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PIL- session 2 -

- 4. In cases not falling under the preceding paragraphs and unless the treaty
Vienna Convention on the Law of Treaties (take note of the definition of “reservation” - otherwise provides:
under Art. 2) -
Borovsky vs Commissioner - (a) acceptance by another contracting State of a reservation constitutes the
Reyes vs Bagatsing - reserving State a party to the treaty in relation to that other State if or
Agustin vs Edu - when the treaty is in force for those States;
Philip Morris, Inc vs Court of Appeals -
Tanada vs Angara - (b) an objection by another contracting State to a reservation does not
Nicaragua case (continued) - preclude the entry into force of the treaty as between the objecting and
North Sea Continental Shelf Case - reserving States unless a contrary intention is definitely expressed by the
Norwegian Fisheries Case - objecting State;
-
Vienna Convention on the Law of Treaties (take note of the definition of - (c) an act expressing a State's consent to be bound by the treaty and
“reservation” under Art. 2) - containing a reservation is effective as soon as at least one other contracting
- 2 (d) “reservation” means a unilateral statement, however phrased or named, - State has accepted the reservation.
made by a State, when signing, ratifying, accepting, approving or acceding to a -
treaty, whereby it purports to exclude or to modify the legal effect of certain - 5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise
provisions of the treaty in their application to that State; - provides, a reservation is considered to have been accepted by a State if it
- SECTION 2. RESERVATIONS - shall have raised no objection to the reservation by the end of a period of
- ARTICLE 19 - FORMULATION OF RESERVATIONS - twelve months after it was notified of the reservation or by the date on which
- ---------------------------------------- - it expressed its consent to be bound by the treaty, whichever is later.
- -
- A State may, when signing, ratifying, accepting, approving or acceding to a - ARTICLE 21 - LEGAL EFFECTS OF RESERVATIONS AND OF OBJECTIONS TO
- treaty, formulate a reservation unless: RESERVATIONS
- - ----------------------------------------------------------------------------
- (a) the reservation is prohibited by the treaty; -
- - 1. A reservation established with regard to another party in accordance with
- (b) the treaty provides that only specified reservations, which do not include - articles 19, 20 and 23:
- the reservation in question, may be made; or -
- - (a) modifies for the reserving State in its relations with that other party the
- (c) in cases not falling under sub-paragraphs (a) and (b), the reservation is - provisions of the treaty to which the reservation relates to the extent of the
- incompatible with the object and purpose of the treaty. - reservation; and
- -
- ARTICLE 20 - ACCEPTANCE OF AND OBJECTION TO RESERVATIONS - (b) modifies those provisions to the same extent for that other party in its
- -------------------------------------------------------- - relations with the reserving State.
- -
- 1. A reservation expressly authorized by a treaty does not require any - 2. The reservation does not modify the provisions of the treaty for the other
- subsequent acceptance by the other contracting States unless the treaty so - parties to the treaty inter se.
- provides. -
- - 3. When a State objecting to a reservation has not opposed the entry into force
- 2. When it appears from the limited number of the negotiating States and the - of the treaty between itself and the reserving State, the provisions to which
- object and purpose of a treaty that the application of the treaty in its - the reservation relates do not apply as between the two States to the extent of
- entirety between all the parties is an essential condition of the consent of - the reservation.
- each one to be bound by the treaty, a reservation requires acceptance by all -
- the parties. - ARTICLE 22 - WITHDRAWAL OF RESERVATIONS AND OF OBJECTIONS TO
- RESERVATIONS
- 3. When a treaty is a constituent instrument of an international organization - -------------------------------------------------------------------------
- and unless it otherwise provides, a reservation requires the acceptance of the -
- competent organ of that organization. - 1. Unless the treaty otherwise provides, a reservation may be withdrawn at any

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- time and the consent of a State which has accepted the reservation is not Victor A. Borovsky, a stateless citizen though a Russian by birth according to his
- required for its withdrawal. allegations, prays for release from the custody of the Director of Prisons, who holds him
- for purposes of deportation.
- 2. Unless the treaty otherwise provides, an objection to a reservation may be In December, 1946, the President of the Philippines ordered petitioner's deportation as
- withdrawn at any time. undesirable alien, after a proper investigation by the Deportation Board upon charges of
- being a vagrant and habitual drunkard, engaged in espionage activities, whose presence
- 3. Unless the treaty otherwise provides, or it is otherwise agreed: and conduct endangered the public interest. Pursuant to such order, Borovsky was
- placed aboard a vessel bound for Shanghai; but the authorities there declined to admit
- (a) the withdrawal of a reservation becomes operative in relation to another him for lack of the proper visa, which the Chinese consulate in this country had refused
- contracting State only when notice of it has been received by that State; to give. Wherefore he was brought back to the Philippines. Thereafter he was
- temporarily released pending further arrangements for his banishment. And when
- (b) the withdrawal of an objection to a reservation becomes operative only subsequently a Russian boat called at Cebu, Borovsky was re-arrested and transported to
when Cebu for deportation; however, the captain of the boat declined to take him, explaining
- notice of it has been received by the State which formulated the reservation. he had no permission from his government to do so. Wherefore the petitioner is now
- confined in .the premises of the New Bilibid Prisons not exactly as a prisoner while the
- ARTICLE 23 - PROCEDURE REGARDING RESERVATIONS Government is exerting efforts to ship him to a foreign country.
- ---------------------------------------------
- There is no question as to the validity of the deportation decree. It must be admitted that
- 1. A reservation, an express acceptance of a reservation and an objection to a temporary detention is a necessary step in the process of exclusion or expulsion of
- reservation must be formulated in writing and communicated to the undesirable aliens and that pending arrangements for his deportation, the Government
contracting has the right to hold the undesirable alien under confinement for a reasonable length of
- States and other States entitled to become parties to the treaty. time. However, under established precedents, too long a detention may justify the
- issuance of a writ of habeas corpus.[1]
- 2. If formulated when signing the treaty subject to ratification, acceptance or
The meaning of "reasonable time" depends upon the circumstances, specially the
- approval, a reservation must be formally confirmed by the reserving State
difficulties of obtaining a passport, the availability of transportation, the diplomatic
when
arrangements with the governments concerned and the efforts displayed to send the
- expressing its consent to be bound by the treaty. In such a case the
deportee away.[2]Considering that this Government desires to expel the alien, and does
- reservation shall be considered as having been made on the date of its
not relish keeping him at the people's expense, we must presume it is making efforts to
- confirmation.
carry out the decree of exclusion by the highest officer of the land. On top of this
-
presumption assurances were made during the oral argument that the Government is
- 3. An express acceptance of, or an objection to, a reservation made previously
really trying to expedite the expulsion of this petitioner. On the other hand, the record
- to confirmation of the reservation does not itself require confirmation.
fails to show how long he has been under confinement since the last time he was
-
apprehended. Neither does he indicate neglected opportunities to send him abroad. And
- 4. The withdrawal of a reservation or of an objection to a reservation must be
unless it is shown that the deportee is being indefinitely imprisoned under the pretense
- formulated in writing.
of awaiting a chance for deportation[3] or unless the Government admits that it can not
-
deport him[4] or unless the detainee is being held for too long a period our courts will not
Borovsky vs Commissioner
interfere.

In the United States there were at least two instances in which courts fixed a time limit
[ G.R. No. L-2852, June 30, 1949 ] within which the imprisoned aliens should be deported[5] otherwise their release would
be ordered by writ of habeas corpus. Nevertheless, supposing such precedents apply in
this jurisdiction, still we have no sufficient data fairly to fix a definite deadline. Petition
VICTOR A. BOROVSKY, PETITIONER, VS. THE COMMISSIONER OF IMMIGRATION AND denied. No costs.
THE DIRECTOR OF PRISONS, RESPONDENTS.
Moran, C. J., Ozaeta, Montemayor, and Reyes, JJ., concur.
DECISION
MORAN, C. J.:
BENGZON, J.: I hereby certify that Mr. Justice Pablo voted to deny the petition.

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to 5:00 in the afternoon, starting from the Luneta, a public park, to the gates of
the United States Embassy, two blocks away. (Open space of public property)
 During the course of the oral argument, it was stated that after the delivery of
[1] Wong Wing vs. U. S., 163 U. S., 228; Administrative Control of Aliens by Van Vleck p.
two brief speeches, a petition based on the resolution adopted on the last day by
184, citing Chumura vs. Smith, 29 Fed. (2d), 287, and Ex parte Mathews, 277 Fed., 857.
the International Conference for General Disarmament, World Peace and the
Removal of All Foreign Military Bases held in Manila, would be presented to a
[2] Cf. Clark, Deportation of Aliens p. 423; Van Vleck op. cit. p. 183 et seq. Ross vs. Wallis, representative of the Embassy or any of its personnel who may be there so that
279 Fed., 401. it may be delivered to the United States Ambassador.
o The march would be attended by the local and foreign participants of
[3] Ross vs. Wallis, supra. such conference. There was likewise an assurance in the petition that
in the exercise of the constitutional rights to free speech and assembly,
[4] Bonder vs. Johnson, 5 Fed. (2d), 238.
all the necessary steps would be taken by it "to ensure a peaceful march
[5] Two months, Caranica vs. Nagle, 28 Fed. (2d), 955; four months, Ross vs. and rally."
Wallis, supra.  Justice Reyes filed a suit for mandamus with alternative prayer for writ of
preliminary mandatory injunction due to the fact that as of that date, he had not
been informed of any action taken on his request on behalf of the organization to
hold a rally.
o It turned out that on October 19, such permit was denied. Petitioner
DISSENTING was unaware of such a fact as the denial was sent by ordinary mail.
o The reason for refusing a permit was due to police intelligence reports
PARAS, J.: which strongly militate against the advisability of issuing such permit
at this time and at the place applied for."
I agree to a temporary detention of a person to be deported, but said detention must be  To be more specific, reference was made to persistent
for a reasonable length of time. In this particular case, the deportation order was issued intelligence reports affirming the plans of
in 1946. If the Government is unable to carry out said order within a reasonable period, it subversive/criminal elements to infiltrate and/or disrupt any
should in the meantime release the petitioner, unless he has committed a crime, in which assembly or congregations where a large number of people is
case the law should take its due course. The theory that the detention of a person is to expected to attend."
prevent the commission of a crime, is more in consonance with the idea of concentrating  Mayor suggested, however, in accordance with the
suspected or would be criminal.. In a democracy, however, every person is entitled to recommendation of the police authorities, that "a permit may
freedom, subject to arrest only for actual commission of a crime. At most, I can agree to a be issued for the rally if it is to be held at the Rizal Coliseum
further detention of the herein petitioner, provided that he be released if after six or any other enclosed area where the safety of the
months, the Government is still unable to deport him. participants themselves and the general public may be
TUASON, J.: ensured."
 A minute resolution was issued by the Court granting the mandatory injunction
I concur in this dissenting opinion except that two months constitute, in my judgment, prayed for on the ground that there was no showing of the existence of a clear
reasonable time. and present danger of a substantive evil that could justify the denial of a permit.

FERIA, J.:
W/N the denial of the permit violates the exercise of the cognate rights to free
I dissent from the majority. The Government cannot indefinitely detain the petitioner speech and peaceful assembly – YES
until it may deport the petitioner, without violating the right of the petitioner not to be  The Constitution is quite explicit: "No law shall be passed abridging the freedom
deprived of his liberty without due process of law. of speech, or of the press, or the right of the people peaceably to assemble and
petition the Government for redress of grievances."
 Free speech, like free press, may be identified with the liberty to discuss publicly
Reyes vs Bagatsing and truthfully any matter of public concern without censorship or punishment.
 There is to be then no previous restraint on the communication of views or
REYES V. BAGATSING subsequent liability whether in libel suits, prosecution for sedition, or action for
FACTS: damages, or contempt proceedings unless there be a clear and present danger of
a substantive evil that [the State] has a right to prevent."
 Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the
City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00
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 Freedom of assembly connotes the right people to meet peaceably for purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation
consultation and discussion of matters of public concern. as a defense is understandable but not decisive, in view of the primacy accorded
 What was rightfully stressed is the abandonment of reason, the utterance, the constitutional rights of free speech and peaceable assembly. Even if shown
whether verbal or printed, being in a context of violence. It must always be then to be applicable, that question the confronts this Court.
remembered that this right likewise provides for a safety valve, allowing parties  There was no justification then to deny the exercise of the constitutional rights
the opportunity to give vent to their-views, even if contrary to the prevailing of tree speech and peaceable assembly. These rights are assured by our
climate of opinion. For if the peaceful means of communication cannot be availed Constitution and the Universal Declaration of Human Rights. The participants to
of, resort to non-peaceful means may be the only alternative. Nor is this the sole such assembly, composed primarily of those in attendance at the International
reason for the expression of dissent. Conference for General Disarmament, World Peace and the Removal of All
 There are, of course, well-defined limits. What is guaranteed is peaceable Foreign Military Bases would start from the Luneta. proceeding through Roxas
assembly. One may not advocate disorder in the name of protest, much less Boulevard to the gates of the United States Embassy located at the same street.
preach rebellion under the cloak of dissent. The Constitution frowns on disorder  To repeat, it is settled law that as to public places, especially so as to parks and
or tumult attending a rally or assembly. Resort to force is ruled out and outbreaks streets, there is freedom of access. Nor is their use dependent on who is the
of violence to be avoided. The utmost calm though is not required. applicant for the permit, whether an individual or a group. If it were, then the
 There can be no legal objection, absent the existence of a clear and present freedom of access becomes discriminatory access, giving rise to an equal
danger of a substantive evil, on the choice of Luneta as the place where the peace protection question.
rally would start. Primicias made explicit what was implicit in Municipality of
Cavite v. Rojas, where this Court categorically affirmed that plazas or parks and
streets are outside the commerce of man and thus nullified a contract that leased Agustin vs Edu
Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being
a promenade for public use," which certainly is not the only purpose that it could Agustin v. Edu (1979)
serve. To repeat, there can be no valid reason why a permit should not be granted Petitioner: Leovillo C. Agustin
for the proposed march and rally starting from a public dark that is the Luneta. Respondent: Romeo F. Edu (Land Transportation Commissioner)
Neither can there be any valid objection to the use of the streets, to the gates of Topic: Inherent powers of the state - Police power
the US Embassy, hardly two block-away at the Roxas Boulevard. ______________________________________________________________________
 If the rally were confined to Luneta, no question, as noted, would have arisen. So,
too, if the march would end at another park. SUMMARY: Petitioner challenges the constitutionality of LOI 229 and its IRR, which
 As previously mentioned though, there would be a short program upon reaching requires cars to be equipped w/ early warning devices. Petitioner says that LOI 229 is
the public space between the two gates of the United States Embassy at Roxas oppressive, financially burdensome, discriminatory and implementation of it is not w/n
Boulevard. That would be followed by the handing over of a petition based on powers of the State. The Court ruled otherwise and said that the implementation of LOI
the resolution adopted at the closing session of the Anti-Bases Coalition. 229 is w/n the police power of the State.
 The Philippines is a signatory of the Vienna Convention on Diplomatic
Relations adopted in 1961. FACTS:
o The second paragraph of the Article 22 reads: "2. The receiving  LOI 229: requires motor vehicles to possess early warning devices (triangular,
State is under a special duty to take appropriate steps to protect reflectorized plates in red and yellow) to be issued & charged by the Land
the premises of the mission against any intrusion or damage and Transportation Commissioner
to prevent any disturbance of the peace of the mission or  Agustin says he owns a Volkswagen Beetle that is already equipped w/ blinking
impairment of its dignity. " lights, w/c could very well serve as EWD
o The Constitution "adopts the generally accepted principles of  Agustin also says LOI 229 violates the Constitution (due process & equal
international law as part of the law of the land. ..." protection)
o To the extent that the Vienna Convention is a restatement of the o Undue delegation of police power
generally accepted principles of international law, it should be a o Unreasonable to motoring public (LOI makes it compulsory for them to
part of the law of the land. buy EWDs at Php 56 - Php 72 per set)
 That being the case, if there were a clear and present danger of any  But Edu says implementation of LOI 229 is an exercise of police power which is
intrusion or damage, or disturbance of the peace of the mission, or a right of the State.
impairment of its dignity, there would be a justification for the denial of the  Agustin seeks to nullify both LOI 229 and its implementing rules & regulations
permit insofar as the terminal point would be the Embassy.
 Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila ISSUES:
prohibiting the holding or staging of rallies or demonstrations within a radius of
five hundred (500) feet from any foreign mission or chancery and for other WoN the implementation of LOI 229 is within the scope of the State's police power - YES
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 Scope of police power  There must be standards that sets the limits of legislative policy & specifies w/c
o Calalang v. William: Police power - the state authority to enact public agency will apply it
legislation that may interfere w/ personal liberty or property in order o Standard may be expressed or implied (through the purpose of the
to promote general welfare act)
o Justice Malcolm: "that inherent & plenary power in the State w/c  There has been what is called "subordinate legislation"
enables it to prohibit all things hurtful to the comfort, safety & welfare o Since modern life is becoming more complex and there are more
of society" subjects of governmental regulation + more difficulty adminstering
 Police power: A dynamic agency, w/c is not defined, and changes with time laws = policy-making power can be given to other branches of gov't
because what is critical/urgent in society all changes with time  What is given to the executive power is just authority non-legislative in
 Just because the law guarantees protection of the Constitutional rights of the character
people, doesn't mean they are free to do anything they want to the point that
they obstruct peace, safety, good order and welfare of society. = Police power BESIDES, LOI 229 is in accordance with the 1968 Vienna Convention of Road Signs &
keeps this in check Signals (ratified by PH gov't under PD 207, which recommended the enactment of local
 IN THIS CASE: LOI 229 was intended to promote public safety legislation for the installation of road safety signs & devices)
o At that time, there is a demand for public safety (It was found that one
of the major causes of land accidents is the presence of  Consti states, "The PH adopts the generally accepted principles of int'l law as
disabled/stalled/parked motor vehicles w/o proper early warning part of the law of the land."
devices to signal motorists approaching)  The PH made a commitment as it signed the 1968 Vienna Convention.
o Besides, other acts also promoting public safety have also been
challenged before but their validity was sustained (Reflector Law, RULING: DISMISSED
National Defense Act, etc)
DISSENT (J. Teehankee)
WoN LOI 229 & its IRR violate due process clause - NO  LOI 229 is oppressive & discriminatory - requires owners with already built-in
EWDs to still purchase EWDs prescribed in LOI 229
 There is always a presumption of validity of legislative & executive acts - and so
 No proof yet that there is a public necessity for EWDs + no valid refutation of
there must be convincing evidence to prove otherwise.
statistics that petitioner presented
o In this case, petitioner presented statistics have no factual basis (said
EWDs aren't too vital to the prevention of nighttime vehicular  LOI 229 imposes a big financial burden on motorists (Php 56 - Php 72 per set)
accidents because only 390 out of 26,000 motor vehicle accidents  There are other less burdensome alternative road safety devices aside from the
involve rear-end collisions) prescribed EWDs (Ex. common petroleum lamps)
o BUT it is presumed that the Executive department made a more  No imperative need for imposing requirement on all vehicles
careful study before issuing LOI 229
 Early warning device isn't an expensive redundancy, or oppressive
o Those cars with built-in blinking lights, reflectorized tapes & 2 well- Philip Morris, Inc vs Court of Appeals
lighted petroleum lights = not enough to inform approaching
motorists that it is stalled/parked
 So there's a need for EWDs = w/c is a sign for stalled vehicles
o Nothing in the LOI that requires motorists to purchase the EWDs
prescribed in the LOI -- all it requires is that they equip their vehicles
w/ EWDs obtained from whatever source
 As long as it conforms w/ the specifications in the LOI

WoN the issue at hand is a political question that cannot be passed upon by the Court -
YES

 Petition is not premised on lack of power/unconstitutionality but the wisdom


of the act
 Court doesn't pass upon questions of wisom, justice or expediency of legislation

WoN there is unlawful delegation of legislative power to the Executive - NO

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WN the annexes of the said agreement limit, restrict, or impair the exercise of the
Tanada vs Angara legislative power by Congress? NO, a portion of sovereignty may be waived without
violating the Constitution, based on the rationale that the Philippines "adopts the generally
DOCTRINE OF INCORPORATION: accepted principles of international law as part of the law of the land and adheres to the
The 1987 Philippine Constitution states as one of its principles, as follows: policy of . . . cooperation and amity with all nations."
The Philippines x x x adopts the generally accepted principles of international law as part of
the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, 3. The WTO Agreement provides that "each Member shall ensure the conformity of its
and amity with all nations. laws, regulations and administrative procedures with its obligations as provided in the
This constitutional provision enunciates the doctrine of incorporation which mandates annexed Agreements."
that the Philippines is bound by generally accepted principles of international law which Petitioners maintain that this By the doctrine of incorporation, the
automatically form part of Philippine law by operation of the Constitution. undertaking "unduly limits, restricts and country is bound by generally accepted
impairs Philippine sovereignty, principles of international law, which are
 After WWII, 3 multilateral institutions were created to hasten worldwide specifically the legislative power which considered to be automatically part of our
recovery, the World Bank, the Monetary Fund and the International Trade under Sec. 2, Article own laws. One of the oldest and most
Organization. The ITO never took off unlike the other two. What remained was VI of the 1 987 Philippine Constitution is fundamental rules in international law is
only GATT — the General Agreement on Tariffs and Trade. GATT was a collection vested in the Congress of the Philippines. pacta sunt servanda — international
of treaties governing access to the economies of treaty adherents with no It is an agreements must be performed in good
institutionalized body administering the agreements or dependable system of assault on the sovereign powers of the faith. "A treaty engagement is not a mere
dispute settlement. But after half a century, the world finally gave birth to that Philippines because this means that moral obligation but creates a legally
administering body — the World Trade Organization — with the signing of the Congress binding obligation on the parties . . . A state
"Final Act" in Marrakesh, Morocco and the ratification of the WTO Agreement by could not pass legislation that will be which has contracted valid international
its members good for our national interest and obligations is bound to make in its
 April 15, 1994: On behalf of the Government of the Republic of the Philippines, general welfare if legislations such modifications as may be
then Department of Trade and Industry Secretary Rizalino Navarro signed in such legislation will not conform with the necessary to ensure the fulfillment of the
Marrakesh, Morocco the Final Act Embodying the Results of the Uruguay Round of WTO Agreement, which not only relates obligations undertaken."
Multilateral Negotiations, which included the Ministerial Declarations and to the
Decisions, as well as the Understanding on Commitments in Financial Services. trade in goods . . . but also to the Row of By their inherent nature, treaties really
o By signing the Final Act, 2 Secretary Navarro on behalf of the Republic investments and money . . . as well as to a limit or restrict the absoluteness of
of the Philippines, agreed: whole sovereignty. By their voluntary act, nations
o "(a)to submit, as appropriate, the WTO Agreement for the slew of agreements on socio-cultural may surrender some aspects of their state
consideration of their respective competent authorities, with a view to matters . . ." power in exchange for greater benefits
seeking approval of the Agreement in accordance with their granted by or derived from a convention or
procedures; and WTO proviso derogates from the power pact. After all, states, like individuals, live
o (b) to adopt the Ministerial Declarations and Decisions. to with coequals, and in pursuit of mutually-
 August 12, 1994: The Senate of the Philippines received a letter dated August 11, tax, which is lodged in the Congress. And covenanted objectives and benefits, they
1994 from the President of the Philippines, Fidel V. Ramos, informing the former while the Constitution allows Congress to also commonly agree to limit the exercise
that the Uruguay Final Act is submitted to the Senate for concurrence, pursuant authorize the President to fix tariff rates, of their otherwise absolute rights.
to Section 21, Article VII of the Constitution. import and export quotas, tonnage and
 December 9, 1994: Then President Ramos certified the necessity of the wharfage when the Philippines joined the United
immediate adoption of P.S. 1083 - Concurring in the Ratification of the Agreement dues, and other duties or imposts, such Nations as one of its 51 charter members,
Establishing the World Trade Organization (WTO). authority is subject to "specified limits it consented to restrict its sovereign rights
 December 14, 1994: The Senate adopted Resolution No. 27, concurring the and . . . under the "concept of sovereignty as
ratification by the President with regard to the Agreement Establishing the WTO. such limitations and restrictions" as autolimitation." Under Article 2 of the UN
 December 16, 1994: President Ramos signed the Instrument of Ratification of the Congress may provide, as in fact it did Charter, "(a)ll members shall give the
WTO Agreement under Sec. United Nations every assistance in any
 December 29, 1994: The petition was filed, challenging the constitutionality of 401 of the Tariff and Customs Code. action it takes in accordance with the
the WTO Agreement present Charter, and
shall refrain from giving assistance to any
The third issue is what is pertinent to our topic: state against which the United Nations is
taking

6
preventive or enforcement action." concept of adversarial dispute settlement inherent in our judicial system. Since the
Philippines is a signatory to most international conventions on patents, trademarks and
copyrights, the adjustment in legislation and rules of procedure will not be substantial.

5. A Final Act is just an instrument which records the winding up of the proceedings of a
diplomatic conference and usually includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed upon and signed by the
The Ph has also entered into other treaties. In the foregoing treaties, the Philippines has plenipotentiaries attending the conference. It is not the treaty itself; it’s just a summary of
effectively agreed to limit the exercise of its sovereign powers of taxation, eminent domain the proceedings of a protracted conference. For the Ministerial Declarations and Decisions,
and police power. The underlying consideration in this partial surrender of sovereignty is it did not need ratification for it was deemed adopted. Lastly, the Understanding on
the reciprocal commitment of the other contracting states in granting the same privilege Commitments in Financial Services agrred upon and approved in Marrakesh does not
and immunities to the Philippines, its officials and its citizens. The same reciprocity apply to the country.
characterizes the Philippine commitments under WTO-GATT.
6. By grave abuse of discretion is meant such capricious and whimsical exercise of
OTHER ISSUES: judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It
must be grave abuse of discretion as when the power is exercised in an arbitrary or
1. Whether or not the petition presents a justiciable controversy – Yes despotic manner by reason of passion or personal hostility, and must be so patent and so
gross as to amount to an evasion of positive duty, or to a virtual refusal to perform the duty
2. Whether or not the provisions of the WTO agreement, as well as its three annexes, enjoined, or to act at all in contemplation of law.
contravene Section 19, Article 2, and Sections 10 and 12, Article 13, of the Philippine
Constitution – No

4. Whether or not the provisions unduly impair or interfere with the exercise of judicial Nicaragua case (continued)
power by this court in promulgating rules on evidence – No
Nicaragua v. US (1986)
5. Whether or not the concurrence of the Senate in the WTO Agreement, as well as its FACTS:
annexes, sufficient and/or valid, considering that it did not include the Final Act,  April 9,1984, Nicaragua had initiated proceedings against the United States of
Ministerial Declarations and Decisions, and the Understanding on Commitments in America in the International Court of Justice. US did not appear in in the rest of
Financial Services – Yes the proceedings because it believed the court did not have jurisdiction over the
case.
6. Whether or not there had been a grave abuse of discretion amounting to lack or excess  The action was based on military and paramilitary actions of the US against
of jurisdiction on the part of the Senate in ratifying the WTO Agreement and the Nicaragua:
aforementioned three annexes – None. o An allegation that the United States had supported by its policy and
actions a mercenary army, the contras, in launching attacks on the
1. In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the territory of Nicaragua, with the purpose of overthrowing the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the (Sandinista) Government of Nicaragua.
Legislative Branch is seriously alleged to have infringed the Constitution, it becomes not o Including the mining (land mines) of certain Nicaraguan ports in early
only the right, but in fact, the duty of the Judiciary to settle the dispute. The question posed 1984, and attacks on ports, oil installations, a naval base, etc.
is judicial, rather than political. The duty to adjudicate remains to assure that the o Nicaragua has also complained of overflights of its territory by United
supremacy of the Constitution is upheld. States aircraft, not only for purposes of intelligence gathering and
supply to the contras in the field, but also in order to intimidate the
2. The WTO Agreement, along with its three annexes, does not contravene the population.
Constitution. Article 2 just states general principles / policies, which are used as aids and o Economic Field: Nicaragua claims that the United States has withdrawn
guides, and are not self-executing principles ready to be enforced through the courts. its own aid to Nicaragua, drastically reduced the quota for imports of
sugar from Nicaragua to the United States, and imposed a trade
4. Article 34 of the General Provisions and Basic Principles of Agreement on Trade-Related embargo.
Aspects of Intellectual Property Rights (TRIPS) does not really intrude on the power of the  Nicaragua claims that the United States has acted in violation of a customary
Supreme Court to promulgate rules concerning pleading, practice, and procedures. And if international law obligation to refrain from the threat or use of force; that its
ever such intrusion exists, the reciprocity clause more than justifies it. Moreover, Article actions amount to intervention in the internal affairs of Nicaragua, in breach of
34 does not contain unreasonable burden, consistent as it is with due process and the

7
the Charter of the Organization of American States and of rules of customary  The dispute extends to El Salvador as well who would be affected by the Court’s
international law forbidding intervention. decision. Because of this, the Court concluded that the jurisdiction conferred on
 United States claims Government of Nicaragua launched an “Armed Attack” by it by the US declaration does not permit it to entertain the claims.
way of logistical support, including provision of arms, for guerrillas in El  However, this does not have an impact on the applicability of customary
Salvador. international law which they violated because, even if treaty provisions and
o Armed Attack: “the sending by or on behalf of a State of armed bands, customary law deal with the same subject matter, customary law exists
groups, irregulars or mercenaries, which carry out acts of armed force independently of treaty law.
against another State of such gravity as to amount to” (inter alia) an W/N US was in violation of customary international law obligations - YES
actual armed attack conducted by regular forces, “or its substantial  The Court then considered the rules of customary law applicable to the present
involvement therein”. This resembles Art 3 of the UNGA Resolution dispute. For this purpose it considered whether a customary rule exists in the
3314 on the Definition of Aggression. opinio juris of States, and satisfy itself that it is confirmed by practice.
 Since they were “providing, upon request, proportionate and appropriate  The Court ruled that there can be no doubt that the issues of the use of force and
assistance…” to El Salvador pursuant to Art 51 of the UN Charter. They contend collective self-defense are regulated both by customary international law and by
that because of Nicaragua’s conduct their military and paramilitary actions fall treaties, in particular the United Nations Charter.
within the exception in Art 51.  The prohibition of the use of force as incorporated in the United Nations Charter,
o Art 51 of UN Charter: Nothing in the present Charter shall impair the in essentials, to those found in customary international law AS well as the
inherent right of individual or collective self-defense if an armed attack Customary International Law to not intervene in the State Affairs of another
occurs against a Member of the United Nations, until the Security country.
Council has taken the measures necessary to maintain international  The adherence to these principles was ascertained from parties’ acquiescence to
peace and security. Measures taken by Members in the exercise of this the different resolutions of the UN regarding such matters.
right of self-defense shall be immediately reported to the Security o “It considers that this opinio juris may be deduced from the (consent)
Council and shall not in any way affect the authority and responsibility of the Parties and of States towards certain General Assembly
of the Security Council under the present Charter to take at any time resolutions, and particularly resolution 2625 (YXV) entitled
such action as it deems necessary in order to maintain or restore “Declaration on Principles of International Law concerning Friendly
international peace and security. Relations and Co-operation Among States in Accordance with the
 On reservation: The US declared the acceptance of the compulsory jurisdiction Charter of the United Nations”.”
of the Court under Article 36 (2) of the statute containing a reservation excluding o Consent to such resolutions is one of the forms of expression of an
from the operation of the declaration “disputes arising under a multilateral opinio juris with regard to the principle of non-use of force, regarded
treaty unless (1) all parties to the treaty affected by the decision are also parties as a principle of customary international law, independently of the
to the case before the Court, or (2) the US specially agrees to the jurisdiction. provisions, especially those of an institutional kind, to which it is
subject on the treaty-law plane of the Charter.
ISSUES:  The court, for this case, directed its attention to the practice and opinio juris of
W/N the multilateral treaty reservation applies, divesting the Court of jurisdiction – NO States: as the Court observed, "It is of course axiomatic that the material of
 The Court found, on the basis of Article 79, paragraph 7, of the Rules of Court, customary international law is to be looked for primarily in the actual practice
that the objection to jurisdiction based on the reservation raised "a question and opinio juris of States, even though multilateral conventions may have an
concerning matters of substance relating to the merits of the case and that the important role to play in recording and defining rules deriving from custom, or
objection did "not possess, in the circumstances of the case, an exclusively indeed in developing them".
preliminary character". Since it contained both preliminary aspects and other  In the separate opinion of Judge Nagendra Singh. - The Charter provisions as
aspects relating to the merits, it had to be dealt with at the stage of the merits. well as the Latin American Treaty System have not only developed the concept
 In order to establish whether its jurisdiction was limited by the effect of the but strengthened it to the extent that it would stand on its own, even if the
reservation in question, the Court has to ascertain whether any third States, Charter and the Treaty basis were held inapplicable in this case. The obvious
parties to the four multilateral treaties invoked by Nicaragua, and not parties to explanation is that the original customary aspect which has evolved with the
the proceedings, would be "affected" by the Judgment. treaty law development has come now to stay and survive as the existing modern
 The Court examines the impact of the multilateraI treaty reservation on concept of international law, whether customary, because of its origins, or "a
Nicaragua's claim that the United States has used force in breach of the tvvo general principle of international law recognized by civilized nations". The
Charters. The Court found in particular the case of El Salvador, for whose benefit contribution of the Court has been to emphasize the principle of non-use of force
primarily the United States claims to be exercising the right of collective self- as one belonging to the realm of jus cogens and hence as the very cornerstone of
defense which it regarded as a justification towards its conduct at Nicaragua. the human effort to promote peace in a world torn by strife.
 The Court ruled that the mere fact that States declare their recognition of certain
rules is not sufficient for the Court to consider these as being part of customary
8
international law, and as applicable to those States. Bound as it is by Article 38 W/N US falls within the exception provided by Art. 51 of the UN Charter - NO
of its Stature to apply, inter alia, international custom "as evidence of general  Parties take the view that the principles as to the use of force incorporated in the
practice accepted as law", the Court may not disregard the essential role played United Nations Charter correspond, in essentials, to those found in customary
by general practice. Where two States agree to incorporate a particular rule in a intemational law. They therefore accept a treaty-law obligation to refrain in,
treaty, their agreement suffices to make that rule a legal one, binding upon them; their international relations from the threat or use of force against the territorial
but in the field of customary international law, the shared view of the Parties as integrity or political independence of ;any State, or in any other manner
to the content of what they regard as the rule is not enough. The Court must inconsistent with the purposes of the United Nations
satisfy itself that the existence of the rule in the opinio juris of State is confirmed  The Court has however to be satisfied that there exists in customary law an
by practice. opinion juris as to the binding character of such abstention. It considers that this
 In the present disputes, the Court, while exercising its jurisdiction only in respect opinio juris may be deduoed from, inter alia, the attitude of the Parties and of
of the application of the customary rules of non-use of force and non- States towards certain General Assembly resolutions, and particularly resolution
intervention, cannot disregard the fact that the Parties are bound by these rules 2625
as a matter of treaty law and of customary international law. Furthermore, in the  The Court said that: “Whether self-defense is individual or collective, it can only
present case, apart from the treaty commitments binding the Parties to the rules be exercised in response to an “armed attack”. In the view of the Court, this is to
in question, there are various instances of their having expressed recognition of be understood as meaning not merely action by regular armed forces across an
the validity thereof as customary international law in other ways. It is therefore international border…The Court does not believe that the concept of “armed
in the light of this "subject element" - expression used by the Court in its 1969 attack” includes assistance to rebels in the form of the provision of weapons or
Judgment in the North Sea Continental Shelf cases) - that the Court has to logistical or other support”
appraise the relevant practice.  2 aspects are considered to determine if force was used in collective self-defense:
 The court said that in order to deduce the existence of customary rules, the Court o (1) Whether circumstances required for the exercise of self-defense
deems it sufficient that the conduct of the States should, in general, be consistent existed and (2) Whether the steps taken by the State, which was acting
with such rules, and that instances of State conduct inconsistent with the given in self defense, corresponds to the requirements of International Law.
rule should generally have been treated as breaches of that rule, not as  Other Criteria to be met:
indications of the recognition of a new rule. (1) State must have been victim of armed attack
 The Court emphasized, as was observed in the North Sea Continental Shelf case, (2) State must declare itself a victim of armed attack
for a new customary rule to be formed, not only must the acts concerned " (3) Victim state must ask for assistance
amount to a settled practice", but they must accompanied by the opinio juris sive (4) The state does not, under CIL, have the same obligation under art 51 of
necessitates. Either the States taking such action or other States in a position to the UN Charter to report to the Security Council that an armed attack
react to it, must have behaved so that their conduct is "evidence of a belief that happened – absence of a report may be one of the factors indicating whether
this practice is rendered obligatory by the existence of a rule of law requiring it. the State in question was itself convinced that it was acting in self-defense.
The need for such a belef, i.e., the existence of a subjective elements, is implicit in  The Court looked extensively on the conduct of Nicaragua and found that(1)
the very notion of the opinio juris sive necessitates." none of the countries (El Salvador,Costa Rica, and Honduras) that the US was
 Art 2 Par 4 of UN Charter: The Organization and its Members, in pursuit of the aiding declare themselves to be victims of an armed attack and (2) US did not
Purposes stated in Article 1, shall act in accordance with the following Principles claim to be acting under Art 51 and did not report to the Security Council. These
- (4) All Members shall refrain in their international relations from the threat or criteria lacking the US cannot fall under the exception for collective self-defense.
use of force against the territorial integrity or political independence of any state,
or in any other manner inconsistent with the Purposes of the United Nations.
 They were in violation of such principles when they perpetrated the actions North Sea Continental Shelf Case
against Nicaragua.
 The principle of non-intervention means that every State has a right to conduct North Sea Continental Shelf Cases
its affairs without outside interference.
 Also in violation of Customary Law not to violate sovereignty of another state - By 2 special agreements between Denmark and Germany and between Germany and
when they: Netherlands, the parties submitted their differences to the Court concerning the
o Mined the internal waters and territorial seas and flying over areas method of delimitation of the continental shelf in the North Sea
because sovereignty of state extends to its territorial sea and the - Netherlands and Denmark, both with convex coastlines, insisted that the prolonging
airspace above. of the partial boundary lines should be based on the equidistance principle as stated
o No warnings as to the location of the mines and sonic booms caused by in an allegedly mandatory rule of law as found in Art. 6 of the Geneva Convention on
planes the US owns of controls. the Continental Shelf, which provides that “equidistance" is not merely a method of
the cartographical construction of a boundary line, but the essential element in a rule
On Prohibition of the Use of Force and the Right to Self-Defense of law which may be stated as follows - namely that in the absence of agreement by

9
the Parties to employ another method or to proceed to a delimitation on an ad hoc W/N the equidistance principle is inherent in the basic doctrine of the continental
basis, all continental shelf boundaries must be drawn by means of an equidistance shelf and can be considered as customary international law– NO
line, unless, or except to the extent to which, "special circumstances" are recognized
to exist; an equidistance line being a line every point on which is the same distance - Denmark and Netherlands: Germany is bound to accept the delimitation on an
away from whatever point is nearest to it on the coast of each of the countries equidistance-special circumstances basis, because the use of this method is not in the
concerned-or rather, strictly, on the baseline of the territorial sea along that coast nature of a merely conventional obligation, but is, or must now be regarded as
o This principle would leave to each of the parties all the portions of the involving, a rule that is part of the corpus of general international law and, like other
continental shelf that are nearer to a point in its own coast than they are to the rules of general or customary international law, is binding on the Federal Republic
point on the coast of the other party automatically and independently of any specific assent, direct or indirect, given by the
o The Geneva Convention received 46 signatures and was ratified by 39 states, but latter.
Germany merely signed, but didn’t ratify it o The continental shelf is the natural prolongation of the land domain, so the
o They allege that the equidistance principle is a rule of customary international continental shelf nearer to the coasts are owned by countries nearest to it
law and a general rule of conventional practicality because it is merely an extension of something already possessed
- Germany, on the other hand, views the equidistance principle as inequitable because - COURT: Equidistance cannot be identified with the notion of natural prolongation
of its concave coastline – it would lose its share of the continental shelf based on the since its use would cause areas which were the natural prolongation of the territory
proportionality to the length of its North Sea coastline of a one state to another
o It argues that the length of the coastline should be used to determine the o Moreover, submarine areas didn’t belong to the coastal states because they were
delimitation – a “coastal front” – and to avoid the “cut off” effect that the near it, but the fact that such areas are deemed to be actually part of the state’s
equidistance principle would produce territory because they were a prolongation of its land under the sea
- Denmark and Netherlands: the equidistance principle is regarded as a rule of
W/N Art. 6 of the Geneva Convention applies to Germany as a mandatory rule– NO customary international law, so Germany is obliged to follow it
o Art. 6 of the Geneva Convention merely embodied already received rules of
- Denmark and Netherlands’ argument: Art. 6 of the Geneva Convention isn’t only customary law in the sense that the Convention was merely declaratory of
applicable as a conventional rule, but also represents the accepted rule of general existing rules
international law on continental shelf delimitation o While continental shelf law was only in the formative stage, and State practice
o The Convention is in force for any individual State only in so far as, having signed lacked uniformity, yet "the process of the definition and consolidation of the
it within the time-limit provided for that purpose, that State has also emerging customary law took place through the work of the International Law
subsequently ratified it; or, not having signed within that time-limit, has Commission, the reaction of governments to that work and the proceedings of
subsequently acceded to the Convention. the Geneva Conference"; and this emerging customary law became "crystallized
o Denmark and Netherlands both signed and ratified it in time – but Germany only in the adoption of the Continental Shelf Convention by the Conference".
signed it, but didn’t ratify it, so it cannot be considered a party to the Convention - COURT: As the convention was being drawn up, Article 6 of the Convention, was
o Even if Germany isn’t a party to it, the Convention is binding on Germany because proposed by with considerable hesitation, somewhat on an experimental basis
by conduct, by public statement, and proclamations, Germany unilaterally o Art. 6 is one of those in respect of which, under the reservations article of the
assumed the obligations of the Convention or manifested its acceptance f the Convention (Article 12) reservations may be made by any State - it is a
conventional régime; or has recognized it as being generally applicable to the characteristic of purely conventional rules and obligations that reservations may
delimitation of continental shelf areas. be made towards them whereas reservations cannot be made towards general
- COURT: if Germany had any real intention to accept the Convention, then why didn’t or customary law rules and obligations, which by their very nature, must have
it simply ratify it? equal force for all member States
o In principle, when a number of States, including the one whose conduct is o Even though there are other provisions of the Convention that can be subject to
invoked, and those invoking it, have drawn up a convention specifically reservation that lie within the field of customary law, these relate to principles
providing for a particular method by which the intention to become bound by or rules of general maritime law, which ante-date the Convention and not
the régime of the convention is to be manifested-namely by the carrying out of directly connected, but only incidental to continental shelf rights
certain prescribed formalities (ratification, accession), it isn’t right to assume o They were mentioned in the Convention, not in order to declare or confirm their
that a State which has not carried out these formalities, though at all times fully existence, which was not necessary, but simply to ensure that they were not
able and entitled to do so, has nevertheless somehow become bound in another prejudiced by the exercise of continental shelf rights as provided for in the
way. Convention.
o Also, if Germany ratified the Convention, it could’ve entered a reservation to Art. - Germany and Denmark: even though art. 6 cannot be considered as a customary
6 anyways international law, it became such partly because of its own impact and partly because
o Thus, Art. 6 cannot be applied to the delimitation in this case of the subsequent state practice, so now it is binding on all states

10
o Art. 6 is a norm-creating provision, which is conventional in origin, but has (Federal Republic of Germany / Denmark; Federal Republic of Germany /
become a general corpus of international law and is accepted as such by the Netherlands)
opinion juris
- COURT: Art. 6 is framed as to put second the obligation to make use of the 1969 I.C.J. 3
equidistance method, causing it to come after a primary obligation to effect International Court of Justice
delimitation by agreement February 20, 1969
o Such a primary obligation constitutes an unusual preface to what is claimed to General List: Nos. 51 & 52
be a potential general rule of law.
- Also, the fact that it allows reservation prevents it from being received as general law Dissenting Opinion of Judge Tanaka [Selected Excerpts]
- A conventional rule can become a customary rule even without the passage of a I
considerable amount of time, as long as, a very widespread and representative
participation in such a convention AND state practice should be very extensive and
virtually uniform and should have occurred in a way that shows that a rule of law or In spite of my great respect for the Court, I am unable, to my deep regret, to share the
legal obligation is involved views of the Court concerning some important points in the operative part as well as in
- “Although the passage of only a short period of time (in this case, 3 – 5 years) is not the reasons of the Judgment.
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,
The history of the continental shelf as a legal institution indicated by the above-
should have been both extensive and virtually uniform in the sense of the
mentioned Truman Proclamation of 28 September 1945, does not appear to be long
provision invoked and should moreover have occurred in such a way as to show
enough to have enabled more or less complete customary international law to have been
a general recognition that a rule of law or legal obligation is involved.”
formulated on this matter. The practical necessity of regulating a great number of claims
o In this case, the number of ratifications and accessions of the convention is
of coastal States on their adjacent continental shelf so as to avoid a chaotic situation
hardly sufficient
which may be caused by competition and conflict among them, seemed to be a primary
- 2 conditions must be fulfilled:
consideration of the international community. In 1949 the International Law
1. The act must amount to a settled practice – extensive and virtually unirform
Commission, representing the main legal systems of the world, took the initiative by
2. OPINIO JURIS/subjective element: The act must be carried out in such a way as
appointing the Committee of Experts for the question relating to the territorial sea
to be evidence of a belief that such act is rendered obligatory by the existence of
including the continental shelf. This Committee of Experts terminated its Report, to
a rule of law requiring it
which reference has been made above, in 1953.
- The States concerned must therefore feel that they are conforming to what amounts
to a legal obligation. The frequency, or even habitual character of the acts is not in
itself enough. There are many international acts, e.g., in the field of ceremonial and Parallel with the efforts of the International Law Commission, various governmental and
protocol, which are performed almost invariably, but which are motivated only by non-governmental, as well as academic organizations and institutions, contributed to
considerations of courtesy, convenience or tradition, and not by any sense of legal promoting the legislative work on the continental shelf by study, examination and
duty preparation of drafts.
o In other cases, although the States concerned agreed to draw or did draw the
boundaries concerned according to the principle of equidistance. There is no The efforts of the International Law Commission were crowned by the birth of the
evidence that they so acted because they felt legally compelled to do so by reason Convention on the Continental Shelf adopted on 26 April 1958 by the Geneva Conference
of customary international law. which was attended by 86 delegations.
Dissent. (Lachs, J.) not only the states who are parties to the Convention on the
Continental Shelf have accepted the principles and rules enshrined in the Convention That 46 States have signed and 39 States ratified or acceded to the Convention is already
including the equidistance rule, but by other states who that have subsequently followed an important achievement towards the recognition of customary international law on the
it in agreements, or in their legislation, or have acquiesced in it when faced with legislative matter of the continental shelf.
acts of other affecting them. This can be seen as evidence of a practice widespread enough
to satisfy the criteria for a general rule of law. To decide whether the equidistance principle of Article 6, paragraph 2, of the Convention
can be recognized as customary international law, it is necessary to observe State
North Sea Continental Shelf Case: Tanaka Dissenting Opinion (excerpts) practice since the Geneva Convention of 1958. In this respect it may be enough to
indicate the following five Agreements as examples of the application of the equidistance
North Sea Continental Shelf Case principle concerning the North Sea continental shelf:

11
(a) United Kingdom-Norway of 10 March 1965; is not fulfilled. What I want to emphasize is that what is important in the matter at issue
is not the number or figure of ratifications of and accessions to the Convention or of
(b) Netherlands-United Kingdom of 6 October 1965; examples of subsequent State practice, but the meaning which they would imply in the
particular circumstances. We cannot evaluate the ratification of the Convention by a
large maritime country or the State practice represented by its concluding an agreement
(c) Denmark-Norway of 8 December 1965; on the basis of the equidistance principle, as having exactly the same importance as
similar acts by a land-locked country which possesses no particular interest in the
(d) Denmark-United Kingdom of 3 March 1966; delimitation of the continental shelf.

(e) Netherlands-Denmark of 31 March 1966. Next, so far as the qualitative factor, namely opinion juris sive necessitatis is concerned,
it is extremely difficult to get evidence of its existence in concrete cases. This factor,
relating to internal motivation and being of a psychological nature, cannot be ascertained
I must also mention the two partial boundary treaties concluded by the Federal Republic
very easily, particularly when diverse legislative and executive organs of a government
already indicated.
participate in an internal process of decision-making in respect of ratification or other
State acts. There is no other way than to ascertain the existence of opinion juris from the
It must be noted that Norway, who is a party to two of these Agreements, acted on the fact of the external existence of a certain custom and its necessity felt in the international
basis of the equidistance principle notwithstanding the fact that she has not yet acceded community, rather than to seek evidence as to the subjective motives for each example of
to the Geneva Convention, that the Netherlands adopted the equidistance principle in her State practice, which is something which is impossible of achievement.
Agreement with the United Kingdom at a time when she had not yet ratified the
Convention and that Belgium had recently adopted the equidistance principle for the
Therefore, the two factors required for the formation of customary law on matters
delimitation of her continental shelf boundaries, although she is not a party to the
relating to the delimitation of the continental shelf must not be interpreted too rigidly.
Convention (23 October 1967 'Projet de Loi', Art. 2).
The appraisal of factors must be relative to the circumstances and therefore elastic; it
requires the teleological approach.
It is not certain that before 1958 the equidistance principle existed as a rule of customary
international law, and was as such incorporated in Article 6, paragraph 2, of the
As stated above, the generation of customary law is a sociological process. This process
Convention, but it is certain that equidistance in its median line form has long been
itself develops in a society and does not fail to reflect its characteristic upon the manner
known in international law for drawing the boundary lines in sea, lake or river, that,
of generation of customary law. This is the question of the tempo which has to be
therefore, it is not the simple invention of the experts of the International Law
considered.
Commission and that this rule has finally acquired the status of customary international
law accelerated by the legislative function of the Geneva Convention.
Here can be enumerated some sociological factors which may be deemed to have played
a positive role in the speedy formation of customary international law on the subject-
The formation of a customary law in a given society, be it municipal or international, is a
matter of the continental shelf, including the principle of equidistance.
complex psychological and sociological process, and therefore, it is not an easy matter to
decide. The first factor of customary law, which can be called its corpus, constitutes a
usage or a continuous repetition of the same kind of acts; in customary international law First, the existence of the Geneva Convention itself plays an important role in the process
State practice is required. It represents a quantitative factor of customary law. The of the formation of a customary international law in respect of the principle of
second factor of customary law, which can be called its animus, constitutes opinion juris equidistance. The Geneva Convention constitutes the terminal point of the first stage in
sive necessitatis by which a simple usage can be transformed into a custom with the the development of law concerning the continental shelf. It consolidated and
binding power. It represents a qualitative factor of customary law. systematized principles and rules on this matter although its validity did not extend
beyond the States parties to the Convention. Furthermore, the Convention constitutes
the starting point of the second stage in the development of law concerning the
To decide whether these two factors in the formative process of a customary law exist or
continental shelf. It has without doubt provided the necessary support and impetus for
not, is a delicate and difficult matter. The repetition, the number of examples of State
the growth of law on this matter.
practice, the duration of time required for the generation of customary law cannot be
mathematically and uniformly decided. Each fact requires to be evaluated relatively
according to the different occasions and circumstances. Nor is the situation the same in The coming into existence of the Geneva Convention itself would psychologically and
different fields of law such as family law, property law, commercial law, constitutional politically facilitate the adherence of non-party States to the Convention or the
law, etc. It cannot be denied that the question of repetition is a matter of quantity; introduction of the equidistance principle into their practice.
therefore there is no alternative to denying the formation of customary law on the
continental shelf in general and the equidistance principle if this requirement of quantity
12
The role played by the existence of a world-wide international organization like the attitude in recognizing the evidence of customary law is rigid and formalistic. On the
United Nations, its agency the International Law Commission, and their activities other hand, those who advocate the objective existence of law apart from the will of
generally do not fail to accelerate the rapid formation of a customary law. It is similar to States, are inclined to take a more liberal and elastic attitude in recognizing the
the way in which a customary commercial law speedily evolves from a standard contract formation of a customary law attributing more importance to the evaluation of the
drafted by experts of business circles to a universal commercial custom. The Geneva content of law than to the process of its formation. I wish to share the latter view. The
Convention of 1958 on the Continental Shelf, first lex ex contractu among the States reason for that is derived from the essence of law, namely that law, being an objective
parties, has been promoted by the subsequent practice of a number of other States order vis-a-vis those who are subject to it, and governing above them, does not constitute
through agreements, unilateral acts and acquiescence to the law of the international their 'auto-limitation' (Jellinek), even in the case of international law, in which the
community which is nothing else but world law or universal law. sovereign will of States plays an extremely important role.

Secondly, the legal, scientific and technical, and less political character of the Convention, In this context, I venture to quote the statements of two eminent writers which appear to
and the fact that its birth is mainly due to the activities of the International Law be valuable for the affirmative conclusion on the formation of customary international
Commission composed of highly qualified internationally well-known legal scholars law concerning the matter of the continental shelf. J. L. Brierly, in The Law of Nations, 6th
representing the main legal systems of the world in collaboration with a group of edition, 1963, page 62:
experts, would not fail to exercise rapidly a positive influence for the formation of
opinion juris sive necessitatis in the international community. The growth of a new custom is always a slow process, and the character of international
society makes it particularly slow in the international sphere. The progress of the law
Thirdly, the urgent necessity of avoiding international conflict and disorder which may therefore has come to be more and more bound up with that of the law-making treaty. But
be feared to occur between coastal States in proportion to the rapidly increasing it is possible even today for new customs to develop and to win acceptance as law when the
economic necessity of the exploration and exploitation of natural resources in the subsoil need is sufficiently clear and urgent. A striking recent illustration of this is the rapid
of submarine areas, has become a matter of serious preoccupation not only to coastal development of the principle of sovereignty over the air.'
States, but to the whole international community in which consciousness of solidarity is
more than ever intensified.

Fourthly, it can be recognized that the speedy tempo of present international life D. P. O'Connell, in International Law, I, 1965, pages 20-21:
promoted by highly developed communication and transportation had minimized the
importance of the time factor and has made possible the acceleration of the formation of Much of the traditional discussion of customary law suffers from the rigidity and narrow-
customary international law. What required a hundred years in former days now may mindedness of nineteenth-century positivism, which was itself the product of a static
require less than ten years. Fifthly, the circumstance that with regard to the continental conception of society. The emphasis that the positivist places on the will of the State
shelf, including the equidistance principle, there had been no legal system in existence, over-formalises the law and obscures its basic evolutionary tendency. He looks to
either written or customary law, and that therefore a legal vacuum had existed, has positive practice without possessing the criteria for evaluating it, and hence is powerless
certainly facilitated the realization of the Geneva Convention on the Continental Shelf to explain the mystical process of lex ferenda, which he is compelled to distinguish
and customary law on the same matter. Similar circumstances can be recognized in the sharply, and improperly, from lex lata . . . .
fields of air law and space law.
III
In short, the process of generation of a customary law is relative in its manner according
to the different fields of law, as I have indicated above. The time factor, namely the
In the event that the customary law character of the principle of equidistance cannot be
duration of custom, is relative; the same with factor of number, namely State practice.
proved, there exists another reason which seems more cogent for recognizing this
Not only must each factor generating a customary law be appraised according to the
character. That is the deduction of the necessity of this principle from the fundamental
occasion and circumstances, but the formation as a whole must be considered as an
concept of the continental shelf.
organic and dynamic process. We must not scrutinize formalistically the conditions
required for customary law and forget the social necessity, namely the importance of the
aims and purposes to be realized by the customary law in question. The starting point is the concept of the continental shelf. This concept is clearly
expressed in Articles 1-3 of the Geneva Convention.
The attitude which one takes vis-a-vis customary international law has been influenced
by one's view on international law or legal philosophy in general. Those who belong to Before we examine this concept, we shall clarify its nature, namely its customary law
the school of positivism and voluntarism wish to seek the explanation of the binding character.
power of international law in the sovereign will of States, and consequently, their

13
There is no doubt that Articles 1-3, which constitute the fundamental concept of the The equidistance principle which is incorporated in Article 6, paragraph 2, flows from
continental shelf, are mainly formulated on the basis of the State practice established the fundamental concept of the continental shelf as the logical conclusion on the matter
since President Truman's Proclamation of September 1945, and that, accordingly, they of the delimitation of the continental shelf. The equidistance principle is integrated in the
have the character of customary law. Therefore, even those States which have not concept of the continental shelf. The former is inherent in the latter, being inseparably
ratified or acceded to the Convention could not deny the validity of these provisions connected with it. Therefore, if the law of the continental shelf were devoid of the
against them. Denying the principles enunciated in Articles 1-3 would deprive the non- provision concerning delimitation by means of the equidistance principle, satisfactory
contracting States of the basis of all rights over their continental shelves. functioning of the institution of the continental shelf could not be expected.

The fundamental principle upon which the institution of the continental shelf is based The Federal Republic denies the opposability of the Geneva Convention as a whole, and
constitutes the recognition of the sovereign rights of the coastal State for the purpose of consequently denies the opposability of its part, namely Article 6, paragraph 2. However,
its exploration and the exploitation of its natural resources (Article 2, paragraph 1, of the the Federal Republic has not the slightest doubt that she exercises sovereign rights over
Convention). These sovereign rights are exclusive in the sense that if the coastal State the continental shelf of the disputed area. But on what title can she exercise such rights?
does not explore or exploit its natural resources, no one may undertake these activities, There should be no other possibility of justification other than by customary law on the
or make a claim to the continental shelf, without the express consent of the coastal State matter of the continental shelf. And indeed she recognizes the applicability of Articles 1-3
(Article 2, paragraph 2, of the Convention). These rights of the coastal State do not of the Geneva Convention vis-a-vis herself on a customary law basis. Can the Federal
depend on occupation, effective or notional, or on any express proclamation (Article 2, Republic deny the application of Article 6, paragraph 2, concerning the delimitation of
paragraph 3, of the Convention). the continental shelf which she claims as her own? The answer is in the negative.

The fact that the coastal State exercises over the continental shelf exclusive sovereign The viewpoint of the Federal Republic is to consider the question of delimitation
rights, and that these rights do not depend on occupation or any express proclamation, separately from the fundamental concept of the continental shelf. However, the rule with
explains eloquently the legal status of the continental shelf as an institution. First, the regard to delimitation by means of the equidistance principle constitutes an integral part
continental shelf does not constitute res nullius which is susceptible of occupation by any of the continental shelf as a legal institution of teleological construction. For the
State-not only an adjacent coastal State but any other State. Next, the continental shelf existence of the continental shelf as a legal institution presupposes delimitation between
does not constitute a res communis of the coastal States which must be jointly exploited the adjacent continental shelves of coastal States. The delimitation itself is a logical
or divided by them. The continental shelf belongs exclusively to the coastal State consequence of the concept of the continental shelf that coastal States exercise sovereign
according to the principle fixed by law which gives the definition of the continental shelf. rights over their own continental shelves. Next, the equidistance principle constitutes the
According to Article 1 of the Convention, the term 'continental shelf' is used as referring method which is the result of the principle of proximity or natural continuation of land
to the seabed and subsoil of the submarine areas adjacent to the coast. By this provision territory, which is inseparable from the concept of continental shelf. Delimitation itself
the law prescribes the only condition for a coastal State to be able to have sovereign and delimitation by the equidistance principle serve to realize the aims and purposes of
rights over the continental shelf. This condition is of a geographical nature; the existence the continental shelf as a legal institution. The Federal Republic, in so far as she insists
of the relationship of adjacency between the continental shelf and the coastal State is upon her rights on the continental shelf, cannot deny the application of its delimitation
required. by means of the equidistance principle. As I have said above, the equidistance principle
provided for in Article 6, paragraph 2, of the Convention, is inherent in the concept of the
The criterion of adjacency-or proximity, propinquity, contiguity-seems a most continental shelf, in the sense that without this provision the institution as a whole
reasonable one if one adopts the principle of the sovereign rights of the coastal State, cannot attain its own end.
excluding the regime of res nullius or res communis. The idea that the continental shelf
constitutes the natural continuation or extension of the coastal State is most natural and The doctrine that the equidistance principle is inherent in the institution of the
reasonable from the geographical and economic viewpoints. continental shelf would certainly make a highly controversial impression. However, even
if Article 6, paragraph 2, did not exist or is not opposable to the Federal Republic, the
The principle which governs the delimitation of the continental shelf and which is interpretation of Articles 1-3 would produce the same conclusion. Customary law, being
provided for in Article 6 is the corollary of the concept declared in Articles 1 and 2. The vague and containing gaps compared with written law, requires precision and
present cases are related to Article 6, paragraph 2. This stipulates: completion about its content. This task, in its nature being interpretative, would be
incumbent upon the Court.

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 The method of logical and teleological interpretation can be applied in the case of
equidistance from the nearest points of the baselines from which the breadth of the customary law as in the case of written law. Even if the Federal Republic recognizes the
territorial sea of each State is measured. customary law character of only the fundamental concept incorporated in Articles 1-3 of
the Convention, and denies it in respect of other matters, she cannot e cape from the
application of what is derived as a logical conclusion from the fundamental concept,-a
14
conclusion which, in respect of the delimitation of the continental shelf, would reach the 1953 to 1956) until that text was finalized and submitted to the General Assembly of the
same result as Article 6, paragraph 2, of the Convention. United Nations. It passed through all the stages contemplated by the Statute of the
International Law Commission for its work in implementation of Article 13, paragraph 1
North Sea Continental Shelf Case: Lachs Dissenting Opinion (excerpts) (a), of the Charter. At the Geneva Conference itself it was the subject of further
discussion-before being finally voted into the Convention.
North Sea Continental Shelf Case
Even if it be conceded that the Committee of Experts, in which the equidistance rule
(Federal Republic of Germany / Denmark; Federal Republic of Germany / originated, was guided by considerations of practical convenience and cartography, this
Netherlands) can have no effect on its legal validity. There are scores of rules of law in the formation of
which non-legal factors have played an important part. Whenever law is confronted with
1969 I.C.J. 3 facts of nature or technology, its solutions must rely on criteria derived from them. For
International Court of Justice law is intended to resolve problems posed by such facts and it is herein that the link
February 20, 1969 between law and the realities of life is manifest. It is not legal theory which provides
General List: Nos. 51 & 52 answers to such problems; all it does is to select and adapt the one which best serves its
purposes, and integrate it within the framework of law. This, for example, is how
medium filum aquae has been recognized as the boundary rule for nonnavigable rivers,
Dissenting Opinion of Judge Lachs [Selected Excerpts]
and the rule of the 'talweg' for navigable rivers dividing two States. Geography, likewise,
.... lies at the basis of the rules concerning bays (Article 7, paragraph 2, of the Convention on
the Territorial Sea). Many illustrations can be derived from other chapters of
II international law.

Only two States (the Kingdom of Denmark and the Kingdom of the Netherlands) Nor can the insertion of the primary obligation to determine the boundary by agreement
appearing before the Court in the present cases are parties to the Convention. The cast doubt on the character of the provision. It is true that this general principle of
Federal Republic, not having ratified it, is not contractually bound by it. In fact no claim international law is not normally stated. Yet one can find a similar stipulation in the
in that sense has been advanced. Projet de Convention sur la Navigation des Fleuves Internationaux drafted 90 years ago:
'In the absence of any stipulation to the contrary, the frontier of States separated by a
The question which arises, therefore, is whether the rules expressed in Article 6, river corresponds to the talweg, i.e., the median line of the channel' [translation by the
paragraph 2, of the Geneva Convention of 1958 on the Continental Shelf have acquired a Registry] (Engelhardt, Du regime conventionnel des fleuves internationaux, Paris, 1879,
wider status, so as to be applicable to States not parties to the Convention, in particular pp. 228 f.). Reference may also be made to the provisions of Article 12 of the Geneva
whether they were susceptible of becoming and have in fact become part of general Convention on the Territorial Sea and the Contiguous Zone.
international law.
It is also stated that the faculty of making reservations to Article 6, provided by Article
Both these contentions have been advanced, and both have been denied. To substantiate 12, paragraph 1, of the Convention, while not preventing the equidistance rule from
these denials the history of the Article has been invoked. Special stress is laid on the facts becoming general law, creates considerable difficulties in this respect. Here we touch the
that hesitations accompanied the adoption of the equidistance rule, that other possible very essence of the institution of reservations. There can be little doubt that its birth and
solutions were discussed and that the equidistance rule was adopted only at a later stage, development have been closely linked with the change in the process of elaboration of
on the basis of non- legal considerations. multilateral treaties, the transition from the unanimity to the majority rule at
international conferences.

True as these facts may be, they are not conclusive. They constitute but part of the
history, above referred to, of how Article 6, paragraph 2, came into being. Doubts and This new institution reflected a new historical tendency towards a greater
hesitations did exist. But is the same not true of many new rules of law? Even in science, rapprochement and co-operation of States and it was intended to serve this purpose by
a successful experiment is frequently greeted with suspicion. Some laws of nature, self- opening the door to the participation in treaties of the greatest possible number of
evident today, were once viewed as heresy. How much more is this true in the sphere of States. Within this process, reservations were not intended to undermine well-
man-made law, and in particular when a new chapter of law is brought into being? established and existing principles and rules of international law, nor to jeopardize the
object of the treaty in question. Thus they could not imply an unlimited right to exclude
or vary essential provisions of that treaty. Otherwise, instead of serving international co-
It is all to the credit of the International Law Commission that it discussed the issues operation the new institution would hamper it by reducing the substance of some
involved in Article 6 at such length before adopting its final text. Meanwhile the treaties to mere formality.
comments of governments were invited and received. In fact it took three years (from
15
Such was, indeed, the view of this Court when it stated that 'the object and purpose of the (b) indicates that the provisions of Article 6 have been generally accepted without
Convention thus limit both the freedom of making reservations and that of objecting to reservation by the parties to the Convention.
them' (Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 24). As to the wider issue, there is evidence that reservations made to important law-making
or codifying conventions have not prevented their provisions from being generally
These considerations apply to all multilateral treaties, the Convention on the Continental accepted as law. Five States made reservations to the Fourth Hague Convention (1907),
Shelf being no exception. Special attention should be drawn to the fact that it reflects yet the principles it incorporated have with the passage of time become part of general
elements of codification and progressive development of international law, both closely international law, binding upon all States.
interwoven.
The Geneva Convention on the High Seas is another case in point. It contains no clause
As for Article 6, paragraph 2, the right to make reservations is determined by the three expressly permitting reservations, but neither does it follow the example of the
elements of which it is composed. First: can a reservation be made to the provision that Convention on Slavery of 7 September 1956 (Article 9) and prohibit them. In fact, more
the boundary of the continental shelf 'shall be determined by agreement between' the reservations have been made to it than to the Continental Shelf Convention. Yet the
States concerned? Can any State contract out of the obligation to seek agreement by Geneva Convention on the High Seas is obviously a codifying instrument par excellence:
consent? Obviously not, for, as was indicated earlier, this stipulation should be read as its Preamble speaks of 'desiring to codify the rules' and describes the ensuing provisions
the application ad casum of a general obligation of States. as 'generally declaratory of established principles of international law'. The Convention
on Certain Questions Relating to the Conflict of Nationality Laws, signed at The Hague on
Can the reservation apply to the remaining part of the paragraph? In view of a special 12 April 1930 (League of Nations Treaty Series, Vol. 179, pp. 91-113, No. 4137), was, to
situation a State may claim that in the relationship between rule (equidistance line) and use its own words, 'a first attempt at progressive codification' (Preamble, para. 4) in that
exception (special circumstances) the latter should prevail. It may also be that a State field. Yet its Article 20 authorized reservations to all of its substantive provisions. After a
recording a reservation aims at the exclusion of 'special circumstances' and thus states lapse of over 38 years, no more than 14 States are parties to it-with six reservations and
its opposition to any exception from the rule. No better proof can be offered that the two declarations. This notwithstanding, this Court has relied on the practice based, inter
possibilities of reservation are limited to these two than the practice of States. Such was, alia, on its provisions (Articles 1 and 5), even though the parties to the case were not
indeed, the object of the reservations made by Venezuela and France on the one hand (a parties to the Convention (Nottebohm, Second Phase, Judgments, I.C.J. Reports 1955, pp.
special definition of 'special circumstances' is reflected in the reservation made by Iran). 22 f.). It was also relied upon by the Italian/United States Conciliation Commission
On the other hand the reservation made by Yugoslavia shows the desire to strengthen (Merige claim (I.L.R., 22 (1955), p. 450) and also Flegenheimer claim (I.L.R., 25 (1958-I),
the rule by excluding any exceptions to it. (But even here the scope of the reservations is p. 149)).
not unlimited, as objections to some of them indicate.)
A further illustration is provided by Article 20 of the United Nations Convention on the
These considerations lead to the conclusion that the very substance of paragraph 2 of Elimination of All Forms of Racial Discrimination, adopted by the General Assembly on
Article 6 does not admit of reservations which purport 'to exclude...the legal effects' of its 21 December 1965: the new test therein introduced concerning the incompatibility of
provisions, but only of those which may 'vary' those legal effects (Draft Articles of the reservations with the object and purpose of the Convention has no bearing on the
Law of Treaties, Article 2). principle itself. To summarize the foregoing observations: from the manner in which the
Convention as a whole was prepared, from its obvious purpose to become universally
accepted, from the structure and clear meaning of Article 6, paragraph 2, as a whole,
The right to make reservations to Article 6 could not have been intended as creating an from the genesis of the equidistance rule and from the fact that it has been enshrined in
unlimited freedom of action of the parties to the Convention. This would have opened the no less than four provisions of three conventions signed in Geneva in 1958, I find it
door to making it wholly ineffective, with the obvious result of creating a serious difficult to infer that it was proposed by the International Law Commission in an
loophole in the Convention. impromptu and contingent manner or on an experimental basis, and adopted by the
Geneva Conference on that understanding. Nor is there anything-including Article 12-
This is confirmed by the practice, covering as it does a period of ten years. that can disqualify the equidistance rule from becoming a rule of general law or
constitute an obstacle to that process. Furthermore, there are no other known factors
which may have had this effect.
This practice:

III
(a) constitutes important evidence as to the interpretation of the faculty to make
reservations to Article 6;
It is generally recognized that provisions of international instruments may acquire the
status of general rules of international law. Even unratified treaties may constitute a

16
point of departure for a legal practice. Treaties binding many States are, a fortiori, other nations have since acceded to independer ce. Thus the time during which these 44
capable of producing this effect, a phenomenon not unknown in international relations. States could have completed the necessary procedure enabling them to become parties
to the Convention has been rather limited, in some cases very limited. Taking into
I shall therefore now endeavour to ascertain whether the transformation of the account the great and urgent problems each of them had to face, one cannot be surprised
provisions of Article 6, paragraph 2, of the Geneva Convention on the Continental Shelf, that many of them did not consider it a matter of priority. This notwithstanding, nine of
and in particular the equidistance rule, into generally accepted law has in fact taken those States have acceded to the Convention. Twenty- six of the total number of States in
place. This calls for an analysis of State practice, of the time factor, and of what is existence are moreover land-locked and cannot be considered as having a special and
traditionally understood to constitute opinio juris. immediate interest in speedy accession to the Convention (only five of them have in fact
acceded).

Ten years have elapsed since the Convention on the Continental Shelf was signed, and 39
States are today parties to it. Finally, it is noteworthy that about 70 States are at present engaged in the exploration
and exploitation of continental shelf areas.

Delay in the ratification of and accession to multilateral treaties is a well-known


phenomenon in contemporary treaty practice. (According to a recent study conducted by It is the above analysis which is relevant, not the straight comparison between the total
the United Nations Institute for Training and Research, 55 out of 179 multilateral treaties number of States in existence and the number of parties to the Convention. It reveals in
in respect of which the Secretary-General of the United Nations performs depositary fact that the number of parties to the Convention on the Continental Shelf is very
functions had received an average of only about 27 per cent. of possible acceptances.) It impressive, including as it does the majority of States actively engaged in the exploration
is self-evident that in many cases substantive reasons are at the root of these delays. of continental shelves.
However, experience indicates that in most cases they are caused by factors extraneous
to the substance and objective of the instrument in question. Often the slowness and Again, it is noteworthy that while 39 States are parties, initial steps towards the
inherent complication of constitutional procedures, the need for interdepartmental acceptance of the Convention have been taken by 46 States, who have signed it: half of
consultations and co-ordination, are responsible (lack of ratification does not, however, them have ratified it. Thus to the figure of 39 that of 23 States is to be added, i.e., those
prevent States from applying the provisions of such conventions). Frequently, again, States which by signing it have acquired a provisional status vis-a-vis the Convention,
there is procrastination, due to the lack of any sense of urgency, or of immediate interest each of them being 'obliged to refrain from acts which would defeat the object and
in the problems dealt with by the treaty, for so long as there are other important issues purpose of the treaty ... ' until it 'shall have made its intention clear not to become a party
to deal with. This may be illustrated by a comparison between the Convention on to the treaty' (Article 15a of the Draft Articles of the Law of Treaties, prepared by the
Diplomatic Relations (signed at Vienna on 24 April 1961) and the Convention on the I.L.C., as amended and adopted by the Committee of the Whole of the Conference on the
High Seas (signed at Geneva on 29 April 1958). Both are eminently instruments which Law of Treaties; Doc. A/CONF. 39/C.1/L.370/Add. 4, p. 8).
codify existing law. Yet the first, within a period of about seven years, had received 77
ratifications, accessions or notifications of succession, while after a lapse of ten years This mathematical computation, important as it is in itself, should be supplemented by,
only 42 States had become parties to the latter. The reasons seem self-evident: the so to speak, a spectral analysis of the representativity of the States parties to the
Convention on Diplomatic Relations is of direct, daily interest for every State. It took ten Convention.
years for an instrument codifying existing law, the Convention on the Prevention and
Repression of the Crime of Genocide (adopted by the General Assembly of the United
Nations on 9 December 1948), to obtain 59 ratifications and accessions, while by the end For in the world today an essential factor in the formation of a new rule of general
of 1967-20 years after its adoption-71 States had become parties to it. international law is to be taken into account: namely that States with different political,
economic and legal systems, States of all continents, participate in the process. No more
can a general rule of international law be established by the fiat of one or of a few, or-as
These overlong delays in ratification and their causes, not related to the substance of the it was once claimed-by the consensus of European States only.
instruments concerned, are factors for which due allowance has to be made.

This development was broadly reflected in the composition of the Geneva Conference on
I may have dwelt on this point at excessive length. I have done so because it is relevant to the Law of the Sea; it is now similarly reflected within the number of States which are
the issue now before the Court. For it indicates that the number of ratifications and parties to the Convention on the Continental Shelf. These include States of all continents,
accessions cannot, in itself, be considered conclusive with regard to the general among them States of various political systems, with both new and old States
acceptance of a given instrument. representing the main legal systems of the world.

In the case of the Convention on the Continental Shelf, there are other elements that must It may therefore be said that, from the viewpoints both of number and of
be given their due weight. In particular, 31 States came into existence during the period representativity, the participation in the Convention constitutes a solid further, more
between its signature (28 June 1958) and its entry into force (10 June 1964), while 13 extensive practice has developed:
17
(a) A considerable number of States, both parties and not parties to the Convention (and Thus this test cannot be, nor is it, one endowed with any absolute character: it is of its
quite apart from the Parties to the present cases), have concluded agreements delimiting very nature relative. Criteria of frequency, continuity and uniformity are involved.
their continental shelves. Several of these make specific reference to the Geneva However, not all potential rules are susceptible to verification by all these criteria.
Convention ('having regard to . . . .', 'bearing in mind . . .' or 'in accordance with the Frequency may be invoked only in situations where there are many and successive
Geneva Convention on the Continental Shelf', 'bearing in mind Article 6 of the Geneva opportunities to apply a rule. This is not the case with delimitation, which is a one-time
Convention on the Continental Shelf' or 'in accordance with the principles laid down in act. Furthermore, as it produces lasting consequences, it invariably implies an intention
the Geneva Convention on the Continental Shelf of 1958, in particular its Article 6 '). At to satisfy the criterion of continuity.
least six other agreements (registered with the United Nations) have accepted as a basis
the equidistance or median lines, though without actually referring to the Convention. As for uniformity, 'too much importance need not be attached to' a 'few uncertainties or
(Texts: United Nations Doc. A/AC. 135/11 , and Add. 1.) contradictions, real and apparent' (Fisheries, Judgment, I.C.J. Reports 1951, p. 138).

(b) A considerable number of States (both parties and not parties to the Convention) Nor can a general rule which is not of the nature of jus cogens prevent some States from
have passed special legislation concerning their continental shelves, or included adopting an attitude apart. They may have opposed the rule from its inception and may,
provisions on the subject in other instruments. Some of them have enacted a unilateral unilaterally, or in agreement with others, decide upon different solutions of the problem
delimitation of their continental shelf on the basis of the equidistance rule. Fifteen have involved. Article 6, paragraph 2, of the Convention on the Continental Shelf, by virtue of
referred specifically to the Convention of 1958, invoking it in a preamble or in individual the built-in exceptions, actually opens the way to occasional departures from the
articles, or employing definitions derived from it (sometimes with slight modifications). equidistance rule wherever special circumstances arise. Thus the fact that some States,
One instrument refers to 'law and the provisions of international treaties and as pointed out in the course of the proceedings, have enacted special legislation or
agreements', 'law or ratified international treaties' (Guatemala), and another accepts the concluded agreements at variance with the equidistance rule and the practice confirming
median line as a definitive boundary (Norway). Another (U.S.S.R.) reproduces mutatis it represents a mere permitted derogation and cannot be held to have disturbed the
mutandis the full text of Article 6 of the Convention, while three (Finland, Denmark and formation of a general rule of law on delimitation.
Malaysia) make specific reference to that Article. Another, yet again, invokes 'established
international practice sanctioned by the law of nations' (Philippines). (Texts: U.N. Doc.
A/AC. 135/11 , and Add. 1.) ***

(c) In some cases the unilateral adoption of the equidistance rule has had a direct bearing With regard to the time factor, the formation of law by State practice has in the past
on its recognition by other States. To give but one instance: Australia's Federal frequently been associated with the passage of a long period of time. There is no doubt
Petroleum (Submerged Lands) Act, 1967, which defines adjacent areas (section 5) and that in some cases this may be justified. However, the great acceleration of social and
their delimitation (Second Schedule), is based on the application of the equidistance rule. economic change, combined with that of science and technology, have confronted law
This delimitation appears to have been effected on the assumption that a neighbouring with a serious challenge: one it must meet, lest it lag even farther behind events than it
State could not advance any claim beyond the equidistance line. has been wont to do.

All this leads to the conclusion that the principles and rules enshrined in the Convention, To give a concrete example: the first instruments that man sent into outer space
and in particular the equidistance rule, have been accepted not only by those States traversed the airspace of States and circled above them in outer space, yet the launching
which are parties to the Convention on the Continental Shelf, but also by those which States sought no permission, nor did the other States protest. This is how the freedom of
have subsequently followed it in agreements, or in their legislation, or have acquiesced in movement into outer space, and in it, came to be established and recognized as law
it when faced with legislative acts of other States affecting them. This can be viewed as within a remarkably short period of time. Similar developments are affecting, or may
evidence of a practice widespread enough to satisfy the criteria for a general rule of law. affect, other branches of international law

For to become binding, a rule or principle of international law need not pass the test of Given the necessity of obviating serious differences between States, which might lead to
universal acceptance. This is reflected in several statements of the Court, e.g.: 'generally . disputes, the new chapter of human activity concerning the continental shelf could not
. . adopted in the practice of States' (Fisheries, Judgment, I.C.J. Reports 1951, p. 128). Not have been left outside the framework of law for very long.
all States have, as I indicated earlier in a different context, an opportunity or possibility
of applying a given rule. The evidence should be sought in the behaviour of a great Thus, under the pressure of events, a new institution has come into being. By traditional
number of States, possibly the majority of States, in any case the great majority of the standards this was no doubt a speedy development. But then the dimension of time in
interested States. law, being relative, must be commensurate with the rate of movement of events which
require legal regulation. A consequential response is required. And so the short period
within which the law on the continental shelf has developed and matured does not

18
constitute an obstacle to recognizing its principles and rules, including the equidistance With the ever-increasing activities of States in international relations, some rules of
rule, as part of general law. conduct begin to be accepted even before reaching that state of precision which is
normally required for a rule of law. If their binding force is contested, courts operating
*** within the traditional framework of certitude may apply tests of perfection and clarity
they could not possibly pass. The alternative would be to fall back on some general and,
it may be, elusive principle. This may not be conducive to strengthening the edifice of
Can the practice above summarized be considered as having been accepted as law, international law, which is so important for presentday international relations. One
having regard to the subjective element required? The process leading to this effect is should of course avoid the risk of petrifying rules before they have reached the necessary
necessarily complex. There are certain areas of State activity and international law which state of maturity and by doing so endangering the stability of and confidence in law. It
by their very character may only with great difficulty engender general law, but there are may, however, be advisable, without entering the field of legislation, to apply more
others, both old and new, which may do so with greater ease. Where continental shelf flexible tests, which, like the substance of the law itself, have to be adapted to changing
law is concerned, some States have at first probably accepted the rules in question, as conditions. The Court would thus take cognizance of the birth of a new rule, once the
States usually do, because they found them convenient and useful, the best possible general practice States have pursued has crossed the threshold from haphazard and
solution for the problems involved. Others may also have been convinced that the discretionary action into the sphere of law.
instrument elaborated within the framework of the United Nations was intended to
become and would in due course become general law (the teleological element is of no
small importance in the formation of law). Many States have followed suit under the As to the cases before the Court, the situation leaves little room for doubt. The conclusion
conviction that it was law. by States of agreements in the field of continental shelf delimitation has self-evidently
expressed their willingness to accept the rules of the Convention 'as law' and has in fact
represented a logical furtherance of the provisions of Article 6, paragraph 2. As for the
Thus at the successive stages in the development of the rule the motives which have unilateral acts concerned, they also, by their reference to the Convention or borrowing of
prompted States to accept it have varied from case to case. It could not be otherwise. At its very wording, have given recognition to its provisions. Other States have done so by
all events, to postulate that all States, even those which initiate a given practice, believe acquiescence.
themselves to be acting under a legal obligation is to resort to a fiction-and in fact to
deny the possibility of developing such rules. For the path may indeed start from
voluntary, unilateral acts relying on the confident expectation that they will find The foregoing analysis leads to the conclusion that the provisions of Article 6, paragraph
acquiescence or be emulated; alternatively, the startingpoint may consist of a treaty to 2, of the Geneva Convention on the Continental Shelf, and more especially the
which more and more States accede and which is followed by unilateral acceptance. It is equidistance rule, have attained the identifiable status of a general law. This may be
only at a later stage that, by the combined effect of individual or joint action, response contested in a particular case by a State denying its opposability to itself. Then, of course,
and interaction in the field concerned, i.e., of that reciprocity so essential in international the matter becomes one of evidence.
legal relations, there develops the chain-reaction productive of international consensus
North Sea Continental Shelf Case: Sørensen Dissenting Opinion (excerpts)
In view of the complexity of this formative process and the differing motivations possible
at its various stages, it is surely over-exacting to require proof that every State having North Sea Continental Shelf Case
applied a given rule did so because it was conscious of an obligation to do so. What can
be required is that the party relying on an alleged general rule must prove that the rule (Federal Republic of Germany / Denmark; Federal Republic of Germany /
invoked is part of a general practice accepted as law by the States in question. No further Netherlands)
or more rigid form of evidence could or should be required.
1969 I.C.J. 3
In sum, the general practice of States should be recognized as prima facie evidence that it International Court of Justice
is accepted as law. Such evidence may, of course, be controverted-even on the test of February 20, 1969
practice itself, if it shows 'much uncertainty and contradiction' (Asylum, Judgment, I.C.J. General List: Nos. 51 & 52
Reports 1950, p. 277). It may also be controverted on the test of opinio juris with regard
to 'the States in question' or the parties to the case. Dissenting Opinion of Judge ad hoc Sørensen [Selected Excerpts]
To my great regret I find myself unable to concur in the decision of the Court, and I wish
In approaching this issue one has to take into account the great variety of State activity- to avail myself of the right under Article 57 of the Statute to state the reasons for my
manifesting itself as it does today in many forms of unilateral act or international dissent.
instrument or in the decisions of international organizations-, the multiplicity and
interdependence of these processes.

19
On certain points I agree with the Court. I do not think that the equidistance principle- Statute to mean 'the more precise formulation and systematization of rules of
even subject to modification in special circumstances-is inherent in the legal concept of international law in fields where there already has been extensive State practice,
the continental shelf or part of that concept by necessary implication. procedent and doctrine'. The term 'progressive development', on the other hand, is used
to mean 'the preparation of draft conventions on subjects which have not yet been
I also agree that the Federal Republic of Germany has not by her conduct assumed the regulated by international law or in regard to which the law has not yet been sufficiently
obligations under the Geneva Convention on the Continental Shelf. As I shall indicate developed in the practice of States'.
later, the conduct of the Federal Republic may be considered relevant in another context,
but I agree that the Convention is not opposable to her on a contractual or There is no doubt that the distinction between these two categories is sound in theory
quasicontractual basis. and relevant in practice. There are treaty provisions which simply formulate rules of
international law which have already been generally accepted as part of international
I do find, however, that the Convention, and in particular Article 6 thereof, is binding customary law, and it is beyond dispute that the rules embodied and formulated in such
upon the Federal Republic on a different basis. In order to substantiate this opinion I provisions are applicable to all States, whether or not they are parties to the treaty. On
wish first to make some observations on the Convention in general, and then afterwards the other hand, it is equally clear that there are treaty provisions which are intended to
to examine whether the conclusions reached hold good with respect to Article 6 in modify the existing legal situation, whether they change the content of existing rules or
particular. regulate matters which have not previously been regulated by international law. Rules
set forth in such treaty provisions are neither binding upon nor can be invoked by non-
contracting States.
***
It has come to be generally recognized, however, that this distinction between
It is generally recognized that the rules set forth in a treaty or convention may become codification and progressive development may be difficult to apply rigorously to the facts
binding upon a non-contracting State as customary rules of international law or as rules of international legal relations. Although theoretically clear and distinguishable, the two
which have otherwise been generally accepted as legally binding international norms. It notions tend in practice to overlap or to leave between them an intermediate area in
is against this particular background that regard should be had to the history of the which it is not possible to indicate precisely where codification ends and progressive
drafting and adoption of the Convention, to the subsequent attitudes of States, and to the development begins. The very act of formulating or restating an existing customary rule
relation of its provisions to the rules of international law in other, but connected, fields. may have the effect of defining its contents more precisely and removing such doubts as
In that respect, however, I take a less narrow view than the Court as to the conditions for may have existed as to its exact scope or the modalities of its application. The
attributing such effect to the rules set forth in a convention. I agree, of course, that one opportunity may also be taken of adapting the rule to contemporary conditions, whether
should not lightly reach the conclusion that a convention is binding upon a non- factual or legal, in the international community. On the other hand, a treaty purporting to
contracting State. But I find it necessary to take account of the fact-to which the Court create new law may be based on a certain amount of State practice and doctrinal opinion
does not give specific weight-that the Geneva Convention belongs to a particular which has not yet crystallized into customary law. It may start, not from tabula rasa, but
category of multilateral conventions, namely those which result from the work of the from a customary rule in statu nascendi.
United Nations in the field of codification and progressive development of international
law, under Article 13 of the Charter.
The International Law Commission itself has recognized that the distinction between the
process of codification and that of progressive development, as defined in its Statute,
Over a number of years, and following the procedure laid down in its Statute, the gives rise to practical and theoretical difficulties. The report of its eighth (1956) session
International Law Commission had elaborated a comprehensive set of draft articles on contains, in the introduction to the chapter on the law of the sea-which includes the draft
the law of the sea, including some on the continental shelf. The Commission submitted articles on the continental shelf-, the following statement:
the draft articles to the General Assembly in the report of its eighth session in 1956. By
resolution 1105 (XI) the General Assembly decided to convene a conference of
plenipotentiaries to examine the law of the sea on the basis of this draft, and all States In preparing its rules on the law of the sea, the Commission has become convinced that,
Members of the United Nations or the specialized agencies were invited to participate. in this domain at any rate, the distinction established in the statute between these two
The conference met in Geneva in the early months of 1958 and adopted four conventions activities can hardly be maintained. Not only may there be wide differences of opinion as
on the law of the sea, one of them being the Convention on the Continental Shelf, which to whether a subject is already 'sufficiently developed in practice', but also several of the
were opened for signature on 28 April 1958. provisions adopted by the Commission, based on a 'recognized principle of international
law', have been framed in such a way as to place them in the 'progressive development'
category. Although it tried at first to specify which Articles fell into one and which into
In assessing the legal effects of a convention adopted in such circumstances, the the other category, the Commission has had to abandon the attempt, as several do not
distinction between the two notions of 'codification' and 'progressive development' of wholly belong to either.' (I.L.C.,VIII, Report, para. 26).
international law may be taken as the point of departure. According to Article 15 of the
Statute of the International Law Commission, the term 'codification' is used in that
20
Considerations such as these are borne out by an examination of the process by which continental shelf may be found in earlier legal writings, it is only during the last quarter
rules of customary international law are created. Article 38 of the Statute of the Court of a century that technical developments have added practical significance to the
refers to international custom 'as evidence of a general practice accepted as law'. problems. The point of departure for the evolution of the legal doctrine relating to the
According to classic doctrine such practice must have been pursued over a certain length continental shelf was the proclamation issued by the President of the United States on 28
of time. There have even been those who have maintained the necessity of 'immemorial September 1945.
usage'. In its previous jurisprudence, however, the Court does not seem to have laid
down strict requirements as to the duration of the usage or practice which may be On the basis of early State practice and the comments made by governments, the
accepted as law. In particular, it does not seem to have drawn any conclusion in this International Law Commission hammered out the doctrine of the continental shelf in
respect from the ordinary meaning of the word 'custom' when used in other contexts. In legal provisions which were subsequently discussed and adopted, with certain
the Asylum case the Court only required of the Colombian Government that it should modifications, by the Geneva Conference in 1958. As far as the main elements are
prove-that the rule invoked by it is in accordance with a constant and uniform usage concerned, the provisions of the Convention circumscribed the doctrine on a number of
practised by the States in question, and that this usage is the expression of a right points. The outer limits of the continental shelf were defined, although according to
appertaining to the State granting asylum and a duty incumbent on the territorial State'. alternative criteria, one of which was the indeterminate criterion of exploitability. The
(I.C.J. Reports 1950, p. 276; also quoted in the case concerning U.S. Nationals in Morocco, rights of the coastal State over the shelf area were characterized as 'sovereign' rights-
I.C.J. Reports 1952,p. 200). which means that they include the ordinary legislative, executive and judicial
competence of the State on a territorial basis-but only for limited purposes, namely the
The possibility has thus been reserved of recognizing the rapid emergence of a new rule exploration and exploitation of natural resources. These rights were declared to be
of customary law based on the recent practice of States. This is particularly important in exclusive, and it was further laid down that they did not depend on occupation or any
view of the extremely dynamic process of evolution in which the international express proclamation. The term 'natural resources' was defined in great detail. In
community is engaged at the present stage of history. Whether the mainspring of this addition, the Convention imposed certain duties on the coastal State for the purpose of
evolution is to be found in the development of ideas, in social and economic factors, or in safeguarding the interest of other States in the use of the high seas, and provisions were
new technology, it is characteristic of our time that new problems and circumstances included for delimitation vis-a-vis neighbouring States.1
incessantly arise and imperatively call for legal regulation. In situations of this nature, a
convention adopted as part of the combined process of codification and progressive It is difficult to express any definite opinion as to the exact legal status of the continental
development of international law may well constitute, or come to constitute the decisive shelf in general international law prior to the Geneva Conference. It may be argued that
evidence of generally accepted new rules of international law. The fact that it does not customary international law had by then already developed to the point of authorizing a
purport simply to be declaratory of existing customary law is immaterial in this context. coastal State to exercise some measure of sovereign rights over the adjacent area of the
The convention may serve as an authoritative guide for the practice of States faced with continental shelf. But it can hardly be asserted that the doctrine of the continental shelf,
the relevant new legal problems, and its provisions thus become the nucleus around as formulated and circumscribed in considerable detail, first by the International Law
which a new set of generally recognized legal rules may crystallize. The word 'custom', Commission in its draft of 1956, and then by the Geneva Conference in 1958, was nothing
with its traditional time connotation, may not even be an adequate expression for the more than a restatement of then existing rules of customary international law. The
purpose of describing this particular source of law. provisions of the Convention were not simply declaratory of already accepted
international law in the matter.
This is not merely a question of terminology. If the provisions of a given convention are
recognized as generally accepted rules of law, this is likely to have an important bearing This being so, the question remains whether the Convention may nevertheless now be
upon any problem of interpretation which may arise. In the absence of a convention of taken as evidence of generally accepted rules of international law. In the Judgment, the
this nature, any question as to the exact scope and implications of a customary rule must Court has applied certain minimum conditions for recognizing that a treaty provision
be answered on the basis of a detailed analysis of the State practice out of which the attains the character of a generally accepted rule of customary law. In a general way I
customary rule has emerged. If, on the other hand, the provisions of the convention serve agree that these conditions reflect the elements or factors to be considered, except that I
as evidence of generally accepted rules of law, it is legitimate, or even necessary, to have also believe, as indicated above, that it should be considered as a relevant element that a
recourse to ordinary principles of treaty interpretation, including, if the circumstances so convention has been adopted in the process of codification and development of
require, an examination of travaux preparatoires. international law under the United Nations Charter. I do not, however, find the rather
schematic approach adopted by the Court entirely satisfactory. The conditions should
Turning now to the Convention on the Continental Shelf, it is hardly necessary to recall not, in my view, be considered as alternative conditions which could be examined and
that the legal problems with which it deals have arisen out of the rapidly increasing rejected one by one. The proper approach, in my opinion, is to examine the relevant
demand for sources of energy and the development of new techniques permitting the elements as interlocking and mutually interdependent parts of a general process.
extraction of resources from the subsoil of submarine areas. As problems of international
law, the problems relating to the exploitation of the natural resources of the continental Approaching the problems of the present cases in this manner, I think that the decisive
shelf are of recent origin. Although the seeds of the contemporary doctrine of the considerations may be summarized as follows. The adoption of the Geneva Convention
21
on the Continental Shelf was a very significant element in the process of creating new ANGLO NORWEGIAN FISHERIES CASE (SUMMARY ON CUSTOMARY
rules of international law in a field which urgently required legal regulation. The INTERNATIONAL LAW)
Convention has been ratified or acceded to by a quite considerable number of States, and
there is no reason to believe that the flow of ratifications has ceased. It is significant that International Court of Justice, Contentious Case: Anglo Norwegian Fisheries Case
the States which have become parties to the Convention are fairly representative of all (UK vs Norway)
geographical regions of the world and of different economic and social systems. Not only
the contracting parties, but also other States, have adapted their action and attitudes so
as to conform to the Convention. No State which has exercised sovereign rights over its Year of Decision: 1951.
continental shelf in conformity with the provisions of the Convention has been met with
protests by other States. True, there have been certain controversies on such questions The Court was asked to decide, amongst others, the validity, under international law, of
as the understanding of the term 'natural resources' and the delimitation of shelf areas the methods used to delimit Norway’s territorial sea/ fisheries zone. We will not discuss
between the States concerned, a problem which will be examined further below. In the technical aspects of the judgment relating to the delimitation, but focus on the Court’s
general, however, such controversies have revolved on the interpretation and conclusions relating to customary international law.
application of the provisions of the Convention, rather than the question whether those
provisions embody generally applicable rules of international law. Background to the case

I do not find it necessary to go into the question of the opinio juris. This is a problem of The United Kingdom requested the court to decide if Norway had used a legally acceptable
legal doctrine which may cause great difficulties in international adjudication. In view of method in drawing the baseline from which it measured its territorial sea. The
the manner in which international relations are conducted, there may be numerous cases United Kingdom argued that customary international law did not allow the length of a
in which it is practically impossible for one government to produce conclusive evidence baseline drawn across a bay to be longer than ten miles. Norway argued that its
of the motives which have prompted the action and policy of other governments. delimitation method was consistent with general principles of international law.
Without going into all aspects of the doctrinal debate on this issue, I wish only to cite the
following passage by one of the most qualified commentators on the jurisprudence of the
Court. Examining the conditions of the opinio necessitatis juris Sir Hersch Lauterpacht Findings of the Court
writes:
1. The formation of customary law
Unless judicial activity is to result in reducing the legal significance of the most potent
source of rules of international law, namely, the conduct of States, it would appear that The Court referred to (1) positive State practice and (2) lack of contrary State practice as
the accurate principle on thesubject consists in regarding all uniform conduct of a confirmation of an existing rule of customary international law (see p. 17 and 18). There
Governments (or, in appropriate cases, abstention therefrom) as evidencing the opinio was no mention of opinio juris in this early judgment.
necessitatis juris except when it is shown that the conduct in question was not
accompanied by any such intention.' (Sir Hersch Lauterpacht: The Development of In the following passage, the Court considered expressed dissent by States regarding a
International Law by the International Court, London 1958, p.380.) particular practice to be detrimental to the existence of an alleged general rule. Yet,
the Court did not examine further whether these States adopted a contrary practice
Applying these considerations to the circumstances of the present cases, I think that the because, for example, (1) they were claiming an exception to the rule (see the Nicaragua
practice of States referred to above may be taken as sufficient evidence of the existence jurisprudence) or (2) because they believed that the said rule did not possess the
of any necessary opinio juris. character of customary law.

In my opinion, the conclusion may therefore safely be drawn that as a result of a “In these circumstances the Court deems it necessary to point out that although the ten-
continuous process over a quarter of a century, the rules embodied in the Geneva mile rule has been adopted by certain States both in their national law and in their
Convention on the Continental Shelf have now attained the status of generally accepted treaties and conventions, and although certain arbitral decisions have applied it as
rules of international law. between these States, other States have adopted a different limit. Consequently, the ten-
mile rule has not acquired the authority of a general rule of international law.”
Norwegian Fisheries Case
1.1. The persistent objector

The Court in its judgment held that even if a customary law rule existed on the
aforementioned ten-mile rule,

22
“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she 1.2. Contrary State practice of Norway?
has always opposed any attempt to apply it to the Norwegian coast.”
In this case, Norway adopted a contrary practice – a practice that was the subject of
In this case, the Court appears to support the idea that an existing customary law rule litigation.
would not apply to a State if (1) it objected to the application of the rule to itself (2) at the
initial stages and (3) in a consistent manner. The Anglo Norwegian Fisheries Case, thus, However, interestingly, Norway was clear that it was not claiming an exception to the rule
supports the Asylum Case (Peru vs Colombia) in articulating what we now call the (i.e. that its practice was not contrary to international law). It emphasized that its practice
persistent objector rule. – even if it was a deviation from the general practice – was in conformity with international
law (see page 21).
a. Initial objection
“In its (Norway’s) view, these rules of international law take into account the diversity of
The Court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that, facts and, therefore, concede that the drawing of base-lines must be adapted to the
“in spite of the adoption in some treaties of the quite arbitrary distance of 10 sea miles, this special conditions obtaining in different regions. In its view, the system of delimitation
distance would not appear to me to have acquired the force of international law. Still less applied in 1935, a system characterized by the use of straight lines, does not therefore
would it appear to have any foundation in reality…” infringe the general law; it is an adaptation rendered necessary by local conditions. ”

The Court held that “Language of this kind can only be construed as the considered The Court held that the fact that this consistent and sufficiently long practice took place
expression of a legal conception regarded by the Norwegian Government as compatible with without any objection to the practice from other States (until the time of dispute) indicated
international law”. Thus, the Court held that Norway had refused to accept the rule as that these States did not consider the Norwegian system to be “contrary to international
regards to it in 1870. law”.

b. Sustained objection “The notoriety of the facts, the general toleration of the international community, Great
Britain’s position in the North Sea, her own interest in the question, and her prolonged
The Court also went on to hold that Norway had followed the principles of delimitation abstention would in any case warrant Norway’s enforcement of her system against the
that it considered a part of its system in a consistent and uninterrupted manner from 1869 United Kingdom. The Court is thus led to conclude that the method of straight lines,
until the time of the dispute. established in the Norwegian system, was imposed by the peculiar geography of the
Norwegian coast; that even before the dispute arose, this method had been consolidated
by a consistent and sufficiently long practice, in the face of which the attitude of
In establishing consistent practice, the Court held that “…too much importance need not be governments bears witness to the fact that they did not consider it to be contrary to
attached to the few uncertainties or contradictions, real or apparent, which the United international law.”
Kingdom Government claims to have discovered in Norwegian practice.”
2. Relationship between international and national law
c. No objection by other States
The Court alluded to the relationship between national and international law in
The Court held that the 10-mile rule did not form a part of the general law and, in any delimitation of maritime boundaries. In delimitation cases, States “must be allowed the
event, could not bind Norway because of the latter’s objections. Next, the Court inquired latitude necessary in order to be able to adapt its delimitation to practical needs and local
whether the Norwegian system of delimitation was nevertheless contrary to international requirements…” The Court would also consider “…certain economic interests peculiar to a
law. To do so, the Court relied on state practice once more. region, the reality and importance of which are clearly evidenced by a long usage.” However,
while the act of delimitation can be undertaken by the State, its legal validity depends on
“The general toleration of foreign States with regard to the Norwegian practice is an international law.
unchallenged fact. For a period of more than sixty years the United Kingdom Government
itself in no way contested it… The Court notes that in respect of a situation which could “The delimitation of sea areas has always an international aspect; it cannot be dependent
only be strengthened with the passage of time, the United Kingdom Government merely upon the will of the coastal State as expressed in its municipal law. Although it is
refrained from formulating reservations.” true that the act of delimitation is necessarily a unilateral act, because only the coastal
State is competent to undertake it, the validity of the delimitation with regard to other
States depends upon international law. (p. 20)”

23