtailed
or violated, but rather one in which, as is normally
Lim v. Executive Secretary, GR. No. 151445,
April 11,2002
Doctrine: International Law v.
Muncipal Law, Certiorari, Incorporation
Clause, Treaties
FACTS: Pursuant to the Visiting Forces
Agreement (VFA) signed in 1999, personnel
from the armed forces of the United
States of America started arriving in
Mindanao to take partin "Balikatan 02-1”
encountered around the world, the laws (including rules of
procedure) of one State do not extend or apply
 except to the extent agreed upon - to subjects of
another State due to the recognition of
extraterritorial immunity given to such bodies as
visiting foreign armed forces.
It was not the intention of the framers of the 1987
Constitution, in adopting Article XVIII, Sec. 25, to require
the other contracting State to convert their system to
achieve alignment and parity with ours. It was simply
required that the treaty be recognized as a treaty by the...
other contracting State.
as held by the US Supreme Court in Weinberger v.
Rossi,[13] an executive agreement is a "treaty" within the
meaning of that word in international law and constitutes
enforceable domestic law vis-à-vis the United States. Thus,
the
US Supreme Court in Weinberger enforced the provisions
of the executive agreement granting preferential
employment to Filipinos in the US Bases here.
Accordingly, there are three types of treaties in the
American system:
Art. II, Sec. 2 treaties - These are advised and consented
to by the US Senate in accordance with Art. II, Sec. 2 of
the US Constitution.
Executive-Congressional Agreements: These are joint
agreements of the President and Congress and need not be
submitted to the Senate.
Sole Executive Agreements. - These are agreements
entered into by the President. They are to be submitted to
Congress within sixty (60) days of ratification under the
provisions of the Case-Zablocki Act, after which they are
recognized by the Congress and may be... implemented.
XXXXXX
on January 2002. The Balikatan 02-1
exercises involves the simulation of
joint military maneuvers pursuant to the
Mutual Defense Treaty, a bilateral
defense agreement entered into by the
Philippines and the United States in 1951.
The exercise is rooted from the
international anti-terrorism campaign
declared by President George W. Bush in
reaction to the 3 commercial aircrafts
hijacking that smashed into twin towers of
the World Trade Center in New York City
and the Pentagon building in Washington,
D.C. allegedly by the al-Qaeda headed by
the Osama bin Laden that occurred on
September 11, 2001. Arthur D. Lim and
Paulino P. Ersando as citizens, lawyers and
taxpayers filed a petition for certiorari
and prohibition attacking the
constitutionality of the joint exercise.
Partylists Sanlakas and Partido Ng
Manggagawa as residents of Zamboanga
and Sulu directly affected by the
operations filed a petition- in-intervention.

The Solicitor General commented the

prematurity of the action as it is based
only on a fear of future violation of the
Terms of Reference and impropriety of
availing of certiorari to ascertain a
question of fact specifically
interpretation of the VFA whether it is
covers "Balikatan 02-1” and no question
of constitutionality is involved.
Moreover, there is lack of locus standi
since it does not involve tax spending and
there is no proof of direct personal injury.

ISSUE: WON the petition and the petition-in-

intervention should prosper

HELD: NO. Petition is dismissed. The VFA

itself permits US personnel to engage on
an impermanent basis, in “activities”, the
exact meaning of which is left undefined.
The sole encumbrance placed on its
definition is couched in the negative,
in that the US personnel “must abstain
from any activity inconsistent with the
spirit of this agreement, and in particular,
from any political activity.”
Under these auspices, the VFA gives international law over national law in the
legitimacy to the current Balikatan municipal sphere. Under the doctrine of
exercises. It is only logical to assume that incorporation as applied in most countries,
“Balikatan 02-1” – a mutual anti terrorism rules of international law are given a
advising assisting and training exercise standing equal, not superior, to national
falls under the umbrella of sanctioned or legislation.”
allowable activities in the context of the
agreement. Both the history and intent of
the Mutual Defense Treaty and the VFA From the perspective of public
support the conclusion that combat- international law, a treaty is favored over
related activities – as opposed to municipal law pursuant to the principle of
combat itself – such as the one pacta sunt servanda. Hence, "[e]very
subject of the instant petition, are treaty in force is binding upon the parties
Indeed authorized. to it and must be performed by them in
good faith." Further, a party to a treaty
Both the Mutual Defense Treaty and
is not allowed to "invoke the provisions of
the Visiting Forces Agreement, as in all
its internal law as justification for its
other treaties and international
failure to perform a treaty."
agreements to which the Philippines is a
party, must be read in the context of the
1987 Constitution especially Sec. 2, 7 and
Our Constitution espouses the opposing
8 of Article 2: Declaration of Principles
view as stated in section 5 of Article VIII:
and State Policies in this case. The
“The Supreme Court shall have the
Constitution also regulates the foreign
following powers: xxx
relations powers of the Chief Executive
when it provides that "[n]o treaty or
international agreement shall be valid and
(2) Review, revise, reverse, modify, or
effective unless concurred in by at least
affirm on appeal or certiorari, as the law
two-thirds of all the members of the
or the Rules of Court may provide, final
Senate." Even more pointedly Sec. 25
judgments and order of lower courts in:
on Transitory Provisions which shows
antipathy towards foreign military
presence in the country, or of foreign
(A) All cases in which the constitutionality
influence in general. Hence, foreign troops
or validity of any treaty, international or
are allowed entry into the Philippines only
executive agreement, law, presidential
by way of direct
decree, proclamation, order, instruction,
exception. ordinance, or regulation is in question.”

Ichong v. Hernandez: “provisions of a

International Law vs. Fundamental Law and
treaty are always subject to qualification
Municipal Laws
or amendment by a subsequent law, or
that it is subject to the police power of
the State”
Conflict arises then between the
fundamental law and our obligations
arising from international agreements.
Gonzales v. Hechanova: “our
Constitution authorizes the
nullification of a treaty, not only
Philip Morris, Inc. v. Court of Appeals:
when it conflicts with the
“Withal, the fact that international law has
fundamental law, but, also, when it
been made part of the law of the land does
runs counter to an act of Congress.”
not by any means imply the primacy of

XXXXXXXXXXXXXXXXXXXXXXX
Lim vs. Executive Secretary G.R. No. 151445 April
11, 2002
FACTS :
Beginning 2002, personnel from the armed forces of the
United States started arriving in Mindanao, to take part, in
conjunction with the Philippine military, in “Balikatan 02-1”.
In theory, they are a simulation of joint military maneuvers
pursuant to the Mutual Defense Treaty, a bilateral defense
agreement entered into by the Philippines and the United
States in 1951.
On Feb. 2002, Lim filed this petition for certiorari and
prohibition, praying that respondents be restrained from
proceeding with the so-called “Balikatan 02-1”, and that
after due notice and hearing, judgment be rendered issuing
a permanent writ of injuction and/or prohibition against the
deployment of US troops in Basilan and Mindanao for being
illegal and in violation of the Constitution.
Petitioners contend that the RP and the US signed the
Mutual Defense Treaty to provide mutual military
assistance in accordance with the “constitutional
processes” of each country only in the case of a armed
attack by an external aggressor, meaning a third country,
against one of them. They further argued that it cannot be
said that the Abu Sayyaf in Basilan constitutes an external
aggressor to warrant US military assistance in accordance
with MDT of 1951. Another contention was that the VFA of
1999 does not authorize American soldiers to engage in
combat operations in Philippine territory.
ISSUE :
Whether or not the “Balikatan 02-1” activities are covered
by the VFA.
RULING :
Petition is dismissed. The VFA itself permits US personnel
to engage on an impermanent basis, in “activities”, the
exact meaning of which is left undefined. The sole
encumbrance placed on its definition is couched in the
negative, in that the US personnel “must abstain from any
activity inconsistent with the spirit of this agreement, and
in particular, from any political activity.”
Under these auspices, the VFA gives legitimacy to the
current Balikatan exercises. It is only logical to assume
that “Balikatan 02-1” – a mutual anti terrorism advising
assisting and training exercise falls under the umbrella of
sanctioned or allowable activities in the context of the
agreement. Both the history and intent of the Mutual
Defense Treaty and the VFA support the conclusion that
combat-related activities – as opposed to combat itself –
such as the one subject of the instant petition, are indeed
authorized.
XXXXXXXXXX
PIMENTEL VS. EXECUTIVE SECRETARY
PIMENTEL VS. EXECUTIVE SECRETARY
462 SCRA 622
G.R. No. 158088 July 06, 2005
Facts:
On December 28, 2000, the Philippines through the Charge
d’ Affairs Enrique A. Manalo of the Philippine Mission to
the United Nations, signed the Rome Statute which
established the International Criminal Court. Thus, herein
petitioners filed the instant petition to compel the
respondents — the Office of the Executive Secretary and
the Department of Foreign Affairs — to transmit the
signed text of the treaty to the Senate of the Philippines
for ratification.
Issue: Whether or not the Executive Secretary and the
Department of Foreign Affairs have a ministerial duty to
transmit to the Senate for ratification the copy of the
Rome Statute signed by a member of the Philippine Mission
to the United Nations even without the signature of the
President.
Held:
The Supreme Court rule in the negative.
The President, being the head of state, is regarded as the
sole organ and authority in external relations and is the
country’s sole representative with foreign nations. As the
chief architect of foreign policy, the President acts as the
country’s mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal
with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign
relations. In the realm of treaty-making, the President has
the sole authority to negotiate with other states.
It should be emphasized that under the Constitution, the
power to ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate,
however, is limited only to giving or withholding its consent,
or concurrence, to the ratification. Hence, it is within the
authority of the President to refuse to submit a treaty to
the Senate or, having secured its consent for its
ratification, refuse to ratify it.
XXXXXXXXXXXXXXXXXXXXXX
UK versus Iceland ICJ Reports 1971
Citation. I.C.J., 1973 I.C.J.
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. Iceland’s (D) claim to a 12-mile fisheries limit
was recognized by the United Kingdom (P) in 1961 in
return for Iceland’s (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.
3 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.
XXXXXXX
On 14 April and 5 June 1972, respectively, the
United Kingdom and the Federal Republic of
Germany instituted proceedings against Iceland
concerning a dispute over the proposed
extension by Iceland, as from 1 September
1972, of the limits of its exclusive fisheries
jurisdiction from a distance of 12 to a distance
of 50 nautical miles. Iceland declared that the
Court lacked jurisdiction, and declined to be
represented in the proceedings or file pleadings.
At the request of the United Kingdom and the
Federal Republic, the Court in 1972 indicated,
and in 1973 confirmed, provisional measures to
the effect that Iceland should refrain from
implementing, with respect to their vessels, the
new regulations regarding the extension of the
zone of its exclusive fishing rights, and that the
annual catch of those vessels in the disputed
area should be limited to certain maxima. In
Judgments delivered on 2 February 1973, the
Court found that it possessed jurisdiction ; and
in Judgments on the merits of 25 July 1974, it
found that the Icelandic regulations.
constituting a unilateral extension of exclusive
fishing rights to a limit of 50 nautical miles were
not opposable to either the United Kingdom or
the Federal Republic, that Iceland was not
entitled unilaterally to exclude their fishing
vessels from the disputed area, and that the
Parties were under mutual obligations to
undertake negotiations in good faith for the
equitable solution of their differences.

Facts

1. Iceland (defendant) sought to extend its

exclusive fisheries jurisdiction from twelve to fifty miles
around its shores. The United Kingdom (UK) challenged
this extension of jurisdiction and sought to submit the
case to the International Court of Justice (ICJ.) The UK
relied upon an earlier treaty agreement between the
parties where the UK agreed to recognize Iceland’s
twelve-mile exclusive fisheries jurisdiction in exchange
for Iceland’s agreement to submit all disputes over
fisheries jurisdiction to the ICJ. Iceland argued that it
was not bound by this agreement to submit all disputes
to the ICJ, however, because of changing legal
circumstances in international law. Iceland argued that
the standard, default limit for exclusive fisheries
jurisdiction for states was typically now twelve miles.
This was not the case when Iceland first signed its
agreement with the UK, however, and the agreement to
a twelve-mile limit then constituted a compromise for
Iceland. Due to changing trends in international law,
Iceland argued that its previous agreement to the twelve-
mile compromise in exchange for ICJ jurisdiction was
now void for lack of consideration on the UK’s part.