PIL- session 2 -

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

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

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

2

[1] Wong Wing vs. U. S., 163 U. S., 228; Administrative Control of Aliens by Van Vleck p.
184, citing Chumura vs. Smith, 29 Fed. (2d), 287, and Ex parte Mathews, 277 Fed., 857.
[2] Cf. Clark, Deportation of Aliens p. 423; Van Vleck op. cit. p. 183 et seq. Ross vs. Wallis,
279 Fed., 401.
[3] Ross vs. Wallis, supra.
[4] Bonder vs. Johnson, 5 Fed. (2d), 238.
[5] Two months, Caranica vs. Nagle, 28 Fed. (2d), 955; four months, Ross vs.
Wallis, supra.
DISSENTING
PARAS, J.:
I agree to a temporary detention of a person to be deported, but said detention must be
for a reasonable length of time. In this particular case, the deportation order was issued
in 1946. If the Government is unable to carry out said order within a reasonable period, it
should in the meantime release the petitioner, unless he has committed a crime, in which
case the law should take its due course. The theory that the detention of a person is to
prevent the commission of a crime, is more in consonance with the idea of concentrating
suspected or would be criminal.. In a democracy, however, every person is entitled to
freedom, subject to arrest only for actual commission of a crime. At most, I can agree to a
further detention of the herein petitioner, provided that he be released if after six
months, the Government is still unable to deport him.
TUASON, J.:
I concur in this dissenting opinion except that two months constitute, in my judgment,
reasonable time.
FERIA, J.:
I dissent from the majority. The Government cannot indefinitely detain the petitioner
until it may deport the petitioner, without violating the right of the petitioner not to be
deprived of his liberty without due process of law.
Reyes vs Bagatsing
REYES V. BAGATSING
FACTS:
 Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the
City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00
to 5:00 in the afternoon, starting from the Luneta, a public park, to the gates of
the United States Embassy, two blocks away. (Open space of public property)
 During the course of the oral argument, it was stated that after the delivery of
two brief speeches, a petition based on the resolution adopted on the last day by
the International Conference for General Disarmament, World Peace and the
Removal of All Foreign Military Bases held in Manila, would be presented to a
representative of the Embassy or any of its personnel who may be there so that
it may be delivered to the United States Ambassador.
o The march would be attended by the local and foreign participants of
such conference. There was likewise an assurance in the petition that
in the exercise of the constitutional rights to free speech and assembly,
all the necessary steps would be taken by it "to ensure a peaceful march
and rally."
 Justice Reyes filed a suit for mandamus with alternative prayer for writ of
preliminary mandatory injunction due to the fact that as of that date, he had not
been informed of any action taken on his request on behalf of the organization to
hold a rally.
o It turned out that on October 19, such permit was denied. Petitioner
was unaware of such a fact as the denial was sent by ordinary mail.
o The reason for refusing a permit was due to police intelligence reports
which strongly militate against the advisability of issuing such permit
at this time and at the place applied for."
 To be more specific, reference was made to persistent
intelligence reports affirming the plans of
subversive/criminal elements to infiltrate and/or disrupt any
assembly or congregations where a large number of people is
expected to attend."
 Mayor suggested, however, in accordance with the
recommendation of the police authorities, that "a permit may
be issued for the rally if it is to be held at the Rizal Coliseum
or any other enclosed area where the safety of the
participants themselves and the general public may be
ensured."
 A minute resolution was issued by the Court granting the mandatory injunction
prayed for on the ground that there was no showing of the existence of a clear
and present danger of a substantive evil that could justify the denial of a permit.
W/N the denial of the permit violates the exercise of the cognate rights to free
speech and peaceful assembly – YES
 The Constitution is quite explicit: "No law shall be passed abridging the freedom
of speech, or of the press, or the right of the people peaceably to assemble and
petition the Government for redress of grievances."
 Free speech, like free press, may be identified with the liberty to discuss publicly
and truthfully any matter of public concern without censorship or punishment.
 There is to be then no previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for sedition, or action for
damages, or contempt proceedings unless there be a clear and present danger of
a substantive evil that [the State] has a right to prevent."
3
 Freedom of assembly connotes the right people to meet peaceably for
consultation and discussion of matters of public concern.
 What was rightfully stressed is the abandonment of reason, the utterance,
whether verbal or printed, being in a context of violence. It must always be
remembered that this right likewise provides for a safety valve, allowing parties
the opportunity to give vent to their-views, even if contrary to the prevailing
climate of opinion. For if the peaceful means of communication cannot be availed
of, resort to non-peaceful means may be the only alternative. Nor is this the sole
reason for the expression of dissent.
 There are, of course, well-defined limits. What is guaranteed is peaceable
assembly. One may not advocate disorder in the name of protest, much less
preach rebellion under the cloak of dissent. The Constitution frowns on disorder
or tumult attending a rally or assembly. Resort to force is ruled out and outbreaks
of violence to be avoided. The utmost calm though is not required.
 There can be no legal objection, absent the existence of a clear and present
danger of a substantive evil, on the choice of Luneta as the place where the peace
rally would start. Primicias made explicit what was implicit in Municipality of
Cavite v. Rojas, where this Court categorically affirmed that plazas or parks and
streets are outside the commerce of man and thus nullified a contract that leased
Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being
a promenade for public use," which certainly is not the only purpose that it could
serve. To repeat, there can be no valid reason why a permit should not be granted
for the proposed march and rally starting from a public dark that is the Luneta.
Neither can there be any valid objection to the use of the streets, to the gates of
the US Embassy, hardly two block-away at the Roxas Boulevard.
 If the rally were confined to Luneta, no question, as noted, would have arisen. So,
too, if the march would end at another park.
 As previously mentioned though, there would be a short program upon reaching
the public space between the two gates of the United States Embassy at Roxas
Boulevard. That would be followed by the handing over of a petition based on
the resolution adopted at the closing session of the Anti-Bases Coalition.
 The Philippines is a signatory of the Vienna Convention on Diplomatic
Relations adopted in 1961.
o The second paragraph of the Article 22 reads: "2. The receiving
State is under a special duty to take appropriate steps to protect
the premises of the mission against any intrusion or damage and
to prevent any disturbance of the peace of the mission or
impairment of its dignity. "
o The Constitution "adopts the generally accepted principles of
international law as part of the law of the land. ..."
o To the extent that the Vienna Convention is a restatement of the
generally accepted principles of international law, it should be a
part of the law of the land.
 That being the case, if there were a clear and present danger of any
intrusion or damage, or disturbance of the peace of the mission, or
impairment of its dignity, there would be a justification for the denial of the
permit insofar as the terminal point would be the Embassy.
 Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations within a radius of
five hundred (500) feet from any foreign mission or chancery and for other
purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation
as a defense is understandable but not decisive, in view of the primacy accorded
the constitutional rights of free speech and peaceable assembly. Even if shown
then to be applicable, that question the confronts this Court.
 There was no justification then to deny the exercise of the constitutional rights
of tree speech and peaceable assembly. These rights are assured by our
Constitution and the Universal Declaration of Human Rights. The participants to
such assembly, composed primarily of those in attendance at the International
Conference for General Disarmament, World Peace and the Removal of All
Foreign Military Bases would start from the Luneta. proceeding through Roxas
Boulevard to the gates of the United States Embassy located at the same street.
 To repeat, it is settled law that as to public places, especially so as to parks and
streets, there is freedom of access. Nor is their use dependent on who is the
applicant for the permit, whether an individual or a group. If it were, then the
freedom of access becomes discriminatory access, giving rise to an equal
protection question.
Agustin vs Edu
Agustin v. Edu (1979)
Petitioner: Leovillo C. Agustin
Respondent: Romeo F. Edu (Land Transportation Commissioner)
Topic: Inherent powers of the state - Police power
______________________________________________________________________
SUMMARY: Petitioner challenges the constitutionality of LOI 229 and its IRR, which
requires cars to be equipped w/ early warning devices. Petitioner says that LOI 229 is
oppressive, financially burdensome, discriminatory and implementation of it is not w/n
powers of the State. The Court ruled otherwise and said that the implementation of LOI
229 is w/n the police power of the State.
FACTS:
 LOI 229: requires motor vehicles to possess early warning devices (triangular,
reflectorized plates in red and yellow) to be issued & charged by the Land
Transportation Commissioner
 Agustin says he owns a Volkswagen Beetle that is already equipped w/ blinking
lights, w/c could very well serve as EWD
 Agustin also says LOI 229 violates the Constitution (due process & equal
protection)
o Undue delegation of police power
o Unreasonable to motoring public (LOI makes it compulsory for them to
buy EWDs at Php 56 - Php 72 per set)
 But Edu says implementation of LOI 229 is an exercise of police power which is
a right of the State.
 Agustin seeks to nullify both LOI 229 and its implementing rules & regulations
ISSUES:
WoN the implementation of LOI 229 is within the scope of the State's police power - YES
4
  Scope of police power
o Calalang v. William: Police power - the state authority to enact
legislation that may interfere w/ personal liberty or property in order
to promote general welfare
o Justice Malcolm: "that inherent & plenary power in the State w/c
enables it to prohibit all things hurtful to the comfort, safety & welfare
of society"
 Police power: A dynamic agency, w/c is not defined, and changes with time
because what is critical/urgent in society all changes with time
 Just because the law guarantees protection of the Constitutional rights of the
people, doesn't mean they are free to do anything they want to the point that
they obstruct peace, safety, good order and welfare of society. = Police power
keeps this in check
 IN THIS CASE: LOI 229 was intended to promote public safety
o At that time, there is a demand for public safety (It was found that one
of the major causes of land accidents is the presence of
disabled/stalled/parked motor vehicles w/o proper early warning
devices to signal motorists approaching)
o Besides, other acts also promoting public safety have also been
challenged before but their validity was sustained (Reflector Law,
National Defense Act, etc)
WoN LOI 229 & its IRR violate due process clause - NO
 There is always a presumption of validity of legislative & executive acts - and so
there must be convincing evidence to prove otherwise.
o In this case, petitioner presented statistics have no factual basis (said
EWDs aren't too vital to the prevention of nighttime vehicular
accidents because only 390 out of 26,000 motor vehicle accidents
involve rear-end collisions)
o BUT it is presumed that the Executive department made a more
careful study before issuing LOI 229
 Early warning device isn't an expensive redundancy, or oppressive
o Those cars with built-in blinking lights, reflectorized tapes & 2 well-
lighted petroleum lights = not enough to inform approaching
motorists that it is stalled/parked
 So there's a need for EWDs = w/c is a sign for stalled vehicles
o Nothing in the LOI that requires motorists to purchase the EWDs
prescribed in the LOI -- all it requires is that they equip their vehicles
w/ EWDs obtained from whatever source
 As long as it conforms w/ the specifications in the LOI
 There must be standards that sets the limits of legislative policy & specifies w/c
public agency will apply it
o Standard may be expressed or implied (through the purpose of the
act)
 There has been what is called "subordinate legislation"
o Since modern life is becoming more complex and there are more
subjects of governmental regulation + more difficulty adminstering
laws = policy-making power can be given to other branches of gov't
 What is given to the executive power is just authority non-legislative in
character
BESIDES, LOI 229 is in accordance with the 1968 Vienna Convention of Road Signs &
Signals (ratified by PH gov't under PD 207, which recommended the enactment of local
legislation for the installation of road safety signs & devices)
 Consti states, "The PH adopts the generally accepted principles of int'l law as
part of the law of the land."
 The PH made a commitment as it signed the 1968 Vienna Convention.
RULING: DISMISSED
DISSENT (J. Teehankee)
 LOI 229 is oppressive & discriminatory - requires owners with already built-in
EWDs to still purchase EWDs prescribed in LOI 229
 No proof yet that there is a public necessity for EWDs + no valid refutation of
statistics that petitioner presented
 LOI 229 imposes a big financial burden on motorists (Php 56 - Php 72 per set)
 There are other less burdensome alternative road safety devices aside from the
prescribed EWDs (Ex. common petroleum lamps)
 No imperative need for imposing requirement on all vehicles
Philip Morris, Inc vs Court of Appeals

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

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

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

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

5
 WN the annexes of the said agreement limit, restrict, or impair the exercise of the
Tanada vs Angara legislative power by Congress? NO, a portion of sovereignty may be waived without
violating the Constitution, based on the rationale that the Philippines "adopts the generally
DOCTRINE OF INCORPORATION: accepted principles of international law as part of the law of the land and adheres to the
The 1987 Philippine Constitution states as one of its principles, as follows: policy of . . . cooperation and amity with all nations."
The Philippines x x x adopts the generally accepted principles of international law as part of
the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, 3. The WTO Agreement provides that "each Member shall ensure the conformity of its
and amity with all nations. laws, regulations and administrative procedures with its obligations as provided in the
This constitutional provision enunciates the doctrine of incorporation which mandates annexed Agreements."
that the Philippines is bound by generally accepted principles of international law which Petitioners maintain that this By the doctrine of incorporation, the
automatically form part of Philippine law by operation of the Constitution. undertaking "unduly limits, restricts and country is bound by generally accepted
impairs Philippine sovereignty, principles of international law, which are
 After WWII, 3 multilateral institutions were created to hasten worldwide specifically the legislative power which considered to be automatically part of our
recovery, the World Bank, the Monetary Fund and the International Trade under Sec. 2, Article own laws. One of the oldest and most
Organization. The ITO never took off unlike the other two. What remained was VI of the 1 987 Philippine Constitution is fundamental rules in international law is
only GATT — the General Agreement on Tariffs and Trade. GATT was a collection vested in the Congress of the Philippines. pacta sunt servanda — international
of treaties governing access to the economies of treaty adherents with no It is an agreements must be performed in good
institutionalized body administering the agreements or dependable system of assault on the sovereign powers of the faith. "A treaty engagement is not a mere
dispute settlement. But after half a century, the world finally gave birth to that Philippines because this means that moral obligation but creates a legally
administering body — the World Trade Organization — with the signing of the Congress binding obligation on the parties . . . A state
"Final Act" in Marrakesh, Morocco and the ratification of the WTO Agreement by could not pass legislation that will be which has contracted valid international
its members good for our national interest and obligations is bound to make in its
 April 15, 1994: On behalf of the Government of the Republic of the Philippines, general welfare if legislations such modifications as may be
then Department of Trade and Industry Secretary Rizalino Navarro signed in such legislation will not conform with the necessary to ensure the fulfillment of the
Marrakesh, Morocco the Final Act Embodying the Results of the Uruguay Round of WTO Agreement, which not only relates obligations undertaken."
Multilateral Negotiations, which included the Ministerial Declarations and to the
Decisions, as well as the Understanding on Commitments in Financial Services. trade in goods . . . but also to the Row of By their inherent nature, treaties really
o By signing the Final Act, 2 Secretary Navarro on behalf of the Republic investments and money . . . as well as to a limit or restrict the absoluteness of
of the Philippines, agreed: whole sovereignty. By their voluntary act, nations
o "(a)to submit, as appropriate, the WTO Agreement for the slew of agreements on socio-cultural may surrender some aspects of their state
consideration of their respective competent authorities, with a view to matters . . ." power in exchange for greater benefits
seeking approval of the Agreement in accordance with their granted by or derived from a convention or
procedures; and WTO proviso derogates from the power pact. After all, states, like individuals, live
o (b) to adopt the Ministerial Declarations and Decisions. to with coequals, and in pursuit of mutually-
 August 12, 1994: The Senate of the Philippines received a letter dated August 11, tax, which is lodged in the Congress. And covenanted objectives and benefits, they
1994 from the President of the Philippines, Fidel V. Ramos, informing the former while the Constitution allows Congress to also commonly agree to limit the exercise
that the Uruguay Final Act is submitted to the Senate for concurrence, pursuant authorize the President to fix tariff rates, of their otherwise absolute rights.
to Section 21, Article VII of the Constitution. import and export quotas, tonnage and
 December 9, 1994: Then President Ramos certified the necessity of the wharfage when the Philippines joined the United
immediate adoption of P.S. 1083 - Concurring in the Ratification of the Agreement dues, and other duties or imposts, such Nations as one of its 51 charter members,
Establishing the World Trade Organization (WTO). authority is subject to "specified limits it consented to restrict its sovereign rights
 December 14, 1994: The Senate adopted Resolution No. 27, concurring the and . . . under the "concept of sovereignty as
ratification by the President with regard to the Agreement Establishing the WTO. such limitations and restrictions" as autolimitation." Under Article 2 of the UN
 December 16, 1994: President Ramos signed the Instrument of Ratification of the Congress may provide, as in fact it did Charter, "(a)ll members shall give the
WTO Agreement under Sec. United Nations every assistance in any
 December 29, 1994: The petition was filed, challenging the constitutionality of 401 of the Tariff and Customs Code. action it takes in accordance with the
the WTO Agreement present Charter, and
shall refrain from giving assistance to any
The third issue is what is pertinent to our topic: state against which the United Nations is
taking

6
 preventive or enforcement action."
The Ph has also entered into other treaties. In the foregoing treaties, the Philippines has
effectively agreed to limit the exercise of its sovereign powers of taxation, eminent domain
and police power. The underlying consideration in this partial surrender of sovereignty is
the reciprocal commitment of the other contracting states in granting the same privilege
and immunities to the Philippines, its officials and its citizens. The same reciprocity
characterizes the Philippine commitments under WTO-GATT.
OTHER ISSUES:
1. Whether or not the petition presents a justiciable controversy – Yes
2. Whether or not the provisions of the WTO agreement, as well as its three annexes,
contravene Section 19, Article 2, and Sections 10 and 12, Article 13, of the Philippine
Constitution – No
4. Whether or not the provisions unduly impair or interfere with the exercise of judicial
power by this court in promulgating rules on evidence – No
5. Whether or not the concurrence of the Senate in the WTO Agreement, as well as its
annexes, sufficient and/or valid, considering that it did not include the Final Act,
Ministerial Declarations and Decisions, and the Understanding on Commitments in
Financial Services – Yes
6. Whether or not there had been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of the Senate in ratifying the WTO Agreement and the
aforementioned three annexes – None.
1. In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
Legislative Branch is seriously alleged to have infringed the Constitution, it becomes not
only the right, but in fact, the duty of the Judiciary to settle the dispute. The question posed
is judicial, rather than political. The duty to adjudicate remains to assure that the
supremacy of the Constitution is upheld.
2. The WTO Agreement, along with its three annexes, does not contravene the
Constitution. Article 2 just states general principles / policies, which are used as aids and
guides, and are not self-executing principles ready to be enforced through the courts.
4. Article 34 of the General Provisions and Basic Principles of Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) does not really intrude on the power of the
Supreme Court to promulgate rules concerning pleading, practice, and procedures. And if
ever such intrusion exists, the reciprocity clause more than justifies it. Moreover, Article
34 does not contain unreasonable burden, consistent as it is with due process and the
concept of adversarial dispute settlement inherent in our judicial system. Since the
Philippines is a signatory to most international conventions on patents, trademarks and
copyrights, the adjustment in legislation and rules of procedure will not be substantial.
5. A Final Act is just an instrument which records the winding up of the proceedings of a
diplomatic conference and usually includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed upon and signed by the
plenipotentiaries attending the conference. It is not the treaty itself; it’s just a summary of
the proceedings of a protracted conference. For the Ministerial Declarations and Decisions,
it did not need ratification for it was deemed adopted. Lastly, the Understanding on
Commitments in Financial Services agrred upon and approved in Marrakesh does not
apply to the country.
6. By grave abuse of discretion is meant such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It
must be grave abuse of discretion as when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and must be so patent and so
gross as to amount to an evasion of positive duty, or to a virtual refusal to perform the duty
enjoined, or to act at all in contemplation of law.
Nicaragua case (continued)
Nicaragua v. US (1986)
FACTS:
 April 9,1984, Nicaragua had initiated proceedings against the United States of
America in the International Court of Justice. US did not appear in in the rest of
the proceedings because it believed the court did not have jurisdiction over the
case.
 The action was based on military and paramilitary actions of the US against
Nicaragua:
o An allegation that the United States had supported by its policy and
actions a mercenary army, the contras, in launching attacks on the
territory of Nicaragua, with the purpose of overthrowing the
(Sandinista) Government of Nicaragua.
o Including the mining (land mines) of certain Nicaraguan ports in early
1984, and attacks on ports, oil installations, a naval base, etc.
o 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.
o 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.
 Nicaragua claims that the United States has acted in violation 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
7
 the Charter of the Organization of American States and of rules of customary
international law forbidding intervention.
 United States claims Government of Nicaragua launched an “Armed Attack” by
way of logistical support, including provision of arms, for guerrillas in El
Salvador.
o Armed Attack: “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 resembles Art 3 of the UNGA Resolution
3314 on the Definition of Aggression.
 Since they were “providing, upon request, proportionate and appropriate
assistance…” to El Salvador pursuant to Art 51 of the UN Charter. They contend
that because of Nicaragua’s conduct their military and paramilitary actions fall
within the exception in Art 51.
o Art 51 of UN Charter: Nothing in the present Charter shall impair the
inherent right of individual or collective self-defense if an armed attack
occurs against a Member of the United Nations, until the Security
Council has taken the measures necessary to maintain international
peace and security. Measures taken by Members in the exercise of this
right of self-defense shall be immediately reported to the Security
Council and shall not in any way affect the authority and responsibility
of the Security Council under the present Charter to take at any time
such action as it deems necessary in order to maintain or restore
international peace and security.
 On reservation: The US declared the acceptance of the compulsory jurisdiction
of the Court under Article 36 (2) of the statute containing a reservation excluding
from the operation of the declaration “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 the jurisdiction.
ISSUES:
W/N the multilateral treaty reservation applies, divesting the Court of jurisdiction – NO
 The Court found, on the basis of Article 79, paragraph 7, of the Rules of Court,
that the objection to jurisdiction based on the reservation raised "a question
concerning matters of substance relating to the merits of the case and that the
objection did "not possess, in the circumstances of the case, an exclusively
preliminary character". Since it contained both preliminary aspects and other
aspects relating to the merits, it had to be dealt with at the stage of the merits.
 In order to establish whether its jurisdiction was limited by the effect of the
reservation in question, the Court has to ascertain whether any third States,
parties to the four multilateral treaties invoked by Nicaragua, and not parties to
the proceedings, would be "affected" by the Judgment.
 The Court examines the impact of the multilateraI treaty reservation on
Nicaragua's claim that the United States has used force in breach of the tvvo
Charters. The Court found in particular the case of El Salvador, for whose benefit
primarily the United States claims to be exercising the right of collective self-
defense which it regarded as a justification towards its conduct at Nicaragua.
 The dispute extends to El Salvador as well who would be affected by the Court’s
decision. Because of this, the Court concluded that the jurisdiction conferred on
it by the US declaration does not permit it to entertain the claims.
 However, this does not have an impact on the applicability of customary
international law which they violated because, even if treaty provisions and
customary law deal with the same subject matter, customary law exists
independently of treaty law.
W/N US was in violation of customary international law obligations - YES
 The Court then considered the rules of customary law applicable to the present
dispute. For this purpose it considered whether a customary rule exists in the
opinio juris of States, and satisfy itself that it is confirmed by practice.
 The Court ruled that there can be no doubt that the issues of the use of force and
collective self-defense are regulated both by customary international law and by
treaties, in particular the United Nations Charter.
 The prohibition of the use of force as incorporated in the United Nations Charter,
in essentials, to those found in customary international law AS well as the
Customary International Law to not intervene in the State Affairs of another
country.
 The adherence to these principles was ascertained from parties’ acquiescence to
the different resolutions of the UN regarding such matters.
o “It considers that this opinio juris may be deduced from the (consent)
of the Parties and of States towards certain General Assembly
resolutions, and particularly resolution 2625 (YXV) entitled
“Declaration on Principles of International Law concerning Friendly
Relations and Co-operation Among States in Accordance with the
Charter of the United Nations”.”
o Consent to such resolutions is one of the forms of expression of an
opinio juris with regard to the principle of non-use of force, regarded
as a principle of customary international law, independently of the
provisions, especially those of an institutional kind, to which it is
subject on the treaty-law plane of the Charter.
 The court, for this case, directed its attention to the practice and opinio juris of
States: as the Court observed, "It is of course axiomatic that the material of
customary international law is to be looked for primarily in the actual practice
and opinio juris of States, even though multilateral conventions may have an
important role to play in recording and defining rules deriving from custom, or
indeed in developing them".
 In the separate opinion of Judge Nagendra Singh. - The Charter provisions as
well as the Latin American Treaty System have not only developed the concept
but strengthened it to the extent that it would stand on its own, even if the
Charter and the Treaty basis were held inapplicable in this case. The obvious
explanation is that the original customary aspect which has evolved with the
treaty law development has come now to stay and survive as the existing modern
concept of international law, whether customary, because of its origins, or "a
general principle of international law recognized by civilized nations". The
contribution of the Court has been to emphasize the principle of non-use of force
as one belonging to the realm of jus cogens and hence as the very cornerstone of
the human effort to promote peace in a world torn by strife.
 The Court ruled that the mere fact that States declare their recognition of certain
rules is not sufficient for the Court to consider these as being part of customary
8
 international law, and as applicable to those States. Bound as it is by Article 38
of its Stature to apply, inter alia, international custom "as evidence of general
practice accepted as law", the Court may not disregard the essential role played
by general practice. Where two States agree to incorporate a particular rule in a
treaty, their agreement suffices to make that rule a legal one, binding upon them;
but 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 State is confirmed
by practice.
 In the present disputes, the Court, while exercising its jurisdiction only in respect
of the application of the customary rules of non-use of force and non-
intervention, cannot disregard the fact that the Parties are bound by these rules
as a matter of treaty law and of customary international law. Furthermore, in the
present case, apart from the treaty commitments binding the Parties to the rules
in question, there are various instances of their having expressed recognition of
the validity thereof as customary international law in other ways. It is therefore
in the light of this "subject element" - expression used by the Court in its 1969
Judgment in the North Sea Continental Shelf cases) - that the Court has to
appraise the relevant practice.
 The court said that in order to deduce the existence of customary rules, the Court
deems it sufficient that the conduct of the States should, in general, be consistent
with such rules, and that instances of State conduct inconsistent with the given
rule should generally have been treated as breaches of that rule, not as
indications of the recognition of a new rule.
 The Court emphasized, as was observed in the North Sea Continental Shelf case,
for a new customary rule to be formed, not only must the acts concerned "
amount to a settled practice", but they must accompanied by the opinio juris sive
necessitates. 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 belef, i.e., the existence of a subjective elements, is implicit in
the very notion of the opinio juris sive necessitates."
 Art 2 Par 4 of UN Charter: The Organization and its Members, in pursuit of the
Purposes stated in Article 1, shall act in accordance with the following Principles
- (4) 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.
 They were in violation of such principles when they perpetrated the actions
against Nicaragua.
 The principle of non-intervention means that every State has a right to conduct
its affairs without outside interference.
 Also in violation of Customary Law not to violate sovereignty of another state
when they:
o Mined the internal waters and territorial seas and flying over areas
because sovereignty of state extends to its territorial sea and the
airspace above.
o No warnings as to the location of the mines and sonic booms caused by
planes the US owns of controls.
On Prohibition of the Use of Force and the Right to Self-Defense
W/N US falls within the exception provided by Art. 51 of the UN Charter - NO
 Parties take the view that the principles as to the use of force incorporated in the
United Nations Charter correspond, in essentials, to those found in customary
intemational law. They therefore accept a treaty-law 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 United Nations
 The Court has however to be satisfied that there exists in customary law an
opinion juris as to the binding character of such abstention. It considers that this
opinio juris may be deduoed from, inter alia, the attitude of the Parties and of
States towards certain General Assembly resolutions, and particularly resolution
2625
 The Court said that: “Whether self-defense is individual or collective, it can only
be exercised in response to an “armed attack”. In the view of the Court, this is to
be understood as meaning not merely action by regular armed forces across an
international border…The Court does not believe that the concept of “armed
attack” includes assistance to rebels in the form of the provision of weapons or
logistical or other support”
 2 aspects are considered to determine if force was used in collective self-defense:
o (1) Whether circumstances required for the exercise of self-defense
existed and (2) Whether the steps taken by the State, which was acting
in self defense, corresponds to the requirements of International Law.
 Other Criteria to be met:
(1) State must have been victim of armed attack
(2) State must declare itself a victim of armed attack
(3) Victim state must ask for assistance
(4) The state does not, under CIL, have the same obligation under art 51 of
the UN Charter to report to the Security Council that an armed attack
happened – absence of a report may be one of the factors indicating whether
the State in question was itself convinced that it was acting in self-defense.
 The Court looked extensively on the conduct of Nicaragua and found that(1)
none of the countries (El Salvador,Costa Rica, and Honduras) that the US was
aiding declare themselves to be victims of an armed attack and (2) US did not
claim to be acting under Art 51 and did not report to the Security Council. These
criteria lacking the US cannot fall under the exception for collective self-defense.
North Sea Continental Shelf Case
North Sea Continental Shelf Cases
- By 2 special agreements between Denmark and Germany and between Germany and
Netherlands, the parties submitted their differences to the Court concerning the
method of delimitation of the continental shelf in the North Sea
- Netherlands and Denmark, both with convex coastlines, insisted that the prolonging
of the partial boundary lines should be based on the equidistance principle as stated
in an allegedly mandatory rule of law as found in Art. 6 of the Geneva Convention on
the Continental Shelf, which provides that “equidistance" is not merely a method of
the cartographical construction of a boundary line, but the essential element in a rule
of law which may be stated as follows - namely that in the absence of agreement by
9
 the Parties to employ another method or to proceed to a delimitation on an ad hoc
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 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
o This principle would leave to each of the parties all the portions of the
continental shelf that are nearer to a point in its own coast than they are to the
point on the coast of the other party
o The Geneva Convention received 46 signatures and was ratified by 39 states, but
Germany merely signed, but didn’t ratify it
o They allege that the equidistance principle is a rule of customary international
law and a general rule of conventional practicality
- Germany, on the other hand, views the equidistance principle as inequitable because
of its concave coastline – it would lose its share of the continental shelf based on the
proportionality to the length of its North Sea coastline
o It argues that the length of the coastline should be used to determine the
delimitation – a “coastal front” – and to avoid the “cut off” effect that the
equidistance principle would produce
W/N Art. 6 of the Geneva Convention applies to Germany as a mandatory rule– NO
- Denmark and Netherlands’ argument: Art. 6 of the Geneva Convention isn’t only
applicable as a conventional rule, but also represents the accepted rule of general
international law on continental shelf delimitation
o The Convention is in force for any individual State only in so far as, having signed
it within the time-limit 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.
o Denmark and Netherlands both signed and ratified it in time – but Germany only
signed it, but didn’t ratify it, so it cannot be considered a party to the Convention
o Even if Germany isn’t a party to it, the Convention is binding on Germany because
by conduct, by public statement, and proclamations, Germany unilaterally
assumed the obligations of the Convention or manifested its acceptance f the
conventional régime; or has recognized it as being generally applicable to the
delimitation of continental shelf areas.
- COURT: if Germany had any real intention to accept the Convention, then why didn’t
it simply ratify it?
o 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 régime of the convention is to be manifested-namely by the carrying out of
certain prescribed formalities (ratification, accession), it isn’t right to assume
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.
o Also, if Germany ratified the Convention, it could’ve entered a reservation to Art.
6 anyways
o Thus, Art. 6 cannot be applied to the delimitation in this case
W/N the equidistance principle is inherent in the basic doctrine of the continental
shelf and can be considered as customary international law– NO
- Denmark and Netherlands: Germany is bound to accept the 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.
o The continental shelf is the natural prolongation of the land domain, so the
continental shelf nearer to the coasts are owned by countries nearest to it
because it is merely an extension of something already possessed
- COURT: Equidistance cannot be identified with the notion of natural prolongation
since its use would cause areas which were the natural prolongation of the territory
of a one state to another
o Moreover, submarine areas didn’t belong to the coastal states because they were
near it, but the fact that such areas are deemed to be actually part of the state’s
territory because they were a prolongation of its land under the sea
- Denmark and Netherlands: the equidistance principle is regarded as a rule of
customary international law, so Germany is obliged to follow it
o Art. 6 of the Geneva Convention merely embodied already received rules of
customary law in the sense that the Convention was merely declaratory of
existing rules
o While 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: As the convention was being drawn up, Article 6 of the Convention, was
proposed by with considerable hesitation, somewhat on an experimental basis
o Art. 6 is one of those in respect of which, under the reservations article of the
Convention (Article 12) reservations may be made by any State - it is a
characteristic of purely conventional rules and obligations that reservations may
be made towards them whereas reservations cannot be made towards general
or customary law rules and obligations, which by their very nature, must have
equal force for all member States
o Even though there are other provisions of the Convention that can be subject to
reservation that lie within the field of customary law, these relate to principles
or rules of general maritime law, which ante-date the Convention and not
directly connected, but only incidental to continental shelf rights
o 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.
- Germany and Denmark: even though art. 6 cannot be considered as a customary
international law, it became such partly because of its own impact and partly because
of the subsequent state practice, so now it is binding on all states
10
 o Art. 6 is a norm-creating provision, which is conventional in origin, but has
become a general corpus of international law and is accepted as such by the
opinion juris
- COURT: Art. 6 is framed as to put second the obligation to make use of the
equidistance method, causing it to come after a primary obligation to effect
delimitation by agreement
o Such a primary obligation constitutes an unusual preface to what is claimed to
be a potential general rule of law.
- Also, the fact that it allows reservation prevents it from being received as general law
- A conventional rule can become a customary rule even without the passage of a
considerable amount of time, as long as, a very widespread and representative
participation in such a convention AND state practice should be very extensive and
virtually uniform and should have occurred in a way that shows that a rule of law or
legal obligation is involved
- “Although the passage of only a short period of time (in this case, 3 – 5 years) is not
necessarily, or of itself, a bar to the formation of a new rule of customary international
law on the basis of what was originally a purely conventional rule, an indispensable
requirement would be that within the period in question, short though it might
be, State practice, including that of States whose interests are specially affected,
should have been both extensive and virtually uniform in the sense of the
provision invoked and should moreover have occurred in such a way as to show
a general recognition that a rule of law or legal obligation is involved.”
o In this case, the number of ratifications and accessions of the convention is
hardly sufficient
- 2 conditions must be fulfilled:
1. The act must amount to a settled practice – extensive and virtually unirform
2. OPINIO JURIS/subjective element: The act must be carried out in such a way as
to be evidence of a belief that such act is rendered obligatory by the existence of
a rule of law requiring it
- The States concerned must therefore feel that they are conforming to what amounts
to a legal obligation. The frequency, or even habitual character of the acts is not in
itself enough. There are many international acts, e.g., in the field of ceremonial and
protocol, which are performed almost invariably, but which are motivated only by
considerations of courtesy, convenience or tradition, and not by any sense of legal
duty
o In other cases, although the States concerned agreed to draw or did draw the
boundaries concerned according to the principle of equidistance. There is no
evidence that they so acted because they felt legally compelled to do so by reason
of customary international law.
Dissent. (Lachs, J.) not only the states who are parties to the Convention on the
Continental Shelf have accepted the principles and rules enshrined in the Convention
including the equidistance rule, but by other states who that have subsequently followed
it in agreements, or in their legislation, or have acquiesced in it when faced with legislative
acts of other affecting them. This can be seen as evidence of a practice widespread enough
to satisfy the criteria for a general rule of law.
North Sea Continental Shelf Case: Tanaka Dissenting Opinion (excerpts)
North Sea Continental Shelf Case
(Federal Republic of Germany / Denmark; Federal Republic of Germany /
Netherlands)
1969 I.C.J. 3
International Court of Justice
February 20, 1969
General List: Nos. 51 & 52
Dissenting Opinion of Judge Tanaka [Selected Excerpts]
I
In spite of my great respect for the Court, I am unable, to my deep regret, to share the
views of the Court concerning some important points in the operative part as well as in
the reasons of the Judgment.
....
The history of the continental shelf as a legal institution indicated by the above-
mentioned Truman Proclamation of 28 September 1945, does not appear to be long
enough to have enabled more or less complete customary international law to have been
formulated on this matter. The practical necessity of regulating a great number of claims
of coastal States on their adjacent continental shelf so as to avoid a chaotic situation
which may be caused by competition and conflict among them, seemed to be a primary
consideration of the international community. In 1949 the International Law
Commission, representing the main legal systems of the world, took the initiative by
appointing the Committee of Experts for the question relating to the territorial sea
including the continental shelf. This Committee of Experts terminated its Report, to
which reference has been made above, in 1953.
Parallel with the efforts of the International Law Commission, various governmental and
non-governmental, as well as academic organizations and institutions, contributed to
promoting the legislative work on the continental shelf by study, examination and
preparation of drafts.
The efforts of the International Law Commission were crowned by the birth of the
Convention on the Continental Shelf adopted on 26 April 1958 by the Geneva Conference
which was attended by 86 delegations.
That 46 States have signed and 39 States ratified or acceded to the Convention is already
an important achievement towards the recognition of customary international law on the
matter of the continental shelf.
To decide whether the equidistance principle of Article 6, paragraph 2, of the Convention
can be recognized as customary international law, it is necessary to observe State
practice since the Geneva Convention of 1958. In this respect it may be enough to
indicate the following five Agreements as examples of the application of the equidistance
principle concerning the North Sea continental shelf:
11
(a) United Kingdom-Norway of 10 March 1965;
(b) Netherlands-United Kingdom of 6 October 1965;
(c) Denmark-Norway of 8 December 1965;
(d) Denmark-United Kingdom of 3 March 1966;
(e) Netherlands-Denmark of 31 March 1966.
I must also mention the two partial boundary treaties concluded by the Federal Republic
already indicated.
It must be noted that Norway, who is a party to two of these Agreements, acted on the
basis of the equidistance principle notwithstanding the fact that she has not yet acceded
to the Geneva Convention, that the Netherlands adopted the equidistance principle in her
Agreement with the United Kingdom at a time when she had not yet ratified the
Convention and that Belgium had recently adopted the equidistance principle for the
delimitation of her continental shelf boundaries, although she is not a party to the
Convention (23 October 1967 'Projet de Loi', Art. 2).
It is not certain that before 1958 the equidistance principle existed as a rule of customary
international law, and was as such incorporated in Article 6, paragraph 2, of the
Convention, but it is certain that equidistance in its median line form has long been
known in international law for drawing the boundary lines in sea, lake or river, that,
therefore, it is not the simple invention of the experts of the International Law
Commission and that this rule has finally acquired the status of customary international
law accelerated by the legislative function of the Geneva Convention.
The formation of a customary law in a given society, be it municipal or international, is a
complex psychological and sociological process, and therefore, it is not an easy matter to
decide. The first factor of customary law, which can be called its corpus, constitutes a
usage or a continuous repetition of the same kind of acts; in customary international law
State practice is required. It represents a quantitative factor of customary law. The
second factor of customary law, which can be called its animus, constitutes opinion juris
sive necessitatis by which a simple usage can be transformed into a custom with the
binding power. It represents a qualitative factor of customary law.
To decide whether these two factors in the formative process of a customary law exist or
not, is a delicate and difficult matter. The repetition, the number of examples of State
practice, the duration of time required for the generation of customary law cannot be
mathematically and uniformly decided. Each fact requires to be evaluated relatively
according to the different occasions and circumstances. Nor is the situation the same in
different fields of law such as family law, property law, commercial law, constitutional
law, etc. It cannot be denied that the question of repetition is a matter of quantity;
therefore there is no alternative to denying the formation of customary law on the
continental shelf in general and the equidistance principle if this requirement of quantity
is not fulfilled. What I want to emphasize is that what is important in the matter at issue
is not the number or figure of ratifications of and accessions to the Convention or of
examples of subsequent State practice, but the meaning which they would imply in the
particular circumstances. We cannot evaluate the ratification of the Convention by a
large maritime country or the State practice represented by its concluding an agreement
on the basis of the equidistance principle, as having exactly the same importance as
similar acts by a land-locked country which possesses no particular interest in the
delimitation of the continental shelf.
Next, so far as the qualitative factor, namely opinion juris sive necessitatis is concerned,
it is extremely difficult to get evidence of its existence in concrete cases. This factor,
relating to internal motivation and being of a psychological nature, cannot be ascertained
very easily, particularly when diverse legislative and executive organs of a government
participate in an internal process of decision-making in respect of ratification or other
State acts. There is no other way than to ascertain the existence of opinion juris from the
fact of the external existence of a certain custom and its necessity felt in the international
community, rather than to seek evidence as to the subjective motives for each example of
State practice, which is something which is impossible of achievement.
Therefore, the two factors required for the formation of customary law on matters
relating to the delimitation of the continental shelf must not be interpreted too rigidly.
The appraisal of factors must be relative to the circumstances and therefore elastic; it
requires the teleological approach.
As stated above, the generation of customary law is a sociological process. This process
itself develops in a society and does not fail to reflect its characteristic upon the manner
of generation of customary law. This is the question of the tempo which has to be
considered.
Here can be enumerated some sociological factors which may be deemed to have played
a positive role in the speedy formation of customary international law on the subject-
matter of the continental shelf, including the principle of equidistance.
First, the existence of the Geneva Convention itself plays an important role in the process
of the formation of a customary international law in respect of the principle of
equidistance. The Geneva Convention constitutes the terminal point of the first stage in
the development of law concerning the continental shelf. It consolidated and
systematized principles and rules on this matter although its validity did not extend
beyond the States parties to the Convention. Furthermore, the Convention constitutes
the starting point of the second stage in the development of law concerning the
continental shelf. It has without doubt provided the necessary support and impetus for
the growth of law on this matter.
The coming into existence of the Geneva Convention itself would psychologically and
politically facilitate the adherence of non-party States to the Convention or the
introduction of the equidistance principle into their practice.
12
The role played by the existence of a world-wide international organization like the
United Nations, its agency the International Law Commission, and their activities
generally do not fail to accelerate the rapid formation of a customary law. It is similar to
the way in which a customary commercial law speedily evolves from a standard contract
drafted by experts of business circles to a universal commercial custom. The Geneva
Convention of 1958 on the Continental Shelf, first lex ex contractu among the States
parties, has been promoted by the subsequent practice of a number of other States
through agreements, unilateral acts and acquiescence to the law of the international
community which is nothing else but world law or universal law.
Secondly, the legal, scientific and technical, and less political character of the Convention,
and the fact that its birth is mainly due to the activities of the International Law
Commission composed of highly qualified internationally well-known legal scholars
representing the main legal systems of the world in collaboration with a group of
experts, would not fail to exercise rapidly a positive influence for the formation of
opinion juris sive necessitatis in the international community.
Thirdly, the urgent necessity of avoiding international conflict and disorder which may
be feared to occur between coastal States in proportion to the rapidly increasing
economic necessity of the exploration and exploitation of natural resources in the subsoil
of submarine areas, has become a matter of serious preoccupation not only to coastal
States, but to the whole international community in which consciousness of solidarity is
more than ever intensified.
Fourthly, it can be recognized that the speedy tempo of present international life
promoted by highly developed communication and transportation had minimized the
importance of the time factor and has made possible the acceleration of the formation of
customary international law. What required a hundred years in former days now may
require less than ten years. Fifthly, the circumstance that with regard to the continental
shelf, including the equidistance principle, there had been no legal system in existence,
either written or customary law, and that therefore a legal vacuum had existed, has
certainly facilitated the realization of the Geneva Convention on the Continental Shelf
and customary law on the same matter. Similar circumstances can be recognized in the
fields of air law and space law.
In short, the process of generation of a customary law is relative in its manner according
to the different fields of law, as I have indicated above. The time factor, namely the
duration of custom, is relative; the same with factor of number, namely State practice.
Not only must each factor generating a customary law be appraised according to the
occasion and circumstances, but the formation as a whole must be considered as an
organic and dynamic process. We must not scrutinize formalistically the conditions
required for customary law and forget the social necessity, namely the importance of the
aims and purposes to be realized by the customary law in question.
The attitude which one takes vis-a-vis customary international law has been influenced
by one's view on international law or legal philosophy in general. Those who belong to
the school of positivism and voluntarism wish to seek the explanation of the binding
power of international law in the sovereign will of States, and consequently, their
attitude in recognizing the evidence of customary law is rigid and formalistic. On the
other hand, those who advocate the objective existence of law apart from the will of
States, are inclined to take a more liberal and elastic attitude in recognizing the
formation of a customary law attributing more importance to the evaluation of the
content of law than to the process of its formation. I wish to share the latter view. The
reason for that is derived from the essence of law, namely that law, being an objective
order vis-a-vis those who are subject to it, and governing above them, does not constitute
their 'auto-limitation' (Jellinek), even in the case of international law, in which the
sovereign will of States plays an extremely important role.
In this context, I venture to quote the statements of two eminent writers which appear to
be valuable for the affirmative conclusion on the formation of customary international
law concerning the matter of the continental shelf. J. L. Brierly, in The Law of Nations, 6th
edition, 1963, page 62:
The growth of a new custom is always a slow process, and the character of international
society makes it particularly slow in the international sphere. The progress of the law
therefore has come to be more and more bound up with that of the law-making treaty. But
it is possible even today for new customs to develop and to win acceptance as law when the
need is sufficiently clear and urgent. A striking recent illustration of this is the rapid
development of the principle of sovereignty over the air.'
D. P. O'Connell, in International Law, I, 1965, pages 20-21:
Much of the traditional discussion of customary law suffers from the rigidity and narrow-
mindedness of nineteenth-century positivism, which was itself the product of a static
conception of society. The emphasis that the positivist places on the will of the State
over-formalises the law and obscures its basic evolutionary tendency. He looks to
positive practice without possessing the criteria for evaluating it, and hence is powerless
to explain the mystical process of lex ferenda, which he is compelled to distinguish
sharply, and improperly, from lex lata . . . .
III
In the event that the customary law character of the principle of equidistance cannot be
proved, there exists another reason which seems more cogent for recognizing this
character. That is the deduction of the necessity of this principle from the fundamental
concept of the continental shelf.
The starting point is the concept of the continental shelf. This concept is clearly
expressed in Articles 1-3 of the Geneva Convention.
Before we examine this concept, we shall clarify its nature, namely its customary law
character.
13
There is no doubt that Articles 1-3, which constitute the fundamental concept of the
continental shelf, are mainly formulated on the basis of the State practice established
since President Truman's Proclamation of September 1945, and that, accordingly, they
have the character of customary law. Therefore, even those States which have not
ratified or acceded to the Convention could not deny the validity of these provisions
against them. Denying the principles enunciated in Articles 1-3 would deprive the non-
contracting States of the basis of all rights over their continental shelves.
The fundamental principle upon which the institution of the continental shelf is based
constitutes the recognition of the sovereign rights of the coastal State for the purpose of
its exploration and the exploitation of its natural resources (Article 2, paragraph 1, of the
Convention). These sovereign rights are exclusive in the sense that if the coastal State
does not explore or exploit its natural resources, no one may undertake these activities,
or make a claim to the continental shelf, without the express consent of the coastal State
(Article 2, paragraph 2, of the Convention). These rights of the coastal State do not
depend on occupation, effective or notional, or on any express proclamation (Article 2,
paragraph 3, of the Convention).
The fact that the coastal State exercises over the continental shelf exclusive sovereign
rights, and that these rights do not depend on occupation or any express proclamation,
explains eloquently the legal status of the continental shelf as an institution. First, the
continental shelf does not constitute res nullius which is susceptible of occupation by any
State-not only an adjacent coastal State but any other State. Next, the continental shelf
does not constitute a res communis of the coastal States which must be jointly exploited
or divided by them. The continental shelf belongs exclusively to the coastal State
according to the principle fixed by law which gives the definition of the continental shelf.
According to Article 1 of the Convention, the term 'continental shelf' is used as referring
to the seabed and subsoil of the submarine areas adjacent to the coast. By this provision
the law prescribes the only condition for a coastal State to be able to have sovereign
rights over the continental shelf. This condition is of a geographical nature; the existence
of the relationship of adjacency between the continental shelf and the coastal State is
required.
The criterion of adjacency-or proximity, propinquity, contiguity-seems a most
reasonable one if one adopts the principle of the sovereign rights of the coastal State,
excluding the regime of res nullius or res communis. The idea that the continental shelf
constitutes the natural continuation or extension of the coastal State is most natural and
reasonable from the geographical and economic viewpoints.
The principle which governs the delimitation of the continental shelf and which is
provided for in Article 6 is the corollary of the concept declared in Articles 1 and 2. The
present cases are related to Article 6, paragraph 2. This stipulates:
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 equidistance principle which is incorporated in Article 6, paragraph 2, flows from
the fundamental concept of the continental shelf as the logical conclusion on the matter
of the delimitation of the continental shelf. The equidistance principle is integrated in the
concept of the continental shelf. The former is inherent in the latter, being inseparably
connected with it. Therefore, if the law of the continental shelf were devoid of the
provision concerning delimitation by means of the equidistance principle, satisfactory
functioning of the institution of the continental shelf could not be expected.
The Federal Republic denies the opposability of the Geneva Convention as a whole, and
consequently denies the opposability of its part, namely Article 6, paragraph 2. However,
the Federal Republic has not the slightest doubt that she exercises sovereign rights over
the continental shelf of the disputed area. But on what title can she exercise such rights?
There should be no other possibility of justification other than by customary law on the
matter of the continental shelf. And indeed she recognizes the applicability of Articles 1-3
of the Geneva Convention vis-a-vis herself on a customary law basis. Can the Federal
Republic deny the application of Article 6, paragraph 2, concerning the delimitation of
the continental shelf which she claims as her own? The answer is in the negative.
The viewpoint of the Federal Republic is to consider the question of delimitation
separately from the fundamental concept of the continental shelf. However, the rule with
regard to delimitation by means of the equidistance principle constitutes an integral part
of the continental shelf as a legal institution of teleological construction. For the
existence of the continental shelf as a legal institution presupposes delimitation between
the adjacent continental shelves of coastal States. The delimitation itself is a logical
consequence of the concept of the continental shelf that coastal States exercise sovereign
rights over their own continental shelves. Next, the equidistance principle constitutes the
method which is the result of the principle of proximity or natural continuation of land
territory, which is inseparable from the concept of continental shelf. Delimitation itself
and delimitation by the equidistance principle serve to realize the aims and purposes of
the continental shelf as a legal institution. The Federal Republic, in so far as she insists
upon her rights on the continental shelf, cannot deny the application of its delimitation
by means of the equidistance principle. As I have said above, the equidistance principle
provided for in Article 6, paragraph 2, of the Convention, is inherent in the concept of the
continental shelf, in the sense that without this provision the institution as a whole
cannot attain its own end.
The doctrine that the equidistance principle is inherent in the institution of the
continental shelf would certainly make a highly controversial impression. However, even
if Article 6, paragraph 2, did not exist or is not opposable to the Federal Republic, the
interpretation of Articles 1-3 would produce the same conclusion. Customary law, being
vague and containing gaps compared with written law, requires precision and
completion about its content. This task, in its nature being interpretative, would be
incumbent upon the Court.
The method of logical and teleological interpretation can be applied in the case of
customary law as in the case of written law. Even if the Federal Republic recognizes the
customary law character of only the fundamental concept incorporated in Articles 1-3 of
the Convention, and denies it in respect of other matters, she cannot e cape from the
application of what is derived as a logical conclusion from the fundamental concept,-a
14
conclusion which, in respect of the delimitation of the continental shelf, would reach the
same result as Article 6, paragraph 2, of the Convention.
North Sea Continental Shelf Case: Lachs Dissenting Opinion (excerpts)
North Sea Continental Shelf Case
(Federal Republic of Germany / Denmark; Federal Republic of Germany /
Netherlands)
1969 I.C.J. 3
International Court of Justice
February 20, 1969
General List: Nos. 51 & 52
Dissenting Opinion of Judge Lachs [Selected Excerpts]
....
II
Only two States (the Kingdom of Denmark and the Kingdom of the Netherlands)
appearing before the Court in the present cases are parties to the Convention. The
Federal Republic, not having ratified it, is not contractually bound by it. In fact no claim
in that sense has been advanced.
The question which arises, therefore, is whether the rules expressed in Article 6,
paragraph 2, of the Geneva Convention of 1958 on the Continental Shelf have acquired a
wider status, so as to be applicable to States not parties to the Convention, in particular
whether they were susceptible of becoming and have in fact become part of general
international law.
Both these contentions have been advanced, and both have been denied. To substantiate
these denials the history of the Article has been invoked. Special stress is laid on the facts
that hesitations accompanied the adoption of the equidistance rule, that other possible
solutions were discussed and that the equidistance rule was adopted only at a later stage,
on the basis of non- legal considerations.
True as these facts may be, they are not conclusive. They constitute but part of the
history, above referred to, of how Article 6, paragraph 2, came into being. Doubts and
hesitations did exist. But is the same not true of many new rules of law? Even in science,
a successful experiment is frequently greeted with suspicion. Some laws of nature, self-
evident today, were once viewed as heresy. How much more is this true in the sphere of
man-made law, and in particular when a new chapter of law is brought into being?
It is all to the credit of the International Law Commission that it discussed the issues
involved in Article 6 at such length before adopting its final text. Meanwhile the
comments of governments were invited and received. In fact it took three years (from
1953 to 1956) until that text was finalized and submitted to the General Assembly of the
United Nations. It passed through all the stages contemplated by the Statute of the
International Law Commission for its work in implementation of Article 13, paragraph 1
(a), of the Charter. At the Geneva Conference itself it was the subject of further
discussion-before being finally voted into the Convention.
Even if it be conceded that the Committee of Experts, in which the equidistance rule
originated, was guided by considerations of practical convenience and cartography, this
can have no effect on its legal validity. There are scores of rules of law in the formation of
which non-legal factors have played an important part. Whenever law is confronted with
facts of nature or technology, its solutions must rely on criteria derived from them. For
law is intended to resolve problems posed by such facts and it is herein that the link
between law and the realities of life is manifest. It is not legal theory which provides
answers to such problems; all it does is to select and adapt the one which best serves its
purposes, and integrate it within the framework of law. This, for example, is how
medium filum aquae has been recognized as the boundary rule for nonnavigable rivers,
and the rule of the 'talweg' for navigable rivers dividing two States. Geography, likewise,
lies at the basis of the rules concerning bays (Article 7, paragraph 2, of the Convention on
the Territorial Sea). Many illustrations can be derived from other chapters of
international law.
Nor can the insertion of the primary obligation to determine the boundary by agreement
cast doubt on the character of the provision. It is true that this general principle of
international law is not normally stated. Yet one can find a similar stipulation in the
Projet de Convention sur la Navigation des Fleuves Internationaux drafted 90 years ago:
'In the absence of any stipulation to the contrary, the frontier of States separated by a
river corresponds to the talweg, i.e., the median line of the channel' [translation by the
Registry] (Engelhardt, Du regime conventionnel des fleuves internationaux, Paris, 1879,
pp. 228 f.). Reference may also be made to the provisions of Article 12 of the Geneva
Convention on the Territorial Sea and the Contiguous Zone.
It is also stated that the faculty of making reservations to Article 6, provided by Article
12, paragraph 1, of the Convention, while not preventing the equidistance rule from
becoming general law, creates considerable difficulties in this respect. Here we touch the
very essence of the institution of reservations. There can be little doubt that its birth and
development have been closely linked with the change in the process of elaboration of
multilateral treaties, the transition from the unanimity to the majority rule at
international conferences.
This new institution reflected a new historical tendency towards a greater
rapprochement and co-operation of States and it was intended to serve this purpose by
opening the door to the participation in treaties of the greatest possible number of
States. Within this process, reservations were not intended to undermine well-
established and existing principles and rules of international law, nor to jeopardize the
object of the treaty in question. Thus they could not imply an unlimited right to exclude
or vary essential provisions of that treaty. Otherwise, instead of serving international co-
operation the new institution would hamper it by reducing the substance of some
treaties to mere formality.
15
Such was, indeed, the view of this Court when it stated that 'the object and purpose of the
Convention thus limit both the freedom of making reservations and that of objecting to
them' (Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 24).
These considerations apply to all multilateral treaties, the Convention on the Continental
Shelf being no exception. Special attention should be drawn to the fact that it reflects
elements of codification and progressive development of international law, both closely
interwoven.
As for Article 6, paragraph 2, the right to make reservations is determined by the three
elements of which it is composed. First: can a reservation be made to the provision that
the boundary of the continental shelf 'shall be determined by agreement between' the
States concerned? Can any State contract out of the obligation to seek agreement by
consent? Obviously not, for, as was indicated earlier, this stipulation should be read as
the application ad casum of a general obligation of States.
Can the reservation apply to the remaining part of the paragraph? In view of a special
situation a State may claim that in the relationship between rule (equidistance line) and
exception (special circumstances) the latter should prevail. It may also be that a State
recording a reservation aims at the exclusion of 'special circumstances' and thus states
its opposition to any exception from the rule. No better proof can be offered that the
possibilities of reservation are limited to these two than the practice of States. Such was,
indeed, the object of the reservations made by Venezuela and France on the one hand (a
special definition of 'special circumstances' is reflected in the reservation made by Iran).
On the other hand the reservation made by Yugoslavia shows the desire to strengthen
the rule by excluding any exceptions to it. (But even here the scope of the reservations is
not unlimited, as objections to some of them indicate.)
These considerations lead to the conclusion that the very substance of paragraph 2 of
Article 6 does not admit of reservations which purport 'to exclude...the legal effects' of its
provisions, but only of those which may 'vary' those legal effects (Draft Articles of the
Law of Treaties, Article 2).
The right to make reservations to Article 6 could not have been intended as creating an
unlimited freedom of action of the parties to the Convention. This would have opened the
door to making it wholly ineffective, with the obvious result of creating a serious
loophole in the Convention.
This is confirmed by the practice, covering as it does a period of ten years.
This practice:
(a) constitutes important evidence as to the interpretation of the faculty to make
reservations to Article 6;
(b) indicates that the provisions of Article 6 have been generally accepted without
reservation by the parties to the Convention.
As to the wider issue, there is evidence that reservations made to important law-making
or codifying conventions have not prevented their provisions from being generally
accepted as law. Five States made reservations to the Fourth Hague Convention (1907),
yet the principles it incorporated have with the passage of time become part of general
international law, binding upon all States.
The Geneva Convention on the High Seas is another case in point. It contains no clause
expressly permitting reservations, but neither does it follow the example of the
Convention on Slavery of 7 September 1956 (Article 9) and prohibit them. In fact, more
reservations have been made to it than to the Continental Shelf Convention. Yet the
Geneva Convention on the High Seas is obviously a codifying instrument par excellence:
its Preamble speaks of 'desiring to codify the rules' and describes the ensuing provisions
as 'generally declaratory of established principles of international law'. The Convention
on Certain Questions Relating to the Conflict of Nationality Laws, signed at The Hague on
12 April 1930 (League of Nations Treaty Series, Vol. 179, pp. 91-113, No. 4137), was, to
use its own words, 'a first attempt at progressive codification' (Preamble, para. 4) in that
field. Yet its Article 20 authorized reservations to all of its substantive provisions. After a
lapse of over 38 years, no more than 14 States are parties to it-with six reservations and
two declarations. This notwithstanding, this Court has relied on the practice based, inter
alia, on its provisions (Articles 1 and 5), even though the parties to the case were not
parties to the Convention (Nottebohm, Second Phase, Judgments, I.C.J. Reports 1955, pp.
22 f.). It was also relied upon by the Italian/United States Conciliation Commission
(Merige claim (I.L.R., 22 (1955), p. 450) and also Flegenheimer claim (I.L.R., 25 (1958-I),
p. 149)).
A further illustration is provided by Article 20 of the United Nations Convention on the
Elimination of All Forms of Racial Discrimination, adopted by the General Assembly on
21 December 1965: the new test therein introduced concerning the incompatibility of
reservations with the object and purpose of the Convention has no bearing on the
principle itself. To summarize the foregoing observations: from the manner in which the
Convention as a whole was prepared, from its obvious purpose to become universally
accepted, from the structure and clear meaning of Article 6, paragraph 2, as a whole,
from the genesis of the equidistance rule and from the fact that it has been enshrined in
no less than four provisions of three conventions signed in Geneva in 1958, I find it
difficult to infer that it was proposed by the International Law Commission in an
impromptu and contingent manner or on an experimental basis, and adopted by the
Geneva Conference on that understanding. Nor is there anything-including Article 12-
that can disqualify the equidistance rule from becoming a rule of general law or
constitute an obstacle to that process. Furthermore, there are no other known factors
which may have had this effect.
III
It is generally recognized that provisions of international instruments may acquire the
status of general rules of international law. Even unratified treaties may constitute a
16
point of departure for a legal practice. Treaties binding many States are, a fortiori,
capable of producing this effect, a phenomenon not unknown in international relations.
I shall therefore now endeavour to ascertain whether the transformation of the
provisions of Article 6, paragraph 2, of the Geneva Convention on the Continental Shelf,
and in particular the equidistance rule, into generally accepted law has in fact taken
place. This calls for an analysis of State practice, of the time factor, and of what is
traditionally understood to constitute opinio juris.
Ten years have elapsed since the Convention on the Continental Shelf was signed, and 39
States are today parties to it.
Delay in the ratification of and accession to multilateral treaties is a well-known
phenomenon in contemporary treaty practice. (According to a recent study conducted by
the United Nations Institute for Training and Research, 55 out of 179 multilateral treaties
in respect of which the Secretary-General of the United Nations performs depositary
functions had received an average of only about 27 per cent. of possible acceptances.) It
is self-evident that in many cases substantive reasons are at the root of these delays.
However, experience indicates that in most cases they are caused by factors extraneous
to the substance and objective of the instrument in question. Often the slowness and
inherent complication of constitutional procedures, the need for interdepartmental
consultations and co-ordination, are responsible (lack of ratification does not, however,
prevent States from applying the provisions of such conventions). Frequently, again,
there is procrastination, due to the lack of any sense of urgency, or of immediate interest
in the problems dealt with by the treaty, for so long as there are other important issues
to deal with. This may be illustrated by a comparison between the Convention on
Diplomatic Relations (signed at Vienna on 24 April 1961) and the Convention on the
High Seas (signed at Geneva on 29 April 1958). Both are eminently instruments which
codify existing law. Yet the first, within a period of about seven years, had received 77
ratifications, accessions or notifications of succession, while after a lapse of ten years
only 42 States had become parties to the latter. The reasons seem self-evident: the
Convention on Diplomatic Relations is of direct, daily interest for every State. It took ten
years for an instrument codifying existing law, the Convention on the Prevention and
Repression of the Crime of Genocide (adopted by the General Assembly of the United
Nations on 9 December 1948), to obtain 59 ratifications and accessions, while by the end
of 1967-20 years after its adoption-71 States had become parties to it.
These overlong delays in ratification and their causes, not related to the substance of the
instruments concerned, are factors for which due allowance has to be made.
I may have dwelt on this point at excessive length. I have done so because it is relevant to
the issue now before the Court. For it indicates that the number of ratifications and
accessions cannot, in itself, be considered conclusive with regard to the general
acceptance of a given instrument.
In the case of the Convention on the Continental Shelf, there are other elements that must
be given their due weight. In particular, 31 States came into existence during the period
between its signature (28 June 1958) and its entry into force (10 June 1964), while 13
other nations have since acceded to independer ce. Thus the time during which these 44
States could have completed the necessary procedure enabling them to become parties
to the Convention has been rather limited, in some cases very limited. Taking into
account the great and urgent problems each of them had to face, one cannot be surprised
that many of them did not consider it a matter of priority. This notwithstanding, nine of
those States have acceded to the Convention. Twenty- six of the total number of States in
existence are moreover land-locked and cannot be considered as having a special and
immediate interest in speedy accession to the Convention (only five of them have in fact
acceded).
Finally, it is noteworthy that about 70 States are at present engaged in the exploration
and exploitation of continental shelf areas.
It is the above analysis which is relevant, not the straight comparison between the total
number of States in existence and the number of parties to the Convention. It reveals in
fact that the number of parties to the Convention on the Continental Shelf is very
impressive, including as it does the majority of States actively engaged in the exploration
of continental shelves.
Again, it is noteworthy that while 39 States are parties, initial steps towards the
acceptance of the Convention have been taken by 46 States, who have signed it: half of
them have ratified it. Thus to the figure of 39 that of 23 States is to be added, i.e., those
States which by signing it have acquired a provisional status vis-a-vis the Convention,
each of them being 'obliged to refrain from acts which would defeat the object and
purpose of the treaty ... ' until it 'shall have made its intention clear not to become a party
to the treaty' (Article 15a of the Draft Articles of the Law of Treaties, prepared by the
I.L.C., as amended and adopted by the Committee of the Whole of the Conference on the
Law of Treaties; Doc. A/CONF. 39/C.1/L.370/Add. 4, p. 8).
This mathematical computation, important as it is in itself, should be supplemented by,
so to speak, a spectral analysis of the representativity of the States parties to the
Convention.
For in the world today an essential factor in the formation of a new rule of general
international law is to be taken into account: namely that States with different political,
economic and legal systems, States of all continents, participate in the process. No more
can a general rule of international law be established by the fiat of one or of a few, or-as
it was once claimed-by the consensus of European States only.
This development was broadly reflected in the composition of the Geneva Conference on
the Law of the Sea; it is now similarly reflected within the number of States which are
parties to the Convention on the Continental Shelf. These include States of all continents,
among them States of various political systems, with both new and old States
representing the main legal systems of the world.
It may therefore be said that, from the viewpoints both of number and of
representativity, the participation in the Convention constitutes a solid further, more
extensive practice has developed:
17
(a) A considerable number of States, both parties and not parties to the Convention (and
quite apart from the Parties to the present cases), have concluded agreements delimiting
their continental shelves. Several of these make specific reference to the Geneva
Convention ('having regard to . . . .', 'bearing in mind . . .' or 'in accordance with the
Geneva Convention on the Continental Shelf', 'bearing in mind Article 6 of the Geneva
Convention on the Continental Shelf' or 'in accordance with the principles laid down in
the Geneva Convention on the Continental Shelf of 1958, in particular its Article 6 '). At
least six other agreements (registered with the United Nations) have accepted as a basis
the equidistance or median lines, though without actually referring to the Convention.
(Texts: United Nations Doc. A/AC. 135/11 , and Add. 1.)
(b) A considerable number of States (both parties and not parties to the Convention)
have passed special legislation concerning their continental shelves, or included
provisions on the subject in other instruments. Some of them have enacted a unilateral
delimitation of their continental shelf on the basis of the equidistance rule. Fifteen have
referred specifically to the Convention of 1958, invoking it in a preamble or in individual
articles, or employing definitions derived from it (sometimes with slight modifications).
One instrument refers to 'law and the provisions of international treaties and
agreements', 'law or ratified international treaties' (Guatemala), and another accepts the
median line as a definitive boundary (Norway). Another (U.S.S.R.) reproduces mutatis
mutandis the full text of Article 6 of the Convention, while three (Finland, Denmark and
Malaysia) make specific reference to that Article. Another, yet again, invokes 'established
international practice sanctioned by the law of nations' (Philippines). (Texts: U.N. Doc.
A/AC. 135/11 , and Add. 1.)
(c) In some cases the unilateral adoption of the equidistance rule has had a direct bearing
on its recognition by other States. To give but one instance: Australia's Federal
Petroleum (Submerged Lands) Act, 1967, which defines adjacent areas (section 5) and
their delimitation (Second Schedule), is based on the application of the equidistance rule.
This delimitation appears to have been effected on the assumption that a neighbouring
State could not advance any claim beyond the equidistance line.
All this leads to the conclusion that the principles and rules enshrined in the Convention,
and in particular the equidistance rule, have been accepted not only by those States
which are parties to the Convention on the Continental Shelf, but also by those which
have subsequently followed it in agreements, or in their legislation, or have acquiesced in
it when faced with legislative acts of other States affecting them. This can be viewed as
evidence of a practice widespread enough to satisfy the criteria for a general rule of law.
For to become binding, a rule or principle of international law need not pass the test of
universal acceptance. This is reflected in several statements of the Court, e.g.: 'generally .
. . adopted in the practice of States' (Fisheries, Judgment, I.C.J. Reports 1951, p. 128). Not
all States have, as I indicated earlier in a different context, an opportunity or possibility
of applying a given rule. The evidence should be sought in the behaviour of a great
number of States, possibly the majority of States, in any case the great majority of the
interested States.
Thus this test cannot be, nor is it, one endowed with any absolute character: it is of its
very nature relative. Criteria of frequency, continuity and uniformity are involved.
However, not all potential rules are susceptible to verification by all these criteria.
Frequency may be invoked only in situations where there are many and successive
opportunities to apply a rule. This is not the case with delimitation, which is a one-time
act. Furthermore, as it produces lasting consequences, it invariably implies an intention
to satisfy the criterion of continuity.
As for uniformity, 'too much importance need not be attached to' a 'few uncertainties or
contradictions, real and apparent' (Fisheries, Judgment, I.C.J. Reports 1951, p. 138).
Nor can a general rule which is not of the nature of jus cogens prevent some States from
adopting an attitude apart. They may have opposed the rule from its inception and may,
unilaterally, or in agreement with others, decide upon different solutions of the problem
involved. Article 6, paragraph 2, of the Convention on the Continental Shelf, by virtue of
the built-in exceptions, actually opens the way to occasional departures from the
equidistance rule wherever special circumstances arise. Thus the fact that some States,
as pointed out in the course of the proceedings, have enacted special legislation or
concluded agreements at variance with the equidistance rule and the practice confirming
it represents a mere permitted derogation and cannot be held to have disturbed the
formation of a general rule of law on delimitation.
***
With regard to the time factor, the formation of law by State practice has in the past
frequently been associated with the passage of a long period of time. There is no doubt
that in some cases this may be justified. However, the great acceleration of social and
economic change, combined with that of science and technology, have confronted law
with a serious challenge: one it must meet, lest it lag even farther behind events than it
has been wont to do.
To give a concrete example: the first instruments that man sent into outer space
traversed the airspace of States and circled above them in outer space, yet the launching
States sought no permission, nor did the other States protest. This is how the freedom of
movement into outer space, and in it, came to be established and recognized as law
within a remarkably short period of time. Similar developments are affecting, or may
affect, other branches of international law
Given the necessity of obviating serious differences between States, which might lead to
disputes, the new chapter of human activity concerning the continental shelf could not
have been left outside the framework of law for very long.
Thus, under the pressure of events, a new institution has come into being. By traditional
standards this was no doubt a speedy development. But then the dimension of time in
law, being relative, must be commensurate with the rate of movement of events which
require legal regulation. A consequential response is required. And so the short period
within which the law on the continental shelf has developed and matured does not
18
constitute an obstacle to recognizing its principles and rules, including the equidistance
rule, as part of general law.
***
Can the practice above summarized be considered as having been accepted as law,
having regard to the subjective element required? The process leading to this effect is
necessarily complex. There are certain areas of State activity and international law which
by their very character may only with great difficulty engender general law, but there are
others, both old and new, which may do so with greater ease. Where continental shelf
law is concerned, some States have at first probably accepted the rules in question, as
States usually do, because they found them convenient and useful, the best possible
solution for the problems involved. Others may also have been convinced that the
instrument elaborated within the framework of the United Nations was intended to
become and would in due course become general law (the teleological element is of no
small importance in the formation of law). Many States have followed suit under the
conviction that it was law.
Thus at the successive stages in the development of the rule the motives which have
prompted States to accept it have varied from case to case. It could not be otherwise. At
all events, to postulate that all States, even those which initiate a given practice, believe
themselves to be acting under a legal obligation is to resort to a fiction-and in fact to
deny the possibility of developing such rules. For the path may indeed start from
voluntary, unilateral acts relying on the confident expectation that they will find
acquiescence or be emulated; alternatively, the startingpoint may consist of a treaty to
which more and more States accede and which is followed by unilateral acceptance. It is
only at a later stage that, by the combined effect of individual or joint action, response
and interaction in the field concerned, i.e., of that reciprocity so essential in international
legal relations, there develops the chain-reaction productive of international consensus
In view of the complexity of this formative process and the differing motivations possible
at its various stages, it is surely over-exacting to require proof that every State having
applied a given rule did so because it was conscious of an obligation to do so. What can
be required is that the party relying on an alleged general rule must prove that the rule
invoked is part of a general practice accepted as law by the States in question. No further
or more rigid form of evidence could or should be required.
In sum, the general practice of States should be recognized as prima facie evidence that it
is accepted as law. Such evidence may, of course, be controverted-even on the test of
practice itself, if it shows 'much uncertainty and contradiction' (Asylum, Judgment, I.C.J.
Reports 1950, p. 277). It may also be controverted on the test of opinio juris with regard
to 'the States in question' or the parties to the case.
In approaching this issue one has to take into account the great variety of State activity-
manifesting itself as it does today in many forms of unilateral act or international
instrument or in the decisions of international organizations-, the multiplicity and
interdependence of these processes.
With the ever-increasing activities of States in international relations, some rules of
conduct begin to be accepted even before reaching that state of precision which is
normally required for a rule of law. If their binding force is contested, courts operating
within the traditional framework of certitude may apply tests of perfection and clarity
they could not possibly pass. The alternative would be to fall back on some general and,
it may be, elusive principle. This may not be conducive to strengthening the edifice of
international law, which is so important for presentday international relations. One
should of course avoid the risk of petrifying rules before they have reached the necessary
state of maturity and by doing so endangering the stability of and confidence in law. It
may, however, be advisable, without entering the field of legislation, to apply more
flexible tests, which, like the substance of the law itself, have to be adapted to changing
conditions. The Court would thus take cognizance of the birth of a new rule, once the
general practice States have pursued has crossed the threshold from haphazard and
discretionary action into the sphere of law.
As to the cases before the Court, the situation leaves little room for doubt. The conclusion
by States of agreements in the field of continental shelf delimitation has self-evidently
expressed their willingness to accept the rules of the Convention 'as law' and has in fact
represented a logical furtherance of the provisions of Article 6, paragraph 2. As for the
unilateral acts concerned, they also, by their reference to the Convention or borrowing of
its very wording, have given recognition to its provisions. Other States have done so by
acquiescence.
The foregoing analysis leads to the conclusion that the provisions of Article 6, paragraph
2, of the Geneva Convention on the Continental Shelf, and more especially the
equidistance rule, have attained the identifiable status of a general law. This may be
contested in a particular case by a State denying its opposability to itself. Then, of course,
the matter becomes one of evidence.
North Sea Continental Shelf Case: Sørensen Dissenting Opinion (excerpts)
North Sea Continental Shelf Case
(Federal Republic of Germany / Denmark; Federal Republic of Germany /
Netherlands)
1969 I.C.J. 3
International Court of Justice
February 20, 1969
General List: Nos. 51 & 52
Dissenting Opinion of Judge ad hoc Sørensen [Selected Excerpts]
To my great regret I find myself unable to concur in the decision of the Court, and I wish
to avail myself of the right under Article 57 of the Statute to state the reasons for my
dissent.
19
On certain points I agree with the Court. I do not think that the equidistance principle-
even subject to modification in special circumstances-is inherent in the legal concept of
the continental shelf or part of that concept by necessary implication.
I also agree that the Federal Republic of Germany has not by her conduct assumed the
obligations under the Geneva Convention on the Continental Shelf. As I shall indicate
later, the conduct of the Federal Republic may be considered relevant in another context,
but I agree that the Convention is not opposable to her on a contractual or
quasicontractual basis.
I do find, however, that the Convention, and in particular Article 6 thereof, is binding
upon the Federal Republic on a different basis. In order to substantiate this opinion I
wish first to make some observations on the Convention in general, and then afterwards
to examine whether the conclusions reached hold good with respect to Article 6 in
particular.
***
It is generally recognized that the rules set forth in a treaty or convention may become
binding upon a non-contracting State as customary rules of international law or as rules
which have otherwise been generally accepted as legally binding international norms. It
is against this particular background that regard should be had to the history of the
drafting and adoption of the Convention, to the subsequent attitudes of States, and to the
relation of its provisions to the rules of international law in other, but connected, fields.
In that respect, however, I take a less narrow view than the Court as to the conditions for
attributing such effect to the rules set forth in a convention. I agree, of course, that one
should not lightly reach the conclusion that a convention is binding upon a non-
contracting State. But I find it necessary to take account of the fact-to which the Court
does not give specific weight-that the Geneva 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 Article 13 of the Charter.
Over a number of years, and following the procedure laid down in its Statute, the
International Law Commission had elaborated a comprehensive set of draft articles on
the law of the sea, including some on the continental shelf. The Commission submitted
the draft articles to the General Assembly in the report of its eighth session in 1956. By
resolution 1105 (XI) the General Assembly decided to convene a conference of
plenipotentiaries to examine the law of the sea on the basis of this draft, and all States
Members of the United Nations or the specialized agencies were invited to participate.
The conference met in Geneva in the early months of 1958 and adopted four conventions
on the law of the sea, one of them being the Convention on the Continental Shelf, which
were opened for signature on 28 April 1958.
In assessing the legal effects of a convention adopted in such circumstances, the
distinction between the two notions of 'codification' and 'progressive development' of
international law may be taken as the point of departure. According to Article 15 of the
Statute of the International Law Commission, the term 'codification' is used in that
Statute to mean 'the more precise formulation and systematization of rules of
international law in fields where there already has been extensive State practice,
procedent and doctrine'. The term 'progressive development', on the other hand, is used
to mean 'the preparation of draft conventions on subjects which have not yet been
regulated by international law or in regard to which the law has not yet been sufficiently
developed in the practice of States'.
There is no doubt that the distinction between these two categories is sound in theory
and relevant in practice. There are treaty provisions which simply formulate rules of
international law which have already been generally accepted as part of international
customary law, and it is beyond dispute that the rules embodied and formulated in such
provisions are applicable to all States, whether or not they are parties to the treaty. On
the other hand, it is equally clear that there are treaty provisions which are intended to
modify the existing legal situation, whether they change the content of existing rules or
regulate matters which have not previously been regulated by international law. Rules
set forth in such treaty provisions are neither binding upon nor can be invoked by non-
contracting States.
It has come to be generally recognized, however, that this distinction between
codification and progressive development may be difficult to apply rigorously to the facts
of international legal relations. Although theoretically clear and distinguishable, the two
notions tend in practice to overlap or to leave between them an intermediate area in
which it is not possible to indicate precisely where codification ends and progressive
development begins. The very act of formulating or restating an existing customary rule
may have the effect of defining its contents more precisely and removing such doubts as
may have existed as to its exact scope or the modalities of its application. The
opportunity may also be taken of adapting the rule to contemporary conditions, whether
factual or legal, in the international community. On the other hand, a treaty purporting to
create new law may be based on a certain amount of State practice and doctrinal opinion
which has not yet crystallized into customary law. It may start, not from tabula rasa, but
from a customary rule in statu nascendi.
The International Law Commission itself has recognized that the distinction between the
process of codification and that of progressive development, as defined in its Statute,
gives rise to practical and theoretical difficulties. The report of its eighth (1956) session
contains, in the introduction to the chapter on the law of the sea-which includes the draft
articles on the continental shelf-, the following statement:
In preparing its rules on the law of the sea, the Commission has become convinced that,
in this domain at any rate, the distinction established in the statute between these two
activities can hardly be maintained. Not only may there be wide differences of opinion as
to whether a subject is already 'sufficiently developed in practice', but also several of the
provisions adopted by the Commission, based on a 'recognized principle of international
law', have been framed in such a way as to place them in the 'progressive development'
category. Although it tried at first to specify which Articles fell into one and which into
the other category, the Commission has had to abandon the attempt, as several do not
wholly belong to either.' (I.L.C.,VIII, Report, para. 26).
20
Considerations such as these are borne out by an examination of the process by which
rules of customary international law are created. Article 38 of the Statute of the Court
refers to international custom 'as evidence of a general practice accepted as law'.
According to classic doctrine such practice must have been pursued over a certain length
of time. There have even been those who have maintained the necessity of 'immemorial
usage'. In its previous jurisprudence, however, the Court does not seem to have laid
down strict requirements as to the duration of the usage or practice which may be
accepted as law. In particular, it does not seem to have drawn any conclusion in this
respect from the ordinary meaning of the word 'custom' when used in other contexts. In
the Asylum case the Court only required of the Colombian Government that it should
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'.
(I.C.J. Reports 1950, p. 276; also quoted in the case concerning U.S. Nationals in Morocco,
I.C.J. Reports 1952,p. 200).
The possibility has thus been reserved of recognizing the rapid emergence of a new rule
of customary law based on the recent practice of States. This is particularly important in
view of the extremely dynamic process of evolution in which the international
community is engaged at the present stage of history. Whether the mainspring of this
evolution is to be found in the development of ideas, in social and economic factors, or in
new technology, it is characteristic of our time that new problems and circumstances
incessantly arise and imperatively call for legal regulation. In situations of this nature, a
convention adopted as part of the combined process of codification and progressive
development of international law may well constitute, or come to constitute the decisive
evidence of generally accepted new rules of international law. The fact that it does not
purport simply to be declaratory of existing customary law is immaterial in this context.
The convention may serve as an authoritative guide for the practice of States faced with
the relevant new legal problems, and its provisions thus become the nucleus around
which a new set of generally recognized legal rules may crystallize. The word 'custom',
with its traditional time connotation, may not even be an adequate expression for the
purpose of describing this particular source of law.
This is not merely a question of terminology. If the provisions of a given convention are
recognized as generally accepted rules of law, this is likely to have an important bearing
upon any problem of interpretation which may arise. In the absence of a convention of
this nature, any question as to the exact scope and implications of a customary rule must
be answered on the basis of a detailed analysis of the State practice out of which the
customary rule has emerged. If, on the other hand, the provisions of the convention serve
as evidence of generally accepted rules of law, it is legitimate, or even necessary, to have
recourse to ordinary principles of treaty interpretation, including, if the circumstances so
require, an examination of travaux preparatoires.
Turning now to the Convention on the Continental Shelf, it is hardly necessary to recall
that the legal problems with which it deals have arisen out of the rapidly increasing
demand for sources of energy and the development of new techniques permitting the
extraction of resources from the subsoil of submarine areas. As problems of international
law, the problems relating to the exploitation of the natural resources of the continental
shelf are of recent origin. Although the seeds of the contemporary doctrine of the
continental shelf may be found in earlier legal writings, it is only during the last quarter
of a century that technical developments have added practical significance to the
problems. The point of departure for the evolution of the legal doctrine relating to the
continental shelf was the proclamation issued by the President of the United States on 28
September 1945.
On the basis of early State practice and the comments made by governments, the
International Law Commission hammered out the doctrine of the continental shelf in
legal provisions which were subsequently discussed and adopted, with certain
modifications, by the Geneva Conference in 1958. As far as the main elements are
concerned, the provisions of the Convention circumscribed the doctrine on a number of
points. The outer limits of the continental shelf were defined, although according to
alternative criteria, one of which was the indeterminate criterion of exploitability. The
rights of the coastal State over the shelf area were characterized as 'sovereign' rights-
which means that they include the ordinary legislative, executive and judicial
competence of the State on a territorial basis-but only for limited purposes, namely the
exploration and exploitation of natural resources. These rights were declared to be
exclusive, and it was further laid down that they did not depend on occupation or any
express proclamation. The term 'natural resources' was defined in great detail. In
addition, the Convention imposed certain duties on the coastal State for the purpose of
safeguarding the interest of other States in the use of the high seas, and provisions were
included for delimitation vis-a-vis neighbouring States.1
It is difficult to express any definite opinion as to the exact legal status of the continental
shelf in general international law prior to the Geneva Conference. It may be argued that
customary international law had by then already developed to the point of authorizing a
coastal State to exercise some measure of sovereign rights over the adjacent area of the
continental shelf. But it can hardly be asserted that the doctrine of the continental shelf,
as formulated and circumscribed in considerable detail, first by the International Law
Commission in its draft of 1956, and then by the Geneva Conference in 1958, was nothing
more than a restatement of then existing rules of customary international law. The
provisions of the Convention were not simply declaratory of already accepted
international law in the matter.
This being so, the question remains whether the Convention may nevertheless now be
taken as evidence of generally accepted rules of international law. In the Judgment, the
Court has applied certain minimum conditions for recognizing that a treaty provision
attains the character of a generally accepted rule of customary law. In a general way I
agree that these conditions reflect the elements or factors to be considered, except that I
also believe, as indicated above, that it should be considered as a relevant element that a
convention has been adopted in the process of codification and development of
international law under the United Nations Charter. I do not, however, find the rather
schematic approach adopted by the Court entirely satisfactory. The conditions should
not, in my view, be considered as alternative conditions which could be examined and
rejected one by one. The proper approach, in my opinion, is to examine the relevant
elements as interlocking and mutually interdependent parts of a general process.
Approaching the problems of the present cases in this manner, I think that the decisive
considerations may be summarized as follows. The adoption of the Geneva Convention
21
on the Continental Shelf was a very significant element in the process of creating new
rules of international law in a field which urgently required legal regulation. The
Convention has been ratified or acceded to by a quite considerable number of States, and
there is no reason to believe that the flow of ratifications has ceased. It is significant that
the States which have become parties to the Convention are fairly representative of all
geographical regions of the world and of different economic and social systems. Not only
the contracting parties, but also other States, have adapted their action and attitudes so
as to conform to the Convention. No State which has exercised sovereign rights over its
continental shelf in conformity with the provisions of the Convention has been met with
protests by other States. True, there have been certain controversies on such questions
as the understanding of the term 'natural resources' and the delimitation of shelf areas
between the States concerned, a problem which will be examined further below. In
general, however, such controversies have revolved on the interpretation and
application of the provisions of the Convention, rather than the question whether those
provisions embody generally applicable rules of international law.
I do not find it necessary to go into the question of the opinio juris. This is a problem of
legal doctrine which may cause great difficulties in international adjudication. In view of
the manner in which international relations are conducted, there may be numerous cases
in which it is practically impossible for one government to produce conclusive evidence
of the motives which have prompted the action and policy of other governments.
Without going into all aspects of the doctrinal debate on this issue, I wish only to cite the
following passage by one of the most qualified commentators on the jurisprudence of the
Court. Examining the conditions of the opinio necessitatis juris Sir Hersch Lauterpacht
writes:
Unless judicial activity is to result in reducing the legal significance of the most potent
source of rules of international law, namely, the conduct of States, it would appear that
the accurate principle on thesubject consists in regarding all uniform conduct of
Governments (or, in appropriate cases, abstention therefrom) as evidencing the opinio
necessitatis juris except when it is shown that the conduct in question was not
accompanied by any such intention.' (Sir Hersch Lauterpacht: The Development of
International Law by the International Court, London 1958, p.380.)
Applying these considerations to the circumstances of the present cases, I think that the
practice of States referred to above may be taken as sufficient evidence of the existence
of any necessary opinio juris.
In my opinion, the conclusion may therefore safely be drawn 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.
Norwegian Fisheries Case
ANGLO NORWEGIAN FISHERIES CASE (SUMMARY ON CUSTOMARY
INTERNATIONAL LAW)
International Court of Justice, Contentious Case: Anglo Norwegian Fisheries Case
(UK vs Norway)
Year of Decision: 1951.
The Court was asked to decide, amongst others, the validity, under international law, of
the methods used to delimit Norway’s territorial sea/ fisheries zone. We will not discuss
the technical aspects of the judgment relating to the delimitation, but focus on the Court’s
conclusions relating to customary international law.
Background to the case
The United Kingdom requested the court to decide if Norway had used a legally acceptable
method in drawing the baseline from which it measured its territorial sea. The
United Kingdom argued that customary international law did not allow the length of a
baseline drawn across a bay to be longer than ten miles. Norway argued that its
delimitation method was consistent with general principles of international law.
Findings of the Court
1. The formation of customary law
The Court referred to (1) positive State practice and (2) lack of contrary State practice as
a confirmation of an existing rule of customary international law (see p. 17 and 18). There
was no mention of opinio juris in this early judgment.
In the following passage, the Court considered expressed dissent by States regarding a
particular practice to be detrimental to the existence of an alleged general rule. Yet,
the Court did not examine further whether these States adopted a contrary practice
because, for example, (1) they were claiming an exception to the rule (see the Nicaragua
jurisprudence) or (2) because they believed that the said rule did not possess the
character of customary law.
“In these circumstances the Court deems it necessary to point out that although the ten-
mile rule has been adopted by certain States both in their national law and in their
treaties and conventions, and although certain arbitral decisions have applied it as
between these States, other States have adopted a different limit. Consequently, the ten-
mile rule has not acquired the authority of a general rule of international law.”
1.1. The persistent objector
The Court in its judgment held that even if a customary law rule existed on the
aforementioned ten-mile rule,
22
“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she
has always opposed any attempt to apply it to the Norwegian coast.”
In this case, the Court appears to support the idea that an existing customary law rule
would not apply to a State if (1) it objected to the application of the rule to itself (2) at the
initial stages and (3) in a consistent manner. The Anglo Norwegian Fisheries Case, thus,
supports the Asylum Case (Peru vs Colombia) in articulating what we now call the
persistent objector rule.
a. Initial objection
The Court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that,
“in spite of the adoption in some treaties of the quite arbitrary distance of 10 sea miles, this
distance would not appear to me to have acquired the force of international law. Still less
would it appear to have any foundation in reality…”
The Court held that “Language of this kind can only be construed as the considered
expression of a legal conception regarded by the Norwegian Government as compatible with
international law”. Thus, the Court held that Norway had refused to accept the rule as
regards to it in 1870.
b. Sustained objection
The Court also went on to hold that Norway had followed the principles of delimitation
that it considered a part of its system in a consistent and uninterrupted manner from 1869
until the time of the dispute.
In establishing consistent practice, the Court held that “…too much importance need not be
attached to the few uncertainties or contradictions, real or apparent, which the United
Kingdom Government claims to have discovered in Norwegian practice.”
c. No objection by other States
The Court held that the 10-mile rule did not form a part of the general law and, in any
event, could not bind Norway because of the latter’s objections. Next, the Court inquired
whether the Norwegian system of delimitation was nevertheless contrary to international
law. To do so, the Court relied on state practice once more.
“The general toleration of foreign States with regard to the Norwegian practice is an
unchallenged fact. For a period of more than sixty years the United Kingdom Government
itself in no way contested it… The Court notes that in respect of a situation which could
only be strengthened with the passage of time, the United Kingdom Government
refrained from formulating reservations.”
1.2. Contrary State practice of Norway?
In this case, Norway adopted a contrary practice – a practice that was the subject of
litigation.
However, interestingly, Norway was clear that it was not claiming an exception to the rule
(i.e. that its practice was not contrary to international law). It emphasized that its practice
– even if it was a deviation from the general practice – was in conformity with international
law (see page 21).
“In its (Norway’s) view, these rules of international law take into account the diversity of
facts and, therefore, concede that the drawing of base-lines must be adapted to the
special conditions obtaining in different regions. In its view, the system of delimitation
applied in 1935, a system characterized by the use of straight lines, does not therefore
infringe the general law; it is an adaptation rendered necessary by local conditions. ”
The Court held that the fact that this consistent and sufficiently long practice took place
without any objection to the practice from other States (until the time of dispute) indicated
that these States did not consider the Norwegian system to be “contrary to international
law”.
“The notoriety of the facts, the general toleration of the international community, Great
Britain’s position in the North Sea, her own interest in the question, and her prolonged
abstention would in any case warrant Norway’s enforcement of her system against the
United Kingdom. The Court is thus led to conclude that the method of straight lines,
established in the Norwegian system, was imposed by the peculiar geography of the
Norwegian coast; that even before the dispute arose, this method had been consolidated
by a consistent and sufficiently long practice, in the face of which the attitude of
governments bears witness to the fact that they did not consider it to be contrary to
international law.”
2. Relationship between international and national law
The Court alluded to the relationship between national and international law in
delimitation of maritime boundaries. In delimitation cases, States “must be allowed the
latitude necessary in order to be able to adapt its delimitation to practical needs and local
requirements…” The Court would also consider “…certain economic interests peculiar to a
region, the reality and importance of which are clearly evidenced by a long usage.” However,
while the act of delimitation can be undertaken by the State, its legal validity depends on
international law.
“The delimitation of sea areas has always an international aspect; it cannot be dependent
merely upon the will of the coastal State as expressed in its municipal law. Although it is
true that the act of delimitation is necessarily a unilateral act, because only the coastal
State is competent to undertake it, the validity of the delimitation with regard to other
States depends upon international law. (p. 20)”
23