* bok * cj * tiff * gem * tin * public international law
The Nature and Function of International Law
(Higgins, Chapter 1)
1. International law is not rules. It is a normative system. A normative system is a
system of conduct which is regarded by the actor, and the group as a whole, as
being obligatory, and for which violation carries a price1.
2. The law is not only meant to resolve disputes, but also to secure certain values
that we desire like security and freedom. Indeed, if the law as a system is
effective, there would not be a need for disputes at all. This fundamental desire for
dispute-avoidance is one of the primary goals of the proliferation of norms. And
even if dispute could not totally be avoided, common norms would still dictate
what the parameters of conduct would be.
3. In terms of the social purpose of international law, it is almost the same as
domestic law2, but in terms of operationalization, it is different in that domestic law
is applied vertically (i.e., from the authority to the subjects) while international law
is applied horizontally (i.e., imposed between states having equal status and
sovereignty as regards one another)
4. THE NATURE OF INTERNATIONAL LAW. Higgins provides a framework for
analyzing international law as a “process” and not as a body of rules. Here is how
Higgins explains the nature of international law:
a. IT IS THE DECISION-MAKING PROCESS ITSELF. “It is a continuing
process of authoritative decisions. This view rejects the notion of law
merely as the impartial application of rules. International law is the entire
decision-making process, and not just the reference to the trend of past
decisions which are termed “rules”.3 This bias of Higgins toward the “law-
as-process” argument runs counter to the teachings of legal theory’s
legal positivism school4. Austin, for example, argues that if something is
law, then it must emanate from a sovereign who sets it upon persons in a
state of subjection to the former’s authority. Kelsen, seeking to give
meaning to positivism in a horizontal, decentralized international legal
order, where command and sovereign are notably lacking, proposed the
existence of a grundnorm which is the highest fundamental norm from
1
The most important feature about a norm is that it is established through social convention
rather than positive legislation, i.e., it derives its validity from the fact that seemingly
everyone for seemingly the longest time has held it to be true and desirable, and not from
the fact that a law-making authority has expressly given it the status of a rule.
2
e.g., Domestic law is to road traffic as international law is to international aviation
3
Higgins puts a premium on the “contextualization” of rules rather than mechanically
applying them. For Higgins, if international law is merely finding the rule and applying it, then
it would be highly ineffective because differing contexts cannot be adequately addressed by
uniform rules. Said Higgins: “ the determination of what is the relevant rule is part of the
decision-maker’s function; and because the accumulated trend of past decisions should
never be applied oblivious of context”.
4
Warning: ghosts of Legal Theory will be coming back to life in the following sentences.
Sison alert!
uplaw 2009 b
which all others derived their binding force. Higgins also cites the
increasing prominence of the critical legal studies school which, like the
policy science approach (the approach which takes into consideration
the policy implications of every decision), believes that law is deeply-
rooted in social theory and rejects law as rules and exceptions. However,
the critical legal studies scholar will see law as contradictions or as
essentially indeterminate at its core rather than as complementary or
competing norms between which choices have to be made in particular
circumstances. This views lead to the pessimistic conclusion that what
international law can do is point out the problems but not assist in the
achievement of goals.
b. IT IS ALSO ABOUT POWER. Critics say that international law, if it is
more than just the application of rules, would be confused with power or
control and not just authority (which they say the law is all about).
Higgins counters that: “to seek to contrast law with power is
fundamentally flawed. It assumes that law is concerned only with the
concept of authority and not with power, or control. International law is
indeed concerned with authority…but not authority alone. It is also not
true that power stands somehow counterpoised to authority, and is
nothing to do with law, and is indeed inimical to it. The authority which
characterizes law exists not in a vacuum, but exactly where it intersects
with power. Authority cannot exist in the total absence of control.”
c. IT IS ALSO ABOUT POLICY. Critics also counter that if international
law is to allow a leeway for the choosing of the best rule to apply instead
of just applying the rule that there is, it would be an instrument for politics
and would be applied based on the biases of the decision-makers.
Fitzmaurice’s dissent5 illustrates this critical view. Higgins said that this
critique rests on two propositions: that the correct legal view is to be
arrived at by applying rules, and that the correct legal view has nothing to
do with applying past decisions to current contexts by reference to
objectives or values that the law is designed to promote. Higgins
answers: “ Policy considerations, although they differ from “rules”, are an
integral part of that decision-making process which we call international
law; the assessment of so-called extra-legal considerations is part of the
legal process, just as the reference to the accumulation of past decisions
and current norms. A refusal to acknowledge political and social factors
cannot keep law neutral, for even such refusal is not without political and
social consequence. There is no avoiding the essential relationship
between law and politics”. So how does one prevent being biased and
partial when given the chance to take political factors into consideration?
Higgins proposes two safeguards: systematic consideration (make sure
5
In the 1962 South West Africa Cases, Fitzmaurice and Spender in a joint dissenting
opinion stated: “ We are not unmindful of, nor are we insensible to, the various
considerations of a non-judicial character, social, humanitarian, and other…but these are
matters for the political rather than the legal arena. They cannot be allowed to deflect us
from our duty of reaching a conclusion strictly on the basis of what we believe to be the
correct legal view.”
Always will b
 * bok * cj * tiff * Gem * tin *
that ALL factors are properly considered and not only those which the
decision-maker selects consciously or otherwise) and open/ accountable
consideration (make the process open to public scrutiny and discussion).
d. IT ALSO HAS SOLID ANCHORS. Higgins does not believe that the
policy-science approach (the approach which takes into consideration
the policy implications of every decision) requires one to find every
means possible if the end is desirable, i.e., the process of international
law does not have to be as fluid and flexible as the decision-maker’s
interests would allow. First, trends of past decisions still have an
important role to play in the choices to be made, notwithstanding the
importance of both context and desired outcome. Where there is
ambiguity or uncertainty, the policy-directed choice can properly be
made. Second, no matter what, we will each know which legal claims
and decisions are intellectually supportable and which are not6. It is
therefore a far-fetched idea that international law, in the hands of
decision-makers, can be an irrational and incoherent hodgepodge of self-
serving rules. Lastly, in international law, there are still certain norms that
have received such universal acceptance and validity as to enjoy the
status of absolute rules because of the common interest involved in
them, like the prohibition on the use of certain weapons.
e. IT IS A COMMUNAL ENTERPRISE. Making choices in the process of
international law is not undertaken without some guiding principles; and
these guiding principles are the product of collective consensus.
Proposing such principles predicate that certain views or assumptions as
to what is desirable should prevail over others. For Higgins, it is the
necessary stuff of our very existence in community with others. Everyone
is entitled to participate in the identification and articulation as to what
they perceive the values to be promoted. Many factors, including the
responsive chords struck in those to whom the arguments is made, will
determine whether particular suggestions prevail.
f. IT ARISES FROM EITHER CONSENT OR NON-OPPOSITION.
Higgins says that we have in international law a system in which norms
emerge either through express consent, or because there is no
opposition – or because it is thought that, sovereignty notwithstanding,
opposition would not succeed – to obligations being imposed in the
absence of such specific consent.
g. IT HAS BASIS IN RECIPROCITY, CONSENT, AND CONSENSUS.
Reciprocity is a central element in the basis of obligation of international
law. As notions of natural justice are replaced by consent, so consent
has gradually been replaced by consensus. Consensus comes about
because states perceive a reciprocal advantage in cautioning self-
6
Higgins also presents a counter-argument to critics by saying that “it is a chimera to
suppose that, if only international law is perceived as the application of neutral rules, it will
then be invoked only in an unbiased manner”. For Higgins, even the act of invoking
supposedly neutral rules can be an inherently political and not a value-devoid actuation.
2
restraint. It is rarely in the national interest to violate international law,
even though there might be short-term advantages in doing so. For law
as a process of decision-making, this is enough.
5. Higgins acknowledges that there are some inherent contradictions in the legal
system that make the process of international law more complex. Koskenniemi,
however, argues that it is totally impossible to make a rational choice for the
common good amongst these contradictions. For Koskenniemi, issues of
contextual justice require venturing into fields such as politics, social and
economic casuistry which were formally delimited beyond the point at which legal
argument is supposed to stop in order to remain legal. Higgins counters that law
cannot alone achieve justice. The making of legal choices will not even contribute
to justice if it purports to totally ignore everything that is not rules. To remain legal
is to ensure that decisions are made by those authorized to do so, with important
guiding reliance on past decisions, and with available choices being made on the
basis of community interests and for the promotion of common values.
6. Law-as-process encourages interpretation and choice that is more compatible
with values we seek to promote and objectives we seek to achieve. According to
Higgins, if one adopts this view of the law and moves away from the law-as-rules
paradigm, the distinction between lex lata (the law as it is) and lex ferenda (the
law as it might be) becomes less important. The law-as-process approach also
has the advantage of being able to ably deal with lacunae 7. The rule-based lawyer
can say only that international law has nothing to say on the matter. But to the
person who views international law as process, there are still the tools for
authoritative decision-making on the problem (by the use of analogy, by reference
to context, by analysis of the alternative consequences) notwithstanding the
absence of a precise rule which must be applied.
7. Higgins also took note of the views from socialist scholars regarding the nature
of international law. For pre-perestroika Marxists, international law was part of the
superstructure of law. It was an attribute of the foreign policy of states, an
expression of the will of the ruling class. Where the will of the ruling classes of the
socialist and capitalist systems coincided, international law can exist. It existed
side by side with socialist international law which is said to exist between the
various socialist countries. From the socialist perspective, international law was
not universal because of its nature – the coordination of the wills of socialist and
capitalist states.
8. From the viewpoint of developing countries, the primary concern is that the
substance of international law has been adopted before these states have
become independent, and so their contributions to the articulation of these norms
were limited. However, these countries did not state that these norms are inimical
to them and that they were not bound by them upon achieving independence.
7
Literally, an isolated area (derivative of the Spanish word “laguna”, meaning lake, which is
a body of water isolated within a surrounding mass of land); it is used to refer to legal issues
where there are no established legal solutions.
Always will b
 * bok * cj * tiff * Gem * tin *
International law has been widely accepted by the Third World as universal in
application.
9. APPLICABILITY OF INTERNATIONAL LAW. Higgins explains that international
law applies to states, international organizations, individuals (their responsibility in
the conduct of war, fundamental freedoms) and in some cases applies indirectly
(when they are required to comply with UN trade sanctions against a particular
country).
10. BASIS OF OBLIGATION OF INTERNATIONAL LAW. Certainly not sanction as
Austin would have it, because it would be difficult to enforce international law
through sanctions in the context of equally sovereign states. Some would say that
the basis is natural law, because it is in the natural order of things that certain
matters should be regulated in a compulsory manner. Koskenniemi believes that
the natural obligations of justice are essentially what is necessary for subsistence
and self-preservation. Others propose that the basis is consent, or that
international law is binding because the states agreed that it should be.
Kosekenniemi criticizes the consent theory by pointing out that international law is
whatever states choose to regard as law, so that law cannot be an effective
external constraint on their behavior. If states consent, then it is not law at all, but
just an agreement by them that their behavior will be regarded as normative.
Sources of International Law: Provenance and Problems
(Higgins, Chapter 2)
• This chapter will deal with the following questions:
a. Where do we find the substance of international law (IL)?
b. What constitutes international law?
c. What is the difference between a political proposal and a binding
rule?
What we are concerned with in this chapter is the "identification” of
international law. This latter topic is commonly termed “sources of
international law'. It is really all about the provenance of norms.
• It is strange that we spend so much time talking about the provenance of
the norms that bind the participants in the international legal system. In
domestic legal systems the sources of legal obligation are treated in a
much more matter-of-fact way: legislation primary or secondary, and, in
the common law, judicial decisions, are the sources. But we have
become so preoccupied with jurisprudential debate about the sources of
international law that we have lost sight of the fact that it is an admission
of an uncertainty at the heart of the international legal system,
uncertainty as to how we identify norms. The question of sources is thus
of critical importance.
• Starting point for the discussion of sources: Article 38 (i) of the Statute of
the International Court of Justice:
3
The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
(b)international custom as evidence of a general practice accepted
as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
• It is interesting that the route to the identification of sources is via an
identification of what rules the ICJ will apply in resolving legal disputes.
This has led some writers to contend that international law is defined as
that which the Court would apply in a given case. Higgins finds this too
narrow. For her, international law has to be identified by reference to
what the actors (most often states), often without benefit of
pronouncement by the ICJ, believe normative in their relations with each
other.
• Custom
o Article 38 of the Statute contains the injunction that the Court should
apply 'international custom, as evidence of a general practice
accepted as law'. This formulation speaks of custom as evidence of
a practice. Yet it is generally accepted that it is custom that is the
source to be applied, and that it is practice which evidences custom.
But practice by itself is not evidence of the existence of a custom—
the norm must be 'accepted as law'. Thus, Article 38 could more
correctly have been phrased to read 'international custom as
evidenced by a general practice accepted as law'. In fact, this is the
way the clause is interpreted in practice.
o One of the special characteristics of international law is that
violations of law can lead to the formation of new law. Whether one
believes that international law consists of rules that have been
derived from consent or natural law; or whether international law is a
process of decision-making, with appropriate reliance on past trends
of decision-making in the light of current context and desired
outcomes, there still remains the question of how the 'rules' or the
'trend of decision' change through time. And, in so far as these rules
or trends of decisions are based on custom, then there is the related
question of what legal significance is to be given to practice that is
inconsistent with the perceived rules or trends of decision.
Always will b
* bok * cj * tiff * Gem * tin *
o For rule-based international lawyers (even to non-lawyers, int’l
relations students, and a guy named Georg Schwarzenberger),
repeated violations of these rules is a reflection of the reality that at
the end of the day international law is dependent upon power: and, if
there is a divergence between the two, it is power politics that will
prevail. From this perspective, thee reality is that there continue in
existence certain rules which regrettably are widely disobeyed, and
it is the task of the international lawyer to point to the existence of
these rules and to take every opportunity to urge compliance with
them—even if the battle against power politics takes very many
years.
o For those who view IL as process-based, that which we describe as
law is the confluence of authority and control. Where there is
substantial non-compliance, over a period of time, the norms
concerned begin to lose their normative character. What has been
lost is the community expectation that claimed requirements of
behaviour reflect legal obligation. But even for them, there are some
difficult questions. What exactly causes a norm to lose its quality as
law? Conceptually, this question is the same as that to be put
regarding the formation of custom. To ask what is evidence of
practice required for the loss of obligatory quality of a norm is the
mirror of the evidence of practice required for the formation of the
norm in the first place.
o If a customary rule loses its normative quality when it is widely
ignored, over a significant period of time, does this not lead to a
relativist view of the substantive content of international Iaw, with
disturbing implications? Consider the following possibilities:
(a) In the South West Africa Cases, South Africa argued that
there was not in reality any norm of non-discrimination, as—
regardless of the way states voted on resolutions on this issue
—the great majority of states routinely discriminated against
persons of colour. This argument really arose in the context of
whether a norm of non-discrimination had ever developed and
come into existence.
(b) On genocide: all states agree that IL prohibits genocide (and
that this total prohibition is today rooted in customary
international law and not just in treaty obligations). So what if
some states from time to time engage in genocide? Here we
may safely answer that genocide, while it sometimes occurs
and while its very nature make all norm compliance shocking, is
certainly not the majority practice. The customary law that
prohibits genocide remains intact, notwithstanding appalling
examples of non-compliance.
(c) On torture: No one doubts that there exists a norm
prohibiting torture. No state denies the existence of such a
norm. But it is equally clear from, for example, the reports of
4
Amnesty International, that the great majority of states
systematically engage in torture. If one takes the view that non-
compliance is relevant to the retention of normative quality, are
we to conclude that there is not really any prohibition of torture
under customary international law? ICJ said in Nicaragua v.
United States, when determining the law on intervention and
permitted use of force:
If state acts in a way prima facie incompatible with a
recognized rule, but defends its conduct by appealing
to exceptions or justifications contained within the rule
itself, then whether or not the State's conduct is in fact
justifiable on that basis, the significance of that
attribute is to confirm rather than to weaken the rule.
o For those who do not view matters from the perspective of the battle
between 'legal rules' and 'power politics', this last type of example
presents very real difficulties. Tne answer seems to have been
found by some in embracing, if not a hierarchical normativity, then a
weighted normativity. Oscar Schachter says, “The rules against
aggression and on self-defence are not just another set of
international rules. They have a "higher normativity", a recognised
claim to compliance that is different from the body of international
law rules.” Essentially, the argument seems to be that, if these are
not treated as 'rules of higher normativity' than ordinary rules, then
they cannot be treated differently from ordinary rules so far as the
evidence of practice is concerned; and, if they cannot be treated
differently, then disaster will ensue. To assert an immutable core or
norms which remain constant regardless of the attitudes of states is
at once to insist upon one's own personal values (rather than
internationally shared values) and to rely essentially on natural law
in doing so. This is a perfectly possible position. Schachter further
says that this is why states and tribunals do not question the
continued force of those rules because of 'inconsistent or insufficient
practice'. He refers to cases of-— genocide and to the killing of
prisoners by their captors as not leading to the conclusion that the
proscriptions no longer exist.
o Higgins’ approach: To say that the prescriptions against aggression
and on self-defence are 'necessary rules of coexistence' and
'principles of minimum world order' is not to render these (rules
against genocide, discrimination, torture, prisoners of war) as a
species of grundnorm in respect of which the normal requirements
of practice do not apply. Nor is the matter disposed of by noting that
the prescriptions relating to aggression, use of force, protection of
prisoners of war, and genocide are widely regarded as jus cogens. A
norm that is jus cogens cannot be limited or derogated from by
agreement between states in their relations with each other. I
believe that to be exactly because the community as a whole
Always will b
* bok * cj * tiff * Gem * tin *
regards these norms as of critical importance, such that particular
states cannot 'contract out' of them. But that is not to say that these
prescriptions would somehow retain their normative quality if the
world community as a whole did not regard them as such. The
status of norms that we hold dear is to be protected by our efforts to
invoke and apply them, in turn ensuring that they do not totally lose
the support of the great majority of states. But they cannot be
artificially protected through classifying them as rules with a 'higher
normativity' which will continue to exist even if we fail to make states
see the value of giving such prescriptions a normative quality.
o The answer lies elsewhere. First, we must not lose sight of the fact
that it is the practice of the vast majority of states that is critical, both
in the formation of new norms and in their development and change
and possible death. No special attribution of a 'higher normative
status' is needed.
o More difficult is the question of torture, because we are told, by
reputable bodies in a position to know, that the majority of states in
the world do engage in this repugnant practice. It is at this point that
a further factor comes into play. New norms require both practice
and opinio juris (the belief that a norm is accepted as law) before
they can be said to represent customary international law. And so it
is with the gradual death of existing norms and their replacement by
others. The reason that the prohibition on torture continues to be a
requirement of customary IL, even though widely abused, is not
because it has a higher normative status that allows us to ignore the
abuse, but because opinio juris as to its normative status continues
to exist. No state, not even a state that tortures, believes that the
international law prohibition is undesirable and that it is not bound by
the prohibition. A new norm cannot emerge without both practice
and opinio juris; and an existing norm does not die without the great
majority of states engaging in both a contrary practice and
withdrawing their opinio juris
• Resolutions of International Organizations
o In 1963, Higgins wrote: The United Nations is a very appropriate
body to look to for indications of developments in international law,
for international custom is to be deduced from the practice of States,
which includes their international dealings as manifested by their
diplomatic actions and public pronouncements. With the
development of international organizations, the votes and views of
States have come to have legal significance as evidence of
customary law . . . Collective acts of States, repeated by and
acquiesced in by sufficient numbers with sufficient frequency,
eventually attain the status of law. The existence of the United
Nations—and especially its accelerated trend towards universality of
membership since 1955—now provides a very clear, very
5
concentrated focal point for state practice. Here, then, is the reason
for looking to United Nations practice in a search for the direction of
the development of international law.
o Two points, after 30 years:
(a) first is how modest and indeed cautious those views are today,
though in 1963 they were regarded as somewhat radical. There is
nothing in this approach that suggests a belief in 'instant custom', or
that the distinction between decisions and recommendations is to be
ignored. The same was said by Judge Tanaka in his dissenting
opinion in the South West Africa Cases (1966), that the
requirements of custom—practice, repetition, opinio juris—may
occur at an accelerated pace in the world of an international
organization. But he did not suggest that the mere existence of a
resolution obviated the need for these requirements:
A State, instead of pronouncing its view to a few States directly
concerned, has the opportunity, through the medium of the
organization, to declare its position to all members of the
organization and to know immediately their reaction on the
same matter. In former days, practice, repetition and opinio juris
sive necessilatis, which arc the ingredients of customary
international law might be combined together in a very long and
slow process extending over centuries. In the contemporary age
of highly developed techniques of communication and
information, the formation of a custom through the medium of
international organizations is greatly facilitated and accelerated
...
In his dissent in the Continental Shelf Cases, he said that the speed
of present communications had 'minimised the importance of the
time factor and has made possible the acceleration of the formation
of customary international law…’.
(b) the views I expressed in 1963 were directed to the place of UN
practice in the development of IL. There was in the theoretical
analysis virtually no reference to resolutions as such. Resolutions
are but one manifestation of state practice. But in recent years there
has been an obsessive interest with resolutions as an isolated
phenomenon. The political bodies of international organizations
engage in debate, etc; in preparing drafts intended for treaties, etc;
and in decision/making that may or may not imply a legal view upon
a particular issue. Some of these activities may result in resolutions
of one sort or another. But the current fashion is often to examine
the resolution to the exclusion of all else.
o Binding quality of resolutions
 The binding or recommendatory quality of resolutions is closely
related to the concept of state consent. But, as was remarked
by Sir Kenneth Bailey in 1967: 'To say that a resolution is
recommendation only is undoubtedly to assert that
Always will b
* bok * cj * tiff * Gem * tin *
governments are under no legal obligations to comply with it.
Does this relegate General Assembly resolutions wholly to the
sphere of moral or legal precepts, with no relevance to law?’
 But the passing of binding decisions is not the only way in which
law development occurs. Legal consequence can also flow from
acts which are not, in the formal sense, 'binding'. And, further,
law is developed by a variety of non-legislative acts which do
not seek to secure, in any direct sense, 'compliance' from
Assembly members; we refer here to the 'law-declaring'
activities of the Assembly.
 Illustrative of the distinction is the Namibia Advisory Opinion:
The Court was faced with both General Assembly and Security
Council resolutions that purported to terminate South Africa's
mandate over South-West Africa. It found the Security Council
resolution binding, even though it could not be clearly identified
as a traditional 'Chapter 7' resolution; and it found that the
General Assembly resolutions, while manifestly not binding,
were not without legal effect, given the existence of a right to
terminate and the Assembly's constitutional role in monitoring
the mandate. ICJ said: ‘It would not be correct to assume that,
because the General Assembly is in principle vested with
recommendatory powers, it is debarred from adopting, in
specific cases within the framework of its competence,
resolutions which make determinations or have operative
design.’
 In some international organizations even the term
'recommendation' in its context sometimes signals more than
one would expect from a literal reliance on that word. Thus
'recommendation' may still in context entail a duty of
compliance or an obligation to act.
 Further, other recommendations (e.g. those to establish
subsidiary bodies) entail financial consequences which are
legally incumbent upon all members, whether they voted for
them or not. (Illustrative is the ICJ Advisory Opinion on the
Expenses Case).
 On the internal and external competence of a UN organ: The
travaux have always made clear that “in the course of the
operations from day to day of the various organs of the
organisation it is inevitable that each organ will interpret such
parts of the Charter as are applicable to its particular function”.
The repeated practice of the organ, in interpreting the treaty,
may establish a practice that, if the treaty deals with makers of
general international law, can ultimately harden into custom.
6
Although organ practice may not be good evidence of the
intention of the original state parties, it is of probative value as
customary law.
o Declaratory Resolutions
 We turn to those activities where the international organization
is concerned with general international law rather than its own
procedural powers or even the direct interpretation of its own
constituent instrument. Prominent among such activities is the
passing of resolutions that purport to be declaratory of
contemporary international law. Can we reject their legal
relevance simply on the ground that they are recommendatory,
or incapable of directly binding the membership at large? What
status is therefore to be accorded to them?
 Opinions:
(a) those who are deeply sceptical, in the generalized fashion,
about the relevance of General Assembly resolutions
(Judge Sir Gerald Fitzmaurice, Judge Stephen Schwebel,
and Sir Francis Vallat, Professors David Johnson and
Gaetano Arangio-Ruiz). The Englishmen in this group all
arrive at their position primarily by an emphasis in their
writings, or judicial decisions, on the recommendatory
nature of Assembly resolutions and their inability to bind.
Schwebel and Arangio-Ruiz arrive at their position through
a different route. They fully accept that resolutions can
contribute to the formation of customary international law,
but express deep scepticism as to whether this really
happens. Arangio-Ruiz says that General Assembly
resolutions do not in fact contribute to the evolution of
custom because states 'don't mean it'. ‘That is to say,
states often don't meaningfully support what a resolution
says and they almost always do not mean that the
resolution is law.' Schwebel then adds a piercingly
important point, agreeing that states 'don't mean it', he
says: 'This may be as true or truer in the case of the
unanimously adopted resolutions as in the case of majority-
adopted resolutions. It may be truer still of resolutions
adopted by "consensus". Thus the size of the majority has
nothing to do with the intentions of the states voting for it.
(b) Those who downplay the significance of Assembly resolu-
tions as non-binding, but accept that it would be wholly
exceptional for any single resolution to have normative
results. They argue rather that the decentralized method of
international law-making can cause the metamorphosis of
'General Assembly recommendations from non-binding
resolutions to inchoate normative principles'.
Always will b
* bok * cj * tiff * Gem * tin *
(c) The radical end, those who invest Assembly resolutions
with/considerably greater legal significance (Richard Falk,
who wrote of “quasi-legislative competence” in the General
Assembly, and Jorge Castaneda, who argued that through
its repeated efforts to declare principles of IL, the General
Assembly has secured powers beyond the
recommendatory powers listed in the UN Charter).
 Issue: When we look at resolutions as a first step in the
formation of custom, or as part of the evidence of the existence
of general practice, is it enough that we look at the resolutions
alone? Schwebel has insisted that, because opinio juris remains
a critical element, one must look to see if states 'mean' what
they have voted for— and looking at their practice outside the
United Nations is one way we can ascertain this. (Illustration:
the arbitral award of Professor Dupuy in the Texaco Case.
Dupuy was engaged in trying to ascertain whether a resolution
expressed a consensus on what was/the existing customary
rule.). But one must take care not to use General Assembly
resolutions as a shortcut to ascertaining international practice in
its entirety on a matter—practice in the larger world arena is still
the relevant canvas, although UN resolutions are a part of the
picture. Resolutions cannot be a substitute for ascertaining
custom; this task will continue to require that other evidences of
state practice be examined alongside those collective acts
evidenced in General Assembly resolutions.
 On Security Council Resolutions: Professor Tunkin indicated
that decisions of the UN Security Council are not strictly
speaking sources of international law. They have an ad hoc
effect and may create binding obligations, but they are not
sometimes of general applicability. Higgins largely agree with
this view, though sometimes the substance of the Security
Council work, and the fact that it is legal work repeated year in
and year out, makes it engage in the processes of customary
development as well as the mere imposing of obligation.
o Conclusion: To answer the question “What is the role of resolutions
of international organizations in the process of creatjKig norms in the
international system?”, look at the following:
(a) subject-matter of the resolutions in question
(b) whether they are binding or recommendatory
(c) at the majorities supporting their adoption
(d) at repeated practice in relation to them
(e) at evidence of opinio juris.
• The Overlap between Treaty and Custom
7
o Provisions formulated in a treaty can in certain circumstances be
binding even on states which are not parties to the treaty. This can
occur if the provisions articulate what is already customary
international law (e.g. Vienna Convention). But some elements of
the Vienna Convention represent new law, and those elements are
undertaken only by the parties to the Convention. And if a treaty has
certain procedural or dispute settlement provisions built into it, a
non-party will not be bound by those provisions, even if it is bound
by certain substantive norms contained in the treaty, because they
are already customary law. Thus, while not being bound by all the
particular provisions of the Genocide Convention, no non-ratifying
state could claim to be free to commit genocide because was not a
party to that legal instrument.
o A much more difficult possibility may occur—namely, that provisions
in a treaty are new at the time they are formulated; but that
customary international law then develops in such a way as itself to
embrace those new norms. (Illustration: North Sea Continental Shelf
Cases)
o Case background: The Netherlands and Denmark claimed that the
equidistance rule of Article 6 of the 1958 Continental Shelf
Convention was binding upon the Federal Republic of Germany (a
non-party) as a matter of customary law. The argument was that the
equidistance rule of delimitation is, or must now be regarded as
involving, a rule that is part of the corpus of general international
law; and, like other rules of general or customary international law,
binding on the Federal Republic automatically and independently of
any specific assent, direct or indirect, given by the latter. Part of the
proposition was based on an argument that the equidistance
principle had a 'juristic inevitability' in continental-shelf delimitation.
But the other part of the Dutch and Danish claim was that the work
of international legal bodies, state practice and indeed the influence
of the Geneva Convention itself had 'cumulatively evidenced or been
creative of the opinio juris sive necessiatis requisite to the formation
of new rules of customary international law'. Court concluded that
Article 6 'did not embody or crystallize any pre-existing or emerging
rule of customary international law', but then moved to see if such a
rule had since come into being, 'partly because of its own impact
partly on the basis of subsequent state practice—and that this rule,
being now a rule of customary international law [is] binding on all
states . . .' The Court noted that this would involve treating Article 6
as a norm-creating provision which has constituted the foundation of
or has generated a rule which, while only conventional or contractual
in its origin, has since passed into the general corpus of international
law, and is now accepted as such by the opinio juris, so as to have
become binding even for countries which have never, and do not,
become parties to the Convention. The Court characterized the
Always will b
* bok * cj * tiff * Gem * tin *
process as one that is 'perfectly possible', but the result was 'not
lightly to be regarded . . as having been attained'.
o What would be needed for the result to be attained:
(a) norm had first to be of a fundamentally norm-creating character.
(b) even without the passage of any considerable period of time', a
very widespread participation in the Convention might suffice,
'providred it included that of states, whose interests were
specially affected'. ('substantial participation by those whose
interest are affected', echoed by Dupuy in Texaco vs. Libya)
(c) where non-parties applied the equidistance principle, said the
Court, 'the basis of their action can only be problematical and
must remain entirely speculative'. The Court found there was
'not a "shred of evidence" that they believed themselves to be
applying a mandatory rule of international law'. This leads us
right back to the problem of evidence for the establishment of
custom, and in particular evidence as to opinio juris. And there
is a related question: is the evidence of opinio juris the same
when the norm tells one what to do (e.g. draw an equidistant
line) as when it proscribes certain actions (e.g. do not commit
genocide)?
o We can only say that the sources of international law are not
compartmentalized, but do indeed overlap, And it will always be
harder to show an emerging mandatory requirement that is
obligatory for states than to show an emerging relaxation of a
mandatory requirement, upon which states are entitled to rely.
• Sources of Law and Legal Obligations
o Article 38 of the Statute speaks of general or special conventions as
<-source of law. Thus bilateral or multilateral conventions each have
a place in the sources of IL.
o It has been suggested by Fitzmaurice that treaties are not a source
of law stricto sensu, but only a source of obligation between the
parties. Judge Sir Robert Jennings has spoken of this as an insight
whose truth, upon reflection, is apparent. Fitzmaurice's point is
general, because he suggested that a treaty either contained
already accepted norms, which themselves were thus the source of
the law, or contained new provisions, which were an exchange of
obligations between the treaty parties. But his observation is
particularly striking in relation to bilateral treaties where the
rehearsal of existing norms is often relatively muted, and the
exchange of new bilateral obligations of behaviour is often
particularly marked.
8
o If existing norms are repeated in a treaty, an obligation would exist in
respect of those norms, even were they not contained in that treaty.
But of course multilateral treaties rarely simply repeat existing
norms. Sometimes broad norms are filled out as to detail;
sometimes existing norms will in a treaty be placed side by side with
new norms.
o In so far as a treaty contains provisions not reflective of prior
customary international law, it is true, as Fitzmaurice has said, that it
provides for an exchange of obligations between the parties. But
that does not mean to say that this is therefore not a source of law?
It can only mean that Fitzmaurice viewed law as something in
respect of which an 'obligation' existed—that is, that 'law' and
'obligation' were two different phenomena. If State A and State B
agree upon cultural exchanges, there would be an obligation
existing between them, but no law of cultural exchange. What it
seems to boil down to is that if obligations are binding only upon
parties who agree to them, and no others (because they are new,
albeit contained in a treaty), they are not law.
o Law defined as norms of universal application: Professor Tunkin
wrote that decisions of the UN Security Council are not strictly
speaking sources of international law. They have an ad hoc effect
and may create binding obligations but are not of general application
beyond the moment and effect to which they are directed.
o Law defined as the conjoining of authority and law in a particular
target: In this view, law embraces obligation, and a Security Council
resolution or a treaty commitment is still law for the addressee or
ratifying part, and no less so because it is not obligatory on the world
at large.
o Looked at from this starting-point, custom is obligation involuntarily
undertaken—that is, not based on the consent of any given state, no
state has a veto over the emergence of a customary norm, which
attains its status as such through repeated practice accomplished by
opinio juris.
o Non-opposability: treaty is non-opposable to third parties, unless
they accept its terms or unless it is a treaty whose terms a third
party inherits by virtue of the law of state succession of treaties.
States can also contribute to the formation of customary
international law by unilateral practice. 9e.g. Truman Proclamation)
o The role of protest is to slow the formation of the new legal rule, or
to prevent a unilateral act from being opposable. But, if a rule of
general application does emerge (perhaps because the
phenomenon is a more general one, widely practised), then an
Always will b
* bok * cj * tiff * Gem * tin *
initially protesting state will not remain exempt from the application
of the new customary rule.
o To summarize: General IL creates and contains norms which are
always obligatory. Treaties, in so far as they repeat the existing
norms, create neither the norms nor the obligation. Law-making
treaties that seek to develop new norms are both the source of the
creation of the norm (though of course one can say the treaty is the
vehicle for the consent that created the norm) and the mechanism
for making it obligatory upon the ratifying parties. If treaties are
concerned with norm-creation or elaboration and obligation, then
there are other ways by which obligations simpliciter site
undertaken. Thus treaties can be made opposable to a third party,
by specific acceptance of their contents or, in certain categories of
treaties, by state succession to such a treaty when it has been
concluded by a state to which another state succeeds. Unilateral
acts will be binding on the state making them only if they evidence
an intention to be bound. That is the question of appreciation, on
the basis of all the facts and the context. The distinction that has
been drawn is between an intention to create a binding obligation,
and the expression of a mere political intention. The law can signal
the criteria, but the difficult problem of application of the criteria
remains and cannot be short-circuited. Sometimes it is suggested
that there has been a unilateral assumption of obligations not by
statements made, but by virtue of a state's conduct— that is to say,
an implicit assumption of obligation. The International Court of
Justice has made clear, in the North Sea Continental Shelf Case
and elsewhere that the unilateral assumption of obligations by
conduct is not 'lightly to be presumed' and a 'very consistent course
of conduct' is necessary. Nor is it to be lightly presumed that
unilateral acts amount to a waiver of prior claimed rights. To be
binding, a unilateral act will require to be a representation of fact or
promised conduct, notified to the other party (or at least known by
it). A failure to direct the obligation to a specific party will make the
assumption of an obligation less likely (Burkina Faso v. Mali Case).
The unilateral act may be in oral or written form.
o Detrimental reliance upon the representation or promise by the
addressee of the unilateral representation or promise is frequently
referred to in the writings on unilateral acts. But, properly analysed,
detrimental reliance seems more relevant to estoppel than to the
binding nature of the unilateral act. A unilateral act is either binding
or not, depending upon all the circumstances and whether it was
intended to create a legal obligation between the parties. It would
seem that estoppel through detrimental reliance can operate to
prevent such denial even when the unilateral act would not of itself
have been regarded as binding. The case law seems tolerably clear
that detrimental reliance is distinct from the assumption of legal
obligation (e.g. Eastern Greenland case and Nuclear Test case).
9
Less clear is whether detrimental reliance really is required for
estoppels to operate, Although the literature generallv assumes this
to be a requirement, the case law is more ambiguous.
• Conclusion: Thirlway takes the view that at the end of the day IL is what
the International Court of Justice would declare it to be. He cautions
against a loose approach to the question of sources. But the reality is
that the Court itself often seems to approach the question of sources with
a certain looseness. Where the status of a treaty or a resolution at the
heart of the very issue under consideration by the Court is invoked, a
rather rigorous analysis of its status will ensue. But where resolutions or
treaties are invoked somewhat incidentally as evidence of law, a much
looser approach will suffice. If IL is what the ICJ is likely to say it will be,
then—all the intellectual arguments notwithstanding—the Court, as much
as the rest of us, is caught in the psychological moment: resolutions and
treaties apparently do matter.
KURODA vs. JALANDONI (MARCH 26, 1949)
PETITIONER: SHIGENORI KURODA
RESPONDENTS: Major General RAFAEL JALANDONI, Brigadier General
CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO
BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS ,
MELVILLE S. HUSSEY and ROBERT PORT
PONENTE: MORAN, C.J.
Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and
Commanding General of the Japanese Imperial Forces in the Philippines during
1943 and 1944, who is now charged before a Military Commission convened by
the Chief of Staff of the AFP, with having unlawfully disregarded and failed “to
discharge his duties as such commander to control the operations of members of
his command, permitting them to commit brutal atrocities and other high crimes
against noncombatant civilians and prisoners of the Imperial Japanese Forces, in
violation of the laws and customs of war”—comes before this Court seeking to
establish the illegality of Executive Order No. 68 of the President of the RP; to
enjoin and prohibit respondents Hussey and Port from participating in the
prosecution of petitioner’s case before the Military Commission; and to
permanently prohibit respondents from proceeding with the case of petitioner.
In support of his case, petitioner tenders the following principal arguments:
First.—“That EO No. 68, establishing the National War Crimes Office is illegal on
the ground that it violates not only the provisions of our constitutional law but also
our local laws, to say nothing of the fact (that) the Philippines is not a signatory
nor an adherent to the Hague Convention on Rules and Regulations covering
Land Warfare and, therefore, petitioner is charged of ‘crimes’ not based on law,
national and international.” Hence, petitioner argues-“That in view of the fact that
this commission has been organized by virtue of an unconstitutional law and an
Always will b
 * bok * cj * tiff * Gem * tin *
illegal order, this commission is without jurisdiction to try the case of the
petitioner.”
Second.-That the participation in the prosecution of the case against petitioner
before the Commission in behalf of the United States of America, of attorneys
Hussey and Port, who are not attorneys authorized by the Supreme Court to
practice law in the Philippines, is a diminution of our personality as an
independent state, and their appointments as prosecutors are a violation of our
Constitution for the reason that they are not qualified to practice law in the
Philippines.
Third.-That Attorneys Hussey and Port have no personality as prosecutors, the
United States not being a party in interest in the case.
ISSUE 1: WON EO 68 is CONSTITUTIONAL.
HELD: YES. IT IS VALID & CONSTITUTIONAL
RP CONSTI ADOPTS THE GENERALLY ACCEPTED PRINCIPLES OF INT’L
LAW AS PART OF THE LAW OF THE NATION. EO68 and prescribing rules and
regulations governing the trial of accused war criminals, was issued by the
President of the Philippines on the 29th day of July, 1947. This Court holds that
this order is valid and constitutional. Art. 2 of our Constitution provides in its
section 3, that “The Philippines renounces war as an instrument of national policy,
and adopts the generally accepted principles of international law as part of the law
of the nation.”
RP PRESIDENT ACTED IN ACCORDANCE WITH PRINCIPLES OF INT’L LAW.
In accordance with the generally accepted principles of int’l law of the present day,
including the Hague Convention, the Geneva Convention and significant
precedents of international jurisprudence established by the United Nations, all
those persons, military or civilian, who have been guilty of planning, preparing or
waging a war of aggression and of the commission of crimes and offenses
consequential and incidental thereto, in violation of the laws and customs of war,
of humanity and civilization, are held accountable therefor. Consequently, in the
promulgation and enforcement of Executive Order No. 68, the President of the
Philippines has acted in conformity with the generally accepted principles and
policies of international law which are part of our Constitution.
EXERCISE OF COMMANDER-IN-CHIEF POWERS. The promulgation of said EO
is an exercise by the President of his powers as Commander in Chief of all our
armed forces, as upheld by this Court in the case of Yamashita when we said
“War is not ended simply because hostilities have ceased. After cessation of
armed hostilities, incidents of war may remain pending which should be disposed
of as in time of war. ‘An important incident to a conduct of war is the adoption of
measures by the military command not only to repel and defeat the enemies but
to seize and subject to disciplinary measures those enemies who in their attempt
to thwart or impede our military effort have violated the law of war.’ Indeed, the
power to create a military commission for the trial and punishment of war criminals
is an aspect of waging war. And, in the language of a writer, a military commission
‘has jurisdiction so long as a technical state of war continues. This includes the
10
period of an armistice, or military occupation, up to the effective date of a treaty of
peace, and may extend beyond, by treaty agreement.’ (Cowles, Trial of War
Criminals by Military Tribunals, American Bar Association Journal, June, 1944.)”
Consequently, the President as Commander in Chief is fully empowered to
consummate this unfinished aspect of war, namely, the trial and punishment of
war criminals, through the issuance and enforcement of Executive Order No. 68.
ISSUE 2: WON THE MILITARY COMMISSION HAS JURISDICTION TO TRY
KURODA FOR ACT COMMITTED IN VIOLATION OF THE HAGUE & GENEVA
CONVENTION EVEN IF AT THE TIME THE ALLEGED ACTS WERE
COMMITTED RP WAS NOT YET A SIGNATORY.
HELD: YES. THEY HAVE JURISDICTION.
THE RULES & REGULATIONS OF THE HAGUE AND GENEVA CONVENTIONS
FORM PART OF AND ARE WHOLLY BASED ON THE GENERALLY
ACCEPTED PRINCIPLES OF INT’L LAW. Even if RP is not a signatory to the
Hague Conv. and signed the Geneva Conv. only in 1947, it can’t be denied that
the rules and regulations of the Hague and Geneva conv. form part of and are
wholly based on the generally accepted principles of international law. In fact,
these rules and principles were accepted by the 2 belligerent nations, US and
Japan, who were signatories to the 2 Conventions. Such rules and principles,
therefore, form part of the law of our nation even if RP was not a signatory to the
conventions embodying them, for our Consti has been deliberately general and
extensive in its scope and is not confined to the recognition of rules and principles
of international law as contained in treaties to which our government may have
been or shall be a signatory.
EQUALLY BOUND TOGETHER WITH THE US AND WITH JAPAN. Furthermore,
when the crimes charged against petitioner were allegedly committed, the
Philippines was under the sovereignty of the US, and thus we were equally bound
together with the US and with Japan, to the rights and obligations contained in the
treaties between the belligerent countries. These rights and obligations were not
erased by our assumption of full sovereignty. If at all, our emergence as a free
state entitles us to enforce the right, on our own, of trying and punishing those
who committed crimes against our people. In this connection, it is well to
remember what we have said in the case of Laurel vs. Misa (76 Phil., 372): “…
The change of our form of government from Commonwealth to Republic does not
affect the prosecution of those charged with the crime of treason committed
during the Commonwealth, because it is an offense against the same government
and the same sovereign people...” By the same token, war crimes committed
against our people and our government while we were a Commonwealth, are
triable and punishable by our present Republic.
ISSUE 3: WON THE 2 AMERICAN LAWYERS MAY PARTICIPATE IN THE
PROSECUTION.
HELD: YES.
MILITARY COMMISSION IS A SPECIAL MILITARY TRIBUNAL GOVERNED BY
A SPECIAL LAW AND NOT BY THE RULES OF COURT. The participation of
Always will b
 * bok * cj * tiff * Gem * tin *
two American attorneys, Hussey and Port, in the prosecution the case was
questioned on the ground that said attorneys are not qualified to practice law in
the RP in accordance with our Rules of Court and the appointment of said
attorneys as prosecutors is violative of our national sovereignty. The Court did not
agree since the Military Commission is a special military tribunal governed by a
special law and not by the Rules of Court which govern ordinary civil courts. It has
already been shown that EO 68 which provides for the organization of such
military commissions is a valid and constitutional law. There is nothing in said
executive order which requires that counsel appearing before said commissions
must be attorneys qualified to practice law in the Philippines in accordance with
the Rules of Court. In fact, it is common in military tribunals that counsel for the
parties are usually military personnel who are neither attorneys nor even
possessed of legal training.
APPLICATION OF PRINCIPLE OF COMITY. The appointment of the two
American attorneys is not violative of our national sovereignty. It is only fair and
proper that the US, which has submitted the vindication of crimes against her
government and her people to a tribunal of our nation, should be allowed
representation in the trial of those very crimes. If there has been any
relinquishment of sovereignty, it has not been by our government but by the US
Government which has yielded to us the trial and punishment of her enemies. The
least that we could do in the spirit of comity is to allow them representation in said
trials.
U.S. IS A PARTY-IN-INTEREST. Alleging that the US is not a party in interest in
the case, petitioner challenges the personality of attorneys Hussey and Port as
prosecutors. It is of common knowledge that the United States and its people
have been equally, if not more greatly, aggrieved by the crimes with which
petitioner stands charged before the Military Commission. It can be considered a
privilege for our Republic that a leader nation should submit the vindication of the
honor of its citizens and its government to a military tribunal of our country.
DISPOSITION: The Military Commission having been convened by virtue of a
valid law, with jurisdiction over the crimes charged which fall under the provisions
of Executive Order No. 68, and having jurisdiction over the person of the petitioner
by having said petitioner in its custody, this Court will not interfere with the due
processes of such Military Commission.
Paras, Feria, Pablo, Bengzon, Briones, Tuason, Montemayor, and Reyes, JJ.,
concur.
PERFECTO. J., Dissenting: (his opinion contained a copy of E.O. No. 68,
refer to the orig.)
A military commission was created on December 1, 1948, to try Lt. Gen. Kuroda
for violation of the laws and customs of land warfare. Hussey and Port, American
citizens and not authorized by the SC to practice law, were appointed prosecutors
representing the American CIC in the trial of the case.The charges against
11
petitioner has been filed since June 26, 1948, in the name of the People of the
Philippines as accusers.
HUSSEY & PORT CAN’T NOT APPEAR AS PROSECUTORS. There could not
be any question that said persons cannot appear as prosecutors in petitioner’s
case, as with such appearance they would be practicing law against the law.
THE LEGISLATIVE POWER IS TO BE EXERCISED EXCLUSIVELY BY
CONGRESS. EO 68 is a veritable piece of legislative measure, without the benefit
of congressional enactment. The Constitution provides:
“The Legislative powers shall be vested in a Congress of the Philippines, which
shall consist of a Senate and a House of Representatives.” (Section 1, Article VI.)
While there is no express provision in the fundamental law prohibiting the exercise
of legislative power by agencies other than Congress, a reading of the whole
context of the Constitution would dispel any doubt as to the constitutional intent
that the legislative power is to be exercised exclusively by Congress, subject only
to the veto power of the President of the Philippines, to the specific provisions
which allow the President of the Philippines to suspend the privileges of the writ of
habeas corpus and to place any part of the Philippines under martial law, and to
the rule-making power expressly vested by the Constitution in the Supreme Court.
There cannot be any question that the members of the Constitutional Convention
were believers in the tripartite system of government as originally enunciated by
Aristotle. Because the powers vested by our Constitution to the several
departments of the government are in the nature of grants, not a recognition of
pre-existing powers, no department of government may exercise any power or
authority not expressly granted by the Constitution or by law by virtue of express
authority of the Constitution.
EO 68 IS ESSENTIALLY LEGISLATIVE. Executive Order No. 68 establishes a
National War Crimes Office, and the power to establish government office is
essentially legislative.The order provides that persons accused as war criminals
shall be tried by military commissions. Whether such a provision is substantive or
adjective, it is clearly legislative in nature. It confers upon military commissions
jurisdiction to try all persons charged with war crimes. The power to define and
allocate jurisdiction for the prosecution of persons accused of any crime is
exclusively vested by the Constitution in Congress. It provides rules of procedure
for the conduct of trials. This provision on procedural subject constitutes a
usurpation of the rule-making power vested by the Constitution in the Supreme
Court. It authorizes military commissions to adopt additional rules of procedure. If
the President of the Philippines cannot exercise the rule-making power vested by
the Constitution in the Supreme Court, he cannot, with more reason, delegate that
power to military commissions. It appropriates the sum of P700,000 for the
expenses of the National War Crimes Office established by the said Executive
Order No. 69. This constitutes another usurpation of legislative power as the
power to vote appropriations belongs to Congress. Executive Order No. 68, is,
therefore, null and void, because, through it, the President of the Philippines
usurped powers expressly vested by the Constitution in Congress and in the
Supreme Court.
Always will b
 * bok * cj * tiff * Gem * tin *
EMERGENCY POWERS GRANTED TO THE PRES. BY COMMONWEALTH
ACT NO. 600, AS AMENDED BY COMMONWEALTH ACT NO. 620, AND
COMMONWEALTH ACT NO. 671 CANNOT BE INVOKED. Challenged to show
the constitutional or legal authority under which the President of the Philippines
issued Executive Order No. 68, respondents could not give any definite answer.
They attempted, however, to suggest that the President of the Philippines issued
Executive Order No. 68 under the emergency powers granted to him by
Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, and
Commonwealth Act No. 671 [empowering the President to declare a State of
Emergency during a period of war and authorizing him to promulgate rules] (refer
to original for copy of said laws.) The Acts cannot validly be invoked, because
they ceased to have any effect much before Executive Order No. 68 was issued
on July 29, 1947. Said Acts had elapsed upon the liberation of the Philippines
from the Japanese forces or, at the latest, when the surrender of Japan was
signed in Tokyo on September 2, 1945. Ssaid measures were enacted by the
Second National Assembly for the purpose of facing the emergency of an
impending war and of the Pacific War that finally broke out with the attack of Pearl
Harbor on December 7, 1941. We approved said extraordinary measures, by
which, under the exceptional circumstances then prevailing, legislative powers
were delegated to the President of the Philippines, by virtue of the following
provisions of the Constitution:
“In times of war or other national emergency, the Congress may by law authorize
the President, for a limited period and subject to such restrictions as it may
prescribe, to promulgate rules and regulations to carry out a declared national
policy.” (Article VI, section 26.)
It has never been the purpose of the National Assembly to extend the delegation
beyond the emergency created ‘by the war, as to extend it farther would be
violative of the express provisions of the Constitution. We are of the opinion that
there is no doubt on this question; but if there could still be any, the same should
be resolved in favor of the presumption that the National Assembly did not intend
to violate the fundamental law. Only a few months after liberation and even before
the surrender of Japan, or since the middle of 1945, the Congress started to
function normally. The President still exercising legislative power in the form of
executive orders, under the so-called emergency powers would lead to a situation
pregnant with dangers to peace and order, to the rights and liberties of the people,
and to Philippine democracy.
VIOLATIVE OF DUE PROCESS & EQUAL PROTECTION. EO No. 68 is equally
offensive to the Constitution because it violates the fundamental guarantees of the
due process and equal protection of the law. It is especially so, because it permits
the admission of many kinds of evidence by which no innocent person can afford
to get acquittal, and by which it is impossible to determine whether an accused is
guilty or not beyond all reasonable doubt. The rules of evidence adopted in
Executive Order No. 68 are a reproduction of the regulations governing the trial of
twelve criminals, issued by General Douglas MacArthur, Commander in Chief of
the United States Armed Forces in Western Pacific, for the purpose of trying,
among others, Generals Yamashita and Homma. What we said in our concurring
12
and dissenting opinion to the decision promulgated in the Yamashita case, and in
our concurring and dissenting opinion to the resolution disposing the Homma
case, are perfectly applicable to the offensive rules of evidence embodied in EO
68. Said rules of evidence are repugnant to conscience as under them no justice
can be expected.
For all the foregoing, conformably with our position in the Yamasita and Homma
cases, we vote to declare Executive Order No. 68 null and void and to grant the
petition. Petition denied.
YAMASHITA vs. STYER (Dec. 19, 1945)
Petitioner: Tomoyuki Yamashita
Respondent: Wilhelm D. Styer, Commanding General, United States Army
Forces, Western Pacific
Nature: Original action in the Supreme Court. Habeas corpus and prohibition.
Ponente: Moran, C.J.
PETITION FOR HABEAS CORPUS, PROHIBITION. Tomoyuki Yamashita was
former commanding general of the 14th army group of the Japanese Imperial
Army in the Philippines, and now charged before an American Military
Commission (MC) with the most monstrous crimes ever committed against the
Americans and Filipinos. This is his petition for habeas corpus and prohibition
against Lt. Gen. Wilhelm D. Styer. Yamashita became a prisoner of war (POW) of
the US when he surrendered, but his status was later changed when he was
confined as an accused war criminal charged before an MC constituted by Styer;
and he now asks that he be reinstated to his former POW status, and that the MC
be prohibited from further trying him, upon the following grounds:
(1) That the MC was not duly constituted, and, therefore without jurisdiction;
(2) That the Philippines cannot be considered as an occupied territory, and the
MC cannot exercise jurisdiction therein;
(3) That Spain, the "protecting power" of Japan, has not been given notice of the
impending trial against Yamashita, contrary to the provisions of the Geneva
Convention of July 27, 1929, and therefore, the MC has no jurisdiction to try him;
(4) That there is against him no charge of an offense against the laws of war; and
(5) That the rules of procedure and evidence under which the MC purports to be
acting denied him a fair trial.
ISSUE: WON his petition for habeas corpus is tenable.
HELD: NO.
Habeas corpus improper when release isn’t sought. His petition seeks no
discharge from confinement but merely his restoration to his former POW status -
to be interned, not confined. The relative difference as to the degree of
confinement in such cases is a matter of military measure, disciplinary in
character, beyond the jurisdiction of civil courts.
ISSUE: WON his petition for prohibition against Styer will prosper.
Always will b
 * bok * cj * tiff * Gem * tin *
HELD: NO.
PROHIBIYION CAN’T ISSUE VS 1 NOT MADE A PARTY. Neither may the
petition for prohibition prosper. The MC is not made party respondent in this case,
and although it may be acting, as alleged, without jurisdiction, no order may be
issued in these proceedings requiring it to refrain from trying Yamashita.
CIVIL COURTS WITHOUT JURISDICTION OVER US ARMY DURING WAR.
Furthermore, this Court has no jurisdiction to entertain the petition even if the
commission be joined as respondent. As held in Raquiza vs. Bradford, “"…an
attempt of our civil courts to exercise jurisdiction over the US Army before such
period (state of war) expires, would be considered as a violation of this country's
faith…" especially as here the person confined is an enemy charged with the most
heinous atrocities committed against Americans and Filipinos.
There is some doubt as to whether war has already ended. War is not ended
simply because hostilities have ceased. After cessation of armed hostilities,
incidents of war may remain pending which should be disposed of as in time of
war. As held in Ex parte Quirin (note – a US case), "an important incident to a
conduct of war is the adoption of measures by the military command not only to
repel and defeat the enemies but to seize and subject to disciplinary measures
those enemies who in their attempt to thwart or impede our military effort have
violated the law of war." Indeed, the power to create a MC for the trial and
punishment of war criminals is an aspect of waging war. And a MC "has
jurisdiction so long as a technical state of war continues. This includes the period
of an armistice, or military occupation, up to the effective date of a treaty of peace,
and may extend beyond, by treaty agreement." (Cowles, Trial of War Criminals by
Military Tribunals.)
ISSUE: WON the MC has jurisdiction.
HELD: YES.
THE PAYOMO DOCTRINE As held in Payomo vs. Floyd, and this is applicable in
time of war as well as in time of peace, this Court has no power to review upon
habeas corpus the proceedings of a military or naval tribunal, and that, in such
case, "the single inquiry, the test, is jurisdiction. That being established, the
habeas corpus must be denied and the petitioner remanded." (In re Grimley –
also a US case). Following this rule, we find that the MC has been validly
constituted and it has jurisdiction both over the person of the petitioner and over
the offenses with which he is charged.
MILITARY COMMANDERS WITH POWER OVER MILITARY COMMISSIONS.
The Commission has been validly constituted by Styler by order duly issued by
Gen. Douglas MacArthur, Commander in Chief, US Army Forces, Pacific, in
accordance with authority vested in him. Under paragraph 356 of the Rules of
Land Warfare, a MC for the trial and punishment of war criminals must be
designated by the belligerent. And the belligerent's representative here is none
other than Gen. MacArthur. Articles of War Nos. 12 and 15 recognize the MC
appointed by military command as an appropriate tribunal for the trial and
13
punishment of offenses against the law of war not ordinarily tried by court martial.
Under the laws of war, a military commander has an implied power to appoint and
convene a MC. This is upon the theory that since the power to create a MC is an
aspect of waging war, Military Commanders have that power unless expressly
withdrawn from them.
JURISDICTION OF THE MC. The MC thus duly constituted has jurisdiction both
over the person of Yamashita and over the offenses with which he is charged. It
has jurisdiction over his person by reason of his having fallen into the hands of the
US Army Forces. Under paragraph 347 of the Rules of Land Warfare, "the
commanders ordering the commission of such acts, or under whose authority they
are committed by their troops, may be punished by the belligerent into whose
hands they may fall."
As to the jurisdiction of the MC over war crimes, the US SC said in Ex Parte
Quirin: "From the very beginning of its history this Court has recognized and
applied the law of war as including that part of the law of nations which prescribes,
for the conduct of war, the status, rights and duties of enemy nations as well as of
enemy individuals. By the Articles of War, and especially Article 15, Congress has
explicitly provided, so far as it may constitutionally do so, that military tribunals
shall have jurisdiction to try offenders or offenses against the law of war in
appropriate cases. Congress, in addition to making rules for the government of
our Armed Forces, has thus exercised its authority to define and punish offenses
against the law of nations by sanctioning, within constitutional limitations, the
jurisdiction of MCs to try persons and offenses which, according to the rules and
precepts of the law of nations, and more particularly the law of war, are cognizable
by such tribunals."
Yamashita is charged before the MC sitting at Manila with having permitted
members of his command "to commit brutal atrocities and other high crimes
against the people of the US and of its allies and dependencies, particularly the
Philippines," (i.e. cruel and brutal massacre of civilians, devastation and
destruction of properties). These are offenses against the laws of war as
described in paragraph 347 of the Rules of Land Warfare.
ISSUE: WON the Philippines is an occupied territory of the US.
HELD: YES.
AN OCCUPIED TERRITORY. According to the Regulations Governing the Trial of
War Criminals in the Pacific, "the MC shall have jurisdiction over all of Japan and
other areas occupied by the armed forces….” The US Forces have occupied the
Philippines for the purpose of liberating the Filipino people from the shackles of
Japanese tyranny, and the creation of a MC for the trial and punishment of
Japanese war criminals is an incident of such war of liberation.
ISSUE: WON notice to Spain is required.
HELD: NO.
Always will b
 * bok * cj * tiff * Gem * tin *
NOTICE NOT A PREREQUISITE. The Geneva Convention does not state that
notice is a prerequisite to the jurisdiction of MCs appointed by the victorious
belligerent. However, the unconditional surrender of Japan and her acceptance of
the terms of the Potsdam Ultimatum are a clear waiver of such a notice. Also
Spain has severed her diplomatic relations with Japan because of atrocities
committed by the Japanese troops against Spaniards in the Philippines.
Apparently, therefore, Spain has ceased to be the protecting power of Japan.
ISSUE: WON Yamashita was denied a fair trial.
HELD: This issue cannot be reviewed in a petition for habeas corpus.
PROCEDURE, NOT PROPER. The supposed irregularities committed by the MC
in the admission of allegedly immaterial or hearsay evidence cannot divest the
commission of its jurisdiction and cannot be reviewed in a petition for habeas
corpus.
For all the foregoing, petition is hereby dismissed, without costs.
Jaranilla, Feria, De Joya, Pablo, Hilado, Bengzon, and Briones, J.J., concur.
PARAS, J. I concur in the result.
OZAETA, J., concurring and dissenting:
LEGALLY CONSTITUTED THUS WITH JURISDICTION. I concur in the dismissal
of the petition for habeas corpus and prohibition on the ground that the MC trying
Yamashita has been legally constituted, and that such tribunal has jurisdiction to
try and punish him for offenses against the law of war. (Ex parte Quirin)
RAQUIZA INAPPLICABLE. I dissent from that portion of the opinion which cites
and applies its decision in Raquiza, to the effect that an attempt of our civil courts
to exercise jurisdiction over the US Army would be considered a violation of this
country's faith. The decision in Raquiza, from which I dissented, was based mainly
on the case of Coleman vs. Tennessee in which was mentioned merely by way of
argument the rule of international law to the effect that a foreign army, permitted to
march through a friendly country to be stationed in it, by permission of its
government or sovereign, is exempt from the civil and criminal jurisdiction of the
place. After reviewing the facts and the ruling of the court in the Coleman case, I
said in my dissent:
"Thus it is clear that the rule of international law above mentioned formed no part
of the holding of the court in the said case… Neither can such rule of international
law of itself be applicable to the relation between the Philippines and the US, for
the reason that the former is still under the sovereignty of the latter. The US Army
is not foreign to the Philippines. It is here not by permission or invitation of the
Philippine Government but by right of sovereignty of the US over the Philippines...
The US has the same obligation to defend and protect the Philippines, as it has to
defend and protect Hawaii or California, from foreign invasion. The citizens of the
14
Philippines owe the same allegiance to the USA as the citizens of any territory or
State of the Union."
The rule of international law mentioned in the Coleman case and erroneously
applied by analogy in the Raquiza case, has likewise no application whatever to
the case at bar.
PERFECTO, J., concurring and dissenting:
(From the reviewer: according to Justice Perfecto, the legal basis is customary
international law, specifically IHL  the laws and customs of warfare.)
YAMASHITA SURRENDERS. Before Sept. 3, 1945, Yamashita was the
commanding general of the 14th Army Group of the Imperial Japanese Army in
the Philippines. On said date, he surrendered to the US Army at Baguio and
became a POW of the US and was interned in New Bilibid Prison, in conformity
with the provision of article 9 of the Geneva Convention, relative to the treatment
of POWs, and of paragraph 82 of the Rules of Land Warfare of the United States
War Department.
WAR CRIMINAL. On Oct. 2, Styer charged Yamashita for violation of the laws of
war, and it was alleged that between Oct. 9, 1944 to Sept. 2, 1945, Yamashita
while commander of the armed forces of Japan, unlawfully disregarded and failed
to discharge his duty as commander to control the operations of the members of
his command, permitting them to commit brutal atrocities and other high crimes
against the Americans and their allies, particularly the Filipinos. Thus Yamashita
lost his POW status and was confined as an accused war criminal.
MILITARY COMMISSION. On Oct. 1, 1945, a MC was appointed to try
Yamashita. At the same time several officers were designated to conduct the
prosecution and several others to act as defense counsel. The MC was instructed
to follow the provisions of the Sept. 24, 1945 letter, and was empowered to "make
such rules for the conduct of the proceedings as it shall deem necessary for a full
and fair trial of the person before it. Such evidence shall be admitted as would, in
the opinion of the president of the commission, have probative value to a
reasonable man and is relevant and material to the charges before the
commission…” On the same day, by command of Gen. MacArthur, Styer was
instructed to immediately proceed with Yamashita’s trial. Upon arraignment on
Oct. 8, Yamashita entered a plea of not guilty. The bill of particulars, along with the
supplemental bill of particulars, imputed 123 crimes to Yamashita. On Oct. 19, the
defense filed a motion to dismiss the case as the charge "fails to state a violation
of the laws of war by the accused, and that the commission has no jurisdiction to
try this cause." This was denied.
TRIAL. On the first day of trial, the prosecution offered in evidence an affidavit of
Naukata Utsunomia executed on Oct. 1 and subscribed and sworn to before
Captain Jerome Richard. The defense objected to the admission of the affidavit,
invoking to said effect article 25 of the Articles of War prohibiting the introduction
of depositions by the prosecution in a capital case in proceedings before a court
martial or a MC. Hearsay evidence was also offered, but the defense’s objection
to this was overruled. The defense counsel alleged then that the admission of
Always will b
 * bok * cj * tiff * Gem * tin *
hearsay evidence was against Article of War 38, the manual for courts-martial,
and the rules of evidence in criminal cases in the district courts of the US.
Yamashita alleges that violations of legal rules of evidence have continued and
are continuing during the trial. At the opening of the trial, "the prosecution stated
that no notice of impending trial had been given the protecting power of Japan by
the United States," such notice being required by article 60 of the Geneva
Convention and of paragraph 133 of the Rules of Land Warfare, US War
Department.
Yamashita maintains that his confinement and trial as a war criminal are illegal
and in violation of articles 1 and 3 of the Constitution of the US and its Fifth
Amendment, and article 3 of the Constitution of the Philippines, and of certain
provisions of the Geneva Convention.
ISSUE: WON Yamashita’s rights are violated by his prosecution (he is deprived of
his rights in this proceeding).
HELD: NO.
POWS SUBJECT TO LAWS IN FORCE IN DETAINING ARMY. The Rules of
Land Warfare provide that "at the opening of a judicial proceeding directed against
a POW the detaining power shall advise the representative of the protecting
power thereof as soon as possible, and always before the date set for the opening
of the trial.” Article VIII of the Convention respecting the laws and customs of war
on land provides: "POWs shall be subject to the laws, regulations, and orders in
force in the army of the State into whose hands they have fallen." Section 59 of
General Orders No. 100, containing instructions for the government of US armies
in the field provides: "A POW remains answerable for his crimes committed
against the captor's army or people, committed before he was captured, and for
which he has not been punished by his own authorities."
HUMANE TREATMENT OF PRISONERS FROM ANCIENT GREECE, ROME.
Many of the basic ideas which prevail today in the customs and usages of nations
and became part of the international law emerged from the human mind centuries
before the Christian Era. Such is the idea that prisoners of war are entitled to
humane treatment, that treasons of war should be discountenanced, and that
belligerents must abstain from causing harm to non-combatants.
Some examples: In 427 B.C., when Alcibiades killed most of his captives including
those who haven’t been in open hostilities against him, the Samian exiles
remonstrated him. When the Mytileneans revolted from Athens, while an
assembly initially ordered the Mytilenean males be killed, this was later revoked.
Greeks did much to humanize warfare and to remove it from the atrocities which
prevailed amongst the most of the nations of antiquity. The Roman policy was less
rigorous than the Greeks. As stated by Virgilius, "the Roman policy from the first
was, on the one hand, debellare super boo, to subdue the proud and arrogant
peoples and, on the other, parcellare subiectes, to spare those who have
submitted." A rule existed in Rome which prohibited the killing or enslaving of men
captured in conquered cities, and the devastation of the territories. Poets,
15
philosophers, artists, and men of intellectual distinction in general, though
regarded as enemies, were honored and respected. Temples, priest, and
embassies were considered inviolable. The right of sanctuary was universally
recognized. Mercy was shown to suppliant and helpless captives. Safe-conducts
were granted and respected. Burial of dead was permitted, and graves were
unmolested. It was considered wrong to cut off or poison the enemy's water
supply, or to make use of poisonous weapons.
ENTITLED TO ALL GUARANTEES ACCORDED TO PRISONERS. Impelled by
irrepressible endeavors aimed towards the ideal, by the unconquerable natural
urge for improvement, by the unquenchable thirstiness of perfection in all orders
of life, humanity has been struggling during the last two dozen centuries to
develop an international law which could answer more and more faithfully the
demands of right and justice as expressed in principles which, weakly enunciated
at first in the rudimentary juristic sense of peoples of antiquity, by the inherent
power of their universal appeal to human conscience, at last were accepted,
recognized, and consecrated by all the civilized nations of the world. Under these
principles, Yamashita is entitled to be accorded all the guarantees, protections,
and defenses that all prisoners should have, according to the customs and
usages, conventions and treaties, judicial decisions and executive
pronouncements, and generally accepted opinions of thinkers, legal philosophers
and other expounders of just rules and principles of international law. The
seriousness or unfathomable gravity of the charges against him must not be taken
into consideration in order that true justice may be administered in this case.
TREATMENT OF WAR CRIMINALS. "There is very little limitation on what a
victorious nation can do with a vanquished State at the close of a war. One
shudders to think what Germany and Japan would do if they were the victors! But
the common law of nations probably requires a fair trial of offenders against war
law as a prerequisite to punishment for alleged offenses; and the Geneva
Convention so prescribed in the case of POWs. But in the final analysis a decent
respect for the opinion of mankind and the judgment of history is, in effect, a
victorious belligerent's main limitation on its treatment of the surrendered at the
close of a war; and this is self-imposed.” (Sheldon Glueck, War Criminals).
"Formalized vengeance can bring only ephemeral satisfaction, with every
probability of ultimate regret; but vindication of law through legal process may
contribute substantially to the re-establishment of order and decency in
international relations." (Report of the Subcommittee on the Trial and Punishment
of War Crimes). “Centuries of civilization stretched between the summary slaying
of the defeated in a war, and the employment of familiar process and protections
of justice according to law to air the extent and nature of individual guilt … and in
the civilized administration of justice, even the most loathsome criminal caught
redhanded must be given his day in court and an opportunity to interpose such
defenses as he may have." (Sheldon Glueck)
TRIAL TO BE HELD WHERE THE ATROCITIES WERE DONE. The vast majority
of offenders will be tried in the domestic criminal or military tribunals of the injured
nations. President Roosevelt, in condemning the crimes committed against the
civil population in occupied lands, announced that "the time will come when the
Always will b
 * bok * cj * tiff * Gem * tin *
criminals will have to stand in courts of law in the very countries which they are
now oppressing, and to answer for their acts."
INTERNATIONAL TRIBUNAL. At the end of World War I, some American
members of the commission on responsibilities opposed the creation of an
international high tribunal on the grounds that it was unprecedented and that there
existed no international statute or convention making violations of the laws and
customs of warfare international crimes, defining such offenses more specifically
than the definitions to be found in the prohibitions of the unwritten or written law of
nations, affixing a specific punishment to each crime, and giving jurisdiction to a
world court. But Dr. Glueck believes that:
“Provided the international tribunal affords as adequate a trial as the accused
would have had in the court of any injured belligerent, he has no valid ground for
complaint… all courts were at one time unprecedented. The problems presented
by our epoch are unprecedented… Can history show a better age than our own to
initiate a series of much-needed precedents? Few symbols of this new era which
heralds the neighborly cooperation of civilized peoples in the vindication of the
laws of civilized nations would be more impressive than an international criminal
court, in which the plaintiff would be the world community… The international
criminal court would be a more vivid symbol of the reign of justice of an
international plane than even the permanent court at The Hague has been. In
domestic polity, the administration of criminal justice is the strongest pillar of
government. The doing of justice on an international plane and under international
auspices is even more important. It is indispensable to the survival, in the
intercourse of nations, of the very traditions of law and justice… The peerless and
efficient administration of justice in the case of Axis war criminals is today
indispensable as a token to the peoples of the world, a sign that crimes committed
by one country's subject against the people of another member of the family of
nations will be relentlessly punished even though they run into huge numbers,
were committed by men in uniform, and are instigated by a Fuehrer endowed by
himself and his intoxicated followers with the attributes of a demigod."
"Adequate law for use by an international court now exists; and its enforcement
by such a tribunal would violate no fundamental tenets of civilized nations. The
law for an international tribunal can be drawn from the rich reservoirs of common
and conventional law of nations and the principles, doctrines, and standards of
criminal law that constitute the common denominator of all civilized penal codes…
The punishment … to be imposed by the international tribunal could be based
either upon the punishments permitted by the law of nations in the case of piracy
and violations of the laws and customs of warfare or upon those provided for
crimes of similar nature and gravity by the law of the accusing State, taking into
account, also, where necessary in individual instances, the law of the defendant's
States."
ISSUE: WON Yamashita is charged with offenses against the laws of war.
HELD: YES.
16
NO SURPRISE. Yamashita cannot allege ignorance of the fact that the criminal
acts alleged in the specified charges against him are punishable by law, even in
Japan. Since 1882 the Japanese Government had been enforcing a Criminal
Code based on the Code of Napoleon of 1811, which punishes arson, rape, and
murder/homicide. These offenses and many others, punished by our Penal Code,
are known to the Japanese as crimes.
WHAT ARE WAR CRIMES. From the Lauterpacht edition of Oppenheim's
International Law:
"SEC. 251. … war crimes are such hostile or other acts of soldiers or other
individuals as may be punished by the enemy on capture of the offenders. They
include acts contrary to International Law perpetrated in violation of the law of the
criminal's own State… as well as criminal acts contrary to the laws of war
committed by order and on behalf of the enemy State. To that extent the notion of
war crimes is based on the view that States and their organs are subject to
criminal responsibility under International Law.
"SEC. 253. The fact that a rule of warfare has been violated in pursuance of an
order of the belligerent Government or of an individual belligerent commander
does not deprive the act in question of its character as a war crime; neither does
it, in principle, confer upon the perpetrator immunity from punishment by the
injured belligerent… Undoubtedly, a Court confronted with the plea of superior
orders adduced in justification of a war crime is bound to take into consideration
the fact that obedience to military orders, not obviously unlawful, is the duty of
every member of the armed forces and that the latter cannot, in conditions of war
discipline, be expected to weigh scrupulously the legal merits of the order
received; that rules of warfare are often controversial; and that an act otherwise
amounting to a war crime may have been executed in obedience to orders
conceived as a measure of reprisals. Such circumstances are probably in
themselves sufficient to divest the act of the stigma of a war crime…However,
subject to these qualifications, the question is governed by the major principle that
members of the armed forces are bound to obey lawful orders only and that they
cannot therefore escape liability if, in obedience to a command, they commit acts
which both violate unchallenged rules of warfare and outrage the general
sentiment of humanity. To limit liability to the person responsible for the order may
frequently amount, in practice, to concentrating responsibility on the head of the
State whose accountability, from the point of view of both international and
constitutional law, is controversial.
"SEC. 257. All war crimes may be punished with death, but belligerents may, of
course, inflict a more lenient punishment, or commute a sentence of death into a
more lenient penalty. If this be done and imprisonment take the place of capital
punishment, the question arises whether persons so imprisoned must be released
at the end of the war, although their term of imprisonment has not yet expired.
Some answer this question in the affirmative, maintaining that it could never be
lawful to inflict a penalty extending beyond the duration of the war. But it is
believed that the question has to be answered in the negative. If a belligerent has
a right to pronounce a sentence of a capital punishment, it is obvious that he may
Always will b
 * bok * cj * tiff * Gem * tin *
select a more lenient penalty and carry it out even beyond the duration of the war.
It would in no wise be in the interest of humanity to deny this right, for otherwise
belligerents would be tempted always to pronounce and carry out a sentence of
capital punishment in the interest of self-preservation.
"SEC. 257a. The right of the belligerent to punish, during the war, such war
criminals as fall into his hands is a well-recognized principle of International Law.
It is a right of which he may effectively avail himself after he has occupied all or
part of enemy territory, and is thus in the position to seize war criminals who
happen to be there. He may, as a condition of the armistice, impose upon the
authorities of the defeated State the duty to hand over persons charged with
having committed war crimes, regardless of whether such persons are present in
the territory actually occupied by him or in the territory which, at the successful
end of hostilities, he is in the position to occupy. For in both cases the accused
are, in effect, in his power. And although normally the Treaty of Peace brings to an
end the right to prosecute war criminals, no rule of International Law prevents the
victorious belligerent from imposing upon the defeated State the duty, as one of
the provisions of the armistice or of the Peace Treaty, to surrender for trial
persons accused of war crimes. In this, as in other matters, the will of the victor is
the law of the Treaty. It is not to be expected that he will concede to the defeated
State the corresponding right to punish any war criminals of the victorious
belligerent. The resulting inequality is the unavoidable concomitant of the existing
imperfections of international organization and of the institution of war itself. But
the victorious belligerent may achieve a substantial approximation to justice by
making full provision for a fair trial of the surrendered enemy nationals, and by
offering to try before his tribunals such members of his own armed forces as are
accused of war crimes. Such conduct may go a long way towards reducing
substantially the inequality of treatment as between the victor and the
vanquished."
LAW OF NATIONS NOT YET A COHERENT, FIXED SYSTEM. The permissible
acts of warfare are strictly limited. The treaties entered into between members of
the family of nations are but specific definitions and reinforcements of the general
common law of nations, the "unwritten" rules of warfare, which for centuries have
limited the method and manner of conducting wars. The common law of nations,
by which all states are and must be bound, dictates that warfare shall be carried
on only in accordance with basic considerations of humanity and chivalry.
As Dr. Glueck stated, “the law of nations has a long way to go before it can claim
to be a coherent and fixed system. Its relevant tenets were developed under the
presupposition that members of the community of nations are governed by self-
imposed restraints in accordance with international law; but the emergence of
states with a national policy of deliberate lawlessness and with their invasion of
'total war in the service of a program of world enslavement, compels a realistic
modification of inadequate doctrines and principles of law.” After the first World
War, the recommendation that a high tribunal (which would apply the principles of
the law of nations, which is the result of established usages among civilized
peoples) which would sentence convicted war criminals to such punishment as
could be imposed for the offense by any country represented in the tribunal or by
17
the country of the convicted person. This was rejected as (American and
Japanese) representatives asked whether international law recognized a penal
law which was applicable to those found guilty. But in the Treaty of Versailles there
were inserted the punitive articles recognizing the right of the allies: to bring those
accused of violating laws and customs of war before military tribunals; to sentence
the guilty to "punishments laid down by law;" and providing for the trial of the
accused in military tribunals of the power against whose nationals the alleged
crimes were committed.
From all the foregoing, with regards to the petition for a writ of habeas corpus, we
conclude:
(1) That Yamashita, if he is responsible for the acts imputed to him in the charges
filed before the MC can properly and justly be prosecuted and punished for them.
(2) That the fact that he was the Commander in Chief of a belligerent army does
not exempt him from criminal liability either for violations of international law or for
the commission of crimes defined and punishable under the laws of the country
where committed.
(3) That his rights and privileges as a POW, under the Geneva Convention, are
not incompatible with not are violated by his prosecution for the international and
domestic crimes committed by him.
(4) That under the principles of natural law, all persons guilty of such crimes are
amenable to be arraigned before a court of justice and, after a fair trial, if found
guilty, should bear the full weight of the law.
(5) That Yamashita can be prosecuted before the Philippine civil courts in the like
manner as a common criminal and be punished under the provisions of the
Philippine Penal Code.
(6) That the MC set up to try him possesses a jurisdiction which is concurrent with
that of the Philippine civil courts, and the choice of the competent tribunal where
he should be tried, which is a mere procedural technicality, is left to the wise
discretion of the officials in charge of the prosecution.
(7) That in violation of the law of nations, the offended party is the people of the
whole world, and the case against him could be properly entitled as "Humanity vs.
Yamashita," and no person in position to prosecute the violators can honestly
shirk the responsibility of relentlessly prosecuting them, lest he be branded with
the stigma of complicity.
(8) That the absence of a codified International Penal Code or of a criminal law
adopted by the comity of nations, with specific penalties for specific and well-
defined international crimes, is not a bar to the prosecution of war criminals, as all
civilized nations have provided in their laws the necessary punishment for war
crimes which, for their very nature, cease to be lawful acts of war, and become
ordinary crimes with the extraordinary character of having been committed in
connection with war, which should be considered as an aggravating circumstance.
ISSUE: WON the SC has jurisdiction to take cognizance of this case.
HELD: YES.
EXERCISE OF JUDICIAL POWER. The petition pertains to a judicial case
wherein justice is to be administered. It is a criminal case initiated for Yamashita’s
Always will b
 * bok * cj * tiff * Gem * tin *
prosecution and punishment. The case calls for the exercise of the judicial power,
one of the three government powers. Under the Constitution, judicial power is
primarily vested in the Supreme Court, which can exclusively exercise the whole
power. But it also authorizes the enactment of laws sharing the power to inferior
courts, which include all other courts and tribunals of all description, whether
ordinary or extraordinary, whether civil or criminal, whether industrial or military,
whether designated as "courts" or simply as "commissions." The Constitution (Art.
VIII, Sec. 2) provides that the Congress is powerless to abolish, to review, revise,
reverse, modify, or affirm any and all actuations of judicial nature of Styer and the
MC before whom Yamashita is tried for his life. In fact, this Court's jurisdiction
extends, not only to courts and judicial institutions, but to all persons and agencies
which form part of the whole machinery of the administration of justice, in so far as
is necessary to the administration of justice.
JURISDICTION OVER THE PARTIES. We have jurisdiction over the person
Styer, not as to the discharge of his military functions and duties, but regarding his
official acts in connection with the administration of justice in the criminal case
against Yamashita, and that jurisdiction became effective despite his refusal to
sign receipt for the summons and his subordinate officers’ refusal to accept said
summons. No one questions our jurisdiction over the person of Yamashita, he
having voluntarily submitted himself to it by his petition. With respect to the MC, it
is a proper party respondent and Yamashita should have included it as among the
party respondents. But this omission is just a technical error of no vital
consequence, because under the judicial rules, we can order the inclusion and the
summoning of said military commission.
Regarding the fear raised by the amicus curiae that this Court’s orders might be
disregarded by the concerned military officers (i.e. Styer’s refusal to receive
summons), the answer is simple. Quoting Raquiza: “…No one and nothing in the
whole world… shall be powerful enough to make us flinch from complying with our
plain duty as Justices of the Supreme Court. We must do our duty as our
conscience dictates, without fear nor favor. It is our duty to make reason and right
supreme, regardless of consequences. Law and justice might suffer setbacks,
endure eclipses, but at the end they shall reign with all the splendors of real
majesty." We recognize no one to be above the law. Mere military might cannot
change and nullify the course of justice. In the long run, everybody must have to
bow and prostrate himself before the supreme majesty of the law.
ISSUE: WON the petition for habeas corpus is proper.
HELD: NO.
NOT A PROPER QUESTION. In praying for a writ of habeas corpus, he wants us
to order that he be returned from the status of an accused war criminal to that of a
POW. He is not seeking release from confinement, thus the petition must be
denied. The purpose of the writ is to restore liberty to a person who is being
deprived of it without due process of law. Such is not the case here. He does not
complain of any illegal detention or deprivation of personal freedom. He is
deprived of his liberty because he is, according to his own allegation, a POW.
Whether or not he should be accused as a war criminal is not a proper question to
18
be raised in habeas corpus proceeding. The fact that he is an accused war
criminal does not change his status as a war prisoner. He remains to be so,
whether he is prosecuted as a war criminal or not. Not having lost his status as a
war prisoner because he was placed and regarded as a war criminal, there is no
reason for ordering his reversion to a status which he did not cease to retain since
his surrender or capture.
ISSUE: WON the Military Commission has jurisdiction.
HELD: YES.
MACARTHUR WITH AUTHORITY. The MC conducting the trial has jurisdiction to
try him for the crimes alleged in the 123 items in the specified charges filed
against him. From Yamashita’s very allegations and exhibits it appears that the
MC was created and organized by orders of Gen. MacArthur, who has authority to
convene an MC.
NOT PREREQUISITES. Yamashita contends that the absence of martial law,
military government, and active hostilities in the Philippines means that there was
no authority to appoint the MC, thus it lacks jurisdiction. We don’t agree. These
are not prerequisites for exercising the power of appointing a MC. In the absence
of pre-established tribunals clothed with authority to try war criminals, MCs may
be established for said purpose, and, unless organized by the Chief Executive
himself, they may be organized by the military Commander in Chief (namely
MacArthur), representing the Chief Executive.
ISSUE: WON the rules of procedure and evidence followed by the Military
Commission denied Yamashita a fair trial.
HELD: YES.
COLLECTIVE RESPONSIBILITY. Several features of the regulations governing
the trial of war criminals must be challenged. Section 4-b on Jurisdiction provides:
"Any military or naval unit or any official or unofficial group or organization,
whether or not still in existence, may be charged with criminal acts or complicity
therein and tried by a Military Commission." This advances the principle of
collective responsibility in contrast to the principle of individualized criminal
responsibility. Under the principle of individualized criminal responsibility, no
person may be convicted of any offense without due process of law and without
proving in said process, in which he should also enjoy the guarantee of equal
protection of the laws, that he is personally guilty of the offense. Under the
principle of collective criminal responsibility, any member of any social group or
organization may be convicted without any hearing if, in a process where he did
not have his day in court, the social group or any other member thereof is found
guilty of an offense (ex. when a barrio was suspected of harboring guerrillas, all
the houses were burned).This principle violates the constitutional guarantee of
due process of law and, therefore, we should have issued a writ of prohibition
enjoining the Military Commission from exercising this unconstitutional jurisdiction.
VIOLATE DUE PROCESS, RIGHT TO MEET WITNESSES. Section 16 on
Evidence provides what may be admitted as evidence: "Any document which
Always will b
 * bok * cj * tiff * Gem * tin *
appears to the commission to have been signed or issued officially by any officer,
department, agency, or member of the armed forces of any government, without
proof of the signature or of the issuance of the document." This is a denial of the
due process of law constitutionally guaranteed to all persons. The authenticity or
genuineness of a document is an essential element before it may be admitted as
evidence. Proof of signature or of the issuance of the document is essential to
show its genuineness.
The following may also be admitted as evidence according to section 16 (3):
"Affidavits, depositions, or other statements taken by an officer detailed for that
purpose by military authority" And also under 16(4): "Any diary, letter or other
document appearing to the commission to contain information relating to the
charge.” These are clear violations of the constitutional guarantee that in all
criminal prosecutions the accused shall enjoy the right to meet the witnesses face
to face. The admission of the evidence above-mentioned must be prohibited, and
that a writ of prohibition issued by this Court is a proper remedy.
HEARSAY AS EVIDENCE. Section 16-d provides: "If the accused is charged with
an offense involving concerted criminal action upon the part of a military or naval
unit, or any group or organization, evidence which has been given previously at a
trial of any other member of that unit, group or organization, relative to that
concerted offense, may be received as prima facie evidence that the accused
likewise is guilty of that offense." In section 16-e, the objectionable feature of a
hearsay evidence is aggravated by the adherence to the principle of collective
criminal responsibility. It provides: "The findings and judgment of a commission in
any trial of a unit, group or organization with respect to the criminal character,
purpose or activities thereof shall be given full faith and credit in any subsequent
trial by that or any other commission of an individual person charged with criminal
responsibility through membership in that unit, group or organization. Upon proof
of membership in such unit, group or organization convicted by a commission, the
burden of proof shall shift to the accused to establish any mitigating
circumstances relating to his membership or participation therein."
RIGHTS FOR ALL. Yamashita is entitled to all the safeguards of a fair trial. The
fundamental rights and freedoms guaranteed in the Charter of the United Nations
are guaranteed to all human beings, without exception. Quoting Pres. Truman,
“Liberty knows no race, creed or class in our country or in the world… Triumph
over the enemy has not dispelled every difficulty. Many vital and far-reaching
decisions await us as we strive for a just and enduring peace. We will not fail if we
preserve, in our own land and throughout the world, the same devotion to the
essential freedoms and rights of mankind which sustained us throughout the way
and brought us final victory."
PERFECTO PONTIFICATES. If Yamashita is tried and convicted under a process
in which some of the recognized essential guarantees for a fair trial are violated, it
would produce a result opposite that expected by those who are following up the
trials of all war criminals; the arousing of a deep-rooted universal conviction that
law must be supreme and that justice should be equally administered to each and
every member of humanity. The peoples of all nations who are keenly watching
19
Yamashita’s prosecution should be convinced, by conclusive evidence, that said
prosecution is not a mere parody of the administration of justice, devised to
disguise the primitive impulses of vengeance and retaliation, the instinctive urge
to crush at all costs, no matter what the means, a hated fallen enemy. The
prosecution, trial, and conviction of Yamashita must impress all the peoples of the
world that the principle of law is paramount, and supersedes and wipes out all
other considerations in dealing with war or common criminals. Otherwise, their
faith in the supremacy of law as the invulnerable bulwark of all fundamental
human rights will be shaken, and the moral position of the victorious United
Nations, the ethical value of the grandiose pronouncements of their great leaders,
and the profound significance of the lofty ideals for which millions of their soldiers
have fought and died, will be weakened and diminished to such an extent as to
make barren all the tremendous sacrifices made by so many countries and so
many peoples in the last global hecatomb.
From all the foregoing, when the resolution to dispose of this case was put to a
vote, we concurred in the denial of the petition for a writ of habeas corpus, and we
voted for the granting of the writ of prohibition in order that the objectionable
features in the trial before the Military Commission may be eliminated, so that
Yamashita may be given the full justice due to all human beings.
NORTH SEA CONTINENTAL SHELF CASES
(Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands)
International Court of Justice, February 20, 1969.
Note: reference to paragraph # (i.e. par. 12) indicates the numbered paragraphs
in the original, if you want the complete text. The 3 maps referred to are also in
the original. D & N means Denmark and the Netherlands.
NATURE OF ACTION. By the 2 Special Agreements respectively concluded
between the Kingdom of Denmark and the Federal Republic of Germany, and
between the Federal Republic and the Kingdom of the Netherlands, the Parties
have submitted to the Court certain differences concerning 'the delimitation as
between the Parties of the areas of the continental shelf in the North Sea which
appertain to each of them'-with the exception of those areas, situated in the
immediate vicinity of the coast, which have already been the subject of
delimitation by two agreements dated Dec. 1, 1964, and June 9, 1965, concluded
in the one case between the Federal Republic and the Netherlands, and in the
other between the Federal Republic and Denmark. It is in respect of the
delimitation of the continental shelf areas lying beyond and to seaward of those
affected by the partial boundaries thus established, that the Court is requested by
each of the two Special Agreements to decide what are the applicable 'principles
and rules of international law'. The Court is not asked actually to delimit the further
boundaries which will be involved, this task being reserved by the Special
Agreements to the Parties, which undertake to effect such a delimitation 'by
agreement in pursuance of the decision requested from the ... Court'-that is to
Always will b
 * bok * cj * tiff * Gem * tin *
say on the basis of, and in accordance with, the principles and rules of
international law found by the Court to be applicable.
GERMANY’S ARGUMENT. “The delimitation of the continental shelf between the
Parties in the North Sea is governed by the principle that each coastal State is
entitled to a just and equitable share.” The method of determining continental
shelf boundaries by the equidistance method, in conformity with the principle of
Article 6, paragraph 2, of the Continental Shelf Convention, had not become
customary international law and was not under the circumstances the appropriate
method. The equidistance method could not be used where it would not achieve a
just and equitable apportionment of the shelf.
1. The delimitation of the continental shelf between the Parties in the North Sea is
governed by the principle that each coastal State is entitled to a just and equitable
share.
2. (a) The method of determining boundaries of the continental shelf in such a
way that every point of the boundary is equidistant from the nearest points of the
baselines from which the breadth of the territorial sea of each State is measured
(equidistance method) is not a rule of customary international law.
(b) The rule contained in the second sentence of paragraph 2 of Article 6 of the
Continental Shelf Convention, prescribing that in the absence of agreement, and
unless another boundary is justified by special circumstances, the boundary shall
be determined by application of the principle of equidistance, has not become
customary international law.
(c) Even if the rule under (b) would be applicable between the Parties, special
circumstances within the meaning of that rule would exclude the application of the
equidistance method in the present case.
3. (a) The equidistance method cannot be used for the delimitation of the
continental shelf unless it is established by agreement, arbitration, or otherwise,
that it will achieve a just and equitable apportionment of the continental shelf
among the States concerned.
(b) As to the delimitation of the continental shelf between the Parties in the North
Sea, the Kingdom of Denmark and the Kingdom of the Netherlands cannot rely on
the application of the equidistance method, since it would not lead to an equitable
apportionment.
4. Consequently, the delimitation of the continental shelf in the North Sea between
the Parties is a matter which has to be settled by agreement. This agreement
should apportion a just and equitable share to each of the Parties in the light of all
factors relevant in this respect.'
DENMARK AND NETHERLANDS’ ARGUMENT. The delimitation should be
governed by the principle of Art. 6, par. 2, and that where the Parties were in
disagreement as to the boundary and special circumstances did not justify
another boundary, then “the boundary between them is to be determined by the
application of the principle of equidistance from the nearest points of the baselines
from which the breadth of the territorial sea of each State is measured. The
boundary should be determined “on the basis of the exclusive rights of each Party
over the continental shelf adjacent to its coast and of the principle that the
20
boundary is to leave to each Party every point of the continental shelf which lies
nearer to its coast than to the coast of the other Party.”
FEATURES OF THE NORTH SEA. Per Art. 4 of the North Sea Policing of
Fisheries Convention of May 6, 1882, the North Sea, which lies between
continental Europe and Great Britain in the east-west direction, is roughly oval in
shape and stretches from the straits of Dover northwards to a parallel drawn
between a point immediately north of the Shetland Islands and the mouth of the
Sogne Fiord in Norway, about 75 km above Bergen, beyond which is the North
Atlantic Ocean. In the extreme northwest, it is bounded by a line connecting the
Orkney and Shetland island groups; while on its north-eastern side, the line
separating it from the entrances to the Baltic Sea lies between Hanstholm at the
north-west point of Denmark, and Lindesnes at the southern tip of Norway.
Eastward of this line the Skagerrak begins. Thus, the North Sea has to some
extent the general look of an enclosed sea without actually being one. Round its
shores are situated, on its eastern side and starting from the north, Norway,
Denmark, the Federal Republic of Germany, the Netherlands, Belgium and
France; while the whole western side is taken up by Great Britain, together with
the island groups of the Orkneys and Shetlands. From this it will be seen that the
continental shelf of the Federal Republic is situated between those of Denmark
and the Netherlands.
SURROUNDINGS. The waters of the North Sea are shallow, and the whole
seabed consists of continental shelf at a depth of less than 200 metres, except for
the formation known as the Norwegian Trough, a belt of water 200-650 metres
deep, fringing the southern and south-western coasts of Norway to a width
averaging about 80-100 km. Much the greater part of this continental shelf has
already been the subject of delimitation by a series of agreements concluded
between the UK (which, as stated, lies along the whole western side of it) and
certain of the States on the eastern side, namely Norway, Denmark and the
Netherlands. These 3 delimitations were carried out by the drawing of what are
known as 'median lines' which, for immediate present purposes, may be
described as boundaries drawn between the continental shelf areas of 'opposite'
States, dividing the intervening spaces equally between them. These lines are
shown on Map 1 on page 594, together with a similar line, also established by
agreement, drawn between the shelf areas of Norway and Denmark. Theoretically
it would be possible also to draw the following median lines in the North Sea,
namely UK/Federal Republic (which would lie east of the present line UK/Norway-
Denmark-Netherlands); Norway/Federal Republic (which would lie south of the
present line Norway/Denmark); and Norway/Netherlands (which would lie north of
whatever line is eventually determined to be the continental shelf boundary
between the Federal Republic and the Netherlands). Even if these median lines
were drawn however, the question would arise whether the UK, Norway and the
Netherlands could take advantage of them as against the parties to the existing
delimitations, since these lines would, it seems, in each case lie beyond (i.e.,
respectively to the east, south and north of) the boundaries already effective
under the existing agreements at present in force (see Map 2 on page 595).
Always will b
 * bok * cj * tiff * Gem * tin *
BOUNDARIES. In addition to the partial boundary lines FederalRepublic/Denmark
and Federal Republic/Netherlands, which, as mentioned in par. 1 above, were
respectively established by the agreements of June 9, 1965 and Dec. 1, 1964,
and which are shown as lines A-B and C-D on Map 3 on page 596, another line
has been drawn in this area, namely that represented by the line E-F on that map.
This line, which divides areas respectively untimed (to the north of it) by Denmark,
and (to the south of it) by the Netherlands, is the outcome of an agreement
between those two countries dated Mar. 31, 1966, reflecting the view taken by
them as to what are the correct boundary lines between their respective
continental shelf areas and that of the Federal Republic, beyond the partial
boundaries A-B and C-D already drawn. These further and unagreed boundaries
to seaward, are shown on Map 3 by means of the dotted lines B-E and D-E. They
are the lines, the correctness of which in law the Court is in effect, though
indirectly, called upon to determine. Also shown on Map 3 are the two pecked
lines B-F and D-F, representing approximately the boundaries which the Federal
Republic would have wished to obtain in the course of the negotiations that took
place between the Federal Republic and the other two Parties prior to the
submission of the matter to the Court. The nature of these negotiations must now
be described.
EQUIDISTANCE METHOD. Under the agreements of December 1964 and June
1965, already mentioned, the partial boundaries represented by the map lines A-B
and C-D had, according to the information furnished to the Court by the Parties,
been drawn mainly by application of the principle of equidistance, using that term
as denoting the abstract concept of equidistance. A line so drawn, known as an
'equidistance line', may be described as one which leaves to each of the parties
concerned all those portions of the continental shelf that are nearer to a point on
its own coast than they are to any point on the coast of the other party. An
equidistance line may consist either of a 'median' line between 'opposite' States,
or of a 'lateral' line between 'adjacent' States. In certain geographical
configurations of which the Parties furnished examples, a given equidistance line
may partake in varying degree of the nature both of a median and of a lateral line.
There exists nevertheless a distinction to be drawn between the two, which will be
mentioned in its place.
NEGOTIATIONS FAIL. Negotiations between the Parties for the prolongation of
the partial boundaries broke down mainly because Denmark and the Netherlands
respectively wished this prolongation also to be effected on the basis of the
equidistance principle,-and this would have resulted in the dotted lines B- E and
D-E, shown on Map 3; whereas the Federal Republic considered that such an
outcome would be inequitable because it would unduly curtail what the Republic
believed should be its proper share of continental shelf area, on the basis of
proportionality to the length of its North Sea coastline. It will be observed that
neither of the lines in question, taken by itself, would produce this effect, but only
both of them together-an element regarded by Denmark and the Netherlands as
irrelevant to what they viewed as being 2 separate and self-contained
delimitations, each of which should be carried out without reference to the other.
21
PROBLEM: UNEQUAL SHARES. The reason for the result that would be
produced by the two lines B-E and D-E, taken conjointly, is that in the case of a
concave or recessing coast such as that of the Federal Republic on the North
Sea, the effect of the use of the equidistance method is to pull the line of the
boundary inwards, in the direction of the concavity. Consequently, where two
such lines are drawn at different points on a concave coast, they will, if the
curvature is pronounced, inevitably meet at a relatively short distance from the
coast, thus causing the continental shelf area they enclose, to take the form
approximately of a triangle with its apex to seaward and, as it was put on behalf of
the Federal Republic, 'cutting off' the coastal State from the further areas of the
continental shelf outside of and beyond this triangle. The effect of concavity could
of course equally be produced for a country with a straight coastline if the coasts
of adjacent countries protruded immediately on either side of it. In contrast to this,
the effect of coastal projections, or of convex or outwardly curving coasts such as
are, to a moderate extent, those of Denmark and the Netherlands, is to cause
boundary lines drawn on an equidistance basis to leave the coast on divergent
courses, thus having a widening tendency on the area of continental shelf off that
coast. These two distinct effects, which are shown in sketches I-III to be found on
page 16, are directly attributable to the use of the equidistance method of
delimiting continental shelf boundaries off recessing or projecting coasts. It goes
without saying that on these types of coasts the equidistance method produces
exactly similar effects in the delimitation of the lateral boundaries of the territorial
sea of the States concerned. However, owing to the very close proximity of such
waters to the coasts concerned, these effects are much less marked and may be
very slight,-and there are other aspects involved, which will be considered in their
place. It will suffice to mention here that, for instance, a deviation from a line
drawn perpendicular to the general direction of the coast, of only 5 km, at a
distance of about 5 km from that coast, will grow into one of over 30 at a distance
of over 100 km.
COURT ACTION. After the negotiations, separately held between the Federal
Republic and the other 2 Parties respectively, had in each case, failed to result in
any agreement about the delimitation of the boundary extending beyond the
partial one already agreed, tripartite talks between all the Parties took place in
The Hague in February-March 1966, in Bonn in May and again in Copenhagen in
August. These also proving fruitless, it was then decided to submit the matter to
the Court. In the meantime the Governments of Denmark and the Netherlands
had, by means of the agreement of Mar. 31, 1966 (par. 5), proceeded to a
delimitation as between themselves of the continental shelf areas lying between
the apex of the triangle notionally ascribed by them to the Federal Republic (point
E on Map 3) and the median line already drawn in the North Sea, by means of a
boundary drawn on equidistance principles, meeting that line at the point marked
F on Map 3. On May 25, 1966, the Government of the Federal Republic, taking
the view that this delimitation was res inter alios acta, notified the Governments of
Denmark and the Netherlands, by means of an aide-memoire, that the agreement
thus concluded could not 'have any effect on the question of the delimitation of the
German-Netherlands or the German-Danish parts of the continental shelf in the
North Sea'.
Always will b
 * bok * cj * tiff * Gem * tin *
In pursuance of the tripartite arrangements that had been made at Bonn and
Copenhagen, Special Agreements for the submission to the Court of the
differences involved were initialed in Aug. 1966 and signed on Feb. 2, 1967. By a
tripartite Protocol signed the same day it was provided (a) that the Government of
the Kingdom of the Netherlands would notify the 2 Special Agreements to the
Court, in accordance with Art. 40, par. 1, of the Court's Statute, together with the
text of the Protocol itself; (b) that after such notification, the Parties would ask the
Court to join the two cases; and (c) that for the purpose of the appointment of a
judge ad hoc, the Kingdoms of Denmark and the Netherlands should be
considered as being in the same interest within the meaning of Art. 31, par. 5, of
the Court's Statute. Following upon these communications, duly made to it in the
implementation of the Protocol, the Court, by an Order dated Apr. 26, 1968,
declared Denmark and the Netherlands to be in the same interest, and joined the
proceedings in the 2 cases.
DENMARK & NETHERLANDS. The whole matter is governed by a mandatory
rule of law which, reflecting the language of Art. 6 of the Convention on the
Continental Shelf concluded at Geneva on Apr. 29, 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,-an
equidistance line being, it will be recalled, a line every point on which is the same
distance away from whatever point is nearest to it on the coast of each of the
countries concerned-or rather, strictly, on the baseline of the territorial sea along
that coast. As regards what constitutes 'special circumstances', all that need be
said at this stage is that according to the view put forward on behalf of Denmark
and the Netherlands, the configuration of the German North Sea coast, its
recessive character, and the fact that it makes nearly a right-angled bend in mid-
course, would not of itself constitute, for either of the two boundary lines
concerned, a special circumstance calling for or warranting a departure from the
equidistance method of delimitation: only the presence of some special feature,
minor in itself-such as an islet or small protuberance-but so placed as to produce
a disproportionately distorting effect on an otherwise acceptable boundary line
would, so it was claimed, possess this character.
THEIR BASIS. These various contentions, together with the view that a rule of
equidistance-special circumstances is binding on the Federal Republic, are
founded by Denmark and the Netherlands partly on the 1958 Geneva Convention
on the Continental Shelf already mentioned (preceding paragraph), and partly on
general considerations of law relating to the continental shelf, lying outside this
Convention. Similar considerations are equally put forward to found the
contention that the delimitation on an equidistance basis of the line E-F (Map 3)
by the Netherlands-Danish agreement of Mar. 31, 1966 (par. 5 above) is valid
erga omnes, and must be respected by the Federal Republic unless it can
demonstrate the existence of juridically relevant 'special circumstances'.
22
GERMANY. While recognizing the utility of equidistance as a method of
delimitation, and that it can in many cases be employed appropriately and with
advantage, denies its obligatory character for States not parties to the Geneva
Convention, and contends that the correct rule to be applied, at any rate in such
circumstances as those of the North Sea, is one according to which each of the
States concerned should have a 'just and equitable share' of the available
continental shelf, in proportion to the length of its coastline or sea-frontage. It was
also contended that in a sea shaped as is the North Sea, the whole bed of which,
except for the Norwegian Trough, consists of continental shelf at a depth of less
than 200 metres, and where the situation of the circumjacent States causes a
natural convergence of their respective continental shelf areas, towards a central
point situated on the median line of the whole seabed-or at any rate in those
localities where this is the case-each of the States concerned is entitled to a
continental shelf area extending up to this central point (in effect a sector), or at
least extending to the median line at some point or other. In this way the 'cut-off'
effect, of which the Federal Republic complains, caused, as explained in par. 8, by
the drawing of equidistance lines at the two ends of an inward curving or recessed
coast, would be avoided. As a means of giving effect to these ideas, it proposed
the method of the 'coastal front', or facade, constituted by a straight baseline
joining these ends, upon which the necessary geometrical constructions would be
erected. Alternatively, the Federal Republic claimed that if, contrary to its main
contention, the equidistance method was held to be applicable, then the
configuration of the German North Sea coast constituted a 'special circumstance'
such as to justify a departure from that method of delimitation in this particular
case. It said that the claim for a just and equitable share did not in any way
involve asking the Court to give a decision ex aequo et bono (which, having
regard to the terms of par. 2 of Art. 38 of the Court's Statute, would not be
possible without the consent of the Parties),-for the principle of the just and
equitable share was one of the recognized general principles of law which, by
virtue of par. 1 (c) of the same Article, the Court was entitled to apply as a matter
of the justitia distributiva which entered into all legal systems. It appeared,
moreover, that whatever its underlying motivation, the claim of the Federal
Republic was, at least ostensibly, to a just and equitable share of the space
involved, rather than to a share of the natural resources as such, mineral or other,
to be found in it, the location of which could not in any case be fully ascertained at
present.
ISSUE: What principles and rules of international law are applicable to the
delimitation of the areas of continental shelf involved?
HELD: 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 circumstances basis. A rule was of course
embodied in Art. 6 of the Convention, but as a purely conventional rule. Whether
it has since acquired a broader basis remains to be seen: qua conventional rule
however, as has already been concluded, it is not opposable to the Federal
Republic.
Always will b
 * bok * cj * tiff * Gem * tin *
DELIMITATION DEFINED. Delimitation is a process which involves establishing
the boundaries of an area already, in principle, appertaining to the coastal State
and not the determination de novo of such an area. Delimitation in an equitable
manner is one thing, but not the same thing as awarding a just and equitable
share of a previously undelimited area, even though in a number of cases the
results may be comparable, or even identical.
COURT REJECTS GERMANY’S POINT. It considers that, having regard both to
the language of the Special Agreements and to more general considerations of
law relating to the regime of the continental shelf, its task in the present
proceedings relates essentially to the delimitation and not the apportionment of
the areas concerned, or their division into converging sectors.
INHERENT RIGHT TO TERRITORY. The doctrine of the just and equitable share
appears to be wholly at variance with what the Court entertains no doubt is the
most fundamental of all the rules of law relating to the continental shelf, enshrined
in Art. 2 of the 1958 Geneva Convention, though quite independent of it;-namely
that the rights of the coastal State in respect of the area of continental shelf that
constitutes a natural prolongation of its land territory into and under the sea exist
ipso facto and ab initio, by virtue of its sovereignty over the land, and as an
extension of it in an exercise of sovereign rights for the purpose of exploring the
seabed and exploiting its natural resources. In short, there is here an inherent
right. In order to exercise it, no special legal process has to be gone through, nor
have any special legal acts to be performed. Its existence can be declared (and
many States have done this) but does not need to be constituted. Furthermore,
the right does not depend on its being exercised. To echo the language of the
Geneva Convention, it is 'exclusive' in the sense that if the coastal State does not
choose to explore or exploit the areas of shelf appertaining to it, that is its own
affair, but no one else may do so without its express consent.
EQUITABLE DELIMITATION. It follows that even in such a situation as that of the
North Sea, the notion of apportioning an as yet undelimited area, considered as a
whole (which underlies the doctrine of the just and equitable share), is quite
foreign to, and inconsistent with, the basic concept of continental shelf
entitlement, according to which the process of delimitation is essentially one of
drawing a boundary line between areas which already appertain to one or other of
the States affected. The delimitation itself must indeed be equitably effected, but
it cannot have as its object the awarding of an equitable share, or indeed of a
share, as such, at all,-for the fundamental concept involved does not admit of
there being anything undivided to share out. Evidently any dispute about
boundaries must involve that there is a disputed marginal or fringe area, to which
both parties are laying claim, so that any delimitation of it which does not leave it
wholly to one of the parties will in practice divide it between them in certain
shares, or operate as if such a division had been made. But this does not mean
that there has been an apportionment of something that previously consisted of
an integral, still less an undivided whole.
DENMARK & NETHERLANDS’S CLAIM. Their general character has already
been indicated in par. 13 and 14: the most convenient way of dealing with them
23
will be on the basis of the following question-namely, does the equidistance-
special circumstances principle constitute a mandatory rule, either on a
conventional or on a customary international law basis, in such a way as to
govern any delimitation of the North Sea continental shelf areas between the
Federal Republic and the Kingdoms of Denmark and the Netherlands
respectively? Whether, in any delimitation of these areas, the Federal Republic is
under a legal obligation to accept the application of the equidistance-special
circumstances principle?
CONVENIENT METHOD, BUT MANDATORY, OBLIGATORY? It has never been
doubted that the equidistance method of delimitation is a very convenient one, the
use of which is indicated in a considerable number of cases. It constitutes a
method capable of being employed in almost all circumstances, however singular
the results might sometimes be, and has the virtue that if necessary,-if for
instance, the Parties are unable to enter into negotiations,-any cartographer can
de facto trace such a boundary on the appropriate maps and charts, and those
traced by competent cartographers will for all practical purposes agree. In short, it
would probably be true to say that no other method of delimitation has the same
combination of practical convenience and certainty of application. Yet these
factors do not suffice of themselves to convert what is a method into a rule of law,
making the acceptance of the results of using that method obligatory in all cases
in which the parties do not agree otherwise, or in which 'special circumstances'
cannot be shown to exist. Juridically, if there is such a rule, it must draw its legal
force from other factors than the existence of these advantages, important though
they may be. It should also be noticed that the counterpart of this conclusion is no
less valid, and that the practical advantages of the equidistance method would
continue to exist whether its employment were obligatory or not.
LEGAL BASIS FOR INSISTENCE FOR THE EQUIDISTANCE METHOD. The
first question to be considered is whether the 1958 Geneva Convention on the
Continental Shelf is binding for all the Parties in this case-that is to say whether,
as contended by Denmark and the Netherlands, the use of this method is
rendered obligatory for the present delimitations by virtue of the delimitations
provision (Art. 6) of that instrument, according to the conditions laid down in it.
Clearly, if this is so, then the provisions of the Convention will prevail in the
relations between the Parties, and would take precedence of any rules having a
more general character, or derived from another source. On that basis the Court's
reply to the question put to it in the Special Agreements would necessarily be to
the effect that as between the Parties the relevant provisions of the Convention
represented the applicable rules of law-that is to say constituted the law for the
Parties-and its sole remaining task would be to interpret those provisions, in so far
as their meaning was disputed or appeared to be uncertain, and to apply them to
the particular circumstances involved.
ART. 6 OF THE GENEVA CONVENTION, PAR. 2 of which Denmark and the
Netherlands contend 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, as it exists independently of the Convention, read as
follows:
Always will b
 * bok * cj * tiff * Gem * tin *
'1. Where the same continental shelf is adjacent to the territories of two or more
States whose coasts are opposite each other, the boundary of the continental
shelf appertaining to such States shall be determined by agreement between
them. In the absence of agreement, and unless another boundary line is justified
by special circumstances, the boundary is the median line, every point of which is
equidistant from the nearest point of the baselines from which the breadth of the
territorial sea of each State is measured.
2. Where the same continental shelf is adjacent to the territories of two adjacent
States, the boundary of the continental shelf shall be determined by agreement
between them. In the absence of agreement, and unless another boundary line is
justified by special circumstances, the boundary shall be determined by
application of the principle of equidistance from the nearest points of the baselines
from which the breadth of the territorial sea of each State is measured.'
The Convention received 46 signatures and, up-to-date, there have been 39
ratifications or accessions. It came into force on June 10, 1964, having received
the 22 ratifications or accessions required for that purpose (Art. 11), and was
therefore in force at the time when the various delimitations of continental shelf
boundaries described earlier (par. 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 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 June 10, 1964, the latter since Mar. 20, 1966. Germany was 1 of
the signatories of the Convention, but has never ratified it, and is consequently not
a party.
D & N INSISTS THAT GERMANY IS ESTOPPED FROM OPPOSING THE
CONVENTION’S PROVISIONS. Denmark and the Netherlands admit 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 regime of the Convention, and in particular
of Art. 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 regime; or has recognized it as
being generally applicable to the 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. It
appears to the Court that only the existence of a situation of estoppel could suffice
to lend substance to this contention,-that is to say if the Federal Republic were
now precluded from denying the applicability of the conventional regime, by
reason of past conduct, declarations, etc., which not only clearly and consistently
evinced acceptance of that regime, but also had caused Denmark or the
Netherlands, in reliance on such conduct, detrimentally to change position or
suffer some prejudice. Of this there is no evidence whatever in the present case.
24
RECOGNITION OF THE CONVENTION CANNOT BE PRESUMED. It is clear
that 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 regime-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 specifically providing for a
particular method by which the intention to become bound by the regime 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.
Indeed if it were a question not of obligation but of rights,-if, that is to say, a State
which, though entitled to do so, had not ratified or acceded, attempted to claim
rights under the convention, on the basis of a declared willingness to be bound by
it, or of conduct evincing acceptance of the conventional regime, it would simply
be told that, not having become a party to the convention it could not claim any
rights under it until the professed willingness and acceptance had been
manifested in the prescribed form.
EVEN IF RECOGNIZED, EXCLUSIONS PERMITTED. A further point, not in itself
conclusive, but to be noted, is that if the Federal Republic had ratified the Geneva
Convention, it could have entered-and could, if it ratified now, enter-a reservation
to Art. 6, by reason of the faculty to do so conferred by Art. 12 of the Convention.
This faculty would remain, whatever the previous conduct of the Federal Republic
might have been-a fact which at least adds to the difficulties involved by the
Danish-Netherlands contention.
EXAMPLES OF GERMANY’S “ACCEPTANCE”. Little useful purpose would be
served by passing in review and subjecting to detailed scrutiny the various acts
relied on by Denmark and the Netherlands as being indicative of the Federal
Republic's acceptance of the regime of Art. 6;-for instance that at the Geneva
Conference the Federal Republic did not take formal objection to Art. 6 and
eventually signed the Convention without entering any reservation in respect of
that provision; that it at one time announced its intention to ratify the Convention;
that in its public declarations concerning its continental shelf rights it appeared to
rely on, or at least cited, certain provisions of the Geneva Convention. In this last
connection a good deal has been made of the joint Minute signed in Bonn, on
Aug. 4, 1964, between the then-negotiating delegations of the Federal Republic
and the Netherlands. But this minute made it clear that what the Federal Republic
was seeking was an agreed division, rather than a delimitation of the central North
Sea continental shelf areas, and the reference it made to Art. 6 was specifically to
the first sentence of par. 1 and 2 of that Article, which speaks exclusively of
delimitation by agreement and not at all of the use of the equidistance method.
Always will b
 * bok * cj * tiff * Gem * tin *
NO ESTOPPEL. None of the elements invoked is decisive; each is ultimately
negative or inconclusive; all are capable of varying interpretations or
explanations. It would be one thing to infer from the declarations of the Federal
Republic an admission accepting the fundamental concept of coastal State rights
in respect of the continental shelf: it would be quite another matter to see in this
an acceptance of the rules of delimitation contained in the Convention. The
declarations of the Federal Republic, taken in the aggregate, might at most justify
the view that to begin with, and before becoming fully aware of what the probable
effects in the North Sea would be, the Federal Republic was not specifically
opposed to the equidistance principle as embodied in Art. 6 of the Convention.
But from a purely negative conclusion such as this, it would certainly not be
possible to draw the positive inference that the Federal Republic, though not a
party to the Convention, had accepted the regime of Art. 6 in a manner binding
upon itself.
D & N’S PROPOSAL REJECTED. The dangers of the doctrine here advanced by
Denmark and the Netherlands, if it had to be given general application in the
international law field, hardly need stressing. Moreover, any such inference would
immediately be nullified by the fact that, as soon as concrete delimitations of
North Sea continental shelf areas began to be carried out, the Federal Republic,
as described earlier (par. 9 and 12), at once reserved its position with regard to
those delimitations which (effected on an equidistance basis) might be prejudicial
to the delimitation of its own continental shelf areas.
ADDITIONAL ISSUES: DELIMITATION BY AGREEMENT & SPECIAL
CIRCUMSTANCES. What is the relationship between the requirement of Art. 6
for delimitation by agreement, and the requirements relating to equidistance and
special circumstances that are to be applied in 'the absence of' such agreement,-
i.e., in the absence of agreement on the matter, is there a presumption that the
continental shelf boundary between any 2 adjacent States consists automatically
of an equidistance line,-or must negotiations for an agreed boundary prove finally
abortive before the acceptance of a boundary drawn on an equidistance basis
becomes obligatory in terms of Art. 6, if no special circumstances exist?
The delimitation of the line E-F, as shown on Map 3, which was affected by
Denmark and the Netherlands under the agreement of Mar. 31, 1966 already
mentioned (par. 5 and 9), to which the Federal Republic was not a party, must
have been based on the tacit assumption that, no agreement to the contrary
having been reached in the negotiations between the Federal Republic and
Denmark and the Netherlands respectively (par. 7), the boundary between the
continental shelf areas of the Republic and those of the other two countries must
be deemed to be an equidistance one;-or in other words the delimitation of the
line E-F, and its validity erga omnes including the Federal Republic, as contended
for by Denmark and the Netherlands, presupposes both the delimitation and the
validity on an equidistance basis, of the lines B-E and D-E on Map 3, considered
by Denmark and the Netherlands to represent the boundaries between their
continental shelf areas and those of the Federal Republic.
25
ART. 6 AAPLIES ONLY TO ADJACENT OR OPPOSITE STATES. Since, Art. 6 of
the Geneva Convention provides only for delimitation between 'adjacent' States,
which Denmark and the Netherlands clearly are not, or between 'opposite' States
which, despite suggestions to the contrary, the Court thinks they equally are not,
the delimitation of the line E-F on Map 3 could not in any case find its validity in
Art. 6, even if that provision were opposable to the Federal Republic. The validity
of this delimitation must be sought in some other source of law. It is a main
contention of Denmark and the Netherlands that there does in fact exist such
another source, furnishing a rule that validates not only this particular delimitation,
but all delimitations effected on an equidistance basis,-and indeed requiring
delimitation on that basis unless the States concerned otherwise agree, and
whether or not the Geneva Convention is applicable.
D & N: GERMANY BOUND TO ACCEPT DELIMITATION ON AN
EQUIDISTANCE-SPECIAL CIRCUMSTANCES BASIS because the use of this
method is not in the nature of a merely conventional obligation, but is, or must
now be regarded as involving, a rule that is part of the corpus of general
international law;-and, like other rules of general or customary international law, is
binding on the Federal Republic automatically and independently of any specific
assent, direct or indirect, given by the latter. This contention has both a positive
law and a more fundamentalist aspect. As a matter of positive law, it is based on
the work done in this field by international legal bodies, on State practice and on
the influence attributed to the Geneva Convention itself,-the claim being that these
various factors have cumulatively evidenced or been creative of the opinion juris
sive necessitatis, requisite for the formation of new rules of customary
international law. In its fundamentalist aspect, the view put forward derives from
what might be called the natural law of the continental shelf, in the sense that the
equidistance principle is seen as a necessary expression in the field of
delimitation of the accepted doctrine of the exclusive appurtenance of the
continental shelf to the nearby coastal State, and therefore as having an a priori
character of so to speak juristic inevitability. The Court will begin by examining this
latter aspect, both because it is the more fundamental, and was so presented on
behalf of Denmark and the Netherlands-i.e., as something governing the whole
case; and because, if it is correct that the equidistance principle is, as the point
was put in the course of the argument, to be regarded as inherent in the whole
basic concept of continental shelf rights, then equidistance should constitute the
rule according to positive law tests also. On the other hand, if equidistance
should not possess any a priori character of necessity or inherency, this would not
be any bar to its having become a rule of positive law through influences such as
those of the Geneva Convention and State practice,-and that aspect of the matter
would remain for later examination.
SOVEREIGNTY. The a priori argument starts from the position described in par.
19, according to which the right of the coastal State to its continental shelf areas is
based on its sovereignty over the land domain, of which the shelf area is the
natural prolongation into and under the sea. From this notion of appurtenance is
derived the view which, as has already been indicated, the Court accepts, that the
coastal State's rights exist ipso facto and ab initio without there being any
question of having to make good a claim to the areas concerned, or of any
Always will b
 * bok * cj * tiff * Gem * tin *
apportionment of the continental shelf between different States. This was one
reason why the Court felt bound to reject the claim of the Federal Republic (in the
particular form which it took) to be awarded a 'just and equitable share' of the
shelf areas involved in the present proceedings. Denmark and the Netherlands,
for their part, claim that the test of appurtenance must be 'proximity', or more
accurately 'closer proximity': all those parts of the shelf being considered as
appurtenant to a particular coastal State which are (but only if they are) closer to it
than they are to any point on the coast of another State. Hence delimitation must
be effected by a method which will leave to each one of the States concerned all
those areas that are nearest to its own coast. Only a line drawn on equidistance
principles will do this. Therefore, it is contended, only such a line can be valid
(unless the Parties, for reasons of their own, agree on another), because only
such a line can be thus consistent with basic continental shelf doctrine.
PROXIMITY. The idea of absolute proximity is certainly not implied by the vague
and general terminology employed in the literature of the subject, and in most
State proclamations and international conventions and other instruments-terms
such as 'near', 'close to its shores', 'off its coast', 'opposite', 'in front of the coast',
'in the vicinity of', 'neighboring the coast', 'adjacent to', 'contiguous', etc.,-all of
them terms of a somewhat imprecise character which, although they convey a
reasonably clear general idea, are capable of a considerable fluidity of meaning.
The most frequently employed of these terms, namely 'adjacent to', is evident that
by no stretch of imagination can a point on the continental shelf situated say a
hundred miles, or even much less, from a given coast, be regarded as 'adjacent'
to it, or to any coast at all, in the normal sense of adjacency, even if the point
concerned is nearer to some one coast than to any other. This would be even
truer of localities where, physically, the continental shelf begins to merge with the
ocean depths. Equally, a point inshore situated near the meeting place of the
coasts of two States can often properly be said to be adjacent to both coasts,
even though it may be fractionally closer to the one than the other. Indeed, local
geographical configuration may sometimes cause it to have a closer physical
connection with the coast to which it is not in fact closest. There seems in
consequence to be no necessary, and certainly no complete, identity between the
notions of adjacency and proximity; and therefore the question of which parts of
the continental shelf 'adjacent to' a coastline bordering more than one State fall
within the appurtenance of which of them, remains to this extent an open one, not
to be determined on a basis exclusively of proximity. Even if proximity may afford
one of the tests to be applied and an important one in the right conditions, it may
not necessarily be the only, nor in all circumstances, the most appropriate one.
Hence it would seem that the notion of adjacency, so constantly employed in
continental shelf doctrine from the start, only implies proximity in a general sense,
and does not imply any fundamental or inherent rule the ultimate effect of which
would be to prohibit any State (otherwise than by agreement) from exercising
continental shelf rights in respect of areas closer to the coast of another State.
MORE FUNDAMENTAL: NATURAL PROLONGATION OR CONTINUATION OF
LAND TERRITORY OR DOMAIN OR LAND SOVEREIGHNTY OF THE
COASTAL STATE, INTO & UNDER THE HIGH SEAS, VIA THE BED OF ITS
TERRITORIAL SEA WHICH IS UNDER FULL SOVEREIGNTY OF THE STATE.
26
There are various ways of formulating this principle, but the underlying idea,
namely of an extension of something already possessed, is the same, and it is
this idea of extension which is, in the Court's opinion, determinant. Submarine
areas do not really appertain to the coastal State because-or not only because-
they are near it. They are near it of course; but this would not suffice to confer title,
any more than, according to a well-established principle of law recognized by both
sides in the present case, mere proximity confers per se title to land territory.
What confers the ipso jure title which international law attributes to the coastal
State in respect of its continental shelf, is the fact that the submarine areas
concerned may be deemed to be actually part of the territory over which the
coastal State already has dominion,-in the sense that, although covered with
water, they are a prolongation or continuation of that territory, an extension of it
under the sea. From this it would follow that whenever a given submarine area
does not constitute a natural-or the most natural-extension of the land territory of
a coastal State, even though that area may be closer to it than it is to the territory
of any other State, it cannot be regarded as appertaining to that State;-or at least
it cannot be so regarded in the face of a competing claim by a State of whose land
territory the submarine area concerned is to be regarded as a natural extension,
even if it is less close to it.
D & N’S AND G’S INTERPRETATIONS OF THE PROLONGATION PRINCIPLE
INCORRECT. Denmark and the Netherlands identified natural prolongation with
closest proximity and therefrom argued that it called for an equidistance line: the
Federal Republic seemed to think it implied the notion of the just and equitable
share, although the connection is distinctly remote. (The Federal Republic did
however invoke another idea, namely that of the proportionality of a State's
continental shelf area to the length of its coastline, which obviously does have an
intimate connection with the prolongation principle, and will be considered in its
place.) As regards equidistance, it clearly cannot be identified with the notion of
natural prolongation or extension, since, as has already been stated (par. 8), the
use of the equidistance method would frequently cause areas which are the
natural prolongation or extension of the territory of one State to be attributed to
another, when the configuration of the latter's coast makes the equidistance line
swing out laterally across the former's coastal front, cutting it off from areas
situated directly before that front .
EXAMPLE OF ABOVE SITUATION. The fluidity of all these notions is well
illustrated by the case of the Norwegian Trough (par. 4 above). The Court notes
that the shelf areas in the North Sea separated from the Norwegian coast by the
80-100 km of the Trough cannot in any physical sense be said to be adjacent to it,
nor to be its natural prolongation. They are nevertheless considered by the States
parties to the relevant delimitations, as described in par. 4, to appertain to Norway
up to the median lines shown on Map 1. True these median lines are themselves
drawn on equidistance principles; but it was only by first ignoring the existence of
the Trough that these median lines fell to be drawn at all.
THAT EQUIDISTANCE IS NECESSARY & AN INESCAPABLE A PRIORI
ACCOMPANIMENT OF THE BASIC CONSITINENTAL SHELF DOCTRINE IS
INCORRECT. It is said not to be possible to maintain that there is a rule of law
Always will b
 * bok * cj * tiff * Gem * tin *
ascribing certain areas to a State as a matter of inherent and original right (see
par. 19 and 20), without also admitting the existence of some rule by which those
areas can be obligatorily delimited. The Court cannot accept the logic of this
view. The problem arises only where there is a dispute and only in respect of the
marginal areas involved. The appurtenance of a given area, considered as an
entity, in no way governs the precise delimitation of its boundaries, any more than
uncertainty as to boundaries can affect territorial rights. There is for instance no
rule that the land frontiers of a State must be fully delimited and defined, and often
in various places and for long periods they are not, as is shown by the case of the
entry of Albania into the League of Nations (Monastery of Saint Naoum, Advisory
Opinion, 1924, P.C.I.J., Series B, No. 9, at p. 10).
GENESIS AND DEVELOPMENT OF THE EQUIDISTANCE METHOD OF
DELIMITATION. Such a review may appropriately start with the instrument,
generally known as the 'Truman Proclamation', issued by the US on Sept. 28,
1945. Although this instrument was not the first or only one to have appeared, it
has a special status. Previously, various theories as to the nature and extent of
the rights relative to or exercisable over the continental shelf had been advanced
by jurists, publicists and technicians. 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 all others, being now reflected in Art. 2 of the 1958
Geneva Convention on the Continental Shelf. WRT the delimitation of lateral
boundaries between the continental shelves of adjacent States, a matter which
had given rise to some consideration on the technical, but very little on the juristic
level, the Truman Proclamation stated that such boundaries 'shall be determined
by the US and the State concerned in accordance with equitable principles'.
These 2 concepts, of delimitation by mutual agreement and delimitation in
accordance with equitable principles, have underlain all 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.
U.N. INVOLVEMENT. It was in the International Law Commission of the United
Nations that the question of delimitation as between adjacent States was first
taken up seriously as part of a general jurisdical project; for outside the ranks of
the hydrographers and cartographers, questions of delimitation were not much
thought about in earlier continental shelf doctrine. Juridical interest was focused
mainly on questions as what was the legal basis on which any rights at all in
respect of the continental shelf could be claimed, and what was the nature of
those rights. As regards boundaries, the main issue was not that of boundaries
between States but of the seaward limit of the area in respect of which the coastal
State could claim exclusive rights of exploitation. States in most cases had not
found it necessary to conclude treaties or legislate about their lateral sea
boundaries with adjacent States before the question of exploiting the natural
resources of the seabed and subsoil arose;-practice was sparse.
NO U.N. RULE PRESCRIBING USE OF A SPECIFIC METHOD. In the records of
the International Law Commission, which had the matter under consideration from
27
1950 to 1956, there is no indication at all that any of its members supposed that it
was incumbent on the Commission to adopt a rule of equidistance because this
gave expression to, and translated into linear terms, a principle of proximity
inherent in the basic concept of the continental shelf, causing every part of the
shelf to appertain to the nearest coastal State and to no other, and because such
a rule must therefore be mandatory as a matter of customary international law.
Such an idea does not seem ever to have been propounded. Had it been, and
had it had the self-evident character contended for by Denmark and the
Netherlands, the Commission would have had no alternative but to adopt it, and
its long continued hesitations over this matter would be incomprehensible.
NO PRIORITY TO THE EQUIDISTANCE METHOD. It is moreover, in the present
context, a striking feature of the Commission's discussions that during the early
and middle stages, not only was the notion of equidistance never considered from
the standpoint of its having a priori a character of inherent necessity: it was never
given any special prominence at all, and certainly no priority. The Commission
discussed various other possibilities as having equal if not superior status such as
delimitation by agreement, by reference to arbitration, by drawing lines
perpendicular to the coast, by prolonging the dividing line of adjacent territorial
waters (the principle of which was itself not as yet settled), and on occasion the
Commission seriously considered adopting one or other of these solutions. It was
not in fact until after the matter had been referred to a committee of
hydrographical experts, which reported in 1953, that the equidistance principle
began to take precedence over other possibilities: the Report of the Commission
for that year (its principal report on the topic of delimitation as such) makes it clear
that before this reference to the experts the Commission had felt unable to
formulate any definite rule at all, the previous trend of opinion having been mainly
in favor of delimitation by agreement or by reference to arbitration.
COMMITTEE OF EXPERTS FORMULATES THE METHOD. It was largely
because of these difficulties that it was decided to consult the Committee of
Experts. Equidistance was in fact only 1 of 4 methods suggested to them, the
other 3 being (a) the continuation in the seaward direction of the land frontier
between the two adjacent States concerned; (b) the drawing of a perpendicular to
the coast at the point of its intersection with this land frontier; and (c) the drawing
of a line perpendicular to the line of the 'general direction' of the coast. The matter
was not even put to the experts directly as a question of continental shelf
delimitation, but in the context of the delimitation of the lateral boundary between
adjacent territorial waters, no account being taken of the possibility that the
situation respecting territorial waters might be different.
COMMITTEE REPORT. The Committee of Experts simply reported that after a
thorough discussion of the different methods-(no official records of this
discussion)-they had decided that 'the (lateral) boundary through the territorial
sea-if not already fixed otherwise-should be drawn according to the principle of
equidistance from the respective coastlines'. They added, however, significantly,
that in 'a number of cases this may not lead to an equitable solution, which should
be then arrived at by negotiation'. Only after that did they add, as a rider to this
conclusion, that they had considered it 'important to find a formula for drawing the
Always will b
 * bok * cj * tiff * Gem * tin *
international boundaries in the territorial waters of States, which could also be
used for the delimitation of the respective continental shelves of 2 States
bordering the same continental shelf'. In this almost impromptu, and certainly
contingent manner was the principle of equidistance for the delimitation of
continental shelf boundaries propounded. It is clear from the Report of the
Commission for 1953 (par. 50) that the latter adopted it largely on the basis of the
recommendation of the Committee of Experts, and even so in a text that gave
priority to delimitation by agreement and also introduced an exception in favor of
'special circumstances' which the Committee had not formally proposed. The
Court thinks that the experts were actuated by considerations not of legal theory
but of practical convenience and cartography of the kind mentioned in par. 22
above. Although there are no official records of their discussions, note the
correspondence passing between certain of them and the Commission's Special
Rapporteur on the subject, which was deposited by one of the Parties during the
oral hearing at the request of the Court. Nor, even after this, when a decision in
principle had been taken in favor of an equidistance rule, was there an end to the
Commission's hesitations, for as late as 3 years after the adoption of the report of
the Committee of Experts, when the Commission was finalizing the whole
complex of drafts comprised under the topic of the Law of the Sea, various doubts
about the equidistance principle were still being voiced in the Commission, on
such grounds for instance as that its strict application would be open, in certain
cases, to the objection that the geographical configuration of the coast would
render a boundary drawn on this basis inequitable.
LIMITATIONS OF THE METHOD. A further point of some significance is that
neither in the Committee of Experts, nor in the Commission itself, nor
subsequently at the Geneva Conference, does there appear to have been any
discussion of delimitation in the context, not merely of 2 adjacent States, but of 3
or more States on the same coast, or in the same vicinity,-from which it can
reasonably be inferred that the possible resulting situations, some of which have
been described in par. 8 above, were never really envisaged or taken into
account. Also, the relevant part of par. 2 of Art. 6 of the Geneva Convention
speaks of delimiting the continental shelf of ‘2’ adjacent States (although a
reference simply to 'adjacent States' would have sufficed), whereas in respect of
median lines the reference in par. 1 of that Art. is to 'two or more' opposite States.
EQUIDISTANCE, BASED UPON AGREEMENT & EQUITY, NOT INHERENTLY
NECESSARY. At no time was the notion of equidistance as an inherent necessity
of continental shelf doctrine entertained. It was, and it really remained to the end,
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. It was in pursuance of
the 1ST of these beliefs that in the draft that emerged as Art. 6, the Commission
gave priority to delimitation by agreement,-and in pursuance of the 2ND that it
introduced the exception in favor of 'special circumstances'. Yet the record shows
that, even with these mitigations, doubts persisted, particularly as to whether the
equidistance principle would in all cases prove equitable.
28
D & N’S THEORY INVERTS THE TRUE ORDER OF THINGS: so far from an
equidistance rule having been generated by an antecedent principle of proximity
inherent in the whole concept of continental shelf appurtenance, the latter is rather
a rationalization of the former-an ex post facto construct directed to providing a
logical juristic basis for a method of delimitation propounded largely for different
reasons, cartographical and other. Given also that for the reasons already set out
(par. 40-46) the theory cannot be said to be endowed with any quality of logical
necessity either, the Court is unable to accept it.
2 SUBSIDIARY MATTERS. Most of the difficulties felt in the International Law
Commission related, as here, to the case of the lateral boundary between
adjacent States. Less difficulty was felt over that of the median line boundary
between opposite States, although it too is an equidistance line. The continental
shelf area off, and dividing, opposite States, can be claimed by each of them to be
a natural prolongation of its territory. These prolongations meet and overlap, and
can therefore only be delimited by means of a median line; and, ignoring the
presence of islets, rocks and minor coastal projections, the disproportionally
distorting effect of which can be eliminated by other means, such a line must
effect an equal division of the particular area involved. If there is a 3RD State on 1
of the coasts concerned, the area of mutual natural prolongation with that of the
same or another opposite State will be a separate and distinct one, to be treated
in the same way. This type of case is therefore different from that of laterally
adjacent States on the same coast with no immediately opposite coast in front of
it, and does not give rise to the same kind of problem-a conclusion which also
finds some confirmation in the difference of language to be observed in the 2
paragraphs of Art. 6 (reproduced in par. 26 above) as respects recourse in the
one case to median lines and in the other to lateral equidistance lines, in the event
of absence of agreement. If on the other hand, there is no essential difference in
the process of delimiting the continental shelf areas between opposite States and
that of delimitations between adjacent States, then the results ought in principle to
be the same or at least comparable. But in fact, whereas a median line divides
equally between the 2 opposite countries areas that can be regarded as being the
natural prolongation of the territory of each of them, a lateral equidistance line
often leaves to 1 of the States concerned areas that are a natural prolongation of
the territory of the other.
LATERAL BOUNDARY BETWEEN ADJACENT TERRITORIAL WATERS TO BE
DRAWN ON AN EQUIDISTANCE BASIS. As was convincingly demonstrated in
the maps and diagrams furnished by the Parties, and as has been noted in par. 8,
the distorting effects of lateral equidistance lines under certain conditions of
coastal configuration are nevertheless comparatively small within the limits of
territorial waters, but produce their maximum effect in the localities where the
main continental shelf areas lie further out. There is also a direct correlation
between the notion of closest proximity to the coast and the sovereign jurisdiction
which the coastal State is entitled to exercise and must exercise, not only over the
seabed underneath the territorial waters but over the waters themselves, which
does not exist in respect of continental shelf areas where there is no jurisdiction
over the superjacent waters, and over the seabed only for purposes of exploration
and exploitation.
Always will b
 * bok * cj * tiff * Gem * tin *
STATUS OF THE PRINCIPLE (WRT DELIMITATION PROVISION) (A) AS IT
STOOD WHEN THE CONVENTION WAS DRAWN UP, (B) AS IT RESULTED
FROM THE EFFECT OF THE CONVENTION, AND (C) IN THE LIGHT OF
STATE PRACTICE SUBSEQUENT TO THE CONVENTION. The 1st of these
questions can conveniently be considered in the form suggested on behalf of
Denmark and the Netherlands themselves in the course of the oral hearing, when
it was stated that they had not in fact contended that the delimitation article (Art.
6) of the Convention 'embodied already received rules of customary law in the
sense that the Convention was merely declaratory of existing rules'. Their
contention was, rather, that although prior to the Conference, continental shelf law
was only in the formative stage, and State practice lacked uniformity, yet 'the
process of the definition and consolidation of the emerging customary law took
place through the work of the International Law Commission, the reaction of
governments to that work and the proceedings of the Geneva Conference'; and
this emerging customary law became 'crystallized in the adoption of the
Continental Shelf Convention by the Conference'.
COURT REJECTS ABOVE ARGUMENT. The Court cannot accept it as regards
the delimitation provision (Art. 6), the relevant parts of which were adopted almost
unchanged from the draft of the International Law Commission that formed the
basis of discussion at the Conference. The status of the rule in the Convention
therefore depends mainly on the processes that led the Commission to propose
it. These processes have already been reviewed in connection with the Danish-
Netherlands contention of an a priori necessity for equidistance, and the Court
considers this review sufficient for present purposes also, in order to show that the
principle of equidistance, as it now figures in Art. 6, was proposed by the
Commission with considerable hesitation, somewhat on an experimental basis, at
most de lege ferenda, and not at all de lege lata or as an emerging rule of
customary international law. This is clearly not the sort of foundation on which Art.
6 of the Convention could be said to have reflected or crystallized such a rule.
RESERVATIONS POSSIBLE. The foregoing conclusion receives significant
confirmation from the fact that Art. 6 is one of those in respect of which, under the
reservations article of the Convention (Art. 12) reservations may be made by any
State on signing, ratifying or acceding,-for, speaking generally, it is a characteristic
of purely conventional rules and obligations that, in regard to them, some faculty
of making unilateral reservations may, within certain limits, be admitted;-whereas
this cannot be so in the case of general or customary law rules and obligations
which, by their very nature, must have equal force for all members of the
international community, and cannot therefore be the subject of any right of
unilateral exclusion exercisable at will by any one of them in its own favor.
Consequently, it is to be expected that when, for whatever reason, rules or
obligations of this order are embodied, or are intended to be reflected in certain
provisions of a convention, such provisions will figure amongst those in respect of
which a right of unilateral reservation is not conferred, or is excluded. This
expectation is, in principle, fulfilled by Art. 12 of the Geneva Continental Shelf
Convention, which permits reservations to be made to all the articles of the
Convention 'other than to Art. 1 to 3 inclusive'-these 3 Articles being the ones
29
which, it is clear, were then regarded as reflecting, or as crystallizing, received or
at least emergent rules of customary international law relative to the continental
shelf, amongst them the question of the seaward extent of the shelf; the jurisdical
character of the coastal State's entitlement; the nature of the rights exercisable;
the kind of natural resources to which there relate; and the preservation intact of
the legal status as high seas of the waters over the shelf, and the legal status of
the superjacent air-space.
NO RESERVATION, NO PREVIOUSLY EXISTING OR EMERGENT RULES OF
LAW. The normal inference would be that any articles that do not figure among
those excluded from the faculty of reservation under Art. 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 Art. 6 (delimitation), having regard
also to the attitude of the International Law Commission to this provision, as
already described in general terms. Naturally this would not of itself prevent this
provision from eventually passing into the general corpus of customary
international law by one of the processes considered in par. 70-81 below. But
what is now under consideration is whether it originally figured in the Convention
as such a rule.
OTHER EXCLUSIONS. It has been suggested that the inference drawn at the
beginning of the preceding paragraph is not necessarily warranted, seeing that
there are certain other provisions of the Convention, also not excluded from the
faculty of reservation, but which do undoubtedly in principle relate to matters that
lie within the field of received customary law, such as the obligation not to impede
the laying or maintenance of submarine cables or pipelines on the continental
shelf seabed (Art. 4), and the general obligation not unjustifiably to interfere with
freedom of navigation, fishing, and so on (Art. 5, par. 1 & 6). These matters
however, all relate to or are consequential upon principles or rules of general
maritime law, very considerably ante-dating the Convention, and not directly
connected with but only incidental to continental shelf rights as such. They were
mentioned in the Convention, not in order to declare or confirm their existence,
which was not necessary, but simply to ensure that they were not prejudiced by
the exercise of continental shelf rights as provided for in the Convention. Another
method of drafting might have clarified the point, but this cannot alter the fact that
no reservation could release the reserving party from obligations of general
maritime law existing outside and independently of the Convention, and especially
obligations formalized in Art. 2 of the contemporaneous Convention on the High
Seas, expressed by its preamble to be declaratory of established principles of
international law.
ART. 6-DELIMITATION-DIFFERENT. It does directly relate to continental shelf
rights as such, rather than to matters incidental to these; and since it was not, as
were Art. 1 to 3, excluded from the faculty of reservation, it is a legitimate
inference that it was considered to have a different and less fundamental status
and not, like those Articles, to reflect pre-existing or emergent customary law. It
was however contended on behalf of Denmark and the Netherlands that the right
of reservation given in respect of Art. 6 was not intended to be an unfettered right,
and that in particular it does not extend to effecting a total exclusion of the
Always will b
 * bok * cj * tiff * Gem * tin *
equidistance principle of delimitation,-for, so it was claimed, delimitation on the
basis of that principle is implicit in Articles 1 and 2 of the Convention, in respect of
which no reservations are permitted. Hence the right of reservation under Art. 6
could only be exercised in a manner consistent with the preservation of at least
the basic principle of equidistance. In this connection it was pointed out that, of
the no more than 4 reservations so far entered in respect of Art. 6, 1 at least of
which was somewhat far reaching, none has purported to effect such a total
exclusion or denial. The Court finds this argument unconvincing for a number of
reasons.
Articles 1 and 2 of the Geneva Convention do not appear to have any direct
connection with inter-State delimitation as such. Art. 1 is concerned only with the
outer, seaward, limit of the shelf generally, not with boundaries between the shelf
areas of opposite or adjacent States. Art. 2 is equally not concerned with such
boundaries. The suggestion seems to be that the notion of equidistance is implicit
in the reference in par. 2 of Art. 2 to the rights of the coastal State over its
continental shelf being 'exclusive'. So far as actual language is concerned this
interpretation is clearly incorrect. The true sense of the passage is that in
whatever areas of the continental shelf a coastal State has rights, those rights are
exclusive rights, not exercisable by any other State. But this says nothing as to
what in fact are the precise areas in respect of which each coastal State
possesses these exclusive rights. This question, which can arise only as regards
the fringes of a coastal State's shelf area is, as explained at the end of par. 20,
exactly what falls to be settled through the process of delimitation, and this is the
sphere of Art. 6, not Art. 2.
No valid conclusions can be drawn from the fact that the faculty of entering
reservations to Art. 6 has been exercised only sparingly and within certain limits.
This is the affair exclusively of those States which have not wished to exercise the
faculty, or which have been content to do so only to a limited extent. Their action
or inaction cannot affect the right of other States to enter reservations to whatever
is the legitimate extent of the right.
D & N: EVEN IF, AT THE DATE OF THE GENEVA CONVENTION, NO RULE OF
CUSTOMARY INT’L LAW IN FAVOR OF THE EQUIDISTANCE PRINCIPLE,
AND NO SUCH RULE WAS CRYSTALLIZED IN ART. 6, SUCH A RULE HAS
COME INTO BEING SINCE THE CONVENTION, PARTLY BECAUSE OF ITS
OWN IMPACT, PARTLY ON THE BASIS OF SUBSEQUENT STATE
PRACTICE,-and that this rule, being now a rule of customary international law
binding on all States, including therefore the Federal Republic, should be declared
applicable to the delimitation of the boundaries between the Parties' respective
continental shelf areas in the North Sea.
NORM-CREATING PROVISION? NO. In so far as this contention is based on the
view that Art. 6 of the Convention has had the influence, and has produced the
effect, described, it clearly involves treating that Article as a norm-creating
provision which has constituted the foundation of, or has generated a rule which,
while only conventional or contractual in its origin, has since passed into the
general corpus of international law, and is now accepted as such by the opinio
30
juris, so as to have become binding even for countries which have never, and do
not, become parties to the Convention. This process is a perfectly possible one
and does from time to time occur: it constitutes indeed one of the recognized
methods by which new rules of customary international law may be formed. This
result is not lightly to be regarded as having been attained.
AT THE START, IT SHOULD BE NORM-CREATING. It would be necessary that
the provision should, at all events potentially, be of a fundamentally norm-creating
character such as could be regarded as forming the basis of a general rule of law.
Considered in abstracto the equidistance principle might be said to fulfill this
requirement. Yet in the particular form in which it is embodied in Art. 6, and
having regard to the relationship of that Article to other provisions, this must be
open to some doubt. In the first place, Art. 6 is so framed as to put 2ND the
obligation to make use of the equidistance method, causing it to come after a
primary obligation to effect delimitation by agreement. Such a primary obligation
constitutes an unusual preface to what is claimed to be a potential general rule of
law. Without attempting to enter into, still less pronounce upon any question of
jus cogens, it is well understood that, in practice, rules of international law can, by
agreement, be derogated from in particular cases, or as between particular
parties,-but this is not normally the subject of any express provision, as it is in Art.
6. Secondly the part played by the notion of special circumstances relative to the
principle of equidistance as embodied in Art. 6, and the very considerable, still
unresolved controversies as to the exact meaning and scope of this notion, must
raise further doubts as to the potentially norm-creating character of the rule.
Finally, the faculty of making reservations to Art. 6, while it might not of itself
prevent the equidistance principle being eventually received as general law, does
add considerably to the difficulty of regarding this result as having been brought
about (or being potentially possible) on the basis of the Convention: for so long
as this faculty continues to exist, and is not the subject of any revision brought
about in consequence of a request made under Art. 13-of which there is at
present no official indication-it is the Convention itself which would, for the
reasons already indicated, seem to deny to the provisions of Art. 6 the same
norm-creating character as, for instance, Art. 1 and 2 possess.
WRT THE OTHER ELEMENTS usually regarded as necessary before a
conventional rule can be considered to have become a general rule of
international law, it might be that, even without the passage of any considerable
period of time, a very widespread and representative participation in the
convention might suffice of itself, provided it included that of States whose
interests were specially affected. Here however, even if allowance is made for the
existence of a number of States to whom participation in the Geneva Convention
is not open, or which, by reason for instance of being land-locked States, would
have no interest in becoming parties to it, the number of ratifications and
accessions so far secured is, though respectable, hardly sufficient. That non-
ratification may sometimes be due to factors other than active disapproval of the
convention concerned can hardly constitute a basis on which positive acceptance
of its principles can be implied: the reasons are speculative, but the facts remain.
Always will b
 * bok * cj * tiff * Gem * tin *
WRT TIME. It is over 10 years since the Convention was signed, but that it is
even now less than 5 since it came into force in June 1964, and that when the
present proceedings were brought it was less than 3 years, while less than 1 had
elapsed at the time when the respective negotiations between the Federal
Republic and the other 2 Parties for a complete delimitation broke down on the
question of the application of the equidistance principle. 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
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.
WHETHER STATE PRACTICE IN CONTINENTAL SHELF DELIMITATION HAS,
SUBSEQUENT TO THE CONVENTION, BEEN OF SUCH A KIND AS TO
SATISFY THIS REQUIREMENT? Some 15 cases have been cited in the course
of the proceedings, occurring mostly since the signature of the 1958 Geneva
Convention, in which continental shelf boundaries have been delimited according
to the equidistance principle-in the majority of the cases by agreement, in a few
others unilaterally-or else the delimitation was foreshadowed but has not yet been
carried out. Amongst these 15 are the 4 North Sea delimitations UK/Norway-
Denmark-Netherlands, and Norway/Denmark already mentioned in par. 4. But
even if these various cases constituted more than a very small proportion of those
potentially calling for delimitation in the world as a whole, it is not 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.
NO OBLIGATION, WHETHER PARTY TO THE CONVENTION OR NOT. 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 favor 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 (par. 22 and 23), there is no lack of other reasons for using the equidistance
method, so that acting, or agreeing to act in a certain way, does not of itself
demonstrate anything of a juridical nature.
MUST BE SETTLED PRACTICE, DONE WITH SENSE OF OBLIGATION. 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, 2
31
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 feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual character of the
acts is not in itself enough. There are many international acts, (ceremonial and
protocol) which are performed almost invariably, but which are motivated only by
considerations of courtesy, convenience or tradition, and not by any sense of legal
duty.
VIEW OF THE PERMANENT COURT OF INTERNATIONAL JUSTICE IN THE
LOTUS CASE adopted: the principle of which is, by analogy, applicable almost
word for word, mutatis mutandis, here (P.C.I.J., Series A, No. 10, 1927, at p. 28):
'Even if the rarity of the judicial decisions to be found ... were sufficient to prove ...
the circumstance alleged ..., it would merely show that States had often, in
practice, abstained from instituting criminal proceedings, and not that they
recognized themselves as being obliged to do so; for only if such abstention were
based on their being conscious of having a duty to abstain would it be possible to
speak of an international custom. The alleged fact does not allow one to infer that
States have been conscious of having such a duty; on the other hand, ...there are
other circumstances calculated to show that the contrary is true.'
NO LEGAL COMPULSION. In certain cases-not a great number-the States
concerned agreed to draw or did draw the boundaries concerned according to the
principle of equidistance. There is no evidence that they so acted because they
felt legally compelled to draw them in this way by reason of a rule of customary
law obliging them to do so-especially considering that they might have been
motivated by other obvious factors.
USUALLY, OPPOSITE, NOT LATERAL STATES ARE INVOLVED. In almost all
of the cases cited, the delimitations concerned were median-line delimitations
between opposite States, not lateral delimitations between adjacent States. The
case of median-line delimitations between opposite States is different in various
respects, and as being sufficiently distinct not to constitute a precedent for the
delimitation of lateral boundaries (par.57). In only 1 situation discussed by the
Parties does there appear to have been a geographical configuration which to
some extent resembles the present one, in the sense that a number of States on
the same coastline are grouped around a sharp curve or bend of it. No complete
delimitation in this area has however yet been carried out. But the Court is not
concerned to deny to this case, or any other of those cited, all evidential value in
favor of the thesis of Denmark and the Netherlands. It simply considers that they
are inconclusive, and insufficient to bear the weight sought to be put upon them
as evidence of such a settled practice, manifested in such circumstances, as
would justify the inference that delimitation according to the principle of
equidistance amounts to a mandatory rule of customary international law,-more
particularly where lateral delimitations are concerned. There are of course plenty
Always will b
 * bok * cj * tiff * Gem * tin *
of cases of delimitations of waters, as opposed to seabed, being carried out on
the basis of equidistance-mostly of internal waters (lakes, rivers, etc.), and mostly
median-line cases. The nearest analogy is that of adjacent territorial waters, but
as already explained (par. 59) the Court does not consider this case to be
analogous to that of the continental shelf.
IF THE GENEVA CONVENTION WAS NOT IN ITS ORIGINS OR INCEPTION
DECLARATORY OF A MANDATORY RULE OF CUSTOMARY INT’L 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. This conclusion, coupled
with that reached earlier (par. 56) to the effect that the equidistance principle could
not be regarded as being a rule of law on any a priori basis of logical necessity
deriving from the fundamental theory of the continental shelf, leads to the final
conclusion on this part of the case that the use of the equidistance method is not
obligatory for the delimitation of the areas concerned in the present proceedings.
It becomes unnecessary for the Court to determine whether or not the
configuration of the German North Sea coast constitutes a 'special circumstance'
for the purposes either of Art. 6 or of any rule of customary international law,-since
once the use of the equidistance method of delimitation is determined not to be
obligatory in any event, it ceases to be legally necessary to prove the existence of
special circumstances in order to justify not using that method.
COURT TO GUIDE, NOT DICTATE. The Court is not called upon to delimit the
areas of continental shelf appertaining respectively to each Party, and in
consequence is not bound to prescribe the methods to be employed for the
purposes of such a delimitation. It has to indicate to the Parties the principles and
rules of law in the light of which the methods for eventually effecting the
delimitation will have to be chosen, by providing the Parties with the requisite
directions, without substituting itself for them by means of a detailed indication of
the methods to be followed and the factors to be taken into account for the
purposes of a delimitation the carrying out of which the Parties have expressly
reserved to themselves.
DELIMITATION MUST BE THE OBJECT OF AGREEMENT BETWEEN THE
STATES CONCERNED, AND THAT SUCH AGREEMENT MUST BE ARRIVED
AT IN ACCORDANCE WITH EQUITABLE PRINCIPLES. On a foundation of very
general precepts of justice and good faith, actual rules of law are here involved
which govern the delimitation of adjacent continental shelves- that is to say, rules
binding upon States for all delimitations; in short, it is not a question of applying
equity simply as a matter of abstract justice, but of applying a rule of law which
itself requires the application of equitable principles, in accordance with the ideas
which have always underlain the development of the legal regime of the
continental shelf in this field, namely:
(a) the parties are under an obligation to enter into negotiations with a view to
arriving at an agreement, and not merely to go through a formal process of
32
negotiation as a sort of prior condition for the automatic application of a certain
method of delimitation in the absence of agreement; they are under an obligation
so to conduct themselves that the negotiations are meaningful, which will not be
the case when either of them insists upon its own position without contemplating
any modification of it;
(b) the parties are under an obligation to act in such a way that, in the particular
case, and taking all the circumstances into account, equitable principles are
applied,-for this purpose the equidistance method can be used, but other methods
exist and may be employed, alone or in combination, according to the areas
involved;
(c) for the reasons given in paragraphs 43 and 44, the continental shelf of any
State must be the natural prolongation of its land territory and must not encroach
upon what is the natural prolongation of the territory of another State.
WRT RULE 1, NEGOTIATION. The obligation to negotiate which the Parties
assumed by Art. 1, par. 2, of the Special Agreements arises out of the Truman
Proclamation, which, (par. 47), must be considered as having propounded the
rules of law in this field, but also that this obligation merely constitutes a special
application of a principle which underlies all international relations, and which is
moreover recognized in Art. 33 of the Charter of the U.N. as one of the methods
for the peaceful settlement of international disputes. The fundamental character
of this method of settlement is emphasized by the observable fact that judicial or
arbitral settlement is not universally accepted.
DUTY TO NEGOTIATE. As the Permanent Court of International Justice said in its
Order of Aug. 19, 1929 in the case of the Free Zones of Upper Savoy and the
District of Gex, the judicial settlement of international disputes 'is simply an
alternative to the direct and friendly settlement of such disputes between the
parties' (P.C.I.J., Series A, No. 22, at p. 13). Defining the content of the obligation
to negotiate, the Permanent Court, in its Advisory Opinion in the case of Railway
Traffic between Lithuania and Poland, said that the obligation was 'not only to
enter into negotiations but also to pursue them as far as possible with a view to
concluding agreements', even if an obligation to negotiate did not imply an
obligation to reach agreement (P.C.I.J., Series A/B, No. 42, 1931, at p. 116).
Here, whatever the details of the negotiations carried on in 1965 and 1966, they
failed of their purpose because the Denmark and the Netherlands, convinced that
the equidistance principle alone was applicable, in consequence of a rule binding
upon the Federal Republic, saw no reason to depart from that rule; and equally,
given the geographical considerations stated in the last sentence of par. 7 above,
the Federal Republic could not accept the situation resulting from the application
of that rule. So far therefore the negotiations have not satisfied the conditions
indicated in par. 85 (a), but fresh negotiations are to take place on the basis of the
present Judgment.
RULE 2, EQUITY. The legal basis of that rule in the particular case of the
delimitation of the continental shelf as between adjoining States rests also on a
broader basis. Whatever the legal reasoning of a court of justice, its decisions
must by definition be just, and therefore in that sense equitable. Nevertheless,
when mention is made of a court dispensing justice or declaring the law, what is
Always will b
 * bok * cj * tiff * Gem * tin *
meant is that the decision finds its objective justification in considerations lying not
outside but within the rules, and in this field it is precisely a rule of law that calls
for the application of equitable principles. There is consequently no question in
this case of any decision ex aequo et bono, such as would only be possible under
the conditions prescribed by Art. 38, par. 2, of the Court's Statute. Nor would this
be the first time that the Court has adopted such an attitude, as is shown by the
following passage from the Advisory Opinion given in the case of Judgments of
the Administrative Tribunal of the I.L.O. upon Complaints Made against Unesco
(I.C.J. Reports 1956, at p. 100):
'In view of this the Court need not examine the allegation that the validity of the
judgments of the Tribunal is vitiated by excess of jurisdiction on the ground that it
awarded compensation ex aequo et bono. It will confine itself to stating that, in
the reasons given by the Tribunal in support of its decision on the merits, the
Tribunal said: 'That redress will be ensured ex aequo et bono by the granting to
the complainant of the sum set forth below.' It does not appear from the context of
the judgment that the Tribunal thereby intended to depart from principles of law.
The apparent intention was to say that, as the precise determination of the actual
amount to be awarded could not be based on any specific rule of law, the Tribunal
fixed what the Court, in other circumstances, has described as the true measure
of compensation and the reasonable figure of such compensation (Corfu Channel
case, Judgment of Dec. 15th, 1949, I.C.J. Reports 1949, p. 249).'
INEQUITY OF THE EQUIDISTANCE METHOD, IN CERTAIN GEOGRAPHICAL
CIRCUMSTANCES:
(a) The slightest irregularity in a coastline is automatically magnified by the
equidistance line as regards the consequences for the delimitation of the
continental shelf. Thus it has been seen in the case of concave or convex
coastlines that if the equidistance method is employed, then the greater the
irregularity and the further from the coastline the area to be delimited, the more
unreasonable are the results produced. So great an exaggeration of the
consequences of a natural geographical feature must be remedied or
compensated for as far as possible, being of itself creative of inequity.
(b) In the case of the North Sea in particular, where there is no outer boundary to
the continental shelf, it happens that the claims of several States converge, meet
and intercross in localities where, despite their distance from the coast, the bed of
the sea still unquestionably consists of continental shelf. A study of these
convergences, as revealed by the maps, shows how inequitable would be the
apparent simplification brought about by a delimitation which, ignoring such
geographical circumstances, was based solely on the equidistance method.
IS IT NECESSARY TO EMPLOY ONLY ONE METHOD FOR THE PURPOSES
OF A GIVEN DELIMITATION? NO. No objection need be felt to the idea of
effecting a delimitation of adjoining continental shelf areas by the concurrent use
of various methods. Equity does not necessarily imply equality. There can never
be any question of completely refashioning nature, and equity does not require
that a State without access to the sea should be allotted an area of continental
shelf, any more than there could be a question of rendering the situation of a
33
State with an extensive coastline similar to that of a State with a restricted
coastline. Equality is to be reckoned within the same plane, and it is not such
natural inequalities as these that equity could remedy. But here, there are 3
States whose North Sea coastlines are in fact comparable in length and which,
have been given broadly equal treatment by nature except that the configuration
of one of the coastlines would, if the equidistance method is used, deny to one of
these States treatment equal or comparable to that given the other two. Here, in
a theoretical situation of equality within the same order, an inequity is created.
What is unacceptable in this instance is that a State should enjoy continental shelf
rights considerably different from those of its neighbors merely because in the one
case the coastline is roughly convex in form and in the other it is markedly
concave, although those coastlines are comparable in length. It is not a question
of totally refashioning geography whatever the facts of the situation but, given a
geographical situation of quasi-equality as between a number of States, of abating
the effects of an incidental special feature from which an unjustifiable difference of
treatment could result.
SEEK NOT 1 METHOD BUT 1 GOAL. It has been maintained that no one
method of delimitation can prevent such results and that all can lead to relative
injustices. This can only strengthen the view that it is necessary to seek not one
method of delimitation but one goal. As the operation of delimiting is a matter of
determining areas appertaining to different jurisdictions, it is a truism to say that
the determination must be equitable; rather is the problem above all one of
defining the means whereby the delimitation can be carried out in such a way as
to be recognized as equitable. Although the Parties have made it known that they
intend to reserve for themselves the application of the principles and rules laid
down by the Court, it would, even so, be insufficient simply to rely on the rule of
equity without giving some degree of indication as to the possible ways in which it
might be applied in the present case, it being understood that the Parties will be
free to agree upon one method rather than another, or different methods if they so
prefer. There is no legal limit to the considerations which States may take account
of for the purpose of making sure that they apply equitable procedures, and more
often than not it is the balancing-up of all such considerations that will produce
this result rather than reliance on one to the exclusion of all others. The problem
of the relative weight to be accorded to different considerations naturally varies
with the circumstances of the case.
BALANCE FACTORS: GEOLOGICAL, GEOGRAPHICAL, IDEA OF THE UNITY
OF ANY DEPOSITS, PROPORTIONALITY. These criteria, though not entirely
precise, can provide adequate bases for decision adapted to the factual situation.
GEOLOGY. The institution of the continental shelf has arisen out of the
recognition of a physical fact; and the link between this fact and the law, without
which that institution would never have existed, remains an important element for
the application of its legal regime. The continental shelf is, by definition, an area
physically extending the territory of most coastal States into a species of platform
which has attracted the attention first of geographers and hydrographers and then
of jurists. The importance of the geological aspect is emphasized by the care
which, at the beginning of its investigation, the International Law Commission took
Always will b
 * bok * cj * tiff * Gem * tin *
to acquire exact information as to its characteristics, as can be seen in particular
from the definitions to be found on page 131 of Volume I of the Yearbook of the
International Law Commission for 1956. The appurtenance of the shelf to the
countries in front of whose coastlines it lies, is therefore a fact, and it can be
useful to consider the geology of that shelf in order to find out whether the
direction taken by certain configurational features should influence delimitation
because, in certain localities, they point-up the whole notion of the appurtenance
of the continental shelf to the State whose territory it does in fact prolong.
GEOGRAPHY. The doctrine of the continental shelf is a recent instance of
encroachment on maritime expanses which, during the greater part of history,
appertained to no-one. The contiguous zone and the continental shelf are in this
respect concepts of the same kind. In both instances the principle is applied that
the land dominates the sea; it is consequently necessary to examine closely the
geographical configuration of the coastlines of the countries whose continental
shelves are to be delimited. This is one of the reasons why the Court does not
consider that markedly pronounced configurations can be ignored; for, since the
land is the legal source of the power which a State may exercise over territorial
extensions to seaward, it must first be clearly established what features do in fact
constitute such extensions. Above all is this the case when what is involved is no
longer areas of sea, such as the contiguous zone, but stretches of submerged
land; for the legal regime of the continental shelf is that of a soil and a subsoil, 2
words evocative of the land and not of the sea.
UNITY OF ANY DEPOSITS. The natural resources of the subsoil of the sea in
those parts which consist of continental shelf are the very object of the legal
regime established subsequent to the Truman Proclamation. Yet it frequently
occurs that the same deposit lies on both sides of the line dividing a continental
shelf between two States, and since it is possible to exploit such a deposit from
either side, a problem immediately arises on account of the risk of prejudicial or
wasteful exploitation by one or other of the States concerned. To look no farther
than the North Sea, the practice of States shows how this problem has been dealt
with, and all that is needed is to refer to the undertakings entered into by the
coastal States of that sea with a view to ensuring the most efficient exploitation or
the apportionment of the products extracted-(Mar. 10, 1965 agreement between
the UK and Norway, Art. 4; the agreement of Oct. 6, 1965 between the
Netherlands and the UK relating to 'the exploitation of single geological structures
extending across the dividing line on the continental shelf under the North Sea';
and the agreement of May 14, 1962 between the Federal Republic and the
Netherlands concerning a joint plan for exploiting the natural resources underlying
the area of the Ems Estuary where the frontier between the 2 States has not been
finally delimited.) The Court does not consider that unity of deposit constitutes
anything more than a factual element which it is reasonable to take into
consideration in the course of the negotiations for a delimitation. The Parties are
fully aware of the existence of the problem as also of the possible ways of solving
it.
REASONABLE DEGREE OF PROPORTIONALITY which a delimitation effected
according to equitable principles ought to bring about between the extent of the
34
continental shelf appertaining to the States concerned and the lengths of their
respective coastlines,-these being measured according to their general direction
in order to establish the necessary balance between States with straight, and
those with markedly concave or convex coasts, or to reduce very irregular
coastlines to their truer proportions. The choice and application of the appropriate
technical methods would be a matter for the parties. One method discussed,
under the name of the principle of the coastal front, consists in drawing a straight
baseline between the extreme points at either end of the coast concerned, or in
some cases a series of such lines. Where the parties wish to employ in particular
the equidistance method of delimitation, the establishment of one or more
baselines of this kind can play a useful part in eliminating or diminishing the
distortions that might result from the use of that method.
PARTIES TO CHOOSE WHAT’S BEST. In a sea with the particular configuration
of the North Sea, and in view of the particular geographical situation of the Parties'
coastlines upon that sea, the methods chosen by them for the purpose of fixing
the delimitation of their respective areas may happen in certain localities to lead to
an overlapping of the areas appertaining to them. The Court considers that such
a situation must be accepted as a given fact and resolved either by an agreed, or
failing that by an equal division of the overlapping areas, or by agreements for
joint exploitation, the latter solution appearing particularly appropriate when it is a
question of preserving the unity of a deposit. The Court has examined the
problems raised by the present case in its own context, which is strictly that of
delimitation. Other questions relating to the general legal regime of the
continental shelf, have been examined for that purpose only. This regime
furnishes an example of a legal theory derived from a particular source that has
secured a general following. As the Court has recalled in the first part of its
Judgment, it was the Truman Proclamation of Sept. 28, 1945 which was at the
origin of the theory, whose special features reflect that origin. It would therefore
not be in harmony with this history to over-systematize a pragmatic construct the
developments of which have occurred within a relatively short space of time.
For these reasons, THE COURT, by 11 votes to 6, finds that, in each case,
(A) the use of the equidistance method of delimitation not being obligatory as
between the Parties; and
(B) there being no other single method of delimitation the use of which is in all
circumstances obligatory;
(C) the principles and rules of international law applicable to the delimitation as
between the Parties of the areas of the continental shelf in the North Sea which
appertain to each of them beyond the partial boundary determined by the
agreements of 1 December 1964 and 9 June 1965, respectively, are as follows:
(1) delimitation is to be effected by agreement in accordance with equitable
principles, and taking account of all the relevant circumstances, in such a way as
to leave as much as possible to each Party all those parts of the continental shelf
Always will b
 * bok * cj * tiff * Gem * tin *
that constitute a natural prolongation of its land territory into and under the sea,
without encroachment on the natural prolongation of the land territory of the other;
(2) if, in the application of the preceding sub-paragraph, the delimitation leaves to
the Parties areas that overlap, these are to be divided between them in agreed
proportions or, failing agreement, equally, unless they decide on a regime of joint
jurisdiction, user, or exploitation for the zones of overlap or any part of them;
(D) in the course of the negotiations, the factors to be taken into account are to
include:
(1) the general configuration of the coasts of the Parties, as well as the presence
of any special or unusual features;
(2) so far as known or readily ascertainable, the physical and geological structure,
and natural resources, of the continental shelf areas involved;
(3) the element of a reasonable degree of proportionality, which a delimitation
carried out in accordance with equitable principles ought to bring about between
the extent of the continental shelf areas appertaining to the coastal State and the
length of its coast measured in the general direction of the coastline, account
being taken for this purpose of the effects, actual or prospective, of any other
continental shelf delimitations between adjacent States in the same region.
SEPARATE OPINION OF PRESIDENT J. L. BUSTAMANTE Y RIVERO: doubts
par. 59 of the main opinion. “the concept…of ‘natural prolongation’ of the land
territory of a State and the extent of the continental shelf appertaining to such land
territory.” He prefers low-water mark, “A more stable baseline must be found and it
might be obtained by measuring the length of the coastline according to its
general direction, by means of a straight line drawn between the 2 extreme points
of the marine frontier of the State concerned.”
JUDGE JESSUP: concurs, but thought more attention should be given the
“realities” of the “just and equitable share,” emphasizing “known or probable
existence of deposits of oil and gas in that seabed.” Further, “It is of course true
that there is no rule of international law which requires States surrounding an area
such as the North Sea to delimit their respective sections of the continental shelf
in such a way as to apportion to each State a 'fair share' of the mineral resources
on or in that shelf. Such a rule would be impossible of application since it would
require as a condition precedent precise knowledge of the location and size or
productivity of all parts of the area.” Even if the equidistance method was not
mandatory by international law, the Court must assume that the Parties acted in
good faith, and should not consider void the licenses previously granted by
Denmark and the Netherlands in reliance upon their mutual delimitation
agreement of 1966. When claims overlap, agreed division or joint exploitation
might be appropriate.
JUDGE PADILLA NERVO: concurs, “In my opinion, Article 6 does not embody a
pre-existing accepted rule of customary international law, or one which has come
to be regarded as such…The acts of the Federal Republic which are invoked as
evidence that it has gone quite a long way towards recognizing the Convention,
cannot override the fact that it has consistently refused to recognize Article 6 and
35
the equidistance method as an expression of a generally accepted rule of
international law and has objected to its applicability as against itself. The Federal
Republic, like any other State, could assert its rights over the continental shelf
without relying on the Convention. The only principle of general international law
implicit in Article 6 is the obligation to negotiate, since the delimitation between the
continental shelves of adjacent States 'shall be determined by agreement
between them’. The fact that the equidistance method has been followed in
several bilateral agreements between neighbouring States does not mean at all
that those States were compelled by the Convention to use the equidistance
method. It only means that there was agreement between them because they
considered such method satisfactory, fair, equitable and convenient. They also
departed from the equidistance method when they agreed to do that.
JUDGE AMMOUN: concurs, I am in agreement with the majority of the Court in
declaring that the equidistance method provided for in Article 6, paragraph 2, of
the 1958 Convention, is not opposable as a rule of treaty-law to the Federal
Republic of Germany, and that this rule has also not up to the present time
become a rule of customary law. On the other hand, I consider that recourse may
be had to the equidistance method, qualified by special circumstances, as a legal
rule applicable to the case and derived from a general principle of law, namely
equity praeter legem.
JUDGE KORETZKY: dissents, I consider that the principles and rules of
international law enshrined in Art. 6, par. 2, of the Convention on the Continental
Shelf ought to be applied in these cases at least qua general principles and rules
of international law. But even if one does not agree that this provision is applicable
in these cases in its entirety or in part, it is nevertheless necessary that the
principles and rules which are applied in the delimitation of a lateral boundary of
the continental shelf should have a natural connection with the three
interconnected principles and rules-agreement, special circumstances,
equidistance-which determine the boundaries of a territorial sea. For, considering
that it is a continuation, a natural prolongation of the territorial sea (its bed and
subsoil), the continental shelf is not unlimited in extent, whether seaward or
laterally, but lies within limits consistently continuing the boundary lines of the
territorial sea in accordance with the same principles, rules and treaty provisions
as provided the basis for the determination of the territorial sea between the 2
given adjacent States; that is, in these cases, between the Netherlands and
Germany on the one hand and between Denmark and Germany on the other.
JUDGE TANAKA: agrees as to the 1ST principle of international law to be applied
in the delimitation or the obligation to enter into negotiations with a view to arriving
at an agreement. But on the “substantive” issue as to equidistance principle or
equitable principle, he dissents: 1) the Court recognizes that delimitation by the
application of the equidistance principle would produce in the present cases an
unjust & inequitable effect detrimental to Germany, which is not the case, as
stated above; 2) on this hypothesis, the Court admits in favor of the Federal
Republic an appeal to higher ideas of law such as justice, equity or equitableness,
and reasonableness, which are self-evident but which, owing to their general and
abstract character, are unable to furnish any concrete criteria for delimitation in
Always will b
 * bok * cj * tiff * Gem * tin * 36
the present cases. Reference to the equitable principle is nothing else but
begging the question; and 3) the factors which may be taken into consideration to
carry out the equitable principle are of diverse nature and susceptible of different
evaluations. Consequently, it appears extremely doubtful whether the
negotiations could be expected to achieve a successful result, and more likely that
they would engender new complications and chaos. The important matter in
connection with the present cases is that the Parties should have a guarantee of
being able to terminate the possibly endless repetition of detailed negotiations by
the final application of the equidistance principle. Another important matter should
be that, the Court by according the equidistance principle the status of a world law
would make a contribution to the progressive development of international law.

JUDGE LACHS: dissents, the real legal problem with which the Court has been
confronted is not that of the binding effect of the equidistance rule upon the
Federal Republic, for this is established, but the question of whether there are
special circumstances which would justify a departure from it in the present
cases. No such special circumstances exist. The evidence produced in the cases
before the Court is not in fact sufficient to justify an exemption from the rule. It
has not been shown that its application would, on account of the bend in the
coast, expose the Federal Republic to any special hardship, impose upon it any
undue burdens or create for it any serious difficulties. He finds no adequate basis
for exemption from the equidistance rule, thus, Art. 6 must be applied

JUDGE SØRENSEN: dissents, since the Convention belongs to a particular

category of multilateral conventions, namely those which result from the work of
the United Nations in the field of codification and progressive development of
international law, under Art. 13 of the Charter. Contrary to the majority opinion’s
“minimum conditions for recognizing that a treaty provision attains the character of
a generally accepted rule of customary law,” he says that “a relevant element that
a convention has been adopted in the process of codification and development of
international law under the UN Charter.” Since the Geneva Convention has been
ratified or acceded to by a significant number of nations all over the world and no
state exercising sovereign rights over its continental shelf per the provisions of the
Convention has met protest other than those arising from interpretation of the
provisions, he posits that “as a result of a continuous process over a quarter of a
century, the rules embodied in the Geneva Convention on the Continental Shelf
have now attained the status of generally accepted rules of international law.” The
general rule must be applied. “But the Court has to base its findings on the
geographical and political factors as they are, and not upon comparisons with
hypothetical situations. The politico-geographical circumstances of coastal States
all over the world, including those around the North Sea, are extremely different
and have the effect of producing great inequalities as to the areas of continental
shelf which each State could claim under the principle of equidistance. The
special circumstances clauses of Art. 6 cannot reasonably be understood as being
designed to rectify any such inequalities caused by elementary geographical
factors in combination with the location of political frontiers.”

Always will b