NEW ERA UNIVERSITY

COLLEGE OF LAW
SY 2020-2021
MODULE 5-6

BARCELLANO, JOBELLE
PIL 6-9pm FRIDAY

TABLE OF CONTENTS

Guide Questions Module 5-6……………………………………………………….…1

Fisheries Case
UK v Norway, ICJ Reports 1951……………………………………...……….……...4

Land, Island, and Maritime Frontier Dispute

ICJ Reports 1992 ……………………………………………………………………...5

Eritrea-Yemen Arbitration, PCA, 1998……………………………………………….6

Island of Palmas Case

Netherlands v USA 2RIAA, 829, Permanent Court Arbitration…………………........7

Clipperton Island Arbitration

France v Mexico 8 January 1931………………………………………………………8

The Minquiers and Ecrehos Case

France/UK ICJ Reports 1953……………………………………………………….….9

Sovereignty Over Pulau Ligitan and Pulao Sipadan

Indonesia/Malaysia…………………………………………………………………….10

Frontier Dispute Burkina Faso/Mali…………………………………………………...11

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle rocks and South Ledge
Malaysia/Singapore ICJ Reports 2008…………………………………………………12

Cases: Module 6

Maritime Delimitation and Territorial Questions between Qatar and Bahrain

ICJ Reports 2001……………………………………………………………………….13

SS Lotus Case…………………………………………………………………………..14
GUIDE QUESTIONS MODULE 5
1. What are the modes of acquiring territory?
- The five modes of acquiring territory have traditionally been distinguished into
cession, occupation, accretion, subjugation, and prescription

2. What is the meaning of effectivite?

- Character of what is effective. Principle of international law according to which
a situation is opposable to third parties only if it presents a sufficient degree of
reality.

3. What does discovery and occupation mean as a mode of acquiring territory?

- Discovery is the oldest method of acquiring title to territory. However, discovery
alone would not suffice to establish legal title. It is necessary that the discovered
area must be physically occupied. Related to title by discovery is the hinterland
doctrine or the principle of continuity. If a state has made a settlement, it has a
right to assume sovereignty over all adjacent vacant territory, which is necessary
to the integrity and security of the settlement.

- Occupation is the intentional acquisition by a state over a territory which at the

time of claim not under the sovereignty of any state. There are two requirements:
(1) the territory subject of claim must not be under the sovereignty of any state
(terra nullius); and (2) the state must have effectively occupied the territory, that
is, the state claiming the territory must have exercised immediate occupation
(corpus occupandi) on the territory after it displayed its intention to occupy
(animus occupandi).

GUIDE QUESTIONS MODULE 6

1. What is the archipelagic doctrine?
- The Archipelagic Doctrine as enshrined in Article 1 of the 1987 Constitution
provides that an Archipelago shall be regarded as a single unit, so that the waters
around, between, and connecting the islands of the archipelago, irrespective of
their breadth and dimensions, form part of the internal waters of the state.

2. What is the Thalweg doctrine?

- The Thalweg Doctrine defines the border between two states separated by a
watercourse or. flowing body of water as lying along the thalweg, which is the
line of greatest depth of the channel or watercourse.

3. Distinguish the territorial sea from high seas.

- Territorial waters are thus to be distinguished on the one hand from the high
seas, which are common to all countries, and on the other from internal or inland
waters, such as lakes wholly surrounded by the national territory or certain bays
or estuaries.

4. What is the continental shelf?

- A continental shelf is the edge of a continent that lies under the ocean. These
have been included under International law which confirms each coastal state's
right to explore and exploit the natural resources of its continental shelf both
through treaty and customary usage.

5. Distinguish the rights of the coastal state in the territorial sea, the continuous
zone, the exclusive economic zone, and the continental shelf.
- The continental shelf includes only the seabed and subsoil; whereas the
exclusive economic zone includes the water column.
- The contiguous zone is an area of sea contiguous to and extending seaward of
the territorial sea, in which the coastal State may exercise the control necessary
 to prevent and punish infringements of its customs, fiscal, immigration, and
sanitary laws within its territory or territorial sea.
- Territorial waters, in international law, that area of the sea immediately adjacent
to the shores of a state and subject to the territorial jurisdiction of that state.

6. What is the doctrine of innocent passage?

- Innocent passage is a concept in the law of the sea that allows for a vessel to pass
through the archipelagic and territorial waters of another state, subject to certain
restrictions. Such passage shall take place in conformity with this Convention
and with other rules of international law.

7. What are the five freedoms in a state’s aerial domain?

- 1. The theory of the Institute of International Law of 1906 that the air should be
absolutely free for purposes of aerial navigation by aviators of all countries.
- 2. The so-called zone theory, that though the air is free the subjacent State
should have a certain right of control up to a certain height.
- 3. The theory of freedom of the air coupled with an acknowledgment of the right
of the subjacent State to control it to an indefinite height for purposes of its own
protection.
- 4. The theory of absolute sovereignty on a parity with that recognized as to the
land domain.
- 5. The theory of absolute sovereignty qualified by the right of innocent passage.
Fisheries Case
UK v Norway, ICJ Reports 1951

FACTS
On 28 September 1949, the UK requested that the International Court of Justice
determine how far Norway's territorial claim extended to sea, and to award the UK
damages in compensation for Norwegian interference with UK fishing vessels in the
disputed waters, claiming that Norway's claim to such an extent of waters was against
international law.

RULING
On 18 December 1951, the ICJ decided that Norway's claims to the waters were
consistent with international laws concerning the ownership of local sea-space.[1]

The Court found that neither the method employed for the delimitation by the Decree,
nor the lines themselves fixed by the said Decree, are contrary to international law; the
first finding being adopted by ten votes to two, and the second by eight votes to four.
Three Judges — MM. Alvarez, Hackworth and Hsu Mo appended to the Judgment a
declaration or an individual opinion stating the particular reasons for which they reached
their conclusions; two other Judges—Sir Arnold McNair and Mr. J. E. Read—appended
to the Judgment statements of their dissenting Opinions.
Land, Island, and Maritime Frontier Dispute
ICJ Reports 1992

FACTS
The dispute was essentially rooted in the fall of the Spanish Colonial Empire in Central
America in the 19th century. Both Honduras and El Salvador belonged to the Captaincy-
General of Guatemala, which itself was a part of Mexico at the time. In 1821, Honduras
and El Salvador joined the Federal Republic of Central America and became
independant in 1839 after the disintegration of the Federal Republic. Their respective
national borders corresponded to the administrative borders recognized for the former
Spanish colonies according to the uti possidetis iuris principle applied first in Central
America and later in Africa.

As early as 1854, the legal status of the islands located in the Gulf of Fonseca became
an issue of dispute; the question of the land frontier followed in 1861. Border incidents
led to mounting tension between the States and, ultimately, to an armed conflict in 1969.
However, in 1972 the parties were able to reach an agreement on a substantial part of
the land border between El Salvador and Honduras; only six sectors of the frontier
remained unsettled. A mediation process initiated in 1978 resulted in the conclusion of a
peace treaty in 1980.

RULING
the Court drew the closing line of the Gulf between Punta de Amapala and Punta
Cosiguina and determined that the special regime of the Gulf did not extend beyond this
closing line. The legal status of these waters inside the Gulf were defined by the Court
as sui generis, but would be the same as that of internal waters and not that of territorial
sea, except for the three-mile coastal zone of each State.

As to the waters outside the Gulf, the Chamber noted that intirely new concepts of
maritime law existed present day, unheard of in 1917. The Chamber held in this context
that there is a territorial sea proper seawards of the closing line of the Gulf. Since there
is a condominium of the waters inside the Gulf, there is a tripartite presence at the
closing line. Only seaward of the closing line could modern territorial seas exist, as
otherwise, the Gulf waters could not be waters of a historic bay. Therefore, the three
coastal States, joint sovereigns of the internal waters, must each be entitled outside the
closing line to a territorial sea, continental shelf and exclusive economic zone. It is,
however, for the three States to decide whether this situation should be upheld or
replaced by a division and delimitation into three separate zones.
Eritrea-Yemen Arbitration, PCA, 1998

FACTS
The State of Eritrea and the Republic of Yemen both claimed sovereignty over a group
of islands in the Red Sea and disagreed as to the location of their maritime boundary.
The Arbitration Agreement, between the Parties dated October 3, 1996, required the
Tribunal to rule on these two issues in separate stages.

RULING
The Tribunal ruled that the international maritime boundary between the Parties “shall
be a single all-purpose boundary” that “should, as far practicable, be a median line
between the opposite mainland coastlines.” This solution was not only in accord with
precedent but was also familiar to both Parties and reflected by offshore petroleum
agreements entered into by Yemen, Eritrea, and Ethiopia. The Tribunal then calculated
the boundary line resulting from the application of these principles and set out the
geographical coordinates of the international maritime boundary in the dispositif of the
award.
Island of Palmas Case
Netherlands v USA 2RIAA, 829, Permanent Court Arbitration

FACTS
Palmas (Miangas) is an island of little economic value or strategic location. It located is
2.6 km in north–south length and 1.0 km in east–west width. It had a population of
about 750 in 1932, when the case was decided. The island is located approximately 100
miles ESE of General Santos City, Philippines and 400 miles North of the Talaud
Islands, the next-northernmost part of Indonesia.

In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898)
and Palmas is located within the boundaries of that cession. In 1906, the United States
discovered that the Netherlands also claimed sovereignty over the island, and the two
parties agreed to submit to binding arbitration by the Permanent Court of Arbitration.
On 23 January 1925, the two governments signed an agreement to that effect.
Ratifications were exchanged in Washington, D.C. on 1 April 1925. The agreement was
registered in League of Nations Treaty Series on 19 May 1925.

ISSUE
WON the Island of Palmas (Miangas) formed part of United States territory (referring to
what is now the Philippines) or Dutch territory (referring to what is now Indonesia).

RULING
Huber ruled for the Netherlands:

For these reasons: The Arbitrator in conformity with Article I of the Special Agreement
of 23 January 1925 DECIDES that : THE ISLAND OF PALMAS (or MIANGAS)
forms in its entirety a part of the Netherlands territory. done at The Hague, this fourth
day of April 1928.
Clipperton Island Arbitration
France v Mexico 8 January 1931

FACTS
France claimed to have occupied an island but Mexico also claimed that Spain
discovered it and that it was the successor. Clipperton Island is an inhabited island coral
atoll in the Eastern Pacific Ocean, southwest of Mexico, west of Costa Rica and
northwest of Galapos Islands, Equador; The island was discovered by French. They
drew up the first map and annexed it to France. The first scientific expedition took place
in 1725 under Frenchman M. Bocage, who lived on the island for several months.

Mexico also claimed it due to activities undertaken therein as early as 1848-1849. On

November 17, 1858; Emperor Napoleo III annexed it as part of the French colony of
Tahiti. This did not settle the ownership question. After which, there were no apparent
acts of sovereignty on the part of France. The island remained without population. O
November 24, 1897, French naval authorities found three Americans working for the
American Guano Company, who had raised the American flag. US authorities
denounced their act, assuring the French that they did not intend to assert American
sovereignty.

Mexico and France signed a compromise in 1909, agreeing to submit the dispute over
sovereignty over Clipperton Island to binding arbitration by King Victor Emanuel of
Italy.

ISSUE
WHO between Mexico and France has the sovereignty over the Clipperton Island.

RULING
For occupation, you also need to possess the land which France did. It is beyond doubt
that by immemorial usage having the force of law, besides the animus occupandi, the
actual, and not the nominal, taking of possession is a necessary condition of occupation.
This taking of possession consists in the act, or series of acts, by which the occupying
state reduces to its possession the territory in question and takes steps to exercise
exclusive authority there. Strictly speaking, and in ordinary cases, that only takes place
when the estate establishes in the territory itself an organization capable of making its
law respected. But this step is, properly speaking, but a means of procedure to the taking
of possession, and, therefore, is not identical with the latter. There may also be cases
where it is unnecessary to have recourse to this method. Thu, if a territory, by virtue of
the fact that it was completely uninhabited, is, from the first moment the occupying state
makes its appearance there, at the absolute and undisputed disposition of the state, from
that moment the taking of possession must be considered as accomplished, and the
occupation is thereby completed.
The Minquiers and Ecrehos Case
France/UK ICJ Reports 1953

FACTS
The Minquiers and Ecrehos are two groups of islets situated between the British island
of Jersey and the coast of France. Under a Special Agreement between France and the
United Kingdom, the Court was asked to determine which of the Parties had produced
the more convincing proof of title to these groups of islets. After the conquest of
England by William, Duke of Normandy, in 1066, the islands had formed part of the
Union between England and Normandy which lasted until 1204, when Philip Augustus
of France conquered Normandy but failed to occupy the islands. The United Kingdom
submitted that the islands then remained united with England and that this situation was
placed on a legal basis by subsequent treaties between the two countries. France
contended that the Minquiers and Ecrehos were held by France after 1204, and referred
to the same medieval treaties as those relied on by the United Kingdom. In its Judgment
of 17 November 1953, the Court considered that none of those treaties stated
specifically which islands were held by the King of England or by the King of France.
Moreover, what was of decisive importance was not indirect presumptions based on
matters in the Middle Ages, but direct evidence of possession and the actual exercise of
sovereignty. After considering this evidence, the Court arrived at the conclusion that the
sovereignty over the Minquiers and Ecrehos belonged to the United Kingdom.

ISSUE
Where does Minquiers and Ecrehos belong

RULING
The Court finds that the sovereignty over the islets and rocks of the Ecrehos and
Minquiers groups, in so far as these islets and rocks are capable of appropriation,
belongs to the United Kingdom.
Sovereignty Over Pulau Ligitan and Pulao Sipadan
Indonesia/Malaysia

FACTS
Ligitan and Sipadan are two small islands located in the Celebes Sea off the
southeastern coast of the Malaysian state of Sabah. Sovereignty over the islands has
been disputed by Indonesia and Malaysia since 1969 and intensified in 1991 when
Indonesia discovered that Malaysia had built some tourist facilities on Sipadan island.
Indonesia claimed that it had made a verbal agreement with Malaysia in 1969 to discuss
the question of sovereignty over the islands. Malaysia however denied the allegation of
an agreement between them, maintaining that the islands have always been part of the
territory of its state of Sabah. Both countries have not delimited their maritime zones in
the area and the court was not asked to rule on this further matter. On 2 November 1998,
both countries agreed to bring the matter to the International Court of Justice (ICJ).

ISSUE
Where does Ligitan and Sipadan belong

RULING
Both of the islands were originally considered as terra nullius. But as Malaysia's
predecessor, Great Britain, significantly developed the islands compared to Indonesia's
predecessor, the Netherlands, especially after Malaysia's formation as a nation the court
using this as the main reason decided to award the islands to Malaysia based on their
"effective occupation". In addition, it is also acknowledged both of the islands were
much closer to Malaysia than Indonesia as well with an earliest documentation from
Malaysia over the British 1878 Agreement with the Sultanate of Sulu during which time
they acquired the Sultanate area as part of the British Borneo, while the Indonesian
claim is mostly based on an 1891 Boundary Treaty between Great Britain and the
Netherlands.
Frontier Dispute Burkina Faso/Mali

FACTS
The dispute concerned the border between Burkina Faso and Niger, both of which
occupy territory previously held by the French colonies of Upper Volta and Niger,
respectively. Discussion regarding the border began shortly after the nations gained their
independence, with an agreement first attempted in the Protocol Agreement of 23 June
1964, and another in the Protocol Agreement of 28 March 1987.

The 1987 Protocol established a Joint Technical Commission on Demarcation of the

Frontier, which had the responsibility of determining the specifics of the border. It
would do so by consulting a 1927 Arrêté from the Governor-General of French West
Africa, and a clarifying Erratum of 5 October 1927. Where the Arrêté was insufficient,
the commission would refer to a 1:200,000 scale map published by the Institut
géographique national de France, 1960 edition.

By 2001, the commission had determined a border line that could be split into three
sectors. The first and most northerly sector ran south from N'Gouma to the astronomic
marker of Tong-Tong. The second sector, from Tong-Tong to the Botou Bend. The third
and most southerly sector, from the Botou bend to the Mekrou River, where both
countries border Benin.

Burkina Faso and Niger agreed on the first and third sectors but disagreed on the
second, having different interpretations of the Arrêté. They concluded a special
agreement that referred their dispute over the second sector to the ICJ. Burkina Faso
also requested the court to place on record the boundary agreed to in the first and third
sectors, to give it res judicata.

The matter was referred to the ICJ on 20 July 2010.

RULING
The International Court of Justice delivered its Judgement on 16 April 2013. The
unanimous judgement mentioned the importance of the principles of uti possidetis juris
and the intangibility of borders, in affirming the authority of the 1927 Arrêté over this
matter. Judge Yusuf wrote in a separate opinion that uti possidetis juris and the
intangibility of borders should be considered separate and distinct principles; the former
being a guide to the determination of borders, and the latter being respect for borders
already determined.

The court found it did not have jurisdiction to place the agreed to sectors on the record
as its exercise of judicial functions required the existence of a dispute, and it was clear
both parties agreed on this matter.

Under the border determined by the court, 786 square kilometres (303 square miles) of
territory was assigned to Burkina Faso and 277 km2 (107 sq mi) to Niger. In 2015, the
two nations agreed to exchange 18 towns over the following year (Burkina Faso to gain
14, Niger to gain four).

Leaders from both nations were reported to be satisfied with the ruling and were
departing amicably.
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle rocks and South Ledge
Malaysia/Singapore ICJ Reports 2008

FACTS
Pedra Branca is a small granite outcrop located 25 nautical miles (46 km; 29 mi) east of
Singapore and 7.7 nautical miles (14.3 km; 8.9 mi) south of Johor, Malaysia, where the
Singapore Strait meets the South China Sea. There are two maritime features near the
island: Middle Rocks, 0.6 nautical miles (1.1 km; 0.69 mi) south of Pedra Branca, which
consists of two clusters of small rocks about 250 metres (820 ft) apart; and South Ledge,
2.2 nautical miles (4.1 km; 2.5 mi) south-south-west of Pedra Branca, which is visible
only at low tide.

Singapore has been administering Pedra Branca since Horsburgh Lighthouse was built
on the island by its predecessor, the United Kingdom, between 1850 and 1851.
Singapore was ceded by Sultan Hussein Shah and Temenggung Abdul Rahman Sri
Maharajah of Johor to the British East India Company under a Treaty of Friendship and
Alliance of 2 August 1824 (the Crawfurd Treaty), and became part of the Straits
Settlements in 1826. At the time when the lighthouse on the island was constructed, the
Straits Settlements were under British rule through the Government of India.

On 21 December 1979, the Director of National Mapping of Malaysia published a map

entitled Territorial Waters and Continental Shelf Boundaries of Malaysia showing Pedra
Branca to be within its territorial waters. Singapore rejected this "claim" in a diplomatic
note of 14 February 1980 and asked for the map to be corrected. In the late 1980s,
Attorney-General of Singapore Tan Boon Teik was despatched by the Prime Minister of
Singapore Lee Kuan Yew to disclose the documentary evidence which Singapore had to
the Malaysian Attorney-General, to demonstrate the strength of Singapore's case.
However, the dispute was not resolved by an exchange of correspondence and
intergovernmental talks in 1993 and 1994. In the first round of talks in February 1993
the issue of sovereignty over Middle Rocks and South Ledge was also raised. Malaysia
and Singapore therefore agreed to submit the dispute to the International Court of
Justice (ICJ).

RULING

The ICJ rendered its decision on 23 May 2008. The Court agreed with Malaysia that the
Johor Sultanate had original title to Pedra Branca, rejecting Singapore's argument that
the island was terra nullius. It found it was not disputed that Johor had established itself
as a sovereign state with a certain territorial domain in Southeast Asia since it came into
existence in 1512. As Pedra Branca had always been known as a navigational hazard in
the Singapore Strait, which was a vital channel for international navigation in east–west
trade between the Indian Ocean and the South China Sea, it was inconceivable that the
island had remained undiscovered by the local community. It was therefore reasonable
to infer that Pedra Branca lay within the general geographical scope of the Johor
Sultanate. Further, during the existence of the old Johor Sultanate, there was no
evidence of any competing claims over the islands in the Singapore Strait. It also agreed
with Malaysia's submission that descriptions of the relationship between the Sultan of
Johor and the Orang Laut in 19th-century official British reports proved that the Sultan
exercised sovereign authority over the Orang Laut. Since the Orang Laut made the
islands in the Singapore Strait their habitat, this confirmed the "ancient original title" of
the Johor Sultanate to those islands, including Pedra Branca. As regards Singapore's
argument that the traditional concept of Malay sovereignty was based on control over
people rather than territory, the Court observed that sovereignty comprises control over
both persons and territory. However, it was not necessary to deal with the point further
as it had already found that Johor had territorial sovereignty over Pedra Branca.
Maritime Delimitation and Territorial Questions between Qatar and Bahrain
ICJ Reports 2001

FACTS
A dispute concerning sovereignty over certain islands and shoals, including the
delimitation of a maritime boundary were issues upon which Qatar (P) and Bahrain (D)
sought to resolve for 20 years. During this period of time, letters were exchanged and
acknowledged by both parties heads of state. A Tripartite Committee “for the purpose of
approaching the International Court of Justice…..” was formed by representatives of
Qatar (P), Bahrain (D) and Saudi Arabia. Though the committee met several time, it
failed to produce an agreement on the specific terms for submitting the dispute to the
Court. Eventually, the meetings culminated in “Minutes”, which reaffirmed the process
and stipulated that the parties “may” submit the dispute to the I.C.J. after giving the
Saudi King six months to resolve the dispute. The Court’s jurisdiction was disputed by
Bahrain (D) when Qatar (P) filed a claim in the I.C.J.

ISSUE
WON an egreement creating rights and obligations can be constituted by the signatories
to the minutes of the meetings and letters exchanged.

RULING
Yes. An international agreement creating rights and obligations can be constituted by
the signatories to the minutes of meetings and letters exchanged. Though Bahrain (D)
argued that the Minutes were only a record of negotiation and could not serve as a basis
for the I.C.J.’s jurisdiction, both parties agreed that the letters constituted an
international agreement with binding force.
SS Lotus Case

FACTS
The Lotus case concerns a criminal trial which was the result of the 2 August 1926
collision between the S.S. Lotus, a French steamer, and the S.S. Bozkourt, a Turkish
steamer, in a region just north of Mytilene (Greece). As a result of the accident, eight
Turkish nationals aboard the Bozkourt drowned when the vessel was torn apart by the
Lotus.

ISSUE
WON Turkey has jurisdiction over Monsieur Demons, the French lieutenant on watch
duty at the time of the collision?

RULING
Since the collision occurred on the high seas, France claimed that the state whose flag
the vessel flew had exclusive jurisdiction over the matter. France proffered case law,
through which it attempted to show at least state practice in support of its position.
However, those cases involved ships that both flew the flag of the same state. The
Court, therefore, by a bare majority, rejected France's position stating that there was no
rule to that effect in international law.