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SOURCES OF INTERNATIONAL LAW
KURODA VS. JALANDONI (MARCH 26, 1949)
PETITIONER: SHIGENORI KURODA RESPONDENTS: Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS , MELVILLE S. HUSSEY and ROBERT PORT PONENTE: MORAN, C.J. Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the Philippines during 1943 and 1944, who is now charged before a Military Commission convened by the Chief of Staff of the AFP, with having unlawfully disregarded and failed “to discharge his duties as such commander to control the operations of members of his command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces, in violation of the laws and customs of war”—comes before this Court seeking to establish the illegality of Executive Order No. 68 of the President of the RP; to enjoin and prohibit respondents Hussey and Port from participating in the prosecution of petitioner’s case before the Military Commission; and to permanently prohibit respondents from proceeding with the case of petitioner. In support of his case, petitioner tenders the following principal arguments: First.—“That EO No. 68, establishing the National War Crimes Office is illegal on the ground that it violates not only the provisions of our constitutional law but also our local laws, to say nothing of the fact (that) the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and, therefore, petitioner is charged of ‘crimes’ not based on law, national and international.” Hence, petitioner argues-“That in view of the fact that this commission has been organized by virtue of an unconstitutional law and an illegal order, this commission is without jurisdiction to try the case of the petitioner.” Second.-That the participation in the prosecution of the case against petitioner before the Commission in behalf of the United States of America, of attorneys Hussey and Port, who are not attorneys authorized by the Supreme Court to practice law in the Philippines, is a diminution of our personality as an independent state, and their appointments as prosecutors are a violation of our Constitution for the reason that they are not qualified to practice law in the Philippines. Third.-That Attorneys Hussey and Port have no personality as prosecutors, the United States not being a party in interest in the case. ISSUE 1: WON EO 68 is CONSTITUTIONAL. HELD: YES. IT IS VALID & CONSTITUTIONAL RP CONSTI ADOPTS THE GENERALLY ACCEPTED PRINCIPLES OF INT’L LAW AS PART OF THE LAW OF THE NATION. EO68 and prescribing rules and regulations governing the trial of accused war criminals, was issued by the President of the Philippines on the th 29 day of July, 1947. This Court holds that this order is valid and constitutional. Art. 2 of our Constitution provides in its section 3, that “The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation.” RP PRESIDENT ACTED IN ACCORDANCE WITH PRINCIPLES OF INT’L LAW. In accordance with the generally accepted principles of int’l law of the present day, including the Hague Convention, the Geneva Convention and significant precedents of international jurisprudence established by the United Nations, all those persons, military or civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto, in violation of the laws and customs of war, of humanity and civilization, are held accountable therefor. Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of the Philippines has acted in conformity with the generally accepted principles and policies of international law which are part of our Constitution.

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EXERCISE OF COMMANDER-IN-CHIEF POWERS. The promulgation of said EO is an exercise by the President of his powers as Commander in Chief of all our armed forces, as upheld by this Court in the case of Yamashita when we said “War is not ended simply
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because hostilities have ceased. After cessation of armed hostilities, incidents of war may remain pending which should be disposed of as in time of war. ‘An important incident to a conduct of war is the adoption of measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war.’ Indeed, the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war. And, in the language of a writer, a military commission ‘has jurisdiction so long as a technical state of war continues. This includes the period of an armistice, or military occupation, up to the effective date of a treaty of peace, and may extend beyond, by treaty agreement.’ (Cowles, Trial of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944.)” Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect of war, namely, the trial and punishment of war criminals, through the issuance and enforcement of Executive Order No. 68. ISSUE 2: WON THE MILITARY COMMISSION HAS JURISDICTION TO TRY KURODA FOR ACT COMMITTED IN VIOLATION OF THE HAGUE & GENEVA CONVENTION EVEN IF AT THE TIME THE ALLEGED ACTS WERE COMMITTED RP WAS NOT YET A SIGNATORY. HELD: YES. THEY HAVE JURISDICTION. THE RULES & REGULATIONS OF THE HAGUE AND GENEVA CONVENTIONS FORM PART OF AND ARE WHOLLY BASED ON THE GENERALLY ACCEPTED PRINCIPLES OF INT’L LAW. Even if RP is not a signatory to the Hague Conv. and signed the Geneva Conv. only in 1947, it can’t be denied that the rules and regulations of the Hague and Geneva conv. form part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by the 2 belligerent nations, US and Japan, who were signatories to the 2 Conventions. Such rules and principles, therefore, form part of the law of our nation even if RP was not a signatory to the conventions embodying them, for our Consti has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory. EQUALLY BOUND TOGETHER WITH THE US AND WITH JAPAN. Furthermore, when the crimes charged against petitioner were allegedly committed, the Philippines was under the sovereignty of the US, and thus we were equally bound together with the US and with Japan, to the rights and obligations contained in the treaties between the belligerent countries. These rights and obligations were not erased by our assumption of full sovereignty. If at all, our emergence as a free state entitles us to enforce the right, on our own, of trying and punishing those who committed crimes against our people. In this connection, it is well to remember what we have said in the case of Laurel vs. Misa (76 Phil., 372): “…The change of our form of government from Commonwealth to Republic does not affect the prosecution of those charged with the crime of treason committed during the Commonwealth, because it is an offense against the same government and the same sovereign people...” By the same token, war crimes committed against our people and our government while we were a Commonwealth, are triable and punishable by our present Republic. ISSUE 3: WON THE 2 AMERICAN LAWYERS MAY PARTICIPATE IN THE PROSECUTION. HELD: YES. MILITARY COMMISSION IS A SPECIAL MILITARY TRIBUNAL GOVERNED BY A SPECIAL LAW AND NOT BY THE RULES OF COURT. The participation of two American attorneys, Hussey and Port, in the prosecution the case was questioned on the ground that said attorneys are not qualified to practice law in the RP in accordance with our Rules of Court and the appointment of said attorneys as prosecutors is violative of our national sovereignty. The Court did not agree since the Military Commission is a special military tribunal governed by a special law and not by the Rules of Court which govern ordinary civil courts. It has already been shown that EO 68 which provides for the organization of such military commissions is a valid and constitutional law. There is nothing in said executive order which requires that counsel appearing before said commissions must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In fact, it is common in military tribunals that counsel for the parties are usually military personnel who are neither attorneys nor even possessed of legal training. APPLICATION OF PRINCIPLE OF COMITY. The appointment of the two American attorneys is not violative of our national sovereignty. It is only fair and proper that the US, which has submitted the vindication of crimes against her government and her people to a tribunal of our nation, should be allowed representation in the trial of those very crimes. If there has been any relinquishment of sovereignty, it has not been by our government but by the US Government which has yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of comity is to allow them representation in said trials.

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U.S. IS A PARTY-IN-INTEREST. Alleging that the US is not a party in interest in the case, petitioner challenges the personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the United States and its people have been equally, if not more greatly, aggrieved by the crimes with which petitioner stands charged before the Military Commission. It can be considered a privilege for our Republic that a leader nation should submit the vindication of the honor of its citizens and its government to a military tribunal of our country. DISPOSITION: The Military Commission having been convened by virtue of a valid law, with jurisdiction over the crimes charged which fall under the provisions of Executive Order No. 68, and having jurisdiction over the person of the petitioner by having said petitioner in its custody, this Court will not interfere with the due processes of such Military Commission. Paras, Feria, Pablo, Bengzon, Briones, Tuason, Montemayor, and Reyes, JJ., concur. PERFECTO. J., Dissenting: (his opinion contained a copy of E.O. No. 68, refer to the orig.) A military commission was created on December 1, 1948, to try Lt. Gen. Kuroda for violation of the laws and customs of land warfare. Hussey and Port, American citizens and not authorized by the SC to practice law, were appointed prosecutors representing the American CIC in the trial of the case.The charges against petitioner has been filed since June 26, 1948, in the name of the People of the Philippines as accusers. HUSSEY & PORT CAN’T NOT APPEAR AS PROSECUTORS. There could not be any question that said persons cannot appear as prosecutors in petitioner’s case, as with such appearance they would be practicing law against the law. THE LEGISLATIVE POWER IS TO BE EXERCISED EXCLUSIVELY BY CONGRESS. EO 68 is a veritable piece of legislative measure, without the benefit of congressional enactment. The Constitution provides: “The Legislative powers shall be vested in a Congress of the Philippines, which shall consist of a Senate and a House of Representatives.” (Section 1, Article VI.) While there is no express provision in the fundamental law prohibiting the exercise of legislative power by agencies other than Congress, a reading of the whole context of the Constitution would dispel any doubt as to the constitutional intent that the legislative power is to be exercised exclusively by Congress, subject only to the veto power of the President of the Philippines, to the specific provisions which allow the President of the Philippines to suspend the privileges of the writ of habeas corpus and to place any part of the Philippines under martial law, and to the rule-making power expressly vested by the Constitution in the Supreme Court. There cannot be any question that the members of the Constitutional Convention were believers in the tripartite system of government as originally enunciated by Aristotle. Because the powers vested by our Constitution to the several departments of the government are in the nature of grants, not a recognition of pre-existing powers, no department of government may exercise any power or authority not expressly granted by the Constitution or by law by virtue of express authority of the Constitution. EO 68 IS ESSENTIALLY LEGISLATIVE. Executive Order No. 68 establishes a National War Crimes Office, and the power to establish government office is essentially legislative.The order provides that persons accused as war criminals shall be tried by military commissions. Whether such a provision is substantive or adjective, it is clearly legislative in nature. It confers upon military commissions jurisdiction to try all persons charged with war crimes. The power to define and allocate jurisdiction for the prosecution of persons accused of any crime is exclusively vested by the Constitution in Congress. It provides rules of procedure for the conduct of trials. This provision on procedural subject constitutes a usurpation of the rule-making power vested by the Constitution in the Supreme Court. It authorizes military commissions to adopt additional rules of procedure. If the President of the Philippines cannot exercise the rule-making power vested by the Constitution in the Supreme Court, he cannot, with more reason, delegate that power to military commissions. It appropriates the sum of P700,000 for the expenses of the National War Crimes Office established by the said Executive Order No. 69. This constitutes another usurpation of legislative power as the power to vote appropriations belongs to Congress. Executive Order No. 68, is, therefore, null and void, because, through it, the President of the Philippines usurped powers expressly vested by the Constitution in Congress and in the Supreme Court. EMERGENCY POWERS GRANTED TO THE PRES. BY COMMONWEALTH ACT NO. 600, AS AMENDED BY COMMONWEALTH ACT NO. 620, AND COMMONWEALTH ACT NO. 671 CANNOT BE INVOKED. Challenged to show the constitutional or legal authority under which the President of the Philippines issued Executive Order No. 68, respondents could not give any definite answer. They attempted, however, to suggest that the President of the Philippines issued Executive Order No. 68 under the emergency powers granted to him by Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, and Commonwealth Act No. 671
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[empowering the President to declare a State of Emergency during a period of war and authorizing him to promulgate rules] (refer to original for copy of said laws.) The Acts cannot validly be invoked, because they ceased to have any effect much before Executive Order No. 68 was issued on July 29, 1947. Said Acts had elapsed upon the liberation of the Philippines from the Japanese forces or, at the latest, when the surrender of Japan was signed in Tokyo on September 2, 1945. Ssaid measures were enacted by the Second National Assembly for the purpose of facing the emergency of an impending war and of the Pacific War that finally broke out with the attack of Pearl Harbor on December 7, 1941. We approved said extraordinary measures, by which, under the exceptional circumstances then prevailing, legislative powers were delegated to the President of the Philippines, by virtue of the following provisions of the Constitution: “In times of war or other national emergency, the Congress may by law authorize the President, for a limited period and subject to such restrictions as it may prescribe, to promulgate rules and regulations to carry out a declared national policy.” (Article VI, section 26.) It has never been the purpose of the National Assembly to extend the delegation beyond the emergency created ‘by the war, as to extend it farther would be violative of the express provisions of the Constitution. We are of the opinion that there is no doubt on this question; but if there could still be any, the same should be resolved in favor of the presumption that the National Assembly did not intend to violate the fundamental law. Only a few months after liberation and even before the surrender of Japan, or since the middle of 1945, the Congress started to function normally. The President still exercising legislative power in the form of executive orders, under the so-called emergency powers would lead to a situation pregnant with dangers to peace and order, to the rights and liberties of the people, and to Philippine democracy. VIOLATIVE OF DUE PROCESS & EQUAL PROTECTION. EO No. 68 is equally offensive to the Constitution because it violates the fundamental guarantees of the due process and equal protection of the law. It is especially so, because it permits the admission of many kinds of evidence by which no innocent person can afford to get acquittal, and by which it is impossible to determine whether an accused is guilty or not beyond all reasonable doubt. The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulations governing the trial of twelve criminals, issued by General Douglas MacArthur, Commander in Chief of the United States Armed Forces in Western Pacific, for the purpose of trying, among others, Generals Yamashita and Homma. What we said in our concurring and dissenting opinion to the decision promulgated in the Yamashita case, and in our concurring and dissenting opinion to the resolution disposing the Homma case, are perfectly applicable to the offensive rules of evidence embodied in EO 68. Said rules of evidence are repugnant to conscience as under them no justice can be expected. For all the foregoing, conformably with our position in the Yamasita and Homma cases, we vote to declare Executive Order No. 68 null and void and to grant the petition. Petition denied.

YAMASHITA VS. STYER (DEC. 19, 1945)
Petitioner: Tomoyuki Yamashita Respondent: Wilhelm D. Styer, Commanding General, United States Army Forces, Western Pacific Nature: Original action in the Supreme Court. Habeas corpus and prohibition. Ponente: Moran, C.J. PETITION FOR HABEAS CORPUS, PROHIBITION. Tomoyuki Yamashita was former commanding general of the 14th army group of the Japanese Imperial Army in the Philippines, and now charged before an American Military Commission (MC) with the most monstrous crimes ever committed against the Americans and Filipinos. This is his petition for habeas corpus and prohibition against Lt. Gen. Wilhelm D. Styer. Yamashita became a prisoner of war (POW) of the US when he surrendered, but his status was later changed when he was confined as an accused war criminal charged before an MC constituted by Styer; and he now asks that he be reinstated to his former POW status, and that the MC be prohibited from further trying him, upon the following grounds: (1) That the MC was not duly constituted, and, therefore without jurisdiction; (2) That the Philippines cannot be considered as an occupied territory, and the MC cannot exercise jurisdiction therein; (3) That Spain, the "protecting power" of Japan, has not been given notice of the impending trial against Yamashita, contrary to the provisions of the Geneva Convention of July 27, 1929, and therefore, the MC has no jurisdiction to try him; (4) That there is against him no charge of an offense against the laws of war; and
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(5) That the rules of procedure and evidence under which the MC purports to be acting denied him a fair trial. ISSUE: WON his petition for habeas corpus is tenable. HELD: NO. Habeas corpus improper when release isn’t sought. His petition seeks no discharge from confinement but merely his restoration to his former POW status - to be interned, not confined. The relative difference as to the degree of confinement in such cases is a matter of military measure, disciplinary in character, beyond the jurisdiction of civil courts. ISSUE: WON his petition for prohibition against Styer will prosper. HELD: NO. PROHIBITION CAN’T ISSUE VS 1 NOT MADE A PARTY. Neither may the petition for prohibition prosper. The MC is not made party respondent in this case, and although it may be acting, as alleged, without jurisdiction, no order may be issued in these proceedings requiring it to refrain from trying Yamashita. CIVIL COURTS WITHOUT JURISDICTION OVER US ARMY DURING WAR. Furthermore, this Court has no jurisdiction to entertain the petition even if the commission be joined as respondent. As held in Raquiza vs. Bradford, “"…an attempt of our civil courts to exercise jurisdiction over the US Army before such period (state of war) expires, would be considered as a violation of this country's faith…" especially as here the person confined is an enemy charged with the most heinous atrocities committed against Americans and Filipinos. There is some doubt as to whether war has already ended. War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of war may remain pending which should be disposed of as in time of war. As held in Ex parte Quirin (note – a US case), "an important incident to a conduct of war is the adoption of measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war." Indeed, the power to create a MC for the trial and punishment of war criminals is an aspect of waging war. And a MC "has jurisdiction so long as a technical state of war continues. This includes the period of an armistice, or military occupation, up to the effective date of a treaty of peace, and may extend beyond, by treaty agreement." (Cowles, Trial of War Criminals by Military Tribunals.) ISSUE: WON the MC has jurisdiction. HELD: YES. THE PAYOMO DOCTRINE As held in Payomo vs. Floyd, and this is applicable in time of war as well as in time of peace, this Court has no power to review upon habeas corpus the proceedings of a military or naval tribunal, and that, in such case, "the single inquiry, the test, is jurisdiction. That being established, the habeas corpus must be denied and the petitioner remanded." (In re Grimley – also a US case). Following this rule, we find that the MC has been validly constituted and it has jurisdiction both over the person of the petitioner and over the offenses with which he is charged. MILITARY COMMANDERS WITH POWER OVER MILITARY COMMISSIONS. The Commission has been validly constituted by Styler by order duly issued by Gen. Douglas MacArthur, Commander in Chief, US Army Forces, Pacific, in accordance with authority vested in him. Under paragraph 356 of the Rules of Land Warfare, a MC for the trial and punishment of war criminals must be designated by the belligerent. And the belligerent's representative here is none other than Gen. MacArthur. Articles of War Nos. 12 and 15 recognize the MC appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by court martial. Under the laws of war, a military commander has an implied power to appoint and convene a MC. This is upon the theory that since the power to create a MC is an aspect of waging war, Military Commanders have that power unless expressly withdrawn from them. JURISDICTION OF THE MC. The MC thus duly constituted has jurisdiction both over the person of Yamashita and over the offenses with which he is charged. It has jurisdiction over his person by reason of his having fallen into the hands of the US Army Forces. Under paragraph 347 of the Rules of Land Warfare, "the commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall."
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As to the jurisdiction of the MC over war crimes, the US SC said in Ex Parte Quirin: "From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of MCs to try persons and offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals." Yamashita is charged before the MC sitting at Manila with having permitted members of his command "to commit brutal atrocities and other high crimes against the people of the US and of its allies and dependencies, particularly the Philippines," (i.e. cruel and brutal massacre of civilians, devastation and destruction of properties). These are offenses against the laws of war as described in paragraph 347 of the Rules of Land Warfare. ISSUE: WON the Philippines is an occupied territory of the US. HELD: YES. AN OCCUPIED TERRITORY. According to the Regulations Governing the Trial of War Criminals in the Pacific, "the MC shall have jurisdiction over all of Japan and other areas occupied by the armed forces….” The US Forces have occupied the Philippines for the purpose of liberating the Filipino people from the shackles of Japanese tyranny, and the creation of a MC for the trial and punishment of Japanese war criminals is an incident of such war of liberation. ISSUE: WON notice to Spain is required. HELD: NO. NOTICE NOT A PREREQUISITE. The Geneva Convention does not state that notice is a prerequisite to the jurisdiction of MCs appointed by the victorious belligerent. However, the unconditional surrender of Japan and her acceptance of the terms of the Potsdam Ultimatum are a clear waiver of such a notice. Also Spain has severed her diplomatic relations with Japan because of atrocities committed by the Japanese troops against Spaniards in the Philippines. Apparently, therefore, Spain has ceased to be the protecting power of Japan. ISSUE: WON Yamashita was denied a fair trial. HELD: This issue cannot be reviewed in a petition for habeas corpus. PROCEDURE, NOT PROPER. The supposed irregularities committed by the MC in the admission of allegedly immaterial or hearsay evidence cannot divest the commission of its jurisdiction and cannot be reviewed in a petition for habeas corpus. For all the foregoing, petition is hereby dismissed, without costs. Jaranilla, Feria, De Joya, Pablo, Hilado, Bengzon, and Briones, J.J., concur. PARAS, J. I concur in the result. OZAETA, J., concurring and dissenting: LEGALLY CONSTITUTED THUS WITH JURISDICTION. I concur in the dismissal of the petition for habeas corpus and prohibition on the ground that the MC trying Yamashita has been legally constituted, and that such tribunal has jurisdiction to try and punish him for offenses against the law of war. (Ex parte Quirin) RAQUIZA INAPPLICABLE. I dissent from that portion of the opinion which cites and applies its decision in Raquiza, to the effect that an attempt of our civil courts to exercise jurisdiction over the US Army would be considered a violation of this country's faith. The decision in Raquiza, from which I dissented, was based mainly on the case of Coleman vs. Tennessee in which was mentioned merely by way of argument the rule of international law to the effect that a foreign army, permitted to march through a friendly country to
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be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place. After reviewing the facts and the ruling of the court in the Coleman case, I said in my dissent: "Thus it is clear that the rule of international law above mentioned formed no part of the holding of the court in the said case… Neither can such rule of international law of itself be applicable to the relation between the Philippines and the US, for the reason that the former is still under the sovereignty of the latter. The US Army is not foreign to the Philippines. It is here not by permission or invitation of the Philippine Government but by right of sovereignty of the US over the Philippines... The US has the same obligation to defend and protect the Philippines, as it has to defend and protect Hawaii or California, from foreign invasion. The citizens of the Philippines owe the same allegiance to the USA as the citizens of any territory or State of the Union." The rule of international law mentioned in the Coleman case and erroneously applied by analogy in the Raquiza case, has likewise no application whatever to the case at bar. PERFECTO, J., concurring and dissenting: (From the reviewer: according to Justice Perfecto, the legal basis is customary international law, specifically IHL  the laws and customs of warfare.) YAMASHITA SURRENDERS. Before Sept. 3, 1945, Yamashita was the commanding general of the 14th Army Group of the Imperial Japanese Army in the Philippines. On said date, he surrendered to the US Army at Baguio and became a POW of the US and was interned in New Bilibid Prison, in conformity with the provision of article 9 of the Geneva Convention, relative to the treatment of POWs, and of paragraph 82 of the Rules of Land Warfare of the United States War Department. WAR CRIMINAL. On Oct. 2, Styer charged Yamashita for violation of the laws of war, and it was alleged that between Oct. 9, 1944 to Sept. 2, 1945, Yamashita while commander of the armed forces of Japan, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against the Americans and their allies, particularly the Filipinos. Thus Yamashita lost his POW status and was confined as an accused war criminal. MILITARY COMMISSION. On Oct. 1, 1945, a MC was appointed to try Yamashita. At the same time several officers were designated to conduct the prosecution and several others to act as defense counsel. The MC was instructed to follow the provisions of the Sept. 24, 1945 letter, and was empowered to "make such rules for the conduct of the proceedings as it shall deem necessary for a full and fair trial of the person before it. Such evidence shall be admitted as would, in the opinion of the president of the commission, have probative value to a reasonable man and is relevant and material to the charges before the commission…” On the same day, by command of Gen. MacArthur, Styer was instructed to immediately proceed with Yamashita’s trial. Upon arraignment on Oct. 8, Yamashita entered a plea of not guilty. The bill of particulars, along with the supplemental bill of particulars, imputed 123 crimes to Yamashita. On Oct. 19, the defense filed a motion to dismiss the case as the charge "fails to state a violation of the laws of war by the accused, and that the commission has no jurisdiction to try this cause." This was denied. TRIAL. On the first day of trial, the prosecution offered in evidence an affidavit of Naukata Utsunomia executed on Oct. 1 and subscribed and sworn to before Captain Jerome Richard. The defense objected to the admission of the affidavit, invoking to said effect article 25 of the Articles of War prohibiting the introduction of depositions by the prosecution in a capital case in proceedings before a court martial or a MC. Hearsay evidence was also offered, but the defense’s objection to this was overruled. The defense counsel alleged then that the admission of hearsay evidence was against Article of War 38, the manual for courts-martial, and the rules of evidence in criminal cases in the district courts of the US. Yamashita alleges that violations of legal rules of evidence have continued and are continuing during the trial. At the opening of the trial, "the prosecution stated that no notice of impending trial had been given the protecting power of Japan by the United States," such notice being required by article 60 of the Geneva Convention and of paragraph 133 of the Rules of Land Warfare, US War Department. Yamashita maintains that his confinement and trial as a war criminal are illegal and in violation of articles 1 and 3 of the Constitution of the US and its Fifth Amendment, and article 3 of the Constitution of the Philippines, and of certain provisions of the Geneva Convention. ISSUE: WON Yamashita’s rights are violated by his prosecution (he is deprived of his rights in this proceeding).
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HELD: NO. POWS SUBJECT TO LAWS IN FORCE IN DETAINING ARMY. The Rules of Land Warfare provide that "at the opening of a judicial proceeding directed against a POW the detaining power shall advise the representative of the protecting power thereof as soon as possible, and always before the date set for the opening of the trial.” Article VIII of the Convention respecting the laws and customs of war on land provides: "POWs shall be subject to the laws, regulations, and orders in force in the army of the State into whose hands they have fallen." Section 59 of General Orders No. 100, containing instructions for the government of US armies in the field provides: "A POW remains answerable for his crimes committed against the captor's army or people, committed before he was captured, and for which he has not been punished by his own authorities." HUMANE TREATMENT OF PRISONERS FROM ANCIENT GREECE, ROME. Many of the basic ideas which prevail today in the customs and usages of nations and became part of the international law emerged from the human mind centuries before the Christian Era. Such is the idea that prisoners of war are entitled to humane treatment, that treasons of war should be discountenanced, and that belligerents must abstain from causing harm to non-combatants. Some examples: In 427 B.C., when Alcibiades killed most of his captives including those who haven’t been in open hostilities against him, the Samian exiles remonstrated him. When the Mytileneans revolted from Athens, while an assembly initially ordered the Mytilenean males be killed, this was later revoked. Greeks did much to humanize warfare and to remove it from the atrocities which prevailed amongst the most of the nations of antiquity. The Roman policy was less rigorous than the Greeks. As stated by Virgilius, "the Roman policy from the first was, on the one hand, debellare super boo, to subdue the proud and arrogant peoples and, on the other, parcellare subiectes, to spare those who have submitted." A rule existed in Rome which prohibited the killing or enslaving of men captured in conquered cities, and the devastation of the territories. Poets, philosophers, artists, and men of intellectual distinction in general, though regarded as enemies, were honored and respected. Temples, priest, and embassies were considered inviolable. The right of sanctuary was universally recognized. Mercy was shown to suppliant and helpless captives. Safe-conducts were granted and respected. Burial of dead was permitted, and graves were unmolested. It was considered wrong to cut off or poison the enemy's water supply, or to make use of poisonous weapons. ENTITLED TO ALL GUARANTEES ACCORDED TO PRISONERS. Impelled by irrepressible endeavors aimed towards the ideal, by the unconquerable natural urge for improvement, by the unquenchable thirstiness of perfection in all orders of life, humanity has been struggling during the last two dozen centuries to develop an international law which could answer more and more faithfully the demands of right and justice as expressed in principles which, weakly enunciated at first in the rudimentary juristic sense of peoples of antiquity, by the inherent power of their universal appeal to human conscience, at last were accepted, recognized, and consecrated by all the civilized nations of the world. Under these principles, Yamashita is entitled to be accorded all the guarantees, protections, and defenses that all prisoners should have, according to the customs and usages, conventions and treaties, judicial decisions and executive pronouncements, and generally accepted opinions of thinkers, legal philosophers and other expounders of just rules and principles of international law. The seriousness or unfathomable gravity of the charges against him must not be taken into consideration in order that true justice may be administered in this case. TREATMENT OF WAR CRIMINALS. "There is very little limitation on what a victorious nation can do with a vanquished State at the close of a war. One shudders to think what Germany and Japan would do if they were the victors! But the common law of nations probably requires a fair trial of offenders against war law as a prerequisite to punishment for alleged offenses; and the Geneva Convention so prescribed in the case of POWs. But in the final analysis a decent respect for the opinion of mankind and the judgment of history is, in effect, a victorious belligerent's main limitation on its treatment of the surrendered at the close of a war; and this is self-imposed.” (Sheldon Glueck, War Criminals). "Formalized vengeance can bring only ephemeral satisfaction, with every probability of ultimate regret; but vindication of law through legal process may contribute substantially to the re-establishment of order and decency in international relations." (Report of the Subcommittee on the Trial and Punishment of War Crimes). “Centuries of civilization stretched between the summary slaying of the defeated in a war, and the employment of familiar process and protections of justice according to law to air the extent and nature of individual guilt … and in the civilized administration of justice, even the most loathsome criminal caught redhanded must be given his day in court and an opportunity to interpose such defenses as he may have." (Sheldon Glueck) TRIAL TO BE HELD WHERE THE ATROCITIES WERE DONE. The vast majority of offenders will be tried in the domestic criminal or military tribunals of the injured nations. President Roosevelt, in condemning the crimes committed against the civil population in
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occupied lands, announced that "the time will come when the criminals will have to stand in courts of law in the very countries which they are now oppressing, and to answer for their acts." INTERNATIONAL TRIBUNAL. At the end of World War I, some American members of the commission on responsibilities opposed the creation of an international high tribunal on the grounds that it was unprecedented and that there existed no international statute or convention making violations of the laws and customs of warfare international crimes, defining such offenses more specifically than the definitions to be found in the prohibitions of the unwritten or written law of nations, affixing a specific punishment to each crime, and giving jurisdiction to a world court. But Dr. Glueck believes that: “Provided the international tribunal affords as adequate a trial as the accused would have had in the court of any injured belligerent, he has no valid ground for complaint… all courts were at one time unprecedented. The problems presented by our epoch are unprecedented… Can history show a better age than our own to initiate a series of much-needed precedents? Few symbols of this new era which heralds the neighborly cooperation of civilized peoples in the vindication of the laws of civilized nations would be more impressive than an international criminal court, in which the plaintiff would be the world community… The international criminal court would be a more vivid symbol of the reign of justice of an international plane than even the permanent court at The Hague has been. In domestic polity, the administration of criminal justice is the strongest pillar of government. The doing of justice on an international plane and under international auspices is even more important. It is indispensable to the survival, in the intercourse of nations, of the very traditions of law and justice… The peerless and efficient administration of justice in the case of Axis war criminals is today indispensable as a token to the peoples of the world, a sign that crimes committed by one country's subject against the people of another member of the family of nations will be relentlessly punished even though they run into huge numbers, were committed by men in uniform, and are instigated by a Fuehrer endowed by himself and his intoxicated followers with the attributes of a demigod." "Adequate law for use by an international court now exists; and its enforcement by such a tribunal would violate no fundamental tenets of civilized nations. The law for an international tribunal can be drawn from the rich reservoirs of common and conventional law of nations and the principles, doctrines, and standards of criminal law that constitute the common denominator of all civilized penal codes… The punishment … to be imposed by the international tribunal could be based either upon the punishments permitted by the law of nations in the case of piracy and violations of the laws and customs of warfare or upon those provided for crimes of similar nature and gravity by the law of the accusing State, taking into account, also, where necessary in individual instances, the law of the defendant's States." ISSUE: WON Yamashita is charged with offenses against the laws of war. HELD: YES. NO SURPRISE. Yamashita cannot allege ignorance of the fact that the criminal acts alleged in the specified charges against him are punishable by law, even in Japan. Since 1882 the Japanese Government had been enforcing a Criminal Code based on the Code of Napoleon of 1811, which punishes arson, rape, and murder/homicide. These offenses and many others, punished by our Penal Code, are known to the Japanese as crimes. WHAT ARE WAR CRIMES. From the Lauterpacht edition of Oppenheim's International Law: "SEC. 251. … war crimes are such hostile or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders. They include acts contrary to International Law perpetrated in violation of the law of the criminal's own State… as well as criminal acts contrary to the laws of war committed by order and on behalf of the enemy State. To that extent the notion of war crimes is based on the view that States and their organs are subject to criminal responsibility under International Law. "SEC. 253. The fact that a rule of warfare has been violated in pursuance of an order of the belligerent Government or of an individual belligerent commander does not deprive the act in question of its character as a war crime; neither does it, in principle, confer upon the perpetrator immunity from punishment by the injured belligerent… Undoubtedly, a Court confronted with the plea of superior orders adduced in justification of a war crime is bound to take into consideration the fact that obedience to military orders, not obviously unlawful, is the duty of every member of the armed forces and that the latter cannot, in conditions of war discipline, be expected to weigh scrupulously the legal merits of the order received; that rules of warfare are often controversial; and that an act otherwise amounting to a war crime may have been executed in obedience to orders conceived as a measure of reprisals. Such circumstances are probably in themselves sufficient to divest the act of the stigma of a war crime…However, subject
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to these qualifications, the question is governed by the major principle that members of the armed forces are bound to obey lawful orders only and that they cannot therefore escape liability if, in obedience to a command, they commit acts which both violate unchallenged rules of warfare and outrage the general sentiment of humanity. To limit liability to the person responsible for the order may frequently amount, in practice, to concentrating responsibility on the head of the State whose accountability, from the point of view of both international and constitutional law, is controversial. "SEC. 257. All war crimes may be punished with death, but belligerents may, of course, inflict a more lenient punishment, or commute a sentence of death into a more lenient penalty. If this be done and imprisonment take the place of capital punishment, the question arises whether persons so imprisoned must be released at the end of the war, although their term of imprisonment has not yet expired. Some answer this question in the affirmative, maintaining that it could never be lawful to inflict a penalty extending beyond the duration of the war. But it is believed that the question has to be answered in the negative. If a belligerent has a right to pronounce a sentence of a capital punishment, it is obvious that he may select a more lenient penalty and carry it out even beyond the duration of the war. It would in no wise be in the interest of humanity to deny this right, for otherwise belligerents would be tempted always to pronounce and carry out a sentence of capital punishment in the interest of self-preservation. "SEC. 257a. The right of the belligerent to punish, during the war, such war criminals as fall into his hands is a well-recognized principle of International Law. It is a right of which he may effectively avail himself after he has occupied all or part of enemy territory, and is thus in the position to seize war criminals who happen to be there. He may, as a condition of the armistice, impose upon the authorities of the defeated State the duty to hand over persons charged with having committed war crimes, regardless of whether such persons are present in the territory actually occupied by him or in the territory which, at the successful end of hostilities, he is in the position to occupy. For in both cases the accused are, in effect, in his power. And although normally the Treaty of Peace brings to an end the right to prosecute war criminals, no rule of International Law prevents the victorious belligerent from imposing upon the defeated State the duty, as one of the provisions of the armistice or of the Peace Treaty, to surrender for trial persons accused of war crimes. In this, as in other matters, the will of the victor is the law of the Treaty. It is not to be expected that he will concede to the defeated State the corresponding right to punish any war criminals of the victorious belligerent. The resulting inequality is the unavoidable concomitant of the existing imperfections of international organization and of the institution of war itself. But the victorious belligerent may achieve a substantial approximation to justice by making full provision for a fair trial of the surrendered enemy nationals, and by offering to try before his tribunals such members of his own armed forces as are accused of war crimes. Such conduct may go a long way towards reducing substantially the inequality of treatment as between the victor and the vanquished." LAW OF NATIONS NOT YET A COHERENT, FIXED SYSTEM. The permissible acts of warfare are strictly limited. The treaties entered into between members of the family of nations are but specific definitions and reinforcements of the general common law of nations, the "unwritten" rules of warfare, which for centuries have limited the method and manner of conducting wars. The common law of nations, by which all states are and must be bound, dictates that warfare shall be carried on only in accordance with basic considerations of humanity and chivalry. As Dr. Glueck stated, “the law of nations has a long way to go before it can claim to be a coherent and fixed system. Its relevant tenets were developed under the presupposition that members of the community of nations are governed by self-imposed restraints in accordance with international law; but the emergence of states with a national policy of deliberate lawlessness and with their invasion of 'total war in the service of a program of world enslavement, compels a realistic modification of inadequate doctrines and principles of law.” After the first World War, the recommendation that a high tribunal (which would apply the principles of the law of nations, which is the result of established usages among civilized peoples) which would sentence convicted war criminals to such punishment as could be imposed for the offense by any country represented in the tribunal or by the country of the convicted person. This was rejected as (American and Japanese) representatives asked whether international law recognized a penal law which was applicable to those found guilty. But in the Treaty of Versailles there were inserted the punitive articles recognizing the right of the allies: to bring those accused of violating laws and customs of war before military tribunals; to sentence the guilty to "punishments laid down by law;" and providing for the trial of the accused in military tribunals of the power against whose nationals the alleged crimes were committed.

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From all the foregoing, with regards to the petition for a writ of habeas corpus, we conclude: (1) That Yamashita, if he is responsible for the acts imputed to him in the charges filed before the MC can properly and justly be prosecuted and punished for them.
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(2) That the fact that he was the Commander in Chief of a belligerent army does not exempt him from criminal liability either for violations of international law or for the commission of crimes defined and punishable under the laws of the country where committed. (3) That his rights and privileges as a POW, under the Geneva Convention, are not incompatible with not are violated by his prosecution for the international and domestic crimes committed by him. (4) That under the principles of natural law, all persons guilty of such crimes are amenable to be arraigned before a court of justice and, after a fair trial, if found guilty, should bear the full weight of the law. (5) That Yamashita can be prosecuted before the Philippine civil courts in the like manner as a common criminal and be punished under the provisions of the Philippine Penal Code. (6) That the MC set up to try him possesses a jurisdiction which is concurrent with that of the Philippine civil courts, and the choice of the competent tribunal where he should be tried, which is a mere procedural technicality, is left to the wise discretion of the officials in charge of the prosecution. (7) That in violation of the law of nations, the offended party is the people of the whole world, and the case against him could be properly entitled as "Humanity vs. Yamashita," and no person in position to prosecute the violators can honestly shirk the responsibility of relentlessly prosecuting them, lest he be branded with the stigma of complicity. (8) That the absence of a codified International Penal Code or of a criminal law adopted by the comity of nations, with specific penalties for specific and well-defined international crimes, is not a bar to the prosecution of war criminals, as all civilized nations have provided in their laws the necessary punishment for war crimes which, for their very nature, cease to be lawful acts of war, and become ordinary crimes with the extraordinary character of having been committed in connection with war, which should be considered as an aggravating circumstance. ISSUE: WON the SC has jurisdiction to take cognizance of this case. HELD: YES. EXERCISE OF JUDICIAL POWER. The petition pertains to a judicial case wherein justice is to be administered. It is a criminal case initiated for Yamashita’s prosecution and punishment. The case calls for the exercise of the judicial power, one of the three government powers. Under the Constitution, judicial power is primarily vested in the Supreme Court, which can exclusively exercise the whole power. But it also authorizes the enactment of laws sharing the power to inferior courts, which include all other courts and tribunals of all description, whether ordinary or extraordinary, whether civil or criminal, whether industrial or military, whether designated as "courts" or simply as "commissions." The Constitution (Art. VIII, Sec. 2) provides that the Congress is powerless to abolish, to review, revise, reverse, modify, or affirm any and all actuations of judicial nature of Styer and the MC before whom Yamashita is tried for his life. In fact, this Court's jurisdiction extends, not only to courts and judicial institutions, but to all persons and agencies which form part of the whole machinery of the administration of justice, in so far as is necessary to the administration of justice. JURISDICTION OVER THE PARTIES. We have jurisdiction over the person Styer, not as to the discharge of his military functions and duties, but regarding his official acts in connection with the administration of justice in the criminal case against Yamashita, and that jurisdiction became effective despite his refusal to sign receipt for the summons and his subordinate officers’ refusal to accept said summons. No one questions our jurisdiction over the person of Yamashita, he having voluntarily submitted himself to it by his petition. With respect to the MC, it is a proper party respondent and Yamashita should have included it as among the party respondents. But this omission is just a technical error of no vital consequence, because under the judicial rules, we can order the inclusion and the summoning of said military commission. Regarding the fear raised by the amicus curiae that this Court’s orders might be disregarded by the concerned military officers (i.e. Styer’s refusal to receive summons), the answer is simple. Quoting Raquiza: “…No one and nothing in the whole world… shall be powerful enough to make us flinch from complying with our plain duty as Justices of the Supreme Court. We must do our duty as our conscience dictates, without fear nor favor. It is our duty to make reason and right supreme, regardless of consequences. Law and justice might suffer setbacks, endure eclipses, but at the end they shall reign with all the splendors of real majesty." We recognize no one to be above the law. Mere military might cannot change and nullify the course of justice. In the long run, everybody must have to bow and prostrate himself before the supreme majesty of the law.

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ISSUE: WON the petition for habeas corpus is proper. HELD: NO.
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NOT A PROPER QUESTION. In praying for a writ of habeas corpus, he wants us to order that he be returned from the status of an accused war criminal to that of a POW. He is not seeking release from confinement, thus the petition must be denied. The purpose of the writ is to restore liberty to a person who is being deprived of it without due process of law. Such is not the case here. He does not complain of any illegal detention or deprivation of personal freedom. He is deprived of his liberty because he is, according to his own allegation, a POW. Whether or not he should be accused as a war criminal is not a proper question to be raised in habeas corpus proceeding. The fact that he is an accused war criminal does not change his status as a war prisoner. He remains to be so, whether he is prosecuted as a war criminal or not. Not having lost his status as a war prisoner because he was placed and regarded as a war criminal, there is no reason for ordering his reversion to a status which he did not cease to retain since his surrender or capture. ISSUE: WON the Military Commission has jurisdiction. HELD: YES. MACARTHUR WITH AUTHORITY. The MC conducting the trial has jurisdiction to try him for the crimes alleged in the 123 items in the specified charges filed against him. From Yamashita’s very allegations and exhibits it appears that the MC was created and organized by orders of Gen. MacArthur, who has authority to convene an MC. NOT PREREQUISITES. Yamashita contends that the absence of martial law, military government, and active hostilities in the Philippines means that there was no authority to appoint the MC, thus it lacks jurisdiction. We don’t agree. These are not prerequisites for exercising the power of appointing a MC. In the absence of pre-established tribunals clothed with authority to try war criminals, MCs may be established for said purpose, and, unless organized by the Chief Executive himself, they may be organized by the military Commander in Chief (namely MacArthur), representing the Chief Executive. ISSUE: WON the rules of procedure and evidence followed by the Military Commission denied Yamashita a fair trial. HELD: YES. COLLECTIVE RESPONSIBILITY. Several features of the regulations governing the trial of war criminals must be challenged. Section 4-b on Jurisdiction provides: "Any military or naval unit or any official or unofficial group or organization, whether or not still in existence, may be charged with criminal acts or complicity therein and tried by a Military Commission." This advances the principle of collective responsibility in contrast to the principle of individualized criminal responsibility. Under the principle of individualized criminal responsibility, no person may be convicted of any offense without due process of law and without proving in said process, in which he should also enjoy the guarantee of equal protection of the laws, that he is personally guilty of the offense. Under the principle of collective criminal responsibility, any member of any social group or organization may be convicted without any hearing if, in a process where he did not have his day in court, the social group or any other member thereof is found guilty of an offense (ex. when a barrio was suspected of harboring guerrillas, all the houses were burned).This principle violates the constitutional guarantee of due process of law and, therefore, we should have issued a writ of prohibition enjoining the Military Commission from exercising this unconstitutional jurisdiction. VIOLATE DUE PROCESS, RIGHT TO MEET WITNESSES. Section 16 on Evidence provides what may be admitted as evidence: "Any document which appears to the commission to have been signed or issued officially by any officer, department, agency, or member of the armed forces of any government, without proof of the signature or of the issuance of the document." This is a denial of the due process of law constitutionally guaranteed to all persons. The authenticity or genuineness of a document is an essential element before it may be admitted as evidence. Proof of signature or of the issuance of the document is essential to show its genuineness. The following may also be admitted as evidence according to section 16 (3): "Affidavits, depositions, or other statements taken by an officer detailed for that purpose by military authority" And also under 16(4): "Any diary, letter or other document appearing to the commission to contain information relating to the charge.” These are clear violations of the constitutional guarantee that in all criminal prosecutions the accused shall enjoy the right to meet the witnesses face to face. The admission of the evidence abovementioned must be prohibited, and that a writ of prohibition issued by this Court is a proper remedy. HEARSAY AS EVIDENCE. Section 16-d provides: "If the accused is charged with an offense involving concerted criminal action upon the part of a military or naval unit, or any group or organization, evidence which has been given previously at a trial of any other member of that unit, group or organization, relative to that concerted offense, may be received as prima facie evidence that the accused likewise is guilty of that offense." In section 16-e, the objectionable feature of a hearsay evidence is aggravated by the
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adherence to the principle of collective criminal responsibility. It provides: "The findings and judgment of a commission in any trial of a unit, group or organization with respect to the criminal character, purpose or activities thereof shall be given full faith and credit in any subsequent trial by that or any other commission of an individual person charged with criminal responsibility through membership in that unit, group or organization. Upon proof of membership in such unit, group or organization convicted by a commission, the burden of proof shall shift to the accused to establish any mitigating circumstances relating to his membership or participation therein." RIGHTS FOR ALL. Yamashita is entitled to all the safeguards of a fair trial. The fundamental rights and freedoms guaranteed in the Charter of the United Nations are guaranteed to all human beings, without exception. Quoting Pres. Truman, “Liberty knows no race, creed or class in our country or in the world… Triumph over the enemy has not dispelled every difficulty. Many vital and farreaching decisions await us as we strive for a just and enduring peace. We will not fail if we preserve, in our own land and throughout the world, the same devotion to the essential freedoms and rights of mankind which sustained us throughout the way and brought us final victory." PERFECTO PONTIFICATES. If Yamashita is tried and convicted under a process in which some of the recognized essential guarantees for a fair trial are violated, it would produce a result opposite that expected by those who are following up the trials of all war criminals; the arousing of a deep-rooted universal conviction that law must be supreme and that justice should be equally administered to each and every member of humanity. The peoples of all nations who are keenly watching Yamashita’s prosecution should be convinced, by conclusive evidence, that said prosecution is not a mere parody of the administration of justice, devised to disguise the primitive impulses of vengeance and retaliation, the instinctive urge to crush at all costs, no matter what the means, a hated fallen enemy. The prosecution, trial, and conviction of Yamashita must impress all the peoples of the world that the principle of law is paramount, and supersedes and wipes out all other considerations in dealing with war or common criminals. Otherwise, their faith in the supremacy of law as the invulnerable bulwark of all fundamental human rights will be shaken, and the moral position of the victorious United Nations, the ethical value of the grandiose pronouncements of their great leaders, and the profound significance of the lofty ideals for which millions of their soldiers have fought and died, will be weakened and diminished to such an extent as to make barren all the tremendous sacrifices made by so many countries and so many peoples in the last global hecatomb. From all the foregoing, when the resolution to dispose of this case was put to a vote, we concurred in the denial of the petition for a writ of habeas corpus, and we voted for the granting of the writ of prohibition in order that the objectionable features in the trial before the Military Commission may be eliminated, so that Yamashita may be given the full justice due to all human beings.

NORTH SEA CONTINENTAL SHELF CASES
(Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) International Court of Justice, February 20, 1969. Note: reference to paragraph # (i.e. par. 12) indicates the numbered paragraphs in the original, if you want the complete text. The 3 maps referred to are also in the original. D & N means Denmark and the Netherlands. NATURE OF ACTION. By the 2 Special Agreements respectively concluded between the Kingdom of Denmark and the Federal Republic of Germany, and between the Federal Republic and the Kingdom of the Netherlands, the Parties have submitted to the Court certain differences concerning 'the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them'-with the exception of those areas, situated in the immediate vicinity of the coast, which have already been the subject of delimitation by two agreements dated Dec. 1, 1964, and June 9, 1965, concluded in the one case between the Federal Republic and the Netherlands, and in the other between the Federal Republic and Denmark. It is in respect of the delimitation of the continental shelf areas lying beyond and to seaward of those affected by the partial boundaries thus established, that the Court is requested by each of the two Special Agreements to decide what are the applicable 'principles and rules of international law'. The Court is not asked actually to delimit the further boundaries which will be involved, this task being reserved by the Special Agreements to the Parties, which undertake to effect such a delimitation 'by agreement in pursuance of the decision requested from the ... Court'-that is to say on the basis of, and in accordance with, the principles and rules of international law found by the Court to be applicable.
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GERMANY’S ARGUMENT. “The delimitation of the continental shelf between the Parties in the North Sea is governed by the principle that each coastal State is entitled to a just and equitable share.” The method of determining continental shelf boundaries by the equidistance method, in conformity with the principle of Article 6, paragraph 2, of the Continental Shelf Convention, had not become customary international law and was not under the circumstances the appropriate method. The equidistance method could not be used where it would not achieve a just and equitable apportionment of the shelf. 1. The delimitation of the continental shelf between the Parties in the North Sea is governed by the principle that each coastal State is entitled to a just and equitable share. 2. (a) The method of determining boundaries of the continental shelf in such a way that every point of the boundary is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured (equidistance method) is not a rule of customary international law. (b) The rule contained in the second sentence of paragraph 2 of Article 6 of the Continental Shelf Convention, prescribing that in the absence of agreement, and unless another boundary is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance, has not become customary international law. (c) Even if the rule under (b) would be applicable between the Parties, special circumstances within the meaning of that rule would exclude the application of the equidistance method in the present case. 3. (a) The equidistance method cannot be used for the delimitation of the continental shelf unless it is established by agreement, arbitration, or otherwise, that it will achieve a just and equitable apportionment of the continental shelf among the States concerned. (b) As to the delimitation of the continental shelf between the Parties in the North Sea, the Kingdom of Denmark and the Kingdom of the Netherlands cannot rely on the application of the equidistance method, since it would not lead to an equitable apportionment. 4. Consequently, the delimitation of the continental shelf in the North Sea between the Parties is a matter which has to be settled by agreement. This agreement should apportion a just and equitable share to each of the Parties in the light of all factors relevant in this respect.' DENMARK AND NETHERLANDS’ ARGUMENT. The delimitation should be governed by the principle of Art. 6, par. 2, and that where the Parties were in disagreement as to the boundary and special circumstances did not justify another boundary, then “the boundary between them is to be determined by the application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. The boundary should be determined “on the basis of the exclusive rights of each Party over the continental shelf adjacent to its coast and of the principle that the boundary is to leave to each Party every point of the continental shelf which lies nearer to its coast than to the coast of the other Party.” FEATURES OF THE NORTH SEA. Per Art. 4 of the North Sea Policing of Fisheries Convention of May 6, 1882, the North Sea, which lies between continental Europe and Great Britain in the east-west direction, is roughly oval in shape and stretches from the straits of Dover northwards to a parallel drawn between a point immediately north of the Shetland Islands and the mouth of the Sogne Fiord in Norway, about 75 km above Bergen, beyond which is the North Atlantic Ocean. In the extreme northwest, it is bounded by a line connecting the Orkney and Shetland island groups; while on its north-eastern side, the line separating it from the entrances to the Baltic Sea lies between Hanstholm at the north-west point of Denmark, and Lindesnes at the southern tip of Norway. Eastward of this line the Skagerrak begins. Thus, the North Sea has to some extent the general look of an enclosed sea without actually being one. Round its shores are situated, on its eastern side and starting from the north, Norway, Denmark, the Federal Republic of Germany, the Netherlands, Belgium and France; while the whole western side is taken up by Great Britain, together with the island groups of the Orkneys and Shetlands. From this it will be seen that the continental shelf of the Federal Republic is situated between those of Denmark and the Netherlands. SURROUNDINGS. The waters of the North Sea are shallow, and the whole seabed consists of continental shelf at a depth of less than 200 metres, except for the formation known as the Norwegian Trough, a belt of water 200-650 metres deep, fringing the southern and south-western coasts of Norway to a width averaging about 80-100 km. Much the greater part of this continental shelf has already been the subject of delimitation by a series of agreements concluded between the UK (which, as stated, lies along the whole western side of it) and certain of the States on the eastern side, namely Norway, Denmark and the Netherlands. These 3 delimitations were carried out by the drawing of what are known as 'median lines' which, for immediate present purposes, may be described as boundaries drawn between the continental shelf areas of 'opposite' States, dividing the intervening spaces equally between them. These lines are shown on Map 1 on page 594, together with a similar line, also established by agreement, drawn between the shelf areas of Norway and Denmark. Theoretically it would be possible also to draw the following median lines in the North Sea, namely UK/Federal Republic (which would lie east of the present line UK/Norway-Denmark*Most of the contents of this reviewer would not be possible without the efforts of UP Law 2009B. Edited and reformatted by

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Netherlands); Norway/Federal Republic (which would lie south of the present line Norway/Denmark); and Norway/Netherlands (which would lie north of whatever line is eventually determined to be the continental shelf boundary between the Federal Republic and the Netherlands). Even if these median lines were drawn however, the question would arise whether the UK, Norway and the Netherlands could take advantage of them as against the parties to the existing delimitations, since these lines would, it seems, in each case lie beyond (i.e., respectively to the east, south and north of) the boundaries already effective under the existing agreements at present in force (see Map 2 on page 595). BOUNDARIES. In addition to the partial boundary lines FederalRepublic/Denmark and Federal Republic/Netherlands, which, as mentioned in par. 1 above, were respectively established by the agreements of June 9, 1965 and Dec. 1, 1964, and which are shown as lines A-B and C-D on Map 3 on page 596, another line has been drawn in this area, namely that represented by the line E-F on that map. This line, which divides areas respectively untimed (to the north of it) by Denmark, and (to the south of it) by the Netherlands, is the outcome of an agreement between those two countries dated Mar. 31, 1966, reflecting the view taken by them as to what are the correct boundary lines between their respective continental shelf areas and that of the Federal Republic, beyond the partial boundaries A-B and C-D already drawn. These further and unagreed boundaries to seaward, are shown on Map 3 by means of the dotted lines B-E and D-E. They are the lines, the correctness of which in law the Court is in effect, though indirectly, called upon to determine. Also shown on Map 3 are the two pecked lines B-F and D-F, representing approximately the boundaries which the Federal Republic would have wished to obtain in the course of the negotiations that took place between the Federal Republic and the other two Parties prior to the submission of the matter to the Court. The nature of these negotiations must now be described. EQUIDISTANCE METHOD. Under the agreements of December 1964 and June 1965, already mentioned, the partial boundaries represented by the map lines A-B and C-D had, according to the information furnished to the Court by the Parties, been drawn mainly by application of the principle of equidistance, using that term as denoting the abstract concept of equidistance. A line so drawn, known as an 'equidistance line', may be described as one which leaves to each of the parties concerned all those portions of the continental shelf that are nearer to a point on its own coast than they are to any point on the coast of the other party. An equidistance line may consist either of a 'median' line between 'opposite' States, or of a 'lateral' line between 'adjacent' States. In certain geographical configurations of which the Parties furnished examples, a given equidistance line may partake in varying degree of the nature both of a median and of a lateral line. There exists nevertheless a distinction to be drawn between the two, which will be mentioned in its place. NEGOTIATIONS FAIL. Negotiations between the Parties for the prolongation of the partial boundaries broke down mainly because Denmark and the Netherlands respectively wished this prolongation also to be effected on the basis of the equidistance principle,and this would have resulted in the dotted lines B- E and D-E, shown on Map 3; whereas the Federal Republic considered that such an outcome would be inequitable because it would unduly curtail what the Republic believed should be its proper share of continental shelf area, on the basis of proportionality to the length of its North Sea coastline. It will be observed that neither of the lines in question, taken by itself, would produce this effect, but only both of them together-an element regarded by Denmark and the Netherlands as irrelevant to what they viewed as being 2 separate and self-contained delimitations, each of which should be carried out without reference to the other. PROBLEM: UNEQUAL SHARES. The reason for the result that would be produced by the two lines B-E and D-E, taken conjointly, is that in the case of a concave or recessing coast such as that of the Federal Republic on the North Sea, the effect of the use of the equidistance method is to pull the line of the boundary inwards, in the direction of the concavity. Consequently, where two such lines are drawn at different points on a concave coast, they will, if the curvature is pronounced, inevitably meet at a relatively short distance from the coast, thus causing the continental shelf area they enclose, to take the form approximately of a triangle with its apex to seaward and, as it was put on behalf of the Federal Republic, 'cutting off' the coastal State from the further areas of the continental shelf outside of and beyond this triangle. The effect of concavity could of course equally be produced for a country with a straight coastline if the coasts of adjacent countries protruded immediately on either side of it. In contrast to this, the effect of coastal projections, or of convex or outwardly curving coasts such as are, to a moderate extent, those of Denmark and the Netherlands, is to cause boundary lines drawn on an equidistance basis to leave the coast on divergent courses, thus having a widening tendency on the area of continental shelf off that coast. These two distinct effects, which are shown in sketches I-III to be found on page 16, are directly attributable to the use of the equidistance method of delimiting continental shelf boundaries off recessing or projecting coasts. It goes without saying that on these types of coasts the equidistance method produces exactly similar effects in the delimitation of the lateral boundaries of the territorial sea of the States concerned. However, owing to the very close proximity of such waters to the coasts concerned, these effects are much less marked and may be very slight,-and there are other aspects involved, which will be considered in their place. It will suffice to mention here that, for instance, a deviation from a line
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drawn perpendicular to the general direction of the coast, of only 5 km, at a distance of about 5 km from that coast, will grow into one of over 30 at a distance of over 100 km. COURT ACTION. After the negotiations, separately held between the Federal Republic and the other 2 Parties respectively, had in each case, failed to result in any agreement about the delimitation of the boundary extending beyond the partial one already agreed, tripartite talks between all the Parties took place in The Hague in February-March 1966, in Bonn in May and again in Copenhagen in August. These also proving fruitless, it was then decided to submit the matter to the Court. In the meantime the Governments of Denmark and the Netherlands had, by means of the agreement of Mar. 31, 1966 (par. 5), proceeded to a delimitation as between themselves of the continental shelf areas lying between the apex of the triangle notionally ascribed by them to the Federal Republic (point E on Map 3) and the median line already drawn in the North Sea, by means of a boundary drawn on equidistance principles, meeting that line at the point marked F on Map 3. On May 25, 1966, the Government of the Federal Republic, taking the view that this delimitation was res inter alios acta, notified the Governments of Denmark and the Netherlands, by means of an aide-memoire, that the agreement thus concluded could not 'have any effect on the question of the delimitation of the German-Netherlands or the German-Danish parts of the continental shelf in the North Sea'. In pursuance of the tripartite arrangements that had been made at Bonn and Copenhagen, Special Agreements for the submission to the Court of the differences involved were initialed in Aug. 1966 and signed on Feb. 2, 1967. By a tripartite Protocol signed the same day it was provided (a) that the Government of the Kingdom of the Netherlands would notify the 2 Special Agreements to the Court, in accordance with Art. 40, par. 1, of the Court's Statute, together with the text of the Protocol itself; (b) that after such notification, the Parties would ask the Court to join the two cases; and (c) that for the purpose of the appointment of a judge ad hoc, the Kingdoms of Denmark and the Netherlands should be considered as being in the same interest within the meaning of Art. 31, par. 5, of the Court's Statute. Following upon these communications, duly made to it in the implementation of the Protocol, the Court, by an Order dated Apr. 26, 1968, declared Denmark and the Netherlands to be in the same interest, and joined the proceedings in the 2 cases. DENMARK & NETHERLANDS. The whole matter is governed by a mandatory rule of law which, reflecting the language of Art. 6 of the Convention on the Continental Shelf concluded at Geneva on Apr. 29, 1958, was designated by them as the 'equidistance-special circumstances' rule. According to this contention, 'equidistance' is not merely a method of the cartographical construction of a boundary line, but the essential element in a rule of law which may be stated as follows,-namely that in the absence of agreement by the Parties to employ another method or to proceed to a delimitation on an ad hoc basis, all continental shelf boundaries must be drawn by means of an equidistance line, unless, or except to the extent to which, 'special circumstances' are recognized to exist,an equidistance line being, it will be recalled, a line every point on which is the same distance away from whatever point is nearest to it on the coast of each of the countries concerned-or rather, strictly, on the baseline of the territorial sea along that coast. As regards what constitutes 'special circumstances', all that need be said at this stage is that according to the view put forward on behalf of Denmark and the Netherlands, the configuration of the German North Sea coast, its recessive character, and the fact that it makes nearly a right-angled bend in mid-course, would not of itself constitute, for either of the two boundary lines concerned, a special circumstance calling for or warranting a departure from the equidistance method of delimitation: only the presence of some special feature, minor in itself-such as an islet or small protuberance-but so placed as to produce a disproportionately distorting effect on an otherwise acceptable boundary line would, so it was claimed, possess this character. THEIR BASIS. These various contentions, together with the view that a rule of equidistance-special circumstances is binding on the Federal Republic, are founded by Denmark and the Netherlands partly on the 1958 Geneva Convention on the Continental Shelf already mentioned (preceding paragraph), and partly on general considerations of law relating to the continental shelf, lying outside this Convention. Similar considerations are equally put forward to found the contention that the delimitation on an equidistance basis of the line E-F (Map 3) by the Netherlands-Danish agreement of Mar. 31, 1966 (par. 5 above) is valid erga omnes, and must be respected by the Federal Republic unless it can demonstrate the existence of juridically relevant 'special circumstances'. GERMANY. While recognizing the utility of equidistance as a method of delimitation, and that it can in many cases be employed appropriately and with advantage, denies its obligatory character for States not parties to the Geneva Convention, and contends that the correct rule to be applied, at any rate in such circumstances as those of the North Sea, is one according to which each of the States concerned should have a 'just and equitable share' of the available continental shelf, in proportion to the length of its coastline or sea-frontage. It was also contended that in a sea shaped as is the North Sea, the whole bed of which, except for the Norwegian Trough, consists of continental shelf at a depth of less than 200 metres, and where the situation of the circumjacent States causes a natural convergence of their respective continental shelf areas, towards a central point situated on the median line of the whole seabed-or at any rate in those localities where this is the case-each of the States concerned is entitled to a continental
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shelf area extending up to this central point (in effect a sector), or at least extending to the median line at some point or other. In this way the 'cut-off' effect, of which the Federal Republic complains, caused, as explained in par. 8, by the drawing of equidistance lines at the two ends of an inward curving or recessed coast, would be avoided. As a means of giving effect to these ideas, it proposed the method of the 'coastal front', or facade, constituted by a straight baseline joining these ends, upon which the necessary geometrical constructions would be erected. Alternatively, the Federal Republic claimed that if, contrary to its main contention, the equidistance method was held to be applicable, then the configuration of the German North Sea coast constituted a 'special circumstance' such as to justify a departure from that method of delimitation in this particular case. It said that the claim for a just and equitable share did not in any way involve asking the Court to give a decision ex aequo et bono (which, having regard to the terms of par. 2 of Art. 38 of the Court's Statute, would not be possible without the consent of the Parties),-for the principle of the just and equitable share was one of the recognized general principles of law which, by virtue of par. 1 (c) of the same Article, the Court was entitled to apply as a matter of the justitia distributiva which entered into all legal systems. It appeared, moreover, that whatever its underlying motivation, the claim of the Federal Republic was, at least ostensibly, to a just and equitable share of the space involved, rather than to a share of the natural resources as such, mineral or other, to be found in it, the location of which could not in any case be fully ascertained at present. ISSUE: What principles and rules of international law are applicable to the delimitation of the areas of continental shelf involved? HELD: The Geneva Convention did not embody or crystallize any pre- existing or emergent rule of customary law, according to which the delimitation of continental shelf areas between adjacent States must, unless the Parties otherwise agree, be carried out on an equidistance-special circumstances basis. A rule was of course embodied in Art. 6 of the Convention, but as a purely conventional rule. Whether it has since acquired a broader basis remains to be seen: qua conventional rule however, as has already been concluded, it is not opposable to the Federal Republic. DELIMITATION DEFINED. Delimitation is a process which involves establishing the boundaries of an area already, in principle, appertaining to the coastal State and not the determination de novo of such an area. Delimitation in an equitable manner is one thing, but not the same thing as awarding a just and equitable share of a previously undelimited area, even though in a number of cases the results may be comparable, or even identical. COURT REJECTS GERMANY’S POINT. It considers that, having regard both to the language of the Special Agreements and to more general considerations of law relating to the regime of the continental shelf, its task in the present proceedings relates essentially to the delimitation and not the apportionment of the areas concerned, or their division into converging sectors. INHERENT RIGHT TO TERRITORY. The doctrine of the just and equitable share appears to be wholly at variance with what the Court entertains no doubt is the most fundamental of all the rules of law relating to the continental shelf, enshrined in Art. 2 of the 1958 Geneva Convention, though quite independent of it;-namely that the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. Its existence can be declared (and many States have done this) but does not need to be constituted. Furthermore, the right does not depend on its being exercised. To echo the language of the Geneva Convention, it is 'exclusive' in the sense that if the coastal State does not choose to explore or exploit the areas of shelf appertaining to it, that is its own affair, but no one else may do so without its express consent. EQUITABLE DELIMITATION. It follows that even in such a situation as that of the North Sea, the notion of apportioning an as yet undelimited area, considered as a whole (which underlies the doctrine of the just and equitable share), is quite foreign to, and inconsistent with, the basic concept of continental shelf entitlement, according to which the process of delimitation is essentially one of drawing a boundary line between areas which already appertain to one or other of the States affected. The delimitation itself must indeed be equitably effected, but it cannot have as its object the awarding of an equitable share, or indeed of a share, as such, at all,-for the fundamental concept involved does not admit of there being anything undivided to share out. Evidently any dispute about boundaries must involve that there is a disputed marginal or fringe area, to which both parties are laying claim, so that any delimitation of it which does not leave it wholly to one of the parties will in practice divide it between them in certain shares, or operate as if such a division had been made. But this does not mean that there has been an apportionment of something that previously consisted of an integral, still less an undivided whole.

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DENMARK & NETHERLANDS’S CLAIM. Their general character has already been indicated in par. 13 and 14: the most convenient way of dealing with them will be on the basis of the following question-namely, does the equidistance-special circumstances principle constitute a mandatory rule, either on a conventional or on a customary international law basis, in such a way as to govern any delimitation of the North Sea continental shelf areas between the Federal Republic and the Kingdoms of Denmark and the Netherlands respectively? Whether, in any delimitation of these areas, the Federal Republic is under a legal obligation to accept the application of the equidistance-special circumstances principle? CONVENIENT METHOD, BUT MANDATORY, OBLIGATORY? It has never been doubted that the equidistance method of delimitation is a very convenient one, the use of which is indicated in a considerable number of cases. It constitutes a method capable of being employed in almost all circumstances, however singular the results might sometimes be, and has the virtue that if necessary,-if for instance, the Parties are unable to enter into negotiations,-any cartographer can de facto trace such a boundary on the appropriate maps and charts, and those traced by competent cartographers will for all practical purposes agree. In short, it would probably be true to say that no other method of delimitation has the same combination of practical convenience and certainty of application. Yet these factors do not suffice of themselves to convert what is a method into a rule of law, making the acceptance of the results of using that method obligatory in all cases in which the parties do not agree otherwise, or in which 'special circumstances' cannot be shown to exist. Juridically, if there is such a rule, it must draw its legal force from other factors than the existence of these advantages, important though they may be. It should also be noticed that the counterpart of this conclusion is no less valid, and that the practical advantages of the equidistance method would continue to exist whether its employment were obligatory or not. LEGAL BASIS FOR INSISTENCE FOR THE EQUIDISTANCE METHOD. The first question to be considered is whether the 1958 Geneva Convention on the Continental Shelf is binding for all the Parties in this case-that is to say whether, as contended by Denmark and the Netherlands, the use of this method is rendered obligatory for the present delimitations by virtue of the delimitations provision (Art. 6) of that instrument, according to the conditions laid down in it. Clearly, if this is so, then the provisions of the Convention will prevail in the relations between the Parties, and would take precedence of any rules having a more general character, or derived from another source. On that basis the Court's reply to the question put to it in the Special Agreements would necessarily be to the effect that as between the Parties the relevant provisions of the Convention represented the applicable rules of law-that is to say constituted the law for the Parties-and its sole remaining task would be to interpret those provisions, in so far as their meaning was disputed or appeared to be uncertain, and to apply them to the particular circumstances involved. ART. 6 OF THE GENEVA CONVENTION, PAR. 2 of which Denmark and the Netherlands contend not only to be applicable as a conventional rule, but also to represent the accepted rule of general international law on the subject of continental shelf delimitation, as it exists independently of the Convention, read as follows: '1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest point of the baselines from which the breadth of the territorial sea of each State is measured. 2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.' The Convention received 46 signatures and, up-to-date, there have been 39 ratifications or accessions. It came into force on June 10, 1964, having received the 22 ratifications or accessions required for that purpose (Art. 11), and was therefore in force at the time when the various delimitations of continental shelf boundaries described earlier (par. 1 and 5) took place between the Parties. But, under the formal provisions of the Convention, it is in force for any individual State only in so far as, having signed it within the timelimit provided for that purpose, that State has also subsequently ratified it; or, not having signed within that time-limit, has subsequently acceded to the Convention. Denmark and the Netherlands have both signed and ratified the Convention, and are parties to it, the former since June 10, 1964, the latter since Mar. 20, 1966. Germany was 1 of the signatories of the Convention, but has never ratified it, and is consequently not a party. D & N INSISTS THAT GERMANY IS ESTOPPED FROM OPPOSING THE CONVENTION’S PROVISIONS. Denmark and the Netherlands admit that in these circumstances the Convention cannot, as such, be binding on the Federal Republic, in the sense of the Republic
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being contractually bound by it. But it is contended that the Convention, or the regime of the Convention, and in particular of Art. 6, has become binding on the Federal Republic in another way,-namely because, by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the conventional regime; or has recognized it as being generally applicable to the delimitation of continental shelf areas. It has also been suggested that the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as to cause other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken up. It appears to the Court that only the existence of a situation of estoppel could suffice to lend substance to this contention,-that is to say if the Federal Republic were now precluded from denying the applicability of the conventional regime, by reason of past conduct, declarations, etc., which not only clearly and consistently evinced acceptance of that regime, but also had caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice. Of this there is no evidence whatever in the present case. RECOGNITION OF THE CONVENTION CANNOT BE PRESUMED. It is clear that only a very definite, very consistent course of conduct on the part of a state in the situation of the Federal Republic could justify the Court in upholding them; and, if this had existed-that is to say if there had been a real intention to manifest acceptance or recognition of the applicability of the conventional regime-then it must be asked why it was that the Federal Republic did not take the obvious step of giving expression to this readiness by simply ratifying the Convention. In principle, when a number of States, including the one whose conduct is invoked, and those invoking it, have drawn up a convention specifically providing for a particular method by which the intention to become bound by the regime of the convention is to be manifested-namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way. Indeed if it were a question not of obligation but of rights,-if, that is to say, a State which, though entitled to do so, had not ratified or acceded, attempted to claim rights under the convention, on the basis of a declared willingness to be bound by it, or of conduct evincing acceptance of the conventional regime, it would simply be told that, not having become a party to the convention it could not claim any rights under it until the professed willingness and acceptance had been manifested in the prescribed form. EVEN IF RECOGNIZED, EXCLUSIONS PERMITTED. A further point, not in itself conclusive, but to be noted, is that if the Federal Republic had ratified the Geneva Convention, it could have entered-and could, if it ratified now, enter-a reservation to Art. 6, by reason of the faculty to do so conferred by Art. 12 of the Convention. This faculty would remain, whatever the previous conduct of the Federal Republic might have been-a fact which at least adds to the difficulties involved by the Danish-Netherlands contention. EXAMPLES OF GERMANY’S “ACCEPTANCE”. Little useful purpose would be served by passing in review and subjecting to detailed scrutiny the various acts relied on by Denmark and the Netherlands as being indicative of the Federal Republic's acceptance of the regime of Art. 6;-for instance that at the Geneva Conference the Federal Republic did not take formal objection to Art. 6 and eventually signed the Convention without entering any reservation in respect of that provision; that it at one time announced its intention to ratify the Convention; that in its public declarations concerning its continental shelf rights it appeared to rely on, or at least cited, certain provisions of the Geneva Convention. In this last connection a good deal has been made of the joint Minute signed in Bonn, on Aug. 4, 1964, between the then-negotiating delegations of the Federal Republic and the Netherlands. But this minute made it clear that what the Federal Republic was seeking was an agreed division, rather than a delimitation of the central North Sea continental shelf areas, and the reference it made to Art. 6 was specifically to the first sentence of par. 1 and 2 of that Article, which speaks exclusively of delimitation by agreement and not at all of the use of the equidistance method. NO ESTOPPEL. None of the elements invoked is decisive; each is ultimately negative or inconclusive; all are capable of varying interpretations or explanations. It would be one thing to infer from the declarations of the Federal Republic an admission accepting the fundamental concept of coastal State rights in respect of the continental shelf: it would be quite another matter to see in this an acceptance of the rules of delimitation contained in the Convention. The declarations of the Federal Republic, taken in the aggregate, might at most justify the view that to begin with, and before becoming fully aware of what the probable effects in the North Sea would be, the Federal Republic was not specifically opposed to the equidistance principle as embodied in Art. 6 of the Convention. But from a purely negative conclusion such as this, it would certainly not be possible to draw the positive inference that the Federal Republic, though not a party to the Convention, had accepted the regime of Art. 6 in a manner binding upon itself. D & N’S PROPOSAL REJECTED. The dangers of the doctrine here advanced by Denmark and the Netherlands, if it had to be given general application in the international law field, hardly need stressing. Moreover, any such inference would immediately be nullified by the fact that, as soon as concrete delimitations of North Sea continental shelf areas began to be carried out, the Federal
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Republic, as described earlier (par. 9 and 12), at once reserved its position with regard to those delimitations which (effected on an equidistance basis) might be prejudicial to the delimitation of its own continental shelf areas. ADDITIONAL ISSUES: DELIMITATION BY AGREEMENT & SPECIAL CIRCUMSTANCES. What is the relationship between the requirement of Art. 6 for delimitation by agreement, and the requirements relating to equidistance and special circumstances that are to be applied in 'the absence of' such agreement,-i.e., in the absence of agreement on the matter, is there a presumption that the continental shelf boundary between any 2 adjacent States consists automatically of an equidistance line,-or must negotiations for an agreed boundary prove finally abortive before the acceptance of a boundary drawn on an equidistance basis becomes obligatory in terms of Art. 6, if no special circumstances exist? The delimitation of the line E-F, as shown on Map 3, which was affected by Denmark and the Netherlands under the agreement of Mar. 31, 1966 already mentioned (par. 5 and 9), to which the Federal Republic was not a party, must have been based on the tacit assumption that, no agreement to the contrary having been reached in the negotiations between the Federal Republic and Denmark and the Netherlands respectively (par. 7), the boundary between the continental shelf areas of the Republic and those of the other two countries must be deemed to be an equidistance one;-or in other words the delimitation of the line E-F, and its validity erga omnes including the Federal Republic, as contended for by Denmark and the Netherlands, presupposes both the delimitation and the validity on an equidistance basis, of the lines B-E and D-E on Map 3, considered by Denmark and the Netherlands to represent the boundaries between their continental shelf areas and those of the Federal Republic. ART. 6 AAPLIES ONLY TO ADJACENT OR OPPOSITE STATES. Since, Art. 6 of the Geneva Convention provides only for delimitation between 'adjacent' States, which Denmark and the Netherlands clearly are not, or between 'opposite' States which, despite suggestions to the contrary, the Court thinks they equally are not, the delimitation of the line E-F on Map 3 could not in any case find its validity in Art. 6, even if that provision were opposable to the Federal Republic. The validity of this delimitation must be sought in some other source of law. It is a main contention of Denmark and the Netherlands that there does in fact exist such another source, furnishing a rule that validates not only this particular delimitation, but all delimitations effected on an equidistance basis,-and indeed requiring delimitation on that basis unless the States concerned otherwise agree, and whether or not the Geneva Convention is applicable. D & N: GERMANY BOUND TO ACCEPT DELIMITATION ON AN EQUIDISTANCE-SPECIAL CIRCUMSTANCES BASIS because the use of this method is not in the nature of a merely conventional obligation, but is, or must now be regarded as involving, a rule that is part of the corpus of general international law;-and, like other rules of general or customary international law, is binding on the Federal Republic automatically and independently of any specific assent, direct or indirect, given by the latter. This contention has both a positive law and a more fundamentalist aspect. As a matter of positive law, it is based on the work done in this field by international legal bodies, on State practice and on the influence attributed to the Geneva Convention itself,-the claim being that these various factors have cumulatively evidenced or been creative of the opinion juris sive necessitatis, requisite for the formation of new rules of customary international law. In its fundamentalist aspect, the view put forward derives from what might be called the natural law of the continental shelf, in the sense that the equidistance principle is seen as a necessary expression in the field of delimitation of the accepted doctrine of the exclusive appurtenance of the continental shelf to the nearby coastal State, and therefore as having an a priori character of so to speak juristic inevitability. The Court will begin by examining this latter aspect, both because it is the more fundamental, and was so presented on behalf of Denmark and the Netherlands-i.e., as something governing the whole case; and because, if it is correct that the equidistance principle is, as the point was put in the course of the argument, to be regarded as inherent in the whole basic concept of continental shelf rights, then equidistance should constitute the rule according to positive law tests also. On the other hand, if equidistance should not possess any a priori character of necessity or inherency, this would not be any bar to its having become a rule of positive law through influences such as those of the Geneva Convention and State practice,and that aspect of the matter would remain for later examination. SOVEREIGNTY. The a priori argument starts from the position described in par. 19, according to which the right of the coastal State to its continental shelf areas is based on its sovereignty over the land domain, of which the shelf area is the natural prolongation into and under the sea. From this notion of appurtenance is derived the view which, as has already been indicated, the Court accepts, that the coastal State's rights exist ipso facto and ab initio without there being any question of having to make good a claim to the areas concerned, or of any apportionment of the continental shelf between different States. This was one reason why the Court felt bound to reject the claim of the Federal Republic (in the particular form which it took) to be awarded a 'just and equitable share' of the shelf areas involved in the present proceedings. Denmark and the Netherlands, for their part, claim that the test of appurtenance must be 'proximity', or more accurately 'closer proximity': all those parts of the shelf being considered as appurtenant
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to a particular coastal State which are (but only if they are) closer to it than they are to any point on the coast of another State. Hence delimitation must be effected by a method which will leave to each one of the States concerned all those areas that are nearest to its own coast. Only a line drawn on equidistance principles will do this. Therefore, it is contended, only such a line can be valid (unless the Parties, for reasons of their own, agree on another), because only such a line can be thus consistent with basic continental shelf doctrine. PROXIMITY. The idea of absolute proximity is certainly not implied by the vague and general terminology employed in the literature of the subject, and in most State proclamations and international conventions and other instruments-terms such as 'near', 'close to its shores', 'off its coast', 'opposite', 'in front of the coast', 'in the vicinity of', 'neighboring the coast', 'adjacent to', 'contiguous', etc.,all of them terms of a somewhat imprecise character which, although they convey a reasonably clear general idea, are capable of a considerable fluidity of meaning. The most frequently employed of these terms, namely 'adjacent to', is evident that by no stretch of imagination can a point on the continental shelf situated say a hundred miles, or even much less, from a given coast, be regarded as 'adjacent' to it, or to any coast at all, in the normal sense of adjacency, even if the point concerned is nearer to some one coast than to any other. This would be even truer of localities where, physically, the continental shelf begins to merge with the ocean depths. Equally, a point inshore situated near the meeting place of the coasts of two States can often properly be said to be adjacent to both coasts, even though it may be fractionally closer to the one than the other. Indeed, local geographical configuration may sometimes cause it to have a closer physical connection with the coast to which it is not in fact closest. There seems in consequence to be no necessary, and certainly no complete, identity between the notions of adjacency and proximity; and therefore the question of which parts of the continental shelf 'adjacent to' a coastline bordering more than one State fall within the appurtenance of which of them, remains to this extent an open one, not to be determined on a basis exclusively of proximity. Even if proximity may afford one of the tests to be applied and an important one in the right conditions, it may not necessarily be the only, nor in all circumstances, the most appropriate one. Hence it would seem that the notion of adjacency, so constantly employed in continental shelf doctrine from the start, only implies proximity in a general sense, and does not imply any fundamental or inherent rule the ultimate effect of which would be to prohibit any State (otherwise than by agreement) from exercising continental shelf rights in respect of areas closer to the coast of another State. MORE FUNDAMENTAL: NATURAL PROLONGATION OR CONTINUATION OF LAND TERRITORY OR DOMAIN OR LAND SOVEREIGHNTY OF THE COASTAL STATE, INTO & UNDER THE HIGH SEAS, VIA THE BED OF ITS TERRITORIAL SEA WHICH IS UNDER FULL SOVEREIGNTY OF THE STATE. There are various ways of formulating this principle, but the underlying idea, namely of an extension of something already possessed, is the same, and it is this idea of extension which is, in the Court's opinion, determinant. Submarine areas do not really appertain to the coastal State because-or not only because-they are near it. They are near it of course; but this would not suffice to confer title, any more than, according to a well-established principle of law recognized by both sides in the present case, mere proximity confers per se title to land territory. What confers the ipso jure title which international law attributes to the coastal State in respect of its continental shelf, is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion,-in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea. From this it would follow that whenever a given submarine area does not constitute a natural-or the most natural-extension of the land territory of a coastal State, even though that area may be closer to it than it is to the territory of any other State, it cannot be regarded as appertaining to that State;-or at least it cannot be so regarded in the face of a competing claim by a State of whose land territory the submarine area concerned is to be regarded as a natural extension, even if it is less close to it. D & N’S AND G’S INTERPRETATIONS OF THE PROLONGATION PRINCIPLE INCORRECT. Denmark and the Netherlands identified natural prolongation with closest proximity and therefrom argued that it called for an equidistance line: the Federal Republic seemed to think it implied the notion of the just and equitable share, although the connection is distinctly remote. (The Federal Republic did however invoke another idea, namely that of the proportionality of a State's continental shelf area to the length of its coastline, which obviously does have an intimate connection with the prolongation principle, and will be considered in its place.) As regards equidistance, it clearly cannot be identified with the notion of natural prolongation or extension, since, as has already been stated (par. 8), the use of the equidistance method would frequently cause areas which are the natural prolongation or extension of the territory of one State to be attributed to another, when the configuration of the latter's coast makes the equidistance line swing out laterally across the former's coastal front, cutting it off from areas situated directly before that front .

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EXAMPLE OF ABOVE SITUATION. The fluidity of all these notions is well illustrated by the case of the Norwegian Trough (par. 4 above). The Court notes that the shelf areas in the North Sea separated from the Norwegian coast by the 80-100 km of the Trough cannot in any physical sense be said to be adjacent to it, nor to be its natural prolongation. They are nevertheless considered by the
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States parties to the relevant delimitations, as described in par. 4, to appertain to Norway up to the median lines shown on Map 1. True these median lines are themselves drawn on equidistance principles; but it was only by first ignoring the existence of the Trough that these median lines fell to be drawn at all. THAT EQUIDISTANCE IS NECESSARY & AN INESCAPABLE A PRIORI ACCOMPANIMENT OF THE BASIC CONSITINENTAL SHELF DOCTRINE IS INCORRECT. It is said not to be possible to maintain that there is a rule of law ascribing certain areas to a State as a matter of inherent and original right (see par. 19 and 20), without also admitting the existence of some rule by which those areas can be obligatorily delimited. The Court cannot accept the logic of this view. The problem arises only where there is a dispute and only in respect of the marginal areas involved. The appurtenance of a given area, considered as an entity, in no way governs the precise delimitation of its boundaries, any more than uncertainty as to boundaries can affect territorial rights. There is for instance no rule that the land frontiers of a State must be fully delimited and defined, and often in various places and for long periods they are not, as is shown by the case of the entry of Albania into the League of Nations (Monastery of Saint Naoum, Advisory Opinion, 1924, P.C.I.J., Series B, No. 9, at p. 10). GENESIS AND DEVELOPMENT OF THE EQUIDISTANCE METHOD OF DELIMITATION. Such a review may appropriately start with the instrument, generally known as the 'Truman Proclamation', issued by the US on Sept. 28, 1945. Although this instrument was not the first or only one to have appeared, it has a special status. Previously, various theories as to the nature and extent of the rights relative to or exercisable over the continental shelf had been advanced by jurists, publicists and technicians. The Truman Proclamation however, soon came to be regarded as the starting point of the positive law on the subject, and the chief doctrine it enunciated, namely that of the coastal State as having an original, natural, and exclusive (in short a vested) right to the continental shelf off its shores, came to prevail over all others, being now reflected in Art. 2 of the 1958 Geneva Convention on the Continental Shelf. WRT the delimitation of lateral boundaries between the continental shelves of adjacent States, a matter which had given rise to some consideration on the technical, but very little on the juristic level, the Truman Proclamation stated that such boundaries 'shall be determined by the US and the State concerned in accordance with equitable principles'. These 2 concepts, of delimitation by mutual agreement and delimitation in accordance with equitable principles, have underlain all the subsequent history of the subject. They were reflected in various other State proclamations of the period, and after, and in the later work on the subject. U.N. INVOLVEMENT. It was in the International Law Commission of the United Nations that the question of delimitation as between adjacent States was first taken up seriously as part of a general jurisdical project; for outside the ranks of the hydrographers and cartographers, questions of delimitation were not much thought about in earlier continental shelf doctrine. Juridical interest was focused mainly on questions as what was the legal basis on which any rights at all in respect of the continental shelf could be claimed, and what was the nature of those rights. As regards boundaries, the main issue was not that of boundaries between States but of the seaward limit of the area in respect of which the coastal State could claim exclusive rights of exploitation. States in most cases had not found it necessary to conclude treaties or legislate about their lateral sea boundaries with adjacent States before the question of exploiting the natural resources of the seabed and subsoil arose;-practice was sparse. NO U.N. RULE PRESCRIBING USE OF A SPECIFIC METHOD. In the records of the International Law Commission, which had the matter under consideration from 1950 to 1956, there is no indication at all that any of its members supposed that it was incumbent on the Commission to adopt a rule of equidistance because this gave expression to, and translated into linear terms, a principle of proximity inherent in the basic concept of the continental shelf, causing every part of the shelf to appertain to the nearest coastal State and to no other, and because such a rule must therefore be mandatory as a matter of customary international law. Such an idea does not seem ever to have been propounded. Had it been, and had it had the self-evident character contended for by Denmark and the Netherlands, the Commission would have had no alternative but to adopt it, and its long continued hesitations over this matter would be incomprehensible. NO PRIORITY TO THE EQUIDISTANCE METHOD. It is moreover, in the present context, a striking feature of the Commission's discussions that during the early and middle stages, not only was the notion of equidistance never considered from the standpoint of its having a priori a character of inherent necessity: it was never given any special prominence at all, and certainly no priority. The Commission discussed various other possibilities as having equal if not superior status such as delimitation by agreement, by reference to arbitration, by drawing lines perpendicular to the coast, by prolonging the dividing line of adjacent territorial waters (the principle of which was itself not as yet settled), and on occasion the Commission seriously considered adopting one or other of these solutions. It was not in fact until after the matter had been referred to a committee of hydrographical experts, which reported in 1953, that the equidistance principle began to take precedence over other possibilities: the Report of the Commission for that year (its principal report on the topic of delimitation as such) makes it clear that
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before this reference to the experts the Commission had felt unable to formulate any definite rule at all, the previous trend of opinion having been mainly in favor of delimitation by agreement or by reference to arbitration. COMMITTEE OF EXPERTS FORMULATES THE METHOD. It was largely because of these difficulties that it was decided to consult the Committee of Experts. Equidistance was in fact only 1 of 4 methods suggested to them, the other 3 being (a) the continuation in the seaward direction of the land frontier between the two adjacent States concerned; (b) the drawing of a perpendicular to the coast at the point of its intersection with this land frontier; and (c) the drawing of a line perpendicular to the line of the 'general direction' of the coast. The matter was not even put to the experts directly as a question of continental shelf delimitation, but in the context of the delimitation of the lateral boundary between adjacent territorial waters, no account being taken of the possibility that the situation respecting territorial waters might be different. COMMITTEE REPORT. The Committee of Experts simply reported that after a thorough discussion of the different methods-(no official records of this discussion)-they had decided that 'the (lateral) boundary through the territorial sea-if not already fixed otherwise-should be drawn according to the principle of equidistance from the respective coastlines'. They added, however, significantly, that in 'a number of cases this may not lead to an equitable solution, which should be then arrived at by negotiation'. Only after that did they add, as a rider to this conclusion, that they had considered it 'important to find a formula for drawing the international boundaries in the territorial waters of States, which could also be used for the delimitation of the respective continental shelves of 2 States bordering the same continental shelf'. In this almost impromptu, and certainly contingent manner was the principle of equidistance for the delimitation of continental shelf boundaries propounded. It is clear from the Report of the Commission for 1953 (par. 50) that the latter adopted it largely on the basis of the recommendation of the Committee of Experts, and even so in a text that gave priority to delimitation by agreement and also introduced an exception in favor of 'special circumstances' which the Committee had not formally proposed. The Court thinks that the experts were actuated by considerations not of legal theory but of practical convenience and cartography of the kind mentioned in par. 22 above. Although there are no official records of their discussions, note the correspondence passing between certain of them and the Commission's Special Rapporteur on the subject, which was deposited by one of the Parties during the oral hearing at the request of the Court. Nor, even after this, when a decision in principle had been taken in favor of an equidistance rule, was there an end to the Commission's hesitations, for as late as 3 years after the adoption of the report of the Committee of Experts, when the Commission was finalizing the whole complex of drafts comprised under the topic of the Law of the Sea, various doubts about the equidistance principle were still being voiced in the Commission, on such grounds for instance as that its strict application would be open, in certain cases, to the objection that the geographical configuration of the coast would render a boundary drawn on this basis inequitable. LIMITATIONS OF THE METHOD. A further point of some significance is that neither in the Committee of Experts, nor in the Commission itself, nor subsequently at the Geneva Conference, does there appear to have been any discussion of delimitation in the context, not merely of 2 adjacent States, but of 3 or more States on the same coast, or in the same vicinity,-from which it can reasonably be inferred that the possible resulting situations, some of which have been described in par. 8 above, were never really envisaged or taken into account. Also, the relevant part of par. 2 of Art. 6 of the Geneva Convention speaks of delimiting the continental shelf of ‘2’ adjacent States (although a reference simply to 'adjacent States' would have sufficed), whereas in respect of median lines the reference in par. 1 of that Art. is to 'two or more' opposite States. EQUIDISTANCE, BASED UPON AGREEMENT & EQUITY, NOT INHERENTLY NECESSARY. At no time was the notion of equidistance as an inherent necessity of continental shelf doctrine entertained. It was, and it really remained to the end, governed by two beliefs;namely, first, that no one single method of delimitation was likely to prove satisfactory in all circumstances, and that delimitation should, therefore, be carried out by agreement (or by reference to arbitration); and secondly, that it should be effected on ST equitable principles. It was in pursuance of the 1 of these beliefs that in the draft that emerged as Art. 6, the Commission gave ND priority to delimitation by agreement,-and in pursuance of the 2 that it introduced the exception in favor of 'special circumstances'. Yet the record shows that, even with these mitigations, doubts persisted, particularly as to whether the equidistance principle would in all cases prove equitable. D & N’S THEORY INVERTS THE TRUE ORDER OF THINGS: so far from an equidistance rule having been generated by an antecedent principle of proximity inherent in the whole concept of continental shelf appurtenance, the latter is rather a rationalization of the former-an ex post facto construct directed to providing a logical juristic basis for a method of delimitation propounded largely for different reasons, cartographical and other. Given also that for the reasons already set out (par. 40-46) the theory cannot be said to be endowed with any quality of logical necessity either, the Court is unable to accept it.
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2 SUBSIDIARY MATTERS. Most of the difficulties felt in the International Law Commission related, as here, to the case of the lateral boundary between adjacent States. Less difficulty was felt over that of the median line boundary between opposite States, although it too is an equidistance line. The continental shelf area off, and dividing, opposite States, can be claimed by each of them to be a natural prolongation of its territory. These prolongations meet and overlap, and can therefore only be delimited by means of a median line; and, ignoring the presence of islets, rocks and minor coastal projections, the disproportionally distorting effect of RD which can be eliminated by other means, such a line must effect an equal division of the particular area involved. If there is a 3 State on 1 of the coasts concerned, the area of mutual natural prolongation with that of the same or another opposite State will be a separate and distinct one, to be treated in the same way. This type of case is therefore different from that of laterally adjacent States on the same coast with no immediately opposite coast in front of it, and does not give rise to the same kind of problem-a conclusion which also finds some confirmation in the difference of language to be observed in the 2 paragraphs of Art. 6 (reproduced in par. 26 above) as respects recourse in the one case to median lines and in the other to lateral equidistance lines, in the event of absence of agreement. If on the other hand, there is no essential difference in the process of delimiting the continental shelf areas between opposite States and that of delimitations between adjacent States, then the results ought in principle to be the same or at least comparable. But in fact, whereas a median line divides equally between the 2 opposite countries areas that can be regarded as being the natural prolongation of the territory of each of them, a lateral equidistance line often leaves to 1 of the States concerned areas that are a natural prolongation of the territory of the other. LATERAL BOUNDARY BETWEEN ADJACENT TERRITORIAL WATERS TO BE DRAWN ON AN EQUIDISTANCE BASIS. As was convincingly demonstrated in the maps and diagrams furnished by the Parties, and as has been noted in par. 8, the distorting effects of lateral equidistance lines under certain conditions of coastal configuration are nevertheless comparatively small within the limits of territorial waters, but produce their maximum effect in the localities where the main continental shelf areas lie further out. There is also a direct correlation between the notion of closest proximity to the coast and the sovereign jurisdiction which the coastal State is entitled to exercise and must exercise, not only over the seabed underneath the territorial waters but over the waters themselves, which does not exist in respect of continental shelf areas where there is no jurisdiction over the superjacent waters, and over the seabed only for purposes of exploration and exploitation. STATUS OF THE PRINCIPLE (WRT DELIMITATION PROVISION) (A) AS IT STOOD WHEN THE CONVENTION WAS DRAWN UP, (B) AS IT RESULTED FROM THE EFFECT OF THE CONVENTION, AND (C) IN THE LIGHT OF STATE PRACTICE SUBSEQUENT TO THE CONVENTION. st The 1 of these questions can conveniently be considered in the form suggested on behalf of Denmark and the Netherlands themselves in the course of the oral hearing, when it was stated that they had not in fact contended that the delimitation article (Art. 6) of the Convention 'embodied already received rules of customary law in the sense that the Convention was merely declaratory of existing rules'. Their contention was, rather, that although prior to the Conference, continental shelf law was only in the formative stage, and State practice lacked uniformity, yet 'the process of the definition and consolidation of the emerging customary law took place through the work of the International Law Commission, the reaction of governments to that work and the proceedings of the Geneva Conference'; and this emerging customary law became 'crystallized in the adoption of the Continental Shelf Convention by the Conference'. COURT REJECTS ABOVE ARGUMENT. The Court cannot accept it as regards the delimitation provision (Art. 6), the relevant parts of which were adopted almost unchanged from the draft of the International Law Commission that formed the basis of discussion at the Conference. The status of the rule in the Convention therefore depends mainly on the processes that led the Commission to propose it. These processes have already been reviewed in connection with the Danish-Netherlands contention of an a priori necessity for equidistance, and the Court considers this review sufficient for present purposes also, in order to show that the principle of equidistance, as it now figures in Art. 6, was proposed by the Commission with considerable hesitation, somewhat on an experimental basis, at most de lege ferenda, and not at all de lege lata or as an emerging rule of customary international law. This is clearly not the sort of foundation on which Art. 6 of the Convention could be said to have reflected or crystallized such a rule. RESERVATIONS POSSIBLE. The foregoing conclusion receives significant confirmation from the fact that Art. 6 is one of those in respect of which, under the reservations article of the Convention (Art. 12) reservations may be made by any State on signing, ratifying or acceding,-for, speaking generally, it is a characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making unilateral reservations may, within certain limits, be admitted;-whereas this cannot be so in the case of general or customary law rules and obligations which, by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favor. Consequently, it is to be expected that when, for whatever reason, rules or obligations of this order are embodied, or are intended to be reflected in certain provisions of a convention, such provisions will figure amongst those in respect
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of which a right of unilateral reservation is not conferred, or is excluded. This expectation is, in principle, fulfilled by Art. 12 of the Geneva Continental Shelf Convention, which permits reservations to be made to all the articles of the Convention 'other than to Art. 1 to 3 inclusive'-these 3 Articles being the ones which, it is clear, were then regarded as reflecting, or as crystallizing, received or at least emergent rules of customary international law relative to the continental shelf, amongst them the question of the seaward extent of the shelf; the jurisdical character of the coastal State's entitlement; the nature of the rights exercisable; the kind of natural resources to which there relate; and the preservation intact of the legal status as high seas of the waters over the shelf, and the legal status of the superjacent air-space. NO RESERVATION, NO PREVIOUSLY EXISTING OR EMERGENT RULES OF LAW. The normal inference would be that any articles that do not figure among those excluded from the faculty of reservation under Art. 12, were not regarded as declaratory of previously existing or emergent rules of law; and this is the inference the Court in fact draws in respect of Art. 6 (delimitation), having regard also to the attitude of the International Law Commission to this provision, as already described in general terms. Naturally this would not of itself prevent this provision from eventually passing into the general corpus of customary international law by one of the processes considered in par. 70-81 below. But what is now under consideration is whether it originally figured in the Convention as such a rule. OTHER EXCLUSIONS. It has been suggested that the inference drawn at the beginning of the preceding paragraph is not necessarily warranted, seeing that there are certain other provisions of the Convention, also not excluded from the faculty of reservation, but which do undoubtedly in principle relate to matters that lie within the field of received customary law, such as the obligation not to impede the laying or maintenance of submarine cables or pipelines on the continental shelf seabed (Art. 4), and the general obligation not unjustifiably to interfere with freedom of navigation, fishing, and so on (Art. 5, par. 1 & 6). These matters however, all relate to or are consequential upon principles or rules of general maritime law, very considerably ante-dating the Convention, and not directly connected with but only incidental to continental shelf rights as such. They were mentioned in the Convention, not in order to declare or confirm their existence, which was not necessary, but simply to ensure that they were not prejudiced by the exercise of continental shelf rights as provided for in the Convention. Another method of drafting might have clarified the point, but this cannot alter the fact that no reservation could release the reserving party from obligations of general maritime law existing outside and independently of the Convention, and especially obligations formalized in Art. 2 of the contemporaneous Convention on the High Seas, expressed by its preamble to be declaratory of established principles of international law. ART. 6-DELIMITATION-DIFFERENT. It does directly relate to continental shelf rights as such, rather than to matters incidental to these; and since it was not, as were Art. 1 to 3, excluded from the faculty of reservation, it is a legitimate inference that it was considered to have a different and less fundamental status and not, like those Articles, to reflect pre-existing or emergent customary law. It was however contended on behalf of Denmark and the Netherlands that the right of reservation given in respect of Art. 6 was not intended to be an unfettered right, and that in particular it does not extend to effecting a total exclusion of the equidistance principle of delimitation,-for, so it was claimed, delimitation on the basis of that principle is implicit in Articles 1 and 2 of the Convention, in respect of which no reservations are permitted. Hence the right of reservation under Art. 6 could only be exercised in a manner consistent with the preservation of at least the basic principle of equidistance. In this connection it was pointed out that, of the no more than 4 reservations so far entered in respect of Art. 6, 1 at least of which was somewhat far reaching, none has purported to effect such a total exclusion or denial. The Court finds this argument unconvincing for a number of reasons. Articles 1 and 2 of the Geneva Convention do not appear to have any direct connection with inter-State delimitation as such. Art. 1 is concerned only with the outer, seaward, limit of the shelf generally, not with boundaries between the shelf areas of opposite or adjacent States. Art. 2 is equally not concerned with such boundaries. The suggestion seems to be that the notion of equidistance is implicit in the reference in par. 2 of Art. 2 to the rights of the coastal State over its continental shelf being 'exclusive'. So far as actual language is concerned this interpretation is clearly incorrect. The true sense of the passage is that in whatever areas of the continental shelf a coastal State has rights, those rights are exclusive rights, not exercisable by any other State. But this says nothing as to what in fact are the precise areas in respect of which each coastal State possesses these exclusive rights. This question, which can arise only as regards the fringes of a coastal State's shelf area is, as explained at the end of par. 20, exactly what falls to be settled through the process of delimitation, and this is the sphere of Art. 6, not Art. 2. No valid conclusions can be drawn from the fact that the faculty of entering reservations to Art. 6 has been exercised only sparingly and within certain limits. This is the affair exclusively of those States which have not wished to exercise the faculty, or which have been content to do so only to a limited extent. Their action or inaction cannot affect the right of other States to enter reservations to whatever is the legitimate extent of the right.
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D & N: EVEN IF, AT THE DATE OF THE GENEVA CONVENTION, NO RULE OF CUSTOMARY INT’L LAW IN FAVOR OF THE EQUIDISTANCE PRINCIPLE, AND NO SUCH RULE WAS CRYSTALLIZED IN ART. 6, SUCH A RULE HAS COME INTO BEING SINCE THE CONVENTION, PARTLY BECAUSE OF ITS OWN IMPACT, PARTLY ON THE BASIS OF SUBSEQUENT STATE PRACTICE,-and that this rule, being now a rule of customary international law binding on all States, including therefore the Federal Republic, should be declared applicable to the delimitation of the boundaries between the Parties' respective continental shelf areas in the North Sea. NORM-CREATING PROVISION? NO. In so far as this contention is based on the view that Art. 6 of the Convention has had the influence, and has produced the effect, described, it clearly involves treating that Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. This process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. This result is not lightly to be regarded as having been attained. AT THE START, IT SHOULD BE NORM-CREATING. It would be necessary that the provision should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law. Considered in abstracto the equidistance principle might be said to fulfill this requirement. Yet in the particular form in which it is embodied in Art. 6, and having regard to the relationship of that Article to other provisions, this must be open to some doubt. In the first place, ND Art. 6 is so framed as to put 2 the obligation to make use of the equidistance method, causing it to come after a primary obligation to effect delimitation by agreement. Such a primary obligation constitutes an unusual preface to what is claimed to be a potential general rule of law. Without attempting to enter into, still less pronounce upon any question of jus cogens, it is well understood that, in practice, rules of international law can, by agreement, be derogated from in particular cases, or as between particular parties,-but this is not normally the subject of any express provision, as it is in Art. 6. Secondly the part played by the notion of special circumstances relative to the principle of equidistance as embodied in Art. 6, and the very considerable, still unresolved controversies as to the exact meaning and scope of this notion, must raise further doubts as to the potentially norm-creating character of the rule. Finally, the faculty of making reservations to Art. 6, while it might not of itself prevent the equidistance principle being eventually received as general law, does add considerably to the difficulty of regarding this result as having been brought about (or being potentially possible) on the basis of the Convention: for so long as this faculty continues to exist, and is not the subject of any revision brought about in consequence of a request made under Art. 13-of which there is at present no official indication-it is the Convention itself which would, for the reasons already indicated, seem to deny to the provisions of Art. 6 the same norm-creating character as, for instance, Art. 1 and 2 possess. WRT THE OTHER ELEMENTS usually regarded as necessary before a conventional rule can be considered to have become a general rule of international law, it might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected. Here however, even if allowance is made for the existence of a number of States to whom participation in the Geneva Convention is not open, or which, by reason for instance of being land-locked States, would have no interest in becoming parties to it, the number of ratifications and accessions so far secured is, though respectable, hardly sufficient. That non-ratification may sometimes be due to factors other than active disapproval of the convention concerned can hardly constitute a basis on which positive acceptance of its principles can be implied: the reasons are speculative, but the facts remain. WRT TIME. It is over 10 years since the Convention was signed, but that it is even now less than 5 since it came into force in June 1964, and that when the present proceedings were brought it was less than 3 years, while less than 1 had elapsed at the time when the respective negotiations between the Federal Republic and the other 2 Parties for a complete delimitation broke down on the question of the application of the equidistance principle. Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked;-and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. WHETHER STATE PRACTICE IN CONTINENTAL SHELF DELIMITATION HAS, SUBSEQUENT TO THE CONVENTION, BEEN OF SUCH A KIND AS TO SATISFY THIS REQUIREMENT? Some 15 cases have been cited in the course of the proceedings, occurring mostly since the
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signature of the 1958 Geneva Convention, in which continental shelf boundaries have been delimited according to the equidistance principle-in the majority of the cases by agreement, in a few others unilaterally-or else the delimitation was foreshadowed but has not yet been carried out. Amongst these 15 are the 4 North Sea delimitations UK/Norway-Denmark-Netherlands, and Norway/Denmark already mentioned in par. 4. But even if these various cases constituted more than a very small proportion of those potentially calling for delimitation in the world as a whole, it is not necessary to enumerate or evaluate them separately, since there are, a priori, several grounds which deprive them of weight as precedents in the present context. NO OBLIGATION, WHETHER PARTY TO THE CONVENTION OR NOT. Over half the States concerned, whether acting unilaterally or conjointly, were or shortly became parties to the Geneva Convention, and were therefore presumably, so far as they were concerned, acting actually or potentially in the application of the Convention. From their action no inference could legitimately be drawn as to the existence of a rule of customary international law in favor of the equidistance principle. As regards those States, on the other hand, which were not, and have not become parties to the Convention, the basis of their action can only be problematical and must remain entirely speculative. Clearly, they were not applying the Convention. But from that no inference could justifiably be drawn that they believed themselves to be applying a mandatory rule of customary international law. There is not a shred of evidence that they did and, as has been seen (par. 22 and 23), there is no lack of other reasons for using the equidistance method, so that acting, or agreeing to act in a certain way, does not of itself demonstrate anything of a juridical nature. MUST BE SETTLED PRACTICE, DONE WITH SENSE OF OBLIGATION. Even if these instances of action by non-parties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris; -for, in order to achieve this result, 2 conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, (ceremonial and protocol) which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty. VIEW OF THE PERMANENT COURT OF INTERNATIONAL JUSTICE IN THE LOTUS CASE adopted: the principle of which is, by analogy, applicable almost word for word, mutatis mutandis, here (P.C.I.J., Series A, No. 10, 1927, at p. 28): 'Even if the rarity of the judicial decisions to be found ... were sufficient to prove ... the circumstance alleged ..., it would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, ...there are other circumstances calculated to show that the contrary is true.' NO LEGAL COMPULSION. In certain cases-not a great number-the States concerned agreed to draw or did draw the boundaries concerned according to the principle of equidistance. There is no evidence that they so acted because they felt legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so-especially considering that they might have been motivated by other obvious factors. USUALLY, OPPOSITE, NOT LATERAL STATES ARE INVOLVED. In almost all of the cases cited, the delimitations concerned were median-line delimitations between opposite States, not lateral delimitations between adjacent States. The case of median-line delimitations between opposite States is different in various respects, and as being sufficiently distinct not to constitute a precedent for the delimitation of lateral boundaries (par.57). In only 1 situation discussed by the Parties does there appear to have been a geographical configuration which to some extent resembles the present one, in the sense that a number of States on the same coastline are grouped around a sharp curve or bend of it. No complete delimitation in this area has however yet been carried out. But the Court is not concerned to deny to this case, or any other of those cited, all evidential value in favor of the thesis of Denmark and the Netherlands. It simply considers that they are inconclusive, and insufficient to bear the weight sought to be put upon them as evidence of such a settled practice, manifested in such circumstances, as would justify the inference that delimitation according to the principle of equidistance amounts to a mandatory rule of customary international law,-more particularly where lateral delimitations are concerned. There are of course plenty of cases of delimitations of waters, as opposed to seabed, being carried out on the basis of equidistance-mostly of internal waters (lakes, rivers, etc.), and mostly median-line cases. The nearest
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analogy is that of adjacent territorial waters, but as already explained (par. 59) the Court does not consider this case to be analogous to that of the continental shelf. IF THE GENEVA CONVENTION WAS NOT IN ITS ORIGINS OR INCEPTION DECLARATORY OF A MANDATORY RULE OF CUSTOMARY INT’L LAW ENJOINING THE USE OF THE EQUIDISTANCE PRINCIPLE FOR THE DELIMITATION OF CONTINENTAL SHELF AREAS BETWEEN ADJACENT STATES, NEITHER HAS ITS SUBSEQUENT EFFECT BEEN CONSTITUTIVE OF SUCH A RULE; AND THAT STATE PRACTICE UP-TODATE HAS EQUALLY BEEN INSUFFICIENT FOR THE PURPOSE. This conclusion, coupled with that reached earlier (par. 56) to the effect that the equidistance principle could not be regarded as being a rule of law on any a priori basis of logical necessity deriving from the fundamental theory of the continental shelf, leads to the final conclusion on this part of the case that the use of the equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings. It becomes unnecessary for the Court to determine whether or not the configuration of the German North Sea coast constitutes a 'special circumstance' for the purposes either of Art. 6 or of any rule of customary international law,-since once the use of the equidistance method of delimitation is determined not to be obligatory in any event, it ceases to be legally necessary to prove the existence of special circumstances in order to justify not using that method. COURT TO GUIDE, NOT DICTATE. The Court is not called upon to delimit the areas of continental shelf appertaining respectively to each Party, and in consequence is not bound to prescribe the methods to be employed for the purposes of such a delimitation. It has to indicate to the Parties the principles and rules of law in the light of which the methods for eventually effecting the delimitation will have to be chosen, by providing the Parties with the requisite directions, without substituting itself for them by means of a detailed indication of the methods to be followed and the factors to be taken into account for the purposes of a delimitation the carrying out of which the Parties have expressly reserved to themselves. DELIMITATION MUST BE THE OBJECT OF AGREEMENT BETWEEN THE STATES CONCERNED, AND THAT SUCH AGREEMENT MUST BE ARRIVED AT IN ACCORDANCE WITH EQUITABLE PRINCIPLES. On a foundation of very general precepts of justice and good faith, actual rules of law are here involved which govern the delimitation of adjacent continental shelves- that is to say, rules binding upon States for all delimitations; in short, it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles, in accordance with the ideas which have always underlain the development of the legal regime of the continental shelf in this field, namely: (a) the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it; (b) the parties are under an obligation to act in such a way that, in the particular case, and taking all the circumstances into account, equitable principles are applied,-for this purpose the equidistance method can be used, but other methods exist and may be employed, alone or in combination, according to the areas involved; (c) for the reasons given in paragraphs 43 and 44, the continental shelf of any State must be the natural prolongation of its land territory and must not encroach upon what is the natural prolongation of the territory of another State. WRT RULE 1, NEGOTIATION. The obligation to negotiate which the Parties assumed by Art. 1, par. 2, of the Special Agreements arises out of the Truman Proclamation, which, (par. 47), must be considered as having propounded the rules of law in this field, but also that this obligation merely constitutes a special application of a principle which underlies all international relations, and which is moreover recognized in Art. 33 of the Charter of the U.N. as one of the methods for the peaceful settlement of international disputes. The fundamental character of this method of settlement is emphasized by the observable fact that judicial or arbitral settlement is not universally accepted. DUTY TO NEGOTIATE. As the Permanent Court of International Justice said in its Order of Aug. 19, 1929 in the case of the Free Zones of Upper Savoy and the District of Gex, the judicial settlement of international disputes 'is simply an alternative to the direct and friendly settlement of such disputes between the parties' (P.C.I.J., Series A, No. 22, at p. 13). Defining the content of the obligation to negotiate, the Permanent Court, in its Advisory Opinion in the case of Railway Traffic between Lithuania and Poland, said that the obligation was 'not only to enter into negotiations but also to pursue them as far as possible with a view to concluding agreements', even if an obligation to negotiate did not imply an obligation to reach agreement (P.C.I.J., Series A/B, No. 42, 1931, at p. 116). Here, whatever the details of the negotiations carried on in 1965 and 1966, they failed of their purpose because the Denmark and the Netherlands, convinced that the equidistance principle alone was applicable, in consequence of a rule binding upon the Federal
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Republic, saw no reason to depart from that rule; and equally, given the geographical considerations stated in the last sentence of par. 7 above, the Federal Republic could not accept the situation resulting from the application of that rule. So far therefore the negotiations have not satisfied the conditions indicated in par. 85 (a), but fresh negotiations are to take place on the basis of the present Judgment. RULE 2, EQUITY. The legal basis of that rule in the particular case of the delimitation of the continental shelf as between adjoining States rests also on a broader basis. Whatever the legal reasoning of a court of justice, its decisions must by definition be just, and therefore in that sense equitable. Nevertheless, when mention is made of a court dispensing justice or declaring the law, what is meant is that the decision finds its objective justification in considerations lying not outside but within the rules, and in this field it is precisely a rule of law that calls for the application of equitable principles. There is consequently no question in this case of any decision ex aequo et bono, such as would only be possible under the conditions prescribed by Art. 38, par. 2, of the Court's Statute. Nor would this be the first time that the Court has adopted such an attitude, as is shown by the following passage from the Advisory Opinion given in the case of Judgments of the Administrative Tribunal of the I.L.O. upon Complaints Made against Unesco (I.C.J. Reports 1956, at p. 100): 'In view of this the Court need not examine the allegation that the validity of the judgments of the Tribunal is vitiated by excess of jurisdiction on the ground that it awarded compensation ex aequo et bono. It will confine itself to stating that, in the reasons given by the Tribunal in support of its decision on the merits, the Tribunal said: 'That redress will be ensured ex aequo et bono by the granting to the complainant of the sum set forth below.' It does not appear from the context of the judgment that the Tribunal thereby intended to depart from principles of law. The apparent intention was to say that, as the precise determination of the actual amount to be awarded could not be based on any specific rule of law, the Tribunal fixed what the Court, in other circumstances, has described as the true measure of compensation and the reasonable figure of such compensation (Corfu Channel case, Judgment of Dec. 15th, 1949, I.C.J. Reports 1949, p. 249).' INEQUITY OF THE EQUIDISTANCE METHOD, IN CERTAIN GEOGRAPHICAL CIRCUMSTANCES: (a) The slightest irregularity in a coastline is automatically magnified by the equidistance line as regards the consequences for the delimitation of the continental shelf. Thus it has been seen in the case of concave or convex coastlines that if the equidistance method is employed, then the greater the irregularity and the further from the coastline the area to be delimited, the more unreasonable are the results produced. So great an exaggeration of the consequences of a natural geographical feature must be remedied or compensated for as far as possible, being of itself creative of inequity. (b) In the case of the North Sea in particular, where there is no outer boundary to the continental shelf, it happens that the claims of several States converge, meet and intercross in localities where, despite their distance from the coast, the bed of the sea still unquestionably consists of continental shelf. A study of these convergences, as revealed by the maps, shows how inequitable would be the apparent simplification brought about by a delimitation which, ignoring such geographical circumstances, was based solely on the equidistance method. IS IT NECESSARY TO EMPLOY ONLY ONE METHOD FOR THE PURPOSES OF A GIVEN DELIMITATION? NO. No objection need be felt to the idea of effecting a delimitation of adjoining continental shelf areas by the concurrent use of various methods. Equity does not necessarily imply equality. There can never be any question of completely refashioning nature, and equity does not require that a State without access to the sea should be allotted an area of continental shelf, any more than there could be a question of rendering the situation of a State with an extensive coastline similar to that of a State with a restricted coastline. Equality is to be reckoned within the same plane, and it is not such natural inequalities as these that equity could remedy. But here, there are 3 States whose North Sea coastlines are in fact comparable in length and which, have been given broadly equal treatment by nature except that the configuration of one of the coastlines would, if the equidistance method is used, deny to one of these States treatment equal or comparable to that given the other two. Here, in a theoretical situation of equality within the same order, an inequity is created. What is unacceptable in this instance is that a State should enjoy continental shelf rights considerably different from those of its neighbors merely because in the one case the coastline is roughly convex in form and in the other it is markedly concave, although those coastlines are comparable in length. It is not a question of totally refashioning geography whatever the facts of the situation but, given a geographical situation of quasi-equality as between a number of States, of abating the effects of an incidental special feature from which an unjustifiable difference of treatment could result. SEEK NOT 1 METHOD BUT 1 GOAL. It has been maintained that no one method of delimitation can prevent such results and that all can lead to relative injustices. This can only strengthen the view that it is necessary to seek not one method of delimitation but one
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goal. As the operation of delimiting is a matter of determining areas appertaining to different jurisdictions, it is a truism to say that the determination must be equitable; rather is the problem above all one of defining the means whereby the delimitation can be carried out in such a way as to be recognized as equitable. Although the Parties have made it known that they intend to reserve for themselves the application of the principles and rules laid down by the Court, it would, even so, be insufficient simply to rely on the rule of equity without giving some degree of indication as to the possible ways in which it might be applied in the present case, it being understood that the Parties will be free to agree upon one method rather than another, or different methods if they so prefer. There is no legal limit to the considerations which States may take account of for the purpose of making sure that they apply equitable procedures, and more often than not it is the balancing-up of all such considerations that will produce this result rather than reliance on one to the exclusion of all others. The problem of the relative weight to be accorded to different considerations naturally varies with the circumstances of the case. BALANCE FACTORS: GEOLOGICAL, GEOGRAPHICAL, IDEA OF THE UNITY OF ANY DEPOSITS, PROPORTIONALITY. These criteria, though not entirely precise, can provide adequate bases for decision adapted to the factual situation. GEOLOGY. The institution of the continental shelf has arisen out of the recognition of a physical fact; and the link between this fact and the law, without which that institution would never have existed, remains an important element for the application of its legal regime. The continental shelf is, by definition, an area physically extending the territory of most coastal States into a species of platform which has attracted the attention first of geographers and hydrographers and then of jurists. The importance of the geological aspect is emphasized by the care which, at the beginning of its investigation, the International Law Commission took to acquire exact information as to its characteristics, as can be seen in particular from the definitions to be found on page 131 of Volume I of the Yearbook of the International Law Commission for 1956. The appurtenance of the shelf to the countries in front of whose coastlines it lies, is therefore a fact, and it can be useful to consider the geology of that shelf in order to find out whether the direction taken by certain configurational features should influence delimitation because, in certain localities, they point-up the whole notion of the appurtenance of the continental shelf to the State whose territory it does in fact prolong. GEOGRAPHY. The doctrine of the continental shelf is a recent instance of encroachment on maritime expanses which, during the greater part of history, appertained to no-one. The contiguous zone and the continental shelf are in this respect concepts of the same kind. In both instances the principle is applied that the land dominates the sea; it is consequently necessary to examine closely the geographical configuration of the coastlines of the countries whose continental shelves are to be delimited. This is one of the reasons why the Court does not consider that markedly pronounced configurations can be ignored; for, since the land is the legal source of the power which a State may exercise over territorial extensions to seaward, it must first be clearly established what features do in fact constitute such extensions. Above all is this the case when what is involved is no longer areas of sea, such as the contiguous zone, but stretches of submerged land; for the legal regime of the continental shelf is that of a soil and a subsoil, 2 words evocative of the land and not of the sea. UNITY OF ANY DEPOSITS. The natural resources of the subsoil of the sea in those parts which consist of continental shelf are the very object of the legal regime established subsequent to the Truman Proclamation. Yet it frequently occurs that the same deposit lies on both sides of the line dividing a continental shelf between two States, and since it is possible to exploit such a deposit from either side, a problem immediately arises on account of the risk of prejudicial or wasteful exploitation by one or other of the States concerned. To look no farther than the North Sea, the practice of States shows how this problem has been dealt with, and all that is needed is to refer to the undertakings entered into by the coastal States of that sea with a view to ensuring the most efficient exploitation or the apportionment of the products extracted-(Mar. 10, 1965 agreement between the UK and Norway, Art. 4; the agreement of Oct. 6, 1965 between the Netherlands and the UK relating to 'the exploitation of single geological structures extending across the dividing line on the continental shelf under the North Sea'; and the agreement of May 14, 1962 between the Federal Republic and the Netherlands concerning a joint plan for exploiting the natural resources underlying the area of the Ems Estuary where the frontier between the 2 States has not been finally delimited.) The Court does not consider that unity of deposit constitutes anything more than a factual element which it is reasonable to take into consideration in the course of the negotiations for a delimitation. The Parties are fully aware of the existence of the problem as also of the possible ways of solving it. REASONABLE DEGREE OF PROPORTIONALITY which a delimitation effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines,these being measured according to their general direction in order to establish the necessary balance between States with straight, and those with markedly concave or convex coasts, or to reduce very irregular coastlines to their truer proportions. The choice and application of the appropriate technical methods would be a matter for the parties. One method discussed, under the name of the
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principle of the coastal front, consists in drawing a straight baseline between the extreme points at either end of the coast concerned, or in some cases a series of such lines. Where the parties wish to employ in particular the equidistance method of delimitation, the establishment of one or more baselines of this kind can play a useful part in eliminating or diminishing the distortions that might result from the use of that method. PARTIES TO CHOOSE WHAT’S BEST. In a sea with the particular configuration of the North Sea, and in view of the particular geographical situation of the Parties' coastlines upon that sea, the methods chosen by them for the purpose of fixing the delimitation of their respective areas may happen in certain localities to lead to an overlapping of the areas appertaining to them. The Court considers that such a situation must be accepted as a given fact and resolved either by an agreed, or failing that by an equal division of the overlapping areas, or by agreements for joint exploitation, the latter solution appearing particularly appropriate when it is a question of preserving the unity of a deposit. The Court has examined the problems raised by the present case in its own context, which is strictly that of delimitation. Other questions relating to the general legal regime of the continental shelf, have been examined for that purpose only. This regime furnishes an example of a legal theory derived from a particular source that has secured a general following. As the Court has recalled in the first part of its Judgment, it was the Truman Proclamation of Sept. 28, 1945 which was at the origin of the theory, whose special features reflect that origin. It would therefore not be in harmony with this history to over-systematize a pragmatic construct the developments of which have occurred within a relatively short space of time. For these reasons, THE COURT, by 11 votes to 6, finds that, in each case, (A) the use of the equidistance method of delimitation not being obligatory as between the Parties; and (B) there being no other single method of delimitation the use of which is in all circumstances obligatory; (C) the principles and rules of international law applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the agreements of 1 December 1964 and 9 June 1965, respectively, are as follows: (1) delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other; (2) if, in the application of the preceding sub-paragraph, the delimitation leaves to the Parties areas that overlap, these are to be divided between them in agreed proportions or, failing agreement, equally, unless they decide on a regime of joint jurisdiction, user, or exploitation for the zones of overlap or any part of them; (D) in the course of the negotiations, the factors to be taken into account are to include: (1) the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features; (2) so far as known or readily ascertainable, the physical and geological structure, and natural resources, of the continental shelf areas involved; (3) the element of a reasonable degree of proportionality, which a delimitation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the coastal State and the length of its coast measured in the general direction of the coastline, account being taken for this purpose of the effects, actual or prospective, of any other continental shelf delimitations between adjacent States in the same region. SEPARATE OPINION OF PRESIDENT J. L. BUSTAMANTE Y RIVERO: doubts par. 59 of the main opinion. “the concept…of ‘natural prolongation’ of the land territory of a State and the extent of the continental shelf appertaining to such land territory.” He prefers low-water mark, “A more stable baseline must be found and it might be obtained by measuring the length of the coastline according to its general direction, by means of a straight line drawn between the 2 extreme points of the marine frontier of the State concerned.” JUDGE JESSUP: concurs, but thought more attention should be given the “realities” of the “just and equitable share,” emphasizing “known or probable existence of deposits of oil and gas in that seabed.” Further, “It is of course true that there is no rule of
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international law which requires States surrounding an area such as the North Sea to delimit their respective sections of the continental shelf in such a way as to apportion to each State a 'fair share' of the mineral resources on or in that shelf. Such a rule would be impossible of application since it would require as a condition precedent precise knowledge of the location and size or productivity of all parts of the area.” Even if the equidistance method was not mandatory by international law, the Court must assume that the Parties acted in good faith, and should not consider void the licenses previously granted by Denmark and the Netherlands in reliance upon their mutual delimitation agreement of 1966. When claims overlap, agreed division or joint exploitation might be appropriate. JUDGE PADILLA NERVO: concurs, “In my opinion, Article 6 does not embody a pre-existing accepted rule of customary international law, or one which has come to be regarded as such…The acts of the Federal Republic which are invoked as evidence that it has gone quite a long way towards recognizing the Convention, cannot override the fact that it has consistently refused to recognize Article 6 and the equidistance method as an expression of a generally accepted rule of international law and has objected to its applicability as against itself. The Federal Republic, like any other State, could assert its rights over the continental shelf without relying on the Convention. The only principle of general international law implicit in Article 6 is the obligation to negotiate, since the delimitation between the continental shelves of adjacent States 'shall be determined by agreement between them’. The fact that the equidistance method has been followed in several bilateral agreements between neighbouring States does not mean at all that those States were compelled by the Convention to use the equidistance method. It only means that there was agreement between them because they considered such method satisfactory, fair, equitable and convenient. They also departed from the equidistance method when they agreed to do that. JUDGE AMMOUN: concurs, I am in agreement with the majority of the Court in declaring that the equidistance method provided for in Article 6, paragraph 2, of the 1958 Convention, is not opposable as a rule of treaty-law to the Federal Republic of Germany, and that this rule has also not up to the present time become a rule of customary law. On the other hand, I consider that recourse may be had to the equidistance method, qualified by special circumstances, as a legal rule applicable to the case and derived from a general principle of law, namely equity praeter legem. JUDGE KORETZKY: dissents, I consider that the principles and rules of international law enshrined in Art. 6, par. 2, of the Convention on the Continental Shelf ought to be applied in these cases at least qua general principles and rules of international law. But even if one does not agree that this provision is applicable in these cases in its entirety or in part, it is nevertheless necessary that the principles and rules which are applied in the delimitation of a lateral boundary of the continental shelf should have a natural connection with the three interconnected principles and rules-agreement, special circumstances, equidistance-which determine the boundaries of a territorial sea. For, considering that it is a continuation, a natural prolongation of the territorial sea (its bed and subsoil), the continental shelf is not unlimited in extent, whether seaward or laterally, but lies within limits consistently continuing the boundary lines of the territorial sea in accordance with the same principles, rules and treaty provisions as provided the basis for the determination of the territorial sea between the 2 given adjacent States; that is, in these cases, between the Netherlands and Germany on the one hand and between Denmark and Germany on the other. JUDGE TANAKA: agrees as to the 1 principle of international law to be applied in the delimitation or the obligation to enter into negotiations with a view to arriving at an agreement. But on the “substantive” issue as to equidistance principle or equitable principle, he dissents: 1) the Court recognizes that delimitation by the application of the equidistance principle would produce in the present cases an unjust & inequitable effect detrimental to Germany, which is not the case, as stated above; 2) on this hypothesis, the Court admits in favor of the Federal Republic an appeal to higher ideas of law such as justice, equity or equitableness, and reasonableness, which are self-evident but which, owing to their general and abstract character, are unable to furnish any concrete criteria for delimitation in the present cases. Reference to the equitable principle is nothing else but begging the question; and 3) the factors which may be taken into consideration to carry out the equitable principle are of diverse nature and susceptible of different evaluations. Consequently, it appears extremely doubtful whether the negotiations could be expected to achieve a successful result, and more likely that they would engender new complications and chaos. The important matter in connection with the present cases is that the Parties should have a guarantee of being able to terminate the possibly endless repetition of detailed negotiations by the final application of the equidistance principle. Another important matter should be that, the Court by according the equidistance principle the status of a world law would make a contribution to the progressive development of international law.
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JUDGE LACHS: dissents, the real legal problem with which the Court has been confronted is not that of the binding effect of the equidistance rule upon the Federal Republic, for this is established, but the question of whether there are special circumstances which would justify a departure from it in the present cases. No such special circumstances exist. The evidence produced in the
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cases before the Court is not in fact sufficient to justify an exemption from the rule. It has not been shown that its application would, on account of the bend in the coast, expose the Federal Republic to any special hardship, impose upon it any undue burdens or create for it any serious difficulties. He finds no adequate basis for exemption from the equidistance rule, thus, Art. 6 must be applied JUDGE SØRENSEN: dissents, since the Convention belongs to a particular category of multilateral conventions, namely those which result from the work of the United Nations in the field of codification and progressive development of international law, under Art. 13 of the Charter. Contrary to the majority opinion’s “minimum conditions for recognizing that a treaty provision attains the character of a generally accepted rule of customary law,” he says that “a relevant element that a convention has been adopted in the process of codification and development of international law under the UN Charter.” Since the Geneva Convention has been ratified or acceded to by a significant number of nations all over the world and no state exercising sovereign rights over its continental shelf per the provisions of the Convention has met protest other than those arising from interpretation of the provisions, he posits that “as a result of a continuous process over a quarter of a century, the rules embodied in the Geneva Convention on the Continental Shelf have now attained the status of generally accepted rules of international law.” The general rule must be applied. “But the Court has to base its findings on the geographical and political factors as they are, and not upon comparisons with hypothetical situations. The politico-geographical circumstances of coastal States all over the world, including those around the North Sea, are extremely different and have the effect of producing great inequalities as to the areas of continental shelf which each State could claim under the principle of equidistance. The special circumstances clauses of Art. 6 cannot reasonably be understood as being designed to rectify any such inequalities caused by elementary geographical factors in combination with the location of political frontiers.”

NICARAGUA V. UNITED STATES (1984)
1984 I.CJ. 169 (Provisional Measures). 1984 I.CJ. 392 (Jurisdiction).
*See the additional notes on pp.645-646 to know of some pertinent questions raised and a short description of dissents. This digest does not include the Statement of the Legal Adviser of the State Department (pp.646-648).

Parties: Republic of Nicaragua and the Government of the United States of America CASE BACKGROUND: 1. NICARAGUA FILED AN APPLICATION INSTITUTING PROCEEDINGS AGAINST THE US. On 9 April 1984 the Government of Nicaragua filed an Application instituting proceedings against the United States of America, accompanied by a request for the indication of provisional measures, in respect of a dispute concerning responsibility for military and paramilitary activities in and against Nicaragua. As basis for the jurisdiction of the Court it invoked one declaration accepting the Court's jurisdiction deposited by the two States under Article 36 of the Statute of the Court. 2. US APPOINTS AN AGENT. On 13 April 1984, by a letter from its Ambassador to the Netherlands, the US Govt informed the Court that it had appointed an Agent for the purposes of the case while indicating its conviction that the Court was without jurisdiction to deal with the Application and was a fortiori without jurisdiction to indicate the provisional measures requested by Nicaragua. 3. COURT DECISION RE THE REQUEST FOR PROVISIONAL MEASURES. Having heard the oral observations of both Parties on the request for provisional measures at public sittings on 25 and 27 April 1984, the Court held on 10 May 1984 a public sitting at which it delivered an Order indicating such measures. The operative provisions are as follows: "THE COURT, A. Unanimously, Rejects the request made by the United States of America that the proceedings on the Application filed by the Republic of Nicaragua on 9 April 1984, and on the request filed the same day by the Republic of Nicaragua for the indication of provisional measures, be terminated by^ the removal of the case from the list; B. Indicates, pending its final decision in the proceedings xxx the following provisional measures: 1. Unanimously, The United States of America should immediately cease and re-frain from any action restricting, blocking or endangering access to or from Nicaraguan ports, and, in particular, the Iaying of mines; 2. By fourteen votes to one, The right to sovereignty and to political independence possessed by xxx Nicaragua, xxx should be fully respected and should not in any way be jeopardized by any military and paramilitary activities which are prohibited by the principles of international law, in
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particular the principle that States should refrain in their international relations from the threat or use of force against the territorial integrity or the political independence of any State, and the principle concerning the duty not to intervene in matters within the domestic jurisdiction of a State xxx 3. Unanimously, xxx United States xxx and xxxNicaragua should each of them ensure that no action of any kind is taken which might aggravate or extend the dispute; 4. Unanimously, xxx United States xxx and xxx Nicaragua should each of them ensure that no action is taken which might prejudice the rights of the other Party in respect of the carrying out of whatever decision the Court may render xxx; C. Unanimously, Decides further that, until the Court delivers its final judgment xxx, it will keep the matters covered by this Order continuously under review; D. Unanimously, Decides that the written proceedings shall first be addressed to the questions of the jurisdiction of the Court to entertain the dispute and of the admissibility of the Application; And reserves the fixing of the time-limits for the said written proceedings, and the subsequent procedure, for further decision." 3. PARTIES IMMEDIATELY NOTIFIED THE PARTIES OF THE INDICATION OF THESE MEASURES. In accordance with Art 41, para 2, of the Statute of the Court, the Registrar immediately notified the Parties and the Security Council of the indication of these measures. 4. TIME LIMITS FOR THE FILING OF PLEADINGS. By an Order of 14 May 1984 the President of the Court fixed the following time-limits for the filing of pleadings addressed to the questions of jurisdiction and admissibility: 30 June 1984 for the Memorial of Nicaragua, and 17 August 1984 for the Counter-Memorial of the United States. These pleadings were filed within the prescribed time-limits. 5. EL SALVADOR DECLARES INTENTION TO INTERVENE. On 15 August 1984, before the expiration of the time-limits, the Republic of El Salvador filed a Declaration of Intervention under Article 63. In its Declaration, El Salvador stated that the purpose of its intervention was to enable it to maintain that the Court had no jurisdiction to entertain Nicaragua's application. In this connection, it referred to certain multilateral treaties on which Nicaragua relies in its dispute with the United States. 6. COURT’S HOLDING REGARDING THE INTEVENTION. Having regard to the written observations on that Declaration submitted by the Parties in accordance with Article 83, on 4 October 1984 the Court made an Order, the operative provisions are as follows: "THE COURT, (i) By nine votes to six, Decides not to hold a hearing on the Declaration of Intervention of the Republic of El Salvador. (ii) By fourteen votes to one, Decides that the Declaration of intervention of the Republic of El Salvador is inadmissible inasmuch as it relates to the current phase of the proceedings brought by Nicaragua against the United States of America. 7. NICARAGUA APPOINTS JUDGE AD HOC. From 8-18 October 1984, the Court held nine public sittings. The Judge ad hoc appointed by Nicaragua under Article 31, Mr. C.-A. Colliard, participated in the work of the Court from this stage of the proceedings. 8. COURT DELIVERS JUDGMENT. At a public sitting held on 26 November 1984, the Court delivered its Judgment. PROCEEDINGS AND SUBMISSIONS OF THE PARTIES (PARAS. 1-11) I. The Question of the Jurisdiction of the Court to Entertain the Dispute (paras. 12-83) A. The Declaration of Nicaragua and Art 36, para 5 of the Statute of the Court (paras. 12-51) 1. NICARAGUA’S BASIS FOR COURT JURISDICTION. To found the jurisdiction of the Court, Nicaragua relied on Article 36 and the declarations accepting the compulsory jurisdiction of the Court made by the US and itself. 2. THE RELEVANT TEXTS AND THE HISTORICAL BACKGROUND TO NICARAGUA'S DECLARATION (PARAS. 12-16). On 6 April 1984 the US deposited with the UN Sec-Gen a notification signed by the Secretary of State, Mr. George Shultz, referring to the declaration of 1946, and stating that:
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"the aforesaid declaration shall not apply to disputes with any Central. American State or arising out of or related to events in Central America, any of which disputes shall be settled in such manner as the, parties xxx may agree. "xxx this proviso shall take effect immediately and shall remain in force for two years, so as to foster the continuing regional dispute settlement process which seeks a negotiated solution to the interrelated political, economic and security problems of Central America." In order to be able to rely upon the United States declaration of 1946 to found jurisdiction in the present case, Nicaragua has to show that it is a "State accepting the same obligation" as the United States • within the meaning of Article 36, paragraph 2. For this purpose, it relies on a declaration made by it on 24 September 1929 pursuant to Article 36, paragraph 2, of the Statute of the Permanent Court of International Justice, which provided that: "The Members of the League of Nations and the States mentioned in the Annex to the Covenant may, either when signing or ratifying the Protocol to which the present Statute is adjoined, or at a later moment, declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other Member or State accepting the same obligation, the jurisdiction of the Court • • • " in any of the same categories of dispute as listed in Art 36, para 2. Nicaragua relies further on Art 36, para 5, which provides that: "Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms." The Judgment recalls the circumstances in which Nicaragua made its declaration: on 14 September 1929, as a Member of the League of Nations, it signed the Protocol of Signature of the Statute of the Permanent Court of International Justice: this provided that it was subject to ratification and that instruments of ratification were to be sent to the Sec-Gen of the League of Nations. On 24 September 1929 Nicaragua deposited with the Sec-Gen a declaration under Art 36, para 2, which reads: [Translation from the French] "On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice. Geneva, 24 September 1929. (Signed) T.F. MEDINA." The national authorities in Nicaragua authorized its ratification, and, on 29 November 1939, the Ministry of Foreign Affairs of Nicaragua sent a telegram to the Sec-Gen advising him of the despatch (pramis “despatch” talaga – tiff) of the instrument of ratification. The files of the League, however, contain no record of an instrument ever having been received and no evidence has been adduced to show that such an instrument was ever despatched to Geneva. After WWII, Nicaragua became an original Member of the UN, having ratified the Charter on 6 September 1945; on 24 October 1945 the Statute of the ICJ, which is an integral part of the Charter, came into force. 3. THE ARGUMENTS OF THE PARTIES (PARAS. 17-23) AND THE REASONING OF THE COURT (PARAS. 24-42). a. US CONTENTION. US contends that Nicaragua never became a party to the Statute of the Permanent Court and that its 1929 declaration was therefore not "still in force" within the meaning of the English text of Art 36, para 5. In the light of the arguments, the Court sought to determine whether Art 36, para 5, could have applied to Nicaragua's declaration of 1929. The Court notes that the Nicaraguan declaration was valid at the time when the question of the applicability of the new Statute, that of the ICJ, arose, since under the system of the Permanent Court of International Justice a declaration was valid only on condition that it had been made by a State which had signed the Protocol of Signature of the Statute. It had not become binding under that Statute, since Nicaragua had not deposited its instrument of ratification and it was therefore not a party to the Statute. However, it is not disputed that the 1929 declaration could have acquired binding force. All that Nicaragua need have done was to deposit its instrument of ratification, and it could have done that at any time until the day on which the new Court came into existence. It follows that the declaration had a certain potential effect which could be maintained for many years. Having been made "unconditionally" and being valid for an unlimited period, it had retained its potential effect at the moment when Nicaragua became a party to the Statute of the new Court.
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To reach a conclusion on whether the effect of a declaration which did not have binding force at the time of the Permanent Court could be transposed to the ICJ the operation of Art 36, para 5, the Court took several considerations into account. i. As regards the French phrase "pour une duree qui n'est pas encore expires" applying to declarations made under the former system, the Court does not consider it to imply that "la duree non expiree" (the unexpired period) is that of a commitment of a binding character. The deliberate choice of the expression seems to denote an intention to widen the scope of Art 36, para 5, so as to cover declarations which have not acquired binding force. The English phrase "still in force" does not expressly exclude a valid declaration of unexpired duration, made by a State not party to the Protocol of Signature of the Statute, and therefore not of binding character. ii. With regard to the considerations governing the transfer of the powers of the former Court to the new one, the Court takes the view that the primary concern of those who drafted its Statute was to maintain the greatest possible continuity between it and the Permanent Court and that their aim was to ensure that the replacement of one Court by another should not result in a step backwards in relation to the progress accomplished towards adopting a system of compulsory jurisdiction. Nicaragua may therefore be deemed to have given its consent to the transfer of its declaration to the International Court of Justice when it signed and ratified the Charter, thus accepting the Statute and its Art 36, para 5. iii. Concerning the publications of the Court referred to by the Parties for opposite reasons, the Court notes that they have regularly placed Nicaragua on the list of those States that have recognized the compulsory jurisdiction of the Court. The attestations furnished by these publications have been entirely official and public, extremely numerous and have extended over a period of nearly 40 years. The conduct of States parties to the Statute has confirmed the interpretation of Art 36, para 5, whereby the provisions of this Article cover the case of Nicaragua. 4. THE CONDUCT OF THE PARTIES (PARAS. 43-51) *AS NICARAGUA’S BASIS FOR RECOGNIZING COMPULSORY JURISDICTION+. a. NICARAGUS’ CONTENTION. Nicaragua also contends that the validity of Nicaragua's recognition of the compulsory jurisdiction of the Court finds an independent basis in the conduct of the Parties, that its conduct over 38 years unequivocally constitutes consent to be bound by the compulsory jurisdiction of the Court, that the conduct of the United States over the same period unequivocally constitutes its recognition of the validity of the declaration of Nicaragua of 1929 as an acceptance of the compulsory jurisdiction of the Court. b. US CONTENTION. The United States, however, objects that the contention of Nicaragua is inconsistent with the Statute and, in particular that compulsory jurisdiction must be based on the clearest manifestation of the State's intent to accept it. After considering Nicaragua's particular circumstances, the Court considers that, having regard to the source and generality of statements to the effect that Nicaragua was bound by its 1929 declaration, it is right to conclude that the constant acquiescence of that State in those affirmations constitutes a valid mode of manifestation of its intent to recognize the compulsory jurisdiction of the Court. It further considers that the estoppel on which the United States has relied and which would have barred Nicaragua from instituting proceedings against it, cannot be said to apply to it. Court finding: the Nicaraguan declaration of 1929 is valid; that Nicaragua accordingly was, for the purposes of Art 36, para 2, a "State accepting the same obligation" as the US at the date of filing of the Application and could therefore rely on the United States declaration of 1946. B. The Declaration of the US (paras. 52-76) The Notification of 1984 (paras. 52-66) 1. The acceptance of the jurisdiction of the Court by the US on which Nicaragua relies is the result of the United States declaration of 14 August 1946. However, the United States argues that effect should be given to the letter sent to the UN Sec-Gen on 6 April 1984. It is clear that if this notification were valid as against Nicaragua at the date of filing of the Application, the Court would not have jurisdiction under Art 36. 2. COURT’S TAKE ON THE EFFECT OF THE 1984 NOTIFICATION. After outlining the arguments of the Parties, the Court points out that the most important question relating to the effect of the 1984 notification is whether the United States was free to disregard the six months' notice clause which, freely and by its own choice, it has appended to its declaration, in spite of the obligation it has entered into vis-a-vis other States which have made such a declaration. The US has argued that the Nicaraguan declaration, being of undefined duration, is liable to immediate termination, and that Nicaragua has not accepted "the same obligation" as itself and may not rely on the time-limit proviso against it. The Court does not consider that this argument entitles the United States validly to derogate from the time-limit proviso in its 1946 declaration. The notion of reciprocity is concerned with the scope and substance of the commitments entered into, including reservations, and not with the formal conditions of their creation, duration or extinction.
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Reciprocity cannot be invoked in order to excuse departure from the terms of a State's own declaration. US cannot rely on reciprocity since the Nicaraguan declaration contains no express restriction at all. On the contrary, Nicaragua can invoke the six months' notice against it, not on the basis of reciprocity, but because it is an undertaking which is an integral part of the instrument that contains it. The 1984 notification cannot therefore override the obligation of the US to submit to the jurisdiction of the Court vis-a-vis Nicaragua. 3. THE US MULTILATERAL TREATY RESERVATION (PARAS. 67-76). The question remains whether the US declaration of 1946 constitutes the necessary consent of the US to the jurisdiction of the Court, taking into account the reservations attached to the declaration. The US had invoked proviso (c), which provides that the US acceptance of the Court's compulsory jurisdiction shall not extend to "disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the US specially agrees to jurisdiction”. This reservation will be referred to as the "multilateral treaty reservation." 4. US WANTS ALL PARTIES TO THE TREATIES AFFECTED BY A PROSPECTIVE DECISION TO BE PARTIES TO THE PRESENT CASE FOR THE COURT TO HAVE JURISDICTION. The United States argues that Nicaragua relies in its Application on four multilateral treaties, and that the Court, in view of the above reservation, may exercise jurisdiction only if all treaty parties affected by a prospective decision of the Court are also parties to the case. The Court notes that the States which, according to the US, might be affected by the future decision of the Court, have made declarations of acceptance of the compulsory jurisdiction of the Court, and are free, any time, to come before the Court with an application instituting proceedings, or to resort to the incidental procedure of intervention. These States are therefore not defenceless against any consequences that may arise out of adjudication by the Court and they do not need the protection of the multilateral treaty reservation (in so far as they are not already protected by Article 59 of the Statute). The Court considers that obviously the question of what States may be affected is not a jurisdictional problem and that it has no choice but to declare that the objection based on the multilateral treaty reservation does not possess, in the circumstances of the case, an exclusively preliminary character. Court finding: Despite the US notification of 1984, Nicaragua's Application is not excluded from the scope of the acceptance by the United States of the compulsory jurisdiction of the Court. The two declarations afford a basis for its jurisdiction. C. The Treaty of Friendship, Commerce and Navigation of 21 January 1956 as a Basis of Jurisdiction (paras. 77-83). 1. THE TREATY. Nicaragua also relies, as a "subsidiary basis" for the Court's jurisdiction, on the Treaty of Friendship, Commerce and Navigation which it concluded at Managua with the US on 21 January 1956 and entered into force on 24 May 1958. Art XXIV, para 2 reads: "Any dispute between the Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the Parties agree to settlement by some other pacific means.” Nicaragua submits that this treaty has been and is being violated by the military and paramilitary activities of the US. 2. US ARGUMENT WHY ART XXIV, PARA 2 DOESN’T APPLY. The US contends that, since the Application presents no claims of any violation of the treaty, there are no claims properly before the Court for adjudication, and that, since no attempt to adjust the dispute by diplomacy has been made, the compromissory clause cannot operate. 3. COURT’S TAKE. The Court finds it necessary to satisfy itself as to jurisdiction under the treaty inasmuch as it has found that the objection based upon the multilateral treaty reservation in the United States declaration does not debar it from entertaining the Application. In the view of the Court, the fact that a State has not expressly referred, in negotiations with another State, to a particular treaty as having been violated by the conduct of that other State, does not debar that State from invoking a compromissory clause in that treaty. Accordingly, the Court finds that it has jurisdiction under the 1956 Treaty to entertain the claims made by Nicaragua in its Application. II. The Question of the Admissibility of Nicaragua’s Application (paras. 84-108). 1. US CONTENTION. The US contended that it is inadmissible on five separate grounds, each of which is sufficient to establish such inadmissibility, whether considered as a legal bar to adjudication or as "a matter requiring the exercise of prudential discretion in the interest of the integrity of the judicial function". st a. 1 ground (paras. 85-88): Nicaragua has failed to bring before the Court parties whose presence and participation is necessary for the rights of those parties to be protected and for the adjudication of the issues raised in the Application. In this connection, the Court recalls that it delivers judgments with binding force as between the Parties in accordance with Art 59, and that States which
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consider they may be affected by the decision are free to institute separate proceedings or to employ the procedure of intervention. There is no trace, either in the Statute or in the practice of international tribunals, of an "indispensable parties” rule which would only be conceivable in parallel to a power, which the Court does not possess, to direct that a third State be made a party to proceedings. None of the States referred to can be regarded as being in a position such that its presence would be truly indispensable to the pursuance of the proceedings. b. 2 ground (paras. 89-90): Nicaragua is, in effect, requesting that the Court in this case determines the existence of a threat to peace, a matter falling essentially within the competence of the Security Council because it is connected with Nicaragua's complaint involving the use of force. The Court examines this ground of inadmissibility at the same time as the… c. 3 ground (paras. 91-98) based on the position of the Court within the UN system, including the impact of proceedings before the Court on the exercise of the inherent right of individual or collective self-defence under Article 51 of the Charter. The Court is of the opinion that the fact that a matter is before the Security Council should not prevent it from being dealt with by the Court and that both proceedings could be pursued pari passu. The Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can therefore perform their separate but complementary functions with respect to the same events. In the present case. the complaint of Nicaragua is not about an ongoing war of armed conflict between it and the United States, but about a situation demanding the peaceful settlement of disputes, a matter which is covered by Chapter VI of the Charter. Hence, it is properly brought before the principal judicial organ of the UN for peaceful settlement. This is not a case which can only be dealt with by the Security Council. With reference to Article 51 of the Charter, the Court notes that the fact that the inherent right of self-defence is referred to in the Charter as a "right" is indicative of a legal dimension, and finds that if, in the present proceedings, it became necessary for the Court to judge in this respect between the Parties, it cannot be debarred from doing so by the existence of a procedure requiring that the matter be reported to the Security Council. d. 4 ground (paras. 99-101): inability of the judicial function to deal with situations involving ongoing armed conflict, since the resort to force during an ongoing armed conflict lacks the attributes necessary for the application of the judicial process (i.e. a pattern of legally relevant facts discernible by the means available to the adjudicating tribunal). The Court observes that any judgment on the merits is limited to upholding such submissions of the Parties as has been supported by sufficient proof of relevant facts and that ultimately it is the litigant who bears the burden of proof. e. 5th ground (paras. 102-108): based on the non-exhaustion of the established processes for the resolution of the conflicts occurring in Central America. It contends that the Nicaraguan Application is incompatible with the Contadora process to which Nicaragua is a party. 2. PREVIOUS HOLDINGS OF THE COURT. There is nothing to compel it (the Court) to decline to take cognizance of one aspect of dispute merely because that dispute has other aspects (United States Diplomatic and Consular Staff in Tehran case, I.C.J. Reports 1980, p. 19, para. 38), and the fact that negotiations are being actively pursued during the proceedings is not, legally, any obstacle to the exercise by the Court of its judicial function (Aegean Sea Continental Shelf case, I.C.J. Reports T978, p. 12, para. 29). The Court is unable to accept either that there is any requirement of prior exhaustion of regional negotiating processes as a precondition to seising the Court or that the existence of the Contadora process constitutes in this case an obstacle to the examination by the Court of Nicaragua's Application. The Court is therefore unable to declare the Application inadmissible on any of the grounds the United States has advanced. 3. STATUS OF PROVISIONAL MEASURES. The Court states that its Order of 10 May 1984 and the provisional measures indicated therein remain operative until the delivery of the final judgment in the case. Operative Clause (para. 113) "For these reasons, THE COURT, (1)(a) finds, by eleven votes to five, that it has jurisdiction to entertain the Application filed by xxx Nicaragua on 9 April 1984, on the basis of Art 36, paras 2 and 5, of the Statute of the Court; (b) finds, by fourteen votes to two, that it has jurisdiction to entertain the Application filed by xxx Nicaragua on 9 April 1984, in so far as that Application relates to a dispute concerning the interpretation or application of the Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of Nicaragua signed at Managua on 21 January 1956, on the basis of Article XXIV of that Treaty;
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(c) finds, by fifteen votes to one, that it has jurisdiction to entertain the case; (2) finds, unanimously, that the said Application is admissible."

NICARAGUA vs. USA (27 June 1986) (note – this digest is based on both the summary and the original. The bulk of the case was devoted to an exhaustive discussion of the sources – interviews, records, media releases, etc. - of the facts, i.e. the facts imputable to the US and the conduct of Nicaragua. Thus, for these parts, I relied on the summary. For the others, I relied on both the case and the summary.  I apologize if I left out something pertinent.) Background of the dispute Non-participation of the US. (Continuing from the 1984 Judgment) On Jan. 18, 1985, an American agent informed the ICJ that the US believes that the ’84 Judgment was clearly and manifestly erroneous as to both fact and law, as the US still believes that the ICJ is without jurisdiction to entertain this dispute, and that the Nicaraguan application is inadmissible. Therefore the US will not participate in further proceedings, and reserves its rights in respect of any decision by the Court regarding Nicaragua’s claims. The US thus failed to submit its pleadings and participate in the public hearings. When the US then failed to submit its pleadings (i.e. its Counter-Memorial), Nicaragua invoke Art. 53 of the Statute and called on the ICJ to decide the case despite the failure of the US to appear. Written submissions of Nicaragua. The following were submitted by Nicaragua: Application, praying that the ICJ adjudge and declare: (a) That the United States, in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua, has violated and is violating its express charter and treaty obligations to Nicaragua, and in particular the UN Charter, the Charter of the Organization of American States, the Convention on Rights and Duties of States, and the Convention concerning the Duties and Rights of States in the Event of Civil Strife. (b) That the United States, in breach of its obligation under general and customary international law, has violated and is violating the sovereignty of Nicaragua by its armed attacks against Nicaragua, incursions into Nicaragua’s territorial waters, aerial trespass into Nicaragua’s airspace, and efforts by direct and indirect means to coerce and intimidate Nicaragua’s government. (c) That the United States, in breach of its obligation under general and customary international law, has used and is using force and the threat of force against Nicaragua. (d) That the United States, in breach of its obligation under general and customary international law, has intervened and is intervening in the internal affairs of Nicaragua. (e) That the United States, in breach of its obligation under general and customary international law, has infringed and is infringing the freedom of the high seas and interrupting peaceful maritime commerce. (f) That the United States, in breach of its obligation under general and customary international law, has killed, wounded and kidnapped and is killing, wounding and kidnapping citizens of Nicaragua. (g) That the United States is under a particular duty to cease and desist immediately from all use of force and from all threats of force against Nicaragua; from all violations of the sovereignty, territorial integrity or political independence of Nicaragua, including all intervention, direct or indirect, in its internal affairs; from all support of any kind to any nation, group, organization, movement or individual engaged or planning to engage in military or paramilitary actions in or against Nicaragua; from all efforts to restrict, block or endanger access to or from Nicaraguan ports; and from all killings, woundings and kidnappings of Nicaraguan citizens. (h) That the United States has an obligation to pay Nicaragua, in its own right and as parens patriae for the citizens of Nicaragua, reparations for damages to person, property and the Nicaraguan economy caused by the violations of international law in a sum to
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be determined by the Court. 2. A Memorial on the merits, with the following prayers: (a) To adjudge and declare that the United States has violated the obligations of international law indicated in this Memorial, and that in particular respects the United States is in continuing violation of those obligations. (b) To state in clear terms the obligation which the United States bears to bring to an end the aforesaid breaches of international law. (c) To adjudge and declare that compensation is due to Nicaragua, both on its own behalf and in respect of wrongs inflicted upon its nationals. (d) To award Nicaragua US$370,200,000, which sum constitutes the minimum valuation of the direct damages, with the exception of damages for killing nationals of Nicaragua, resulting from the violations of international law. The facts. The dispute between Nicaragua and the United States concerns events in Nicaragua after the fall of Pres. Anastasio Somoza Debayle in July 1979, and activities of the Government of the United States in relation to Nicaragua since that time. Following the departure of President Somoza, a Junta of National Reconstruction and an 18-member government was installed by the body which had led the armed opposition to President Somoza, the Frente Sandinista de Liberacion Nacional (FSLN). That body had initially an extensive share in the new government, described as a "democratic coalition", and as a result of later resignations and reshuffles, became almost its sole component. Certain opponents of the new Government, primarily supporters of the former Somoza Government and in particular ex-members of the National Guard, formed themselves into irregular military forces, and commenced a policy of armed opposition, though initially on a limited scale. The US government was initially favorable to the "democratic coalition government", and a programme of economic aid to Nicaragua was adopted. However by 1981 this attitude had changed. United States aid to Nicaragua was suspended in January 1981 and terminated in April 1981. According to the United States, the reason for this change of attitude was reports of involvement of the Government of Nicaragua in logistical support, including provision of arms, for guerrillas in El Salvador. There was however no interruption in diplomatic relations, which have continued to be maintained up to the present time. In September 1981, according to testimony called by Nicaragua, it was decided to plan and undertake activities directed against Nicaragua. The armed opposition to the new Government in Nicaragua, which originally comprised various movements, subsequently became organized into two main groups: the Fuerza Democratica Nicaraguense (FDN) and the Alianza Revolucionaria Democratica (ARDE). The first of these grew from 1981 onwards into a trained fighting force, operating along the borders with Honduras; the second, formed in 1982, operated along the borders with Costa Rica. After an initial period in which the "covert" operations of United States personnel and persons in their pay were kept from becoming public knowledge, it was made clear, not only in the United States press, but also in Congress and in official statements by the President and high United States officials, that the United States Government had been giving support to the contras, a term employed to describe those fighting against the present Nicaraguan Government. In 1983 budgetary legislation enacted by the United States Congress made specific provision for funds to be used by United States intelligence agencies for supporting "directly or indirectly, military or paramilitary operations in Nicaragua". According to Nicaragua, the contras have caused it considerable material damage and widespread loss of life, and have also committed such acts as killing of prisoners, indiscriminate killing of civilians, torture, rape and kidnapping. It is contended by Nicaragua that the United States Government is effectively in control of the contras, that it devised their strategy and directed their tactics, and that the purpose of that Government was, from the beginning, to overthrow the Government of Nicaragua.Nicaragua also claims that certain military or paramilitary operations against it were carried out, not by the contras, who at the time claimed responsibility, but by persons in the pay of the United States Government and under the direct command of United States personnel, who also participated to some extent in the operations (the mining of certain Nicaraguan ports in early 1984, and attacks on ports, oil installations, a naval base, etc.) Nicaragua has also complained of overflights of its territory by United States aircraft, not only for purposes of intelligence-gathering and supply to the contras in the field, but also in order to intimidate the population. In the economic field, Nicaragua claims that the United States has withdrawn its own aid to Nicaragua, drastically reduced the quota for imports of sugar from Nicaragua to the United States, and imposed a trade embargo; it has also used its influence in the Inter*Most of the contents of this reviewer would not be possible without the efforts of UP Law 2009B. Edited and reformatted by

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American Development Bank and the International Bank for Reconstruction and Development to block the provision of loans to Nicaragua. As a matter of law, Nicaragua claims, inter alia, that the United States has acted in violation of Article 2, paragraph 4, of the United Nations Charter, and of a customary international law obligation to refrain from the threat or use of force; that its actions amount to intervention in the internal affairs of Nicaragua, in breach of the Charter of the Organization of American States and of rules of customary international law forbidding intervention; and that the United States has acted in violation of the sovereignty of Nicaragua, and in violation of a number of other obligations established in general customary international law and in the interAmerican system. The actions of the United States are also claimed by Nicaragua to be such as to defeat the object and purpose of a Treaty of Friendship, Commerce and Navigation concluded between the Parties in 1956, and to be in breach of provisions of that Treaty. The Non-appearance of the US and Art. 53 of the Statute Judgment still valid. Art. 53 provides that "Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the court to decide in favour of its claim." A special feature of this case is that the US only ceased to take part in the proceedings after a judgment adverse to it has been rendered. However, as the US took part in the earlier proceedings to argue that the ICJ lacked jurisdiction, it thus acknowledged that the ICJ had the power to make a finding on its own jurisdiction to rule upon the merits, and thus it is impossible to argue that the ICJ had jurisdiction only to declare that it lacked jurisdiction. In the normal course of events, for a party to appear before a court entails acceptance of the possibility of the court's finding against that party. The non-participation of a party in the proceedings at any stage of the case cannot, in any circumstances, affect the validity of its judgment. Nor does such validity depend upon the acceptance of that judgment by one party. No automatic judgment in favor of Nicaragua. When Article 53 of the Statute applies, the ICJ is bound to "satisfy itself, not only that it has jurisdiction but also that the claim" of the party appearing is well founded in fact and law. A State which decides not to appear must accept the consequences of its decision, the first of which is that the case will continue without its participation; the State which has chosen not to appear remains a party to the case, and is bound by the eventual judgment. There is however no question of a judgment automatically in favour of the party appearing, since the ICJ is required to "satisfy itself" that that party's claim is well founded in fact and law – that the claim is sound in law, and the facts on which it is based are supported by convincing evidence. The views of the parties to a case as to the applicable law are also very material. Due to the US absence, the known facts are limited. The principle of the equality of the parties thus remains the basic principle, so that the absent party doesn’t profit from its nonparticipation. Justiciability of the Dispute ISSUE: The questions of the use of force and collective self-defense are not justiciable. HELD: The ICJ can decide on these problems. Legal dispute? The jurisdiction of the ICJ is limited to legal disputes. Whether a certain dispute is a legal dispute may itself be a matter of dispute between the concerned states, thus that dispute is to be settled by the ICJ. In this case however this point hasn’t been raised by either party. There can be no doubt that the issues of the use of force and collective self-defence raised in the present proceedings are issues which are regulated both by customary international law and by treaties, in particular the UN Charter. Matters of policy? It is suggested that the plea of collective self-defence which has been advanced by the US as a justification for its actions requires the Court to determine whether the US was legally justified in adjudging itself under a necessity, because its own security was in jeopardy, to use force in response to foreign intervention in El Salvador. Such a determination, it is said, involves a pronouncement on political and military matters, not a question of a kind that a court can usefully attempt to answer. However what is in issue here is the purported exercise of the US of a right of collective self-defense in response to an armed attack on another state. The ICJ must first determine whether such an attack has occurred, and if so whether the self-defense measures were a legally appropriate reaction as a matter of collective self-defense. This doesn’t necessarily involve evaluations of political or military matters. ISSUE: WON the ICJ’s jurisdiction was limited by the multilateral treaty reservation.
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HELD: YES. The ICJ must refrain from applying the multilateral treaties invoked by Nicaragua in support of its claims, without prejudice either to other treaties or to the other sources of law enumerated in Article 38 of the Statute. The reservation. What are excluded from the jurisdiction are "disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction". In order to determine the reservation’s effect on the ICJ’s jurisdiction, the ICJ must determine whether any third States, parties to multilateral treaties invoked by Nicaragua in support of its claims, would be "affected" by the Judgment, and are not parties to the proceedings leading up to it. The multilateral treaties. The 4 pertinent treaties are: the Charter of the United Nations, the Charter of the Organization of American States, the Montevideo Convention on the Rights and Duties of States, and the Havana Convention on the Rights and Duties of States in the Event of Civil Strife. However, Nicaragua has not relied on the latter two treaties and it believes that “the duties and obligations established by these conventions have been subsumed in the Organization of American States Charter". Thus only the UN Charter and the Charter of the Organization of American States (OAS Charter) will be considered. Look at El Salvador. The Court examines the impact of the reservation on Nicaragua's claim that the US has used force against it in breach of the UN Charter and the OAS Charter. The States which could possibly be affected are El Salvador, Honduras and Costa Rica. Clearly, even if only one of these States is found to be "affected", the United States reservation takes full effect. El Salvador is considered, as it is primarily for its benefit, and to help it to respond to an alleged armed attack by Nicaragua, that the US claims to be exercising a right of collective self-defence, which it regards as a justification of its own conduct towards Nicaragua. Moreover, El Salvador confirmed this assertion in its Declaration of Intervention when it stated that it considered itself the victim of an armed attack by Nicaragua, and that it had asked the US to exercise for its benefit the right of collective self-defence. Both the UN Charter and the OAS Charter refer to self-defense as an exception to the principle of the prohibition of the use of force. Unlike the UN Charter, the OAS Charter does not use the expression "collective self-defence", but refers to the case of "self-defence in accordance with existing treaties or in fulfillment thereof", one such treaty being the UN Charter. Furthermore it is evident that if actions of the US complied with all requirements of the UN Charter so as to constitute the exercise of the right of collective selfdefence, it could not be argued that they could nevertheless constitute a violation of the OAS Charter. It therefore follows that the situation of El Salvador with regard to the US assertion of the right of collective self-defence is the same under the OAS Charter as it is under the UN Charter. El Salvador has a right to receive aid, military or otherwise, from the US. But this refers to the direct aid provided to the Government of El Salvador on its territory in order to help it combat the insurrection with which it is faced, not to any indirect aid which might be contributed to this combat by certain US activities in and against Nicaragua. Thus, if the ICJ rejects the justification of the US of its actions (as collective self-defense), the indirect aid which the US is giving to El Salvador in the form of activities in and against Nicaragua would be declared against treaty law. Thus El Salvador would be affected by the decision decision on the lawfulness of resort by the US to collective self-defense. Art. 18, which Nicaragua claims is also violated by the US, provides: "No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements." The ICJ concludes that in the particular circumstances of this case, it is impossible to say that a ruling on the alleged breach by the United States of Article 18 of the OAS Charter would not "affect" El Salvador. The ICJ therefore finds that El Salvador, a party to the UN Charter and to the OAS Charter, is a State which would be "affected" by the decision which the ICJ would have to take on the claims by Nicaragua that the US has violated the UN Charter Charter and the OAS Charter. Accordingly, the ICJ has to be "satisfied" that it has jurisdiction to decide each of the claims it is asked to uphold, concludes that the jurisdiction conferred upon it by the US declaration of acceptance of jurisdiction does not permit the ICJ to entertain these claims. However the effect of the reservation is confined to barring the applicability of the UN Charter Charter and the OAS Charter as multilateral treaty law, and has no further impact on the sources of international law which Article 38 of the Statute requires the Court to apply, including customary international law. The Facts
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Difficulties in the determination of the facts. The Court has had to determine the facts relevant to the dispute. The difficulty of its task derived from the marked disagreement between the Parties, the non-appearance of the US, the secrecy surrounding certain conduct, and the fact that the conflict is continuing. Regarding the last point, the ICJ holds that general principles as to the judicial process require that the facts on which its Judgment is based should be those occurring up to the close of the oral proceedings on the merits of the case. On evidence. With regard to the production of evidence, the Court indicates how the requirements of its Statute and the Rules of Court have to be met in the case, on the basis that the Court has freedom in estimating the value of the various elements of evidence. Article 53 of the Statute obliges the Court to employ whatever means and resources may enable it to satisfy itself whether the submissions of the applicant State are well-founded in fact and law, and simultaneously to safeguard the essential principles of the sound administration of justice.It has not seen fit to order an enquiry under Article 50 of the Statute. With regard to certain documentary material (press articles and various books), the Court has treated these with caution. It regards them not as evidence capable of proving facts, but as material which can nevertheless contribute to corroborating the existence of a fact and be taken into account to show whether certain facts are matters of public knowledge. With regard to statements by representatives of States, sometimes at the highest level, the Court takes the view that such statements are of particular probative value when they acknowledge facts or conduct unfavourable to the State represented by the person who made them. With regard to the evidence of witnesses presented by Nicaragua - five witnesses gave oral evidence and another a written affidavit-one consequence of the absence of the US was that the evidence of the witnesses was not tested by cross-examination. The Court has not treated as evidence any part of the testimony which was a mere expression of opinion as to the probability or otherwise of the existence of a fact not directly known to the witness. With regard in particular to affidavits and sworn statements made by members of a Government, the Court considers that it can certainly retain such parts of this evidence as may be regarded as contrary to the interests or contentions of the State to which the witness has allegiance; for the rest such evidence has to be treated with great reserve. In addition, the Court is aware of the existence and the contents of a publication of the United States State Department entitled "Revolution Beyond Our Borders, Sandinista Intervention in Central America” intended to justify the policy of the US towards Nicaragua. This publication was issued in September 1985, and on 6 November 1985 was circulated as an official document of the UN General Assembly and the Security Council, at the request of the US. This was not submitted to the Court in any formal manner contemplated by the Statute and Rules of Court, though on 13 September 1985 the United States Information Office in The Hague sent copies to an official of the Registry to be made available to anyone at the Court interested in the subject. The representatives of Nicaragua before the Court during the hearings were aware of the existence of this publication, since it was referred to in a question put to the Agent of Nicaragua by a Member of the Court. In view of the special circumstances of this case, it may, within limits, make use of information in such a publication. Facts imputable to the US Implied admission by the US? Nope. In connection with the question of proof of facts, the Court notes that Nicaragua has relied on an alleged implied admission by the US. It has drawn attention to the invocation of collective self-defence, and contended that "the use of the justification of collective self-defence constitutes a major admission of direct and substantial US involvement in the military and paramilitary operations" directed against Nicaragua. The normal purpose of an invocation of self-defence is to justify conduct which would otherwise be wrongful. If advanced as a justification in itself, not coupled with a denial of the conduct alleged, it may well imply both an admission of that conduct, and of the wrongfulness of that conduct in the absence of the justification of self-defence. This reasoning would do away with any difficulty in establishing the facts, which would have been the subject of an implicit overall admission by the US, simply through its attempt to justify them by the right of self-defence. However the US has not listed the facts or described the measures which it claims to have taken in self-defence, nor has it taken the stand that it is responsible for all the activities of which Nicaragua accuses it but such activities were justified by the right of self-defence. Since it has not done this, the US cannot be taken to have admitted all the activities, or any of them; the recourse to the right of self-defence thus does not make possible a firm and complete definition of admitted facts. The Court thus cannot consider reliance on selfdefence to be an implicit general admission on the part of the US; but it is certainly a recognition as to the imputability of some of the activities complained of.

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Mining of ports, waters. The Court examines the allegations of Nicaragua that the mining of Nicaraguan ports or waters was carried out by US military personnel or persons of the nationality of Latin American countries in the pay of and acting on the direct instructions of the US military or intelligence personnel (these persons were called “UCLAs” or “Unilaterally Controlled Latino
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Assets” by the CIA). After examining the facts, the Court finds it established that, on a date in late 1983 or early 1984, the President of the US (Reagan) authorized a US Government agency to lay mines in Nicaraguan ports, that in early 1984 mines were laid in or close to the ports of El Bluff, Corinto and Puerto Sandino, either in Nicaraguan internal waters or in its territorial sea or both, by persons in the pay and acting on the instructions of that agency, under the supervision and with the logistic support of US agents; that neither before the laying of the mines, nor subsequently, did the US Government issue any public and official warning to international shipping of the existence and location of the mines; and that personal and material injury was caused by the explosion of the mines, which also created risks causing a rise in marine insurance rates. Further attacks. Nicaragua attributes to the direct action of United States personnel, or UCLAs, operations against oil installations, a naval base, an international airport, on the port of Corinto (destroying oil installations), etc. The Court finds all these incidents, except three, to be established. The general pattern followed by these attacks, based on the evidence and press reports quoting United States administration sources, to have been as follows. A "mother ship" was supplied (apparently leased) by the CIA; whether it was of US registry does not appear. Speedboats, guns and ammunition were supplied by the US administration, and the actual attacks were carried out by UCLAs. Helicopters piloted by Nicaraguans and others piloted by US nationals were also involved on some occasions. According to one report the pilots were US civilians under contract to the CIA. Although it is not proved that any US military personnel took a direct part in the operations, agents of the US participated in the planning, direction, support and execution of the operations. The execution was the task rather of the UCLAs, while US nationals participated in the planning, direction and support. The imputability to the US of these attacks appears therefore to be established. Air space infringement. Nicaragua complains of infringement of its air space by US military aircraft. After indicating the evidence available, the Court finds that the only violations of Nicaraguan air space imputable to the US on the basis of the evidence are high altitude reconnaissance flights and low altitude flights on 7 to 11 November 1984 causing "sonic booms" (which caused glass windows to break, and was aimed at exerting psychological pressure on the Nicaraguan government and population). With regard to joint military manoeuvres with Honduras carried out by the US on Honduran territory near the Honduras/Nicaragua frontier, the Court considers that they may be treated as public knowledge and thus sufficiently established. The contra force. The Court then examines the genesis, development and activities of the contra force, and the role of the US in relation to it. According to Nicaragua, the US "conceived, created and organized a mercenary army, the contra force". On the basis of the available information (i.e., that some armed opposition already existed even before US interference), the Court is not able to satisfy itself that the US "created" the contra force in Nicaragua, but holds it established that it largely financed, trained, equipped, armed and organized (via mergers of the different armed groups arranged by the CIA) the FDN, one element of the force. It is claimed by Nicaragua that the US Government devised the strategy and directed the tactics of the contra force, and provided direct combat support for its military operations. In the light of the evidence and material available to it, the Court is not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics solely devised by the US. It therefore cannot uphold the contention of Nicaragua on this point. The Court however finds it clear that a number of operations were decided and planned, if not actually by the US advisers, then at least in close collaboration with them, and on the basis of the intelligence and logistic support which the US was able to offer. It is also established in the Court's view that the support of the US for the activities of the contras took various forms over the years, such as logistic support the supply of information on the location and movements of the Sandinista troops (intelligence reports), the use of sophisticated methods of communication, etc. The evidence does not however warrant a finding that the US gave direct combat support, if that is taken to mean direct intervention by US combat forces. On the other hand, the Court holds it established that the United States authorities largely financed, trained, equipped, armed and organized the FDN. The Court has to determine whether the relationship of the contras to the US Government was such that it would be right to equate the contras, for legal purposes, with an organ of the US Government, or as acting on behalf of that Government. The Court considers that the evidence available to it is insufficient to demonstrate the total dependence of the contras on US aid. A partial dependency, the exact extent of which the Court cannot establish, may be inferred from the fact that the leaders were selected by the United States, and from other factors such as the organisation, training and equipping of the force, planning of operations, the choosing of targets and the operational support provided. There is no clear evidence that the US actually exercised such a degree of control as to justify treating the contras as acting on its behalf. According to the ICJ US participation, even if preponderant or decisive in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence, for the purpose of attributing to the
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US the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by Nicaragua. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. The Court does not consider that the assistance given by the United States to the contras warrants the conclusion that these forces are subject to the United States to such an extent that any acts they have committed are imputable to that State. It takes the view that the contras remain responsible for their acts, and that the United States is not responsible for the acts of the contras, but for its own conduct vis-a-vis Nicaragua, including conduct related to the acts of the contras. What the Court has to investigate is not the complaints relating to alleged violations of humanitarian law by the contras, regarded by Nicaragua as imputable to the United States, but rather unlawful acts for which the United States may be responsible directly in connection with the activities of the contras. The lawfulness or otherwise of such acts of the United States is a question different from the violations of humanitarian law of which the contras may or may not have been guilty. It is for this reason that the Court does not have to determine whether the violations of humanitarian law attributed to the contras were in fact committed by them. At the same time, the question whether the United States Government was, or must have been, aware at the relevant time that allegations of breaches of humanitarian law were being made against the contras is relevant to an assessment of the lawfulness of the action of the United States. Economic measures. Nicaragua has complained of certain measures of an economic nature taken against it by the Government of the United States, which it regards as an indirect form of intervention in its internal affairs. Economic aid was suspended in January 1981, and terminated in April 1981; the United States acted to oppose or block loans to Nicaragua by international financial bodies; the sugar import quota from Nicaragua was reduced by 90 percent in September 1983; and a total trade embargo on Nicaragua was declared by an executive order of the President of the United States on 1 May 1985. The Conduct of Nicaragua WON Nicaragua is really at fault. The Court has to ascertain, so far as possible, whether the activities of the United States complained of, claimed to have been the exercise of collective self-defence, may be justified by certain facts attributable to Nicaragua. Vs. El Salvador. The United States has contended that Nicaragua was actively supporting armed groups operating in certain of the neighbouring countries, particularly in El Salvador, and specifically in the form of the supply of arms (and other forms of support to the opponents of the El Salvador government), an accusation which Nicaragua has repudiated. The Court first examines the activity of Nicaragua with regard to El Salvador. Having examined various evidence, and taking account of a number of concordant indications, many of which were provided by Nicaragua itself, from which the Court can reasonably infer the provision of a certain amount of aid from Nicaraguan territory, the Court concludes that support for the armed opposition in El Salvador from Nicaraguan territory was a fact up to the early months of 1981. Subsequently, evidence of military aid from or through Nicaragua remains very weak, despite the deployment by the United States in the region of extensive technical monitoring resources. The Court cannot however conclude that no transport of or traffic in arms existed. It merely takes note that the allegations of arms traffic are not solidly established, and has not been able to satisfy itself that any continuing flow on a significant scale took place after the early months of 1981. Even supposing it were established that military aid was reaching the armed opposition in El Salvador from the territory of Nicaragua, it still remains to be proved that such aid is imputable to the authorities of Nicaragua, which has not sought to conceal the possibility of weapons crossing its territory, but denies that this is the result of any deliberate official policy on its part. Having regard to the circumstances characterizing this part of Central America, the Court considers that it is scarcely possible for Nicaragua's responsibility for arms traffic on its territory to be automatically assumed. The Court considers it more consistent with the probabilities to recognize that an activity of that nature, if on a limited scale, may very well be pursued unknown to the territorial government. In any event the evidence is insufficient to satisfy the Court that the Government of Nicaragua was responsible for any flow of arms at either period.
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Vs. Honduras and Costa Rica. The United States has also accused Nicaragua of being responsible for cross-border military attacks on Honduras and Costa Rica. While not as fully informed on the question as it would wish to be, the Court considers as established the fact that certain trans-border military incursions are imputable to the Government of Nicaragua. The Judgment recalls certain events which occurred at the time of the fall of President Somoza, since reliance has been placed on them by the United States to contend that the present Government of Nicaragua is in violation of certain alleged assurances given by its immediate predecessor. The Judgment refers in particular to the "Plan to secure peace" sent on 12 July 1979 by the "Junta of the Government of National Reconstruction" of Nicaragua to the Secretary-General of the OAS, mentioning, inter alia, its "firm intention to establish full observance of human rights in our country" and "to call the first free elections our country has known in this century". The United States considers that it has a special responsibility regarding the implementation of these commitments. The Applicable Law: Customary International Law ISSUE: WON the reservation bars the application of customary international law, as its content may be identical to the barred treaties. HELD: NO. The ICJ would determine the case based on customary IL notwithstanding the exclusion from its jurisdiction of disputes arising under the UN Charter, OAS Charter. Effects of the multilateral treaty reservation. The US argues that since the reservation bars adjudication of claims based on those treaties (i.e. UN Charter, OAS Charter), it bars all of Nicaragua's claims. Thus the effect of the reservation in question is not merely to prevent the ICJ from deciding upon Nicaragua's claims by applying the multilateral treaties in question; it further prevents it from applying in its decision any rule of customary international law the content of which is also the subject of a provision in those multilateral treaties (that all principles of customary and general international law are barred, as these are subsumed and supervened by the provisions of the UN Charter.) This has already been rejected in the 1984 Judgment, though the points made there need some refinement. Customary vis-à-vis treaty law. The US apparently takes the view that the existence of principles in the UN Charter precludes the possibility that similar rules might exist independently in customary international law, either because existing customary rules had been incorporated into the Charter, or because the Charter influenced the later adoption of customary rules with a corresponding content. The Court does not consider that, in the areas of law relevant to the present dispute, it can be claimed that all the customary rules which may be invoked have a content exactly identical to that of the rules contained in the treaties which cannot be applied by virtue of the reservation. On a number of points, the areas governed by the two sources of law do not exactly overlap, and the substantive rules in which they are framed are not identical in content. But in addition, even if a treaty norm and a customary norm relevant to the present dispute were to have exactly the same content, this would not be a reason for the Court to take the view that the operation of the treaty process must necessarily deprive the customary norm of its separate applicability. Nor can the multilateral treaty reservation be interpreted as meaning that, once applicable to a given dispute, it would exclude the application of any rule of customary international law the content of which was the same as, or analogous to, that of the treaty-law rule which had caused the reservation to become effective. Regarding suggestion that the areas covered by the two sources of law are identical, the Court observes that the UN Charter, the convention to which most of the US argument is directed, by no means covers the whole area of the regulation of the use of force in international relations. On one essential point, this treaty itself refers to pre-existing customary international law (i.e. Art. 51 and the "inherent right" of individual or collective self-defense, which "nothing in the present Charter shall impair" and which applies in the event of an armed attack). The Court therefore finds that Art. 51 is only meaningful on the basis that there is a "natural" or "inherent" right of self-defense, and it is hard to see how this can be other than of a customary nature, even if its present content has been confirmed and influenced by the Charter. Moreover the Charter, having itself recognized the existence of this right, does not go on to regulate directly all aspects of its content. For example, it does not contain any specific rule whereby self-defense would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law. Moreover, a definition of the "armed attack" which, if found to exist, authorizes the exercise of the "inherent right" of self-defense, is not provided in the Charter, and is not part of treaty law. It cannot therefore be held that Art. 51 is a provision which "subsumes and supervenes" customary international law. It rather demonstrates that in the field in question, customary international law continues to exist alongside treaty law. The areas governed by the two sources of law thus do not
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overlap exactly, and the rules do not have the same content. This could also be demonstrated for other subjects, in particular for the principle of non-intervention. But even if the customary norm and the treaty norm were to have exactly the same content, this would not be a reason for the Court to hold that the incorporation of the customary norm into treaty-law must deprive the customary norm of its applicability as distinct from that of the treaty norm. The existence of identical rules in international treaty law and customary law has been clearly recognized by the Court in the North Sea Continental Shelf cases. To a large extent, those cases turned on the question whether a rule enshrined in a treaty also existed as a customary rule, either because the treaty had merely codified the custom, or caused it to "crystallize", or because it had influenced its subsequent adoption. The Court found that this identity of content in treaty law and in customary international law did not exist in the case of the rule invoked, which appeared in one article of the treaty, but did not suggest that such identity was debarred as a matter of principle: on the contrary, it considered it to be clear that certain other articles of the treaty in question "were . . . regarded as reflecting, or as crystallizing, received or at least emergent rules of customary international law." More generally, there are no grounds for holding that when customary international law is comprised of rules identical to those of treaty law, the latter "supervenes" the former, so that the customary international law has no further existence of its own. There are a number of reasons for considering that, even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence. This is so from the standpoint of their applicability. In a legal dispute affecting two States, one of them may argue that the applicability of a treaty rule to its own conduct depends on the other State's conduct in respect of the application of other rules, on other subjects, also included in the same treaty. For example, if a State exercises its right to terminate or suspend the operation of a treaty on the ground of the violation by the other party of a "provision essential to the accomplishment of the object or purpose of the treaty", it is exempted, vis-a-vis the other State, from a rule of treaty-law because of the breach by that other State of a different rule of treaty-law. But if the two rules in question also exist as rules of customary international law, the failure of the one State to apply the one rule does not justify the other State in declining to apply the other rule. Rules which are identical in treaty law and in customary international law are also distinguishable by reference to the methods of interpretation and application. A State may accept a rule contained in a treaty not simply because it favors the application of the rule itself, but also because the treaty establishes what that State regards as desirable institutions or mechanisms to ensure implementation of the rule. Thus, if that rule parallels a rule of customary international law, two rules of the same content are subject to separate treatment as regards the organs competent to verify their implementation, depending on whether they are customary rules or treaty rules. Thus customary international law continues to exist and to apply, separately from international treaty law, even where the two categories of law have an identical content. Consequently, in ascertaining the content of the customary international law applicable to this case, the ICJ must satisfy itself that the Parties are bound by the customary rules in question; but the Court is in no way bound to uphold these rules only in so far as they differ from the treaty rules which it is prevented by the reservation from applying in the present dispute. US argument, on pacta sunt servanda. The multilateral treaties contain legal standards specifically agreed between the States to govern their mutual rights and obligations, and their conduct will continue to be governed by these treaties, irrespective of what the Court may decide on the customary law issue, because of the principle of pacta sunt servanda. Accordingly, the ICJ cannot property adjudicate the mutual rights and obligations of the two States when reference to their treaty rights and obligations is barred; the Court would be adjudicating those rights and obligations by standards other than those to which the Parties have agreed to conduct themselves in their actual international relations. The Court’s answer. The question raised by this argument is whether the provisions of the multilateral treaties in question, particularly the UN Charter, diverge from the relevant rules of customary international law to such an extent that a judgment of the Court as to the rights and obligations of the parties under customary law, disregarding the content of the multilateral treaties binding on the parties, would be a wholly academic exercise. This isn’t the case. As already noted on the question of the use of force, the US itself argues for a complete identity of the relevant rules of customary international law with the provisions of the Charter. The Court has not accepted this extreme contention. However, so far from having constituted a marked departure from a customary international law which still exists unmodified, the Charter gave expression in this field to principles already present in customary international law, and that law has in the subsequent four decades developed under the influence of the Charter, to such an extent that a number of rules contained in the Charter have acquired a status independent of it. The essential consideration is that both the
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Charter and the customary international law flow from a common fundamental principle outlawing the use of force in international relations. The differences which may exist between the specific content of each are not such as to cause a judgment confined to the field of customary international law to be ineffective or inappropriate, or a judgment not susceptible of compliance or execution. The Content of the Applicable Law/Applicable Rules of Customary IL General observations. The Court has next to consider what are the rules of customary international law applicable to this case. For this purpose, it has to direct its attention to the practice and opinio juris of States. However the Court must not lose sight of the UN and OAS Charters, notwithstanding the operation of the multilateral treaty reservation. Although the Court has no jurisdiction to determine whether the conduct of the US constitutes a breach of those conventions, it can and must take them into account in ascertaining the content of the customary international law which the US is also alleged to have infringed. While the parties, to some degree, agree as to the content of customary international law regarding non-use of force and nonintervention, this doesn’t excuse the Court from having to determine for itself the applicable rules of customary international law. The mere fact that States declare their recognition of certain rules is insufficient for the Court to consider these as being part of customary international law, and as applicable as such to those States. Bound as it is by Art. 38 of its Statute to apply international custom "as evidence of a general practice accepted as law", the Court may not disregard the essential role played by general practice. In the field of customary international law, the shared view of the Parties as to the content of what they regard as the rule is not enough. The Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice. It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other's internal affairs. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule. The Prohibition of the use of force. Both Parties assert that the principles as to the use of force incorporated in the UN Charter correspond, in essentials, to those found in customary international law. The Parties thus take the view that the fundamental principle in this area is expressed in the terms employed in Article 2, paragraph 4, of the UN Charter. They therefore accept a treatylaw obligation to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the UN. The Court has however to be satisfied that there exists in customary international law an opinio juris as to the binding character of such abstention. This opinio juris may, though with all due caution, be deduced from the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, i.e. the "Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the UN". The effect of consent to the text of such resolutions cannot be understood as merely that of a "reiteration or elucidation" of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves. The principle of non-use of force, for example, may thus be regarded as a principle of customary international law, not as such conditioned by provisions relating to collective security, or to the facilities or armed contingents to be provided under Article 43 of the Charter. It would therefore seem apparent that the attitude referred to expresses an opinio juris respecting such rule (or set of rules), to be thenceforth treated separately from the provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter. For the US, the weight of an expression of opinio juris can similarly be attached to its support of the resolution of the Sixth International Conference of American States condemning aggression and ratification of the Montevideo Convention on Rights and Duties of States, which imposes the obligation not to recognize territorial acquisitions or special advantages which have been obtained by force. Also significant is US acceptance of the principle of the prohibition of the use of force which is contained in the declaration on principles governing the mutual relations of States participating in the Conference on Security and Co-operation in Europe, whereby the participating States undertake to "refrain in their mutual relations, as well as in their international relations in
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general," from the threat or use of force. Acceptance of a text in these terms confirms the existence of an opinio juris of the participating States prohibiting the use of force in international relations. A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2 of the UN Charter of may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law. Nicaragua in its Memorial on the Merits states that the principle prohibiting the use of force embodied in Article 2 "has come to be recognized as jus cogens". The US, in its CounterMemorial on the questions of jurisdiction and admissibility, found it material to quote the views of scholars that this principle is a "universal norm", a "universal international law", a "universally recognized principle of international law", and a "principle of jus cogens". As regards certain particular aspects of the principle in question, it will be necessary to distinguish the most grave forms of the use of force (armed attack) from other less grave forms. In determining the legal rule which applies to these latter forms, the Court can again draw on the formulations contained in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the UN Charter (which has also been adopted by States, indicating their opinion juris). This declaration provides: "Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States… States have a duty to refrain from acts of reprisal involving the use of force….” "Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State." Right of Self-defense. The general rule prohibiting force allows for certain exceptions. First, in the language of Art. 51 of the UN Charter, the inherent right (or "droit naturel") which any State possesses in the event of an armed attack, covers both collective and individual self-defense. Thus, the Charter itself testifies to the existence of the right of collective self-defense in customary international law. Moreover, just as the wording of certain General Assembly declarations adopted by States demonstrates their recognition of the principle of the prohibition of force as definitely a matter of customary international law, some of the wording in those declarations operates similarly in respect of the right of self-defense. Example, in the Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the UN, the reference to the prohibition of force is followed by a paragraph stating that "nothing in the foregoing paragraphs shall be construed as enlarging or diminishing in any way the scope of the provisions of the Charter concerning cases in which the use of force is lawful". This resolution demonstrates that the States represented in the General Assembly regard the exception to the prohibition of force constituted by the right of individual or collective self-defense as already a matter of customary international law. Regarding the characteristics governing the right of self-defense, since the Parties consider the existence of this right to be established as a matter of customary international law, they have concentrated on the conditions governing its use. The Parties agree that whether the response to the attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self-defense. In the case of individual self-defense, the exercise of this right is subject to the State concerned having been the victim of an armed attack. Reliance on collective self-defense of course does not remove the need for this. There appears now to be general agreement on the nature of the acts which can be treated as constituting armed attacks. In particular, it may be considered to be agreed that an armed attack must be understood as including not merely action by regular armed forces across an international border, but also "the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to" (inter alia) an actual armed attack conducted by regular forces, "or its substantial involvement therein". This description, contained in Art. 3 of the Definition of Aggression annexed to General Assembly resolution 3314may be taken to reflect customary international law. In customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces. But the Court does not believe that the concept of "armed attack" includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or other support. Such assistance may be regarded as a threat or use of force, or amount to intervention in the internal or external affairs of other States. It is also clear that it is the State which is the victim of an armed attack which must form and declare the view that it has been so attacked. There is no rule in customary international law permitting another State to exercise the right of collective self-defense on
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the basis of its own assessment of the situation. Where collective self-defense is invoked, it is to be expected that the State for whose benefit this right is used will have declared itself to be the victim of an armed attack. Does the lawfulness of the use of collective self-defense depend on a request of the victim State to a third State? The OAS Charter is here in point: "an act of aggression against one American State is an act of aggression against all the other American States" and "Every act of aggression by a State against the territorial integrity or the inviolability of the territory or against the sovereignty or political independence of an American State shall be considered an act of aggression against the other American States." In the Treaty of Rio de Janeiro, measures of collective self-defense taken by each State are decided "on the request of the State or States directly attacked". Thus in customary international law, whether of a general kind or that particular to the inter-American legal system, there is no rule permitting the exercise of collective self-defense in the absence of a request by the State which regards itself as the victim of an armed attack. The requirement of a request by the State which is the victim of the alleged attack is additional to the requirement that such a State should have declared itself to have been attacked. The principle of non-intervention. The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference. Between independent States, respect for territorial sovereignty is an essential foundation of international relations, and international law requires political integrity also to be respected. Expressions of an opinio juris regarding the existence of the principle of non-intervention in customary international law are numerous and not difficult to find. The existence in the opinio juris of States of the principle of non-intervention is backed by established and substantial practice. It has moreover been presented as a corollary of the principle of the sovereign equality of States. A particular instance of this is the Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States. The principle has since been reflected in numerous declarations adopted by international organizations and conferences in which the US and Nicaragua have participated. Notwithstanding the multiplicity of declarations by States accepting the principle of non-intervention, there remain two questions: first, what is the exact content of the principle so accepted, and secondly, is the practice sufficiently in conformity with it for this to be a rule of customary international law? In view of the generally accepted formulations, the principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely, i.e. the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State. These forms of action are therefore wrongful in the light of both the principle of non-use of force, and that of non-intervention. In view of the nature of Nicaragua's complaints against the US, and those expressed by the US in regard to Nicaragua's conduct towards El Salvador, it is primarily acts of intervention of this kind with which the Court is concerned in the present case. However, before reaching a conclusion on the nature of prohibited intervention, the Court must be satisfied that State practice justifies it. It has to consider whether there might be indications of a practice illustrative of belief in a kind of general right for States to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State, whose cause appeared particularly worthy by reason of the political and moral values with which it was identified. For such a general right to come into existence would involve a fundamental modification of the customary law principle of non-intervention. As was observed in the North Sea Continental Shelf cases, for a new customary rule to be formed, not only must the acts concerned "amount to a settled practice", but they must be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it must have behaved so that their conduct is "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." In recent years there have been a number of instances of foreign intervention in one State for the benefit of forces opposed to the
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government of that State. This practice doesn’t justify the view that any general right of intervention in support of an opposition within another State exists in contemporary international law. Neither the US nor Nicaragua asserts this. Collective counter-measures to non-armed attack. If one State acts towards another State in breach of the principle of nonintervention, may a third State lawfully take such action by way of counter-measures against the first State as would otherwise constitute an intervention in its internal affairs? A right to act in this way in the case of intervention would be analogous to the right of collective self-defense in the case of an armed attack, but both the act which gives rise to the reaction, and that reaction itself, would in principle be less grave. Does a State have a right to respond to intervention with intervention going so far as to justify a use of force in reaction to measures which do not constitute an armed attack but may nevertheless involve a use of force? For one State to use force against another, on the ground that that State has committed a wrongful act of force against a third State, is regarded as lawful, by way of exception, only when the wrongful act provoking the response was an armed attack. Thus the lawfulness of the use of force by a State in response to a wrongful act of which it has not itself been the victim is not admitted when this wrongful act is not an armed attack. Under international law in force today -- whether customary international law or that of the UN system -- States do not have a right of "collective" armed response to acts which do not constitute an "armed attack". Furthermore, the US itself is relying on the "inherent right of self-defense", but apparently does not claim that any such right exists as would, in respect of intervention, operate in the same way as the right of collective self-defense in respect of an armed attack. State sovereignty. The Court should now mention the principle of respect for State sovereignty, which in international law is of course closely linked with the principles of the prohibition of the use of force and of non-intervention. The basic legal concept of State sovereignty in customary international law extends to the internal waters and territorial sea of every State and to the air space above its territory. As to superjacent air space, the 1944 Chicago Convention on Civil Aviation reproduces the established principle of the complete and exclusive sovereignty of a State over the air space above its territory. That convention further specifies that the sovereignty of the coastal State extends to the territorial sea and to the air space above it, as does the UN Convention on the Law of the Sea. The Court has no doubt that these prescriptions of treaty-law merely respond to firmly established and longstanding tenets of customary international law. The laying of mines within the ports of another State is governed by the law relating to internal waters, which are subject to the sovereignty of the coastal State. The position is similar as regards mines placed in the territorial sea. It is therefore the sovereignty of the coastal State which is affected in such cases. It is also by virtue of its sovereignty that the coastal State may regulate access to its ports. On the other hand, it is true that in order to enjoy access to ports, foreign vessels possess a customary right of innocent passage in territorial waters for the purposes of entering or leaving internal waters. Since freedom of navigation is guaranteed, first in the exclusive economic zones and beyond territorial waters and on the high seas, it follows that any State which enjoys a right of access to ports for its ships also enjoys all the freedom necessary for maritime navigation. If this right of access to the port is hindered by the laying of mines by another State, what is infringed is the freedom of communications and of maritime commerce. At all events, it is certain that interference with navigation in these areas prejudices both the sovereignty of the coastal State over its internal waters, and the right of free access enjoyed by foreign ships. Humanitarian law. In peacetime for one State to lay mines in the internal or territorial waters of another is an unlawful act; but in addition, if a State lays mines in any waters whatever in which the vessels of another State have rights of access or passage, and fails to give any warning or notification whatsoever, in disregard of the security of peaceful shipping, it commits a breach of the principles of humanitarian law. Nicaragua has in the present proceedings not expressly invoked the provisions of international humanitarian law as such, even though it has complained of acts committed on its territory which would appear to be breaches of the provisions of such law. Since the evidence available is insufficient for the purpose of attributing to the US the acts committed by the contras, the Court rejects this submission. The question however remains of the law applicable to the acts of the US in relation to the activities of the contras. Although Nicaragua has refrained from making reference to the four Geneva Conventions of which both Nicaragua and the US are parties, the Court considers that the rules in Article 3, which is common to all four Geneva Conventions, applicable to armed conflicts of a noninternational character should be applied. In the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which reflect "elementary considerations of humanity."

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The conflict between the contras' forces and those of the Government of Nicaragua is an armed conflict which is "not of an international character". The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the actions of the US in and against Nicaragua fall under the legal rules relating to international conflicts. Because the minimum rules applicable to international and to non-international conflicts are identical, there is no need to address the question whether those actions must be looked at in the context of the rules which operate for the one or for the other category of conflict. The relevant principles are in Article 3. The Court considers that the US government has an obligation to "respect" the Conventions and even "to ensure respect" for them "in all circumstances", since such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression. The US is thus under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3, which reads as follows: "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for . . . The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention . . ." Application of the law to the facts ISSUE: WON the acts of the US are justified by the exercise of its right of collective self-defense against armed attack. HELD: NO. The plea of collective self-defense cannot be upheld. The US has violated the principle prohibiting recourse to the threat or use of force. On use of force. What is unlawful is recourse to either the threat or the use of force against the territorial integrity or political independence of any State. For the most part, the complaints by Nicaragua are of the actual use of force against it by the US (laying of mines, attacks on infrastructure). These activities constitute infringements of the principle of the prohibition of the use of force, unless they are justified by circumstances which exclude their unlawfulness. As to the claim that US activities in relation to the contras constitute a breach of the customary international law principle of the non-use of force, the Court finds that, subject to the question whether the action of the US might be justified as an exercise of the right of self-defense, the US has committed a prima facie violation of that principle by its assistance to the contras in Nicaragua, by "organizing or encouraging the organization of irregular forces or armed bands . . . for incursion into the territory of another State", and "participating in acts of civil strife . . . in another State." Participation of this kind is contrary to the principle of the prohibition of the use of force when the acts of civil strife referred to "involve a threat or use of force". While the arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua, this is not necessarily so in respect of all the assistance given by the US Government (i.e. supply of funds to contras). Self-defense applicable? For the Court to conclude that the US was lawfully exercising its right of collective self-defense, it must first find that Nicaragua engaged in an armed attack against El Salvador, Honduras or Costa Rica.
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As regards El Salvador, the Court has found that an intermittent flow of arms was routed via the territory of Nicaragua to the armed opposition in that country. The Court was not however satisfied that assistance has reached the Salvadorian armed opposition, on a scale of any significance, since the early months of 1981, or that the Government of Nicaragua was responsible for any flow of arms at either period. Even assuming that the supply of arms to the opposition in El Salvador could be treated as imputable to the Government of Nicaragua, to justify invocation of the right of collective self-defense in customary international law, it would have to be equated with an armed attack by Nicaragua on El Salvador. The Court is unable to consider that, in customary international law, the provision of arms to the opposition in another State constitutes an armed attack on that State. Turning to Honduras and Costa Rica, the Court has established that certain transborder incursions into the territory of those two States were imputable to the Government of Nicaragua. Very little information is however available to the Court as to the circumstances of these incursions or their possible motivations, which renders it difficult to decide whether they may be treated for legal purposes as amounting, singly or collectively, to an "armed attack." There are however other considerations which justify the Court in finding that neither these incursions, nor the alleged supply of arms to the opposition in El Salvador, may be relied on as justifying the exercise of the right of collective self-defense. An armed attack must have occurred. The exercise of the right of collective self-defense presupposes that an armed attack has occurred; and it is evident that it is the victim State, being the most directly aware of that fact, which is likely to draw general attention to its plight. It is also evident that if the victim State wishes another State to come to its help in the exercise of the right of collective self-defense, it will normally make an express request to that effect. The Court has seen no evidence that El Salvador, Honduras, and Costa Rica believed that they were victims of an armed attack by Nicaragua, nor that they requested for help. So far as El Salvador is concerned, while it did in fact officially declare itself the victim of an armed attack, and did ask for the US to exercise its right of collective self-defense, this occurred only on a date much later than the commencement of the US activities. It stated for the first time in its Declaration of Intervention (filed 1984) its requests for help to the US for it to exercise its right of collective self-defense, asserting on this occasion that it had been the victim of aggression from Nicaragua "since at least 1980," when it had multiple chances to assert this before 1984. As to Honduras and Costa Rica, they also were prompted by the institution of proceedings in this case to address communications to the Court; in neither of these is there mention of armed attack or collective self-defense. There is also an aspect of the conduct of the US which the Court is entitled to take into account as indicative of the view of that State on the question of the existence of an armed attack. At no time, up to the present, has the US Government addressed to the Security Council the report which is required by Article 51 of the UN Charter in respect of measures which a State believes itself bound to take when it exercises the right of individual or collective self-defense. The Court, whose decision has to be made on the basis of customary international law, has already observed that in the context of that law, the reporting obligation enshrined in Article 51 of the Charter of the UN does not exist. It does not therefore treat the absence of a report on the part of the US as the breach of an undertaking forming part of the customary international law applicable to the present dispute. But the Court is justified in observing that this conduct of the US hardly conforms with the latter's avowed conviction that it was acting in the context of collective self-defense as consecrated by Article 51 of the Charter. This fact is all the more noteworthy because, in the Security Council, the US has itself taken the view that failure to observe the requirement to make a report contradicted a State's claim to be acting on the basis of collective self-defense. Since the Court has found that the condition sine qua non required for the exercise of the right of collective self-defense by the US is not fulfilled in this case, the appraisal of the US activities in relation to the criteria of necessity and proportionality takes on a different significance. As a result of this conclusion of the Court, even if the US activities in question had been carried on in strict compliance with the canons of necessity and proportionality, they would not thereby become lawful. If however they were not, this may constitute an additional ground of wrongfulness. On the question of necessity, the US measures taken in December 1981 cannot be said to correspond to a "necessity" justifying the US action against Nicaragua on the basis of assistance given by Nicaragua to the armed opposition in El Salvador. First, these measures were only taken, and began to produce their effects, several months after the major offensive of the armed opposition against the Government of El Salvador had been completely repulsed, and the actions of the opposition considerably reduced in consequence. Thus it was possible to eliminate the main danger to the Salvadorian Government without the US embarking on activities in and against Nicaragua. Accordingly, it cannot be held that these activities were undertaken in the light of necessity. Whether or not the assistance to the contras might meet the criterion of proportionality, the Court cannot regard the US activities (the mining of the Nicaraguan ports and the attacks on ports, oil installations, etc.) as
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satisfying that criterion. Whatever uncertainty may exist as to the exact scale of the aid received by the Salvadorian armed opposition from Nicaragua, it is clear that these latter US activities in question could not have been proportionate to that aid. Finally the reaction of the US in the context of what it regarded as self-defense was continued long after the period in which any presumed armed attack by Nicaragua could reasonably be contemplated. ISSUE: WON the US violated the principle of non-intervention. HELD: YES. The support given by the US to the military and paramilitary activities of the contras in Nicaragua, by financial support, training, supply of weapons, intelligence and logistic support, constitutes a clear breach of the principle of non-intervention. The principle of non-intervention in the internal affairs of States. It is argued by Nicaragua that the "military and paramilitary activities aimed at the government and people of Nicaragua" have two purposes: the actual overthrow of the existing lawful government of Nicaragua and its replacement by a government acceptable to the US; and the substantial damaging of the economy, and the weakening of the political system, in order to coerce the government into the acceptance of US policies and political demands. Nicaragua also contends that the various acts of an economic nature constitute a form of "indirect" intervention in Nicaragua's internal affairs. The Court however does not consider it necessary to seek to establish whether the intention of the US to secure a change of governmental policies in Nicaragua went so far as to be equated with an endeavor to overthrow the Nicaraguan Government. It appears to the Court to be clearly established first, that the US intended, by its support of the contras, to coerce the Government of Nicaragua in respect of matters in which each State is permitted, by the principle of State sovereignty, to decide freely; and secondly that the intention of the contras themselves was to overthrow the present Government of Nicaragua. Even if it be accepted, for the sake of argument, that the objective of the US in assisting the contras was solely to interdict the supply of arms to the armed opposition in El Salvador, it strains belief to suppose that a body formed in armed opposition to the Government of Nicaragua, and calling itself the "Nicaraguan Democratic Force", intended only to check Nicaraguan interference in El Salvador and did not intend to achieve violent change of government in Nicaragua. In international law, if one State, with a view to the coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that amounts to an intervention by the one State in the internal affairs of the other, whether or not the political objective of the State giving such support and assistance is equally far-reaching. The Court has however taken note that the US Congress has restricted the use of the funds appropriated for assistance to the contras to "humanitarian assistance". There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law. The US legislation which limited aid to the contras to humanitarian assistance however also defined what was meant by such assistance, namely: "the provision of food, clothing, medicine, and other humanitarian assistance, and it does not include the provision of weapons, weapons systems, ammunition, or other equipment, vehicles, or material which can be used to inflict serious bodily harm or death.” It is also to be noted that, while the US Congress has directed that the CIA and Department of Defense are not to administer any of the funds voted, it was understood that intelligence information might be "shared" with the contras. An essential feature of truly humanitarian aid is that it is given "without discrimination" of any kind. In the view of the Court, if the provision of "humanitarian assistance" is to escape condemnation as an intervention in the internal affairs of Nicaragua, not only must it be limited "to prevent and alleviate human suffering", and "to protect life and health and to ensure respect for the human being"; it must also, and above all, be given without discrimination to all in need in Nicaragua, not merely to the contras and their dependents. Nicaragua has also asserted that the US is responsible for an "indirect" form of intervention in its internal affairs inasmuch as it has taken, to Nicaragua's disadvantage, certain action of an economic nature. While admitting in principle that some of these actions were not unlawful in themselves, counsel for Nicaragua argued that these measures of economic constraint add up to a systematic violation of the principle of non-intervention. The Court is unable to regard such action on the economic plane as is here complained of as a breach of the customary-law principle of non-intervention.

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The principle of non-intervention derives from customary international law. It would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another State -- supposing such a request to have actually been made by an opposition to the regime in Nicaragua in this instance. Indeed, it is difficult to see
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what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition. This would permit any State to intervene at any moment in the internal affairs of another State, whether at the request of the government or at the request of its opposition. ISSUE: WON the US activities might be justified as a response to an intervention by Nicaragua in the internal affairs of another State in Central America (supply of arms to opposition in El Salvador). HELD: NO, the applicable law does not warrant such a justification. No collective counter-measure. While an armed attack would give rise to an entitlement to collective self-defense, a use of force of a lesser degree of gravity cannot produce any entitlement to take collective counter-measures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate counter-measures on the part of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-measures taken by a third State, the US, and particularly could not justify intervention involving the use of force. ISSUE: WON the US violated the principle of respect for territorial sovereignty. HELD: YES. Principles overlap. The effects of the principle of respect for territorial sovereignty inevitably overlap with those of the principles of the prohibition of the use of force and of non-intervention. Thus the assistance to the contras, as well as the direct attacks on Nicaraguan ports, oil installations, etc., not only amount to an unlawful use of force, but also constitute infringements of the territorial sovereignty of Nicaragua, and incursions into its territorial and internal waters. Similarly, the mining operations in the Nicaraguan ports not only constitute breaches of the principle of the non-use of force, but also affect Nicaragua's sovereignty over certain maritime expanses. The principle of respect for territorial sovereignty is also directly infringed by the unauthorized overflight of a State's territory by aircraft belonging to or under the control of the government of another State. These violations cannot be justified either by collective self-defense, for which, as the Court has recognized, the necessary circumstances are lacking, nor by any right of the US to take counter-measures involving the use of force in the event of intervention by Nicaragua in El Salvador, since no such right exists under the applicable international law. They cannot be justified by the activities in El Salvador attributed to the Government of Nicaragua. Where the vessels of one State enjoy a right of access to ports of another State, if that right of access is hindered by the laying of mines, this constitutes an infringement of the freedom of communications and of maritime commerce. It is clear that interference with a right of access to the ports of Nicaragua is likely to have an adverse effect on Nicaragua's economy and its trading relations with any State whose vessels enjoy the right of access to its ports. Accordingly, the Court finds that the laying of mines in or near Nicaraguan ports constituted an infringement, to Nicaragua's detriment, of the freedom of communications and of maritime commerce. ISSUE: WON the general principles of humanitarian law were violated. HELD: YES. Mines, Manual on Guerilla Warfare. The Court has found the US responsible for the failure to give notice of the mines in the Nicaraguan ports. Nicaragua has accused the contras of violations both of the law of human rights and humanitarian law, and is attributing responsibility for these acts to the US. The Court has however found that this submission of Nicaragua cannot be upheld; but it has also found the US responsible for the publication and dissemination of the manual on "Psychological Operations in Guerrilla Warfare." The Court has also found that general principles of humanitarian law include a particular prohibition, accepted by States, and extending to activities which occur in the context of armed conflicts, whether international in character or not. By virtue of such general principles, the US is bound to refrain from encouragement of persons or groups engaged in the conflict in Nicaragua to commit violations of Article 3 which is common to all four Geneva Conventions. The Court takes note of the advice given in the manual on psychological operations to "neutralize" certain "carefully selected and planned targets", including judges, police officers, State Security officials, etc., after the local population has been gathered in order to "take part in the act and formulate accusations against the oppressor". In the view of the Court, this must be regarded as contrary to the prohibition in Article 3 of the Geneva Conventions, with respect to non-combatants, of "the passing of sentences and the carrying out of executions without previous
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judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples" and probably also of the prohibition of "violence to life and person, in particular murder to all kinds, . . .". The Court has also found that those responsible for the issue of the manual were aware of, at the least, allegations that the behavior of the contras in the field was not consistent with humanitarian law; it was in fact even claimed by the CIA that the purpose of the manual was to "moderate" such behavior. The publication and dissemination of a manual in fact containing the advice quoted above must therefore be regarded as an encouragement, which was likely to be effective, to commit acts contrary to general principles of international humanitarian law reflected in treaties. ISSUE: WON there is anything in the conduct of Nicaragua which might legally warrant counter-measures by the US. HELD: NO. Matters of policy. The US claims that Nicaragua breached its "solemn commitments to the Nicaraguan people, the US, and the Organization of American States". Those breaches were stated to involve questions such as the composition of the government, its political ideology and alignment, totalitarianism, human rights, militarization and aggression. The questions as to which the Nicaraguan Government is said to have entered into a commitment are questions of domestic policy. The Court would not therefore normally consider it appropriate to engage in a verification of the truth of assertions of this kind, even assuming that it was in a position to do so. A State's domestic policy falls within its exclusive jurisdiction, provided of course that it does not violate any obligation of international law. Every State possesses a fundamental right to choose and implement its own political, economic and social systems. With reference to the "Plan to secure peace" put forward by the Junta of the Government of National Reconstruction, the Court is unable to find anything in the documents and communications transmitting the plan from which it can be inferred that any legal undertaking was intended to exist. The Court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system. Furthermore the US has not advanced a legal argument based on an alleged new principle of "ideological intervention". With regard more specifically to alleged violations of human rights relied on by the United States, the Court considers that the use of force by the United States could not be the appropriate method to monitor or ensure respect for such rights, normally provided for in the applicable conventions. With regard to the alleged militarization of Nicaragua, also referred to by the United States to justify its activities, the Court observes that in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States without exception. Nicaragua’s claims based on the 1956 Treaty ISSUE: WON the US, by its conduct in relation to Nicaragua, has deprived the Treaty of its object and purpose, and emptied it of real content. HELD: YES. Pacta sunt servanda. Nicaragua has relied on the existence of a legal obligation of States to refrain from acts which would impede the due performance of any treaties entered into by them. However, if there is a duty of a State not to impede the due performance of a treaty to which it is a party, that is not a duty imposed by the treaty itself. Nicaragua itself apparently contends that this is a duty arising under customary international law independently of the treaty, that it is implicit in the rule pacta sunt servanda. This claim therefore does not in fact fall under the heading of possible breach by the US of the provisions of the 1956 Treaty, though it may involve the interpretation or application thereof. However certain activities do undermine the spirit of the agreement: the mining of Nicaraguan ports, the direct attacks on ports, oil installations, etc., and the general trade embargo. The Court therefore finds that the United States is prima facie in breach of an obligation not to deprive the 1956 Treaty of its object and purpose (pacta sunt servanda), and has committed acts in contradiction with the terms of the Treaty. The Court has however to consider whether the exception in Article XXI concerning "measures . . . necessary to protect the essential security interests" of a Party may be invoked to justify the acts complained of. After examining the available material, the Court finds that the mining of Nicaraguan ports, and the direct attacks on ports and oil installations, and the general trade embargo cannot be justified as necessary to protect the essential security interests of the United States.
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ISSUE: WON Nicaragua is entitled to compensation. HELD: YES. Show sustained injury. The Court considers appropriate the request of Nicaragua for the nature and amount of the reparation due to it to be determined in a subsequent phase of the proceedings. While a certain amount of evidence has been provided of pecuniary loss sustained, this was based upon contentions as to the responsibility of the US which were more far-reaching than the conclusions at which the Court has been able to arrive. The opportunity should be afforded Nicaragua to demonstrate and prove exactly what injury was suffered as a result of each action of the US which the Court has found contrary to international law. Nor should it be overlooked that, while the US has chosen not to appear or participate in the present phase of the proceedings, Article 53 of the Statute does not debar it from appearing to present its arguments on the question of reparation if it so wishes. On the contrary, the principle of the equality of the Parties requires that it be given that opportunity. It goes without saying, however, that in the phase of the proceedings devoted to reparation, neither Party may call in question such findings in the present Judgment as have become res judicata. There remains the request of Nicaragua for an award of $370,200,000 as the "minimum valuation of direct damages". There is no provision in the Statute of the Court either specifically empowering the Court to make an interim award of this kind, or indeed debarring it from doing so. In view of the final and binding character of the Court's judgments, it would however only be appropriate to make an award of this kind, assuming that the Court possesses the power to do so, in exceptional circumstances, and where the entitlement of the State making the claim was already established with certainty and precision. Regarding provisional measures. The Court considers that it is incumbent on each Party not to direct its conduct solely by reference to what it believes to be its rights. Particularly is this so in a situation of armed conflict where no reparation can efface the results of conduct which the Court may rule to have been contrary to international law. Peaceful settlement of disputes. The Court has found that the US has violated a number of principles of customary international law. The Court has however also to recall a further principle of international law, one which is complementary to the principles of a prohibitive nature examined above, and respect for which is essential in the world of today: the principle that the parties to any dispute, particularly any dispute the continuance of which is likely to endanger the maintenance of international peace and security, should seek a solution by peaceful means. This principle has also the status of customary law. The Court has already taken note of the diplomatic negotiation known as the Contadora Process, which appears to the Court to correspond closely to the spirit of the principle which the Court has here recalled. In its Order indicating provisional measures, the Court took note of the Contadora Process, and of the fact that it had been endorsed by the UN Security Council and General Assembly. During that phase of the proceedings as during the phase devoted to jurisdiction and admissibility, both Nicaragua and the US have expressed full support for the Contadora Process, and praised the results achieved so far. Therefore, the Court could not but take cognizance of this effort, which merits full respect and consideration as a unique contribution to the solution of the difficult situation in the region. The work of the Contadora Group may facilitate the delicate and difficult negotiations, in accord with the letter and spirit of the UN Charter, that are now required. The Court recalls to both Parties to the present case the need to cooperate with the Contadora efforts in seeking a definitive and lasting peace in Central America, in accordance with the principle of customary international law that prescribes the peaceful settlement of international disputes. For these reasons, THE COURT (1) By eleven votes to four, Decides that in adjudicating the dispute brought before it by the Application filed by the Republic of Nicaragua on 9 April 1984, the Court is required to apply the "multilateral treaty reservation" contained in proviso (c) to the declaration of acceptance of jurisdiction made under Article 36, paragraph 2, of the Statute of the Court by the Government of the US of America deposited on 26 August 1946; (2) By twelve votes to three,
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Rejects the justification of collective self-defense maintained by the US of America in connection with the military and paramilitary activities in and against Nicaragua the subject of this case;

(3) By twelve votes to three, Decides that the US of America, by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to intervene in the affairs of another State; (4) By twelve votes to three, Decides that the US of America, by certain attacks on Nicaraguan territory in 1983-1984, namely attacks on Puerto Sandino on 13 September and 14 October 1983 ; an attack on Corinto on 10 October 1983 ; an attack on Potosi Naval Base on 4/5 January 1984; an attack on San Juan del Sur on 7 March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March 1984; and an attack on San Juan del Norte on 9 April 1984; and further by those acts of intervention referred to in subparagraph (3) hereof which involve the use of force, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to use force against another State; (5) By twelve votes to three, Decides that the US of America, by directing or authorizing overflights of Nicaraguan territory, and by the acts imputable to the US referred to in subparagraph (4) hereof, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to violate the sovereignty of another State; (6) By twelve votes to three, Decides that, by laying mines in the internal or territorial waters of the Republic of Nicaragua during the first months of 1984, the US of America has acted, against the Republic of Nicaragua, in breach of its obligations under customary international law not to use force against another State, not to intervene in its affairs, not to violate its sovereignty and not to interrupt peaceful maritime commerce; (7) By fourteen votes to one, Decides that, by the acts referred to in subparagraph (6) hereof, the US of America has acted, against the Republic of Nicaragua, in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the US of America and the Republic of Nicaragua signed at Managua on 21 January 1956; (8) By fourteen votes to one, Decides that the US of America, by failing to make known the existence and location of the mines laid by it, referred to in subparagraph (6) hereof, has acted in breach of its obligations under customary international law in this respect; (9) By fourteen votes to one, Finds that the US of America, by producing in 1983 a manual entitled Operaciones sicologicas en guerra de guerrillas, and disseminating it to contra forces, has encouraged the commission by them of acts contrary to general principles of humanitarian law; but does not find a basis for concluding that any such acts which may have been committed are imputable to the US of America as acts of the US of America;

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(10) By twelve votes to three, Decides that the US of America, by the attacks on Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring a
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general embargo on trade with Nicaragua on 1 May 1985, has committed acts calculated to deprive of its object and purpose the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956; (11) By twelve votes to three, Decides that the US of America, by the attacks on Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985, has acted in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956; (12) By twelve votes to three, Decides that the US of America is under a duty immediately to cease and to refrain from all such acts as may constitute breaches of the foregoing legal obligations; (13) By twelve votes to three, Decides that the US of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of obligations under customary international law enumerated above; (14) By fourteen votes to one, Decides that the US of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956; (15) By fourteen votes to one, Decides that the form and amount of such reparation, failing agreement between the Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case; (16) Unanimously, Recalls to both Parties their obligation to seek a solution to their disputes by peaceful means in accordance with international law.

SOUTH WEST AFRICA CASES: ETHIOPIA V. SOUTH AFRICA; LIBERIA V. SOUTH AFRICA
Second Phase; Judgment of July 18, 1966 This is a legal challenge brought by Ethiopia & Liberia against South Africa WRT the practice of apartheid (although never mentioned here!!) The action is based on the mandate given to South Africa to promote the material & moral well-being & social progress of inhabitants of the South West African territory. The Court did not decide on the merits because it did not consider the case as involving a legal issue because there was no law prohibiting apartheid. The Applicants tried to derive a legal right or interest in the conduct of the Mandate for South West Africa from the simple principle of the “sacred trust”. The principles set forth here have been obliterated in latter cases. Fundamental equality is now considered an erga omnes obligation since it is a fundamental human right. JURISDICTION. By its Dec. 21, 1962 Judgment, the Court rejected the 4 preliminary objections raised by South Africà & found that it had jurisdiction to adjudicate upon the merits of the dispute submitted to it on Nov. 4, 1960 by the Applications of Ethiopia & Liberia. Time-limits for the filing of the further pleadings on the merits were fixed or, at the request of the Parties, extended, by ND Orders of Feb. 5, 1963, Sept. 18, 1963, Jan. 20, 1964 & Oct. 20, 1964; & the 2 phase of the cases became ready for hearing on Dec. 23, 1964, when the Rejoinder of South Africa was filed. Pursuant to Art. 31, par. 3, of the Statute, & the Order of May 20, 1961, Ethiopia & Liberia, acting in concert, chose Sir Louis Mbanefo, Chief Justice of the Eastern Region of Nigeria, to sit as Judge ad hoc, while South Africa chose the Honourable J. T. Van Wyk, Judge of the Appellate Division of the Supreme Court of South Africa, to sit st as Judge ad hoc. Both judges had sat in the 1 phase of the proceedings.
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NO RECOMPOSITION OF THE COURT. On Mar. 14, 1965, South Africa notified the Court and the Applicants of its intention to make an application relating to the composition of the Court for the purposes of these cases. The Court heard the Parties’ contentions WRT to the application at closed hearings held on Mar. 15 & 16, 1965 & denied the application, in the Order of Mar. 18, 1965. Public sittings of the Court were held during the periods Mar. 15 to July 14 and Sept. 20 to Nov. 29, 1965. ORAL ARGUMENTS. At the Apr. 27 to May 4 1965 hearings, the Court heard the Parties’ views on South Africa’s proposal that the Court inspect in loco the Territory of South West Africa & that the Court should visit South Africa, Ethiopia & Liberia, & 1 or 2 countries of the Court's own choosing south of the Sahara. At the public sitting on Nov. 29, after all the evidence were presented, the request was denied. SOUTH AFRICA MUST BE HEARD. At the May 14 hearing, the President announced that the Court was denying Ethiopia & Liberia’s proposal that the Court should decide that South Africa, in lieu of calling witnesses or experts to testify personally, should embody the evidence in depositions or written statements. The Statute & Rules of Court contemplated a right in a party to produce evidence by calling witnesses & experts, & it must be left to exercise the right as it saw fit, subject to the provisions of the Statute & Rules of Court. TESTIMONIES. At the hearings from June 18 to July 14 and from Sept. 20 to Oct. 21, 1965, the Court heard the evidence of the witnesses and experts called by the Government of South African reply to questions put to them in examination, cross-examination and re-examination on behalf of the Parties, and by Member of the Court. In the course of the written proceedings, the following Submissions were presented by the Parties: On behalf of the Governments of Ethiopia and Liberia, in the Applications: "Wherefore, may it please the Court, to adjudge and declare, whether the Government of the Union of South Africa is present or absent and after such time limitations as the Court may see fit to fix, that: A. South West Africa is a territory under the Mandate conferred upon His Britannic Majesty by the Principal Allied and Associated Powers, to be exercised on his behalf by the Government of the Union of South Africa, accepted by His Britannic Majesty for and on behalf of the Government of the Union of South Africa, and confirmed by the Council of the League of Nations on Dec. 17, 1920; and that the aforesaid Mandate is a treaty in force, within the meaning of Article 37 of the Statute of the International Court of Justice. B. The Union of South Africa remains subject to the international obligations set forth in Article 22 of the Covenant of the League of Nations and in the Mandate for South West Africa, and that the General Assembly of the United Nations is legally qualified to exercise the supervisory functions previously exercised by the League of Nations with regard to the administration of the Territory; and that the Union is under an obligation to submit to the supervision and control of the General Assembly with regard to the exercise of the Mandate. C. The Union of South Africa remains subject to the obligations to transmit to the United Nations petitions from the inhabitants of the Territory, as well as to submit an annual report to the satisfaction of the United Nations in accordance with Article 6 of the Mandate. D. The Union has substantially modified the terms of the Mandate without the consent of the United Nations; that such modification is a violation of Article 7 of the Mandate and Article 22 of the Covenant; and that the consent of the United Nations is a necessary prerequisite and condition to attempts on the part of the Union directly or indirectly to modify the terms of the Mandate. E. The Union has failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory; its failure to do so is a violation of Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to take all practicable action to fulfill its duties under such Articles. F. The Union, in administering the Territory, has practiced apartheid, i.e. has distinguished as to race, color, national or tribal origin in establishing the rights and duties of the inhabitants of the Territory; that such practice is in violation of Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to cease the practice of apartheid in the Territory. G. The Union, in administering the Territory, has adopted and applied legislation, regulations, proclamations, and administrative decrees which are by their terms and in their application, arbitrary, unreasonable, unjust and detrimental to human dignity; that the foregoing actions by the Union violate Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to repeal and not to apply such legislation, regulations, proclamations, and administrative decrees. H. The Union has adopted and applied legislation, administrative regulations, and official actions which suppress the rights and liberties of inhabitants of the Territory essential to their orderly evolution toward self-government, the right to which is implicit in
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the Covenant of the League of Nations, the terms of the Mandate, and currently accepted international standards, as embodied in the Charter of the United Nations and the Declaration of Human Rights; that the foregoing actions by the Union violate Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to cease and desist from any action which thwarts the orderly development of self government in the Territory. I. The Union has exercised powers of administration and legislation over the Territory inconsistent with the international status of the Territory; that the foregoing action by the Union is in violation of Article 2 of the Mandate and Article 22 of the Covenant; that the Union has the duty to refrain from acts of administration and legislation which are inconsistent with the international status of the Territory. J. The Union has failed to render to the General Assembly of the United Nations annual reports containing information with regard to the Territory and indicating the measures it has taken to carry out its obligations under the Mandate; that such failure is a violation of Article 6 of the Mandate; and that the Union has the duty forthwith to render such annual reports to the General Assembly. K. The Union has failed to transmit to the General Assembly of the United Nations petitions from the Territory's inhabitants addressed to the General Assembly; that such failure is a violation of the League of Nations rules; and that the Union has the duty to transmit such petitions to the General Assembly. The Applicant reserves the right to request the Court to declare and adjudge with respect to such other and further matters as the Applicant may deem appropriate to present to the Court. May it also please the Court to adjudge and declare whatever else it may deem fit and proper in regard to this Application, and to make al1 necessary awards and orders, including an award of costs, to effectuate its determinations"; In the Memorials: "Upon the basis of the foregoing allegations of fact, supplemented by such facts as may be adduced in further testimony before this Court, and the foregoing statements of law, supplemented by such other statements of law as may be hereinafter made, may it please the Court to adjudge and declare, whether the Government of the Union of South Africa is present or absent, that: 1. South West Africa is a territory under the Mandate conferred upon His Britannic Majesty by the Principal Allied and Associated Powers, to be exercised on his behalf by the Government of the Union of South Africa, accepted by his Britannic Majesty for and on behalf of the Government of the Union of South Africa, and confirmed by the Council of the League of Nations on Dec. 17, 1920; 2. The Union of South Africa continues to have the international obligations stated in Article 22 of the Covenant of the League of Nations and in the Mandate for South West Africa as well as the obligation to transmit petitions from the inhabitants of that Territory, the supervisory functions to be exercised by the United Nations, to which the annual reports and the petitions are to be submitted; 3. The Union, in the respects set forth in Chapter V of this Memorial and summarized in Paragraphs 189 and 190 thereof, has practiced apartheid, i.e., has distinguished as to race, color, national or tribal origin in establishing the rights and duties of the inhabitants of the Territory; that such practice is in violation of its obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant of the League of Nations; and that the Union has the duty forthwith to cease the practice of apartheid in the Territory ; 4. The Union, by virtue of the economic, political, social and educational policies applied within the Territory, which are described in detail in Chapter V of this Memorial and summarized at Paragraph 190 thereof, has failed to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory; that its failure to do so is in violation of its obligations as stated in the second paragraph of Article 2 of the Mandate and Article 22 of the Covenant; and that the Union has the duty forthwith to cease its violations as aforesaid and to take all practicable action to fulfill its duties under such Articles; 5. The Union, by word and by action, in the respects set forth in Chapter VI11 of this Memorial, has treated the Territory in a manner inconsistent with the international status of the Territory, and has thereby impeded opportunities for self-determination by the inhabitants of the Territory; that such treatment is in violation of the Union's obligations as stated in the first paragraph of Article 2 of the Mandate and Article 22 of the Covenant; that the Union has the duty forthwith to cease the actions summarized in Section C of Chapter VI11 herein, and to refrain from similar actions in the future; and that the Union has the duty to accord full faith and respect to the international status of the Territory ; 6. The Union, by virtue of the acts described in Chapter VII herein, has established military bases within the Territory in violation of its obligations as stated in Article 4 of the Mandate and Article 22 of the Covenant; that the Union has the duty forthwith to remove all such military bases from within the Territory; and that the Union has the duty to refrain from the establishment of military bases within the Territory; 7. The Union has failed to render to the General Assembly of the United Nations annual reports containing information with regard to the Territory and indicating the measures it has taken to carry out its obligations under the mandate; that such a failure is a
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violation of its obligations as stated in Article 6 of the Mandate; and that the Union has the duty forthwith to render such annual reports to the General Assembly; 8. The Union has failed to transmit to the General Assembly of the United Nations petitions from the territory's inhabitants addressed to the General Assembly; that such failure is a violation of its obligations as Mandatory; and that the Union has the duty to transmit such petitions to the General Assembly; 9. The Union, by virtue of the acts described in Chapters V, VI, VI1 and VJII of this Memorial coupled with its intent as recounted herein, has attempted to modify substantially the terms of the Mandate, without the consent of the United Nations; that such attempt is in violation of its duties as stated in Article 7 of the Mandate and Article 22 of the Covenant; and that the consent of the United Nations is a necessary prerequisite and condition precedent to attempts on the part of the Union directly or indirectly to modify the terms of the Mandate. The Applicant reserves the right to request the Court to declare and adjudge in respect to events which may occur subsequent to the date this Memorial is filed, including any event by which the Union's juridical and constitutional relationship to Her Britannic Majesty undergoes any substantial modification. May it also please the Court to adjudge and declare whatever else it may deem fit and proper in regard to this Memorial, and to make all necessary awards and orders, including an award of costs, to effectuate its determinations"; In the Reply: "Upon the basis of the allegations of fact in the Memorials, supplemented by those set forth herein or which may subsequently be adduced before this Honourable Court, and the statements of law pertaining thereto, as set forth in the Memorials and in this Reply, or by such other statements as hereafter may be made, Applicants respectfully reiterate their prayer that the Court adjudge and declare in accordance with, and on the basis of, the Submissions set forth in the Memorials, which Submissions are hereby reaffirmed and incorporated by reference herein. Applicants further reserve the right to request the Court to declare and adjudge in respect of events which may occur subsequent to the date of filing of this Reply. Applicants further reiterate and reaffirm their prayer that it may please the Court to adjudge and declare whatever else it may deem fit and proper in regard to the Memorials or to this Reply, and to make al necessary awards and orders, including an award of costs, to effectuate its determinations." On behalf of the Government of South Africa, in the Counter-Memorial: Upon the basis of the statements of fact & law as set forth in the several Volumes of this Counter-Memorial, may it please the Court to adjudge & declare that the Submissions of Ethiopia & Liberia as recorded at pages 168 to 169 of their Memorials are unfounded & that no declaration be made as claimed by them. In particular Respondent submits: 1. That the whole Mandate for South West Africa lapsed on the dissolution of the League of Nations, and that Respondent is, in consequence thereof, no longer subject to any legal obligations thereunder. 2. In the alternative to (1) above, and in the event of it being held that the Mandate as such continued in existence despite the dissolution of the League of Nations: (a) Relative to Applicants' Submissions Nos. 2, 7 and 8, that Respondent's former obligations under the Mandate to report and account to, and to submit to the supervision of, the Council of the League of Nations, lapsed upon the dissolution of the League, and have not been replaced by any similar obligations relative to supervision by any organ of the United Nations or any other organization or body. Respondent is therefore under no obligation to submit reports concerning its administration of South West Africa, or to transmit petitions from the inhabitants of that Territory, to the United Nations or any other body; (b) Relative to Applicants' Submissions Nos. 3, 4, 5, 6 and 9, that Respondent has not, in any of the respects alleged, violated its obligations as stated in the Mandate or in Article 22 of the Covenant of the League of Nations"; In the Rejoinder: "1. Upon the basis of the statements of law & fact set forth in the Counter-Memorial, as supplemented in this Rejoinder & as may hereafter be adduced in further proceedings, Respondent reaffirms the Submissions made in the Counter-Memorial & respectfully asks that such Submissions be regarded as incorporated herein by reference. 2. Respondent further repeats its prayer that it may please the Court to adjudge and declare that the Submissions of the Governments of Ethiopia and Liberia, as recorded in the Memorials and as reaffirmed in the Reply, are unfounded, and that no declaration be made as claimed by them." In the oral proceedings the following Submissions were presented by the Parties: On behalf of the Governments of Ethiopia & Liberia, at the hearing on May 19, 1965:
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"Upon the basis of allegations of fact, and statements of law set forth in the written pleadings and oral proceedings herein, may it please the Court to adjudge and declare, whether the Government of the Republic of South Africa is present or absent, that: (1) See No. 1 of the Ethiopia and Liberia Memorials. (2) See No. 2 of the Memorials (3) Respondent, by laws and regulations, and official methods and measures, which are set out in the pleadings herein, See No. 3 of the Memorials. (4) Respondent, by virtue of economic, political, social and educational policies applied within the Territory, by means of laws and regulations, and official methods and measures, which are set out in the pleadings herein, has, in the light of applicable international standards or international legal norm, or both, failed…See No. 4 of the Memorials. (5) See No. 5 of the Memorials. (6) See No.6 of the Memorials. (7) See No. 7 of the Memorials. (8) See No.8 of the Memorials. (9) See No.9 of the Memorials. May it also please the Court to adjudge and declare whatever else it may deem fit and proper in regard to these submissions, and to make all necessary awards and orders, including an award of costs, to effectuate its determinations." On behalf of the Government of South Africa, at the hearing on Nov. 5, 1965: "We repeat and re-affirm Our submissions, as set forth in Volume 1, page 6, of the Counter-Memorial and confirmed in Volume II, page 483, of the Rejoinder. These submissions can be brought up-to-date without any amendments of substance and then they read as follows: Upon the basis of the statements of fact and law as set forth in Respondent's pleadings and the oral proceedings, may it please the Court to adjudge and declare that the submissions of the Governments of Ethiopia and Liberia, as recorded at pages 69-72 of the verbatim record of May 19, 1965, C.R. 65/35, are unfounded and that no declaration be made as claimed by them. In particular, Respondent submits(1) See No. 1 of South Africa’s Counter-Memorial. (2) See No. 2 (a-b) of the Counter-Memorial. 1. ETHIOPIA & LIBERIA v. SOUTH AFRICA. Applicant States, the Empire of Ethiopia & the Republic of Liberia (identical cases, treated as 1 case), acting in the capacity of States which were members of the former League of Nations, put forward various allegations of contraventions of the League of Nations Mandate for South West Africa, said to have been committed by South Africa, as the administering authority. 2. FIRST PHASE: JURISDICTION. In 1962, there were 4 preliminary objections, based on Art. 37 of the Court's Statute & the jurisdictional clause (Art. 7, par. 2) of the Mandate for South West Africa, argued by South Africa & treated by the Court as objections to its jurisdiction. The 1962 Judgment rejected these objections & found that it had "jurisdiction to adjudicate upon the merits of the dispute". As to the merits, proceedings included exchange of written pleadings, oral arguments of the Parties & the hearing of numerous witnesses, the Parties put forward various contentions on such matters as: ISSUE 1: Whether the Mandate for South West Africa was still in force; ISSUE 2: And if so, whether the Mandatory's obligation under Art. 6 of the Mandate to furnish annual reports to the Council of the former League of Nations concerning its administration of the mandated territory had become transformed by 1 means or another into an obligation to furnish such reports to the General Assembly (GA) of the United Nations (UN), or had, on the other hand, lapsed entirely; ISSUE 3: Whether there had been any contravention by the Respondent of the Art. 2, par. 2 of the Mandate which required the Mandatory to "promote to the utmost the material & moral well-being & the social progress of the inhabitants of the territory; ISSUE 4: Whether there had been any contravention of Art. 4 of the Mandate, prohibiting (except for police and local defence purposes) the "military training of the natives," and forbidding the establishment of military or naval bases, or the erection of fortifications in the territory. Applicants also alleged that the Respondent had contravened Art. 7, par. 1 of the Mandate (that it can only be modified with the consent of the Council of the League Nations) by attempting to modify the Mandate without the consent of the UN GA which had allegedly replaced the League Council for this & other purposes.
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4. ADDITIONAL ISSUE: LEGAL RIGHT/INTEREST IN THE SUBJECT MATTER. The Court found that aside from these issues, there was 1 matter that appertained to the merits of the case but which had an antecedent character, namely the question of the Applicants' standing in the present phase of the proceedings (not of their standing before the Court itself, which was the subject of the Court's 1962 decision), as a matter of the merits of the case, of their legal right or interest regarding the subject-matter of their claim, as set out in their final submissions. 5. HEAR ARGUMENTS ON MERITS FIRST. The same instruments relevant to the existence & character of the Respondent's obligations concerning the Mandate are also relevant to the existence & character of the Applicants' legal right or interest in that regard. Certain humanitarian principles alleged to affect the nature of the Mandatory's obligations in respect of the inhabitants of the mandated territory were also pleaded as a foundation for the right of the Applicants to claim in their own individual capacities the performance of those same obligations. The implications of Art. 7, par. 1, of the Mandate require to be considered not only in connection with par. 9 & certain aspects of par. 2 of the Applicants' final submissions, but also, in connection with that of the Applicants' standing relative to the merits of the case. The question of the position following upon the dissolution of the League of Nations in 1946 has the same kind of double aspect, & so do other matters. 6. START WITH 2 QUESTIONS THAT MIGHT RENDER MOOT SUBSEQUENT ISSUES. One is whether the Mandate still subsists at all, as the Applicants maintain that it does in par. 1 of their final submissions; for if it does not, then clearly the various allegations of contraventions of the Mandate by the Respondent fall automatically to the ground. This contention, namely as to the continued subsistence of the mandate, is being so put forward solely in connection with the remaining parts of the claim, and as the necessary foundation for these. Thus, the other question, that of the Applicants' legal right or interest in the subject-matter of their claim, is even more fundamental. (7) It should be made clear that when the Court considers what provisions of the Mandate for South West Africa involve a legal right or interest for the Applicants, & what not, it does so without pronouncing upon, and without prejudice to, the question of whether that Mandate is still in force. It is also necessary to state that its 1962 decision on the question of competence was equally given without prejudice to that of the survival of the Mandate, which is a question on the merits of the case. It was not in issue in 1962, except in the sense that survival had to be assumed for the purpose of determining the purely jurisdictional issue which was all that was then before the Court. 8. RIGHT OF COURT TO SELECT BASIS FOR DECISION. Respondent's final submissions herein ask for a rejection of those of the Applicants, both generally & in detail. But apart from the recognized right of the Court, implicit in Art. 53, par. 2 of its Statute, to select proprio motu the basis of its decision, the Respondent did, particularly in its written pleadings, deny that the Applicants had any legal right or interest in the subject-matter of their claim,-a denial which, at this stage of the case, clearly cannot have been intended merely as an argument against the applicability of the jurisdictional clause of the Mandate. 9. WRT THE MANDATE. Something must first be said about the structure characterizing the Mandate for South West Africa, in common with the other various mandates; it is necessary to stress that no true appreciation of the legal situation regarding any particular mandate, can be arrived at unless it is borne in mind that this Mandate was only 1 amongst a number of mandates, the Respondent only 1 amongst a number of mandatories, and that the salient features of the mandates system as a whole were, with exceptions to be noted where material, applicable indifferently to all the mandates. The Mandate for South West Africa was not a special case. 10. THE MANDATES SYSTEM was formally instituted by Art. 22 of the Covenant of the League of Nations. There were to be 3 categories of mandates, designated as 'A', 'B' and 'C' mandates respectively, the Mandate for South West Africa being one of the 'C' category. The differences between these categories lay in the nature & geographical situation of the territories concerned, the state of development of their peoples, & the powers accordingly to be vested in the administering authority, or mandatory, for each territory placed under mandate. But although it was by Art. 22 of the Covenant that the system as such was established, the precise terms of each mandate, covering the rights & obligations of the mandatory, of the League & its organs, & of the individual members of the League, in relation to each mandated territory, were set out in separate instruments of mandate which, with 1 exception to be noted later, took the form of resolutions of the Council of the League. 11. COUNCIL OF THE LEAGUE’S RESOLUTIONS. These instruments, whatever the differences between certain of their terms, had various features in common as regards their structure. For present purposes, their substantive provisions may be regarded as falling into 2 main categories:

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(a) As the principal element of each instrument, there were the articles defining the mandatory's powers, and its obligations in respect of the inhabitants of the territory and towards the League and its organs. These provisions, relating to the carrying out of the mandates as mandates, will hereinafter be referred to as "conduct of the mandate', or simply "conduct" provisions. (b) There were articles conferring in different degrees, according to the particular mandate or category of mandate, certain rights relative to the mandated territory, directly upon the members of the League as individual States, or in favor of their nationals. Many of these rights were of the same kind as are to be found in certain provisions of ordinary treaties of commerce, establishment & navigation concluded between States. Rights of this kind will be referred to as "special interests" rights, embodied in the "special interests" provisions of the mandates. As regards the 'A' and 'B' mandates (particularly the latter) these rights were numerous and figured prominently-a fact which is also significant for the case of the 'C' mandates, even though, in the latter case, they were confined to provisions for freedom for missionaries ("nationals of any State Member of the League of Nations") to "enter into, travel and reside in the territory for the purpose of prosecuting their calling'—(Mandate for South West Africa, Art. 5). Here, the dispute between the Parties relates exclusively to the former of these 2 categories of provisions, and not to the latter. 12. GENUINE & OBVIOUS DISTINCTION. Even if certain provisions of some of the mandates (such as the "open door" provisions of the 'A' and 'B' mandates) can be regarded as having a double aspect, this does not affect the validity or relevance of the distinction. Such provisions would, in their "conduct of the mandate" aspect, fall under that head; and in their aspect of affording commercial opportunities for members of the League and their nationals, they would come under the head of "special interests" clauses. It is natural that commercial provisions of this kind could redound to the benefit of a mandated territory and its inhabitants in so far as the use made of them by States members of the League had the effect of promoting the economic or industrial development of the territory. In that sense and to that extent these provisions could no doubt contribute to furthering the aims of the mandate; and their due implementation by the mandatories was in consequence a matter of concern to the League and its appropriate organs dealing with mandates questions. But this was incidental, and was never their primary object. Their primary object was to benefit the individual members of the League and their nationals. Any action or intervention on the part of member States in this regard would be for that purpose-not in furtherance of the mandate as such. 13. JURISDICTIONAL CLAUSE. In addition to the classes of provisions so far noticed, every instrument of mandate contained a jurisdictional clause which, with a single exception later noted, was in identical terms for each mandate, whether belonging to the 'A', 'B' or 'C' category. It provided for a reference of disputes to the Permanent Court of International Justice and, so the Court found in the first phase of the case, this reference was now, by virtue of Art. 37 of the Court's Statute, to be construed as a reference to the present Court (PCIJ is now the ICJ). Another feature of the mandates generally, was a provision according to which their terms could not be modified without the consent of the Council of the League. A further element, peculiar to the 'C' mandates, may be noted: it was provided both by Art. 22 of the Covenant of the League and by a provision of the instruments of 'C' mandates that, subject to certain conditions not here material, a ‘C' mandatory was to administer the mandated territory "as an integral portion of its own territory". (paragraphs 14 to 18 are not in the file copy but are in the complete judgment) 14. ISSUE: WHETHER ANY LEGAL RIGHT OR INTEREST EXISTS FOR THE APPLICANTS RELATIVE TO THE MANDATE. As to the "conduct" provisions, the question is whether, according to the scheme of the mandates and of the mandates system as a whole, any legal right or interest (different from political interest) was vested in the members of the League of Nations, including the present Applicants, individually and each in its own separate right to call for the carrying out of the mandates as regards their "conduct" clauses;-or whether this function must, rather, be regarded as having appertained exclusively to the League itself, and not to each and every member State, separately and independently; or whether the various mandatories had any direct obligation towards the other members of the League individually, as regards the carrying out of the "conduct" provisions of the mandates. 15. IF APPLICANTS DO NOT HAVE SUCH LEGAL RIGHT OR INTEREST, it would follow that even if the various allegations of contraventions of the Mandate for South West Africa by Respondent were established, the Applicants would still not be entitled to the pronouncements and declarations pleaded in their final submissions. This is no less true in respect of their final submissions (1) & (2) than of the others. In these 2 submissions, the Applicants in substance affirm, and ask the Court to declare, the continued existence of the Mandate and of the Respondent's obligations thereunder. But here, Court is concerned with the final submissions of the Applicants solely in the context of the "conduct" provisions of the Mandate. It has not to pronounce upon any of the Applicants' final submissions as these might relate to any question of "special interests" if a claim in respect of these had been made. If the Court finds that the Applicants do have such a right or interest, it would have to pronounce upon the first submission (continued existence of the Mandate), since if that one should be rejected, the rest would automatically fall to the ground. But if the Court
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should find that such a right or interest does not exist, it would obviously be inappropriate to make any pronouncement on this first submission, or on the second, since in the context of the present case the question of the continued existence of the Mandate, and of the Respondent's obligations thereunder, would arise solely in connection with provisions concerning which the Court had found that the Applicants lacked any legal right or interest. 16. INTENTION AT TIME OF DRAFTING, CRITICAL. It is in their capacity as former members of the League of Nations that the Applicants appear before the Court; and the rights they claim are those that the members of the League are said to have been invested with in the time of the League. Accordingly, to determine what the rights and obligations of the Parties relative to the Mandate were and are (supposing it still to be in force, but without prejudice to that question); and in particular whether (as regards the Applicants) these include any right individually to call for the due execution of the "conduct" provisions, and (for the Respondent) an obligation to be answerable to the Applicants in respect of its administration of the Mandate, the Court must place itself at the point in time when the mandates system was being instituted, and when the instruments of mandate were being framed. The Court must have regard to the situation as it was at that time, which was the critical one, and to the intentions of those concerned as they appear to have existed, or are reasonably to be inferred, in the light of that situation. Intentions that might have been formed if the Mandate had been framed at a much later date, and in the knowledge of circumstances, such as the eventual dissolution of the League and its aftermath, that could never originally have been foreseen, are not relevant. This view is supported by a previous finding of the Court (Rights of United States Nationals in Morocco, I.C.J. Reports 1952), the effect of which is that the meaning of a juridical notion in a historical context, must be sought by reference to the way in which that notion was understood in that context. 17. JUDICIAL EXPRESSION TO “SACRED TRUST OF CIVILIZATION” NOTION. It follows that any enquiry into the rights & obligations of the Parties must proceed principally on the basis of considering, in the setting of their period, the texts of the instruments and particular provisions intended to give juridical expression to the notion of the "sacred trust of civilization" by instituting a mandates system. 18. OTHER FACTORS: JURIDICAL CHARACTER & STRUCTURE OF THE LEAGUE OF NATIONS. The enquiry must also pay attention to the juridical character & structure of the institution, the League of Nations, within the framework of which the mandates system was organized, & which inevitably determined how this system was to operate, by what methods, through what channels, & by means of what recourses. A fundamental element of this juridical character & structure, which in a sense governed everything else, was that Art. 2 of the Covenant provided that the "action of the League under this Covenant shall be effected through the instrumentality of an Assembly & of a Council, with a permanent Secretariat". If the action of the League as a whole was thus governed, it followed naturally that the individual member States could not themselves act differently relative to League matters, unless it was otherwise specially so provided by some article of the Covenant. 19. GERMANY’S COLONIAL TERRITORIES BECAME “SACRED TRUST OF CIVILIZATION”. The mandates system originated in the decision taken at the Peace Conference following upon the World War of 1914-1918. The decision said that the colonial territories over which, by Art. 119 of the Treaty of Versailles, Germany renounced "all her rights & titles" jn favor of the then Principal Allied & Associated Powers, should not be annexed by those Powers or by any country affiliated to them, but should be placed under an international régime, in the application to the peoples of those territories, deemed "not yet able to stand by themselves", of the principle, declared by Art. 22 of the League Covenant, that their "well-being & development" should form "a sacred trust of civilization". 20. TUTELAGE OF THE PEOPLE: MANDATES. The type of régime specified by Art. 22 of the Covenant as constituting the "best method of giving practical effect to this principle" was that "the tutelage of such peoples should be entrusted to advanced nations . . . who are willing to accept it', & here it was specifically added that it was to be "on behalf of the League" that "this tutelage should be exercised by those nations as Mandatories". It was not provided that the mandates should, either additionally or in the alternative, be exercised on behalf of the members of the League in their individual capacities. The mandatories were to be the agents of, or trustees for the League, & not of, or for, each & every member of it individually. 21. MANDATE FOR SOUTH WEST AFRICA. The same basic idea was expressed in the 3 paragraph of the preamble to the instrument of Mandate for South West Africa, where it was recited that the Mandatory, in agreeing to accept the Mandate, had undertaken "to exercise it on behalf of the League of Nations". No other behalf was specified in which the Mandatory had undertaken, either actually or potentially, to exercise the Mandate. The effect of this recital was to register an implied recognition (a) on the part of the Mandatory of the right of the League, acting as an entity through its appropriate organs, to require the due
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execution of the Mandate in respect of its "conduct" provisions; & (b) on the part of both the Mandatory and the Council of the League, of the character of the Mandate as a juridical régime set within the framework of the League as an institution. There was no similar recognition of any right as being additionally & independently vested in any other entity, such as a State, or as existing outside or independently of the League as an institution; nor was any undertaking at all given by the Mandatory in that regard. 22. SECURITIES FOR PERFORMANCE. It was provided by Art. 22, par. 1 of the Covenant that “securities for the performance" of the sacred trust were to be "embodied this Covenant". This important reference to the “performance" of the trust contemplated securities to be afforded by the Covenant itself. By par. 7 & 9 of Art. 22, every mandatory was to "render to the Council [of the League, not to any other entity] an annual report in reference to the territory committed to its charge"; & a permanent commission, which came to be known as the Permanent Mandates Commission, was to be constituted "to receive & examine" these annual reports and "to advise the Council on all matters relating to the observance of the mandates". The Permanent Mandates Commission alone had this advisory role, just as the Council alone had the supervisory function. The Commission consisted of independent experts in their own right, appointed in their personal capacity as such, not as representing any individual member of the League or the member States generally. 23. REPORTS TO THE COUNCIL, NOT INDIVIDUAL MEMBERS. The obligation to furnish annual reports was reproduced in the instruments of mandate, such that they were to be rendered "to the satisfaction of the Council". Neither by the Covenant nor by the instruments of mandate, was any role reserved to individual League members in respect of these reports, furnishable to the Council, & referred by it to the Commission. It was the Council that had to be satisfied, not the individual members. The part played by the latter, other than such as were members of the Council, was exclusively through their participation in the work of the Assembly of the League when, acting under Art. 3 of the Covenant, that organ exercised in respect of mandates questions its power to deal with "any matter within the sphere of action of the League". It was as being within the sphere of the League as an institution that mandates questions were dealt with by its Assembly. 24. NO RIGHT TO INDIVIDUAL MEMBERS. These were the only methods contemplated by the Covenant as "securities" for the performance of the sacred trust, & it was in the Covenant that they were to be embodied. No security taking the form of a right for every member of the League separately and individually to require from the mandatories the due performance of their mandates, or creating a liability for each mandatory to be answerable to them individually,-still less conferring a right of recourse to the Court in these regards,-was provided by the Covenant. 25. RIGHTS NOT FROM MEMBERSHIP BUT CONSTITUTING INSTRUMENT. This result is precisely what was to be expected from the fact that the mandates system was an activity of the League of Nations, of an entity functioning as an institution. In such a setting, rights cannot be derived from the mere fact of membership of the organization in itself: the rights that member States can legitimately claim must be derived from & depend on the particular terms of the instrument constitutive of the organization, & of the other instruments relevant in the context. This principle is necessarily applicable as regards the question of what rights member States can claim in respect of a régime such as results from the mandates system, functioning within the framework of the organization. For this reason, & in this setting, there could, as regards the carrying out of the "conduct" provisions of the various mandates, be no question of any legal tie between the mandatories & other individual members. The sphere of authority assigned to the mandatories by decisions of the organization could give rise to legal ties only between them severally, as mandatories, & the organization itself. The individual member States of the organization could take part in the administrative process only through their participation in the activities of the organs by means of which the League was entitled to function. Such participation did not give rise to any right of direct intervention relative to the mandatories: this was, and is, the prerogative of the League organs. 26. POWER OF MEMBERS. This did not mean that the member States were mere helpless or impotent spectators of what went on, or that they lacked all means of recourse. As members of the League Assembly, or as members of the League Council, or both, they could raise any question relating to mandates generally, or to some one mandate in particular, for consideration by those organs, & could, by their participation, influence the outcome. The records of the Assembly & of other League organs show that the members of the League in fact made considerable use of this faculty. But again, its exercise-always through the League-did not confer on them any separate right of direct intervention. Rather did it bear witness to the absence of it. 28. POWER OF MANDATORIES DEFINED BY COUNCIL. By Art. 22, par. 8 of the Covenant, it was provided that the "degree of authority, control or administration" which the various mandatories were to exercise, was to be "explicitly defined in each case by the Council", if these matters had not been "previously agreed upon by the Members of the League". The language of this paragraph th was reproduced, textually, in the 4 paragraph of the preamble to the Mandate for South West Africa, which the League Council
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itself inserted, thus stating the basis on which it was acting in adopting the resolution of Dec. 17, 1920, in which the terms of mandate were set out. Taken by itself this necessarily implied that these terms had not been "previously agreed upon by the Members of the League". But there is some evidence in the record to indicate that in the context of the mandates, the allusion to agreement on the part of "the Members of the League" was regarded at the time as referring only to the 5 Principal Allied & Associated Powers engaged in the drafting; but this could only emphasize that the members of the League generally were not considered as having any direct concern with the setting up of the various mandates; & the record indicates that they were given virtually no information on the subject until a very late stage. 29. MANDATE VIA RESOLUTION. Evidence shows that there were delays due to difficulties over certain commercial aspects of the mandates, but the Principal Powers had already decided that the mandates should still be issued by the Council, giving them a definitely institutional basis. Preliminary & private negotiations & consideration of drafts by member States, or certain of them, is a normal way of leading up to the resolutions adopted by an international organ, & in no way affects their character as eventually adopted. Accordingly, the League Council proceeded to issue the Mandate which, being in the form of a resolution, did not admit of those processes of separate signature & ratification generally utilized at the time in all cases where participation on a "party" basis was intended. This method was common to all the mandates, except the 'A' mandate for Iraq which, significantly, was embodied in a series of treaties between the UK, as Mandatory, & Iraq. No other League member was a party to these treaties. It was to the Council alone that the UK Government reported concerning the conclusion of these treaties, & to which it gave assurances that the general pattern of their contents would be the same as for the other mandates. 30. JURISDICTIONAL CLAUSE. Nor did even the Principal Allied & Associated Powers as a group have the last word on the drafting of th the Mandate. This was the Council's. In addition to the insertion mentioned (4 par. of the preamble), the Council made some alterations in the draft before finally adopting it. One is significant in this context. Unlike the final version of the jurisdictional clause of the Mandate as issued by the Council & adopted for all the mandates, by which the Mandatory alone undertook to submit to adjudication in the event of a dispute with another member of the League, the original version would have extended the competence of the Court equally to disputes referred to it by the Mandatory as plaintiff, & to disputes arising between other members of the League inter se. The reason for the change is directly relevant to the status of the individual members of the League in relation to the Mandate. This reason was that an obligation to submit to adjudication could not be imposed upon them without their consent. But of course, had they been regarded as "parties" to the instrument of Mandate, as if to a treaty, they would thereby have been held to have given consent to all that it contained, including the jurisdictional clause. 31. COUNCIL MUST CONSENT TO MODIFICATIONS OF MANDATE. Another circumstance calling for notice is that the Mandate contained a clause-Art. 7, par. 1 (and similarly in the other mandates)-providing that the consent of the Council of the League was required for any modification of the terms of the Mandate; but it was not stated that the consent of individual members was additionally required. There is no need to enquire whether, in particular cases (for the modification of any of their "special interests" under the mandate), the consent of the member States would have been necessary, since what is in question is the "conduct" provisions. As to these, the special position given to the Council of the League by Art. 7, par. 1 confirms the view that individual member States were not regarded as having a separate legal right or interest of their own respecting the administration of the Mandate. 32. MEMBERS: NOT PARTIES BUT DERIVED RIGHTS. The real position of the individual members relative to the various instruments of mandate was a different. They were not parties to them; but they were, to a limited extent, & in certain respects only, in the position of deriving rights from these instruments. Not being parties to the instruments of mandate, they could draw from them only such rights as these unequivocally conferred, directly or by a clearly necessary implication. The existence of such rights could not be presumed or merely inferred or postulated. But in Art. 22 of the League Covenant, only the mandatories are mentioned in connection with the carrying out of the mandates in respect of the inhabitants of the mandated territories & as regards the League organs. Except in the procedural provisions of par. 8 (the "if not previously agreed upon" clause) the only mention of the League members in Art. 22 is in quite another context, namely at the end of par. 5, where it is provided that the mandatories shall "also secure equal opportunities for the trade & commerce of other Members of the League". It is the same in the instruments of mandate. Apart from the jurisdictional clause, mention of the League members is made only in the "special interests" provisions of these instruments. It is in respect of these interests alone that any direct link is established between the mandatories and the members of the League individually. In the case of the "conduct" provisions, mention is made only of the mandatory and, where required, of the appropriate organ of the League. The link in respect of these provisions is with the League or League organs alone.

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33. VARIOUS MANDATORIES WERE RESPONSIBLE FOR THEIR CONDUCT OF THE MANDATES SOLELY TO THE LEAGUE, IN PARTICULAR, THE COUNCIL. In light of the relevant texts & instruments, & having regard to the structure of the League, within the framework of which the mandates system functioned, the Court considers that even in the time of the League, even as members when that organization still existed, the Applicants did not, in their individual capacity as States, possess any separate self-contained right which they could assert, independently of, or additionally to, the right of the League, in the pursuit of its collective, institutional activity, to require the due performance of the Mandate in discharge of the "sacred trust". This right was vested exclusively in the League, & was exercised through its competent organs. Each member could share in its collective, institutional exercise by the league, through their participation in the work of its organs, & to the extent that these organs themselves were empowered under the mandates system to act. By their right to activate these organs (of which they made full use), they could procure consideration of mandates questions as of other matters within the sphere of action of the League. But no right was reserved to them, individually as States, & independently of their participation in the institutional activities of the League, as component parts of it, to claim in their own name,-still less as agents authorized to represent the League,-the right to invigilate the sacred trust,-to set themselves up as separate custodians of the various mandates. (34) If the latter had been given a legal right or interest on an individual "State" basis, this would have meant that each member of the League, independently of the Council or other competent League organ, could have addressed itself directly to every mandatory, for the purpose of calling for explanations or justifications of its administration, & generally to exact from the mandatory the due performance of its mandate, according to the view which that State might individually take as to what was required for the purpose. 35. TOO MUCH ACCOUNTABILITY. It would have involved a position of accountability by the mandatories to each & every member of the League separately, for otherwise there would have been nothing additional to the normal faculty of participating in the collective work of the League respecting mandates. The existence of such an additional right could not however be reconciled with the way in which the obligation of the mandatories, both under Art. 22 of the League Covenant, & (in the case of South West Africa) Art. 6 of the instrument of Mandate, was limited to reporting to the League Council, & to its satisfaction alone. Such a situation would have been particularly unimaginable in relation to a system which, within certain limits, allowed the mandatories to determine for themselves by what means they would carry out their mandates: & a fortiori would this have been so in the case of a 'C' mandate, having regard to the special power of administration as "an integral portion of its own territory" which, as already noted, was conferred upon the mandatory respecting this category of mandate. 36. SIMILAR TO U.N., The foregoing conclusions hold good whether the League is regarded as having possessed the kind of corporate juridical personality that the Court, in its Advisory Opinion in the case of Reparation for Injuries Suffered in the Service of the United Nations (I.C.J. Reports 1949), found the UN to be invested with,-or whether the League is regarded as a collectivity of States functioning on an institutional basis, whose collective rights in respect of League matters were, as Art. 2 of the Covenant implied, exercisable only through the appropriate League organs, & not independently of these. 37. TESTING THE CONCLUSION. How far could individual members have been in a position to play the role ascribed to them? The Applicants, as part of their argument in favor of deeming the Council’s functions to have passed to the UN GA, insisted on the need for "informed" dealings with the Mandatory: only a body sufficiently endowed with the necessary knowledge, experience & expertise could adequately discharge the supervisory role. Yet at the same time it was contended that individual members,-not directly advised by the Commission,-not (unless Council members) in touch with the mandates questions except through their participation in the work of the League Assembly,-nevertheless possessed a right independently to confront the various mandatories over their administration of the mandates, & a faculty to call upon them to alter their policies & adjust their courses accordingly. The nd 2 contentions are inconsistent, & the 2 affronts all the probabilities. No less difficult than the position of a mandatory caught between a number of possible different expressions of view, would have been that of the League Council whose authority must have been undermined, & its action often frustrated, by the existence of some 40 or 50 independent centers of invigilatory rights. 39. INCONSISTENCY: the position claimed for individual members have been with that of the mandatory as a member of the Council on mandates questions. As such, the mandatory, on the basis of the normal League voting rule, & by virtue of Art. 4, par. 5 & 6, and Art. 5, par. 1, of the Covenant, possessed a vote necessary to the taking of any formal Council decision on a question of substance relative to its mandate (in the sense that, if cast, it must not be adversely cast); so that, in the last resort, the assent, or non-dissent, of the mandatory had to be negotiated.

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40. CAN’T HAVE BOTH. Those who intended the one system cannot simultaneously have intended the other: and if in the time of the League,-if as members of the League,-the Applicants did not possess the rights contended for,-evidently they do not possess
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them now. There is no principle of law which, following upon the dissolution of the League, would operate to invest the Applicants with rights they did not have even when the League was still in being. Counter-arguments: 42. MEMBER’S RIGHT OF LAST RESORT TO COURT? Firstly, it may be represented that the consequences described above as being rendered possible if individual members had had such rights, are unreal,-because the true position under the mandates system was that, even if in all normal circumstances the mandatories were responsible to the Council alone, nevertheless the individual members of the League possessed a right of last resort to activate the Court under the jurisdictional clause if any mandate was being contravened. The Court will consider the effect of the jurisdictional clause later; but quite apart from that, the argument is misconceived. It is evident that any such right would have availed nothing unless the League members had individually possessed substantive rights regarding the carrying out of the mandates which they could make good before the Court, if & when they did activate it. If, however, they possessed such rights then, irrespective of whether they went to the Court or not, they were entitled at all times, outside League channels, to confront the mandatories over the administration of their mandates, just as much as in respect of their "special interests" under the mandate. The theory that the members possessed such rights, but were precluded from exercising them unless by means of recourse to adjudication, constitutes an essentially improbable supposition for which the relevant texts afford no warrant. These texts did not need to impose any such limitation, for the simple reason that they did not create the alleged rights. 43. POLITICAL BODY USUALLY INVESTED WITH POWER. There is nothing unprecedented in a situation in which the supervision of a certain matter is, on the political plane, entrusted to a given body or organ, but where certain individual States-not all of them necessarily actual parties to the instruments concerned-have parallel legal rights in regard to the same matter, which they can assert in specified ways. This is true but irrelevant, since here, the question is not whether such rights could be, but whether they were conferred. In various examples, not only was the intention to confer the right & its special purpose quite clear,-it was also restricted to a small group of States, members, either permanent or elected, of the supervisory organ concerned. In such a case, the right granted was part of the institutional or conventional machinery of control, & its existence could occasion no difficulty or confusion. This type of case is not the same as the present one. 44. HUMANITARIAN LAW; GENERAL PRINCIPLES? It may be said that a IegaI right or interest need not necessarily relate to anything material or "tangible", & can be infringed even though no prejudice of a material kind has been suffered. The provisions of certain treaties & other international instruments of a humanitarian character, & the terms of various arbitral & judicial decisions, are cited as indicating that, for instance, States may be entitled to uphold some general principle even though the particular contravention of it alleged has not affected their own material interests;-that again, States may have a legal interest in vindicating a principle of international law, even though they have suffered no material prejudice, or ask only for token damages. Without attempting to discuss how far, & in what particular circumstances, these might be true, it suffices to point out that, in holding that the Applicants could only have had a legal right or interest in the "special interests" provisions of the Mandate, the Court does not in any way do so merely because these relate to a material or tangible object. Nor, in holding that no legal right or interest exists for the Applicants, individually as States, in respect of the "conduct" provisions, does the Court do so because any such right, or interest would not have a material or tangible object. The Court simply holds that such rights or interests, in order to exist, must be clearly vested in those who claim them, by some text or instrument, or rule of law;-and that, here, none were ever vested in individual members of the League under any of the relevant instruments, or as a constituent part of the mandates system as a whole, or 'otherwise’. 45. MISCELLANEOUS PROPOSITIONS: The Mandate is more deserving of protection than the "special interests" of any particular State;-there would be nothing extraordinary in a State having a legal right to vindicate a purely altruistic interest;-and so forth. But these are not really legal propositions: they do not eliminate the need to find the particular provisions or rules of law the existence of which they assume, but do not of themselves demonstrate. 46. JUDGMENT AS LEVERAGE IN POLITICAL ARENA? It is also asked whether, even supposing that the Applicants only had an interest on the political level respecting the conduct of the Mandate, this would not have sufficed to enable them to seek a declaration from the Court as to what the legal position was under the Mandate, so that, for instance, they could know whether they would be on good ground in bringing before the appropriate political organs, acts of the mandatory thought to involve a threat to peace or good international relations. 47. ISSUE: STANDING AS EX-LEAGUE MEMBERS. The Court is concerned only with the rights which the Applicants had as former members of the League of Nations-for it is in that capacity alone that they are now appearing. If the contention is intended to mean
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that because, for example, the Applicants would, under Art. 11, par. of the Covenant, have had "the friendly right . . . to bring to the attention of the Assembly or of the Council any circumstance . . . which threatens to disturb international peace or the good understanding . . .upon which peace depends", they would therefore also-and on that account-have had the right to obtain a declaration from the Court as to what the mandatory's obligations were, & whether a violation of these had occurred;-if this is the contention, the Court can only reply to it in the negative. A provision such as Art. 11 of the Covenant could at most furnish a motive why the Applicants (or other members) might wish to know what the legal position was. It could not of itself give them any right to procure this knowledge from the Court which they would not otherwise have had under the Mandate itself. 48. ONLY LEAGUE ORGAN CAN ASK FOR ADVISORY OPINION. On the other hand, an appropriate League organ such as the Council could of course have sought an advisory opinion from the Court on any such matter. Here is the chief objection to the theory. Under the Court's Statute as it is at present framed, States cannot obtain mere "opinions" from the Court. This faculty is reserved to certain international organs empowered to exercise it by way of the process of requesting the Court for an advisory opinion. It was open to the Council to make use of this process in case of any doubt as to the rights of the League or its members relative to mandates. But in their individual capacity, States can appear before the Court only as litigants in a dispute with another State, even if their object in so doing is only to obtain a declaratory judgment. The moment they so appear, it is necessary for them, even for that limited purpose, to establish, in relation to the defendant party, the existence of a legal right or interest in the subject-matter of their claim, such as to entitle them to the declarations or pronouncements they seek: or in other words that they are parties to whom the defendant State is answerable under the relevant instrument or rule of law. 49. HUMANITARIAN ISSUES NOT APPLICABLE. It has been suggested, directly or indirectly, that humanitarian considerations are sufficient in themselves to generate legal rights & obligations, & that the Court can & should proceed accordingly. The Court does not think so. It is a court of law, & can take account of moral principles only in so far as these are given a sufficient expression in legal form. Law exists to serve a social need; but precisely for that reason it can do so only through & within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered. (50) HUMANITARIAN CONSIDERATIONS may constitute the inspirational basis for rules of law, just as, for instance, the preambular parts of the UN Charter constitute the moral & political basis for the specific legal provisions set out. But such considerations do not in themselves amount to rules of law. All States are interested-have an interest-in such matters. But the existence of an "interest" does not of itself entail that this interest is specifically juridical in character. RATIO (as quoted in the reviewer; all underlined passages from 51-54): 51. DERIVATION OF A LEGAL RIGHT/INTEREST IN THE CONDUCT OF THE MANDATE FROM THE SIMPLE EXISTENCE, OR PRINCIPLE OF THE “SACRED TRUST”. The sacred trust is a "sacred trust of civilization". Hence all civilized nations have an interest in seeing that it is carried out. An interest, no doubt;-but in order that this interest may take on a specifically legal character, the sacred trust itself must be or become something more than a moral or humanitarian ideal. In order to generate legal rights and obligations, it must be given juridical expression and be clothed in legal form. One such form might be the UN trusteeship system,-another, as contained in Ch. XI of the Charter concerning non-self-governing territories, which makes express reference to "a sacred trust". In each case the legal rights and obligations are those, and only those, provided for by the relevant texts, whatever these may be. 52. MORAL IDEAL v. LEGAL RULES. The principle of the sacred trust has as its sole juridical expression the mandates system. As such, it constitutes a moral ideal given form as a juridical régime in the shape of that system. But it is necessary not to confuse the moral ideal with the legal rules intended to give it effect. For the purpose of realizing the aims of the trust in the particular form of any given mandate, its legal rights & obligations were those, & those alone, which resulted from the relevant instruments creating the system, & the mandate itself, within the framework of the League of Nations. 53. BASIS: COVENANT. Thus it is that Art. 22, par. 2 of the Covenant, in the same breath that it postulates the principle of the sacred trust, specifies in terms that, in order to give "effect to this principle", the tutelage of the peoples of the mandated territories should be entrusted to certain nations, "and that this tutelage should be exercised by them" as mandatories "on behalf of the League". It was from this that flowed all the legal consequences already noticed. 54. ACT THROUGH THE APPROPRIATE ORGANS. The principle of the sacred trust has no residual juridical content which could, so far as any particular mandate is concerned, operate per se to give rise to legal rights and obligations outside the system as a whole; and, within the system equally, such rights and obligations exist only in so far as there is actual provision for them. Once the expression to be given to an idea has been accepted in the form of a particular régime or system, its legal incidents are those of the régime or system. It is not permissible to import new ones by a process of appeal to the originating idea-a process that would, ex hypothesi,
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have no natural limit. Hence, although, the League members had an interest in seeing that the obligations entailed by the mandates system were respected, this was an interest which, according to the very nature of the system itself, they could exercise only through the appropriate League organs, and not individually. 55. COUNTER-ARGUMENT: WHEN LEAGUE DISSOLVED, MEMBERS GOT RIGHTS. It may be suggested that even if the legal position of the Applicants & of other individual League members was as the Court holds it to be, this was so only during the League’s lifetime, & that when the latter was dissolved, the rights previously resident in the League itself, or in its competent organs, devolved, so to speak, upon the individual States which were members of it at the date of its dissolution. But there is no principle of law which would warrant such a conclusion. Although the Court held in the 1962 phase that the members of a dissolved international organization can be deemed, though no longer members of it, to retain rights which, as members, they individually possessed when the organization was in being, this could not extend to ascribing to them, upon & by reason of the dissolution, rights which, even previously as members, they never did individually possess. Nor could anything that occurred subsequent to the League’s dissolution operate to invest its members with rights they did not, in that capacity, previously have,-and it is the rights which they had as League members that are now in question. 56. EVEN IF MANDATORIES AGREED TO REMAIN BOUND. The Court can equally not read the unilateral declarations, or statements of intention as they have been called, which were made by the various mandatories on the occasion of the League’s dissolution, expressing their willingness to continue to be guided by the mandates in their administration of the territories concerned, as conferring on the members individually any new legal rights or interests they did not previously possess. 57. COUNTER-ARGUMENT: LACK OF AUTHORITATIVE ENTITY. Applicants: Court's view leads to the conclusion that there is now no entity entitled to claim the due performance of the Mandate. The Court thinks the inference sought to be drawn is inadmissible. If, on a correct legal reading of a given situation, certain alleged rights are found to be non-existent, the consequences must be accepted. It cannot properly postulate the existence of such rights to avert those consequences &.engage in an essentially legislative task, in the service of political ends the promotion of which, however desirable in itself, lies outside the function of a court-of-law. 58. ON THE EXISTENCE & TERMS OF THE JURISDICTIONAL CLAUSE OF THE MANDATE, & OF THE EFFECT OF THE COURT'S JUDGMENT OF DEC. 21, 1962. Herein Judgment is founded on the relevant provisions of the Covenant of the League of Nations, the character of the League as an organization, & the substantive provisions of the Mandate for South West Africa. Was there anything arising out of its previous Judgment, or the terms of the jurisdictional clause of the Mandate, which should lead the Court to modify the conclusions arrived at on those foundations? 59. ISSUE: LEGAL RIGHT SETTLED BY 1962 JUDGMENT-PRECLUSION. It is contended that the question of the Applicants' legal right or interest was settled by that Judgment & cannot now be reopened. As regards the issue of preclusion, the Court finds it unnecessary to pronounce on various issues which have been raised in this connection, such as whether a decision on a preliminary objection constitutes a res judicata in the proper sense of that term,-whether it ranks as a "decision" for the purposes of Art. 59 of the Court's Statute, or as "final" within the meaning of Article 60. The essential point is that a decision on a preliminary objection can never be preclusive of a matter appertaining to the merits, WON it has in fact been dealt with in connection with the preliminary objection. When preliminary objections are entered by the defendant party, the proceedings on the merits are, by virtue of Art. 62, par. 3, of the Court's Rules, suspended. Thereafter, & until the proceedings on the merits are resumed, the preliminary objections having been rejected, there can be no decision finally determining or pre-judging any issue of merits. It may occur that a judgment on a preliminary objection touches on a point of merits, but this it can do only in a provisional way, to the extent necessary for deciding the question raised by the preliminary objection. Any finding on the point of merits, ranks simply as part of the motivation of the decision on the preliminary objection, & not as the object of that decision. It cannot rank as a final decision on the point of merits involved. 60. ISSUE: JURISDICTION=STANDING. But it is contended that, even if the 1962 Judgment was not preclusive of the issue of the Applicants' legal right or interest, it did determine that issue because it decided that the Applicants were entitled to invoke the jurisdictional clause of the Mandate, and that if they had a sufficient interest to do that, they must also have a sufficient interest in the subject-matter of their claim. This view is not well-founded. The faculty of invoking a jurisdictional clause depends upon what tests or conditions of the right to do so are laid down by the clause itself. To hold that the parties in any given case belong to the category of State specified in the clause,-that the dispute has the specified character,-and that the forum is the one specified,-is not the same thing as finding the existence of a legal right or interest relative to the merits of the claim. The jurisdictional clause of the Mandate for South West Africa (Art. 7, par. 2), which appeared in all the mandates, reads as follows: "The Mandatory agrees that, if
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any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations." Looking at this provision; assuming the existence of a dispute, that negotiations had taken place, that these had not settled the dispute, and that the Court was, by the operation of Art. 37 of its Statute, duly substituted for the Permanent Court as the competent forum (all of which assumptions would be in accordance with the 1962 Judgment);-then all that the Applicants had to do in order to bring themselves under this clause and establish their capacity to invoke it, was to show (a) ratione personae, that they were members of the League, constructively if not actually, or must be deemed still so to be for the purposes of this provision, notwithstanding the dissolution of the League; and (b) ratione materiae, that the dispute did relate to the interpretation or application of one or more provisions of the Mandate. If the Court considered that these requirements were satisfied, it could assume jurisdiction to hear and determine the merits without going into the question of the Applicants' legal right or interest relative to the subject-matter of their claim; for the jurisdictional clause did not, according to its terms, require them to establish the existence of such a right or interest for the purpose of founding the competence of the Court. 61. RIGHT GOES TO MERITS. Hence, whatever observations the Court may have made on that matter, it remained for the Applicants, on the merits, to establish that they had this right or interest in the carrying out of the provisions which they invoked, such as to entitle them to the pronouncements & declarations sought from the Court. Since decisions of an interlocutory character cannot pre-judge questions of merits, there can be no contradiction between a decision allowing that the Applicants had the capacity to invoke the jurisdictional clause-this being the only question which the Court was then called upon to decide, or could decide,-and a decision that the Applicants have not established the legal basis of their claim on the merits. 62. ISSUE: JURISDICTIONAL CLAUSE GAVE SUBSTANTIVE RIGHTS. This jurisdictional clause has an effect which is more extensive than if it is considered as a simple jurisdictional clause: that it is a clause conferring a substantive right,-that the substantive right it confers is precisely the right to claim from the Mandatory the carrying out of the "conduct of the Mandate" provisions of the instrument of mandate,-and that in consequence, even if the right is derivable from no other source, it is derivable from & implicit in this clause. 63. IMPROBABLE CLAIM. First, it would be remarkable if this were so, if so important a right, having such potentially far-reaching consequences, intended to play such an essential role in the scheme of the Mandate-of all the mandates, & of the system generallyhad been created indirectly, & in so casual & almost incidental a fashion, by an ordinary jurisdictional clause, lacking in any of the special features that might give it the effect claimed,-& which would certainly be requisite in order to achieve that effect. Court considers it highly unlikely that, given the far-reaching consequences involved & intended, the framers of the mandates system, had they had any such intention, would have chosen this particular type of jurisdictional clause as the method of carrying it out. 64. JURISDICTIONAL CLAUSES GENERALLY ADJECTIVAL. There is nothing about this particular jurisdictional clause to differentiate it from many others, or to make it an exception to the rule that, in principle, jurisdictional clauses are adjectival not substantive in their nature & effect. It is possible to introduce into such a clause extra paragraphs or phrases specifically conveying substantive rights or imposing substantive obligations; but the particular section of any clause which provides for recourse to ail indicated forum, on the part of a specified category of litigant, in relation to a certain kind of dispute-or those words in it which provide thiscannot simultaneously & per se invest the parties with the substantive rights the existence of which is exactly what they will have to demonstrate in the forum concerned, & which it is the whole object of the latter to determine. It is a universal & necessary, but yet almost elementary principle of procedural law that a distinction has to be made between, on the one hand, the right to activate a court & the right of the court to examine the merits of the claim,-&, on the other, the plaintiff party's legal right in respect of the subject-matter of that which it claims, which would have to be established to the satisfaction of the Court. 65. WON APPLICANTS HAVE LEGAL RIGHT TO REQUIRE PERFORMANCE OF CONDUCT PROVISIONS, CANNOT BE ANSWERED BY JURISDICTIONAL CLAUSE, SUCH AS ART.7, PAR. 2 OF THE MANDATE. The Court can see nothing in it that would take the clause outside the normal rule that, in a dispute causing the activation of a jurisdictional clause, the substantive rights themselves which the dispute is about, must be sought for elsewhere than in this clause, or in some element apart from it,-and must therefore be established aliunde vel aliter. Jurisdictional clauses do not determine whether parties have substantive rights, but only whether, if they have them, they can vindicate them by recourse to a tribunal.

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66. RIGHT MUST COME FROM TREATY OR MANDATE ITSELF. Such rights may be derived from participation in an international instrument by a State which has signed & ratified, or has acceded, or has in some other manner become a party to it; & which in consequence, & subject to any exceptions expressly indicated, is entitled to enjoy rights under all the provisions of the instrument concerned. Since the Applicants cannot bring themselves under this head, they must show that the "conduct" provisions of the mandates conferred rights in terms on League members as individual States, in the same way that the special interests" provisions rd did. RIGHT OF ACTION AS MEMBERS? But it is contended that there is a 3 possibility, & that on the basis of the jurisdictional clause alone, the Applicants, as League members, were part of the institutional machinery of control relative to the mandates, & that in this capacity they had a right of action of the same kind as, for instance, members of the Council had under the jurisdictional clauses of the minorities treaties of that period, for the protection of minority rights. Thus, the Applicants do not need to show the existence of any substantive rights outside the jurisdictional clause, & that they had-that all members had-what was in effect a policing function under the mandates & by virtue of the jurisdictional clause. 67. THE 2 CASES NOT COMPARABLE; INTENT TO CONFER MUST BE CLEAR. When States intend to create a right of action of this kind they adopt a different method. Such a right has, in special circumstances, been conferred on States belonging to a body of compact size such as the Council of the League, invested with special supervisory functions & even a power of intervention in the matter, as provided by the jurisdictional clause of the minorities treaties (Ex. Art. 12 of the minorities treaty with Poland, signed at Versailles on June 28, 1919, which was typical). Even so the right, as exercisable by members of the Council, as part of the Council's work, with which they would ex hypothesi have been fully familiar, was characterized at the time by an eminent Judge & former President of the Permanent Court as being "in every respect very particular in character" & as going "beyond the province of general international law". The intention to confer it must be quite clear; & the Court holds that for the reasons which have already been given, & for others to be considered later, there was never any intention to confer an invigilatory function of this kind on each & every member of the League. 68. WHY WASN’T IT CONFERRED? It has to be asked why, if anything of the sort was thought necessary in the case of the mandates, it was not done in the same way as under the minorities clauses (which, in general, were drafted contemporaneously by the same authors)-namely by conferring a right of action on members of the Council as such, seeing that it was the Council which had the supervisory function under the mandates? Alternatively, it must be asked why, if it was indeed thought necessary in the case of mandates to invest all the League members with this function, for the protection of the mandates, it was apparently considered sufficient in the minorities case to bring in only the members of the Council? 69. JURISDICTIONAL CLAUSE ONLY TO ALLOW MEMBERS TO PROTECT THEIR SPECIAL INTERESTS. The Court finds itself unable to reconcile the 2 types of case except upon the assumption, strongly supported by every other factor involved, that, as regards the mandates, the jurisdictional clause was intended to serve a different purpose, namely to give the individual League members the means, which might not otherwise be available to them through League channels, of protecting their "special interests" relative to the mandated territories. In the minorities case, the right of action of the Council members under the jurisdictional clause was only intended for the protection of minority populations. No other purpose in conferring a right of action on Council members would have been possible in that case. This was not so in regard to the mandates, the provisions of which afforded another & perfectly natural explanation of the jurisdictional clause and of its purpose; whereas, if a policing function had been intended, it is obviously to the Council members that it would have been given, & in the same sort of terms as in the minorities case. 70. MINORITIES: DIFFERENT CLASS. The right as conferred in the minorities case was subjected to certain characterizations which were wholly absent in the case of the jurisdictional clause of the mandates. Any "difference of opinion" was characterized in advance as being justiciable, because it was to be "held to be a dispute of an international character" within the meaning of Art. 14 of the Covenant (the "deeming" clause), so that no question of any lack of legal right or interest could arise. The decisions of the Court were moreover, to be final &, by means of a reference to Art. 13 of the Covenant, were given an effect erga omnes as a general judicial settlement binding on all concerned. The jurisdictional clause of the mandates was essentially an ordinary jurisdictional clause, having none of the special characteristics or effects of those of the minorities treaties. 71. THAT MINORITIES WERE GRANTED RIGHTS PROVES MANDATES WEREN’T. That the Council had functions in respect of mandates, as with minorities, can only serve to underline the fact that in the former, no right of recourse to the Court was conferred on the Council members in their capacity as such, although the mandates were drafted in full knowledge of what the minorities treaties contained. The true significance of the minorities case is that it shows that those who framed the mandates were perfectly capable of doing what the Applicants claim was done, when they intended to. The conclusion is that as to mandates they did not intend to.
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72. ISSUE: TEXTUAL ANALYSIS SHOWS GRANT OF RIGHT. The Applicants lastly depend in the last analysis almost entirely on what has been called the broad & unambiguous language of the jurisdictional clause-or in other words its literal meaning taken in isolation and without reference to any other consideration. The combination of certain phrases in this clause, namely the reference to "any dispute whatever", coupled with the further words "between the Mandatory and another Member of the League of Nations" and the phrase "relating ... to the provisions of the Mandate", is said to permit of a reference to the Court of a dispute about any provision of the Mandate, & thus to imply, reflect or bear witness to the existence of a legal right or interest for every League member in the due execution of every such provision. But the Court does not consider that the word "whatever" in Art. 7, par. 2, does anything more than lend emphasis to a phrase that would have meant exactly the same without it; or that the phrase "any dispute" (whatever) means anything intrinsically different from "a dispute"; or that the reference to the "provisions" of the Mandate, in the plural, has any different effect from what would have resulted from saying "a provision". Thus reduced to its basic meaning, it can be seen that the clause is not capable of carrying the load the Applicants seek to put upon it, & which would result in giving such clauses an effect that States accepting the Court's jurisdiction by reason of them, could never suppose them to have. 73. JURISDICTION NOT EQUAL TO SUBSTANTIVE RIGHT. The Court notes that a considerable proportion of the acceptances of its compulsory jurisdiction which have been given under Art. 36, par. 2 of the Statute of the Court, are couched in language similarly broad & unambiguous & even wider, covering all disputes between the accepting State & any other State (and thus "any dispute whatever)-subject only to the 1 condition of reciprocity or, in some cases, to certain additional conditions such as that the dispute must have arisen after a specified date. But it could never be supposed that on the basis of this wide language the accepting State, by invoking this clause, was absolved from establishing a legal right or interest in the subject-matter of its claim. Otherwise, the conclusion would have to be that by accepting the compulsory jurisdiction of the Court in the widest terms possible, States could additionally create a legal right or interest for themselves in the subject-matter of any claim they chose to bring, & a corresponding answerability on the part of the other accepting State concerned. The underlying proposition that by conferring competence on the Court, a jurisdictional clause can thereby & of itself confer a substantive right, is one which the Court must decline to entertain. 74. DIGRESSION: IS QUESTION OF RIGHTS AS LEAGUE MEMBERS AN ISSUE OF ADMISSIBILITY OF CLAIM (& DISPOSED OF BY THE 1962 JUDGMENT), RATHER THAN AN ISSUE AS TO MERITS? (75) RESPONDENT & COURT DID NOT REFER TO ADMISSIBILITY. In the "dispositif" of the 1962 Judgment, the Court found that it had "jurisdiction to adjudicate upon the merits". It did not think that any question of the admissibility of the claim, as distinct from that of its own jurisdiction arose, or that the Respondent had put forward any plea of inadmissibility as such: nor had it,-for in arguing that the dispute was not of the kind contemplated by the jurisdictional clause of the Mandate, its purpose was to show that the case was not covered by that clause, & that it did not fall within the scope of the competence conferred on the Court by that provision. 76. ADMISSIBILITY, IN THIS CASE. If any question of admissibility were involved, it would fall to be decided now, as in the merits phase of the Nottebohm case (I.C.J. Reports 1955); & all that the Court need Say is that if this were so, it would determine the question in exactly the same way, & for the same reasons, as here. Thus, looking at the matter from the point of view of the capacity of the Applicants to advance their present claim, the Court would hold that they had not got such capacity, & hence that the claim was inadmissible. 77. ORIGIN OF JURISDICTIONAL CLAUSE. The Court now refers to a supplementary element that furnishes indications in opposition to the interpretation of the jurisdictional clause advanced by the Applicants. This contra-indication is afforded by the genesis of the jurisdictional clause appearing in all the instruments of mandate. The original drafts contained no jurisdictional clause. Such a clause was first introduced in connection with the 'B' mandates by 1 of the States participating in the drafting, & concurrently with proposals made by that same State for a number of detailed provisions about commercial & other "special interests" rights (including missionary rights) for League member States. It was little discussed but, according to the summary record, what discussion there was centered mainly on the commercial aspects of the mandates & the possibility of disputes arising in that regard over the interests of nationals of League members. This appears very clearly from the statements summarized on pages 348-350 of Part VI A of the Recueil des Actes of the Paris Peace Conference, 1919-1920, if these statements are read as a whole. No corresponding clear connection emerges between the clause and possible disputes between mandatories & individual League members over the conduct of the mandates as mandates. That such disputes could arise does not seem to have been envisaged. Similarly, the original drafts of the 'C' mandates which, in a different form, contained broadly all that now appears in the first 4 articles of the Mandate for South West Africa, had no jurisdictional clause & no "missionary clause" either. The one appeared when the other did.

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78. RECOURSE TO COURT NOT APPLICABLE TO “SECURITIES” PROVISIONS. The inference to be drawn from this drafting history is confirmed by the very fact that the question of a right of recourse to the Court arose only at the stage of the drafting of the instruments of mandate, & no such right figured among the "securities" for the performance of the sacred trust embodied in the League Covenant. 79. ONLY EXCEPTION, NOT SIGNIFICANT. After going through various stages, the jurisdictional clause finally appeared in the same form in all the mandates, except that in the case of the Mandate for Tanganyika (as it then was) a drafting caprice caused the retention of an additional paragraph which did not appear, or had been dropped in all the other cases. Once the principle of a jurisdictional clause had been accepted, the clause was then introduced as a matter of course into all the mandates. This answers the contention that, in 'C' mandates, it must have been intended to relate to something more than the single "missionary clause" (Art. 5 in the Mandate for South West Africa). Also, it was simultaneously with the missionary clause that the jurisdictional clause was introduced; & that at the time much importance was attached to missionary rights. In any event, whatever the purpose of the jurisdictional clause, it was the same for all the mandates, & for the 3 categories of mandate. 81. REVIEW OF LEAGUE STRUCTURE. The mandates system, within the larger setting of the League, was an entirely logical one. The mandatories did not deal with the individual members over the "conduct" provisions of their mandates, but with the appropriate League organs. If any difficulty should arise over the interpretation of any mandate, or the character of the mandatory's obligations, which could not be cleared up by discussion or reference to an ad hoc committee of jurists-a frequent practice in the League-the Council could in the last resort request the Permanent Court for an advisory opinion. Such an opinion would not be binding on the mandatory-it was not intended that it should be-but it would assist the work of the Council. 82. UNANIMOUS VOTING REQUIRED. In the Council, which the mandatory was entitled to attend as a member for the purposes of any mandate entrusted to it, if not otherwise a member (Art. 4, par. 5, of the Covenant), the vote of the mandatory, if present at the meeting, was necessary for any actual "decision" of the Council, since unanimity of those attending was the basic voting rule on matters of substance in the main League organs (Art. 5, par. 1, of the Covenant). Thus, there could never be any formal clash between the mandatory & the Council. In practice, the unanimity rule was frequently not insisted upon, or its impact was mitigated by a process of give-and-take, & by various procedural devices to which both the Council & the mandatories lent themselves. There never occurred any case in which a mandatory "vetoed" what would otherwise have been a Council decision. Equally, much trouble was taken to avoid situations in which the mandatory would have been forced to acquiesce in the views of the rest of the Council short of casting an adverse vote. The occasional deliberate absence of the mandatory from a meeting, enabled decisions to be taken that the mandatory might have felt obliged to vote against if it had been present. (83) It can be seen how out of place in the context would have been the existence of substantive rights for individual League members in the conduct of the mandates (particularly if backed up by a right of recourse to the Court) exercisable independently of the Council at the will of the member State. On the other hand, by the combined effect of the "special interests" provisions & the jurisdictional clause (the latter alone could not have sufficed), a right of recourse was given to the individual members in respect of such interests, since the League Council could not be expected to act in defence of a purely national, not "League", interest. 84. NO DISPUTES. Under this system, viewed as a whole, the possibility of any serious complication was remote; nor did any arise. That possibility would have been introduced only if the individual members had been held to have the rights the Applicants now contend for. In the 27 years of the League, all questions were, by one means or another, resolved in the Council; no request was made to the Court for an advisory opinion; so far as is known, no member of the League attempted to settle direct with the mandatory any question that did not affect its own interests as a State or those of its nationals, and no cases were referred to the Permanent Court under the adjudication clause except the various phases of one single case (the Mavrommatis Concessions) coming under the head of "special interests". These facts may not be conclusive in themselves; but they have a significance which cannot be overlooked, as suggesting that any divergences of view concerning the conduct of a mandate were regarded as being matters that had their place in the political field, the settlement of which lay between the mandatory & the competent organs of the League,-not between the mandatory & individual League members. 85. “NECESSITY” ARGUMENT FOR CLAIM OF RIGHTS: since the Council could not impose its views on the mandatory, & since no advisory opinion it might obtain from the Court would be binding on the latter, the mandate could have been flouted at will. It was essential, as an ultimate safeguard or security for the performance of the sacred trust, that each member should be deemed to have a legal right or interest in that matter &, in the last resort, be able to take direct action relative to it.

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86. WHAT FOR IS THE VETO POWER IF THE OTHER MEMBERS COULD GO TO COURT TO CHALLENGE IT? It is evident how misconceived such an argument must be in the context of a system which was expressly designed to include all those elements which, according to the "necessity" argument, it was essential to guard or provide securities against. Court disregards the improbability that had the framers intended to impose a given course or policy on a mandatory, in the performance of the sacred trust, they would have left this to the haphazard & uncertain action of the individual members, when other much more immediate & effective methods were to hand (by providing that mandatories should not be Council members for mandates purposes, though entitled to attend, or should not be entitled to exercise a vote on mandates questions; or by investing Council members with a right of action before the Court, as in the minorities case). In relation to the "conduct" provisions of the mandates, it was never the intention that the Council should be able to impose its views on the various mandatories-the system adopted deliberately rendered this impossible. It was never intended that the views of the Court should be ascertained in a manner binding on mandatories, or that mandatories should be answerable to individual League members as such in respect of the "conduct" provisions of the mandates. It is scarcely likely that a system which, of set purpose, created a position such that, if a mandatory made use of its veto, it would thereby block what would otherwise be a Council decision, should simultaneously invest individual members, in effect, a legal right of complaint if this veto, to which the mandatory was entitled, was made use of. In the international field, the existence of obligations that cannot in the last resort be enforced by any legal process, has always been the rule rather than the exception,-and this was even more the case in 1920 than today. 87. RISK OF SELF-INTERESTED ACTION BY MANDATORY, TAKEN BUT NOT FULFILLED. As regards the possibility that a mandatory might be acting contrary not only to the views of the rest of the Council but to the mandate itself, the risk of this was evidently taken with open eyes; and that the risk was remote, the event proved. But acceptance of the Applicants' contention would involve acceptance of the proposition that even if the Council should be perfectly satisfied with the way in which a mandatory was carrying out its mandate, any individual member could independently invoke the Court’s jurisdiction in order to have the same conduct declared illegal; although, no provision for recourse to the Court was included amongst the "securities" provided for by the Covenant itself. Here again the difference is evident between this case & that of the minorities, where it was the members of the Council itself who 'had that right. The potential existence of such a situation as would have arisen from investing all the members with the right in question is not reconcilable with the processes described above for the supervision of the mandates. According to the methods and procedures of the League as applied to the operation of the mandates system, it was by argument, discussion, negotiation and cooperative effort that matters were to be, and were, carried forward. 88. NECESSITY ARGUMENT FAILS. The Court, bearing in mind that the rights of the Applicants must be determined by reference to the character of the system said to give rise to them, considers that the "necessity" argument falls to the ground for lack of verisimilitude in the context of the economy & philosophy of that system. Also, the argument amounts to a plea that the Court should allow the equivalent of an "actio popularis", or right resident in any member of a community to take legal action in vindication of a public interest. But although a right of this kind may be known to certain municipal systems of law, it is not known to international law as it stands at present: nor is the Court able to regard it as imported by the "general principles of law" referred to in Art. 38, par. 1 (c), of its Statute. 89. IT’S AN EXTRA-LEGAL ARGUMENT. In conclusion, the "necessity" argument appears to be based on considerations of an extralegal character, the product of a process of after-knowledge. Such a theory was never officially advanced during the period of the League, & probably never would have been but for the dissolution of that organization & the fact that it was then considered preferable to rely on the anticipation that mandated territories would be brought within the UN trusteeship system. It is these subsequent events alone, not anything inherent in the mandates system as it was originally conceived, & is correctly to be interpreted, that give rise to the alleged "necessity". But that necessity, if it exists, lies in the political field. It does not constitute necessity in the eyes of the law. If the Court, in order to parry the consequences of these events, were now to read into the mandates system, by way of, remedial action, an element wholly foreign to its real character & structure as originally contemplated when the system was instituted, it would be engaging in an ex post facto process, exceeding its functions as a court of law. As is implied by the opening phrase of Art. 38, par. 1, of its Statute, the Court is not a legislative body. Its duty is to apply the law as it finds it, not to make it. 90. EX AEQUO ET BONO available if wanted. It is always open to parties to a dispute, if they wish the Court to give a decision on a basis of ex aequo et bono, & are so agreed, to invoke the power which, in those circumstances, Art. 38, par. 2 confers on the Court to give a decision on that basis, notwithstanding the provisions of par. 1. Failing that, the duty of the Court is plain.

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91. NO FILLING IN THE GAPS. It may be urged that the Court is entitled to engage in a process of "filling in the gaps", in the application of a teleological principle of interpretation, according to which instruments must be given their maximum effect in order to ensure the achievement of their underlying purposes. But it need not enquire into the scope of a principle the exact bearing of which is highly controversial, for it is clear that it can have no application in circumstances in which the Court would have to go beyond what can reasonably be regarded as being a process of interpretation, & would have to engage in a process of rectification or revision. Rights cannot be presumed to exist merely because it might seem desirable that they should. Previously, which had certain affinities with the present one, the Court declined to find that an intended 3-member commission could properly be constituted with 2 members only, despite the (as the Court had held) illegal refusal of 1 of the parties to the jurisdictional clause to appoint its arbitrator-& although the whole purpose of the jurisdictional clause was thereby frustrated. In so doing, the Court (I.C.J. Reports 1950) said that it was its duty "to interpret the Treaties, not to revise them". It continued: "The principle of interpretation expressed in the maxim: Ut res magis valeat quampereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions for the settlement of disputes in the Peace Treaties a meaning which, as stated above, would be contrary to their letter & spirit." In other words, the Court cannot remedy a deficiency if, in order to do so, it has to exceed the bounds of normal judicial action. 92. CAN’T PROVIDE FOR OMISSIONS. It may also be urged that the Court would be entitled to make good an omission resulting from the failure of those concerned to foresee what might happen, & to have regard to what it may be presumed the framers of the Mandate would have wished, or would even have made express provision for, had they had advance knowledge of what was to occur. The Court cannot presume what the wishes & intentions of those concerned would have been in anticipation of events that were neither foreseen nor foreseeable; & even if it could, it would certainly not be possible to make the assumptions in effect contended for by the Applicants as to what those intentions were. 93. IF YOU INSIST, LOOK AT THE U.N. There is 1 test that can be applied, namely by enquiring what the States who were League members when the mandates system was instituted did when, as Members of the UN, they joined in setting up the trusteeship system that was to replace the mandates system. In effect, as regards structure, they did exactly the same as had been done before, with only 1, though significant difference. There were marked divergences, as regards composition, powers, & voting rules, between the organs of the UN & those of the League. Subject to that however, the Trusteeship Council was to play the same sort of role as the Permanent Mandates Commission had done, & the GA (or Security Council, as to strategic trusteeships) was to play the role of the League Council; & it was to these bodies that the various administering authorities became answerable. No right of supervision or of calling the administering authority to account was given to individual Members of the UN, whose sphere of action, as in the case of the League members, is to be found in their participation in the work of the competent organs. 94. DIFFERENCE. The significant difference referred to lies in the distribution of the jurisdictional clause amongst the various trusteeship agreements. The clause itself is almost identical in its terms with that which figured in the mandates, & was clearly taken straight from these ("any dispute whatever", "between the Administering Authority and another Member of the UN", "relating to . . . the provisions of this Agreement"). But whereas the jurisdictional clause appeared in all the mandates, each of which contained "special interests" provisions, it figures only in those trusteeship agreements which contain provisions of this type, & not in agreements whose provisions are confined entirely to the performance of the trust in accordance with the basic objectives of the system as set out in Art. 76 of the Charter. 95. INEQUALITY WOULD RESULT. If therefore, the Applicants’ contention were correct in principle (being founded on the existence & wording of the jurisdictional clause, & involves the erroneous assumption that it can per se confer substantive rights), it would follow that, in the case of some of the trusteeships, individual UN members would be held to have a legal right or interest in the conduct & administration of the trust, but in relation to others they would not, although these were no less trusteeships,-no less an expression of the "sacred trust of civilization". The implications becomes even more striking when it is realized that the trusteeships to which no jurisdictional clause attaches are 3 previous Pacific 'C' mandates-that is, the class of territory inhabited by precisely the most undeveloped categories of peoples, the least "able to stand by themselves". 96. COUNTER-ARGUMENT TO “ANOMALY”: by reference to the strong negotiating position in which the various mandatories found themselves, inasmuch as they were not legally obliged to place their mandated territories under trusteeship at all, & could, within limits, make their own terms. But this would in no way explain why they seem to have been willing to accept a jurisdictional clause in the case of trusteeships that contained "special interests" provisions, including one Pacific 'C' mandate of this kind, but were not willing to do so in the case of trusteeships whose terms provided only for the performance of the trust in accordance with the basic objectives of the system.
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97. COURT’S OPTIONAL CLAUSE. No doubt, even where no jurisdictional clause figures in a trusteeship agreement, it would be possible, in those cases where the administering authority had made an appropriately worded declaration in acceptance of the Court's compulsory jurisdiction under the optional clause provision of Art. 36 of the Court's Statute, for another UN member having made a similar & interlocking declaration, to seize the Court of a dispute regarding the performance of the trust. But the number of cases in which this could occur has always been very limited, & the process is rendered precarious & uncertain, not only by the conditions contained in, & the nature of the disputes covered by certain of these declarations, but also by their liability to amendment, withdrawal, or non-renewal. The optional clause system could not have afforded a substitute for a general obligation to adjudicate, if such an obligation had really been regarded as essential;-moreover, even in those cases where an optional clause declaration could be invoked, it would still be necessary for the invoking State-as here-to establish the existence of a legal right or interest in the subject-matter of its claim. 98. COUNTER-ARGUMENT: NO VETO POWER IN U.N. It has been sought to explain why certain trusteeship agreements do not contain the jurisdictional clause by a further appeal to the "necessity" argument. This clause was no longer necessary, so it was contended, because the UN voting rule was different. In the League Council, decisions could not be arrived at without the concurrence of the mandatory, whereas in the UN the majority voting rule ensured that a resolution could not be blocked by any single vote. This contention would not in any event explain why the clause was accepted for some trusteeships and not for others. But the whole argument is misconceived. If decisions of the League Council could not be arrived at without the concurrence, express or tacit, of the mandatory, they were, when arrived at, binding: and if resolutions of the UN GA (which on this hypothesis would be the relevant organ) can be arrived at without the concurrence of the administering authority, yet when so arrived at-and subject to certain exceptions not here material-they are not binding, but only recommendatory in character. The persuasive force of Assembly resolutions can indeed be very considerable,-but this is a different thing. It operates on the political not the legal level: it does not make these resolutions binding in law. If the "necessity" argument were valid, it would be applicable as much to trusteeships as it is said to be to mandates, because in neither case could the administering authority be coerced by means of the ordinary procedures of the organization. JUDGMENT. In the light of these various considerations, the Court finds that the Applicants cannot be considered to have established any legal right or interest appertaining to them in the subject-matter of the present claims, and that, accordingly, the Court must decline to give effect to them. For these reasons, by the President's casting vote-the votes being equally divided, decides to reject the claims of the Empire of Ethiopia and the Republic of Liberia. Judge Morelli & Judge ad hoc Van Wyk append Separate Opinions. Vice-President Wellington Koo, Judges Koretsky, Tanaka, Jessup, Padilla Nervo, Forster & Judge ad hoc Sir Louis Mbanefo append Dissenting Opinions.

ASYLUM CASE (COLUMBIA/PERU)
Colombian-Peruvian asylum case Judgment of November 20th 1950: I.C. J. Reports 1950, pp. 266. PRELIMINARIES. In the Asylum case, between the Republic of Colombia, represented by: M. J. M. Yepes, Professor, Minister Plenipotentiary, Legal Adviser to the Ministry for Foreign Affairs of Colombia, former Senator, as Agent; assisted by M. Alfredo Vasquez, Minister Plenipotentiary, Secretary-General of the Ministry for Foreign Affairs of Colombia, as Advocate; and the Republic of Peru, represented by: M. Carlos Sayan Alvarez, Barrister, Ambassador, former Minister, former President of the Peruvian Chamber of Deputies, as Agent; assisted by M. Felipe Tudela y Barreda, Barrister, Professor of Constitutional Law at Lima, M. Fernando Morales Macedo R., Parliamentary Interpreter, M. Juan José Calle y Calle, Secretary of Embassy; and, as Counsel, M. Georges Scelle, Honorary Professor of the University of Paris, and M. Julio Lopez Olivan, Ambassador,

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THE ACT OF LIMA. On August 31st, 1949, an agreement called the "Act of Lima" was signed at Lima in the name of the Colombian and of the Peruvian Government. This Act is as follows:

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"His Excellency Monsieur Victor Andrés Belaunde, Ambassador Extraordinary and Plenipotentiary ad hoc of the Peruvian Republic, and His Excellency Monsieur Eduardo Zuleta Angel, Ambassador Extraordinary and Plenipotentiary ad hoc of Colombia, duly designated by their respective Governments to negotiate and draw up the terms of an agreement to refer to the International Court of Justice a dispute which arose following a request by the Colombian Embassy in Lima for delivery of a safe-conduct for Monsieur Victor Raul Haya de la Torre, have met in the Ministry of Foreign Affairs and Public Worship in Lima and, having exchanged their respective credentials, make the following declaration in the spirit of cordial frendship which characterizes the relations between the two countries : First : They have examined in a spirit of understanding the existing dispute which they agree to refer for decision to the International Court of Justice, in accordance with the agreement concluded by the two Governments. Second : The Plenipotentiaries of Peru and Colombia having been unable to reach an agreement on the terms in which they might refer the dispute jointly to the International Court of Justice, agree that proceedings before the recognized jurisdiction of the Court may be instituted on the application of either of the Parties without this being regarded as an unfriendly act toward the other, or as an act likely to affect the good relations between the two countries. The Party exercising this right shall, with reasonable advance notice, announce in a friendly way to the other Party the date on which the application is to be made. Third : They agree, here and now : (a) that the procedure in this case shall be the ordinary procedure ; (b) that, in accordance with Article 31, paragraph 3, of the Statute of the Court, each of the Parties may exercise its right to choose a judge of its nationality ; (c) that the case shall be conducted in French. Fourth : This document, after it has been signed, shall be communicated to the Court by the Parties." COLUMBIA FILES APPLICATION RE ACT OF LIMA; OTHER EVENTS LEADING TO THE HEARING. On October 15th, 1949, an Application, referring to the Act of Lima of August 31st, 1949, was filed in the Registry of the Court in the name of the Colombian Government. After stating that Colombia asserts : "(a) that she is entitled in the case of persons who have claimed asylum in her embassies, legations, warships, military camps or military aircraft, to qualify the refugees, either as offenders for common crimes or deserters from the army or navy, or as political offenders ; (b) that the territorial State, namely, in this case, Peru, is bound to give 'the guarantees necessary for the departure of the refugee, with due regard to the inviolability of his person, from the country' ", The Application concludes by requesting the Court : "To pass judgment on and answer, whether the Government of the Republic of Peru enters an appearance or not, and after such time-limits as the Court may fix in the absence of an agreement between the Parties, the following questions: First Question.-Within the limits of the obligations resulting in particular from the Bolivarian Agreement on Extradition of July 18th, 1911, and the Convention on Asylum of February 20th, 1928, both in force between Colombia and Peru, and in general from American international law, was Colombia competent, as the country granting asylum, to qualify the offence for the purposes of said asylum ? Second Question.-In the specific case under consideration, was Peru, as the territorial State, bound to give the guarantees necessary for the departure of the refugee from the country, with due regard to the inviolability of his person ?" Together with the Application, the Agent of the Colombian Government filed in the Registry a certified true copy of the original in Spanish, accompanied by a French translation, of the Act of Lima. By letter of October 15th, 1949, received by the Registry on the same day, the Agent of the Peruvian Government also deposited a certified true translation of the Act of Lima.
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The Application was notified, under Article 40, paragraph 3 of the Statute of the Court, to the States entitled to appear before the Court. It was also transmitted to the Secretary-General of the United Nations. As the Application was based upon the Convention on Asylum signed at Havana on February 20th, 1928, and upon the Agreement on Extradition signed at Caracas on July 18th, 1911, the notification prescribed by Article 63, paragraph 1, of the Statute of the Court was addressed to the States other than those concerned in the case which were parties to the foregoing Conventions. The Pleadings having been deposited within the time-limits prescribed in the Order of October 20th, 1949, as extended by Orders of December 17th, 1949, and May 9th, 1950, the case was ready for hearing on June 15th, 1950. As the Court did not include upon the Bench any judge of the nationality of the Parties, the latter availed themselves of the right provided by Article 31, paragraph 3 of the Statute. The Judges ad hoc designated were M. José Joaquin Caicedo Castilla, for Colombia, and M. Luis Alayza y Paz Soldan, for Peru. The opening of the oral proceedings was fixed for September 26th, 1950. Public sittings were held by the Court on September 26th, 27th, 28th and 29th and on October and, 3rd, 6th and gth, 1950. In the course of the sittings, the Court heard statements by Yepes and Vasquez on behalf of Colombia, and by Alvarez and Scelle, on behalf of the Peru. COLUMBIA’S SUBMISSIONS AT THE END OF THE WRITTEN PROCEEDINGS. At the end of the written proceedings the Parties had presented the following submissions :On behalf of Colombia (submissions contained in the Reply) : "MAY IT PLEASE THE COURT To dismiss the submissions of the Government of the Republic of Peru, TO ADJUDGE AND DECLARE : th In accordance with the submissions presented by Colombia in its Memorial of January 10 , 1950, which was submitted to the Court on the same date, and Rejecting all contrary submissions, I. That Colombia, as the country granting asylum, is competent to qualify the offence for the purpose of the said asylum, within the limits of the obligations resulting in particular from the Bolivarian Agreement on Extradition, and the Convention on Asylum, and of American international law in general ; II. That Peru, as the territorial State, is bound in the case now before the Court to give the guarantees necessary for the departure of Haya de la Torre from the country, with due regard to the inviolability of his person." PERU’S SUBMISSIONS AT THE END OF THE WRITTEN PROCEEDINGS. On behalf of Peru (submissions contained in the Rejoinder) : "MAY IT PLEASE THE COURT To set aside the submissions of Colombia; TO ADJUDGE AND DECLARE As a counter-claim, under Article 63 of RoC, and in the same decision, that the grant of asylum by the Colombian Ambassador at Lima to Haya de la Torre was made in violation of Article 1, paragraph 1, and Article 2, paragraph 2, item I (inciso primera), of the Convention on Asylum." ADDITION TO THE SUBMISSION IN THE PLEADINGS MADE BY PERU’S AGENT; FINAL SUBMISSIONS OF PARTIES. At the end of the oral statements, the Agent for Peru having made an addition to the submissions in the Pleadings, the following final submissions were presented to the Court orally and confirmed in writing: On behalf of Colombia (on the claim) T0 ADJUDGE AND DECLARE :

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I.-That Colombia, as the country granting asylum, is competent to qualify the offence for the purpose of the said asylum, within the limits of the obligations resulting in particular from the Bolivarian Agreement on Extradition, and the Havana Convention on Asylum, and of American international law in general; II.-That Peru, as the territorial State, is bound in the case now before the Court to give the guarantees necessary for the departure of M. Victor Raul Haya de la Torre from the country, with due regard to the inviolability of his person." (on the counter-claim) I. That the counter-claim presented by the Peruvian Government on March 21st, 1950, is not admissible because of its lack of direct connexion with the Application of the Colombian Government; II. That the new counter-claim, irregularly presented on October 3rd, 1950, in the form of a submission upon allegations made during the oral debate, is not admissible on the grounds that : (a.) It was presented in violation of Article 63 of the Rules of Court ; (b) The Court has no jurisdiction to take cognizance of it ; (c) It has no direct connexion with the Application of the Colombian Government." On behalf of Peru : "MAY IT PLEASE THE COURT To set aside submissions I and II of the Colombian Memorial. To set aside the submissions which were presented by the Agent of the Colombian Government at the end of his oral statement on October 6th, 1950, in regard to the counter-claim of the Government of Peru, and which were repeated in his letter of October 7th, 1950. TO ADJUDGE AND DECLARE, As a counter-claim, under Article 63 of the Rules of Court and in the same decision, that the grant of asylum by the Colombian Ambassador at Lima to Victor Raul Haya de la Torre was made in violation of Article 1, paragraph 1, and of Article 2, paragraph 2, item I (inciso primera), of the Convention on Asylum signed in 1928, and that in any case the maintenance of the asylum constitutes at the present time a violation of that treaty." BACKTRACK: MILITARY REBELLION BREAKS OUT IN PERU IN 1948. On October 3rd, 1948, a military rebellion broke out in Peru. It was suppressed on the same day and investigations were at once opened. AMERICAN PEOPLE’S REVOLUTIONARY ALLIANCE CHARGED. On October 4th, the President of the Republic issued a decree in the recitals of which a political party, the American People's Revolutionary Alliance, was charged with having organized and directed the rebellion. The decree consequently enacted that this party had placed itself outside the law, that it would henceforth not be permitted to exercise any kind of activity, and that its leaders would be brought to justice in the national courts as instigators of the rebellion. Simultaneously, the head of the Judicial Department of the Navy issued an order requiring the Examining Magistrate to open at once an enquiry as to the facts constituting the crime of military rebellion. HAYA DE LA TORRE DENOUNCED. On October 5th, the Minister of the Interior addressed to the Minister for the Navy a "note of denunciation" against the leader of the American People's Revolutionary Alliance, Victor Raul Haya de la Torre, and other members of the party as responsible for the rebellion. This denunciation was approved on the same day by the Minister for the Navy and on October 10th by the Public Prosecutor, who stated that the subject-matter of the proceedings was the crime of military rebellion. HAYA DE LA TORRE, ET AL. TRIED. On October 11th, the Examining Magistrate issued an order for the opening of judicial proceedings against Haya de la Torre and others "in respect of the crime of military rebellion with which they are charged in the 'denunciation' ", and on October 25th he ordered the arrest of the persons "denounced" who had not yet been detained. COUP D’ETAT. On October 27th, a Military Junta made a coup d'état and seized the supreme power. This Military Junta of the Govèrnment issued on November 4th a decree providing for Courts-Martial for summary procedure in cases of rebellion, sedition and rioting, fixing short time-limits and severe punishment without appeal. This decree was not applied to the judicial proceedings against Haya de la Torre and others. These proceedings continued under the same jurisdiction as theretofore. This is shown by a
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note of November 8th from the Examining Magistrate requesting the production of certain documents, by a note of November 13 from the Head of the Investigation and Surveillance Service to the Examining Magistrate stating that Haya de la Torre and others were not arrested as they could not be found, and by an Order by the Examining Magistrate of the same date requiring the defaulters to be cited by public summons. On November 16th and the two subsequent days, the summons was published in the official gazette El Peruano, requiring "the accused persons who are in default" -Haya de la Torre and others-to report to the office of the Examining Magistrate to answer the accusation brought against them "for the crime of military rebellion". Haya de la Torre did not report, and the facts brought to the knowledge of the Court do not show that any further measures were taken against him. STATE OF SIEGE DECLARED. On October 4th, the day after the military rebellion, a state of siege was declared, suspending certain nd nd constitutional rights ; it was renewed on November 2 and December 2nd, 1948, and on January 2 , 1949. HAYA DE LA TORRE SEEKS ASYLUM IN COLUMBIA; GRANTED BY COLUMBIAN AMBASSADOR. On January 3rd, 1949, Haya de la Torre sought asylum in the Colombian Embassy in Lima. On the next day, the Colombian Ambassador sent the following note to the Peruvian Minister for Foreign Affairs and Public Worship : "I have the honour to inform Your Excellency, in accordance with what is provided in Article 2, paragraph 2, of the Convention on Asylum signed by Our two countries in the city of Havana in the year 1928, that Señor Victor Raul Haya de la Torre has been given asylum at the seat of this mission as from 9 p.m. yesterday. In view of the foregoing, and in view of the desire of this Embassy that Sr. Haya de la Torre should leave Peru as early as possible, I request Your Excellency to be good enough to give orders for the requisite safe-conduct to be issued, so that Sr. Haya de la Torre may leave the country with the usual facilities attaching to the right of diplomatic asylum." On January 14th, the Ambassador sent to the Minister a further note as follows : "Pursuant to instructions received from the Chancellery of my country, I have the honour to inform Your Excellency that the Government of Colombia, in accordance with the right conferred upon it by Article 2 of the Convention on Political Asylum has qualified Sr. Victor Raul Haya de la Torre as a political refugee." A diplomatic correspondence followed, leading up to the Act of Lima of August 31st, 1949, whereby the dispute which had arisen between the two Governments was referred to the Court. COLUMBIA’S SUBMISSION TO BE DECLARED COMPETENT TO GRANT ASYLUM. The Colombian Government has presented two submissions, of which the first asks the Court to adjudge and declare "That the Republic of Colombia, as the country granting asylum, is competent to qualify the offence for the purpose of the said asylum, within the limits of the obligations resulting in particular from the Bolivarian Agreement on Extradition, and the Convention on Asylum, and of American international law in general." COURT’S TAKE ON COLUMBIA’S SUBMISSION. If the Colombian Government by this submission intended to allege that Colombia, as the State granting asylum, is competent to qualify the offence only provisionally and without binding effect for Peru, the solution would not remain a matter of doubt. It is evident that the diplomatic representative who has to determine whether a refugee is to be granted asylum or not must have the competence to make such a provisional qualification of any offence alleged to have been committed by the refugee. He must in fact examine the question whether the conditions required for granting asylum are fulfilled. The territorial State would not thereby be deprived of its right to contest the qualification. In case of disagreement between the two States, a dispute would arise which might be settled by the methods provided by the Parties for the settlement of their disputes. This is not, however, the meaning which the Colombian Government has put on its submission. It has not claimed the right of qualification for the sole purpose of determining its own conduct. The written and oral arguments submitted on behalf of that Government show that its claim must be understood in the sense that Colombia, as the State granting asylum, is competent to qualify the nature of the offence by a unilateral and definitive decision binding on Peru. Colombia has based this submission partly on rules resulting from agreement, partly on an alleged custom. COURT LOOKS INTO THE AGREEMENTS REFERRED TO BY COLUMBIA.
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(a) Bolivarian Agreement of 1911 The Colombian Government has referred to the Bolivarian Agreement of 1911, Article 18: "Aside from the stipulations of the present Agreement, the signatory States recognize the institution of asylum in conformity with the principles of international law." In recognizing "the institution of asylum", this article merely refers to the principles of international law. But the principles of international law do not recognize any rule of unilateral and definitive qualification by the State granting diplomatic asylum. The Colombian Government has also relied on Article 4 of this Agreement concerning extradition of a criminal refugee from the territory of the State in which he has sought refuge. The arguments submitted in this respect reveal a confusion between territorial asylum (extradition), on the one hand, and diplomatic asylum, on the other. In the case of extradition, the refugee is within the territory of the State of refuge. A decision with regard to extradition implies only the normal exercise of the territorial sovereignty. The refugee is outside the territory of the State where the offence was committed, and a decision to grant him asylum in no way derogates from the sovereignty of that State. In the case of diplomatic asylum, the refugee is within the territory of the State where the offence was committed. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case. For these reasons, it is not possible to deduce from the provisions of agreements concerning extradition any conclusion which would apply to the question now under consideration. (b) Havana Convention on Asylum The Colombian Government further relies on the Havana Convention on Asylum of 1928. This Convention lays down certain rules relating to diplomatic asylum, but does not contain any provision conferring on the State granting asylum a unilateral competence to qualify the offence with definitive and binding force for the territorial State. The Colombian Government contends, however, that such a competence is implied in that Convention and is inherent in the institution of asylum. A competence of this kind is of an exceptional character. It involves a derogation from the equal rights of qualification which, in the absence of any contrary rule, must be attributed to each of the States concerned; it thus aggravates the derogation from territorial sovereignty constituted by the exercise of asylum. Such a competence is not inherent in the institution of diplomatic asylum. This institution would perhaps be more effective if a rule of unilateral and definitive qualification were applied. But such a rule is not essential to the exercise of asylum. These considerations show that the alleged right of unilateral and definitive qualification cannot be regarded as recognized by implication in the Havana Convention. Moreover, this Convention, in pursuance of the desire expressed in its preamble of "fixing the rules" which the Governments of the States of America must observe for the granting of asylum, was concluded with the manifest intention of preventing the abuses which had arisen in the previous practice, by limiting the grant of asylum. It did so in a number of ways and in terms which are unusually restrictive and emphatic ("It is not permissible for States...." ; "Asylum may not be granted except in urgent cases and for the period of time strictly indispensable....", etc.). The Colombian Government has invoked Article 2, paragraph 1, of the Havana Convention, which is framed in the following terms : "Asylum granted to political offenders in legations, warships, military camps or military aircraft, shall be respected to the extent in which allowed as a right or through humanitarian toleration, by the usages, the conventions or the laws of the country in which granted and in accordance with the following provisions :" This provision has been interpreted by that Government in the sense that the usages, conventions and laws of Colombia relating to the qualification of the offence can be invoked against Peru. This interpretation, which would mean that the extent of the obligation
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of one of the signatory States would depend upon any modifications which might occur in the law of another, cannot be accepted. The provision must be regarded as a limitation of the extent to which asylum shall be respected. What the provision says in effect is that the State of refuge shall not exercise asylum to a larger extent than is warranted by its own usages, conventions or laws and that the asylum granted must be respected by the territorial State only where such asylum would be permitted according to the usages, conventions or laws of the State of refuge. Nothing therefore can be deduced from this provision in so far as qualification is concerned. (c) Montevideo Convention On Political Asylum The Colombian Government has further referred to the Montevideo Convention on Political Asylum of 1933. It was in fact this Convention which was invoked in the note of January 14th, 1949, from the Colombian Ambassador to the Peruvian Minister for Foreign Affairs. It is argued that, by Article 2 of that Convention, the Havana Convention of 1928 is interpreted in the sense that the qualification of a political offence appertains to the State granting asylum. Articles 6 and 7 of the Montevideo Convention provide that it shall be ratified and will enter into force as and when the ratifications are deposited. The Montevideo Convention has not been ratified by Peru, and cannot be invoked against that State. The fact that it was considered necessary to incorporate in that Convention an article accepting the right of unilateral qualification, seems to indicate that this solution was regarded as a new rule not recognized by the Havana Convention. Moreover, the preamble of the Montevideo Convention states in its Spanish, French and Portuguese texts that it modifies the Havana Convention. It cannot therefore be considered as representing merely an interpretation of that Convention. (d) American international law in general The Colombian Government has finally invoked "American international law in general". In addition to the rules arising from agreements which have already been considered, it has relied on an alleged regional or local custom peculiar to Latin-American States. The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party. The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, which refers to international custom “as evidence of a general practice accepted as law.” In support of its contention concerning the existence of such a custom, the Colombian Government has referred to a large number of extradition treaties which, as already explained, can have no bearing on the question now under consideration. It has cited conventions and agreements which do not contain any provision concerning the alleged rule of unilateral and definitive qualification such as the Montevideo Convention of 1889 on international penal law, the Bolivarian Agreement of 1911 and the Havana Convention of 1928. It has invoked conventions which have not been ratified by Peru, such as the Montevideo Conventions of 1933 and 1939. The Convention of 1933 have, in fact, been ratified by not more than eleven States and the Convention of 1939 by two States only. It is particularly the Montevideo Convention of 1933 which Counsel for the Colombian Government has also relied on in this connexion. It is contended that this Convention has merely codified principles which were already recognized by Latin-American custom, and that it is valid against Peru as a proof of customary law. The limited number of States which have ratified this Convention reveals the weakness of this argument, and furthermore, it is invalidated by the preamble which states that this Convention modifies the Havana Convention. (e) previous diplomatic asylum cases granted and respected Finally, the Colombian Government has referred to a large number of particular cases in which diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule of unilateral and definitive qualification was invoked or -- if in some cases it was in fact invoked -- that it was, apart from conventional stipulations, exercised by the States granting asylum as a right appertaining to them and respected by the territorial States as a duty incumbent on them and not merely for reasons of political expediency. The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions, there has been so
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much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage, accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence. The Court cannot therefore find that the Colombian Government has proved the existence of such a custom. But even if it could be supposed that such a custom existed between certain Latin-American States only, it could not be invoked against Peru which, far from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offence in matters of diplomatic asylum. GOVERNMENT DOCUMENTS, USED BY BOTH PARTIES, SHOWED VIEWS RE QUALIFICATION DIFFERENT FROM THEIR RESPECTIVE PLEADINGS AND ORAL PROCEEDINGS. In the written Pleadings and during the oral proceedings, the Government of Colombia relied th upon official communiqués published by the Peruvian Ministry of Foreign Affairs on October 13 and 26th, 1948, and the Government of Peru relied upon a Report of the Advisory Committee of the Ministry of Foreign Affairs of Colombia dated September 2nd, 1937 ; on the question of qualification, these documents state views which are contrary to those now maintained by these Governments. The Court, whose duty it is to apply international law in deciding the present case, cannot attach decisive importance to any of these documents. For these reasons, the Court has arrived at the conclusion that Colombia, as the State granting asylum, is not competent to qualify the offence by a unilateral and definitive decision, binding on Peru. COLUMBIA’S SECOND SUBMISSION; COURT DISCUSSION RE REQUEST FOR SAFE CONDUCT. In its second submission, the Colombian Government asks the Court to adjudge and declare : "That the Republic of Peru, as the territorial State, is bound in the case now before the Court, to give the guarantees necessary for the departure of M. Victor Raul Haya de la Torre from the country, with due regard to the inviolability of his person." This alleged obligation of the Peruvian Government does not entirely depend on the answer given to the first Colombian submission relating to the unilateral and definitive qualification of the offence. It follows from the first two articles of the Havana Convention that, even if such a right of qualification is not admitted, the Colombian Government is entitled to request a safe-conduct under certain conditions. The first condition is that asylum has been regularly granted and maintained. It can be granted only to political offenders who are not accused or condemned for common crimes and only in urgent cases and for the time strictly indispensable for the safety of the refugee. These points relate to the Peruvian counterclaim and will be considered later to the extent necessary for the decision of the present case. The second condition is laid down in Article 2 of the Havana Convention : "Third: The Government of the State may require that the refugee be sent out of the national territory within the shortest time possible ; and the diplomatic agent of the country who has granted asylum may in turn require the guarantees necessary for the departure of the refugee from the country with due regard to the inviolability of his person." If regard is had, on the one hand, to the structure of this provision which indicates a successive order, and, on the other hand, to the natural and ordinary meaning of the words "in turn", this provision can only mean that the territorial State may require that the refugee be sent out of the country, and that only after such a demand can the State granting asylum require the necessary guarantees as a condition of his being sent out. The provision gives, in other words, the territorial State an option to require the departure of the refugee, and that State becomes bound to grant a safe-conduct only if it has exercised this option. A contrary interpretation would lead, in the case now before the Court, to the conclusion that Colombia would be entitled to decide alone whether the conditions provided by Articles I and 2 of the Convention for the regularity of asylum are fulfilled. Such a consequence obviously would be incompatible with the legal situation created by the Convention.

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There exists undoubtedly a practice whereby the diplomatic representative who grants asylum immediately requests a safe conduct without awaiting a request from the territorial State for the departure of the refugee. This procedure meets certain requirements : the diplomatic agent is naturally desirous that the presence of the refugee on his premises should not be prolonged ; and the
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government of the country, for its part, desires in a great number of cases that its political opponent who has obtained asylum should depart. This concordance of views suffices to explain the practice which has been noted in this connexion, but this practice does not and cannot mean that the State, to whom such a request for a safe-conduct has been addressed, is legally bound to accede to it. In the present case, the Peruvian Government has not requested that Haya de la Torre should leave Peru. It has contested the legality of the asylum granted to him and has refused to deliver a safe-conduct. In such circumstances the Colombian Government is not entitled to claim that the Peruvian Government should give the guarantees necessary for the departure of Haya de la Torre from the country, with due regard to the inviolability of his person. PERU’S COUNTERCLAIM. The counter-claim of the Government of Peru was stated in its final form during the oral statement of October 3rd, 1950, in the following terms : “MAY IT PLEASE THE COURT: To adjudge and declare as a counter-claim under Article 63 of the Rules of Court, and in the same decision, that the grant of asylum by the Colombian Ambassador at Lima to Victor Raul Haya de la Torre was made in violation of Article 1, paragraph 1, and Article 2, paragraph 2, item I (inciso primera), of the Convention on Asylum signed in 1928, and that in any case the maintenance of the asylum constitutes at the present time a violation of that treaty." As has already been pointed out, the last part of this sentence : "and that in any case the maintenance of the asylum constitutes at the present time a violation of that treaty", did not appear in the counter-claim presented by the Government of Peru in the Counter-Memorial. The addition was only made during the oral proceedings. The Court will first consider the counter-claim in its original form. COURT FIRST CONSIDERS PERU’S COUNTERCLAIM IN ITS ORIGINAL FORM. This counter-claim is intended, in substance, to put an end to the dispute by requesting the Court to declare that asylum was wrongfully given, the grant of asylum being contrary to certain provisions of the Havana Convention. The object of the counter-claim is simply to define for this purpose the legal relations which that Convention has established between Colombia and Peru. The Court observes in this connexion that the question of the possible surrender of the refugee to the territorial authorities is in no way raised in the counter-claim. It points out that the Havana Convention, which provides for the surrender to those authorities of persons accused of or condemned for common crimes, contains no similar provision in respect of political offenders. The Court notes, finally, that this question was not raised either in the diplomatic correspondence submitted by the Parties or at any moment in the proceedings before the Court, and in fact the Government of Peru has not requested that the refugee should be surrendered. COURT, ON COLUMBIA’S ARGUMENT THAT PERU’S COUNTERCLAIM IS NOT DIRECTLY CONNECTED WITH THE SUBJECT-MATTER OF ITS APPLICATION. It results from the final submissions of the Government of Colombia, as formulated before the Court on October 6th, 1950, that that Government did not contest the jurisdiction of the Court in respect of the original counter-claim ; it did so only in respect of the addition made during the oral proceedings. On the other hand, relying upon Article 63 of the Rules of Court, the Government of Colombia has disputed the admissibility of the counter-claim by arguing that it is not directly connected with the subject-matter of the Application. In its view, this lack of connexion results from the fact that the counter-claim raises new problems and thus tends to shift the grounds of the dispute. The Court is unable to accept this view. It emerges clearly from the arguments of the Parties that the second submission of the Government of Colombia, which concerns the demand for a safe conduct, rests largely on the alleged regularity of the asylum, which is precisely what is disputed by the counter-claim. The connexion is so direct that certain conditions which are required to exist before a safe-conduct can be demanded depend precisely on facts which are raised by the counter-claim. The direct connexion being thus clearly established, the sole objection to the admissibility of the counter-claim in its original form is therefore removed. “GRANT OF ASYLUM”. Before examining the question whether the counter-claim is well founded, the Court must state in precise terms what meaning it attaches to the words "the grant of asylum" which are used therein. The grant of asylum is not an instantaneous act which terminates with the admission, at a given moment, of a refugee to an embassy or a legation. Any grant of asylum results in, and in consequence logically implies, a state of protection ; the asylum is granted as long as the continued presence of the refugee in the embassy prolongs this protection. This view, which results from the very nature of the institution of asylum, is further confirmed by the attitude of the Parties during this case. The counter-claim, as it appears in the Counter-Memorial
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of the Government of Peru, refers expressly to Article 2, paragraph 2, of the Havana Convention, which provides that asylum may not be granted except "for the period of time strictly indispensable". Such has also been the view of the Government of Colombia ; its Reply shows that, in its opinion, as in that of the Government of Peru, the reference to the abovementioned provision of the Havana Convention raises the question of "the duration of the refuge". The Government of Peru has based its counter-claim on two different grounds which correspond respectively to Article 1, paragraph 1, and Article 2, paragraph 2, of the Havana Convention. Under Article 1, paragraph 1, "It is not permissible for States to grant asylum .... to persons accused or condemned for common crimes....". The onus of proving that Haya de la Torre had been accused or condemned for common crimes before the grant of asylum rested upon Peru. The Court has no difficulty in finding, in the present case, that the refugee was an "accused person" within the meaning of the Havana Convention, inasmuch as the evidence presented by the Government of Peru appears conclusive in this connexion. It can hardly be agreed that the term "accused" occurring in a multilateral treaty such as that of Havana has a precise and technical connotation, which would have the effect of subordinating the definition of "accused" to the completion of certain strictly prescribed steps in procedure, which might differ from one legal system to another. On the other hand, the Court considers that the Government of Peru has not proved that the acts of which the refugee was accused before January 3rd/4th, 1949, constitute common crimes. From the point of view of the application of the Havana Convention, it is the terms of the accusation, as formulated by the legal authorities before the grant of asylum, that must alone be considered. As has been shown in the recital of the facts, the sole accusation contained in all the documents emanating from the Peruvian legal authorities is that of military rebellion, and the Government of Peru has not established that military rebellion in itself constitutes a common crime. Article 248 of the Peruvian Code of Military Justice of 1939 even tends to prove the contrary, for it makes a distinction between military rebellion and common crimes by providing that : "Common crimes committed during the course of, and in connexion with, a rebellion, shall be punishable in conformity with the laws, irrespective of the rebellion." These considerations lead to the conclusion that the first objection made by the Government of Peru against the asylum is not justified and that on this point the counter-claim is not well founded and must be dismissed. COURT, ON THE HAVANA CONVENTION. The Government of Peru relies, as a second basis for its counterclaim, upon the alleged disregard of Article 2, paragraph 2, of the Havana Convention, which provides as follows : "Asylum may not be granted except in urgent cases and for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety." Before proceeding to an examination of this provision, the Court considers it necessary to make the following remark concerning the Havana Convention in general and Article 2 in particular. The object of the Havana Convention, which is the only agreement relevant to the present case, was, as indicated in its preamble, to fix the rules which the signatory States must observe for the granting of asylum in their mutual relations. The intention was, as has been stated above, to put an end to the abuses which had arisen in the practice of asylum and which were likely to impair its credit and usefulness. This is borne out by the wording of Articles I and 2 of the Convention which is at times prohibitive and at times clearly restrictive. Article 2 refers to asylum granted to political offenders and lays down in precise terms the conditions under which asylum granted to such offenders shall be respected by the territorial State. It is worthy of note that all these conditions are designed to give guarantees to the territorial State and appear, in the final analysis, as the consideration for the obligation which that State assumes to respect asylum, that is, to accept its principle and its consequences as long as it is regularly maintained. At the head of the list of these conditions appears Article 2, paragraph 2, quoted above. It is certainly the most important of them, the essential justification for asylum being in the imminence or persistence of a danger for the person of the refugee. It was incumbent upon the Government of Colombia to submit proof of facts to show that the above-mentioned condition was fulfilled.

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IMMINENCE OR PERSISTENCE OF DANGER SHOULE BE PROVED BY COLUMBIA. It his not been disputed by the Parties that asylum may be granted on humanitarian grounds in order to protect political offenders against the violent and disorderly action of irresponsible sections of the population. It has not been contended by the Government of Colombia that Haya de la Torre was in such a situation at the time when he sought refuge in the Colombian Embassy at Lima. At that time, three months had elapsed since the military rebellion. This long interval gives the present case a very special character. During those three months, Haya de la Torre had apparently been in hiding in the country, refusing to obey the summons to appear of the legal authorities which was published on November 16th/18th, 1948, and refraining from seeking asylum in the foreign embassies where several of his co-accused had found refuge beforé these dates. It was only on January 3rd, 1949, that he sought refuge in the Colombian Embassy. The Court considers that, prima facie, such circumstances make it difficult to speak of urgency. The diplomatic correspondence between the two Governments does not indicate the nature of the danger which was alleged to threaten the refugee. Likewise, the Memorial of the Government of Colombia confines itself to stating that the refugee begged the Ambassador to grant him the diplomatic protection of asylum as his freedom and life were in jeopardy. It is only in the written Reply that the Government of Colombia described in more precise terms the nature of the danger against which the refugee intended to request the protection of the Ambassador. It was then claimed that this danger resulted in particular from the abnormal political situation existing in Peru, following the state of siege proclaimed on October 4th, 1948, and renewed successively on November 2nd, December 2nd, 1948, and January 2nd, 1949 ; that it further resulted from the declaration of "a state of national crisis" made on October 25th, 1938, containing various statements against the Arnerican People's Revolutionary Alliance of which the refugee was the head; from the outlawing of this Party by the decree of October 4th, 1948 ; from the Order issued by the acting Examining Magistrate for the Navy on November 13th, 1948, requiring the defaulters to be cited by public summons ; from the decree of November 4th, 1948, providing for Courts-Martial to judge summarily, with the option of increasing the penalties and without appeal, the authors, accomplices and others responsible for the offences of rebellion, sedition or mutiny. From these facts regarded as a whole the nature of the danger now becomes clear, and it is upon the urgent character of such a danger that the Government of Colombia seeks to justify the asylum-the danger of political justice by reason of the subordination of the Peruvian judicial authorities to the instructions of the Executive. TO WHAT EXTENT THE DANGER SHOULD BE TO SERVE AS BASIS OF ASYLUM. It is therefore necessary to examine whether, and, if so, to what extent, a danger of this kind can serve as a basis for asylum. In principle, it is inconceivable that the Havana Convention could have intended the term "urgent cases" to include the danger of regular prosecution to which the citizens of any country lay themselves open by attacking the institutions of that country ; nor can it be admitted that in referring to "the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety", the Convention envisaged protection from the operation of regular legal proceedings. It would be useless to seek an argument to the contrary in Article I of the Havana Convention which forbids the grant of asylum to persons "accused or condemned for common crimes" and directs that such persons shall be surrendered immediately upon request of the local government. It is not possible to infer from that provision that, because a person is accused of political offences and not of common crimes, he is, by that fact alone, entitled to asylum. It is clear that such an inference would disregard the requirements laid down by Article 2, paragraph 2, for the grant of asylum to political offenders. ASYLUM CANNOT BE OPPOSED TO THE OPERATION OF JUSTICE, EXCEPT WHEN ARBITRARY ACTION SUBS RULE OF LAW; LATIN AMERICA STRONGLY ADHERES TO NON-INTERVENTION. In principle, therefore, asylum cannot be opposed to the operation of justice. An exception to this rule can occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims. Asylum protects the political offender against any measures of a manifestly extra-legal character which a government might take or attempt to take against its political opponents. The word "safety", which in Article 2, paragraph 2, determines the specific effect of asylum granted to political offenders, means that the refugee is protected against arbitrary action by the government, and that he enjoys the benefits of the law. On the other hand, the safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals. Protection thus understood would authorize the diplomatic agent to obstruct the application of the laws of the country whereas it is his duty to respect them ; it would in fact become the equivalent of an immunity, which was evidently not within the intentions of the draftsmen of the Havana Convention.

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It is true that successive decrees promulgated by the Government of Peru proclaimed and prolonged a state of siege in that country ; but it has not been shown that the existence of a state of siege implied the subordination of justice to the executive authority, or that the suspension of certain constitutional guarantees entailed the abolition of judicial guarantees. As for the decree of November 4th, 1948, providing for Courts-Martial, it contained no indication which might be taken to mean that the new provisions would apply retroactively to offences committed prior to the publication of the said decree. In fact, this decree was not applied to the legal proceedings against Haya de la Torre, as appears from the foregoing recital of the facts. As regards the future, the Court places on record the following declaration made on behalf of the Peruvian Government : "The decree in question is dated November 4th, 1948, that is, it was enacted one month after the events which led to the institution of proceedings against Haya de la Torre. This decree was intended to apply to crimes occurring after its publication, and nobody in Peru would ever have dreamed of utilizing it in the case to which the Colombian Government clumsily refers, since the principle that laws have no retroactive effect, especially in penal matters, is broadly admitted in that decree. If the Colombian Government's statement on this point were true, the Peruvian Goverilment would never have referred this case to the International Court of Justice." This declaration, which appears in the Rejoinder, was confirmed by the Agent for the Government of Peru in his oral statement of October 2nd, 1950. The Court cannot admit that the States signatory to the Havana Convention intended to substitute for the practice of the LatinAmerican republics, in which considerations of courtesy, goodneighbourliness and political expediency have always held a prominent place, a legal system which would guarantee to their own nationals accused of political offences the privilege of evading national jurisdiction. Such a conception, moreover, would come into conflict with one of the most firmly established traditions of Latin America, namely, non-intervention. It was at the Sixth Pan-American Conference of 1928, during which the Convention on Asylum was signed, that the States of Latin America declared their resolute opposition to any foreign political intervention. It would be difficult to conceive that these same States had consented, at the very same moment, to submit to intervention in its least acceptable form, one which implies foreign interference in the administration of domestic justice and which could not manifest itself without casting some doubt on the impartiality of that justice. Indeed the diplomatic correspondence between the two Governments shows the constant anxiety of Colombia to remain, in this field as elsewhere, faithful to the tradition of non-intervention. Colombia did not depart from this attitude, even when she found herself confronted with an emphatic declaration by the Peruvian Minister for Foreign Affairs asserting that the tribunal before which Haya de la Torre had been summoned to appear was in conformity with the general and permanent organization of Peruvian judicial administration and under the control of the Supreme Court. This assertion met with no contradiction or reservation on the part of Colombia. It was only much later, following the presentation of the Peruvian counter-claim, that the Government of Colombia chose, in the Reply -and during the oral proceedings, to transfer the defence of asylum to a plane on which the Havana Convention, interpreted in the light of the most firmly established traditions of Latin America, could provide it with no foundation. The foregoing considerations lead us to reject the argument that the Havana Convention was intended to afford a quite general protection of asylum to any person prosecuted for political offences, either in the course of revolutionary events, or in .the more or less troubled times that follow, for the sole reason that it must be assumed that such events interfere with the administration of justice. It is clear that the adoption of such a criterion would lead to foreign interference of a particularly offensive nature in the domestic affairs of States ; besides which, no confirmation of this criterion can be found in Latin-American practice, as this practice has been explained to the Court. COURT OBSERVATION ON NUMEROUS AYLUM CASES. In thus expressing itself, the Court does not lose sight of the numerous cases of asylum which have been cited in the Reply of the Government of Colombia and during the oral statements. In this connexion, the following observations should be made : In the absence of precise data, it is difficult to assess the value of such cases as precedents tending to establish the existence of a legal obligation upon a territorial State to recognize the validity of asylum which has been granted against proceedings instituted by local judicial authorities. The facts which have been laid before the Court show that in a number of cases the persons who have enjoyed asylum were not, at the moment at which asylum was granted, the object of any accusation on the part of the judicial
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authorities. In a more general way, considerations of convenience or simple political expediency seem to have led the territorial State to recognize asylum without that decision being dictated by any feeling of legal obligation. If these remarks tend to reduce considerably the value as precedents of the cases of asylum cited by the Government of Colombia, they show, none the less, that asylum as practiced in Latin America is an institution which, to a very great extent, owes its development to extra-legal factors. The good-neighbour relations between the republics, the different political interests of the governments, have favoured the mutual recognition of asylum apart from any clearly defined juridical system. Even if the Havana Convention, in particular, represents an indisputable reaction against certain abuses in practice, it in no way tends to limit the practice of asylum as it may arise from agreements between interested governments inspired by mutual feelings of toleration and goodwill. CONCLUSION. In conclusion, on the basis of the foregoing observations and considerations, the Court considers that on January 3rd/4th, 1949, there did not exist a danger constituting a case of urgency within the meaning of Article 2, paragraph 2, of the Havana Convention. This finding implies no criticism of the Ambassador of Colombia. His decision to receive the refugee on the evening of January 3rd, 1949, may have been taken without the opportunity of lengthy reflection ; it may have been influenced as much by the previous grant of safe-conducts to persons accused together with Haya de la Torre as by the more general consideration of recent events in Peru ; these events may have led him to believe in the existence of urgency. But this subjective appreciation is not the relevant element in the decision which the Court is called upon to take concerning the validitv of the asylum ; the only important question to be considered here is the objective existence of the facts, and it is this which must determine the decision of the Court. The notes of the Ambassador of Colombia of January 14th and February 12 , 1949, reflect the attitude of the Government towards the asylum granted by its Ambassador. The first of these confirms the asylum and claims to justify its grant by a unilateral qualification of the refugee. The second formulates a demand for a safeconduct with a view to permitting the departure of the refugee, and has based this demand expressly on the "international obligations" alleged to be binding on the Government of Peru. In thus expressing itself, the Government of Colombia definitively proclaimed its intention of protecting Haya de la Torre, in spite of the existence of proceedings instituted against him for military rebellion. It has maintained this attitude and this protection by continuing to insist on the grant of a safe-conduct, even when the Minister for Foreign Affairs of Peru referred to the existence of "a judicial prosecution, instituted by the sovereign power of the State" against the refugee (notes of the Mïnister for Foreign Affairs of th Peru of March 19 , 1949; of the Ambassador of Colombia of March 28th, 1949). Thus, it is clearly apparent from this correspondence that the Court, in its appraisal of the asylum, cannot be confined to the date of January 3rd/4th, 1949, as the date on which it was granted. The grant, as has been stated above, is inseparable from the protection to which it gives rise -a protection which has here assumed the form of a defence against legal proceedings. It therefore results that asylum has been granted for as long as the Government of Colombia has relied upon it in support of its request for a safeconduct. The Court is thus led to find that the grant of asylum from January 3rd/4th, 1949, until the time when the two Governments agreed to submit the dispute to its jurisdiction, has been prolonged for a reason which is not recognized by Article 2, paragraph 2, of the Havana Convention. This finding renders superfluous the addition to the counterclaim submitted during the oral proceedings and worded as follows: "and that in any case the maintenance of the asylum constitutes at the present time a violation of that treaty". This part of the submission, as finally worded by the Government of Peru, was intended as a substitution for the counter-claim in its original form if the latter were rejected : it disappears with the allowance of this counter-claim. Hence it will not be necessary for the Court to consider either the objection on the ground of lack of jurisdiction or the objections on the grounds of inadmissibility which the Government of Colombia has based on an alleged disregard of Article 63 of the Rules of Court or to consider the merits of the claim thus submitted by the Government of Peru. FOR THESE REASONS, THE COURT, on the submissions of the Government of Colombia, by fourteen votes to two, Rejects the first submission in so far as it involves a right for Colombia, as the country granting asylum, to qualify the nature of the offence by a unilateral and definitive decision, binding on Peru ; by fifteen votes to one,
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Rejects the second submission ; on the counter-claim of the Government of Peru, by fifteen votes to one, Rejects it in so far as it is founded on a violation of Arricle 1, paragraph 1, of the Convention on Asylum signed at Havana in 1928 ; by ten votes to six, Finds that the grant oi asylum by the Colombian Government to Victor Rahl Haya de la Torre was not made in conformity with Article 2, paragraph 2 ("First"), of that Convention. SEPARATE OPINIONS. Judges ALVAREZ, BADAWI PASHA, READ and AZEVEDO and M. CAICEDO, Judge ad hoc, declaring that they are unable to concur in certain points of the Judgment of the Court, have availed themselves of the right conferred on them by Article 57 of the Statute and appended to the Judgment statements of their dissenting opinions. Judge ZORICIC, whilst accepting the first three points of the operative part of the Judgment and the reasons given in support, regrets to state that he is unable to agree with the last point of the operative part, as he considers that asylum was granted in conformity with Article 2, paragraph 2, of the Havana Convention. On this point he shares the views expressed by Judge Read in his dissenting opinion.

EREMES KOOKOORITCHKIN V. THE SOLICITOR GENERAL
G.R. No. L-1812 August 27, 1948 En Banc; PERFECTO, J.: First Asst. Solicitor General Roberto A. Gianzon & Solicitor Florencio Villamor for appellant. L. D. Lockwood and Manuel O. Chan for appellee. Summary: In August, 1941, Kookooritchkin filed with the lower court a petition for naturalization, accompanied with supporting affidavits of 2 citizens, copy of a declaration of intention sworn in July, 1940, and proper notice of the hearing. The petition was finally set for hearing on Dec. 18, 1941, but it was held on that date because the province was invaded by the Japanese forces on Dec. 14, & the case remained pending until the records were destroyed during the military operations for liberation in March, 1945. The case was declared reconstituted on May 10, 1947, and the evidence was presented on Aug. 28 and Sept. 30, 1947. On the same day resolution was issued granting the petition. Although appellant was represented at the hearing & cross-examined the witnesses for the petitioner, he did not file an opposition or presented any evidence. The lower court made the findings of fact in its resolution:  PETITION. Eremes Kookooritchkin applies for Philippine citizenship naturalization under the provisions of Commonwealth Act 473, as amended by Act 535. In Aug. 1941, he filed his petition for naturalization supported by the affidavits of ex-Judge Jaime M. Reyes & Dr. Salvador Mariano, both residents of Camarines Sur. In July, 1940, he filed his declaration of intention to become a citizen of this country. Notice of the hearing was published as required by law. BIRTH; LIFE IN RUSSIA; ARRIVAL IN MANILA. The hearing divulged that he is a native-born Russian, born on Nov. 4, 1897 in the old City of St. Petersburg, Russia. He grew up as a citizen of the defunct Imperial Russian Government under the Czars. World War I found him in the military service of this Government. In 1915, he volunteered for the Imperial Russian navy & was sent to the Navy Aviation School. He fought with the Allies in the Baltic Sea, was later transferred to the eastern front in Poland, & much later was sent as a navy flier to Asia Minor. Later, but before the Russian capitulation, he was transferred to the British Air Force, serving for 14 months. When the revolution broke out in Russia in 1917, he joined the White Russian Army at Vladivostok & fought against the Bolsheviks until 1922 when the White Russian Army was overwhelmed by the Bolsheviks. As he refused to join the Bolshevik regime, he fled by sea from Vladivostok to Shanghai & from this Chinese port he found his way to Manila, arriving at this port as a member of a group of White Russians under Admiral Stark in March, 1923. He stayed in Manila for about 7 months, then moved to Olongapo,
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Zambales, where he resided for about a year, & from this place he went to Iriga, Camarines Sur, where he established his permanent residence since May, 1925. He has remained a resident of this municipality, except for a brief period from 1942 to July, 1945, when by reason of his underground activities he roamed mountains of Caramoan as a guerrilla officer. After liberation, he returned to Iriga where again he resides up to the present time. FAMILY. He is married to a Filipina, Concepcion Segovia, with whom he has a son, Ronald. He is at present studying in Saint Agnes Academy, at Legaspi, Albay, a school duly recognized by the Government. JOB. He is shop superintendent of A. L. Ammen Transportation Company, with about 80 Filipino employees working under him. He receives an annual salary of P13,200 with free quarters & house allowance. He also owns stocks & bonds of this & other companies. PINOY LIVING. He speaks & writes English & the Bicol dialect. Socially, he intermingles with the Filipinos, attending parties, dances & other social functions with his wife. He has a good moral character & believes in the principles underlying the Philippine Constitution. He has never been accused of any crime. He has always conducted himself in a proper & irreproachable manner during his entire period of residence in Camarines Sur, in his relations with the constituted authorities & the community. GUERILLA. Although he could have lived in ease by maintaining good relations with the enemy by reason of his being Russian-born during the years before the declaration of war by Russia against Japan, he chose to cast his lot with the guerrilla movement & fought the enemy in several encounters in Camarines Sur. He belonged to the guerrilla outfit of Colonel Padua with rank of major. Upon the arrival of the forces of liberation he was attached to the American Army from April to June, 1945. STATELESS REFUGEE. Although a Russian by birth he is not a citizen of Soviet Russia. He disclaims allegiance to the present Communist Government of Russia. He is, therefore, a stateless refugee in this country, belonging to no State, much less to the present Government of the land of his birth to which he is uncompromisingly opposed. He is not against organized government or affiliated with any association which upholds and teaches doctrine opposing all organized governments. He does not believe in the necessity or propriety of violence, personal assault or assassination for the success or predominance of his ideas. Neither is he a polygamist or a believer in the practice of polygamy. He is not suffering from any mental alienation or incurable contagious disease. There were 4 assignments of error but the last was merely a rehash of the first 3. 1 ISSUE: Whether the lower court erred in not finding that the declaration of intention to become a Filipino citizen filed by appellee is invalid and insufficient as a basis for the petition of naturalization? No. The question calls for the application of Sec. 5 of the Revised Naturalization Law: No declaration shall be valid until entry for permanent residence has been established and a certificate showing the date, place and manner of his arrival has been issued. SOLGEN ARGUES that no documentary or testimonial evidence was introduced to establish the fact that appellee had lawfully been admitted into the Philippines for permanent residence. In the RECONSTITUTED DECLARATION the following can be read: I arrived at the Port of Manila on or about the first day of March, 1923, as shown by the attached certificate of arrival or landing certificate of residence. CERTIFICATE OF ARRIVAL NOT ESSENTIAL. The records of the Bureau of Justice, where the declarations of intention to become a Filipino citizen were filed, had been lost or destroyed during the battle for the liberation of Manila, & the certificate alluded to has not been reconstituted. Appellant's contention that attachment of the certificate of arrival is essential to the validity of a declaration finds no support in the wordings of the law, as Sec. 5 of Commonwealth Act no. 473 uses the words "has been issued. KOOKOORITCHKIN’S VERSION. He argues that the appellant failed to raise it in lower court & points out that (1) there is testimonial evidence showing his arrival March, 1923, (2) that he was lawfully admitted for permanent residence, & (3) his testimony has not been refuted. Appellee alleges that the office of the President has certified that it is a matter of record that he was 1 of the Russian refugees who entered the Philippines under the command of Admiral Stark, the facts regarding arrival of the latter fleet being a matter of common knowledge, widely publicized in the newspapers at the time, of which this Court may properly take judicial notice
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under Sec. 5 of Rule 123. When the fleet entered the Philippine waters, it was met by a Gov. Gen. Wood who, later, took the matter up with the authorities in Washington in lengthy correspondence, & the 1,200 persons manning the fleet were allowed to land & to remain in the Philippines or proceed to other countries, except about 800 who were allowed to go to the US & given free transportation on the naval transport "Merritt." The ships of the fleet were sold in the Philippines. COURT: PERMANENT RESIDENT. The undisputed fact that the petitioner has been continuously residing in the Philippines for about 25 years, without having been molested by the authorities, who are presumed to have been regularly performing their duties & would have arrested petitioner if his residence is illegal, as rightly contended by appellee, can be taken as evidence that he is enjoying permanent residence legally. That a certificate of arrival has been issued is a fact that should be accepted upon the petitioner's undisputed statement in his declaration of July, 1940, that the certificate cannot be supposed that the receiving official would have accepted the declaration without the certificate mentioned therein as attached thereto. VALID DECLARATION. We conclude that petitioner's declaration is valid under Sec. 5 of the Naturalization Law, failure to reconstitute the certificate of arrival notwithstanding. What an unreconstituted document intended to prove may be shown by other competent evidence. 2 ISSUE: Whether the lower court erred (1) in not finding that appellee has not established a legal residence in the Philippines, & (2) in not finding that he cannot speak and write any of the principal Philippine languages? No. Q1: PERMANENT RESIDENCE. The 1 question has been disposed of in the above discussion. Perusal of the testimonies on record leads to the conclusion that petitioner has shown legal residence in the Philippines for a continuous period of not less than 10 years as required by Sec. 2 of CAct No. 473. Q2: LANGUAGE. SolGen alleges that in the oral test at the hearing, it was shown that petitioner has only a smattering of Bicol, the Filipino language that he alleges to know, & he cannot speak it as he was not able to translate from English to Bicol questions asked by the court & the provincial fiscal, although, in the continuation of the hearing on Sept. 30, 1947, "surprisingly enough, he succeeded answering correctly in Bicol the questions propounded by his counsel, however, he fumbled & failed to give the translation of such a common word as 'love' which the fiscal asked of him. COURT: TC PRESUMED CORRECT. The lower court made the finding of fact that applicant speaks & writes English & Bicol & there seems to be no question about the competency of the judge who made the pronouncement, because he has shown by the appealed resolution & by his questions propounded to appellee, that he has command of both English & Bicol. STANDARD FOR KNOWING THE LANGUAGE. The law has not set a specific standard of the principal Philippine languages. A great number of standards can be set. There are experts in English who say that Shakespeare has used in his works 15,000 different English words, & the King's Bible about 10,000, while about 5,000 are used by the better educated persons & about 3,000 by the average individual. While there may be persons ambitious enough to have a command of the about 600,000 words recorded in the Webster's International Dictionary, there are authorities who would reduce basic English to a few hundred words. Perhaps less than 100 well selected words will be enough for the ordinary purposes of daily life. EVIDENCE OF KNOWLEDGE. After he was liberated in 1942 from the Japanese in the Naga prison, petitioner joined the guerrilla in the Bicol region, took part in encounters against the Japanese, & remained with the guerrilla until the Americans liberated the Bicol provinces. If appellee with his smattering of Bicol was able to get along with his Bicol comrades in the hazardous life of the resistance movement, we believe that his knowledge of the language satisfies the requirement of the law. WRITING SKILLS. But appellant contends that there is no piece of positive evidence to support petitioner's allegation that he can write too in the Bicol language. There, is, however, on record circumstantial evidence from which it can be concluded that petitioner ought to know also how to write Bicol. We know that Bicol, as all the important Philippine languages, uses the same alphabet used in English, and it is much easier to write Bicol than English, because it is phonetic. Vowels & consonants have in them single & not interchangeable phonetic values, while English words deviate very often from the basic sounds of the alphabet. The ability to write cannot be denied to a person like petitioner, who has undergone the exacting technical training to be able to render services as flier in the Russian Naval Squadron in the Baltic Sea & in the British Air Forces during WW1. The difference between the Cyrillic alphabet, as now used by Russians, & our Roman alphabet, cannot weigh much to deny petitioner the ability to use the latter. A person who
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has shown the command of English which can be seen in his testimony on record can easily make use of an alphabet of 20 or more letters universally used in this country where he has been residing continuously for 25 years. 3 ISSUE: Whether the lower court erred in finding appellee stateless and not a Russian citizen and in not finding that he has failed to establish that he is not disqualified for Philippine citizenship under Sec. 4 (h) of the Revised Naturalization Law? Whether petitioner is a Russian citizen or is stateless. No. SOLGEN ARGUES that petitioner failed to show that under the laws of Russia, he has lost his Russian citizenship & failed to show that Russia grants to Filipinos the right to become a naturalized citizens or subjects thereof. Appellant points out that petitioner stated in his petition for naturalization that he is citizen or subject of the Empire of Russia, but the Empire of Russia has ceased to exist since the Czars were overthrown in 1917 by the Bolshevists, & the petitioner disclaims allegiance or connection with the Soviet Gov’t established after the overthrow of the Czarist Gov’t. KOOOORITCHKIN testified categorically that he is not a Russian citizen & that he has no citizenship. His testimony supports the lower court's pronouncement that petitioner is a stateless refugee in this country. COURT: KOOKOORITCHKIN IS A STATELESS REFUGEE. Appellee's testimony, besides being uncontradicted, is supported by the wellknown fact that the ruthlessness of modern dictatorship has scattered throughout the world a large number of stateless refugees or displaced persons, without country and without flag. The tyrannical intolerance of said dictatorships toward all opposition induced them to resort to beastly oppression, concentration camps and blood purges, & it is only natural that the not-so-fortunate ones who were able to escape to foreign countries should feel the loss of all bonds of attachment to the hells which were formerly their fatherland's. Petitioner belongs to that group of stateless refugees. STATELESS REFUGEE’S TESTIMONY AS TO NON-ALLEGIANCE SUFFICIENT. Knowing, as all cultured persons all over the world ought to know, the history, nature & character of the Soviet dictatorship, presently the greatest menace to humanity & civilization, it would be technically fastidious to require further evidence of petitioner's claim that he is stateless than his testimony that he owes no allegiance to the Russian Communist Government &, is because he has been at war with it, he fled from Russia to permanently reside in the Philippines. After finding in this country economic security in a remunerative job, establishing a family by marrying a Filipina with whom he has a son, & enjoying for 25 years the freedoms & blessings of our democratic way of life, & after showing his resolution to retain the happiness he found in our political system to the extent of refusing to claim Russian citizenship even to secure his release from the Japanese & of casting his lot with that of our people by joining the fortunes & misfortunes of our guerrillas, it would be beyond comprehension to support that the petitioner could feel any bond of attachment to the Soviet dictatorship. The appealed resolution is affirmed. Paras, Feria, Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.
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NUCLEAR TESTS CASES (20 DECEMBER 1974) NEW ZEALAND V. FRANCE; AUSTRALIA V. FRANCE
(Both cases have almost the same set of facts and ratio, so unless indicated the facts and discussion apply to both New Zealand and Australia.) RE: FRENCH NUCLEAR TESTS. This case relates to a dispute between the Governments of New Zealand and Australia, on one side, and the French Government, on the other, concerning the legality of atmospheric nuclear tests conducted by the latter Government in the South Pacific region. The French Government had carried out atmospheric tests of nuclear devices at its Centre d’expérimentations du Pacifique in French Polynesia, from 1966 to 1968, and 1970 to 1972. The main firing site used has been
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Mururoa atoll, some 2,500 nautical miles from the nearest point of the North Island of New Zealand, and some 6000 kilometers to the east of the Australian mainland. The French Government has created “Prohibited Zones” for aircraft and “Dangerous Zones” for aircraft and shipping, in order to exclude aircraft and shipping from the area of the tests centre; these “zones” have been put into effect during the period of testing in each year in which tests have been carried out. FALL OUT. As the UN Scientific Committee on the Effects of Atomic Radiation has recorded in its successive reports to the General Assembly, the testing of nuclear devices in the atmosphere has entailed the release into the atmosphere and the consequent dissipation, in varying degrees throughout the world, of measurable quantities of radio-active matter. It is asserted by New Zealand and Australia that the French atmospheric tests have caused some fall-out of this kind to be deposited on their respective territories; France has maintained, in particular, that the radio-active matter produced by its tests has been so infinitesimal that it may be regarded as negligible and that any fall-out on the territories has never involved any danger to the health of the population of New Zealand and Australia. APPLICATIONS TO THE ICJ. On May 9, 1973, the Ambassadors of New Zealand and Australia to the Netherlands submitted Applications instituting proceedings against France. To found the jurisdiction of the ICJ, both Applications relied on Art. 36, paragraph 1, and Art. 37 of the Statute of the ICJ, and Art. 17 of the General Act for the Pacific Settlernent of International Disputes done at Geneva on 26 Septernber 1928, and, in the alternative, on Art. 36, paragraphs 2 and 5, of the Statute of the ICJ. Both applicants also chose the Honorable Sir Garfield Barwick, Chief Justice of Australia, to sit as judge ad hoc. FRENCH LETTER. On May 16, 1973, the French Ambassador to the Netherlands submitted a letter from the French Government that stated that, for reasons set out, it considered that the Court was manifestly not competent in the case; that it could not accept the Court’s jurisdiction; and that accordingly the French Government did not intend to appoint an agent, and requested the Court to remove the case from its list. REQUEST FOR INTERIM MEASURES. The agents of both New Zealand and Australia both filed a request in the Registry of the ICJ for the indication of interim measures of protection under the General Act for the Pacific Settlement of International Disputes, the Statute of the ICJ, and the Rules of Court. JUNE 22 ORDER. By an Order dated June 22, 1973 the Court indicated, on the basis of Article 41 of the ICJ Statute, certain interim measures of protection in the cases. The Court also addressed France’s request that the case be removed from the list, and held that the considerations did not “permit the Court to accede at the present stage of the proceedings” to that request. Also considering that it was necessary to resolve as soon as possible the questions on jurisdiction and of the admissibility of the Applications, the ICJ decided that the written proceedings should first be addressed to the questions of the jurisdiction of the Court to entertain the cases and of the admissibility of the Applications. The Governments of New Zealand and Australia were able to file their Memorials on time, while the French Government failed to submit a Counter-Memorial. The written proceedings were then closed, and the case set for hearing. Public hearings were then held, where the ICJ heard the oral arguments on the questions of the Court’s jurisdiction and of the admissibility of the Applications. The French Government was not represented at the hearings. SUBMISSIONS OF AUSTRALIA. In its Application: “The Government of Australia asks the Court to adjudge and declare that, for the above-mentioned reasons or any of them or for any other reason that the Court deems to be relevant, the carrying out of further atmospheric nuclear weapon tests in the South Pacific Ocean is not consistent with applicable rules of international law. And to Order that the French Republic shall not carry out any further such tests.” In the Mernorial: “The Government of Australia submits to the Court that it is entitled to a declaration and judgment that: (a) the Court has jurisdiction to entertain the dispute, the subject of the Application filed by the Government of Australia on 9 May 1973; and (b ) the Application is admissible.” Submissions filed with the Registry of the Court during the oral proceedings: “The final submissions of the Government of Australia are that: (a) the Court has jurisdiction to entertain the dispute the subject of the Application filed by the Government of Australia on 9 May 1973; and ( b ) the Application is admissible and that accordingly the Government of Australia is entitled to a declaration and judgment that the Court has full competence to proceed to entertain the Application by Australia on the Merits of the dispute.”

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SUBMISSIONS OF NEW ZEALAND. In the Application: “New Zealand asks the Court to adjudge and declare: That the conduct by the French Government of nuclear tests in the South Pacific region that give rise to radioactive fall-out constitutes a violation of New Zealand’s rights under international law, and that these rights will be violated by any further such tests.” In the Memorial: “. . . the Government of New Zealand submits to the Court that it is entitled to a declaration and judgment that ( a ) the Court has jurisdiction to entertain the Application filed by New Zealand and to deal with the merits of the dispute; and ( b ) the Application is admissible.” Submissions filed with the Registry during oral proceedings: “The Government of New Zealand is entitled to a declaration and judgment that ( a ) the Court has jurisdiction to entertain the Application filed by New Zealand and to deal with the merits of the dispute; and ( b ) the Application is admissible.” NONE FOR FRANCE. No pleadings were filed by the French Government, and it was not represented at the oral proceedings; no forma1 submissions were therefore made by that Government. The attitude of the French Government with regard to the question of the Court’s jurisdiction was however defined in the May 16 letter. TESTS CONTINUED. By letters sent on September 1973, August and November 1974, the Governments of New Zealand and Australia informed the ICJ that, after the June 22 Order providing for interim measures that the French Government should avoid nuclear tests causing the deposit of radioactive fallout on their respective territories, two further series of atmospheric tests had been carried out in July and August 1973, and June to September 1974. The letters also stated that fallout had been recorded on their territories, analyses of samples of which, according to the two governments, established conclusively the presence of fallout from these tests, and that it was their view that “there has been a clear breach by the French Government of the Court’s Order of 22 June 1973.” ISSUE: WON a dispute exists between the parties (between Australia and France, and between New Zealand and France). HELD: NO. As France has undertaken the obligation to hold no further nuclear tests in the atmosphere in the South Pacific, the dispute has already disappeared, and there is nothing on which to give judgment. THE COURT’S INHERENT JURISDICTION. In this connection, it should be emphasized that the Court possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute, to ensure the observance of the “inherent limitations on the exercise of the judicial function” of the Court, and to “maintain its judicial character” (Northern Cameroons Judgment). Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded. With these considerations in mind, the Court has therefore first to examine a question which it finds to be essentially preliminary, namely the existence of a dispute, for, whether or not the Court has jurisdiction in the present case, the resolution of that question could exert a decisive influence on the continuation of the proceedings. SUBISSUE: What are the original and ultimate objectives of New Zealand and Australia? HELD: To obtain a termination of the French nuclear tests.

NEW ZEALAND
IN DETERMINING THE OBJECTIVES, START WITH THE APPLICATION. The Court would recall that the submission made in the Application is that the Court should adjudge and declare “that the conduct by the French Government of nuclear tests in the South Pacific region that give rise to radioactive fallout constitutes a violation of New Zealand’s rights under international law” - the alleged rights so violated being enumerated in the Application - and “that these rights will be violated by any further such tests”. DIPLOMATIC CORRESPONDENCE NEXT. The diplomatic correspondence between New Zealand and France over the past 10 years reveals New Zealand’s preoccupation with French nuclear tests, and indicates that its objective was to bring about their termination. Thus in a letter from the Prime Minister of New Zealand to the French Ambassador in Wellington dated 19 December 1972, the Prime Minister said: “My Government is committed to working through all possible means to bring the tests to an end, and we shall
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not hesitate to use the channels available to us in concert as appropriate with like-minded countries. It is my hope, however, Mr. Ambassador, that you will convey to your Government while in Paris my earnest desire to see this one element of serious contention removed from what is in other respects an excellent relationship between our countries. For my part, I see no other way than a halt to further testing.” Furthermore in the Application of New Zealand, it is stated, in connection with discussions held in April 1973 between the two Governments that: “Unfortunately, however, they *the discussions+ did not lead to agreement. In particular, the French Government did not feel able to give the Deputy Prime Minister of New Zealand the assurance which he sought, namely that the French programme of atmospheric nuclear testing in the South Pacific had come to an end.” And in a letter to the President of the French Republic by the Prime Minister of New Zealand dated 4 May 1973, following those discussions, the Prime Minister said: “Since France has not agreed to Our request that nuclear weapons testing in the atmosphere of the South Pacific be brought to an end, and since the French Government does not accept New Zealand’s view that these tests are unlawful, the New Zealand Government sees no alternative to its proceeding with the submission of its dispute with France to the International Court of Justice. I stress again that we see this as the one question at issue between us, and that our efforts are solely directed at removing it from contention.” THE FRENCH COMMUNIQUÉ. In the course of the oral proceedings, the Attorney-General of New Zealand outlined the history of the dispute, and included in this review mention of diplomatic correspondence exchanged between June and July 1974 by France and New Zealand, and of a communiqué issued by the Office of the President of the French Republic on 8 June 1974. The AttorneyGeneral’s comments on these documents indicated that they merited analysis as possible evidence of a certain development in the controversy between the Parties, though at the same time he made it clear that this development was not, in his Government’s view, of such a nature as to resolve the dispute to its satisfaction. More particularly, when referring to a Note of 10 June 1974 from the French Embassy in Wellington to the New Zealand Ministry of Foreign Affairs he stated: “New Zealand has not been given anything in the nature of an unqualified assurance that 1974 will see the end of atmospheric nuclear testing in the South Pacific”. The Attorney-General continued: “On 11 June the Prime Minister of New Zealand, Mr. Kirk, asked the French Ambassador in Wellington to convey a letter to the President of France. Copies of that letter have been filed with the Registry. It urged among other things that the President should, even at that time, weigh the implications of any further atmospheric testing in the Pacific and resolve to put an end to an activity which has been the source of grave anxiety to the people of the Pacific region for more than a decade.” It is clear from these statements, read in the light of the diplomatic correspondence, that if the Note of 10 June 1974 could have been construed by New Zealand as conveying “an unqualified assurance that 1974 [would] see the end of atmospheric nuclear testing” by France “in the South Pacific”, or if the President of the Republic, following the letter of 11 June 1974, did “resolve to put an end to *that+ activity”, the New Zealand would have regarded its objective as having been achieved. ACCORDING TO THE PRIME MINISTER. Subsequently, on 1 November 1974, the Prime Minister of New Zealand, Mr. W. E. Rowling, commented in a public statement on the indications given by France of its intention to put an end to atmospheric tests, and said: “It should . . . be clearly understood that nothing said by the French Government, whether to New Zealand or to the international community at large, has amounted to an assurance that there will be no further atmospheric nuclear tests in the South Pacific. The option of further atmospheric tests has been left open. Until we have an assurance that nuclear testing of this kind is finished for good, the dispute between New Zealand and France persists . . .” (Emphasis added.) REFERS TO ATMOSPHERIC TESTS. The type of tests to which the proceedings relate is described in the Application as “nuclear tests in the South Pacific region that gave rise to radioactive fallout”, the type of testing contemplated not being specified. However, New Zealand’s case has been argued mainly in relation to atmospheric tests; and the statements of successive Prime Ministers of New Zealand show that an assurance “that nuclear testing of this kind”, that is to say, testing in the atmosphere, “is finished for good” would meet the object of the New Zealand claim. The Court therefore considers that, for purposes of the Application, the New Zealand claim is to be interpreted as applying only to atmospheric tests, not to any other form of testing, and as applying only to atmospheric tests so conducted as to give rise to radioactive fallout on New Zealand territory. MUST ISOLATE THE REAL ISSUE IN THE CASE. In the light of the above statements, it is essential to consider whether New Zealand requests a judgment by the Court which would only state the legal relationship between New Zealand and France with regard to the matters in issue, or a judgment of a type which in terms requires one or both of the Parties to take, or refrain from taking, some action. Thus it is the Court’s duty to isolate the real issue in the case and to identify the object of the claim.
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THE ORIGINAL AND ULTIMATE OBJECTIVE = STOP THE TESTS. The Court is asked t o adjudge and declare that French atmospheric nuclear tests are illegal, but at the same time it is requested to adjudge and declare that the rights of New Zealand “will be violated by any further such tests”. The Application thus contains a submission requesting a definition of the rights and obligations of the Parties. However, it is clear that the fons et origo of the dispute was the atmospheric nuclear tests conducted by France, and that the original and ultimate objective of New Zealand was and has remained to obtain a termination of those tests. This is indeed confirmed by the various statements made by the New Zealand Government, and in particular by the statement made before the Court in the oral proceedings.

AUSTRALIA
THE SUBMISSION IN THE APPLICATION is that the Court should adjudge and declare that “the carrying out of further atmospheric nuclear weapon tests in the South Pacific Ocean is not consistent with applicable rules of international law” - the Application having specified in what respect further tests were alleged to be in violation of international law - and should order “that the French Republic shall not carry out any further such tests”. THE DIPLOMATIC CORRESPONDENCE of recent years between Australia and France reveals Australia’s preoccupation with French nuclear atmospheric tests, and indicates that its objective has been to bring about their termination. Thus in a Note dated 3 January 1973 the Australian Government made it clear that it was inviting the French Government “to refrain from any further atmospheric nuclear tests in the Pacific area and formally to assure the Australian Government that no more such tests will be held in the Pacific area”. IN THE APPLICATION, Australia observed in connection with this Note (and the French reply of 7 February 1973) that: “It is at these Notes, of 3 January and 7 February 1973, that the Court is respectfully invited to look most closely; for it is in them that the shape and dimensions of the dispute which now so sadly divides the parties appear so clearly. The Government of Australia claimed that the continuance of testing by France is illegal and called for the cessation of tests. The Government of France asserted the legality of its conduct and gave no indication that the tests would stop.” INTERIM MEASURES. That this was the object of the claim also clearly emerges from the request for the indication of interim measures of protection, in which it was observed: “As is stated in the Application, Australia has sought to obtain from the French Republic a permanent undertaking to refrain from further atmospheric nuclear tests in the Pacific. However, the French Republic has expressly refused t o give any such undertaking. It was made clear in a statement in the French Parliament on 2 May 1973 by the French Secretary of State for the Armies that the French Government, regardless of the protests made by Australia and other countries, does not envisage any cancellation or modification of the programme of nuclear testing as originally planned.” THE FRENCH COMMUNIQUÉ. During the oral proceedings, the Attorney-General of Australia outlined the history of the dispute subsequent to the June 22 Order, and included in this review mention of the June 8 communiqué. The Attorney-General’s comments on this document indicated that it merited analysis as possible evidence of a certain development in the controversy between the Parties, though at the same time he made it clear that this development was not, in his Government’s view, of such a nature as to resolve the dispute to its satisfaction. The Attorney-General said, with respect to the communiqué: “The concern of the Australian Government is t o exclude completely atmospheric testing. It has repeatedly sought assurances that atmospheric tests will end. It has not received those assurances. The recent French Presidential statement cannot be read as a firm, explicit and binding undertaking to refrain from further atmospheric tests. It follows that the Government of France is still reserving to itself the right to carry out atmospheric nuclear tests.” It is clear from these statements that if the French Government had given what could have been construed by Australia as “a firm, explicit and binding undertaking t o refrain from further atmospheric tests”, the latter would have regarded its objective as having been achieved. REGARDING REPORTS THAT FRANCE ANNOUNCED THAT IT HAD FINISHED WITH ATMOSPHERIC TESTING, the Attorney-General said: “From the reports I have received it appears that what the French Foreign Minister actually said was ‘We have now reached a stage in our nuclear technology that makes it possible for us to continue our program by underground testing, and we have taken steps to do so as early as next year’ . . . this statement falls far short of a commitment or undertaking that there will be no more atmospheric
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tests conducted by the French Government at its Pacific Tests Centre . . . There is a basic distinction between an assertion that steps are being taken to continue the testing program by underground testing as early as next year and an assurance that no further atmospheric tests will take place. It seems that the Government of France, while apparently taking a step in the right direction, is still reserving to itself the right to carry out atmospheric nuclear tests. In legal terms, Australia has nothing from the French Government which protects it against any further atmospheric tests should the French Government subsequently decide to hold them.” It is clear that the Australian Government contemplated the possibility of “an assurance that no further atmospheric tests will take place” being sufficient to protect Australia. ISOLATE THE REAL ISSUE. It is essential to consider whether Australia requests a judgment by the Court which would only state the legal relationship between itself and France with regard to the matters in issue, or a judgment of a type which in terms requires one or both of the Parties to take, or refrain from taking, some action. Thus it is the Court’s duty to isolate the real issue in the case and to identify the object of the claim. ALSO TERMINATION OF THE TESTS. Although Australia has in its Application used the traditional formula of asking the Court “to adjudge and declare,” the Court must ascertain the true object and purpose of the claim and in doing so it cannot confine itself to the ordinary meaning of the words used; it must take into account the Application as a whole, the arguments before the Court, the diplomatic exchanges brought to the Court’s attention, and public statements made on behalf of Australia. If these clearly circumscribe the object of the claim, the interpretation of the submissions must necessarily be affected. It is evident that the fons et origo of the case was the atmospheric nuclear tests conducted by France in the South Pacific region, and that the original and ultimate objective was and has remained to obtain a termination of those tests; thus its claim cannot be regarded as being a claim for a declaratory judgment. While the judgment of the Court which Australia seeks to obtain would in its view have been based on a finding by the Court on questions of law, such finding would be only a means to an end, and not an end in itself. The Court is of course aware of the role of declaratory judgments, but the present case is not one in which such a judgment is requested. SUBISSUE: WON France has announced its intent to cease the tests. HELD: YES. FRENCH STATEMENTS. Certain French authorities have made a number of consistent public statements concerning future tests which provide material facilitating the Court’s task of assessing New Zealand’s and Australia’s interpretations of the earlier documents, and which indeed require to be examined in order to discern whether they embody any modification of intention as to France’s future conduct. It is true that these statements have not been made before the Court, but they are in the public domain, are known to the New Zealand and Australian Governments. ON USING THE STATEMENTS ISSUED AFTER THE CLOSE OF THE PROCEEDINGS. It would no doubt have been possible for the Court, had it considered that the interests of justice so required, to have afforded the Parties the opportunity, e.g., by reopening the oral proceedings, of addressing to the Court comments on the statements made since the close of those proceedings. Such a course however would have been fully justified only if the matter dealt with in those statements had been completely new, had not been raised during the proceedings, or was unknown to the Parties. This is manifestly not the case. The essential material which the Court must examine was introduced into the proceedings by New Zealand and Australia themselves, by no means incidentally, during the course of the hearings, when they drew the Court’s attention to statements by the French authorities made prior to that date, submitted the documents containing them and presented an interpretation of their character, touching particularly upon the question whether they contained a firm assurance. Thus both the statements and the interpretations of them are before the Court. Moreover, New Zealand and Australia subsequently publicly expressed their comments on statements made by the French authorities since the closure of the oral proceedings. The Court is therefore in possession not only of the statements made by French authorities concerning the cessation of atmospheric nuclear testing, but also of the views of the Applicants on them. Although as a judicial body the Court is conscious of the importance of the principle expressed in the maxim audi alteram partem, it does not consider that this principle precludes the Court from taking account of statements made subsequently to the oral proceedings, and which merely supplement and reinforce matters already discussed in the course of the proceedings, statements with which the Applicants must be familiar. Thus the Applicants, having commented on the statements of the French authorities, both that made prior to the oral proceedings and those made subsequently, could reasonably expect that the Court would deal with the matter and come to its own conclusion on the meaning and effect of those statements. Thus the reopening of the oral proceedings would serve no useful purpose.
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THE FRENCH COMMUNIQUÉ issued by the President of the French Republic on 8 June 1974, shortly before the commencement of the 1974 series of French nuclear tests: “The Decree reintroducing the security measures in the South Pacific nuclear test zone has been published in the Official Journal of 8 June 1974. The Office of the President of the Republic takes this opportunity of stating that in view of the stage reached in carrying out the French nuclear defence programme France will be in a position to pass on to the stage of underground explosions as soon as the series of tests planned for this summer is completed.” JUNE 10, 1974 NOTE from the French Embassy in Wellington to the New Zealand Ministry of Foreign Affairs: “It should . . . be pointed out that the decision taken by the Office of the President of the French Republic to have the opening of the nuclear test series preceded by a press communiqué represents a departure from the practice of previous years. This procedure has been chosen in view of the fact that a new element has intervened in the development of the programme for perfecting the French deterrent force. This new element is as follows: France, at the point which has been reached in the execution of its programme of defence by nuclear means, will be in a position to move to the stage of under-ground firings as soon as the test series planned for this summer is completed. Thus the atmospheric tests which will be carried out shortly will, in the normal course of events, be the last of this type. The French authorities express the hope that the New Zealand Government will find this information of some interest and will wish to take it into consideration.” The phrase “in the normal course of events” was regarded by New Zealand as qualifying the statement made, so that it did not meet its expectations, which evidently regarded those words as a form of escape clause. THE THIRD STATEMENT is contained in a reply made on 1 July 1974 by the President to the New Zealand Prime Minister’s letter of 11 June: “In present circumstances, it is at least gratifying for me to note the positive reaction in your letter to the announcement in the communiqué of 8 June 1974 that we are going over to underground tests. There is in this a new element whose importance will not, I trust, escape the New Zealand Government.” The above statements were made prior to the oral proceedings. AFTER THE ORAL PROCEEDINGS. On 25 July at a press conference given by the President, he said: “. . . on this question of nuclear tests, you know that the Prime Minister had publicly expressed himself in the National Assembly in his speech introducing the Government’s programme. He had indicated that French nuclear testing would continue. I had myself made it clear that this round of atmospheric tests would be the last, and so the members of the Government were completely informed of our intentions in this respect . . .” On 16 August 1974, in the course of an interview on French television, the Minister of Defence said that the French Government had done its best t o ensure that the 1974 nuclear tests would be the last atmospheric tests. On 25 September, the French Minister for Foreign Affairs, addressing the UN General Assembly, said: “We have now reached a stage in our nuclear technology that makes it possible for us to continue our programme by underground testing, and we have taken steps to do so as early as next year.” On 11 October, the Minister of Defence held a press conference during which he stated twice, in almost identical terms, that there would not be any atmospheric tests in 1975 and that France was ready to proceed to underground tests. When the comment was made that he had not added “in the normal course of events”, he agreed that he had not. This latter point is relevant in view of the Note of 10 June 1974 from the French Embassy in Wellington to the Ministry of Foreign Affairs of New Zealand, to the effect that the atmospheric tests contemplated “will, in the normal course of events, be the last of this type”. The Minister also mentioned that, whether or not other governments had been officially advised of the decision, they could become aware of it through the press and by reading the communiqués issued by the Office of the President. INTENT WAS TO CEASE THE TESTS. In view of the foregoing, the Court finds that the communiqué, the French Embassy’s Note, and the President’s letter conveyed France’s intention to cease the conduct of atmospheric nuclear tests following the conclusion of the 1974 series of tests. The Court must consider in particular the President’s statement of 25 July followed by the Defence Minister’s statement of 11 October 1974. These reveal that the officia1 statements made on behalf of France concerning future nuclear testing are not subject to whatever proviso, if any, was implied by the expression “in the normal course of events.”

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SUBISSUE: What is the significance of the statements made by France? HELD: These constitute an undertaking possessing legal effect.

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UNILATERAL ACTS, LEGAL OBLIGATIONS. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of inter-national negotiations, is binding. In these circumstances, nothing in the nature of a quidpro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the state was made. Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation to a particular matter with the intention of being bound - the intention is to be ascertained by interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for. WRT FORM, it should be observed that this is not a domain in which international law imposes any special or strict requirements. Whether a statement is made orally or in writing makes no essential difference, for such statements made in particular circumstances may create commitments in international law, which does not require that they should be couched in written form. Thus the question of form is not decisive. As the Court said in its Judgment on the preliminary objections in the case concerning the Temple of Preah Vihear: “Where . . . as is generally the case in international law, which places the principal emphasis on the intentions of the parties, the law prescribes no particular form, parties are free to choose what form they please provided their intention clearly results from it… the sole relevant question is whether the language employed in any given declaration does reveal a clear intention . . .” GOOD FAITH. One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international cooperation, in particular in an age when this cooperation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected. NEW ZEALAND’S CONCLUSION RE: FRENCH STATEMENTS. New Zealand has recognized the possibility of the dispute being resolved by a unilateral declaration by France. In the public statement of 1 November 1974, it is stated that “Until we have an assurance that nuclear testing of this kind is finished for good, the dispute between New Zealand and France persists”. This is based on the view that “the option of further atmospheric tests has been left open”. AUSTRALIA’S CONCLUSION RE: FRENCH STATEMENTS. As a reply to a question concerning reports that France had announced that it had finished atmospheric nuclear testing, the Australian Attorney-General said that the statement of the French Foreign Minister “falls far short of an undertaking that there will be no more atmospheric tests conducted by the French Government at its Pacific Tests Centre” and that France was “still reserving to itself the right to carry out atmospheric nuclear tests” so that “in legal terms, Australia has nothing from the French Government which protects it against any further atmospheric tests”. Australia has recognized the possibility of the dispute being resolved by a unilateral declaration by France, and its conclusion that in fact no “commitment” or “firm, explicit and binding undertaking” had been given is based on the view that the assurance is not absolute in its terms, that there is a “distinction between an assertion that tests will go underground and an assurance that no further atmospheric tests will take place”, that “the possibility of further atmospheric testing taking place after the commencement of underground tests cannot be excluded” and that thus “the Government of France is still reserving to itself the right to carry out atmospheric nuclear tests”. STATEMENTS = ACTS OF THE STATE. Of the statements by the French Government, the most essential are clearly those made by the President. There can be no doubt, in view of his functions, that his public communications or statements, oral or written, as Head of State, are in international relations acts of the French State. His statements, and those of members of the French Government acting under his authority, up to the last statement made by the Minister of Defence, constitute a whole. Thus, in whatever form these statements were expressed, they must be held to constitute an engagement of the State, having regard to their intention and to the circumstances in which they were made.

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STATEMENTS MADE PUBLICLY, ERGA OMNES. The unilateral statements of the French authorities were made outside the Court, publicly and erga omnes, even though the first of them was communicated to the Government of Australia. To have legal effect, there was no need for these statements to be addressed to a particular State, nor was acceptance by any other State required. The general nature and characteristics of these statements are decisive for the evaluation of the legal implications, and it is to the interpretation of the statements that the Court must now proceed. The Court is entitled to presume, at the outset, that these statements were not made in vacuo, but in relation to the tests which constitute the very object of the present proceedings, although France has not appeared in the case. UNDERTAKING WITH LEGAL EFFECT. In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at large, including Australia and New Zealand, its intention effectively to terminate these tests. It was bound to assume that other States might take note of these statements and rely on their being effective. The validity of these statements and their legal consequences must be considered within the general framework of the security of international intercourse, and the confidence and trust which are so essential in the relations among States. It is from the actual substance of these statements, and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced. The objects of these statements are clear and they were addressed to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal effect. The Court considers that the President, in deciding upon the effective cessation of atmospheric tests, gave an undertaking to the international community to which his words were addressed. It is true that the French Government has consistently maintained that its nuclear experiments don’t contravene any subsisting provision of international law, nor did France recognize that it was bound by an rule of international law to terminate its tests, but this does not affect the legal consequences of the above statements. The Court finds that the unilateral undertaking resulting from these statements cannot be interpreted as having been made in implicit reliance on an arbitrary power of reconsideration. The Court finds further that the French Government has undertaken an obligation the precise nature and limits of which must be understood in accordance with the actual terms in which they have been publicly expressed. The objectives of both New Zealand and Australia have in effect been accomplished. SUBISSUE: WON a pronouncement, concerning the rights and obligations between New Zealand and France, is proper. HELD: NO. NO NEED ANYMORE. Though New Zealand has formally requested a finding on the rights and obligations of the Parties, it has throughout the dispute maintained as its final objective the termination of the tests. It has sought from France an assurance that the French programme of atmospheric nuclear testing would come to an end. On more than one occasion it has indicated that it would be ready to accept such an assurance. Since the Court now finds that a commitment in this respect has been entered into by France, there is no occasion for a pronouncement in respect of rights and obligations of the Parties concerning the past, which in other circumstances the Court would be entitled and even obliged to make. GOING BACK TO THE ISSUE OF WON THERE IS A DISPUTE: ICJ, INTERPRET CONDUCT OF THE PARTIES. It would of course have been open to New Zealand Australia, if they have considered that the case had in effect been concluded, to discontinue the proceedings in accordance with the Rules of Court. If it has not done so, this does not prevent the Court from making its own independent finding on the subject. It is true that “the Court cannot take into account declarations, admissions or proposals which the Parties may have made during direct negotiations between themselves, when such negotiations have not led to a complete agreement.” However that is not the situation before the Court in the present cases. New Zealand and Australia have clearly indicated what would satisfy their claim, and France has independently taken action; the question for the Court is thus one of interpretation of the conduct of each of the Parties. The conclusion at which the Court has arrived as a result of such interpretation does not mean that it is itself effecting a compromise of the claim; the Court is merely ascertaining the object of the claim and the effect of France’s action, and this it is obliged t o do. Any suggestion that the dispute would not be capable of being terminated by statements made on behalf of France would run counter to the unequivocally expressed views of New Zealand and Australia both before the Court and elsewhere. DISPUTE IS PRIMARY CONDITION FOR EXERCISE OF JUDICIAL FUNCTION. The Court, as a court of law, is called upon to resolve existing disputes between States. Thus the existence of a dispute is the primary condition for the Court to exercise its judicial function; it is not sufficient for one party to assert that there is a dispute, since “whether there exists an international dispute is a matter for objective determination” by the Court (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase), Advisory Opinion). The dispute brought before it must therefore continue to exist at the time when the Court makes its decision. It
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must not fail to take cognizance of a situation in which the dispute has disappeared because the object of the claim has been achieved by other means. If the declarations of France concerning the effective cessation of the nuclear tests have the significance described by the Court - if they have caused the dispute to disappear - al1 the necessary consequences must be drawn from this finding. IT MAY BE ARGUED THAT although France may have undertaken such an obligation, by a unilateral declaration, not to carry out atmospheric nuclear tests in the South Pacific Ocean, a judgment of the Court on this subject might still be of value because, if the judgment upheld the contentions of New Zealand and Australia, it would reinforce their position by affirming the French obligation. NO FURTHER JUDICIAL ACTION! However, the Court having found that France has assumed an obligation as to conduct, concerning the effective cessation of nuclear tests, no further judicial action is required. New Zealand and Australia have repeatedly sought from France an assurance that the tests would cease, and France has, on its own initiative, made a series of statements to the effect that they will cease. Thus the Court concludes that, the dispute having disappeared, the claims advanced no longer has any object. It follows that any further finding would have no raison d’être. ARTICLE 38 of the Court’s Statute provides that its function is “to decide in accordance with international law such disputes as are submitted to it”; but not only Article 38 itself but other provisions of the Statute and Rules also make it clear that the Court can exercise its jurisdiction in contentious proceedings only when a dispute genuinely exists between the parties. In refraining from further action in this case the Court is therefore merely acting in accordance with the proper interpretation of its judicial function. This case is one of those in which “circumstances that have … arisen render any adjudication devoid of purpose” (Northern Cameroons, Judgment). Thus there is no reason to allow the continuance of proceedings, which are bound to be fruitless, and no further pronouncement is required. The object of the claim having clearly disappeared, there is nothing on which to give judgment. WRT FUTURE CONDUCT. Once the Court has found that a State has entered into a commitment concerning its future conduct it is not the Court’s function to contemplate that it will not comply with it. However, the Court observes that if the basis of this Judgment were to be affected, New Zealand and Australia could request an examination of the situation in accordance with the provisions of the Statute; the denunciation by France, by letter dated 2 January 1974, of the General Act for the Pacific Settlement of International Disputes, which is relied on as a basis of jurisdiction in the present case, cannot by itself constitute an obstacle to the presentation of such a request. WRT PROVISIONAL MEASURES, the Court stated that these were indicated “pending its final decision in the proceedings….” It follows that such Order ceases to be operative upon the delivery of the present Judgment, and that the provisional measures lapse at the same time. For these reasons, by nine votes to six, finds that the claim of AUSTRALIA no longer has any object and that the Court is therefore not called upon to give a decision thereon. For these reasons, by nine votes to six, finds that the claim of NEW ZEALAND no longer has any object and that the Court is therefore not called upon to give a decision thereon. DISSENTING OPINION OF JUDGE SIR GARFIELD BARWICK in AUSTRALIA V. FRANCE BARWICK HOLDS THAT the dispute between the Parties as to their legal rights was not resolved or caused to disappear by the communiqué and statements quoted in the Judgment and that the Parties remained at the date of the Judgment in dispute as to their legal rights. This is so even if the communiqué and statements amounted to an assurance by France that it would not again test nuclear weapons in the atmosphere. That assurance, if given, did not concede any Australian rights in relation to nuclear explosions or the testing of nuclear weapons: indeed, it impliedly asserted a right in France to continue such explosions or tests. Such an assurance would of itself in my opinion be incapable of resolving a dispute as to legal rights. AUSTRALIA ENTITLED TO MAKE SUBMISSIONS RE: MATTERS INVOLVED IN THE DECISION. The Court, by its June 22 Order, separated two questions, jurisdiction to hear and determine the Application and of its admissibility, from all other questions. These were the only questions to which the Parties were to direct their attention. Australia thus confined its Memorial and its oral argument to those questions. Having read the Memorial and heard that argument, the Court has discussed those questions but, whilst the Parties await the Court’s decision upon them, the Court of its own motion and without any notice to the Parties has decided the question
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whether the Application has ceased to have any object by reason of events which have occurred since the Application was lodged. It has taken cognizance of information as to events said to have occurred since the close of the oral proceedings and has treated it as evidence in the proceedings. It has not informed the Parties of the material which it has thus introduced into evidence. By the use of it the Court has drawn a conclusion of fact. It has also placed a particular interpretation upon the Application. Upon this conclusion of fact and this interpretation of the Application the Court has decided the question whether the Application has ceased to have any object. That question, in my opinion, is not embraced within either of the two questions on which argument has been heard. It is a separate, different and new question. DIDN’T DECIDE ON JURISDICTION, ADMISSIBILITY. However, without notifying the Parties of what it was considering and without hearing them, the Court avoids deciding either of the two matters which it directed to be, and which have been argued. This, in my opinion, is an unjustifiable course, uncharacteristic of a court of justice. It is a procedure which in my opinion is unjust, failing to fulfil an essential obligation of the Court’s judicial process. NOT A MATTER FOR THE COURT. It may be thought quite reasonable that if France is willing to give to Australia such an unqualified and binding promise as Australia finds satisfactory for its protection never again to test nuclear weapons, this case should be compromised and the Application withdrawn. But that is a matter entirely for the sovereign States. It is not a matter for this Court. The Rules of Court provide the means whereby the proceedings can be discontinued at the will of the Parties. It is no part of the Court’s function to place any pressure on a State to compromise its claim or itself to effect a compromise. “WITHOUT OBJECT.” The Court has decided that the Application has become “without object” and that therefore the Court is not called upon to give a decision upon it. The term “without object” when applied to an application or claim implies that no dispute exists between the Parties which is capable of resolution by the Court by the application of legal norms available to the Court or that the relief which is sought is incapable of being granted by the Court or that in the circumstances which obtain or would obtain at the time the Court is called upon to grant the relief claimed, no order productive of effect upon the Parties or their rights could properly be made by the Court in exercising its judicial function. To apply the expression “has become without object” to the present circumstances, means in my opinion, that this Judgment can only be valid if the dispute between France and Australia as to their respective rights has been resolved; has ceased to exist or if the Court, in the circumstances now prevailing, cannot with propriety, within its judicial function, make any declaration or Order having effect between the Parties. If the Parties were not in dispute as to their respective rights the Application would have been “without object” when lodged, and no question of its having no longer any object could arise. On the other hand if the Parties were in dispute as to their respective rights, it is that dispute which is relevant in any consideration of the question whether or not the Application no longer has any object. ISSUE: WON the ICJ had jurisdiction over the case. HELD: YES. The General Act of Geneva of 26 September 1928, on which Australia based jurisdiction, was a treaty in force between the parties and the dispute between those States fell within the scope of its Article 17. ISSUE: WON there exists, in fact and in law, a dispute between the two States as to their respective legal rights. (If no, then the application is inadmissible.) HELD: YES. JURISDICTION VS. ADMISSIBILITY. A distinction has been drawn in the jurisprudence of the Court between its jurisdiction in a matter and the admissibility of the reference or application made to it. This might be significant in a case such as the present where there has been no preliminary objection to admissibility setting out the grounds upon which it is said the Application is not admissible. It may be said that the jurisdiction of the Court relates to the capacity of the Court to hear and determine matters of a particular nature, whereas admissibility relates to the competence, receivability, of the reference or application itself which is made to the Court. It might be said that jurisdiction in the present case includes the right of the Court to enter upon the enquiry whether or not a dispute of the relevant kind exists and a jurisdiction, if the dispute exists, to grant the Applicant’s claim for its resolution by declaration and Order. If such a dispute exists, the claim is admissible. An examination as to admissibility is itself an exercise of jurisdiction even though a finding as to admissibility may be a foundation for the exercise of further jurisdiction in resolving the claim. The overlapping nature of the two concepts of jurisdiction and admissibility is apparent, particularly where, as here, the existence of a relevant dispute may be seen as a prerequisite to the right to adjudicate.
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WHAT IS ADMISSIBILITY. There is no universally applicable definition of the requirements of admissibility. The claim may be incompetent, that is to say inadmissible, because its subject-matter does not fall within the description of matters which the Court is competent to hear and decide; or because the relief which the reference or application seeks is not within the Court’s power to consider or to give; or because the applicant is not an appropriate State to make the reference or application, as it is said that the applicant lacks standing in the matter; or the applicant may lack any legal interest in the subject-matter of the application or it may have applied too soon or otherwise at the wrong time, or, lastly, all preconditions to the making or granting of such a reference or application may not have been performed. Admissibility has various manifestations. The Court labours under the disability that it has no formal objection to admissibility, as France objected based on lack of jurisdiction and not lack of dispute. It is, however, possible to construct an argument that the Application was “without object” in the sense that there were no legal norms by resort to which the dispute in fact existing between the Parties could be resolved, which is to say, though it is not expressly said that there was no dispute between the Parties as to their respective rights. This, it seems to me, was suggested in relation to the claim that the testing of nuclear weapons had become unlawful by the customary international law. It was not, and in my opinion could not be, said that there were no legal norms by reference to which the claim for the infringement of territorial and decisional sovereignty could be determined-though important and difficult legal considerations arise in that connection. AN ELEMENT OF ADMISSIBILITY is the possession by the applicant State of a legal interest in the subject-matter of its Application. As it is the existence of a dispute as to the respective legal rights of the Parties which must be the subject-matter of the Application, upon the establishment of such a dispute each of the disputants must be held to have a legal interest in the resolution of the dispute. For my part, the matter of admissibility would end at the point at which it was decided that there was a dispute between France and Australia as to their respective legal rights - that a dispute existed as to the right claimed by Australia as its right or of an obligation of France towards Australia which Australia claimed to be infringed. There is importance in the presence of the word their in the formula; it is to be a dispute as to their respective rights. That possessive pronoun embraces in my opinion the need for a legal interest in the subject-matter. THE PARTIES WERE IN DISPUTE. It is clear that there were political or merely diplomatic approaches by the Applicant for a time; and there are political aspects of the subject-matter of the correspondence which evidences their dispute. But so to conclude does not deny that the Parties may be in dispute nonetheless about their respective rights. That question will be determined by what in substance they are in difference about. It is quite evident from the correspondence between the parties that at the outset the hope of the Australian Government was that France might be deterred from making or from continuing its nuclear test experiments in the South Pacific by the pressure of international opinion and by the importance of maintaining the undiminished goodwill and the economic cooperation of Australia. But when it was apparent that none of these endeavours have been or are likely to be successful, and it is firmly known that a further series of tests will be undertaken by France in the mid-year, this showed that France denied Australia’s claim that its legal rights will be infringed by further testing of nuclear devices in the South Pacific. FOUR BASES OF CLAIM. (1) (2) (3) (4) unlawfulness in the modification of the physical conditions of the Australian territory and environment; unlawfulness in the pollution of the ‘Australian atmosphere and of the resources of its adjacent seas; unlawfulness in the interference with freedom of navigation on sea and in air; and breach of legal norms concerning atmospheric testing of nuclear weapons.

None of these were conceded by France and indeed they were disputed. CIL ON TESTING. It might be observed at this point that there is a radical distinction to be made between the claims that violation of territorial and decisional sovereignty by the intrusion and deposition of radio-active nuclides and of pollution of the sea and its resources thereby is unlawful according to international law, and the claim that the testing of nuclear weapons has become unlawful according to the customary international law, which is expressed in the Australian Note of 3 January 1973 as “legal norms concerning atmospheric testing of nuclear weapons”. In the first instance, it is the intrusion of the ionized particles of matter into the air, sea and land of Australia which is said to be in breach of its rights sustained by international law. It is not fundamentally
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significant in this claim that the atomic explosions from which the ionized particles have come into the Australian environment were explosions for the purpose of developing nuclear weapons, though in fact that is what happened. But in the second instance the customary law is claimed now to include a prohibition on the testing of nuclear weapons. The particular purpose of the detonations by France is thus of the essence of the suggested prohibition. Though Australia points to the resultant fall-out in Australia, these consequences are not of the essence of the unlawfulness claimed: it is the testing itself which is claimed to be unlawful. It might be noticed that the objection to the testing of nuclear weapons in international discussions is placed on a twofold basis: there is the danger to the health of this and succeeding generations of the human race from the dissemination of radio-active fallout, but there is also the antipathy of the international community to the enlargement of the destructive quality of nuclear armaments and to the proliferation of their possession. Thus, it is not only nuclear explosions as such which are the suggested objects of the prohibition, but the testing of nuclear weapons as an adjunct to the increase in the extent of nuclear weaponry. The order in which these four bases of claim were argued and the emphasis respectively placed upon them has tended to obscure the significànce of the Applicant’s claim for the infringement of its territorial and decisional sovereignty. Because of this presentation and its emotional overtones it might be thought that the last of the above-enumerated bases of claim which, I may say, has its own peculiar difficulties, was the heart-land of the Australian claim. But asIunderstand the matter, the contrary is really the case. It is the infraction of territorial sovereignty by the intrusion and deposition of nuclides which is the major basis of the claim. A DISPUTE ABOUT RESPECTIVE RIGHTS may be a dispute between the Parties as to whether a right exists at all, or it may be a dispute as to the extent of an admitted right, or it may be a dispute as to the existence of a breach of an admitted right, or of course it may combine all these things, or some of them, in the one dispute. The claim on the one hand and the denial on the other that a right exists or as to its extent or as to its breach constitute, in my opinion, a dispute as to rights. If such a dispute between the Parties is as to their respective rights it will in my opinion satisfy the terms of Article 17 of the General Act which, in my opinion, is the touchstone of jurisdiction in this case or, if the contrary view of jurisdiction is accepted, the touchstone of admissibility. If the dispute is not a dispute as to the existence of a Iegal right, it will not satisfy Article 17 and it may be said to be a dispute “without object” because, if it is not a dispute as to a legal right, the Court will not be able to resolve it by the application of legal norms: the dispute will not be justiciable. The impossibility for a decision of the Court in favour of Australia to have any effective legal application in the present case (and therefore the incompatibility with the judicial function of the Court that would be involved by the Court entertaining the case) is the reverse of a coin, the obverse of which is the absence of any genuine dispute. Since, with reference to a judicial decision sought as the outcome of a dispute said to exist between the Parties, the dispute must essentially relate to what that decision ought to be, it follows that if the decision (whatever it might be) must plainly be without any possibility of effective legal application at all, the dispute becomes void of all content, and is reduced to an empty shell. The Court must be able both to resolve this case by the application of legal norms because legal rights of the Parties are in question and to make at least a declaration as to the existence or non-existence of the disputed right or obligation. It is essential, in my opinion, to observe that the existence of a dispute as to legal rights does not depend upon the validity of the disputed claim that a right exists or that it was of a particular nature or of a particular extent. In order to establish the existence of a dispute it is not necessary to show that the claimed right itself exists. To determine the validity of the disputed claim is to determine the merits of the application. It is conceivable that a person may claim a right which, being denied, gives the appearance of a dispute, but because the claim is beyond all question and on its face baseless, it may possibly be said that truly there is no dispute because there was in truth quite obviously nothing to dispute about, or it may be said that the disputed claim is patently absurd or frivolous. But these things, in my opinion, cannot be said as to any of the bases of claim which are put forward in the Application and which were present in the correspondence which antedated it. CONSIDERATIONS OF BASES OF CLAIMS. I now consider whether these bases of claim being disputed are capable of resolution by the application of legal norms and whether Australia has a legal interest to maintain its claim in respect of those rights. In considering these questions, it must be recalled that if they are to be decided at this stage, they must be questions of an exclusively preliminary character. If, to resolve either of them, it is necessary to go into the merits, then that question is not of that character.

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1 , 2 BASES. Australia’s claim is that the deposition and intrusion of the nuclides is an infringement of its right to territorial and, as it says, decisional sovereignty. It is part of this claim that the mere deposition and intrusion of this particular and potentially harmful physical matter is a breach of Australia’s undoubted sovereign right to territorial integrity, a right clearly protected by international law. France asserts that the right to territorial integrity in relevant respects is only a right not to be subjected to actual and
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demonstrable damage by matter intruded into its territory and environment. Hence the reference to a threshold of nuclear pollution. It would seem that France claims that although the nuclides were inherently dangerous, their deposition and intrusion into the Australian territory and environment did not relevantly cause damage to Australia or people within its territory. Damage in that view would not have been caused unless some presently demonstrable injury had been caused to land or persons by the nuclear fall-out. THE FRENCH PROPOSITION is a proposition of law. It is disputed by Australia and is itself an argument disputing the Australian claim as to the state of the relevant law. So far as the question of French responsibility to Australia may depend upon whether or not damage has been done by the involuntary reception in Australia of the radio-active fall-out, it should be said that the question whether damage has in fact been done has not yet been fully examined. Obviously such a question forms part of the merits. Again, if there is no actual damage presently provable, the question remains whether the nuclides would in future probably or only possibly cause injury to persons within Australian territory; and in either case, there is a question of whether the degree of probability or possibility, bearing in mind the nature of the injuries which the nuclides are capable of causing, is sufficient to satisfy the concept of damage if the view of the law put forward by the French Annex were accepted. The resolution of such questions, which in my opinion are legal questions, partakes of the merits of the case. Thus is a dispute which can be resolved according to legal norms and by judicial process. Clearly Australia has a legal interest to maintain the validity of its claim in this respect. 3 BASIS OF THE CLAIM is that Australia’s rights of navigation and fishing on the high seas and of oceanic flight will be infringed by the action of the French Government not limited to the mere publication of NOTAMS and AVROMARS in connection with its nuclear tests in the atmosphere of the South Pacific. Here there is, in my opinion, a claim of right. The claim also involves an assertion that a situation will exist which would be a breach of that right. It seems also to be claimed that pollution of the high seas, with resultant effects on fish and fishing, constitutes an infringement of the Applicant’s rights in the sea. FRANCE disputes that what it proposes to do would infringe Australia’s rights in the high seas and super-incumbent air, bearing in mind established international practice. Thus the question arises as to the extent of the right of the unimpeded use of the high seas and super-incumbent air, and of the nature and effect of international practice in the closure of areas of danger during the use of the sea and air for the discharge of weapons or for dangerous experimentation. A DISPUTE. Again there is, in connection with the third basis of claim, a dispute as to the existence and infringement of rights according to international law: there is a dispute as to the respective rights of the Parties. On that footing, the interest of the Applicant to sustain the Application is, in my opinion, apparent. THE 4 CLAIM IN relation to the testing of nuclear weapons in the atmosphere stands on a quite different footing from the foregoing. It is a claim that Australia’s rights are infringed by the testing of nuclear weapons by France in the atmosphere of the South Pacific. I have expressed it in that fashion, emphasizing that it is Australia’s rights which are said to be infringed, though I am bound to say that the claim is not so expressed in the Australian Note of 3 January 1973. However, the expression of the relevant claim in the Application is susceptible of that interpretation. PROHIBITION NOW PART OF CIL. It is said that there has been such a progression of general opinion amongst the nations, evidenced in treaty, resolution and expression of international opinion, that the stage has been reached where the prohibition of the testing of nuclear weapons is now part of the customary international law. It cannot be doubted that that customary law is subject to growth and to accretion as international opinion changes and hardens into law. It should not be doubted that the Court is called upon to play its part in the discernment of that growth and in the authoritative declaration that in point of law that growth has taken place to the requisite extent and that the stretch of customary law has been attained. The Court will, of course, confine itself to declaring what the law has already become, and in doing so will not be altering the law or deciding what the law ought to be, as distinct from declaring what it is. I think it must be considered that it is legally possible that at some stage the testing of nuclear weapons could become, or could have become, prohibited by the customary international law. Treaties, resolutions, expressions of opinion and international practice, may all combine to produce the evidence of that customary law. The time when such a law emerges will not necessarily be deferred until all nations have acceded to a test ban treaty, or until opinion of the nations is universally held in the same sense. Customary law amongst the nations does not, in my opinion, depend on universal acceptance. Conventional law limited to the parties to the
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convention may become in appropriate circumstances customary law. On the other hand, it may be that even a widely accepted test ban treaty does not create or evidence a state of customary international law in which the testing of nuclear weapons is unlawful, and that resolutions of the United Nations and other expressions of international opinion, however frequent, numerous and emphatic, are insufficient to warrant the view that customary law now embraces a prohibition on the testing of nuclear weapons. QUESTION OF LAW. The question raised by Australia’s claim in respect of the nuclear testing of weapons and its denial by France is whether the stage has already been reached where it can be said as a matter of law that there is now a legal prohibition against the testing of nuclear weapons, particularly the testing of nuclear weapons in the atmosphere. Or it is whether the “…atmospheric tests of nuclear weapons are, generally speaking, already governed by norms of international law, or whether they do not still belong to a highly political domain where the norms concerning their international legality or illegality are still at the gestation stage” which is, in my opinion, a description of a question of law. The difficulties in the way of establishing such a change in the customary international law are fairly obvious, and they are very considerable, but it is not the validity of the claim that is in question at this stage. The question is whether a dispute as to the law exists. There is, in my opinion, no justification for dismissing this basis of the Applicant’s claim as to the present state of international law out of hand, particularly at a stage when the Court is limited to dealing with matters of an exclusively preliminary nature. Nor is it the case that the state of the customary law could not be determined by the application of legal considerations. There remains, however, another and a difficult question, namely whether Australia has an interest to maintain an application for a declaration that the customary law has reached the point of including a prohibition against the testing of nuclear weapons. AUSSIE CLAIMS. In expressing its claim, it is noticeable that Australia speaks of its right as being a right along with all other States. It does not claim an individual right exclusive to itself. In its Memorial, it puts the obligation not to test nuclear weapons as owed by each State to every other State in the international community; thus it is claimed that each State can be held to have a legal interest in the maintenance of a prohibition against the testing of nuclear weapons. Australia says that the prohibition it claims now to exist in the customary international law against the testing of nuclear weapons is of the same kind as the instances of laws concerning the basic rights of the human person as are given in paragraph 34 of the Court’s Judgment in the Barcelona Traction, Light and Power Company, Limited case, and that therefore the obligation to observe the prohibition is erga omnes. The Applicant says that in consequence the right to observance of the prohibition is a right of each state corresponding to the duty of each state to observe the prohibition, a duty which the Applicant claims is owed by each State to each and every other State. IF YES, WITH LEGAL INTEREST. If this submission were accepted, Australia would, in my opinion, have the requisite legal interest, the locus standi to maintain this basis of its claim. The right it claims in its dispute with France would be ifs right: the obligation it claims France to be under, namely an obligation to refrain from the atmospheric testing of nuclear weapons, would be an obligation owed to Australia. The Parties would be in dispute as to their respective rights. NOT PRELIM. But in my opinion the question this submission raises is not a matter which ought to be decided as a question of an exclusively preliminary character. Not only are there substantial matters to be considered in connection with it, but, if a prohibition of the kind suggested by Australia were to be found to be part of the customary international law, the precise formulation of, and perhaps limitations upon, that prohibition may well bear on the question of the rights of individual States to seek to enforce it. Thus the decision and question of the admissibility of Australia’s claim in this respect may trench upon the merits. AUSTRALIA’S CLAIM is admissible in relation to the first three of the four bases which I have enumerated at an earlier part of this opinion. But I am not able t o say affirmatively at this stage that the Application is admissible, as to the fourth of those bases of claim. In my opinion, the question whether the Application is in that respect admissible is not a question of an exclusively preliminary nature, and for that reason it cannot be decided at this stage of the proceedings. ISSUE: WON it is proper to give the French statements a legal and binding effect. HELD: NO. ON THE EFFECT OF THE FRENCH STATEMENTS. My first observation is that this is a conclusion of fact. It is not in my opinion a conclusion of law. The inferences to be drawn from the issuing and the terms of the communiqué are, in my opinion, inferences of fact, including the critical fact of the intention of France in the matter. So also, in my opinion, is the meaning to be given to the various statements which are set out in the Judgment. A decision as to those inferences and those meanings is not in my opinion an exercise in legal interpretation; it is an exercise in fact-finding. But whether the conclusion be one of fact or one of law, my comments as to the judicial impropriety of deciding the matter without notice to the Parties of the questions to be considered, and
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without affording them an opportunity to make their submissions, are equally applicable. This is a very important conclusion purporting to impose on France an internationally binding obligation of a far-reaching kind. Nothing is found as to the duration of the obligation although nothing said in the Judgment would suggest that it is of a temporary nature. There are apparently no qualifications of it related to changes in circumstances or to the varying needs of French security. Apparently it is restricted to the South Pacific area, a limitation implied from the fact that the source of the obligation is the communiqué. POLICY STATEMENTS. The purpose and intention of issuing the communiqué and subsequently making the various statements is to my mind far from clear. The Judgment finds an intention to enter into a binding legal obligation after giving the warning that statements limiting a State’s freedom of action should receive a restrictive interpretation. The Judgment apparently finds the clear intention in the language used.I regret to say that I am unable to do so. There seems to be nothing, either in the language used or in the circumstances of its employment, which in my opinion would warrant, and certainly nothing to compel, the conclusion that those making the statements were intending to enter into a solemn and far-reaching international obligation rather than to announce the current intention of the French Government. I would have thought myself that the more natural conclusion to draw from the various statements was that they were statements of policy and not intended as undertaking to the international community such a far-reaching obligation. The Judgment does not seem to my mind to offer any reason why these statements should be regarded as expressing an intention to accept an internationally binding undertaking rather than an intention to make statements of current government policy and intention. Further, it seems to me strange to Say the least that the French Government at a time when it had not completed its 1974 series of tests and did not know that the weather conditions of the winter in the southern hemisphere would permit them to be carried out, should pre-empt itself from testing again in the atmosphere, even if the 1974 series should, apart from the effects of weather, prove inadequate for the purposes which prompted France to undertake them. A conclusion that France has made such an undertaking without any reservation of any kind, such, for example, as is found in the Moscow Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, to which France is not a Party, is quite remarkable and difficult to accept. It is noticeable that the communiqué itself as sent to Australia makes no express reference to atmospheric testing. The message sent by the French Embassy in Wellington to the Government of New Zealand with respect to the communiqué, drew a conclusion not expressed in the communiqué itself. Somewhat guardedly the Embassy added the words “in the normal course of events” which tended to weaken the inference which apparently the Embassy had drawn from the terrns of the communiqué. In this connection it may be observed that both the Government of Australia and the Government of New Zealand in responding to the communiqué virtually challenged France to give to them an express undertaking that no further tests would be carried out in the South Pacific. There has been ample opportunity for France to have unequivocally made such a statement: but no such express statement has been communicated to either Applicant. It is enough to Say that there is, in my opinion, much room for grave doubt as to the correctness of the conclusion which the Court has drawn. BUT WHAT ABOUT JURISDICTION? There is a further substantial matter to be mentioned in this connection. The Court has purported to decide that France has assumed an international obligation of which Australia has the benefit. It is this circumstance which the Judgment holds has resolved the dispute between France and Australia and caused it to cease to exist. But the Court has not decided its jurisdiction as between these Parties. France has steadfastly maintained that the Court has no jurisdiction. The Court’s finding that France has entered into an international obligation is intended to be a finding binding both Parties to the litigation, France as well as Australia. But I am at a loss to understand how France can be bound by the finding if the Court has not declared its jurisdiction in the matter.

REQUEST FOR AN EXAMINATION OF THE SITUATION IN ACCORDANCE WITH PARAGRAPH THE COURT'S JUDGMENT OF

63

OF

20

DECEMBER

1974

IN THE

NUCLEARTESTS (NEW

ZEALAND V. FRANCE)

CASE – SEPTEMBER 22, 1995

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The Court handed down its decision that New Zealand's Request for an Examination of the Situation in accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear. Tests (New Zealand v. France) Case, made on 21 August 1995, "does not fall within the pr13visions of the said paragraph 63 and must consequently be dismissed". Consequently, New Zealand's request for provisional measures and the applications for permission to intervene submitted by Australia, Samoa, Solomon Islands, the Marshall Islands and the Federated States of Micronesia, as well as the declarations of intervention made by the last four States, all of which are proceedings incidental to New Ze:aland's main Request, likewise had to be dismissed. The Court limited the present proceedings; to the examination of the following question: "Do the Requests submitted to the Court by the Government of New Zealand on 2 1 August 1995 fall within the provisions o:f paragraph 63 , of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealana' v. France)?". In the Court's view, that question has two elements. The first element concerns the courses of proceclure envisaged by the

Court in paragraph 63 of its 1974 Judgment, when it stated that "the Applicant could request an examination of the situation in accordance with the provisions of the Statute"; the other concerns the question whether the "basis" of that
Judgment has been "affected" within the meaning of paragraph 63 thereof. In its examination of that question, the Court found in the first place that by inserting in paragraph 63 the abovementioned phrase the Court did not exclude a special procedure for access to it (unlike those mentioned in the Court's Statute, like the filing of a new application, or a request for interpretation or revision, which would have been open to the Applicant in any event). Secondly, however, the Court found that the special procedure would only be available to the Applicant if circumstances were to anise which affected the basis of the 1974 Judgment. And that, it found, was not tihe case, as the basis of that Judgment was France's undertaking not to conduct any further atmospheric nuclear tests and only a resumption of nuclear tests in the atmosphere would therefore have affected it. The decision was take:n by 12 votes to 3. Three declarations, one separate opinion and three dissenting opinions were appended to the Order.

LONGER ICJ SUMMARY FACTS:
- New Zealand filed a "Request for an Examination of the Situation" in accordance with paragraph 63 of the Court's Judgment of 20
December 1974 in the Nuclear Tests (New Zealand v. France) case -why: proposed action by the French Government which will, if carried out, affect the basis of the judgment rendered by the Court in the Nuclear Test Case: decision announced by France in a media statement of 13 June 1995" by the President of the French Republic, according to which "France would conduct a final series of eight nuclear weapons tests in the South Pacific starting in September 1995". -Right to relief: (1) seeks recognition only of those rights that would be adversely affected by entry into the marine environment of radioactive material as a result of the further tests to be carried out at Mururoa or Fangataufa Atolls, and (2) of its entitlement to protection and to the benefit of a properly conducted Environmental Impact Assessment -New Zealand also requested some provisional measures; Some South Pacific states also intervened: 1. Australia 2. Samoa 3. Solomon Islands 4. the Marshall Islands and 5. the Federatcd States of Micronesia

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SUBMISSIONS OF NEW ZEALAND:
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"(i) that the conduct of the proposed nuclear tests will constitute a violation of the rights under international law of New Zealand, as well as of other States;further or in the alternative, (ii) that it is unlawful for France to conduct such nuclear tests before it has undertaken an Environmental Impact Assessment according to accepted international standards. Unless such an assessment establishes that the tests will not give rise, directly or indirectly, to radioactive contamination of the marine environment the rights under international law of New Zealand, as well as the rights of other States, will be violated."

PARAGRAPH 63 OF THE NUCLEAR CASE TEST
"Once the Court has found that a State has entered into a commitment concerning its future conduct it is not the Court's function to contemplate that it will not comply with it. However, the Court observes that if the basis of this Judgment were to be affected, the Applicant could request an examination of the situation in accordance with the provisions of the Statute; the denunciation by France, by letter dated 2 January 1974, of the General Act for the Pacific Settlement of International Disputes, which is relied on as a basis of jurisdiction in the present case, cannot constitute by itself an obstacle to the presentation of such a request."

"Do the Requests submitted to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests (New Zealand v. France)?"
What are the courses of procedure contemplated in the said paragraph to be “in accordance with the provisions of the statute”? NZ: (i) Paragraph 63 authorized these DERIVATIVE PROCEEDINGS as a mechanism enabling the continuation or resumption of the proceedings of 1974; (ii) Par63 could only refer to the procedure applicable to the examination of the situation once the Request was admitted. France: should stick to the ICJ Statute. a State cannot act unilaterally before the Court in the absence of any basis in the Statute ICJ: the Court cannot have intended to limit the Applicant's access to legal procedures such as *the filing of a new application (Statute, Art. 40, para. l), *a request for interpretation (Statute, Art. 60) or a *request for revision (Statute, Art. 61), which would have been open to it in any event; by inserting the abovementioned words in paragraph 63 of its Judgment, the Court did not exclude a special procedure, in the event that the circumstances defined in that paragraph were to arise, in other words, circumstances which "affected" the "basis" of the Judgment.

a. WON the basis of the Nuclear Test Judgment was affected? ICJ: the basis of the 1974 Judgment was consequently France's undertaking not to conduct any further atmospheric nuclear tests;
that it was only, therefore, in the event of a resumption of nuclear tests in the atmosphere that that basis of the Judgment would have been affected; and that that hypothesis has not materialized. * it is not possible for the Court now to take into consideration questions relating to underground nuclear tests; and that the Court cannot, therefore, take account of the arguments derived by New Zealand, on the one hand from the conditions in which France has conducted underground nuclear tests since 1974 * its Order is without prejudice to the obligations of States to respect and protect the natural environment, obligations to which both New Zealand and France have in the present instance reaffirmed their commitment. SINCE THE BASIS HAS NOT BEEN AFFECTED, NEW ZEALAND’S REQUEST DOES NOT THEREFORE FALL WITHIN PAR63 OF THE 1974 DECISION – DISMISSED REQUEST AND REQUEST FOR PROVISIONAL REMEDIES

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ON THE LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS ADVISORY OPINION (8 JULY 1996)
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Present: President BEDJAOUI; Vice-President SCHWEBEL; Judges ODA, GUILLAUME, SHAHABUDDEEN, WEERAMANTRY, RANJEVA, HERCZEGH, SHI, FLEISCHHAUER, KOROMA, VERESHCHETIN, FERRARI BRAVO, HIGGINS; Registrar VALENCIA-OSPINA. UN GENERAL ASSEMBLY’s REQUEST FOR AN ADVISORY OPINION. By a letter dated 19 December 1994, the Sec-Gen of the UN officially communicated to the Registrar of the ICJ the decision taken by the General Assembly to submit the question to the Court for an advisory opinion. Resolution 49/75 K, reads as follows: "The General Assembly, - Conscious that the continuing existence and development of nuclear weapons pose serious risks to humanity, - Mindful that States have an obligation under the Charter of the United Nations to refrain from the threat or use of force against the territorial integrity or political independence of any State. - Recalling its resolutions 1653 (XVI) of 24 November 1961, 33/71 B of 14 December 1978, 34/83 G of 11 December 1979, 35/152 D of 12 December 1980, 36/92 1 of 9 December 1981, 45/59 B of 4 December 1990 and 46/37 D of 6 December 1991, in which it declared that the use of nuclear weapons would be a violation of the Charter and a crime against humanity, - Welcoming the progress made on the prohibition and elimination of weapons of mass destruction, including the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction and the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction(2), - Convinced that the complete elimination of nuclear weapons is the only guarantee against the threat of nuclear war, - Noting the concerns expressed in the Fourth Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons that insufficient progress had been made towards the complete elimination of nuclear weapons at the earliest possible time, - Recalling that, convinced of the need to strengthen the rule of law in international relations, it has declared the period 1990-1999 the United Nations Decade of International Law, - Noting that Article 96, paragraph 1, of the Charter empowers the General Assembly to request the ICJ to give an advisory opinion on any legal question, - Recalling the recommendation of the Sec-Gen, made in his report entitled 'An Agenda for Peace', that United Nations organs that are authorized to take advantage of the advisory competence of the International Court of Justice turn to the Court more frequently for such opinions, - Welcoming resolution 46/40 of 14 May 1993 of the Assembly of the World Health Organization, in which the organization requested the International Court of Justice to give an advisory opinion on whether the use of nuclear weapons by a State in war or other armed conflict would be a breach of its obligations under international law, including the Constitution of the World Health Organization, Decides, pursuant to Article 96, paragraph 1, of the Charter of the UN, to request the ICJ urgently to render its advisory opinion on the following question: 'IS THE THREAT OR USE OF NUCLEAR WEAPONS IN ANY CIRCUMSTANCE PERMITTED UNDER INTERNATIONAL LAW?'"

ICJ SOUGHT POSITIONS OF DIFFERENT STATES. Pursuant to Article 65, paragraph 2, of the Statute, the Sec-Gen of the UN communicated to the Court a collection of documents likely to throw light upon the question. By letters dated 21 December 1994, the Registrar, pursuant to Article 66, paragraph 1, of the Statute, gave notice of the request for an advisory opinion to all States entitled to appear before the Court. It is to be noted that it was stated in particular that the General Assembly had requested that the advisory opinion of the Court be rendered "urgently"; reference was also made to the procedural time-limits already fixed for the request for an advisory opinion previously submitted to the Court by the World Health Organization on the question of the Legality of the use by a State of nuclear weapons in armed conflict.

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Written statements were filed by 30 States including France, Italy, Japan, UK, US and many more. In addition, written comments on those written statements were submitted by 3 States.

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The Court decided to hold public sittings, opening on 30 October 1995, at which oral statements might be submitted to the Court by any State or organization which had been considered likely to be able to furnish information on the question before the Court. Several representatives/speakers were heard from around 22 states including Mr. Rodolfo S. Sanchez, Ambassador of the Philippines to the Netherlands and Prof. Merlin N. Magallona, Dean, College of Law, University of the Philippines. Questions were put by Members of the Court to particular participants in the oral proceedings, who replied in writing, as requested, within the prescribed time-limits; the Court having decided that the other participants could also reply to those questions on the same terms, several of them did so. Other questions put by Members of the Court were addressed, more generally, to any participant in the oral proceedings; several of them replied in writing, as requested, within the prescribed time-limits. JURISDICTION OF THE ICJ IN GIVING ADVISORY OPINIONS The Court must first consider whether it has the jurisdiction to give a reply to the request of the General Assembly for an Advisory Opinion and whether, should the answer be in the affirmative, there is any reason it should decline to exercise any such jurisdiction. The Court draws its competence in respect of advisory opinions from Article 65, par. 1, of its Statute. Under this Article, the Court "may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the UN to make such a request". For the Court to be competent to give an advisory opinion, it is thus necessary at the outset for the body requesting the opinion to be "authorized by or in accordance with the Charter of the UN to make such a request". The Charter provides in Article 96, paragraph 1, that: "The General Assembly or the Security Council may request the ICJ to give an advisory opinion on any legal question." THE GENERAL ASSEMBLY IS COMPETENT TO SEEK AN ADVISORY OPINION TO ANY QUESTION WITHIN THE SCOPE OF THE CHARTER. Some States which oppose the giving of an opinion by the Court argued that the General Assembly and Security Council are not entitled to ask for opinions on matters totally unrelated to their work. They suggested that, as in the case of organs and agencies acting under Article 96, paragraph 2, of the Charter, and notwithstanding the difference in wording between that provision and paragraph 1 of the same Article, the General Assembly and Security Council may ask for an advisory opinion on a legal question only within the scope of their activities. In the view of the Court, it matters little whether this interpretation of Article 96, paragraph 1, is or is not correct; Indeed, Article 10 of the Charter has conferred upon the General Assembly a competence relating to "any questions or any matters" within the scope of the Charter. Article 11 has specifically provided it with a competence to "consider the general principles . . . in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments". Lastly, according to Article 13, the General Assembly "shall initiate studies and make recommendations for the purpose of . . . encouraging the progressive development of international law and its codification". The question put to the Court has a relevance to many aspects of the activities and concerns of the General Assembly including those relating to the threat or use of force in international relations, the disarmament process, and the progressive development of international law. The General Assembly has a long-standing interest in these matters and in their relation to nuclear weapons. This interest has been manifested in the annual First Committee debates, and the Assembly resolutions on nuclear weapons; in the holding of three special sessions on disarmament (1978, 1982 and 1988) by the General Assembly, and the annual meetings of the Disarmament Commission since 1978; and also in the commissioning of studies on the effects of the use of nuclear weapons. In this context, it does not matter that important recent and current activities relating to nuclear disarmament are being pursued in other fora. Finally, Article 96, paragraph 1, of the Charter cannot be read as limiting the ability of the Assembly to request an opinion only in those circumstances in which it can take binding decisions. The fact that the Assembly's activities in the above-mentioned field have led it only to the making of recommendations thus has no bearing on the issue of whether it had the competence to put to the Court the question of which it is seized.

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ADVISORY OPINION SHOULD RELATE TO A LEGAL QUESTION. The Court must furthermore satisfy itself that the advisory opinion requested does indeed relate to a "legal question" within the meaning of its Statute and the United Nations Charter. The Court has already had occasion to indicate that questions "framed in terms of law and rais[ing] problems of international law . . . are by their very nature susceptible of a reply based on law . . . [and]
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appear . . . to be questions of a legal character". The question put to the Court by the General Assembly is indeed a legal one, since the Court is asked to rule on the compatibility of the threat or use of nuclear weapons with the relevant principles and rules of international law. To do this, the Court must identify the existing principles and rules, interpret them and apply them to the threat or use of nuclear weapons, thus offering a reply to the question posed based on law. The fact that this question also has political aspects, as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a "legal question" and to "deprive the Court of a competence expressly conferred on it by its Statute". Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task, namely, an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by international law. Furthermore, as the Court said in the Opinion it gave in 1980 concerning the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt: "Indeed, in situations in which political considerations are prominent it may be particularly necessary for an international organization to obtain an advisory opinion from the Court as to the legal principles applicable with respect to the matter under debate . . ." The Court moreover considers that the political nature of the motives which may be said to have inspired the request and the political implications that the opinion given might have are of no relevance in the establishment of its jurisdiction to give such an opinion. DISCRETION TO GIVE AN ADVISORY OPINION. Article 65, paragraph 1, of the Statute provides: "The Court may give an advisory opinion . . ." This is more than an enabling provision. As the Court has repeatedly emphasized, the Statute leaves a discretion as to whether or not it will give an advisory opinion that has been requested of it, once it has established its competence to do so. In this context, the Court has previously noted as follows: "The Court's Opinion is given not to the States, but to the organ which is entitled to request it; the reply of the Court, itself an 'organ of the United Nations', represents its participation in the activities of the Organization, and, in principle, should not be refused." The Court has constantly been mindful of its responsibilities as "the principal judicial organ of the United Nations" (Charter, Art. 92). When considering each request, it is mindful that it should not, in principle, refuse to give an advisory opinion. In accordance with the consistent jurisprudence of the Court, only "compelling reasons" could lead it to such a refusal There has been no refusal, based on the discretionary power of the Court, to act upon a request for advisory opinion in the history of the present Court; in the case concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, the refusal to give the World Health Organization the advisory opinion requested by it was justified by the Court's lack of jurisdiction in that case. The Permanent Court of International Justice took the view on only one occasion that it could not reply to a question put to it, having regard to the very particular circumstances of the case, among which were that the question directly concerned an already existing dispute, one of the States parties to which was neither a party to the Statute of the Permanent Court nor a Member of the League of Nations, objected to the proceedings, and refused to take part in any way REASONS TO PERSUADE THE ICJ TO DECLINE RENDERING AN ADVISORY OPINION & A REBUTTAL FOR EACH REASON. Most of the reasons adduced in these proceedings in order to persuade the Court that in the exercise of its discretionary power it should decline to render the opinion requested by General Assembly resolution 49/75K were summarized in the following statement made by one State in the written proceedings: 1. VAGE & ABSTRACT QUESTION. "The question presented is vague and abstract, addressing complex issues which are the subject of consideration among interested States and within other bodies of the United Nations which have an express mandate to address these matters. An opinion by the Court in regard to the question presented would provide no practical assistance to the General Assembly in carrying out its functions under the Charter. Such an opinion has the potential of undermining progress already made or being made on this sensitive subject and, therefore, is contrary to the interest of the United Nations Organization." In contending that the question put to the Court is vague and abstract, some States appeared to mean by this that there exists no specific dispute on the subject-matter of the question. In order to respond to this argument, it is necessary to distinguish between requirements governing contentious procedure and those applicable to advisory opinions. The purpose of the advisory function is not to settle - at least directly - disputes between States, but to offer legal advice to the organs and institutions requesting the opinion. The fact that the question put to the Court does not relate to a specific dispute should consequently not lead the Court to decline to give the opinion requested.
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2. QUESTION COUCHED IN ABSTRACT TERMS. Moreover, it is the clear position of the Court that to contend that it should not deal with a question couched in abstract terms is "a mere affirmation devoid of any justification", and that "the Court may give an advisory opinion on any legal question, abstract or otherwise" Certain States have however expressed the fear that the abstract nature of the question might lead the Court to make hypothetical or speculative declarations outside the scope of its judicial function. The Court does not consider that, in giving an advisory opinion in the present case, it would necessarily have to write "scenarios", to study various types of nuclear weapons and to evaluate highly complex and controversial technological, strategic and scientific information. The Court will simply address the issues arising in all their aspects by applying the legal rules relevant to the situation. 3. UNKNOWN PURPOSE. Certain States have observed that the General Assembly has not explained to the Court for what precise purposes it seeks the advisory opinion. Nevertheless, it is not for the Court itself to purport to decide whether or not an advisory opinion is needed by the Assembly for the performance of its functions. The General Assembly has the right to decide for itself on the usefulness of an opinion in the light of its own needs. Equally, once the Assembly has asked, by adopting a resolution, for an advisory opinion on a legal question, the Court, in determining whether there are any compelling reasons for it to refuse to give such an opinion, will not have regard to the origins or to the political history of the request, or to the distribution of votes in respect of the adopted resolution. 4. ADVERSE EFFECT TO ON-GOING DISARMAMENT NEGOTIATIONS. It has also been submitted that a reply from the Court in this case might adversely affect disarmament negotiations and would, therefore, be contrary to the interest of the United Nations. The Court is aware that, no matter what might be its conclusions in any opinion it might give, they would have relevance for the continuing debate on the matter in the General Assembly and would present an additional element in the negotiations on the matter. Beyond that, the effect of the opinion is a matter of appreciation. The Court has heard contrary positions advanced and there are no evident criteria by which it can prefer one assessment to another. That being so, the Court cannot regard this factor as a compelling reason to decline to exercise its jurisdiction. 5. JUDICIAL LEGISLATION. Finally, it has been contended by some States that in answering the question posed, the Court would be going beyond its judicial role and would be taking upon itself a law-making capacity. It is clear that the Court cannot legislate, and, in the circumstances of the present case, it is not called upon to do so. Rather its task is to engage in its normal judicial function of ascertaining the existence or otherwise of legal principles and rules applicable to the threat or use of nuclear weapons. The contention that the giving of an answer to the question posed would require the Court to legislate is based on a supposition that the present corpus juris is devoid of relevant rules in this matter. The Court could not accede to this argument; it states the existing law and does not legislate. This is so even if, in stating and applying the law, the Court necessarily has to specify its scope and sometimes note its general trend. IN VIEW OF WHAT IS STATED ABOVE, THE COURT CONCLUDES THAT IT HAS THE AUTHORITY TO DELIVER AN OPINION ON THE QUESTION POSED BY THE GENERAL ASSEMBLY, AND THAT THERE EXIST NO "COMPELLING REASONS" WHICH WOULD LEAD THE COURT TO EXERCISE ITS DISCRETION NOT TO DO SO.

FORUMULATION OF THE QUESTION. The Court must next address certain matters arising in relation to the formulation of the question put to it by the General Assembly. The English text asks: "Is the threat or use of nuclear weapons in any circumstance permitted under international law?" It was suggested that the Court was being asked by the General Assembly whether it was permitted to have recourse to nuclear weapons in every circumstance, and it was contended that such a question would inevitably invite a simple negative answer. Its real objective is clear: to determine the legality or illegality of the threat or use of nuclear weapons. CRITICISM ON THE USE OF THE WORD “PERMITTED”. The use of the word "permitted" in the question put by the General Assembly was criticized before the Court by certain States on the ground that this implied that the threat or the use of nuclear weapons would only be permissible if authorization could be found in a treaty provision or in customary international law. Such a starting point, those States submitted, was incompatible with the very basis of international law, which rests upon the principles of sovereignty and consent; accordingly, and contrary to what was implied by use of the word "permitted", States are free to threaten or use nuclear weapons unless it can be shown that they are bound not
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to do so by reference to a prohibition in either treaty law or customary international law. Support for this contention was found in dicta of the Permanent Court of International Justice in the "Lotus" case that "restrictions upon the independence of States cannot . . . be presumed" and that international law leaves to States "a wide measure of discretion which is only limited in certain cases by prohibitive rules" Reliance was also placed on the dictum of the present Court in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) that: "in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited". For other States, the invocation of these dicta in the "Lotus" case was unsuitable; their status in contemporary international law and applicability in the very different circumstances of the present case were challenged. It was also contended that the abovementioned dictum of the present Court was directed to the possession of armaments and was irrelevant to the threat or use of nuclear weapons. Finally, it was suggested that, were the Court to answer the question put by the Assembly, the word "permitted" should be replaced by "prohibited". The Court notes that the nuclear-weapon States appearing before it either accepted, or did not dispute, that their independence to act was indeed restricted by the principles and rules of international law, more particularly humanitarian law (see below, paragraph 86), as did the other States which took part in the proceedings. Hence, the argument concerning the legal conclusions to be drawn from the use of the word "permitted", and the questions of burden of proof to which it was said to give rise, are without particular significance for the disposition of the issues before the Court. ARGUMENTS FOR/AGAINST THE USE OF NUCLEAR WEAPONS. In seeking to answer the question put to it by the General Assembly, the Court must decide, after consideration of the great corpus of international law norms available to it, what might be the relevant applicable law. 1. VIOLATE THE RIGHT TO LIFE. Some of the proponents of the illegality of the use of nuclear weapons have argued that such use would violate the right to life as guaranteed in Article 6 of the International Covenant on Civil and Political Rights, as well as in certain regional instruments for the protection of human rights. Article 6, paragraph 1, of the International Covenant provides as follows: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." APPLICATION OF INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS. In reply, others contended that the International Covenant on Civil and Political Rights made no mention of war or weapons, and it had never been envisaged that the legality of nuclear weapons was regulated by that instrument. It was suggested that the Covenant was directed to the protection of human rights in peacetime, but that questions relating to unlawful loss of life in hostilities were governed by the law applicable in armed conflict. The Court observes that the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself. 2. PROHIBITION AGAINST GENOCIDE. Some States also contended that the prohibition against genocide, contained in the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide, is a relevant rule of customary international law which the Court must apply. The Court recalls that, in Article II of the Convention genocide is defined as: "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to being about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group."
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It was maintained before the Court that the number of deaths occasioned by the use of nuclear weapons would be enormous; that the victims could, in certain cases, include persons of a particular national, ethnic, racial or religious group; and that the intention to destroy such groups could be inferred from the fact that the user of the nuclear weapon would have omitted to take account of the well-known effects of the use of such weapons. The Court would point out in that regard that the prohibition of genocide would be pertinent in this case if the recourse to nuclear weapons did indeed entail the element of intent, towards a group as such, required by the provision quoted above. In the view of the Court, it would only be possible to arrive at such a conclusion after having taken due account of the circumstances specific to each case. 3. VIOLATION OF NORMS RELATING TO THE ENVIRONMENT. In both their written and oral statements, some States furthermore argued that any use of nuclear weapons would be unlawful by reference to existing norms relating to the safeguarding and protection of the environment, in view of their essential importance. Specific references were made to various existing international treaties and instruments. These included Additional Protocol I of 1977 to the Geneva Conventions of 1949, Article 35, paragraph 3, of which prohibits the employment of "methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment"; and the Convention of 18 May 1977 on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, which prohibits the use of weapons which have "widespread, long-lasting or severe effects" on the environment (Art. 1). Also cited were Principle 21 of the Stockholm Declaration of 1972 and Principle 2 of the Rio Declaration of 1992 which express the common conviction of the States concerned that they have a duty "to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction". These instruments and other provisions relating to the protection and safeguarding of the environment were said to apply at all times, in war as well as in peace, and it was contended that they would be violated by the use of nuclear weapons whose consequences would be widespread and would have transboundary effects. ARE THEY BINDING? Other States questioned the binding legal quality of these precepts of environmental law; or, in the context of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, denied that it was concerned at all with the use of nuclear weapons in hostilities; or, in the case of Additional Protocol I, denied that they were generally bound by its terms, or recalled that they had reserved their position in respect of Article 35, paragraph 3, thereof. PROTECTION OF THE ENVIRONMENT ONLY IN TIME OF PEACE. It was also argued by some States that the principal purpose of environmental treaties and norms was the protection of the environment in time of peace. It was said that those treaties made no mention of nuclear weapons. It was also pointed out that warfare in general, and nuclear warfare in particular, were not mentioned in their texts and that it would be destabilizing to the rule of law and to confidence in international negotiations if those treaties were now interpreted in such a way as to prohibit the use of nuclear weapons. NUCLEAR WEAPONS, A CATASTROPHE TO THE ENVI. The Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognizes that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment. ARE THESE OBLIGATIONS OF TOTAL RESTRAINT? However, the Court is of the view that the issue is not whether the treaties relating to the protection of the environment are or not applicable during an armed conflict, but rather whether the obligations stemming from these treaties were intended to be obligations of total restraint during military conflict. The Court does not consider that the treaties in question could have intended to deprive a State of the exercise of its right of selfdefence under international law because of its obligations to protect the environment. Nonetheless, States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality. This approach is supported, indeed, by the terms of Principle 24 of the Rio Declaration, which provides that:
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"Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary." 31. The Court notes furthermore that Articles 35, paragraph 3, and 55 of Additional Protocol I provide additional protection for the environment. Taken together, these provisions embody a general obligation to protect the natural environment against widespread, long-term and severe environmental damage; the prohibition of methods and means of warfare which are intended, or may be expected, to cause such damage; and the prohibition of attacks against the natural environment by way of reprisals. These are powerful constraints for all the States having subscribed to these provisions. UNJUSTIFIED DESTRUCTION OF ENVIRONMENT: CONTRARY TO INT’L LAW. General Assembly resolution 47/37 of 25 November 1992 on the Protection of the Environment in Times of Armed Conflict, is also of interest in this context. It affirms the general view according to which environmental considerations constitute one of the elements to be taken into account in the implementation of the principles of the law applicable in armed conflict: it states that "destruction of the environment, not justified by military necessity and carried out wantonly, is clearly contrary to existing international law". Addressing the reality that certain instruments are not yet binding on all States, the General Assembly in this resolution "[a]ppeals to all States that have not yet done so to consider becoming parties to the relevant international conventions." In its recent Order in the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, the Court stated that its conclusion was "without prejudice to the obligations of States to respect and protect the natural environment.” Although that statement was made in the context of nuclear testing, it naturally also applies to the actual use of nuclear weapons in armed conflict. INT’L LAW DOES NOT PROHIBIT BUT…The Court thus finds that while the existing international law relating to the protection and safeguarding of the environment does not specifically prohibit the use of nuclear weapons, it indicates important environmental factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict. APPLICABLE LAW: USE OF FORCE. In the light of the foregoing the Court concludes that the most directly relevant applicable law governing the question of which it was seised, is that relating to the use of force enshrined in the United Nations Charter and the law applicable in armed conflict which regulates the conduct of hostilities, together with any specific treaties on nuclear weapons that the Court might determine to be relevant. CHARACTERISTICS OF NUCLEAR WEAPONS. In applying this law to the present case, the Court cannot however fail to take into account certain unique characteristics of nuclear weapons. DEFINITION OF NUKES. The Court has noted the definitions of nuclear weapons contained in various treaties and accords. It also notes that nuclear weapons are explosive devices whose energy results from the fusion or fission of the atom. By its very nature, that process, in nuclear weapons as they exist today, releases not only immense quantities of heat and energy, but also powerful and prolonged radiation. According to the material before the Court, the first two causes of damage are vastly more powerful than the damage caused by other weapons, while the phenomenon of radiation is said to be peculiar to nuclear weapons. These characteristics render the nuclear weapon potentially catastrophic. The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilization and the entire ecosystem of the planet. EFFECTS OF A NUCLEAR EXPLOSION. The radiation released by a nuclear explosion would affect health, agriculture, natural resources and demography over a very wide area. Further, the use of nuclear weapons would be a serious danger to future generations. Ionizing radiation has the potential to damage the future environment, food and marine ecosystem, and to cause genetic defects and illness in future generations. In consequence, in order correctly to apply to the present case the Charter law on the use of force and the law applicable in armed conflict, in particular humanitarian law, it is imperative for the Court to take account of the unique characteristics of nuclear weapons, and in particular their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to generations to come.

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QUESTION OF THE (IL)LEGALITY OF THE RECOURSE TO NUCLEAR WEAPONS WRT TO THE UN CHARTER PROVISIONS RELATING TO THE THREAT OR USE OF FORCE. CHARTER PROVISIONS. The Charter contains several provisions relating to the threat and use of force. In Article 2, paragraph 4, the threat or use of force against the territorial integrity or political independence of another State or in any other manner inconsistent with the purposes of the United Nations is prohibited. That paragraph provides: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations." This prohibition of the use of force is to be considered in the light of other relevant provisions of the Charter. In Article 51, the Charter recognizes the inherent right of individual or collective self-defence if an armed attack occurs. A further lawful use of force is envisaged in Article 42, whereby the Security Council may take military enforcement measures in conformity with Chapter VII of the Charter. NOT WEAPON SPECIFIC. These provisions do not refer to specific weapons. They apply to any use of force, regardless of the weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons. A weapon that is already unlawful per se, whether by treaty or custom, does not become lawful by reason of its being used for a legitimate purpose under the Charter. CONSTRAINTS TO THE EXERCISE OF SELF-DEFENSE. The entitlement to resort to self-defence under Article 51 is subject to certain constraints. Some of these constraints are inherent in the very concept of self defence. Other requirements are specified in Article 51. The submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law. As the Court stated in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America): "there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law". This dual condition applies equally to Article 51 of the Charter, whatever the means of force employed. The proportionality principle may thus not in itself exclude the use of nuclear weapons in self-defence in all circumstances. But at the same time, a use of force that is proportionate under the law of self-defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law. APPLICATION OF THE PRINCIPLE OF PROPORTIONALITY TO THE USE OF NUCLEAR WEAPONS. Certain States have in their written and oral pleadings suggested that in the case of nuclear weapons, the condition of proportionality must be evaluated in the light of still further factors. They contend that the very nature of nuclear weapons, and the high probability of an escalation of nuclear exchanges, mean that there is an extremely strong risk of devastation. The risk factor is said to negate the possibility of the condition of proportionality being complied with. The Court does not find it necessary to embark upon the quantification of such risks; nor does it need to enquire into the question whether tactical nuclear weapons exist which are sufficiently precise to limit those risks: it suffices for the Court to note that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by States believing they can exercise a nuclear response in self-defence in accordance with the requirements of proportionality. IMMEDIATE REPORTING TO THE SECURITY COUNCIL. Beyond the conditions of necessity and proportionality, Article 51 specifically requires that measures taken by States in the exercise of the right of self-defence shall be immediately reported to the Security Council; this article further provides that these measures shall not in any way affect the authority and responsibility of the Security Council under the Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. These requirements of Article 51 apply whatever the means of force used in self-defence. RESOLUTION 984. The Court notes that the Security Council adopted on 11 April 1995, in the context of the extension of the Treaty on the Non-Proliferation of Nuclear Weapons, resolution 984 (1995) by the terms of which, on the one hand, it "[t]akes note with appreciation of the statements made by each of the nuclear-weapon States (S/1995/261, S/1995/262, S/1995/263, S/1995/264, S/1995/265), in which they give security assurances against the use of nuclear weapons to non-nuclear-weapon States that are Parties to the Treaty on the Non-Proliferation of Nuclear Weapons," and, on the other hand, it "[w]elcomes the intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used".
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USE OF NUKES IN REPRISALS. Certain States asserted that the use of nuclear weapons in the conduct of reprisals would be lawful. The Court does not have to examine, in this context, the question of armed reprisals in time of peace, which are considered to be unlawful. Nor does it have to pronounce on the question of belligerent reprisals save to observe that in any case any right of recourse to such reprisals would, like self-defence, be governed inter alia by the principle of proportionality. LEGALITY OF “THREAT TO USE”. In order to lessen or eliminate the risk of unlawful attack, States sometimes signal that they possess certain weapons to use in self-defence against any State violating their territorial integrity or political independence. Whether a signalled intention to use force if certain events occur is or is not a "threat" within Article 2, paragraph 4, of the Charter depends upon various factors. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4. Thus it would be illegal for a State to threaten force to secure territory from another State, or to cause it to follow or not follow certain political or economic paths. The notions of "threat" and "use" of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal - for whatever reason - the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. For the rest, no State - whether or not it defended the policy of deterrence - suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal. Some States put forward the argument that possession of nuclear weapons is itself an unlawful threat to use force. Possession of nuclear weapons may indeed justify an inference of preparedness to use them. In order to be effective, the policy of deterrence, by which those States possessing or under the umbrella of nuclear weapons seek to discourage military aggression by demonstrating that it will serve no purpose, necessitates that the intention to use nuclear weapons be credible. Whether this is a "threat" contrary to Article 2, paragraph 4, depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a State, or against the Purposes of the United Nations or whether, in the event that it were intended as a means of defence, it would necessarily violate the principles of necessity and proportionality. In any of these circumstances the use of force, and the threat to use it, would be unlawful under the law of the Charter. Moreover, the Security Council may take enforcement measures under Chapter VII of the Charter. From the statements presented to it the Court does not consider it necessary to address questions which might, in a given case, arise from the application of Chapter VII. The terms of the question put to the Court by the General Assembly in resolution 49/75K could in principle also cover a threat or use of nuclear weapons by a State within its own boundaries. However, this particular aspect has not been dealt with by any of the States which addressed the Court orally or in writing in these proceedings. The Court finds that it is not called upon to deal with an internal use of nuclear weapons. FOCUS ON APPLICABLE LAW IN ARMED CONFLICT. Having dealt with the Charter provisions relating to the threat or use of force, the Court will now turn to the law applicable in situations of armed conflict. It will first address the question whether there are specific rules in international law regulating the legality or illegality of recourse to nuclear weapons per se; it will then examine the question put to it in the light of the law applicable in armed conflict proper, i.e. the principles and rules of humanitarian law applicable in armed conflict, and the law of neutrality. FORMULATED IN TERMS OF PROHIBITION. The Court notes by way of introduction that international customary and treaty law does not contain any specific prescription authorizing the threat or use of nuclear weapons or any other weapon in general or in certain circumstances, in particular those of the exercise of legitimate self-defence. Nor, however, is there any principle or rule of international law which would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on a specific authorization. State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorization but, on the contrary, is formulated in terms of prohibition. The Court must therefore now examine whether there is any prohibition of recourse to nuclear weapons as such; it will first ascertain whether there is a conventional prescription to this effect. NUKES AS POISONED WEAPONS. In this regard, the argument has been advanced that nuclear weapons should be treated in the same way as poisoned weapons. In that case, they would be prohibited under:
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(a) the Second Hague Declaration of 29 July 1899, which prohibits "the use of projectiles the object of which is the diffusion of asphyxiating or deleterious gases"; (b) Article 23 (a) of the Regulations respecting the laws and customs of war on land annexed to the Hague Convention IV of 18 October 1907, whereby "it is especially forbidden: ...to employ poison or poisoned weapons"; and (c) the Geneva Protocol of 17 June 1925 which prohibits "the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices". The Court will observe that the Regulations annexed to the Hague Convention IV do not define what is to be understood by "poison or poisoned weapons" and that different interpretations exist on the issue. Nor does the 1925 Protocol specify the meaning to be given to the term "analogous materials or devices". The terms have been understood, in the practice of States, in their ordinary sense as covering weapons whose prime, or even exclusive, effect is to poison or asphyxiate. This practice is clear, and the parties to those instruments have not treated them as referring to nuclear weapons. In view of this, it does not seem to the Court that the use of nuclear weapons can be regarded as specifically prohibited on the basis of the above-mentioned provisions of the Second Hague Declaration of 1899, the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Protocol WEAPONS ARE DECLARED ILLEGAL BY SPECIFIC INSTRUMENTS. NO SUCH INSTRUMENT FOR NUKES. The pattern until now has been for weapons of mass destruction to be declared illegal by specific instruments. The most recent such instruments are the Convention of 10 April 1972 on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their destruction - which prohibits the possession of bacteriological and toxic weapons and reinforces the prohibition of their use - and the Convention of 13 January 1993 on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction - which prohibits all use of chemical weapons and requires the destruction of existing stocks. Each of these instruments has been negotiated and adopted in its own context and for its own reasons. The Court does not find any specific prohibition of recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction. In the last two decades, a great many negotiations have been conducted regarding nuclear weapons; they have not resulted in a treaty of general prohibition of the same kind as for bacteriological and chemical weapons. However, a number of specific treaties have been concluded in order to limit: (a) the acquisition, manufacture and possession of nuclear weapons (Peace Treaties of 10 February 1947; State Treaty for the Reestablishment of an Independent and Democratic Austria of 15 May 1955; Treaty of Tlatelolco of 14 February 1967 for the Prohibition of Nuclear Weapons in Latin America, and its Additional Protocols; Treaty of 1 July 1968 on the Non-Proliferation of Nuclear Weapons; Treaty of Rarotonga of 6 August 1985 on the Nuclear- Weapon-Free Zone of the South Pacific, and its Protocols; Treaty of 12 September 1990 on the Final Settlement with respect to Germany); (b) the deployment of nuclear weapons (Antarctic Treaty of 1 December 1959; Treaty of 27 January 1967 on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies; Treaty of Tlatelolco of 14 February 1967 for the Prohibition of Nuclear Weapons in Latin America, and its Additional Protocols; Treaty of 11 February 1971 on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil Thereof; Treaty of Rarotonga of 6 August 1985 on the Nuclear-Weapon-Free Zone of the South Pacific, and its Protocols); and (c) the testing of nuclear weapons (Antarctic Treaty of 1 December 1959; Treaty of 5 August 1963 Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water; Treaty of 27 January 1967 on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies; Treaty of Tlatelolco of 14 February 1967 for the Prohibition of Nuclear Weapons in Latin America, and its Additional Protocols; Treaty of Rarotonga of 6 August 1985 on the NuclearWeapon-Free Zone of the South Pacific, and its Protocols). CONVENTIONS CONCERNED WITH NUKES. Recourse to nuclear weapons is directly addressed by two of these Conventions and also in connection with the indefinite extension of the Treaty on the Non-Proliferation of Nuclear Weapons of 1968: (a) the Treaty of Tlatelolco of 14 February 1967 for the Prohibition of Nuclear Weapons in Latin America prohibits, in Article 1, the use of nuclear weapons by the Contracting Parties. It further includes an Additional Protocol II open to nuclear-weapon States outside the region, Article 3 of which provides: "The Governments represented by the undersigned Plenipotentiaries also undertake not to use or threaten to use nuclear weapons against the Contracting Parties of the Treaty for the Prohibition of Nuclear Weapons in Latin America."
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The Protocol was signed and ratified by the five nuclear-weapon States. Its ratification was accompanied by a variety of declarations. The United Kingdom Government, for example, stated that "in the event of any act of aggression by a Contracting Party to the Treaty in which that Party was supported by a nuclear-weapon State", the United Kingdom Government would "be free to reconsider the extent to which they could be regarded as committed by the provisions of Additional Protocol II". The United States made a similar statement. The French Government, for its part, stated that it "interprets the undertaking made in article 3 of the Protocol as being without prejudice to the full exercise of the right of self-defence confirmed by Article 51 of the Charter". China reaffirmed its commitment not to be the first to make use of nuclear weapons. The Soviet Union reserved "the right to review" the obligations imposed upon it by Additional Protocol II, particularly in the event of an attack by a State party either "in support of a nuclear-weapon State or jointly with that State". None of these statements drew comment or objection from the parties to the Treaty of Tlatelolco. (b) the Treaty of Rarotonga of 6 August 1985 establishes a South Pacific Nuclear Free Zone in which the Parties undertake not to manufacture, acquire or possess any nuclear explosive device (Art. 3). Unlike the Treaty of Tlatelolco, the Treaty of Rarotonga does not expressly prohibit the use of such weapons. But such a prohibition is for the States parties the necessary consequence of the prohibitions stipulated by the Treaty. The Treaty has a number of protocols. Protocol 2, open to the five nuclear-weapon States, specifies in its Article 1 that: "Each Party undertakes not to use or threaten to use any nuclear explosive device against: (a) Parties to the Treaty; or (b) any territory within the South Pacific Nuclear Free Zone for which a State that has become a Party to Protocol 1 is internationally responsible." China and Russia are parties to that Protocol. In signing it, China and the Soviet Union each made a declaration by which they reserved the" right to reconsider" their obligations under the said Protocol; the Soviet Union also referred to certain circumstances in which it would consider itself released from those obligations. France, the United Kingdom and the United States, for their part, signed Protocol 2 on 25 March 1996, but have not yet ratified it. On that occasion, France declared, on the one hand, that no provision in that Protocol "shall impair the full exercise of the inherent right of self-defence provided for in Article 51 of the ... Charter" and, on the other hand, that "the commitment set out in Article 1 of [that] Protocol amounts to the negative security assurances given by France to non-nuclear-weapon States which are parties to the Treaty on . . . Non-Proliferation", and that "these assurances shall not apply to States which are not parties" to that Treaty. For its part, the United Kingdom made a declaration setting out the precise circumstances in which it "will not be bound by [its] undertaking under Article 1" of the Protocol. (c) as to the Treaty on the Non-Proliferation of Nuclear Weapons, at the time of its signing in 1968 the United States, the United Kingdom and the USSR gave various security assurances to the non-nuclear-weapon States that were parties to the Treaty. In resolution 255 (1968) the Security Council took note with satisfaction of the intention expressed by those three States to "provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon State Party to the Treaty on the Non-Proliferation . . . that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used". On the occasion of the extension of the Treaty in 1995, the five nuclear-weapon States gave their non-nuclear-weapon partners, by means of separate unilateral statements on 5 and 6 April 1995, positive and negative security assurances against the use of such weapons. All the five nuclear-weapon States first undertook not to use nuclear weapons against non-nuclear-weapon States that were parties to the Treaty on the Non-Proliferation of Nuclear Weapons. However, these States, apart from China, made an exception in the case of an invasion or any other attack against them, their territories, armed forces or allies, or on a State towards which they had a security commitment, carried out or sustained by a non-nuclear-weapon State party to the Non-Proliferation Treaty in association or alliance with a nuclear-weapon State. Each of the nuclear-weapon States further undertook, as a permanent Member of the Security Council, in the event of an attack with the use of nuclear weapons, or threat of such attack, against a nonnuclear-weapon State, to refer the matter to the Security Council without delay and to act within it in order that it might take immediate measures with a view to supplying, pursuant to the Charter, the necessary assistance to the victim State (the commitments assumed comprising minor variations in wording). The Security Council, in unanimously adopting resolution 984 (1995) of 11 April 1995, cited above, took note of those statements with appreciation. It also recognized "that the nuclear-weapon State permanent members of the Security Council will bring the matter immediately to the attention of the Council and seek Council action to provide, in accordance with the Charter, the necessary assistance to the State victim";

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and welcomed the fact that "the intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any non-nuclear- weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used." SUCH TREATIES REFLECT AN EMERGING RULE OF PROHIBITION OF NUKES. Those States that believe that recourse to nuclear weapons is illegal stress that the conventions that include various rules providing for the limitation or elimination of nuclear weapons in certain areas (such as the Antarctic Treaty of 1959 which prohibits the deployment of nuclear weapons in the Antarctic, or the Treaty of Tlatelolco of 1967 which creates a nuclear-weapon-free zone in Latin America), or the conventions that apply certain measures of control and limitation to the existence of nuclear weapons (such as the 1963 Partial Test-Ban Treaty or the Treaty on the Non-Proliferation of Nuclear Weapons) all set limits to the use of nuclear weapons. In their view, these treaties bear witness, in their own way, to the emergence of a rule of complete legal prohibition of all uses of nuclear weapons. OTHERS STATES BELIEVE OTHERWISE, STILL NO ABSOLUTE PROHIBITION. Those States who defend the position that recourse to nuclear weapons is legal in certain circumstances see a logical contradiction in reaching such a conclusion. According to them, those Treaties, such as the Treaty on the Non-Proliferation of Nuclear Weapons, as well as Security Council resolutions 255 (1968) and 984 (1995) which take note of the security assurances given by the nuclear-weapon States to the non-nuclear-weapon States in relation to any nuclear aggression against the latter, cannot be understood as prohibiting the use of nuclear weapons, and such a claim is contrary to the very text of those instruments. For those who support the legality in certain circumstances of recourse to nuclear weapons, there is no absolute prohibition against the use of such weapons. The very logic and construction of the Treaty on the Non-Proliferation of Nuclear Weapons, they assert, confirm this. This Treaty, whereby, they contend, the possession of nuclear weapons by the five nuclear-weapon States has been accepted, cannot be seen as a treaty banning their use by those States; to accept the fact that those States possess nuclear weapons is tantamount to recognizing that such weapons may be used in certain circumstances. Nor, they contend, could the security assurances given by the nuclear-weapon States in 1968, and more recently in connection with the Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons in 1995, have been conceived without its being supposed that there were circumstances in which nuclear weapons could be used in a lawful manner. For those who defend the legality of the use, in certain circumstances, of nuclear weapons, the acceptance of those instruments by the different non-nuclear-weapon States confirms and reinforces the evident logic upon which those instruments are based. FORESHADOWING OF A FUTURE GENERAL PROHIBITION. The Court notes that the treaties dealing exclusively with acquisition, manufacture, possession, deployment and testing of nuclear weapons, without specifically addressing their threat or use, certainly point to an increasing concern in the international community with these weapons; the Court concludes from this that these treaties could therefore be seen as foreshadowing a future general prohibition of the use of such weapons, but they do not constitute such a prohibition by themselves. As to the treaties of Tlatelolco and Rarotonga and their Protocols, and also the declarations made in connection with the indefinite extension of the Treaty on the Non-Proliferation of Nuclear Weapons, it emerges from these instruments that: (a) a number of States have undertaken not to use nuclear weapons in specific zones (Latin America; the South Pacific) or against certain other States (non-nuclear-weapon States which are parties to the Treaty on the Non-Proliferation of Nuclear Weapons); (b) nevertheless, even within this framework, the nuclear-weapon States have reserved the right to use nuclear weapons in certain circumstances; and (c) these reservations met with no objection from the parties to the Tlatelolco or Rarotonga Treaties or from the Security Council. These two treaties, the security assurances given in 1995 by the nuclear-weapon States and the fact that the Security Council took note of them with satisfaction, testify to a growing awareness of the need to liberate the community of States and the international public from the dangers resulting from the existence of nuclear weapons. The Court moreover notes the signing, even more recently, on 15 December 1995, at Bangkok, of a Treaty on the Southeast Asia Nuclear-Weapon-Free Zone, and on 11 April 1996, at Cairo, of a treaty on the creation of a nuclear-weapons-free zone in Africa. It does not, however, view these elements as amounting to a comprehensive and universal conventional prohibition on the use, or the threat of use, of those weapons as such.

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A LOOK AT CUSTOMARY INTERNATIONAL LAW. The Court will now turn to an examination of customary international law to determine whether a prohibition of the threat or use of nuclear weapons as such flows from that source of law. As the Court has stated, the substance of that law must be "looked for primarily in the actual practice and opinio juris of States"
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NON-UTILIZATION OF NUKES AS EVIDENCE OF OPINIO JURIS? States which hold the view that the use of nuclear weapons is illegal have endeavoured to demonstrate the existence of a customary rule prohibiting this use. They refer to a consistent practice of nonutilization of nuclear weapons by States since 1945 and they would see in that practice the expression of an opinio juris on the part of those who possess such weapons. Some other States, which assert the legality of the threat and use of nuclear weapons in certain circumstances, invoked the doctrine and practice of deterrence in support of their argument. They recall that they have always, in concert with certain other States, reserved the right to use those weapons in the exercise of the right to self-defence against an armed attack threatening their vital security interests. In their view, if nuclear weapons have not been used since 1945, it is not on account of an existing or nascent custom but merely because circumstances that might justify their use have fortunately not arisen. The Court does not intend to pronounce here upon the practice known as the "policy of deterrence". It notes that it is a fact that a number of States adhered to that practice during the greater part of the Cold War and continue to adhere to it. Furthermore, the Members of the international community are profoundly divided on the matter of whether non-recourse to nuclear weapons over the past fifty years constitutes the expression of an opinio juris. Under these circumstances the Court does not consider itself able to find that there is such an opinio juris. GENERAL ASSEMBLY RESOLUTIONS AS EVIDENCE? According to certain States, the important series of General Assembly resolutions, beginning with resolution 1653 (XVI) of 24 November 1961, that deal with nuclear weapons and that affirm, with consistent regularity, the illegality of nuclear weapons, signify the existence of a rule of international customary law which prohibits recourse to those weapons. According to other States, however, the resolutions in question have no binding character on their own account and are not declaratory of any customary rule of prohibition of nuclear weapons; some of these States have also pointed out that this series of resolutions not only did not meet with the approval of all of the nuclear-weapon States but of many other States as well. States which consider that the use of nuclear weapons is illegal indicated that those resolutions did not claim to create any new rules, but were confined to a confirmation of customary law relating to the prohibition of means or methods of warfare which, by their use, overstepped the bounds of what is permissible in the conduct of hostilities. In their view, the resolutions in question did no more than apply to nuclear weapons the existing rules of international law applicable in armed conflict; they were no more than the "envelope" or instrumentum containing certain pre-existing customary rules of international law. For those States it is accordingly of little importance that the instrumentum should have occasioned negative votes, which cannot have the effect of obliterating those customary rules which have been confirmed by treaty law. NORMATIVE VALUE OF G.A.’s RESOLUTIONS. The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule. RESOLUTIONS FALL SHORT TO ESTABLISH O.J. Examined in their totality, the General Assembly resolutions put before the Court declare that the use of nuclear weapons would be "a direct violation of the Charter of the United Nations"; and in certain formulations that such use "should be prohibited". The focus of these resolutions has sometimes shifted to diverse related matters; however, several of the resolutions under consideration in the present case have been adopted with substantial numbers of negative votes and abstentions; thus, although those resolutions are a clear sign of deep concern regarding the problem of nuclear weapons, they still fall short of establishing the existence of an opinio juris on the illegality of the use of such weapons. The Court further notes that the first of the resolutions of the General Assembly expressly proclaiming the illegality of the use of nuclear weapons, resolution 1653 (XVI) of 24 November 1961 (mentioned in subsequent resolutions), after referring to certain international declarations and binding agreements, from the Declaration of St. Petersburg of 1868 to the Geneva Protocol of 1925, proceeded to qualify the legal nature of nuclear weapons, determine their effects, and apply general rules of customary international law to nuclear weapons in particular. That application by the General Assembly of general rules of customary law to the particular case of nuclear weapons indicates that, in its view, there was no specific rule of customary law which prohibited the use of nuclear weapons; if such a rule had existed, the General Assembly could simply have referred to it and would not have needed to undertake such an exercise of legal qualification.
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Having said this, the Court points out that the adoption each year by the General Assembly, by a large majority, of resolutions recalling the content of resolution 1653 (XVI), and requesting the member States to conclude a convention prohibiting the use of nuclear weapons in any circumstance, reveals the desire of a very large section of the international community to take, by a specific and express prohibition of the use of nuclear weapons, a significant step forward along the road to complete nuclear disarmament. The emergence, as lex lata, of a customary rule specifically prohibiting the use of nuclear weapons as such is hampered by the continuing tensions between the budding opinio juris on the one hand, and the still strong adherence to the practice of deterrence on the other. VIOLATES INT’L HUMANITARIAN LAW? The Court not having found a conventional rule of general scope, nor a customary rule specifically proscribing the threat or use of nuclear weapons per se, it will now deal with the question whether recourse to nuclear weapons must be considered as illegal in the light of the principles and rules of international humanitarian law applicable in armed conflict and of the law of neutrality. 75. A large number of customary rules have been developed by the practice of States and are an integral part of the international law relevant to the question posed. The "laws and customs of war" - as they were traditionally called - were the subject of efforts at codification undertaken in The Hague (including the Conventions of 1899 and 1907), and were based partly upon the St. Petersburg Declaration of 1868 as well as the results of the Brussels Conference of 1874. This "Hague Law" and, more particularly, the Regulations Respecting the Laws and Customs of War on Land, fixed the rights and duties of belligerents in their conduct of operations and limited the choice of methods and means of injuring the enemy in an international armed conflict. One should add to this the "Geneva Law" (the Conventions of 1864, 1906, 1929 and 1949), which protects the victims of war and aims to provide safeguards for disabled armed forces personnel and persons not taking part in the hostilities. These two branches of the law applicable in armed conflict have become so closely interrelated that they are considered to have gradually formed one single complex system, known today as international humanitarian law. The provisions of the Additional Protocols of 1977 give expression and attest to the unity and complexity of that law. 76. Since the turn of the century, the appearance of new means of combat has - without calling into question the longstanding principles and rules of international law - rendered necessary some specific prohibitions of the use of certain weapons, such as explosive projectiles under 400 grammes, dum-dum bullets and asphyxiating gases. Chemical and bacteriological weapons were then prohibited by the 1925 Geneva Protocol. More recently, the use of weapons producing "non-detectable fragments", of other types of "mines, booby traps and other devices", and of "incendiary weapons", was either prohibited or limited, depending on the case, by the Convention of 10 October 1980 on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects. The provisions of the Convention on "mines, booby traps and other devices" have just been amended, on 3 May 1996, and now regulate in greater detail, for example, the use of antipersonnel land mines. All this shows that the conduct of military operations is governed by a body of legal prescriptions. This is so because "the right of belligerents to adopt means of injuring the enemy is not unlimited" as stated in Article 22 of the 1907 Hague Regulations relating to the laws and customs of war on land. The St. Petersburg Declaration had already condemned the use of weapons "which uselessly aggravate the suffering of disabled men or make their death inevitable". The aforementioned Regulations relating to the laws and customs of war on land, annexed to the Hague Convention IV of 1907, prohibit the use of "arms, projectiles, or material calculated to cause unnecessary suffering" (Art. 23). CARDINAL PRINCIPLES OF IHL. The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following: 1. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. 2. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use. MARTENS CLAUSE. The Court would likewise refer, in relation to these principles, to the Martens Clause, which was first included in the Hague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be an effective
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means of addressing the rapid evolution of military technology. A modern version of that clause is to be found in Article 1, paragraph 2, of Additional Protocol I of 1977, which reads as follows: "In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience." In conformity with the aforementioned principles, humanitarian law, at a very early stage, prohibited certain types of weapons either because of their indiscriminate effect on combatants and civilians or because of the unnecessary suffering caused to combatants, that is to say, a harm greater than that unavoidable to achieve legitimate military objectives. If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law. HUMANITARIAN LAW: FUNDAMENTAL, CONSTITUTING PRINCIPLES OF INT’L CUSTOMARY LAW. It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and "elementary considerations of humanity" as the Court put it in its Judgment of 9 April 1949 in the Corfu Channel case (I.C.J. Reports 1949, p. 22), that the Hague and Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law. The Nuremberg International Military Tribunal had already found in 1945 that the humanitarian rules included in the Regulations annexed to the Hague Convention IV of 1907 "were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war" (International Military Tribunal, Trial of the Major War Criminals, 14 November 1945 - 1 October 1946, Nuremberg, 1947, Vol. 1, p. 254). The Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), with which he introduced the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, and which was unanimously approved by the Security Council (resolution 827 (1993)), stated: "In the view of the Secretary-General, the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law . . . The part of conventional international humanitarian law which has beyond doubt become part of international customary law is the law applicable in armed conflict as embodied in: the Geneva Conventions of 12 August 1949 for the Protection of War Victims; the Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto of 18 October 1907; the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948; and the Charter of the International Military Tribunal of 8 August 1945." 82. The extensive codification of humanitarian law and the extent of the accession to the resultant treaties, as well as the fact that the denunciation clauses that existed in the codification instruments have never been used, have provided the international community with a corpus of treaty rules the great majority of which had already become customary and which reflected the most universally recognized humanitarian principles. These rules indicate the normal conduct and behaviour expected of States. It has been maintained in these proceedings that these principles and rules of humanitarian law are part of jus cogens as defined in Article 53 of the Vienna Convention on the Law of Treaties of 23 May 1969. The question whether a norm is part of the jus cogens relates to the legal character of the norm. The request addressed to the Court by the General Assembly raises the question of the applicability of the principles and rules of humanitarian law in cases of recourse to nuclear weapons and the consequences of that applicability for the legality of recourse to these weapons. But it does not raise the question of the character of the humanitarian law which would apply to the use of nuclear weapons. There is, therefore, no need for the Court to pronounce on this matter. Nor is there any need for the Court elaborate on the question of the applicability of Additional Protocol I of 1977 to nuclear weapons. It need only observe that while, at the Diplomatic Conference of 1974-1977, there was no substantive debate on the nuclear issue and no specific solution concerning this question was put forward, Additional Protocol I in no way replaced the general customary rules applicable to all means and methods of combat including nuclear weapons. In particular, the Court recalls that all States are bound by those rules in Additional Protocol I which, when adopted, were merely the expression of the pre-existing customary law, such as the Martens Clause, reaffirmed in the first article of Additional Protocol I. The fact that certain types of
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weapons were not specifically dealt with by the 1974-1977 Conference does not permit the drawing of any legal conclusions relating to the substantive issues which the use of such weapons would raise. APPLICABILITY OG IHL TO NUCLEAR WEAPONS. Turning now to the applicability of the principles and rules of humanitarian law to a possible threat or use of nuclear weapons, the Court notes that doubts in this respect have sometimes been voiced on the ground that these principles and rules had evolved prior to the invention of nuclear weapons and that the Conferences of Geneva of 1949 and 1974-1977 which respectively adopted the four Geneva Conventions of 1949 and the two Additional Protocols thereto did not deal with nuclear weapons specifically. Such views, however, are only held by a small minority. In the view of the vast majority of States as well as writers there can be no doubt as to the applicability of humanitarian law to nuclear weapons. “NEWNESS” OF NUCLEAR WEAPONS IMMATERIAL TO IHL. The Court shares that view. Indeed, nuclear weapons were invented after most of the principles and rules of humanitarian law applicable in armed conflict had already come into existence; the Conferences of 1949 and 1974-1977 left these weapons aside, and there is a qualitative as well as quantitative difference between nuclear weapons and all conventional arms. However, it cannot be concluded from this that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future. In this respect it seems significant that the thesis that the rules of humanitarian law do not apply to the new weaponry, because of the newness of the latter, has not been advocated in the present proceedings. On the contrary, the newness of nuclear weapons has been expressly rejected as an argument against the application to them of international humanitarian law: "In general, international humanitarian law bears on the threat or use of nuclear weapons as it does of other weapons. International humanitarian law has evolved to meet contemporary circumstances, and is not limited in its application to weaponry of an earlier time. The fundamental principles of this law endure: to mitigate and circumscribe the cruelty of war for humanitarian reasons." None of the statements made before the Court in any way advocated a freedom to use nuclear weapons without regard to humanitarian constraints. Quite the reverse; it has been explicitly stated, "Restrictions set by the rules applicable to armed conflicts in respect of means and methods of warfare definitely also extend to nuclear weapons" (Russian Federation, CR 95/29, p. 52); "So far as the customary law of war is concerned, the United Kingdom has always accepted that the use of nuclear weapons is subject to the general principles of the jus in bello" (United Kingdom, CR 95/34, p. 45); and "The United States has long shared the view that the law of armed conflict governs the use of nuclear weapons - just as it governs the use of conventional weapons" (United States of America, CR 95/34, p. 85.) Finally, the Court points to the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons. PRINCIPLE OF NEUTRALITY. The Court will now turn to the principle of neutrality which was raised by several States. In the context of the advisory proceedings brought before the Court by the WHO concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, the position was put as follows by one State: "The principle of neutrality, in its classic sense, was aimed at preventing the incursion of belligerent forces into neutral territory, or attacks on the persons or ships of neutrals. Thus: 'the territory of neutral powers is inviolable' (Article 1 of the Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, concluded on 18 October 1907); 'belligerents are bound to respect the sovereign rights of neutral powers . . .' (Article 1 to the Hague Convention (XIII) Respecting the Rights and Duties of Neutral Powers in Naval War, concluded on 18 October 1907), 'neutral states have equal interest in having their rights respected by belligerents . . .' (Preamble to Convention on Maritime Neutrality, concluded on 20 February 1928). It is clear, however, that the principle of neutrality applies with equal force to transborder incursions of armed forces and to the transborder damage caused to a neutral State by the use of a weapon in a belligerent State." (Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Nauru, Written Statement (I), p. 35, IV E.)

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The principle so circumscribed is presented as an established part of the customary international law. The Court finds that as in the case of the principles of humanitarian law applicable in armed conflict, international law leaves no doubt that the principle of neutrality, whatever its content, which is of a fundamental character similar to that of the humanitarian
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principles and rules, is applicable (subject to the relevant provisions of the United Nations Charter), to all international armed conflict, whatever type of weapons might be used. Although the applicability of the principles and rules of humanitarian law and of the principle of neutrality to nuclear weapons is hardly disputed, the conclusions to be drawn from this applicability are, on the other hand, controversial. SO DOES IHL PROHIBIT NUCLEAR WEAPONS? VIEW 1: NOT NECESSARILY PROHIBITED. According to one point of view, the fact that recourse to nuclear weapons is subject to and regulated by the law of armed conflict does not necessarily mean that such recourse is as such prohibited. As one State put it to the Court: "Assuming that a State's use of nuclear weapons meets the requirements of self-defence, it must then be considered whether it conforms to the fundamental principles of the law of armed conflict regulating the conduct of hostilities" (United Kingdom, Written Statement, p. 40, para. 3.44); "the legality of the use of nuclear weapons must therefore be assessed in the light of the applicable principles of international law regarding the use of force and the conduct of hostilities, as is the case with other methods and means of warfare" (United Kingdom, Written Statement, p. 75, para. 4.2(3)); and "The reality . . . is that nuclear weapons might be used in a wide variety of circumstances with very different results in terms of likely civilian casualties. In some cases, such as the use of a low yield nuclear weapon against warships on the High Seas or troops in sparsely populated areas, it is possible to envisage a nuclear attack which caused comparatively few civilian casualties. It is by no means the case that every use of nuclear weapons against a military objective would inevitably cause very great collateral civilian casualties." (United Kingdom, Written Statement, p. 53, para. 3.70; see also United States of America, Oral Statement, CR 95/34, pp. 89-90.) VIEW 2: NUKES INCOMPATIBLE WITH IHL. Another view holds that recourse to nuclear weapons could never be compatible with the principles and rules of humanitarian law and is therefore prohibited. In the event of their use, nuclear weapons would in all circumstances be unable to draw any distinction between the civilian population and combatants, or between civilian objects and military objectives, and their effects, largely uncontrollable, could not be restricted, either in time or in space, to lawful military targets. Such weapons would kill and destroy in a necessarily indiscriminate manner, on account of the blast, heat and radiation occasioned by the nuclear explosion and the effects induced; and the number of casualties which would ensue would be enormous. The use of nuclear weapons would therefore be prohibited in any circumstance, notwithstanding the absence of any explicit conventional prohibition. That view lay at the basis of the assertions by certain States before the Court that nuclear weapons are by their nature illegal under customary international law, by virtue of the fundamental principle of humanity. USE OF NUKES WILL ALSO VIOLATE PRINCIPLE OF NEUTRALITY. A similar view has been expressed with respect to the effects of the principle of neutrality. Like the principles and rules of humanitarian law, that principle has therefore been considered by some to rule out the use of a weapon the effects of which simply cannot be contained within the territories of the contending States. COURT CANNOT WITH CERTAINTY RULE THAT USE OF NUKES VIOLATE IHL. The Court would observe that none of the States advocating the legality of the use of nuclear weapons under certain circumstances, including the "clean" use of smaller, low yield, tactical nuclear weapons, has indicated what, supposing such limited use were feasible, would be the precise circumstances justifying such use; nor whether such limited use would not tend to escalate into the all-out use of high yield nuclear weapons. This being so, the Court does not consider that it has a sufficient basis for a determination on the validity of this view. Nor can the Court make a determination on the validity of the view that the recourse to nuclear weapons would be illegal in any circumstance owing to their inherent and total incompatibility with the law applicable in armed conflict. Certainly, as the Court has already indicated, the principles and rules of law applicable in armed conflict - at the heart of which is the overriding consideration of humanity - make the conduct of armed hostilities subject to a number of strict requirements. Thus, methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited. In view of the unique characteristics of nuclear weapons, to which the Court has referred above, the use of such weapons in fact seems scarcely reconcilable with respect for such requirements. Nevertheless, the Court considers that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance.
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Furthermore, the Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to selfdefence, in accordance with Article 51 of the Charter, when its survival is at stake. Nor can it ignore the practice referred to as "policy of deterrence", to which an appreciable section of the international community adhered for many years. The Court also notes the reservations which certain nuclear-weapon States have appended to the undertakings they have given, notably under the Protocols to the Treaties of Tlatelolco and Rarotonga, and also under the declarations made by them in connection with the extension of the Treaty on the Non-Proliferation of Nuclear Weapons, not to resort to such weapons. Accordingly, in view of the present state of international law viewed as a whole, as examined above by the Court, and of the elements of fact at its disposal, the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake. Given the eminently difficult issues that arise in applying the law on the use of force and above all the law applicable in armed conflict to nuclear weapons, the Court considers that it now needs to examine one further aspect of the question before it, seen in a broader context. THE ANSWER: NUCLEAR DISARMAMENT. In the long run, international law, and with it the stability of the international order which it is intended to govern, are bound to suffer from the continuing difference of views with regard to the legal status of weapons as deadly as nuclear weapons. It is consequently important to put an end to this state of affairs: the long-promised complete nuclear disarmament appears to be the most appropriate means of achieving that result. In these circumstances, the Court appreciates the full importance of the recognition by Article VI of the Treaty on the NonProliferation of Nuclear Weapons of an obligation to negotiate in good faith a nuclear disarmament. This provision is worded as follows: "Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control." The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result - nuclear disarmament in all its aspects - by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith. This twofold obligation to pursue and to conclude negotiations formally concerns the 182 States parties to the Treaty on the NonProliferation of Nuclear Weapons, or, in other words, the vast majority of the international community. Virtually the whole of this community appears moreover to have been involved when resolutions of the United Nations General Assembly concerning nuclear disarmament have repeatedly been unanimously adopted. Indeed, any realistic search for general and complete disarmament, especially nuclear disarmament, necessitates the co-operation of all States. Even the very first General Assembly resolution, unanimously adopted on 24 January 1946 at the London session, set up a commission whose terms of reference included making specific proposals for, among other things, "the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction". In a large number of subsequent resolutions, the General Assembly has reaffirmed the need for nuclear disarmament. Thus, in resolution 808 A (IX) of 4 November 1954, which was likewise unanimously adopted, it concluded: "that a further effort should be made to reach agreement on comprehensive and co-ordinated proposals to be embodied in a draft international disarmament convention providing for: . . . (b) The total prohibition of the use and manufacture of nuclear weapons and weapons of mass destruction of every type, together with the conversion of existing stocks of nuclear weapons for peaceful purposes." The same conviction has been expressed outside the United Nations context in various instruments. PRINCIPLE OF GOOD FAITH IN COMPLYING WITH OBLIGATIONS. The obligation expressed in Article VI of the Treaty on the NonProliferation of Nuclear Weapons includes its fulfillment in accordance with the basic principle of good faith. This basic principle is
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set forth in Article 2, paragraph 2, of the Charter. It was reflected in the Declaration on Friendly Relations between States (resolution 2625 (XXV) of 24 October 1970) and in the Final Act of the Helsinki Conference of 1 August 1975. It is also embodied in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969, according to which "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith". Nor has the Court omitted to draw attention to it, as follows: "One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential." (Nuclear Tests (Australia v. France), Judgment of 20 December 1974, I.C.J. Reports 1974, p. 268, para. 46.) In its resolution 984 (1995) dated 11 April 1995, the Security Council took care to reaffirm "the need for all States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons to comply fully with all their obligations" and urged "all States, as provided for in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons, to pursue negotiations in good faith on effective measures relating to nuclear disarmament and on a treaty on general and complete disarmament under strict and effective international control which remains a universal goal". The importance of fulfilling the obligation expressed in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons was also reaffirmed in the final document of the Review and Extension Conference of the parties to the Treaty on the Non-Proliferation of Nuclear Weapons, held from 17 April to 12 May 1995. In the view of the Court, it remains without any doubt an objective of vital importance to the whole of the international community today. TOTALITY OF THE LEGAL GROUNDS. At the end of the present Opinion, the Court emphasizes that its reply to the question put to it by the General Assembly rests on the totality of the legal grounds set forth by the Court above, each of which is to be read in the light of the others. Some of these grounds are not such as to form the object of formal conclusions in the final paragraph of the Opinion; they nevertheless retain, in the view of the Court, all their importance. DISPOSITION. For these reasons,THE COURT, (1) By thirteen votes to one, Decides to comply with the request for an advisory opinion; IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins; AGAINST: Judge Oda. (2) Replies in the following manner to the question put by the General Assembly: A. Unanimously, There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons; B. By eleven votes to three, There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such; IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins; AGAINST: Judges Shahabuddeen, Weeramantry, Koroma. C.Unanimously, A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful; D. Unanimously, A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons; E. By seven votes to seven, by the President's casting vote, It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake;
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IN FAVOUR: President Bedjaoui; Judges Ranjeva, Herczegh, Shi, Fleischhauer, Vereschetin, Ferrari Bravo; AGAINST: Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Koroma, Higgins. F. Unanimously, There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.

THE PAQUETE HABANA (THE PAQUETE HABANA AND THE LOLA)
Argued Nov. 7-8, 1899, Decided Jan. 8, 1900 US Supreme Court, Justice Gray. Mr. J. Parker Kirlin for appellants (the ship owners) Assistant Attorney General Hoyt, Solicitor General Richards, and Messrs. Joseph K. McCammon, James H. Hayden, George A. King, and William B. King for appellees Nature of the case: 2 appeals from decrees of the district court of the US for the southern district of Florida condemning two fishing vessels and their cargoes as prize of war. Background: The American press attributed the sinking of the USS Maine to a bomb planted aboard it by Spanish forces, while the warship was at anchor in Havana, Cuba. During the ensuing Spanish-American War of 1898, US vessels patrolled Cuban waters to monitor activities which might aid Spain. The US Navy seized 2 coastal fishing vessels near the coast of Cuba, The Paquete Habana and The Lola. The prize courts of nations at war typically assess the lawfulness of the military seizure of a foreign vessel. A "prize" is a captured enemy or neutral vessel, suspected of carrying materials to aid the enemy. The trial judge examined US domestic law to determine the validity of the seizure, based on presidential executive decrees regarding the Law of Prize. The intermediate court upheld the trial judge's approval of the US seizure of these coastal fishing vessels. The US Supreme Court majority opinion surveyed how other nations answered such questions when a seizure allegedly violated the Law of Nations. Facts: Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in fishing on the coast of Cuba; sailed under the Spanish flag; was owned by a Spanish subject of Cuban birth, living in the city of Havana; was commanded by a subject of Spain, also residing in Havana; and her master and crew had no interest in the vessel, but were entitled to shares, amounting in all to 2/3, of her catch, the other third belonging to her owner. Her cargo consisted of fresh fish, caught by her crew from the sea, put on board as they were caught, and kept and sold alive. Until stopped by the blockading squadron, she had no knowledge of the existence of the war or of any blockade. She had no arms or ammunition on board, and made on attempt to run the blockade after she knew of its existence, nor any resistance at the time of the capture. The PAQUETE HABANA was a sloop, 43 feet long on the keel, and of 25 tons burden, and had a crew of 3 Cubans, including the master, who had a fishing license from the Spanish government, and no other commission or license. She left Havana March 25, 1898; sailed along the coast of Cuba to Cape San Antonio, at the western end of the island, and there fished for 25 days, lying between the reefs off the cape, within the territorial waters of Spain; and then started back for Havana, with a cargo of about 40 quintals of live fish. On April 25, 1898, about 2 miles off Mariel, and 11 miles from Havana, she was captured by the US gunboat Castine. The LOLA was a schooner, 51 feet long on the keel, and of 35 tons burden, and had a crew of 6 Cubans, including the master, and no commission or license. She left Havana April 11, 1898, and proceeded to Campeachy sound, off Yucatan, fished there for 8 days, and started back for Havana with a cargo of about 10,000 pounds of live fish. On April 26, 1898, near Havana, she was stopped by the US steamship Cincinnati, and was warned not to go into Havana, but was told that she would be allowed to land at Bahia Honda. She then changed her course, and put for Bahia Honda, but on the next morning, when near that port, was captured by the US steamship Dolphin. The fishing vessels were brought by their captors into Key West. A libel for the condemnation of each vessel and her cargo as prize of war was there filed on Apr. 27, 1898; a claim was interposed by her master on behalf of himself and the other members of the crew, and of her owner; evidence was taken, showing the facts above stated. On May 30, 1898, a final decree of condemnation and sale was entered, 'the court not being satisfied that as a matter of law, without any ordinance, treaty, or proclamation, fishing vessels of
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this class are exempt from seizure.' Each was sold by auction; the Paquete Habana for $490; and the Lola for $800. There was no other evidence in the record of the value of either vessel or of her cargo. Issue of Jurisdiction: US Attorney General Hoyt, et al. argued: This court has no jurisdiction to hear and determine these appeals, because the matter in dispute in either case does not exceed the sum or value of $2,000, and the district judge has not certified that the adjudication involves a question of general importance. The suggestion is founded on 695 of the Revised Statutes, which provides that 'an appeal shall be allowed to the Supreme Court from all final decrees of any district court in prize causes, where the matter in dispute, exclusive of costs, exceeds the sum or value of two thousand dollars; and shall be allowed, without reference to the value of the matter in dispute, on the certificate of the district judge that the adjudication involves a question of general importance.' The Court said: The judiciary acts of the US, for a century after the organization of the government under the Constitution, did impose pecuniary limits upon appellate jurisdiction. The Court then listed the numerous increases in the pecuniary limits of appellate courts. BASIS FOR JURISDICTION: NATURE OF CASES, NOT PECUNIARY AMOUNT INVOLVED. As to cases of admiralty and maritime jurisdiction, including prize causes, the act of Mar. 3, 1891, established the circuit courts of appeals, and created a new and complete scheme of appellate jurisdiction, depending upon the nature of the different cases, rather than upon the pecuniary amount involved. By that act, as this court has declared, the entire appellate jurisdiction from the circuit and district courts of the US was distributed, 'according to the scheme of the act,' between this court and the circuit courts of appeals thereby established, 'by designating the classes of cases' of which each of these courts was to have final jurisdiction. APPEAL TO THE SUPREME COURT. Sec. 5 provides that 'appeals or writs of error may be taken from the district courts, or from the existing circuit courts, direct to the Supreme Court, in the following cases:' 'In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision.' This clause includes 'any case,' without regard to amount, in which the jurisdiction of the court below is in issue; and differs in this respect from the act of 1889, above cited. 'From the final sentences and decrees in prize causes.' This clause includes the whole class of 'the final sentences and decrees in prize causes,' and omits all provisions of former acts regarding amount in controversy, or certificate of a district judge. 'In cases of conviction of a capital or otherwise infamous crime.' This clause looks to the nature of the crime, and not to the extent of the punishment actually imposed. A crime which might have been punished by imprisonment in a penitentiary is an infamous crime, even if the sentence actually pronounced is of a small fine only. Consequently, such a sentence for such a crime was subject to the appellate jurisdiction of this court, under this clause, until this jurisdiction, so far as regards infamous crimes, was transferred to the circuit court of appeals by the act of Jan. 20, 1897. 'In any case that involves the construction or application of the Constitution of the United States.' 'In any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question.' 'In any case in which the Constitution or law of a state is claimed to be in contravention of the Constitution of the United States.' FEDERAL QUESTIONS. Each of these last 3 clauses, again, includes 'any case' of the class mentioned. They all relate to what are commonly called Federal questions, and cannot reasonably be construed to have intended that the appellate jurisdiction of this court over such questions should be restricted by any pecuniary limit,-especially in their connection with the succeeding sentence of the same section: 'Nothing in this act shall affect the jurisdiction of the SC in cases appealed from the highest court of a state, nor the construction of the statute providing for review of such cases.' Writs of error from this court to review the judgments of the highest court of a state upon such questions have never been subject to any pecuniary limit (Act of Sept. 24, 1789). QUESTIONS OF LAW, WRIT OF CERTIORARI. By 6 of the act of 1891 this court is relieved of much of the appellate jurisdiction that it had before; the appellate jurisdiction from the district and circuit courts 'in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law,' is vested in the circuit court of appeals; and its decisions in admiralty cases, as well as in cases arising under the criminal laws, and in certain other classes of cases, are made final, except that that court may certify to this court questions of law, and that this court may order up the whole case by writ of certiorari. It is settled that the words 'unless otherwise provided by law,' in this section, refer only to provisions of the same act, or of contemporaneous or subsequent acts, and do not include provisions of earlier statutes (Lau Ow Bew v. US).
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US v. RIDER. From the beginning of this century until the passage of the act of 1891, both in civil and in criminal cases, questions of law upon which 2 judges of the circuit court were divided in opinion might be certified by them to this court for decision. But in US v. Rider it was adjudged by this court that the act of 1891 had superseded and repealed the earlier acts authorizing questions of law to be certified from the circuit court to this court; and the grounds of that adjudication sufficiently appear by the statement of the effect of the act of 1891 in two passages of that opinion: 'Appellate jurisdiction was given in all criminal cases by writ of error either from this court or from the circuit courts of appeals, and in all civil cases by appeal or error, without regard to the amount in controversy, except as to appeals or writs of error to or from the circuit courts of appeals in cases not made final as specified in 6.' 'It is true that repeals by implication are not favored, but we cannot escape the conclusion that, tested by its scope, its obvious purpose, and its terms, the act of Mar. 3, 1891, covers the whole subject-matter under consideration, and furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error, or certificate.' That judgment was thus rested upon 2 successive propositions: First, that the act of 1891 gives appellate jurisdiction, either to this court or to the circuit court of appeals, in all criminal cases, and in all civil cases 'without regard to the amount in controversy;' second, that the act, by its terms, its scope, and its obvious purpose, 'furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error, or certificate.' Held: We are of opinion that the act of 1891, upon its face, read in the light of settled rules of statutory construction and of the decisions of this court, clearly manifests the intention of Congress to cover the whole subject of the appellate jurisdiction from the district and circuit courts of the US, so far as regards in what cases, as well as to what courts, appeals may be taken, and to supersede and repeal, to this extent, all the provisions of earlier acts of Congress, including those that imposed pecuniary limits upon such jurisdiction, and, as part of the new scheme, to confer upon this court jurisdiction of appeals from all final sentences and decrees in prize causes, without regard to the amount in dispute, and without any certificate of the district judge as to the importance of the particular case. Issue 2: Whether, upon the facts appearing in these records, the fishing smacks were subject to capture by the armed vessels of the United States during the recent war with Spain? Held/Ratio: The capture was unlawful and without probable cause, on the ground that, as a rule of international law, fishing vessels are exempt from capture as a prize of war. The Court ordered that the decree of the District Court be reversed, and the proceeds of the sale of the vessel, together with the proceeds of any sale of her cargo, be restored to the claimant, with damages and costs. EXEMPTION FROM CAPTURE OF COAST FISHING VESSELS. By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. The Court discussed the history of the custom exempting coastal fishers from capture beginning with King Henry IV’s orders to his admirals in 1403 to the relevant practices of France, Holland, Prussia, and the US. ENGLAND. The earliest acts of any government on the subject, either emanated from, or were approved by, a King of England. In 1403 and 1406 Henry IV issued orders to his admirals and other officers, entitled 'Concerning Safety for Fishermen-De Securitate pro Piscatoribus.' By an order of Oct. 26, 1403, reciting that it was made pursuant to a treaty between himself and the King of France; and for the greater safety of the fishermen of either country, and so that they could be, and carry on their industry, the more safely on the sea, and deal with each other in peace; and that the French King had consented that English fishermen should be treated likewise,-it was ordained that French fishermen might, during the then pending season for the herring fishery, safely fish for herrings and all other fish, from the harbor of Gravelines and the island of Thanet to the mouth of the Seine and the harbor of Hautoune. And by an order of Oct. 5, 1406, he took into his safe conduct and under his special protection, guardianship, and defense, all and singular the fishermen of France, Flanders, and Brittany, with their fishing vessels and boats, everywhere on the sea, through and within his dominions, jurisdictions, and territories, in regard to their fishery, while sailing, coming, and going, and, at their pleasure, freely and lawfully fishing, delaying, or proceeding, and returning homeward with their catch of fish, without any molestation or hindrance whatever; and also their fish, nets, and other property and goods soever; and it was therefore ordered that such fishermen should not be interfered with, provided they should comport themselves well and properly, and should not, by color of these presents, do or attempt, or presume to do or attempt, anything that could prejudice the King, or his Kingdom of England, or his subjects (Rymer's Foedera). TREATY OF CALAIS. The treaty made Oct. 2, 1521, between the Emperor Charles V and Francis I of France, through their ambassadors, recited that a great and fierce war had arisen between them, because of which there had been, both by land and by
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sea, frequent depredations and incursions on either side, to the grave detriment and intolerable injury of the innocent subjects of each; and that a suitable time for the herring fishery was at hand, and, by reason of the sea being beset by the enemy, the fishermen did not dare to go out, whereby the subject of their industry, bestowed by heaven to allay the hunger of the poor, would wholly fail for the year, unless it were otherwise provided,-Quo fit, ut piscaturoe commoditas, ad pauperum levandam famen a coelesti numine concessa, cessare hoc anno cmnino debeat, nisi aliter provideatur. And it was therefore agreed that the subjects of each sovereign, fishing in the sea, or exercising the calling of fishermen, could and might, until the end of the next January, without incurring any attack, depredation, molestation, trouble, or hindrance soever, safely and freely, everywhere in the sea, take herrings and every other kind of fish, the existing war by land and sea notwithstanding; and, further, that during the time aforesaid no subject of either sovereign should commit, or attempt or presume to commit, any depredation, force, violence, molestation, or vexation to or upon such fishermen or their vessels, supplies, equipments, nets, and fish, or other goods soever truly appeartaining to fishing. The treaty was made at Calais, then an English possession. It recites that the ambassadors of the 2 sovereigns met there at the earnest request of Henry VIII and with his countenance, and in the presence of Cardinal Wolsey, his chancellor and representative. And towards the end of the treaty it is agreed that the said King and his said representative, 'by whose means the treaty stands concluded, shall be conservators of the agreements therein, as if thereto by both parties elected and chosen' (Dumont, Corps Diplomatique). The herring fishery was permitted, in time of war, by French and Dutch edicts in 1536. FRANCE, from remote times, set the example of alleviating the evils of war in favor of all coast fishermen. In the compilation entitled 'Us et Coutumes de la Mer,' published by Cleirac in 1661, and in the third part thereof, containing 'Maritime or Admiralty Jurisdiction-as well in time of peace, as in time of war,' article 80 is as follows: 'The admiral may in time of war accord fishing trucestresves pescheresses-to the enemy and to his subjects; provided that the enemy will likewise accord them to Frenchmen' (Cleirac). Under this article, reference is made to articles 49 and 79 respectively of the French ordinances concerning the admiralty in 1543 and 1584, of which it is but a reproduction (Pardessus, Collection de Lois Maritimes). And Cleirac adds, in a note, this quotation from Froissart's Chronicles: 'Fishermen on the sea, whatever war there were in France and England, never did harm to one another; so they are friends, and help one another at need,-Pescheurs sur mer, quelque guerre qui soit en France et Angleterre, jamais ne se firent mal l'un a l'autre; aincois sont amis, et s'aydent l'un a l'autre au besoin.' The same custom would seem to have prevailed in France until towards the end of the seventeenth century. In 1675, Louis XIV and the States General of Holland by mutual agreement granted to Dutch and French fishermen the liberty, undisturbed by their vessels of war, of fishing along the coats of France, Holland, and England (D'Hauterive et De Cussy, Traites de Commerce). But by the ordinances of 1681 and 1692 the practice was discontinued, because, Valin says, of the faithless conduct of the enemies of France, who, abusing the good faith with which she had always observed the treaties, habitually carried off her fishermen, while their own fished in safety (Valin sur l'Ordonnance de la Marine). UNITED STATES. The doctrine which exempts coast fishermen, with their vessels and cargoes, from capture as prize of war, has been familiar to the United States from the time of the War of Independence. On June 5, 1779, Louis XVI, our ally in that war, addressed a letter to his admiral, informing him that the wish he had always had of alleviating, as far as he could, the hardships of war, had directed his attention to that class of his subjects which devoted itself to the trade of fishing, and had no other means of livelihood; that he had thought that the example which he should give to his enemies, and which could have no other source than the sentiments of humanity which inspired him, would determine them to allow to fishermen the same facilities which he should consent to grant; and that he had therefore given orders to the commanders of all his ships not to disturb English fishermen, nor to arrest their vessels laden with fresh fish, even if not caught by those vessels; provided they had no offensive arms, and were not proved to have made any signals creating a suspicion of intelligence with the enemy; and the admiral was directed to communicate the King's intentions to all officers under his control. By a royal order in council of Nov. 6, 1780, the former orders were confirmed; and the capture and ransom, by a French cruiser, of The John and Sarah, an English vessel, coming from Holland, laden with fresh fish, were pronounced to be illegal. EXEMPTION ORDERED. Among the standing orders made by Sir James Marriott, Judge of the English High Court of Admiralty, was one of Apr. 11, 1780, by which it was 'ordered that all causes of prize of fishing boats or vessels taken from the enemy may be consolidated in one monition, and one sentence or interlocutory, if under 50 tons burthen, and not more than 6 in number' (Marriott's Formulary). But by the statements of his successor, and of both French and English writers, it appears that England, as well as France, during the American Revolutionary War, abstained from interfering with the coast fisheries (The Young Jacob and Johanna). IN THE TREATY OF 1785 BETWEEN THE US AND PRUSSIA, article 23 (which was proposed by the American Commissioners, John Adams, Benjamin Franklin, and Thomas Jefferson, and is said to have been drawn up by Franklin), provided that, if war should arise
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between the contracting parties, 'all women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers, and fishermen, unarmed and inhabiting unfortified towns, villages, or places, and in general all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the enemy, into whose power, by the events of war, they may happen to fall; but if anything is necessary to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price' (Wheaton, History of the Law of Nations). Here was the clearest exemption from hostile molestation or seizure of the persons, occupations, houses, and goods of unarmed fishermen inhabiting unfortified places. The article was repeated in the later treaties between the US and Prussia of 1799 and 1828. And Dana, in a note to his edition of Wheaton's International Laws, says: 'In many treaties and decrees, fishermen catching fish as an article of food are added to the class of persons whose occupation is not to be disturbed in war.' EXEMPTION VIOLATIONS. Since the US became a nation, the only serious interruptions, so far as we are informed, of the general recognition of the exemption of coast fishing vessels from hostile capture, arose out of the mutual suspicions and recriminations of England and France during the wars of the French Revolution. In the first years of those wars, England having authorized the capture of French fishermen, a decree of the French National Convention of Oct. 2, 1793, directed the executive power 'to protest against this conduct, theretofore without example; to reclaim the fishing boats seized; and, in case of refusal, to resort to reprisals.' But in July, 1796, the Committee of Public Safety ordered the release of English fishermen seized under the former decree, 'not considering them as prisoners of war' (La Nostra Segnora de la Piedad [1801]). On Jan. 24, 1798, the English government by express order instructed the commanders of its ships to seize French and Dutch fishermen with their boats (Martens, Recueil des Traites). After the promulgation of that order, Lord Stowell (then Sir William Scott) in the High Court of Admiralty of England condemned small Dutch fishing vessels as prize of war. In one case the capture was in April, 1798, and the decree was made Nov. 13, 1798 (The Young Jacob and Johanna). In another case the decree was made Aug. 23, 1799 (The Noydt Gedacht). FRANCE REVERTS TO EXEMPTION. On Mar. 27, 1800, the French government, unwilling to resort to reprisals, re-enacted the orders given by Louis XVI. In 1780, it prohibited any seizure by the French ships of English fishermen, unless armed or proved to have made signals to the enemy. On May 30, 1800, the English government, having received notice of that action of the French government, revoked its order of Jan. 24, 1798. But soon afterward the English government complained that French fishing boats had been made into fireboats at Flushing, as well as that the French government had impressed and had sent to Brest, to serve in its flotilla, French fishermen and their boats, even those whom the English had released on condition of their not serving; and on Jan. 21, 1801, summarily revoked its last order, and again put in force its order of Jan. 24, 1798. On Feb. 16, 1801, Napoleon Bonaparte, then First Consul, directed the French commissioner at London to return at once to France, first declaring to the English government that its conduct, 'contrary to all the usages of civilized nations, and to the common law which governs them, even in time of war, gave to the existing war a character of rage and bitterness which destroyed even the relations usual in a loyal war,' and 'tended only to exasperate the 2 nations, and to put off the term of peace;' and that the French government, having always made it 'a maxim to alleviate as much as possible the evils of war, could not think, on its part, of rendering wretched fishermen victims of a prolongation of hostilities, and would abstain from all reprisals.' EXEMTION AGAIN RESPECTED. On Mar. 16, 1801, the Addington Ministry, in England, revoked the orders of its predecessors against the French fishermen; maintaining, however, that 'the freedom of fishing was nowise founded upon an agreement, but upon a simple concession;' that 'this concession would be always subordinate to the convenience of the moment,' and that 'it was never extended to the great fishery, or to commerce in oysters or in fish.' And the freedom of the coast fisheries was again allowed on both sides (Martens). The Court then surveys the measures and countermeasures taken by both governments (resort to national laws, executive decrees, acts of military commanders and judgments of national tribumals). LORD STOWELL'S JUDGMENT IN THE YOUNG JACOB AND JOHANNA, was much relied on by the counsel for the US. The vessel there condemned is described in the report as 'a small Dutch fishing vessel taken April, 1798, on her return from the Dogger bank to Holland;' and Lord Stowell said: 'In former wars it has not been usual to make captures of these small fishing vessels; but this rule was a rule of comity only, and not of legal decision; it has prevailed from views of mutual accommodation between neighboring countries, and from tenderness to a poor and industrious order of people. In the present war there has, I presume, been sufficient reason for changing this mode of treatment; and as they are brought before me for my judgment they must be referred to the general principles of this court; they fall under the character and description of the last class of cases; that is, of ships constantly and exclusively employed in the enemy's trade.' And he added: 'It is a further satisfaction to me, in giving this judgment, to observe that
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the facts also bear strong marks of a false and fraudulent transaction.' Both the capture and the condemnation were within a year after the order of the English government of Jan. 24, 1798, instructing the commanders of its ships to seize French and Dutch fishing vessels, and before any revocation of that order. Lord Stowell's judgment shows that his decision was based upon the order of 1798, as well as upon strong evidence of fraud. EXEMPTION WAS ON BASED ON COMITY BUT HAS RIPENED INTO A SETTLED RULE OF INT’L LAW. The opinion begins by admitting the known custom in former wars not to capture such vessels; adding, however, 'but this was a rule of comity only, and not of legal decision.' Assuming the phrase 'legal decision' to have been there used, in the sense in which courts are accustomed to use it, as equivalent to 'judicial decision,' it is true that, so far as appears, there had been no such decision on the point in England. The word 'comity' was apparently used by Lord Stowell as synonymous with courtesy or goodwill. But the period of a hundred years which has since elapsed is amply sufficient to have enabled what originally may have rested in custom or comity, courtesy or concession, to grow, by the general assent of civilized nations, into a settled rule of international law. As well said by Sir James Mackintosh: 'In the present century a slow and silent, but very substantial, mitigation has taken place in the practice of war; and in proportion as that mitigated practice has received the sanction of time it is raised from the rank of mere usage, and becomes part of the law of nations' (Discourse on the Law of Nations). THE FRENCH PRIZE TRIBUNALS, PRO-EXEMPTION. Both before and after Lord Stowell's decision, they took a wholly different view of the general question. In 1780, an order in council of Louis XVI had declared illegal the capture by a French cruiser of The John and Sarah, an English vessel coming from Holland, laden with fresh fish. And on May 17, 1801, where a Portuguese fishing vessel, with her cargo of fish, having no more crew than was needed for her management and for serving the nets, on a trip of several days, had been captured in April, 1801, by a French cruiser, 3 leagues off the coast of Portugal, the Council of Prizes held that the capture was contrary to 'the principles of humanity and the maxims of international law,' and decreed that the vessel, with the fish on board, or the net proceeds of any that had been sold, should be restored to her master (La Nostra Segnora de la Piedad). ENGLAND AGREED. The English government more than once unqualifiedly prohibited the molestation of fishing vessels employed in catching and bringing to market fresh fish. On May 23, 1806, it was 'ordered in council that all fishing vessels under Prussian and other colors, and engaged for the purpose of catching fish and conveying them fresh to market, with their crews, cargoes, and stores, shall not be molested on their fishing voyages and bringing the same to market; and that no fishing vessels of this description shall hereafter be molested. And the Right Honorable the Lords Commissioners of His Majesty's Treasury, the Lords Commissioners of the Admiralty, and the Judge of the High Court of Admiralty, are to give the necessary directions herein as to them may respectively appertain.' Again, in the order in council of May 2, 1810, which directed that 'all vessels which shall have cleared out from any port so far under the control of France or her allies as that British vessels may not freely trade thereat, and which are employed in the whale fishery, or other fishery of any description, save as hereinafter excepted, and are returning, or destined to return either to the port from whence they cleared, or to any other port or place at which the British flag may not freely trade, shall be captured and condemned together with their stores and cargoes, as prize to the captors,' there were excepted 'vessels employed in catching and conveying fish fresh to market, such vessels not being fitted or provided for the curing of fish.' US-MEXICO WAR. In 1846, the US recognized the exemption of coast fishing boats from capture. In proof of this, counsel has referred to records of the Navy Department, which this court is clearly authorized to consult upon such a question (Jones v. US). Commodore Conner, commanding the Home Squadron blockading the east coast of Mexico, on May 14, 1846, wrote a letter from the ship Cumberland, off Brazos Santiago, near the southern point of Texas, to Mr. Bancroft, the Secretary of the Navy, inclosing a copy of the commodore's 'instructions to the commanders of the vessels of the Home Squadron, showing the principles to be observed in the blockade of the Mexican ports,' one of which was that 'Mexican boats engaged in fishing on any part of the coast will be allowed to pursue their labors unmolested;' and that on June 10, 1846, those instructions were approved by the Navy Department, of which Mr. Bancroft was still the head, and continued to be until he was appointed Minister to England in September following. Although Commodore Conner's instructions and the Department's approval thereof do not appear in any contemporary publication of the government, they evidently became generally known at the time, or soon after; for it is stated in several treatises on international law that the US in the Mexican war permitted the coast fishermen of the enemy to continue the free exercise of their industry (Ortolan).

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U.S. ATTY. GEN. ARGUES AGAINST EXEMPTION. As qualifying the effect of those statements, the counsel for the US relied on a proclamation of Commodore Stockton, commanding the Pacific Squadron, dated Aug. 20, 1846, directing officers under his command to proceed immediately to blockade the ports of Mazatlan and San Blas, on the west coast of Mexico, and saying to them, 'All neutral vessels that you may find there you will allow twenty days to depart; and you will make the blockade absolute against all
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vessels, except armed vessels of neutral nations. You will capture all vessels under the Mexican flag that you may be able to take' (Navy Reports of 1846). But there is nothing to show that Commodore Stockton intended, or that the government approved, the capture of coast fishing vessels. COURT FINDS EXEMPTION UPHELD. On the contrary, General Halleck (International Law, or Rules Regulating the Intercourse of States in Peace and War, 1861), says that he began that work, during the war between the US and Mexico, 'while serving on the staff of the commander of the Pacific Squadron' and 'often required to give opinions on questions of international law growing out of the operations of the war.' Had the practice of the blockading squadron on the west coast of Mexico during that war, in regard to fishing vessels, differed from that approved by the Navy Department on the east coast, Halleck could hardly have failed to mention it, when stating the prevailing doctrine upon the subject as follows: 'Fishing boats have also, as a general rule, been exempted from the effects of hostilities. As early as 1521, while war was raging between Charles V. and Francis, ambassadors from these 2 sovereigns met at Calais, then English, and agreed that, whereas the herring fishery was about to commence, the subjects of both belligerents engaged in this pursuit should be safe and unmolested by the other party, and should have leave to fish as in time of peace. In the war of 1800, the British and French governments issued formal instructions exempting the fishing boats of each other's subjects from seizure. This order was subsequently rescinded by the British government, on the alleged ground that some French fishing boats were equipped as gunboats, and that some French fishermen who had been prisoners in England had violated their parole not to serve, and had gone to join the French fleet at Brest. Such excuses were evidently mere pretexts; and after some angry discussions had taken place on the subject the British restriction was withdrawn, and the freedom of fishing was again allowed on both sides. French writers consider this exemption as an established principle of the modern law of war, and it has been so recognized in the French courts, which have restored such vessels when captured by French cruisers'. Halleck later said in an abridgment of a statement as to fishing boats: 'Fishing boats have also, as a general rule, been exempted from the effects of hostilities. French writers consider this exemption as an established principle of the modern law of war, and it has been so recognized in the French courts, which have restored such vessels when captured by French cruisers.’ PEACE TREATY: EXEMPTION. In the treaty of peace between the US and Mexico, in 1848, were inserted the very words of the earlier treaties with Prussia, already quoted, forbidding the hostile molestation or seizure in time of war of the persons, occupations, houses, or goods of fishermen. FRANCE, ENGLAND, RUSSIA. France in the Crimean war in 1854, and in her wars with Italy in 1859 and with Germany in 1870, by general orders, forbade her cruisers to trouble the coast fisheries, or to seize any vessel or boat engaged therein, unless naval or military operations should make it necessary (Calvo). In her alliance with France and Italy, England did not follow the same line of conduct; and that her cruisers in the Sea of Azof destroyed the fisheries, nets, fishing implements, provisions, boats, and even the cabins of inhabitants of the coast. And a Russian writer on prize law remarks that those depredations, 'having brought ruin on poor fishermen and inoffensive traders, could not but leave a painful impression on the minds of the population, without impairing in the least the resources of the Russian government' (Katchenovsky). But the contemporaneous reports of the English naval officers put a different face on the matter, by stating that the destruction in question was part of a military measure, conducted with the cooperation of the French ships, and pursuant to instructions of the English admiral 'to clear the seaboard of all fish stores, all fisheries and mills, on a scale beyond the wants of the neighboring population, and indeed of all things destined to contribute to the maintenance of the enemy's army in the Crimea;' and that the property destroyed consisted of large fishing establishments and storehouses of the Russian government, numbers of heavy launches, and enormous quantities of nets and gear, salted fish, corn, and other provisions intended for the supply of the Russian army (United Service Journal of 1855). JAPAN. The Empire of Japan (the last state admitted into the rank of civilized nations), by an ordinance promulgated at the beginning of its war with China in Aug. 1894, established prize courts, and ordained that 'the following enemy's vessels are exempt from detention,' including in the exemption 'boats engaged in coast fisheries,' as well as 'ships engaged exclusively on a voyage of scientific discovery, philanthrophy, or religious mission' (Takahashi, International Law). CUSTOM & USAGES OF NATIONS REFERRED TO IN ABSENCE OF RULES. International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is (Hilton v. Guyot).
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HOW TO RECOGNIZE CUSTOM? WRITINGS. Wheaton places among the principal sources international law 'text-writers of authority, showing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent.' As to these he forcibly observes: 'Without wishing to exaggerate the importance of these writers, or to substitute, in any case, their authority for the principles of reason, it may be affirmed that they are generally impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary principles.' ESTABLISHED WRITERS. Chancellor Kent says: 'In the absence of higher and more authoritative sanctions, the ordinances of foreign states, the opinions of eminent statesmen, and the writings of distinguished jurists, are regarded as of great consideration on questions not settled by conventional law. In cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their maxims; and no civilized nation that does not arrogantly set all ordinary law and justice at defiance will venture to disregard the uniform sense of the established writers on international law.' Some leading French treatises on international law, which deal with the question now before us, not as one of the law of France only, but as one determined by the general consent of civilized nations, say: 'Enemy ships,' say Pistoye and Duverdy (Treatise on Maritime Prizes, 1855), 'are good prize. Not all, however; for it results from the unanimous accord of the maritime powers that an exception should be made in favor of coast fishermen. Such fishermen are respected by the enemy so long as they devote themselves exclusively to fishing.' De Cussy, (Phases and Leading Cases of the Maritime Law of Nations,-Phases et Causes Celebres du Droit Maritime des Nations, 1856): 'in time of war the freedom of fishing is respected by belligerents; fishing boats are considered as neutral; in law, as in principle, they are not subject either to capture or to confiscation;' and, he will state 'several facts and several decisions which prove that the perfect freedom and neutrality of fishing boats are not illusory.' Besides references to the edicts and decisions in France during the French Revolution, is this general statement: 'If one consulted only positive international law,'-le droit des gens positif,(by which is evidently meant international law expressed in treaties, decrees, or other public acts, as distinguished from what may be implied from custom or usage) 'fishing boats would be subject, like all other trading vessels, to the law of prize; a sort of tacit agreement among all European nations frees them from it, and several official declarations have confirmed this privilege in favor of 'a class of men whose hard and ill-rewarded labor, commonly performed by feeble and aged hands, is so foreign to the operations of war.’ Ortolan, after stating the general rule that the vessels and cargoes of subjects of the enemy are lawful prize, says: 'Nevertheless, custom admits an exception in favor of boats engaged in the coast fishery; these boats, as well as their crews, are free from capture and exempt from all hostilities. The coast-fishing industry is, in truth, wholly pacific, and of much less importance in regard to the national wealth that it may produce than maritime commerce or the great fisheries. Peaceful and wholly inoffensive, those who carry it on, among whom women are often seen, may be called the harvesters of the territorial seas, since they confine themselves to gathering in the products thereof; they are for the most part poor families who seek in this calling hardly more than the means of gaining their livelihood.' Again, after observing that there are very few solemn public treaties which make mention of the immunity of fishing boats in time of war, he says: 'From another point of view the custom which sanctions this immunity is not so general that it can be considered as making an absolute international rule; but it has been so often put in practice, and, besides, it accords so well with the rule in use in wars on land, in regard to peasants and husbandmen, to whom coast fishermen may be likened, that it will doubtless continue to be followed in maritime wars to come.' MOST ESTEEMED WRITER: CALYO. No international jurist of the present day has a wider or more deserved reputation than Calvo, who, though writing in French, is a citizen of the Argentine Republic, employed in its diplomatic service abroad. Calyo observes that the international authority of decisions in particular cases by the prize courts of France, of England, and of the US is lessened by the fact that the principles on which they are based are largely derived from the internal legislation of each country; and yet the peculiar character of maritime wars, with other considerations, gives to prize jurisprudence a force and importance reaching beyond the limits of the country in which it has prevailed. He therefore proposes here to group together a number of particular cases proper to serve as precedents for the solution of grave questions of maritime law in regard to the capture of private property as prize of war. Immediately, he goes on to say: 'Notwithstanding the hardships to which maritime wars subject private property, notwithstanding the extent of the recognized rights of belligerents, there are generally exempted, from seizure and capture, fishing vessels.' In the next section he adds: 'This exception is perfectly justiciable,-Cette exception est parfaitement justiciable,'-that is to say, belonging to judicial jurisdiction or cognizance (Littre, Dist. voc. Justiciable; Hans v. Louisiana). Calvo then quotes Ortolan's description, above cited, of the nature of the coast-fishing industry; and proceeds to refer, in detail, to some of the French precedents, to the acts of the French and English governments in the times of Louis XVI and of the French Revolution, to the position of the US in the war with Mexico, and of France in later wars, and to the action of British cruisers in the Crimean war. And he concludes his discussion of the
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subject, by affirming the exemption of the coast fishery, and pointing out the distinction in this regard between the coast fishery and what he calls the great fishery, for cod, whales, or seals, as follows: 'The privilege of exemption from capture, which is generally acquired by fishing vessels plying their industry near the coasts, is not extended in any country to ships employed on the high sea in what is called the great fishery, such as that for the cod, for the whale or the sperm whale, or for the seal or sea calf. These ships are, in effect, considered as devoted to operations which are at once commercial and industrial,-Ces navires sont en effect consideres comme adonnes a des operations a la fois commerciales et industrielles.' The distinction is generally recognized (Ortolan). Modern German books on international law, cited by the counsel for the appellants, treat the custom by which the vessels and implements of coast fishermen are exempt from seizure and capture as well established by the practice of nations (Heffter). De Boeck, (Enemy Private Property under Enemy's Flag, 1882), and the only continental treatise cited by the counsel for the US: 'A usage very ancient, if not universal, withdraws from the right of capture enemy vessels engaged in the coast fishery. The reason of this exception is evident; it would have been too hard to snatch from poor fishermen the means of earning their bread. . . . The exemption includes the boats, the fishing implements, and the cargo of fish. 'It is to be observed that very few treatises sanction in due form this immunity of the coast fishery. . . . There is, then, only a custom. But what is its character? Is it so fixed and general that it can be raised to the rank of a positive and formal rule of international law?' After discussing the statements of other writers, he approves the opinion of Ortolan, and says that, at bottom, it differs by a shade only from that formulated by Calvo and by some of the German jurists, and that 'it is more exact, without ignoring the imperative character of the humane rule in question,-elle est plus exacte, sans meconnaitre le caractere imperatif de la regle d'humanite dont il s'agit.' He defines the limits of the rule as follows: 'But the immunity of the coast fishery must be limited by the reasons which justify it. The reasons of humanity and of harmlessness-les raisons d'humanite et d'innocuite-which militate in its favor do not exist in the great fishery, such as the cod fishery; ships engaged in that fishery devote themselves to truly commercial operations, which employ a large number of seamen. And these same reasons cease to be applicable to fishing vessels employed for a warlike purpose, to those which conceal arms, or which exchange signals of intelligence with ships of war; but only those taken in the fact can be rigorously treated; to allow seizure by way of preventive would open the door to every abuse, and would be equivalent to a suppression of the immunity.' RECENT WRITERS: UNSURE IT IS A RULE BUT IS CERTAINLY PRACTICED. Two recent English text-writers cited at the bar (influenced by what Lord Stowell said a century since) hesitate to recognize that the exemption of coast fishing vessels from capture has now become a settled rule of international law. Yet they both admit that there is little real difference in the views, or in the practice, of England and of other maritime nations; and that no civilized nation at the present day would molest coast fishing vessels so long as they were peaceably pursuing their calling and there was no danger that they or their crews might be of military use to the enemy. Hall says: 'In the foregoing facts there is nothing to show that much real difference has existed in the practice of the maritime countries. England does not seem to have been unwilling to spare fishing vessels so long as they are harmless, and it does not appear that any state has accorded them immunity under circumstances of inconvenience to itself. It is likely that all nations would now refrain from molesting them as a general rule, and would capture them so soon as any danger arose that they or their crews might be of military use to the enemy; and it is also likely that it is impossible to grant them a more distinct exemption.' So, T. J. Lawrence, says: 'The difference between the English and the French view is more apparent than real; for no civilized belligerent would now capture the boats of fishermen plying their avocation peaceably in the territorial waters of their own state; and no jurist would seriously argue that their immunity must be respected if they were used for warlike purposes, as were the smacks belonging to the northern ports of France when Great Britain gave the order to capture them in 1800.' MINOR WRITERS CONCUR THAT EXEMPTION IS THE RULE. Jan Helenus Ferguson, Netherlands Minister to China (Manual of International Law for the Use of Navies, Colonies, and Consulates [1882]), writes: 'An exception to the usage of capturing enemy's private vessels at sea is the coast fishery. . . . This principle of immunity from capture of fishing boats is generally adopted by all maritime powers, and in actual warfare they are universally spared so long as they remain harmless.’ Ferdinand Attlmayr, captain in the Austrian Navy (Manual for Naval Officers, 1872), says: 'Regarding the capture of enemy property, an exception must be mentioned, which is a universal custom. Fishing vessels which belong to the adjacent coast, and whose business yields only a necessary livelihood, are, from considerations of humanity, universally excluded from capture.' Ignacio de Megrin, First Official of the Spanish Board of Admiralty (Elementary Treatise on Maritime International Law [1873]): 'It remains to be added that the custom of all civilized peoples excludes from capture and from all kind of hostility the fishing vessels of the enemy's coasts, considering this industry as absolutely inoffensive, and deserving, from its hardships and usefulness, of this favorable exception. It has been thus expressed in very many international conventions, so that it can be deemed an incontestable principle of law, at least among enlightened nations.' Carlos Testa, captain in the Portugese Navy and professor in the naval school at Lisbon (Public International Law [1886]): 'Nevertheless, in this, customary law establishes an exception of immunity in favor of coast fishing vessels. Fishing is so peaceful an
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industry, and is generally carried on by so poor and so hardworking a class of men, that it is likened, in the territorial waters of the enemy's country, to the class of husbandmen who gather the fruits of the earth for their livelihood. The examples and practice generally followed establish this humane and beneficent exception as an international rule, and this rule may be considered as adopted by customary law and by all civilized nations.' Pasquale Fiore, (Public International Law [1885-6]), said: 'The vessels of fishermen have been generally declared exempt from confiscation, because of the eminently peaceful object of their humble industry, and of the principles of equity and humanity. The exemption includes the vessel, the implements of fishing, and the cargo resulting from the fishery. This usage, eminently humane, goes back to very ancient times; and although the immunity of the fishery along the coasts may not have been sanctioned by treaties, yet it is considered to-day as so definitely established that the inviolability of vessels devoted to that fishery is proclaimed by the publicists as a positive rule of international law, and is generally respected by the nations. Consequently we shall lay down the following rule: (a) Vessels belonging to citizens of the enemy state, and devoted to fishing along the coasts, cannot be subject to capture; (b) Such vessels, however, will lose all right of exemption, when employed for a warlike purpose; (c) there may, nevertheless, be subjected to capture vessels devoted to the great fishery in the ocean, such as those employed in the whale fishery, or in that for seals or sea calves.' RATIO: THROUGH CONSENT, TREATIES OR OTHER PUBLIC ACTS, A RULE OF INT’L LAW IS THAT UNARMED COAST FISHING VESSELS, CREWS, SUPPLIES & CARGO ARE EXEMPT FROM CAPTURE AS PRIZE OF WAR. This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent states, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war. EXCEPTION TO THE EXEMPTION: AIDING THE ENEMY & VESSELS ON THE HIGH SEAS. The exemption, of course, does not apply to coast fishermen or their vessels if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way. Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales or seals or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce. COURT BOUND TO TAKE JUDICIAL NOTICE. This rule of international law is one which prize courts administering the law of nations are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter. Calvo, in a passage already quoted, distinctly affirms that the exemption of coast fishing vessels from capture is perfectly justiciable, or, in other words, of judicial jurisdiction or cognizance. Nor are judicial precedents wanting in support of the view that this exemption, or a somewhat analogous one, should be recognized and declared by a prize court. By the practice of all civilized nations, vessels employed only for the purposes of discovery or science are considered as exempt from the contingencies of war, and therefore not subject to capture. It has been usual for the government sending out such an expedition to give notice to other powers; but it is not essential. THE NOVA SCOTIA CASE. In 1813, while the US were at war with England, an American vessel on her voyage from Italy to the US was captured by an English ship, and brought into Halifax, in Nova Scotia, and, with her cargo, condemned as lawful prize by the court of vice admiralty there. But a petition for the restitution of a case of paintings and engravings which had been presented to and were owned by the Academy of Arts in Philadelphia was granted by Dr. Croke, the judge of that court, who said: 'The same law of nations, which prescribes that all property belonging to the enemy shall be liable to confiscation, has likewise its modifications and relaxations of that rule. The arts and sciences are admitted amongst all civilized nations, as forming an exception to the severe rights of warfare, and as entitled to favor and protection. They are considered, not as the peculium of this or of that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species.' And he added that there had been 'innumerable cases of the mutual exercise of this courtesy between nations in former wars' (The Marquis de Somerueles, Stewart Adm. [Nova Scotia]). BOOKS CONFISCATION. In 1861, during the war of the Rebellion, a similar decision was made in the district court of the US for the eastern district of Pennsylvania, in regard to 2 cases of books belonging and consigned to a university in North Carolina. Judge Cadwalader, in ordering these books to be liberated from the custody of the marshal and restored to the agent of the university, said: 'Though this claimant, as the resident of a hostile district, would not be entitled to restitution of the subject of a commercial adventure in books, the purpose of the shipment in question gives to it a different character. The US, in prosecuting hostilities for
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the restoration of their constitutional authority, are compelled incidentally to confiscate property captured at sea, of which the proceeds would otherwise increase the wealth of that district. But the US is not at war with literature in that part of their territory.' He then referred to the decision in Nova Scotia, and to the French decisions upon cases of fishing vessels, as precedents for the decree which he was about to pronounce; and he added that, without any such precedents, he should have had no difficulty in liberating these books (The Amelia). IN BROWN V. US, there are expressions of Chief Justice Marshall which, taken by themselves, might seem inconsistent with the position above maintained, of the duty of a prize court to take judicial notice of a rule of international law, established by the general usage of civilized nations, as to the kind of property subject to capture. But the actual decision, and the leading reasons on which it was based, appear to confirm our position. The principal question there was whether personal property of a British subject, found on land in the US at the beginning of the last war with Great Britain, could lawfully be condemned as enemy's property, on a libel filed by the attorney of the US, without a positive act of Congress. The court said 'that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war.' In showing that the declaration of war did not, of itself, vest the Executive with authority to order such property to be confiscated, the Chief Justice relied on the modern usages of nations, saying: 'The universal practice of forbearing to seize and confiscate debts and credits, the principle universally received that the right to them revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of this property, but simply confers the right of confiscation,' and again: 'The modern rule, then, would seem to be that tangible property belonging to an enemy, and found in the country at the commencement of war, ought not to be immediately confiscated; and in almost every commercial treaty an article is inserted stipulating for the right to withdraw such property.' The decision that enemy property on land, which by the modern usage of nations is not subject to capture as prize of war, cannot be condemned by a prize court, even by direction of the Executive, without express authority from Congress, appears to us to repel any inference that coast fishing vessels, which are exempt by the general consent of civilized nations from capture, and which no act of Congress or order of the President has expressly authorized to be taken and confiscated, must be condemned by a prize court, for want of a distinct exemption in a treaty or other public act of the government. LAW OF THE SEA PREVAILS OVER INDIVIDUAL OPINION. Mr. Justice Strong, wrote: 'Undoubtedly no single nation can change the law of the sea. The law is of universal obligation and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation, or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which, when generally accepted, became of universal obligation.' 'This is not giving to the statutes of any nation extraterritorial effect. It is not treating them as general maritime laws; but it is recognition of the historical fact that by common consent of mankind these rules have been acquiesced in as of general obligation. Of that fact, we think, we may take judicial notice. Foreign municipal laws must indeed be proved as facts, but it is not so with the law of nations' (The Scotia). PRESENT CASE’S BACKGROUND. The position taken by the US during the recent war with Spain was quite in accord with the rule of international law, now generally recognized by civilized nations, in regard to coast fishing vessels. On Apr. 21, 1898, the Secretary of the Navy gave instructions to Admiral Sampson, commanding the North Atlantic Squadron, to 'immediately institute a blockade of the north coast of Cuba, extending from Cardenas on the east to Bahia Honda on the west' (Bureau of Navigation Report of 1898). The blockade was immediately instituted accordingly. On April 22, the President issued a proclamation declaring that the US had instituted and would maintain that blockade, 'in pursuance of the laws of the United States, and the law of nations applicable to such cases.' And by the act of Congress of April 25, 1898, chap. 189, it was declared that the war between the United States and Spain existed on that day, and had existed since and including April 21. RULES FOR CONDUCT OF WAR BY SEA ORDERED. On Apr. 26, 1898, the President issued another proclamation which, after reciting the existence of the war as declared by Congress, said: 'It being desirable that such war should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice.' This was followed by specific declarations of certain rules for the conduct of the war by sea, making no mention of fishing vessels. But the proclamation clearly manifests the general policy of the government to conduct the war in accordance with the principles of international law sanctioned by the recent practice of nations.
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ONLY VESSELS LIKELY TO AID THE ENEMY TO BE DETAINED. On Apr. 28, 1898 (after the capture of the 2 fishing vessels), Admiral Sampson telegraphed to the Secretary of the Navy as follows: 'I find that a large number of fishing schooners are attempting to get into Havana from their fishing grounds near the Florida reefs and coasts. They are generally manned by excellent seamen, belonging to the maritime inscription of Spain, who have already served in the Spanish navy, and who are liable to further service. As these trained men are naval reserves, most valuable to the Spaniards as artillerymen, either afloat or ashore, I recommend that they should be detained prisoners of war, and that I should be authorized to deliver them to the commanding officer of the army at Key West.' To that communication the Secretary of the Navy, on Apr. 30, 1898, guardedly answered: 'Spanish fishing vessels attempting to violate blockade are subject, with crew, to capture, and any such vessel or crew considered likely to aid enemy may be detained' (Bureau of Navigation Report of 1898). The admiral's despatch assumed that he was not authorized, without express order, to arrest coast fishermen peaceably pursuing their calling; and the necessary implication and evident intent of the response of the Navy Department were that Spanish coast fishing vessels and their crews should not be interfered with, so long as they neither attempted to violate the blockade, nor were considered likely to aid the enemy. The Court again recites the physical dimensions of the boats, as well as their crews and cargo. COMMERCIAL BOATS, NO THREAT, EXEMPTED. Each vessel was of a moderate size, such as is not unusual in coast fishing smacks, and was regularly engaged in fishing on the coast of Cuba. The crew of each were few in number, had no interest in the vessel, and received, in return for their toil and enterprise, two thirds of her catch, the other third going to her owner by way of compensation for her use. Each vessel went out from Havana to her fishing ground, and was captured when returning along the coast of Cuba. The cargo of each consisted of fresh fish, caught by her crew from the sea, and kept alive on board. Although one of the vessels extended her fishing trip across the Yucatan channel and fished on the coast of Yucatan, we cannot doubt that each was engaged in the coast fishery, and not in a commercial adventure, within the rule of international law. The 2 vessels and their cargoes were condemned by the district court as prize of war; the vessels were sold under its decrees; and it does not appear what became of the fresh fish of which their cargoes consisted. On Jan. 29, 1900: The court on motion of the Solicitor General in behalf of the US, and after argument of counsel thereon, ordered that the decree be so modified as to direct that the damages to be allowed shall be compensatory only, and not punitive. Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan and Mr. Justice McKenna, dissenting: The district court held these vessels and their cargoes liable because not 'satisfied that as a matter of law, without any ordinance, treaty, or proclamation, fishing vessels of this class are exempt from seizure.' This court holds otherwise, not because such exemption is to be found in any treaty, legislation, proclamation, or instruction granting it, but on the ground that the vessels were exempt by reason of an established rule of international law applicable to them, which it is the duty of the court to enforce. It cannot be maintained 'that modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovereign power.' That position was disallowed in Brown v. US, and Chief Justice Marshall said: 'This usage is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded. The rule is in its nature flexible. It is subject to infinite modification. It is not an immutable rule of law, but depends on political considerations which may continually vary.' The question in that case related to the confiscation of the property of the enemy on land within our own territory, and it was held that property so situated could not be confiscated without an act of Congress. This case involves the capture of enemy's property on the sea, and executive action, and if the position that the alleged rule proprio vigore limits the sovereign power in war be rejected, then I understand the contention to be that, by reason of the existence of the rule, the proclamation of April 26 must be read as if it contained the exemption in terms, or the exemption must be allowed because the capture of fishing vessels of this class was not specifically authorized. I come then to examine the proposition 'that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent states, that coast fishing vessels, with their implements and supplies cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in of fresh fish, are exempt from capture as prize of war.' This, it is said, is a rule 'which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of treaty or other public act of their own
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government.' At the same time it is admitted that the alleged exemption does not apply 'to coast fishermen or their vessels, if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way;' and, further, that the exemption has not 'been extended to ships or vessels employed on the high sea in taking whales or seals, or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce.' It will be perceived that the exceptions reduce the supposed rule to very narrow limits, requiring a careful examination of the facts in order to ascertain its applicability; and the decision appears to me to go altogether too far in respect of dealing with captures directed or ratified by the officer in command. But were these 2 vessels within the alleged exemption? They belonged to the class of fishing or coasting vessels of from 5 to 20 tons burden, and from 20 tons upwards, which, when licensed or enrolled as prescribed by the Revised Statutes, are declared to be vessels of the US, and the shares of whose men, when the vessels are employed in fishing, are regulated by statute. They were engaged in what were substantially commercial ventures, and the mere fact that the fish were kept alive by contrivances for that purpose-a practice of considerable antiquity-did not render them any the less an article of trade than if they had been brought in cured. I do not think that, under the circumstances, the considerations which have operated to mitigate the evils of war in respect of individual harvesters of the soil can properly be invoked on behalf of these hired vessels, as being the implements of like harvesters of the sea. Not only so as to the owners, but as to the masters and crews. The principle which exempts the husbandman and his instruments of labor exempts the industry in which he is engaged, and is not applicable in protection of the continuance of transactions of such character and extent as these. In truth, the exemption of fishing craft is essentially an act of grace, and not a matter of right, and it is extended or denied as the exigency is believed to demand. It is, said Sir William Scott, 'a rule of comity only, and not of legal decision.' The modern view is thus expressed by Mr. Hall: 'England does not seem to have been unwilling to spare fishing vessels so long as they are harmless, and it does not appear that any state has accorded them immunity under circumstances of inconvenience to itself. It is likely that all nations would now refrain from molesting them as a general rule, and would capture them so soon as any danger arose that they or their crews might be of military use to the enemy; and it is also likely that it is impossible to grant them a more distinct exemption.' In is needless to review the speculations and repetitions of the writers on international law. Ortolan, De Boeck, and others admit that the custom relied on as consecrating the immunity is not so general as to create an absolute international rule; Heffter, Calvo, and others are to the contrary. Their lucubrations may be persuasive, but not authoritative. In my judgment, the rule is that exemption from the rigors of war is in the control of the Executive. He is bound by no immutable rule on the subject. It is for him to apply, or to modify, or to deny altogether such immunity as may have been usually extended. Exemptions may be designated in advance, or granted according to circumstances, but carrying on was involves the inflication of the hardships of war, at least to the extent that the seizure or destruction of enemy's property on sea need not be specifically authorized in order to be accomplished.

CASE CONCERNING THE TEMPLE PREAH VIHEAR: CAMBODIA V. THAILAND (15 JUNE 1962)
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I. SUBMISSIONS OF THE PARTIES. CAMBODIA’s. In its Application & Memorials, Cambodia submits: (1) that the map of the Dangrek sector (attached to the memorial as Annex 1) was drawn up and published in the name and on behalf of the Mixed Delimitation Commission set up by the Treaty of 13 February 1904, that it sets forth the decisions taken by the said Commission and that, by reason of that fact and also of the subsequent agreements and conduct of the Parties, it presents a treaty character; (2) that the frontier line between Carnbodia and Thailand, in the Dangrek sector, is that which is marked on the map of the Commission of Delimitation between Indo-China and Siam (3) that Thailand is under an obligation to withdraw the detachments of armed forces it has stationed since 1954 in the ruins of the Temple of Preah Vihear; (4) that the territorial sovereignty over the Temple of Preah Vihear belongs to the Cambodia”
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(5) that the sculptures, stelae, fragments of monuments, sandstone model and ancient pottery which have been removed from the Temple by the Thai authorities since 1954 are to be returned to the Government of the Kingdom of Cambodia THAILAND’s. In Thailand’s Counter-Memorial, it submits: 1) that the claims of Cambodia formulated in the Application and the Memorial are not sustainable and should be rejected, they should not be entertained; alternatively, (2) Preah Vihear is in Thai territory : and the Court is respectfully asked so to adjudge and declare.” (3) The map has not been proved to be a document binding on the Parties whether by virtue of the Treaty of1904 or otherwise. (4) Thailand and Cambodia have not in fact treated the frontier marked out on the map as the frontier between Thailand and Cambodia in the Dang Rek region. (5) the frontier line marked on the map ought not to be substituted for the existing boundary line in fact observed and accepted by the two Parties in the Dang Rek range. (6) Abundant evidence has been given that at all material times, Thailand has exercised full sovereignty in the area of the Temple to the exclusion of Cambodia. Alternatively, if, which is denied, Cambodia in any sense carried out any administrative functions in the said area, such acts were sporadic and inconclusive, and in no sense such as to negative or qualify the full exercise of sovereignty in the said area by Thailand. (7) The watershed in the said area substantially corresponds with the cliff edge running round Preah Vihear and constitutes the treaty boundary in the said area as laid down by the Treaty of 1904. (8) To the extent that the cliff edge does not precisely correspond with the watershed as shown by the configuration of the ground in the area, the differences are minimal and should be disregarded. (9) The general nature of the area allows access from Thailand to the Temple, whereas access from Cambodia involves the scaling of the high cliff from the Cambodian plain. (10) There is no room in the circumstances of the present case for the application in favour of Cambodia of any of the doctrines prayed in aid by Counsel for Cambodia, whether acquiescence, estoppel or prescription. (11) Cambodia ought not in any event now to be allowed by the Court to put forward a claim based on prescription not having anywhere in her pleadings or until the very end of her oral argument put forward any such claim. (12) The evidence in favour of Cambodia is in any event wholly inadequate to support any prescriptive title in Cambodia THAILAND’S REVISED SUBMISSIONS (CONTENTIONS AS TO ANNEX 1 or MAP): BOUNDARY MAP NOT PREPARED BY MIXED COMMISSION. The whole of the evidence before the Court shows that the map of the sector of the Dang Rek was not prepared or th published either in the name or on behalf of the Mixed Commission of Delimitation set up under the Treaty of the 13 February, 1904; but, whereas the said Mixed Commission consisted of a French Commission and a Siamese Commission, the said map was prepared by members of the French Commission alone and published only in the name of the French Commission. The French officers who prepared the said map had no authority to give any official or final interpretation of the decisions of the said Mixed Commission, still less of the intentions of the said Mixed Commission at points at which no decision had been recorded. No decision of the said Mixed Commission was recorded about the boundary at Preah Vihear. If the said Mixed Commission did reach such a decision, that decision is not correctly represented on the said map, but was a decision that in the Preah Vihear area the boundary should coincide with the cliff edge. There was no subsequent agreement of the parties attributing a bilateral or conventional character to the map. Thailand argues has remained in undisputed possession of all the territory at the top of the Dang Rek. Wherever there is a cliff edge in the Dang Rek, the edge of the cliff is, and has been, accepted as constituting the watershed boundary established in this region by Article 1 of the said Treaty of 1904. the boundary line marked on the map would not be binding on the parties as it has been proven in the disputed area to be based on an inaccurate survey of the terrain. SUBJECT OF THE DISPUTE: TERRITORIAL SOVEREIGNTY OVER THE REGION OF THE TEMPLE. Cambodia alleges a violation on the part of Thailand of Cambodia’s territorial sovereignty over the region of the Temple of Preah Vihear and its precincts. Thailand replies by affirming that the area in question lies on the Thai side of the common frontier between the two countries, and is under the sovereignty of Thailand. This is a dispute about territorial sovereignty.” Accordingly, the subject of the dispute submitted to the Court is confined to a difference of view about sovereignty over the region of the Temple of Preah Vihear. To decide this question of territorial sovereignty, the Court must have regard to the frontier line between the two States in this sector. Maps haven been submitted to it and various considerations have been advanced in this connection. TERRAIN OF THE REGION OF TEMPLE OF PREAH VIHEAR. The Temple of Preah Vihear is an ancient sanctuary and shrine situated on the borders of Thailand and Cambodia. Although now partially in ruins, this Temple has considerable artistic and archaeological
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interest, and is still used as a place of pilgrimage. It stands on a promontory of the same name, belonging to the eastern sector of the Dangrek range of mountains which, in a general way, constitutes the boundary between the two countries in this regionCambodia to the south and Thailand to the north. Considerable portions of this range consist of a high cliff-like escarpment (an escarpment is a steep slope or cliff that marks the boundary of a flat or gently sloping upland area such as a plateau, often formed by faulting or erosion.) rising abruptly above the Cambodian plain. This is the situation at Preah Vihear itself, where the main Temple buildings stand in the apex of a triangular piece of high ground jutting out into the plain. From the edge of the escarpment, the general inclination of the ground in the northerly directions is downwards to the Nam Moun river, which is in Thailand. It will be apparent from the description just given that a frontier line which ran along the edge of the escarpment, or which at any rate ran to the south and east of the Temple area, would leave this area in Thailand; whereas a line running to the north, or to the north and west, would place it in Cambodia. NATURAL FRONTIER: WATERSHED LINE. Thailand has urged that the edge of this escarpment constitutes the natural and obvious line for a frontier in this region. In support of this view, Thailand has referred to the documentary evidence indicative of the desire of the Parties to establish frontiers which would not only be “natural”, but visible and unmistakable-such as rivers, mountain ranges, and hence escarpments, where they exist . The Parties provided for a watershed line. In so doing, they must be presumed to have realized that such a line would not necessarily, in any particular locality, be the same line as the line of the crest or escarpment. They cannot therefore be presumed to have intended that, wherever an escarpment existed, the frontier must lie along it, irrespective of all other considerations. BURDEN OF PROOF: BOTH PARTIES AS TO THEIR RESPECTIVE CLAIMS. Both Cambodia and Thailand base their respective claims on a series of facts and contentions which are asserted or put forward by one Party or the other. The burden of proof in respect of these will of course lie on the Party asserting or putting them forward. BOUNDARY TREATY (1904). Until Cambodia attained her independence in 1953 she was part of French Indo-China, and her foreign relations were conducted by France as the protecting Power. It is common ground between the Parties that the present dispute has its fons et origo in the boundary settlements made in the period 1904-1908, between France and Siam and, in particular, that the sovereignty over Preah Vihear depends upon a boundary treaty dated 13 February1904, and upon events subsequent to that date. The relevant provisions of the Treaty of 13 February 1904, which regulated the frontier in the eastern Dangrek region, were as follows: “Article I: The frontier between Siam and Cambodia starts, on the left shore of the Great Lake, from the mouth of the river Stung Roluos, it follows the parallel from that point in an easterly direction until it meets the river Prek Kompong Tiam, then, turning northwards, it merges with the meridian from that meeting-point as far as the Pnom Dang Rek mountain chain. From there it follows the watershed between the basins of the Nam Sen and the Mekong, on the one hand, and the Nam Moun, on the other hand, and joins the Pnom Padang chain the crest of which it follows eastwards as far as the Mekong. Upstream from that point, the Mekong remains the frontier of the Kingdom of Siam, in accordance with Article I of the Treaty of 3 October 1893.” “Article 3: There shall be a delimitation of the frontiers between the Kingdom of Siam and the territories making up French Indo-China. This delimitation will be carried out by Mixed Commissions composed of officers appointed by the two contracting countries. The work will relate to the frontier determined by Articles I and 2, and the region lying between the Great Lake and the sea.” It will be seen, in the first place, that these articles make no mention of Preah Vihear as such. It is for this reason that the Court can only give a decision as to the sovereignty over the Temple area after having examined what the frontier line is. Secondly, whereas the general character of the frontier established by Article I was, along the Dangrek range, to be a watershed line, the exact course of this frontier was, by virtue of Article 3, to be delimited by a Franco-Siamese Mixed Commission. It is to be observed, moreover, that what had to be delimited was “the frontiers” between Siam and French Indo-China; and although this delimitation had, prima facie, to be carried out by reference to the criterion indicated in Article 1, the purpose of it was to establish the actual line of the frontier. In consequence, the line of the frontier would, to all intents and purposes, be the line resulting from the work of delimitation, unless the delimitation were shown to be invalid.

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MIXED COMMISSION. In due course, a Mixed Commission composed of French and Siamese members was set up, charged with the task of delimiting the frontier in various districts, including the eastern sector of the Dangrek range in which Preah Vihear is situated. This Mixed Commission was composed of two sections, one French and one Siamese, sitting together - one consisting of French topographical
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and administrative officers under a French president, and the other of Siamese members under a Siamese president. So far as the frontier in the Dangrek range was concerned, the task of this Mixed Commission was confined to the eastern sector (roughly east of the Pass of Kel) in which Preah Vihear is situated. At this time the western sector of the Dangrek lay wholly in Thailand. It was only when a further boundary settlement, under a treaty dated 23 March 1907, brought within Cambodia various districts abutting on the western Dangrek sector, that the latter became a frontier region. The task of delimiting the frontier in this latter region was given to a second Mixed Commission set up under the 1907 Treaty. WORK OF THE COMMISSION. In one of the meetings of the Commission it was agreed that the Commission should ascend the Dangrek from the Cambodian plain by the Pass of Kel, which lies westwards of Preah Vihear, and travel eastwards along the range by the same route (or along the same line) as had been traversed by Captain Tixier, one of the French members of the commission who visited the place in 1905. It was stated that all the necessary investigation between this route and the crest line (to which it ran roughly parallel) could be carried out by this method, since the route was, at the most, only 10 to 15 km from the crest, on the Siamese side. It has not been contested that the Presidents of the French and Siamese sections of the Commission, as representing it, duly made this journey, and that in the course of it they visited the Temple of Preah Vihear. But there is no record of any decision that they may have taken. It was also agreed that another of the members of the French section of the Commission, Captain Oum, should, starting at the eastern end, survey the whole of the eastern part of the Dangrek range, in which Prea Vihear is situated. It is thus clear that the Mixed Commission fully intended to delimit the frontier in this sector of the Dangrek and that it took all the necessary steps to put the work of delimitation in hand. The work must have been accomplished, for at the end of January 1907, the French Minister at Bangkok reported to the Minister of Foreign Affairs in Paris that he had been formally notified by the President of the French section of the Mixed Commission that the whole work of delimitation had been finished without incident, and that the frontier line had been definitely established, except in the region of Siem Reap. Furthermore, in a report on the whole work of delimitation, dated 20 February 1907, destined for his own Government, the President said that: “All along the Dangrek and as far as the Mekong, the fixing of the frontier could not have involved any difficulty.” Mention may also be made of a map produced by Thailand, recently prepared by the Royal Thai Survey Department, Bangkok, tracing in the Dangrek the “Route followed by the Mixed Commission of 1904”. NO CLEAR OUTPUT FROM THE COMMISSION. It seems clear therefore that a frontier was surveyed and fixed but the question is what was that frontier (in particular in the region of Preah Vihear), by whom was it fixed, in what way, and upon whose instructions? The difficultly in answering these questions lies in the fact that, after the minutes of the meeting of the First Commission on 2 December 1906, there is no further reference whatever, in any minutes of later meetings, to the question of the frontier in the Dangrek region. It appears that at about this time the Commission had in substance finished its work on the ground and was awaiting the reports and provisional maps of the survey officers (Captain Oum and others). These reports and maps would not be available until February-March 1907 when, in normal circumstances, another meeting of the Commission would have been held to consider them. It appears that a meeting had been provisionally fixed. That it was certainly the intention to call one, can be seen from a dispatch from the French Minister in Bangkok to the minister of Foreign Affairs in Paris. No meeting apparently ever took place. 2 BOUNDARY TREATY & MIXED COMMISSION. In the meantime the 2 Governments had entered into negotiations for a further boundary treaty. This treaty was signed on 23 March 1907, and provided for exchanges of territory and a comprehensive regulation of all those frontiers not covered by the previous treaty settlement of 1904. A second Mixed Commission of Delimitation was then set up under the Treaty of 1907. As already mentioned, part of its task was to delimit that sector of the Dangrek region not having come within the ambit of the First Commission, namely from the Pass of Kel westwards, and therefore not including Preah Vihear which lay to the east. OVERLAP WITH 1 COMMISSION’S WORK. There was in fact some overlapping of the work of the two Commissions in the Kel region, but this overlapping did not extend to Preah Vihear. There is, however, evidence in the records of the Second Commission that, at or near the Pass of Kel, the line drawn by this Commission joined up with an already existing line proceeding eastwards to the Temple area and beyond. There is no definite indication as to what this line was, or how it had come to be established; but the presumption that it was in some manner or
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other the outcome of the survey work which the First Commission had put in hand, and which the President of its French section, in his report of 20 February 1907, stated to have been accomplished without difficulty is, in the circumstances, overwhelmingly strong. ALSO TASKED TO FINISH THE WORK OF THE 1 COMMISSION. The Court has noted that although, under Article IV of the Treaty of 1907, the task of the Second Mixed Commission was to delimit the “new frontiers” established by that Treaty, the Commission also had the task, under Clause III of the Protocol attached to the Treaty, of delimiting all that part of the frontier defined in Clause 1 of the Protocol. This latter provision related to the entire Dangrek range from a point in its western half to the eastern continuation of the Dangrek, the Pnom Padang range, as far as the River Mekong. Therefore, had the eastern Dangrek and Pnom Padang sectors not already been delimited by the first (1904) Mixed Commission, it would have been the duty of the second (1907) Commission to do this work. This Commission did not do it, apart from the overlap (not extending to Preah Vihear) already mentioned, and therefore the presumption must be that it had already been done. MAPPING WAS LEFT TO THE FRENCH. The First Mixed Commission apparently did not hold any formal meeting after 19 January 1907. It must not be forgotten that, at the time when such a meeting might have been held for the purpose of winding up the work of the Commission, attention in both countries, on the part of those who were specially qualified to act and speak on their behalf in these matters, was directed towards the conclusion of the Treaty of 23 March 1907. Their chief concern, particularly in the case of Colonel Bernard, could hardly have been the formal completion of the results of the delimitation they had carried out. The final stage of the operation of delimitation was the preparation and publication of maps. For the execution of this technical work, the Siamese Government, which at that time did not dispose of adequate means, had officially requested that French topographical officers should map the frontier region. It is clear from the opening paragraph of the minutes of the meeting of the first Mixed Commission on 29 September 1905 that this request had the approval of the Siamese section of the Commission, which may indeed have inspired it, for in the letter of 20 August 1908 in which the Siamese Minister in Paris communicated to his Government the eventual results of this work of mapping, he referred to “the mixed Commission of Delimitation of the frontiers and the Siamese Commissioners’ request that the French Commissioners prepare maps of various frontiers”. That this was the deliberate policy of the Siamese authorities is also shown by the fact that in the second (1907) Mixed Commission, the French members of the Commission were equally requested by their Siamese colleagues to carry out cartographical work, as can be seen from the minutes of the meeting of 6 June 1908. The French Government duly arranged for the work to be done by a team of four French officers, three of whom, Captains Tixier, Kerler and de Batz, had been members of the first Mixed Commission. This team worked under the general direction of Colonel Bernard, and in the late autumn of 1907 it completed a series of eleven maps covering a large part of the frontiers between Siam and French Indo-China, including those portions that are material in the present case. The maps were printed and published by wellknown French cartographical firm, H. Barrere. The eleven maps were in due course communicated to the Siamese Government, as being the maps requested by the latter, and the Court will consider later the circumstances of that communication and the deductions to be drawn from it. Three of the maps had been overtaken by events, inasmuch as the former frontier areas they showed had, by virtue of the Treaty of March 1907, now become situated wholly in Cambodia. Siam was not therefore called upon either to accept or reject them. Her interest in the other maps remained. Amongst these was one of that part of the Dangrek range in which the Temple is situated, and on it was traced a frontier line purporting to be the outcome of the work of delimitation and showing the whole Preah Vihear promontory, with the Temple area, as being on the Cambodian side. MAP AS BASIS OF CAMBODIA’S CLAIMS. If therefore the delimitation carried out in respect of the Eastern Dangrek sector established or was intended to establish a watershed line, this map purported to show such a line. This map was filed by Cambodia as Annex 1 to its Memorial, and has become known in the case as the Annex 1 map. It is on this map that Cambodia principally relies in support of her claim to sovereignty over the Temple. THAILAND CONTESTS THE VALIDITY OF THE MAP. Thailand, on the other hand, contests any claim based on this map, on the following grounds : first, that the map was not the work of the Mixed Commission, and had therefore no binding character; secondly, that at Preah Vihear the map embodied a material error, not explicable on the basis of any exercise of discretionary powers of adaptation which the Commission may have possessed. This error, according to Thailand’s contention, was that the frontier line indicated on the map was not the true watershed line in this vicinity, and that a line drawn in accordance with the true watershed line would have placed, and would now place, the Temple area in Thailand. It is further contended by Thailand that she never accepted this
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map or the frontier line indicated on it, at any rate so far as Preah Vihear is concerned, in such a way as to become bound thereby; or, alternatively that, if she did accept the map, she did so only under, and because of, a mistaken belief (upon which she relied) that the map line was correctly drawn to correspond with the watershed line. MAP: NOT APPROVED BY COMMISSION. The Court finds that the map was never formally approved by the first Mixed Commission as such, since that Commission had ceased to function some months before the production of the map. The record does not show whether the map and the line were based on any decisions or instructions given by the Commission to the surveying officers while it was still functioning. What is certain is that the map must have had a basis of some sort, and the Court thinks there can be no reasonable doubt that it was based on the work of the surveying officers in the Dangrek sector. Being one of the series of maps of the frontier areas produced by French Government topographical experts in response to a request made by the Siamese authorities, printed and published by a Paris firm of repute, all of which was clear from the map itself, it was thus invested with an official standing; it had its own inherent technical authority; and its provenance was open and obvious. The Court must nevertheless conclude that, in its inception, and at the moment of its production, it had no binding character. THAILAND’S CONTENTION. Thailand has argued that in the absence of any delimitation approved and adopted by the Mixed Commission, or based on its instructions, the line of the frontier must necessarily, by virtue of Article I of the Treaty of 1904, follow strictly the line of the true watershed, and that this line, at Preah Vihear, would place the Temple in Thailand. While admitting that the Mixed Commission had a certain discretion to depart from the watershed line in order to avoid anomalies, and to take account of certain purely local considerations, Thailand contends that any departure such as to place Preah Vihear in Cambodia would have far exceeded the scope of any discretionary powers the Mixed Commission could have had authority to exercise without specific reference to the Governments. COURT CONSIDERS WON THE COMMISSION EXCEEDED ITS POWERS A NON-ISSUE. Whatever substance these contentions may have, taken by themselves, the Court considers that they do not meet the real issues here involved. Even if there was no delimitation of the frontier in the eastern sector of the Dangrek approved and adopted by the Mixed Commission, it was obviously open to the Governments themselves to adopt a delimitation for that region, making use of the work of the technical members of the Mixed Commission. As regards any departures from the watershed line which any such delimitation embodied-since, according to Thailand’s own contention, the delimitation indicated on the Annex 1 map was not the Mixed Commission’s. There is no point in discussing whether such departures as may have occurred at Preah Vihear fell within the Commission’s discretionary powers or not. The point is that it was certainly within the power of the Governments to adopt such departures. REAL ISSUE: WON THE PARTIES ADOPTED THE MAP? The real question, therefore, which is the essential one in this case, is whether the Parties did adopt the Annex 1 map, and the line indicated on it, as representing the outcome of the work of delimitation of the frontier in the region of Preah Vihear, thereby conferring on it a binding character. Thailand denies this so far as she is concerned, representing herself as having adopted a merely passive attitude in what ensued. She maintains also that a course of conduct, involving at most a failure to object, cannot suffice to render her a consenting party to a departure at Preah Vihear from the watershed line specified by Article I of the Treaty of 1904, so great as to affect the sovereignty over the Temple area. HELD: THE MAPS WERE ACCEPTED & ADOPTED BY THE PARTIES. The Court sees the matter differently. It is clear from the record that the publication and communication of the eleven maps referred to earlier, including the Annex 1 map, was something of an occasion. This was no mere interchange between the French and Siamese Governments, though, even if it had been, it could have sufficed in law. THE MAP WAS GIVEN WIDE INTERNATIONAL PUBLICITY. On the contrary, the maps were given wide publicity in all technically interested quarters by being also communicated to the leading geographical societies in important countries, and to other circles regionally interested; to the Siamese legations accredited to the British, German, Russian and United States Governments; and to all the members of the Mixed Commission, French and Siamese. The full original distribution consisted of about one hundred and sixty sets of eleven maps each. Fifty sets of this distribution were allocated to the Siamese Government. THE MAP WAS PURPORTED TO REPRESENT OUTCOME OF THE WORK OF DELIMITATION. That the Annex 1 map was communicated as purporting to represent the outcome of the work of delimitation is clear from the letter from the Siamese Minister in Paris to the Minister of Foreign Affairs in Bangkok, dated 20 August 1908, in which he said that “regarding the Mixed Commission of Delimitation of the frontiers and the Siamese Commissioners’ request that the French Commissioners prepare maps of various frontiers, the French Commissioners have now finished their work”. He added that a series of maps had been brought to him in order that he
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might forward them to the Siamese Minister of Foreign Affairs. He went on to give a list of the eleven maps, including the map of the Dangrek region-fifty sheets of each. He ended by saying that he was keeping two sheets of each map for his Legation and was sending one sheet of each to the Legations in London, Berlin, Russia and the United States of America. THAILAND’S NON-REACTION AMOUNTS TO ITS ACQUIESCENCE. It has been contended on behalf of Thailand that this communication of the maps by the French authorities was, so to speak, ex parte (without the other party), and that no formal acknowledgment of it was either requested of, or given by, Thailand. In fact, as will be seen presently, an acknowledgment by conduct was undoubtedly made in a very definite way; but even if it were otherwise, it is clear that the circumstances were such as called for some reaction, within a reasonable period, on the part of the Siamese authorities, if they wished to disagree with the map or had any serious question to raise in regard to it. They did not do so, either then or for many years, and thereby must be held to have acquiesced. So far as the Annex 1 map is concerned, it was not merely the circumstances of the communication of this and the other maps that called for some reaction from the Siamese side, if reaction there was to be; there were also indications on the face of the map sheet which required a reaction if the Siamese authorities had any reason to contend that the map did not represent the outcome of the work of delimitation. The map, together with the other maps, was as already stated, communicated to the Siamese members and through them the Siamese Government must have known that this map could not have represented anything formally adopted by the Mixed Commission, and therefore they could not possibly have been deceived by the title of the map, namely, “Dangrek-Commission of Delimitation between Indo-China and Siam” into supposing that it was purporting to be a production of the Mixed Commission as such. SINCE THE THAI MEMBERS DID NOT REACT/OBJECT, IT COULD BE SAID THAT THE MAPS REFLECTED WHAT THEY HAVE AGREED UPON IN THE COMMISSION. Alternatively, if the Siamese members of the Commission did suppose otherwise, this could only have been because, though without recording them, the Mixed Commission had in fact taken some decisions on which the map was based; and of any such decisions the Siamese members of the Commission would of course have been aware. The Siamese members of the Commission must also have seen the notice appearing in the top left-hand corner of the map sheet to the effect that the work on the ground had been carried out by Captains Kerler and Oum. They would have known, since they were present at the meeting of the Commission held on 2 December 1906, that Captain Oum had then been instructed to carry out the survey of the eastern sector of the Dangrek range, covering Preah Vihear, and that he was to leave the next day to take up this assignment. They said nothing-either then or later-to suggest that the map did not represent the outcome of the work of delimitation or that it was in any way inaccurate. THANKING FRENCH MINISTER FOR THE MAP SHOWED THAI’S ACCEPTANCE & RECOGNITION OF THE MAP. That the Siamese authorities by their conduct acknowledged the receipt, and recognized the character, of these maps, and what they purported to represent, is shown by the action of the Minister of the Interior, Prince Damrong, in thanking the French Minister in Bangkok for the maps, and in asking him for another fifteen copies of each of them for transmission to the Siamese provincial Governors. ANOTHER EVIDENCE: PROCEEDINGS OF COMMISSION OF TRANSCRIPTION. Further evidence is afforded by the proceedings of the subsequent Commission of Transcription which met in Bangkok in March o the following year, 1909, and for some months thereafter. This was a mixed Franco-Siamese Commission set up by the Parties with the object of getting an official Siamese geographical service started, through a consolidation of all the work of the two Mixed Commissions of 1904 and 1907. A primary aim was to convert the existing maps into handy atlas form, and to give the French and Siamese terms used in them their proper equivalents in the other languages. No suggestion that the Annex 1 map or line was unacceptable was made in the course of the work of this Commission. THE MAP WAS SEEN NOT JUST BY MINOR OFFICIALS. It was claimed on behalf of Thailand that the maps received from Paris were only seen by minor officials who had no expertise in cartography, and would know nothing about the Temple of Preah Vihear. Indeed it was suggested during the oral proceedings that no one in Siam at that time knew anything about the Temple or would be troubling about it. The Court cannot accept these contentions either on the facts or the law. If the Siamese authorities did show these maps only to minor officials, they clearly acted at their own risk, and the claim of Thailand could not, on the international plane, derive any assistance from that fact. But the history of the matter, as set out above, shows clearly that the maps were seen by such persons as Prince Devawongse, the Foreign Minister, Prince Damrong, the Minister of the Interior, the Siamese members of the First Mixed Commission, the Siamese members of the Commission of Transcription; and it must also be assumed that the Annex 1 map was seen by the Governor of Khukhan province, the Siamese province adjoining the Preah Vihear region on the northern side, who must have been amongst those for whom extra copies were requested by Prince Damrong. None of these persons was a minor
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official. All or most had local knowledge. Some must have had knowledge of the Dangrek region. It is clear from the documentation in the case that Prince Damrong took a keen personal interest in the work of delimitation, and had a profound knowledge of archaeologicalmonuments. It is not conceivable that the Governor of Khukhan province, of which Preah Vihear formed part up to the 1904 settlement, was ignorant of its existence. In any case this particular contention of Thailand’s is decisively disproved by a document deposited by Thailand herself, according to which the Temple was in 1899 “re-discovered” by the Siamese Prince Sanphasit, accompanied by some fifteen to twenty officials and local dignitaries, including, it seems, the then Governor and Deputy-Governor of Khukhan. It thus appears that only nine years previous to the receipt of the Annex 1 map by the Siamese authorities, a considerable number of persons having high official standing in Siam knew of Preah Vihear. IGNORANCE OF SIGNIFICANCE OF TEMPLE IS NOT A GROUND FOR RECTIFICATION OF DELIMITATION. The Court moreover considers that there is no legal foundation for the consequence it is attempted to deduce from the fact that no one in Thailand at that time may have known of the importance of the Temple or have been troubling about it. Frontier rectifications cannot in law be claimed on the ground that a frontier area has turned out to have an importance not known or suspected when the frontier was established. THAILAND CLAIMS ERROR (WHICH THEY WERE UNAWARE OF WHEN THEY ACCEPTED THE MAP.) It follows from the preceding findings that the Siamese authorities in due course received the Annex 1 map and that they accepted it. Now, however, it is contended on behalf of Thailand, so far as the disputed area of Preah Vihear is concerned, that an error was committed, an error of which the Siamese authorities were unaware at the time when they accepted the map. It is an established rule of law that the plea of error cannot be allowed as an element vitiating consent if the party advancing it contributed by its own conduct to the error, or could have avoided it, or if the circumstances were such as to put that party on notice of a possible error. THAI’S “ERROR” DEFENSE WEAK. The Court considers that the character and qualifications of the persons who saw the Annex 1 map on the Siamese side would alone make it difficult for Thailand to plead error in law. These persons included the members of the very Commission of Delimitation within whose competence this sector of the frontier had lain. But even apart from this, the Court thinks that there were other circumstances relating to the Annex 1 map which make the plea of error difficult to receive. THE CONTENT OF THE MAP WAS PATENTLY CLEAR & EXPLICIT. An inspection indicates that the map itself drew such pointed attention to the Preah Vihear region that no interested person, nor anyone charged with the duty of scrutinizing it, could have failed to see what the map was purporting to do in respect of that region. If, as Thailand has argued, the geographical configuration of the place is such as to make it obvious to anyone who has been there that the watershed must lie along the line of the escarpment (a fact which, if true, must have been no less evident in 1908), then the map made it quite plain that the Annex 1 line did not follow the escarpment in this region since it was plainly drawn appreciably to the north of the whole Preah Vihear promontory. Nobody looking at the map could be under any misapprehension about that. Xext, the map marked Preah Vihear itself quite clearly as lying on the Cambodian side of the line, using for the Temple a symbol which seems to indicate a rough plan of the building and its stairwavs. It would thus seem that, to anyone who considered that the line of the watershed at Preah Vihear ought to follow the line of the escarpment, or whose duty it was to scrutinize the map, there was everything in the Annex 1 map to put him upon enquiry. THAILAND WAS PRESUMED TO KNOW THROUGH THE SIAMESE MEMBERS OF THE COMMISSION. Furthermore, as has already been pointed out, the Siamese Government knew or must be presumed to have known, through the Siamese members of the Mixed Commission, that the Annex 1 map had never been formally adopted by the Commission. The Siamese authorities knew it was the work of French topographical officers to whom they had themselves entrusted the work of producing the maps. They accepted it without any independent investigation, and cannot therefore now plead any error vitiating the reality of their consent. The Court concludes therefore that the plea of error has not been made out. EVENTS SUBSEQUENT TO 1904-1909. THAILAND BROUGHT BACK THE ISSUE ONLY IN 1958. The Siamese authorities did not raise any query about the Annex 1 map as between themselves and France or Cambodia, or expressly repudiate it as such, until the 1958 negotiations in Bangkok, when, inter alia, the question of Preah Vihear came under discussion between Thailand and Cambodia. Nor was any question raised even after 1934-1935, when Thailand carried out a survey of her own in this region, and this survey had, in Thailand’s view, established a divergence between the map line and the true line of the watershed - a divergence having the effect of placing the Temple in Cambodia.

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THAILAND CONTINUED TO USE ANNEX 1 MAP. Although, after this date, Thailand eventually produced some maps of her own showing Preah Vihear as being in Thailand, she continued, even for public and official purposes, to use the Annex 1 map, or other maps showing Preah Vihear as lying in Cambodia, without raising any query about the matter (her explanations as to this will be considered presently). ESTABLISHED COMMON FRONTEIRS WERE REAFFIRMED (THROUGH SUBSEQUENT AGREEMENTS/TREATIES). Moreover, the Court finds it difficult to overlook such a fact as, for instance, that in 1937, even after Thailand’s own survey in 1934-1935, and in the same year as the conclusion of a treaty with France in which, as will be seen, the established common frontiers were reaffirmed, the Siamese Royal Survey Department produced a map showing Preah Vihear as lying in Cambodia. Thailand had several opportunities of raising with the French authorities the question of the Annex 1 map. There were first of all the negotiations for the 1925 and 1937 Treaties of Friendship, Commerce and Navigation between France, on behalf of Indo-China, and Siam. These Treaties, although they provided for a general process of revision or replacement of previous Agreements, excluded from this process the existing frontiers as they had been established under the Boundary Settlements of 1893, 1904 and 1907. Thereby, and in certain more positive provisions, the Parties confirmed the existing frontiers, whatever they were. These were occasions (particularly in regard to the negotiations for the 1937 Treaty, which occurred only two years after Thailand’s own survey of the frontier regions had disclosed, in her belief, a serious divergence between the map line and the watershed line at Preah Vihear) on which it would have been natural for Thailand to raise the matter, if she considered the map indicating the frontier at Preah Vihear to be incorrect -occasions on which she could and should have done so if that was her belief. She did not do so and she even, as has been seen, produced a map of her own in 1937 showing Preah Vihear as being in Cambodia. That this map may have been intended for internal military use does not seem to the Court to make it any less evidence of Thailand’s state of mind. The inference must be - particularly in regard to the 1937 occasion - that she accepted or still accepted the Annex 1 map, and the line it indicated, eve if she believed it incorrect, even if, after her own survey of 1934-1935, she thought she knew it was incorrect. Thailand having temporarily come into possession of certain parts of Cambodia, including Preah Vihear, in 1941, the Ministry of Information of Thailand published a work entitled “Thailand during national reconstruction” in which it was stated in relation to Preah Vihear that it had now been “retaken” for Thailand. This has been represented by Thailand as being an error on the part of a minor official. Nevertheless, similar language, suggesting that Thailand had been in possession of Preah Vihear only since about 1940, was used by representatives of Thailand in the territorial negotiations that took place between Thailand and Cambodia at Bangkok in 1958. THAILAND NEVER RAISED THE ERROR IN THE CONCILIATION COMMISSION. After the war, by a Settlement Agreement of November 1946 with France, Thailand accepted a reversion to the status quo ante 1941. It is Thiailand’s contention that this reversion to the status quo did not affect Preah Vihear because Thailand already had sovereignty over it before the war. The Court need not discuss this contention, for whether Thailand did have such sovereignty is precisely what is in issue in these proceedings. The important point is that, in consequence of the war events, France agreed to set up a Franco-Siamese Conciliation Commission consisting of the representatives of the Parties and three neutral Commissioners, whose terms of reference were specifically to go into, and make recommendations on an equitable basis in regard to, any complaints or proposals for revision which Thailand might wish to make as to, inter alia, the frontier settlements of 1904 and 1907. The Commission met in 1947 in Washington, and here therefore was an outstanding opportunity for Thailand to claim a rectification of the frontier at Preah Vihear on the ground that the delimitation embodied a serious error which would have caused Thailand to reject it had she known of the error in 1908-1909. In fact, although Thailand made complaints about the frontier line in a considerable number of regions, she made none about Preah Vihear. She even (12 May 1947) filed in the the Commission a map showing Preah Vihear as lying in Cambodia. Thailand contends that this involved no adverse implications as regards her claim to the Temple, because the Temple area was not in issue before the Commission, that it was other regions that were under discussion, and that it was in relation to these that the map was used. But it is precisely the fact that Thailand had raised these other questions, but not that of Preah Vihear, which requires explanation; for, everything else apart, Thailand was by this time well aware, from certain local happenings in relation to the Temple, to be mentioned presently, that France regarded Preah Vihear as being in Cambodian territory-even if this had not already and long since been obvious from the frontier line itself, as mapped by the French authorities and communicated to the Siamese Government in 1908. The natural inference from Thailand’s failure to mention Preah Vihear on this occasion is, again, that she did not do so because she accepted the frontier at this point as it was drawn on the map, irrespective of its correspondence with the watershed line. THAILAND MADE NO RESERVATIONS DURING THE MANY TIMES IT MADE REFERENCE TO THE MAP. As regards the use of a map showing Preah Vihear as lying in Cambodia, Thailand maintains that this was for purely cartographical reasons, that there were no other maps, or none that were so convenient, or none of the right scale for the occasion. The Court does not find this explanation
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convincing. Thailand could have used the map but could also have entered some kind of reservation with France as to its correctness. This she did not do. THAILAND CONTENDS THAT IT DID NOT REPUDIATE THE MAP BECAUSE IT HAS NOT ACCEPTED IT IN THE FIRST PLACE. As regards her failure even to raise the question of the map as such until 1958, Thailand states that this was because she was, at all material times, in possession of Preah Vihear; therefore she had no need to raise the matter. She indeed instances her acts on the ground as evidence that she never accepted the Annex 1 line at Preah Vihear at all, and contends that if she never accepted it she clearly had no need to repudiate it, and that no adverse conclusions can be drawn from her failure to do so. The acceptability of this explanation must obviously depend on whether in fact it is the case that Thailand’s conduct on the ground affords ex Post facto evidence sufficient to show that she never accepted the Annex 1 line in 1908 in respect of Preah Vihear, and considered herself at all material times to have the sovereignty over the Temple area. ACTS OF THAILAND ON THE PREAH VIHEAR NOT SUFFICIENT TO NEGATE ITS ACCEPTANCE OF THE MAP. The Court has considered the evidence furnished by Thailand of acts of an administrative character performed by her officials at or relative to Preah Vihear. France, and subsequently Cambodia, in view of her title founded on the Treaty of 1904, performed only a very few routine acts of administration in this small, deserted area. It was specifically admitted by Thailand in the course of the oral hearing that if Cambodia acquired sovereignty over the Temple area by virtue of the frontier settlement of 1904, she did not subsequently abandon it, nor did Thailand subsequently obtain it by any process of acquisitive prescription. Thailand’s acts on the ground were therefore put forward as evidence of conduct as sovereign, sufficient to negative any suggestion that, under the 1904 Treaty settlement, Thailand accepted a delimitation having the effect of attributing the sovereignty over Preah Vihear to Cambodia. It is therefore from this standpoint that the Court must consider and evaluate these acts. The real question is whether they sufficed to efface or cancel out the clear impression of acceptance of the frontier line at Preah Vihear to be derived from the various considerations already discussed. With one or two important exceptions to be mentioned presently, (1) the acts concerned were exclusively the acts of local, provincial authorities. (2) To the extent that these activities took place, it is not clear that they had reference to the summit of Mount Preah Vihear and the Temple area itself, rather than to places somewhere in the vicinity. But however that may be, the Court finds it difficult to regard such local acts as overriding and negating the consistent and undeviating attitude of the central Siamese authorities to the frontier line as mapped. FRENCH AUTHORITIES WELCOMING PRINCE DAMRONG OF THAILAND WHEN HE VISITED PREAH VIHEAR REVEALED THAILAND’S TACIT RECOGNITION THAT THE AREA WAS UNDER THE SOVEREIGNTY OF CAMBODIA (UNDER FRANCE). In this connection, much the most significant episode consisted of the visit paid to the Temple in 1930 by Prince Damrong, formerly Minister of the Interior, and at this time President of the Royal Institute of Siam, charged with duties in connection with th National Library and with archaeological monuments. The visit was part of an archaeological tour made by the Prince with the permission of the King of Siam, and it clearly had a quasi-official character. When the Prince arrived at Preah Vihear, he was officially received there by the French Resident for the adjoining Cambodian province, on behalf of the Resident Superior, with the French flag flying. The Prince could not possibly have failed to see the implications of a reception of this character. A clear affirmation of title on the French Indo-Chinese side can scarcely be imagined. It demanded a reaction. Thailand did nothing. Furthermore, when Prince Damrong on his return to Bangkok sent the French Resident some photographs of the occasion, he used language which seems to admit that France, through her Resident, had acted as the host country. The explanations regarding Prince Damrong’s visit given on behalf of Thailand have not been found convincing by the Court. Looking at the incident as a whole, it appears to have amounted a tacit recognition by Siam of the sovereignty of Cambodia (under French Protectorate) over Preah Vihear, through a failure to react in any way, on an occasion that called for a reaction in order to affirm or preserve title in the face of an obvious rival claim. THAILAND ACCEPTED THE FRONTIER EITHER IN HAVING A BELIEF THAT IT HAD NO TITLE OR IF IT BELIEVED IT DID, BY NOT ASSERTING IT. What seems clear is that either Siam did not in fact believe she had any title – and this would be wholly consistent with her attitude all along, and thereafter, to the Annex 1 map and line-or else she decided not to assert it, which again means that she accepted the French claim, or accepted the frontier at Preah Vihear as it was drawn on the map. FRANCE/CAMBODIA SENT NOTES TO THAILAND (IN REACTION TO THAI FORCES STATIONED IN THE AREA) ASSERTING SOVEREIGNTY OVER PREAH VIHEAR BUT THAILAND MADE NO SUBSTANTIAL ANSWER. The remaining relevant facts must now be stated. In February 1949, not long after the conclusion of the proceedings of the Franco-Siamese Conciliation Commission, in the course of which, as has been seen, Thailand did not raise the question of Preah Vihear, France addressed a Note to the Government of Thailand stating that a report had been received of the stationing of four Siamese keepers at the Temple, and asking for information. There was no reply to this Note, nor to a follow-up Note of March 1949. In May 1949, France sent a further Note, setting out briefly,
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but quite explicitly, the grounds on which she considered Preah Vihear to be in Cambodia, and pointing out that a map produced by Thailand herself had recognized this fact. The withdrawal of the keepers was requested. Although there was an error in this Note, the significance of the latter was that it contained an unequivocal assertion of sovereignty. This French Note also received no reply. In July 1950, a further Note was sent. This too remained unanswered. In these circumstances Cambodia, on attaining her independence in 1953, proposed, for her part, to send keepers or guards to the Temple, in the assertion or maintenance of her position. However, finding that Thai keepers were already there, the Cambodian keepers withdrew, and Cambodia sent a Note dated January 1954 to the Government of Thailand asking for information. This received a mere acknowledgment, but no explanation. Nor was there, even then, any formal affirmation of Thailand’s claim. At the end of March 1954, the Government of Cambodia, drawing attention to the fact that no substantive reply to its previous Note had been received, notified the Government of Thailand that it now proposed to replace the previously withdrawn Cambodian keepers or guards by some Cambodian troops. In this Note, Cambodia specifically referred to the justification of the Cambodian claim contained in the French Note of May 1949. This Cambodian Note also was not answered. However, the Cambodian troops were not in fact sent; and in June 1954, Cambodia addressed to Thailand a further Note stating that, as information had been received to the effect that Thai troops were already in occupation, the dispatch of the Cambodian troops had been suspended in order not to aggravate the situation. The Note went on to ask that Thailand should either withdraw her troops or furnish Cambodia with her views on the matter. This Note equally received no reply. But the Thai “troops” (the Court understands that they are in fact a police force) remained. Again, therefore, it would seem that Thailand, while taking certain local action, was not prepared to deny the French and Cambodian claim at the diplomatic level. CONFERENCE BETWEEN THAILAND & CAMBODIA NOT FRUITFUL. No further diplomatic correspondence was produced to the Court ; but eventually, in 1958, a conference was held at Bangkok between Thailand and Cambodia, to discuss various territorial matters in dispute between the Parties, including that of Preah Vihear. The representative of Thailand having declined to discuss the legal aspects of the matter, the negotiations broke down and Cambodia jnstituted the present proceedings. COURT’S CONCLUSIONS. THAILAND PRECLUDED FROM DENYING THAT IT HAS ACCEPTED THE MAP. Even if there were any doubt as to Siam’s acceptance of the map in 1908, and hence of the frontier indicated thereon, the Court would consider, in the light of the subsequent course of events, that Thailand is now precluded by her conduct from asserting that she did not accept it. She has, for fifty years, enjoyed such benefits as the Treaty of 1904 conferred on her, if only the benefit of a stable frontier. France, and through her Cambodia, relied on Thailand’s acceptance of the map. Since neither side can plead error, it is immatenal whether or not this reliance was based on a belief that the map was correct. It is not now open to Thailand, while continuing to claim and enjoy the benefits of the settlement, to deny that she was ever a consenting party to it. The Court however considers that Thailand in 1908-1909 did accept the Annex 1 map as representing the outcome of the work of delimitation, and hence recognized the line on that map as being the frontier line, the effect of which is to situate Preah Vihear in Cambodian territory. The Court considers further that, looked at as a whole, Thailand’s subsequent conduct confirms and bears out her original acceptance, and that Thailand’s acts on the ground do not suffice to negative this. Both Parties, by their conduct, recognized the line and thereby in effect agreed to regard it as being the frontier line. THAILAND CONTETION THAT IT ACTED UNDER A MISAPPREHENSION OF THE MAP UNTENABLE FOR THE COURT. The Court must now consider two further matters. Thailand contends that since 1908, and at any rate up to her own 1934-1935 survey, she believed that the map line and watershed line coincided, and therefore that if she accepted the map line, she did so only in that belief. It is evident that such a contention would be quite inconsistent with Thailand’s equally strongly advanced contention that these acts in the concrete exercise of sovereignty evidenced her belief that she had sovereignty over the Temple area: for if Thailand was truly under a misapprehension about the Annex 1 line-if she really believed it indicated the correct watershed line then she must have believed that, on the basis of the map and her acceptance of it, the Temple area lay rightfully in Cambodia. If she had such a belief-and such a belief is implicit in any plea that she had accepted the Annex 1 map only because she thought it was correct- then her acts on the ground would have to be regarded as deliberate violations of the sovereignty which (on the basis of the assumptions above stated) she must be presumed to have thought Cambodia to possess. The conclusion is that Thailand cannot allege that she was under any misapprehension in accepting the Annex 1 line, for this is wholly inconsistent with the reason she gives for her acts on the ground, namely that she believed herself to possess sovereignty in this area. It may be added that even if Thailand’s plea of misapprehension could, in principle, be accepted, it should have been advanced shortly after Thailand’s own survey of the disputed region was carried out in 1934-1935. Since then Thailand could not have been under any misapprehension.
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ANNEX 1 MAP BECAME INTEGRAL PART OF THE TREATY. There is finally one further aspect of the case with which the Court feels it necessary to deal. The Court considers that the acceptance of the Annex 1 map by the Parties caused the map to enter the treaty settlement and to become an integral part of it. It cannot be said that this process involved a departure from, and even a violation of, the terms of the Treaty of 1904, wherever the map line diverged from the line of the watershed, for, as the Court sees the matter, the map (whether in all respects accurate by reference to the true watershed line or not) was accepted by the Parties in 1908 and thereafter as constituting the result of the interpretation given by the two Governments to the delimitation which the Treaty itself required. In other words, the Parties at that time adopted an interpretation of the treaty settlement which caused the map line, in so far as it may have departed from the line of the watershed, to prevail over the relevant clause of the treaty. TREATY INTERPRETATION. Even if, however, the Court were called upon to deal with the matter now as one solely of ordinary treaty interpretation, it considers that the interpretation to be given would be the same, for the following reasons: THE PARTIES IN PROVIDING FOR DELIMITATION REVEALS THAT A WATERSHED INDICATION IS INADEQUATE TO ACHIEVE CERTAINTY & FINALITY. In general, when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality. This is impossible if the line so established can, at any moment, and on the basis of a continuously available process, be called in question, and its rectification claimed, whenever any inaccuracy by reference to a clause in the parent treaty is discovered. Such a process could continue indefinitely, and finality would never be reached so long as possible errors still remained to be discovered. Such a frontier, so far from being stable, would be completely precarious. It must be asked why the Parties in this case provided for a delimitation, instead of relying on the Treaty clause indicating that the frontier line in this region would be the watershed. There are boundary treaties which do no more than refer to a watershed line, or to a crest line, and which make no provision for any delimitation in addition. The Parties in the present case must have had a reason for taking this further step. This could only have been because they regarded a watershed indication as insufficient by itself to achieve certainty and finality. It is precisely to achieve this that delimitations and map lines are resorted to. PRIMARY OBJECT OF THE PARTIES WAS TO ATTAIN STABILITY & FINALITY AS TO THE THEIR RESPECTIVE BOUNDARIES. Various factors support the view that the primary object of the Parties in the frontier Settlements of 1904-1908 was to achieve certainty and finality. From the evidence furnished to the Court, and from the statements of the Parties themselves, it is clear that the whole question of Siam’s very long frontiers with French Indo-China had, in the period prior to 1904, been a cause of uncertainty, trouble and friction, engendering what was described in one contemporary document placed before the Court as a state of “growing tension” in the relations between Siam and France. The Court thinks it legitimate to conclude that an important, not to say a paramount object of the settlements of the 1904-1908 period (which brought about a comprehensive regulation of all outstanding frontier questions between the two countries), was to put an end to this state of tension and to achieve frontier stability on a basis of certainty and finality. AN ATTITUDE THAT FINALITY HAS BEEN ATTAINED AS TO THE EARLIER DELIMITATIONS IS REVEALED IN THE SUCCEEDING BOUNDARY TREATIES AND DELIMITATIONS. In the Franco-Siamese Boundary Treaty of 23 March 1907, the Parties recited in the preamble that they were desirous “of ensuring the final regulation of all questions relating to the common frontiers of Indo-China and Siam”. A further token of the same object is to be found in the desire, of which the documentation contains ample evidence, and which was evinced by both Parties, for natural and visible frontiers. Even if, as the Court stated earlier, this is not in itself a reason for holding that the frontier must follow a natural and visible line, it does support the view that the Parties wanted certainty and finality by means of natural and visible lines. The same view is strongly supported by the Parties’ attitude over frontiers in the 1925 and 1937 Treaties. By specifically excluding frontiers from the process of revision of previous treaties, which the 1925 and 1937 Treaties otherwise effected, the Parties bore witness to the paramount importance they attached to finality in this field. Their attitude in 1925 and 1937 can properly be taken as evidence that they equally desired finality in the 1904-1908 period. NO SPECIAL IMPORTANCE IN PROVIDING WATERSHED INDICATION IN ARTICLE 1 OF THE 1904 TREATY. The indication of the line of the watershed in Article I of the 1904 Treaty was itself no more than an obvious and convenient way of describing a frontier line objectively, though in general terms. There is, however, no reason to think that the Parties attached any special importance to the line of the watershed as such, as compared with the overriding importance, in the interests of finality, of adhering to the map line as eventually delimited and as accepted by them.

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UNNECESSARY TO DETERMINE WON THE BOUNDARY IN THE MAP CORRESPONDS WITH THE WATERSHED LINE. The Court, therefore, feels bound, as a matter of treaty interpretation, to pronounce in favour of the line as mapped in the disputed area. Given the grounds on which the Court bases its decision, it becomes unnecessary to consider whether, at Preah Vihear, the line as mapped does in fact correspond to the true watershed line in this vicinity, or did so correspond in 1904-1908, or, if not, how the watershed line in fact runs. DISPOSITION IN FAVOR OF CAMBODIA. In the presence of the claims submitted to the Court by Cambodia and Thailand, respectively, concerning the sovereignty over Preah Vihear thus in dispute between these two States, the Court finds in favour of Cambodia in accordance with her third Submission. It also finds in favour of Cambodia as regards the fourth Submission concerning the withdrawal of the detachments of armed forces. As regards the fifth Submission of Cambodia concerning restitution the Court considers that the request made in it does not represent any extension of Cambodia’s original claim (in which case it would have been irreceivable at the stage at which it was first advanced). Rather is it, like the fourth Submission, implicit in, and consequential on, the claim of sovereignty itself. On the other hand, no concrete evidence has been placed before the Court showing in any positive way that objects of the kind mentioned in this Submission have in fact been removed by Thailand from the Temple or Temple area since Thailand’s occupation of it in 1954. It is true that Thailand has not so much denied the allegation as contended that it is irreceivable. In the circumstances, however, the question of restitution is one on which the Court can only give a finding of principle in favour of Cambodia, without relating it to any particular objects. VOTES. For these reasons, by 9 votes to 3, finds that the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia; finds in consequence, by 9 votes to 3, that Thailand is under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory; by 7 votes to 5, that Thailand is under an obligation to restore to Cambodia any objects of the kind specified in Cambodia’s fifth Submission which may, since the date of the occupation of the Temple by Thailand in 1954, have been removed from the Temple or the Temple area by the Thai authorities. JOINT DECLARATION OF Judge TANAKA and Judge MORELLI. AS TO CAMBODIA’S CLAIM FOR RESTORATION: FILED OUT OF TIME. THE COURT SHOULD NOT HAVE ADJUDICATED ON THE MATTER. We wish to make clear the reason why, to Our great regret, we were unable to concur in the majority opinion on the clause of the operative provisions of the Judgrnent concerning the restoration by Thailand to Cambodia of any objects which may have been removed from the Temple. The fact that we voted against this clause of the operative provisions is in no way connected with the foundation of Cambodia’s claim for the restoration of the objects in question. We did so because we think that the Court should have refrained from pronouncing on that claim since, having been made for the first time in the Submissions filed by Cambodia on 5 March 1962, it must be considered to be out of time. The claim as it is formulated in Cambodia’s Application is directed not to the return of the Temple as such, but rather to sovereignty over the portion of territory in which the Temple is situated. It is directed, further, to one of the consequences flowing from Cambodian sovereignty over the said portion of territory, that is to say, Thailand’s obligation to withdraw the detachments of armed forces it had stationed there, this consequence being explicitly indicated by Cambodia in its Application. The other possible consequence of Cambodian sovereignty over the portion of territory in which the Temple is situated, namely, Thailand’s obligation to restore to Cambodia any objects that may have been removed from the Temple, is a consequence that is not indicated in the Application. A claim for the return of the said objects cannot be considered to be implicitly contained in the claim presented by Cambodia in its Application, that claim having, as has been stated above, a completely different subject. It is only if the claim by Cambodia had had directly as its subject the return of the Temple that it would have been possible, but then only through a liberal construction of such a claim, to consider that that claim was concerned also with objects which, having formed part of the Temple prior to the Application, had, also prior to the Application, been removed from the Temple.

CASE CONCERNING RIGHT OF PASSAGE OVER INDIAN TERRITORY: PORTUGAL V. INDIA
1960. ICJ. 6.

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The present dispute was referred to the Court by an Application filed on December 22, 1955. A DESCRIPTION OF THE ENCLAVES. The Government of the Portuguese Republic states that the territory of Portugal in the Indian Peninsula is made up of the three districts of Goa, Daman and Diu. The district of Daman comprises, in addition to its littoral territory, two parcels of territory completely surrounded by the territory of India which constitute enclaves: Dadra and Nagar-Aveli.
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It is in respect of the communications between these enclaves and Daman and between each other that the question arises of a right of passage in favour of Portugal through Indian territory, and of a correlative obligation binding upon India. THE BEGINNING OF THE DISPUTE. In July 1954, contrary to the practice followed, the Government of India prevented Portugal from exercising this right of passage. This denial by India having been maintained, it has followed, according to the Application of Portugal, that the enclaves of Dadra and Nagar-Aveli have been completely cut off from the rest of the Portuguese territory, the Portuguese authorities thus being placed in a position in which it became impossible for them to exercise Portuguese rights of sovereignty there. The Portuguese claim that such denial of passage was due to India’s “open campaign, which it has been carrying on since 1950, for the annexation of Portuguese territories”. It is in that situation, and in order to secure a remedy therefore, that Portugal has referred the matter to the Court. PORTUGAL’S FINAL SUBMISSIONS, DATED OCTOBER 6, 1959. In light of the controversy, Portugal asked the court: To adjudge and declare that the right of passage between the enclaves of Dadra and Nagar- Aveli and between these enclaves and the coastal district of Daman, as defined above, is a right possessed by Portugal and which must be respected by India. And, To adjudge and declare that India has not complied with the obligations incumbent upon it by virtue of Portugal’s right of passage. Thus formulated, the claim reveals both the right claimed by Portugal and the correlative obligation binding upon India. It is clear from this reference that the right of passage is invoked by Portugal “only to the extent necessary for the exercise of Portuguese sovereignty over the enclaves”. It is not contended that passage is accompanied by any immunity in favour of those who effect it. It is made clear that such passage remains subject to the regulation and control of India, which must be exercised in good faith, India being under an obligation not to prevent the transit necessary for the exercise of Portuguese sovereignty over the enclaves. INDIA’S SUBMISSIONS. India has confined itself in its Submissions to hold that the ICJ is without jurisdiction and in the alternative to hold that the claim is unfounded. THE JURISDICTION OF THE ICJ ISSUE: Does the International Court of Justice have jurisdiction to entertain the application of Portugal? HELD: Yes. The Court was seized of six preliminary objections of jurisdiction raised by the Government of India. By a Judgment given on November 26, 1957 the Court rejected four of them (but the decision never mentioned these first four objections) and joined to the merits the two others, by which the Government of India continued to dispute the jurisdiction of the Court to deal with the present case. The Court has first to adjudicate upon these two objections. INDIA’S FIRST OBJECTION. QUESTION FALLS UNDER THE DOMESTIC JURISDICTION OF INDIA. The first objection (named Fifth Preliminary Objection the Government of India – because the first four objections were already rejected in a previous case) was that question of the grant or refusa1 of the passage claimed over Indian territory falls exclusively within the domestic jurisdiction of India and that the dispute is outside the jurisdiction of the Court. India relied upon the reservation which forms part of India’s Declaration of 28 February 1940 accepting the jurisdiction of the Court and which excludes from that jurisdiction disputes with regard to questions that falls exclusively within the jurisdiction of India. The Government of India argues that on that score the present dispute is outside the jurisdiction of the Court. In support of its challenge of the jurisdiction the Government of India contended, that :

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“if its examination of the merits should lead the Court to a finding that Portugal has not established the existence of the titles which she has invoked, and that these titles must accordingly be regarded as non-existent, it must follow that the question of the grant or refusal of the passage claimed over Indian territory falls exclusively within the domestic jurisdiction of India...”. That statement admits of no dispute, but it cannot be inferred therefrom, as the Indian Government does, that the Court has no jurisdiction, since the statement proceeds from a finding by the Court that the titles invoked by Portugal are invalid. The Court can only arrive at that finding after first establishing its competence to examine the validity of these titles. PORTUGAL’S BASIS OF TITLE. In the present case Portugal is claiming a right of passage over Indian territory. It asserts the existence of a correlative obligation upon India. It asks for a finding that India has failed to fulfil that obligation. In support of the first two claims it invokes a Treaty of 1779, of which India contests both the existence and the interpretation. Portugal relies upon a practice of which India contests not only the substance, but also the binding character as between the two States which Portugal seeks to attach to it. Portugal further invokes international custom and the principles of international law as it interprets them. THE CONTROVERSY INVOLVES PRINCIPLES OF INTERNATIONAL LAW. To contend that such a right of passage is one which can be relied upon as against India, to claim that such an obligation is binding upon India, to invoke, whether rightly or wrongly, such principles is to place oneself on the plane of international law. FIRST OBJECTION REJECTED. Indeed, in the course of the proceedings both Parties took their stand upon that ground and on occasion expressly said so. To decide upon the validity of those principles, upon the existence of such a right of Portugal as against India, upon such obligation of India towards Portugal, and upon the alleged failure to fulfill that obligation, does not fa11 exclusively within the jurisdiction of India. INDIA’S SECOND OBJECTION. THE DISPUTE AROSE BEFORE 1930. The second objection (the Sixth Preliminary Objection) by which India has challenged the jurisdiction of the Court is that only disputes arising after February 5, 1930 and with regard to situations or facts subsequent to the same date may be submitted to the jurisdiction of the Court. It likewise relates to a limitation of India’s acceptance of the jurisdiction of the Court, as set out in its Declaration of 28 February 1940. By the terms of that Declaration India accepted the jurisdiction of the Court “over all disputes arising after February 5 , 1930, with regard to situations or facts subsequent to the same date”. India contends that the present dispute does not satisfy either of the two conditions stated and that the Court is therefore without jurisdiction. THE THREE-FOLD SUBJECT OF THE CASE. From the Application itself and it was fully confirmed by the subsequent proceedings, the Submissions of the Parties and statements made in the course of the hearings, that the dispute submitted to the Court has a threefold subject: (1) The disputed existence of a right of passage in favour of Portugal; (2) The alleged failure of India in July 1954 to comply with its obligations concerning that right of passage; (3) The redress of the illegal situation flowing from that failure. The dispute before the Court, having this three-fold subject, could not arise until al1 its constituent elements had come into existence. Among these are the obstacles that India is alleged to have placed in the way of exercise of passage by Portugal in 1954. The dispute therefore as submitted to the Court could not have originated until 1954. Thus it satisfies the time-condition to which the Declaration of India made its acceptance of the jurisdiction of the Court subject. But, India further contends that the dispute is one with regard to facts and situations prior to that date and that this takes it outside the jurisdiction of the Court. DECLARATION LOOKED AT IN A POSITIVE MANNER. On the point here under consideration, the Declaration of 28 February 1940, by which India has accepted the jurisdiction of the Court, does not proceed on the principle of excluding from that acceptance any given disputes: It proceeds in a positive manner on the basis of indicating the disputes which are included within that acceptance. By th its terms, the jurisdiction of the Court is accepted “over al1 disputes arising after February 5 , 1930, with regard to situations or facts subsequent to the same date”.
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The dispute submitted to the Court is one with regard to a situation and, at the same time, with regard to certain facts: on the one hand there is the situation of the Portuguese enclaves within the-territory of India, which gave rise to the need for a right of passage for Portugal and to its claim to such a right; on the other hand there are the facts of 1954 which Portugal advances as showing the failure of India to comply with its obligations, infringements of that right. NO LEGAL CONTROVERSY UP UNTIL 1954. Up to 1954 the situation of those territories may have given rise to a few minor incidents, but passage had been effected without any controversy as to the title under which it was effected. It was only in 1954 that such a controversy arose and the dispute relates both to the existence of a right of passage to go into the enclaved territories and to India’s failure to comply with obligations which, according to Portugal, were binding upon it in this connection. It was from al1 of this that the dispute referred to the Court arose; it is with regard to all of this that the dispute exists. This whole, whatever may have been the earlier origin of one of its parts, came into existence only after 5 February 1930. The time-condition to which acceptance of the jurisdiction of the Court was made subject by the Declaration of India is therefore complied with. NO RETROACTIVE EFFECT TO INDIA’S ACCEPTANCE OF JURISDICTION. A finding that the Court has jurisdiction in this case will not involve giving any retroactive effect to India’s acceptance of the compulsory jurisdiction. The Court indeed will only have to pass upon the existence of the right claimed by Portugal as of July 1954, upon the alleged failure of India to comply with its obligations at that time and upon any redress in respect of such a failure. The Court has not been asked for any finding whatsoever with regard to the past prior to 5 February 1930. It would be idle to argue that the contentions put forward with regard to the existence of a right of passage would, if that question had been argued before 1930, have been the same as when it is today. Apart from the fact that that consideration relates only to a part of the present dispute, it overlooks the fact that the condition to which the Court’s jurisdiction is subject does not relate to the nature of the arguments susceptible of being advanced. The fact that a treaty, of greater or lesser antiquity, that a rule of international law, established for a greater or lesser period, are invoked, is not the yardstick for the jurisdiction of the Court according to the Indian Declaration. That Declaration is limited to the requirement that the dispute shall concern a situation or facts subsequent to 5 February 1930: the present dispute satisfies that requirement. SECOND OBJECTION REJECTED. The Court is therefore of opinion that the second objection should not be upheld and, consequently, it is of opinion that it has jurisdiction to deal with the present dispute. PRELIMINARY MATTER: THE DATE IN CONTROVERSY PRELIMINARY ISSUE: In deciding whether there indeed existed a right of passage possessed by that Portugal, the Court first will first look into, what date must the Court ascertain whether the right invoked by Portugal exists or does not exist? HELD: 1954 Portugal has not indicated which date is the relevant one in this connection and, having regard to its silence on the point, the inclination might be to regard as the relevant date that of the Application or that of the Judgment. But this would fail to take into account the circumstances in which the question of the existence of a right of passage was put to the Court. THE EVE OF THE CREATION OF THE OBSTACLES. The question was put to the Court in respect of the dispute, which has arisen between India and Portugal with regard to obstacles placed by India in the way of passage. The immediate purpose of the Application by Portugal sought a finding as to character of the obstacles by India. It was in support of this contention that it invoked its right of passage and asked the Court to declare the existence of that right. This being so, it is the eve of the creation of these obstacles that must be selected as the starting point which to ascertain whether or not Portugal possessed such a right.

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THE MERITS OF THE CASE It follows, that the Court has only three matters to consider on the merits:
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(1) The existence in 1954 of a right of passage in Portugal’s favour to the extent necessary for the exercise of its sovereignty over the enclaves, exercise of that right being regulated and controlled by India; (2) Failure by India in 1954 to fulfil its obligation in regard to that right of passage; (3) In the event of a finding of such failure, the remedy for the resulting unlawful situation. PORTUGAL’S CLAIMS REITERATED. PORTUGAL’S RIGHT OF PASSAGE BETWEEN THE ENCLAVES. Portugal claims a right of passage between Daman and the enclaves, and between the enclaves, across intervening Indian territory, to the extent necessary for the exercise of its sovereignty over the enclaves, subject to India’s right of regulation and control of the passage claimed, and without any immunity in Portugal’s favour. It claims further that India is under obligation so to exercise its power of regulation and control as not to prevent the passage necessary for the exercise of Portugal’s sovereignty over the enclaves. INDIA’S CLAIMS. THE RIGHT CLAIMED BY PORTUGAL IS TOO VAGUE AND CONTRADICTORY. On the other hand, India contends that the right claimed by Portugal is too vague and contradictory to enable the Court to pass judgment upon it by the application of the legal rules enumerated in Article 38 (1) of the Statute. India argues that the vague and contradictory character of the right claimed by Portugal is proved by Portugal’s admission that on the one hand the exercise of the right is subject to India’s regulation and control as the territorial sovereign, and that on the other hand the right is not accompanied by any immunity, even in the case of the passage of armed forces. PORTUGAL’S CLAIM. NOT VAGUE NOR CONTRADICTORY. The Court is satisfied that the right of passage claimed by Portugal has, in the circumstances, been defined with sufficient precision to enable the Court to pass upon it. FIRST ISSUE: Does Portugal exercise sovereignty over the enclaves? HELD: Initially, there was none. But, during the British period, Portuguese sovereignty over the villages was recognized by the British in fact and by implication and was subsequently tacitly recognized by India. THE PRE- BRITISH TIMES. THE MARATHAS RULE. In support of its claim, Portugal relies on the Treaty of Poona of 1779 and on sanads (decrees), issued by the Maratha ruler in 1783 and 1785, as having conferred sovereignty on Portugal over the enclaves with the right of passage to them. India was saying that the Treaty of 1779 was not validly entered into and never became binding on the Marathas. PORTUGAL’S FIRST CLAIM OF SOVEREIGNTY. THE TREATY OF 1779. The Court finds it is sufficient to state that the validity of a treaty concluded as long ago as the last quarter of the eighteenth century, in the conditions then prevailing in the Indian Peninsula, should not be judged upon the basis of practices and procedures which have since developed only gradually. The Marathas themselves regarded the Treaty of 1779 as valid and binding upon them, and gave effect to its provisions. TREATY OF 1779, VALID AND BINDING. The Treaty is frequently referred to as such in subsequent formal Maratha documents, including the two sanads of 1783 and 1785, which purport to have been issued in pursuance of the Treaty. The Marathas did not at any time cast any doubt upon the validity or binding character of the Treaty. India contends further that the Treaty and the two sanads of 1783 and 1785 taken together did not operate to transfer sovereignty over the assigned villages to Portugal, but only conferred upon it, with respect to the villages, a revenue grant of the value of 12,000 rupees per annum called a jagir or saranjam TREATY DID NOT GRANT SOVEREIGNTY, ONLY A REVENUE GRANT. From an examination of the various texts of that article placed before it, the Court is unable to conclude that the language employed therein was intended to transfer sovereignty over the villages to the Portuguese. There are several instances on the record of treaties concluded by the Marathas, which show that, where a transfer of sovereignty was intended, appropriate and adequate expressions like cession “in perpetuity” or “in perpetual sovereignty” were used. The expressions used in the two sanads and connected relevant documents establish, that what was granted to the Portuguese was only a revenue tenure called a jagir or saranjam of the value of 12,000 rupees a year. This was a very common form of grant in India and not a single instance has been brought to the notice of the Court in which such a grant has been construed as amounting to a cession of territory in sovereignty.

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PORTUGAL’S SECOND CLAIM OF SOVEREIGNTY. THE GRANT OF AUTHORITY TO PUT DOWN REVOLT. The Portuguese argue again that another indication that sovereignty over the villages was granted to them because they were granted the authority to put down revolt or rebellion in the assigned villages. The Court finds this conclusion not well- founded. If the intention of the Marathas had been to grant sovereignty over the villages to the Portuguese, it would have been unnecessary for the grant to recite that the future sovereign would have authority to quel1 a revolt or rebellion in his own territory. It would appear that the intention was that the Portuguese would have authority on behalf of the Maratha ruler and would owe a duty to him to put down any revolt or rebellion in the villages against his authority. It therefore appears that the Treaty of 1779 and the sanads of 1783 and 1785 were intended by the Marathas to effect in favour of the Portuguese only a grant of a jagir or saranjam, and not to transfer sovereignty over the villages to them. During the Maratha period sovereignty over the villages comprised in the grant, as well as over the intervening territory between coastal Daman and the villages, vested in the Marathas. MARATHAS EXERCISED SOVEREIGNTY OVER THE VILLAGES. At that time, the Marathas had sovereignty over the villages, there could be no question of any enclave or of any right of passage of Portugal for the purpose of exercising sovereignty over enclaves. The fact that the Portuguese had access to the villages for the purpose of collecting revenue and in pursuit of that purpose exercised such authority as had been delegated to them by the Marathas cannot, in the view of the Court, be equated to a right of passage for the exercise of sovereignty. CHANGING TIMES, THE BRITISH OCCUPATION. But, the situation underwent a change with the advent of the British as sovereign of that part of the country in place of the Marathas. The British found the Portuguese in occupation of the villages and exercising full and exclusive administrative authority over them. The British accepted the situation as they found it and left the Portuguese in occupation of, and in exercise of exclusive authority over, the villages. The Portuguese held themselves out as sovereign over the villages. PORTUGUESE SOVEREIGNTY OVER TERRITORY, RECOGNIZED BY BRITISH. The British did not, as successors of the Marathas, claim sovereignty, nor did they accord express recognition of Portuguese sovereignty, over them. The exclusive authority of the Portuguese over the villages was never brought in question. Thus, Portuguese sovereignty over the villages was recognized by the British in fact and by implication and was subsequently tacitly recognized by India. SECOND ISSUE: Whether or not there existed in 1954 a right of passage in Portugal’s favour to the extent necessary for the exercise of its sovereignty over the enclaves (subject to the control and regulation of India) with regards private persons, civil officials and goods in general? HELD: Yes. With regard to private persons, civil officials and goods in general, there existed during the British and post-British, periods a constant and uniform practice allowing free passage between Daman and the enclaves. For the purpose of determining whether Portugal has established the right of passage claimed by it, the Court must have regard to what happened during the British and post-British periods. INDIA’S CLAIM, NO LOCAL CUSTOM COULD BE ESTABLISHED BETWEEN ONLY TWO STATES. With regard to Portugal’s claim of a right of passage as formulated by it on the basis of local custom, it is objected on behalf of India that no local custom could be established between only two States. COURT DISAGREES. CUSTOM CAN BE ESTABLISHED AS A RESULT OF LONG AND CONTINUED PRACTICE BETWEEN TWO STATES. The Court says that it is difficult to see why the number of States between which a local custom may be established on the basis of long practice must necessarily be larger than two. The Court sees no reason why long continued practice between two States accepted by them as regulating their relations should not form the basis of mutual rights and obligations between the two States.

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PRIVATE PERSONS AND CIVIL OFFICIALS. NO RESTRICTION TO PASSAGE. It is common ground between the Parties that the passage of private persons and civil officials was not subject to any restrictions, beyond routine control, during the British and post- British periods. There is nothing on the record to indicate the contrary.
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GOODS IN GENERAL. NO RESTRICTION TO PASSAGE OTHER THAN CUSTOMS, SECURITY AND REVENUE REGULATIONS. Goods in general, that is to say, al1 merchandise other than arms and ammunition, also passed freely between Daman and the enclaves during such periods, subject only, at certain times, to customs regulations and such regulation and control as were necessitated by considerations of security or revenue. THE EXEPTIONAL TIMES DURING THE SECOND WORLD WAR. The general prohibition of the transit of goods during the Second World War and prohibitions imposed upon the transit of Salt and, on certain occasions, upon that of liquor and materials for the distillation of liquor, were specific measures necessitated by the considerations of that time. The scope and purpose of each prohibition were clearly defined. In all other cases the passage of goods was free. No authorization or licence was required. PRIVATE PERSONS, CIVIL OFFICIALS AND GOODS IN GENERAL, CONSTANT AND UNIFORM PRACTICE OF FREE PASSAGE. The Court concludes that, with regard to private persons, civil officials and goods in general, there existed during the British and post-British, periods a constant and uniform practice allowing free passage between Daman and the enclaves. This practice having continued over a period extending beyond a century and a quarter unaffected by the change of regime in respect of the intervening territory which occurred when India became independent. The Court is, in view of all the circumstances of the case, satisfied that that practice was accepted as law by the Parties and has given rise to a right and a correlative obligation. The Court therefore holds that Portugal had in 1954 a right of passage over intervening Indian territory between coastal Daman and the enclaves and between the enclaves, in respect of private persons, civil officials and goods in general, to the extent necessary, as claimed by Portugal, for the exercise of its sovereignty over the enclaves, and subject to the regulation and control of India. THIRD=) ISSUE: Whether there exists a right of passage in favour of Portugal with regards armed forces, armed police and arms and ammunition? HELD: No. With regards armed forces, armed police and arms and ammunition, no right of passage exists. The practice that was established shows that, with regard to these categories, it was well understood that passage could take place only by permission of the British authorities. This situation continued during the post-British period. As regards armed forces, armed police and arms and ammunition, the position is different. ARMED FORCES, THE PRINCIPLE OF RECIPROCITY. It appears that during the British period up to 1878 passage of armed forces and armed police between British and Portuguese possessions was regulated on a basis of reciprocity. No distinction appears to have been made in this respect with regard to passage between Daman and the enclaves. There is nothing to show that passage of armed forces and armed police between Daman and the enclaves or between the enclaves was permitted or exercised as of right. MARATHAS AND PORTUGESE TREATY OF 1741. The statement that this practice concerning the passage of armed forces from the territory of one State to that of the other had continued over a long period even before the enclaves came into existence finds support, for instance, in a Treaty of 1741 between the Marathas and the Portuguese which contained the following provision: “A soldier of the Sarkar [Maratha ruler] entering the territory of Daman will do so only with the permission of the Firangee [Portuguese]. If a soldier of the Firangee were to enter the territory of the Sarkar, he will do so only with the permission of the Sarkar. There is no reason to enter without permission.” TREATY OF COMMERCE AND EXTRADITION. Paragraph 3 of Article XVIII of the Treaty of Commerce and Extradition of 26 December 1878 between Great Britain and Portugal laid down that the armed forces of the two Governments should not enter the Indian dominions of the other, except for the purposes specified in former Treaties, or for the rendering of mutual assistance as provided for in the Treaty itself, or in consequence of a formal request made by the Party desiring such entry. Subsequent correspondence between the British and Portuguese authorities in India shows that this provision was applicable to passage between Daman and the enclaves.

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TWENTY- THREE OCCASIONS OF PASSAGE OF ARMED FORCES WITHOUT PERMISSION. Portugal claims that on twenty-three occasions during the years 1880-1889, Portuguese armed forces crossed British territory between Daman and the enclaves without obtaining permission.

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INDIAN GOVERNMENT COMPLAINS. However, in connection to the Portuguese claim that there were 23 occasions that armed forces were allowed to cross the territory, it should be known that Indian government complained as to this fact. On 8 December 1890 the Government of Bombay forwarded to the Government of Portuguese India a complaint to the effect that “armed men in the service of the Portuguese Government are in the habit of passing without forma1 request through a portion of the British Pardi talztka of Surat en route from Daman to Nagar Haveli and back again. It would appear that the provisions of Article XVIII of the Treaty are thus violated.” THE LETTER OF THE GOVERNOR- GENERAL OF PORTUGAL. In his letter of 22 December 1890 addressed to the Governor of Bombay, the Governor-General of Portuguese India stated: “On so delicate a subject 1 request leave to observe that Portuguese troops never cross British territory without previous permission”, and went on to add: “For centuries has this practice been followed, whereby the treaties have been respected and due deference shown to the British Authorities.” THE LETTER OF THE SECRETARY GENERAL OF PORTUGUESE INDIA. In consequence of the British complaint and the reply of the Governor- General of Portugese India, a certain amount of further correspondence took place and the matter was concluded with the assurance contained in the letter of the Secretary-General of the Government of Portuguese India dated May 1 1891, in which he stated: “His Excellency thanks you for the communication with regard to the circumstances in which the matter is placed, and requests me to state that on the part of this Government injunctions will be given for the strictest observance of the provisions of Article XVIII of the Anglo-Portuguese Treaty.” REQUIREMENT OF A FORMAL REQUEST. Whether any such violation did or did not take place, the legal position with regard to the passage of armed forces between Daman and the enclaves appears clearly from this correspondence. The requirement of a forma1 request before passage of armed forces could take place was repeated in an agreement of 1913. ARMED POLICE, AGAIN, THE PRINCIPLE OF RECIPROCITY. With regard to armed police, the position was similar to that of armed forces. The Treaty of 1878 regulated the passage of armed police on the basis of reciprocity. Paragraph 2 of Article XVIII of the Treaty made provision for the entry of the police authorities of the parties into the territories of the other party for certain specific purposes, e.g., the pursuit of criminals and persons engaged in smuggling and contraband practices, on a reciprocal basis. VARIOUS AGREEMENTS INVOLVING ARMED POLICE. An Agreement of 1913 established an arrangement providing for a reciprocal concession permitting parties of armed police to cross intervening territory, provided previous intimation was given. An Agreement of 1920 provided that armed police below a certain rank should not enter the territory of the other party without consent previously obtained. An Agreement of 1940 concerning passage of Portuguese armed police over the Daman-Silvassa (Nagar-Aveli) road provided that, if the party did not exceed ten in number, intimation of its passage should be given to the British authorities within twenty-four hours after passage had taken place, but that “If any number exceeding ten at a time are required so to travel at any time the existing practice should be followed and concurrence of the British authorities should be obtained by prior notice as heretofore.” Both with regard to armed forces and armed police, no change took place during the post-British period after India became independent. BRITISH AND POST- BRITISH PERIODS, NEED FOR AUTHORIZATION. It would thus appear that, during the British and post-British periods, Portuguese armed forces and armed police did not pass between Daman and the enclaves as of right and that, after 1878, such passage could only take place with previous authorization by the British and later by India, accorded either under a reciprocal arrangement already agreed to, or in individual cases. NO RIGHT OF PASSAGE. Having regard to the special circumstances of the case, this necessity for authorization before passage could take place constitutes, in the view of the Court, a negation of passage as of right. The practice predicates that the territorial sovereign had the discretionary power to withdraw or to refuse permission.

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PERMISSION ALWAYS GRANTED, STILL NO RIGHT OF PASSAGE. It is argued that permission was always granted, but this does not affect the legal position. There is nothing in the record to show that grant of permission was incumbent on the British or on India as an obligation.

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ARMS AND AMMUNITION, NEED FOR A SPECIAL LICENSE. As regards arms and ammunition, paragraph 4 of Article XVIII of the Treaty of 1878 provided that the exportation of arms, ammunition or military stores from the territories of one party to those of the other “shall not be permitted, except with the consent of, and under rules approved of by, the latter”. Rule 7 A, added in 1880 to the rules framed under the Indian Arms Act of 1878, provided that “nothing in d e s 5,6, or 7 shall be deemed to authorize the grant of licences ... to import any arms, ammunition or military stores from Portuguese India, [or] to export to Portuguese India ... [such objects+ ... except ... by a special license”. Subsequent practice shows that this provision applied to transit between Daman and the enclaves. THE DISTINCTION BETWEEN THE RIGHT OF FREE PASSAGE OF PRIVATE PERSONS, ETC. AND NO RIGHT AS TO THE ARMED FORCES, ETC. There was thus established a clear distinction between the practice permitting free passage of private persons, civil officials and goods in general, and the practice requiring previous authorization, as in the case of armed forces, armed police, and arms and ammunition. The Court is, therefore, of the view that no right of passage in favour of Portugal involving a correlative obligation on India has been established in respect of armed forces, armed police, and arms and ammunition. The course of dealings established between the Portuguese and the British authorities with respect to the passage of these categories excludes the existence of any such right. The practice that was established shows that, with regard to these categories, it was well understood that passage could take place only by permission of the British authorities. This situation continued during the post-British period. FOURTH ISSUE: Was there a general international custom and general principles of law recognized by civilized nations in support of Portugal’s claim over the right of passage? COURT DOES NOT FIND IT NECESSARY TO EXAMINE GENERAL INTERNATIONAL CUSTOM. Portugal also invokes general international custom, as well as the general principles of law recognized by civilized nations, in support of its claim of a right of passage as formulated by it. Having arrived at the conclusion that the course of dealings between the British and Indian authorities on the one hand and the Portuguese on the other established a practice, well understood between the Parties, by virtue of which Portugal had acquired a right of passage in respect of private persons, civil officials and goods in general, the Court does not consider it necessary to examine whether general international custom or the general principles of law recognized by civilized nations may lead to the same result. As regards armed forces, armed police and arms and ammunition, the finding of the Court that the practice established between the Parties required for passage in respect of these categories the permission of the British or Indian authorities, renders it unnecessary for the Court to determine whether or not, in the absence of the practice that actually prevailed, general international custom or the general principles of law recognized by civilized nations could have been relied upon by Portugal in support of its claim to a right of passage in respect of these categories. PARTICULAR PRACTICE OF TWO STATES OVER GENERAL RULES. The Court is here dealing with a concrete case having special features. Historically the case goes back to a period when, and relates to a region in which, the relations between neighbouring States were not regulated by precisely formulated rules but were governed largely by practice. Where therefore the Court finds a practice clearly established between two States, which was accepted by the Parties as governing the relations between them, the Court must attribute decisive effect to that practice for the purpose of determining their specific rights and obligations. Such a particular practice must prevail over any general rules. FIFTH ISSUE: Whether India has acted contrary to its obligation resulting from Portugal’s right of passage? HELD: No. India’s refusal was covered by its power of regulation and control over the passage of Portugal. Portugal complains of the progressive restriction of its right of passage between October 1953 and July 1954.

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DENIAL TO THE RIGHT OF PASSAGE. Portugal complains that passage was thereafter denied to Portuguese nation, whether civil officials or private persons, to native Indian Portuguese in the employ of the Portuguese Government, and to a delegation that the Governor of Daman proposed to send to Nagar-Aveli and Dadra.

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THE REASON FOR THE REFUSAL OF PASSAGE. The events that took place in Dadra on 21-22 July 1954 resulted in the overthrow of Portuguese authority in that enclave. This created tension in the surrounding Indian territory. Thereafter all passage was suspended by India. India contends that this became necessary in view of the abnormal situation, which had arisen in Dadra and the tension created in surrounding Indian territory. On 26 July the Portuguese Government requested that delegates of the Governor of Daman (if necessary limited to three) should be enabled to go to Nagar-Aveli in order to enter into contact with the population, examine the situation and take the necessary administrative measures on the spot. The request stated that if possible this delegation would also visit Dadra and examine the situation there. It mentioned that the delegation could be routed directly to Nagar-Aveli from Daman and need not necessarily pass through Dadra. The Government of India in its reply dated 28 July refused this request. The reply stressed inter alia the tension that prevailed in the intervening Indian temtory, and went on to state: “This tension is bound to increase if Portuguese officials are permitted to go across Indian territory for the purposes mentioned in the note. The passage of these officials across Indian territory might also lead to other undesirable consequences in view of the strong feelings which have been aroused by the repressive actions of the Portuguese authorities. In these circumstances, therefore, the Government of India regret that they cannot entertain the demand of the Portuguese authorities for facilities to enable them to send a delegation from Daman to Dadra and Nagar-Aveli across Indian territory.” DENIAL OF PASSAGE WAS AN EXERCISE OF INDIA’S POWER OF REGULATION AND CONTROL IN VIEW OF THE TENSION PREVAILING IN THE INDIAN TERRITORY AT THAT TIME. In view of the tension then prevailing in intervening Indian territory, the Court is unable to hold that India’s refusal of passage to the proposed delegation and its refusal of visas to Portuguese nationals of European origin and to native Indian Portuguese in the employ of the Portuguese Government was action contrary to its obligation resulting from Portugal’s right of passage. Portugal’s claim of a right of passage is subject to full recognition and exercise of Indian sovereignty over the intervening territory and without any immunity in favour of Portugal. The Court is of the view that India’s refusal of passage in those cases was, in the circumstances, covered by its power of regulation and control of the right of passage of Portugal. OTHER ISSUES NOT TAKEN INTO CONSIDERATION BY THE COURT ISSUE: Whether India failed to respect its obligation, said to be binding on it under general international law, to adopt suitable measures to prevent the incursion of subversive elements into the territory of another State? OVERTHROW OF THE PORTUGUESE AUTHORITY AT DADRA AND NAGAR- AVELI. Mention is made of the events leading to the overthrow of Portuguese authority at Dadra and Nagar-Aveli in July and August 1954 brought about, in particular, by the action of elements coming from Indian territory. In this connection allusion is made to India’s failure to respect the obligation, said to be binding on it under general international law, to adopt suitable measures to prevent the incursion of subversive elements into the territory of another State. INDIA’S DUTIES ACCORDING TO PORTUGAL. With regard to the events of July 1954, it is stated among the grounds in support of the Portuguese Submissions that “the threat of action directed against the Portuguese territories of India could not be a matter of which the Indian Government was unaware”; that “it was clearly incumbent upon the Indian Government to take the measures which lay in its power to prevent the realization of such a design”; that “the Indian Government took no such measures”; that, following the public announcement of an expedition by the “United Front of Goans” against Nagar-Aveli, “the Indian Government took no step to prevent that second expedition”; and that, “so far from thus performing its duty towards Portugal, it firmly opposed all communications of Portugal with the enclaves”. INDIA IN BREACH OF A GENERAL OBLIGATION UNDER INTERNATIONAL LAW ACCORDING TO PORTUGAL. All this is stated, not merely to demonstrate in what circumstances India impeded or prohibited passage by Portugal, but also to demonstrate that, as well as failing to respect its special obligation in the matter of passage, India was in breach of a general obligation under international law. The grounds in support of the Submissions make this clear by adding, after the description of the events of that time, that “the attitude adopted by India is thus in two respects contrary to the duty imposed upon it by international law, since instead of protecting Portugal against the unlawful enterprise with which the latter was threatened, it placed Portugal in a situation in which it was impossible for that State to defend itself against that enterprise”.
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In terms much more definite even than the above, Counsel for Portugal, speaking at the hearing of 29 October 1959, accused India of failure to fulfil its international obligations by tolerating on its territory enterprises directed against Portuguese authority at Dadra, and later at Nagar-Aveli. India denied this and, “indignantly” rejects the accusation thus brought against it, and explains what course it actually followed. COURT WILL NOT DEAL WITH THIS ISSUE FOR IT WAS NOT ASKED BY THE PARTIES IN THEIR SUBMISSIONS. The Court is not required to deal with this issue, for it has not been asked, either in the Application or in the final Submissions of the Parties, to decide whether or not India’s attitude towards those who instigated and brought about the events which occurred in 1954 at Dadra and Nagar-Aveli constituted a breach of its obligations under international law. COURT ONLY ASKED TO JUDGE ON THE COMPATIBILITY OF INDIA’S ACTION WITH PORTUGAL’S RIGHT OF PASSAGE. The Court is only asked to adjudicate upon the compatibility of India’s action with the obligations resulting from Portugal’s right of passage. It is not asked to determine whether India’s conduct was compatible with any other obligation alleged to be imposed upon it by international law. ISSUE: Whether or not the arguments of India are without foundation? Portugal invited the Court “to hold that the arguments of India are without foundation” on three points. These are arguments selected from the contentions by which India opposes the claims made by Portugal regarding the decision it seeks as to the future effect of the right of passage. These arguments relate to: (1) “India’s right to adopt an attitude of neutrality in the conflict between the lawful Government and the alleged insurgents”; (2) “The application of the provisions of the United Nations Charter relating to human rights and to the right of self determination of peoples”; (3) The bar constituted by “the existence in the enclaves of a ... local government which is not represented before the Court” to the Court’s “adjudicating, in the present circumstances, on the Portuguese claim”. The Court would take such arguments into consideration in the reasons for its Judgment if it regarded any of them as likely to assist it in arriving at the decision it is called upon to take. But it is no part of the judicial function of the Court to declare in the operative part of its Judgment that any of those arguments is or is not well-founded. However, the grounds set forth in support of this claim include certain considerations, which go beyond its subject matter. For these reasons, by thirteen votes to two, rejects the Fifth Preliminary Objection; by eleven votes to four, rejects the Sixth Preliminary Objection; by eleven votes to four, finds that Portugal had in 1954 a right of passage over intervening Indian territory between the enclaves of Dadra and Nagar-Aveli and the coastal district of Daman and between these enclaves, to the extent necessary for the exercise of Portuguese sovereignty over the enclaves and subject to the regulation and control of India, in respect of private persons, civil officials and goods in general; by eight votes to seven, finds that Portugal did not have in 1954 such a right of passage in respect of armed forces, armed police, and arms and ammunition; by nine votes to six, finds that India has not acted contrary to its obligations resulting from Portugal’s right of passage in respect of private persons, civil officials and goods in general.

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CORFU CHANNEL CASE (MERITS) (9 APRIL 1949)
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The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland-Albania) arose from incidents that occurred on nd October 22 1946, in the Corfu Strait: two British destroyers struck mines in Albanian waters and suffered damage, including serious
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loss of life. The United Kingdom first seized the Security Council of the United Nations which, by a Resolution of April 9 , 1947, recommended the two Governments to submit the dispute to the Court. The United Kingdom accordingly submitted an Application th which, after an objection to its admissibility had been raised by Albania, was the subject of a Judgment, dated March 25 , 1948, in which the Court declared that it possessed jurisdiction. On the same day the two Parties concluded a Special Agreement asking the Court to give judgment on the following questions: 1. Is Albania responsible for the explosions, and is there a duty to pay compensation? 2. Has the United Kingdom violated international law by the acts of its Navy in Albanian waters, first on the day on which the th th explosions occurred and, secondly, on November 12 and 13 , 1946, when it undertook a sweep of the Strait? In its Judgment the Court declared on the first question, by 11 votes against 5, that Albania was responsible. In regard to the second question, it declared by 14 votes against 2 that the United Kingdom did not violate Albanian sovereignty on nd th th October 22 ; but it declared unanimously that it violated that sovereignty on November 12 /13 , and that this declaration, in itself, constituted appropriate satisfaction. The facts are as follows. On October 22 , 1946, two British cruisers and two destroyers, coming from the south, entered the North Corfu Strait. The channel they were following, which was in Albanian waters, was regarded as safe: it had been swept in 1944 and check-swept in 1945. One of the destroyers, the Saumarez, when off Saranda, struck a mine and was gravely damaged. The other destroyer, the Volage, was sent to her assistance and, while towing her, struck another mine and was also seriously damaged. Fortyfive British officers and sailors lost their lives, and forty-two others were wounded. An incident had already occurred in these waters on May 15 , 1946: an Albanian battery had fired in the direction of two British cruisers. The United Kingdom Government had protested, stating that innocent passage through straits is a right recognized by international law; the Albanian Government had replied that foreign warships and merchant vessels had no right to pass through nd Albanian territorial waters without prior authorization; and on August 2 , 1946, the United Kingdom Government had replied that if, in the future, fire was opened on a British warship passing through the channel, the fire would be returned. Finally, on September st 21 , 1946, the Admiralty in London had cabled to the British Commander-in-Chief in the Mediterranean to the following x effect: “Establishment of diplomatic relations with Albania is again under consideration by His Majesty’s Government who wish to know whether the Albanian Government have learnt to behave themselves. Information is requested whether any ships under your command have passed through the North Corfu Strait since August and, if not, whether you intend them to do so shortly.” After the explosions on October 22 , the United Kingdom Government sent a Note to Tirana announcing its intention to sweep the Corfu Channel shortly. The reply was that this consent would not be given unless the operation in question took place outside Albanian territorial waters and that any sweep undertaken in those waters would be a violation of Albania’s sovereignty. The sweep effected by the British Navy took place on November 12 /13 1946, in Albanian territorial waters and within the limits of the channel previously swept. Twenty-two moored mines were cut; they were mines of the German GY type. *** The first question put by the Special Agreement is that of Albania’s responsibility, under international law, for the explosions on nd October 22 , 1946. The Court finds, in the first place, that the explosions were caused by mines belonging to the minefield discovered on November th 13 . It is not, indeed, contested that this minefield had been recently laid; it was in the channel, which had been previously swept and check-swept and could be regarded as safe, that the explosions had taken place. The nature of the damage shows that it was th th due to mines of the same type as those swept on November 13 ; finally, the theory that the mines discovered on November 13 nd might have been laid after the explosions on October 22 is too improbable to be accepted. In these circumstances the question arises what is the legal basis of Albania’s responsibility? The Court does not feel that it need pay serious attention to the suggestion that Albania herself laid the mines: that suggestion was only put forward pro memoria, without evidence in support, and could not be reconciled with the undisputed fact that, on the whole Albanian littoral, there are only a few launches and motor boats. But the United Kingdom also alleged the connivance of Albania: that the mine laying had been carried out by two Yugoslav warships by the request of Albania, or with her acquiescence. The Court finds that this collusion has not been
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proved. A charge of such exceptional gravity against a State would require a degree of certainty that has not been reached here, and the origin of the mines laid in Albanian territorial waters remains a matter for conjecture. The United Kingdom also argued that, whoever might be the authors of the mine laying, it could not have been effected without Albania’s knowledge. True, the mere fact that mines were laid in Albanian waters neither involves prima facie responsibility nor does it shift the burden of proof. On the other hand, the exclusive control exercised by a State within its frontiers may make it impossible to furnish direct proof of facts which would involve its responsibility in case of a violation of international law. The State which is the victim must, in that ease, 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. In the present case two series of facts, which corroborate one another, have to be considered. The first relates to the Albanian Government’s attitude before and after the catastrophe. The laying of the mines took place in a period in which it had shown its intention to keep a jealous watch on its territorial waters and in which it was requiring prior authorization before they were entered, this vigilance sometimes going so far as to involve the use of force: all of which render the assertion of ignorance a priori improbable. Moreover, when the Albanian Government had become fully aware of the existence of a minefield, it protested strongly against the activity of the British Fleet, but not against the laying of the mines, though this act, if effected without her consent, would have been a very serious violation of her sovereignty; she did not notify shipping of the existence of the minefield, as would be required by international law; and she did not undertake any of the measures of judicial investigation which would seem to be incumbent on her in such a case. Such an attitude could only be explained if the Albanian Government, while knowing of the mine laying, desired the circumstances in which it was effected to remain secret. The second series of facts relates to the possibility of observing the mine laying from the Albanian coast. Geographically, the channel is easily watched: it is dominated by heights offering excellent observation points, and it runs close to the coast (the nearest mine was 500 m. from the shore). The methodical and well-thought-out laying of the mines compelled the minelayers to remain from two to two-and-a-half hours in the waters between Cape Kiephali and the St. George’s Monastery. In regard to that point, the naval experts appointed by the Court reported, after enquiry and investigation on the spot, that they considered it to be indisputable that, if a normal look-out was kept at Cape Kiephali, Denta Point, and St. George’s Monastery, and if the lookouts were equipped with binoculars, under normal weather conditions for this area, the mine-laying operations must have been noticed by these coastguards. The existence of a look-out post at Denta Point was not established; but the Court, basing itself on the declarations of the Albanian Government that lock-out posts were stationed at other points, refers to the following conclusions in the experts’ report: that in the case of mine laying 1) from the North towards the South, the minelayers would have been seen from Cape Kiephali; if from South towards the North, they would have been seen from Cape Kiephali and St. George’s Monastery. From all the facts and observations mentioned above, the Court draws the conclusion that the laying of the minefield could not have been accomplished without the knowledge of Albania. As regards the obligations resulting for her from this knowledge, they are not nd disputed. It was her duty to notify shipping and especially to warn the ships proceeding through the Strait on October 22 of the danger to which they were exposed. In fact, nothing was attempted by Albania to prevent the disaster, and these grave omissions involve her international responsibility. The Special Agreement asks the Court to say whether, on this ground, there is “any duty” for Albania “to pay compensation” to the United Kingdom. This text gave rise to certain doubts: could the Court not only decide on the principle of compensation but also assess the amount? The Court answered in the affirmative and, by a special Order, it has fixed dine-limits to enable the Parties to submit their views to it on this subject. *** The Court then goes on to the second question in the Special Agreement: Did the United Kingdom violate Albanian sovereignty on nd th th October 22 , 1946, or on November 12 /13 , 1946? The Albanian claim to make the passage of ships conditional on a prior authorization conflicts with the generally admitted principle that States, in time of peace, have a right to send their warships through straits used for international navigation between two parts of the high seas, provided that the passage is innocent. The Corfu Strait belongs geographically to this category, even though it is
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only of secondary importance (in the sense that it is not a necessary route between two parts of the high seas) and irrespective of the volume of traffic passing through it. A fact of particular importance is that it constitutes a frontier between Albania and Greece, and that a part of the strait is wholly within the territorial waters of those States. It is a fact that the two States did not maintain normal relations, Greece having made territorial claims precisely with regard to a part of the coast bordering the strait. However, the Court is of opinion that Albania would have been justified in view of these exceptional circumstances, in issuing regulations in respect of the passage, but not in prohibiting such passage or in subjecting it to the requirement of special authorization. Albania has denied that the passage on October 22 was innocent. She alleges that it was a political mission and that the methods employed - the number of ships, their formation, armament, manoeuvres, etc. - showed an intention to intimidate. The Court examined the different Albanian contentions so far as they appeared relevant. Its conclusion is that the passage was innocent both in its principle, since it was designed to affirm a right which had been unjustly denied, and in its methods of execution, which were th not unreasonable in view of the firing from the Albanian battery on May 15 . As regards the operation on November 12 /13 , it was executed contrary to the clearly expressed wish of the Albanian Government; it did not have the consent of the international mine clearance organizations; it could not be justified as the exercise of the right of innocent passage. The United Kingdom has stated that its object was to secure the mines as quickly as possible for fear lest they should be taken away by the authors of the mine laying or by the Albanian authorities: this was presented either as a new and special application of the theory of intervention, by means of which the intervening State was acting to facilitate the task of the international tribunal, or as a method of self-protection or self-help. The Court cannot accept these lines of defence. It can only regard the alleged right of intervention as the manifestation of a policy of force which cannot find a place in international law. As regards the notion of self-help, the Court is also unable to accept it: between independent States the respect for territorial sovereignty is an essential foundation for international relations. Certainly, the Court recognises the Albanian Government’s complete failure to carry out its duties after the explosions and the dilatory nature of its diplomatic Notes as extenuating circumstances for the action of the United Kingdom. But, to ensure respect for international law, of which it is the organ, the Court must declare that the action of the British Navy constituted a violation of Albanian sovereignty. This declaration is in accordance with the request made by Albania through her counsel and is in itself appropriate satisfaction. *** To the Judgment of the Court there are attached one declaration and the dissenting opinions of fudges Alvarez, Winiarski, Zoricic, Badawi Pasha, Krylov and Azevedo, and also that of Dr. Ecer, Judge ad hoc.
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THE CORFU CHANNEL CASE (SECOND DIGEST VERSION)
FACTS 1. On October 22, 1946, a squadron of British warships, the cruisers Mauritius and Leander, and the destroyers Saumarez and Volage, left the port of Corfu and proceeded northward through a channel previously swept for mines in the North Corfu Strait. 2. Outside the Bay of Saranda, Saumarez struck a mine and was heavily damaged. 3. While towing Saumarez, Volage struck a mine and was much damaged. 4. On November 13, 1946, the North Corfu Channel was swept by British minesweepers and 22 moored mines were cut. It was subsequently established that they were of the German GY type. The Government of the United Kingdom of Great Britain and Northern Ireland filed an application against the Government of the People's Republic of Albania, asking the Court to resolve the following issues: 1. Is Albania responsible under international law for the explosions which occurred on October 22, 1946 in Albanian waters and for the damage and loss of human life which resulted from them, and is there any duty to pay compensation? 2. Has the United Kingdom under international law violated the sovereignty of the Albanian People's Republic by reason of the acts of the Royal Navy in Albanian waters on October 22, 1946, and on November 12 and 13 of 1946, and is there any duty to pay compensation? In lieu of the Special Agreement drawn up between the parties, United Kingdom has the following submissions:
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1. That on October 22, 1946, damage was caused to His Majesty's ships Saumarez and Volage, which resulted in the death and injuries of 44, and personal injuries to 42 British officers and men by a minefield of anchored automatic mines in the international highway of the Corfu Strait 2. That the aforesaid minefield was laid between May 15th and October 22nd, 1946, by or with the connivance or knowledge of the Albanian Government 3. That the Albanian Government did not notify the existence of these mines as required by the Hague Convention VIII of 1907 in accordance with the general principles of international law and humanity 4. That the permission of the existence without notification of the minefield in the North Corfu channel, being an international highway, was a violation of the right of innocent passage which exists in favor of foreign vessels (whether warships or merchant ships) through such an international highway 5. That the passage of His Majesty's ships through the North Corfu Channel on October 22, 1946 was an exercise of the right of innocent passage, according to the law and practice of civilized nations 6. That the Albanian Government is under an obligation to the Government of the United Kingdom to make reparation in respect of the breach of its international obligations 7. That the Government of United Kingdom has sustained the following total damage: L875,000. The Albanian Government puts forth the following: 1 Under the terms of the Special Agreement of March 25, 1948, the following question has been submitted to the Court: Is Albania responsible under international law for the explosions which occurred on October 22,1946 in Albanian waters and for the damage and loss of human life which resulted from them and is there any duty to pay compensation? The Court would not have jurisdiction, in lieu of the Special Agreement, to decide on the claim for the assessment of the compensation set out in United Kingdom's submissions. 2. It has not been proved that the mines which caused the accidents of October 22,1946 were laid by Albania 3. It has not been proved that these mines were laid by a third Power on behalf of Albania 4. It has not been proved that these mines were laid with the help or acquiescence of Albania 5. It has not been proved that Albania knew, before the accidents of October 22, 1946, that these mines were in her territorial waters 6. Consequently, Albania cannot be held responsible, under international law, for the explosions which occurred on October 22, 1946, in Albanian waters, and for the damage and loss to human life which resulted therefrom. Albania owes no compensation to the United Kingdom Government. As to the Right of Passage, Albania submits the following: 1. The coastal State is entitled, in exceptional circumstances, to regulate the passage of foreign warships through its territorial waters 2. This rule is applicable to the North Corfu Channel 3. In October and November 1946, there existed in this area, exceptional circumstances which gave Albania the right to require that foreign warships should obtain previous authorization before passing through its territorial waters 4. The passage of several British warships through Albanian territorial waters on October 22, 1946, without previous authorization, constituted a breach of international law 5. In any case, that passage was not of an innocent character 6. The British naval authorities were not entitled to proceed, on November 12 an 13, 1946, to sweep mines in Albanian territorial waters without the previous consent of the Albanian authorities

ISSUE 1: Whether the 2 explosions that occurred on October 22, 1946 were caused by mines belonging to the minefield discovered on November 13, 1946 UK's Contention: This minefield had been recently laid. Albania's Contention: The minefield was laid after October 22,1946, between that date and minesweeping operation on November 12 and 13 Court's Finding: The explosions were indeed due to the mines belonging to that minefield.
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The 2 ships were mined in Albanian territorial waters in a previously swept and check-swept channel just at the place where a newly laid minefield consisting of moored contact German GY mines was discovered 3 weeks later. Inferred from the following findings: 1. In Oct 1944, the North Corfu Channel was swept by the British navy and no mines were found in the channel thus swept. 2. In 1945, the Channel was again swept by the British Navy with negative results. Establishing the Foundation of Albania's Responsibility ISSUE 2: Whether or not the minefield was laid with the connivance of the Albanian Government UK's Contention: The minelaying operation was carried out by 2 Yugoslav warships at a date prior to October 22, 1946, but very near that date. This would imply collusion between the Albanian and the Yugoslave Governments, consisting either of a request by the Albanian Govt to the Yugoslav Govt for assistance, or of acquiescence by Albania in the laying of mines. Proof Submitted by UK: Affidavit of Lieutenant-Commander Kovacic He alleged that he saw the mines being loaded upon 2 Yugoslav minesweepers at Sibenik and that these 2 vessels departed from Sibenik about October 18th and returned a few days after the occurrence of the explosions Court: Kovacic's allegations do not suffice to constitute decisive legal proof that the mines were laid by these 2 vessels in Albanian waters off Saranda ISSUE3: WON the Albanian Governmentt had knowledge of the minelaying operation (established by means of indirect evidence) Conceded: Knowledge of the minelaying cannot be imputed to the Albanian govt be reason merely of the fact that a minefield discovered in Albanian territorial waters caused the explosions of which the British warships were the victims Note the following principles: 1. International practice shows that a State on whose territory or in whose waters an act contrary to international law has occurred, may be called upon to give an explanation. 2. That State cannot evade such a request by limiting itself to a reply that it is ignorant of the circumstances of the act and of its authors 3. But this exclusive territorial control exercised by a State within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that State as to such events 4. By reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. 5. Such a State should be allowed a more liberal recourse to inferences of fact and circumstantial evidence To resolve, consider 2 series of facts: 1. Albania's attitude before and after the disaster of October 22, 1946 a. It is clearly established that the Albanian Govt constantly kept a close watch over the waters of the North Corfu Channel, at any rate after May 1946. Proof of this vigilance: declaration of the Albanian Delegate in the Security Council on February 19, 1947 b. The note verbale addressed to UK on May 21, 1946, reveals the existence of a general order, in execution of which the British commander gave the order to fire in the direction of the British cruisers. c.This same note formulates a demand that permission shall be given by the Albanian authorities, for passage through territorial waters. d. The telegrams sent by the Albanian Govt on Nov 13 and 27, 1946 to the Secretary General of the United Nations, at a time when that Govt was fully aware of te discovery of the minefield in Albanian territorial waters, are especially significant. In the first telegram, Albania raised the strongest protest against the movements and activity of the British naval units in its territorial waters on Nov 12 and 13, 1946, without even mentioning the existence of a minefield in those waters. In the second, it repeats its accusations against the UK, without in any way protesting against the laying of this minefield, which if effected without Albania's consent, constituted a very serious violation of her sovereignty.

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Conclusion of the Court: The minelaying operation was carried out during the period of close watch by the Albanian authorities in this sector. Furthermore, its attitude does not seem reconcilable with its alleged ignorance. Hence, Albania's assertion of ignorance is improbable. 2. The feasibility of observing minelaying from the Albanian coast a. The Bay of Saranda and the channel used by shipping through the Strait are, from their geographical configuration, easily watched. The laying of a minefield in these waters could hardly fail to have been observed by the Albanian coastal defenses. b. The minelaying operation itself must have required a certain time. The report of the Experts reckons this time at between two and two and a half hours. This is sufficient time to attract the attention of the observation posts placed at Cape Kiephali and St. George's Monastery. The facilities for observation from the coast are confirmed by the two following circumstances: A) the distance of the nearest mine from the coast was only 500 meters B) the minelayers must have passed at not more than about 500 meters from the coast between Denta Point and St. George's Monastery The Court concludes from the Experts' Report: A. that in the case of minelaying from the North towards the South, the minelayers would have been seen from Cape Kiephali B. in the case of minelaying from the South, the minelayers would have been seen from Cape Kiephali and St. George's Monastery. The Court ultimately concludes as to the third issue, that the laying of the minefield which caused the explosions on October 22, 1946, could not have been accomplished without the knowledge of the Albanian Government. Consider: Obligation incumbent upon Albanian authorities These obligations consisted in notifying, for the benefit of the shipping in general, the existence of a minefield in Albanian territorial waters and in warning the British warships of the imminent danger to which the minefield exposed them. BASIS of such an obligation: 1. elementary considerations of humanity, even more exacting in peace than in war 2. the principle of freedom of maritime communication 3. every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States Court: Albania is responsible under international law for the explosions which occurred on October 22, 1946 in Albanian waters, and for the damage and loss of human life which resulted from them, and that there is a duty upon Albania to pay compensation to the UK ISSUE 4: Has the United kingdom under international law violated the sovereignty of the Albanian People's Republic by reason of the acts of the Royal navy in Albanian waters on October 22, 1946? Note: Resolution of the aforementioned issue is hinged on resolving: WON the sovereignty of Albania was violated by reason of the acts of the British Navy in Albanian waters on October 22, 1946 UK's contention: Innocent passage through straits is a right recognized by international law. Albania's Contentions: 1. Foreign warships and merchant vessels had no right to pass through Albanian territorial waters without prior notification to, and the permission of Albanian authorities. (This view was put into effect by a communication of the Albanian Chief of Staff, dated May 17, 1946, which purported to subject the passage of foreign warships and merchant vessels in Albanian territorial waters without previous notification to and authorization by the Albanian Govt. The United Kingdom, having received the correspondence, maintained its view with regard to the right of innocent passage through straits forming routes for international maritime traffic between two parts of the high seas. The note ended with the warning that if Albanian coastal batteries in the future opened fire on any British warship passing through the Corfu Channel, the fire would be returned.)

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Court: In lieu of generally recognized international custom, States in time of peace have the right to send their warships through straits used for international navigation between two parts of the high seas without previous authorization of a coastal State, provided that the passage is innocent. 2. Albania denies that the Channel belongs to a class of international highways through which a right of passage exists, on the grounds that it is of secondary importance and not even a necessary route between two parts of the high seas, and that it is used almost exclusively for local traffic to and from the ports of Corfu and Saranda Court: The decisive criterion is its geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation. The nature of the Channel satisfies this criterion. It has been a useful route for international maritime traffic. A total number of 2, 884 ships have passed through the Channel in a period of 1 year and 9 months. Passage through it therefore cannot be prohibited by a coastal State in time of peace. 3. The passage of the British warships on October 22,1946 was not an innocent passage, but a political mission. The ships were maneuvering and sailing in diamond combat formation with soldiers on board; the position of the guns was not consistent with innocent passage; the number of the ships and their armament surpassed what was necessary in order to attain their object and showed an intention to intimidate and not merely to pass. Court: It is shown by the Admiralty telegram of Sept 21 and admitted by the UK Agent, that the object of sending the warships through the Strait was not only to carry out a passage for purposes of navigation, but also to test Albania's attitude. As the exchange of diplomatic notes did not lead to any clarification, the Govt of UK wanted to ascertain by other means whether the Albanian Govt would maintain its illegal attitude and again impose its view by firing at passing ships. The legality of this measure taken by the Govt of the UK cannot be disputed, provided it was carried out in a manner consistent with the requirements of international law. It is shown by evidence that the ships were not proceeding in combat formation, but in line, one after the other ISSUE 5: Has the United kingdom under international law violated the sovereignty of the Albanian People's Republic by reason of the acts of the Royal navy in Albanian waters on Nov 12 and 13, 1946? (minesweeping) FACTS 1. After the explosions of Oct 22, 1946, the UK Govt sent a note to the Albanian Govt in which it announced its intention to sweep the Corfu Channel shortly. 2. The Albanian reply stated that it would not give its consent to this unless the operation took place outside Albanian territorial waters. 3. At the UK govt's request, the International Central Mine Clearance Board decided, in a resolution of November 1, 1946, that there should be a further sweep of the channel, subject to Albania's consent. 4. The UK Govt having informed the Albanian Govt, that the proposed sweep would take place on Nov 12, the Albanian Govt replied on the 11th, protesting against this unilateral decision of UK. It added that before sweeping was carried out, it considered it indispensable to decide what area of the sea should be deemed to constitute this channel and proposed the establishment of a Mixed Commission for the purpose. 5. "Operation Retail" nonetheless took place on Nov 12 and 13. UK's Contention: Conceded: UK concedes that Operation Retail was carried out against the clearly expressed wish of the Albanian Govt. It recognizes that the operation had not the consent of the international mine clearance organizations, that it could not be justified as the exercise of a right of innocent passage, and lastly, that in principle, international law does not allow a State to assemble a large number of warships in the territorial waters of another State and to carry out minesweeping in those waters. UK contends that the operation was one of extreme urgency, and that it considered itself entitled to carry it out without anybody's consent. The following justify this premise: 1. The Agreement of November 22, 1945, signed by the Governments of teh UK, France, the Soviet Union and the United States of America, authorizing regional mineclearing organizations. Relying on the circumstance that the Corfu channel was in the sector alloted to Greece by the Mediterranean Zone Board, the UK govt put forward a permission given by the Hellenic Govt to resweep the navigable channel.
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Court: The contention is untenable. The need for resweeping the Channel was not under consideration in November 1945, for previous sweeps in 1944 and 1945 were considered as having effected complete safety. Furthermore, Albania was not consulted regarding the allocation to Greece of the sector in question, despite the fact that the Channel passed through Albanian territorial waters. 2. The corpora delicti must be secured as quickly as possible, for fear they should be taken away without leaving traces, by the authors of the minelaying or by the Albanian authorities. This is a new and special application of the theory of intervention by means of which the State intervening would secure possession of evidence in the territory of another State, in order to submit it to an international tribunal and thus facilitate its task. Court: does not accept this defense. The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law. Between independent states, respect for territorial sovereignty is an essential foundation of international relations. HELD: The action of the British Navy (minesweeping of Nov 13, 1946) constituted a violation of Albanian sovereignty.

THE FACTORY AT CHORZÓW (CLAIM FOR INDEMNITY): GERMANY V. POLAND (13 SEPT. 1928)
PCIJ, Ser. A., No. 17, 1928. FOCUS OF THIS CASE. The Court here will focus on the nature of the reparation which Poland may owe as a result of her having, as established by the Court in Judgment No. 7, adopted an attitude not in conformity with the Geneva Convention of May 13, 1922. CONTRACT, GERMANY AND BAYERISCHE. On March 5, 1915, a contract was concluded between the Chancellor of the German Empire, for the Reich, and the Bayerische Stickstoffwerke A.-G. (Bayerische), according to which Bayerische undertook “to establish for the Reich and forthwith to begin the construction of” a nitrate factory at Chorzów in Upper Silesia. The necessary lands were to be acquired on behalf of the Reich and entered in its name in the land register. The machinery and equipment were to be in accordance with the patents and licenses of the Company and the experience gained by it, and the Company undertook to manage the factory until March 31, 1941, using its patents, licences, experience gained, innovations and improvements, and also all its supply and delivery contracts. For this purpose, a special section of the Company was formed which was, to a certain extent, supervised by the Reich, which had the right to a share of the profits from the working of the factory during each financial year. The Reich had the right, commencing on March 31, 1926, to terminate the contract for the management of the factory by the Company on March 31 of any year upon giving fifteen months’ notice. The contract could be determined as early as March 31, 1921, always on condition of fifteen months’ notice being given, if the Reich’s share of the surplus did not reach a fixed level. ACTION VS. REICH. This contract was subsequently supplemented by a series of seven additional contracts, of which, however, only the second and seventh relate to the Chorzów factory. On May 14, 1919, the Bayerische brought an action against the Reich, claiming that the latter was bound to compensate the Company for the damage said to have been suffered by it, owing to certain alleged shortcomings with respect to the fulfillment of the contract of March 5, 1913, and the additional contracts. This matter was, however, settled out of court by an arrangement concluded on October 24, 1919, which replaced the fifth additional contract and did not relate to the Chorzów factory. THE OBERSCHLESISCHE. On December 24, 1919, a new company, the Oberschlesische Stickstoffwerke A.-G., was formed in Berlin with a share capital of 250,000 marks, later increased to 110 millions of marks. The Reich sold the Chorzów factory (the whole of the land, building, and installationgs with all accessories, reserves, raw material, equipment, and stocks) to this company. The management and working of the factory were to remain in the hands of the Bayerische, which, for this purpose, was to use its patents, licences, experience gained and contracts. The Oberschlesische was duly entered, on January 29, 1920, at the Amtsgericht of Königshütte, in the Chorzów land register, as owner of the property constituting the nitrate factory at Chorzów. The registered office of the Oberschlesische which, under the memorandum of association, was established at Chorzów, was subsequently transferred to Berlin. THE TREUHAND. In Dec. 24, 1919 a second limited liability company, the Stickstoff Treuhand Gesellschaft m. b. H. (Treuhand), was formed. On the same day, a contract was executed between the Reich, Oberschlesische, and Treuhand under which, the whole of
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the Chorzów factory for the production of nitrated lime was ceded by the Reich to the Oberschlesische at the price of approximately 110 million marks, the Treuhand taking over, in place of the Oberschlesische, as sole and independent debtor, all the obligations imposed by the contract upon the latter in regard to the Reich, and obtaining in consideration thereof, without payment, shares of the Oberschlesische worth 109,750,000 marks. Later, the Treuhand also acquired the rest of the shares of the Oberschlesische, thus becoming the sole shareholder of that Company. As guarantee for the sums due to the Reich under the contract, the Treuhand undertook to obtain for the Reich a lien on all the shares of the Oberschlesische. The Treuhand was to liquidate the purchase price exclusively by paying to the Reich the dividends on the shares of the Oberschlesische. Nevertheless, the Treuhand was authorized to pay at any time the whole or a part of the purchase price; this would have the effect of removing the lien on shares of a nominal value corresponding to the payment made. The Reich was authorized to exercise all the rights resulting from the possession of the shares, and in particular the right to vote at the general meeting of shareholders, but agreed that the management of the exploitation of the Oberschlesische should be left in the hands of the Bayerische. An alienation of the shares so pledged would be authorized only with the approval of the Reich, even after the lien had expired. As a guarantee for the fulfillment of this obligation, the Reich would, even after expiration of the lien, retain possession of the shares and the exercise of all rights resulting from such possession. The price realized in the event of a sale of the shares was in the first place to be devoted to the liquidation of the balance of the Reich’s claim. Of any surplus, the Reich was to receive either 85% - if the sale were effected by the Treuhand - or 90% - if it were effected by the Reich; in both cases, the balance only would fall to the Treuhand which, however, in the second case, would obtain a right to acquire the shares at the price at which the Reich wished that they should be disposed of. CONVENTION RE: UPPER SILESIA. On May 15, 1922, Germany and Poland signed the Convention concerning the Upper Silesia at Geneva (Geneva Convention). LAND REGISTERED IN THE NAME OF POLISH TREASURY. On July 1, 1922, the Polish Court of Huta Krolewska gave a decision that the registration of the Oberschlesische as owner of the factory (which was declared null and void) was to be cancelled and the previously existing situation restored and that the right of ownership in the property was to be registered in the name of the Polish Treasury. This decision, which cited Article 256 of the Treaty of Versailles and the Polish laws of July 14, 1920, and June 16, 1922, was carried into effect on the same day. On July 3, 1922, M. Ignacy Moscicki, who was delegated with full powers to take charge of the Chorzów factory by a Polish ministerial decree took possession of the factory and took over the management in accordance with the terms of the decree. Moscicki, in undertaking the control of the working of the factory, also took possession of the movable property, patents, licences, etc. After the factory takeover, the Polish Government entered it in the list of property transferred to it under Article 256 of the Treaty of Versailles, which list was duly communicated to the Reparation Commission. The Polish Government alleges that after the pronouncement of Judgment No. 7 by the Court, the German Government asked that the factory should be struck out of the list in question; the former Government has not, however, been informed whether this has been done. OBERSCHLESISCHE’S ACTION. The Oberschlesische, on November 15, 1922, had brought an action before the German-Polish Mixed Arbitral Tribunal at Paris, claiming, amongst other things, that Poland should be ordered to restore the factory. This action was withdrawn in June 1928, before the Tribunal had been able to give a decision. Oberschlesische, on November 24, 1922, instituted a parallel action in regard to the movable property existing at Chorzów at the time of the takeover of the factory, against the Polish Treasury before the Civil Court of Katowice, in order to obtain either the restitution to the Oberschlesische or the Bayerische of such property, or the payment of the equivalent value. This action however led to no decision on the merits. THE BAYERISCHE also, on March 25, 1925, brought an action before the German-Polish Mixed Arbitral Tribunal against the Polish Treasury to obtain an annual indemnity until the restitution of the factory to the Oberschlesische, and to restore the possession and management of the factory to it. This case was also withdrawn in June 1928. JUDGMENT NO. 7 of this Court was given on May 25, 1926. This led to two developments. First, at Germany’s initiative, the Judgment formed the starting point for direct negotiations between the two Governments. During these negotiations, Germany had recognized that the factory could no longer be restored in kind and that consequently the reparation due must, in principle, take the form of the payment of compensation. The negotiations were unsuccessful due to the fact that, in the opinion of the Polish Government, certain claims which Poland was said to have against Germany must be set off against the indemnity to be awarded to Germany. The failure of the negotiations resulted in the institution of the present proceedings.
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The judgment also gave rise, on the part of Poland, to the bringing of an action before the Polish Court of Katowice against the Oberschlesische in order to obtain a declaration that that Company had not become owner of the Chorzów property; that the entry in the land register made in its favour was invalid, and that - independently of the laws of July 14, 1920, and June 16, 1922, - the Polish Treasury owned this property. The judgment of the Court in this action which was given by default - was published on November 12, 1927, and took effect on January 2, 1928; it admitted all the submissions of the claimant. THE GERMAN REICH, BY AN APPLICATION filed on February 8, 1927, in conformity with Article 40 of the Statute and Article 35 of the Rules of Court, has submitted to the Permanent Court of International Justice a suit concerning the reparation which is due from Poland for the damage suffered by the Oberschlesische and the Bayerische, due to Poland’s attitude towards those Companies in taking possession of the Chorzów nitrate factory, which attitude has been declared by the Court (in Judgment no. 7) not to have been in conformity with the provisions of Article 6 and the Convention concerning Upper Silesia. THE PRELIMINARY OBJECTION raised by the Polish Government denied the Court’s jurisdiction to hear the suit and submitted that the Court should “without entering into the merits, declare that it had no jurisdiction”. IN JUDGMENT NO. 8, given July 16, 1927, the Court overruled the preliminary objection and reserved for judgment on the merits the Feb. 8 suit. MEANING OF THE JUDGMENT. On October 18, 1927, the Court had received a fresh application from Germany which, relying on the terms of Article 60 of the Statute and Article 66 of the Rules of Court, prayed the Court to give an interpretation of its Judgments Nos. 7 and 8, alleging that a divergence of opinion had arisen between the two Governments regarding the meaning and scope of these two judgments in connection with the point which had given rise to the proceedings before the Court of Katowice. The Court, on December 16, 1927, delivered its judgment which said that the Court’s intention in Judgment No. 7 had been to recognize, with binding effect between the Parties concerned and in respect of that particular case, among other things, the Oberschlesische’s right of ownership of the Chorzów factory under municipal law. REQUEST FOR PAYMENT. While the proceedings for the request for an interpretation were in progress, the German Government, by means of a Request dated October 14, 1927, and filed with the Registry on November 15, besought the Court to indicate to the Polish Government that it should pay to the German Government, as a provisional measure, the sum of 30 million Reichsmarks. The Court gave its decision upon this request in the form of an Order, which held that effect could not be given to this request since it was to be regarded as designed to obtain not the indication of measures of protection, but judgment in favour of a part of the claim formulated in the Application of February 8, 1927. HEARINGS were held on June 21, 22, 25, 27, and 29, 1928, where the Court heard the oral statements, reply, and rejoinder of the Parties. GERMAN SUBMISSIONS. In its Feb. 8, 1927 Application: It is submitted: (1) that by reason of its attitude in respect of the Oberschlesische and Bayerische Companies, which attitude has been declared by the Court not to have been in conformity with the provisions of Article 6 and the following articles of the Geneva Convention, the Polish Government is under an obligation to make good the consequent damage sustained by the Companies from July 3, 1922, until the date of the judgment sought; (2) that the amount of the compensation to be paid by the Polish Government is 59,400,000 Reichsmarks for the damage caused to Oberschlesische and 16,775,200 Reichsmarks for the damage caused to Bayerische; (3) in regard to the method of payment: (a) that the Polish Government should pay within one month from the date of judgment, the compensation due to Oberschlesische for the taking possession of the working capital (raw material, finished and half-manufactured products, stores, etc.) and the compensation due to Bayerische for the period of exploitation from July 3, 1922, to the date of judgment; th (b) that the Polish Government should pay the sums remaining unpaid by April 15 , 1928, at latest; (c) that, from the date of judgment, interest at 6 % per annum should be paid by the Polish Government;
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(d) that the payments mentioned under (a)-(c) should be made without deduction to the account of the two Companies with the Deutsche Bank at Berlin; (e) that, until June 30, 1931, no nitrated lime and no nitrate of ammonia should be exported to Germany, to the United States of America, to France or to Italy. During the written and oral proceedings, these submissions were changed. The final submissions of the German Government are: (1) that by reason of its attitude in respect of the Oberschlesische and Bayerische, which attitude has been declared by the Court not to have been in conformity with the provisions of Article 6 and the following articles of the Geneva Convention, the Polish rd Government is under an obligation to make good the consequent injury sustained by the aforesaid Companies from July 3 , 1922, until the date of the judgment sought; (2) (a) that the amount of the compensation to be paid to the German Government is 58,400,000 Reichsmarks, plus 1,656,000 rd Reichsmarks, plus interest at 6 % on this sum as from July 3 , 1922, until the date of judgment (for the damage caused to the Oberschlesische ); (b) that the amount of the compensation to be paid to the German Government is 20,179,000 Reichsmarks for the damage caused to the Bayerische; th (3) that until June 30 , 1931, no nitrated lime and no nitrate of ammonia should be exported to Germany, to the United States of America, to France or to Italy; in the alternative, that the Polish Government should be obliged to cease from exploiting the factory or the chemical equipment for the production of nitrate of ammonia, etc.; (4) (a) that the Polish Government should pay, within one month from the date of judgment, the compensation due to the Oberschlesische for the taking possession of the working capital and the compensation due to the Bayerische for the period of rd exploitation from July 3 , 1922, to the date of judgment; (b) that the Polish Government should pay the remaining sums at latest within fifteen days after the beginning of the financial year following the judgment; in the alternative, that, in so far as payment may be effected by installments, the Polish Government should within one month from the date of judgment, give bills of exchange for the amounts of the installments, including interest, payable on maturity to the Oberschlesische and to the Bayerische; (c) that from the date of judgment, interest at 6 % per annum should be paid by the Polish Government; (d) that the Polish Government is not entitled to set off against the above-mentioned claim for indemnity of the German Government, its claim in respect of social insurances in Upper Silesia; that it may not make use of any other set-off against the said claim for indemnity; and that the payments mentioned under (a) to (c) should be made without any deduction to the account of the two Companies with the Deutsche Bank at Berlin; in the alternative, that set-off is only permissible if the Polish Government puts forward for this purpose a claim in respect of a debt recognized by the German Government or established by a judgment given between the two Governments. POLISH SUBMISSIONS. In the Reply to the Application: It is submitted: A. In regard to the Oberschlesische: (1) that the applicant Government’s claim should be dismissed; (2) in the alternative, that the claim for indemnity should be provisionally suspended; (3) as a further alternative, in the event of the Court awarding some compensation, that such compensation should only be payable: (a) after the previous withdrawal by the said Company of the action brought by it and pending before the German-Polish Mixed Arbitral Tribunal in regard to the Chorzów factory and after the formal abandonment by it of any claim against the Polish Government in respect of the latter’s taking possession and exploitation of the Chorzów factory; (b) when the civil action brought against the said Company by the Polish Government in respect of the validity of the entry of its title to ownership in the land register has been finally decided in favour of the Oberschlesische. (4) In any case, it is submitted that the German Government should, in the first place, hand over to the Polish Government the whole of the shares of the Oberschlesische, of the nominal value of 110,000,000 Marks, which are in its hands under the contract of December 24, 1919. B. In regard to the Bayerische: (1) (a) that the applicant Government’s claim for compensation in respect of the past, in excess of 1,000,000 Reichsmarks, should be dismissed;
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(b) that, pro futuro, an annual rent of 250,000 Reichsmarks, payable as from January 1, 1928, until March 31, 1941, should be awarded; (c) that these indemnities should only be payable after previous withdrawal by the said Company of the claim pending before the German-Polish Mixed Arbitral Tribunal in respect of the Chorzów factory and after the formal abandonment by it of any claim against the Polish Government in respect of the latter’s taking possession and exploitation of the Chorzów factory ; (2) that the applicant Government’s third submission to the effect that until June 30, 1931, no exportation of nitrated lime or nitrate of ammonia should take place to Germany, the United States of America, France or Italy, should be dismissed. C. In regard to the Oberschlesische and Bayerische jointly: that submission No. 4 – to the effect that it is not permissible for the Polish Government to set off, against the abovementioned claim for indemnity of the German Government, its claim in respect of social insurances in Upper Silesia, that it may not make use of any other set-off against the abovementioned claim for indemnity, and that the payments mentioned under 4 (a)-(c) should be made without any deduction to the account of the two Companies with the Deutsche Bank at Berlin-should be rejected. The final submissions: A. As regards the Oberschlesische: (1) that the claim of the applicant Government should be dismissed; (2) in the alternative, that the claim for indemnity should be provisionally suspended; (3) as a further alternative, in the event of the Court awarding some compensation, that such compensation should only be payable after the previous withdrawal by the said Company of the action brought by it and pending before the German-Polish Mixed Arbitral tribunal in regard to the Chorzów factory, and after the formal abandonment by it of any claim against the Polish Government in respect of the latter’s taking possession and exploitation of the Chorzów factory. (4) In any case, it is submitted that the German Government should, in the first place, hand over to the Polish Government the whole of the shares of the Oberschlesische, of the nominal value of 110,000,000 Marks, which are in its hands under the contract of December 24, 1919. B. As regards the Bayerische: (1) (a) that the applicant Government’s claim for compensation in respect of the past, in excess of 1,000,000 Reichsmarks, should be dismissed; (b) that, pro futuro, an annual rent of 250,000 Reichsmarks, payable as from January 1, 1928, until March 31, 1941, should be awarded; (c) that these indemnities should only be payable after previous withdrawal by the said Company of the claim pending before the German-Polish Mixed Arbitral Tribunal in respect of the Chorzów factory and after the formal abandonment by it of any claim against the Polish Government in respect of the latter’s taking possession and exploitation of the Chorzów factory; (2) that the applicant Government’s third submission to the effect that until June 30, 1931 no exportation of nitrate of lime or nitrate of ammonia should take place to Germany, the United States of America, France or Italy. As regards the Oberschlesische and Bayerische jointly: that submission No. 4 - to the effect that it is not permissible for the Polish Government to set off against the abovementioned claim for indemnity of the German Government its claim in respect of social insurances in Upper Silesia, that it may not make use of any other set-off against the abovementioned claim for indemnity, and that the payments mentioned under 4 (a)-(c) should be made without any deduction to the account of the two Companies with the Deutsche Bank at Berlin - should be rejected. ISSUE: WON Germany may use as basis for the reparation the losses suffered by the companies. HELD: YES. The Application is designed to obtain, in favor of Germany, reparation the amount of which is determined by the damage suffered by the companies. GERMAN ARGUMENT. The Agent for Germany argued in his address to the Court that a government may content itself with reparation in any form which it may consider proper, and that reparation need not necessarily consist in the compensation of the individuals concerned. He said: “It is in fact a question of the German Government’s own rights. The German Government has not brought this suit as representative of the individuals who have suffered injury, but it may estimate the damage for which it claims reparation on its own
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behalf, according to the measure provided by the losses suffered by the companies whose case it has taken up. The German Government may claim the payment of this compensation at any locus solutionis which it may think fit in this case, whether it be a public or a private office. The present dispute is therefore a dispute between governments and nothing but a dispute between governments. It is very clearly differentiated from an ordinary action for damages, brought by private persons before a civil court, as the Polish Government has said in its Rejoinder.” POLISH ARGUMENT. The Agent for Poland submitted that this method of regarding the question involved a modification of the subject of the dispute and of the nature of the application, for the subject of the dispute had been defined by Germany as the obligation to compensate the two Companies. But damage and compensation being interdependent conceptions, the German claim assumed another aspect if it was no longer a question of compensating the Companies, but of compensating the State for the injury suffered by it. The Agent disputed the German Government’s right to make this change at that stage of the proceedings and refused to accept it. Even should it be possible to construe the terms of the German application and of the subsequent submissions as contemplating compensation due directly to the two Companies for damages suffered by them and not reparation due to Germany for a breach of the Geneva Convention, it follows from the conditions in which the Court has been seized of the present suit, and from the considerations which led the Court to reserve it by Judgment No. 8 for decision on the merits, that the object of the German application can only be to obtain reparation due for a wrong suffered by Germany in her capacity as a contracting Party to the Geneva Convention. A DISPUTE BETWEEN STATES. This application is explicitly and exclusively based on Judgment No. 7 which declared that the attitude of Poland in respect of the two Companies was not in conformity with the Geneva Convention. In Judgment No. 6 (which established the Court’s jurisdiction to deal with the alleged violation of the Geneva Convention) the Court recognized that the matter was exclusively a dispute between States as to the interpretation and application of a convention in force between them. Article 23 (on jurisdiction) of the Geneva Convention only contemplates differences of opinion respecting the interpretation and application of Articles 6 to 22 of the Geneva Convention. The Court in fact declared itself competent to pass upon the claim for reparation because it regarded reparation as the corollary of the violation of the obligations resulting from an engagement between States. This view of the matter, which conforms to the general character of an international tribunal which, in principle, has cognizance only of interstate relations, is indicated with peculiar force in this case for the specific reason that the Geneva Convention, with its very elaborate system of legal remedies, has created or maintained for certain categories of private claims arbitral tribunals of a special international character, such as the Upper Silesian Arbitral Tribunal and the German-Polish Mixed Arbitral Tribunal. It was based on this purely interstate character of the dispute decided by Judgment No. 7 that the Court reserved the case for judgment, despite the fact that actions (related to the same act of dispossession) brought by the two Companies were pending before one of the arbitral tribunals abovementioned. The Court could only reserve the Feb. 8 application for judgment on the merits on the grounds on which Judgment No. 7 was based, which was the starting point for Germany’s claim for compensation. Thus Germany’s declarations must be construed in the light of this conception. REPARATION = INDEMNITY FOR DAMAGE CAUSED. It is a principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured State have suffered as a result of the act which is contrary to international law. This is even the most usual form of reparation; it is the form selected by Germany in this case and the admissibility of it has not been disputed. The reparation due by one State to another does not however change its character by reason of the fact that it takes the form of an indemnity for the calculation of which the damage suffered by a private person is taken as the measure. The rules of law governing the reparation are the rules of international law in force between the two States concerned, and not the law governing relations between the State which has committed a wrongful act and the individual who has suffered damage. Rights or interests of an individual the violation of which rights causes damage are always in a different plane to rights belonging to a State, which rights may also be infringed by the same act. The damage suffered by an individual is never therefore identical in kind with that which will be suffered by a State; it can only afford a convenient scale for the calculation of the reparation due to the State. DEBT TO THE GOVERNMENT. International law does not prevent one State from granting to another the right to have recourse to international arbitral tribunals in order to obtain the direct award to nationals of the latter State of compensation for damage suffered by them as a result of infractions of international law by the first State. But there is nothing - either in the terms of Article 23 or in the relation between this provision and certain others of a jurisdictional character included in the Geneva Convention which tends to show that the jurisdiction established by Article 23 extends to reparation other than that due by one of the contracting Parties to the other in consequence of an infraction of Articles 6 to 22, duly recognized as such by the Court. This view is moreover readily reconcilable with Germany’s submissions. The first of its submissions, throughout all stages of the proceedings,
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aims at the establishment of an obligation to make reparation. The indemnities to be paid to the German Government, according to No. 2 of the final submissions, constitute a debt due to that Government. The claim formulated in the same submission, to the effect that payment should be made to the account of the two Companies with the Deutsche Bank at Berlin, is interpreted by the Agent for the German Government as solely relating to the locus solutionis. The Court therefore is of opinion that the Applicant has not altered the subject of the dispute in the course of the proceedings. ISSUE: WON the obligation to make reparation exists. HELD: YES. It is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation. In Judgment No. 8, the Court has already said that reparation is the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself. The Parties also never disputed the existence of this principle. ISSUE: WON there was a breach of an international engagement. HELD: YES. Res judicata applies. The nonconformity of Poland’s attitude in respect of the two Companies with Article 6 and the following articles of the Geneva Convention is established by No. 2 of the operative provisions of Judgment No. 7. ISSUE: WON there was damage (to the companies) which would serve as a basis for the calculation of the amount of the indemnity. HELD: YES. POLAND admits that the Bayerische suffered damage, which affords a ground for reparation; the Parties only differ as to the extent of this damage and the mode of reparation. However Poland denies that the Oberschlesische suffered any damage, and consequently submits that Germany’s claim should be dismissed. The fact of the dispossession of the Oberschlesische is in no way disputed. But despite this, Poland contends that it has suffered no damage: it argues, first, that the right of ownership claimed by the Oberschlesische was null and void or subject to annulment, and, second, that the contract of December 24, 1919 attributed to the Reich rights and benefits so considerable that any possible damage would not materially affect the Company. In the alternative, Poland contends that these same circumstances at all events have the effect of essentially diminishing the extent of the damage to be taken into account in so far as the said Company is concerned. CONSIDER THE VALUE OF PROPERTY, ETC. AFFECTED. In estimating the damage caused by an unlawful act, only the value of property, rights and interests which have been affected and the owner of which is the person on whose behalf compensation is claimed, or the damage done to whom is to serve as a means of gauging the reparation claimed, must be taken into account. This principle, which is accepted in the jurisprudence of arbitral tribunals, has the effect, on the one hand, of excluding from the damage to be estimated, injury resulting for third parties from the unlawful act and, on the other hand, of not excluding from the damage the amount of debts and other obligations for which the injured party is responsible. The damage suffered by the Oberschlesische in respect of the Chorzów undertaking is therefore equivalent to the total value - but to that total only - of the property, rights and interests of this Company in that undertaking, without deducting liabilities. SUBISSUE: WON the Oberschlesische was the lawful owner of the Chorzów undertaking. HELD: YES. THE POLISH GOV’T ARGUES in the first place that the Oberschlesische has suffered no loss as a result of its dispossession, because it was not the lawful owner, its right of ownership having never been valid and having in any case ceased to be so in virtue of the judgment given on November 12, 1927, by the Court of Katowice; so that from that date at all events no damage for which reparation should be made could ensue as regards that Company. ANSWERING THIS POINT. The Court has already, in connection with Judgment No. 7, had to consider as an incidental and preliminary point, the question of the validity of the transactions in virtue of which the ownership of the Chorzów factory passed from the Reich to the Oberschlesische. The conclusion was that the various transactions were genuine and bona fide; that is why it was able to regard the Chorzów factory as belonging to a company controlled by German nationals, namely, the Oberschlesische.

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RIGHT OF OWNERSHIP  DISPOSSESSED. Whatever the effect of this incidental decision may be as regards the right of ownership under municipal law, it is evident that the fact that the Chorzów factory belonged to the Oberschlesische was the necessary condition precedent to the Court’s decision that the attitude of the Polish Government in respect of the Oberschlesische was not in conformity with Article 6 and the following articles of the Geneva Convention. For if the factory did not belong to the
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Oberschlesische, not only would that Company not have suffered damage as a result of dispossession, but furthermore it could not have been subjected to a dispossession contrary to the Geneva Convention, but the Court established by Judgment No. 7 that such was the case. It should be noted that the Court in Judgment No. 7 has not confined itself to recording the incompatibility with the Geneva Convention of the application of the law of July 14, 1920, to properties entered in the land register in the name of companies controlled by German nationals, but has, in replying to the objections put forward by Poland, also had to deal with the question whether such entry was the outcome of fictitious and fraudulent transactions or of genuine and bona-fide transactions. Poland herself objected in connection with the second submission of the German Application that the entry of the Oberschlesische in the land register was in any case not valid as it was based on a fictitious and fraudulent transaction and thus caused the Court to deal with this point. As the application now under consideration is based on the damage established by Judgment No. 7, it is impossible that the Oberschlesische’s right to the Chorzów factory should be looked upon differently for the purposes of that judgment and in relation to the claim for reparation based on the same judgment. SUBISSUE: Oberschlesische is not the owner, following the judgment by the Court of Katowice. HELD: NO. Judgment of a municipal court can’t invalidate a judgment of an international court. POLAND ALSO ARGUES THAT, after Judgment No. 7 had been rendered, the Civil Court of Katowice which, under International Law, doubtless has jurisdiction in disputes at civil law concerning immovable property situated within its district, has declared the entry of the Oberschlesische in the land register as owner not to be valid under the municipal law applicable to the case; it further contends that the Court, in now giving judgment on the question of damages, should bear in mind this new fact. MUNICIPAL DOESN’T TRUMP INTERNATIONAL. There is no need for the Court to consider what would have been the situation at law as regards the Geneva Convention, if dispossession had been preceded by a judgment given by a competent tribunal. It will suffice to recall that the Court in Judgment No. 8 has said that the violation of the Geneva Convention consisting in the dispossession of an owner protected by Article 6 and following of the Geneva Convention could not be rendered non-existent by the judgment of a municipal court which, after dispossession had taken place, nullified the grounds rendering the Convention applicable, which grounds were relied upon by the Court in Judgment No. 7. The judgment of the Tribunal of Katowice given on November 12, 1927, which judgment was given by default as regards the Oberschlesische, the Reich not being a Party to the proceedings - does not contain in the text known to the Court the reasons for which the entry of the property in the name of the Oberschlesische was declared null and void; but it appears from the application upon which this judgment was given that the reasons advanced by the Polish Treaty are essentially the same as those already discussed before the Court on the basis of the Polish Government’s submissions in the proceedings leading up to Judgment No. 7, which reasons, in the opinion of the Court, did not suffice to show that the Oberschlesische did not fall within the scope of Article 6 and the following articles of the Geneva Convention. If the Court were to deny the existence of a damage on the ground that the factory did not belong to the Oberschlesische, it would be contradicting one of the reasons on which it based its Judgment No. 7 and it would be attributing to a judgment of a municipal court power indirectly to invalidate a judgment of an international court, which is impossible. Whatever the effect of the judgment of the Tribunal of Katowice may be at municipal law, this judgment can neither render inexistent the violation of the Geneva Convention recognized by the Court in Judgment No. 7 to have taken place, nor destroy one of the grounds on which that judgment is based. SUBISSUE: WON the Court has jurisdiction over Poland’s counterclaim (in relation to the issue on damage sustained). HELD: YES. POLISH COUNTERCLAIM RE: SHARES IN THE COMPANY. The Polish government also contends from various points of view that the rights possessed by the Reich in the undertaking, having passed into the hands of Poland, cannot be included amongst the assets to be considered in the calculation of the damage sustained, which will determine the amount of the reparation due by Poland to Germany. Poland, admitting for the sake of argument that the December 24 contract was a genuine and valid legal instrument, holds that, according to that contract, Germany owns all the shares of the Oberschlesische representing the sole property of that Company, namely the factory. It deduces from this that the transaction consists in the transformation of an ordinary State enterprise into a State enterprise with a share capital, and as it holds that the property of a German company falls within the category of “property and possessions belonging to the Empire” acquired by Poland under Article 256 of the Treaty of Versailles, it considers that it is “difficult to see what the rights of the Oberschlesische were which had been infringed by the Polish Government”. Poland has laid special stress on the allegation that the Oberschlesische is in reality a company controlled by the German Government and not a company controlled by German nationals, or even a private enterprise in which the Reich merely possesses preponderating interests. Even if this should not be the case and if the Dec. 24 contract were, for argument’s sake, to be regarded as an effective and genuine contract for the sale of the factory by the Reich to the Oberschlesische, the Polish Government contends that it is
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impossible not to take into account the circumstance that the German State retained a whole complex of rights and interests in the undertaking. As the indemnity claimed by the German Government is calculated, amongst other things, on the extent of the damage presumed to have been sustained by the Oberschlesische, it would not be “logically correct to award to that Company compensation for rights and interests in the Chorzów undertaking which belonged to the Reich”, and these rights should be eliminated from the rights of the Oberschlesische, which, if this were done, would amount simply to a nudum jus domini. The Polish Government also alleges that, under Article 256 of the Treaty of Versailles, the rights and interests of the German Government in the Chorzów factory are transferred to the Polish State from the date of the transfer to Poland of sovereignty over the part of Upper Silesia allotted to her, and that, on the supposition that the December 24 contract gave the German State the whole of the shares of the Oberschlesische, as guarantee for its rights, and to enable it to exercise those rights, these shares, on the possession of which depend the rights of the Reich, should be transferred to Poland. If the contract of December 24 is to be regarded as genuine and effective, the Polish Government holds that, in order to determine the indemnity which may be due to the Oberschlesische, the rights of the Reich must first be eliminated; and this can only be done in one way, by the handing over by Germany to Poland of the shares of the Oberschlesische to the nominal value of 110 million marks. GERMANY REPLIED THAT: “In the first place, the Polish Government cites no provision on which it is possible to base the Court’s jurisdiction to take cognizance of this question, which arises from the interpretation of Article 256. In the previous proceedings, the Polish Government strongly maintained that the interpretation of this article would not be admissible even as a question incidental and preliminary to the interpretation of Articles 6 to 22 Of the Geneva Convention. The German Government does not know whether the Polish Government has on mind the general treaty of arbitration signed at Locarno - according to which any dispute of a legal nature must be submitted to arbitration, and, unless some special arbitral tribunal is agreed upon, to the Permanent Court of International Justice. But, however that may be, the German Government, being animated by a wish to ensure that full scope shall be given to the Treaty of Locarno, without pausing to debate questions as to the procedure therein provided for, and also to see the Chorzów case settled once and for all, abstains from undertaking a detailed examination of the questions of lack of jurisdiction or prematurity, even though these questions might enter into account in connection with the counter-claim which, in the German Government’s contention, is formulated in submission A 4 of the CounterCase. It will simply refer to Article 40, paragraph 2, No. 4, of the Rules of Court, according to which the Court may give judgment on counter-claims in so far as the latter come within its jurisdiction. As between Germany and Poland this applies in respect of any question of law in dispute between them. The only point which might be disputed is the question whether, for the application of this article of the Rules, the conditions respecting forms and times must also be fulfilled, or whether it is enough that the material conditions should be fulfilled. This point, however, may be left open, since the German Government accepts the jurisdiction of the Court in regard to the question raised in the Counter-Case. In the course of the negotiations in regard to the Chorzów case, the German plenipotentiary had already proposed to the Polish plenipotentiary that this question should be referred to the Court.” JURISDICTION DEPENDS ON THE WILL OF THE PARTIES. In the subsequent proceedings, the Polish Government has not made any statement in regard to the question of the Court’s jurisdiction. It is impossible, therefore, to say whether it accepts the German view according to which it may be inferred that such jurisdiction exists under the Convention between Germany and Poland initialled at Locarno on October 16, 1925, or whether it contends that the Court has jurisdiction on some other basis. In any case, it is certain that it has not withdrawn its claim and that, consequently, it wishes the Court to give judgment on the submission in question. For its part the German Government, though basing the Court’s jurisdiction on the Locarno Convention, seems above all anxious that the Court should give judgment on the submission in the course of the present proceedings. The Parties therefore are agreed in submitting to the Court for decision the question raised by this submission. As the Court has said in Judgment No. 12, concerning certain rights of minorities in Upper Silesia, Article 36 of the Statute establishes the principle that the Court’s jurisdiction depends on the will of the Parties; the Court therefore is always competent once the latter have accepted its jurisdiction, since there is no dispute which States entitled to appear before the Court cannot refer to it, save in exceptional cases where a dispute may be within the exclusive jurisdiction of some other body. THE COUNTERCLAIM is based on Article 256 of the Versailles Treaty, which article is the basis of the objection raised by Poland, and that, consequently, it is juridically connected with the principal claim. Again, Article 40 of the Rules of Court, which has been cited by the German Government, lays down amongst other things that counter-cases shall contain: “4° conclusions based on the facts stated; these conclusions may include counter-claims, in so far as the latter come within the jurisdiction of the Court.” The claim having been formulated in the Counter-Case, the formal conditions required by the Rules as regards counter-claims are fulfilled in this case, as well as the material conditions.
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WITH JURISDICTION. As regards the relationship existing between the German claims and the Polish submission in question, the Court thinks it well to add the following: Although in form a counterclaim, since its object is to obtain judgment against Germany for the delivery of certain things to Poland - in reality, having regard to the arguments on which it is based, the submission constitutes an objection to the German claim designed to obtain from Poland an indemnity the amount of which is to be calculated, amongst other things, based on the damage suffered by the Oberschlesische. It is in fact a question of eliminating from the amount of this indemnity a sum corresponding to the value of the rights and interests which the Reich possessed in the enterprise under the contract of December 24, which value, according to the Polish Government, does not constitute a loss to the Oberschlesische because these rights and interests are said to belong to the Polish Government itself under Article 256 of the Treaty of Versailles. The Court, having by Judgment No. 8 accepted jurisdiction, under Article 23 of the Geneva Convention, to decide as to the reparation due for the damage caused to the two Companies by the attitude of the Polish Government towards them, cannot dispense with an examination of the objections the aim of which is to show either that no such damage exists or that it is not so great as it is alleged to be by Germany. This being so, it seems natural on the same grounds also to accept jurisdiction to pass judgment on the submissions which Poland has made with a view to obtaining the reduction of the indemnity to an amount corresponding to the damage actually sustained. SUBISSUE: What is the nature of Germany’s rights in the Chorzów undertaking under the Dec. 24 contract? HELD: Germany only had a lien on the shares, and the Treuhand was the true owner while the Bayerische controlled the Oberschlesische. THE TREUHAND, and not the Reich, is legally the owner of the shares of the Oberschlesische. The Reich is the creditor of the Treuhand and in this capacity has a lien on the shares. It also has, besides this lien, all rights resulting from possession of the shares, including the right to the greater portion of the price in the event of the sale of these shares. This right, which may be regarded as preponderating, is, from an economic standpoint, very closely akin to ownership, but it is not ownership; and even from an economic point of view it is impossible to disregard the rights of the Treuhand. Such being the situation at law, to endeavour now to identify the Oberschlesische with the Reich - the effect of which would be that the ownership of the factory would have passed to Poland under Article 256 of the Treaty of Versailles - would be in conflict with the view taken by the Court in Judgment No. 7, on which view is based the decision to the effect that Poland’s attitude as regards both the Oberschlesische and Bayerische was not in conformity with the provisions of the Geneva Convention. The same applies in regard to the contention that the Oberschlesische is a company controlled not by German nationals but by the Reich. It is true, as the Polish Government has recalled, that the Court in Judgment No. 7 has declared that there was no need for it to consider the question whether the Oberschlesische, having regard to the rights conferred by the Dec. 24 contract on the Reich, should be considered as controlled by the Reich, and, should this be the case, what consequences would ensue as regards the application of the Geneva Convention. But the reason for this was that the Court held that the Polish Government had not raised this question, and that, apart from its contention as to the fictitious character of the Dec. 24 contracts, that Government did not seem to have disputed that the Company was controlled by German nationals. CONTROLLED BY THE BAYERISCHE. It is clear that only by regarding the Oberschlesische as a company controlled by German nationals within the meaning of Article 6 of the Geneva Convention that the Court was able to declare that the attitude of the Polish Government towards that Company was not in conformity with the terms of Article 6 and the following articles of the Convention. Even if the question was still open and the Court were now free once more to consider it, it would be bound to conclude that the Oberschlesische was controlled by the Bayerische, as provided in the Dec. 24 contract and the later contract between the Bayerische and the Treuhand. Thus the Court considers that the Bayerische, rather than the Reich, controls the Oberschlesische. THE COURT THUS CONCLUDES that the Polish contention to the effect that the Oberschlesische has not suffered damage, because that Company is to be regarded as identifiable with the Reich, and that the property of which the said Company was deprived by the action of the Polish Government has passed to Poland under Article 256 of the Treaty of Versailles, is not well founded. ISSUE: WON Germany’s rights, though not of ownership, over the Oberschlesische should still be deducted from the indemnity. HELD: NO. Art. 256, Treaty of Versailles, on which Poland bases its claim, is not applicable.

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POLAND ALSO ARGUES THAT even if the rights possessed by the Reich under the Dec. 24 contract in the Chorzów undertaking are not rights of ownership over the shares of the Oberschlesische, the value of these rights, which fall within the scope of Article 256 of the Treaty of Versailles, should nevertheless be deducted from the indemnity claimed as regards the Oberschlesische.
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REMEMBER THAT ARTICLE 256 contains two conditions, namely, that the “property and possessions” with which it deals must belong to the Empire or to the German States, and that such “property and possessions” must be “situated” in German territory ceded under the Treaty. It must therefore be ascertained, amongst other things, whether the rights of the Reich under the Dec. 24 contract are “situated” in the part of Upper Silesia ceded to Poland. In so far as these rights consist in a claim against the Treuhand, it is clear that this claim cannot be regarded as situated in Polish Upper Silesia, since the Treuhand is a company whose registered office is in Germany and whose shares belong to companies which also have their registered office in Germany and which are undeniably controlled by German nationals. The fact that this claim is guaranteed by a lien on the shares on which the profit, as well as the price obtained in the event of sale, is to be devoted to the payment of this claim, does not, in the Court’s opinion, justify the view that the rights of the Reich are situated in Polish Upper Silesia where the factory is. These are only rights in respect of the shares; and these rights, if not regarded as situated where the shares are, must be considered as localized at the registered office of the Company which in this case in at Berlin and not in Polish Upper Silesia. The transfer of the registered office of the Oberschlesische from Chorzów to Berlin after the coming into force of the Treaty of Versailles cannot be regarded as illegal and null: the reasons for which the Court, in Judgment No. 7, held that alienations of public property situated in the plebiscite zone were not prohibited by that Treaty, apply a fortiori in respect of the transfer by a company of its registered office from this zone to Germany. It is also in vain that Poland cites paragraph 10 of the Annex to Articles 297 and 298 of the Treaty of Versailles, which paragraph lays down that Germany shall deliver “to each Allied or Associated Power all securities, certificates, deeds, or other documents of title held by its nationals and relating to property, rights or interests situated in the territory of that Allied or Associated Power, including any shares, stock, debentures, debenture stock, or other obligations of any company incorporated in accordance with the laws of that Power”. Even disregarding the circumstances that the Oberschlesische was constituted under German law and has not been “incorporated” in accordance with the laws of Poland, the clause quoted has nothing to do with Article 256 and relates only to the articles to which it is annexed. AS ART. 256 IS INAPPLICABLE to the rights possessed by the Reich under the Dec. 24 contract, it follows that the Polish Government’s contention that the value of these rights should be eliminated from the amount of the indemnity to be awarded, must be rejected. The same is true as regards the Polish Government’s submission that the whole of the shares of the Oberschlesische should be handed over to Poland (also based on Art. 256), a submission the aim of which is precisely to bring about the elimination referred to. ISSUE: WON the Court should provisionally suspend its decision on the claim for indemnity. HELD: NO. POLAND’S REASON FOR THE SUSPENSION. The Polish Government has notified the Reparation Commission of the taking over of the Chorzów factory, under Article 236 of the Treaty of Versailles, by entering it on the list of German State property acquired under that article. It is for the Reparation Commission to fix the value of such property, which value is to be paid to the Commission by the succession State and credited to Germany on account of the sums due for reparations. Now after the Court had delivered Judgment No. 7, the German Government asked the Reparation Commission to strike out the Chorzów factory from the list of property transferred to Poland, but the Commission has not yet taken any decision in regard to this. The question whether Poland is to be debited with the value of the factory therefore remains undecided, and the Polish Government considers that, until this question has been decided and the Reparation Commission has struck the Chorzów factory off the list, it - the Polish Government - cannot be compelled to make a payment in favor of the Oberschlesische. ARMISTICE CONVENTION, TREATY OF VERSAILLES. The Polish Government also cites the Armistice Convention and Article 248 of the Treaty of Versailles. The latter lays down that, “subject to such exceptions as the Reparation Commission may approve, a first charge upon all the assets and revenues of the German Empire and its constituent States shall be the cost of reparation and all other costs arising under the present Treaty or any treaties or agreements s