WEEK 6 (TERRITORY) Background:

The Island of Palmas Case (U.S. v The Netherlands) – An Issue of
Territorial Sovereignty
Summary & Issues:
The U.S. maintained it formed part of the Philippines under Spanish discovery,
pursuant to the Treaty of Paris 1898 and the alleged principle of contiguity.
The Netherlands purported a counter-claim of continuous display of
sovereignty via the Dutch East India Company contracts. The relevant issues
are:
The Island of Palmas (Miangas) is located between the southern-most point
of the
Philippines and the northern-most point of Indonesia. It is an extremely small
island, only
2.6km N-S and 1km E-W. The population was below 1,000 at the time of the
case.
The dispute arose in January 1906 after Major-General Wood (also a governor
of a
nearby island) of the U.S. Army encountered Dutch ships upon his approach
to the island,

thus prompting a statement from the U.S. declaring the island of Palmas as
1) Did the U.S. title claim of discovery prevail over the peaceful and
part of the
continuous
“archipelago known as the Philippine Islands” pursuant to Article III of the
display of Dutch sovereignty, and;
Treaty of Paris
2) Could the principal of contiguity be founded in international law?
1898, and the subsequent initiation of diplomatic correspondence between
*3) A divergence of view concerning the necessity and admissibility of the contentious
evidence arose
states. On January 23 1925, following an extended period of disagreement,
between the parties. This was a question of procedure for the Arbitrator to the parties
decide under
referred the dispute of sovereignty to the Permanent Court of Arbitration
Article V of the Special Agreement. where Max

Huber was tasked with the determination of which claim had been more
firmly established

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Arguments:
The U.S. submissions supported a claim of sovereignty with;
a) Spanish discovery of the island and cession pursuant to the Treaty of Paris
1898. The
documents supplied to the arbitrator consist of translations from reports from
the voyages
of a Spanish explorer, Garcia de Loaisa, who made reference to the island in
October of
1526. This was supported by the fact that the island appeared on maps as
early as 1595.
Following their defeat, the Spanish signed the Treaty of Paris 1898 and
relinquished to the
U.S. certain territories within a specified region, the Island of Palmas included.
b) Reference to the Treaty of Münster 1648, specifically Article V & VI, which
seemingly
clarified the appointment of territories with regard to the Spanish conquest
of islands
located in close proximity to that of Palmas, thus inferring indirect dominion.
c) The principal of contiguity, inferring that the title claim should revert to the
U.S. in the
interest of geographical unity.
The Netherlands argued that Dutch sovereignty had been demonstrated as
early as 1648, producing a series of contracts concluded by the East India
Company – in 1677, 1697, 1720, 1758, 1828, 1885 & 1899 – with the native
princes of the Sangihe Islands south of Palmas, undoubtedly under Dutch
suzerainty. In accordance with the contract of 1885, predating the Treaty of
Paris 1898, the list of territories included in Dutch frontiers specified the
Island of Palmas. This listing was repeated in the contract of 1899, with both
contracts containing provisions excluding the native princes from dealings
with foreign
nationals and the use of Dutch currency as legal tender.
JUDGMENT:
Regarding the Spanish discovery of the island, the reports produced by the
U.S. displayed no evidence of possession or administration by Spain (e.g.
planting of a flag), only that the island was “seen”. This would make the title
of discovery inchoate, under the most liberal of interpretations. Following
the prevailing view of international law at the time, an inchoate title must
be completed with an act displaying possession within a reasonable time to
successfully legitimise a title claim. The U.S. reliance on the Treaty of
Münster 1648 was also ill-founded. Upon investigation of its articles, it was
found the
treaty did not definitively divide or appoint territories to one power or
another. More
importantly, the treaty refrained from acknowledging the validity of a title by
discovery.
It is evident that Spain could not confer rights upon the U.S. that she, herself,
did not possess. This was expressly recognised in communications between
the U.S. Secretary of
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State & Spanish Minister at Washington, dated April 7 the 1900. It appeared
that the cessionary State never envisaged the compromise of territories that
Spain had no legitimate title over, even if within the boundaries detailed in
the Treaty of Paris 1898. Thus, it cannot be interpreted as disposing of the
rights of independent third powers.
Additionally, the principle of contiguity remains to be demonstrated as an
existing positive rule of international law. Despite its practicality under
consensual circumstances, international arbitral jurisprudence on disputes of
sovereignty (e.g. Italy v Switzerland, concerning the Alpe Craivarola)
attributes little weight to the continuity of territory in favour of the display
of sovereignty.
Although the arbitrator found that the U.S. failed to establish the effective
display
of sovereignty at anytime, it was still necessary to whether the contention of
the
Netherlands was sufficient. In the opinion of the arbitrator, the Netherlands
were indeed
successful in establishing the Island of Palmas as forming a part of the
Sangihe Islands,
which were also proven to be under Dutch suzerainty through the East india
Co. contracts.
The ability of the East India Company to act under international law was
questioned by the
U.S., however Article V of the Treaty of Münster 1648 expressly recognised
the chartered
company’s ability to create situations recognised under international law.
The contracts
were also accompanied by certification from competent officials of the
Dutch government,
solidifying their authenticity. Furthermore, actions characteristic of
demonstrating state
authority were considered to have taken place from 1700 to 1898. This was
deemed to be,
in effect, a continuous and peaceful display of sovereignty.
The Netherlands
Brief Fact Summary. Both the United States (P) laid claim to the ownership of the
Island of Palmas. While the U.S. (P) maintained that it was part of the Philippines,
the Netherlands (D) claimed it as their own.
Synopsis of Rule of Law. A title that is inchoate cannot prevail over a definite title
found on the continuous and peaceful display of sovereignty.
Facts. Both the United States (P) laid claim to the ownership of the Island of
Palmas. While the U.S. (P) maintained that it was part of the Philippines, the
Netherlands (D) claimed it as their own. The claim of the U.S. (P) was back up with
the fact that the islands had been ceded by Spain by the Treaty of Paris in 1898,
and as successor to the rights of Spain over the Philippines, it based its claim of
title in the first place on discovery. On the part of the Netherlands (D), they
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claimed to have possessed and exercised rights of sovereignty over the island
from 1677 or earlier to the present.
Issue. Can a title which is inchoate prevail over a definite title found on the
continuous and peaceful display of sovereignty?
Held. (Huber, Arb.). No. A title that is inchoate cannot prevail over a definite title
found on the continuous and peaceful display of sovereignty. The peaceful and
continuous display of territorial sovereignty is as good as title. However, discovery
alone without subsequent act cannot suffice to prove sovereignty over the island.
The territorial sovereignty of the Netherlands (D) was not contested by anyone
from 1700 to 1906. The title of discovery at best an inchoate title does not
therefore prevail over the Netherlands (D) claims of sovereignty.
Discussion. Evidence of contracts made by the East India Company and the
Netherlands (D) was examined by the arbitrator. The claims made by the
Netherlands (D) were also based on the premise of the convention it had with
the princes and native chieftains of the islands. Hence, at the time of the
Treaty of Paris in 1898, Spain was found not to have dominion over the island.
y 4,700 private U.S. claims, ordered payment by Iran (D) to U.S. nationals
amounting to over $2.5 billion.
Island of Palmas (or Miangas) (The Netherlands / The United States of
America)
The dispute concerned the sovereignty over the Island of Palmas, ceded by
Spain to the United States of America by treaty concluded in 1898, but
claimed by the Netherlands as forming part of its possessions on the basis of
having excercised sovereignty there for more than 200 years.
On January 23, 1925, the United States of America and the Netherlands
referred their dispute concerning sovereignty over the Island of Palmas to
arbitration by a sole arbitrator. The sole arbitrator was asked to determine
whether the Island of Palmas (or Miangas) in its entirety formed a part of the
territory belonging to the United States of America or of the territory of the
Netherlands.
In his award, the sole arbitrator attached limited significance to discovery as
a basis of title and elaborated on the legal effect of the peaceful and
continuous display of state authority over territory. The arbitrator further
considered the role of acquiescence and recognition in circumstances of
competing acts of possession, and the principle nemo dat quod non habet in
relation to treaties of cession.
To determine the question of title it was necessery for the arbitrator to
consider arguments about the presentation of evidence in legal proceedings
and the specific issue of maps. The arbitrator adoped a liberal approach
towards the production of evidence, but indicated that caution was required
when assessing the value of maps.
The arbitrator concluded that even if it had been possible for Spain to have
ceded to the United States of America its inchoate title derived from discovery
or contiguity the inchoate title of the Netherlands could not have been
modified by a treaty concluded by third Powers; and such a treaty could not
have impressed the character of illegality on any act undertaken by the
Netherlands with a view to completing their inchoate title... at least as long as
no dispute on the matter had arisen. By the time a dispute had arisen, in 1906,
the arbitrator found that the establishment of Dutch authority had already
reached such a degree of development, that the importance of maintaining
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this state of things ought to be considered as prevailing over a claim, possibly
based either on discovery in very distant times and unsupported by
occupation or mere geographical position. For these reasons, the arbitrator
held that the Island of Palmas (or Miangas) formed in its entirety a part of
Netherlands territory.
International Civil Aviation Organisation (ICAO)
Description
The constitution of ICAO is the Convention on International Civil Aviation,
drawn up by a conference in Chicago in November and December 1944, and
to which each ICAO Contracting State is a party. This Convention is also known
as the Chicago Convention). In October 1947, ICAO became a specialised
agency of the newly-established United Nations. The Chicago Convention set
down the purpose of ICAO:
"WHEREAS the future development of international civil aviation can greatly
help to create and preserve friendship and understanding among the nations
and peoples of the world, yet its abuse can become a threat to the general
security; and WHEREAS it is desirable to avoid friction and to promote that co-
operation between nations and peoples upon which the peace of the world
depends; THEREFORE, the undersigned governments having agreed on certain
principles and arrangements in order that international civil aviation may be
developed in a safe and orderly manner and that international air transport
services may be established on the basis of equality of opportunity and
operated soundly and economically;”
There are currently 191 Member States.
How ICAO Works
The following description is given by ICAO itself:
"According to the terms of the Convention, the Organization is made up of an
Assembly, a Council of limited membership with various subordinate bodies
and a Secretariat. The Chief Officers are the President of the Council and the
Secretary General.
The Assembly, composed of representatives from all Contracting States, is the
sovereign body of ICAO. It meets every three years, reviewing in detail the
work of the Organization and setting policy for the coming years. It also votes
a triennial budget.
The Council, the governing body which is elected by the Assembly for a three-
year term, is composed of 36 States. The Assembly chooses the Council
Member States under three headings: States of chief importance in air
transport, States which make the largest contribution to the provision of
facilities for air navigation, and States whose designation will ensure that all
major areas of the world are represented. As the governing body, the Council
gives continuing direction to the work of ICAO. It is in the Council that
Standards and Recommended Practices are adopted and incorporated as
Annexes to the Convention on International Civil Aviation. The Council is
assisted by the Air Navigation Commission (technical matters), the Air
Transport Committee (economic matters), the Committee on Joint Support of
Air Navigation Services and the Finance Committee.
The Secretariat, headed by a Secretary General, is divided into five main
divisions: the Air Navigation Bureau, the Air Transport Bureau, the Technical
Co-operation Bureau, the Legal Bureau, and the Bureau of Administration and
Services. In order that the work of the Secretariat shall reflect a truly
international approach, professional personnel are recruited on a broad
geographical basis.
5
 ICAO works in close co-operation with other members of the United Nations It should be noted that ICAO Standards do not preclude the development of
family such as the World Meteorological Organization (WMO), the national standards which may be more stringent than those contained in an
International Telecommunication Union (ITU), the Universal Postal Union, the Annex.
World Health Organization (WHO) and the International Maritime
Organization (IMO). Non-governmental organisations which also participate CHICAGO CONVENTION
in ICAO's work include the International Air Transport
Association International Air Transport Association (IATA), the Airports
Council International (ACI), the International Federation of Air Line Pilots'
Description
Associations International Federation of AirLine Pilots Associations (IFALPA),
and the International Council of Aircraft Owner and Pilot Associations
(IAOPA)."
The Chicago Convention (also known as the Convention on International Civil
ICAO is responsible for: Aviation), established the International Civil Aviation Organisation (ICAO), a
specialized agency of the United Nations charged with coordinating and
 Safety regulating international air travel. The Convention establishes rules of
 Registration airspace, aircraft registration and safety, and details the rights of the
 Airworthiness signatories in relation to air travel; it also exempts air fuels from tax. The
 Prevention of economic waste Convention was signed by 52 states on 7 December 1944 in Chicago, Illinois,
 Fair competition U.S., and came into effect on 4 April 1947.
 Standardisation
 Aviation Law
The Convention provided for the sovereignty of airspace above the territory
of each state, together with five freedoms (later expanded to nine by the
The ICAO Annexes
addition of four unofficial freedoms) which govern the freedom of states to
The separate article "ICAO Annexes and Doc Series" gives details of all 19 operate air transport flights (including the carriage of passengers, cargo and
annexes and ICAO Documents. mail) across, into and within the airspace of other states. Only the first two of
these freedoms (see below) apply automatically to signatory states, the
Contracting States are required to give notification of differences to remainder being subject to national agreement.
standards, and invited to notify differences from Recommended Practices in
Annexes. This information is then listed in Supplements to the Annexes.

The Convention also concerns the issue and recognition of certificates (e.g. an
aircraft's certificate of airworthiness (C of A) or an airline's air operator
certificate (AOC) and licences (e.g. pilot licensing or controller licensing).

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Freedom Description Treaty on Principles Governing the Activities of States in the Exploration and
Use of Outer Space, including the Moon and Other Celestial Bodies
1st. Right to overfly a foreign country without landing

Right to refuel or carry out maintenance in a foreign The Outer Space Treaty was considered by the Legal Subcommittee in 1966
2nd. and agreement was reached in the General Assembly in the same year
country
( resolution 2222 (XXI)). The Treaty was largely based on the Declaration of
Legal Principles Governing the Activities of States in the Exploration and Use
3rd. Right to fly from one's own country to another
of Outer Space, which had been adopted by the General Assembly in
its resolution 1962 (XVIII) in 1963, but added a few new provisions. The Treaty
4th. Right to fly from a foreign country to one's own was opened for signature by the three depository Governments (the Russian
Federation, the United Kingdom and the United States of America) in January
Right to fly between two foreign countries during flights 1967, and it entered into force in October 1967. The Outer Space Treaty
5th. provides the basic framework on international space law, including the
which begin or end in one's own
following principles:

Right to fly from one foreign country to another one while

6th.
stopping in one's own country
1. the exploration and use of outer space shall be carried out for the benefit
and in the interests of all countries and shall be the province of all mankind;
Right to fly between two foreign countries while not
7th. 2. outer space shall be free for exploration and use by all States;
offering flights to one's own country
3. outer space is not subject to national appropriation by claim of sovereignty,
Right to fly between two or more airports in a foreign by means of use or occupation, or by any other means;
8th.
country while continuing service to one's own country 4. States shall not place nuclear weapons or other weapons of mass
destruction in orbit or on celestial bodies or station them in outer space in any
Right to fly inside a foreign country without continuing other manner;
9th.
service to one's own country 5. the Moon and other celestial bodies shall be used exclusively for peaceful
purposes;

7
astronauts shall be regarded as the envoys of mankind;
6. States shall be responsible for national space activities whether carried out
by governmental or non-governmental entities;
7. States shall be liable for damage caused by their space objects; and
8. States shall avoid harmful contamination of space and celestial bodies.
Background
The Outer Space Treaty was adopted by the UN General Assembly (UNGA) in
resolution 2222 (XXI) after being considered by the Legal Subcommittee in
1966. The Treaty added new provisions to the foundation provided by the
Declaration of Legal Principles Governing the Activities of States in the
Exploration and Use of Outer Space, which had been adopted by the General
Assembly in 1963 in resolution 1962 (XVIII).
Treaty Obligations
The Treaty stipulates that exploration and use of outer space shall be carried
out for the benefit and in the interest of all countries, and it shall be the
province of mankind. Parties agree not to place in orbit around the Earth any
objects carrying nuclear weapons or any other kinds of weapons of mass
destruction; not to install such weapons on celestial bodies, or station them
in outer space in any other manner; the Moon and other celestial bodies are
to be used exclusively for peaceful purposes; establishment of military bases,
installations and fortifications, the testing of any type of weapons, and the
conduct of military maneuvers on celestial bodies shall be forbidden.
Verification and Compliance
Verification
States Parties agree to inform the UN Secretary-General as well as the public
and the international scientific community, to the greatest extent feasible and
practicable, of the nature, conduct, locations, and results of activities covered
in this Treaty. The Treaty sets forth that all stations, installations, equipment,
and space vehicles on the Moon and other celestial bodies shall be open to
representatives of other States Parties on a reciprocal basis; such
representatives shall give reasonable advanced notice of their projected visit,
so that appropriate consultations may be held, and so that maximum
precautions may be taken to assure safety and to avoid interference with
normal operations of the facility to be visited.
Compliance
When activities are carried on in outer space by an international organization,
responsibility for compliance with this Treaty shall be borne both by the
international organization and by the States Parties to the Treaty participating
in such organization. No specific measures for compliance are included in this
Treaty.
Convention on International Liability for Damage Caused by Space Objects
The Liability Convention was considered and negotiated by the Legal
subcommittee from 1963 to 1972. Agreement was reached in the General
Assembly in 1971 ( resolution 2777 (XXVI)), and the Convention entered into
force in September 1972. Elaborating on Article 7 of the Outer Space Treaty,
the Liability Convention provides that a launching State shall be absolutely
liable to pay compensation for damage caused by its space objects on the
8
surface of the Earth or to aircraft, and liable for damage due to its faults in
space. The Convention also provides for procedures for the settlement of
claims for damages.

UNCLOS

Article 3. Breadth of the territorial sea Every State has the right to establish
the breadth of its territorial sea up to a limit not exceeding 12 nautical miles,
measured from baselines determined in accordance with this Convention.

Article 8. Internal waters 1. Except as provided in Part IV, waters on the

landward side of the baseline of the territorial sea form part of the internal
waters of the State. 2. Where the establishment of a straight baseline in
accordance with the method set forth in article 7 has the effect of enclosing
as internal waters areas which had not previously been considered as such, a
right of innocent passage as provided in this Convention shall exist in those
waters.

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WEEK 7 (TERRITORY PART 2)
ANGLO NORWEGIAN FISHERIES CASE (SUMMARY ON CUSTOMARY
INTERNATIONAL LAW)
International Court of Justice, Contentious
Case: Anglo Norwegian Fisheries Case (UK vs Norway)
Year of Decision: 1951.
The Court was asked to decide, amongst others, the validity, under
international law, of the methods used to delimit Norway’s territorial sea/
fisheries zone. We will not discuss the technical aspects of the judgment
relating to the delimitation, but focus on the Court’s conclusions relating to
customary international law.
Background to the case
The United Kingdom requested the court to decide if Norway had used a
legally acceptable method in drawing the baseline from which it measured its
territorial sea. The United Kingdom argued that customary international
law did not allow the length of a baseline drawn across a bay to be longer than
ten miles. Norway argued that its delimitation method was consistent with
general principles of international law.
Findings of the Court
1. The formation of customary law
The Court referred to (1) positive State practice and (2) lack of contrary State
practice as a confirmation of an existing rule of customary international law
(see p. 17 and 18). There was no mention of opinio juris in this early judgment.
In the following passage, the Court considered expressed dissent by States
regarding a 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 because, for example, (1) they were claiming an
exception to the rule (see the Nicaragua jurisprudence) or (2) because
they believed that the said rule did not possess the character of customary
law.
“In these circumstances the Court deems it necessary to point out that
although the ten-mile rule has been adopted by certain States both in their
national law and in their treaties and conventions, and although certain
arbitral decisions have applied it as 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.”
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,
“…the ten-mile rule would appear to be inapplicable as against Norway
inasmuch as she has always opposed any attempt to apply it to the Norwegian
coast.”
In this case, the Court appears to support the idea that an existing customary
law rule 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, supports the Asylum Case (Peru vs
Colombia) in articulating what we now call the persistent objector rule.
10

a. Initial objection
The Court pointed out that the Norwegian Minister of Foreign Affairs, in 1870,
stated that, “in spite of the adoption in some treaties of the quite arbitrary
distance of 10 sea miles, this distance would not appear to me to have
acquired the force of international law. Still less would it appear to have any
foundation in reality…”
The Court held that “Language of this kind can only be construed as the
considered expression of a legal conception regarded by the Norwegian
Government as compatible with international law”. Thus, the Court held that
Norway had refused to accept the rule as regards to it in 1870.
b. Sustained objection
The Court also went on to hold that Norway had followed the principles of
delimitation that it considered a part of its system in a consistent and
uninterrupted manner from 1869 until the time of the dispute.
In establishing consistent practice, the Court held that “…too much
importance need not be attached to the few uncertainties or contradictions,
real or apparent, which the United Kingdom Government claims to have
discovered in Norwegian practice.”
c. No objection by other States
The Court held that the 10-mile rule did not form a part of the general law
and, in any event, could not bind Norway because of the latter’s objections.
Next, the Court inquired whether the Norwegian system of delimitation was
nevertheless contrary to international law. To do so, the Court relied on state
practice once more.
“The general toleration of foreign States with regard to the Norwegian
practice is an 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 only be strengthened with the
passage of time, the United Kingdom Government refrained from formulating
reservations.”
1.2. Contrary State practice of Norway?
In this case, Norway adopted a contrary practice – a practice that was the
subject of litigation.
However, interestingly, Norway was clear that it was not claiming an
exception to the rule (i.e. that its practice was not contrary to international
law). It emphasized that its practice – even if it was a deviation from the
general practice – was in conformity with international law (see page 21).
“In its (Norway’s) view, these rules of international law take into account
the diversity of facts and, therefore, concede that the drawing of base-lines
must be adapted to the special conditions obtaining in different regions. In its
view, the system of delimitation applied in 1935, a system characterized by
the use of straight lines, does not therefore infringe the general law; it is an
adaptation rendered necessary by local conditions. ”
The Court held that the fact that this consistent and sufficiently long practice
took place without any objection to the practice from other States (until the
11
time of dispute) indicated that these States did not consider the Norwegian
system to be “contrary to international law”.
“ 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 abstention would in any case warrant Norway’
s enforcement of her system against the United Kingdom. The Court is thus
led to conclude that the method of straight lines, 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 governments bears witness to the fact that they did not consider it to be
contrary to international law.”
2. Relationship between international and national law
The Court alluded to the relationship between national and international law
in delimitation of maritime boundaries. In delimitation cases, States “must be
allowed the latitude necessary in order to be able to adapt its delimitation to
practical needs and local requirements…” The Court would also
consider “…certain economic interests peculiar to a 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 international law.
“The delimitation of sea areas has always an international aspect; it cannot
be dependent merely upon the will of the coastal State as expressed in its
municipal law. Although it is 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)”
Further reading:
T. Stein, ‘The Approach of the Different Drummer: The Principle of the
Persistent Objector in International Law’, 26 Harvard International Law
Journal, 1985, p. 457,
J. Charney, ‘The Persistent Objector Rule and the Development of Customary
International Law’, 56 BYIL, 1985, p. 1.
“In fact, the two international court of justice cases which appear to support
the persistent objector rule both arose in circumstances where the new rule
itself was in substantial doubt. Thus, it was significantly easier for the objector
to maintain its status. No case is cited for a circumstance in which the objector
effectively maintained its status after the rule became well accepted in
international law. In fact, it is unlikely that such a status can be maintained
din light of the realities of the international legal system. This is certainly the
plight that befell the US, The UK and Japan in the law of the sea. Their
objections to expanded coastal state jurisdiction were ultimately to no avail,
and they have been forced to accede to 12-mile territorial seas and the 200-
mile exclusive economic zone. “
Curtis A. Bradley & Mitu Gulati, ‘Withdrawing from International Custom‘, see
also pp. 236 – 239.
“The Fisheries Case, decided a year later, pitted the United Kingdom against
Norway. At issue was whether Norway had used a legally acceptable method
in drawing the baseline from which it measured its territorial sea. The United
Kingdom argued that CIL did not allow the length of a baseline drawn across
a bay to be longer than ten miles. Again, as with the Asylum Case, the primary
holding of the case was that the alleged CIL rule did not exist. In the alternative,
the court briefly remarked that, had the rule existed, it would not have applied
against Norway because Norway had “always opposed any attempt to apply
it to the Norwegian coast.”This language is often cited in support of the
persistent objector doctrine, but it could just as easily be read to support the
Default View of CIL, since there is nothing in this language that suggests that
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Norway’s opposition must have occurred prior to the establishment of the
alleged rule of CIL. The arguments of the parties do not resolve this
uncertainty: although the United Kingdom appears to have supported
something like the modern persistent objector doctrine, at least for rights
historically exercised by a state (while asserting that Norway had not met its
requirements),Norway (which prevailed in the case) appears to have
supported something closer to the Default View.
The Asylum and Fisheries decisions provide no more than passing and
ambiguous support for the doctrine. State practice since those decisions is
also relatively unhelpful, since there have been essentially no instances in
which states have invoked the doctrine. As Professor Stein reported in a 1985
article, his research had “failed to turn up any case where an author provided
even one instance of a state claiming or granting an exemption from a rule on
the basis of the persistent objector principle—excepting of course the Asylum
and Fisheries cases themselves.”
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v.
Albania)
OVERVIEW OF THE CASE
This dispute gave rise to three Judgments by the Court. It arose out of the
explosions of mines by which some British warships suffered damage while
passing through the Corfu Channel in 1946, in a part of the Albanian waters
which had been previously swept. The ships were severely damaged and
members of the crew were killed. The United Kingdom seised the Court of the
dispute by an Application filed on 22 May 1947 and accused Albania of having
laid or allowed a third State to lay the mines after mine-clearing operations
had been carried out by the Allied naval authorities. The case had previously
been brought before the United Nations and, in consequence of a
recommendation by the Security Council, had been referred to the Court.
In a first Judgment, rendered on 25 March 1948, the Court dealt with the
question of its jurisdiction and the admissibility of the Application, which
Albania had raised. The Court found, inter alia, that a communication dated 2
July 1947, addressed to it by the Government of Albania, constituted a
voluntary acceptance of its jurisdiction. It recalled on that occasion that the
consent of the parties to the exercise of its jurisdiction was not subject to any
particular conditions of form and stated that, at that juncture, it could not
hold to be irregular a proceeding not precluded by any provision in those texts.
A second Judgment, rendered on 9 April 1949, related to the merits of the
dispute. The Court found that Albania was responsible under international law
13
for the explosions that had taken place in Albanian waters and for the damage
and loss of life which had ensued. It did not accept the view that Albania had
itself laid the mines or the purported connivance of Albania with a mine-laying
operation carried out by the Yugoslav Navy at the request of Albania. On the
other hand, it held that the mines could not have been laid without the
knowledge of the Albanian Government. On that occasion, it indicated in
particular that the exclusive control exercised by a State within its frontiers
might make it impossible to furnish direct proof of facts incurring its
international responsibility. The State which is the victim must, in that case,
be allowed a more liberal recourse to inferences of fact and circumstantial
evidence ; such indirect evidence must be regarded as of especial weight
when based on a series of facts, linked together and leading logically to a
single conclusion. Albania, for its part, had submitted a counter-claim against
the United Kingdom. It accused the latter of having violated Albanian
sovereignty by sending warships into Albanian territorial waters and of
carrying out minesweeping operations in Albanian waters after the explosions.
The Court did not accept the first of these complaints but found that the
United Kingdom had exercised the right of innocent passage through
international straits. On the other hand, it found that the minesweeping had
violated Albanian sovereignty, because it had been carried out against the will
of the Albanian Government. In particular, it did not accept the notion of “self-
help” asserted by the United Kingdom to justify its intervention.
In a third Judgment, rendered on 15 December 1949, the Court assessed the
amount of reparation owed to the United Kingdom and ordered Albania to
pay £844,000.
UNCLOS, ARTICLE 76
Definition of the continental shelf
1. The continental shelf of a coastal State comprises the seabed and subsoil
of the submarine areas that extend beyond its territorial sea throughout the
natural prolongation of its land territory to the outer edge of the continental
margin, or to a distance of 200 nautical miles from the baselines from which
the breadth of the territorial sea is measured where the outer edge of the
continental margin does not extend up to that distance.
2. The continental shelf of a coastal State shall not extend beyond the limits
provided for in paragraphs 4 to 6.
3. The continental margin comprises the submerged prolongation of the land
mass of the coastal State, and consists of the seabed and subsoil of the shelf,
the slope and the rise. It does not include the deep ocean floor with its oceanic
ridges or the subsoil thereof.
4. (a) For the purposes of this Convention, the coastal State shall establish the
outer edge of the continental margin wherever the margin extends beyond
200 nautical miles from the baselines from which the breadth of the territorial
sea is measured, by either: (i) a line delineated in accordance with paragraph
7 by reference to the outermost fixed points at each of which the thickness of
sedimentary rocks is at least 1 per cent of the shortest distance from such
point to the foot of the continental slope; or (ii) a line delineated in
accordance with paragraph 7 by reference to fixed points not more than 60
nautical miles from the foot of the continental slope. (b) In the absence of
evidence to the contrary, the foot of the continental slope shall be
determined as the point of maximum change in the gradient at its base.
5. The fixed points comprising the line of the outer limits of the continental
shelf on the seabed, drawn in accordance with paragraph 4 (a)(i) and (ii),
either shall not exceed 350 nautical miles from the baselines from which the
breadth of the territorial sea is measured or shall not exceed 100 nautical
miles from the 2,500 metre isobath, which is a line connecting the depth of
2,500 metres.
14
6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the
outer limit of the continental shelf shall not exceed 350 nautical miles from
the baselines from which the breadth of the territorial sea is measured. This
paragraph does not apply to submarine elevations that are natural
components of the continental margin, such as its plateaux, rises, caps, banks
and spurs.
7. The coastal State shall delineate the outer limits of its continental shelf,
where that shelf extends beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured, by straight lines not
exceeding 60 nautical miles in length, connecting fixed points, defined by
coordinates of latitude and longitude.
8. Information on the limits of the continental shelf beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured
shall be submitted by the coastal State to the Commission on the Limits of the
Continental Shelf set up under Annex II on the basis of equitable geographical
representation. The Commission shall make recommendations to coastal
States on matters related to the establishment of the outer limits of their
continental shelf. The limits of the shelf established by a coastal State on the
basis of these recommendations shall be final and binding.
9. The coastal State shall deposit with the Secretary-General of the United
Nations charts and relevant information, including geodetic data,
permanently describing the outer limits of its continental shelf. The Secretary-
General shall give due publicity thereto.
10. The provisions of this article are without prejudice to the question of
delimitation of the continental shelf between States with opposite or adjacent
coasts.
International Court of Justice Contentious Case: The North Sea Continental
Shelf Cases (Germany/Denmark; Germany/Netherlands).
Year of Decision: 1969.
Note: This post discusses only aspects of the case related to treaty
and customary international law.
Overview: The jurisprudence of the North Sea Continental Shelf Cases sets
out the dual requirement for the formation of customary international law:
(1) State practice (the objective element) and (2) opinio juris (the subjective
element). In these cases, the Court explained the criteria necessary to
establish State practice – widespread and representative participation.
It highlighted that the practices of those States whose interests were specially
affected by the custom were especially relevant in the formation of customary
law. It also held that uniform and consistent practice was necessary to
demonstrate opinio juris – opinio juris is the belief that State practice
amounts to a legal obligation. The North Sea Continental Self Cases also
dispelled the myth that duration of the practice (i.e. the number of years) was
an essential factor in forming customary international law.
The case involved the delimitation of the continental shelf areas in the North
Sea between Germany and Denmark and Germany and Netherlands beyond
the partial boundaries previously agreed upon by these States. The parties
requested the Court to decide the principles and rules of international law
that are applicable to the above delimitation because the parties disagreed
on the applicable principles or rules of delimitation. Netherlands and
Denmark relied on the principle of equidistance (the method of determining
the boundaries in such a way that every point in the boundary is equidistant
from the nearest points of the baselines from which the breath of the
territorial sea of each State is measured). Germany sought to get a decision
in favour of the notion that the delimitation of the relevant continental shelf
was governed by the principle that each coastal state is entitled to a just and
15
equitable share (hereinafter called just and equitable principle/method).
Contrary to Denmark and Netherlands, Germany argued that the principle of
equidistance was neither a mandatory rule in delimitation of the continental
shelf nor a rule of customary international law that was binding on Germany.
The Court was not asked to delimit because the parties had already agreed to
delimit the continental shelf as between their countries, by agreement, after
the determination of the Court on the applicable principles.
Facts of the Case:
Netherlands and Denmark had drawn partial boundary lines based on the
equidistance principle (A-B and C-D). An agreement on further prolongation
of the boundary proved difficult because Denmark and Netherlands
wanted this prolongation to take place based on the equidistance principle (B-
E and D-E) where as Germany was of the view that, together, these two
boundaries would produce an inequitable result for her. Germany stated that
due to its concave coastline, such a line would result in her loosing out on her
share of the continental shelf based on proportionality to the length of its
North Sea coastline. The Court had to decide the principles and rules of
international law applicable to this delimitation. In doing so, the Court had to
decide if the principles espoused by the parties were binding on the parties
either through treaty law or customary international law.
Questions before the Court (as relevant to this post):
Is Germany under a legal obligation to accept the equidistance-special
circumstances principle, contained in Article 6 of the Geneva Convention on
the Continental Shelf of 1958, either as a customary international law rule or
on the basis of the Geneva Convention?
The Court’s Decision:
The use of the equidistance method had not crystallised into customary law
and the method was not obligatory for the delimitation of the areas in the
North Sea related to the present proceedings.
Relevant Findings of the Court:
1. Nature of the treaty obligation: Is the 1958 Geneva Convention, and in
particular Article 6, binding on Germany?
1. Article 6 of the Geneva Convention stated that unless the parties had
already agreed on a method for delimitation or unless special circumstances
exist, the equidistance method would apply. Germany had signed, but not
ratified, the Geneva Convention, while Netherlands and Denmark
were parties to the Convention. The latter two States argued that while
Germany is not a party to the Convention (not having ratified it), she was still
bound by Article 6 of the Convention because:
“…(1) by conduct, by public statements and proclamations, and in other
ways, the Republic has unilaterally assumed the obligations of the Convention;
or has manifested its acceptance of the conventional regime; or has
16
recognized it as being generally applicable to the delimitation of continental
shelf areas…
(2) the Federal Republic had held itself out as so assuming, accepting or
recognizing, in such a manner as to cause other States, and in particular
Denmark and the Netherlands, to rely on the attitude thus taken up” (the
latter is called the principle of estoppel).
5. The Court held that the existence of a situation of estoppel would have
allowed Article 6 to become binding on Germany – but held that Germany’s
action did not support an argument for estoppel. The Court also held that the
mere fact that Germany may not have specifically objected to the
equidistance principle as contained in Article 6, is not sufficient to state that
the principle is now binding upon it.

2. The Court rejected the first argument. It said that only a ‘very definite very
consistent course of conduct on the part of a State would allow the Court to 5. In conclusion, the Court held that Germany had not acted in any manner so
presume that the State had somehow become bound by a treaty (by a means as to incur obligations contained in Article 6 of the Geneva Convention. The
other than in the formal manner: i.e. ratification) when the State was ‘at all equidistance–special circumstances rule was not binding on Germany by way
times fully able and entitled to…’ accept the treaty commitments in a formal of treaty law.
manner. The Court held that Germany had not unilaterally assumed
2. Nature of the customary international law obligation: Is Germany bound by
obligations under the Convention. The court also took notice of the fact that
the provisions of Article 6 of the Geneva Convention in so far as they
even if Germany ratified the treaty, she had the option of entering into a
reflect customary international law?
reservation on Article 6, following which that particular article would no
longer be applicable to Germany (in other words, even if one were to assume
that Germany had intended to become a party to the Convention, it does not
presuppose that it would have also undertaken those obligations contained 6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted
in Article 6). rule of general international law on the subject of continental shelf
delimitation’ and that it existed independently of the Convention. Therefore,
3. Note: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which they argued, Germany is bound by the subject matter of Article 6 by way of
came into force in 1980, discusses in more detail treaty obligations of third customary international law.
States (those States who are not parties to the treaty). It clearly stipulates that
obligations arise for third States from a provision of a treaty only if (1) the
actual parties to the treaty intended the provision to create obligations for
7. To decide if the equidistance principle bound Germany by way of
third States; and (2) third State expressly accept those obligations in writing
customary international law, the Court examined (1) the status of the
(Article 35 of the VCLT). The VCLT was not in force when the Court deliberated
principle contained in Article 6 as it stood when the Convention was being
on this case. However, as seen above, the Court’s position is consistent the
drawn up; and (2) its status after the Convention came into force.
VCLT. (See the relevant provisions of the Vienna Convention on the Law of
Treaties).

17
(a) What was the customary law status of Article 6 at the time of drafting the
Convention?
8. The Court held that the principle of equidistance, as contained in Article 6
did not form a part of existing or emerging customary international law at the
time of drafting the Convention. The Court supported this finding based on (1)
the hesitation expressed by the drafters of the Convention, the International
Law Commission, on the inclusion of Article 6 into the Convention and (2) the
fact that reservations to Article 6 was permissible under the Convention.
The Court held:
“… Article 6 is one of those in respect of which, under the reservations article
of the Convention (Article 12) reservations may be made by any State on
signing, ratifying or acceding, – for speaking generally, it is a characteristic of
purely conventional rules and obligations that, in regard to them, some
faculty of making unilateral reservations may, within certain limits, be
admitted; whereas this cannot be so in the case of general or customary law
rules and obligations which, by their very nature, must have equal force for
all members of the international community, and cannot therefore be the
subject of any right of unilateral exclusion exercisable at will by any one of
them in its own favor…. The normal inference would therefore be that any
articles that do not figure among those excluded from the faculty of
reservation under Article 12, were not regarded as declaratory of previously
existing or emergent rules of law …” (see para 65 for a counter argument and
the Court’s careful differentiation)
(b) Did the provisions in Article 6 on the equidistance principle attain the
customary law status after the Convention came into force?
9. The Court then examined whether the rule contained in Article 6 had
become customary international law after the Convention entered into force
– either due the Convention itself (i.e., if enough States had ratified the
Convention in a manner so as to fulfil the criteria specified below), or because
of subsequent State practice (i.e. even if an adequate number of States had
not ratified the Convention, one could find sufficient State practice to meet
the criteria below). The Court held that Article 6 of the Convention had not
attained a customary law status. (Compare the 1958 Geneva Convention with
the four Geneva Conventions on 1949 relating to international humanitarian
law in terms of the latter’s authority as a pronouncement of customary
international law).
10. For a customary rule to emerge the Court held that it needed: (1) very
widespread and representative participation in the Convention, including
States whose interests were specially affected (in this case, they were coastal
States) (i.e. generality); and (2) virtually uniform practice (i.e. consistent and
uniform usage) undertaken in a manner that demonstrates (3) a general
recognition of the rule of law or legal obligation (i.e. opinio juries). In the
North Sea Continental Shelf cases the court held that the passage of a
considerable period of time was unnecessary (i.e. duration) for the formation
of a customary law.
Widespread and representative participation
11. The Court held that the first criteria was not met. The number of
ratifications and accessions to the Convention (39 States) were not
adequately representative or widespread.
Duration
18
12. The Court held that the duration taken for a customary law rule to emerge
is not as important as widespread and representative participation, uniform
usage, and the existence of an opinio juris. It held that:
“Although the passage of only a short period of time (in this case, 3 – 5 years)
is not necessarily, or of itself, a bar to the formation of a new rule of customary
international law on the basis of what was originally a purely conventional
rule, an indispensable requirement would be that within the period in
question, short though it might be, State practice, including that of States
whose interests are specially affected, should have been both extensive and
virtually uniform in the sense of the provision invoked and should moreover
have occurred in such a way as to show a general recognition that a rule of
law or legal obligation is involved.”
Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions
(Lotus case), in so far as those acts or omissions were done following a belief
that the said State is obligated by law to act or refrain from acting in a
particular way. (For more on opinio juris click here).
14. The Court examined 15 cases where States had delimited their boundaries
using the equidistance method, after the Convention came into force (paras.
75 -77). The Court concluded that even if there were some State practice in
favour of the equidistance principle, the Court could not deduct the necessary
opinio juris from this State practice. The North Sea Continental Shelf Cases
confirmed that both State practice (the objective element) and opinio juris
(the subjective element) are essential pre-requisites for the formation of a
customary law rule. This is consistent with Article 38 (1) (b) of the Statute of
the ICJ. The Court explained the concept of opinio juris and the difference
between customs (i.e. habits) and customary law:
“Not only must the acts concerned amount to a settled practice, but they
must also be such, or be carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule of law
requiring it. The need for such a belief, i.e, the existence of a subjective
element, is implicit in the very notion of the opinio juris sive necessitatis. The
States concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual character of
the acts is not in itself enough. There are many international acts, e.g., in the
field of ceremonial and protocol, which are performed almost invariably, but
which are motivated only by considerations of courtesy, convenience or
tradition, and not by any sense of legal duty.” (Para 77).
14. The Court concluded that the equidistance principle was not binding on
Germany by way of treaty or customary international law. In the case of the
latter, the principle had not attained a customary international law status at
the time of the entry into force of the Geneva Convention or thereafter. As
such, the Court held that the use of the equidistance method is not obligatory
for the delimitation of the areas concerned in the present proceedings.
Judgment of 20 February 1969
The Court delivered judgment, by 11 votes to 6, in the North Sea Continental
Shelf cases.
The dispute, which was submitted to the Court on 20 February 1967, related
to the delimitation of the continental shelf between the Federal Republic of
Germany and Denmark on the one hand, and between the Federal Republic
19
of Germany and the Netherlands on the other. The Parties asked the Court to
state the principles and rules of international law applicable, and undertook
thereafter to carry out the delimitations on that basis.
The Court rejected the contention of Denmark and the Netherlands to the
effect that the delimitations in question had to be carried out in accordance
with the principle of equidistance as defined in Article 6 of the 1958 Geneva
Convention on the Continental Shelf, holding:
- that the Federal Republic, which had not ratified the Convention, was not
legally bound by the provisions of Article 6;
- that the equidistance principle was not a necessary consequence of the
general concept of continental shelf rights, and was not a rule of customary
international law.
The Court also rejected the contentions of the Federal Republic in so far as
these sought acceptance of the principle of an apportionment of the
continental shelf into just and equitable shares. It held that each Party had an
original right to those areas of the continental shelf which constituted the
natural prolongation of its land territory into and under the sea. It was not a
question of apportioning or sharing out those areas, but of delimiting them.
The Court found that the boundary lines in question were to be drawn by
agreement between the Parties and in accordance with equitable principles,
and it indicated certain factors to be taken into consideration for that purpose.
It was now for the Parties to negotiate on the basis of such principles, as they
have agreed to do.
The proceedings, relating to the delimitation as between the Parties of the
areas of the North Sea continental shelf appertaining to each of them, were
instituted on 20 February 1967 by the communication to the Registry of the
Court of two Special Agreements, between Denmark and the Federal Republic
and the Federal Republic and the Netherlands respectively. By an Order of 26
April 1968, the Court joined the proceedings in the two cases.
The Court decided the two cases in a single Judgment, which it adopted by
eleven votes to six. Amongst the Members of the Court concurring in the
Judgment, Judge Sir Muhammad Zafrulla Khan appended a declaration; and
President Bustamante y Rivero and Judges Jessup, Padilla Nervo and Ammoun
appended separate opinions. In the case of the non-concurring Judges, a
declaration of his dissent was appended by Judge Bengzon; and Vice-
President Koretsky, together with Judges Tanaka, Morelli and Lachs, and
Judge ad hoc Sorensen, appended dissenting opinions.
In its Judgment, the Court examined in the context of the delimitations
concerned the problems relating to the legal régime of the continental shelf
raised by the contentions of the Parties.
The Facts and the Contentions of the Parties (paras. 1-17 of the Judgment)
The two Special Agreements had asked the Court to declare the principles and
rules of international law applicable to the delimitation as between the
Parties of the areas of the North Sea continental shelf appertaining to each of
them beyond the partial boundaries in the immediate vicinity of the coast
20
already determined between the Federal Republic and the Netherlands by an
agreement of 1 December 1964 and between the Federal Republic and
Denmark by an agreement of 9 June 1965.The Court was not asked actually
to delimit the further boundaries involved, the Parties undertaking in their
respective Special Agreements to effect such delimitation by agreement in
pursuance of the Court's decision.
The waters of the North Sea were shallow, the whole seabed, except for the
Norwegian Trough, consisting of continental shelf at a depth of less than 200
metres. Most of it had already been delimited between the coastal States
concerned. The Federal Republic and Denmark and the Netherlands,
respectively, had, however, been unable to agree on the prolongation of the
partial boundaries referred to above, mainly because Denmark and the
Netherlands had wished this prolongation to be effected on the basis of the
equidistance principle, whereas the Federal Republic had considered that it
would unduly curtail what the Federal Republic believed should be its proper
share of continental shelf area, on the basis of proportionality to the length
of its North Sea coastline. Neither of the boundaries in question would by
itself produce this effect, but only both of them together - an element
regarded by Denmark and the Netherlands as irrelevant to what they viewed
as being two separate delimitations, to be carried out without reference to
the other.
A boundary based on the equidistance principle, i.e., an "equidistance line",
left to each of the Parties concerned all those portions of the continental shelf
that were nearer to a point on its own coast than they were to any point on
the coast of the other Party. In the case of a concave or recessing coast such
as that of the Federal Republic on the North Sea, the effect of the equidistance
method was to pull the line of the boundary inwards, in the direction of the
concavity. Consequently, where two equidistance lines were drawn, they
would, if the curvature were pronounced, inevitably meet at a relatively short
distance from the coast, thus "cutting off" the coastal State from the area of
the continental shelf outside. In contrast, the effect of convex or outwardly
curving coasts, such as were, to a moderate extent, those of Denmark and the
Netherlands, was to cause the equidistance lines to leave the coasts on
divergent courses, thus having a widening tendency on the area of continental
shelf off that coast.
It had been contended on behalf of Denmark and the Netherlands that the
whole matter was governed by a mandatory rule of law which, reflecting the
language of Article 6 of the Geneva Convention on the Continental Shelf of 29
April 1958, was designated by them as the "equidistance-special
circumstances" rule. That rule was to the effect that in the absence of
agreement by the parties to employ another method, all continental shelf
boundaries had to be drawn by means of an equidistance line unless "special
circumstances" were recognized to exist. According to Denmark and the
Netherlands, the configuration of the German North Sea coast did not of itself
constitute, for either of the two boundary lines concerned, a special
circumstance.
The Federal Republic, for its part, had contended that the correct rule, at any
rate in such circumstances as those of the North Sea, was one according to
which each of the States concerned should have a "just and equitable share"
of the available continental shelf, in proportion to the length of its sea-
frontage. It had also contended that in a sea shaped as is the North Sea, each
of the States concerned was entitled to a continental shelf area extending up
to the central point of that sea, or at least extending to its median line.
Alternatively, the Federal Republic had claimed that if the equidistance
method were held to bc applicable, the configuration of the German North
21
Sea coast constituted a special circumstance such as to justify a departure
from that method of delimitation in this particular case.
The Apportionment Theory Rejected (paras. 18-20 of the Judgment)
The Court felt unable to accept, in the particular form it had taken, the first
contention put forward on behalf of the Federal Republic. Its task was to
delimit, not to apportion the areas concerned. The process of delimitation
involved establishing the boundaries of an area already, in principle,
appertaining to the coastal State and not the determination de novo of such
an area. The doctrine of the just and equitable share was wholly at variance
with the most fundamental of all the rules of law relating to the continental
shelf, namely, that the rights of the coastal State in respect of the area of
continental shelf constituting a natural prolongation of its land territory under
the sea existed ipso facto and ab initio, by virtue of its sovereignty over the
land. That right was inherent. In order to exercise it, no special legal acts had
to be performed. It followed that the notion of apportioning an as yet
undelimited area considered as a whole (which underlay the doctrine of the
just and equitable share) was inconsistent with the basic concept of
continental shelf entitlement.
Non-Applicability of Article 6 of the 1958 Continental Shelf Convention (paras.
21-36 of the Judgment)
The Court then turned to the question whether in delimiting those areas the
Federal Republic was under a legal obligation to accept the application of the
equidistance principle. While it was probably true that no other method of
delimitation had the same combination of practical convenience and certainty
of application, those factors did not suffice of themselves to convert what was
a method into a rule of law. Such a method would have to draw its legal force
from other factors than the existence of those advantages.
The first question to be considered was whether the 1958 Geneva Convention
on the Continental Shelf was binding for all the Parties in the case. Under the
formal provisions of the Convention, it was in force for any individual State
that had signed it within the time-limit provided, only if that State had also
subsequently ratified it. Denmark and the Netherlands had both signed and
ratified the Convention and were parties to it, but the Federal Republic,
although one of the signatories of the Convention, had never ratified it, and
was consequently not a party. It was admitted on behalf of Denmark and the
Netherlands that in the circumstances the Convention could not, as such, be
binding on the Federal Republic. But it was contended that the régime of
Article 6 of the Convention had become binding on the Federal Republic,
because, by conduct, by public statements and proclamations, and in other
ways, the Republic had assumed the obligations of the Convention.
It was clear that only a very definite, very consistent course of conduct on the
part of a State in the situation of the Federal Republic could justify upholding
those contentions. When a number of States drew up a convention
specifically providing for a particular method by which the intention to
become bound by the régime of the convention was to be manifested, it was
not lightly to be presumed that a State which had not carried out those
formalities had nevertheless somehow become bound in another way.
Furthermore, had the Federal Republic ratified the Geneva Convention, it
could have entered a reservation to Article 6, by reason of the faculty to do
so conferred by Article 12 of the Convention.
Only the existence of a situation of estoppel could lend substance to the
contention of Denmark and the Netherlands - i.e., if the Federal Republic
were now precluded from denying the applicability of the conventional
22
régime, by reason of past conduct, declarations, etc., which not only clearly
and consistently evinced acceptance of that régime, but also had caused
Denmark or the Netherlands, in reliance on such conduct, detrimentally to
change position or suffer some prejudice. Of this there was no evidence.
Accordingly, Article 6 of the Geneva Convention was not, as such, applicable
to the delimitations involved in the present proceedings.
The Equidistance Principle Not Inherent in the Basic Doctrine of the
Continental Shelf (paras. 37-59 of the Judgment)
It had been maintained by Denmark and the Netherlands that the Federal
Republic was in any event, and quite apart from the Geneva Convention,
bound to accept delimitation on an equidistance basis, since the use of that
method was a rule of general or customary international law, automatically
binding on the Federal Republic.
One argument advanced by them in support of this contention, which might
be termed the a priori argument, started from the position that the rights of
the coastal State to its continental shelf areas were based on its sovereignty
over the land domain, of which the shelf area was the natural prolongation
under the sea. From this notion of appurtenance was derived the view, which
the Court accepted, that the coastal State's rights existed ipso facto and ab
initio. Denmark and the Netherlands claimed that the test of appurtenance
must be "proximity": all those parts of the shelf being considered as
appurtenant to a particular coastal State which were closer to it than they
were to any point on the coast of another State. Hence, delimitation had to
be effected by a method which would leave to each one of the States
concerned all those areas that were nearest to its own coast. As only an
equidistance line would do this, only such a line could be valid, it was
contended.
This view had much force; the greater part of a State's continental shelf areas
would normally in fact be nearer to its coasts than to any other. But the real
issue was whether it followed that every part of the area concerned must be
placed in that way. The Court did not consider this to follow from the notion
of proximity, which was a somewhat fluid one. More fundamental was the
concept of the continental shelf as being the natural prolongation of the land
domain. Even if proximity might afford one of the tests to be applied, and an
important one in the right conditions, it might not necessarily be the only, nor
in all circumstances the most appropriate, one. Submarine areas did not
appertain to the coastal State merely because they were near it, nor did their
appurtenance depend on any certainty of delimitation as to their boundaries.
What conferred the ipso jure title was the fact that the submarine areas
concerned might be deemed to be actually part of its territory in the sense
that they were a prolongation of its land territory under the sea. Equidistance
clearly could not be identified with the notion of natural prolongation, since
the use of the equidistance method would frequently cause areas which were
the natural prolongation of the territory of one State to be attributed to
another. Hence, the notion of equidistance was not an inescapable
a priori accompaniment of basic continental shelf doctrine.
A review of the genesis of the equidistance method of delimitation confirmed
the foregoing conclusion. The "Truman Proclamation" issued by the
Government of the United States on 28 September 1945 could be regarded
as a starting point of the positive law on the subject, and the chief doctrine it
enunciated, that the coastal State had an original, natural and exclusive right
to the continental shelf off its shores, had come to prevail over all others and
was now reflected in the1958 Geneva Convention. With regard to the
delimitation of boundaries between the continental shelves of adjacent States,
the Truman Proclamation had stated that such boundaries "shall be
23
determined by the United States and the State concerned in accordance with
equitable principles". These two concepts, of delimitation by mutual
agreement and delimitation in accordance with equitable principles, had
underlain all the subsequent history of the subject. It had been largely on the
recommendation of a committee of experts that the principle of equidistance
for the delimitation of continental shelf boundaries had been accepted by the
United Nations International Law Commission in the text it had laid before the
Geneva Conference of 1958 on the Law of the Sea which had adopted the
Continental Shelf Convention. It could legitimately be assumed that the
experts had been actuated by considerations not of legal theory but of
practical convenience and cartography. Moreover, the article adopted by the
Commission had given priority to delimitation by agreement and had
contained an exception in favour of "special circumstances".
The Court consequently considered that Denmark and the Netherlands
inverted the true order of things and that, far from an equidistance rule having
been generated by an antecedent principle of proximity inherent in the whole
concept of continental shelf appurtenance, the latter was rather a
rationalization of the former.
The Equidistance Principle Not a Rule of Customary International
Law (paras. 60-82 of the Judgment)
The question remained whether through positive law processes the
equidistance principle must now be regarded as a rule of customary
international law.
Rejecting the contentions of Denmark and the Netherlands, the Court
considered that the principle of equidistance, as it figured in Article 6 of the
Geneva Convention, had not been proposed by the International Law
Commission as an emerging rule of customary international law. This Article
could not be said to have reflected or crystallized such a rule. This was
confirmed by the fact that any State might make reservations in respect of
Article 6, unlike Articles 1, 2 and 3, on signing, ratifying or acceding to the
Convention. While certain other provisions of the Convention, although
relating to matters that lay within the field of received customary law, were
also not excluded from the faculty of reservation, they all related to rules of
general maritime law very considerably antedating the Convention which
were only incidental to continental shelf rights as such, and had been
mentioned in the Convention simply to ensure that they were not prejudiced
by the exercise of continental shelf rights. Article 6, however, related directly
to continental shelf rights as such, and since it was not excluded from the
faculty of reservation, it was a legitimate inference that it was not considered
to reflect emergent customary law.
It had been argued on behalf of Denmark and the Netherlands that even if at
the date of the Geneva Convention no rule of customary international law
existed in favour of the equidistance principle, such a rule had nevertheless
come into being since the Convention, partly because of its own impact, and
partly on the basis of subsequent State practice. In order for this process to
occur it was necessary that Article 6 of the Convention should, at all events
potentially, be of a norm-creating character. Article 6 was so framed, however,
as to put the obligation to make use of the equidistance method after a
primary obligation to effect delimitation by agreement. Furthermore, the part
played by the notion of special circumstances in relation to the principle of
equidistance, the controversies as to the exact meaning and scope of that
notion, and the faculty of making reservations to Article 6 must all raise
doubts as to the potentially norm-creating character of that Article.
Furthermore, while a very widespread and representative participation in a
convention might show that a conventional rule had become a general rule of
24
international law, in the present case the number of ratifications and
accessions so far was hardly sufficient. As regards the time element, although
the passage of only a short period of time was not necessarily a bar to the
formation of a new rule of customary international law on the basis of what
was originally a purely conventional rule, it was indispensable that State
practice during that period, including that of States whose interests were
specially affected, should have been both extensive and virtually uniform in
the sense of the provision invoked and should have occurred in such a way as
to show a general recognition that a rule of law was involved. Some 15 cases
had been cited in which the States concerned had agreed to draw or had
drawn the boundaries concerned according to the principle of equidistance,
but there was no evidence that they had so acted because they had felt legally
compelled to draw them in that way by reason of a rule of customary law. The
cases cited were inconclusive and insufficient evidence of a settled practice.
The Court consequently concluded that the Geneva Convention was not in its
origins or inception declaratory of a mandatory rule of customary
international law enjoining the use of the equidistance principle, its
subsequent effect had not been constitutive of such a rule, and State practice
up to date had equally been insufficient for the purpose.
The Principles and Rules of Law Applicable (paras. 83-101 of the Judgment)
The legal situation was that the Parties were under no obligation to apply the
equidistance principle either under the 1958 Convention or as a rule of
general or customary international law. It consequently became unnecessary
for the Court to consider whether or not the configuration of the German
North Sea coast constituted a "special circumstance". It remained for the
Court, however, to indicate to the Parties the principles and rules of law in the
light of which delimitation was to be effected.
The basic principles in the matter of delimitation, deriving from the Truman
Proclamation, were that it must be the object of agreement between the
States concerned and that such agreement must be arrived at in accordance
with equitable principles. The Parties were under an obligation to enter into
negotiations with a view to arriving at an agreement and not merely to go
through a formal process of negotiation as a sort of prior condition for the
automatic application of a certain method of delimitation in the absence of
agreement; they were so to conduct themselves that the negotiations were
meaningful, which would not be the case when one of them insisted upon its
own position without contemplating any modification of it. This obligation
was merely a special application of a principle underlying all international
relations, which was moreover recognized in Article 33 of the Charter of the
United Nations as one of the methods for the peaceful settlement of
international disputes.
The Parties were under an obligation to act in such a way that in the particular
case, and taking all the circumstances into account, equitable principles were
applied. There was no question of the Court's decision being ex aequo et bono.
It was precisely a rule of law that called for the application of equitable
principles, and in such cases as the present ones the equidistance method
could unquestionably lead to inequity. Other methods existed and might be
employed, alone or in combination, according to the areas involved. Although
the Parties intended themselves to apply the principles and rules laid down
by the Court some indication was called for of the possible ways in which they
might apply them.
For all the foregoing reasons, the Court found in each case that the use of the
equidistance method of delimitation was not obligatory as between the
Parties; that no other single method of delimitation was in all circumstances
obligatory; that delimitation was to be effected by agreement in accordance
25
with equitable principles and taking account of all relevant circumstances, in
such a way as to leave as much as possible to each Party all those parts of the
continental shelf that constituted a natural prolongation of its land territory,
without encroachment on the natural prolongation of the land territory of the
other; and that, if such delimitation produced overlapping areas, they were to
be divided between the Parties in agreed proportions, or, failing agreement,
equally, unless they decided on a régime of joint jurisdiction, user, or
exploitation.
In the course of negotiations, the factors to be taken into account were to
include: the general configuration of the coasts of the Parties, as well as the
presence of any special or unusual features; so far as known or readily
ascertainable, the physical and geological structure and natural resources of
the continental shelf areas involved, the element of a reasonable degree of
proportionality between the extent of the continental shelf areas
appertaining to each State and the length of its coast measured in the general
direction of the coastline, taking into account the effects, actual or
prospective, of any other continental shelf delimitations in the same region.
PART V EXCLUSIVE ECONOMIC ZONE
Article 55 Specific legal regime of the exclusive economic zone The exclusive
economic zone is an area beyond and adjacent to the territorial sea, subject
to the specific legal regime established in this Part, under which the rights and
jurisdiction of the coastal State and the rights and freedoms of other States
are governed by the relevant provisions of this Convention.
Article 56 Rights, jurisdiction and duties of the coastal State in the exclusive
economic zone 1. In the exclusive economic zone, the coastal State has: (a)
sovereign rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living, of the waters
superjacent to the seabed and of the seabed and its subsoil, and with regard
to other activities for the economic exploitation and exploration of the zone,
such as the production of energy from the water, currents and winds; (b)
jurisdiction as provided for in the relevant provisions of this Convention with
regard to: (i) the establishment and use of artificial islands, installations and
structures; (ii) marine scientific research; (iii) the protection and preservation
of the marine environment; (c) other rights and duties provided for in this
Convention. 2. In exercising its rights and performing its duties under this
Convention in the exclusive economic zone, the coastal State shall have due
regard to the rights and duties of other States and shall act in a manner
compatible with the provisions of this Convention. 3. The rights set out in this
article with respect to the seabed and subsoil shall be exercised in accordance
with Part VI.
Article 57 Breadth of the exclusive economic zone The exclusive economic
zone shall not extend beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured.
PART IX ENCLOSED OR SEMI-ENCLOSED SEAS
Article 122 Definition For the purposes of this Convention, "enclosed or semi-
enclosed sea" means a gulf, basin or sea surrounded by two or more States
and connected to another sea or the ocean by a narrow outlet or consisting
entirely or primarily of the territorial seas and exclusive economic zones of
two or more coastal States.
26
Article 123 Cooperation of States bordering enclosed or semi-enclosed seas
States bordering an enclosed or semi-enclosed sea should cooperate with
each other in the exercise of their rights and in the performance of their duties
under this Convention. To this end they shall endeavour, directly or through
an appropriate regional organization: (a) to coordinate the management,
conservation, exploration and exploitation of the living resources of the sea;
(b) to coordinate the implementation of their rights and duties with respect
to the protection and preservation of the marine environment; (c) to
coordinate their scientific research policies and undertake where appropriate
joint programmes of scientific research in the area; (d) to invite, as
appropriate, other interested States or international organizations to
cooperate with them in furtherance of the provisions of this article.
Article 211 Pollution from vessels
1. States, acting through the competent international organization or general
diplomatic conference, shall establish international rules and standards to
prevent, reduce and control pollution of the marine environment from vessels
and promote the adoption, in the same manner, wherever appropriate, of
routeing systems designed to minimize the threat of accidents which might
cause pollution of the marine environment, including the coastline, and
pollution damage to the related interests of coastal States. Such rules and
standards shall, in the same manner, be re-examined from time to time as
necessary.
2. States shall adopt laws and regulations for the prevention, reduction and
control of pollution of the marine environment from vessels flying their flag
or of their registry. Such laws and regulations shall at least have the same
effect as that of generally accepted international rules and standards
established through the competent international organization or general
diplomatic conference.
3. States which establish particular requirements for the prevention,
reduction and control of pollution of the marine environment as a condition
for the entry of foreign vessels into their ports or internal waters or for a call
at their off-shore terminals shall give due publicity to such requirements and
shall communicate them to the competent international organization.
Whenever such requirements are established in identical form by two or more
coastal States in an endeavour to harmonize policy, the communication shall
indicate which States are participating in such cooperative arrangements.
Every State shall require the master of a vessel flying its flag or of its registry,
when navigating within the territorial sea of a State participating in such
cooperative arrangements, to furnish, upon the request of that State,
information as to whether it is proceeding to a State of the same region
participating in such cooperative arrangements and, if so, to indicate whether
it complies with the port entry requirements of that State. This article is
without prejudice to the continued exercise by a vessel of its right of innocent
passage or to the application of article 25, paragraph 2.
4. Coastal States may, in the exercise of their sovereignty within their
territorial sea, adopt laws and regulations for the prevention, reduction and
control of marine pollution from foreign vessels, including vessels exercising
the right of innocent passage. Such laws and regulations shall, in accordance
with Part II, section 3, not hamper innocent passage of foreign vessels.
5. Coastal States, for the purpose of enforcement as provided for in section 6,
may in respect of their exclusive economic zones adopt laws and regulations
for the prevention, reduction and control of pollution from vessels
27
conforming to and giving effect to generally accepted international rules and
standards established through the competent international organization or
general diplomatic conference.
6. (a) Where the international rules and standards referred to in paragraph 1
are inadequate to meet special circumstances and coastal States have
reasonable grounds for believing that a particular, clearly defined area of their
respective exclusive economic zones is an area where the adoption of special
mandatory measures for the prevention of pollution from vessels is required
for recognized technical reasons in relation to its oceanographical and
ecological conditions, as well as itsutilization or the protection of its resources
and the particular character of its traffic, the coastal States, after appropriate
consultations through the competent international organization with any
other States concerned, may, for that area, direct a communication to that
organization, submitting scientific and technical evidence in support and
information on necessary reception facilities. Within 12 months after
receiving such a communication, the organization shall determine whether
the conditions in that area correspond to the requirements set out above. If
the organization so determines, the coastal States may, for that area, adopt
laws and regulations for the prevention, reduction and control of pollution
from vessels implementing such international rules and standards or
navigational practices as are made applicable, through the organization, for
special areas. These laws and regulations shall not become applicable to
foreign vessels until 15 months after the submission of the communication to
the organization.
(b) The coastal States shall publish the limits of any such particular, clearly
defined area.
(c) If the coastal States intend to adopt additional laws and regulations for the
same area for the prevention, reduction and control of pollution from vessels,
they shall, when submitting the aforesaid communication, at the same time
notify the organization thereof. Such additional laws and regulations may
relate to discharges or navigational practices but shall not require foreign
vessels to observe design, construction, manning or equipment standards
other than generally accepted international rules and standards; they shall
become applicable to foreign vessels 15 months after the submission of the
communication to the organization, provided that the organization agrees
within 12 months after the submission of the communication.
7. The international rules and standards referred to in this article should
include inter alia those relating to prompt notification to coastal States,
whose coastline or related interests may be affected by incidents, including
maritime casualties, which involve discharges or probability of discharges.
Fisheries Jurisdiction (United Kingdom v. Iceland)
On 14 April and 5 June 1972, respectively, the United Kingdom and the Federal
Republic of Germany instituted proceedings against Iceland concerning a
dispute over the proposed extension by Iceland, as from 1 September 1972,
of the limits of its exclusive fisheries jurisdiction from a distance of 12 to a
distance of 50 nautical miles. Iceland declared that the Court lacked
jurisdiction, and declined to be represented in the proceedings or file
pleadings. At the request of the United Kingdom and the Federal Republic, the
Court in 1972 indicated, and in 1973 confirmed, provisional measures to the
effect that Iceland should refrain from implementing, with respect to their
vessels, the new regulations regarding the extension of the zone of its
exclusive fishing rights, and that the annual catch of those vessels in the
disputed area should be limited to certain maxima. In Judgments delivered on
28
2 February 1973, the Court found that it possessed jurisdiction ; and in
Judgments on the merits of 25 July 1974, it found that the Icelandic
regulations. constituting a unilateral extension of exclusive fishing rights to a
limit of 50 nautical miles were not opposable to either the United Kingdom or
the Federal Republic, that Iceland was not entitled unilaterally to exclude their
fishing vessels from the disputed area, and that the Parties were under mutual
obligations to undertake negotiations in good faith for the equitable solution
of their differences.
Brief Fact Summary. Because some circumstances changed, Iceland (D)
claimed that a fishing treaty it had with the United Kingdom (P) was no
longer applicable.
Synopsis of Rule of Law. In order that a change of circumstances may give
rise to the premise calling for the termination of a treaty, it is necessary that
it has resulted in a radical transformation of the extent of the obligations still
to be performed.
Facts. Iceland’s (D) claim to a 12-mile fisheries limit was recognized by the
United Kingdom (P) in 1961 in return for Iceland’s (D) agreement that any
dispute concerning Icelandic fisheries jurisdiction beyond the 12-mile limit be
referred to the International Court of Justice. An application was filed before
the I.C.J. when Iceland (D) proposed to extend its exclusive fisheries
jurisdiction from 12 to 50 miles around its shores in 1972. By postulating that
changes in circumstances since the 12-mile limit was now generally
recognized was the ground upon which Iceland (D) stood to argue that the
agreement was no longer valid. Iceland (D) also asserted that there would be
a failure of consideration for the 1961 agreement.
Issue. In order that a change of circumstances may give rise to a ground for
invoking the termination of a treaty, is it necessary that it has resulted in a
radical transformation of the extent of the obligation still to be performed?
Held. Yes. In order that a change of circumstances may give rise to the
premise calling for the termination of a treaty, it is necessary that it has
resulted in a radical transformation of the extent of the obligations still to be
performed.
The change of circumstances alleged by Iceland (D) cannot be said to have
transformed radically the extent of the jurisdictional obligation that was
imposed in the 1961 Exchange of Notes.
Discussion. Recourse to the I.C.J. in the event of a dispute was the original
agreement between the parties. The economy of Iceland (D) is dependent
on fishing. The merit of Iceland (D) argument was not reached by the Court in
this case, however, but rather dealt with the jurisdictional issues.
PART VII HIGH SEAS SECTION 1. GENERAL PROVISIONS
Article 86 Application of the provisions of this Part The provisions of this Part
apply to all parts of the sea that are not included in the exclusive economic
zone, in the territorial sea or in the internal waters of a State, or in the
archipelagic waters of an archipelagic State. This article does not entail any
abridgement of the freedoms enjoyed by all States in the exclusive economic
zone in accordance with article 58.
Article 87 Freedom of the high seas
1. The high seas are open to all States, whether coastal or land-locked.
Freedom of the high seas is exercised under the conditions laid down by this
Convention and by other rules of international law. It comprises, inter alia,
29
both for coastal and land-locked States: (a) freedom of navigation; (b)
freedom of overflight; (c) freedom to lay submarine cables and pipelines,
subject to Part VI; (d) freedom to construct artificial islands and other
installations permitted under international law, subject to Part VI; (e) freedom
of fishing, subject to the conditions laid down in section 2; (f) freedom of
scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the
interests of other States in their exercise of the freedom of the high seas, and
also with due regard for the rights under this Convention with respect to
activities in the Area.
Article 97 Penal jurisdiction in matters of collision or any other incident of
navigation
1. In the event of a collision or any other incident of navigation concerning a
ship on the high seas, involving the penal or disciplinary responsibility of the
master or of any other person in the service of the ship,no penal or disciplinary
proceedings may be instituted against such person except before the judicial
or administrative authorities either of the flag State or of the State of which
such person is a national.
2. In disciplinary matters, the State which has issued a master's certificate or
a certificate of competence or licence shall alone be competent, after due
legal process, to pronounce the withdrawal of such certificates, even if the
holder is not a national of the State which issued them.
3. No arrest or detention of the ship, even as a measure of investigation, shall
be ordered by any authorities other than those of the flag State.
WEST PHILIPPINE SEA CASE
Introduction
Since the 1970s, the South China Sea has been a nest of competing
sovereignty claims over the island features and ocean spaces by a number of
adjacent countries. Included in this is China’s nine-dash line, first officially
communicated in notes verbale to the United Nations in 2009.[1] In addition,
China has recently engaged in, amongst other things, the physical
enhancement of many of the small features of the Spratly Islands and
enforcement of a moratorium on fishing in the South China Sea.
The decision of the South China Sea Arbitration[2] by a tribunal established
pursuant to the UN Convention on the Law of the Sea[3] (UNCLOS) has landed
in this cauldron. UNCLOS provides for compulsory adjudication of disputes
concerning the interpretation and application of the Convention, subject to a
number of exceptions. In 2013, the Philippines commenced the case against
China.[4] Although a long-standing party to the Convention, China declined to
participate in the establishment of the Tribunal or to appear before it.[5] In
deciding not to appear, China has followed a small number of states that have
similarly declined to participate in cases before the International Court of
Justice (ICJ), as well as the more recent nonparticipation by the Russian
Federation in UNCLOS procedures in the Arctic Sunrise Case brought by the
Netherlands.[6]
There were fifteen Philippine Submissions dealt with by the Tribunal.[7] The
Submissions that have received the most post-decision attention and that are
the focus of this Insight include the legal validity of China’s claim of rights
within the nine-dash line in light of UNCLOS and what—if any—maritime
zones appertain to the insular features in the South China Sea.
30
China viewed the principal subject matters in dispute as political and beyond Rocks/Low-Tide Elevations or Islands
the jurisdiction and competence of the Tribunal. The Philippines characterized
the subject matters in dispute as involving the interpretation and application
of UNCLOS and thus within the jurisdiction of the Tribunal. As a result of this Jurisdiction
difference of views, it was necessary for the Tribunal to assess whether it had
jurisdiction to deal with the merits of the Philippine submissions. The Philippines argued that the Tribunal had jurisdiction to determine
whether certain insular features in the South China Sea were either rocks
(entitled to a 12 nm territorial sea), low-tide elevations no territorial sea), or
islands (entitled to a 200 nm zone), even though the features in question were
The Tribunal held that it had jurisdiction to consider the merits of almost all
subject to territorial sovereignty disputes, as this involved interpretation of
the Submissions made by the Philippines and, overall, accepted the claims and
the relevant provisions of UNCLOS.[12]
arguments on the merits asserted by the Philippines.[8]

Legal Status of the Award
UNCLOS, the international legal basis for the arbitration, is very clear in Annex
VII, Arbitration, Article 11 that “[t]he award of the arbitral tribunal shall
be final and binding and without appeal . . . . It shall be complied with by the
parties to the dispute.”[9]
China directly countered this, arguing that the heart of the dispute concerned
territorial sovereignty, not the “interpretation or application” of
UNCLOS. [13] In the alternative, China argued that the rock-or-island
determination concerned maritime boundary delimitation, which, as result of
China’s Declaration of August 26, 2006,[14] was exempted from compulsory
adjudicative jurisdiction under UNCLOS.[15]

Hence, there is no argument to be made that nonappearance by a state

changes or effects the “final and binding” nature of the Award. Moreover,
In reaching the conclusion that it had jurisdiction to determine the status of
while China has asserted both after the release of the 2015 Award on
the contested features, the Tribunal stated that it “does not accept . . . that it
Jurisdiction and the 2016 Award that the both are “null and void” and have
follows from the existence of a dispute over sovereignty that sovereignty is
“no binding force,”[10] there is no legal basis in UNCLOS for such assertions.
also the appropriate characterization” of the Philippine claims that the
features were rocks or low-tide elevations.[16] In making this determination,
it noted that none of the Philippine Submissions required a determination of
China has further stated that it “neither accepts nor recognizes” the
sovereignty. [17]
Award.[11] There is a modest practice of states opting not to accept or
recognize, and thus not comply with, decisions of the ICJ, the International
Tribunal for the Law of the Sea (ITLOS), and a tribunal established pursuant to
The Tribunal did not accept China’s assessment of the dispute as involving
UNCLOS.
maritime boundary delimitation, stating that it was “not convinced,” and that

31
“[i]t does not follow . . . that a dispute over an issue that may be considered
in the course of a maritime boundary delimitation constitutes a dispute over
maritime boundary delimitation itself.”[18] More specifically, the Tribunal
commented that entitlement to maritime zones “is distinct” from delimitation
of those zones in an area where entitlements overlap.”[19]
Merits
In the period immediately prior to the issuing of the Award, China had
significantly modified and enhanced numerous features in the Spratly Islands.
The Tribunal clearly stated that UNCLOS “requires that the status of a feature
be ascertained on the basis of its earlier, natural condition, prior to the onset
of significant human habitation.”[20]
The Tribunal accepted that in order to examine the Submissions regarding the
location of the Philippine exclusive economic zone (EEZ), it was necessary to
determine the legal status of all of the relevant high-tide features that are part
of the Spratly Islands.[21] The Tribunal focused upon the six largest features,
observing that if these were characterized as rocks under UNCLOS, then the
same conclusion would apply to the other high-tide features in the Spratly
Islands.[22]
Unlike previous international tribunals that had accepted certain features as
islands or rocks without explicitly applying UNCLOS Article 121(3),[23] the
Tribunal analyzed its application in detail.[24] The Tribunal’s interpretation
placed great emphasis on the physical conditions of the feature in question
such as “the natural capacity, without external additions . . . to sustain human
habitation or an economic life of its own.”[25] The Tribunal also delved into
the definition of the terms involved in this standard. Additionally, the Tribunal
directed that where the physical conditions did not determine clearly whether
a feature is a rock or island then the historical use will be relevant. In this
regard, the Tribunal concluded “that a feature that has never historically
sustained a human community lacks the capacity to sustain human
habitation.”[26]
Applying their understanding of Article 121(3) to the relevant high-tide
features in the Spratly Islands, the Tribunal noted that although the features
were “capable of enabling the survival of small groups of people”[27] and that
the features could not be “dismissed as uninhabitable on the basis of their
physical characteristics,” nevertheless, there was “no indication that anything
fairly resembling a stable human community has ever formed on the Spratly
Islands” with the result that all of the high-tide features were classed as
rocks.[28]
The Nine-Dash Line and Historic Rights[29]
The principal jurisdictional question concerning the nine-dash line and
possible Chinese historic rights therein was whether such a claim was
captured by the wording of Article 298(1)(a)(i) of UNCLOS, covering
“disputes . . .involving historic bays or title”[30] and thus that the Tribunal was
without jurisdiction due to China’s 2006 Declaration.[31] On the merits, at
issue was the relationship between the historic rights asserted by China within
the nine-dash line and the rights of the Philippines based on UNCLOS in areas
beyond China’s EEZ or continental shelf and within the EEZ or continental shelf
of the Philippines.
To deal with both questions, the Tribunal assessed “the nature of any historic
rights claimed by China” within the nine-dash line, which was “complicated by
some ambiguity in China’s position.”[32] The Tribunal undertook an
examination of China’s statements and actions[33] concluding “that China
claims rights to living and non-living resources within the ‘nine-dash line’ but
32
(apart from the territorial sea generated by any islands) does not consider that China Sea were all categorized as either low-tide elevation or rocks, the result
those waters form part of its territorial sea or internal waters.”[34] would be that the 200 nm zones in the region would be measured from the
mainland coasts. This would cause almost all of the maritime claim disputes
The Tribunal indicated that the term historic title in Article 298 centered on
to become bilateral, rather than multilateral, which could in turn create a
the historic title wording in Article 12(1) of the 1958 Convention on the
possibility for resolution and de-escalation. Part of this as well is that the nine-
Territorial Sea and Contiguous Zone.[35] The Tribunal took the view that the
dash line be without legal effect. As of 2009, the South China Sea ASEAN states
1958 “historic title” wording was tied directly to the historic terminology as
advocated such a position.[41] In light of the Tribunal’s ruling, this could be a
used in the 1951 Anglo-Norwegian Fisheries case, where the area in question
potential path forward.
was “an area of sea claimed exceptionally as internal waters.”[36] Based upon
this, the Tribunal took the view that the meaning of historic title in Article 298
was “claims to sovereignty over maritime areas derived from historical
Article 121(3) was a provision of deliberately negotiated vagueness, thus
circumstances.”[37] Having determined that China was claiming historic
Tribunal’s rock/island criteria can be viewed perhaps as “missionary” work.
rights and not historic title, the Tribunal concluded that China’s 2006
The rock or island criteria in the Award may result in states able to more
Declaration was not available as regards China’s historic claims.[38]
readily reach maritime boundary agreements and adjudicative bodies more
readily make such determinations. It will be future tribunals, courts, and state
practice that will determine whether this “missionary” aspect of the Award
Concerning the merits, the relationship between the historic rights asserted
finds favour.
by China within the nine-dash line and the rights of the Philippines based on
UNCLOS, the Tribunal sided with the Philippines concluding that UNCLOS
“leaves no space for an assertion of historic rights,” and that “China’s claim to
Of final note, concerns about whether the Award and China’s rejection of it
historic rights to the living and non-living resources within the ‘nine-dash line’
have undermined confidence in UNCLOS dispute resolution procedures are
is incompatible with the Convention.”[39]
perhaps misplaced. Subsequent to the commencement of the South China
Concluding Comments Sea Arbitration, three parties have brought cases before ITLOS and two have
commenced UNCLOS, Annex VII arbitration cases.
In the immediate aftermath, the reactions indicate little hope that the South
China Sea Award will result in a period of peaceful management of the tangled The wait is over: a judgment has been issued in the Philippines v. China South
disputes within the South China Sea. China has loudly condemned the Award China Sea arbitration. A five-judge tribunal constituted under the Permanent
and a joint statement from ASEAN and China did not even mention it. Court of Arbitration (PCA) in The Hague has released its much-anticipated
Somewhat more encouraging are the preparatory talks that have taken place Award concerning the Philippines’ challenge to a number of China’s maritime
between the Philippines and China.[40] claims and activities in the region. The Philippines initiated the arbitration in
January 2013 under the dispute settlement procedures of Annex VII to the
It has long been recognized by those who have a significant history with the
1982 United Nations Convention on the Law of the Sea (UNCLOS).
South China Sea disputes that if the numerous maritime features in the South

33

The unanimous, 501-page Award and the eleven-page press release from the
PCA can be found here.
Bottom line: A nearly across-the-board win for the Philippines, and a searing
verdict on the lawfulness of China’s artificial island construction and other
actions in the South China Sea.
Summary of Key Claims and Holdings
The Philippines’ claims fell into four general categories. The ruling of the
Tribunal on each category of claims is summarized below:
1. The broadest claim was a challenge to China’s “nine-dash line” covering
most of the South China Sea. China has never clarified whether the line
represents a claim to the islands within the line and their adjacent waters; a
boundary of national sovereignty over all the enclosed waters (including, but
not limited by, the land features inside the line); or a “historic” claim of
sovereignty or some other set of historic rights to the maritime space within
the line. The Philippines sought a declaration that the countries’ respective
rights and obligations regarding the waters, seabed, and maritime features of
the South China Sea are governed by UNCLOS. As such, China’s claims based
on any “historic rights” to waters, seabed, and subsoil within the nine-dash
line are contrary to UNCLOS and invalid. (See Table: Claims 1 and 2)
Holding: UNCLOS “comprehensively” governs the parties’ respective rights to
maritime areas in the South China Sea. Therefore, to the extent China’s nine-
dash line is a claim of “historic rights” to the waters of the South China Sea, it
is invalid.
Reasoning: Whatever historic rights China may have had were extinguished
when UNCLOS was adopted, to the extent those rights were incompatible
with UNCLOS.
2. The Philippines sought a determination as to whether certain land features
in the Spratly Islands claimed by both China and the Philippines are properly
characterized as islands, rocks, low tide elevations (LTEs), or submerged banks.
Under UNCLOS, an “island” generates both a territorial sea of 12 nautical
miles and an exclusive economic zone (EEZ) of up to 200 nautical miles,
subject to delimitation of a maritime boundary with any other countries’
overlapping territorial seas or EEZs. A “rock” is entitled to a territorial sea no
greater than 12 nautical miles, but not an EEZ. LTEs and submerged banks do
not generate any such entitlements. (See Table: Claims 3, 4, 6, and 7)
Holding: None of the features in the Spratly Islands generates an EEZ, nor can
the Spratly Islands generate an EEZ collectively as a unit. As such, the Tribunal
declared certain areas are within the Philippines’ EEZ and not overlapped by
any possible Chinese entitlement.
Reasoning: The baseline of analysis is what the features can sustain in their
“natural condition” (i.e., not after construction of artificial islands, installation
of desalination plants, etc.). Based on historical evidence, none of the features
in the Spratly Islands can sustain either a stable community of people or
economic activity that is not dependent on outside resources or purely
extractive in nature. The current presence of personnel on the features is
dependent on outside support and does not reflect the capacity of the
features in their natural condition.
2. The Philippines sought a declaration that China violated UNCLOS by
interfering with the Philippines’ rights and freedoms within its EEZs. This
includes preventing Philippine fishing around Scarborough Shoal, violating
34
UNCLOS’s environmental protection provisions through construction and
fishing activities that have harmed the marine environment (including at
Scarborough Shoal, Second Thomas Shoal, and Mischief Reef), and by
dangerously operating law enforcement vessels around Scarborough
Shoal. (See Table: Claims 5, 8, 9, 10, 11, 12, and 13)
Holding: China violated the Philippines’ sovereign rights in its EEZ. It did so by
interfering with Philippine fishing and hydrocarbon exploration; constructing
artificial islands; and failing to prevent Chinese fishermen from fishing in the
Philippines’ EEZ. China also interfered with Philippine fishermen’s traditional
fishing rights near Scarborough Shoal (without prejudice to the question of
sovereignty over Scarborough Shoal). China’s construction of artificial islands
at seven features in the Spratly Islands, as well as illegal fishing and harvesting
by Chinese nationals, violate UNCLOS obligations to protect the marine
environment. Finally, Chinese law enforcement vessels unlawfully created a
serious risk of collision by physically obstructing Philippine vessels at
Scarborough Shoal in 2012.
Reasoning: This set of holdings depended on the Tribunal finding that certain
areas are within the Philippines’ EEZ and not subject to possible overlapping
Chinese entitlements. It also depended on finding that activities such as island
construction are, in accordance with China’s own public statements, not
“military activities” and therefore not excluded from jurisdiction under
UNCLOS. Once this was established, the Tribunal considered Chinese activities
in the relevant areas and found that China had (a) interfered with Philippine
petroleum exploration at Reed Bank, (b) purported to prohibit fishing by
Philippine vessels within the Philippine EEZ, (c) protected and failed to prevent
Chinese fishermen from fishing within the Philippine EEZ at Mischief Reef and
Second Thomas Shoal, and (d) constructed artificial islands/installations at
Mischief Reef without the Philippines’ authorization. As for Scarborough
Shoal, regardless of who has sovereignty, both Philippine and Chinese
fishermen have “traditional fishing rights” at the Shoal that were not
extinguished by UNCLOS, and China violated the Philippines’ rights by entirely
preventing Filipino fishermen from fishing near Scarborough Shoal after May
2012. In addition, Chinese artificial island construction has caused “severe
harm to the coral reef environment” and China has failed to stop its nationals
from engaging in “harmful” and “destructive” harvesting and fishing of
endangered sea turtles, coral, and giant clams in violation of UNCLOS. Finally,
Chinese law enforcement vessels violated maritime safety obligations by
creating a serious risk of collision on two occasions in April and May 2012
during the Scarborough Shoal standoff.
3. The Philippines sought a declaration that China’s recent actions,
specifically its land reclamation and construction of artificial islands in the
Spratly Islands after the arbitration was commenced, violated the obligations
UNCLOS places on states to refrain from conduct that “aggravates and
extends” a dispute while dispute resolution proceedings are pending. (See
Table: Claim 14)
Holding: China has aggravated and extended the disputes through its dredging,
artificial island-building, and construction activities.
Reasoning: While these proceedings were pending, China has built a large
island on Mischief Reed, an LTE within the Philippines’ EEZ; caused irreparable
harm to the marine ecosystem; and permanently destroyed evidence of the
natural condition of the features at issue.
35
Table of Philippine Claims and Tribunal Rulings* determine baselines to measure territorial
sea
Philippines’ Claim Jurisdictional Ruling Merits Ruling

(Deferred to merits Yes: UNCLOS comprehensively

China’s maritime entitlements in South China Sea may not exceed those stage) allocates rights to maritime areas
1
established by UNCLOS Johnson Reef, Cuarterton Reef, and Fiery
7Jurisdiction
Cross Reefgranted
generatePhilippines win to EEZ or Jurisdiction granted
no entitlements
continental shelf
Yes: There is no legal basis for China
to claim historic rights to waters in
(Deferred to merits
China’s “nine-dash line” claim is invalid to the extent it exceeds the limits stage) the South China Sea (so, to the extent
2 China has interfered
that with the
is what thePhilippines’
nine-dash line means,
established by UNCLOS
exercise of sovereign
it is rights
invalid)over living and (Deferred to merits stage)
8Jurisdiction granted
non-living resources within its EEZ and Jurisdiction granted
continental shelf Philippines win

Yes: Scarborough Shoal is a rock that

Scarborough Shoal generates no EEZ generates no EEZ
3 Jurisdiction granted
or continental shelf China has failed to prevent its nationals and (Reserved to merits stage)
Philippines
9 vessels from exploiting winresources in
the living
the Philippines’ EEZ Jurisdiction granted
Mischief Reef, Second Thomas Shoal, and Subi Yes: Mischief Reef, Second Thomas
Reef are all LTEs that do not generate Shoal, and Subi Reef are LTEs
4 Jurisdiction granted
territorial seas or EEZs, and are not subject to China has prevented Philippine fishermen
appropriation Philippines win
from pursuing their livelihoods through
10 Jurisdiction granted
traditional fishing activities around
Yes: Mischief Reef and Second
Mischief Reef and Second Thomas Shoal are (Deferred to merits stage) Scarborough Shoal
Thomas Shoal are part of the EEZ and
5 part of the Philippines’ EEZ and continental continental shelf of the Philippines
shelf Jurisdiction granted
China has violated Philippines
UNCLOS’s win
environmental
11 protection obligations at Scarborough Shoal Jurisdiction granted
Gaven Reef and McKennan Reef (including and Second ThomasNo:Shoal
6 Hughes Reef) are LTEs that generate no Jurisdiction granted Both Gaven and McKennan Reef
are above water at high tide; they are
maritime entitlements, but may be used to

36
 UNCLOS and Philippines win
comply with its
duties under Yes: Environmental protection
UNCLOS provisions were violated at Mischief
China’s occupation and construction on Reef; artificial island construction
Mischief Reef violate UNCLOS provisions on (Deferred to merits stage) * See p. 34-35 of Tribunal’s
violated
AwardPhilippine
on Jurisdiction
sovereign
and Admissibility;
rights p. 5 of the
12 artificial islands and environmental PCA’s 12 July 2016 Presswithin
Release;
its and
EEZ;p.the
4 of “appropriation”
this paper by Paul Gewirtz.
protection, and are unlawful acts of Jurisdiction granted claim is moot because Mischief Reef
attempted appropriation is an LTE not capable of appropriation
Initial Takeaways
Philippines win
1. Not many people predicted that the Philippines would all but run the table
China has violated UNCLOS by dangerously Yes: China violated UNCLOS and
in this case. It’s hard to imagine a much more favorable outcome for their
operating law enforcement vessels creating other treaty provisions on maritime
13 Jurisdiction granted legal team.
serious risk of collision near Scarborough safety
Shoal Philippines win
2. One of the ironies of the Award is that China has vociferously argued in
Yes: Although there is no jurisdiction
public statements that it is not “militarizing” the South China Sea and that its
China has unlawfully aggravated and over disputes involving military
actions there are for civilian purposes. Those claims turned out to be crucial
extended the dispute by interfering with the activities such as the Second Thomas
to the Tribunal’s conclusion that it had jurisdiction to consider the legality of
Philippines’ rights of navigation near
certain Chinese actionsShoal standoff, ofChina
such as construction artificial has
islands in the South
Scarborough Shoal, preventing the rotation (Deferred to merits stage) aggravated/extended the disputes
14 China Sea, because Article 298(1)(b) of UNCLOS excludes disputes concerning
and resupply of Philippine personnel Jurisdiction granted in part, denied in part through recent large-scale land
“military activities” from compulsory dispute settlement. Despite China’s non-
stationed at Second Thomas Shoal, and reclamation and artificial island
participation in the proceedings, the Tribunal went out of its way to review
endangering the health of the personnel construction in the Philippine EEZ
the December 2014 position paper issued by China’s Ministry of Foreign
there
Affairs as well as numerous public statements
Philippines win of Chinese leaders. This was an
example of where those public statements worked against China’s legal
Going forward interests in the arbitration.
Qualified yes: This claim simply asks
China shall respect (Deferred to merits stage) China to do what it is required to do
15 the rights and 3.
Jurisdiction granted under UNCLOS; therefore, no further
freedoms of the 4. The Tribunal rejectedstatement is necessary
the possibility that China could claim the entirety of
Philippines under the Spratly Islands as a single archipelagic feature, as suggested in

37
recent statements by the Ministry of Foreign Affairs as well as a white
paper issued last month by the Chinese Society of International Law. As Julian
noted earlier, this was a bit of a preemptory legal strike against “any Chinese
attempt to draw ‘straight baselines’ around the Spratlys and thus treat the
whole area as a single entity for generating maritime rights.”
5. Of all the rulings on the status of features in the Spratly Islands, perhaps
none will generate more discussion than the conclusion that Itu Aba (Taiping
Island) is a rock and not an island. Many observers thought that Itu Aba, the
largest naturally occurring land feature in the Spratly Islands, had
the strongest claim to being deemed an island entitled to both a territorial sea
and an EEZ. The concepts the Tribunal employed to determine what makes
something a “rock[] which cannot sustain human habitation or economic life
of [its] own” are likely to guide future legal determinations of this character.
It will take time to digest this portion of the opinion, but the Tribunal’s
“habitability and economic life” factors seem to include:
The objective capacity of the feature in its natural condition (i.e., “without
external additions or modifications” and without outside support), to sustain,
over an extended period of time, either
(a) a stable community of people for whom the feature constitutes a home
and on which they can remain, or
(b) economic activity that is not
(i) dependent on outside resources, or
(ii) purely extractive in nature without the involvement of a local population.
Factors contributing to the natural capacity of a feature to do so “include the
presence of water, food, and shelter in sufficient quantities to enable a group
of persons to live on the feature for an indeterminate period of time.”
In assessing these “capacity” factors, the Tribunal stated, “the most reliable
evidence of the capacity of a feature will usually be the historical use to which
it has been put.” Applying that standard here, the Tribunal saw “no indication
that anything fairly resembling a stable human community has ever formed
on the Spratly Islands. Rather, the islands have been a temporary refuge and
base of operations for fishermen and a transient residence for labourers
engaged in mining and fishing.”
6. Given its sweeping conclusions favoring the Philippines, the Award may
seem to have nothing positive in it for China. But the Tribunal offered an
important qualification to its judgment, and perhaps a bit of an olive branch
toward the end of a decision it knew would not be well received in Beijing.
We should not assume, said the Tribunal, that these disputes are the product
of bad faith on the part of the PRC; rather, they are the result of basic
disagreements about respective rights and obligations and the applicability of
UNCLOS. From paragraph 1198 of the Award:
“The root of the disputes presented by the Philippines in this arbitration lies
not in any intention on the part of China or the Philippines to infringe on the
legal rights of the other, but rather—as has been apparent throughout these
proceedings—in fundamentally different understandings of their respective
rights under the Convention in the waters of the South China Sea. In such
circumstances, the purpose of dispute resolution proceedings is to clarify the
Parties’ respective rights and obligations and thereby to facilitate their future
relations in accordance with the general obligations of good faith that both
governments unequivocally recognise.”
38
 bilateral negotiations with the administration of new Philippine President
Rodrigo Duterte on his government’s rejection of the Tribunal’s Award? Will
7. Where does this leave us? China’s position all along with respect to these
it worry that some of these behaviors will push the Philippines and other
proceedings can be summed up as “no acceptance, no participation, no
ASEAN nations closer to the United States? Will we see the U.S. Navy
recognition, and no implementation.” The PRC Ministry of Foreign Affairs
conducting “pure” freedom of navigation operations (FONOPs) within 12
predictably wasted no time releasing a statement declaring that “the award
nautical miles of the Spratly Island features the Tribunal says are not entitled
is null and void and has no binding force.” The Philippine Foreign Affairs
to a territorial sea?
Secretary welcomed the decision, stating: “The Philippines strongly affirms its
respect for this milestone decision as an important contribution to ongoing
efforts in addressing disputes in the South China Sea.” No surprises here,
especially given that the Tribunal resolved virtually all the key issues in favor
of the Philippines. For its part, the U.S. State Department issued a
measured statement remarking that “[t]he decision today by the Tribunal in
the Philippines-China arbitration is an important contribution to the shared
goal of a peaceful resolution to disputes in the South China Sea.”

As these statements suggest, the issuance of this Award by no means puts to

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

China, the Philippines, ASEAN countries, and the United States face a range of
strategic questions about the best way forward. Will Beijing demonstrate its
disregard for the decision by engaging in land reclamation at Scarborough
Shoal or declaring an Air Defense Identification Zone in the South China Sea,
as some have predicted? Will it continue to insist on conditioning any future

39