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click here for freelancing tutoring sitesNICARAGUA v USJam Crisostomo

STATEMENT OF FACTS

- On April 9, 1984, Nicaragua filed an application in the Court charging the United States military and paramilitary activities in and against Nicaragua in violation of the latter’s obligations under charters, treaties and customary international law.

- The dispute between Nicaragua and the United States concerns events in Nicaragua subsequent to the fall of the Government of

President Anastasio Somoza Debayle in Nicaragua in July 1979, and activities of the Government of the United States in relation to Nicaragua since that time.

- Following the departure of President Somoza, a Junta of National Reconstruction and an 18-member government was installed by Frente Sandinista de Liberacibn Nacional (FLN) (responsible for armed opposition against President Somoza). That body had initially an extensive share in the new government, described as a "democratic coalition", and as a result of later resignations and reshuffles, became almost its sole component.

- The attitude of the United States Government to the "democratic coalition government" was at first favourable; and a programme of economic aid to Nicaragua was adopted. However by 1981 this attitude had changed. United States aid to Nicaragua was suspended in January 1981 and terminated in April 198 1. According to the United States, the reason for this change of attitude was reports of involvement of the Government of Nicaragua in logistical support, including provision of arms, for guerrillas in El Salvador.

- In September 1981, according to testimony called by Nicaragua, the US decided to plan and undertake activities directed against Nicaragua.

- In its application, Nicaragua states the ff:

The United States has created an "army" of more than 10,000 mercenaries, many of whom served the former diçtator Anastasio Somoza Debayle, placed them in more than ten base camps in Honduras along the border of Nicaragua, trained them, paid them, supplied them with arms, ammunition, food and medical supplies, and directed their attacks against human and economic targets inside Nicaragua.

The US-directed forces announced that they had mined Nicaragua's principal ports - Corinto, Puerto Sandino and El Bluff - as part of an effort to cut off Nicaragua economically from the rest of the world. Five foreign commercial vessels have been damaged by exploding mines, and many others have cancelled scheduled shipments to and from Nicaragua.

The United States has publicly accepted responsibility for these illegal activities. The military and paramilitary operations in Nicaragua are openly and expressly authorized by an Act of Congress of the United States.

In the economic arena, it was alleged that the United States has:- withdrawn its own aid to Nicaragua- drastically reduced the quota for imports of sugar from

Nicaragua to the United States

- imposed a trade embargo - influenced International Banks for Reconstruction and

Development to block the provision of loans to Nicaragua.

- Nicaragua asks the ICJ to declare that the US should terminate its armed intervention in Nicaragua's internal affairs and conduct its foreign policy within the limits prescribed by international law.

- The US accepted the compulsory jurisdiction of the court but with reservation excluding it from the operation of the declaration.

- On May 10, 1984, the Court decided to first address the questions jurisdiction and admissibility.

- On November 26, 1984, the Court found that it had jurisdiction to entertain the Application on the basis of the ff: 1. Article 36, paragraphs 2and 5, of the Statute and 2. Art XXIV of the Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua.

- The US claims that the judgment of the court on jurisdiction and admissibility is erroneous. The US decided not to participate in any further proceedings in connection with this case, and reserved its rights with respect to any decision regarding Nicaragua's claims.

SUMMARY OF ARGUMENTS:

NICARAGUA

(1) Breach of Charter and Treaty ObligationsThe United States, in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing the military and paramilitary activities in and against Nicaragua breaches the ff Charter and Treaty Obligations:

(a) Art 2 Par 2 of the Charter of the United Nations

"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State . . ."

(b) Article 21 of the Organization of American States Charter"The American States bind themselves in their international relations not to have recourse to the use of force, except in the case of self-defense in accordance with existing treaties or in fulfilment thereof ."

(b) Art 18 of the Charter of the Organization of American States"No State or group of States has the right to intervene, directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State, or against its political, economic, and cultural elements."

(c) Art 20 of the Charter of the Organization of American States”The territory of a State is inviolable. It may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatever.”

(d) Article 8 of the Convention on Rights and Duties of States(e) Article I, Third, of the Convention concerning the Duties and Rights of States in the Event of Civil Strife.

(2) Breach of General and Customary International LawThe US has breached obligations under general and customary international law by:

(a) violating the sovereignty of Nicaragua through-armed attacks against Nicaragua by air, land and sea;-incursions into Nicaraguan territorial waters;-aerial trespass into Nicaraguan airspace;-efforts by direct and indirect means to coerce and intimidate the Government of Nicaragua.

(b) using force and the threat of force against Nicaragua.(c) intervening in the internal affairs of Nicaragua by efforts to overthrow or destabilize the present government.

(d) infringing upon the freedom of the high seas and interrupting peaceful maritime commerce through

-mining the Nicaraguan ports of Corinto, Puerto Sandino and El Bluff, and attacking merchant vessels in these ports by sea and air, and hereby restricting access to and from the high seas

(e) killing, wounding and kidnapping citizens of Nicaragua.Nicaragua furthermore demanded that all such actions cease and that the United States had an obligation to pay reparations to the government for damage to their people, property, and economy.

The obligations of the United States under general and customary international law are evidenced by the practice of States, by the writings of the most highly qualified publicists and by resolutions of the General Assembly.

The court is requested to:1. adjudge and declare that the United States has violated the obligations of international law.2. state in clear terms the obligation which the United States bears to bring to an end the aforesaid breaches of international law.3. adjudge and declare that, in consequence of the violations of international law, compensation is due to Nicaragua, both on its own behalf and in respect of wrongs inflicted upon its nationals.4. award to the Republic of Nicaragua the sum of 370,200,000 United States dollars, which sum constitutes the minimum valuation of the direct damages, with the exception of damages for killing nationals of Nicaragua, resulting from the violations of international law indicated in the substance of this Memorial.

US

(1) Justiciability of the dispute

According to the United States, a claim of unlawful use of armed force is a matter committed by the United Nations Charter and by practice to the exclusive competence of the Security Council. Hence, the court cannot deal effectively with this issue without overstepping proper judicial bounds. They argue that it does not fall into the

category of "legal disputes" within the meaning of Article 36, paragraph 21, of the Statute.

(2) US’s reservation

U.S. argues that treaties as well as customary rules, whose content is identical to that of the treaties, cannot be applied because of the reservation made by them.

The reservation excluded from Article 36 of the Statute of ICJ, disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction.

(3) Self Defense

The US made clear in its Counter-Memorial on the questions of jurisdiction and admissibility that "by providing, upon request, proportionate and appropriate assistance to third States not before the Court" it is acting in reliance on its inherent right of collective self-defence guaranteed by Article 512 of the Charter of the United Nations.

JUDGMENT

Justiciability of the dispute

The parties failed to argue whether the dispute (i.e. use of armed forces) is a “legal dispute” within the meaning of Art 36 par 2. The court held that since the case does not necessarily involve evaluation of political or

military matters (the jurisdiction of which properly belongs to the Security Council) then it is a controversy that the court may properly deal with.

Multilateral Treaty Reservation/ Breach of Multilateral Treaties

The Court concluded that the reservation is applicable in this case because:

(i)U.S. did not specially agree to the jurisdiction in this case, and

(ii)Parties to the treaty affected by the decision were not all parties before the court. Parties to the dispute included United States and Nicaragua. However, U.S. claimed it was acting in collective self-defense on behalf of El Salvador. El Salvador was not a party before the Court. The Court determined El Salvador would be affected by its judgment.

The Court held that the reservation barred it from applying the multilateral treaties to this case. However, the Court viewed the reservation as a limitation only on the type of law that the court could apply (multilateral treaties), not as a limitation on its overall jurisdiction to hear the case. Hence, other sources of international law under Art. 38 of the Statute of the ICJ (i.e. customary international law) are still applicable.

With regard to the argument of the US that customary rules cannot be applied since its content is same as those in treaties, the Court said that customary international law incorporated in a treaty does not deprive the customary law of its applicability distinctly from the treaty. According to the Court, treaties and customary law have independent existence and apply separately, even when both deal with the same subject matter. There are no grounds for holding that when

1 2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:a. the interpretation of a treaty;b. any question of international law;c. the existence of any fact which, if established, would constitute a breach of an international obligation;d. the nature or extent of the reparation to be made for the breach of an international obligation.

2 Art 51 of the UN Charter- Nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the UN.

customary international law is comprised of rules identical to those of treaty law, the latter “supervenes” the former, so that the customary law has no further existence of its own.” I.C.J. Reports 1986, p. 94-95, para. 177.

Hence, the alleged violation of charters and treaties is immaterial to the case.

Breach of General and Customary International Law

Opinio Juris and State Practice

After the court recognized the application of customary international law to the case (see discussion above), it then proceeded to discuss how to determine which customary international law apply. In doing so, the court considered the practice and opinio ojuris of States.

The Court noted that although both Nicaragua and US had a considerable degree of agreement as to the content of the customary international law related to the non-use of force and non-intervention, such fact is not sufficient for the Court to consider

these as being part of customary international law. The court said that it is important to really check the material of customary international law in actual practice and opinio juris of States. It doesn’t matter if these rules have already been collected by several treaties or any other intruments.

Thus, the court said that the attitude of the Parties and the attitude of States towards certain General Assembly resolutions could be indicative of opinio juris.

The effect of consent to the text of such resolutions cannot be understood as merely that of a "reiteration or elucidation" of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution.

“Use of Force”

The court held that there is customary law against “use of force” because of the existence of opinion juris on this matter as evidenced by the ff:

Text/Agreement/Declaration Why considered customaryUN Charter - all 197 members (at the time) ratified the charter (show a common norm since the composition of members is

NOT concentrated in certain areas)- even non-signatories adopt the charter- It was rested in bilateral treaties- There is a substantially uniform state practice to prohibit use of force

General Assembly Resolution 2625- Declaration on the Principles of International Law concerning Friendly Relations & Cooperation among States in accordance with the UN Charter (XXV)

-set out principles which the General Assembly declared to be "basic principles" of international law- evidence of States attitude- GA is composed of all members of the UN

Party Agreement- Treaty of Friendship, Commerce & Navigation

- consent and ratification of the parties

Security Council (SC) Resolutions

- Acceptance of Security Council decisions of members of the UN.- Declarations are almost quasi-judicial in nature- SC consist of a specialized body of the UN responsible in dealing with threats to peace on an international level

Resolution of The Sixth International Conference of American States Concerning Aggression 18 Feb 1928

- consent and ratification of the US

Montevideo Convention on the Rights and Duties of States 26 December 1933

- Ratification of the US

Helsinki Conference/Conference on Security and Co-operation in Europe

- US’s Acceptance of the principles contained in the declaration. Acceptance of a text in these terms confirms the existence of an opinio juris of the participating States prohibiting the use of force in international relations.

“Use of Force” in Relation to the Acts of US

The Court considers that the laying of mines in early 1984 and certain attacks on Nicaraguan ports, oil installations and naval bases, imputable to the United States constitute infringements of this principle. It also considers that the United States has committed a prima facie violation of the principle by arming and training the contras, unless this can be justified as an exercise of the right of self-defence.

On the other hand, it does not consider that military manoeuvres held by the United States near the Nicaraguan borders, or the supply of funds to the contras, amounts to a use of force.

State sovereignty

The concept of sovereignty both in treaty and customary Intl. law extends to the internal waters and territorial sea of every State and to the airspace above its territory based on the ff:

– Art. 2(1) of the UN Charter; – Art. 1 of the Chicago Convention on

International Civil Aviation (1944); – Geneva Convention on the Territorial Sea

(1958); – UN Convention on the Law of the Sea (1982).

The ff. acts of US violate the principle of state sovereignty:

1 assistance to the contras,2 The direct attacks on Nicaraguan ports, oil installations,

etc.,

3 the mining operations in Nicaraguan ports,

4 the acts of intervention involving the use of force referred to in the Judgment,

5 Unauthorized over flight of Nicaraguan territory.

6 The laying of mines in or near Nicaraguan ports constitutes an infringement, to Nicaragua's detriment, of the freedom of communications and of maritime commerce.

“Non-intervention”

The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference. Expressions of opinio juris of States regarding the existence of this principle are found in:

-Numerous declarations and resolutions-Corfu Channel (Merits) United Kingdom v Albania 1949 ICJ Reports 4

The Court notes that this principle, stated in its own jurisprudence, has been reflected in numerous declarations and resolutions adopted by international organizations and conferences in which the United States and Nicaragua have participated. The text thereof testifies to the acceptance by the United States and Nicaragua of a customary principle which has universal application.

A prohibited intervention must be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely (for example the choice of a political, economic, social and cultural system, and formulation of foreign policy). Intervention is wrongful when it uses, in regard to such choices, methods of coercion, particularly force, either in the direct form of military action or in the indirect form of support for subversive activities in another State.

The Court finds it clearly established that the United States intended, by its support of the contras, to coerce Nicaragua in respect of matters in which each State is permitted to decide freely. It therefore finds that the support given by the United States to the military and paramilitary activities of the

contras in Nicaragua, by financial support, training, supply of weapons, intelligence and logistic support, constitutes a clear breach of the principle of non-intervention.

Humanitarian aid on the other hand cannot be regarded as unlawful intervention. The Court recalls that if the provision of "humanitarian assistance" must be limited to the purposes hallowed in the practice of the Red Cross, and above all be given without discrimination.

“Self-defense”

“Self defense” like “use of force” is also considered a customary international law principle because of opinio juris of the States, as evidence by the ff:

-Party Agreement-UN Charter Article 51-General Assembly Resolution 2625 (XXV)-General Assembly Resolution 3314 (XXIX)-Charter of Organisations of American States-International Treaty of Reciprocal Assistance 1947

The general rule prohibiting force established in customary law allows for certain exceptions i.e . individual or collective self-defence as provided in Article 51 of the United Nations Charter, which refers to an "inherent right", and from the declaration in resolution 2625 (XXV).

Whether self-defence is individual or collective, it can only be exercised in response to an "armed attack". “Armed attack” is to be understood as meaning not merely action by regular armed forces across an international border, but also the sending by a State of armed bands on to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack had it been carried out by regular armed forces.

The Court does not believe that the concept of "armed attack" includes assistance to rebels in the form of the provision of weapons or logistical or other support. Hence, Nicaragua is not

guilty of “armed attack” against El Salvador, thereby making self-defence inapplicable as an exception.

Furthermore, the Court finds that in customary international law, whether of a general kind or that particular to the inter-American legal system, there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which is a victim of the alleged attack, this being additional to the requirement that the State in question should have declared itself to have been attacked.

Since the plea of collective self-defence advanced by the United States cannot be upheld, it follows that the United States has violated the principle prohibiting recourse to the threat or “use of force”.

Humanitarian law

Nicaragua accused the United States of having killed, wounded and kidnapped citizens of Nicaragua. However, the evidence available is insufficient for the purpose of attributing to the United States the acts committed by the contras, the Court rejects this submission.

On the other hand, the court found that the United States committed violation of Art. 3 of the fourth Geneva Convention. Under this convention, the US was bound to refrain from encouragement of persons or groups engaged in the conflict in Nicaragua to commit violations of Article 3. The United States is under an obligation to "respect" the Conventions and even to "ensure respect" for them in all circumstances since it is not merely a treaty obligation, but a customary norm because it reflects elementary considerations of humanity.

The Court observes that the laying of mines in the waters of another State without any warning or notification is not only an unlawful act but also a breach of the principles of humanitarian law underlying the Hague Convention No. VIII of 1907.

SOUTH WEST AFRICA CASE

Raj Sagarino

SOUTH-WEST AFRICA CASES (SECOND PHASE)Brief History:

1878 – Walvis Bay and Penguin Islands (both are part of South West Africa) was annexed by Britain as part of the Cape Colony.

1884 – South West Africa (SWA) became German colony. After World War I, SWA was declared a League of Nations Mandate

Territory with the Union of South Africa responsible for its administration.

What is the League of Nations Mandate Territory? - It was a legal status for certain territories transferred from the

control of one country to another following World War 1, or the legal instruments that contained the internationally agreed-upon terms for administering the territory on behalf of the League.

- The mandate system was established under Article 22 of the Covenant of the League of Nations,

- All the territories subject to League of Nations mandates were previously controlled by states defeated in World War I, principally Imperial Germany and the Ottoman Empire.

- The process of establishing the mandates consisted of two phases: 1) formal removal of sovereignty of the previously controlling states, 2) transfer of mandatory powers to individual states among the Allied Powers.

- The exact level of control by the Mandatory power over each mandate was decided on an individual basis by the League of Nations. However, in every case the Mandatory power was forbidden to construct fortifications or raise an army within the territory of the mandate and was required to present an annual report on the territory to the League of Nations.

- Despite this, mandates were generally seen as de facto colonies of the empires of the victor nations.

- The mandates were divided into three distinct groups based upon the level of development each population had achieved at that time: 1) Class A mandates were communities formerly controlled by the Ottoman Empire that were deemed to "... have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone, 2) Class B mandates were all former Schutzgebiete (German territories) in the Sub-Saharan regions of West and Central Africa, which were deemed to require a greater level of control by the mandatory power, 3) Class C mandates, including South-West Africa and certain of the South Pacific Islands, were considered to be "best administered under the laws of the Mandatory as integral portions of its territory" and were former German possessions.

What is the Union of South Africa?- is the historic predecessor to the present-day Republic of South

Africa- It came into being on 31 May 1910 with the unity of the

previously separate colonies of the Cape, Natal, Transvaal and the Orange Free State.

- The Union of South Africa was founded as a dominion of the British Empire. The Union was governed under a form of constitutional monarchy, with the British monarch represented by a governor-general.

- Following the First World War, the Union of South Africa was granted the administration of the (German) South-West Africa colony as a League of Nations mandate and it became treated in most respects as if it were another province of the Union.

SWA was supposed to become a UN Trust Territory, but the Union of South Africa objected to SWA coming under UN control.

What are the UN Trust Territories?- successors of the remaining League of Nations mandates and

came into being when the League of Nations ceased to exist in

1946. The League of Nations was the precursor to the UNITED NATIONS.

- All of the trust territories were administered through the UN Trusteeship Council.

SWA eventually gained independence in 1990 as Namibia.

Background

The South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), which relate to the continued existence of the Mandate for South West Africa and the duties and performance of South Africa (then Union of South Africa) as Mandatory thereunder, were instituted by Applications of the Governments of Ethiopia and Liberia filed in the Registry on 4 November 1960. By an Order of 20 May 1961 the Court joined the proceedings in the two cases.

First Phase: The Government of South Africa raised preliminary objections to the Court's proceeding to hear the merits of the case, but these were dismissed by the Court on 21 December 1962, the Court finding that it had jurisdiction to adjudicate upon the merits of the dispute.

Second Phase:

Southwest Africa (SWA) contends that South Africa, exercising administrative powers over their territory by virtue of a mandate, practiced apartheid (i.e., has distinguished as to race, color, national or tribal origin in establishing the rights and duties of the inhabitants of the Territory); that such practice is in violation of its obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant of the League of Nations; and that the Union has the duty forthwith to cease the practice of apartheid in the Territory. Furthermore, South Africa, by virtue of the economic, political, social and educational policies applied within SWA has failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory;

that its failure to do so is in violation of its obligations as stated in the second paragraph of Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to cease its violations as aforesaid and to take all practicable action to fulfill its duties under such Articles.

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

The Case

The Applicants, acting in the capacity of States which were members of the former League of Nations, put forward various allegations of contraventions of the League of Nations Mandate for South West Africa by the Republic of South Africa.

Facts

In 1960, Liberia and Ethiopia asked the International Court of Justice for a judgment on South Africa's repressive racial apartheid.

The case centered on a mandate conferred on South Africa by the League of Nations in 1920. South Africa was to oversee the neighboring former German territory of South West Africa, subject to the approval of the League of Nations and later the United Nations.

As "interested parties" representing the 36 in dependent states of black Africa, Ethiopia and Liberia claimed that South Africa had violated its mandate by imposing racial separation on the territory's 400,000 nonwhites.

The Court recalled that the mandates system was instituted by Article 22 of the Covenant of the League of Nations.

There were three categories of mandates, 'A', 'B' and 'C' mandates, which had, however, various features in common as regards their structure (as stated above, SWA was under Class C).

The principal element of each instrument of mandate consisted of the articles defining the mandatory's powers and its obligations in respect of the inhabitants of the territory and towards the League and its organs. The Court referred to these as the "conduct" provisions.

In addition, each instrument of mandate contained articles conferring certain rights relative to the mandated territory directly upon the members of the League as individual States, or in favour of their nationals. The Court referred to rights of this kind as "special interests," embodied in the "special interests" provisions of the mandates.

It was specified in Article 22 of the Covenant that the "best method of giving practical effect to [the] principle" that the "well-being and development" of those peoples in former enemy colonies "not yet able to stand by themselves" formed "a sacred trust of civilization" was that "the tutelage of such peoples should be entrusted to advanced nations . . . who are willing to accept it" and it specifically added that it was "on behalf of the League" that "this tutelage should be exercised by those nations as Mandatories". The mandatories were to be the agents of the League and not of each and every member of it individually.

Article 22 of the Covenant provided that "securities for the performance" of the sacred trust were to be "embodied in this Covenant." By paragraphs 7 and 9 of Article 22, every mandatory was to "render an annual report in reference to the territory"; and a Permanent Mandates Commission was to be constituted "to receive and examine" these annual reports.

Individual member States of the League could take part in the administrative process only through their participation in the activities of the organs by means of which the League was entitled to function. They had no right of direct intervention relative to the mandatories: this was the prerogative of the League organs.

The contentions of the Applicants covered, inter alia, the following issues:

1. Whether the Mandate for South West Africa was still in force and, if so, whether the Mandatory's obligation to furnish annual reports on its administration to the Council of the League of Nations had become transformed into an obligation so to report to the General Assembly of the United Nations;

2. Whether the Respondent (Republic of South Africa) had, in accordance with the Mandate, promoted to the utmost the material and moral well-being and the social progress of the inhabitants of the territory,

3. Whether the Mandatory had contravened the prohibition in the Mandate of the "military training of the natives" and the establishment of military or naval bases or the erection of fortifications in the territory; and

4. Whether South Africa had contravened the provision in the Mandate that it (the Mandate) can only be modified with the consent of the Council of the League of Nations, by attempting to modify the Mandate without the consent of the United Nations General Assembly, which, it was contended by the Applicants, had replaced the Council of the League for this and other purposes.

Issues

Before dealing with the above-mentioned issues, however, the Court said that there were two questions of an antecedent character, appertaining to the merits of the case, which might render an enquiry into other aspects of the case unnecessary:

1) Whether the Mandate still subsisted at all2) The question of the Applicants' standing in this phase of the

proceedings - i.e. their legal right or interest regarding the subject matter of their claims.

The Court further stated that the question to be decided was whether any legal right or interest was vested in members of the League of Nations individually as regards the "conduct" clauses of the mandates - i.e., whether the various mandatories had any direct obligation towards the other members of the League individually, as regards the carrying out of the

"conduct" provisions of the mandates. If the answer were that the Applicants could not be regarded as possessing the legal right or interest claimed, then even if the various allegations of contraventions of the Mandate for South West Africa were established, the Applicants would still not be entitled to the pronouncements and declarations which, in their final submissions, they asked the Court to make.

The Court ruled that the Applicants did not possess such a legal right or interest, therefore it did not pronounce upon the question of whether the Mandate was still in force (issue no. 1 above).

Applicants’ (Ethiopia and Liberia) Arguments

Ethiopia and Liberia argued that it was in their capacity as former members of the League of Nations that they appear before the Court, and the rights they claimed were those that the members of the League were said to have been invested with in the time of the League.

Accordingly, in order to determine the rights and obligations of the Parties relative to the Mandate, the Court had to place itself at the point in time when the mandates system was instituted. Any enquiry into the rights and obligations of the Parties must proceed principally on the basis of considering the texts of the instruments and provisions in the setting of their period.

Court’s Ruling

Inability of individual members to act independently

Attention must be paid to the juridical character and structure of the institution, the League of Nations, within the framework of which the mandates system was organized. A fundamental element was that Article 2 of the Covenant provided that the "action of the League under this Covenant

shall be effected through the instrumentality of an Assembly and of a Council, with a permanent Secretariat". Individual member States could not themselves act differently relative to League matters unless it was otherwise specially so provided by some article of the Covenant.

The manner in which the mandate instruments were drafted only lends emphasis to the view that the members of the League generally were not considered as having any direct concern with the setting up of the various mandates. Furthermore, while the consent of the Council of the League was required for any modification of the terms of the mandate, it was not stated that the consent of individual members of the League was additionally required. Individual members of the League were not parties to the various instruments of mandate, though they did, to a limited extent, and in certain respects only, derive rights from them. They could draw from the instruments only such rights as these unequivocally conferred.

Had individual members of the League possessed the rights which the Applicants claimed them to have had, the position of a mandatory caught between the different expressions of view of some 40 or 50 States would have been untenable. Furthermore, the normal League voting rule was unanimity, and as the mandatory was a member of the Council on questions affecting its mandate, such questions could not be decided against the mandatory's contrary vote. This system was inconsistent with the position claimed for individual League members by the Applicants, and if, as members of the League, they did not possess the rights contended for, they did not possess them now.

The principle of "sacred trust" had no residual juridical content

It had been attempted to derive a legal right or interest in the conduct of the Mandate from the simple existence, or principle, of the "sacred trust." The sacred trust, it was said was a "sacred trust of civilization" and hence all civilized nations had an interest in seeing that it was carried out. But in order that this interest might take on a specifically legal character the sacred trust itself must be or become something more than a moral or humanitarian

ideal. In order to generate legal rights and obligations, it must be given juridical expression and be clothed in legal form. The moral ideal must not be confused with the legal rules intended to give it effect. The principle of the "sacred trust" had no residual juridical content which could, so far as any particular mandate is concerned, operate per se to give rise to legal rights and obligations outside the system as a whole.

Although members of a dissolved international organization can be deemed to retain rights, this could not extend to ascribing to them rights they never possessed

Nor could the Court accept the suggestion that even if the legal position of the Applicants and of other individual members of the League were as the Court held it to be, this was so only during the lifetime of the League, and that on the latter's dissolution the rights previously resident in the League itself, or in its competent organs, devolved upon the individual States which were members of it at the date of its dissolution. Although the Court held in 1962 that the members of a dissolved international organization can be deemed, though no longer members of it, to retain rights which, as members, they individually possessed when the organization was in being, this could not extend to ascribing to them, upon and by reason of the dissolution, rights which, even previously as members, they never did individually possess. Nor could anything that occurred subsequent to the

dissolution of the League operate to invest its members with rights they did not previously have as members of the League. The Court could not read the unilateral declarations, or statements of intention, made by the various mandatories on the occasion of the dissolution of the League, expressing their willingness to continue to be guided by the mandates in their administration of the territories concerned, as conferring on the members of the League individually any new legal rights or interests of a kind they did not previously possess.

It might be said that in so far as the Court's view led to the conclusion that there was now no entity entitled to claim the due performance of the Mandate, it must be unacceptable, but if a correct legal reading of a given situation showed certain alleged rights to be non-existent, the consequences of this must be accepted. To postulate the existence of such rights in order to avert those consequences would be to engage in an essentially legislative task, in the service of political ends.

When a party in a case enters preliminary objections, the proceedings on the merits are suspended

Turning to the contention that the Applicants' legal right or interest had been settled by the 1962 Judgment and could not now be reopened, the Court pointed out that a decision on a preliminary objection could never be preclusive of a matter appertaining to the merits, whether or not it had in fact been dealt with in connection with the preliminary objection. When preliminary objections were entered by the defendant party in a case, the proceedings on the merits were suspended, by virtue of Article 62, paragraph 3, of the Court's Rules. Thereafter, and until the proceedings on the merits were resumed, there could be no decision finally determining or prejudging any issue of merits. A judgment on a preliminary objection might touch on a point of merits, but this it could do only in a provisional way, to the extent necessary for deciding the question raised by the preliminary objection. It could not rank as a final decision on the point of merits involved.

While the 1962 Judgment decided that the Applicants were entitled to invoke the jurisdictional clause of the Mandate, it remained for them, on the merits, to establish that they had such a right or interest in the carrying out of the provisions which they invoked as to entitle them to the pronouncements and declarations they were seeking from the Court. There was no contradiction between a decision that the Applicants had the capacity to invoke the jurisdictional clause and a decision that the Applicants had not established the legal basis of their claim on the merits.

Jurisdictional clauses do not determine whether parties had substantive rights, but only whether they could vindicate them by recourse to a tribunal (if they had them)

In respect of the contention that the jurisdictional clause of the Mandate conferred a substantive right to claim from the Mandatory the carrying out of the "conduct of the Mandate" provisions, it was to be observed that it would be remarkable if so important a right had been created in so casual and almost incidental a fashion. There was nothing about this particular jurisdictional clause, in fact, to differentiate it from many others, and it was an almost elementary principle of procedural law that a distinction had to be made between, on the one hand, the right to activate a court and the right of a court to examine the merits of a claim and, on the other, the plaintiff's legal right in respect of the subject matter of its claim, which it would have to establish to the satisfaction of the Court. Jurisdictional clauses were adjectival not substantive in their nature and effect: they did not determine whether parties had substantive rights, but only whether, if they had them, they could vindicate them by recourse to a tribunal.

The Court then considered the rights of members of the League Council under the jurisdictional clauses of the minorities treaties signed after the First World War, and distinguished these clauses from the jurisdictional clauses of the instruments of mandate. In the case of the mandates the

jurisdictional clause was intended to give the individual members of the League the means of protecting their "special interests" relative to the mandated territories; in the case of the minorities treaties, the right of action of the Members of the Council under the jurisdictional clause was only intended for the protection of minority populations. Furthermore, any "difference of opinion" was characterized in advance in the minorities treaties as being justiciable, because it was to be "held to be a dispute of an international character". Hence no question of any lack of legal right or interest could arise. The jurisdictional clause of the mandates on the other hand had none of the special characteristics or effects of those of the minorities treaties.

The Court next adverted to the question of admissibility. It observed that the 1962 Judgment had simply found that it had "jurisdiction to adjudicate upon the merits" and that if any question of admissibility were involved it would fall to be decided now, as occurred in the merits phase of the Nottebohm case; if this were so the Court would determine the question in exactly the same way, i.e., looking at the matter from the point of view of the capacity of the Applicants to advance their present claim, the Court would hold that they had not got such capacity, and hence that the claim was inadmissible.

The "necessity" argument appeared to be based on considerations of an extra-legal character; it lay in the political field and did not constitute necessity in the eyes of the law

Finally, the Court dealt with what had been called the argument of "necessity." The gist of this was that since the Council of the League had no means of imposing its views on the Mandatory, and since no advisory opinion it might obtain from the Court would be binding on the latter, the Mandate could have been flouted at will. Hence, it was contended, it was essential, as an ultimate safeguard or security for the sacred trust, that each Member of the League should be deemed to have a legal right or interest in that matter and be able to take direct action relative to it. But in the functioning of the mandates system in practice, much trouble was taken to arrive, by argument, discussion, negotiation and cooperative effort, at generally acceptable conclusions and to avoid situations in which the Mandatory would be forced to acquiesce in the views of the rest of the Council short of casting an adverse vote. In this context, the existence of substantive rights for individual members of the League in the conduct of the mandates exercisable independently of the Council would have been out of place. Furthermore, leaving aside the improbability that, had the framers of the mandates system intended that it should be possible to impose a given policy on a mandatory, they would have left this to be haphazard and uncertain action of individual members of the League, it was scarcely likely that a system which deliberately made it possible for mandatories to block Council decisions by using their veto (though, so far as the Court was aware, this had never been done) should simultaneously invest individual members of the League with a legal right of complaint if the mandatory made use of this veto. In the international field, the existence of obligations that could not

be enforced by any legal process had always been the rule rather than the exception-and this was even more the case in 1920 than today.

Moreover, the argument of "necessity" amounted to a plea that the Court should allow the equivalent of an actio popularis, or right resident in any member of a community to take legal action in vindication of a public interest. But such a right was not known to international law as it stood at present: and the Court was unable to regard it as imported by "the general principles of law" referred to in Article 38, paragraph 1 (c), of its Statute.

In the final analysis, the whole "necessity" argument appeared to be based on considerations of an extra-legal character, the product of a process of after-knowledge. It was events subsequent to the period of the League, not anything inherent in the mandates system as it was originally conceived, that gave rise to the alleged "necessity," which, if it existed, lay in the political field and did not constitute necessity in the eyes of the law. The Court was not a legislative body. Parties to a dispute could always ask the Court to give a decision ex aequo et bono, in terms of paragraph 2 of Article 38. Failing that, the duty of the Court was plain: its duty was to apply the law as it found it, not to make it.

It might be urged that the Court was entitled to "fill in the gaps," in the application of a teleological principle of interpretation, according to which instruments must be given their maximum effect in order to ensure the achievement of their underlying purposes. This principle was a highly controversial one and it could, in any event, have no application to circumstances in which the Court would have to go beyond what could reasonably be regarded as being a process of interpretation and would have to engage in a process of rectification or revision. Rights could not be presumed to exist merely because it might seem desirable that they should. The Court could not remedy a deficiency if, in order to do so, it had to exceed the bounds of normal judicial action.

It might also be urged that the Court would be entitled to make good an omission resulting from the failure of those concerned to foresee what might happen and to have regard to what it might be presumed the framers of the mandate would have wished, or would even have made express provision for, had they had advance knowledge of what was to occur. The Court could not, however, presume what the wishes and intentions of those concerned would have been in anticipation of events that were neither foreseen nor foreseeable; and even if it could, it would certainly not be possible to make the assumptions contended for by the Applicants as to what those intentions were.

For the foregoing reasons, the Court decided to reject the claims of the Empire of Ethiopia and the Republic of Liberia.

Additional input

Per Sir Harry during discussion (in a previous class): This is a legal challenge brought by Ethiopia & Liberia against South Africa WRT the practice of apartheid (although never mentioned here!!) The action is based on the mandate given to South Africa to promote the material & moral well-being & social progress of inhabitants of the South West African territory. The Court did not decide on the merits because it did not consider the case as involving a legal issue because there was no law prohibiting apartheid. The Applicants tried to derive a legal right or interest in the conduct of the Mandate for South West Africa from the simple principle of the “sacred trust.” The principles set forth here have been obliterated in latter cases. Fundamental equality is now considered an erga omnes obligation since it is a fundamental human right.

CRITICISMS/ARGUMENTS AGAINST THE COURT’S RULING

The final decision of the ICJ in the SWA cases, rejecting the claim of Ethiopia and Liberia on the technical ground that they lacked sufficient legal interest to be vindicated vis-à-vis South Africa, having, however, decided in 1962 that the two applicants had the procedural right to institute the proceedings, led to a lot of criticism of the Court.

As was cogently observed, the 1966 decision was “at best, a painful reminder that international adjudication is suited only to the settlement of trivial questions of highly technical character” and at worst, “an endorsement of South Africa’s racial policies.”

The Court tried to distinguish between the question of admissibility said to have been dealt with in the 1962 decision, and the question of validity of the claim on the merits, which was the concern of the Court in the final decision of 1966. This is a distinction without difference.

No authority was given by the Court in its assertion that, while the Applicants had locus standi to institute the action, they had no legal interest to entitle them to a judgment on the merits. The Court simply decided not to decide.

Judge Tanaka’s dissenting Judgment:

“What are equal are to be treated equally and what are different are to be treated differently…

He asks: “what is equal and what is different?” And he answers: “All human beings, notwithstanding their differences in their appearance and other minor points, are equal in their dignity as persons. Accordingly, for the point of view of human rights and fundamental freedoms they must be treated equally.”

He continues “The principle of equality does not mean absolute equality, but recognises relative equality, namely different treatment proportionate to concrete individual circumstances. Different treatment must not be given arbitrarily; it requires reasonableness, or must be in conformity with justice...”

He found that discrimination according to the criterion of “race, colour, national or tribal origin” in establishing the rights and duties of the inhabitants of the territory is not considered reasonable and just. .. If differentiation be required, it would be derived from the difference of language, religion, custom, etc. ‘not’ from the racial difference itself… The policy of apartheid he consequently found to be fundamentally unreasonable and unjust.

The 1966 decision was not a clear and convincing majority rule due to the following events:

1) The death in 1965, of Judge Abdel Hamid Badawi of the United Arab Republic who had voted with the majority of eight in the 1962 decision of the Court in Geneva of accepting the case instituted by Ethiopia and Liberia;

2) The inability of Judge Jose Luis Bustamante y Rivero of Peru to participate in the 1966 decision owing to a heart attack;

3) The rather curious political and jurisprudential position taken in the case by Judge Winconski of Poland;

4) The fact that in 1966, the President of the Court was among the conservatives who voted in the minority in 1962 and had the occasion to exercise the casting vote; and

5) The disqualification of Sir Muhammed Zafrulla Khan (Pakistan) from the 1966 proceedings on the grounds explained to him by the President of the Court, that he had been originally nominated as an ad hoq judge by the two applicants prior to his election as a regular member of the Court.

NORTH SEA CONTINENTAL SHELF CASE, ICJ REPORTS, 1969

Conrad Lacsina

Issue: Federal Republic of Germany Kingdoms of Denmark and the Netherlands

ICJ Ruling

Whether there are any rules or principles of international law governing the delimitation of the continental shelf between two or more states adjacent to that Shelf, and if so whether such principles and rules of international law apply in the special case of the continental shelf of the North Sea which has to be divided up between several littoral States surrounding the North Sea basin.

The equidistance principle/method as embodied in Article 6 of the Convention on the Continental Shelf concluded at Geneva on 29 April 1958.

The Geneva Convention was not in its origins or inception declaratory of a mandatory rule of customary international law enjoining the use of the equidistance principle for the delimitation of continental shelf areas between adjacent States, neither has its subsequent effect been constitutive of such a rule; and that State practice up-to-date has equally been insufficient for the purpose.

Germany is unable to agree with Denmark and the Netherlands that the “principle of equidistance” should govern the delimitation of the continental shelf between two adjacent countries. Although this principle has been adopted in Article 6 of the Convention on Continental Shelf (1958) as well as in Articles 12 and 24 of the Convention on Territorial Sea and the Contiguous Zone, and in Article 7 of the Convention on Fishing of the same date, had not developed into a rule of general international law. If it is, consequently, it must govern the delimitation of the continental shelf also between States not parties to these Conventions. For Germany, the equidistance principle only offers one useful method among others for drawing maritime boundaries between opposite or adjacent States. Its application in some case could lead to unjust and inequitable result. It can be accepted as a boundary line only under

The whole matter is governed by a mandatory rule of law which, reflecting the language of Article 6 of the Convention on the Continental Shelf concluded at Geneva on 29 April 1958, was designated by them as the "equidistance-special circumstances" rule. According to this contention, "equidistance" is not merely a method of the cartographical construction of a boundary line, but the essential element in a rule of law which may be stated as follows,-namely that in the absence of agreement by the Parties to employ another method or to proceed to a delimitation on an ad hoc basis, all continental shelf boundaries must be drawn by means of an equidistance line, unless, or except to the extent to which, "special circumstances" are recognized to exist.

Annex 13 shows that that the method of equidistance is in harmony with the

The Geneva Convention did not embody or crystallize any pre-existing or emergent rule of customary law, according to which the delimitation of continental shelf areas between adjacent States must, unless the Parties otherwise agree, be carried out on an equidistance-special circumstance basis.

the condition that it will lead to an equitable and just apportionment.

existing practice of States in the delimitation of boundaries and being so, is a generally recognized rule of international law.

1. In the North Sea, three states, the Federal Republic of Germany, the Kingdom of Denmark, and the Kingdom of the Netherlands, are sharing one continental shelf. IN delimiting (or drawing the boundaries of) the continental shelf, both Denmark and Netherlands wanted to use the method of equidistance as is contained in the Convention on the Continental Shelf which concluded at Geneva on 29 April 1958 and which both countries signed and ratified. The Federal Republic of Germany, which signed but did not ratify it, objected to such a method and proposed a method that would be just and equitable. Years of negotiations between Federal Republic of Germany and Denmark on the one hand, and

Article 6 of the Convention is not obligatory in character for those States that have not ratified it. It is not binding on the Federal Republic of Germany since it had not ratified it.

Article 6 of the Geneva Convention is not only to be applicable as a conventional rule, but also to represent the accepted rule of general international law on the subject of continental shelf delimitation.

(The Court found that there had not been many cases wherein the equidistance method was used.) But even if those cases constituted more than a very small proportion, the Court would not think it necessary to enumerate or evaluate them separately, since there are, a priori, several grounds which deprive them of weight as precedents in the present context. To begin with, over half the States concerned, whether acting unilaterally or conjointly, were or shortly became parties to the Geneva Convention, and were therefore presumably, so far as they were concerned, acting actually or potentially in the application of the Convention. From their action no inference could legitimately be drawn as to the existence of a rule of customary international law in favour of the equidistance principle. As regards those States, on the other hand, which were not, and have not become parties to the Convention, the basis of their action can only be problematical and must remain entirely speculative. Clearly, they were not applying the Convention. But from that no inference could justifiably be drawn that they believed themselves to be applying a mandatory rule of customary international law. There is not a shred of evidence that they did and, as has been seen there is no lack of other reasons for using the equidistance method, so that acting, or

between the Federal Republic of Germany and the Netherlands on the other failed and so they voluntarily submitted the dispute to the International Court of Justice.

2. The Convention on the Continental Shelf received 46 signatures and, up-to-date, there have been 39 ratifications or accessions. It came into force on 10 June 1964, having received the 22 ratifications or accessions required for that purpose (Article 1 l), and was therefore in force at the time when the various delimitations of continental shelf boundaries described earlier (paragraphs 1 and 5) took place between the Parties. But, under the formal provisions of the Convention, it is in force for any individual State only in so far as, having signed it within the time-limit provided

agreeing to act in a certain way, does not of itself demonstrate anything of a juridical nature.

for that purpose that State has also subsequently ratified it; or, not having signed within that time-limit, has subsequently acceded to the Convention. Denmark and the Netherlands have both signed and ratified the Convention, and are parties to it, the former since 10 June 1964, the latter since 20 March 1966. The Federal Republic was one of the signatories of the Convention, but has never ratified it, and is consequently not a party.

Article 6 of the Convention is not obligatory in character for those States that have not ratified it. It is not binding on the Federal Republic of Germany since it had not ratified it.

Also, Article 6 or the equidistance principle has not become a general principle of international law not only because only a minority (37) of States accepted the Convention and that reservations to Article 6 have been made by some States but also because State practice necessary for the development of such customary rules is up to now still lacking.

It is admitted that in these circumstances the Convention cannot, as such, be binding on the Federal Republic, in the sense of the Republic being contractually bound by it. But it is contended that the Convention, or the régime of the Convention, and in particular of Article 6, has become binding on the Federal Republic in another way,-namely because, 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 régime; or has recognized it as being generally applicable to the

Only a very definite, very consistent course of conduct on the part of a State in the situation of the Federal Republic could justify the Court in upholding them; and, if this had existed-that is to Say if there had been a real intention to manifest acceptance or recognition of the applicability of the conventional régime-then it must be asked why it was that the Federal Republic did not take the obvious step of giving expression to this readiness by simply ratifying the Convention. In principle, when a number of States, including the one whose conduct is invoked, and those invoking it, have drawn up a convention

delimitation of continental shelf areas. It has also been suggested that 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.

Even if there is no rule of customary international law in favor of the equidistance principle, and no such rule was crystallized in Article 6, nevertheless such a rule has come into being since the Convention partly on the basis of subsequent State practice and has therefore become binding on all States, including the Federal Republic of Germany.

specifically providing for a particular method by which the intention to become bound by the régime of the convention is to be manifested-namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way.

Even if these instances of action by non-parties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris; for, in order to achieve this result, two conditions must be fulfilled. 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 habitua1 character of the acts is not in itself enough.

The principle of just and equitable share is a problem of distributive justice.If goods or resources which are held in common by several parties by virtue of the same right have to be divided up between these parties, it is a recognized principle in law that each of these parties is entitled to a just and equitable share which is to be meted out in accordance with an appropriate standard equally applicable to all of them.

This principle of the just and equitable share is a basic legal principle emanating from the concept of distributive justice and a generally recognized principle inherent in all legal systems, including the legal system of the international community.

The so-called principle of the "just and equitable share" is utterly lacking in any objective legal frame of reference by which to determine what is to be considered a "'just and equitable share" in any given situation. In the context of legal rights, what is "just" and what is "equitable" can be appreciated only by reference to objective and legally recognized criteria.

Without a framework of legal criteria to determine what is “just and equitable”, the concept of a “just and equitable apportionment” lacks any legal content.

There is no necessary connection between the surface of an area and the amount of exploitable resources therein. In particular, there is no connection whatsoever between the resources and the breadth of the coastal front, which, in the opinion of the Federal Republic of Germany, is the only appropriate standard by which to determine the equitableness of the apportionment. Indeed the total amount of the natural resources of the area, indicated as the continental shelf beneath the North Sea, is unknown and the same goes for the location of those resources. Therefore, even if the alleged principle were indeed part of positive international law quod non, it would be impossible to apply it to the present case.

The “principle of equality of States” does not mean that every State must have an equal area of land or of continental shelf. In this case, it only means that each coastal State is entitled to the even-

A rule of law calls for the application of equitable principles.

handed application of the principles and rules of maritime international law governing the delimitation of a coastal State’s rights in the sea areas adjacent to its coasts.

Germany’s alleged principle and sectoral method of division depart alike from these fundamental principles of maritime international law and from the detailed rules regarding the delimitation of sea boundaries in which they have their application. Accordingly, in the view of the Danish Government, neither the alleged principle of the just and equitable share nor its particular application in Germany’s suggested sectoral division possess the characteristics of a “principle of rule of international law”.

The principle of just and equitable share has been the State Practice since 1945 and is recognized by many authoritative publicists:

i. President Truman’s Procalamation of 1945 in claiming the continental shelf adjacent to its coast.

ii. Littoral States of the Persian Gulf (Iran, Saudi Arabis, Bahrain, atar, Kuwait)

iii. Nicaragua,

Article 6, or more specifically the equidistance method is in accord with previous practice and principle and is generally accepted today as the modern law governing continental shelf boundaries, as amply confirmed by the practice of States since the Geneva Convention of 1958.

The notion of equidistance as being logically necessary, in the sense of being an inescapable a priori accompaniment of basic continental shelf doctrine, is incorrect. The Truman Proclamation however, soon came to be regarded as the starting point of the positive law on the subject, and the chief doctrine it enunciated, namely that of the coastal State as having an original, natural, and exclusive (in short a vested) right to the continental shelf off its shores, came to prevail over al1 others, being now reflected in Article 2 of the 1958 Geneva Convention on the Continental Shelf. These two concepts, of delimitation by mutual agreement and delimitation in accordance with equitable principles, have underlain al1

Venezuela

iv. International Law Commission

v. Great Britain

vi. Italy

vii. Finland

viii. Authors (Sir Hersch Lauserpacht. Olivier de Ferron, Aaron L. Shalowitz, Leo Bouchez, Myres McDougall)

the subsequent history of the subject. They were reflected in various other State proclamations of the period, and after, and in the later work on the subject. Equidistance was in fact only one of four methods suggested to the Committee of Experts. The experts were governed by two beliefs; namely, first, that no one single method of delimitation was likely to prove satisfactory in all circumstances, and that delimitation should, therefore, be carried out by agreement (or by reference to arbitration); and secondly, that it should be effected on equitable principles.

Article 12 of the Continental Shelf Convention, the same convention that contains Article 6, i.e., the use of equidistance principle, allows for reservations being made to all parties of the convention. Two states, Iran and Venezuela, availed themselves of this right to reserve.

A wide freedom to formulate reservations is normally permitted in general multilateral treaties, and that even in the case of codifying conventions largely concerned with the reformulation of the existing law. But this is only for the purpose of maximizing number of acceptances of the Convention by allowing States having special problems to make reservations, provided that these are compatible with the object and purpose of the Convention.

The reservations which had been attached by France, Iran, Venezuela to Article 6 could not be interpreted as a general objection or reservation with respect of Article 6 of the Convention, their sole object being to invoke the exception of “special circumstances” in certain areas

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; and this is the inference the Court in fact draws in respect of Article 6 (delimitation). It is a legitimate inference that it was considered to have a different and less fundamental status and not, like the other Articles excluded from reservation, to reflect pre-existing or emergent customary law.The faculty of reservation denies to the provisions of Article 6 a norm-creating character.

before their coasts. By invoking the exception of special circumstances, the States concerned expressly recognized the validity and claimed the benefits of the Article 6.

In accordance with Article 38 of the Statute of the ICJ, two elements are generally demanded for the development of customary law: constant practice extending over some considerable time and a legal conviction in support of this practice.

a. As to the continental shelf, no such legal regime over some length of time exists. The period necessary or the establishment of customary law cannot be defined generally for all circumstances. However, in new technical fields which

The equidistance principle is far from being a novelty invented by a committee in 1953. The use of median line boundaries has been much more than occasional. See Annex 13 of counter-memorial which sets out a very considerable number of cases in which the equidistance principle has been employed in the delimitation of sea boundaries.

a. There is a substantial body of practice which is of respectable antiquity and applies the equidistance principle in delimiting lake boundaries. Article 6 is in accord with previous practice and principle and is generally accepted today as the modern law governing continental shelf boundaries, as amply confirmed by the practice of States since the Geneva Convention of 1958.

The rapid development and

The Geneva Convention did not embody or crystallize any pre-existing or emergent rule of customary law, according to which the delimitation of continental shelf areas between adjacent States must, unless the Parties otherwise agree, be carried out on an equidistance-special circumstance basis.

a. As regards the time element, although the passage of only a short period of time 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

call for immediate establishment of legal rules, short-term development of rules of customary law is not excluded. This applies to the regime of the continental shelf, since as a result of technological development, the exploration of the seabed, even at some distance from the shore, has been intensified in recent times, and a delimitation of submarine areas affording possibilities of exploration has become increasingly urgent. But time alone is not decisive, but rather the fact of whether or not during this time a specific usage, supported by legal conviction, can be proved. The shorter the length of time in which a rule of customary law is said to have developed, the stricter are the requirements for consistency and uniformity of usage and for proof of an underlying legal conviction in support of this usage. There have been oppositions and reservations to the equidistance principle.

general recognition of the coastal State's rights in the exploration and exploitation of the continental shelf adjacent to its coasts has been attended by a parallel development and general recognition of the equidistance-special circumstances principle as the general rule, in the absence of agreement, for the delimitation of boundaries between the areas of continental shelf appertaining to different coastal States; and that this principle, being an integral part of the law now generally recognized as the law governing the continental shelf, is binding upon any coastal State which claims areas of continental shelf as appertaining to it under that law, whether under the Continental Shelf Convention itself or under a customary right recognized and defined in that Convention.

b. The truth seems to be that in most cases States did not find it necessary to conclude treaties or legislate about their lateral sea-boundaries before the question of exploiting the mineral resources of the seabed and subsoil arose. Even in regard

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.

b. It is shown that there are but few cases in which the equidistance principle has been used by States. It is significant that every one of them deals with coasts which lie opposite each other. The principle has not yet been applied between adjacent states. The sporadic cases in which the principle has been applied certainly do not suffice to prove its general recognition beyond the scope of Article 6 of the Continental Shelf Convention. As to opposite states, the principle has shown to have arrived at a just and equitable result, because it allocates equal parts to both States in normal geographic situations. The application of the principle between neighboring, i.e. adjacent States has not been tried out at all.

c. In the North Sea, France has specifically and expressly excluded the equidistance principle for the drawing of boundaries in the North Sea.

Therefore, the so-called principle of equidistance is not a rule of customary international law determining the delimitation of the continental shelf and is therefore not applicable as such between the Parties.

to treaties, it is not strictly correct to say that lateral boundaries had never been put to the test before the Geneva Conference on the Law of the Sea. There were the Agreement between Finland and Norway in 1924, The Treaty of Peace of 1947 between the Allied and Associated Powers and Italy.

c. The United Kingdom, Norway, Denmark, the Netherlands, and Belgium (countries in the North Sea) have all treated the delimitation of the continental shelf beneath the North Sea as a perfectly normal case for the application of the equidistance principle.

As to “Special circumstance” referred to in Art. 6:

In a normal case, i.e. where the coastline is more or less straight,

The North Sea is not a special circumstance. The special circumstances clause was formulated and intended to be applied as a rule of law. It admits the

Unnecessary for the Court to determine since the use of the equidistance method was deemed not obligatory.

the application of the equidistance method more or less leads to a just and equitable apportionment. Should this be not he case, and should therefore not result in a just and equitable solution, the clause f the “special circumstances” applies. (Commentary of the Internatinal Law Commission)

possibility of modification of the general rule on the basis of geographical configuration only in cases where a particular coastline, by reason of some exceptional feature, gives the State concerned an extent of continental self abnormally large in relation t the general configuration of its coast. Then a correction is allowed by the clause in favour of an adjacent State whose continental shelf is correspondingly made abnormally small in relation to the general configuration of its coast. In short, the modification to the general rule is allowed only when it is equitable and just with regard t both States concerned in relation to the general configuration of their respective coasts. Neither the North Sea nor the practice of the States provides any basis for the treating the continental shelf beneath as a “special circumstance” for the purpose of its delimitation.

ASYLUM CASE

Celeni GuintoCASE BRIEF: Asylum Case (Colombia/Peru), 1950Timeline:• 3 Oct 1948 - a military rebellion broke out in Peru and was suppressed the same day.• 4 Oct - The American People’s Revolutionary Alliance, a political party, was charged with having organised and directed the rebellion. The next day, the Ministry of Interior addressed a “note of denunciation” against Victor Raul Haya de la Torre, the leader of the political party.• 11 Oct – judicial proceedings opened against Haya de la Torre • 3 Jan 1949 – Haya de la Torre sought asylum in the Colombian Embassyin Lima. On the next day, the Colombian Ambassador sent a note to the

Peruvian Minister of Foreign Affairs and Public Worship that they granted asylum to Haya de la Torre, requesting for a safe-conduct so that Haya de la Torre may leave the country.Summary of Facts: M. Victor Raul Haya de la Torre was a political leader (of the American People’s Revolutionary Alliance) in Peru who sought asylum in the Colombian Embassy in Lima, Peru after proceedings were instituted against him when a military rebellion broke. Three months after the rebellion, he was granted asylum as a political refugee, and while the Peruvian authorities were seeking him, the Colombian Ambassador requested a safe- conduct to enable Haya de la Torre to leave the country. Peru believed Haya de la Torre did not deserve the privilege of asylum for having committed common crimes.Issues/Resolutions Preview:b. Havana Convention – no explicit or implied recognition of unilateral qualification.c. Convention of Montevideo – not ratified by Peru at that time, cannot

be invoked against them.d. American international law – Colombia had not proved the existence of a constant and uniform practice of unilateral qualification as an expression of the right of the State of refuge and obligation upon the territorial State.2. Is the Government of Peru bound to deliver a safe-conduct to the refugee? No. (15-1)3. Is there merit in the accusation that Haya de la Torre committed common crimes? No. (15-1). Military rebellion is not a common crime.4. Are the requirements for asylum to be granted in conformity with relevant treaties? No. (10-6). Based on the ICJ’s interpretation of the Convention of Havana, asylum could not be an obstacle to proceedings instituted by legal authorities operating in accordance with the law. The purpose of political asylum is to grant immunity to a person for humanitarian considerations against the violent and uncontrolled action of irresponsible elements of the population. It is not made to evade legal prosecution of the territorial State.ExtraditionAsylumRefugee is within the territory of the State of refuge.Refugee is within the territory of the State where the offence was committed.Grant of asylum is normal exercise of territorial sovereignty since the refugee is outside the territory of the State where the offence was committed.Grant of asylum is a derogation of territorial sovereignty of the State. It withdraws the offender form the jurisdiction of the territorial State and constitutes a intervention in matters exclusively within the competence of that State.1.Is Colombia entitled to qualify unilaterally and in a manner binding upon Peru the nature of the Offence of Haya de la Torre to be able to grant him asylum? No. (14-2). Here, the Colombian government cited 4 sources of the unilateral declaration:a. The Bolivian Agreement of 1911 (Treaty on Extradition) – They used the article on recognising the institution of asylum based on principles of international law. However, these principles do not include a unilateral qualification. The treaty also applies to extradition, which is different from asylum:Page 1 of 4ASYLUM CASE Breakdown of Submissions and Judgement on the Merits

PeruThe Territorial State in this case, the country of origin of the refugee-political leader, Haya de la TorreColombiaThe State of Refuge, whose ambassador in Lima, Peru granted asylum to Haya de la TorreJudgement1st Submission: Colombia claims that she is entitled in the case of persons who have claimed asylum in her embassies, et al, to qualify the refugees, either as offenders for common crimes or deserters from the army or navy, or as political offenders;They claim this is conformity with the following sources: • Bolivian Agreement on Extradition“... the signatory States recognize the institution of asylum in conformity with the principles of international law.” (Art. 18)• Convention on Asylum (Havana Convention) “Asylum granted to political offenders in legations ..., 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 ...” (Art. 2)Colombia interpreted this to mean that the usages, conventions and laws of Colombia relating to the qualifications of the offence can be invoked against Peru.• Montevideo Convention on Political Asylum• American international law in general Colombia cited extradition treaties including the Montevideo Convention, which Peru has not ratified. The Colombian Government argued that the Convention merely codified principles which were already recognised by Latin-American custom, and that it is valid against Peru as a proof of customary law.Re: Bolivian Agreement of 1911In recognising “the institution of asylum,” the article merely refers to the principles of international law. But the principles of international law do not recognise any rule of unilateral and definitive qualification by the State granting diplomatic asylum.The provisions on the agreement concerning extradition do not apply because this is a case of asylum (see table above).Re: Havana ConventionThe interpretation of Colombia cannot be accepted because it would mean the extent of the obligation of the signatories of the convention will depend on modifications which might occur in the law of another. What the provision says is that the State of refuge shall not exercise asylum to a larger extent than is warranted by its own usages, conventions or laws and the asylum

granted must be respected by the territorial State.Re: Montevideo ConventionNot ratified by Peru, therefore the modifications in the convention of the Havana convention cannot apply against them.Re: American International LawThere must be proof that the alleged regional or local custom peculiar to Latin-American States be established in such a manner that has become binding on the other Party. The Colombian Government must prove that the rule invoked by it is in accordance with constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. This is in line with Art. 38 of the ICJ Statute, that sees international custom “as evidence of a general practise accepted as law”.The limited number of States which ratified the Montevideo Convention reveals the weakness of the argument of Colombia that it codified international custom.Peru has not requested that Haya de la Torre should leave Peru.2nd Submission: Peru is bound to give the guarantees necessary for the departure of the refugee (safe-conduct to Haya dela Torre) with due regard to the inviolability of his person from the country. Basis: Havana Convention entitles a State to request safe-conduct under certain conditions:1. Asylum has been regularly granted and maintained. It can be granted only to political offenders who are not accused or condemned for common crimes and only in urget cases and for the time strictly indispensable for the safety of the refugee.2. Art. 2 of the Havana Convention:“The Government of the State may require that the refugee be sent out of the national territory within the shortest time possible; and the diplomatic agent of the country who has granted asylum may in turn require the guarantees necessary for the departure of the refugee from the country with due regard to the inviolability of his person.”The Havana Convention based on the cited provision means that the territorial State may require that the refugee be sent out of the country, and that is the only instance when a demand be made by the State granting asylum to require the necessary guarantees as a condition of his being sent out.Therefore, the request for safe-conduct has two requirements:1. The diplomatic agent of the State of refuge is naturally desirous that the presence of the refugee on his premises should not be prolonged;2. The territorial State desires that its political opponent who has

obtained asylum should depart.The State requested for a safe-conduct is not necessarily legally bound to accede to it. Colombia is not entitled to claim from Peru the safe-conduct guarantees for departure.The grant of asylum by the Colombian Ambassador in Lima was made in violation of the Convention of Asylum signed at Havana. The grant of asylum may not be granted except:“for the period of time strictly indispensable.” (Art. 2, Par. 2 of Havana Convention), and that“It is not permissible for States to grant asylum... to persons accused or condemned for common crimes....” (Art. 1, Par. 1)The claim of Peru regarding the validity of the asylum is not admissible because of its lack of direct connection with the case of the Colombian Government.Colombia is wrong to question the propriety of the forum in asking the question because its second submission (safe-conduct) is premised on a valid asylum.Art. 1.1: The Courts in Peru has not proved that the acts of the refugee constituted common crimes. The recital of facts only show a military rebellion, and the Peruvian Code of Military Justice delineates military rebellion from a common crime. This contention of Peru therefore must be dismissed.Art. 2.2: The article refers to asylum granted to political offenders and the terms and conditions which asylum granted shall be respected by the territorial State. The most important and essential justification for asylum is the imminence or persistence of a danger for the person of the refugee. It is incumbent upon Colombia to submit proof of facts to show that the above-mentioned condition was fulfilled. The long interval between the military rebellion and the grant of asylum gave it a very special charater. Haya de la Torre was avoiding the Peruvian legal system.In principle, asylum cannot be opposed to the operation of justice. An exception can occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. However, even if there has been a prolonged state of siege in Peru, there has been no implied subordination of justice to the executive authority, or suspension of certain constitutional guaranteesThe Court cannot allow the practise of Latin- American republics, in which considerations of courtesy, good neighbourliness and political expediency to trump the Havana Convention and a national legal system. Such a conception, moreover, would come into conflict with one of the most firmly established traditions of Latin-America, which is, non-intervention.

Conclusion: The requirement of urgency in Art. 2.2 of the Havana Convention has not been met in this case.

NUCLEAR TEST CASES, ICJ Reports:

New Zealand v France, 1974 – AnekaAUSTRALIA V. FRANCE

Jill de DumoSTATEMENT OF FACTS

In the years 1966 to 1972, the French Government carried out atmospheric tests of nuclear devices at its Pacific Experimentation Centre in the French Polynesia. The main firing site has been some 6,000 kilometres to the East of Australian Mainland, which is why France created “prohibited/dangerous zones” to exclude aircraft and shipping vessels from the testing areas.

The UN Scientific Committee on the Effects of Atomic Radiation recorded varying degrees throughout the world of measurable quantities of radioactive matter. It is thus asserted that the French tests have caused some “fall-out” of this kind to be deposited in the Australian territory. France however maintained that the radioactive matter produced by its tests has been so “infinitesimal” that it may be regarded as negligible, and that it does not constitute a danger to the health of Australians.

On 9 May 1973, the Australian Ambassador transmitted an Application to institute proceedings against France with respect to the latter’s holding of atmospheric tests of nuclear weapons in the Pacific Ocean. The Agent of Australia also requested for interim measures of protection under Art. 33 of the 1928 General Act for the Pacific Settlement of International Disputes. In sum, the Australian Government prayed for the Court to “adjudge and declare” that the carrying out of nuclear weapon tests in the South Pacific Ocean is inconsistent with applicable rules of international law, and “to order” the French to desist from carrying out further tests.

Meanwhile, the French Government did not accept the Court’s jurisdiction. It did not appoint an Agent and requested the Court to remove the case from its list. No pleadings were also filed by France. Several statements were later on released by the French Government to the public, to wit:

On 16 August 1974, France’s Minister of Defence said that the French Government had done its best to ensure that the 1974 nuclear test would be the last.

On 25 September 1974 in the UN General Assembly, the French Minister of Foreign Affairs said: “We have now reached a stage in our nuclear technology that makes it possible for us to continue our programme by underground testing, and we have taken steps to do so as early as next year.”

On 11 October 1974, during a press conference held by the Minister of Defence, he reiterated twice that there would be no atmospheric tests in 1975 and that France was ready to proceed underground. He also cleared that there was no proviso (“…in the normal course of events”) in his statement.

ISSUES

A. THE COURT HAS NO JURISDICTION OVER THE CASE

Australia submits that the Court has jurisdiction over the case, on the two grounds:

Art. 17 of the General Act for the Pacific Settlement of International Disputes, read together with Arts. 36 and 37 of the Statute of the Court, wherein Australia and France both acceded to the General Act

Art. 36.2 of the Statute of the Court wherein Australia and France both made declarations

France submits that the Court is manifestly not competent in the case, that it could not accept its jurisdiction, and that accordingly, it will not appoint an agent.

Generally, the Court must refrain from entering into the merits of the claim; however, while examining questions of preliminary character, the Court is entitled to go into questions which may not be strictly capable of classification as matters of jurisdiction or admissibility, but are of such nature as to require examination in priority to those matters.

The Court has inherent jurisdiction to ensure that the exercise of its jurisdiction OVER THE MERITS, if and when established, shall not be frustrated, and to provide for an orderly settlement of all matters in dispute to maintain its judicial character (Northern Cameroons Judgment, ICJ Reports 1963). Such inherent jurisdiction derives from the mere existence of the Court as a judicial organ established by the consent of the States, and is conferred upon it in order that basic judicial functions may be safeguarded.

On the preliminary question, WON there is still a dispute

Under Art. 40 of the Statute of the Court, the Court is required to indicate the “subject of the dispute”, so there must be a point of reference for the consideration by the Court of the nature and existence of the dispute brought before it. It is thus essential whether Australia is requesting for a statement of a legal relationship, or a judgment which will refrain another Party from taking action.

In this case, although the Applicant has used the traditional formula of asking the court to “adjudge and declare”, the Court must ascertain the true object and purpose of the claim, and thus cannot confine itself to the ordinary meaning of the words. The Court must take into account the Application as a whole. The fons et erigo of this case is clearly the nuclear tests which the Applicant seeks to terminate. Thus, this is not merely a case of declaratory judgment.

HOWEVER, the existence of a dispute is a primary condition for the Court to exercise its judicial function. It is not sufficient to assert that there is a dispute, but such dispute must CONTINUE TO EXIST at the time when the Court makes a Decision. Art. 38 of the Court’s Statute provides that the Court’s function is to “decide in accordance with international law such disputes as are submitted to it.” It also states that jurisdiction may be exercised only when a dispute “genuinely exists between the parties.”

Considering the circumstances (please see arguments below) of this case, the “object” of the claim has already been achieved.

B. THE COURT RIGHTFULLLY TOOK COGNIZANCE OF SUBSEQUENT DEVELOPMENTS

Since the Applicant’s claim is to prevent further tests, the Court has to take account of any developments since the filing of the Application. Also, in view of the respondent’s NON-APPEARANCE, it is especially incumbent upon the Court to satisfy itself that it is in the possession of all the available facts.

While the statements of the French Authorities were not made before the Court, they are in the public domain, and are known to the Australian Government. In fact, the Attorney-General of Australia has commented on it in the Australian Senate. Moreover, it was the Applicant itself which drew the Court’s attention to the statements made by France. It submitted documents containing the statements and presented its own interpretation, touching particularly upon the question of whether France’s statements contained a firm assurance of desistance from nuclear testing.

While there is such a principle as audi alterma partem,3 this does not preclude the Court from taking into account statements made which merely supplement and reinforce matters already discussed in the proceedings. Applicant, having commented on the statements itself, could reasonable expect that the Court would deal with the matter and come to its own conclusion on the meaning and effect of those statements.

3 Audi alteram partem (or audiatur et altera pars) is a Latin phrase that literally means "hear the other side".[1] It is most often used to refer to the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them. (WIKIPEDIA)

C. THE FRENCH STATEMENTS/DECLARATIONS HAVE THE EFFECT OF CREATING LEGAL OBLIGATIONS

It is “well-recognized” that declarations made by way of unilateral acts concerning legal or factual situations may have the effect of creating legal obligations. When the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking.

An undertaking of this kind, if given publicly, and with intent to be bound, even though not within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo or any subsequent acceptance of the declaration is required for the declaration to take effect. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for. No particular form is required of this and parties are free to choose how they will make such commitments (Temple of Preah Vihear, ICJ Reports 1961).

Moreover, the creation of legal obligations is based on the principle of good faith. Trust and confidence are inherent in international cooperation, just as the rule of pacta sunt servanda in the law of treaties is base don good faith, so also is the binding character of an international obligation assumed by unilateral declarations.

In this case, it is the Australian Government which actually recognized the possibility of the dispute being resolved by a unilateral declaration, for as long as there is a “firm and binding undertaking” from the French. On such statements, it was the President of the French republic who made the declaration, and as Head of State, his communications are in “international relations act” of the French State.

New Zealand v France, 1995 Benedict Nisperos

Case Title: REQUEST FOR AN EXAMINATION OF THE SITUATION

International Court of JusticeThe Hague

IN ACCORDANCE WITH PARAGRAPH 63 OF THE COURT'S

JUDGMENTOF 20 DECEMBER 1974 IN THE

NUCLEAR TESTS(NEW ZEALAND v. FRANCE) CASE

Facts:

1. The case originated from an application from New Zealand in 1973 regarding the Nuclear Tests of France it is conducting near its shores and within its atmospheric coverage. The Court ruled for France and the decision in 1974 provides for continuation of the case if the basis of such judgment has been affected.

2. This is a "Request for an Examination of the Situation" in accordance with paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests Case (New Zealand v. France) in view of the recent development that France is conducting Nuclear tests using underground detonation;

3. The request arose out of a proposed action announced by France which will, if carried out, affect the basis of the Judgment rendered by the Court on 20 December 1974 in the Nuclear Tests Case (New Zealand v. France)"; and that "the immediate circumstance giving rise to the present phase of the Case is a decision announced by France in a media statement of 13 June 1995" by the President of the French Republic, according to which "France would conduct a final series of eight nuclear weapons tests in the South Pacific starting in September 1995".

4. New Zealand said that the rights for which it seeks protection all fall within the scope of the rights invoked in paragraph 28 of its Application of 1973, but this time time, it seeks recognition only of those rights that would be adversely affected by entry into the marine environment of radioactive material as a result of the further tests to be carried out at Mururoa or Fangataufa Atolls.

5.NZ is claiming entitlement to protection and to the benefit of a properly conducted Environmental Impact Assessment with the ff. assignment:

1. that the conduct of the proposed nuclear tests will constitute a violation of the rights under international law of New Zealand, as well as of other States;

2. that it is unlawful for France to conduct such nuclear tests before it has undertaken an Environmental Impact Assessment according to accepted international standards. Unless such an assessment establishes that the tests will not give rise, directly or indirectly, to radioactive contamination of the marine environment the rights under international law of New Zealand, as well as the rights of other States, will be violated."

Prayer for the Following Provisional Remedies:

(1) that France refrain from conducting any further nuclear tests at Mururoa and Fangataufa Atolls;

(2)that France undertake an environmental impact assessment of the proposed nuclear tests according to accepted international standards and that, unless the assessment establishes that the tests will not give rise to radioactive contamination of the marine environment, France refrain from conducting the tests;

(3)that France and New Zealand ensure that no action of any kind is taken which might aggravate or extend the dispute submitted to the Court or prejudice the rights of the other Party in respect of the carrying out of whatever decisions the Court may give in this case".

6. Submission for Interventions were made by Australia, Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia, as well as to the declarations on intervention made by the last four States.

New Zealand’s Arguments

1. The request is covered by N’s previous application in 1973. There is

France’s Counter-arguments

1. France contended that there could be no linkage because, in its view,

a link with its Request to the 1973 case. New Zealand's view was that the 1973 case concerned the general subject of nuclear contamination by nuclear testing of any kind, and was therefore wide enough to include nuclear contamination by underground tests.

2. New Zealand's complaint in 1973 was that damage was caused by French nuclear explosions in the Pacific. New Zealand's complaint in the present case is the same. The cause is the same, namely, French nuclear tests in the Pacific. The damage is the same, namely, radioactive contamination. The only difference is that the weapons are detonated underground.

3. With the evidence of its nuclear tests and its effects in the Pacific, the "basis" of the 1974 Judgment is now "affected". This gives New Zealand a right to request an examination of the situation, and places the Court under a duty to consider that request and the interim measures following from it. It also places on the Court the duty to consider the applications for permission to intervene of Australia, Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia.

4. Paragraph 63 is a mechanism enabling the continuation or the resumption of the proceedings of

the 1973 case concerned atmospheric nuclear tests, whereas New Zealand's present Request concerned a different question of underground nuclear tests. The case can not be reopened.

2. The possible steps to which the decision refers are subject to compliance with the 'provisions of the ICJ Statute' ... The French Government incidentally further observes that, even had the Court not so specified, the principle would nevertheless apply: any activity of the Court is governed by the Statute, which circumscribes the powers of the Court and prescribes the conduct that States must observe without it being possible for them to depart therefrom, even by agreement ...; as a result and a fortiori, a State cannot act unilaterally before the Court in the absence of any basis in the Statute.

3. New Zealand does not invoke any provision of the Statute and could not invoke any that would be capable of justifying its procedure in law. It is not a request for interpretation or revision, nor a new Application, whose entry in the General List would, for that matter, be quite out of the question.

4. Official declarations of the French authorities on the same subject, planning to stop its testing which

1973 and 1974 because they were not then fully determined. NZ should have the opportunity to continue its case, the progress of which was stopped in 1974. And to this end in paragraph 63 the Court authorized these derivative proceedings. ... the presentation of a Request for such an examination is to be part of the same case and not of a new one.

5. Paragraph 63 could only refer to the procedure applicable to the examination of the situation once the Request was admitted; it furthermore explicitly states that it is not seeking an interpretation of the 1974 Judgment under Article 60 of the Statute, nor a revision of that Judgment under Article 61.

were made publicly outside the Court are now erga omnes. The expression of the French Government's intention to put an end to its atmospheric tests, the objective of the Applicant for the cessation of nuclear tests had in effect been accomplished.

Issue: "Do the Requests submitted to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealand v. France)?".

Held: NO, it does not fall within par. 63 of the Judgment.

Requests by New Zealand is dismissed.

Prayer for Interventions are dismissed.

Court’s Ruling:

The Request should be dismissed

New Zealand's request for provisional measures and the applications for

permission to intervene submitted by Australia, Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia as well as the declarations of intervention made by the last four States, all of which are proceedings incidental to New Zealand's main request, likewise had to be dismissed.

The court said that there are two elements of the question. The first element concerns the courses of procedure envisaged by the Court in paragraph 63 of its 1974 Judgment, when it stated that "the Applicant could request an examination of the situation in accordance with the provisions of the Statute"; the other concerns the question whether the "basis" of that Judgment has been "affected" within the meaning of paragraph 63 thereof.

The court said that by inserting in paragraph 63 the above-mentioned phrase, the Court did not exclude a special procedure for access to it (unlike those mentioned in the Court's Statute, like the filing of a new application, or a request for interpretation or revision, which would have been open to the Applicant in any event).

The Court found that that special procedure would only be available to the Applicant if circumstances were to arise which affected the basis of the 1974 Judgment. And that, it found, was not the case, as the basis of that Judgment was France's undertaking not to conduct any further atmospheric nuclear tests and only a resumption of nuclear tests in the atmosphere would therefore have affected it. France recent action DID NOT CHANGE THE BASES OF THE JUDGMENT.

The Court observes that, in 1974, it took as the point of departure of its reasoning the Application filed by New Zealand in 1973; that in its Judgment of 20 December 1974 it affirmed that "in the circumstances of the present case, as already mentioned, the Court must ascertain the true subject of the dispute, the object and purpose of the claim ... In doing so it must take into account not only the submission, but the Application as a whole, the arguments of the Applicant before the Court, and other documents referred to .

The ICJ then referred to the statement made by the Prime Minister of New Zealand and found that "for purposes of the Application, the New Zealand

claim is to be interpreted as applying only to atmospheric tests, not to any other form of testing, and as applying only to atmospheric tests so conducted as to give rise to radio-active fall-out on New Zealand territory"

In addressing the issue whether New Zealand, when filing its 1973 Application, might have had broader objectives than the cessation of atmospheric nuclear tests – which the primary concern of the Government of New Zealand, the Court concludes that it cannot now reopen this question since its current task is limited to an analysis of the Judgment of 1974.

The Court said that the:

1. the communique issued by the Office of the President of the French Republic on 8 June 1974, stating that "in view of the stage reached in carrying out the French nuclear defense program France will be in a position to pass on to the stage of underground explosions as soon as the series of tests planned for this summer is completed"

2. the other official declarations of the French authorities on the same subject, made publicly outside the Court and erga omnes,

3. expressions by the French Government's intention to put an end to its atmospheric tests.

All leads to the conclusion that "a situation in which the objective of the Applicant [had] in effect been accomplished". The object of the claim having clearly disappeared, there is nothing on which to give judgment.

The Court concludes that the basis of the 1974 Judgment was consequently France's undertaking not to conduct any further atmospheric nuclear tests; that it was only, therefore, in the event of a resumption of nuclear tests in the atmosphere that that basis of the Judgment would have been affected; and that that hypothesis has not materialized.

The Court further rules that the 1974 Judgment dealt exclusively with atmospheric nuclear tests; that consequently, it is not possible for the Court to take into consideration questions relating to underground nuclear tests;

and that the Court cannot, therefore, take account of the arguments derived by New Zealand, on the one hand from the conditions in which France has conducted underground nuclear tests since 1974, and on the other from the development of international law in recent decades - and particularly the conclusion, on 25 November 1986, of the Noumea Convention - any more than of the arguments derived by France from the conduct of the New Zealand Government since 1974. It finally observes that its Order is without prejudice to the obligations of States to respect and protect the natural environment, obligations to which both New Zealand and France have in the present instance reaffirmed their commitment.

LEGALITY OF THE USE BY A STATE OF NUCLEAR WEAPONS IN ARMED CONFLICT

International Court of Justice8 July 1986

Diana Gervacio

CASE SUMMARY

By a letter dated 27 August 1993, the Director General WHO officially communicated to the Registrar a decision taken by the WH Assembly to submit a question to the Court for an advisory brief, i.e. –

In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?

The Court finds that it has no jurisdiction and consequently, is not able to give advisory opinions as requested of it under WH Assembly resolution WHA 46.40 dated 14 May 1993. DECISION OF THE COURT

I. THREE CONDITIONS MUST BE SATISFIED IN ORDER TO ESTABLISH JURISDICTION OF THE COURT WHEN A REQUEST

FOR AN ADVISORY OPINION IS SUBMITTED TO IT BY A SPECIALIZED AGENCY:

A. The agency requesting the opinion must be duly authorized, under the Charter, to request opinions from the Court

B. The opinion requested must be on a legal question, and C. This question must be one arising within the scope of the

activities of the requesting agency.

The request must fail for failure to comply with third condition set out above.

II. THE WHO HAS BEEN DULY AUTHORIZED, IN ACCORDANCE WITH ARTICLE 96, PAR.2 OF THE CHARTER TO REQUEST ADVISORY OPINIONS OF THE COURT.

WHA 46.40 expressly refers to two provisions as basis for its authority to request for advisory opinions from the Court. On one hand, there is Art. 76 of WHO Constitution which states:

“Upon authorization by the General Assembly of the UN or upon authorization in accordance with any agreement between the Organization and the UN, the Organization may request the ICJ for an advisory opinion on any legal question with the compentence of the Organization.”

On the other hand, par.2 of Art.X of the Agreement of 10 July 1948 between the UN and the WHO, under which:

“The General Assembly authorizes the WHO to request advisory opinions of the ICJ on legal questions arising within the scope of its competence other than questions concerning the mutual relationships of the Organization and the UN or other specialized agencies.”

Clearly, the WHO has been duly authorized to request advisory opinions of the Court. The first condition which must be met in order to establish competence of the Court is thus fulfilled.

III. THE QUESTION PUT TO THE COURT BY THE WH ASSEMBLY DOES IN FACT CONSTITUTE A LEGAL QUESTION.

The question put to the Court by the WH Assembly constitutes a legal question, as the Court is requested to rule on whether –

“in view of the health and environmental effects,… the use of nuclear weapons by a State in war or other armed conflict [would] be a breach of its obligations under international law including the WHO Constitution.”

To do this, the Court must identify the obligations of States under the rules of law invoked, and assess whether the behavior in question conforms to those obligations, thus giving an answer to the question posed based on law.

A. The fact that the question has political aspects does not suffice to deprive it of its character as a “legal question”

Some States have disputed that the question before the Court is an essentially political one and also that it goes beyond the scope of the WHO’s proper activities, depriving it of competence on the matter.

Regardless of the political aspects of the question, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task, namely, an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by international law.

The Court also finds that the political nature of the motives which may be said to have inspired the request and the political implications that the opinion given might have are of no relevance in the establishment of its jurisdiction to give such opinion.

B. The Court to exercise discretionary power to decline to give the opinion sought must first establish its jurisdiction

Various arguments have been put forward for the purpose of persuading this Court to use discretionary power it possesses

under Art. 65, par.1 of the Statute to decline to give opinion sought. The Court, however, can only exercise this discretionary power if it has first established that it has jurisdiction in the case in question; if the Court lacks jurisdiction, the question of exercising its discretionary power does not arise.

Thus, the second condition for the Court to acquire jurisdiction to give an advisory opinion has been satisfied.

IV. NONE OF THE FUNCTIONS OF THE WHO HAS A SUFFICIENT CONNECTION WITH THE QUESTION BEFORE IT FOR THAT QUESTION TO BE CAPABLE OF BEING CONSIDERED AS ARISING “WITHIN THE SCOPE OF [THE] ACTIVITIES” OF THE WHO.

A. The provisions of Art.2 of the WHO Constitution, interpreted “in their context and in the light of its object and purpose4,” cannot be understood as conferring upon WHO a competence to address the legality of the use of nuclear weapons.

The WH Assembly refers to subparagraphs (a), (k), (p) and (v) of Article 2 of the WHO Constitution as basis for its request for an advisory opinions. They refer to functions of the WHO, to wit:

“ (a) to act as the directing and coordinating authority on international health work;

(k) to propose conventions, agreements and regulations, and make recommendations with respect to international health matters and to perform such duties as may be assigned thereby to the Organization and are consistent with its objective;

(p) To study and report on, in cooperation with other specialized agencies where necessary, administrative and social techniques affecting public health and medical care from preventive and curative points of view, including hospital services and social security.

4 Article 31 of the 1969 Vienna Convention on the Law of Treaties

(v) generally to take all necessary action to attain the objective of the Organization.”

The Court is of the opinion that none of these functions has a sufficient connection with the question before it for the question to be capable of being considered as arising “within the scope of [the] activities” of the WHO.

1. The legality or illegality of the use of nuclear weapons is immaterial.

The question put to the Court in the present case relates not to the effects of the use of nuclear weapons on health, but to the legality of the use of such weapons in view of their health and environmental effects. Whatever those effects might be, the competence of the WHO to deal with them is not dependent on the legality of the acts that caused them.

The causes of the deterioration of human health are numerous and varied; and the legal or illegal character of these causes is essentially immaterial to the measures which the WHO must in any case tae in an attempt to remedy these effects. Whether nuclear weapons are used legally or illegally, their effects on health would be the same.

2. The WHO could only be competent to take those actions of “primary prevention” which fall within the functions of the Organizations as defined in Art.2 of its Constitution.

The Management Group, created by the Director-General of the WHO, in its 1987 report5 emphasized that “the only approach to the treatment of health effects of nuclear warfare is primary prevention that is prevention of nuclear war.” However, the Group states that “it is not for [it] to outline the political steps by which this threat can be removed or the preventive measures to be implemented.” In its conclusion, the Group states:

5 “Effects of Nuclear War on Health and Health Services” (1987)

“However, WHO can make important contributions to this process by systematically distributing information on the health consequences of nuclear warfare and by expanding and intensifying international cooperation in the field of health.”

The WHO has competence to take those actions of “primary prevention” which fall within its function per its Constitution. In consequence, the references to this type of prevention as suggested by WHO and the link suggested with the question of the legality of the use of nuclear weapons does not affect the conclusion of the Court, i.e. that question is not capable of being considered as arising “within the scope of [the] activities” of the WHO.

B. The WHO as an international organization is governed by the “principle of speciality” i.e., it is invested with powers that are limited by the function of the common interests whose promotion have been entrusted to it.

International organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the “principle of speciality.” The Permanent Court of International Justice referred to this basic principle in the following terms:

“As the European Commission is not a State, but an international institution with a special purpose, it only has the functions bestowed upon it by the Definitive Statute with a view to the fulfillment of that purpose, but its has power to exercise these functions to their full extent, in so far as the Statute does not impose restrictions upon it.”6

The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments. However, it is generally accepted that international organizations can exercise “implied powers,” –

6 “Jurisdiction of the European Commission of the Danube,” Advisory Opinion, P.C.I.J., Series B. No.14, p.64

those “conferred upon it by necessary implication as being essential to the performance of its duties.7”

To ascribe to the WHO the competence to address the legality of the use of nuclear weapons – even in view of their health and environmental effects – would be tantamount to disregarding the principle of speciality; for such competence could not be deemed a necessary implication of the Constitution of the Organization in the light of the purposes assigned to it by its member States.

C. The WHO is a “specialized agency” situated in an overall

system contemplated by the Charter.

The WHO is, moreover, an international organization of a particular kind. Per Art.69 of its Constitution, “the Organization shall be brought into relations with the United Nations as one of the specialized agencies referred to in Art.57 of the Charter of the United Nations.”

Art. 57 of the Charter defines “specialized agencies” as follows:

“The various specialized agencies, established by intergovernmental agreement and having wide international responsible, as defined in their basic instruments, in economic, social, cultural, educational, health and related fields, shall be brought into the relationship with the United Nations in accordance with the provisions of Art.63.”

The Charter8 of the UN laid the basis of a system designed to organize international cooperation in a coherent fashion by bringing the UN, invested with powers of general scope, into relationship with various autonomous and complementary organizations, invested with sectoral powers. The exercise of these powers by the organizations belonging to the “UN system” is coordinated, notably, by the relationship agreements

7 “Reparation for Injuries Suffered in the Service of the United Nations,” Advisory Opinion, ICJ Reports 1949, pp.182-1838 Cf. Arts. 58 and 63 of the Charter

concluded between the UN and each of the specialized agencies.

Thus, the WHO Constitution can only be interpreted, as far as the powers conferred upon that Organization are concerned, by taking due account not only of the general principle of speciality but also of the logic of the overall system contemplated by the Charter. If also, according to the rules on which the system is base, the WHO has, by virtue of Art.57 of the Charter, “wide international responsibilities,” those responsibilities are necessarily restricted to the sphere of public “health” and cannot encroach on the responsibilities of other parts of the UN system.

There is no doubt that questions concerning the use of force, the regulation of armaments and disarmaments are within the competence of the UN and lie outside that of specialized agencies. Besides, any other conclusion would render virtually meaningless the notion of a specialized agency.

V. THE MERE FACT THAT A MAJORITY OF STATES, IN VOTING ON A RESOLUTION, HAS COMPLIED WITH ALL THE RELEVANT RULES OF FORM CANNOT IN ITSELF SUFFICE TO REMEDY ANY FUNDAMENTAL DEFECTS, SUCH AS ACTING ULTRA VIRES WITH WHICH THE RESOLUTION MIGHT BE AFFLICTED.

It has been argued that the WH Assembly resolution WHA 46.40 having been adopted by the requisite majority, “must be presumed to have been validly adopted.9”

The Court would observe in this respect that (1) the question whether a resolution has been duly adopted from a procedural point of view and (2) the question whether that resolution has been adopted intra vires are two separate issues.

9 “Legal Consequences for States of Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p.22 par.20

As the Court has stated, “each organ must, in the first place, at least determine its own jurisdiction.10”

It was therefore certainly a matter of for the WH Assembly to decide on its competence – and thereby, that of the WHO – to submit a request to the Court for an advisory opinion. But likewise, it is incumbent on the Court to satisfy itself that the conditions governing its own competence to give the opinion requested are met. The Court also finds itself obliged, in the present case, to interpret the Constitution of WHO.11

The exercise of the functions entrusted to the Court under Art.65, par.1 of its Statute requires to furnish such an interpretation independently of any operation of the specific recourse mechanism which Art.75 of the WHO Constitution reserves for case in which a question or dispute arises between States concerning the interpretation or application of that instrument; and in doing so, the Court arrives at different conclusions from those reached by the WH Assembly.

CONCLUSION

Having arrived at the view that the request for an advisory opinion submitted by the WHO does not relate to a question which arises “within the scope of activities” of WHO in accordance with Article 96 of the Charter, the Court found that an essential condition founding its jurisdiction in the present case is absent, and that it cannot, accordingly give the opinion requested. Consequently, the Court is not called upon to examine the arguments which were laid before it with regard to the exercise of its discretionary power to given an opinion.

10 “Certain Expenses of the United Nations ,” Advisory Opinion, I.C.J. Reports 1962, p. 16811 Cf. Art.96 of the Charter re “scope of activities” of the Organization and Art.X, par.2 of the Agreement of 10 July 1948 to its “competence.”

PAQUETE HABANADana Batnag

Topic: sources of international law

Digest: During the US-Spain war, two fishing vessels (Paquete Habana and Lola) were captured by American forces while on their way back to Havana. Neither of the vessels had arms or ammunition on board, or knew that there was a blockade or even a war. Neither resisted the capture, nor was there evidence that the either the vessels or the crew were likely to aid the Spanish forces.The vessels were brought to Key West, where a complaint was filed for the condemnation of the vessels and of their cargo as prize of war. The lower court entered a decree of condemnation and sale, “the court not being satisfied that as a matter of law, without any ordinance, treaty or proclamation, fishing vessels of this class are exempt from seizure.” The vessels were then sold by auction, the Paquete Habana for $490 and the Lola for $800.Held: The captures were unlawful, and without probable cause. The decree of the district court was reversed and proceeds of the sale of the vessel, together with the proceeds from the sale of the cargo, was restored to the claimant, with damages and cost. (This was later modified to direct that the damages to be allowed shall only be compensatory, and not punitive).International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.At the present day, by the general consent of the civilized nations of the world and independently of any express treaty or other public act, it is an established rule of international law that coast fishing vesels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are

exempt from capture as prize of war. And this rule is is one which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter.

For the appellant (Paquete Habana)1. International laws generally exempt coast fishing vessels and their

crews and cargo from capture, even during war, on several conditions: that they are unarmed and have not helped the enemy. This rule evolved from a long history of treaties that can be traced back to 1403 between England and France. This exemption however does not apply to coast fishermen or their vessels if employed for a warlike purpose, or in such a way as to give aid or information to the enemy, nor when military or naval operations create a necessity to which all private interests must give way.

“By an ancient usage among civilized nations, beginning centuries ago and gradually ripening into a rule of international law, coast fishing vessels pursuing their vocation of catching and bringing in fresh fish have been recognized as exempt, with their cargoes and crews, from capture as prize of war.”1403. Between France and England, during the season for herring fishing1521. Treaty between Emperor Charles V and Francis I of France; during the season for herring fishing.1536. The herring fishery was permitted, in time of war, by French and Dutch edicts.1675. Louis XIV and the States General of Holland, by mutual agreement, granted to Dutch and French fishermen the liberty of fishing along the coasts of France, Holland and England.1785. Treaty between US and Prussia provided that if war should arise between the two, “...fishermen, unarmed and inhabiting unfortified towns, villages, or places and in general all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue in their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt or otherwise destroyed... by the armed force of the enemy, into whose power...they may happen to fall; but if everything is necessary to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price.”**repeated in later treaties between the US and Prussia in 1799 and 1828.

1894. Japan, by an ordinance promulgated at the beginning of its war with China, established prize courts and ordained that “boats engaged in coast fisheries” were among those exempt from detention.

2. These treaties have evolved into a custom, as evidenced by authoritative writers:Wheaton, International Law, 8th edition. Dana: In many treaties and decrees, fishermen catching fish as an article of food are added to the class of persons whose occupation is not to be disturbed in war.Gen. Halleck, International Law, or Rules Regulating the Intercourse of states in Peace and War (1861) said that the prevailing doctrine was: Fishing boats have also, as a general rule, been exempted from the effects of hostilities...French writers consider this exemption as an established principle of the modern law of war, and it has been so recognized in the French courts, which have restored such vessels when captured by French cruisers.Pistoye and Duverdy, Treatise on Maritime Prizes (1855) mentions a “unanimous accord of the maritime powers that an exception should be made in favor of coast fishermen. Such fishermen are respected by the enemy so long as they devote themselves exclusively to fishing.”De Cussy, Phases and Leading Cases of the Maritime Law of Nations (1856): In time of war, the freedom of fishing is respected by belligerents; fishing boats are considered as neutral; in law, as in principle, they are not subject either to capture or to confiscation. ...If one consulted only positive international law (international law expressed in treaties, decrees or other public acts, as distinguished from custom or usage), fishing boats would be subject, like all other trading vessels, to the law of prize; a sort of tacit agreement among all European nations frees them from it, and several official declarations have confirmed this privilege in favour of ‘a class of men whose hard and ill-rewarded labor, commonly performed by feeble and aged hands, is so foreign to the operations of war.’Ortolan: Regles Internationales et Diplomatie de la Mer (1864): Custom admits an exception in favor of boats engaged in

the coast fishery; these boats, as well as their crews, are free from capture and exempt from all hostilities.Calvo: Notwitstanding the hardships to which maritime wars subject private property,notwithstanding the extent of the recognized rights of belligerents, there are generally exempted, from seizure and capture, fishing vessels.De Boeck, Enemy Private Property under Enemy’s Flag (1882): A usage very ancient, if not universal, withdraws from the right of capture enemy vessels engaged in the coast fishery. The reason of this exception is evident; it would have been too hard to snatch from poor fishermen the means of earning their bread...the exemption includes the boats, the fishing implements, and the cargo of fish.Jan Helenus Ferguson, Manual of International Law for the Use of Navies, Colonies and Consulates (1882): An exception to the usage of capturing enemy’s private vessels at sea is the coast fishery...this principle of immunity from capture of fishing boats is generally adopted by all maritime powers, and in actual warfare they are universally spared so long as they remain harmless.”Pasquale Fiore, Public International Laaw (1885-1886): The vessels of fishermen have been generally declared exempt from confiscation because of the eminently peaceful object of their humble industry and of the principles of equity and humanity. The exemption includes the vessel, the implements of fishing, and the cargo resulting from the fishery. This usage, eminently humane, goes back to very ancient times, and although the immunity of the fishery along the coasts may not have been sanctioned by treaties, yet it is considered today as so definitely established that the inviolability of vessels devoted to that fishery is proclaimed by the publicists as a positive rule of international law, and is generally respected by the nations. Consequently we shall lay down the following rule: a. Vessels belonging to citizens of the enemy state, and devoted to

fishing along the coasts, cannot be subject to capture;b. Such vessels, however, will lose all right of exemption when

employed for a warlike purpose;

c. There may nevertheless be subjected to capture vessels devoted to the great fishery in the ocean, such as those employed in the whale fishery, or in that for seals or sea calves.

3. This custom has been taken judicial notice of in several court cases.

1813. While the US was at war with England, a US vessel was captured by an English ship and brought into Halifax, Nova Scotia and condemned as lawful prize by the court of vice admiralty there. But a petition for the restitution of a case of paintings and engravings owned by the Academy of Arts in Philadelphia was granted by the judge who noted that “the same law of nations which prescribes that all property belonging to the enemy shall be liable to confiscation likewise has its modifications and relaxations of that rule,” adding that there have been “innumerable cases of the mutual exercise of this courtesy between nations in former wars.”1861. During the war of the Rebellion, a similar decision was made in the US District Court for the Eastern District of Pennsylvania with regards to two cases of books belonging to a North Carolina university. The judge said that while the claimant, “as the resident of a hostile district, would not be entitled to restitution of the subject of a commercial adventure in books, the purpose of the shipment in question gives to it a different character. The US, in prosecuting hostilities for the restoration of their constitutional authority, are compelled incidentally to confiscate property captured at sea, of which te proceeds would otherwise increase the wealth of that district. But the US are not war with literature in that part of their territory.” He then referred to the decision in Nova Scotia, and to the French decisions upon cases of fishing vessels, as precedents for the decree.Justice Strong (no case mentioned in the judgment): Undoubtedly no single nation can change the law of the sea. The law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like the laws of nations, it rests upon the common consent of civilized communities. It is of force not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation, or in the ordinance of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to be constitute the commercial world. Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which, when generally accepted, became of universal obligation.”

“This is not giving to the statutes of any nation extraterritorial effect. It is not treating them as general maritime laws, but it is recognition of the historical fact that, by common consent of mankind these rules have been acquiesced in as of general obligation. Of that fact we think we may take judicial notice. Foreign municipal laws must indeed be proved as facts, but it is not so with the law of nations.”

4. Though there is no treaty with Mexico exempting coast fishing vessels, the Paquete Habana and the Lola must be returned to their owners, in observance of this international law. It is the duty of this court, sitting as the highest prize court of the United States and administering the law of nations, to declare and adjudge the capture as unlawful and without probable cause.International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.At the present day, by the general consent of the civilized nations of the world and independently of any express treaty or other public act, it is an established rule of international law that coast fishing vesels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war. And this rule is is one which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter.

For the defense (based on the dissent of Chief Justice Fuller, in which Justices Harlan and McKenna concurred):

1. There is no established international rule that exempts from seizure the captured fishing vessels; neither can the Court revise an action

that was taken in the ordinary exercise of discretion in the conduct of war. Custom is just a guide which the executive may choose whether or not to follow. International law is not an inflexible law which the executive may not disregard. “The rule, like other precepts of morality, or humanity, and even of wisdom, is addressed to the judgment of the sovereign, and although it cannot be disregarded by him without obloquy, yet it may be disregarded. The rule is in its nature flexible. It is subject to infinite modification. It is not an immutable rule of law, but depends on political considerations which may continually vary.”Lord Stowell, in his judgment allowing the seizure of a small Dutch fishing vessel taken in April 1798, said that rule exempting coast fishing vessels from seizure was “a rule of comity only, and not of legal decision; it has prevailed from views of mutual accommodation between neighboring countries, and from tenderness to a poor and industrious order of people.” Saying that “there has been reason for changing this mode of treatment,” he then went on to say that The Young Jacob and Johanna may be considered as a ship “constantly and exclusively employed in the enemy’s trade.” (*note however that the capture and condemnation were within a year after the English government ordered its commanders to seize French and Dutch fishing vessels. That order was later revoked. The majority opinion notes that the judgment was based upon the 1798 order). The exemption of fishing craft is essentially an act of grace, not a matter of right, and it is extended or denied as the exigency demands.

2. In one case, regarding the confiscation of enemy property in land within the US territory, the Court held that property could not be confiscated without an act of Congress. But then it went on to say: “When war breaks out, the question what shall be done with enemy property in our country is a question rather of policy than of law...Like all other questions of policy, it is proper for the consideration of a department which can modify it at will, not for the consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of the executive or the judiciary.” (*The majority opinion, however, in

referring to the same case, said that while there were ‘expressions of CJ Marshall which, taken by themselves, might seem inconsistent with the duty of a prize court to take judicial notice of a rule of international law, established by the general usage of civilized nations...the actual decision in that case, and the leading reasons on which it was based, appear to us rather to confirm our position.”)

3. As a naval officer, Admiral Simpson knows enough of the law not to violate it. “It is impossible to concede that the Admiral ratified these captures in disregard of established international law and the proclamation, or that the President, if he had been of opinion that there was any infraction of law or proclamation, would not have intervened prior to condemnation.”After the Paquete Habana and the Lola were captured, Admiral Simpson telegraphed to the Secretary of the Navy: I find that a large number of fishing schooners are attempting to get into Havana from their fishing grounds near the Florida reefs and coasts. They are generally manned by excellent seamen, belonging to the maritime inscription of Spain, who have already served in the Spanish navy, and who are liable to further service. As these trained men are naval reserves, most valuable to the Spaniards as artillerymen, either afloat or ashore, I recommend that they should be detained prisoners of war, and that I should be authorized to deliver them to the commanding officer of the army at Key West.”To this the Secretary of the Navy answered: “Spanish fishing vessels attempting to violate blockade are subject, with crew, to capture, and any such vessel or crew considered likely to aid enemy may be detained.”Sailors on board enemy’s trading vessels are made prisoners because of their fitness for immediate use on ships of war. Therefore the Admiral pointed out the value of these fishing seamen to the enemy, and advised their detention. The Secretary replied that if the vessels were ‘attempting to violate blockade,’ they were subject with crew to capture; and might also be detained if ‘considered likely to aid the enemy.’ All this was in accordance with the rules and usages of international law, with which, whether in peace or war, the naval service has always been necessarily familiar.

4. The vessels are not the small fishing vessels referred to in the international law. They were of 25 and 35 tons burden and carried large tanks. These were in fact commercial vessels, and ‘the considerations which have operated to mitigate the evils of war in respect of individual harvesters of the soil [cannot] properly be invoked on behalf of these hired vessels as being the implements of like harvesters of the sea.’

5. The rule exempting small fishing vessels from seizure has not always been followed.In the Crimean war, 1854-55, the allied squadrons swept the Sea of Azof of all craft capable of furnishing the means of transportation, and the English admiral in the Gulf of Finland directed the destruction of all Russian coasting vessels not of sufficient value to be detained as prizes except “boats or small craft which may be found empty at anchor, and not trafficking.”The treaties with Prussia of 1785, 1799 and 1828, and of 1848 with Mexico, in exempting fishermen, ‘unarmed and inhabiting unfortified towns, villages, or places,’ did not exempt fishing vessels from seizure as prize.

6. The views of writers on international law may be persuasive, but not authoritative.

The rule is that exemption from the rigors of war is in the control of the Executive, not the courts. He is bound by no immutable rule on the subject. It is for him to apply, or to modify, or to deny altogether such immunity as may have been usually extended. Exemptions may be designated in advance or granted according to circumstances, but carrying on war involves the infliction of the hardships of war, at least to the extent that the seizure or destruction of enemy’s property on sea need not be specifically authorized in order to be accomplished.These vessels are not exempt as a matter, and the Court must not overrule a decision that properly belongs to the Executive.

PREAH VIHEAR TEMPLE CASE (to follow, the one assigned the case has gone on LOA)

PORTUGAL VS. INDIAMaebel dela Cruz

PORTUGAL

STATEMENT OF FACTS

1. PORTUGUESE TERRITORY WITHIN THE INDIAN PENINSULA

The territory of Portugal in the Indian peninsula was made up of the three districts of Goa, Daman and Diu. In addition to these districts, Portugal also had two parcels of territory which constituted the enclaves of Dadra and Nagar-Aveli.

2. OCCUPATION OF DADRA

On July 21 and 22, 1954, insurgents were able to overthrow Portuguese authorities in the enclave of Dadra. The “United Front of Goans” made a public announcement that a there would be a similar expedition against the enclave of Nagar-Aveli.

3. PASSAGE PREVENTED BY INDIA

India, which had been carrying out an open campaign since 1950 for the annexation of the Portuguese territories, prevented Portugal from exercising its right of passage by refusing to grant visas to Portuguese nationals. The Portuguese government requested the government of India to allow transit facilities for reinforcements. It subsequently requested that the delegates of the governor of Daman be allowed to enter Nagar-Aveli. Both requests were denied by India.

4. ENCLAVES ISOLATED

Dadra and Nagar-Aveli became completely cut off from the rest of the Portuguese territory. Portuguese authorities were placed

in a position where it became impossible for them to exercise their rights of sovereignty over the enclaves.

PLEADINGS

I. Portugal has right of transit

A. Right of transit arising from the exercise of Portugal’s sovereign rights

The enclaves of Dadra and Nagar-Aveli are under the sovereignty of Portugal. Portugal must be allowed to communicate with its territories so that it could exercise its sovereign rights. The right being claimed by Portugal is not the right of access to Indian territory but the right to transit to enable it to communicate with the enclaves to the extent necessary for the exercise of Portuguese sovereignty. India has recognized Portuguese sovereignty over the enclaves and cannot reserve a right that would make it impossible for Portugal to exercise its sovereignty.

B. Right established by practice between parties

The right of sovereignty being claimed by Portugal is also confirmed by its agreements with the Maranthas, by local custom, and by the concordance of the municipal legal systems with respect to the access to enclaved lands. For nearly two centuries, there has been an unbroken practice in respect of the maintenance of communications between Daman and the enclaves. This practice is based on legal obligation (opinion juris sive necessitates)

C. Article 38, 1.c., Statute of the International Court of Justice

Municipal laws of civilized nations recognize that the holder of enclaved land has the right to pass for purposes of access.

II. India has failed to respect its obligation arising from Portugal’s right of passage

A. India restricted Portugal’s right to exercise its sovereignty

India’s attitude with regard to Portuguese transit changed in the last months of 1953, after Portugal’s refusal to accede to India’s request for cession of Portugal’s territories. This change was marked by a series of restrictions which impeded the exercise of Portugal’s sovereignty, and which would have gravely impeded the enclaves and paralyzed them had Portugal not taken rapid measures to ensure the maintenance of order.

B. India failed to take measures to prevent threats against the enclaves

The Indian government was aware of the threats against the Portuguese territories. It had the duty to prevent the realization of these threats but took no measures to prevent the same. It even increased the danger by increasing the restrictions on Portugal’s right of transit. Because of the increased restrictions, Portugal was placed in a position in which it was unable to defend itself against the threat of occupation. Prohibitions are still in place and because of this, those who profited from the situation were able to consolidate their positions in the enclaves.

PRAYER FOR RELIEF

1. To be declared to possess the right of passage between Dadra and Nagar-Aveli, and between the enclaves and the coastal district of Daman, with regard to the transport of goods and persons, including armed forces, without prohibitions or difficulties.

2. To recognize and declare that India has prevented the exercise of Portugal’s right and that such is a violation of obligation from certain treaties.

3. To adjudge that India has to put an end to the situation and allow Portugal to exercise its right of passage.

INDIA

STATEMENT OF FACTS

1. PORTUGUESE TERRITORY WITHIN THE INDIAN PENINSULA

The territory of Portugal in the Indian peninsula was made up of the three districts of Goa, Daman and Diu. In addition to these districts, Portugal also had two parcels of territory which constituted the enclaves of Dadra and Nagar-Aveli.

2. OCCUPATION OF DADRA

On July 21 and 22, 1954, insurgents were able to overthrow Portuguese authorities in the enclave of Dadra. The “United Front of Goans” made a public announcement that a there would be a similar expedition against the enclave of Nagar-Aveli.

3. PASSAGE PREVENTED BY INDIA

India, in view of the situation, refused to grant visas to Portuguese nationals. The Portuguese government requested the government of India to allow transit facilities for reinforcements. It subsequently requested that the delegates of the governor of Daman be allowed to enter Nagar-Aveli. Both requests were denied by India.

PLEADINGS

I. The court has no jurisdiction

An examination of the merits will lead to the conclusion that the court has no jurisdiction. The dispute is exclusively within the domestic jurisdiction of India.

II. The dispute has started prior to February 5, 1930

India has agreed to accept the Court’s jurisdiction for all disputes from February 5, 1930. Portugal’s claim of possessing the right of passage has repeatedly been the subject of difficulties prior to February 5, 1930.

III. Merits

A. Right claimed

Portugal has claimed that it has a right of passage and that India has a correlative obligation but it is difficult to see how the requirement of sovereignty could lead to the right of passage for private persons and goods. Portugal also claims that its right is to be exercised within limits as required by its needs but has failed to clearly define these limits.

B. Basis of right claimed

The right being claimed by Portugal has no basis in general custom, or principles of international law, or general principles of law recognized by civilized states, or particular agreements, or local customs which must be assimilated to particular agreements.

The 1779 Treaty with the Maratha empire never resulted in an agreement. The draft did not involve the transfer of sovereignty. Sovereignty was later usurped by Portugal but it still did not give rise to the right of passage. Granting that Portugal has a right of passage, it was never accompanied by the recognition of obligations.

C. Practice between Portugal and the British and Indian governments

From 1818 until 1954, the governments of Great Britain or India granted or refused passage as they saw fit. Various agreements with Portugal (in 1819, 1844, 1861, 1879, 1913, 1920 and 1940) were concluded but covered

only short periods. These were revocable and had limited content. Great Britain and India always had discretion on whether to allow or refuse passage. These agreements show that the states refused to be bound by formal undertakings with regard to the transit of goods, armed forces, passage to prevent or put down political, social or economic disturbances.

D. Violation of the alleged right in July and August of 1954

The Indian government never concealed its desire for Goans to be allowed to join the Union of Independent India but has made clear that the reunion must be achieved without violence. The restrictions imposed by India had to be done to answer to restricted measures adopted by the Goan administration in respect of Indian nationals, by its concern not to assist in the extension of the reign of terror by the Portuguese authorities to prevent and put down any manifestation of Indian national sentiment. The events which occurred cannot be described as invasion or foreign occupation because those who came from the outside to support the liberation movement were mostly Goans. Majority left the enclaves after a few days. The independent administration was composed mostly of people born or long time residents of the enclaves.

E. Portugal’s claim for injunction

Even if obligations in the past, were binding on India, it should be regarded as having lapsed because of the formation at Silvassa (capital of enclave) of an independent local administration. India has adopted an attitude of non-intervention in the conflict between the administration and Portugal. Restoration of Portuguese power in the enclaves brought about by force might result to threats to internal order and external peace of the Indian Union.

F. Alternative claim for injunction

It is difficult to accept that the suspension of Portugal’s claimed right is temporary in nature. It would be

impossible to foresee events that would put an end to it. Portugal cannot seek to prevent in perpetuity any evolution of a situation unfavorable to the restoration of the Portuguese regime. It was not shown how the passage of private persons and goods are connected to Portugal’s exercise of sovereignty.

PRAYER FOR RELIEF

1. To declare that the court has no jurisdiction on the claim being presented by Portugal.

2. In the alternative, to declare the claim to be ill-founded.

INTERNATIONAL COURT OF JUSTICE

Issue: the compatibility of India’s action with obligations resulting from Portugal’s right of passage

Discussion:- India allegedly placed obstacles in the way of the exercise of passage of Portugal in 1954. The dispute started from that time. India has already accepted the Court’s jurisdiction for all disputes arising after February 5, 1930.- Before 1954, passage was effected in a way that was recognized as acceptable to both sides. There is no justification for India’s claim that the dispute arose before February 5, 1930.- Up to 1954, there might have been a few minor incidents, but passage was effected without controversy. Controversy arose only in 1954. The dispute relates to the existence of the right of passage to go into the enclaved territories and India’s alleged failure to comply with obligations.- Portugal relies on the Treaty of Poona of 1779 and on the sanads (decrees) issued by the Maratha ruler in 1783 and 1785, as having conferred sovereignty on Portugal over the enclaves with right of passage to them.- The Maranthas treated the treaty as valid and binding between them.- The treaty and the sanads did not operate to transfer sovereignty over the assigned villages to Portugal, but only conferred upon Portugal, with respect to the villages, a revenue grant of the value of 12,000 rupees per annum. - The language employed in the agreement was not intended to transfer sovereignty over villages to the Portuguese. If transfer was intended,

appropriate and adequate expressions like cession "in perpetuity" or "in perpetual sovereignty" would have been used. - The agreement only granted authority to put down revolt or rebellion in assigned the villages. If transfer of sovereignty was intended, it would have been unnecessary to recite that Portugal would have the authority to quell revolt or rebellion in its own territory.- When the British arrived, they found the Portuguese in occupation of villages and exercising full and exclusive administrative authority over them. They left the Portuguese in the occupation of the villages. The Portuguese represented themselves as having sovereignty. The British, as successors of the Maranthas, neither claimed sovereignty nor expressly recognized Portuguese sovereignty. Recognition was only by implication and it was later tacitly recognized by India. The villages then acquired character of Portuguese enclaves within Indian territory.- India claimed that no local custom could be established between only two states. There is no reason why long continued practice between two states accepted by them as regulating their relations should not form basis of mutual rights and obligations between the two states.- No restrictions, beyond routine control, were placed on passage of civil officials and private persons and on goods, other than arms and ammunition. Portugal had the right of passage in 1954 with regard to above mentioned.- It was different for armed forces, armed police and arms and ammunition. Up to 1878, the right of passage was based on reciprocity. It was not shown that passage was exercised as matter of right. - The Treaty of commerce and extradition between Britain and Portugal laid down that armed forces allowed to enter only for reasons specified in former treaties or upon formal request made by the party desiring entry. There were complaints that Portuguese armed forces were entering territory without authorization. Portugal denied these allegations. There were various agreements between Portugal and the British regarding entry of armed forces.- When India gained independence, the practice was continued. When armed forces were allowed to enter, it was not as a matter of right. Arms and ammunition were allowed but only after obtaining a special license.- The right of passage established was only for civil officials, private persons and goods other than arms and ammunition. The entry of armed forces and arms and ammunition was only by permission of British authorities. This continued until post-British period.- With the having been right established, there is no need to examine whether general international custom or general principles of law recognized

by civilized nations would lead to same result (whether or not these could be relied upon by Portugal in support of its claim of right of passage)- Relations between neighboring states were not regulated by precisely formulated rules but governed largely by practice. Practice must prevail over any general rules.- The governor of Daman was granted visas for journeys to and from Dadra as late as July 21, 1954. Portuguese authority was overthrown on July 21-22, 1954. After that, all passage was suspended by India. According to India, it was necessary in view of abnormal situation and tension created in surrounding Indian territory.- The Court is unable to hold that India's refusal of passage to the proposed delegation and refusal of visas to Portuguese nationals and native Indian Portuguese in the employ of the Portuguese government was contrary to the obligation resulting from Portugal's right of passage. India’s refusal was covered by its power of regulation and control of right of passage of Portugal.

Decision:- Portugal had right of passage for civilians and goods only- No right of passage for armed forces- No breach of obligation on part of India

CORFU CHANNEL CASEKATRINA MANIQUIS

CORFU CHANNEL CASE (United Kingdom v. Albania, 1949)Factual Milieu:On May 15th, 1946, the British cruisers Orion and Superb, while passing southward through the North Corfu Channel, were fired at by an Albanian battery in the vicinity of Saranda.  It appears from the report of the commanding naval officer dated May 29th, 1946, that the firing started when the ships had already passed the battery and were moving away from it;  that from 12 to 20 rounds were fired;  that the firing lasted 12 minutes and ceased only when the ships were out of range;  but that the ships were not hit although there were a number of 'shorts' and of 'overs'.   An Albanian note of May 21st states that the Coastal Commander ordered a few shots to be fired in the direction of the ships 'in accordance with a General Order founded on international law'. 

 The United Kingdom Government at once protested to the Albanian Government, stating that innocent passage through straits is a right recognized by international law.  There ensued a diplomatic correspondence in which the Albanian Government asserted that foreign warships and merchant vessels had no right to pass through Albanian territorial waters without prior notification to, and the permission of, the Albanian authorities.  This view was put into effect by a communication of the Albanian Chief of Staff, dated May 17th, 1946, which purported to subject the passage of foreign warships and merchant vessels in Albanian territorial waters to previous notification to and authorization by the Albanian Government.  The diplomatic correspondence continued, and culminated in a United Kingdom note of August 2nd, 1946, in which the United Kingdom Government maintained its view with regard to the right of innocent passage through straits forming routes for international maritime traffic between two parts of the high seas.  The note ended with the warning that if Albanian coastal batteries in the future opened fire on any British warship passing through the Corfu Channel, the fire would be returned.  The contents of this note were, on August 1st, communicated by the British Admiralty to the Commander-in-Chief, Mediterranean, with the instruction that he should refrain from using the Channel until the note had been presented to the Albanian Government.  On August 10th, he received from the Admiralty the following telegram:  'The Albanians have now received the note.  North Corfu Strait may now be used by ships of your fleet, but only when essential and with armament in fore and aft position.  If coastal guns fire at ships passing through the Strait, ships should fire back.'  On September 21st, the following telegram was sent by the Admiralty to the Commander-in-Chief, Mediterranean:  'Establishment of diplomatic relations with Albania is again under consideration by His Majesty's Government who wish to know whether the Albanian Government have learnt to behave themselves.  Information is requested whether any ships under your command have passed through the North Corfu Strait since August and, if not, whether you intend them to do so shortly.'  The Commander-in-Chief answered the next day that his ships had not done so yet, but that it was his intention that Mauritius and Leander and two destroyers should do so when they departed from Corfu on October 22nd. On October 22nd, 1946, a squadron of British warships, the cruisers Mauritius and Leander and the destroyers Saumarez and Volage, left the port of Corfu and proceeded northward through a channel previously swept for mines in the North Corfu Strait.  The cruiser Mauritius was leading, followed

by the destroyer Saumarez;  at a certain distance thereafter came the cruiser Leander followed by the destroyer Volage.  Outside the Bay of Saranda, Saumarez struck a mine and was heavily damaged.  Volage was ordered to give her assistance and to take her in tow.  Whilst towing the damaged ship, Volage struck a mine and was much damaged.  Nevertheless, she succeeded in towing the other ship back to Corfu.

After the explosions of October 22nd, the United Kingdom Government sent a note to the Albanian Government, in which it announced its intention to sweep the Corfu Channel shortly.  The Albanian reply, which was received in London on October 31st, stated that the Albanian Government would not give its consent to this unless the operation in question took place outside Albanian territorial waters.  Meanwhile, at the United Kingdom Government's request, the International Central Mine Clearance Board decided, in a resolution of November 1st, 1946, that there should be a further sweep of the Channel, subject to Albania's consent.  The United Kingdom Government having informed the Albanian Government, in a communication of November 10th, that the proposed sweep would take place on November 12th, the Albanian Government replied on the 11th, protesting against this 'unilateral decision of His Majesty's Government'. It said it did not consider it inconvenient that the British fleet should undertake the sweeping of the channel of navigation, but added that, before sweeping was carried out, it considered it indispensable to decide what area of the sea should be deemed to constitute this channel, and proposed theestablishment of a Mixed Commission for the purpose.  It ended by saying that any sweeping undertaken without the consent of the Albanian Government outside the channel thus constituted, i.e., inside Albanian territorial waters where foreign warships have no reason to sail, could only be considered as a deliberate violation of Albanian territory and sovereignty.

After this exchange of notes, 'Operation Retail' took place on November 12th and 13th.  The North Corfu Channel was swept by British minesweepers and twenty-two moored mines were cut.  Two mines were taken to Malta for expert examination.  During the minesweeping operation it was thought that the mines were of the German GR type, but it was subsequently established that they were of the German GY type. Commander Mestre, of the French Navy, was asked to attend as observer, and was present at the sweep on November 13th.  The operation was carried out under the protection of an important covering force composed of an aircraft carrier, cruisers and other war vessels.  This covering force remained throughout the operation at a certain distance to the west of the Channel, except for the frigate St. Bride's

Bay, which was stationed in the Channel south-east of Cape Kiephali.  The sweep began in the morning of November 13th, at about 9 o'clock, and ended in the afternoon near nightfall.  The area swept was in Albanian territorial waters, and within the limits of the channel previously swept.  By a Judgment delivered on March 25th, 1948 in the Corfu Channel case, in proceedings instituted on May 22nd, 1947, by an application of the Government of the United Kingdom of Great Britain and Northern Ireland against the Government of the People's Republic of Albania, the Court gave its decision on the Preliminary Objection filed on December 9th, 1947, by the latter Government.  The Court rejected the Objection and decided that proceedings on the merits should continue. Immediately after the delivery of the judgment, the Court was notified by the Agents of the Parties of a Special Agreement signed on March 25, 1948, where it was stated that both parties have accepted the Special Agreement, which has been drawn up as a result of the Resolution of the Security Council of the 9th April, 1947, for the purpose of submitting to the International Court of Justice for decision the following: ISSUES:   (1) Is Albania responsible under international law for the explosions which occurred on the 22nd October 1946 in Albanian waters and for the damage and loss of human life which resulted from them and is there any duty to pay compensation?    (2) Has the United Kingdom under international law violated the sovereignty of the Albanian People's Republic by reason of the acts of the Royal Navy in Albanian waters on the 22nd October and on the 12th and 13th November 1946 and is there any duty to give satisfaction?

ISSUE 1:ARGUMENTS OF THE PARTIES:1. That, on October 22nd, 1946, damage was caused to His Majesty's ships Saumarez and Volage, which resulted in the death and injuries of 44, and personal injuries to 42, British officers and men by a minefield of anchored automatic mines in the international highway of the Corfu Strait in an area south-west of the Bay of Saranda.

- It was pointed out on behalf of the United Kingdom Government that this minefield had been recently laid.   The United Kingdom Government contended that the mines which struck the two ships

on October 22nd were part of this minefield. The mining of Saumarez and Volage occurred in Albanian territorial waters, just at the place in the swept channel where the minefield was found, as indicated on the chart forming Annex 9 to the United Kingdom Memorial.

 (2) That the aforesaid minefield was laid between May 15th and October 22nd, 1946, by or with the connivance or knowledge of the Albanian Government.

- This is the main position of the United Kingdom and the alleged foundation for Albania's responsibility for the October 22, 1946 explosions. The minelaying operation was carried out by two Yugoslav warships at a date prior to October 22nd, but very near that date.  This would imply collusion between the Albanian and the Yugoslav Governments, consisting either of a request by the Albanian Government to the Yugoslav Government for assistance, or of acquiescence by the Albanian authorities in the laying of the mines.

- In proof of this collusion, Lieutenant-Commander Kovacic, as shown in his affidavit of October 4th, 1948, and in his statements in Court at the public sittings on November 24th, 25th, 26th and 27th, 1948, alleged that he saw mines being loaded upon two Yugoslav minesweepers at Sibenik and that these two vessels departed from Sibenik about October 18th and returned a few days after the occurrence of the explosions do not suffice to constitute decisive legal proof that the mines were laid by these two vessels in Albanian waters off Saranda.

- Apart from Kovacic's evidence, the collusion between Albania and Yugoslavia can be proved by several circumstances such as the possession, at that time, by Yugoslavia, and by no other neighbouring State, of GY mines, and by the bond of close political and military alliance between Albania and Yugoslavia, resulting from the Treaty of friendship and mutual assistance signed by those two States on July 9th, 1946. 

(3) That (alternatively to 2) the Albanian Government knew that the said minefield was lying in a part of its territorial waters;

- In the present case, two series of facts, which corroborate one another, have to be considered:  the first relates to Albania's attitude before and after the disaster of October 22nd, 1946;  the

other concerns the feasibility of observing minelaying from the Albanian coast.

o It is clearly established that the Albanian Government constantly kept a close watch over the waters of the North Corfu Channel, at any rate after May 1946.  This vigilance is proved by the declaration of the Albanian Delegate in the Security Council on February 19th, 1947, and especially by the diplomatic notes of the Albanian Government concerning the passage of foreign ships through its territorial waters.  This vigilance sometimes want so far as to involve the use of force:  for example the gunfire in the direction of the British cruisers Orion and Superb on May 15th, 1946, and the shots fired at the U.N.R.R.A. tug and barges on October 29th, 1946, as established by the affidavit of Enrico Bargellini, which was not seriously contested. The Albanian Government's notes are all evidence of its intention to keep a jealous watch on its territorial waters.  The note verbale addressed to the United Kingdom on May 21st, 1946, reveals the existence of a 'General Order', in execution of which the Coastal Commander gave the order to fire in the direction of the British cruisers.  This same note formulates a demand that 'permission' shall be given, by the Albanian authorities, for passage through territorial waters.  The insistence on 'formalities' and 'permission' by Albania is repeated in the Albanian note of June 19th. As the Parties agree that the minefield had been recently laid, it must be concluded that the operation was carried out during the period of close watch by the Albanian authorities in this sector.  This conclusion renders the Albanian Government's assertion of ignorance a priori somewhat improbable. The telegrams sent by the Albanian Government on November 13th and November 27th, 1946, to the Secretary-General of the United Nations, at a time when that Government was fully aware of the discovery of the minefield in Albanian territorial waters, are especially significant of the measures taken by the Albanian Government.  In the first telegram, that Government raised the strongest protest against the movements and activity of British naval units in its territorial waters on November 12th and 13th, 1946, without even mentioning the existence of a minefield in these waters.  In

the second, it repeats its accusations against the United Kingdom, without in any way protesting against the laying of this minefield which, if effected without Albania's consent, constituted a very serious violation of her sovereignty. Another indication of the Albanian Government's knowledge consists in the fact that that Government did not notify the presence of mines in its waters, at the moment when it must have known this, at the latest after the sweep on November 13th, and further, whereas the Greek Government immediately appointed a Commission to inquire into the events of October 22nd, the Albanian Government took no decision of such a nature, nor did it proceed to the judicial investigation incumbent, in such a case, on the territorial sovereign.  This attitude does not seem reconcilable with the alleged ignorance of the Albanian authorities that the minefield had been laid in Albanian territorial waters.  It could be explained if the Albanian Government, while knowing of the minelaying, desired the circumstances of the operation to remain secret.

o As regards the possibility of observing minelaying from the Albanian coast, the Court regards the following facts, relating to the technical conditions of a secret minelaying and to the Albanian surveillance, as particularly important. The Bay of Saranda and the channel used by shipping through the Strait are, from their geographical configuration, easily watched;  the entrance of the bay is dominated by heights offering excellent observation points, both over the bay and over the Strait;  whilst the channel throughout is close to the Albanian coast.  The laying of a minefield in these waters could hardly fail to have been observed by the Albanian coastal defences. On this subject, it must first be said that the minelaying operation itself must have required a certain time.  The method adopted required, according to the Experts of the Court, the methodical and well thought-out laying of two rows of mines that had clearly a combined offensive and defensive purpose: offensive, to prevent the passage, through the Channel, of vessels drawing ten feet of water or more;  defensive, to prevent vessels of the same draught from entering the Bay of Saranda.  The report of the Experts reckons the time that the minelayers would have been in

the waters, between Cape Kiephali and St. George's Monastery, at between two and two and a half hours.  This is sufficient time to attract the attention of the observation posts, placed, as the Albanian Government stated, at Cape Kiephali and St. George's Monastery. The facilities for observation from the coast are confirmed by the two following circumstances:  the distance of the nearest mine from the coast was only 500 metres;  the minelayers must have passed at not more than about 500 metres from the coast between Denta Point and St. George's Monastery. Whoever the authors if the minelaying were, it could not have been done without the Albanian Government’s knowledge.

- 'The Experts consider it to be indisputable that if a normal look-out was kept at Cape Kiephali, Denta Point, and St. George's Monastery, and if the look-outs were equipped with binoculars as has been stated, under normal weather conditions for this area, the minelaying operations shown in Annex 9 to the United Kingdom Memorial must have been noticed by these coastguards.' basing itself on the declarations of the Albanian Government that look-out posts were stationed at Cape Kiephali and St. George's Monastery, refers to the following conclusions in the Experts' Report:  (1) that in the case of minelaying from the North towards the South, the minelayers would have been seen from Cape Kiephali;  (2) in the case of minelaying from the South, the minelayers would have been seen from Cape Kiephali and St. George's Monastery.  From all the facts and observations mentioned above, it can be concluded that the laying of the minefield which caused the explosions on October 22nd, 1946, could not have been accomplished without the knowledge of the Albanian Government.

 (4) The Albanian Government did not notify the existence of these mines as required by the Hague Convention VIII of 1907 in accordance with the general principles of international law and humanity.

- As an aggravation of the conduct of Albania as set forth in Conclusions (3) and (4), the Albanian Government, or its agents, knowing that His Majesty's ships were going to make the passage through the North Corfu swept channel, and being in a position to observe their approach, and having omitted, as alleged in paragraph 4 of these conclusions, to notify the existence of the said mines,

failed to warn His Majesty's ships of the danger of the said mines of which the Albanian Government or its agents were well aware;

-  The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them.   In fact, Albania neither notified the existence of the minefield, nor warned the British warships of the danger they were approaching.

- As has already been stated, the Parties agree that the mines were recently laid.  It must be concluded that the minelaying, whatever may have been its exact date, was done at a time when there was a close Albanian surveillance over the Strait.  If it be supposed that it took place at the last possible moment, i.e., in the night of October 21st-22nd, the only conclusion to be drawn would be that a general notification to the shipping of all States before the time of the explosions would have been difficult, perhaps even impossible.  But this would certainly not have prevented the Albanian authorities from taking, as they should have done, all necessary steps immediately to warn ships near the danger zone, more especially those that were approaching that zone.  When on October 22nd about 13.00 hours the British warships were reported by the look-out post at St. George's Monastery to the Commander of the Coastal Defences as approaching Cape Long, it was perfectly possible for the Albanian authorities to use the interval of almost two hours that elapsed before the explosion affecting Saumarez (14.53 hours or 14.55 hours) to warn the vessels of the danger into which they were running.

-  In fact, nothing was attempted by the Albanian authorities to prevent the disaster.  These grave omissions involve the international responsibility of Albania.

 (6) In addition, and as a further aggravation of the conduct of Albania as set forth in Conclusions (3), (4), and (5), the permission of the existence without notification of the minefield in the North Corfu Channel, being an international highway, was a violation of the right of innocent passage which exists in favour of foreign vessels (whether warships or merchant ships) through such an international highway;

(7) That the passage of His Majesty's ships through the North Corfu Channel on October 22nd, 1946, was an exercise of the right of innocent passage, according to the law and practice of civilized nations;

- In accordance with international custom that States in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorization of a coastal State, provided that the passage is innocent.  Unless otherwise prescribed in an international convention, there is no right for a coastal State to prohibit such passage through straits in time of peace.

 (8) That even if, for any reason, it is held that conclusion (7) is not established, nevertheless, the Albanian Government is not thereby relieved of its international responsibility for the damage caused to the ships by reason of the existence of an unnotified minefield of which it had knowledge; (9) That in the circumstances set forth in the Memorial as summarized in the preceding paragraphs of these Conclusions, the Albanian Government has committed a breach of its obligations under international law, and is internationally responsible to His Majesty's Government in the United Kingdom for the deaths, injuries and damage caused to His Majesty's ships and personnel, as set out more particularly in paragraph 18 of the Memorial and the Annexes thereto; (10) That the Albanian Government is under an obligation to the Government of the United Kingdom to make reparation in respect of the breach of its international obligations as aforesaid; (11) That His Majesty's Government in the United Kingdom has, as a result of the breach by the Albanian Government of its obligations under international law, sustained the following damage:  Damage to H.M.S. Saumarez ................................pounds s.750,000Damage to H.M.S. Volage ........................................................... 75,000Compensation for the pensions and other expenses incurred by the Government of the United Kingdom in respect of the Deaths and injuries of Naval Personnel .............................. 50,000                                                          ---------------------                                                                   Pounds sterling 875,000'

ALBANIA:

(1) Under the terms of the Special Agreement of March 25th, 1948, the following question has been submitted to the International Court of Justice:    'Is Albania responsible under international law for the explosions which occurred on the 22nd October 1946 in Albanian waters and for the damage and loss of human life which resulted from them and is there any duty to pay compensation?'   The Court would not have jurisdiction, in virtue of this Special Agreement, to decide, if the case arose, on the claim for the assessment of the compensation set out in the submissions of the United Kingdom Government.

- It had no knowledge of the loss of human life and damage to ships. Owing to its claim for the dismissal of the case, it was unnecessary for it to examine the United Kingdom's claim for reparation. 'It reserves the right if need be, to discuss this point which should obviously form the subject of an expert opinion.' The Republic of Albania believes it was entitled to apologies.  But, as no damage was caused, we do not claim any sum of money. 'What we desire is the declaration of the Court from a legal point of view....'

(2) It has not been proved that the mines which caused the accidents of October 22nd, 1946, were laid by Albania.

- One of the Albanian Counsel expressly recognized that the minefield had been recently laid, and the other Counsel subsequently made a similar declaration.  These mines may have been floating mines, coming from old minefields in the vicinity, or magnetic ground mines, magnetic moored mines, or German GR mines.  The explosions occurred in the previously swept channel at the place where the minefield was discovered.  The minefield was laid after October 22nd, between that date and the mine-sweeping operation on 12-13th November, so that the explosions that occurred on this latter date would not have been caused by mines from the field in question.

- Albanian Government's formal statement provided that it did not lay the mines, and was not in a position to do so, as it possessed no navy;  and that, on the whole Albanian littoral, the Albanian authorities only had a few launches and motor boats.

(3) It has not been proved that these mines were laid by a third Power on behalf of Albania.

- It has not been legally established that Yugoslavia possessed any GY mines, and the origin of the mines laid in Albanian territorial waters remains a matter for conjecture.  It is clear that the existence of a treaty, such as that of July 9th, 1946, however close may be the bonds uniting its signatories, in no way leads to the conclusion that they participated in a criminal act. In fact, the Yugoslav Government, although not a party to the proceedings, authorized the Albanian Government to produce certain Yugoslav documents, for the purpose of refuting the United Kingdom contention that the mines had been laid by two ships of the Yugoslav Navy.

- The Counsel for the Albanian Government expressly recognized that [translation] 'if Albania had been informed of the operation before the incidents of October 22nd, and in time to warn the British vessels and shipping in general of the existence of mines in the Corfu Channel, her responsibility would be involved....'. However, such is not the case.

- (4) It has not been proved that these mines were laid with the help or acquiescence of Albania. (5) It has not been proved that Albania knew, before the incidents of October 22nd, 1946, that these mines were in her territorial waters. 

- Knowledge of the minelaying cannot be imputed to the Albanian Government by reason merely of the fact that a minefield discovered in Albanian territorial waters caused the explosions of which the British warships were the victims.  It is true, as international practice shows that a State on whose territory or in whose waters an act contrary to international law has occurred, may be called upon to give an explanation.  It is also true that that State cannot evade such a request by limiting itself to a reply that it is ignorant of the circumstances of the act and of its authors.  The State may, up to a certain point, be bound to supply particulars of the use made by it of the means of information and inquiry at its disposal.  But it cannot be concluded from the mere fact of the control exercised by a State over its territory and waters that that State necessarily knew, or ought to have known, of any unlawful act

perpetrated therein, nor yet that it necessarily knew, or should have known, the authors.  This fact, by itself and apart from other circumstances, neither involves prima facie responsibility nor shifts the burden of proof.

(6) Consequently, Albania cannot be declared responsible, under international law, for the explosions which occurred on October 22nd, 1946, in Albanianwaters, and for the damage and loss of human life which resulted from them.  Albania owes no compensation to the United Kingdom Government.  On the evidence produced, the Court finds that the following facts are established:  In October, 1944, the North Corfu Channel was swept by the British Navy and no mines were found in the channel thus swept, whereupon the existence of a safe route through the Channel was announced in November 1944.  In January and February, *14 1945, the Channel was check-swept by the British Navy with negative results.  That the British Admiralty must have considered the Channel to be a safe route for navigation is shown by the fact that on May 15th, 1946, it sent two British cruisers and on October 22nd a squadron through the Channel without any special measures of precaution against danger from moored mines. It was in this swept channel that the minefield was discovered on November 13th, 1946.the mining of Saumarez and Volage occurred in Albanian territorial waters, just at the place in the swept channel where the minefield was found, as indicated on the chart forming Annex 9 to the United Kingdom Memorial.  This is confirmed by the Court's Experts, who consider it to be free from any doubt that the two ships were mined in approximately the position indicated on this chart.

CONCLUSIONS

The experts of the Court have stated that the nature of the damage excludes the faintest possibility of its cause being a floating mine;  nor could it have been caused by a ground mine and that the damage must have been caused by the explosion of moored contact mines, each having a charge of approximately 600 lbs. of explosives, and that the two ships struck mines of the same type as those which were swept on November 13th, 1946.

The two ships were mined in Albanian territorial waters in a previously swept and check-swept channel just at the place where a newly laid minefield

consisting of moored contact German GY mines was discovered three weeks later.  The damage sustained by the ships was inconsistent with damage which could have been caused by floating mines, magnetic ground mines, magnetic moored mines, or German GR mines, but its nature and extent were such as would be caused by mines of the type found in the minefield.  In such circumstances the Court arrives at the conclusion that the explosions were due to mines belonging to that minefield.

The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them.  Such obligations are based, not on the Hague Convention of 1907, No. VIII, which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war;  the principle of the freedom of maritime communication;  and every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. But Albania's obligation to notify shipping of the existence of mines in her waters depends on her having obtained knowledge of that fact in sufficient time before October 22nd;  and the duty of the Albanian coastal authorities to warn the British ships depends on the time that elapsed between the moment that these ships were reported and the moment of the first explosion.  The Court reaches the conclusion that Albania is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life which resulted from them, and that there is a duty upon Albania to pay compensation to the United Kingdom.  In the final submissions contained in its oral reply, the United Kingdom Government asked the Court to give judgment that, as a result of the breach by the Albanian Government of its obligations under international law, it had sustained damages amounting to  pounds sterling875,000.  In the last oral statement submitted in its name, the Albanian Government, for the first time, asserted that the Court would not have jurisdiction, in virtue of the Special Agreement, to assess the amount of compensation.  No

reason was given in support of this new assertion, and the United Kingdom Agent did not ask leave to reply.    In the first question of the Special Agreement the Court is asked:  (i) Is Albania under international law responsible for the explosions and for the damage and loss of human life which resulted from them, and  (ii) is there any duty to pay compensation?  This text gives rise to certain doubts.  If point (i) is answered in the affirmative, it follows from the establishment of responsibility *24 that compensation is due, and it would be superfluous to add point (ii) unless the Parties had something else in mind than a mere declaration by the Court that compensation is due.  In this connexion, the Court refers to the views expressed by the Permanent Court of International Justice with regard to similar questions of interpretation. In Advisory Opinion No. 13 of July 23rd, 1926, that Court said 'But, so far as concerns the specific question of competence now pending, it may suffice to observe that the Court, in determining the nature and scope of a measure, must look to its practical effect rather than to the predominant motive that may be conjectured to have inspired it.'  In its Order of August 19th, 1929, in the Free Zones case, the Court said:  'in case of doubt, the clauses of a special agreement by which a dispute is referred to the Court must, if it does not involve doing violence to their terms, be construed in a manner enabling the clauses themselves to have appropriate effects' Neither the Albanian nor the United Kingdom Agent suggested in any way that the Special Agreement had limited the competence of the Court in this matter to a decision merely upon the principle of compensation or that the United Kingdom Government had abandoned an important part of its original claim.  The main object both Parties had in mind when they concluded the Special Agreement was to establish a complete equality between them by replacing the original procedure based on a unilateral Application by a procedure based on a Special Agreement.  There is no suggestion that this change as to procedure was intended to involve any change with regard to the merits of the British claim as originally presented in the Application and Memorial.  Accordingly, the Court, after consulting the Parties, in its Order of March 26th, 1948, maintained the United Kingdom's Memorial, filed previously, 'with statements and submissions'.  These submissions included the claim for a fixed sum of compensation.

  The subsequent attitude of the Parties shows that it was not their intention, by entering into the Special Agreement, to preclude the Court from fixing the amount of the compensation.   The Albanian Government has not disputed the competence of the Court to decide what kind of satisfaction is due under this part of the Agreement.  The case was argued on behalf of both Parties on the basis that this question should be decided by the Court.    If, however, the Court is competent to decide what kind of satisfaction is due to Albania under the second part of the Special Agreement, it is difficult to see why it should lack competence to decide the amount of compensation which is due to the United Kingdom under the first part.  The clauses used in the Special Agreement are parallel.  It cannot be supposed that the Parties, while drafting these clauses in the same form, intended to give them opposite meanings-the one as giving the Court jurisdiction, the other as denying such jurisdiction. If the Court should limit itself to saying that there is a duty to pay compensation without deciding what amount of compensation is due, the dispute would not be finally decided.  An important part of it would remain unsettled.  As both Parties have repeatedly declared that they accept the Resolution of the Security Council, such a result would not conform with their declarations.  It would not give full effect to the Resolution, but would leave open the possibility of a further dispute.  For the foregoing reasons, the Court has arrived at the conclusion that it has jurisdiction to assess the amount of the compensation.  This cannot, however, be done in the present Judgment.  The Albanian Government has not yet stated which items, if any, of the various sums claimed it contests, and the United Kingdom Government has not submitted its evidence with regard to them.  The Court therefore considers that further proceedings on this subject are necessary;  the order and time-limits of these proceedings will be fixed by the Order of this date.

ISSUE no. 2:ALBANIA:(1) Under the terms of the Special Agreement concluded on March 25th, 1948, the International Court of Justice has before it the following question:     'Has the United Kingdom under international law violated the sovereignty of the Albanian People's Republic by reason of the acts of the Royal Navy in

Albanian waters on the 22nd October and on the 12th and 13th November 1946, and is there any duty to give satisfaction?'

- The Albanian Government does not dispute that the North Corfu Channel is a strait in the geographical sense;  but it denies that this Channel belongs to the class of international highways through which a right of passage exists, on the grounds that it is only of secondary importance and not even a necessary route between two parts of the high seas, and that it is used almost exclusively for local traffic to and from the ports of Corfu and Saranda. 

(2) The coastal State is entitled, in exceptional circumstances, to regulate the passage of foreign warships through its territorial waters.

- In October and November, 1946, there existed, in this area, exceptional circumstances which gave the Albanian Government the right to require that foreign warships should obtain previous authorization before passing through its territorial waters.

- Greece had made territorial claims precisely with regard to a part of Albanian territory bordering on the Channel, that Greece had declared that she considered herself technically in a state of war with Albania, and that Albania, invoking the danger of Greek incursions, had considered it necessary to take certain measures of vigilance in this region. Hence, this rule is applicable to the North Corfu Channel.

(3) The passage of several British warships through Albanian territorial waters on October 22nd, 1946, without previous authorization, constituted a breach of international law. In any case that passage was not of an innocent character.

- The Albanian Government has further contended that the sovereignty of Albania was violated because the passage of the British warships on October 22nd, 1946, was not an innocent passage.  The reasons advanced in support of this contention may be summed up as follows:  The passage was not an ordinary passage, but a political mission;  the ships were manoeuvring and sailing in diamond combat formation with soldiers on board;  the position of the guns was not consistent with innocent passage;  the vessels passed with crews at action stations;  the number of the ships and their armament surpassed what was necessary in order to attain their object and showed an intention to intimidate and not

merely to pass;  the ships had received orders to observe and report upon the coastal defences and this order was carried out.

-  In the telegram of October 26th, theCommander-in-Chief reported that the passage 'was made with ships at action stations in order that they might be able to retaliate quickly if fired upon again'.  In view of the firing from the Albanian battery on May 15th, this measure of precaution cannot, in itself, be regarded as unreasonable.  But four warships-two cruisers and two destroyers-passed in this manner, with crews at action stations, ready to retaliate quickly if fired upon.  They passed one after another through this narrow channel, close to the Albanian coast, at a time of political tension in this region.  

(4) The British naval authorities were not entitled to proceed, on November 12th and 13th, 1946, to sweep mines in Albanian territorial waters without the previous consent of the Albanian authorities. 

-  It must be noted that, as the United Kingdom Government admits, the need for resweeping the Channel was not under consideration in November 1945;  for previous sweeps in 1944 and 1945 were considered as having effected complete safety.  As a consequence, the allocation of the sector in question to Greece, and, therefore, the permission of the Hellenic Government which is relied on, were both of them merely nominal.  It is also to be remarked that Albania was not consulted regarding the allocation to Greece of the sector in question, despite the fact that the Channel passed through Albanian territorial waters.

-  The method of carrying out 'Operation Retail' has also been criticized by the Albanian Government, the main ground of complaint being that the United Kingdom, on that occasion, made use of an unnecessarily large display of force, out of proportion to the requirements of the sweep

(5) The Court should find that, on both these occasions, the Government of the United Kingdom of Great Britain and Northern Ireland committed a breach of the rules of international law and that the Albanian Government has a right to demand that it should give satisfaction therefor.UNITED KINGDOM1. The United Kingdom and Northern Ireland did not violate Albania’s

sovereignty on October 22 - the Agent of the United Kingdom Government gave the Court the

following information relating to the period from April 1st, 1936, to

December 31st, 1937:  'The following is the total number of ships putting in at the Port of Corfu after passing through or just before passing through the Channel.   During the period of one year nine months, the total number of ships was 2,884.  The flags of the ships are Greek, Italian, Roumanian, Yugoslav, French, Albanian and British.  Clearly, very small vessels are included, as the entries for Albanian vessels are high, and of course one vessel may make several journeys, but 2,884 ships for a period of one year nine months is quite a large figure.  These figures relate to vessels visited by the Customs at Corfu and so do not include the large number of vessels which went through the Strait without calling at Corfu at all.'  There were also regular sailings through the Strait by Greek vessels three times weekly, by a British ship fortnightly, and by two Yugoslav vessels weekly and by two others fortnightly.  The Court is further informed that the British Navy has regularly used this Channel for eighty years or more, and that it has also been used by the navies of other States. One fact of particular importance is that the North Corfu Channel constitutes a frontier between Albania and Greece, that a part of it is wholly within the territorial waters of these States, and that the Strait is of special importance to Greece by reason of the traffic to and from the port of Corfu.  Having regard to these various considerations, it can be concluded that the North Corfu Channel should be considered as belonging to the class of international highways through which passage cannot be prohibited by a coastal State in time of peace.

-  It is shown by the Admiralty telegram of September 21st, cited above, and admitted by the United Kingdom Agent, that the object of sending the warships through the Strait was not only to carry out a passage for purposes of navigation, but also to test Albania's attitude.  As mentioned above, the Albanian Government, on May 15th, 1946, tried to impose by means of gunfire its view with regard to the passage.  As the exchange of diplomatic notes did not lead to any clarification, the Government of the United Kingdom wanted to ascertain by other means whether the Albanian Government would maintain its illegal attitude and again impose its view by firing at passing ships.  The legality of this measure taken by the Government of the United Kingdom cannot be disputed, provided that it was carried out in a manner consistent with the requirements of international law.  The 'mission' was designed to affirm a right which had been unjustly denied.  The Government of the United

Kingdom was not bound to abstain from exercising its right of passage, which the Albanian Government had illegally denied.

- When the Albanian coastguards at St. George's Monastery reported that the British warships were sailing in combat formation and were manoeuvring, they must have been under a misapprehension.  It is shown by the evidence that the ships were not proceeding in combat formation, but in line, one after the other,  and that they were not manoeuvring until after the first explosion.  Their movements thereafter were due to the explosions and were made necessary in order to save human life and the mined ships.  It is shown by the evidence of witnesses that the contention that soldiers were on board must be due to a misunderstanding probably arising from the fact that the two cruisers carried their usual detachment of marines. 

-  It is known from the above-mentioned order issued by the British Admiralty on August 10th, 1946, that ships, when using the North Corfu Strait, must pass with armament in fore and aft position.  That this order was carried out during the passage on October 22nd is stated by the Commander-in-Chief, Mediterranean, in a telegram of October 26th to the Admiralty.  The guns were, he reported, 'trained fore and aft, which is their normal position at sea in peace time, and were not loaded'.  It is confirmed by the commanders of Saumarez and Volage that the guns were in this position before the explosions.  The navigating officer on board Mauritius explained that all guns on that cruiser were in their normal stowage position.  The main guns were in the line of the ship, and the antiaircraft guns were pointing outwards and up into the air, which is the normal position of these guns on a cruiser both in harbour and at sea.  In the light of this evidence, the Court cannot accept the Albanian contention that the position of the guns was inconsistent with the rules of innocent passage.

-  With regard to the observations of coastal defences made after the explosions, these were justified by the fact that two ships had just been blown up and that, in this critical situation, their commanders might fear that they would be fired on from the coast, as on May 15th.

2. The United Kingdom and Northern Ireland did not violate Albania’s sovereignty on November 12 and 13 when it performed ‘Operation Retail’ - The United Kingdom Government does not dispute that 'Operation

Retail' was carried out against the clearly expressed wish of the

Albanian Government.  It recognizes that the operation had not the consent of the international mine clearance organizations, that it could not be justified as the exercise of a right of innocent passage, and lastly that, in principle, international law does not allow a State to assemble a large number of warships in the *34territorial waters of another State and to carry out minesweeping in those waters.  The United Kingdom Government states that the operation was one of extreme urgency, and that it considered itself entitled to carry it out without anybody's consent.

- The United Kingdom Government put forward two reasons in justification.  First, the Agreement of November 22nd, 1945, signed by the Governments of the United Kingdom, France, the Soviet Union and the United States of America, authorizing regional mine clearance organizations, such as the Mediterranean Zone Board, to divide the sectors in their respective zones amongst the States concerned for sweeping.  Relying on the circumstance that the Corfu Channel was in the sector allotted to Greece by the Mediterranean Zone Board on November 5th, i.e., before the signing of the above-mentioned Agreement, the United Kingdom Government put forward a permission given by the Hellenic Government to resweep the navigable channel.

- The corpora delicti must be secured as quickly as possible, for fear they should be taken away, without leaving traces, by the authors of the minelaying or by the Albanian authorities.  This justification is a new and special application of the theory of intervention, by means of which the State intervening would secure possession of evidence in the territory of another State, in order to submit it to an international tribunal and thus facilitate its task.

- The United Kingdom Agent, in his speech in reply, has further classified  'Operation Retail' among methods of self-protection or self-help.  

CONCLUSIONSUnited Kingdom did not violate Albania’s sovereignty on the incident of October 22. However, the “Operation Retails” on November 12 and 13 violated the latter’s sovereignty.It may be asked whether the test is to be found in the volume of traffic passing through the Strait or in its greater or lesser importance for international navigation.  But in the opinion of the Court the decisive criterion is rather its geographical situation as connecting two parts of the

high seas and the fact of its being used for international navigation.  Nor can it be decisive that this Strait is not a necessary route between two parts ofthe high seas, but only an alternative passage between the AEgean and the Adriatic Seas.  It has nevertheless been a useful route for international maritime traffic.    One fact of particular importance is that the North Corfu Channel constitutes a frontier between Albania and Greece, that a part of it is wholly within the territorial waters of these States, and that the Strait is of special importance to Greece by reason of the traffic to and from the port of Corfu.  Having regard to these various considerations, the Court has arrived at the conclusion that the North Corfu Channel should be considered as belonging to the class of international highways through which passage cannot be prohibited by a coastal State in time of peace.  On the other hand, it is a fact that the two coastal States did not maintain normal relations, that Greece had made territorial claims precisely with regard to a part of Albanian territory bordering on the Channel, that Greece had declared that she considered herself technically in a state of war with Albania, and that Albania, invoking the danger of Greek incursions, had considered it necessary to take certain measures of vigilance in this region. The Court is of opinion that Albania, in view of these exceptional circumstances, would have been justified in issuing regulations in respect of the passage of warships through the Strait, but not in prohibiting such passage or in subjecting it to the requirement of special authorization.  For these reasons the Court is unable to accept the Albanian contention that the Government of the United Kingdom has violated Albanian sovereignty by sending the warships through *30 the Strait without having obtained the previous authorization of the Albanian Government.   It remains, therefore, to consider whether the manner in which the passage was carried out was consistent with the principle of innocent passage and to examine the various contentions of the Albanian Government in so far as they appear to be relevant.  In the telegram of October 26th, theCommander-in-Chief reported that the passage 'was made with ships at action stations in order that they might be able to retaliate quickly if fired upon again'.  In view of the firing from the

Albanian battery on May 15th, this measure of precaution cannot, in itself, be regarded as unreasonable.  But four warships-two cruisers and two destroyers-passed in this manner, with crews at action stations, ready to retaliate quickly if fired upon.  They passed one after another through this narrow channel, close to the Albanian coast, at a time of political tension in this region.  The intention must have been, not only to test Albania's attitude, but at the same time to demonstrate such force that she would abstain from firing again on passing ships.  Having regard, however, to all the circumstances of the case, as described above, the Court is unable to characterize these measures taken by the United Kingdom authorities as a violation of Albania's sovereignty. Having thus examined the various contentions of the Albanian Government in so far as they appear to be relevant, the Court has arrived at the conclusion that the United Kingdom did not violate the sovereignty of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946. The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law.  Intervention is perhaps still less admissible in the particular form it would take here;  for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice itself.  Between independent States, respect for territorial sovereignty is an essential foundation of international relations. The Court recognizes that the Albanian Government's complete failure to carry out its duties after the explosions, and the dilatory nature of its diplomatic notes, are extenuating circumstances for the action of the United Kingdom Government.  But to ensure respect for international law, of which it is the organ, the Court must declare that the action of the British Navy constituted a violation of Albanian sovereignt (For the November 12 and 13 ‘Operation Retail’).  This declaration is in accordance with the request made by Albania through her Counsel, and is in itself appropriate satisfaction. 

 The method of carrying out 'Operation Retail' has also been criticized by the Albanian Government, the main ground of complaint being that the United Kingdom, on that occasion, made use of an unnecessarily large display of force, out of proportion to the requirements of the sweep.  The Court thinks that this criticism is not justified.  It does not consider that the action of the British Navy was a demonstration of force for the purpose of exercising political pressure on Albania.  The responsible naval commander, who kept his ships at a distance from the coast, cannot be reproached for having employed an important covering force in a region where twice within a few months his ships had been the object of serious outrages.   THE COURT,  on the first question put by the Special Agreement of March 25th, 1948,  by eleven votes to five,  Gives judgment that the People's Republic of Albania is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life that resulted therefrom;  and  by ten votes to six,  Reserves for further consideration the assessment of the amount of compensation and regulates the procedure on this subject by an Order dated this day;  on the second question put by the Special Agreement of March 25th, 1948,  by fourteen votes to two,  Gives judgment that the United Kingdom did not violate the sovereignty of the People's Republic of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946;  and  unanimously, 

 Gives judgment that by reason of the acts of the British Navy in Albanian waters in the course of the Operation of November 12th and 13th, 1946, the United Kingdom violated the sovereignty of the People's Republic of Albania, and that this declaration by the Court constitutes in itself appropriate satisfaction. Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this ninth day of April, one thousand nine hundred and forty-nine, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the United Kingdom of Great Britain and Northern Ireland and of the People's Republic of Albania respectively.  (Signed) J. G. GUERRERO, Acting President.  (Signed) E. HAMBRO, Registrar.

CHORZOW FACTORY CASEThe present judgment deal with the so-called case of the factory at Chorzów the nature - and, if necessary, the amount and method of payment - of the reparation which may be due by Poland in consequence of her having, as established by the Court in Judgment No. 7, adopted an attitude not in conformity with the Geneva Convention of May 13th, 1922.

FACTS: March 5th, 1915 - A contract was concluded between the Chancellor

of the German Empire, on behalf of the Reich, and the Bayerische, according to which that Company undertook "to stablish for the Reich and forthwith to begin the construction of", amongst other things, a nitrate factory at Chorzów in Upper Silesia. Some of the arrangements are as follows:

1. The necessary lands were to be acquired on behalf of the Reich and entered in its name in the land register. 2. The machinery and equipment were to be in accordance with the patents and licences of the Company and the experience gained by it, and the Company undertook to manage the factory until March 31st, 1941, making use of all patents, licences,

experience gained, innovations and improvements, as also of all supply and delivery contracts of which it had the benefit. 3. The Reich had the right, commencing on March 31st, 1926, to terminate the contract for the management of the factory by the Company on March 31st of any year upon giving fifteen months' notice. 4. The contract could be determined as early as March 31st, 1921, always on condition of fifteen months' notice being given, if the Reich's share of the surplus did not reach a fixed level.

This contract was subsequently supplemented by a series of seven additional contracts, of which, however, only the second and seventh, relate to the Chorzów factory.

May 14th, 1919 - the Bayerische brought an action against the Reich, claiming that the latter was bound to compensate the Company for the damage said to have been suffered by it, owing to certain alleged shortcomings with respect to the fulfillment of the contract of March 5th, 1913, and the additional contracts.

October 24th, 1919 – The abovementioned matter was settled out of court by an arrangement between the Reich and the Bayerische.

December 24th, 1919 - A series of legal instruments were signed and legalized at Berlin with a view to the formation of a new company, Oberschlesische and the sale by the Reich to this company of the factory at Chorzów (the whole of the land, buildings and installations belonging thereto, with all accessories, reserves, raw material, equipment and stocks). The management and working of the factory were to remain in the hands of the Bayerische, which, for this purpose, was to utilize its patents, licences, experience gained and contracts.

o In the contract of December 24th, 1919, between the Reich and the newly created Oberschlesische, a second limited liability company, The Treuhand was founded. Under the contract:

1. The whole of the factory for the production of nitrated lime, with the

accessory installations, situated at Chorzów, was ceded by the Reich to the Oberschlesische at a price calculated according to certain data indicated in the contract itself.

2. The Treuhand taking over, in the place of the Oberschlesische, as sole and independent debtor, all the obligations imposed by the contract upon the latter in regard to the Reich, and obtaining in consideration hereof, without payment, shares of the Oberschlesische. (Later, the Treuhand also acquired the rest of the shares of the Oberschlesische, thus becoming the sole shareholder of that Company.

3. As guarantee for the sums due to the Reich under the contract, the Treuhand undertook to obtain for the Reich a lien on all the shares of the Oberschlesische. The Treuhand was to liquidate the purchase price exclusively by paying to the Reich the dividends on the shares of the Oberschlesische.

4. The Treuhand was authorized to pay at any time the whole or a part of the purchase price ; this would have the effect of removing the lien on shares of a nominal value corresponding to the payment made.

5. The Reich was authorized itself to exercise all the rights resulting from the possession of the shares, and in particular the right to vote at the general meeting of shareholders, but agreed that the management of the exploitation of the Oberschlesische should be left in the hands of the Bayerische.

6. An alienation of the shares so pledged would be authorized only with the approval of the Reich, even after the lien had expired. As a guarantee for the fulfilment of this obligation, the Reich would, even after expiration of the lien, retain possession of the shares and the exercise of all rights resulting from such possession.

7. The price realized in the event of a sale of the shares was in the first place to be devoted to the liquidation of the balance of the Reich's claim.

January 29th, 1920 - The Oberschlesische was duly entered at the Amtsgericht of Königshütte, in the Chorzów land register, as owner of the landed property constituting the nitrate factory at Chorzów. (The registered office of the Oberschlesische which, under the memorandum of association, was established at Chorzów, was subsequently, transferred to Berlin.)

May 15th, 1922 - Germany and Poland signed at Geneva the

Convention concerning Upper Silesia.

July 1st, 1922 - The Polish Court of Huta Krolewska, gave a decision to the effect that the registration with this Court of the Oberschlesische as owner of the factory, which was declared null and void, was to be cancelled and the previously existing situation restored and that the right of ownership in the landed property in question was to be registered in the name of the Polish Treasury.

July 3rd, 1922 - M. Ignacy Moscicki, who was delegated with full powers to take charge of the factory at Chorzów by virtue of a Polish ministerial decree, took possession of the factory and took over the management in accordance with the terms of the decree. At the same time, he took possession of the movable property, patents, licences, etc.

After having taken over the factory, the Polish Government entered it in the list of property transferred to it under Article 256 of the Treaty of Versailles, which list was duly communicated to the Reparation Commission.

The Polish Government alleges that after the pronouncement of Judgment No. 7 by the Court, the German Government asked that the factory should be struck out of the list in question; the former Government has not, however, been informed whether this has been done.

November I5th, 1922 - The Oberschlesische, on November I5th, 1922, had brought an action before the German-Polish Mixed Arbitral Tribunal at Paris, claiming, amongst other things, that the Polish Government should be ordered to restore the ,factory.

November 24th, 1922 – The Oberschlesische instituted a parallel action in regard to the movable property existing at Chorzów at the time of the taking over of the factory, against the Polish Treasury before the Civil Court of Katowice, with a view to obtaining either the restitution to the Oberschlesische or the Bayerische of such property, or the payment of the equivalent value. This action however led to no decision on the merits.

March 25th, 1925 - The Bayerische brought an action before the German-Polish Mixed Arbitral Tribunal against the Polish Treasury with a view to obtaining an annual indemnity until the restitution of the factory to the Oberschlesische, and to causing the possession and management of the factory to be restored to it. (but the case was withdrawn in June 1928, at the same time as the action brought by the Oberschlesische and in the same circumstances.)

May 75th, 1926 - The Court's Judgment No. 7 was given. o The German Government formed the starting point for

direct negotiations between the two Governments concerned. In regard to these negotiations, it recognized that the factory could no Ionger be restored in kind and that consequently the reparation due must, in principle, take the form of the payment of compensation, a statement which is moreover formally repeated in the Case. The failure of the negotiations resulted in the institution of the present proceedings.

o The Polish Government brought an action before the Polish Court of Katowice against the Oberschlesische in order to obtain a declaration that that Company had not become owner of the landed property at Chorzów; that the entry in the land register made in its favour on January 29th, 1922, was not valid, and that the ownership of the landed property in question fell to the Polish Treasury. The judgment of the Court in this action which was given by default; it admitted all the submissions of the claimant.

May 75th, 1926 - The Court's Judgment No. 7 was given.

October 18th, 1927 - the Court had received a fresh application from the German Government which, relying on the terms of Article 60 of the Statute and Article 66 of the Rules of Court, prayed the Court to give an interpretation of its Judgments Nos. 7 and 8, alleging that a divergence of opinion had arisen between the two Governments in regard to the meaning and scope of these two judgments in connection with the point which had given rise to the proceedings before the Court of Katowice.

December 16th, 1927 – The Court delivered its judgment in this suit (No. II) stating that the Court's intention in Judgment No. 7 had been to recognize, with binding effect between the Parties concerned and in respect of that particular case, amongst other things, the right of ownership of the Oberschlesische in the Chorzów factory under municipal law.

Whilst the proceedings in connection with the request for an interpretation were in progress, the German Government besought the Court to indicate to the Polish Government that it should pay to the German Government, as a provisional measure, the sum of 30 million Reichsmarks. The Court gave its decision upon this request, which held that effect could not be given to the request of the German Government, since it was to be regarded as designed to obtain not the indication of measures of protection, but judgment in favour of a part of the claim formulated in the Application of February 8th, 1927.

FINAL SUBMISSIONS OF THE PARTIES:German Government

(1) that by reason of its attitude in respect of the Oberschlesische Stickstoffwerke and Bayerische Stickstoffwerke Companies, which attitude has been declared by the Court not to have been in conformity with the provisions of Article 6 and the following articles of the Geneva Convention, the Polish Government is under an obligation to make good the consequent injury sustained by the aforesaid Companies from July 3rd, 1922, until the date of the judgment sought;

(2) (a) that the amount of the compensation to be paid to the German Government is 58,400,000 Reichsmarks, plus 1,656,000 Reichsmarks, plus interest at 6 % on this sum as from July 3rd, 1922, until the date of judgment (for the damage caused to the Oberschlesische Stickstoffwerke A.-G.);

(b) that the amount of the compensation to be paid to the German Government is 20,179,000 Reichsmarks for the damage caused to the Bayerische Stickstoffwerke A.-G. ;

(3) that until June 30th, 1931, no nitrated lime and no nitrate of ammonia should be exported to Germany, to the United States of America, to France or to Italy; in the alternative, that the Polish Government should be obliged to cease from exploiting the factory or the chemical equipment for the production of nitrate of ammonia, etc.;

(4) (a) that the Polish Government should pay, within one month from the, date of judgment, the compensation due to the Oberschlesische Stickstoffwerke A.-G. for the taking possession of the working capital and the compensation due to the Bayerische Stickstoffwerke A.-G. for the period of exploitation from July 3rd, 1922, to the date of judgment;

(b) that the Polish Government should pay the remaining sums at latest within fifteen days after the beginning of the financial year following the judgment; in the alternative, that, in so far as payment may be effected by installments, the Polish Government should within one month from the date of judgment, give bills of exchange for the amounts of the installments, including interest, payable on maturity to the Oberschlesische Stickstoffwerke A.-G. and to the Bayerische Stickstoffwerke A.-G. ;

(c) that from the date of judgment, interest at 6 % per annum should be paid by the Polish Government;

(d) that the Polish Government is not entitled to set off against the above-mentioned claim for indemnify of the German Government, its claim in respect of social insurances in Upper Silesia; that it may not make use of any other set-off against the said claim for indemnity; and that the payments mentioned under (a) to (c) should

be made without any deduction to the account of the two Companies with the Deutsche Bank at Berlin; in the alternative, that set-off is only permissible if the Polish Government puts forward for this purpose a claim in respect of a debt recognized by the German Government or established by a judgment given between the two Governments.

Polish Government

"It is submitted:

A. As regards the Oberschlesische:

(1) that the claim of the applicant Government should be dismissed;

(2) in the alternative, that the claim for indemnity should be provisionally suspended;

(3) as a further alternative, in the event of the Court awarding some compensation, that such compensation should only be payable after the previous withdrawal by the said Company of the action brought by it and pending before the German-Polish Mixed Arbitral tribunal in regard to the Chorzów factory, and after the formal abandonment by it of any claim against the Polish Government in respect of the latter's taking possession and exploitation of the Chorzów factory.

(4) In any case, it is submitted that the German Government should, in the first place, hand over to the Polish Government the whole of the shares of the Oberschlesische Stickstoffwerke Company, of the nominal value of 110,000,000 Marks, which are in its hands under the contract of December 24th, 1919.

B. As regards the Bayerische:

(1) (a) that the applicant Government's claim for compensation in respect of the past, in excess of 1,000,000 Reichsmarks, should be dismissed;

(b) that, pro futuro, an annual rent of 250,000 Reichsmarks, payable as from January 1st, 1928, until March 31st, 1941, should be awarded;

(c) that. these indemnities should only be payable after previous withdrawal by the said Company of the claim pending before the German-Polish Mixed Arbitral Tribunal in respect of the Chorzów factory and after the formal abandonment by it of any claim against the Polish Government in respect of the latter's taking possession and exploitation of the Chorzów factory;

(2) that the applicant Government's third submission to the effect that until June 30th, 1931, no exportation of nitrate of lime or nitrate of ammonia should take place to Germany, the United States of America, France or Italy.

C. As regards the Oberschlesische and Bayerische jointly: That submission No. 4-to the effect that it is not permissible for the Polish Government to set off against the abovementioned claim for indemnity of the German Government its claim in respect of social insurances in Upper Silesia, that it may not make use of any other set-off again be made without any deduction to the account of the two Companies with the Deutsche Bank at Berlin-should be rejected.

ISSUE:

Whether or not the the Polish Government, by reason of its attitude in respect of the Oberschlesische and Bayerische Companies, which attitude the Court had declared not to be in conformity with the Geneva Convention, is under an obligation to make reparation?

HELD: YES. It is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation.

On Subject of Dispute/Jurisdiction

The subject of dispute was not defined by Germany as an obligation to compensate the two companies, contrary to the Polish view. Damage and compensation being interdependent conceptions, the German claim assumed another aspect if it was no longer a question of compensating the Companies, but of compensating the State for the injury suffered by it.

o The German Government has not brought this suit as representative of the individuals who have suffered injury, but it may estimate the damage for which it claims

reparation on its own behalf, according to the measure provided by the losses suffered by the companies whose case it has taken up.

The object of the German application can only be to obtain reparation due for a wrong suffered by Germany in her capacity as a contracting Party to the Geneva Convention.

Already in Judgment No. 6, establishing the Court's jurisdiction to deal with the alleged violation of the Geneva Convention, the Court recognized that - as had been maintained by the Applicant - the matter was exclusively a dispute between States as to the interpretation and application of a convention in force between them.

The Court in fact declared itself competent to pass upon the claim for reparation because it regarded reparation as the corollary of the violation of the obligations resulting from an engagement between States. This view of the matter, which is in conformity with the general character of an international tribunal which, in principle, has cognizance only of interstate relations, is indicated with peculiar force in this case for the specific reason that the Geneva Convention, with its very elaborate system of legal remedies, has created or maintained for certain categories of private claims arbitral tribunals .of a special international character, such as the Upper Silesian Arbitral Tribunal and the German-Polish Mixed Arbitral Tribunal.

On Reparation

It is a principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured State have suffered as a result of the act which is contrary to international law.

The reparation due by one State to another does not however change its character by reason of the fact that it takes the form of an indemnity for the calculation of which the damage suffered by a private person is taken as the measure.

The rules of law governing the reparation are the rules of international law in force between the two States concerned, and not the law governing relations between the State which has committed a wrongful act and the individual who has suffered damage.

The German Government has not brought this suit as representative of the individuals who have suffered injury, but it may estimate the damage for which it claims reparation on its own behalf, according to the measure provided by the losses suffered by the companies whose case it has taken up

Three fundamental questions:

(1) The existence of the obligation to make reparation

The Court observes that it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation. In Judgment No. 8, when deciding on the jurisdiction derived by it from Article 23 of the Geneva Convention, the Court has already said that reparation is the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself. The existence of the principle establishing the obligation to make reparation, as an element of positive international law, has moreover never been disputed in the course of the proceedings in the various cases concerning the Chorzów factory.

In estimating the damage caused by an unlawful act, only the value of property, rights and interests which have been affected and the owner of which is the person on whose behalf compensation is claimed, or the damage done to whom is to serve as a means of gauging the reparation claimed, must be taken into account.

The damage suffered by the Oberschlesische in respect of the Chorzów undertaking is therefore equivalent to the total value - but to that total only - of the property, rights and interests of this Company in that undertaking, without deducting liabilities.

The Polish Government’s argument that the Oberschlesische has suffered no loss as a result of its dispossession, because it was not the lawful

owner (that the Treuhand is the owner), its right of ownership having never been valid and having in any case ceased to be so in virtue of the judgment given on November 12th, 1927, by the Court of Katowice is without merit.

The Court has already, in connection with Judgment No. 7, had to consider as an incidental and preliminary point, the question of the validity of the transactions in virtue of which the ownership of the Chorzów factory passed from the Reich to the Oberschlesische. It then arrived at the conclusion that the various transactions in question were genuine and bona fide; that is why it was able to regard the Chorzów factory as belonging to a company controlled by German nationals, namely, the Oberschlesische.

(2) The existence of the damage which must serve as a basis for the calculation of the amount of the indemnity.

The action of Poland which the Court has judged to be contrary to the Geneva Convention is not an expropriation - to render which lawful only the payment of fair compensation would have been wanting; it is a seizure of property, rights and interests which could not be expropriated even against compensation, save under the exceptional conditions fixed by Article 7 of the said Convention. As the Court has expressly declared in Judgment No. 8, reparation is in this case the consequence not of the application of Articles 6 to 22 of the Geneva Convention, but of acts contrary to those articles.

(3) The extent of this damage.

It follows that the compensation due to the German Government is not necessarily limited to the value of the undertaking at the moment of dispossession,

plus interest to the day of payment. This limitation would only be admissible if the Polish Government had had the right to expropriate, and if its wrongful act consisted merely in not having paid to the two Companies the just price of what was expropriated; in the present case, such a limitation might result in placing Germany and the interests protected by the Geneva Convention, on behalf of which interests the German Government is acting, in a situation more unfavorable than that in which Germany and these interests would have been if Poland had respected the said Convention. Such a consequence would not only be unjust, but also and above all incompatible with the aim of Article 6 and following articles of the Convention - that is to say, the prohibition, in principle, of the liquidation of the property, rights and interests of German nationals and of companies controlled by German nationals in Upper Silesia - since it would be tantamount to rendering lawful liquidation and unlawful dispossession indistinguishable in so far as their financial results are concerned.

The essential principle contained in the actual notion of an illegal act - a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals - is that reparation must, as far as possible, wipe-out all the consequences of the illegal act and re-establish the situation which would, in. all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it-such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.

As applied:

o This conclusion particularly applies as regards the Geneva Convention, the object of which is to provide for the maintenance of economic life in Upper Silesia on the basis of respect for the status quo.

o The dispossession of an industrial undertaking - the expropriation of which is prohibited by the Geneva Convention - then involves the obligation to restore the undertaking and, if this be not possible, to pay its value at the time of the indemnification, which value is designed to take the place of restitution which has become impossible.

o To this obligation, in virtue of the general principles of international law, must be added that of compensating loss sustained as the result of the seizure.

o The impossibility, on which the Parties are agreed, of restoring the Chorzów factory could therefore have no other effect but that of substituting payment of the value of the undertaking for restitution.

On Amount and Method of Payment The Court reserves the fixing of the amount of compensation for

future judgment, to be given after receiving report of experts. The Court also reserves for future judgment the conditions and

methods for the payment of the compensation since concerns points not decided by present judgment.

On Non-exportation of Nitrated Lime and Nitrate of Ammonia The Court dismisses the submission of the German Government

asking for judgment to the effect that, until June 30th, 1931, no nitrated lime and no nitrate of ammonia should be exported to Germany, to the United States of America, to France or to Italy, or, in the alternative, that the Polish Government should be obliged to cease working the factory or the chemical equipment for the production of nitrate of ammonia, etc.

On Set-off No decision is called for on the submissions of the German

Government asking for judgment to the effect that the Polish Government is not entitled to set off, against the above-mentioned claim for indemnity of the German Government, its claim in respect of social insurances in Upper Silesia; that it may not make use of any other set-off against the said claim for indemnity, and, in the

alternative, that set-off is only permissible if the Polish Government puts forward for this purpose a claim in respect of a debt recognized by the German Government or established by a judgment given between the two Governments.

BARCELONA TRACTION, LIGHT AND POWER COMPANY (BELGIUM VS. SPAIN) 1970Jessa Alvarez

FACTS:

The Barcelona Traction, Light and Power Company (BLTPC) was incorporated in Toronto, Canada for the purpose of creating and developing an electric power production and distribution system in Catalonia,Spain.

It formed a number of concession-holding subsidiary companies, of which some had their registered offices in Canada and the others in Spain.

Some years after the first world war, the BLTPC’s share capital came to be very largely held by Belgian nationals.

However, the servicing of the BLTPC bonds was suspended on account of the Spanish civil war.

After that war the Spanish exchange control authorities refused to authorize the transfer of the foreign currency necessary for the resumption of the servicing of the sterling bonds.

Eventually, the company was declared bankrupt. Belgium then filed an Application with the ICJ against the Spanish

government seeking reparation for damages claimed to have been caused to the Belgian national shareholders of the company.

Later however, Belgium gave notice of discontinuance of the proceedings, with a view to negotiations between the representatives of the private interests concerned, and the case was removed from the Court's General List.

The negotiations having failed, the Belgian Government submitted to the Court a new Application.

SPAIN’S ARGUMENTS:

I. The Belgian Government gave notice of discontinuance of the proceedings with a view to negotiations between the representatives of the private interests concerned.

This was due to the right conferred upon it (Belgium) by Article 69, paragraph 2, of the Rules of Court. To this, Spain presented no objection.

This discontinuance precluded Belgium from bringing the proceedings.Further, a discontinuance must always be taken as signifying a

renunciation of any further right of action.

II. There had already been an understanding between the Parties.

The representatives of the private Belgian interests had made an approach with a view to opening negotiations and that the representatives of the Spanish interests had laid down as a prior condition the final withdrawal of the claim.

III. Belgium is estopped from denying the real import of the discontinuance.

Belgium through its conduct misled Spain about the import of the discontinuance, for which Spain would not have agreed to, and would not thereby have suffered prejudice.

IV. The proceedings are contrary to the Hispano-Belgian Treaty of Conciliation, Judicial Settlement and Arbitration, as a result the ICJ lacks jurisdiction.

Article 17 (4)12 of the Treaty had already lapsed in 1946, and no substitution of the present for the former Court had been effected. As such, the Treaty had ceased to contain any valid jurisdictional clause when Spain was admitted to the UN and became a party to the Statue in 1955.

Further, Article 3713 applied only between States which had become parties to the Statute previous to the dissolution of the Permanent Court.

12 If the other methods of settlement provided for in the Treaty failed, either party could bering any dispute of a legal nature before the Permanent Court of International Justice.13 “Whenever a treaty or convention in force provides for reference of a matter . . . to the Permanent Court of International Justice. the matter shall, as between the parties to the present Statue, be referred to the ICJ.”

V. The Belgian government has no legal capacity to protect the Belgian interests on behalf of which it had submitted its claim.

International law does not recognize, in respect of injury caused by a State to the foreign company, any diplomatic protection of shareholders exercised by a State other than the national State of the company.

1ST RULING OF THE COURT IN JULY 24 1964

I. DISCONTINUANCE

Belgium’s notice of discontinuance was confined strictly to the proceeding instituted by the first Application thus not waiving its right to institute proceedings anew.

The obligation of establishing that the discontinuance meant something more than the decision to terminate those proceedings was placed upon Spain.

II. AGREEMENT BETWEEN PARTIES

No evidence as to the taking place of any such agreement.

III. ESTOPPEL

Alleged misrepresentations not clearly established. Also, the Court did not see what Spain stood to lose by agreeing to negotiate on the basis of a simple discontinuance.

If it had not agreed to the discontinuance, the previous proceedings would simply have continues, whereas negotiations offered a possibility of finally settling the dispute.

IV. CONTRARY TO THE TREATY/ICJ JURISDICTION

Treaty processes could not be regarded as exhausted so long as the right to bring new proceedings otherwise existed and until the case had been prosecuted to judgment.

In 1945 the treaty drafters had intended to preserve as many jurisdictional clauses as possible from becoming inoperative by reason of the prospective dissolution of the Permanent Court. It was thus difficult to suppose that they would willingly have

contemplated that the nullification of the jurisdictional clauses whose continuation it was desired to preserve would be brought about by the very event the effects of which Article 37 was intended to parry.

The 1927 Treaty being in force and containing a provision for reference to the Permanent Court, and the parties to the dispute being parties to the Statute, the matter was one to be referred to the International Court of Justice which was the competent forum.

Also, States becoming parties to the Statute after the dissolution of the Permanent Court must be taken to have known that one of the results of their admission would be the reactivation by reason of Article 37 of certain jurisdictional clauses.

V. LEGAL CAPACITY OF BELGIUM

Belgium has jus standi.The question of the jus standi of a government to protect the interests

of shareholders raised an antecedent question of what was the juridical situation in respect of shareholding interests, as recognized by international law.

Belgium thus necessarily invoked rights which, so it contended, were conferred on it in respect of its nationals by the rules of international law concerning the treatment of foreigners.

Hence a finding that it had no jus standi would be tantamount to a finding that those rights did not exist and that the claim was not well-founded in substance.

2ND RULING OF THE COURT IN FEBRUARY 5, 1970

ON RIGHT OF BELGIUM TO TO EXERCISE DIPLOMATIC PROTECTION OF BELGIAN SHAREHOLDERS IN A COMPANY INCORPORATED IN CANADA

Municipal law applied to international lawIn the field of diplomatic protection, international law was in continuous

evolution and was called upon to recognize institutions of municipal law. In municipal law, the concept of the company was founded on a firm distinction between the rights of the company and those of the shareholder.

Only the company, which was endowed with legal personality, could take action in respect of matters that were of a corporate character.

Whenever a shareholder's interests were harmed by an act done to the company, it was to the latter that he had to look to institute appropriate action.

An act infringing only the company's rights did not involve responsibility towards the shareholders, even if their interests were affected. In order for the situation to be different, the act complained of must be aimed at the direct rights of the shareholder as such (which was not the case here since the Belgian Government had itself admitted that it had not based its claim on an infringement of the direct rights of the shareholders).

ON BELGIUM’S JUS STANDI

Belgium has no jus standi!General Rule: State of the company can seek redress. International law had

to refer to those rules generally accepted by municipal legal systems. An injury to the shareholder's interests resulting from an injury to the rights

of the company was insufficient to found a claim. Where it was a question of an unlawful act committed against a company

representing foreign capital, the general rule of international law authorized the national State of the company alone to exercise diplomatic protection for the purpose of seeking redress.

No rule of international law expressly conferred such a right on the shareholder's national State.

It had been maintained that a State could make a claim when investments by its nationals abroad, such investments being part of a State's national economic resources, were prejudicially affected in violation of the right of the State itself to have its nationals enjoy a certain treatment. But, in the present state of affairs, such a right could only result from a treaty or special agreement. And no instrument of such a kind was in force between Belgium and Spain.

Texaco Overseas Petroleum Company v. The Government of the Libyan Arab Republic, AD HOC AWARD OF JANUARY 19, 1977.

Mich Maayo

Arbitrator: Prof. René-Jean Dupuy (France)

Parties:

Claimants: Texaco Overseas Petroleum Company (U.S.); California Asiatic Oil Company (U.S.), Respondent: The Government of the Libyan Arab Republic

I. Facts

- 2 oil companies (private) doing business in Libya- Relationship between the parties: Deeds of Concession- A contract between companies and Libya, give the companies rights- These rights should not be done away with unless there is mutual consent- Then gov't of Libya passes a Nationalization Law- Taking private companies, and making them Libyan-governed (under state law)- Essentially, the deeds of concession being breached - one of the rights under it, the Libyan gov't has done away with- In the deeds of concession, there is the arbitration clause- Libya argues - there's new int'l law that justifies Libya's actions- Int'l law - Series of General assembly resolutions (that arose after the deeds of concession)- What weight is given to these resolutions? (They are not binding)- Even though not binding, the resolutions are a sign of CIL. But court needs to see other factors. Was the resolution merely codifying CIL?- Distinction between 1st resolution, and the 2nd and 3rd

- 1st - explicitly mentions that nationalization is governed by CIL- 2nd and 3rd - nationalization governed by domestic law

- These actually give Libya exclusive rights, while the 1st would be under CIL [Pg 122 (Substantial…)]- Arbitrator doesn’t find the last 2 resolutions as binding CIL- Not all countries signed on. All developed countries didn’t sign on- opposed. No consensus to find CIL.- So the law Libya was using as justification - the arbitrator says there is no such law- 1st resolution - enough consensus that arbitrator will use this, but it will be in opposition to Libya's case- So deeds then are binding.- As policy-matter, is arbitrator going about this the right way?- Should we give weight to GA resolutions when they are not meant to be binding?- Soft-law: non-binding law - If we have a lot of soft-law, it might ripen to hard law

- What if there was consensus for 2nd and 3rd resolution? Would that be enough evidence of CIL?- Maybe if US was persistent objector, can’t use it as CIL- But if US signed on- Look at state practice - the resolutions are aspirational, but maybe has not manifested in practice yet. So, if not in practice yet, then there are no grounds to establish CIL (the objective requirement where a custom becomes CIL)- 2 aspirational GA resolution is not enough - other courts looked at many other evidence to the practice- Argue in the alternative - general principle that may trump this, even if this is CIL- Because contract was made before the new int'l law, there may be a provision in the K to accommodate for a new int'l law, so we would look there first, if any exists- New int'l law, so circumstances had changed, but there were provisions in agreement to accommodate these changes- Libyan-clause said it would be combined with int'l law

Issue: Can the legal value of UN resolutions be determined under the circumstances under which they were adopted and the analysis of the principles they state?

If there are disputes, they shall be settled by arbitrators. Rules that are to be applied come from international settings. This is an ex parte proceeding because Libya would not participate. The arbitrator normally would take the complaint allegations as true. However, in international cases (as here) the court went through a full fact finding procedure to determine the outcome.

Notes:

1. “Mixed” International Arbitration: Here the Deeds of Concession between the U.S. oil companies and the Libyan government provided that an aggrieved parry could request the President of the International Court of Justice to appoint a sole arbitrator if the other party refused to make an appointment to a 3-judgepanel.

2. Individuals and International Law: The Arbitrator rejected the positivist doctrine of the 19th and early 20th centuries that held that international law could only bind states. Now individuals and private corporations can be subject to international law.

3. The Role of UN General Assembly Resolutions in Making Customary International Law:a. The Libyan argument rested on the foundations of the 1973 and 1974 UN General assembly resolutions proclaiming a New International Economic Order (NIEO). The legal question for the Arbitrator was whether these NIEO resolutions had any legal force especially in the light of UN General Assembly Resolution 1803 (XVII) if 1962. In 1962 the UN was trying to get a consensus, and the resolution was adopted with only a few negative votes.b. 1974 resolution did not reflect the kind of consensus of the 1962 UN resolution. The consequence is that the 1962 resolution still was the rule of law.