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CORFU CHANNEL CASE (UNITED KINGDOM v. ALBANIA) HELD


1. The Court finds, in the first place, that the explosions
Brief Fact Summary. The fact that the Albanian (P) authorities were caused by mines belonging to the minefield discovered on
did not make the presence of mines in its waters was the basis November 13th. It is not, indeed, contested that this minefield
of the United Kingdom (D) claim against them. had been recently laid; it was in the channel, which had been
previously swept and check-swept and could be regarded as
Synopsis of Rule of Law. International obligations in peace time safe, that the explosions had taken place. The nature of the
are created through elementary consideration. damage shows that it was due to mines of the same type as
those swept on November 13th; finally, the theory that the mines
FACTS discovered on November 13th might have been laid after the
On October 22nd, 1946, two British cruisers and two destroyers, explosions on October 22nd is too improbable to be accepted.
coming from the south, entered the North Corfu Strait. The
channel they were following, which was in Albanian waters, was In these circumstances the question arises what is the legal
regarded as safe: it had been swept in 1944 and check-swept in basis of Albania's responsibility? The Court does not feel that it
1945. One of the destroyers, the Saumarez, when off Saranda, need pay serious attention to the suggestion that Albania herself
struck a mine and was gravely damaged. The other destroyer, laid the mines: that suggestion was only put forward pro
the Volage, was sent to her assistance and, while towing her, memoria, without evidence in support, and could not be
struck another mine and was also seriously damaged. Forty-five reconciled with the undisputed fact that, on the whole Albanian
British officers and sailors lost their lives, and forty-two others littoral, there are only a few launches and motor boats. But the
were wounded. United Kingdom also alleged the connivance of Albania: that the
mine laying had been carried out by two Yugoslav warships by
An incident had already occurred in these waters on May 15th, the request of Albania, or with her acquiescence. The Court
1946: an Albanian battery had fired in the direction of two British finds that this collusion has not been proved. A charge of such
cruisers. The United Kingdom Government had protested, exceptional gravity against a State would require a degree of
stating that innocent passage through straits is a right certainty that has not been reached here, and the origin of the
recognized by international law; the Albanian Government had mines laid in Albanian territorial waters remains a matter for
replied that foreign warships and merchant vessels had no right conjecture.
to pass through Albanian territorial waters without prior
authorization; and on August 2nd, 1946, the United Kingdom The United Kingdom also argued that, whoever might be the
Government had replied that if, in the future, fire was opened on authors of the mine laying, it could not have been effected
a British warship passing through the channel, the fire would be without Albania's knowledge. True, the mere fact that mines
returned. Finally, on September 21st, 1946, the Admiralty in were laid in Albanian waters neither involves prima facie
London had cabled to the British Commander-in-Chief in the responsibility nor does it shift the burden of proof. On the other
Mediterranean to the following x effect: "Establishment of hand, the exclusive control exercised by a State within its
diplomatic relations with Albania is again under consideration by frontiers may make it impossible to furnish direct proof of facts
His Majesty's Government who wish to know whether the which would involve its responsibility in case of a violation of
Albanian Government have learnt to behave themselves. international law. The State which is the victim must, in that
Information is requested whether any ships under your ease, be allowed a more liberal recourse to inferences of fact
command have passed through the North Corfu Strait since and circumstantial evidence; such indirect evidence must be
August and, if not, whether you intend them to do so shortly." regarded as of especial weight when based on a series of facts,
linked together and leading logically to a single conclusion.
After the explosions on October 22nd, the United Kingdom
Government sent a Note to Tirana announcing its intention to In the present case two series of facts, which corroborate one
sweep the Corfu Channel shortly. The reply was that this another, have to be considered.
consent would not be given unless the operation in question took
place outside Albanian territorial waters and that any sweep The first relates to the Albanian Government's attitude before
undertaken in those waters would be a violation of Albania's and after the catastrophe. The laying of the mines took place in
sovereignty. 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
The sweep effected by the British Navy took place on November authorization before they were entered, this vigilance
12th/13th 1946, in Albanian territorial waters and within the limits sometimes going so far as to involve the use of force: all of which
of the channel previously swept. Twenty-two moored mines render the assertion of ignorance a priori improbable. Moreover,
were cut; they were mines of the German GY type. when the Albanian Government had become fully aware of the
existence of a minefield, it protested strongly against the activity
ISSUE of the British Fleet, but not against the laying of the mines,
1. The first question put by the Special Agreement is though this act, if effected without her consent, would have been
that of Albania's responsibility, under international law, for the a very serious violation of her sovereignty; she did not notify
explosions on October 22nd, 1946. shipping of the existence of the minefield, as would be required
2. Did the United Kingdom violate Albanian sovereignty by international law; and she did not undertake any of the
on October 22nd, 1946, or on November 12th/13th, 1946? measures of judicial investigation which would seem to be
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incumbent on her in such a case. Such an attitude could only be having made territorial claims precisely with regard to a part of
explained if the Albanian Government, while knowing of the the coast bordering the strait. However, the Court is of opinion
mine laying, desired the circumstances in which it was effected that Albania would have been justified in view of these
to remain secret. exceptional circumstances, in issuing regulations in respect of
the passage, but not in prohibiting such passage or in subjecting
The second series of facts relates to the possibility of observing it to the requirement of special authorization.
the mine laying from the Albanian coast. Geographically, the
channel is easily watched: it is dominated by heights offering Albania has denied that the passage on October 22 was
excellent observation points, and it runs close to the coast (the innocent. She alleges that it was a political mission and that the
nearest mine was 500 m. from the shore). The methodical and methods employed - the number of ships, their formation,
well-thought-out laying of the mines compelled the minelayers armament, manoeuvres, etc. - showed an intention to intimidate.
to remain from two to two-and-a-half hours in the waters The Court examined the different Albanian contentions so far as
between Cape Kiephali and the St. George's Monastery. In they appeared relevant. Its conclusion is that the passage was
regard to that point, the naval experts appointed by the Court innocent both in its principle, since it was designed to affirm a
reported, after enquiry and investigation on the spot, that they right which had been unjustly denied, and in its methods of
considered it to be indisputable that, if a normal look-out was execution, which were not unreasonable in view of the firing from
kept at Cape Kiephali, Denta Point, and St. George's Monastery, the Albanian battery on May 15th.
and if the lookouts were equipped with binoculars, under normal
weather conditions for this area, the mine-laying operations As regards the operation on November 12th/13th, it was
must have been noticed by these coastguards. The existence of executed contrary to the clearly expressed wish of the Albanian
a look-out post at Denta Point was not established; but the Government; it did not have the consent of the international mine
Court, basing itself on the declarations of the Albanian clearance organizations; it could not be justified as the exercise
Government that lock-out posts were stationed at other points, of the right of innocent passage. The United Kingdom has stated
refers to the following conclusions in the experts' report: that in that its object was to secure the mines as quickly as possible for
the case of mine laying 1) from the North towards the South, the fear lest they should be taken away by the authors of the mine
minelayers would have been seen from Cape Kiephali; if from laying or by the Albanian authorities: this was presented either
South towards the North, they would have been seen from Cape as a new and special application of the theory of intervention, by
Kiephali and St. George's Monastery. means of which the intervening State was acting to facilitate the
task of the international tribunal, or as a method of self-
From all the facts and observations mentioned above, the Court protection or self-help. The Court cannot accept these lines of
draws the conclusion that the laying of the minefield could not defence. It can only regard the alleged right of intervention as
have been accomplished without the knowledge of Albania. As the manifestation of a policy of force which cannot find a place
regards the obligations resulting for her from this knowledge, in international law. As regards the notion of self-help, the Court
they are not disputed. It was her duty to notify shipping and is also unable to accept it: between independent States the
especially to warn the ships proceeding through the Strait on respect for territorial sovereignty is an essential foundation for
October 22nd of the danger to which they were exposed. In fact, international relations. Certainly, the Court recognises the
nothing was attempted by Albania to prevent the disaster, and Albanian Government's complete failure to carry out its duties
these grave omissions involve her international responsibility. after the explosions and the dilatory nature of its diplomatic
Notes as extenuating circumstances for the action of the United
The Special Agreement asks the Court to say whether, on this Kingdom. But, to ensure respect for international law, of which it
ground, there is "any duty" for Albania "to pay compensation" to is the organ, the Court must declare that the action of the British
the United Kingdom. This text gave rise to certain doubts: could Navy constituted a violation of Albanian sovereignty. This
the Court not only decide on the principle of compensation but declaration is in accordance with the request made by Albania
also assess the amount? The Court answered in the affirmative through her counsel and is in itself appropriate satisfaction.
and, by a special Order, it has fixed dine-limits to enable the ------------------------XXX------------------------
Parties to submit their views to it on this subject. THE ANGLO-NORWEGIAN FISHERIES CASE

2. The Albanian claim to make the passage of ships Since 1911 British trawlers had been seized and condemned for
conditional on a prior authorization conflicts with the generally violating measures taken by the Norwegian government
admitted principle that States, in time of peace, have a right to specifying the limits within which fishing was prohibited to
send their warships through straits used for international foreigners. In 1935, a decree was adopted establishing the lines
navigation between two parts of the high seas, provided that the of delimitation of the Norwegian fisheries zone.
passage is innocent. The Corfu Strait belongs geographically to
this category, even though it is only of secondary importance (in On 24th September 1949 the government of the United
the sense that it is not a necessary route between two parts of Kingdom filed the registry of the international court of justice an
the high seas) and irrespective of the volume of traffic passing application instituting proceedings against Norway. The subject
through it. A fact of particular importance is that it constitutes a of the proceeding was the validity, under international law, of the
frontier between Albania and Greece, and that a part of the strait lines of delimitation of the Norwegian fisheries zone as set forth
is wholly within the territorial waters of those States. It is a fact in a Decree of 12th July 1935.
that the two States did not maintain normal relations, Greece
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The application referred to the declaration by which the united international law. The first principle put forward by the UK is that
Kingdom and Norway had accepted the compulsory jurisdiction the baselines must be low water mark, this indeed is the criterion
of the International Court of Justice in accordance with article 36 generally adopted my most states and but differ as to its
(2) of its statute. application. (Johnson 154). The court considered the methods
of drawing the lines but, the court rejected the trace Parallele
The parties involved in this case were Norway and the United which consists of drawing the outer limits of the belt following
Kingdom, of Great Britain and Northern Ireland. The the coast and all its sinuosity. The court also rejected the
implementation of the Royal Norwegian Decree of the 1935 was courbe tangent (arcs of a circle) and it is not obligatory under
met with resistance from the United Kingdom. The decree international law to use these methods of drawing the lines. The
covers the drawing of straight lines, called baselines 4 miles court also paid particular attention to the geographical aspect of
deep into the sea. This 4 miles area is reserved fishing exclusive the case. The geographical realities and historic control of the
for Norwegian nationals. Under article 36(2) both UK and Norwegian coast inevitably contributed to the final decision by
Norway were willing to accept the jurisdiction of the ICJ on this the ICJ. The coast of Norway is too indented and is an exception
case and with no appeal. The issues that constitute the case under international law from the 3 miles territorial waters rule.
were submitted to the court and the arguments presented by The fjords, Sunds along the coastline which have the
both countries. The issues claims the court to: declare the characteristic of a bay or legal straits should be considered
principles of international law applicable in defining the Norwegian for historical reasons that the territorial sea should
baselines by reference to which Norwegian government was be measured from the line of low water mark. So it was agreed
entitled to delimit a fisheries zone and exclusively reserved to its on the outset of both parties and the court that Norway had the
nationals; and to define the said base lines in the light of the right to claim a 4 mile belt of territorial sea. The court concluded
arguments of the parties in order to avoid further legal that it was the outer line of the Skaergaard that must be taken
difference; and secondly to award damages to the government into account in admitting the belt of the Norwegian territorial
of the United Kingdom in respect of all interferences by the waters. (Johnson 154- 158). There is one consideration not to
Norwegian authorities with British fishing vessels outside the be overlooked, the scope of which extends beyond geographical
fisheries zone, which in accordance with ICJ's decision, the factors. That of certain economic interests peculiar to a region,
Norwegian government may be entitled to reserve for its the reality and importance of which are clearly evidenced by a
nationals. long usage (Johnson 160)

The United Kingdom argued that; The law relied upon mainly international Law of the sea; how far
a state can modify its territorial waters and its control over it,
Norway could only draw straight lines across bays exclusively reserving fishing for its nationals. In this case, rules
that are practiced for instance how long a baseline should be.
The length of lines drawn on the formations of the Only a 10 mile long straight line is allowed and this has been the
Skaergaard fjord must not exceed 10 nautical miles( the 10 Mile practice by most states however it is different in the case of
rule) Norway because of Norway's geographic indentation, islands
and islets.
That certain lines did not follow the general direction of
the coast or did not follow it sufficiently , or they did not respect The international customary law has been a law of reference in
certain connection of sea and land separating them the court arguments. Judge Read from Canada asserts that
Customary international law does not recognize the rule
That the Norwegian system of delimitation was according to which belts of territorial waters of coastal states is
unknown to the British and lack the notoriety to provide the basis to be measured. More so public international law has been relied
of historic title enforcement upon opposable to by the United upon in this case. It regulates relation between states; the United
Kingdom Kingdom and Norway.

The Kingdom of Norway argued; Maritime Law


Coastline Rule
That the base lines had to be drawn in such a way as The judgment was rendered in favor of Norway on the 18th
to respect the general direction of the coast and in a reasonable December 1951. By 10 votes to 2 the court held that the method
manner. employed in the delimitation of the fisheries zone by the Royal
The case was submitted to the International Court of Justice by Norwegian decree of the 12th July 1935 is not contrary to
the government of the United Kingdom. The government of international law. By 8 votes to 4 votes the court also held that
United Kingdom wants the ICJ to declare the validity of the base the base lines fixed by this decree in application are not contrary
lines under international law and receive compensation for to international law. However there are separate opinions and
damages caused by Norwegian authorities as to the seizures of dissenting opinions from the judges in the court.
British Fishing vessels.
Judge Hackworth declared that he concurred with the operative
The judgment of the court first examines the applicability of the part of the judgment because he considered that the Norwegian
principles put forward by the government of the UK, then the government had proved the existence of historic title of the
Norwegian system, and finally the conformity of that system with disputed areas of water.
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THE TRAIL SMELTER ARBITRATION CASE (UNITED


Judge Alvarez from Chile relied on the evolving principles of the STATES VS CANADA)
law of nations applicable to the law of the sea.
Brief Fact Summary
States have the right to modify the extent of the of their The Trail Smelter Case1 arose in the field of late 1950's and
territorial sea came up with the issue of International Environmental Law. In
this case it was damage caused by one State to the
Any state directly concerned may object to another environment of the other that triggered the legal claim. Legally
state's decision as to the extent of its territorial sea the issue was not viewed as different from damage caused to
the public or private property, for instance by the inadvertent
International status of bays and straits must be penetration of a foreign State's territory by armed forces. For the
determined by the coastal state directly concerned with due first time an International Tribunal propounded the principle that
regard to the general interest and as State may not use, or allow its national's to use, its own
territory in such a manner as to cause injury to a neighboring
Historic rights and concept of prescription in country
international law.
FACTS
Judge Hsu Mo from china opinions diverge from the court's with The Columbia River rises in Canada and flows past a lead and
regards to conformity with principles of international law to the zinc smelter located at Trail, in British Columbia (Canada). The
straight lines drawn by the Decree of 1935. He allowed smelter company was alleged to cause damage to trees, crops
possibility in certain circumstances, for instance, belt measured and land in the American States of Washington. he climate from
at low tide, Norway's geographic and historic conditions. But beyond Trail on the United States boundary is dry, but not arid.
drawing the straight lines as of the 1935 degree is a moving The smelter was built under U.S. auspices, but had been taken
away from the practice of the general rule. (Johnson 171) over. In 1906, the Consolidated Mining and Smelting Company
of Canada, Limited acquired the smelter plant at Trail. Since that
The dissenting opinions from judge McNair rested upon few time, the Canadian company, without interruption, has operated
rules of law of international waters. Though there are the Smelter, and from time to time has greatly added to the plant
exceptions, in case of bays, the normal procedure to calculate until it has become one of the best and largest equipped
territorial waters in from the land, a line which follows the smelting plants on the American continent. In 1925 and 1927,
coastline. Judge McNair rejected the argument upon which stacks, 409 feet high, were erected and the smelter increased
Norway based its decree including: its output, resulting in more sulphur dioxide fumes. The higher
stacks increased the area of damage in the United States. From
Protecting Norway's economic and other social 1925 to 1931, damage had been caused in the State of
interests Washington by the sulphur dioxide coming from the Trail
Smelter, and the International Joint Commission recommended
The UK should not be precluded from objecting the payment of $350,000 in respect of damage to 1 January, 1932.
Norwegian system embodied in the Decree because previous The United States informed Canada that the conditions were still
acquiescence in the system and unsatisfactory and an Arbikal Tribunal was set up to "finally
decide" whether further damage had been caused in
An historic title allowing the state to acquire waters that Washington and the indemnity due, whether the smelter should
would otherwise have the status of deep sea. Judge McNair be required to cease operation; the measures to be adopted to
concluded that the 1935 decree is not compatible with this end; and compensation due. The Tribunal was directed to
international law.(Johnson173) apply the law and practice of the United States as well as
international law and practice. The United States Government,
Furthermore, Judge Read from Canada was unable to concur on February 17, 1933, made represents to the Canadian
with parts of the judgment. Read rejected justification by Norway Government that the existing conditions were entirely
for enlarging her maritime domain and seizing and condemning unsatisfactory and that damage was still occurring and
foreign ships (Johnson 173); diplomatic negotiations were entered into, which resulted in the
signing of the present convention.
Sovereignty of the coastal state is not the basis for
Norway to claim 4 mile belt from straight base lines The Court held Canada responsible for the conduct of the Trail
Smelter and enjoined it to pay compensation to United States.
Customary international law does not recognize the The court also provided for future monitoring of the effects of the
rule according to which belts of territorial waters of coastal states factory's activities on the environment, to prevent possible future
is to be measured. damages to the United States environment.

Norwegian system cannot be compatible with The subsequent diplomatic negotiations led to the United States
international law. and Canada signing and ratifying a Convention in 1935.
----------------------------------XXX----------------------------- Through the Convention, the two countries agreed to refer the
matter to a three-member arbitration tribunal composed of an
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American, a Canadian, and an independent chairman (a Belgian Prevention of Transboundary Harm from Hazardous Activities"
national was ultimately appointed). The arbitration tribunal was as the requisite level of intent needed to establish the liability of
charged with first determining whether damages caused by Trail transboundary polluters. Part One closes with an account of a
Smelter continued to occur after January 1, 1932 and, if so, what new dispute over pollution by the Trail Smelter - the United
indemnity should be paid. Under the Convention, Canada had States Environmental Protection Agency (EPA) has recently
already agreed to pay the United States $ 350,000 for damages issued a regulatory order under the Comprehensive
prior to 1932, based on the findings of the IJC. The arbitration Environmental Response, Compensation and Liability Act
tribunal addressed this first question in this context of the case (CERCLA) against Cominco relating to pollution of the Columbia
determining that the damages caused by the Canadian smelter River "watershed." An action to enforce the order is pending in
to properties in Washington State from 1932 to 1937 amounted United States Courts. The regulatory character of this action,
to $ 78,000 (equivalent to approximately $ 1.1 million in 2006). and the attempt by the United States to directly regulate a
The arbitration tribunal's more difficult, and ultimately more foreign entity under a "strict liability" theory of accountability,
significant charge, was to decide whether the Canadian smelter demonstrates a drastic break in the character of modern
should be required to refrain from causing damage in the State transboundary pollution disputes.
of Washington in the future, and what measures or regime, if
any, should be adopted or maintained by the smelter, in addition Part Two examines the significance and potential relevance of
to future "indemnity or compensation. the Trail Smelter principles to important "contemporary" issues
in transboundary environmental harm. The issues surveyed
To answer these questions, the tribunal was directed to apply include genetically modified organisms, nuclear energy, global
the law and practice followed in dealing with cognate questions climate change, hazardous waste transport, transboundary air
in the United States of America as well as International Law and pollution, and marine pollution, among others. The difficulty of
Practice, and give consideration to the desire of the High identifying any particular polluting entity as the single cause of
Contracting Parties to reach a solution just to all parties global pollution problems, like climate change cannot be
concerned. identified. The requirement of "clear and convincing evidence"
of "serious" environmental harm makes liability increasingly
ISSUE difficult to establish, and bilateral litigation becomes less
The Trail Smelter case came up with the issue of "duty" effective in solving widespread pollution problems. States still
of states to "prevent transboundary harm" and invoking the reign supreme even in such international regulatory regimes, as
"polluter pays" principle. conventions generally depend upon state cooperation and often
are more concerned with preserving the sovereign equality of
HELD states than preventing pollution. One other key theme in Part
Transboundary Harm' issue Two is a recognition of the fact that although Canada voluntarily
Transboundary Harm proceeds in three parts. Part One assumed responsibility for the actions of a private company in
examines the historical foundations of the case, its influence on the Trail Smelter arbitration, such attributions of control are more
international environmental law, and the smelter's continuing yet problematic.
largely unknown toxic legacy. Part Two examines the case's Part Three innovatively examines the applicability of Trail
contemporary significance for the law of transboundary Smelter to non-environmental forms of "transboundary harm" as
environmental harm. Part Three looks beyond environmental broadly defined, including terrorism, refugee flows, Internet
law to examine the significance of the Trail Smelter arbitration torts, drug trafficking, and human rights. Generally, such
for legal responses to other transboundary harms, from analyses find that Trail's lessons are not easily transposed to
international terrorism to Internet torts. Illustratively: other sorts of transboundary harm. First, "liability regimes"
imposing damages for continuing harms are not always
Part one examination begins with a detailed account of the appropriate to remedy non-environmental harms. In the cases
history surrounding the dispute, describing the important roles of migration of refugees forcing the state from which the harm
of the private parties involved and examining the actions of the emanated to compensate other states for the harm engendered
state actors in arbitrating the dispute on behalf of the parties. will not generally resolve the problem because the harms tend
Part One also examines the "jurisprudential legacy" of the to arise from instability, poverty, or weak governments within
decision in an increasingly prevention-focused, regulatory world. those states. Not only will those states generally have little
The usefulness of the Smelter case is limited by the fact that the money to satisfy any potential judgment, but any such judgment
dispute turned more on the rights of states as "sovereign equals" could only serve to further destabilize the state and increase the
and less on the undesirability of transboundary pollution. Unlike harm.
the situation in Trail, in contemporary disputes the cause of
damages is often unclear and the disputing countries often lack In other situations, the intense focus of Trail Smelter on theories
a history of cooperation and "reciprocal" interests which counsel of sovereign equality makes it less well suited to address harms
them toward cooperation and moderation. The enduring caused by private actors. For example, with respect to Internet
significance of the "due diligence" obligation was created by the torts or terrorism, states may not be well placed to prevent the
Tribunal. The obligation "not to cause serious environmental commission of such harms by private actors. In addition,
harm" - was originally intended to ensure the continuing multinational corporations often operate across many different
compliance of the Trail Smelter with pollution-prevention states, making it difficult to hold any one state responsible for
measures. Due diligence, is recognized by the "Draft Articles on their harmful actions. Rather, multinational corporations often
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have better resources and scientific knowledge to regulate their a state and local governments or private parties (such as cities
own actions in ways consistent with notions of "corporate social and mining companies). Taking the decisions as a whole, the
and environmental responsibility" and therefore states must tribunal stated the following principles for transboundary
work together with those corporations in that regard. Finally, the pollution disputes:
Trail Smelter remains relevant insofar as it would counsel that
states be held responsible for their own extraterritorial actions No State has the right to use or permit the use of its territory in
which result in human rights violations abroad. such a manner as to cause injury by fumes in or to the territory
of another or the properties or persons therein, when the cause
General principles is of serious consequence and the injury is established by clear
Only two General Principles have been evolved from the case and convincing evidence.
of Smelter. The first and more general one is that enjoying every
State not to allow its territory to be used in such a way as to The tribunal further held that the Dominion of Canada is
damage the environment of other States or of areas beyond the responsible in international law for the conduct of the Trail
limits of national jurisdiction. This principle was first set out by Smelter. Therefore, it is the duty of the Government of the
the Arbitral Courts in the Smelter case. This principle is Dominion of Canada to see to it that this conduct should be in
substantially based on an even more general obligation, conformity with the obligation of the Dominion under
enunciated in the Corfu Channel13 case where the principle laid international law as herein determined.
down that every State is under the obligation not to allow
knowingly its territory to be used for acts contrary to the rights of Applying these principles to the dispute at hand, the tribunal
the other States. required the Trail Smelter to "refrain from causing any damage
through fumes in the State of Washington."18 The tribunal
The second general principle attested to by the general and specifically noted that such damage would be actionable under
increasing concern of the States about the environment and United States law in a suit between private individuals. Further,
born out by the great number of treaties concluded that imposing the tribunal ordered a detailed management regime and
upon States the obligation to co-operate for the protection of the regulations for the smelter to prevent sulphur dioxide emissions
environment. This principle had already been eluded in the from reaching levels that cause property damage in Washington
decision of the Smelter case. It is off course much looser than State. The tribunal also indicated that it would allow future claims
the previous one but already reflects a new approach to for damages that occur, despite the imposed management
environmental issues, based on the assumption that the regime.
environment is a matter of general concern. It follows from this
principle that every State must co-operate for the protection of CONCLUSION
this precious asset, regardless of whether or not its own Canada was held liable to the United States for the damages
environment has been or may be harmed. This principle can and injuries done by fumes carried by the winds from a privately
only be applied jointly with the customary rule on good faith, owned company of smelter in Canada and was required to
which states every State must in good faith endeavor to co- prevent such damages in future. The tribunal found it
operate with other States with a view to protecting the unnecessary to decide whether the question should be
environment. A blunt refusal to co-operate, unaccompanied by answered on the basis of United States Law or the International
a statement of he reasons for such attitude, would amount to a Law, since the law followed between the states of the United
breach of the principle.'15 After dealing with issues of States in the manner of air pollution, is in conformity with the
transboundary harm and general principles applicable in this general rules of International law. Pointing to the absence of
case we have to give the answers to the questions that has international decisions dealing with air pollution, the tribunal
come up in this case relating to whether the Canadian smelter said, The nearest analogy is that of water pollution, but again
should be required to refrain from causing damage in the State found no interrelation decisions. On both air and water pollution,
of Washington in the future, and what measures or regime, if the tribunal found certain United States Supreme Court
any, should be adopted or maintained by the smelter, in addition decisions which may be legitimately taken as a guide in this field
to future "indemnity or compensation." of international law, for it is reasonable to follow by analogy, in
international cases, precedent established by that court in
The tribunal first concluded that there was no need to choose dealing with controversies between the States of the Union or
between the law of the United States or international law to with other controversies concerning the quasi-sovereign rights
decide the case, as the law followed in the United States in of that states, where no contrary rule prevails in international law
dealing with the quasi-sovereign rights of the States of the and no reason for rejecting such precedents can be adduced
Union, in the matter of transboundary pollution, is in conformity from the limitations of sovereignty inherent in the Constitution of
with the general rules of international law. The tribunal cited a the United States. The tribunal referred to one Swiss case, on
leading international law authority: "As Professor Eagleton puts water pollution, Georgia vs Tennessee Copper Co.
in ... 'A State owes at all times a duty to protect other States
against injurious acts by individuals from within its under the principles of international law, as well as the law of the
jurisdiction.'"16The tribunal supplemented this general rule with United States, no State has the right to use or permit the use of
a comprehensive summary of the United States Supreme its territory in such a manner as to cause injury by fumes in or to
Court's decisions regarding interstate transboundary pollution, the territory of another or the properties or persons therein, when
including cases both between two sovereign states and between
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the case is of serious consequences and the injury is shareholder rights (such as to dividends) were affected, that the
established by clear and convincing evidence. state of the shareholders would have an independent right of
action. It was a general rule of international law that when an
Considering the circumstances of the case, the Tribunal held unlawful act was committed against a company, only the state
that the Dominion of Canada is responsible by international law of incorporation of the company could sue, and because
for the conduct of the Trail Smelter. Apart from the undertakings Canada had chosen not to, this was the end. The idea of a
of the Convention, it is therefore the duty of the Government of "diplomatic protection" of shareholders was unsound because it
the Dominion of Canada to see to it that this conduct should be would create confusion and insecurity in economic relations as
in conformity with the obligation of the Dominion under shares are 'widely scattered and frequently change hands'. The
international law as herein determined. court also said that a state is bound to give the same legal
protection to foreign investments and nationals, either for natural
Therefore, so long as the present conditions in the Columbia or legal persons, when it admits them to its territory.
River Valley prevail, the Trail Smelter shall be required to refrain
from causing any damage through fumes in the State of Padilla Nervo J said the following.
Washington; the damage herein referred to and its extent being
such as would be recoverable under the decisions of the courts The history of the responsibility of States in respect to
of the United States in suits between private individuals. The the treatment of foreign nationals is the history of abuses, illegal
indemnity for such damage should be fixed in such a manner as interference in the domestic jurisdiction of weaker States, unjust
the Governments should agree upon. claims, threats and even military aggression under the flag of
---------------------------xxx------------------------- exercising rights of protection, and the imposing of sanctions in
BARCELONA TRACTION, LIGHT AND POWER COMPANY, order to oblige a government to make the reparations
LTD. (BELGIUM V. SPAIN) demanded.
Special agreements to establish arbitral tribunals were on many
FACTS occasions concluded under pressure, by political, economic or
Barcelona Traction, Light, and Power Company, Ltd was a military threats.
corporation incorporated in Canada, with Toronto headquarters
that made and supplied electricity in Spain. It had issued bonds The protecting States, in many instances, are more concerned
to non-Spanish investors, but during the Spanish Civil War with obtaining financial settlements than with preserving
(1936-9) the Spanish government refused to allow BTLP to principles. Against the pressure of diplomatic protection, weaker
transfer currency to pay bondholders the interest they were due. States could do no more than to preserve and defend a principle
In 1948 a group of bondholders sued in Spain to declare that of international law, while giving way under the guise of
BTLP had defaulted on the ground it had failed to pay the accepting friendly settlements, either giving the compensation
interest. The Spanish court allowed their claim. The business demanded or by establishing claims commissions which had as
was sold, the surplus distributed to the bondholders, and a small a point of departure the acceptance of responsibility for acts or
amount was paid to shareholders. The shareholders in Canada omissions, where the government was, neither in fact nor in law,
succeeded in persuading Canada and other states to complain really responsible.
that Spain had denied justice and violated a series of treaty
obligations. However, Canada eventually accepted that Spain In the written and in the oral pleadings the Applicant has made
had the right to prevent BTLP from transferring currency and reference, in support of his thesis, to arbitral decisions of claims
declaring BTLP bankrupt. Of the shares, 88 per cent were commissionsamong others those between Mexico and the
owned by Belgians, and the Belgian government complained, United States, 1923.
insisting the Spanish government had not acted properly. They
made an initial claim at the International Court of Justice in 1958, These decisions do not necessarily give expression to rules of
but later withdrew it to allow negotiations. Subsequent customary international law, as ... the Commissions were
negotiations broke down, and a new claim was filed in 1962. authorized to decide these claims "in accordance with principles
Spain contended that Belgium had no standing because BTLP of international law, justice and equity," and, therefore, may
was a Canadian company. have been influenced by other than strictly legal considerations.
...
ISSUE
Does a state assumes an obligation concerning the treatment Now the evolution of international law has other horizons and its
of foreign investments based on general international law, progressive development is more promising, as Rosenne wrote:
once the state admits foreign investments or foreign nationals
into its territory? There is prevalent in the world today a widespread questioning
of the contemporary international law. This feeling is based on
HELD the view that for the greater part international law is the product
The International Court of Justice huevos that Belgium had no of European imperialism and colonialism and does not take
legal interest in the matter to justify it bringing a claim. Although sufficient account of the completely changed pattern of
Belgian shareholders suffered if a wrong was done to the international relations which now exists....
company, it was only the company's rights that could have been
infringed by Spain's actions. It would only be if direct
Page |8

Careful scrutiny of the record of the Court may lead to the


conclusion that it has been remarkably perceptive of the Much has been said about the justification for not leaving the
changing currents of international thought. In this respect it has shareholders in those enterprises without protection.
performed a major service to the international community as a
whole, because the need to bring international law into line with Perhaps modem international business practice has a tendency
present-day requirements and conditions is real and urgent. to be soft and partial towards the powerful and the rich, but no
rule of law could be built on such flimsy bases.
The law, in all its aspects, the jurisprudence and the practice of
States change as the world and the everyday requirements of Investors who go abroad in search of profits take a risk and go
international life change, but those responsible for its there for better or for worse, not only for better. They should
progressive evolution should take care that their decisions do, respect the institutions and abide by the national laws of the
in the long run, contribute to the maintenance of peace and country where they chose to go.
security and the betterment of the majority of mankind. ---------------------------xxx---------------------------
ICJ ADVISORY OPINION ON LEGALITY OF THE THREAT
In considering the needs and the good of the international OR USE OF NUCLEAR WEAPONS
community in our changing world, one must realize that there
are more important aspects than those concerned with Submission of the request and subsequent procedure
economic interests and profit making; other legitimate interests (paras. 1-9)
of a political and moral nature are at stake and should be
considered in judging the behavior and operation of the complex The Court begins by recalling that by a letter dated 19 December
international scope of modern commercial enterprises. 1994, filed in the Registry on 6 January 1995, the Secretary-
General of the United Nations officially communicated to the
It is not the shareholders in those huge corporations who are in Registrar the decision taken by the General Assembly to submit
need of diplomatic protection; it is rather the poorer or weaker a question to the Court for an advisory opinion. The final
States, where the investments take place, who need to be paragraph of Resolution 49/75 K, adopted by the General
protected against encroachment by powerful financial groups, or Assembly on 15 December 1994, which sets forth the question,
against unwarranted diplomatic pressure from governments provides that the General Assembly "Decides, pursuant to
who appear to be always ready to back at any rate their national Article 96, paragraph 1, of the Charter of the United Nations, to
shareholders, even when they are legally obliged to share the request the International Court of Justice urgently to render its
risk of their corporation and follow its fate, or even in case of advisory opinion on the following question: 'Is the threat or use
shareholders who are not or have never been under the limited of nuclear weapons in any circumstance permitted under
jurisdiction of the State of residence accused of having violated international law?'."
in respect of them certain fundamental rights concerning the
treatment of foreigners. It can be said that, by the mere fact of The Court then recapitulates the various stages of the
the existence of certain rules concerning the treatment of proceedings.
foreigners, these have certain fundamental rights that the State
of residence cannot violate without incurring international Jurisdiction of the Court paras. 10-18)
responsibility; but this is not the case of foreign shareholders as The Court first considers whether it has the jurisdiction to give a
such, who may be scattered all over the world and have never reply to the request of the General Assembly for an Advisory
been or need not be residents of the respondent State or under Opinion and whether, should the answer be in the affirmative,
its jurisdiction. there is any reason it should decline to exercise any such
jurisdiction.
In the case of the Rosa Gelbtrunk claim between Salvador and
the United States, the President of the arbitration commission The Court observes that it draws its competence in respect of
expressed a view which may summarize the position of advisory opinions from Article 65, paragraph 1, of its Statute,
foreigners in a country where they are resident. This view was while Article 96, paragraph 1 of the Charter provides that:
expressed as follows:
"The General Assembly or the Security Council may
A citizen or subject of one nation who, in the pursuit of request the International Court of Justice to give an
commercial enterprise, carries on trade within the territory and advisory opinion on any legal question."
under the protection of the sovereignty of a nation other than his
own, is to be considered as having cast in his lot with the Some States which oppose the giving of an opinion by the Court
subjects or citizens of the State in which he resides and carries argued that the General Assembly and Security Council may
on business. (Italics added.) ask for an advisory opinion on any legal question only within the
scope of their activities. In the view of the Court, it matters little
"In this case," Schwarzenberger remarks, "the rule was applied whether this interpretation of Article 96, paragraph 1, is or is not
to the loss of foreign property in the course of a civil war. The correct; in the present case, the General Assembly has
decision touches, however, one aspect of a much wider competence in any event to seize the Court. Referring to Articles
problem: the existence of international minimum standards, by 10, 11 and 13 of the Charter, the Court finds that, indeed, the
which, regarding foreigners, territorial jurisdiction is limited." ... question put to the Court has a relevance to many aspects of
Page |9

the activities and concerns of the General Assembly including Assembly. Some States, in contending that the question put to
those relating to the threat or use of force in international the Court is vague and abstract, appeared to mean by this that
relations, the disarmament process, and the progressive there exists no specific dispute on the subject-matter of the
development of international law. question. In order to respond to this argument, it is necessary to
distinguish between requirements governing contentious
"Legal Question" (para. 13) procedure and those applicable to advisory opinions. The
The Court observes that it has already had occasion to indicate purpose of the advisory function is not to settle - at least directly
that questions "framed in terms of law and raising problems of - disputes between States, but to offer legal advice to the organs
international law . . . are by their very nature susceptible of a and institutions requesting the opinion. The fact that the
reply based on law . . . [and] appear . . . to be questions of a question put to the Court does not relate to a specific dispute
legal character" (Western Sahara, Advisory Opinion, I.C.J. should consequently not lead the Court to decline to give the
Reports 1975, p. 18, para. 15). opinion requested. Other arguments concerned the fear that the
abstract nature of the question might lead the Court to make
It finds that the question put to the Court by the General hypothetical or speculative declarations outside the scope of its
Assembly is indeed a legal one, since the Court is asked to rule judicial function; the fact that the General Assembly has not
on the compatibility of the threat or use of nuclear weapons with explained to the Court for what precise purposes it seeks the
the relevant principles and rules of international law. To do this, advisory opinion; that a reply from the Court in this case might
the Court must identify the existing principles and rules, interpret adversely affect disarmament negotiations and would, therefore,
them and apply them to the threat or use of nuclear weapons, be contrary to the interest of the United Nations; and that in
thus offering a reply to the question posed based on law. answering the question posed, the Court would be going beyond
its judicial role and would be taking upon itself a law-making
The fact that this question also has political aspects, as, in the capacity.
nature of things, is the case with so many questions which arise
in international life, does not suffice to deprive it of its character The Court does not accept those arguments and concludes that
as a "legal question" and to "deprive the Court of a competence it has the authority to deliver an opinion on the question posed
expressly conferred on it by its Statute". Nor are the political by the General Assembly, and that there exist no "compelling
nature of the motives which may be said to have inspired the reasons" which would lead the Court to exercise its discretion
request or the political implications that the opinion given might not to do so. It points out, however, that it is an entirely different
have of relevance in the establishment of the Court's jurisdiction question whether, under the constraints placed upon it as a
to give such an opinion. judicial organ, it will be able to give a complete answer to the
question asked of it. But that is a different matter from a refusal
Discretion of the Court to give an advisory opinion (paras. to answer at all.
14-19)
Article 65, paragraph 1, of the Statute provides: "The Court may Formulation of the question posed (paras. 20 and 22)
give an advisory opinion . . ." (Emphasis added.) This is more The Court finds it unnecessary to pronounce on the possible
than an enabling provision. As the Court has repeatedly divergences between the English and French texts of the
emphasized, the Statute leaves a discretion as to whether or not question put. Its real objective is clear: to determine the legality
it will give an advisory opinion that has been requested of it, or illegality of the threat or use of nuclear weapons. And the
once it has established its competence to do so. In this context, argument concerning the legal conclusions to be drawn from the
the Court has previously noted as follows: use of the word "permitted", and the questions of burden of proof
to which it was said to give rise, are found by the Court to be
"The Court's Opinion is given not to the States, but to the organ without particular significance for the disposition of the issues
which is entitled to request it; the reply of the Court, itself an before it.
'organ of the United Nations', represents its participation in the
activities of the Organization, and, in principle, should not be The Applicable Law (paras. 23-34)
refused." (Interpretation of Peace Treaties with Bulgaria, In seeking to answer the question put to it by the General
Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Assembly, the Court must decide, after consideration of the
Reports 1950, p. 71; . . .)" great corpus of international law norms available to it, what
might be the relevant applicable law.
In the history of the present Court there has been no refusal,
based on the discretionary power of the Court, to act upon a The Court considers that the question whether a particular loss
request for advisory opinion; in the case concerning the Legality of life, through the use of a certain weapon in warfare, is to be
of the Use by a State of Nuclear Weapons in Armed Conflict the considered an arbitrary deprivation of life contrary to Article 6 of
refusal to give the World Health Organization the advisory the International Covenant on Civil and Political Rights, as
opinion requested by it was justified by the Court's lack of argued by some of the proponents of the illegality of the use of
jurisdiction in that case. nuclear weapons, can only be decided by reference to the law
applicable in armed conflict and not deduced from the terms of
Several reasons were adduced in these proceedings in order to the Covenant itself. The Court also points out that the prohibition
persuade the Court that in the exercise of its discretionary power of genocide would be pertinent in this case if the recourse to
it should decline to render the opinion requested by the General nuclear weapons did indeed entail the element of intent, towards
P a g e | 10

a group as such, required by Article II of the Convention on the respond to it, a rule well established in customary international
Prevention and Punishment of the Crime of Genocide. In the law".
view of the Court, it would only be possible to arrive at such a The proportionality principle may thus not in itself exclude the
conclusion after having taken due account of the circumstances use of nuclear weapons in self-defense in all circumstances. But
specific to each case. And the Court further finds that while the at the same time, a use of force that is proportionate under the
existing international law relating to the protection and law of self-defense, must, in order to be lawful, also meet the
safeguarding of the environment does not specifically prohibit requirements of the law applicable in armed conflict which
the use of nuclear weapons, it indicates important environmental comprise in particular the principles and rules of humanitarian
factors that are properly to be taken into account in the context law. And the Court notes that the very nature of all nuclear
of the implementation of the principles and rules of the law weapons and the profound risks associated therewith are further
applicable in armed conflict. considerations to be borne in mind by States believing they can
exercise a nuclear response in self-defense in accordance with
In the light of the foregoing the Court concludes that the most the requirements of proportionality.
directly relevant applicable law governing the question of which
it was seised, is that relating to the use of force enshrined in the In order to lessen or eliminate the risk of unlawful attack, States
United Nations Charter and the law applicable in armed conflict sometimes signal that they possess certain weapons to use in
which regulates the conduct of hostilities, together with any self-defense against any State violating their territorial integrity
specific treaties on nuclear weapons that the Court might or political independence. Whether a signaled intention to use
determine to be relevant. force if certain events occur is or is not a "threat" within Article
2, paragraph 4, of the Charter depends upon various factors.
Unique characteristics of nuclear weapons (paras. 35 and 36) The notions of "threat" and "use" of force under Article 2,
The Court notes that in order correctly to apply to the present paragraph 4, of the Charter stand together in the sense that if
case the Charter law on the use of force and the law applicable the use of force itself in a given case is illegal - for whatever
in armed conflict, in particular humanitarian law, it is imperative reason - the threat to use such force will likewise be illegal. In
for it to take account of the unique characteristics of nuclear short, if it is to be lawful, the declared readiness of a State to use
weapons, and in particular their destructive capacity, their force must be a use of force that is in conformity with the Charter.
capacity to cause untold human suffering, and their ability to For the rest, no State - whether or not it defended the policy of
cause damage to generations to come. deterrence - suggested to the Court that it would be lawful to
threaten to use force if the use of force contemplated would be
Provisions of the Charter relating to the threat or use of illegal.
force (paras. 37-50)
The Court then addresses the question of the legality or illegality Rules on the lawfulness or unlawfulness of nuclear
of recourse to nuclear weapons in the light of the provisions of weapons as such (paras. 49-73)
the Charter relating to the threat or use of force. Having dealt with the Charter provisions relating to the threat or
use of force, the Court turns to the law applicable in situations
In Article 2, paragraph 4, of the Charter the use of force against of armed conflict. It first addresses the question whether there
the territorial integrity or political independence of another State are specific rules in international law regulating the legality or
or in any other manner inconsistent with the purposes of the illegality of recourse to nuclear weapons per se; it then examines
United Nations is prohibited. 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
This prohibition of the use of force is to be considered in the light applicable in armed conflict, and the law of neutrality.
of other relevant provisions of the Charter. In Article 51, the
Charter recognizes the inherent right of individual or collective The Court notes by way of introduction that international
self-defense if an armed attack occurs. A further lawful use of customary and treaty law does not contain any specific
force is envisaged in Article 42, whereby the Security Council prescription authorizing the threat or use of nuclear weapons or
may take military enforcement measures in conformity with any other weapon in general or in certain circumstances, in
Chapter VII of the Charter. particular those of the exercise of legitimate self-defense. Nor,
however, is there any principle or rule of international law which
These provisions do not refer to specific weapons. They apply would make the legality of the threat or use of nuclear weapons
to any use of force, regardless of the weapons employed. The or of any other weapons dependent on a specific authorization.
Charter neither expressly prohibits, nor permits, the use of any State practice shows that the illegality of the use of certain
specific weapon, including nuclear weapons. weapons as such does not result from an absence of
authorization but, on the contrary, is formulated in terms of
The entitlement to resort to self-defense under Article 51 is prohibition.
subject to the conditions of necessity and proportionality. As the
Court stated in the case concerning Military and Paramilitary It does not seem to the Court that the use of nuclear weapons
Activities in and against Nicaragua (Nicaragua v. United States can be regarded as specifically prohibited on the basis of certain
of America) (I.C.J. Reports 1986, p. 94, para. 176): "there is a provisions of the Second Hague Declaration of 1899, the
specific rule whereby self-defense would warrant only measures Regulations annexed to the Hague Convention IV of 1907 or the
which are proportional to the armed attack and necessary to 1925 Geneva Protocol. The pattern until now has been for
P a g e | 11

weapons of mass destruction to be declared illegal by specific International humanitarian law (paras. 74-87)
instruments. But the Court does not find any specific prohibition Not having found a conventional rule of general scope, nor a
of recourse to nuclear weapons in treaties expressly prohibiting customary rule specifically proscribing the threat or use of
the use of certain weapons of mass destruction; and observes nuclear weapons per se, the Court then deals with the question
that, although, in the last two decades, a great many whether recourse to nuclear weapons must be considered as
negotiations have been conducted regarding nuclear weapons, illegal in the light of the principles and rules of international
they have not resulted in a treaty of general prohibition of the humanitarian law applicable in armed conflict and of the law of
same kind as for bacteriological and chemical weapons. neutrality.

The Court notes that the treaties dealing exclusively with After sketching the historical development of the body of rules
acquisition, manufacture, possession, deployment and testing of which originally were called "laws and customs of war" and later
nuclear weapons, without specifically addressing their threat or came to be termed "international humanitarian law", the Court
use, certainly point to an increasing concern in the international observes that the cardinal principles contained in the texts
community with these weapons; It concludes from this that these constituting the fabric of humanitarian law are the following. The
treaties could therefore be seen as foreshadowing a future first is aimed at the protection of the civilian population and
general prohibition of the use of such weapons, but that they do civilian objects and establishes the distinction between
not constitute such a prohibition by themselves. As to the combatants and non-combatants; States must never make
treaties of Tlatelolco and Rarotonga and their Protocols, and civilians the object of attack and must consequently never use
also the declarations made in connection with the indefinite weapons that are incapable of distinguishing between civilian
extension of the Treaty on the Non-Proliferation of Nuclear and military targets. According to the second principle, it is
Weapons, it emerges from these instruments that: prohibited to cause unnecessary suffering to combatants: it is
accordingly prohibited to use weapons causing them such harm
(a) a number of States have undertaken not to use or uselessly aggravating their suffering. In application of that
nuclear weapons in specific zones (Latin America; the South second principle, States do not have unlimited freedom of
Pacific) or against certain other States (non-nuclear-weapon choice of means in the weapons they use.
States which are parties to the Treaty on the Non-Proliferation
of Nuclear Weapons); The Court also refers to the Martens Clause, which was first
(b) Nevertheless, even within this framework, the included in the Hague Convention II with Respect to the Laws
nuclear-weapon States have reserved the right to use nuclear and Customs of War on Land of 1899 and which has proved to
weapons in certain circumstances; and be an effective means of addressing the rapid evolution of
(c) These reservations met with no objection from the military technology. A modern version of that clause is to be
parties to the Tlatelolco or Rarotonga Treaties or from the found in Article 1, paragraph 2, of Additional Protocol I of 1977,
Security Council. which reads as follows:

The Court then turns to an examination of customary "In cases not covered by this Protocol or by other international
international law to determine whether a prohibition of the threat agreements, civilians and combatants remain under the
or use of nuclear weapons as such flows from that source of law. protection and authority of the principles of international law
It notes that the Members of the international community are derived from established custom, from the principles of
profoundly divided on the matter of whether non-recourse to humanity and from the dictates of public conscience."
nuclear weapons over the past fifty years constitutes the The extensive codification of humanitarian law and the extent of
expression of an opinio juris. Under these circumstances the the accession to the resultant treaties, as well as the fact that
Court does not consider itself able to find that there is such an the denunciation clauses that existed in the codification
opinio juris. It points out that the adoption each year by the instruments have never been used, have provided the
General Assembly, by a large majority, of resolutions recalling international community with a corpus of treaty rules the great
the content of resolution 1653 (XVI), and requesting the member majority of which had already become customary and which
States to conclude a convention prohibiting the use of nuclear reflected the most universally recognized humanitarian
weapons in any circumstance, reveals the desire of a very large principles. These rules indicate the normal conduct and
section of the international community to take, by a specific and behaviour expected of States.
express prohibition of the use of nuclear weapons, a significant
step forward along the road to complete nuclear disarmament. Turning to the applicability of the principles and rules of
The emergence, as lex lata, of a customary rule specifically humanitarian law to a possible threat or use of nuclear weapons,
prohibiting the use of nuclear weapons as such is hampered by the Court notes that nuclear weapons were invented after most
the continuing tensions between the nascent opinio juris on the of the principles and rules of humanitarian law applicable in
one hand, and the still strong adherence to the doctrine of armed conflict had already come into existence; the
deterrence (in which the right to use those weapons in the Conferences of 1949 and 1974-1977 left these weapons aside,
exercise of the right to self-defense against an armed attack and there is a qualitative as well as quantitative difference
threatening the vital security interests of the State is reserved) between nuclear weapons and all conventional arms. However,
on the other. in the Court's view, 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
P a g e | 12

conclusion would be incompatible with the intrinsically it cannot reach a definitive conclusion as to the legality or
humanitarian character of the legal principles in question which illegality of the use of nuclear weapons by a State in an extreme
permeates the entire law of armed conflict and applies to all circumstance of self-defense, in which its very survival would be
forms of warfare and to all kinds of weapons, those of the past, at stake.
those of the present and those of the future. In this respect it
seems significant that the thesis that the rules of humanitarian Obligation to negotiate nuclear disarmament (paras. 98-
law do not apply to the new weaponry, because of the newness 103)
of the latter, has not been advocated in the present proceedings. Given the eminently difficult issues that arise in applying the law
on the use of force and above all the law applicable in armed
The principle of neutrality (paras. 88 and 89) conflict to nuclear weapons, the Court considers that it needs to
The Court finds that as in the case of the principles of examine one further aspect of the question before it, seen in a
humanitarian law applicable in armed conflict, international law broader context.
leaves no doubt that the principle of neutrality, whatever its
content, which is of a fundamental character similar to that of the In the long run, international law, and with it the stability of the
humanitarian principles and rules, is applicable (subject to the international order which it is intended to govern, are bound to
relevant provisions of the United Nations Charter), to all suffer from the continuing difference of views with regard to the
international armed conflict, whatever type of weapons might be legal status of weapons as deadly as nuclear weapons. It is
used. consequently important to put an end to this state of affairs: the
long-promised complete nuclear disarmament appears to be the
Conclusions to be drawn from the applicability of international most appropriate means of achieving that result.
humanitarian law and the principle of neutrality (paras. 90-97)
The Court observes that, although the applicability of the In these circumstances, the Court appreciates the full
principles and rules of humanitarian law and of the principle of importance of the recognition by Article VI of the Treaty on the
neutrality to nuclear weapons is hardly disputed, the conclusions Non-Proliferation of Nuclear Weapons of an obligation to
to be drawn from this applicability are, on the other hand, negotiate in good faith a nuclear disarmament. The legal import
controversial. of that obligation goes beyond that of a mere obligation of
conduct; the obligation involved here is an obligation to achieve
According to one point of view, the fact that recourse to nuclear a precise result - nuclear disarmament in all its aspects - by
weapons is subject to and regulated by the law of armed conflict, adopting a particular course of conduct, namely, the pursuit of
does not necessarily mean that such recourse is as such negotiations on the matter in good faith. This twofold obligation
prohibited. Another view holds that recourse to nuclear to pursue and to conclude negotiations formally concerns the
weapons, in view of the necessarily indiscriminate 182 States parties to the Treaty on the Non-Proliferation of
consequences of their use, could never be compatible with the Nuclear Weapons, or, in other words, the vast majority of the
principles and rules of humanitarian law and is therefore international community. Indeed, any realistic search for general
prohibited. A similar view has been expressed with respect to and complete disarmament, especially nuclear disarmament,
the effects of the principle of neutrality. Like the principles and necessitates the co-operation of all States.
rules of humanitarian law, that principle has therefore been
considered by some to rule out the use of a weapon the effects The Court finally emphasizes that its reply to the question put to
of which simply cannot be contained within the territories of the it by the General Assembly rests on the totality of the legal
contending States. grounds set forth by the Court above (paragraphs 20 to 103),
each of which is to be read in the light of the others. Some of
The Court observes that, in view of the unique characteristics of these grounds are not such as to form the object of formal
nuclear weapons, to which the Court has referred above, the conclusions in the final paragraph of the Opinion; they
use of such weapons in fact seems scarcely reconcilable with nevertheless retain, in the view of the Court, all their importance.
respect for the requirements of the law applicable in armed ----------------------------xxx------------------------------
conflict. It considers nevertheless, that it does not have sufficient SOUTH CHINA SEA ARBITRATION (award of july 2016)
elements to enable it to conclude with certainty that the use of On 12 July 2016, the Permanent Court of Arbitration published
nuclear weapons would necessarily be at variance with the an arbitration award by the tribunal which it states is final and
principles and rules of law applicable in armed conflict in any binding as set out in the Convention.[30][42] Conclusions
circumstance. Furthermore, the Court cannot lose sight of the expressed in the award included the following:
fundamental right of every State to survival, and thus its right to Regarding the "Nine-Dash Line" and China's claim in the
resort to self-defense, in accordance with Article 51 of the maritime areas of the South China Sea [43]
Charter, when its survival is at stake. Nor can it ignore the
practice referred to as "policy of deterrence", to which an The [UNCLOS] Convention defines the scope of maritime
appreciable section of the international community adhered for entitlements in the South China Sea, which may not extend
many years. beyond the limits imposed therein.[44]

Accordingly, in view of the present state of international law Chinas claims to historic rights, or other sovereign
viewed as a whole, as examined by the Court, and of the rights or jurisdiction, with respect to the maritime areas of the
elements of fact at its disposal, the Court is led to observe that South China Sea encompassed by the relevant part of the nine-
P a g e | 13

dash line are contrary to the Convention and without lawful obstacle to the tribunals consideration of the Philippines
effect to the extent that they exceed the geographic and Submission No. 5.[52]
substantive limits of Chinas maritime entitlements under the
Convention. The Convention superseded any historic rights or Both Mischief Reef and Second Thomas Shoal are
other sovereign rights or jurisdiction in excess of the limits located within 200 nautical miles of the Philippines coast on the
imposed therein.[45] island of Palawan and are located in an area that is not
Regarding the status of features as above/below water at high overlapped by the entitlements generated by any maritime
tide (Submissions no. 4 and 6) feature claimed by China. It follows, therefore, that, as between
the Philippines and China, Mischief Reef and Second Thomas
High-tide features: (a) Scarborough Shoal, (b) Shoal form part of the exclusive economic zone and continental
Cuarteron Reef, (c) Fiery Cross Reef, (d) Johnson Reef, (e) shelf of the Philippines.[53]
McKennan Reef, and (f) Gaven Reef (North).[46] Regarding alleged interference with the Philippines' sovereign
Low-tide elevations: (a) Hughes Reef, (b) Gaven Reef rights in its EEZ and continental shelf (Submission no. 8)
(South), (c) Subi Reef, (d) Mischief Reef, (e) Second Thomas
Shoal.[47] China has, through the operation of its marine
surveillance vessels with respect to M/V Veritas Voyager on 1
Hughes Reef lies within 12 nautical miles of the high- to 2 March 2011 breached Article 77 of the Convention with
tide features on McKennan Reef and Sin Cowe Island, Gaven respect to the Philippines sovereign rights over the non-living
Reef (South) lies within 12 nautical miles of the high-tide resources of its continental shelf in the area of Reed Bank [and]
features at Gaven Reef (North) and Namyit Island, and that Subi that China has, by promulgating its 2012 moratorium on fishing
Reef lies within 12 nautical miles of the high-tide feature of in the South China Sea, without exception for areas of the South
Sandy Cay on the reefs to the west of Thitu.[48] China Sea falling within the exclusive economic zone of the
Regarding the status of features as rocks/islands (Submissions Philippines and without limiting the moratorium to Chinese
no. 3, 5, and 7) flagged vessels, breached Article 56 of the Convention with
respect to the Philippines sovereign rights over the living
Scarborough Shoal contains, within the meaning of resources of its exclusive economic zone.[54]
Article 121(1) of the Convention, naturally formed areas of land, Regarding alleged failure to prevent Chinese nationals from
surrounded by water, which are above water at high tide. exploiting the Philippines' living resources (Submission no. 9)
However, under Article 121(3) of the Convention, the high-tide
features at Scarborough Shoal are rocks that cannot sustain China has, through the operation of its marine
human habitation or economic life of their own and accordingly surveillance vessels in tolerating and failing to exercise due
shall have no exclusive economic zone or continental shelf.[49] diligence to prevent fishing by Chinese flagged vessels at
Mischief Reef and Second Thomas Shoal in May 2013, failed to
Johnson Reef, Cuarteron Reef, and Fiery Cross Reef exhibit due regard for the Philippines sovereign rights with
contain, within the meaning of Article 121(1) of the Convention, respect to fisheries in its exclusive economic zone. Accordingly,
naturally formed areas of land, surrounded by water, which are China has breached its obligations under Article 58(3) of the
above water at high tide. However, for purposes of Article 121(3) Convention.[55]
of the Convention, the high-tide features at Johnson Reef, Regarding China's actions in respect of traditional fishing at
Cuarteron Reef, and Fiery Cross Reef are rocks that cannot Scarborough Shoal (Submission no. 10)
sustain human habitation or economic life of their own and
accordingly shall have no exclusive economic zone or China has, through the operation of its official vessels
continental shelf.[50] at Scarborough Shoal from May 2012 onwards, unlawfully
prevented Filipino fishermen from engaging in traditional fishing
The high-tide features at Gaven Reef (North) and at Scarborough Shoal.[56]
McKennan Reef are rocks that cannot sustain human habitation Regarding alleged failure to protect and preserve )the marine
or economic life of their own and accordingly shall have no environment (Submissions no. 11 and 12(B))
exclusive economic zone or continental shelf.[51]
China has, through its toleration and protection of, and
Mischief Reef and Second Thomas Shoal are both low- failure to prevent Chinese fishing vessels engaging in harmful
tide elevations that generate no maritime zones of their own harvesting activities of endangered species at Scarborough
[and] that none of the high-tide features in the Spratly Islands Shoal, Second Thomas Shoal and other features in the Spratly
are capable of sustaining human habitation or an economic life Islands, breached Articles 192 and 194(5) of the
of their own within the meaning of those terms in Article 121(3) Convention.[57]
of the Convention. All of the high-tide features in the Spratly
Islands are therefore legally rocks for purposes of Article 121(3) China has, through its island-building activities at
and do not generate entitlements to an exclusive economic zone Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson
or continental shelf. There is, accordingly, no possible Reef, Hughes Reef, Subi Reef and Mischief Reef, breached
entitlement by China to any maritime zone in the area of either Articles 192, 194(1), 194(5), 197, 123, and 206 of the
Mischief Reef or Second Thomas Shoal and no jurisdictional Convention.[58]
P a g e | 14

Regarding occupation and construction activities on Mischief bolster Mauritius claim to sovereignty over the archipelago.
Reef (Submission no. 12) Therefore, this alternative claim related to the same dispute in
respect of land sovereignty over the archipelago as Mauritius
China has, through its construction of installations and previous submission (paras 228-230 of the award).
artificial islands at Mischief Reef without the authorisation of the However, it did have jurisdiction to consider Mauritius' claim that
Philippines, breached Articles 60 and 80 of the Convention with the UKs declaration of the MPA was not compatible with the
respect to the Philippines sovereign rights in its exclusive UKs UNCLOS obligations. The dispute between the parties in
economic zone and continental shelf [and], as a low-tide relation to the compatibility of the MPA with the UNCLOS related
elevation, Mischief Reef is not capable of appropriation.[59] more broadly to the preservation of the marine environment and
Regarding operation of law enforcement vessels in a dangerous to the legal regime applicable to the archipelago and its
manner (Submission no. 13) surrounding waters when it was eventually returned to Mauritius
(paras 283-323).
China has, by virtue of the conduct of Chinese law As a result of undertakings given by the UK in 1965 and
enforcement vessels in the vicinity of Scarborough Shoal, repeated thereafter, Mauritius held legally binding rights to fish
created serious risk of collision and danger to Philippine vessels in the waters surrounding the archipelago, to the eventual return
and personnel. The Tribunal finds China to have violated Rules of the archipelago to Mauritius when no longer needed for
2, 6, 7, 8, 15, and 16 of the COLREGS and, as a consequence, defence purposes, and to the preservation of the benefit of any
to be in breach of Article 94 of the Convention.[60] minerals or oil discovered in or near the archipelago pending its
Regarding aggravation or extension of the dispute between the eventual return. In declaring the MPA, the UK failed to give due
parties (Submission No. 14) regard to these rights and breached its obligations under the
UNCLOS (Chapter VI - Merits).
China has in the course of these proceedings There was no dispute between the parties regarding
aggravated and extended the disputes between the Parties submissions to the Commission on the Limits of the Continental
through its dredging, artificial island-building, and construction Shelf, and it was therefore unnecessary for the PCA to exercise
activities [in several particulars itemized in the award].[61] jurisdiction in respect of Mauritius' claim on this issue (paras
Regarding the future conduct of the parties (Submission no. 15) 331-350).
Two PCA members issued a joint Dissenting and Concurring
Both Parties are obliged to comply with the Opinion, setting out their view that the PCA should have found
Convention, including its provisions regarding the resolution of that it had jurisdiction to consider Mauritius claims concerning
disputes, and to respect the rights and freedoms of other States the identity of the "coastal State". The Dissenting and
under the Convention. Neither Party contests this. Concurring Opinion also expressed the view that the PCA
----------------------------xxx-------------------------- should have exercised that jurisdiction to hold that the UKs
CHAGOS MARINE PROTECTED AREA ARBITRATION detachment of the archipelago from the colony of Mauritius in
(MAURITIUS V. UNITED KINGDOM) 1965 was contrary to the principles of decolonisation and self-
determination.
On 18 March 2015 the Permanent Court of Arbitration in The ---------------------------------xxx------------------------------
Hague (PCA) handed down its award in the matter of the GABCIKOCO-NAGYMAROS PROJECT (HUNGARY V.
Chagos Marine Protected Area Arbitration between Mauritius SLOVAKIA)
and the UK.
FACTS
The arbitration focused on the 2010 establishment by the UK of In 1977, Hungary and Czechoslovakia entered into a treaty to
a Marine Protected Area (MPA) around the Chagos build and operate various structures (a reservoir, dam, bypass
Archipelago, in the Indian Ocean. The archipelago is under UK canal, hydroelectric power plants, and navigational and flood
administration as the British Indian Ocean Territory. control improvements) on the Danube River, their shared
border. Construction began in 1978 but was not completed. In
The PCA found as follows: 1989, both countries experienced major political and economic
changes. New political leadership in both countries expressed
It declined jurisdiction to consider Mauritius' claim that the UK concerns over going through with the projects for environmental
was not the "coastal State" in respect of the archipelago for the and economic reasons. Hungary first suspended its share of the
purposes of the 1982 United Nations Convention on the Law of project in 1989 and later abandoned it. Czechoslovakia began
the Sea (UNCLOS). This was because the parties dispute work in 1991 on a new version of the plan. However, in 1993,
related to land sovereignty over the archipelago, and their Czechoslovakia dissolved into two states, and Slovakia became
differing views on the "coastal State" were simply one aspect of independent. Hungary and Slovakia submitted a dispute to the
this larger dispute. The land sovereignty issue was not International Court of Justice (ICJ) and requested the court to
genuinely related to the UNCLOS (paras 207-221 of the award). determine on the basis of international law whether Hungary
Nor did it have jurisdiction to consider Mauritius' alternative was entitled to suspend and then abandon its part of the Danube
claim that certain undertakings by the UK had endowed project. Hungary argued it was entitled to suspend and abandon
Mauritius with rights as a "coastal State" in respect of the due to changed circumstances and impossibility of performance.
archipelago. The true "object of the claim" (Nuclear Tests (New
Zealand v. France), Judgment, I.C.J. Reports 1974) was to
P a g e | 15

ISSUE:
Must a fundamental change of circumstances have been
unforeseen and must the existence of the circumstances at the
time of the treatys conclusion have constituted an essential
basis of the consent of the parties to be bound?

HELD.
Yes. A vital change of circumstances must have been
unforeseen and the existence of the circumstances at the time
of the treatys conclusion must have constituted an essential
basis of the consent of the parties to be bound by their
agreement. Where the common political and economic
conditions were not so closely related to the goals and purpose
of the treaty as to constitute an essential basis of the consent of
the parties, there was no fundamental change of
circumstances.it is only in exceptional cases that the plea of
fundamental change of circumstance may be applied.

DISCUSSION.
The Court relied on the Vienna Convention. The Convention
may be seen as a codification of existing customary law on the
subject of termination of a treaty on the basis of change in
circumstances. New developments in environmental law were
not completely unforeseen.