* bok * cj * tiff * gem * tin * public international law UPLAW 2009 B

“TAI-land. Without the “H”. The sexpot of Asia… based on secondary sources, of course."
This digest compilation wouldn’t have been possible without the help of Andi, Steve, ICJ then continued by citing examples in contemporary IL: aggression, genocide,
Jerome, Vani, Cathe, and Marco.  and the basic rights of the human person, including protection from slavery and racial
discrimination.
III. Actors in International Law BUT: THE DICTUM IS NOT AUTHORITY FOR THE CONTEMPORARY
APPLICATION OF THE PRINCIPLE OF UNIVERSALITY OF JURISDICTION as it is
a. States often incorrectly used.
Why is it incorrect? –because the Court was not affirming UJ in respect of
Higgins, Chapter 41. ALLOCATING COMPETENCE: JURISDICTION each of these offenses. The dictum was made in the context of an examination of the
law relating to diplomatic protection and not of an assertion of jurisdiction.
Of critical importance: issue of jurisdiction. Why? Because that is all about -It is usually necessary for a state to show that the defendant state has
allocating competence. There is no more important way to avoid conflict than by broken an obligation towards it (in respect of its nationals) before it can bring an
providing clear norms as to which state can exercise authority over whom, and in international claim. Only the party to whom the international obligation is due can
what circumstances. bring a claim, hence the Court was suggesting that in respect of these offenses, the
Without allocation of competence: all is in rancour and chaos restrictive requirements of the nationality-of-claims principle3 would not apply.
-Plus, the nationality-of-claims rule concerns diplomatic representation in
Bases of jurisdiction: (found in any textbook) civil claims. This is true of the exception to the rule, where the obligations owed are
-territorial jurisdiction, by which a state can make laws for, and apply them erga omnes. By contrast, the universality principle is concerned with the application
to, persons and events within its territory of criminal jurisdiction.
-nationality jurisdiction
-protective jurisdiction Q: Is the universality principle an EXCEPTION to the basic principle that a state
-passive personality jurisdiction does not have any rights of criminal jurisdiction in respect of acts done abroad by
-universal jurisdiction aliens?
-effects jurisdiction, claims for which are more controversial A: Some international lawyers: Yes.4
Higgins: No. It is a well-established norm which stands alongside other norms of
Universal Jurisdiction (UJ) jurisdiction, and is not to be seen as an exception to any one of them.
IL PERMITS THE EXERCISE OF JURISDICTION IN RESPECT OF CERTAIN
OFFENSES AGAINST THE INTERNATIONAL COMMUNITY. That is, the nature of THE # OF OFFENSES SUBJECT TO THE UNIVERSALITY PRINCIPLE ARE
the act entitles a state to exercise its jurisdiction to apply its laws, even if: LIMITED:
-the act occurred outside its territory, - Requirements: Acts which:
-perpetrated by a non-national, &
-nationals have not been harmed by the acts. 1. are commonly treated as criminal5 in the local jurisdiction of
most states, and
BARCELONA TRACTION CASE DICTUM often cited in this context. 2. they perceive as an attack upon an international order.
ICJ in contrasting Obligations that 1 state may owe another v. obligations that 1 - founded upon the accused’s attack upon the international order as a whole.
state may owe the international community as a whole, said (re the obligations a state - Sources of Right to exercise jurisdiction under the universality principle:
owes the international community): “by their very nature [they]…..are the concern of -a treaty of universal or quasi-universal scope or
all States. In view of the importance of the rights involved, all states can be held to -from acceptance under general IL (GIL) –which provides the basis for the
have a legal interest in their protection, they are obligations erga omnes.”2 most commonly accepted example of an offense allowing of UJ: piracy.
- Other offenses regarded as subject to UJ:
-slavery
1
The introductory section of the book (chaps 1-3) is designed to show that if we do not insist upon IL as
the mechanistic application of rules, without regard to context, it is a system that can assist in avoidance, 3
containment, and resolution of disputes. A State may not press a purely private claim unless the claimant was its national at the time the injury
Chapter 1 – what IL is and what function it serves occurred and continuously thereafter until the claimant’s government agrees to take up the claim.
4
Chapter 2 – how we identify its substantive content This approach is part of the wider issue of whether one vies IL as a set of rules with exceptions OR as
Chapter 3 – to whom it applies complementary norms, the selection of which must be made in the context of all the facts and
circumstances.
Chaps 4-15 show some of the ways in which IL helps to avoid conflicts. 5
But application to non-criminal law (for example; by providing a remedy in tort or restitution for
2
In relation to everyone; a legal obligation toward all victims) is not precluded by IL (The 3rd Restatement of the Law: Foreign Relations Law of the US).
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-war crimes6 (which The Nuremberg Tribunal took jurisdiction over)
-(today) Major violations of the 1949 Geneva Conventions
CASE EXAMPLES:
EICHMANN CASE (classic example) Jurisdiction was exercised over Eichmann, the
principal executioner of Hitler’s “final solution” in respect of acts carried outside Israel,
against non-Israelis.7 While objections were raised on how Eichmann was brought to
Israel, no protest was made as to Israel’s right to assert a UJ over the offenses.
DEMJANYUK CASE: A US court accepted Israel’s competence to try a person
charged with murder and related offenses in concentration camps in Eastern Europe
because “……the offenders are common enemies of all mankind and all nations have
an equal interest in their apprehension and punishment.”
ANENT WAR CRIMES: In IL, there is a clear UJ to try and punish war crimes BUT
there is some uncertainty as to WON anything further is required in domestic law for
this possibility to be aced upon. It is not simply the matter of how any given national
law “receives” GIL.8 It may be the case that even if the domestic law acknowledges
the IL universality principle that allows it jurisdiction over an offense, as a practical
matter it will be necessary for the offense to be defined in domestic legislation.
Controversy in point: Contrast the statement of the Home Secretary in 1988,
when asked what action could or should be taken in respect of 17 alleged war
criminals living in Britain with The British Manual of Military Law:
Manual: “war crimes are crimes ex jure gentium and are thus triable by all courts of
all states….British military courts have jurisdiction outside the UK over war crimes
committed….by….persons of any nationality…..It is not necessary that the victim of
the war crime should be a British subject.”
Statement: “The British courts have jurisdiction over British citizens who have
committed manslaughter or murder abroad, but do not have jurisdiction over people
who may now be British citizens, or may now live here and have done so for some
time, if the allegations relate to events before they became British citizens or before
they came to live here.”
It was assumed that no action could be taken without amending the law of UK.
The thinking was: -there is no jurisdiction over non-nationals for murder
committed abroad
-that war crimes are murder
-that special legislative jurisdiction would need to be taken in respect of alleged
perpetrators who were now British citizens or resident in the UK
An INQUIRY was ordered: The Report: (which would later become the basis of
legislation which would be defeated twice in the House of Lords)
-largely put things right
6
Major violations of the customary or conventional laws relating to the conduct of hostilities, as
exemplified in the 1907 Hague Conventions
7
State of Israel did not exist at that time
8 10
Although states vary greatly in how they “receive” treaty law, virtually everywhere GIL is simply treated
as part of the law of the land, without any specific act of incorporation being required.
2
-explained that legislation would merely empower British courts to utilize a
jurisdiction already available to them under IL
-recommended that British courts be given jurisdiction over murder and
manslaughter committed as war crimes in Germany or German occupied territory
during WWII by persons who are now British citizens or resident in the UK.
Higgins’ comment on the Report:
1. The assumption is still that jurisdiction cannot be taken if the offenders were
not currently citizens or long-time residents. –This may reflect a policy decision
but is not a correct reading of the universality principle. For instance, when UK
urged that Saddam Hussein be tried for war crimes for Iraq’s invasion of Kuwait
in 1990, the legislation9 to give effect to the universality principle is clearly too
narrow to deal with anything other than the WWII crimes.
2. The recommendation excluded war crimes other than murder or
manslaughter;10 and also crimes against humanity---which were excluded
because of anxieties about retrospection (Report found that in 1939, there was
no internationally accepted definition of crimes against humanity).
Controversy exists as to what other offenses are subject to UJ. It is often simply
loosely asserted that it exists over a variety of other matters.
UNIVERSAL JURISDICTION TODAY EXISTS OVER WAR CRIMES, CRIMES
AGAINST PEACE, AND CRIMES AGAINST HUMANITY, COMMITTED
IMMEDIATELY BEFORE, OR DURING, WAR.
The Principles of the Nuremberg Tribunal judgment and its Charter (Art. 6) which
says that the universality principle covers war crimes, crimes against peace
(entailed planning of an aggressive war) and crimes against humanity (war
crimes writ large—extermination, murder, deportation, etc., committed against
any civilian population before or during the war) were unanimously accepted by
the UN General Assembly in 1946.
Q: Does UJ cover Crimes Against Humanity during times of peace?
A: -The Nuremberg Tribunal did not provide for UJ
-The Genocide Convention, provides for:
1. territorial jurisdiction and
2. potential universal jurisdiction
-Art. I-the parties confirm that genocide is a crime under IL which they
undertake to prevent and punish
-Art. VI-provides for persons charged with genocide to be tried in the state
where the acts were committed, or ‘by such international penal tribunal as may
have jurisdiction with respect to those Contracting Parties which shall have
accepted its jurisdiction’.
Higgins: no such international penal tribunal yet exists and this Art. Falls short
of UJ because no national court is entitled to assert competence over the
offense.
9
Though the legislation (acting upon the report) got majority votes in the House of Commons, it was
twice defeated in the House of Lords.
Many of the war crimes alleged related to offenses other than murder or manslaughter such as the
taking of foreign hostages, maltreatment of Kuwaitis.
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HIGGINS’ COMMENTS: ON THE 3RD RESTATEMENT OF THE LAW: THE
FOREIGN RELATIONS LAW OF THE US which loosely asserted that after
WWII, it was accepted that genocide and war crimes are subject to UJ because it
is widely accepted as a principle of customary IL.
Higgins-the only authority it gives is that genocide is a violation of customary IL-
which fact does not of itself give rise to UJ.
ON THE RESTATEMENT COMMENTARY ON THE ILC DRAFT ARTICLES ON
STATE RESPONSIBILITY. The Commentary says that the ILC Draft Articles
characterized genocide as an “international crime,” that an international crime is
presumably subject to UJ.
Higgins-The Draft Articles do not purport to deal with jurisdiction.
-Only 2 purposes are served by attributing the notion of “crime” to certain
breaches in IL: 1. To attach a generalized sense of opprobrium to the offense in
question
2. to suggest that UJ would be tolerated.
-Although Art. 19 of the ILC Draft Articles also classifies as crimes under IL:
apartheid, as serious breach of the right of self-determination, and a serious
breach of the duty to prohibit massive pollution, it is hard to see how these give
rise to UJ. It would be a big leap to say that Art. 19 is a basis for UJ.
Q: Is it correct to say that there is UJ in respect of ‘attacks on or hijacking of
aircraft’, and ‘perhaps certain acts of terrorism11’ since they were listed in
both the 3rd Restatement (as offenses which are subject to UJ) and the ILC Draft
Articles (in Art. 19 as the suggested list of ‘international crimes’)?
A: 1. Anent hijacking of an aircraft, an examination of relevant treaties will lead
to the jurisdictional basis permitted by IL:
Tokyo Convention on Offences and Certain Other Acts Committed On Board
Aircraft, 1963-provisions here provide for jurisdiction on a variety of bases,
NONE OF WHICH AMOUNT TO UJ: -the registration of the aircraft,
-the place where the aircraft arrives,
-the nationality of personnel harmed,
-obligations under any treaty
The Montreal and Hague Conventions-early examples of what has recently
become an important treaty basis of jurisdiction: the aute dedire aut punier
principle.12 Jurisdiction is taken when: (1) the offense is committed on board an
aircraft registered in that state, and (2) when the aircraft on board which the
offense is committed lands in its territory with the alleged offender still on board,
-Nothing excludes criminal jurisdiction exercised in accordance with the national
law
11
Terrorism was also in the 1990 Report of the Council of Europe European Committee on Crime
Problems-which loosely asserts that ‘conventions envisaging the taking of UJ are those relating to combat
against terrorism, the prevention of torture the protection of diplomatic staff, the physical protection of
nuclear material, and the taking of hostages’.
12
That a state party to the treaty undertakes to try an offender found in its territory, or to extradite him for
trial.
3
-Contracting states are required to make the offenses punishable by severe
penalties, and to take such measures as are necessary to establish jurisdiction
over the offense and offender.
-Art. 713 (now a classic formula), is spoken of as UJ because it provides for the
jurisdiction of all parties to the Convention14. BUT it is still not really UJ stricto
sensu, because only a small number of states would be able to exercise
jurisdiction. Only thing that is ‘universal’ is the requirement that the states parties
should do whatever is necessary to be able to exercise jurisdiction should the
relatively limited bases of jurisdiction arise.
The 3rd Restatement offers no convincing authority that there exists treaty-based
UJ, and less general principles of IL
Other treaties referred to by the 3rd Restatements as showing UJ but do not in
fact do so: 1973 Convention on Prevention and Punishment of Crimes against
Internationally Protected Persons including diplomatic agents provides for
territorial jurisdiction, flag jurisdiction and nationality jurisdiction.
International convention against Taking of Hostages provides for territorial
jurisdiction, flag jurisdiction and nationality jurisdiction, extended to stateless
persons who are habitually residents.
1980 Convention on Physical Protection of Nuclear Material-jurisdiction is based
on territoriality, flag or nationality of the offender
UN Convention against Torture and Other Cruel and Inhuman or Degrading
Treatment or Punishment- territorial, flag and nationality of the offender PLUS the
nationality of the VICTIM
1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol
provides that all parties will make the prohibited acts offenses under their penal
law, and either prosecute when offenders are in their territory, or extradite them to
the state where the offense was committed.
All these treaties seek to provide wide alternative bases of jurisdiction but are
NOT examples of UJ.
UJ allows ANY state to assert jurisdiction over an offense.
2. Anent Terrorism
-None (of those that listed terrorism as covered by UJ) provides for UJ-only for
various bases of jurisdiction coupled with the
aute dedire aut punier principle.
-Only the European Convention on the Suppression of Terrorism comes nearest
to a true UJ. It lists offenses to be deemed terrorist offenses, stipulates that none
of them shall be regarded as a ‘political offense’ for the purpose of refusing
extradition, and provides that each contracting state shall take the necessary
measures to establish jurisdiction ‘where the suspected offender is present in its
13
The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite
him, be obliged, without exception whatsoever and whether or not the offense was committed in its
territory to submit the case to its competent authorities for the purpose of prosecution.
14
Now standing at over 140
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territory and it does not extradite him’. –Hence No connection with the offense
beyond being a Convention party is required.
Passive Personality (PP)
PASSIVE PERSONALITY JURISDICTION (PPJ) IS BASED ON THE
PROTECTION OF ONE’S NATIONALS. It is a claim to jurisdiction over events
occurring outside one’s territory when these harm nationals who are also outside
one’s territory.
DIFFERENT FROM SO-CALLED EFFECTS OR IMPACT JURISDICTION
because in impact jurisdiction, the harm resulting from extraterritorial acts is to
one’s nationals (or economy) within one’s territory.
CAVEATS TO BE NOTED:
CASE OF SS LOTUS-often cited as authority for PP but should be looked at with
great caution. Collision on the high seas between a Turkish and Lotus, a French
vessel, resulting to death of Turkish crew. In Constantinople, the master was
arrested, charged and convicted of manslaughter. France protested at Turkey’s
assertion of jurisdiction. Permanent Court of International Justice found in favor
of Turkey with unclear grounds. The effect on the Turkish vessel was assimilated
to an effect on Turkish Territory. But neither ships nor embassies are ‘national
territory,’ –and this artificial approach merely obscures jurisdictional issues.
-its broad dictum, to the effect that jurisdiction can be asserted by a state unless
a prohibitory rule prevents this, cannot be regarded as authority for PPJ within
the territory of another (ex. Offense happened in France, but Turkey claims
jurisdiction over the French offender)
PP NOT ADOPTED AS JURISDICTIONAL BASIS FOR VESSEL COLLISION
IN THE Brussels Convention in 1952, Geneva Convention on the High Seas of
1958, or the UNCLOS Convention of 1982. Simple flag jurisdiction was used.
1990s SAW THE REVIVED INTEREST IN INVOKING THE PP DURING THE
EXPLOSION OF INTERNATIONAL TERRORISM because those who have
jurisdiction have been reluctant to exercise it, maybe out of sympathy to the
terrorists or fear of further retaliation. Hence, states with a direct legal interest in
the events and strong political belief in the need to combat terrorism sought to
find the basis for asserting jurisdiction themselves.
US and France are interesting examples (where they asserted jurisdiction over
their nationals after a series of events of a terrorist nature)
US
3RD RESTATEMENT SAID THAT VICTIM NATIONALITY IS A BASIS FOR
JURISDICTION FOR TERRORIST AND OTHER ORGANIZED ATTACKS on a
state’s nationals by reason of their nationality, or to assassination of a state’s
diplomatic reps or other officials.
-there is little authority on this but US asserts such a right.
4
US’ POSITION: if a national is harmed abroad: (1)matter for country
concerned, but (2) may also fall within the country of nationality to the extent that
there is a provision in the legislation of that country prohibiting such harm to
citizens abroad.
Legislation on Hostage-Taking was designed for that purpose. It stipulates
that if the act occurred outside the US, US will not have jurisdiction unless the
offender or the hostage is a US citizen or if the offender is found in the US.
PP AS BASIS FOR JURISDICTION BUT STILL INTENDED TO BE LIMITED
TO ‘TERRORIST’ OFFENSES
-applied in the case of Achille Lauro, an Italian vessel, where a US citizen was
killed by terrorists aboard it in the Mediterrenaean.
-US Terrorist Prosecution Act of 1985 provides for the prosecution and
punishment of persons who, in furtherance of terrorist activities or because of the
nationality of the victims, commit violent attacks upon Americans outside the US.
-Omnibus Dimplomatic Security and Antiterrorism Act15 Chapter 113A.
Extraterritorial Jurisdiction over Terrorist Acts against UN Nationals-
§2331 (a) –there shall be jurisdiction over ‘whoever kills a national of the US,
when such national is outside the US….if the killing is a murder, manslaughter,
and involuntary manslaughter.’
§2331 (e)16 –a prosecution in the US shall take place only when such offense
was intended to coerce, intimidate or retaliate against a government or civilian
population
While US invokes PP only in relation to terrorist type offenses, Lotus, as authority
for PP (invoked but doubtful), does not contain this limitation.
CONFINEMENT OF PP TO TERRORIST-TYPE CASES TRIGGERS THE
PROTECTIVE PRINCIPLE hence no need to call upon the more controversial
and less accepted PP.
FRANCE
INVOCATION OF PP BY LEGISLATION ALSO LIMITED TO CASES
INVOLVING NATIONAL SECURITY
-Code of Criminal Procedure (1975) Art. 689- France may assert jurisdiction over
extraterritorial offenses committed against its nationals.
-explanation to oppositions: France’s jurisdiction is subsidiary to the country
where offense occurred, and jurisdiction will only be invoked if nationals security
is involved
PP IN LEGISLATION IS NOT LIMITED TO TERRORIST OFFENSES, BUT IN
REALITY, ITS APPLICATION IS.
-Diplomatic protest is hard to discern (usual problem: state with alternative
jurisdiction does not wish to assert it)
-1979 International Convention against the Taking of Hostages include PP as a
jurisdictional possibility
15
Enacted by Congress in 1986
16
Where the apparent breadth of PP is circumscribed
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PROTESTS TO PP: NOT TO THE ASSERTION OF JURISDICTION, BUT TO
THE FORCIBLE BRINGING OF THE OFFENDER INTO THE VICTIM’S STATE.
Abduction as the Precursor to Jurisdiction
ABDUCTION CANNOT BE THE BASIS FOR JURISDICTION. But can
sometimes be the means to bring the offender to the territory for trial for an
offense wherein jurisdiction was asserted on some other basis (not abduction)-
which is often either UJ or PP.
CASES CITED:
Eichmann-where the accused was abducted from Argentina to Israel for crimes
against humanity committed in Eastern Europe
Yunis-the Lebanese accused was lured into a yacht in international waters then
arrested and tried in the US for hijacking and destroying a Royal Jordanian plane
in Beirut (3 US passengers survived and there was no violation of the territorial
sovereignty of another state)
Achille Lauro-terrorists were interrupted during a flight over high seas and were
turned over to the Italian authorities. Their extradition was later sought under the
USA-Italy extradition treaty of 1984, for trial for murder of a US citizen.
Relevance of Abduction in asserting jurisdiction remains largely a matter for
determination by the domestic court concerned.17 Some courts refuse to take
jurisdiction over abducted offenders. Some courts don’t care how the offenders
are brought before them.
IL ON ABDUCTION & ITS RELEVANCE TO JURISDICTION: (largely a matter
for the domestic courts but IL is also relevant coz of elements that occurred
beyond the forum state)
1. Q: Is the effective assertion of jurisdiction dependent upon a violation of IL?
A: from the perspective of the individual: his forcible detention and removal
violate his human rights.
from the perspective of the state concerned: WON there is a violation of IL
depends upon the circumstances ex. if abduction happened in the defendant
state’s territory, then there’s a violation of sovereignty, or if the state enforces its
criminal law within the territory of another.
Issue then becomes:
2. Q: WON an injurious act against an individual is harm done to his national
state.
A: Higgins (thinks): No. The whole purpose of human rights is to distinguish
an individual from his state.
3. Q: What if IL was violated by an abduction, should this disbar a court from
acting upon otherwise existent jurisdiction?
A: subject of controversy with different views.
US Supreme Court: in a series of cases held that:
17
Analogy: exclusionary rule in evidence. If improperly obtained, then exclude
5
-the court may exercise jurisdiction, where no treaty is invoked, even though the
defendant was kidnapped/abducted.
-the defendant may not be prosecuted in violation of the terms of an extradition
treaty.
-acknowledged that an abduction might violate general principles of IL-but that is
not a ground for setting aside jurisdiction. 18
-not to be presumed that, by reference to general principles of IL, the presence of
an extradition treaty implies a prohibition on abduction between the parties
Writer Francis Mann: kidnapping is an international wrong and the application of
ex injuria juris non oritur means that an otherwise existing jurisdiction should not
be exercised.
Higgins: but the ex injuria rule was to ensutre that those who act unlawfully in IL
should not be able, in their relations with 3rd parties, to consolidate their illegality
at the expense of those wronged. Ex. In the Eichmann case, there was no
consolidation of a gain at the expense of Argentina. The exercise of jurisdiction
did not affirm title over Argentinian territory.
South African SC: (in setting aside jurisdiction over a defendant kidnapped from
Swaziland) “society is the ultimate loser when, in order to convict the guilty, it
uses methods that lead to decreased respect for the law.”
Higgins: Decoupling19 should only apply to the assertion of UJ over a limited no.
of offenses regarded as international crimes. Abduction to secure the presence of
the offenders for trial for offenses other than those regarded as international
crimes (those subject to UJ) should be set aside.
Extraterritorial Jurisdiction (EJ)
If not territorial jurisdiction, then EJ
FORMS OF EXTRATERRITORIAL JURISDICTION
The nationality principle, where in certain circumstances, apply their criminal
law to nationals abroad,
IL TOLERATES EJ as long as
1. its exercise is not excessive
2. there is no attempt to enforce it within another state’s territory
Problem: in identifying who is a national abroad, particularly in the corporate
area.
Cases: 1979-US, in response to the seizure of US diplomatic and consular staff in
Tehran, froze all Iranian assets under its jurisdiction-meaning including dollar-
denominated accounts held by US banks and their subsidiaries abroad
1981 & 1982- US, in response to the martial law in Poland, prohibited supplies of
material for the construction of the projected gas pipeline form Siberia to Europe-
which applied to US companies all over.
18
Alvarez-Machain case,
19
Decoupling of the illegal method of seizing the accused and the exercise of an otherwise existing
jurisdiction over him
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Problem in cited cases: 1. WON nationality jurisdiction could be properly
asserted while the national was still abroad
2. How to determine the nationality to which the extraterritorial law is said to
apply (what is the ‘nationality’ of a dollar account abroad or US company?)
The Protective Principle, where a state may exercise jurisdiction over a limited
range of measures directed outside its territory at its security.
-relatively unproblematic example of EJ
The Passive-Personality Jurisdiction, where jurisdiction is exercised based on
the harm to a national while abroad
“THE EFFECTS DOCTRINE” (own meaning of EJ)- 1st articulated by the US
Supreme Court in the Alcoa Case, and has particular importance in the fields of
criminal and antitrust law.
-to be able to exercise jurisdiction
1. over persons abroad, whether nationals or not,
2. for acts occurring abroad,
3. which were intended and indeed have significant harmful effects
within the territory asserting jurisdiction.
The Doctrine is Very Controversial:
UK says: unlawful under IL
Territoriality is the “primary rule” and all other bases for jurisdiction are exceptions
to the rule, hence must be justified under IL.
No rule of law permits it and it would lead to unacceptable interferences in the
freedom of others to conduct their economic affairs as they choose.
Many Commonwealth jurisdictions: support UK’s view.
European Community countries: their position is not clear. They have joined the
UK in formally protesting against certain US EJ, but the EC Treaty, Art. 85 20
requirements, arguably involved the exercise of an EJ by the community.
Leading EC Cases based on Economic Utility rather than EJ. UK which first
rejected the concept, came to accept the jurisdiction if the subsidiary (of the
parent company which is outside the EC territory) engaged in conduct within the
Community.
Wood Pulp Cases (before the EC court):
UK: economic utility is acceptable coz it’s not really an exercise of EJ-for
jurisdiction to be asserted over corporations that, through the acts of agents
within the Community, harmed competition.
EC Court: affirmed the exercise of jurisdiction over overseas foreign firms
selling through agents within the EC, spoke in broader terms, & inserted EC
jurisdiction over not only these foreign corporations but also a cartel that had
itself never sold through agents or otherwise within the community.
20
Art. 85 prohibits agreements which may restrict or distort competition within the common market. The
European court said that the jurisdiction is not limited to EC territory. Q: Does this mean that EC likes the
effects doctrine except when US applies it against their states?
6
Hence, the effects doctrine has been accepted in practice but not in name.
EVIDENCE THAT EACH SIDE WANTS TO CONTAIN THE DISPUTE: (but
problem now is dormant for both sides desire to avoid further disputes)
Some countries with blocking legislation21 have not acted on it.
UK has given a broader interpretation to what constitutes conduct within a
territory. A broad interpretation of territoriality overlaps with extra territorial.
US courts have suggested that before EJ could be exercised, a balancing
should be made of the entitlement of the US with the foreign interests involved.
The elements to be weighed as held in leading cases22:
1. degrees of conflict with foreign law or policy
2. relative importance of the alleged violation of conduct in each
country (i.e. if it was prohibited and/or criminal)
3. availability of a remedy abroad and the tendency of litigation there
4. existence of intent to harm US commerce and its foreseeability
5. the possible effect upon foreign relations of the exercise of EJ and
6. whether the matter is covered by a treaty
Higgins’ 2 Final Points:
1. It is arguable that special considerations obtain in respect of EJ over conduct
that is generally regarded as criminal (ex. Restrictive trade practices vis-a-vis
murder).
Report on Extraterritorial Criminal Jurisdiction, the Legal Affairs Committee of the
Council of Europe has suggested that in these circumstances, EJ ought to be
regarded as a justified exemption, based on a principle of ‘international solidarity
between states in the fight against crime’. The exercise of the jurisdiction should
be whether the international solidarity would be helped or harmed.
2. The key to the issue lies in the protection of common values rather than the
invocation of state sovereignty for its own sake.
The fight against restrictive practices (which harm the consumers and keep the
prices high), deserves international solidarity along with the fight against common
criminality.
Brownlie, Ch. IV.: Incidence and Continuity of Statehood
I. Introduction.
State – a type of legal person recognized by international law, but since there are other
types so recognized, the possession of legal personality is not in itself a sufficient mark of
statehood.
The exercise of legal capacities is a normal, not a conclusive, evidence of legal personality
—puppet state may have the paraphernalia of a separate personality but be nothing more
than an agency for another power.
The criteria of statehood are laid down by the law; if not, it would produce the same
structural defect present in some types of doctrines concerning nationality (Ex: certain
21
Statutory provisions which prohibit the furnishing of information or evidence to another state for
criminal proceedings instituted by it in respect of trade practices.
22
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aspects of recognition and acquiescence). A state could use its unfettered discretion to Normally, this criterion creates few problems but there are sources of confusion. First,
contract out of duties owed to another simply by refusing to characterize the obligee as a independence may be used in close association with a requirement of effective
state. A readiness to ignore the law may be disguised as by a plea of freedom in relation to government, leading to the issues considered earlier. Again, since a state is, in part, a legal
a key concept, determinant of rights and duties, like statehood or nationality. order, there is a temptation to rely solely on formal criteria. Certainly, if an entity has its
own exclusive and other organs, conducts its foreign relations through its own organs, has
3 factors contributing to low quantity of useful literature: its own system of courts and legal system and, particularly important, a nationality law of
1. Though important as a matter of principle, the issue of statehood does not often raise its own, there is prima facie evidence of statehood. But, there is no justification for ignoring
long-standing disputes (these usually concern facts, not applicable legal criteria; they evidence of foreign control which is exercised in fact through the ostensibly independent
concern specialized claims). machinery of state. The question is that of foreign control overbearing the decision-making
2. Literature often devoted to the broad concepts of sovereignty and equality of states of the entity concerned on a wide range of matters of high policy and doing so
(prominence to incidents of statehood rather than its origins and continuity). systematically and on a permanent basis. The practice of states ha been to ignore—so far
3. The political and legal nature of may complete rifts in relations between particular states as the4 issue of statehood is concerned—various forms of political and economic
is represented by non-recognition of governments, not states. blackmail and interference directed against the weaker members if the community. There
is a distinction between agency and control, on the one hand, and ad hoc interference and
2. Legal Criteria of Statehood. ‘advice’, on the other.
Article I of the Montevideo Convention on Rights and Duties of States (Dec. 26, 19933):
“The State as a person of international law should possess the following qualifications: (a)
a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter
 Dependent States – foreign control of the affairs of a state may occur under a title of
international law (as a consequence of a treaty of protection) or some other form of
into relations with other Sates.”
consent to agency or representation in external relations, or of a lawful war of
collective defence and sanction leading to an occupation of the aggressor and
Not all the conditions are preemptory and any further criteria must be employed to produce
imposition of measures designed to remove the sources of aggression. Example of
a working definition of statehood.
the latter: Allied occupation of Germany under the Berlin Declaration of June 5, 1845,
(a) Population - the Convention refers to ‘a permanent population’, intended to be used in
where supreme authority was assumed in Germany by the Allies jointly (not a
association with territory, and connotes a stable community. Evidentially, it is important,
belligerent occupation, no deballatio leading to extinction of Germany as a state).
since in the absence of the physical basis for an organized community, it will be hard to
Providing that the representation and agency exist in fact and in law, there is no
establish the existence of a state.
formal difficulty in saying that the criterion of independence is satisfied. But some
(b) Defined territory – there must be a reasonably stable political community and it must be
writers confuse by rehearsing independence as an aspect of statehood and then
in control of a certain area. The existence of fully defined frontiers is not required, rather,
referring to ‘dependent states’, which are presented as an anomalous category. Here,
the effective establishment of a political community. In 1913, Albania was recognized by a
the incidents of personality are not sufficiently distinguished from its existence.
number of states in spite of a lack of settled frontiers, and Israel was admitted to the UN in
‘Dependent’ is used to indicate the existence of 1 or more of the following situations:
spite of disputes over her borders.
1. the absence of statehood, where the entity concerned is subordinated to a state so
(c) Government – Shortest definition of a state: a stable political community, supporting a
completely as to be within its control and the origin of the subordination does not
legal order, in a certain area. The existence of effective government, with centralized
establish agency or representation;
administrative and legislative organs, is the best evidence if a stable political community.
2. a state which has made concessions to another state in matters of jurisdiction and
But such existence may either be unnecessary or insufficient to support statehood. Some
administration to such an extent that it has in some sense ceased to be sovereign;
states have arisen before government was very well organized (Poland in 1919; Burundi
3. a state which has legally conferred wide powers of agency and representation in
and Rwanda, admitted to membership of the UN at the 17 th session of the GA). The
foreign affairs on another state;
principle of self-determination will be set against the concept of effective government,
4. a state, which in fact suffers interference from another state and may be a ‘client’ state
especially when the latter is used in arguments for continuation of colonial rule. In whose
politically, but which quantitatively is not under the complete and permanent control of
interest and for what legal purpose is government ‘effective’? Once a state has been
the ‘patron’;
established, extensive civil strife or the breakdown of order through foreign invasion or
5. a legal person of a special type, appearing on the international plane for certain
natural disasters are not considered to affect personality. Nor is effective government
purposes only, as in the case of mandated and trust territories and some
sufficient, since this leaves open the questions of independence and representation by
protectorates;
other states to be discussed below.
6. a state which fails to qualify as an ‘independent’ state for the purposes of a particular
(d) Independence – in the Convention, this is represented by the requirement of capacity to
instrument.
enter into relations with other states. It has been stressed by many jurists as the decisive
The category of independence (or sovereignty used synonymously) can only be applied
criterion of statehood. Guggenheim distinguishes the state from other legal orders by
concretely in the light of the legal purpose with which the inquiry is made and the particular
means of 2 tests he regards as quantitative:
facts. In the Austro-German Customs Union case (1931), the Permanent Court gave an
1. State has a degree of centralization of its organs not found in the world community.
advisory opinion on the question whether the proposed customs union was contrary to the
2. In a particular area, the state is sole executive and legislative authority.
obligations of Austria under a Protocol of 1922 ‘not to alienate its independence’ and ‘to
The state must be independent of other state legal orders, and any interference by such
abstain from any negotiations or from any economic and financial engagement calculated
legal orders, or by an international agency, must be based on a title of international law.
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directly or indirectly to compromise this independence. The Court held, 8-7, that the
customs regime contemplated would be incompatible with these obligations.
‘Independence’ referred to a specialized notion of economic relations in a treaty, and the
obligations were not confined to abstention from actual and complete alienation of
independence.
Tunis and Morocco Nationality Decrees (1923): Permanent Court emphasized that
protectorates have ‘Individual legal characteristics resulting from the special conditions
under which they were created, and the stage of their development. A protected state may
provide an example of international representation which leaves the personality and
statehood of the entity represented intact, though from the point of view of the incidents of
personality the entity may be ‘dependent’ in one or more of the senses noted above.
U.S. Nationals in Morocco (1952): ICJ, referring to the Treaty of Fez in 1912, and the
creation of a French protectorate, stated: ‘Under this Treaty, Morocco remained a
sovereign State but it made an arrangement of contractual character whereby France
undertook to exercise certain sovereign powers in the name and on behalf of Morocco,
and, in principle, all of the international relations of Morocco’. A common opinion is that the
evidence supported the view that the relation was one of subordination and not agency.
International responsibility may be said to be a necessary correlative or criterion of
independence, but this must be qualified when a case of international representation arises
and the ‘protecting’ state is the only available defendant.
 Federations – the federal state as such ahs indisputable legal personality and it is the
status of the constituent states which creates problems. A federal constitution may
confer treaty-making capacity and a power to enter into separate diplomatic relations
on the constituent members. Normally, the constituent state is simply acting as a
delegate or agent of the parent state. But, by agreement or recognition, a federated
state may assume a separate personality, as an analogue of statehood, on the
international plane. Thus, the Ukranian SSR and Belorussian SSR, as members of the
former Union of Soviet Socialist Republics, concluded treaties on their own behalf and
were members of the UN.
 Associations of states – independent states may enter into forms of cooperation by
consent and on an equal basis. The basis for the cooperation may be the constitution
of an international organization, such as the UN or the WHO. But, by treaty or custom
other structures for maintaining cooperation may be treated. One such structure, the
confederation, has in practice either disintegrated or been transformed into a
federation (British Commonwealth of Nations and the French Community).
Membership of these 2 associations would not necessarily affect the primary legal
capacities and personality of member states any more than membership of an
organization and has les effect than membership of some organizations, for example,
the European Community, which has a slight federal element, albeit on a treaty basis.
But the French Community accommodated a variety of relations, some more intimate
than others.
(e) A degree of permanence – time is an element of statehood, as is space. But
permanence is not necessary to the existence of a state as a legal order, and a state which
has only a very brief life may nevertheless leave an agenda of consequential legal
questions on its extinction.
(f) Willingness to observe international law – the delictual and other responsibilities of
states are consequences of statehood, and lo9gically it is inexcusable to express as a
8
criterion of statehood a condition which the entity has a capacity to accept only if it is a
state.
(g) A certain degree of civilization – Hyde states 4 qualifications for statehood (first four
above) but adds a 5th: ‘the inhabitants must have attained a degree of civilization, such as
to enable them to observe…those principles of law which are deemed to govern the
members of the international society in their relations with each other’. This is usually
omitted and is redolent of the period when non-European states were not accorded equal
treatment by the European Concert and the US. In modern law, it is impossible to regard a
tribal society which refuses to conduct diplomatic relations with other societies as res
nullius.
(h) Sovereignty – or synonymously, independence. A common source of confusion is that
‘sovereignty’ may be used to describe the condition where a state has not exercised its
own legal capacities in such a way as to create rights, powers, privileges and immunities in
respect of other states. Then, a state which has consented to another state managing its
foreign relations, or which has granted extensive extra-territorial rights to another state, is
not ‘sovereign’. If this or a similar content is given to sovereignty’ and the same ideogram
is used as a criterion of statehood and then the incidents of statehood and legal personality
are confused with their existence. Thus, Germany’s condition after 1945 involved
considerable diminution of its sovereignty in his sense but Germany continued to exist as a
state. Such considerations led some jurists to reject sovereignty as a criterion.
Alternative approach: ICJ in US Nationals in Morocco: judgment that Morocco is a
“sovereign state’, (retained its basic personality in spite of the French protectorate. But it Is
possible that a tribunal hold that a state that granted away piecemeal a high proportion of
its legal powers had ceased to have a separate existence as a consequence.
(i) Function as a state – experience has shown that entities may exist which are difficult to
regard as states in the political sense. The treaty of peace with Germany in 1919 created
the Free City of Danzig , which had the legal marks of statehood in spite of the fact that it
was placed under the guarantee of the League of Nations and Poland had the power to
conduct its foreign affairs. The peace treaty with Italy in 1947 provided for the creation of
the Free Territory of Trieste, which was to be placed under the protection of the Security
Council. This type of legal personality is a cogneger of statehood and it is the specialized
political function of such entities and their relation to an organization, which inhibits use of
the category of statehood.
3. States in Statu Nascendi
A political community with considerable viability, controlling a certain area of territory and
having statehood as its objective, nay go through a period of travail before that objective
has been achieved. Since matters such as definition of frontiers and effective government
are not looked at too strictly, the distinction between status nascendi and statehood cannot
be very strictly upheld. States may first appear as independent belligerent entities under a
political authority which may be called and function effectively as a provisional government.
Once statehood is firmly established, it is justifiable, both legally and practically, to assume
the retroactive validation of the legal order during a period prior to general recognition as a
state, when some degree of effective government existed. The principle of effectiveness
dictates acceptance of continuity before and after statehood is firmly established
(evidenced by legal consequences accorded by governments and foreign courts to the
acts of governments recognized de facto).
4. Illegal Occupation and the Influence of Jus Cogens
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Remember: state is still independent (with separate personality), if a foreign legal order
impinges on it if such is under a title of international law. Illegal occupation cannot of itself
terminates statehood (belligerent occupation does not affect statehood; governments-in-
exile are not states without people or territory when the displacement is caused by a
belligerent occupation; puppet states like Slovakia and Croatia set up due to illegal threat
or use of force in 1939 and 1911, received re4cognition from very few states). When
elements of certain strong norms (the jus cogens) are involved, it is less likely that
recognition and acquiescence will offset the original illegality. An aspect of jus cogens, the
principle of self-determination, may justify the granting of a higher status to some types of
belligerent entities and exile governments than would otherwise be the case.
5. Necessary Legal Constructions
Political circumstances may lead to legal constructions which at first sight are excessively
formalistic. A state’s legal order may be projected on the plane of time for certain purposes
although its physical and political existence has ceased. Example: Germany since 1945:
subject to powers under the Berlin Declaration and the unconditional surrender, 2 German
states existed. The German Federal Republic (GFR) rested on a constitution of 1949 and
certain agreements. The German Democratic Republic (GDR) rested on a constitution of
1949 and an agreement with the USSR (added complication: GFR claims to be successor
to all German territory within the frontiers of 1937). In the Moscow Treaty of 1990, it was
provided that the newly united Germany (including the former GDR and Berlin) was
henceforth no longer subject to the quadripartite agreements of the former occupying
powers. This was, Germany that surrendered in 1945 was would up. In the South West
Africa cases (1962), Judges Spender and Fitzmaurice dissented, saying that the principal
Allied and associated powers of WWI might retain a residual or reversionary interest in the
ex-German territories placed under mandate. The 5 principal powers were the US, British
Empire, France, Italy and Japan, and, while they still exist as legal persons, their special
capacity as principal Allied powers in 1919 may be projected on the plane of time.
6. Membership of International Organizations and Agencies
Such membership depends on the contractual terms by the founding states. But,
accession to membership may not be on the basis of right, by acceptance of a standing
offer. Usually, a leading organ of the institution will alone have the competence to decide
on qualifications for membership, and in practice political criteria may supplement the legal
conditions laid down in a constituent instrument. These conditions will normally specify or
assume the existence of statehood and may then refer to additional qualities.
Art. 4, UN Charter provides that membership ‘is open to all peace-loving States which
accept the obligations contained in the present Charter and, in the judgment of the
Organization, are able and willing to carry out these obligations’. Admission to membership
is to be by decision of the GA upon the recommendation of the Security Council.
7. Identity and Continuity of States
‘Continuity’ is not precise. It may introduce the proposition that the legal rights and
responsibility of states are not affected by changes in the head of state or the internal form
of government. This can be used without reference to ‘continuity’ or ‘succession’, and is too
general, since political changes may result in a change of circumstances sufficient to affect
particular types of treaty relation.
Legal doctrine distinguishes between continuity (and identity) and state succession, which
arises when one international personality takes the place of another (Ex. by union or lawful
annexation). Generally, it is assumed that cases of ‘state succession’ are likely to improve
9
important changes in the legal status and rights of the entities concerned, whereas if there
is continuity, the legal personality and the particular rights and duties of the state remain
unaltered. Attempting to make such neat distinctions confuses by masking the variations of
circumstance and the legal problems that may arise. Both concepts are levels of
abstraction unfitted to dealing with specific issues. Thus, the view that Italy was formed not
by union of other states with Sardinia, but by annexation to Sardinia, has the corollary that
this was a case of continuity and not, WRT Sardinia, a state succession. But would the
difference in political procedure make a great legal difference?
Also, political and legal experience provide several examples of situations in which there is
‘continuity’, but the precise circumstances, and the relevant principles of law and good
policy, dictate solutions which are only partly conditioned by the element of ‘continuity’.
Legal techniques may entail relying on continuity in one context but denying its existence
in another. So, the political and legal transformation involved in destroying the Austro-
Hungarian monarchy and establishing a new political settlement in central and south-east
Europe produced Austria, the Serb-Croat-Slovene state, and Czechoslovakia, which rested
on new political and legal orders. But for certain purposes, principles of continuity with
previous political entities were applied by state practice in these cases.
The functional approach in cases arising from unlawful use of force:
 Ethiopia was conquered and annexed by Italy in 1936. Many states gave de jure or de
facto recognition to Italian control, but Ethiopia remained formally a member of the
League of Nations. After the outbreak of WWII, the UK and other states treated
Ethiopia, after liberation in 1941, as independent and co-belligerent.
 Czechoslovakia was placed under German control in March 1939 as a result of the
use and threat of force. De jure recognition was generally withheld, and by 1941, an
exile government was accepted by the Allies as a co-belligerent.
 Albania was placed under Italian occupation in 1939 and was liberated in 1944.
 More difficult, since the community welcomed absorption, was Austrian Anschluss in
1938. Many states regarded this as illegal and Austria was not seen as responsible for
her part in Axis aggression.
In all these cases, foreign control can be ignored since its source was illegal: ex injuria non
oritur jus. The occupations in fact and form went beyond belligerent occupation, since
there was either absorption outright or the setting up of puppet regimes, the control lasted
for some time, insistence on continuity is theoretical; what occurred on liberation was
restoration, reestablishment of the former state. This is qualified continuity.
In Austria after 1945 state practice, including that of Austria, has supported the position
that Austria is bound by pre-1938 treaties to which she was a party. Germany has been
held responsible by the Allies for the payment of the bonded external debt of Austria for the
period 1939-45; Austrian courts have not accepted succession in the public foreign debt
from this period except where the principle of unjust enrichment required a different
approach. Austria has accepted responsibility for the pre-Anschluss external debt.
Nationality problems affecting Austria and Czechoslovakia show very clearly the need to
approach issues free from the tyranny of concepts. After 1945, the government of these 2
states did not revoke the nationality law of the usurping German administration
retroactively. The law of the GFR allowed those who became German as a result if the
Anschluss to maintain German nationality if since 1945 they had permanently resided on
German territory (frontiers of 1937).
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The political developments in Eastern Europe in 1990 to 1992 produced some legal
junctures involving the distinction between cases of succession, involving the ‘core State’[
as a successor to the previous federal union, and cases of dissolution, involving no State
succession on the part of the ‘core State’. Thus British practice accepted that the Russian
Federation was the successor to the former Soviet Union. Paradoxically, perhaps, the
surviving Federal Republic of Yugoslavia was not accepted as the continuation of the old
Yugoslavia. In some cases, where the basis for continuity is tenuous, estoppel, special
arrangement, and principles of validation and effectiveness may provide elements of legal
continuity. Lastly, the operation of the principle of self-determination as a part of the jus
cogens may support a doctrine of reversion; Ex. rights of way by a colonial power may not
be opposable to the state which, in replacing the colonial power, is recovering an
independence which it formerly had.
8. Micro-States (diminutive; mini-states)
Membership of the UN is not expressed to be conditioned by the size (most common
indicator used is population, as opposed to geographical area, gross national product,
etc.). But, Article 4 of the UN Charter makes an ability to carry out the obligations
contained in the Charter a requirement of admission to membership and San Marino,
Monaco and Liechtenstein (among others) have not applied for membership. Still, however
small geographically or modest in resources, an entity is a ‘state’ for general purposes of
international law provided the criteria of statehood are satisfied (very small polities have
become parties to the Statute of the ICJ).
Since its early days, small nations have been members of the UN. Costa Rica,
Luxembourg, Iceland, Maldive Islands, Bhutan, Comoros, Cape Verde, Samoa, Grenada,
Sao Tomé and Principe are examples (never applied: Western Samoa, Nauru). Recently,
increase in total membership and the modest size of some applicants for admission has
caused UN organs to consider the possibility of establishing some form of associate
membership of the UN. Such regime might involve ineligibility for seats on the SC, the right
to participate in GA proceedings without a vote, favorable terms for contributions to
expenses of the UN and access to the resources of specialized agencies like the WHO.
Many problems are faced, including establishing criteria for ordinary membership.
Ch. V. Recognition of States and Governments
I. Recognition as a General Category
Whenever a state acts in a way which may or does affect the legal rights or political
interests of other states, the question is the legal significance of the reaction of other states
to the event. In the Eastern Greenland case (‘The better view is that the facts disclosed an
agreement rather than an estoppel’), it was held that Norway had, as a consequence of the
declaration of her Foreign Minister, accepted Danish title to the disputed territory. The
acceptance by Norway of Denmark’s claim was by informal agreement: in many instances
formal treaty provisions will involve recognition of rights. But, apart from agreement, legally
significant reaction may occur in the form of unilateral acts or conduct, involving estoppel,
recognition, or acquiescence. Frequently, acts of states which are not within their legal
competence will be protested by other states. Illegal acts are not in principle opposable to
other states in any case, and protest is not a condition of the illegality. Conversely, a valid
claim to territory is not conditioned as to its validity by the acceptance of the claim by the
defending state. However, acts of protest and recognition play a subsidiary, but, in practice,
not insubstantial role in the resolution of disputes. Protest and recognition by other states
may be good evidence of the state of the law on the issues involved. Also, there is a
spectrum of issues involving areas of uncertainty in the law, novel and potentially law-
changing claims (development of claims to resources of the continental shelf), and actually
10
illegal activity (apart from issues involving fundamental principles, jus cogens), within
which issues are most sensibly settled on an ad hoc and bilateral basis; indeed, cases
concerned with relatively well-settled areas of law are often decided on the basis of facts,
including elements of acquiescence, establishing a special content of obligation between
the parties, and this is quite apart from treaty. And, protest and recognition may be pure
acts of policy not purporting to be legal characterizations of acts of other states, and,
whether having this purport or not, the protest or recognition, if unfounded in law and
backed by state activity, may be simply a declaration of intent to commit a delict or,
otherwise, to act ultra vires.
2. States and Governments in Relation to Recognition
In international relations, it is the recognition of states, government s, belligerency and
insurgency which ahs been the most prominent aspect of the general category, and legal
writing has adopted the emphasis and terminology of political relations. The dominance of
the category of ‘recognition’ has led to some perverse doctrine. Ex: when a state is in
dispute over legal title to territory, a legal forum will examine all the legally significant
conduct and declarations of either party. One party’s declaration that id does not
‘recognize’ the other’s title will hardly determine the issue, and may be worth very little if it
is simply a declaration of political interest and antagonism. Again, a statement registering
the fact that at a certain date the opponent was in actual occupation will be a part of the
evidence in the case, but only within the context of the particular case will the statement
have a specific legal significance. But, when the existence of states and government s is in
issue, a proper legal perspective seems to be elusive.
Doctrinal dispute between the declaratory and constitutivist views on recognition of states
and governments:
Declaratory view: legal effects of recognition are limited, since it is a mere declaration or
acknowledgment of an existing state of law and fact, legal personality having been
conferred previously by operation of law. Hall: “States being the persons governed by
international law, communities are subjected to law…from the moment, and from the
moment only, at which they acquire the marks of a State.” Thus, in a relatively objective
forum, such as an international tribunal, it would be entirely proper to accept the existence
of a state although the other party to the dispute, or third states, did not recognize it.
The award in the Tinoco Concessions arbitration adopted this approach: Great Britain was
allowed to bring a claim on the basis of concessions granted by the former revolutionary
government of Costa Rica which had not been recognized by some other states, including
Great Britain. The arbitrator Taft noted: “The non-recognition by other nations of a
government claiming to be a national personality, is usually appropriate evidence that it
has not attained the independence and control entitling it by international law to be classed
as such. But when recognition vel non of a government is by such nations determined by
inquiry, not into its de facto sovereignty and complete government al control, but into its
illegitimacy or irregularity or origin, their non-recognition of the US in its bearing upon the
existence of a de facto government under Tinoco for 30 months is probably in a measure
true of the non-recognition by her Allies in the European War. Such non-recognition for any
reason, however, cannot outweigh the evidence disclosed by this record before me as to
the de facto character of Tinoco’s government, according to the standard set by
international law.
This reasoning also applies to recognition of states. There is also a substantial state
practice behind the declaratory view. Unrecognized states are quite commonly the object
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of international claims, charges of aggression, and other breaches of the UN Charter, by
the very states refusing recognition (Arab charges v. Israel; US charges v. North Vietnam).
Constitutive view – the political act of recognition is a precondition of t\he existence of legal
rights: in its extreme form this is to say that the very personality of a state depends on the
political decision of other states (this view may allow certain rights prior to recognition). The
result is as a matter of principle impossible to accept clearly established that states cannot
by their independence judgment establish any competence of other states which is
established by international law and does not depend on agreement or concession.
Brierly comments: the present state of the law makes it possible that different states should
act on different views of the application of the law to the same state of facts. This does not
mean that their differing interpretations are all equally correct, but only that there exists at
present no procedure for determining which are correct and which are not. The constitutive
theory of recognition gains most of its plausibility from the lack of centralized institutions in
the system, and it treats this lack not as an accident due to the stage of development
which the law has so far reached, but as an essential feature of the system.
Difficulties: adherents may feel a need to rationalize the position of the unrecognized state
and so may adopt near-declaratory views. WRT to recognition—How many states must
recognize? Can existence be relative be relative only to those states which do recognize?
Is existence dependent on recognition only when this rests on an adequate knowledge of
the facts? Cogent arguments of principle and the preponderance of state practice thus
dictate a preference for declaratory doctrine, yet to reduce, or seem to reduce, the issues
to a choice between the 2 opposing theories is to greatly oversimplify the legal situation.
3. The Varied Legal Consequences of Acts of Recognition and Policies of Non-recognition
There is no uniform type of recognition or non-recognition. Terminology of official
communications and declarations is not very consistent: there may be ‘de jure recognition’,
‘de facto recognition’, ‘full diplomatic recognition’, ‘formal recognition’ , etc. the term
‘recognition’ may be absent, and thus recognition may take the form of an agreement, or
declaration of intent, to establish diplomatic relations., or a congratulatory message on
attainment of independence.
The typical act of recognition has 2 legal functions:
1. Determination of statehood, a question of law: such individual determination may
have evidential (recognition is rarely ‘cognitive’) effect before a tribunal.
2. The act is a condition of the establishment of formal, optional and bilateral
relations, including diplomatic relations and the conclusion of treaties.
This 2nd function has been described as constitutivist, although here, it is not a condition of
statehood. Since states cannot be required by the law (apart from treaty) actually to make
a public declaration of recognition, and since they are obviously not required to undertake
optional relations, the expression of state ‘will’ involved is political in the sense of being
voluntary. It is also more obviously political in that an absence of recognition may not rest
on any legal basis at all, there being no attempt to pass on the legal question of statehood
as such. Non-recognition may be a part of a general policy of disapproval and boycott, of a
policy of aggression and the creation of puppet states (legal consequences will stem from
the breaches of international law involved). The use of the term ‘recognition’ does not
absolve the lawyer from inquiring into the intent of the government concerned and then
placing this in the context of all the relevant facts and rules of law.
11
4. Is there a Duty of Recognition?
Lauterpacht and Guggenheim: recognition is constitutive, but there is no legal duty to
recognize. This has been criticized as bearing no relation to state practice and for its
inconsistency, since it comes close to a declaratory view. In principle, legal duty can only
be valid if it is in respect of an entity already bearing the marks of statehood and it is owed
to the entity concerned. This postulates personality on an objective basis.
Confusion: recognition, as a public act of state, is an optional and political act, and no legal
duty. But, in a deeper sense, if any entity bears the marks of statehood, other states risk
themselves legally if they ignore the basic obligations of state relations. Israel’s Arab
neighbors can hardly afford to treat her as a non-entity: the responsible UN organs and
individual states have taken the view that Israel is protected, and bound, by the principles
of the UN Charter governing the use of force. In this context of state conduct, there is a
duty to accept and apply certain fundamental rules of international law: legal duty to
‘recognize’ for certain purposes, but no duty to make an express, public and political
determination of the question or to declare readiness to enter into diplomatic relations by
means of recognition (remains political and discretionary). Even recognition is not
determinant of diplomatic relations and absence of the latter is not in itself non-recognition
of the state.
5. Recognition of Governments
Many of these considerations apply equally to recognition of states and governments. The
existence of an effective and independent government is the essence of statehood, and
recognition of states may take the form of recognition of governments. In 1919, the British
Foreign Office declared that the British Government recognized the Estonian National
Council as a de facto independent body with the capacity to set up a prize court.
Everything depends on the intention of the recognizing government and relevant
circumstances. Although recognition of government and state may be closely related, they
are not necessarily identical. Non-recognition of a regime is not necessarily a
determination that the state represented by that regime does not qualify for statehood.
Non-recognition of a government may have 2 legal facets:
1. that it is not a government in terms of independence and effectiveness (facet
necessarily affecting statehood); or
2. that the non-recognizing state is unwilling to have normal relations with the state
concerned.
Non-recognition of government s seems more ‘political’ than that of states because
unwillingness to enter into normal relations is more often expressed by non-recognition of
the government’s organs. Recognition in voluntary relations may be made conditional on
the democratic character of the regime, the acceptance of particular claims, or the giving of
undertakings (Ex. treatment of minorities). Optional relations and voluntary obligations is a
sphere of discretion and bargain. In bilateral voluntary relations, an unrecognized
government is no better off than an unrecognized state (some support the automatic
recognition of de facto governments, exemplified by the ‘Estrada doctrine’ enunciated by
the Mexican Secretary of Foreign Relations in 1930. but recognition cannot be made
automatic when competing governments appear or when there is an attempted secession
and issues of government and statehood are linked).
6. DeJure and De Facto Recognition
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Be wary of distinctions between these concepts since, as said, everything depends on the
government’s intention and the general context of fact and law. It is unlikely that epithets
refer to internal constitutionality.
Internationally, a statement that a government is recognized as the ‘de facto government’
of a state may involve a purely political judgment, either a reluctant or cautious acceptance
of an effective government, lawfully established per international law and not imposed from
without, or an unwarranted acceptance of an unqualified agency. But a statement may be
intended to be or to include a legal determination of the existence of an effective
government, but with reservations as to its permanence and viability. Legal and political
bases for caution may coincide. The distinction between ‘de jure/de facto recognition’ and
‘recognition as the de jure/de facto government’ is insubstantial, especially as the question
is one of intention and the legal consequences thereof in the case. If there is a distinction,
it does not seem to matter legally. The legal and political elements of caution in the epithet
de facto in either context are rarely regarded as significant and both national and
international courts accord the same strength to de facto recognition as evidence of an
effective government as they do de jure recognition.
The distinction is only in the political context of recognition of governments. It is sometimes
said that de jure recognition is irrevocable while de facto recognition can be withdrawn.
Politically, either may be withdrawn; legally, it cannot be unless a change in circumstances
warrants it. if a statement involving a legal determination of effectiveness is made,
withdrawal as apolitical gesture is embarrassing but no more so than withholding of
recognition on political grounds.
There are cases of serious legal distinction between de facto and de jure recognition.
Some governments accepted legal consequences of German control of Austria, 1938-45,
and Czechoslovakia, 1939-45, WRT nationality law and consular agents. But some did not
accept the legality or the origin of the factual control of Germany.
‘De facto recognition’ may describe acceptance of facts with a dubious legal origin: de jure
recognition would be inappropriate and legally unjustifiable (British de jure recognition in
1938 of the Italian conquest of Ethiopia in 1936 was later avoided). It would be less
hazardous to accept full legal competence of an administration accorded only ‘de facto
recognition’.
Bank of Ethiopia v. National Bank of Egypt and Liguori (1937): Court gave effect to an
Italian decree in Abyssinia on the basis that the UK had recognized Italy as the de facto
government. But Italy was only a belligerent occupant. Also, where rival governments are
accorded de jure and de facto recognition in respect of the same territory, problems arise if
the same legal consequences are given to both types of recognition.
7. Retroactivity
This principle has been applied by British and American courts in following or interpreting
the executive’s views WRT recognition but Oppenheim describes the rule as ‘one of
convenience rather than of principle’. No generalization but to say that on the international
plane there is no rule of retroactivity. When a state makes a late appearance of the
existence of a state, then, in the field of basic rights and duties of existence, this
recognition ex hypothesi cannot be ‘retroactive’ because in a special sense it is
superfluous. In optional relations and voluntary obligations, it may or may not be, since the
sphere is one of discretion.
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8. Implied Recognition
Recognition is a matter of intention; may be express or implied.
Implication of intention is a process aided by certain customary rules or, perhaps,
presumptions.
Lauterpacht concludes: in recognition of states, only the conclusion of a bilateral treaty
which regulates comprehensively the relations between 2 states, the formal initiation of
diplomatic relations, and probably, the issue of consular exequaturs, justify the implication.
State practice shows that no recognition is implied from various forms of negotiation, the
establishment of unofficial representation, the conclusion of a multilateral treaty to which
the unrecognized entity is also a party, admission to an international organization (in
respect to those opposing admission), or presence at an international conference in which
the unrecognized entity participates.
2 sources of confusion:
1. Terminology of governmental statements may create confusion and lead tribunals to
give high legal status to acts intended only to give a low level of recognition (Ex. an
authority with which only informal and limited contacts have been undertaken may be
accorded sovereign immunity by national courts)
2. Different considerations ought to apply to different legal aspects of recognition, yet
doctrine tends to generalize about the subject. In terms of evidence in an objective forum
like an international tribunal, informal relations, without intent to recognize in the political
sense, especially if these persist, have probative value on the issue of statehood (but not
incidental relations like attendance at an international conference not primarily concerned
with relations between the unrecognized state and non-recognizing state).
But, as a matter of optional bilateral relations and readiness to undertake normal relations,
recognition depends precisely on intention. Ex. UK did not accord formal recognition of the
statehood of Namibia but it was implicit in the establishment of diplomatic relations in
March 1990.
9. Collective Recognition: Membership of Organizations
Collective recognition may take the form of a joint declaration by a group of states (Allied
Supreme Council after WWI) or of permitting a new state to become a party to a
multilateral treaty of a political character, like a peace treaty. The functioning of
international organizations of the type of the League of Nations and the UN provides a
variety of occasions for recognition of states.
Recognition by individual members of other members, or of non-members, may occur in
the course of voting on admission to membership and consideration of complaints
involving threats to or breaches of the peace. It has been argued that admission to the
League and UN entailed recognition by operation of law by all other members WON they
voted against admission—this is supported by principle and state practice—admission to
membership is prima facie evidence of statehood, and non-recognizing members are at
risk if they ignore the basic rights of existence of another state the object of their non-
recognition. Ex. UN organs have consistently acted on the assumption that Israel is
protected by the principles of the Charter on the use of force vis-à-vis her Arab neighbors.
But there is probably nothing in the Charter or customary law apart from the Charter, which
requires a non-recognizing state to give ‘political’ recognition and to enter into optional
bilateral relations with a fellow member. The test of statehood in general international law
is not necessarily applicable to the issue of membership in the specialized agencies of the
UN. Can the Organization and its organs (including Secretariat), as such, accord
recognition? For the purposes of the Charter, numerous determinations of statehood are
called for: UN Secretary-General acts as depositary for important treaties—such
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determinations are binding within the particular constitutional and functional context of the
Charter. Whether and to what extent such determinations provide evidence of statehood
for general purposes must depend on the relevance to general international law of the
criteria in a given case (UN and the process of political creation of some states: Indonesia,
Israel, Libya, Republic of Korea or South Korea, the Somali Republic and Namibia).
Attitudes of non-recognition may depend on the political prejudices of individual members
and the view that in any case the special qualifications for membership contained in Art. 4
are not fulfilled: statehood may be necessary but is not sufficient.
Approval of the credentials of state representatives by UN organs raises similar problems
with those concerning admission, since in practice the formal requirements for approving
credentials have been linked with a challenge to the representation of a state by a
particular government.
10. Non-recognition and Sanctions
A commonly seen form of collective non-recognition is the resolution or decision of League
or UN organ, based on a determination that an illegal act has occurred.
There is a duty of states parties to a system of collective security or other multilateral
conventions not to support or condone acts or situations contrary to the treaty concerned
(Stimson Doctrine of 1932 on non-recognition of illegal changes brought about by the use
of force contrary to the Kellogg-Briand Pact).
In some contexts, this duty will be express, and a duty of non-recognition may be
associated with measures recommended or commanded by a UN organ as a form of
sanction or enforcement against a wrongdoer. The Security Council resolutions of 1965
and 1966 characterized the Smith regime in Rhodesia as unlawful in terms of the Charter
and called upon all states not to recognize the illegal regime. Similar issues arise in
relation to the situation in Namibia (formerly South West Africa) following the termination of
the Mandate (1971) and in relation to the status of the Turkish-occupied area of Cyprus
after the Turkish invasion of 1974.
11. Issues of Recognition before National Courts
Where, as in British and American courts, local courts are willing or are, as a matter of
public law, obliged to follow the executive’s advice, the unrecognized state or government:
1. cannot claim immunity from the jurisdiction;
2. cannot obtain recognition for purposes of conflict of laws of its legislative and
judicial acts
3. cannot sue in local courts as plaintiff.
Attitudes to questions of recognition adopted by municipal courts may thus reflect the
policies of a particular state, and quite apart from this, the issue of recognition appears in
relation to the special problems of private international law (conflict of laws). Great caution
is needed in using municipal cases to establish propositions about recognition in general
international law. In particular, because of the constitutional position of the British and
American courts in matters concerning foreign relations, it is unjustifiable to regard the
cases as evidence supporting the constitutivist position.
a. Luther v. Sagor (1921): Plaintiffs were a company incorporated in the Russian Empire in
1898 and, it was held, retained Russian nationality at time of action. Its factory and stock of
manufactured wood were confiscated in June 1918 by Soviet authorities. In Aug. 1920,
defendants bought plywood boards from the Soviets and imported them into England.
Plaintiffs claimed a declaration of ownership, an injunction against the defendants and
damages for conversion and retention of goods. Defendants said that the seizure and sale
were acts of a sovereign state and had validly transferred the property to them. Lower
court held against defendants. Then, Letters of the Foreign Office of April 1921 said that
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the British government recognized the Soviet government as the ‘de facto Government of
Russia’, and that the former Provisional Government, recognized by the British
government, ad been dispersed on 13 Dec. 1917. Court of Appeal reversed: for the
present purpose no distinction was to be drawn between de facto and de jure recognition.
Bankes, LJ said: The Government of this country having…recognized the Soviet
Government as the Government really in possession of the powers of sovereignty in
Russia, the acts of that Government must be treated by the courts of this country with all
the respect due to the acts of a duly recognized foreign sovereign State’. He looked at the
evidence, including the Foreign Office information, and concluded that Soviet power dated
from the end of 1917.
Warrington, LJ said: “Assuming that the acts in question are those of the government
subsequently recognized I should have thought that in principle recognition would be
retroactive at any rate to such date as our Government accept as that by which the
government in question in fact established its authority.”
b. Haile Selassie v. Cable and Wireless Ltd. (No.2) [1939]: on May 9, 1936, Italy
proclaimed the annexation of Ethiopia following a war of conquest. Before this, plaintiff
through an agent contracted with the defendants, and in 1937, he commenced
proceedings for recovery under the contract.
Bennett, J: at first instance, held for plaintiff who was still recognized as de jure sovereign
of Ethiopia by UK, had not been divested of the right to sue for the debt even if the British
government recognized the Italian government ‘as the Government de facto of virtually the
whole of Ethiopia’. Defendants relied on Luther v. Sagor to establish the exclusive power to
the de facto government. Bennett distinguished that decision, confining it to acts of the de
jure government in relation to persons or property in the territory which it is recognized as
governing in fact. Present case involved a debt, a chose in action, recoverable in England.
Pending appeal, British government recognized the King of Italy as de jure Emperor of
Ethiopia and it was not disputed that this related back to the date when recognition of the
King as de facto sovereign occurred in Dec. 1936. Thus, when action was commenced, the
debt, as part of the public property of the state of Albania, vested in the King and appeal
was allowed (principle of retroactivity operated in a particular context, that of state
succession in the matter of public debts).
c. The Arantzazu Mendi (1938): during the Spanish civil war between Franco’s Nationalists
and the Republican Government (overthrown in 1939), the Spanish vessel Arantzazu
Mendi registered at Bilbao was requisitioned by the Nationalists in northern Spain. Her
master and the managing director agreed to hold the vessel, which was in the London
docks under arrest by the Admiralty Marshal, at the Nationalists’ disposal. The Government
issued the writ, claiming possession of the ship adjudged to them. The Nationalists moved
to set aside since it impleaded a foreign sovereign state. CFI directed inquiry of the
Foreign Office as to the status of the Nationalists. The British Government replied that it
recognized the Spanish Republic as the only de jure Government of Spain or any part of it;
that the Nationalist Government exercises de facto administrative control over the larger
portion of Spain…it is not subordinate to any Government in Spain…that the question of
recognition as a foreign Sovereign State appears to be a question of law…
The House of Lords said the Letter established that at the date of the writ, the Nationalist
Government was a foreign sovereign state and could not be impleaded.
Lord Atkin: By ‘exercising de facto administrative control’ or ‘exercising effective
administrative control’, I understand exercising all the functions of a sovereign
government…There is ample authority for the proposition that there is no difference for the
present purposes between a recognition of a State de facto as opposed to de jure. All the
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reasons for immunity which are the basis of the doctrine in international law as
incorporated into our law exists.
The case has curious features: their lordships regarded the Letter as conclusive as ‘a
statement of fact’. Yet they interpreted and accepted it as conclusive on issues of law. At
this time, the Government had not ‘recognized’ the Franco authorities as de facto
government. Nor was the Letter intended to be conclusive as its terms indicate. In earlier
cases, recognition de facto occurred as a public political act and WRT a government of the
state as a whole. In view of the still effective competition of the de jure government within
the state, the Letter did not necessarily accord equality to the governments. To equate a
government in partial control of the territory with the state itself is odd (it might be an
assumption that the executive intended to act in breach of international law by giving such
a measure of recognition to belligerents or insurgents).
2 other aspects showing Atkin’s speech’s more pragmatic basis:
1. he seems to say that the rationale of sovereign immunity was in any case applicable on
the facts: controversial in international law but not absurd since a belligerent entity may
become a de jure government;
2. attractive principle of inadmissibility: “The non-belligerent state which recognizes 2
Governments, one de jure and one de facto, will not allow them to transfer their quarrels to
the jurisdiction of its municipal courts”. This obviates the dubious acceptance of belligerent
entities engaged in civil war as sovereign states for purposes of immunity from the
jurisdiction.
d. Gdynia Ameryka Linie v. Boguslawski (1953): on June 28, 1945, Government of
National Unity became de facto government of Poland, and at midnight, 5-6 July 1945, the
British government accorded de jure recognition to this government.before, the exile Polish
government in London had be recognized de jure by UK. Issue: whether the de jure
recognition of July 5-6 had retroactive effect on the validity of acts by the British
government in respect of the Polish merchant marine and personnel under its control. The
Foreign Office certificate said that the question of retroactive effect of recognition was a
question of law for the courts. But the House of Lords, except Lord Reid, regarded the
case as one of construction of the certificate. The conclusion was that it was not retroactive
outside the effective control of the Polish government in Warsaw, and the operative date
was July 5-6. Reid and others accepted retroactivity as a general principle but apart from
construction of the certificate, some considered that it should be confined in the sphere of
de facto control. This runs contrary to normal rules over continuity of governments in
respects of acts affecting nationals: note jurisdiction on the plane of time. The decision fails
to give a solution when the metropolitan government purports to nullify acts of the exile
government, none taken by the Warsaw government.
e. Civil Air Transport Inc. v. Central Air Transport Corp. (1953): the aircraft fell under the
control of Central People’s Government of China due to an action within Hong Kong of pro-
Communist employees of the CATC. Thus de jure recognition would preclude any other
title. But the Judicial Committee held that retroactivity does not invalidate unlawful acts
under local law, and taking of possession by employees was contrary to an ordinance
issued by Hong Kong authorities. This leaves questions in international plane subject to a
local law to the application of the principles of the principles of continuity and succession of
states. As in Boguslawski, de jure recognized government was not permitted to regulate
the fate of national assets by legislation not contrary to international law.
f. Carl Zeiss Stiftung v. Rayner and Keeler, Ltd (No.2) [1967]: issue: validity of title to
property based upon legislative and administrative acts of the German Democratic
Republic (East Germany). Foreign Office certificate available stipulated that since the
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withdrawal of Allied forces from the zone allocated to the USSR in 1945 ‘Her Majesty’s
Government have recognized the State and government of the USSR as de jure entitled to
exercise governing authority in respect of that zone…and…have not recognized either de
jure or de facto any other authority purporting to exercise governing authority in or in
respect of the zone’. CA held that no effect could be given to the acts of the East German
legal system. The House of Lords allowed appeal: case should be approached in terms of
the conflict of laws and East Germany was a law district with a established legal system,
even though the sovereignty must be placed in the USSR (but Allied occupying Powers
only had limited rights in their respective zones: UK declarations on the status of East
German Government were not intended to imply that USSR had sovereignty over East
Germany). Lord Wilberforce’s obiter dictum: this was ‘an open question’, in English law,
whether courts must accept the doctrine of the absolute invalidity of all acts flowing from
unrecognized governments.
g. The Rhodesian cases: Judicial Committee decisions of the Privy Council concerning the
validity of detentions in Rhodesia after the usurpation of power by the Smith regime in
1965 (Madzimbamuto v. Lardner-Burke, 1967) and of the English courts as such
concerning the recognition of Rhodesian divorce decrees, raise substantially similar issues
of policy to these proceedings. But, for English courts, the major determinant was the
constitutional illegality of the regime. Even divorce decrees were refused recognition.
h. Gur Corp. v. Trust Bank of Africa Ltd. (1987): Ciskei territory is recognized by the UK
government and others, as subject to the sovereignty of South Africa. CA held that the
‘Republic of Ciskei’ had standing to sue (counterclaim for declaration of rights in
commercial case) and be sued in an English court on similar basis as in Carl Zeiss. Thus
the executive certificate produced, with a process of judicial inference, was held to justify
the view that the ‘Republic of Ciskei’ was an emanation of the Republic of South Africa as
a sovereign state and was acting by virtue of a delegation of legislative power from South
Africa.
12. British Policy on Recognition of Governments
New practice concerning recognition of governments by British Government, 1980
statement (by the Secretary of State, House of Lords):
“…we shall no longer accord recognition to Governments. The British Government
recognised States in accordance with common international doctrine.
Where an unconstitutional change of regime takes place in a recognised State,
Governments of other States must necessarily consider what dealings, if any, they should
have with the new regime, and whether and to what extent it qualifies to be treated as the
Government of the State concerned. Many of our partners and allies take the position that
they do not recognise Governments and that therefore no question of recognition arises in
such cases. By contrast, the policy of successive British Governments has been that we
should make and announce a decision formally ‘recognising’ the new Government.
This has been misunderstood and despite explanation to the contrary, our ‘recognition’
interpreted as implying approval. For example, where there might be legitimate public
concern about the violation of human rights by the new regime, or the manner in which it
achieved power, it has not sufficed to say that an announcement of ‘recognition’ is simply a
neutral formality.
There are practical advantages in following the policy of many other countries in not
according recognition to Governments. Like them, we shall continue to decide the nature of
our dealings with regimes which come to power unconstitutionally in the light of our
assessment of whether they are able of themselves to exercise effective control of the
territory of the State concerned, and seem likely to continue to do so.”
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This is an unfortunate change. Executive certificates, like in the Gur Corp. case may be
indecisive and reflect the premise that issues are unrelated to questions of general int’l law.
This is inappropriate where legitimacy of the regime raises the issue of validity in terms of
general int’l law (when it is a product of foreign intervention, or there are competing
administrations and internal validity is linked to int’l law issues). Even if facts are relevant,
they can only be assessed within appropriate legal framework—not helpful to lawyers and
courts.
Ch. VI. Territorial Sovereignty.
1. Concept of Territory.
4 types of regimes in law:
i. Territorial sovereignty (TS) – principally over land territory, territorial sea appurtenant to
the land, seabed and subsoil of the territorial sea. Territory includes islands, islets, rocks
and reefs.
ii. Territory not subject to sovereignty of any state/s – possesses status of its own.
iii. Res nullius – same subject matter legally susceptible to acquisition by states but not as
yet placed under territorial sovereignty.
iv. Res communis – the high seas, including exclusive economic zones and the outer
space, which is not capable of being placed under state sovereignty.
Per customary int’l law and dictates of convenience: airspace above an subsoil beneath
state territory, the res nullius, and the res communis are included in each category.
2. Sovereignty and Jurisdiction.
Physical and social manifestations of primary type of int’l legal person, the state:
i. Territory and appurtenances (airspace, sea);
ii. Government;
iii. Population within its frontiers
Competence of states WRT territory usually described in terms of:
i. Sovereignty – legal personality of a certain kind; normal complement of state
rights, the typical case of legal competence.
ii. Jurisdiction – particular aspects of the substance, especially rights (or claims),
liberties and powers (like immunities).
Criterion of consent is significant: State A has much forces in and has exclusive use of
much area in State B, but if B consents to this, the derogation from sovereignty does not
amount to acquisition of sovereignty by A.
3. Sovereignty and Ownership.
Legal competence of a state includes considerable liberties in respect of internal
organization and disposal of territory.
Imperium – general power of government, administration and disposition; capacity
recognized and delineated by int’l law.
Dominium – either in the form of public ownership of property within the state or of private
ownership recognized as such by the law.
4. Administration and Sovereignty.
Process of government over an area, with concomitant privileges and duties, may fall into
the hands of another state (Allies’ assumption of supreme powers over Germany after
WWII, but latter’s legal competence continued to exist). This is akin to legal representation
or agency of necessity—no transfer of sovereignty (belligerent occupation of enemy
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territory in wartime). Important features of sovereignty are the continued existence of a
legal personality and attribution of territory to that legal person, not to the current holders.
5. Sovereignty and Responsibility. The Ownership of Rights.
Confusion: sovereignty is also used as a reference to various types of rights, indefeasible
except by special grant, in the patrimony of a sovereign state (‘sovereign rights’ of coastal
states over resources of the continental shelf; prescriptive, historic right to fish in an area of
territorial sea of another state; prescriptive right of passage between territorial homeland
and enclave). Exercise of “owned” rights (sovereign) is not to be confused with TS.
6. Administration Divorced from State Sovereignty.
International organizations not only administer territory as legal representatives but may
also assume legal responsibility for territory in respect of which no state has TS (in 1966,
UN GA terminated Mandate of South West Africa). Difficulty: historical association of
concepts of ‘sovereignty’ and ‘title’ with the patrimony of states with definable sovereigns.
7. Territory the Sovereignty of which is Indeterminate.
Such that, a piece of territory not a res nullius has no determinate sovereign. This isn’t the
case where 2 states have conflicting legal claims to territory since a settlement of the
dispute has retroactive affect (winner deemed sovereign during the period of contention—
territory was the subject-matter of the claim, not the sovereignty).
Sovereignty may also be indeterminate in so far as the process of secession may not be
seen to be complete at any precise point in time.
Existing cases usually from renunciation of sovereignty by former holder and coming into
being of an interregnum with disposition postponed until a certain condition is fulfilled or
the states having power of disposition for various reasons omit to exercise a power or fail
to exercise it validly (Japan renounced its rights to Formosa via a peace treaty but there
was no transferee-British Gov’t acknowledged it of indeterminate sovereignty; British Gov’t
recognized Taiwan as a province of China).
8. Terminable and Reversionary Rights.
TS may be defeasible in some circumstances by operation of law [Ex. Fulfilment of
condition subsequent (Monaco: independent until there is no vacancy in the Crown) or
failure of condition under which sovereignty was transferred where there is an express or
implied condition that title reverts to grantor (mandatories of ex-German territories
nominated by Allied powers-they retain on a dormant basis a residual or reversionary
interest in the territories except when they have attained independence).
Reversionary interests depend on facts of the case; takes the form of a power of
disposition or of intervention or veto in any process of disposition.
Reversion – change of sovereignty
‘Residual sovereignty’ – TS has not lost status as such.
9. Residual Sovereignty.
Occupation of foreign territory in peacetime may occur on the basis of a treaty with the
territorial sovereign. Grantee may get considerable powers of administration amounting to
a delegation of the exercise of powers of the TS to the possessor for a particular period
(Art. 3, Treaty of Peace of 1951—US given right to exercise powers of administration,
legislation and jurisdiction over the territory, including territorial waters, and inhabitants of
the Ryukyu Islands. US said that Japan retained ‘residual (de jure) sovereignty’ while US
had de facto sovereignty. Restoration of full Japanese sovereignty was the subject of
bilateral agreements, 1968, 69, 70.
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Oppenheim calls this ‘nominal sovereignty’, has practical consequences: continuation of
right of disposition (Lighthouses in Crete and Samos, 1939: Turkey had sovereignty over
Crete and Samos in 1913, had power to grant or renew concessions WRT the islands.
Thus, Turkey was later able to cede to islands to Greece).
10. International Leases.
Each case depends on facts and terms of the grant. Presumption: grantor retains residual
sovereignty (Convention of 1898, China provisionally ceded to Germany for 99 years both
sides of the entrance to the Bay of Kiao-Chau. Art. 3 says China will abstain from exercise
of rights of sovereignty in the territory during the term of lease—it retains residual
sovereignty and grantee has no right to dispose the territory to a third state).
Difficulties over the nature of grantor’s interest are present in amenity providing ‘lease’ of
railway station or military, naval or air base. Rights conferred by treaty, executive
agreement or intergovernmental agreement are of more limited nature: grantor has right to
revoke the ‘contractual license’ and after reasonable time, force may be used to evict the
trespasser.
11. Use and Possession Granted in Perpetuity.
Residual sovereignty remaining with grantor: via Convention of 1903, Panama granted to
the US ‘in perpetuity the use, occupation and control of a zone of land and land under
water for the construction…and protection’ of the 10-mile wide Panama Canal.
But grantor might be seen to have renounced even the right of disposition, along with
rights of jurisdiction. A license can be terminated but not a grant in perpetuity. However,
grantee’s rights rests on agreement and would be defeated by a disposition of the residual
sovereignty to a third state in regard to which grant was re inter alios acta. The restriction
on disposition consists in an inability to grant similar rights to another state: RS remains
transferable and grantee has no power of disposition.
12. Demilitarized and Neutralized Territory.
Restriction on use of territory, accepted by treaty, do not affect TS as a title, even when
restriction is WRT national security and preparation for defence.
13. Concept of Territory: Principle of Effective Control Applied by National Courts.
In treaty or statute, ‘territory’ may connote jurisdiction. Courts are very ready to equate
‘territory’ with the actual and effective exercise of jurisdiction even when it is clear that the
state exercising jurisdiction has no been the beneficiary of any lawful and definitive act of
disposition. In Schtraks (1964), Israel sought extradition of appellant under an agreement
with UK that the Extradition Act of 1870 be subject to terms of Israel (Extradition) Order,
1960. Appellant applied for writ of habeas corpus since Jerusalem (site of crime) was not
‘territory’ per the agreement (UK didn’t recognize de jure sovereignty of Israel in
Jerusalem, only de facto authority). House of Lords said that the instruments were
concerned with territory in which territorial jurisdiction is exercised—whatever is under the
state’s effective jurisdiction.
This avoids a legal vacuum in territories, gives solutions without need for lengthy inquiry
into roots of title, or legal quality of a protectorate or trusteeship. It is also theoretically
sound to equate territory and jurisdiction: both refer to legal powers; when concentration of
such powers occurs, analogy with TS justifies use of ‘territory’ as shorthand.
14. Condominia
Condominium – when 2 or more states exercise sovereignty conjointly over a territory
(Great Britain and Egypt over Sudan between 1898 and 1956).
16
Theoretical consequences of this regime may be qualified by agreement. National
legislation and jurisdiction will not automatically extend to territory under condominium (it
has been said that riparian states have condominium over land-locked lakes and bays
bounded by territory of the states, by operation of law).
Doubtful but possible for condominium to arise by prescription.
This problem concerns a status in rem; the fact that one state cannot alienate territory
without consent of one or the others does not justify application of the general category of
joint tenancy, as opposed to tenancy in common.
15. Vasalage, Suzertainty and Protection.
Other types of shared sovereignty have occurred:
Dominant partner, state A, has acquired a significant role in government of state B,
especially in making executive decisions relating to conduct of foreign affairs. Legal
aspects vary with the facts.
Protected community or ‘state’ is part of state A and as a colonial protectorate, has no int’l
legal personality, although in internal law, it will have special status. But the protected state
may retain a measure of externally effective legal personality, although exercise of its legal
capacities be delegated to state A. Treaties by state A will not necessarily apply to B. but,
for certain purposes, including the law of neutrality and war, B may be regarded as an
agent of A.
16. Mandates and Trust Territories.
The nature of state authority is not describable in terms of sovereignty and legal restraints
on exercise of power in such territories do not in general protect the ordinary legal interests
of other states. This has close relations with the problem of representation in int’l law.
17. Parts of State Territory.
i. Land permanently above low-water mark and geographical features associated with or
analogous to land territory;
ii. Territorial subsoil – to state with sovereignty over the surface.
iii. Airspace – superjacent to land territory, internal waters and territorial sea; other states
nay only use such airspace for navigation or other purposes with the agreement of the
territorial sovereign. Due to development in aviation and after WWI, customary law
emerged: application of private law maxim cujus est solum est usque and caelum et ad
inferos was dictated by concern for national security and integrity of neutral states in time
of armed conflict, desire to prevent aerial reconnaissance by potential enemies, fear of
surprise attack and economic value of granting the right to fly to foreign commercial
agencies. The law does not permit a right of innocent passage, even through airspace over
territorial sea. Aerial trespass may be met with appropriate measures of protection but
does not normally justify instant attack with object of destroying trespassed.
Space exploration by satellites has led to discussions of determining outer limit of state
sovereignty. And, airspace is generally assumed to be appurtenant to land and sea
territory, but the principle of appurtenance will not necessarily apply if grantee only
possesses and uses territory which remains under the sovereignty of grantor.
iv. Internal waters – lakes, rivers, waters on landward side of baselines from which the
breadth of the territorial sea is calculated, comprise internal waters. Large bodies of water
like land-locked seas and historic bays are also under state sovereignty. There are special
questions relating to haring of amenities in cases of ports, rivers and canals (refer to the
Convention on the Territorial Sea and Contiguous Zone of 1958, Art. 5: 1. waters on
landward side of the baseline of territorial sea as part of internal waters; 2. when straight
baseline is established based on Art. 4, enclosing internal waters areas previously part of
territorial sea or of high seas, right of innocent passage (Art. 14-23) exists.)
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In int’l law, its important to distinguish between internal waters and territorial sea. No right
of innocent passage for foreign vessels exists in internal waters (apart from the above
Treaty). Rules WRT jurisdiction over foreign vessels differ.
WRT lakes and inland seas bounded by territory of 2 or more states, the legal position
depends either on creation of prescriptive rights or on a treaty regime (water boundary
through Great Lakes of Ontario, Erie, Huron and Superior rests on Convention of 1909
between Canada and US). In absence of agreement, presumption is for a middle line
where only 2 states are involved.
18. Restrictions on Disposition of Territory.
Treaty provisions – states may agree not to alienate certain parcels of territory in any
circumstances, or they may contract not to transfer to particular state/s. A state may agree
not to unite with another (State Treaty of 1955: Austria obliged not not enter into political
and economic union with Germany. Before that, in the Treaty of St. Germain of 1919,
Austria’s independence was inalienable than with consent of the Council of the League of
Nations). An obligation not to acquire territory may also be undertaken.
In case of breach of obligation, it is doubtful if the grantee’s title is affected. It may regard
the treaty as res inter alios acta; doubtful whether a claim by a third state for breach can
result in nullity of transfer.
Principle of Appurtenance – state A merges into state B, the present extent of latter
includes by implication the territorial sea and airspace of A. As a corollary, the territorial sea
cannot be alienated without the coast itself, as well as airspace. The legal basis for the
corollary is not compelling: Fisheries (1951), “int’l law imposes on maritime State
obligations and confers rights arising out of sovereignty exercised over its maritime
territory. Possession of territory not optional, not dependent upon the will of the State, but
compulsory.” Difficulties: How many of the various territorial extensions are possessed by
compulsion of law? Desire to invest coastal states with responsibility of maintaining order
and navigational facilities is insufficient to support the above judgment, in essence
supporting a doctrine of closed seas. States are permitted to abandon territory as res
nullius, whereas the presumable consequence of disclaiming territorial sea is simply to
extend a res communis, the high seas.
19. Capacity to Transfer or Acquire Territory
Capacity of dependent states: when the principal/dominant state opposes the transaction
entered into by the dependency, the effect of transfer will depend on the operation of law
relating to prescription, acquiescence and recognition. In other cases, the principal will
tacitly or expressly ratify the transfer. This is similar to an agency, a delegation of power
and the question of capacity cannot arise as such. Related issues (powers of mandatory
as to territory) are better considered as to principle of nemo dat quod non habet.
20. Concept of Title.
Legal competence as to territory is a consequence of title and is not coterminous with it. An
important aspect of competence, power of disposition, may be limited by treaty but such
restriction is not total, since title is unaffected.
Int’l law materials use sovereignty to describe both the concept of title and the legal
competence that flows form it. In the former sense, it explains 1) why competence exists
and what is its fullest extent; and 2) whether claims may be enforced in respect of
interference with territorial aspects of that competence against a particular state. The
second aspect is the essence of title: validity of claims to TS against other states. In
principle, the concept of ownership, opposable to all other states and unititular, can and
does exist in int’l law. Thus, the first and undisputed occupation of land which is res nullius
and immemorial and unchallenged attribution (as England and Wales), may give rise to
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title equivalent to dominium of Roman law. But, in practice, the concept of title used to
resolve disputes approximates the notion of the better right to possess familiar in common
law.
The operation of doctrines of prescription, acquiescence and recognition makes the
approach inevitable but tribunals will favor an approach which reckons with the limitations
inherent in a procedure dominated by the presentation of evidence by 2 claimants, where
result is not automatically opposable to third states.
21. Determination of Frontiers.
In principle, determination of location in detail of the frontier line is distinct from the issue of
title. Considerable dispositions may take place where grantee enjoys benefit of a title
derived from the grant although no determination of the line is made. But precise
determination may be made a suspensive condition in a treaty of cession. The process of
determination is carried out per a special body of rules, the best known being the thalweg
principle, which says that in a navigable river, the middle of the principal channel of
navigation is accepted as the boundary. Such geographical doctrines are presumptions
and principles of equity, not mandatory rules.
Practical aspects: agreements as to precise details, enshrined in a written instrument, is
often followed by separate procedures of demarcation or marking of frontier on the
grounds by means of posts, stone pillars, etc. A frontier may be legally definitive for some
purposes, but remain undemarcated. De facto frontiers (absence of demarcation or
presence of unsettled territorial dispute) may be accepted as the legal limit of sovereignty
for some purposes (civil or criminal jurisdiction, national law, prohibition of unpermitted
intrusion with or without use of arms).
22. Nemo dat quod non habet (a state cannot transfer what it does not have).
Palmas case: “title alleged by USA as constituting the immediate foundation of its claim is
that of cession, brought about by the Treaty of Paris, which cession transferred all rights of
sovereignty which Spain may have possessed in the region…It is evident that Spain could
not transfer more rights than she herself possessed.”
The effect of the principle is reduced by operation of the doctrines of prescription,
acquisition and recognition.
Except where there are only 2 claimants, adjudication by a tribunal of territory as between
states A and B is not opposable to state C. The decision itself gives title but the tribunal
has jurisdiction as before parties before it. That C claims a particular parcel does not
deprive the power to adjudicate and does not prevent A and B from defining their rights in
relation to the parcel mutually.
Special problems: aggressor, having seized territory by force and committed a delict, may
purport to transfer territory to a third state. The validity of cession will depend on the effect
of specific rules relating to use of force. Again, a state may transfer territory which it lacks
capacity to transfer: defects of title may be cured by prescription, acquisition and
recognition. Encumbrances may pass with the territory ceded: Lord McNair’s concept of
‘treaties creating purely local obligations’ illustrated when a ceding state grants to another
the right of transit or a right of navigation on a river, or a right of fishery in territorial or
internal waters.
ISLAND OF PALMAS CASE (or MIANGAS): US v. NETHERLANDS (4 Apr. 1928)
Award of the tribunal of arbitration rendered in conformity with the special agreement
concluded on January 23, 1925, between the USA and the Netherlands relating to the
arbitration of differences respecting sovereignty over the Island of Palmas (or Miangas).
The Hague.
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THE TEXT OF THE US-NETHERLANDS AGREEMENT.
“The USA and Her Majesty the Queen of the Netherlands,
Desiring to terminate in accordance with the principles of International Law and any
applicable treaty provisions the differences which have arisen and now subsist between
them with respect to the sovereignty over the Island of Palmas (or Miangas) situated
approx. 50 miles SE from Cape San Agustin, Island of Mindanao, at about 5° 35’23 N
latitude, 126° 36’ longitude E from Greenwich;
Considering that the differences belong to those which, pursuant to Art. I of the Arbitration
Convention concluded May 2, 1908 and renewed by agreements dated May 9 1914, March
8 1919, and February 13 1924, might well be submitted to arbitration;
Have appointed as their respective plenipotentiaries for the purpose of concluding the
following special agreement:
The USA President: Charles Evans Hughes, Secretary of State, and
Her Majesty the Queen of the Netherlands: Jonkheer Dr. A. C. D. de Graeff, Her Majesty’s
Envoy Extraordinary and Minister Plenipotentiary at Washington,
Who x x x have agreed upon the following articles:
ARTICLE I: SUBMISSION TO ARBITRATION [paraphrased]. The USA and Her Majesty
hereby agree to refer the decision of the above-mentioned differences to the Permanent
Court of Arbitration [PCA] at the Hague. The arbitral tribunal shall consist of one arbitrator,
whose sole duty shall be to determine whether the Island of Palmas (or Miangas) [Palmas]
in its entirety forms a part of territory belonging to the USA or of Netherlands territory. The
two Governments shall designate the Arbitrator from the members of the PCA. If they shall
be unable to agree, they shall unite in requesting the President of the Swiss Confederation
to designate the Arbitrator.
ARTICLE II: MEMORANDA & COUNTER-MEMORANDA. Within 6 months after the
exchange of ratifications of this special agreement, each Government shall present to the
other party 2 copies of a memorandum containing a statement of its contentions and the
documents in support thereof. As soon thereafter as possible and within 30 days, each
party shall transmit copies of its memorandum to the Int’l Bureau of the PCA for delivery to
the Arbitrator.
Within 6 months after the expiration of the period above fixed for the delivery of the
memoranda to the parties, each party may, if it is deemed advisable, transmit to the other
party 2 copies of a counter-memorandum and any documents in support thereof. Within
30 days after delivery thereof to the parties, delivery shall be made to the Arbitrator. At the
instance of one or both of the parties, the Arbitrator shall have authority, after hearing and
for good cause, to extend the above-mentioned periods.
ARTICLE III: FURTHER SUBMISSIONS. After the exchange of the counter-memoranda,
the case shall be deemed closed unless the Arbitrator applies to either or both of the
parties for further written explanations. In such an event, he shall make the request
through the Int’l Bureau of the PCA which shall communicate a copy of his request to the
other party. The party addressed shall be allowed for reply 3 months from the date of the
receipt of the Arbitrator’s request. Such reply shall be communicated to the other party
and within 30 days thereafter to the Arbitrator; the opposite party may, if it is deemed
advisable, have a further period of 3 months to make rejoinder thereto. The Arbitrator shall
notify both parties through the Int’l Bureau of the date upon which, in accordance with the
23
Read as “five degrees and thirty-five minutes”
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foregoing provisions, the case is closed, so far as the presentation of memoranda and
evidence by either party is concerned.
ARTICLE IV: LANGUAGE TO USE. The parties shall be at liberty to use, in the course of
arbitration, the English or Netherlands language or the native language of the Arbitrator. If
either party uses the English or Netherlands language, a translation into the native
language of the Arbitrator shall be furnished if desired by him.
The Arbitrator shall be at liberty to use his native language or the English or Netherlands
language in the course of the arbitration and in the award and opinion.
ARTICLE V: PROCEDURE. The Arbitrator shall decide any questions of procedure which
may arise during the course of the arbitration.
ARTICLE VI: COSTS IN ADVAANCE. Immediately after the exchange of ratifications of
this special agreement, each party shall place in the hands of the Arbitrator the sum of 100
pounds sterling by way of advance of costs.
ARTICLE VII: AWARD & COSTS. The Arbitrator shall, within 3 months after the date upon
which he declares the case closed for the presentation of memoranda and evidence,
render his award in writing and deposit 3 signed copies thereof with the Int’l Bureau at the
Hague, 1 copy to be retained by the Bureau and 1 to be transmitted to each party ASAP.
The award shall be accompanied by a statement of the grounds upon which it is based.
The Arbitrator shall fix the amount of the costs of procedure in his award. Each party shall
defray its own expenses and half of said costs of procedure and of the Arbitrator’s
honorarium.
ARTICLE VIII: FINALITY OF AWARD. The parties undertake to accept the award
rendered by the Arbitrator within the limitations of this special agreement, as final and
concllusive and without appeal. All disputes connected with the interpretation and
execution of the award shlal be submitted to the decision of the Arbitrator.
ARTICLE IX: RATIFICATION OF THE AGREEMENT. This special agreement shall take
effect immediately upon the exchange of ratifications, which shall take place ASAP at
Washington.
I. SEQUENCE OF EVENTS. The ratifications of the Special Agreement (the Agreement)
were exchanged at Washington on April 1, 1925. By letters, the Netherlands Ministry of
Foreign Affairs and the USA Minister at the Hague asked Max Huber of Zurich, member of
the PCA, to act as sole arbitrator. He said okay.
Oct 16 & 23, 1925: The Int’l Bureau of the PCA transmits to the Arbitrator the USA and
Netherlands memoranda and supporting documents.
Apr 23 & 24, 1926: Counter-memoranda of both parties transmitted to the Arbitrator.
Dec 24 1926, Jan 6 1927: The Netherlands and the USA respectively receive the
Arbitrator’s request for further written explanations on particular points. The Arbitrator
receives the Netherlands’s Explanations Mar 24 1927; those of the USA Apr 22 1927.
May 19 1927: The Arbitrator receives the US memo expressing the desire to make a
rejoinder, if the Arbitrator would let it, and making an application for an extension of 3
months beyond the period for filing a Rejoinder in the Agreement; the USA said that the
Netherlands Explanations were considerably more voluminous than the Memorandum and
contained a large mass of untranslated Dutch documents, plus more than 25 maps. (The
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Netherlands declared by May 9 1927 that they renoucned the right to submit a Rejoinder,
making however the express reservation that they maintained the points of view which the
American Explanations contested.) The Arbitrator wrote to the Netherlands Govt to ask
their point of view on the American application. The Netherlands Govt said they had no
objection. The Arbitrator granted the USA’s application.
Oct 21 1927: USA Rejoinder transmitted to the Arbitrator. Neither Party observed during
the proceedings that one of the documents provided for in the Agreement was not filed
within the time-limits fixed therein.
Mar 3 1928: Arbitrator declares case closed (Art. III).
Apr 4 1928: The 3 copies of the award, written in English, are deposited with the Int’l
Bureau. Since geographical names are spelled differently in different documents and
maps, the Arbitrator uses geographical names as shown on the British Admiralty Chart
2575, as being the most modern of the large scale maps laid before him. Other names
and, if necessary, their variations are given in bracket or parenthesis. Costs of procedure
are fixed at £140.
II. SUBJECT OF THE DISPUTE: sovereignty over Palmas. In the diplomatic
correspondence prior to the conclusion of the Agreement, and in the documents of the
arbitration proceedings, the US refers to the “Island of Palmas” and the Netherlands to the
“Island of Miangas”, but this difference concerns only the question whether certain
assertions made by the Netherlands Govt reall relate to the island described in the
Agreement or another island/group of islands which might be designated by the name of
Miangas or a similar name. But from the evidence, Palmas (aka Miangas) is a single,
isolated island, not one of several islands clustered together, lying about halfway between
Cape San Agustin of Mindanao and the most northerly island of the Nanusa (aka Nanoesa)
group (Netherlands East Indies [now Indonesia yata]).
ORIGIN OF THE DISPUTE: the visit paid to Palmas, 21 Jan 1906, by Gen. Leonard
Wood, then-Governor of the Province of Moro. It is true that according to info contained in
the US Counter-Memorandum, the same Gen. Wood had already visited the island “about
the year 1903,” but as this previous visit appears to have had no results, and it seems
even doubtful whether it took place, that of 1906 is to be regarded as the first entry into
contact by the American authorities with the island. Such visit is shown to relate to the
island in dispute, by Gen. Wood’s report to the Military Secretary of the US Army (26 Jan
1906) and by the certificate delivered 21 Jan 1906 by 1st Lt. Gordon Johnston to the native
interrogated by the controller of the Sangi and Talauer Islands.24 The visit led to the
statement that Palmas, undoubtedly included in the “archipelago known as the Philippine
Islands,” as delimited by Art. III of the Treaty of Peace between the US and Spain (10 Dec
1898, aka “Treaty of Paris”), and ceded in virtue of the said article to the US, was
considered by the Netherlands as forming part of the territory of their possessions in the
East Indies. There followed a diplomatic correspondence from 31 Mar 1906 leading up to
the conclusion of the Agreement.
UNCONTESTED FACTS.
(1) The Treaty of Paris and the Agreement are the only international instruments laid
before the Arbitrator which refer precisely, i.e. by mathematical location or by express
and unequivocal mention, to the island in dispute, or include it in/exclude it from a
zone delimited by a geographical frontier-line. The scope of the international treaties
24
Medyo confusing ang decision, marami kasing different islands/island groups going by multiple names. Sangi
Islands = Talautse Islands yata. Talauer Islands and Nanusa seem to be distinct groups.
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which relate to the “Philippines” and of conventions entered into with native Princes
will be considered in connection with the arguments of the Party relying on a particular
Act.
(2) Before 1906, no dispute had arisen between the US or Spain vs. the Netherlands, in
regard specifically to Palmas, on the ground that there Powers put forward conflicting
claims to sovereignty over the said island.
(3) The 2 Parties claim the island in question as a territory attached for a very long period
to territories relatively close at hand which are incontestably under the sovereignty of
one or the other of them.
(4) It results from the terms of Art. I of the Agreement that the Parties adopt the view that,
for purposes of the present arbitration, the island can belong only to one or the other
of them. Rights of third Powers only come into account in so far as the rights of the
Parties may be derived from them.
THE ORDER OF ARGUMENTS. It appears right to examine first the title put forward by
the US, arising out of a treaty and itself derived, according to the American arguments,
from an original title which would date back to a period prior to the birth of the title put
forward by the Netherlands.
THE ARGUMENTS, IN A NUTSHELL. In the absence of an international treaty
recognized by both parties and explicitly determining the legal position of Palmas, the
Parties’ arguments may be summed up as follows: US: As successor to the rights of
Spain over the Phils, bases its title in the first place on discovery. The existence of
sovereignty thus acquired is confirmed not merely by the most reliable cartographers and
authors, but also by treaty, in particular by the Treaty of Münster of 1648, to which Spain
and the Netherlands are themselves Contracting Parties. As nothing has occurred of a
nature in international law to cause the acquired title to disappear, this latter title was intact
when, by the Treaty of Paris, Spain ceded the Phils to the US. In these circumstances, it is
unnecessary to establish facts showing the actual display of sovereignty precisely over
Palmas. Palmas moreover forms a geographical part of the Phil group and in virtue of the
principle of contiguity belongs to the Power having the sovereignty over the Phils.
Netherlands: The fact of discovery by Spain is not proved, nor yet any other form of
acquisition, and even if Spain had at any moment had a title, such title had been lost.
Contests the principle of contiguity. The Netherlands, represented for this purpose in the
first period of colonization by the East India Company, have possessed and exercised
rights of sovereignty from 1677, or probably from a date prior even to 1648, to the present
day. This sovereignty arose out of conventions entered into with native princes of the
Island of Sangi (the main island of the Talautse Isles), establishing the suzerainty of the
Netherlands over the territories of these princes, incl. Palmas. The state of affairs thus set
up is claimed to be validated by international treaties. US ulit: The facts alleged in support
of the Netherlands arguments are not proved; even if they were proved, they would not
create a title of sovereignty, or would not concern Palmas.
1ST OF 2 GENERAL POINTS: APPLICABLE SUBSTANTIVE LAW: TERRITORIAL
SOVEREIGNTY. The preamble of the Agreement refers to “sovereignty over the Island of
Palmas”; see also Art. I, par. 2, the Arbitrator’s task (i.e. determine whose territory Palmas
belongs to). It appears to follow that sovereignty in relation to a portion of the surface of
the globe is a legal condition necessary for the inclusion of such portion in the territory of a
particular State. Sovereignty in relation to territory is, in the present award, called
“territorial sovereignty.”
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Sovereignty in the relations between States signifies independence. Independence, in
regard to a portion of the globe, is the right to execise therein, to the exclusion of any other
State, the functions of a State. The development of the national organizatio of States
during the last few centuries and, corollarily, the development of international law, have
established this principle of the exclusive competence of the State in regard to its own
territory in such a way as to make it the point of departure in settling most questions that
concern international relations. It may be stated that territorial sovereignty belogs always
to one, or in exceptional circumstances to several, States, to the exclusion of all others.
The fact that the functions of a State can be performed by any State within a given zone is,
on the other hand, precisely the characteristic feature of the legal situation pertaining in
those parts of the globe which, like the high seas or lands without a master, cannot or do
not yet form the territory of a State.
HOW TO SETTLE DISPUTES. Territorial sovereignty [TS] is, in general, a situation
recognized and delimited in space, either by so-called natural frontiers as recognized by
international law or by outward signs of delimitation that are undisputed, or else by legal
engagements entered into between interested neighbors, e.g. frontier conventions, or by
acts of recognition of States within fixed boundaries. If a dispute arises as to the
sovereignty over a portion of territory, it is customary to examine which of the claiming
States possesses a title—cession, conquest, occupation, etc.—superior to that advanced
by the other State. However, if the contestation is based on the fact that the other Party
has actually displayed sovereignty, it cannt be sufficient to establish the title by which TS
was validly acquired at a certain moment; it must also be shown that the TS has continued
to exist and did exist at the moment which, for the decision of the dispute, must be
considered critical. This demonstration consists in the actual display of State activities,
such as belongs only to the territorial sovereign.
HOW TITLE MAY BE ACQUIRED. Titles of acquisition of TS in present-day international
law are either based on an act of effective apprehension, e.g. occupation or conquest; or,
like cession, presuppose that the ceding and the cessionary Powers or at least one of
them have the faculty of effectively disposing of the ceded territory. In the same way,
natural accretion can only be conceived of as an accretion to a portion of territory where
there exists an actual sovereignty capable of extending to a spot which falls within its
sphere of activity. It seems therefore natural that an element which is essential for the
constitution of sovereignty should not be lacking in its continuation. So true is this that
practice, as well as doctrine, recognizes—though under different legal formulae and with
certain differences as to the conditions required—that the continuous and peaceful display
of TS (peaceful in relation to other States) is as good as a title. The growing insistence
with which international law, ever since the middle of the 18th century, has demanded that
the occupation shall be effective would be inconceivable, if effectiveness were required
only for the act of acquisition and not equally for the maintenance of the right. If the
effectiveness has above all been insisted on in regard to occupation, this is because the
question rarely arises in connection with territories in which there is already an established
order of things. Just as before the rise of international law, boundaries of lands were
necessarily determined by the fact that the power of a State was exercised within them, so
too, under the reign of international law, the fact of peaceful and continuous display is still
one of the most important considerations in establishing boundaries between States.
TS = RIGHT + DUTY. TS, as has already been said, involves the exclusive right to display
the activities of a State. This right has as corollary a duty: the obligation to protect within
the territory the rights of other States, in particular their right to integrity and inviolability in
peace and in war, together with the rights which each State may claim for its nationals in
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foreign territory. Without manifesting its territorial sovereignty in a manner corresponding
to circumstances, the State cannot fulfill this duty. TS cannot limit itself to its negative side,
i.e. to excluding the activities of other States; for it serves to divide between nations the
space upon which human activities are employed, in order to assure them at all points the
minimum of protection of which international law is the guardian.
IF YOU’VE GOT IT, (YOU’VE GOT TO) FLAUNT IT. Although municipal law, with its
complete judicial system, is able to recognize abstract rights of property as existing apart
from any material display of them, it has nonetheless limited their effect by the principles of
prescription and the protection of possession. International law, the structure of which is
not based on any super-State organization, cannot be presumed to reduce a right such as
TS, with which almost all international relations are bound up, to the category of an
abstract right, without concrete manifestations.
The principle that continuous and peaceful display of the functions of State within a given
region is a constituent element of TS is not only based on the conditions of the formation of
independent States and their boundaries, as well as on an international jurisprudence and
doctrine widely accepted. This principle has further been recognized in more than one
federal State, where a jurisdiction is established in order to apply, as need arises, rules of
international law to the interstate relations of the States members. This is the more
significant, in that it might well be conceived that in a federal State possessing a complete
judicial system for interstate matters—far more than in the domain of international relations
properly so-called—there should be applied to territorial questions the principle that, failing
any specific provision of law to the contrary, a jus in re once lawfully acquired shall prevail
over de facto possession however well established. It may suffice to quote, among several
non-dissimilar decisions of the US Supreme Court, that in State of Indiana v State of
Kentucky (1890), where the precedent of Rhode Island v Massachusetts is supported by
quotations from Vattel and Wheaton, who both admit prescription founded on length of time
as a valid and incontestable title.
BUT HOW TO FLAUNT IT? Manifestations of TS asume different forms, according to time
and place. Although continuous in principle, sovereignty cannot be exercised in fact at
every moment on every point of a territory. The intermittence and discontinuity compatible
with the maintenance of the right necessarily differ according as inhabited or uninhabited
regions are involved, or regions enclosed within territories in which sovereignty is
incontestably displayed or again regions accessible from, e.g., the high seas. It is true that
neighboring States may by convention fix limits to their own sovereignty, even in regions
such as the interior of scarcely explored continents where such sovereignty is scarcely
manifested, and in this way may prevent the other from any penetration of its territory, e.g.
the delimitation of Hinterland.
If, however, no conventional line of sufficient topographical precision exists, or if there are
gaps in the frontiers otherwise established, or if a conventional line leaves room for doubt,
or if, as e.g. in the case of an island situated in the high seas, the question arises whether
a title is valid erga omnes, the actual continuous and peaceful display of state functions is,
in case of dispute, the sound and natural criterium [sic] of TS.
PROCEDURAL QUESTIONS: WHEN TO ADDUCE EVIDENCE. (See Art. V of the
Agreement.) US: Statements without evidence to support them cannot be taken into
consideration in an international arbitration; evidence is not only to be referred to, but is to
be laid before the tribunal. Also, since the Memorandum is the only document necessarily
to be filed by the Parties under the Agreement, evidence in support of the statements
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therein made should have been filed at the same time. Netherlands: No formal rules of
evidence exist in international arbitrations; no rule limiting the tribunal’s freedom in forming
its conclusions was established by the Agreement. Moreover, statements made by a
government in regard to its own acts are evidence in themselves and have no need of
supplementary corroboration.
PWEDENG IHABOL ANG EVIDENCE. Art. II, Agreement (Documents in support of the
Parties’ arguments are to be annexed to the Memoranda and Counter-Memoranda):
These provisions refer rather to the time and place at which each Party should inform the
other of the evidence it is producing, sbut does not establish a necessary connection
between any argument and a document or other piece of evidence corresponding
therewith. However desirable it may be that evidence should be produced as complete
and as soon as possible, it would seem contrary to the broad principles applied in
international arbitrations to exclude a limine, except under the explicit terms of a
conventional rule, every allegation made by a Party as irrelevant if it is not supported by
evidence, and to exclude evidence relating to such allegations from being produced at a
later stage.
SUPPLETORY CONVENTIONAL PROVISIONS. The provisions of the Hague Convention
of 1907 for the peaceful settlement of international disputes are, under Art. 51, to be
applied, as the case may be, as subsidiary law in proceedings falling within the scope of
that convention, or should serve at least to construe such arbitral agreements. Arts. 67-69
of the Convention admit the production of documents apart from that provided for in Art. 63
in connection with the filing of cases, counter-cases and replies, with the consent or at the
request of the tribunal. This liberty of accepting and collecting evidence guarantees to the
tribunal the possibility of basing its decisions on the whole of the facts which are, in its
opinion, relevant.
CONTEXT: “FURTHER EXPLANATIONS” PROV. The authorization given to the
Arbitrator by Art. III of the Agreement (to apply to the Parties for further written
explanations) would be extraordinarily limited if such explanations could not extend to
allegations already made, and could not consist of evidence which included documents
and maps. The limitation to written explanations excluded oral procedure; but it is not to
be construed as excluding documentary evidence of any kind.
ARBITRATOR MUST HAVE FULLEST LIBERTY. It is for the Arbitrator to decide both
WON allegations need evidence in support, and WON the evidence produced is sufficient,
and WON points left aside by the Parties ought to be elucidated. This liberty is essential to
him, for he must be able to satisfy himself on those points which are necessary to the legal
construction upon which he feels bound to base his judgment. He must consider the
totality of the allegatios and evidence laid before him by the Parties, either motu proprio or
at his request, and decide what allegations are to be considered as sufficiently
substantiated.
Failing express provision, an arbitral tribunal must have entire freedom to estimate the
value of assertions made by the Parties. For the same reason, it is entirely free to
appreciate the value of assertions made during proceedings at law by a Govt in regard to
its own acts. Such assertions are not, properly speaking, legal instruments, as would be
declarations creating rights; they are statements concerning historical facts. The value and
weight of any assertion can only be estimated in the light of all the evidence and all the
assertions made on either side, and of facts which are notorious for the tribunal.
21
BACK TO THE CASE. No documents which are not on record have been relied upon,
except for the Treaty of Utrecht—invoked however in the Netherlands Counter-
Memorandum—the text of which is of public notoriety and accessible to the Parties, and no
allegation not supported by evidence is taken as foundation for the award. The possibility
to make Rejoinder to the Explanations on points contained in the Memoranda and
Counter-Memoranda and the extension of the time-limits for filing a Rejoinder has put both
Parties in a position to state—under fair conditions, their point of view in regard to that
evidence which came forth only at a subsequent stage of the proceedings.
III. US ALLEGATIONS AS TO TITLE. The USA’s title alleged as constituting the
immediate foundation of its claim is that of cession, brought about by the Treaty of Parist,
which cession transferred all rights of sovereignty which Spain may have possessed in the
region indicated in Art. III of said Treaty and thererore also those concerning Palmas.
CAN’T GIVE WHAT YOU DON’T HAVE. Evidently, Spain could not transfer more rights
than she herself possessed. This principle of law is expressly recognized in a letter dated
7 Apr 1900, from the US Secretary of State to the Spanish Minister at Washington,
concerning a divergence of opinion which arose about the question WON 2 islands
claimed by Spain lying just outside the limits traced by the Treaty of Paris were to be
considered as included in the cession: “The metes and bounds defined in the treaty were
not understood by either party to limit or extend Spain’s right of cession. Were any island
within those described bounds ascertained to belong in fact to Japan, China, Great Britain
or Holland, the US could derive no valid title from its ostensible inclusion in the cession.
The compact upon which the US negotiators insisted was that all Spanish title to the
archipelago known as the P.I. should pass to the US—no less or more than Spain’s actual
holdings therein, but all. The only competent and equitable test of fact by which the title to
a disputed cession may be determined: ‘If valid title belonged to Spain, it passed; if Spain
had no valid title, she could convey none.’” It would seem that the cessionary Power never
envisaged that the cession, despite the sweeping terms of Art. III, should comprise
territories on which Spain had not a valid title, though falling within the limits traced by the
Treaty. Evidently, whatever may be the right construction of a treay, it cannot be
interpreted as disposing of the rights of independent third Powers.
SPAIN APPARENTLY HAD IT; THE NETHERLANDS KNEW. One observation, however,
is to be made. Art. III Treaty of Paris, which is drafted differently from Art. II concernined
Porto Rico, is so worded that it seems as though the Philippine Archiipelago, within the
limits fixed therein, was at the moment of cession under Spanish sovereignty. As already
stated, Palmas lies within the lines traced by the Treaty. Art. III may therefore be
considered as an affirmation of sovereignty on the part of Spain as regards Palmas, and
this right or claim of right would have been ceded to the US, though the 1898 negotiations
do not disclose that the situation of Palmas had been specifically examined. Meanwhile,
the US communicated, on 3 Feb 1899, the Treaty of Paris to the Netherlands. No
reservations were made by the latter WRT the delimitation of the Phils in Art. III.
DUTCH SILENCE MEANS...? The question whether the silence of a 3rd Power, in regard
to a treaty notified to it, can exercise any influence on the rights of this Power, or on those
of the Powers signatories of the treaty, is a question whose answer may depend on the
nature of such rights. While it is conceivable that a conventional delimitation duly notified
to third Powers and left without contestation on their part may have some bearing on an
inchoate title not supported by any actual display of sovereignty, it would be contrary to the
principles laid down above as to TS to suppose that such sovereignty could be affected by
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the mere silence of the territorial sovereign as regards a treaty which has been notified to
him and which seems to dispose of a part of his territory.
TREATY OF PARIS = CRUCIAL TIME. The essential point is therefore whether Palmas at
the moment of the conclusion and coming into force of the Treaty of Paris formed a part of
Spanish or Netherlands territory. Only if the examination of the arguments of both Parties
should lead to the conclusion that Palmas was, at the critical moment, neither Spanish nor
Netherlands territory, would the question arise whether—and if so, how—the conclusion of
the Treaty of Paris and its notification to the Netherlands might have interfered with the
rights which the Netherlands or the USA may claim over the island.
[A] US CLAIMS DISCOVERY, as successor of Spain. (In this connection, a distinction
must be made between the discovery of Palmas as such, or as a part of the Phils, which
beyond doubt were discovered, occupied, colonized by the Spaniards. This latter point,
however, will be considered with the argument relating to contiguity; the problem of
discovery is considered only in relation to the island itself.) The documents supplied to the
Arbitrator with regard to the discovery of the island consist firstly of a communication by the
Spanish Govt to the US Govt, as to researches in the archives concerning expeditions and
discoveries [in Southeast Asia]; the US Govt in its Rejoinder however states that it does
not specifically rely on the papers mentioned in the Spanish note. It is probable that the
island seen when the Palaos Islands were discovered, and reported to be at latitude 5°48’
N, to the E of Sarangani and Cape San Agustin, was identical with Palmas. The island
“Meanguis” mentioned by the Spanish Govt and presumed by them to be identical with the
Talaos (probably Talautse / Talauer Islands) seems actually to be an island lying more to
the south. The island Tangulandang is almost the southernmost of the isalnds situated
between Celebes and Mindanao, while Palmas is the northernmost. [...] [Arbitrator here
sorts through some other nearby islands.] This communication of the Spanish Govt gives
no details as the date of the expedition, the navigators or the circumstances in which the
observations were made; it is not supported by extracts from the original reports on which
it is based, nor accompanied by reproductions of maps therein mentioned.
In its Rejoinder, the US Govt quotes (translated) from a report of the voyages of Garcia de
Loaisa, which point to him having seen Palmas in Oct 1526. An island marked “I (Ilha) de
(or das) Palmeiras” or by similar names appears on maps as early as 1595 (or 1596) (the
date of the oldest map filed in the dossier), approximately on the site of Palmas. This
shows that the island was known and therefore already discovereed in the 16 th century.
According to the Netherlands memorandum, the same indications are found already on
maps of 1554, 1558, and 1590.
SOME TROUBLE WITH PORTUGAL. The Portuguese name (Ilha das Palmeiras) could
not in itself decide the question whether the discovery was made in behald of Portugal or
of Spain; Linschoten’s map, on which “Palmeiras” appears, also employs Portuguese
names for most of the P.I., which from the beginning were discovered and occupied by
Spain. For the purpose of the present affair, it may be admitted that the original title
derived from discovery belonged to Spain; for the relations between Spain and Portugal in
the Celebes Sea during the first ¾ of the 16 th century may be disregarded, for the following
reasons: In 1581, i.e. prior to the appearance of the Dutch in the area, the crowns of Spain
and Portugal were united. Though the struggle for separation of Portugal from Spain had
already begun in Dec 1640, Spain had not yet recognized the separation when it
concluded in 1648 with the Netherlands the Treaty of Münster—the earliest Treaty to
define the relations between Spain and the Netherlands in the region. This Treaty contains
special provisions as to Portuguese possessions, but alone in regard to such places as
22
were taken from the Netherlands by the Portuguese in and after 1641. It seems necessary
then to conclude that, for the relations inter se of the 2 signatories of the Treaty of Münster,
the same rules had to be applied both to the possessions originally Spanish and to those
originally Portuguese. This conclusion is corroborated by the wording of Art. X of the
Treaty of Utrecht of 26 Jun 1714, which expressly maintains Art. V of the Treaty of
Münster, but only as far as Spain and the Netherlands are concerned.
NOBODY HOME. The fact that the island was originally called, not, as customarily, by a
native name, but by a name borrowed from a European language, and referring to the
vegetation, serves perhaps to show that no landing was made or that the island was
uninhabited at the time of discovery. Indeed, the reports concerning the discovery of
Palmas state only that an island was “seen.” No mention is made of landing or of contact
with natives. And in any case no signs of taking possession or of administration by Spain
have been shown or even alleged to exist until the very recent date to which the reports of
Capt. Malone and M Alvarez, of 1919, contained in the US Memorandum, relate.
HOW INTERNATIONAL LAW SHALL BE APPLIED. International law admittedly
underwent profound modifications between the end of the Middle Ages and the end of the
19th century, as regards the rights of discovery and acquisition of uninhabited region, or
regions inhabited by savages or semi-civilized peoples. Both Parties are also agreed that
a juridical fact must be appreciated in the light o the law contemporary with it, and not of
the law in force at the time when a dispute in regard thereto arises, or falls to be settled.
The effect of discovery by Spain is therefore to be determined by the rules of international
law in force in the first half of the 16th century—or (to take the earliest date) in the first
quarter of it, i.e. when the Portuguese or Spaniards made their appearance in the Sea of
Celebes.
US ARGUMENTS: ASSUMING ARGUENDO. If we consider as positive law at the period
in question the rule that discovery as such—i.e. the mere fact of seeing land, without any
act, even symbolical, of taking possession—involved ipso jure TS and not merely an
“inchoate title”, a jus ad rem, to be completed eventually by an actual and durable taking of
possession within a reasonable time, the question arises whether sovereignty yet existed
at the critical date (again, Treaty of Paris).
RIGHTS DEPENDENT ON LAW. As regards the question which of different legal systems
prevailing at successive periods is to be applied (the so-called intertemporal law), a
distinction must be made between the creation of rights and the existence of rights. The
same principle which subjects the act creative of a right to the law in force at the time the
right arises, demands that the existence of the right, i.e. its continued manifestation, shall
follow the conditions required by the evolution of law.
DISCOVERY ALONE, INSUFFICIENT. International law in the 19th century, having regard
to the fact that most parts of the globe were under the sovereignty of States members of
the community of nations, and that territories without a master had become relatively few,
took account of a tendency already existing and especially developed since the middle of
the 18th century, and laid down the principle that occupation, to constitute a claim to TS,
must be effective, i.e. offer certain guarantees to other States and their nationals. It seems
therefore incompatible with this rule of positive law that there should be regions which are
neither under the effective sovereignty of a State, nor without a master, but which are
reserved for the exclusive influence of one State, in virtue solely of a title of acquisition
which is no longer recognized by existing law, even if such a title ever conferred TS. For
these reasons, discovery alone, without any subsequent act, cannot at the present time
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suffice to prove sovereignty over Palmas; and insofar as there is no sovereignty, the
question of an abandonment properly speaking of sovereignty by one State in order that
the sovereignty of another may take its place does not arise.
INCHOATE TITLE MUST BE COMPLETED. If, on the other hand, the view is adopted
that discovery does not create a definitive title of sovereignty but only an “inchoate” title,
such a title exists, it is true, without external manifestation. However, according to the view
that has prevailed since the 19th century, an inchoate title of discovery must be completed
within a reasonable period by effective occupation. This principle must be applied in the
present case, for the reasons given above in regard to the rules determining which of
successive legal systems is to be applied (“intertemporal law”).
A FORESHADOWING. Now, no act of occupation nor, except as to a recent period, any
exercise of sovereignty at Palmas by Spain has been alleged. But even admitting that the
Spanish title still existed as inchoate in 1898 and must be considered included in the
Treaty of Paris cession, an inchoate title could not prevail over the continuous and
peaceful display of authority by another State; for such display may prevail even over a
prior, definitive title put forward by another State.
[B]. US CLAIMS RECOGNITION BY TREATY to assert sovereignty over Palmas.
THE TREATY OF MÜNSTER (aka the Treaty of Peace, 30 Jan 1648), which established a
state of peace between Spain and the States General of the United Provinces of the
Netherlands, in Art. V, deals with territorial relations between the 2 Powers as regards the
East and West Indies: [Art. V basically just says: (1) na kung ano na ang meron ng
Netherlands as of that date, sa kanila na talaga yon; (2) hindi iistorbohin ang mga
“servants and officers, soldiers and seamen” currently or formerly employed or to be
employed ng East and West India Companies ng Netherlands as they come and go; and
(3) yung mga Spaniards dun lang dapat sila sa kung san yung talagang hawak nila; bawal
din pumunta sa Spanish territory yung mga Dutch subjects.] The article prescribes no
frontiers and appoints no definite regions as belonging to one Power or the other. On the
other hand, it establishes as a criterion the principle of possession (the Netherlands “shall
remain in possession of and enjoy such lordships, towns, castles, fortresses, commerce
and countries of the East and West Indies ... which the [Netherlands] hold and possess”).
AGAIN, DISCOVERY NOT ENOUGH. However liberal be the interpretation given to the
terms “hold” and “possess” in the Münster Treaty, it is hardly possible to comprise within
these terms the right arising out of mere discovery (the island had been sighted). If title
arising from discovery—well-known and already a matter of controversy at the time—were
meant to be recognized by the treaty, it would probably have been mentioned in express
terms. This view appears to be supported by other provisions in the same article: The
Netherlands “shall remain in possession of and enjoy such... commerce and countries...
which the [Netherlands] hold and possess, in this being specially comprised... the spots
and places which the [Netherlands] hereafter without infraction of the present treaty shall
come to conquer and possess”, the latter being placed on the same footing as those
already possessed at the moment the treaty was concluded. In view of the interpretation
given by Spain and Portugal to the right of discovery, and to the Bull Inter Caetera of
Alexander VI, 1493,25 it seems that the regions which the Treaty of Münster does not
25
There are 2 papal bulls entitled Inter Caetera (out of 4 bulls issued that year). One bestows on Spain unlimited
territorial rights over the West Indies (American continent ito I think), newly discovered by Chistopher
Columbus; the other establishes the infamous Line of Demarcation, effectively replacing previous bulls, dividing
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consider as definitely acquired by the 2 Powers in the East and West Indies, and which
may in certain circumstances by capable of subsequent acquisition by the Netherlands,
cannot fail to include regions claimed as discovered, but not possessed.
SPAIN, DEHADO. Art. V moreover provides, not just a solution of the territorial question
on the basis of possession, but also a solution of the Spanish navigation question on the
basis of the status quo. While Spain may not extend the limits of her navigation in the East
Indies, Dutch people are only excluded from “places” (which, in the French of the time,
often meant fortified places; the term denotes an actual settlement implying an actual
radius of activity; Art. VI speaks of harbors, forts, lodgements, castles) which the Spaniards
hold in the East Indies. Without navigation, there is no possibility of occupying and
colonizing regions as yet only discovered. On the other hand, the exclusion from Spanish
“places” of Netherlands navigation and commerce does not admit of an extensive
interpretation. Thus a title based on mere discovery cannot apply to the situation
contemplated in Art. V.
HOW TO APPLY THE TREATY. Since the Treaty of Münster does not divide up the
territories by means of a geographical distribution, and since it indirectly refuses to
recognize title based on discovery as such, the bearing of the treaty on the present case is
to be determined by the proof of possession at the critical epoch.
1666: SPAIN WITHDRAWS FROM THE MOLUCCAS, BUT... No precise elements of
proof based on historical facts as to the display or even the mere affirmation of sovereignty
by Spain over Palmas have been put forward by the US. There is, however, one point to
be considered in connection with the Treaty of Münster. According to a report made on 7
Feb 1927 by the Provincial Prelacy of the Franciscan Order of Minors of the Province of St.
Gregory the Great of the Philippines (whew!), “Las Islas Miangis”, situated to the NE of the
“Island of “Karekelan” (likely one of the Talauer Islands), were taken by the Spaniards in
1606 after having been first in Portuguese then in Dutch possession. The Spanish rule,
under which the Franciscan fathers exercised the spiritual administration in the said
islands, ended in 1666, when the Captain general of the Spanish Royal Armada
dismantled all the fortified places in the Moluccas, making however before the “Dutch
Governor of Malayo” a formal declaration as to the continuance of all the rights of the
Spanish Crown over the places, forts, and fortifications from which the Spaniards withdrew.
Netherlands says that Palmas, together with the Nanusa and Talauer Islands, belonged to
Tabukan. If this is correct, it’s not unlikely that Palmas, in consequence of its ancient
connection with the native State of Tabukan, was in 1648 in at least indirect possession of
Spain. However, this point has not been established by any scientific proof. [more on this
later.]
1677: DUTCH KICKED SPANISH OUT? NO MATTER. There are further allegations as
to historical facts in regard to the same region contained in a report of the Dutch Resident
of Menado, dated 12 Aug 1857, saying that in 1677 the Spaniards were driven by the
Dutch from one of the Talautse Islands, and that at that time the Talauer Islands had been
conquered by the Radjas of Tabukan. But whether the Dutch took possession of Tabukan
in 1677 in conformity with, or in violation of, the Treaty of Münster can be disregarded,
even if it were admitted that the Talautse Islands with their dependencies in the Talauer
and Nanusa Islands, Palmas possibly included, were “held and possessed” by Spain in
1648; because on 26 Jun 1714, a new Treaty of Peace was concluded at Utrecht, which in
the dominions of Spain and Portugal in the New World.
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Art. X stipulates that the Treaty of Münster is maintained as far as not modified thereby,
and that the Münster Treaty’s Art. V remains in force as far as it concerns Spain and the
Netherlands.
UTRECHT TREATY AFFIRMED MÜNSTER TREATY PER SE. Specific provisions would
no doubt have been inserted had said Art. X not simply meant the confirmation of the
principle of actual possession as regulating the territorial status of Spain and the
Netherlands in the East and West Indies, and had a restitution of any territories acquired in
violation of the Treaty of Münster been envisaged instead. There is further no trace of
evidence that Spain ever claimed at a later opportunity the restitution of territories taken or
withheld from her in violation of the Treaties of Münster or Utrecht. As it is not proved that
Spain, at the time of either Treaty (1648 or 1714), was in possession of Palmas, there is no
proof that Spain acquired, by the Treaty of Münster or of Utrecht, a title to sovereignty over
the island which could have been modified by the Netherlands only in agreement with
Spain.
ERGO, NO APPARENT SPANISH TITLE. It is therefore unnecessary to consider whether
subsequently Spain, by any express or conclusive action, abandoned any right over
Palmas which the Treaties may have conferred upon her. Moreover, even if she had
acquired a title she never intended to abandon, it woud remain to be seen whether
continuous and peaceful display of sovereignty by any other Power at a later period might
not have superseded even conventional rights. It appears further that Treaties concluded
by Spain with third Powers recognizing her sovereignty over the “Philippines” could not be
binding on the Netherlands. The Treaties do not even mention Palmas, so are not
available even as indirect evidence. We thus come back to the question whether, failing
any Treaty which between the Parties decides unequivocally the situation as regards
Palmas, the existence of TS is established sufficiently by other facts.
ANY SHOW OF SPANISH TERRITORIAL SOVEREIGNTY? [Not really.] Although the US
doesn’t assert that Spanish sovereignty was actually exercised and so must be
recognized, the American Counter-Case nonetheless states that “there is at least some
evidence of Spanish activities in the island.” The question then is whether and to what
extent the TS of Spain was manifested WRT Palmas. A passage taken from information
supplied by Spain to the US and communicated by the latter to the Netherlands Legation
on in a note dated 25 Apr 1914: “It appears, therefore, that this Island of Palmas or
Miangas, being within the limits marked by the bull of Alexander the Sixth, and the
agreement celebrated between Spain and Portugal regarding the possession of the
Maluco, must have been seen by the Spaniards on the different voyages of discovery...
and that it belonged to Spain, at least by right, until the Philippine Archipelago was ceded
by the Treaty of Paris; but precise data of acts of dominion which Spain may have
exercised in this island have not been found. [Nobody seems to have cared about Palmas
because no govt official or historian mentions it anywhere, although they do refer to the
above-mentioned data.]”
Furthermore, an exhaustive examination of the records handed over to the US under Art.
VIII of the Treaty of Paris (pertaining to judicial, notarial, and administrative matters) has
revealed nothing bearing on the allegations made by Palmas natives in 1919 to Capt.
Mallone and Sr. Alvarez on the subject of regular visits of Spanish ships, even gunboats,
and on the collection of the cedula. Thus no weight can be given to such allegations as to
the exercise of Spanish sovereignty in recent times—quite apart from the fact that the
evidence in question belongs to an epoch subsequent to the rise of the dispute.
24
Apart from the facts already referred to concerning the period of discovery, and the
mention of a letter sent 31 Jul 1604 by the Spanish pilot Bartolome Pérez from Palmas, the
contents of which are not known, and apart from cetain allegations as to commercial
relations between Palmas and Mindanao, the Arbitrator has seen no sign of Spanish
activities of any kind specifically on Palmas.
NO SOUND DOCUMENTARY EVIDENCE EITHER. Neither is there any official document
mentioning Palmas as belonging to an administrative or judicial district of the former
Spanish Govt of the Phils. A letter from the aforementioned Provincial Prelacy of the
Franciscan Order: “Palmas should belong to the group of Islands of Sarangani and
consequently to the District of Divao in the Island of Mindanao... Palmas, as it was near to
Mindanao, must have been administered spiritually in the last years of Spanish dominion
by the fathers who resided in the District of Dávao.” The very terms of this letter suggest
that these statements are not based immediately on information taken on the spot, but are
rather conjectures of the author.
In the US Rejoinder, there is an extract from a letter of the Dutch missionary Steller, dated
9 Dec 1895. It appears that the Resident of Menado, at the same time as he set up the
Netherlands coat of arms at Palmas [more on this later], had intended to present a medal
to the native Chief of the island for having refused to display the Spanish flag when in
Mindanao on business. Assuming these facts are correct, they are not proof of a display of
sovereignty over Palmas; rather the contrary. Such refusal by the native chief should have
led either to direct action on the Island in order to affirm Spanish sovereignty, or, if the
Netherlands’s rights had been invoked, to negotiations such as were the sequel to Gen.
Wood’s visit in 1906.
US SAYS THE PALMAS NATIVES KNEW SPANISH. But even if this were sufficiently
established, it is too vague to indicate the exsitence of a political and administrative
connection between Palmas and Mindanao.
ALLEGED SPANISH ADMINISTRATIVE INSPECTION, INCONCLUSIVE. Telegram from
Gen. Wood to the Bureau of Insular Affairs: “[T]he administrative inspection of the islands
in the south [of the Phils.], especially round their coasts, belonged absolutely to the naval
Spanish authorities.” As papers pertaining to military and naval matters were not handed
over to the US under the Treaty of Paris, the files relating to said administrative inspection
are not in the possession of the US. The fact that not the ordinary provincial agencies, but
the navy, were in charge of the said inspection of the islands suggests that the complete
absence of evidence as to display of Spanish sovereignty over Palmas in the
establishment or the maintenance of her rule over a small island lying far off the coast of a
distant and only incompletely subdued province [sic].
US COMPLAINS IT COULDN’T OBTAIN EVIDENCE, having acquired sovereignty by
cession only in 1898. But the Arbitrator can’t take this situation into account; he can found
his award only on the facts alleged and proved by the Parties, and he is bound to consider
all proved and pertinent facts. Moreover it doesn’t appear that the Spanish Govt refused to
furnish the documents requested.
OTHER POSSIBLE INDIRECT EVIDENCE: FROM MAPS submitted by the US as indirect
proof not of the exercise of sovereignty but of its existence in law. But a comparison of the
information supplied by the 2 Parties shows that only with the greatest caution can account
be taken of maps in deciding the question of sovereignty over Palmas. Any maps which do
not precisely indicate the political distribution of territories, and in particular Palmas clearly
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marked as such, must be rejected forthwith, unless they contribute—supposing they are
accurate—to the location of geographical names. Moreover, indications of such a nature
are only of value when there is reason to think that the cartographer has not merely
referred to already existing maps—as seems very often to be the case—but that he has
based his decision on information carefully collected for the purpose. Official or semi-
official maps seem able to fulfill these conditions, and they would be of special interest
where they do not assert the sovereignty of the country the Govt of which has caused them
to be issued. But if the Arbitrator is satisfied as to the existence of legally relevant facts
which contradict the statements of cartographers whose sources of information are not
known, he can attach no weight to the maps.
INACCURATE MAPS: ISLAND CONFUSION! Firstly, to serve as evidence on points of
law, maps must have geographical accuracy. Notably, not only ancient but also modern,
even official or semi-official maps lack accuracy. Thus a comparison of the submitted
maps shows doubt as to the existence or the names of several islands which should be
close to Palmas. The St. Joannes Islands, Hunter’s Island, and the Isle of Mata are shown
on several maps, even recent ones, although their existence seems doubtful; that Mata
does not exist and that the other two islands are the same as Palmas may be considered
as fairly certain. [Such islands keep showing up and getting switched around with Palmas
in various maps, such as] the Century Atlas, the 1902 map published by the US Bureau of
Insular Affairs, the Spanish map (Captain Montero) reproduced by the US War Dept, and
the map of the 1885 Challenger Expedition. The only large-scale map submitted which
appears to be directly based on on-the-spot research is that attached to the Netherlands
Memorandum, British Admiralty Chart No. 2575. These points show that only with the
greatest caution can use be made of maps as indications of the existence of sovereignty
over Palmas. The US maps give no indication as to political frontiers or merely reproduce
the lines traced in the Paris Treaty; they have therefore no bearing on the point in question,
even apart from the evident inaccuracies.
There are two Dutch maps in particular which, in the view of the US, possess an official
character and which might exclude Palmas from the Dutch possessions. The official
character of the one published in 1857 by M. Bogaerts, lithographer to the Royal Military
Academy, is disputed in the Netherlands Counter-Memorandum, may serve to indicate that
Palmas was considered Spanish, not Dutch, territory. Anyhow, a map affords only an
indication—and a very indirect one—and, except when annexed to a legal instrument, has
not the value of such an instrument, involving recognition or abandonment of rights. The
importance of this map can only be judged in the light of facts prior or subsequent to 1857,
which the Netherlands alleges in order to prove the exercise of sovereignty over Palmas.
Bogaerts’s map does not furnish proof of the recognition of Spanish sovereignty, and is
also inaccurate. As for the other map, the atlas published by the Ministry for the Colonies
(Atlas der Nederlandsche Bezittingen in Oost-Indië [1883-1885]), the US’s conclusion
drawn therefefrom appear to be refuted by the information in the Netherlands Counter-
Memorandum. A detailed map from the same atlas is reproducted showing “Miangis
(Palmas)” among Dutch possessions, not only by the colors but also because it indicates
the Sarangani Islands as “Amerikaansch”. The general map, on the other hand, excludes
the former island from Dutch territory by a line of demarcation between the different
colonial possessions. There seems to be no doubt that the special map must prevail over
the general, even though the latter was published 3 months later. A special map contained
in the first edition of the same atlas has the same flaws as Bogaerts’s map. The
Netherlands explains that the authors of the special map did not rely on new and authentic
information, but merely reproduced older maps.
25
LASTLY, TITLE ARISING OUT OF CONTIGUITY. ARBY TRASHES IT. Although States
have in certain circumstances maintained that islands relatively close to their shores
belonged to them in virtue of their geographical situation, it is impossible to show the
existence of a rule of positive international law to the effect that islands situated outside
territorial waters should belong to a State from the mere fact that its territory forms the
terra firma (nearest continent or island of considerable size). Not only would it seem that
there are no precedents sufficiently frequent and sufficiently precise in their bearing to
establish such a rule, but the alleged principle itself is by its very nature so uncertain and
contested that even Govts of the same State have on different occasions maintained
contradictory opinions as to its soundness. The principle of contiguity, in regard to islands,
may not be out of place when it is a question of allotting them to one State rather than
another, either by agreement between the Parties or by a decision not necessarily based
on law; but as a rule establishing ipso jure the presumption of sovereignty in favor of a
particular State, this principle would be in conflict with what has been said as to TS and as
to the necessary relation between the right to exclude other States from a region and the
duty to display therein the activities of a State. Nor is this principle admissible as a legal
method of deciding questions of TS; for it is wholly lacking in precision and would in its
application lead to arbitrary results. This would be especially true in a case such as that of
the island in question, which is not relatively close to one single continent, but forms part of
a large archipelago in which strict delimitations between the different parts are not naturally
obvious.
BUT OF COURSE, IT DEPENDS. There lies, however, at the root of the idea of contiguity
one point which must be considered. It has been explained that in the exercise of TS there
are necessarily gaps, intermittence in time and discontinuity in space. This phenomenon
will be particularly noticeable in the case of colonial territories, partly uninhabited or as yet
partly unsubdued. The fact that a State cannot prove display of sovereignty as regards
such a portion of territory cannot forthwith be interpreted as showing that sovereignty is
inexistent. Each case must be appreciated in accordance with the particular
circumstances. It should be observed however that international arbitral jurisprudence in
disputes on TS (e.g. the arbitration between Italy and Switzerland concerning the Alpe
Craivarola) would seem to attribute greater weight to acts, even isolated ones, of display of
sovereignty than to continuity of territory, even if such continuity is combined with the
existence of natural boundaries.
PECULIAR TO ARCHIPELAGOES. It is possible that a group of islands may under
certain circumstances be regarded as in law a unit, and that the fate of the principal part
may involve the rest. Here, however, we must distinguish between the act of first taking
possession on the one hand, which can hardly extend to every portion of territory, and on
the other hand the display of sovereignty as a continuous and prolonged manifestation
which must make itself felt through the whole territory.
BUT PALMAS STANDS ALONE. It is a somewhat isolated island, and therefore a territory
clearly delimited and individualized. It is moreover permanently inhabited by a population
sufficiently numerous for it to be impossible that acts of administration could be lacking for
very long periods. The memoranda of both Parties assert that there is communication by
boat and even with native craft between Palmas and neighboring regions. The inability in
such a case to indicate any acts of public administration makes it difficult to imagine the
actual display of sovereignty, even if the sovereignty be regarded as confined within such
narrow limits as would be supposed for a small island inhabited exclusively by natives.
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IV. NETHERLANDS ASSERTS CONVENTIONS WITH NATIVES. The East India
Company allegedly established Dutch sovereignty over Palmas as early as the 17th century
by means of conventions with native princes and chieftains of the principal island of the
Talautse Isles (Sangi Islands), and that sovereignty has been displayed during the past 2
centuries. All these native principalities are situated in the northern part of Sangi Island
and, at any rate since 1885, include also certain small islands further north, one of which is
allegedly Palmas.
COMMENT: UNQUESTIONABLE AUTHENTICITY OF DOCUMENTARY EVIDENCE.
The texts of several such conventions are annexed to the Netherlands Memorandum. The
authenticity of these contracts cannot be questioned; the fact that true copies, certified
evidently by competent Dutch govt officials, have been submitted renders the production of
facsimiles of texts and of signatures or seals superfluous. This observation equally applies
to other documents or extracts therefrom taken from the archives of the East India
Company or of the Netherlands Govt. There is no reason to suppose that typographical
errors in the reproduction of texts may have any practical importance for the evidence in
question.
LOCAL PRINCES MADE DUTCH VASSALS. These successive contracts are similar;
the more recent are more developed and better suited to modern ideas in economic,
religious, and other matters, but they are all based on the conception that the prince
receives his principality as a fief of the Company or the Dutch State, which is suzerain.
Their eminently political nature is confirmed by the supplementary agreements of 1771,
1779, and 1782 concerning the obligations of vassals in the event of war. The 1885
contract is the most recent prior to the cession of the Philippines and contains, besides the
allocation of powers for internal administration, the following provs: exclusion of the Prince
from any direct relations with foreign Powers and even with their nationals in important
economic matters; the currency of the Dutch Indies as legal tender; jurisdiction over
foreigners belonging to the Dutch Indies Govt; and the vassal’s obligation to suppress
slavery and privacy and to render assistance to the shipwrecked. Even the oldest (1677)
contract contains clauses binding the vassal to refuse to admit the nationals of other
States, especially Spain, into his territories, and to tolerate no religion besides
Protestantism. If both Spain and Netherlands had in reality displayed their sovereignty
over Palmas, during so long a time collisions between them must have been inevitable.
NETHERLANDS’S GENERAL SOVEREIGNTY IN THE AREA ESTABLISHED. The fact
that these contracts were renewed from time to time and appear to indicate an extension of
the influence of the suzerain seems to show that the regime of suzerainty has been
effective. Dutch sovereignty over the Sangi and Talauer Islands is moreover not disputed.
There is here a manifestation of TS normal for such a region. Two questions now: Was
Palmas in 1898 a part of territory under Netherlands’s sovereignty? and Did this
sovereignty actually exist in 1898 in regard to Palmas, and are the facts alleged on this
subject proven?
SOVEREIGNTY MUST BE SHOWN SPECIFICALLY OVER THE TERRITORY. If the
claim to sovereignty is based on the continuous and peaceful display of State authority, the
fact of such display must be shown precisely in relation to the disputed territory. It is not
necessary that there should be a special administration established in this territory; but it
cannot suffice for the territory to be attached to another by a legal relation not recognized
in international law as valid against a State contesting this claim to sovereignty; what is
essential in such a case is the continuous and peaceful display of actual power in the
contested region.
26
INDICATIONS OF DUTCH SOVEREIGNTY? According to the 1885 contract, the list of
dependencies of Taruna on the Talauer Islands mentions first the different islands of
Nanusa, and ends with “and lastly the island Melangis (Palmas).” There are similar terms
in the 1899 contract. If these two mentions refer to Palmas, it must be recognized that that
island, at least nominally, belongs to that vassal State; it is not necessary to prove the
existence of a special contract with a chieftain of Palmas. Furthermore, the reports
furnished by both sides of the visit of Gen. Wood in Jan 1906 show that at that time there
were at least traces of continuous relations between Palmas and neighboring Dutch
possessions, and even traces of Dutch sovereignty. Wood noted that the Dutch flag was
flying on the beach and on the boat which came to meet the American ship. He was
informed that the flag had been there for 15 years and perhaps longer. This information
plus that in the contracts of 1885 and 1899 makes it necessary to examine the nature of
the facts invoked as proving Netherlands sovereignty, and to what periods the facts relate.
Have the Netherlands displayed sovereignty over Palmas in an effective continuous and
peaceful manner at a period at which such exercise may have excluded the acquisition of
sovereignty, or a title to such acquisition, by the US?
* BUT 2 PRELIMINARY POINTS, raised by the US, relating to: (1) the power of the East
India Company to act validly under international law on behalf of the Netherlands, in
particular by concluding so-called political contracts with native rulers; and (2) the identity
or non-identity of Palmas with the island to which the Netherlands’s allegations as to
display of sovereignty would seem to relate.
* (1) THE EAST INDIA COMPANY ACTS ON BEHALF OF THE STATE. The acts of the
East India Company, in view of occupying or colonizing the regions at issue must, in
international law, be entirely assimilated to acts of the Netherlands State itself. From the
end of the 16th till the 19th century, companies formed by individuals and engaged in
economic pursuits (Chartered Companies) were invested by the State to whom they were
subject with public powers for the acquisition and administration of colonies. The Dutch
East India Company is one of the best known. Art. V of the Treaty of Münster and
consequently also the Treaty of Utrecht clearly show that the East and West India
Companies were entitled to create situations recognized by international law. The
Company had the power to conclude conventions, even of a political nature, by Art. XXXV
of the Charter of 1602. It is a question for decision in each individual case whether a
contract concluded by the Company falls within the range of simple economic transactions
or is of a political and public administrative nature.
* LEGAL EFFECT OF CONTRACTS BETWEEN A STATE AND NATIVE RULERS of
peoples not recognized as members of the community of nations: They are not, in the
international law sense, treaties or conventions capable of creating rights and obligations
such as may, in international law, arise out of treaties. But, on the other hand, contracts of
this nature are not wholly void of indirect effects on situations governed by international
law; if they do not constitute titles in international law, they are none the less facts of which
that law must in certain circumstances take account. From the time of the discoveries until
recent times, colonial territory has very often been acquired, especially in the East Indies,
by means of contracts with the native authorities, which contracts leave the existing
organisation more or less intact as regards the native population, whilst granting to the
colonizing Power, besides economic advantages such as monopolies or navigation and
commercial privileges, also the exclusive direction of relations with other Powers, and the
right to exercise public authority in regard to their own nationals and to foreigners. The
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form of the legal relations created by such contracts is most generally that of suzerain and
vassal, or of the so-called colonial protectorate.
In substance, it is not an agreement between equals; it is rather a form of internal
organisation of a colonial territory, on the basis of autonomy for the natives. In order to
regularise the situation as regards other States, this organisation requires to be completed
by the establishment of powers to ensure the fulfilment of the obligations imposed by
international law on every State in regard to its own territory. And thus suzerainty over the
native State becomes the basis of territorial sovereignty as towards other members of the
community of nations. It is the sum-total of functions thus allotted either to the native
authorities or to those of the colonial Power which decides the question whether at any
certain period the conditions required for the existence of sovereignty are fulfilled. It is a
question to be decided in each case whether such a regime is to be considered as
effective or whether it is essentially fictitious, either for the whole or a part of the territory.
There always remains reserved the question whether the establishment of such a system
is not forbidden by the pre-existing rights of other States.
This system of contracts between colonial Powers and native princes and chiefs is even
expressly approved by Article V of the Treaty of Munster quoted above; for, among the
“Potentates, Nations and Peoples”, with whom the Dutch State or Companies may have
concluded treaties of alliance and friendship in the East and West Indies, are necessarily
the native princes and chiefs.
* THE US AGREES, SORT OF. This point of view conforms, at least in principle, with the
US attitude in the aforementioned note from the Secretary of State to the Spanish Minister
dated 7 Jan 1900 and relating to 2 small islands lying just outside the line drawn by the
Treaty of Paris, but claimed by the US thereunder: The islands “have not hitherto been
directly administered by Spain, but have been successfully claimed by Spain as a part of
the dominions of Spain as a part of the dominions of her subject, the Sultan of Sulu.”
* (2) THE IDENTITY OF THE ISLAND MUST BE CONSIDERED ESTABLISHED by the
large-scale map, sent to the Gov-Gen of the Netherlands Indies by the Resident of
Menado in Jan 1886. It indicates in different colors the administrative districts on the Sangi
and Talauer Islands in almost complete conformity with the description of the territory of
Taruna given in the annex to the contract of 1885. This large scale map, prepared
evidently for administrative purposes, shows an isolated island “Palmas of Melangis”
which, though not quite correct in size and shape and location, cannot but correspond to
Palmas, since the most reliable detailed modern maps, in particular the British Admiralty
Chart, show no other island but Palmas in that area, i.e. between the Talauer or Nanusa
Islands and Mindanao.
* CORROBORATION. This comparatively correct location of the island is supported by
earlier maps: The map edited at Amsterdam by Covens & Mortier, date unsure but within
the 18th century, and contained in the 1855 book by the navigator Cuarteron, shows the
island distinctly as a Dutch possession by color. It is accompanied by geographical
information and detailed, though evidently only approximate, statistical information about
the composition of the population, from an author who travelled extensively in these parts,
against whose reliability not sufficient reasons have been given. Also, the reports of the
Commander of the Dutch Govt Steamer “Raaf” (November 1896) and of H.M.S. “Edi”
(June 1898) show that the Dutch authorities were quite aware of the identity of “Miangas”
with the island charted on many maps as “Palmas”. Meanwhile, the special map issued in
1901 in the Atlas van Nederlandsch Oost-Indië also showed “Miangis” as a Dutch
27
possession in the place indicated in the Agreement, conforming among others with the
Government’s special map of 1886.
* A ROSE BY ANY OTHER NAME. It should be noted that in the different documents
referred to in the Netherlands Memorandum and Counter-Memorandum more than a
dozen variations of the name “Miangas” appear. These differences, sometimes
considerable at first sight, are sufficiently explained by the statements of linguistic experts,
produced by the Netherlands Government. The Arbitrator blames it on the peculiarity of
the native language from which the name of the island is borrowed and the difficulty of
transposing the sounds of this language into a western alphabet. Moreover, the difference
of spelling would not justify the conclusion that the more or less different names referred to
different islands; for in the whole region in question no other island has been mentioned to
which these names – or at least most of them – would better apply; for all other islands are
clearly distinguished. Finally, it may be noted that the information concerning Palmas or
the other islands which are to be identified with it contains, except for the most recent
period, nothing which relates to the population of the island; moreover the names also
given to Palmas may have been given by navigators who did not land or get into contact
with the natives. Miangas however is a native name. The name of Miangas as designating
an inhabited place is much older than the establishment of the more centralized village in
1892. Resultantly, when the contracts of 1885 and 1899 mentioned a single island
“Melangis” or “Miangis”, only the island in dispute could have been meant; evidently this
island has been known under these same or similar names at least since the 18 th century.
Under these circumstances no weight can be given to the fact that on Bogaerts’s map of
1857 and in the atlas of Stemfort and Siethoff, as well as on other maps, a group of islands
called Meangis, or a similar name, appears.
* ISLAND CONFUSION, REDUX. There is a supposition [by the US? Not said] that
Palmas is the same as Ariaga, which is according to the US Memorandum, quoting one
Baron Melvill van Carnbee, uninhabited; no evidence has been submitted to support this.
The US also tries to stres the fact that all or some of the Nanusa Islands are designated by
several distinguished cartographers and navigators of the 19th century, including some
Dutchmen like Carnbee, as “Islands Meangis” or by some similar name. This is true, but it
cannot however prove that the island Miangas mentioned as a dependency of Tabukan or
Taruna or Kandahar-Taruna is to be identified with the Nanusa Isles. Clearly the
cartographers were thus referring to a group of islands; Palmas is a single, distant, isolated
island. The attribution of the name Meangis to the Nanusa seems to be an error. Seeing
that up to very recent times an extraordinary inexactitude about the names and the location
of the islands in precisely that part of the Celebes Sea is shown to exist by almost all the
maps filed by the Parties, including the two Carnbee maps, an erroneous attribution of the
name “Miangas”, even by Dutch cartographers, is easily possible. Furthermore, there are,
on some maps, 3 “English Menangis Islands” which did exist, but have by now
disappeared because of earthquakes such as reported by Cuarteron.
NETHERLANDS’S EVIDENCE (finally): PALMAS UNDER TABUKAN, UNDER
NETHERLANDS. The Netherlands has adduced documents relating to the 17th and 18th
centuries, purportedly showing that already at that date the Prince of Tabukan had not only
claimed, but also actually displayed a certain authority over Palmas. The Netherlands
stresses that Dutch navigators in search of the islands Meangis mentioned by Dampier
were sailing in the seas south of Mindanao and not only came in sight of Palmas, they
were also able to state that the island belonged to the native State of Tabukan, which was
under Dutch suzerainty as shown by the contracts of 3 Nov 1677 and 26 Sept 1697.
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THREE SHIPS’ VISIT. The Dutch East India Company’s flag was seen being waved by
the people of the island when 3 Dutch ships were in sight of the island on 21 Nov 1700.
The commander of one ship, the Larycque, who had already sighted the island on Nov 12th
of the same year, landed on Dec 9-10 with instructions to make more precise
investigations. Not only was the Prince’s flag again hoisted by the natives, but the
inhabitants informed the sailors that the name of the island was “Meangis”. They gave to
the commander a document – lost since that time – which, dating from 1681 and
emanating from Marcus Lalero, the late king of Tabukan, whose existence and death are
confirmed by the contract of 1697, stated the allegiance of the people of “Miangis” towards
Tabukan. There exists however only an indirect report on this visit, namely a letter dated 11
May 1701, and sent by the Governor in Council of the Moluccas at Ternate to the Governor
General and India Council. All indications (the said statements; all reports mentioning one
isolated island; there is no other single island in those parts of the Sea of Celebes; unlikely
that the sailors in Nov-Dec 1700 visited different islands) are of the island visited by the
Larycque in Dec 1700 having been Palmas.
DOCUMENTARY EVIDENCE. A document dated 1 Nov 1701 mentions an island
“Meamgy” in connection with regulations as to criminal justice in the native State of
Tabukan, said island reportedly the one visited 10 Dec 1700. “Miangas” is mentioned in a
report of the Governor of Ternate, dated 11 Jun 1706, as the northernmost of the
dependencies of the native States of Tabukan and Taruna and is explicitly identified with
the island first seen by the Larycque 21 Nov 1700. Finally, another such report dated 12
Sept 1726 mentions a decision on whether 80 inhabitants of the Talauer Islands who had
arrived at Taruna from “Meangas” were subjects of Taruna or of Tabukan; again “Meangas”
is expressly identified with that visited in 1700 by the commander of the Larycque. The
documentary evidence, taken together with the fact that no island called Miangas (or
similarly) seems to exist north of the Talautse and Talauer Isles, establishes that Palmas
was, in the early part of the 18th century, considered part of the vassal State of Tabukan.
Indeed, in an official report of 1825, the “far distant island Melangis” is mentioned again as
belonging to Tabukan. Afterward, Taruna, another vassal State, claimed the island as its
own; a report of the Governor of Menado, dated 31 Dec 1857, mentions “Melangis” as part
of Taruna, a state of things maintained in the contracts of 1885 and 1899. From the point
of view of international law, the transfer from one to another vassal State is to be
considered as a purely domestic affair of the Netherlands; for their suzerainty over
Tabukan and Taruna goes back far beyond the date of this transfer. All these facts, plus
that no display of sovereignty by any other Power during the same period is known,
indicate that at least in the first quarter of the 18 th century and probably also before then,
the Dutch East India Company exercised rights of suzerainty over Palmas; therefore the
island was, at that time, in conformity with the international law of the period, under
Netherlands sovereignty.
OKAY, DUTCH POSSESSION AT ONE POINT, BUT THAT DOESN’T REALLY PROVE
ANYTHING YET. 26 There is no evidence that this state of things had already existed in
1648 and had thus been confirmed by the Treaty of Münster. It suffices to refer to what
has already been said as to this Treaty in connection with the title claimed by Spain. On
26
An attempt at a paraphrase of this paragraph: No evidence na umabot ang situation na ‘to (Palmas under
Tabukan, which was under the Dutch) sa Münster Treaty (1648). That’s why, on the one hand, hindi masasabing
may title na ang Dutch sa Palmas dahil sa Münster Treaty. On the other hand, neither treaty can be used to
invalidate Dutch sovereignty in case na-acquire na ito over Palmas after the Münster Treaty. The only clear thing
is that the Utrecht Treaty (1714) recognized Dutch sovereignty over “potentates, nations and peoples with whom
[they] are in friendship and alliance,” which would include Tabukan, which would include Palmas, kasi diba it
was under Tabukan according to all the earlier evidence.
28
the one hand, it cannot be invoked as having transformed a state of possession into a
conventional title inter partes, for the reason that Dutch possession of Palmas is not
proved to have existed at the critical date. On the other hand, it was stated that neither the
Treaty of Münster nor the Treaty of Utrecht, if they are at all applicable to the case, could at
present be invoked for invalidating the acquisition of sovereignty over Palmas by the Dutch
after 1648. It follows rather from what has been said about the rights of Netherlands
suzerainty over Tabukan in the early 18th century, and as to relations between Tabukan
and Palmas, that the Treaty of Utrecht recognized these rights of suzerainty as comprising
the radja of Tabukan amongst the “potentates, nations and peoples with whom the Lords
States or members of the East and West India Companies are in friendship and alliance”.
NO PRESUMPTIONS AS TO INTERIM PERIOD. The admission of the existence of TS
early in the 18th century and the display of such sovereignty in the 19th century, particularly
in 1906, would not lead—contrary to the Netherlands’s supposition—by analogy with
French, Dutch, and German civil law, to there being a rebuttable presumption that
sovereignty existed in the meantime. For the reasons given above, no presumptions of
this kind are to be applied in international arbitrations, except under express stipulation. It
remains for the Tribunal to decide whether or not it is satisfied of the continuous existence
of sovereignty, on the ground of evidence as to its display at more or less long intervals.
There is a considerable gap in the documentary evidence as to sovereignty over Palmas in
particular (and not just over Tabukan), although at the same time there is no reason to
suppose that relations between Tabukan and “Melangis” did not take place between 1726
and 1825.
19TH CENTURY: ADMINISTERED BY NATIVES An 1825 report by Resident Van Delden,
as well as later documents relating to the 19th century, shows that Miangas was always
considered by the Dutch authorities as belonging to the Sangi and Talauer Isles and as
being in a particular connection with the Nanusa. A report of the Resident of Manado, 12
Aug 1857, relates that “Melangis” goes with the Nanusa and is administered by one
“radja”; the report leaves no room for doubt as to the island’s legal situation at that time. It
conforms with the territorial description given for Palmas in the 1885 and 1899 contracts,
and with a table dated 15 Sept 1889 showing the whole system of administrative districts in
the Talauer Islands. But it seems that, before 1895, the direct relations between the island
and the colonial administration were very loose. The Resident of Menado reported on a
visit paid to the island in Nov 1895 and said that, according to the natives, no ship had
before then ever visited the island, and that no European had ever been there. The
commander of HMS Edi, patrolling the Celebes Sea in 1898, mentioned that “in man’s
memory a steamer had never been at Miangas”. But the Netherlands has presented
depositions, two in the native language, from certain natives, chiefs and others, mostly of
good age, whose memories go back far beyond 1906—at least to 1870—that reveal that
the people of Miangas used to send yearly presents to the radja of Taruna as token of their
submission; meanwhile the radja of Taruna was obliged to give assistance to the island in
case of distress. A deposition made by a Dutch civil officer lists 8 headmen who had been
instituted at Miangas until 1917 either by the radja or by the Resident of Menado. These
depositions are at least partly supported by documentary evidence, like the list of headmen
(a 15 Sep 1889 decree by the Resident of Menado). Lastly, orders were given 13 May
1898 to HMS Edi to patrol the coasts of NE Celebes and Ternate and the Sangi and
Talauer Islands, and, “if necessary, to make respected the rules for the maintenance of
strict neutrality”. The log-book of the ship proves that H.M.S. “Edi” twice visited Palmas in
June and in September 1898.
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TAXATION. Most importantly, however, there is documentary evidence as to the taxation
of the people of Miangas by the Dutch authorities. While in earlier times the tribute was
paid in mats, rice and other objects, it was, in conformity with the contract with Taruna of
1885, replaced by a capitation tax, to be paid in money. On a table containing the number
of taxpayers and the amount to be paid for certain dependencies in the Talauer Islands,
“Menagasa” ranks under the dependencies of Taruna, with 88 taxpayers. A report of the
Controleur of Taruna, dated 17 Nov 1896, and a report by the commander of HMS Edi,
dated 18 Jun 1898, both confirm the effective payment of the tax.
COATS OF ARMS. The Controleur’s report also mentions that on 4 Nov 1896, a coat of
arms was handed to the administrative head of “Melangis”; the same thing happened 2
days before on an island of the Nanusa. In both cases, the native authorities were
informed as to the meaning of this act. The distribution of coats of arms and flags as signs
of sovereignty is regulated by instructions sanctioned by the Crown in 1843. The coats of
arms placed at Miangas in 1896 were found in good state by H.M.S. “Edi” in 1898; their
existence in 1895 and 1898 is proved by sketches made by Dutch ship officers.
20TH CENTURY: IGNORE. It is to be observed that events subsequent to 1906 must in
any case be ruled out, in accordance both with the general principles of arbitral procedure
between States and with the understanding arrived at between the Parties in the note of
the Department of State, dated 25 Jan 1915, and the note of the Netherlands Minister at
Washington, dated 29 May 1915. The events falling between the Treaty of Paris, (10 Dec
1898) and the rise of the present dispute in 1906, cannot in themselves serve to indicate
the legal situation of the island at the critical moment when the cession of the Philippines
by Spain took place. They are however indirectly of a certain interest. It is to be noted in
the first place that there is no essential difference between the relations between the Dutch
authorities and Palmas before and after the Treaty of Paris. There cannot therefore be any
question of ruling out the events of the period 1899–1906 as possibly being influenced by
the existence of the said Treaty. The contract with Kandahar-Taruna of 1899 runs on the
same lines as the preceding contract of 1885 with Taruna, and was in preparation already
before 1898. The system of taxation, as shown by the table of the years 1904 and 1905, is
the same as that instituted in 1895. The headman instituted in 1889 was replaced only in
1917. Assistance was given in the island through [Dutch] Govt assistance after an Oct
1904 typhoon; this in itself was not necessarily a display of State functions, but was
considered as such judging from the 31 Dec 1904 report of the Resident of Menado.
V. MISHTER ARBITRATOR, LET’SH HAVE A SHUMMARY.
[1] The US claim is derived from Spain by way of cession under the Treaty of Paris. The
latter Treaty has not created in favor of the US any title of sovereignty not previously
vested in Spain, even though it comprises Palmas within the limits of cession and the
Netherlands never made reservations or protest as to these limits. The essential point is
therefore whether Spain had sovereignty over Palmas at the time the Treaty of Paris came
into force.
The US bases its claim on the titles of discovery, of recognition by treaty, and of contiguity,
i.e. titles relating to acts or circumstances leading to the acquisition of sovereignty; they
have however not established the fact that sovereignty so acquired was effectively
displayed at any time.
[2] The Netherlands founds its claim to sovereignty essentially on the title of peaceful and
continuous display of State authority over the island. Since this title would in international
law prevail over a title of acquisition of sovereignty not followed by actual display of State
29
authority, it is necessary to ascertain in the first place, whether the contention of the
Netherlands is sufficiently established by evidence, and, if so, for what period of time.
[3] The Netherlands has successfully established the ff facts:
(a) Palmas is an island which has formed, at least since 1700, successively a part of 2
native States on the Island of Sangi.
(b) These native States were, from 1677 onwards, connected with the East India
Company, and thereby with the Netherlands, by contracts of suzerainty, which conferred
upon the suzerain such powers as would justify his considering the vassal State as a part
of his territory.
(c) Acts characteristic of State authority exercised either by the vassal State or by the
suzerain Power in regard precisely to Palmas have been established as occuring at
different epochs between 1700 and 1898, and in 1898-1906.
CONCLUSIONS: REQ’TS FOR THE DISPLAY OF SOVEREIGNTY. NETHERLANDS 1,
US 0. The acts of indirect or direct display of Netherlands sovereignty at Palmas,
especially in the 18th and early 19th centuries, are neither numerous nor continuous. BUT
apart from the consideration that the manifestations of sovereignty over a small and distant
island, inhabited only by natives, cannot be expected to be frequent, it is not necessary
that the display of sovereignty should go back to a very far distant period. It may suffice
that such display existed in 1898, and had already existed as continuous and peaceful
before that date long enough to enable any Power who might have considered herself as
possessing sovereignty over the island, or having a claim to sovereignty, to have,
according to local conditions, a reasonable possibility for ascertaining the existence of a
state of things contrary to her real or alleged rights.
It is not necessary that the display of sovereignty should be established as having begun at
a precise epoch; it suffices that it had existed at the critical period preceding the year 1898.
It is quite natural that the establishment of sovereignty may be the outcome of a slow
evolution, of a progressive intensification of State control. This is particularly the case, if
sovereignty is acquired by the establishment of the suzerainty of a colonial Power over a
native State, and in regard to outlying possessions of such a vassal State. Now, the
evidence relating to the latter half of the19th century establishes that the Netherlands
Indian Government considered the island distinctly as a part of its possessions and that, in
the years immediately preceding 1898, an intensification of display of sovereignty took
place.
NO CONTEST = PEACEFUL AND CONTINUOUS. The Spaniards, withdrawing from the
Moluccas in 1666, made express reservations as to the maintenance of their sovereign
rights. From then till the US asserted its claim over Palmas in 1906, there was no
contestation or other action/protest against the exercise of territorial rigths by the
Netherlands over the Sangi Isles and their dependencies, incl. Miangas. Therefore the
peaceful character of the display of Netherlands sovereignty, for the entire period to which
the [spotty] evidence concerning acts of display relates, must be admitted. There is
moreover no evidence which would establish any act of display of sovereignty over the
island by Spain or another Power, at least from the middle
of the 17th century onwards, such as might counter-balance or annihilate the
manifestations of Netherlands sovereignty. These circumstances, together with the
absence of any evidence of conflict between the Spanish and Dutch over 200+ years over
Palmas, indirectly prove the exclusive display of Netherlands authority.
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WAS THERE ANY LEGAL DEFECT IN THE DISPLAY OF STATE AUTHORITY, such that
the latter could not create a valid title of sovereignty? [No.] With regard to the conditions
of acquisition of sovereignty by way of continuous and peaceful display of State authority
(so-called prescription), it must be said that the display has been open and public, that is
to say that it was in conformity with usages as to exercise of sovereignty over colonial
States. A clandestine exercise of State authority over an inhabited territory during a
considerable length of time would seem to be impossible. The Netherlands had no
obligation to notify other Powers as to her establishment of suzerainty over the Sangi
States, or as to her display of sovereignty in the territories. Such notification, like any other
formal act, can only be the condition of legality as a consequence of an explicit rule of law.
A rule of this kind adopted by the Powers in 1885 for the African continent does not apply
de plano to other regions. Thus, supposing the 1885 or 1889 contracts were to be
considered as the first assertions of Dutch sovereignty over Palmas, they would not be
subject to the rule of notification. Thus there can further be no doubt that the Netherlands
exercised the State authority over the Sangi States as sovereign in their own right, not
under a derived or precarious title. Incidentally, it need not be decided whether the
establishment of Dutch sovereignty over the Sangi Isles in 1677 violated the Münster
Treaty and therefore might have been prevented from achieving the acquisition of
sovereignty, even by means of prolonged exercise of State authority; the Treaty of Utrecht
recognized the state of things as they were in 1714, including the suzerain right of the
Netherlands over Tabukan and [therefore] Miangas.
THE US HAS NO EQUIVALENT OR STRONGER TITLE. The title of discovery, if it had
not been already disposed of by the Treaties of Münster and Utrecht would, under the most
favourable and most extensive interpretation, exist only as an inchoate title, as a claim to
establish sovereignty by effective occupation. An inchoate title however cannot prevail over
a definite title founded on continuous and peaceful display of sovereignty. The title of
contiguity, understood as a basis of TS, has no foundation in international law. The title of
recognition by treaty does not apply, because even if the Sangi States, with the
dependency of Miangas, are to be considered as “held and possessed” by Spain in 1648
(Münster Treaty), the rights of Spain to be derived from said Treaty would have been
superseded by those which were acquired by the Treaty of Utrecht. Whatever evidence
there is of possession over Palmas in 1714 (Utrecht Treaty) is in favor of the Netherlands.
But even if the Treaty of Utrecht could not be taken into consideration, the acquiescence of
Spain in the situation created after 1677 would bar her and her successors from now
invoking conventional rights.
NETHERLANDS WIN. The Netherlands title of sovereignty, acquired by continuous and
peaceful display of State authority during a long period of time going probably back beyond
the year 1700, therefore holds good.
[VI.] AN AWARD BASED ON RELATIVE STRENGTH OF TITLE AND ON STRICTLY
LIMITED EVIDENCE. Assuming arguendo the evidence were insufficient to establish
continuous and peaceful display of sovereignty over Palmas – as is submitted by the US–
the same conclusion would be reached. In such a case, no Party would have established
its claims to sovereignty over the Island and the decision of the Arbitrator would have to be
founded on the relative strength of the titles invoked by each. This possible outcome
(based on relative strength of titles) must have been envisaged by the Parties, because it
was foreseen that the evidence might prove insufficient to lead to clear conclusions. The
terms of the Agreement presuppose that Palmas can belong only to one Party or the other,
since according to the Preamble the Agreement’s object is to “terminate” the dispute. Thus
it is the evident will of the Parties that the arbitral award shall not conclude by a “non
30
liquet”, but by a decision that the island forms part of the territory of only one Party. Hence,
no presumption in favor of Spanish sovereignty can be based in international law on the
titles invoked by the US as successor of Spain.
AT THE LEAST, A SUPERIOR INCHOATE TITLE. The Netherlands has proved the
exercise of some acts of State authority and the existence of external signs of authority
(flags, coats of arms), even if only those evidence as was concerned solely with Palmas—
i.e. those relating to the visits of the steamer Raaf in 1895, of HMS Edi in 1898, and of
Gen. Wood in 1906—were to be considered. These facts at least constitute a beginning of
establishment of sovereignty by continuous and peaceful display of state authority, or a
commencement of occupation of an island not yet forming a part of the territory of a state;
and such a state of things would create in favour of the Netherlands an inchoate title for
completing the conditions of sovereignty. Such inchoate title, based on display of state
authority, would prevail over an inchoate title derived from discovery, especially if this latter
title has been left for a very long time without completion by occupation; and it would
equally prevail over any claim which, in equity, might be deduced from the notion of
contiguity.
WHICH OF COMPETING INTERESTS TO PREFER? International law, like law in
general, has the object of assuring the coexistence of different interests which are worthy
of legal protection. If, as in the present instance, only one of two conflicting interests is to
prevail, because sovereignty can be attributed to but one of the Parties, the interest which
involves the maintenance of a state of things, having offered at the critical time, to the
inhabitants of the disputed territory and to other States, a certain guarantee for the respect
of their rights, ought, in doubt, to prevail over an interest which – supposing it to be
recognized in international law – has not yet received any concrete form of development.
BETTER TO MAINTAIN THAN TO CHANGE. Supposing that, at the time the Treaty of
Paris came into force, Palmas formed part of the territory of no State, Spain would have
been able to cede only the rights which she might possibly derive from discovery or
contiguity. On the other hand, the inchoate title of the Netherlands could not have been
modified by a treaty concluded between third Powers; and such a treaty could not have
impressed the character of illegality on any act undertaken by the Netherlands with a view
to completing their inchoate title – at least as long as no dispute on the matter had arisen,
i.e. until 1906. According to the report on Gen. Wood’s 1906 visit, the establishment of
Netherlands authority, attested also by external signs of sovereignty, had already reached
such a degree of development that the importance of maintaining this state of things ought
to be considered as prevailing over a claim possibly based either on discovery in very
distant times and unsupported by occupation, or on mere geographical position.
FOR THESE REASONS the Arbitrator, in conformity with Article I of the Special
Agreement of January 23rd, 1925, DECIDES that:
THE ISLAND OF PALMAS (or MIANGAS) forms in its entirety a part of Netherlands
territory.
THE CASE OF THE S.S. "LOTUS": France v. Turkey (September 7, 1927)
PRELIMINARY MATTERS
SPECIAL AGREEMENT: signed at Geneva on October 12, 1926, between the
Governments of the French and Turkish Republics and filed with the Registry of the Court
by the diplomatic representatives at The Hague of the said Governments. They submitted
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to the Permanent Court of International Justice the question of jurisdiction which has arisen
between them following the collision which occurred on August 2nd, 1926, between the
steamships Boz-Kourt and Lotus.
QUESTION THAT THE COURT IS ASKED TO DECIDE ON:
(1) Has Turkey, contrary to Article. 15 of the Convention of Lausanne of July
24, 1923, respecting conditions of residence and business and jurisdiction, acted in conflict
with the principles of international law – and if so, what principles – by instituting joint
criminal proceedings in pursuance of Turkish law against M. Demons, officer of the watch
on board the Lotus (along with the captain of the Turkish steamship), in consequence of
the loss of the Boz-Kourt having involved the death of eight Turkish sailors and
passengers?
(2) If yes, what pecuniary reparation is due to M. Demons, provided, according to the
principles of international law, reparation should be made in similar cases?”
FRANCE’S POINTS:
• The substitution of the jurisdiction of the Turkish Courts for that of the foreign
consular courts in criminal proceedings taken against foreigners is the outcome
of the consent given by the Powers to this substitution in the Conventions signed
at Lausanne
• This consent, does not contemplate criminal proceedings against foreigners for
crimes or offences committed abroad, and has been definitely refused by the
Powers and by France in particular;
• The Convention of Lausanne construed in the light of these circumstances and
intentions, does not allow the Turkish Courts to take cognizance of criminal
proceedings directed against a French citizen for crimes or offences committed
outside Turkey;
• According to international law as established by the practice of civilized nations,
in their relations with each other, a State is not entitled, apart from express or
implicit special agreements, to extend the criminal jurisdiction of its courts to
include a crime or offence committed by a foreigner abroad solely in
consequence of the fact that one of its nationals has been a victim of the crime
or offence.
• Acts performed on the high seas on board a merchant ship are, in principle and
from the point of view of criminal proceedings, amenable only to the jurisdiction
of the courts of the State whose flag the vessel flies.
• There is a principle of the freedom of the seas, and States, attaching especial
importance thereto, have rarely departed therefrom
• According to existing law, the nationality of the victim is not a sufficient ground to
override this rule, and seeing that this was held in the case of the Costa Ricca
Packet;
• There are special reasons why the application of this rule should be maintained
in collision cases, which reasons are mainly connected with the fact that the
culpable character of the act causing the collision must be considered in the light
of purely national regulations which apply to the ship and the carrying out of
which must be controlled by the national authorities;
• The claim to extend the jurisdiction of the courts of the country to which one
vessel belongs, on the ground of the “connexity" (connexite) of offences, to
proceedings against an officer of the other vessel concerned in the collision,
31
when the two vessels are not of the same nationality, has no support in
international law
• A contrary decision recognizing the jurisdiction of the Turkish Courts to take
cognizance of the criminal proceedings against the officer of the watch of the
French ship involved in the collision would amount to introducing an innovation
entirely at variance with firmly established precedent
• The special agreement submits to the Court the question of an indemnity to be
awarded to Demons
• Any other consequences involved by this decision, not having been submitted to
the Court, are ipso facto reserved
• The arrest, imprisonment and conviction of Demons are the acts of authorities
having no jurisdiction under international law, the principle of an indemnity
enuring to the benefit of Demons and chargeable to Turkey, cannot be disputed
• His imprisonment lasted for 39 days, there having been delay in granting his
release on bail contrary to the provisions of the Declaration regarding the
administration of justice signed at Lausanne
• his prosecution was followed by a conviction calculated to do Demons at least
moral damage
• The Turkish authorities, immediately before his conviction, and when he had
undergone detention about equal to one half of the period to which he was going
to be sentenced, made his release conditional upon ball in 6’000 Turkish pounds
• Asks for judgment, whether the Government of the Turkish Republic be present
or absent, to the effect: "That, under the rules of international law and the
Convention respecting conditions of residence and business and jurisdiction
signed at Lausanne, jurisdiction to entertain criminal proceedings against the
officer of the watch of a French ship, in connection with the collision which
occurred on the high seas between that ship and a Turkish ship, belongs
exclusively to the French Courts
• Consequently, the Turkish judicial authorities were wrong in prosecuting,
imprisoning and convicting Demons, in connection with the collision which
occurred on the high seas between the Lotus and the Boz-Kourt, and by so
doing acted in a manner contrary to the principles of international law and to the
above-mentioned Convention;
• Court is asked to fix the indemnity in reparation of the injury thus inflicted on
Demons at 6,000 Turkish pounds and to order this indemnity to be paid by the
Government of the Turkish Republic to the Government of the French Republic
within 1 month from the date of judgment, without prejudice to the repayment of
the bail deposited by Monsieur Demons.
• Court is also asked to place on record that any other consequences which the
decision given might have, not having been submitted to the Court, are ipso
facto reserved."
TURKEY’S COUNTER-CASE:
• Article 15 of the Convention of Lausanne respecting conditions of residence and
business and jurisdiction refers simply and solely, as regards the jurisdiction of
the Turkish Courts, to the principles of international law, subject only to the
provisions of Article 16. Article 15 cannot be read as supporting any reservation
whatever or any construction giving it another meaning. Consequently, Turkey,
when exercising jurisdiction in any case concerning foreigners, need, under this
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article, only take care not to act in a manner contrary to the principles of
international law.
• Article 6 of the Turkish Penal Code, which is taken word for word from the Italian
Penal Code, is not, as regards the case, contrary to the principles of international
law.
• Vessels on the high seas form part of the territory of the nation whose flag they
fly, and in the case under consideration, the place where the offence was
committed being the S. S. Boz-Kourt flying the Turkish flag, Turkey's jurisdiction
in the proceedings taken is as clear as if the case had occurred on her territory-
as is borne out by analogous cases.
• The Boz-Kourt-Lotus case being a case involving "connected" offences (delits
connexes), the Code of criminal procedure for trial-which is borrowed from
France-lays down that the French officer should be prosecuted jointly with and at
the same time as the Turkish officer; this, moreover ' is confirmed by the
doctrines and legislation of all countries. Turkey, therefore, is entitled from this
standpoint also to claim jurisdiction.
• Even if the question be considered solely from the point of view of the collision,
as no principle of international criminal law exists which would debar Turkey from
exercising the jurisdiction which she clearly possesses to entertain an action for
damages, that country has Jurisdiction to institute criminal proceedings.
• Turkey is exercising jurisdiction of a fundamental character, and States are not,
according to the principles of international law, under an obligation to pay
indemnities in such cases, it is clear that the question of the payment of the
indemnity claimed in the French Case does not arise for the Turkish Government,
since that Government has jurisdiction to prosecute the French citizen Demons
who, as the result of a collision, has been guilty of manslaughter.
• Court is asked for judgment in favor of the jurisdiction of the Turkish Courts.
FACTS
1. COLLISION BETWEEN FRENCH LOTUS AND TURKISH BOZ-KOURT; 8
TURKISH NATIONALS DIED. (August 2, 1926 just before midnight)The collision
was between the French mail steamer Lotus, proceeding to Constantinople, and
the Turkish collier Boz-Kourt, between 5 and 6 nautical miles to the north of Cape
Sigri (Mitylene). The Boz-Kourt, was cut in two and sank. 8 Turkish nationals on
board died. After doing everything possible to help the shipwrecked persons, (10
were saved), the Lotus continued on its course to Constantinople.
2. SHIPS’ OFFICERS: The officer of the watch on board the Lotus was Monsieur
Demons, a French citizen, lieutenant in the merchant service and first officer of the
ship, whilst the the Boz-Kourt were directed by its captain, Hassan Bey, who was
one of those saved from the wreck.
3. TURKISH POLICE INVESTIGATIONS. As early as August 3 the Turkish police
proceeded to hold an enquiry into the collision on board the Lotus ; and on the
following day, the captain of the Lotus handed in his master's report at the French
Consulate-General, transmitting a copy to the harbour master.
32
4. ARREST OF LT. DEMONS. Lt. Demons was requested by the Turkish authorities to
go ashore to give evidence. The length of the examination incidentally resulted in
delaying the departure of the Lotus. This also led to arrest of Demons without
previous notice to the French Consul-General - and Hassan Bey, amongst others.
5. ARREST PENDING TRIAL FOR MANSLAUGHTER, ACCORDING TO TURKISH
AGENT. (arrestation preventive) It was effected in order to ensure that the criminal
prosecution instituted against the two officers, on a charge of manslaughter, by the
Public Prosecutor of Stamboul, on the complaint of the families of the victims of the
collision, should follow its normal course.
6. FIRST TRIAL. Demons submitted that the Turkish Courts had no jurisdiction; the
Court, however, overruled his objection.
7. DEMONS DEMANDS HIS RELEASE on bail: this request was complied with, the
bail being fixed at 6’000 Turkish pounds.
8. JUDGMENT OF THE CRIMINAL COURT SENTENCING DEMONS. (September
15) The terms of said judgment have not been communicated to the Court by the
Parties. But it is clear that it sentenced Lieutenant Demons to 80 imprisonment and
a fine of 20K pounds, Hassan Bey being sentenced to a slightly more severe
penalty.
9. TURKISH PUBLIC PROSECUTOR APPEALED SUSPENDING THE EXECUTION
OF JUDGMENT. Decision on the appeal has not yet been
10. FRENCH GOVERNMENT PROTESTS. The action of the Turkish judicial authorities
with regard to Demons at once gave rise to many diplomatic representations and
other steps on the part of the French Government or its representatives in Turkey,
either protesting against the arrest of Lieutenant Demons or demanding his release,
or with a view to obtaining the transfer of the case from the Turkish Courts to the
French Courts.
11. PARTIES SUBMIT THE CONFLICT TO THE COURT AT THE HAGUE.
COURT’S OBSERVATIONS RE: THE SPECIAL AGREEMENT. Because the Court
took cognizance of the case by notification of a special agreement concluded between
the Parties, it is to the terms of this agreement than to the submissions of the Parties
that the Court must look into in establishing the precise points which it has to decide.
a. HIGH SEAS. The collision took place on the high seas: the territorial jurisdiction
of any State other than France and Turkey does not enter into account.
b. VIOLATION IS TURKISH EXERCISE OF JURISDICTION. Violation, if any, of the
principles of international law would have consisted in the taking of criminal
proceedings against Demons. It is not a question relating to any particular step in
these proceedings - such as his being put to trial, his arrest, his detention
pending trial or the judgment given by the Criminal Court of Stamboul - but of the
very fact of the Turkish Courts exercising criminal jurisdiction. The arguments put
forward by the Parties relate exclusively to the question whether Turkey has or
has not, according to the principles of international law, jurisdiction to prosecute.
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NO NEED TO REFER TO TURKISH LAW. The Court does not have to
consider whether the prosecution was in conformity with Turkish law; it need not
consider whether, apart from the actual question of jurisdiction, the provisions of
Turkish law cited by Turkish authorities were really applicable in this case, or
whether the manner in which the proceedings against Demons were conducted
might constitute a denial of justice, and accordingly, a violation of international
law. Discussions are exclusively upon the question whether criminal jurisdiction
exists.
c. DEATH OF TURKISH NATIONALS; INVOLUNTARY MANSLAUGHTER.
Prosecution was instituted because the loss of the Boz-Kourt involved the death
of 8 Turkish sailors and passengers. In the first place, this result of the collision
constitutes a factor essential for the institution of the criminal proceedings in
question; secondly, it follows from the statements of the two Parties that no
criminal intention has been imputed to either of the officers responsible for
navigating the two vessels; it is a case of prosecution for involuntary
manslaughter.
CONCURRENT JURISDICTION. French Government maintains that
breaches of navigation regulations fall exclusively within the jurisdiction of the
State under whose flag the vessel sails; but it does not argue that a collision
between two vessels cannot also bring into operation the sanctions which apply
to criminal law in cases of manslaughter. The precedents cited by it and relating
to collision cases all assume the possibility of criminal proceedings with a view to
the infliction of such sanctions, the dispute being confined to the question of
jurisdiction concurrent or exclusive - which another State might claim in this
respect. The Court has not to consider the lawfulness of the prosecution under
Turkish law; questions of criminal law relating to the justification of the
prosecution and consequently to the existence of a nexus causalis between the
actions of Demons and the loss of 8 Turkish nationals are not relevant. The exact
conditions in which these persons perished do not appear from the documents
submitted to the Court except that their death may be regarded as the direct
outcome of the collision, and the French Government has not contended that this
relation of cause and effect cannot exist.
d. PROSECUTED JOINTL; CONNEXITY OF OFFENSES. Demons and the captain
of the Turkish steamship were prosecuted jointly and simultaneously. In regard to
the conception of "connexity" of offences (connexite), the Turkish Agent referred
to the Turkish Code of criminal procedure for trial, the provisions of which are
said to have been taken from the corresponding French Code. In French law,
amongst other factors, coincidence of time and place may give rise to
"connexity". In this case, the Court interprets this conception as meaning that the
proceedings against the captain of the Turkish vessel in regard to which the
jurisdiction of the Turkish Courts is not disputed, and the proceedings against
Demons, have been regarded by the Turkish authorities, from the point of view of
the investigation of the case, as one and the same prosecution, since the
collision of the two steamers constitutes a complex of acts the consideration of
which should, from the standpoint of Turkish criminal law, be entrusted to the
same court.
e. PROSECUTION PURSUANT TO TURKISH LEGISLATION. The special
agreement does not indicate what clause or clauses of that legislation apply. No
document has been submitted to the Court indicating on what article of the
Turkish Penal Code the prosecution was based; the French Government
33
however declares that the Criminal Court claimed jurisdiction under Article 6 of
the Turkish Penal Code, and Turkey contends that that article is in conformity
with the principles of international law. It does not appear from the proceedings
whether the prosecution was instituted solely on the basis of that article.27
QUESTION IS WON PRINCIPLES OF INTERNATIONAL LAW
PREVENT TURKEY FROM INSTITUTING CRIMINAL PROCEEDINGS
AGAINST DEMONS. Even if the Court must hold that the Turkish authorities had
seen fit to base the prosecution of Demons upon Article 6, the question submitted
to the Court is not whether that article is compatible with the principles of
international law; it is more general. The Court is asked to state whether or not
the principles of international law prevent Turkey from instituting criminal
proceedings against Demons under Turkish law. Neither the conformity of Article
6 in itself with the principles of international law nor the application of that article
by the Turkish authorities constitutes the point at issue; it is the very fact of the
institution of proceedings which is held by France to be contrary to those
principles. The French Government at once protested against his arrest, quite
independently of the question as to what clause of her legislation was relied upon
by Turkey to justify it. The arguments put forward by the French Government in
the course of the proceedings and based on the principles which, in its
contention, should govern navigation on the high seas, show that it would dispute
Turkey's jurisdiction to prosecute Lieutenant Demons, even if that prosecution
were based on a clause of the Turkish Penal Code other than Article 6, assuming
for instance that the offence in question should be regarded, by reason of its
consequences, to have been actually committed on Turkish territory.
WHAT PRINCIPLES OF INTERNATIONAL LAW ARE SAID TO HAVE BEEN VIOLATED
BY THE PROSECUTION. It is Article 15 of the Convention of Lausanne (July 24, 1923),
respecting conditions of residence and business and jurisdiction, which refers the
contracting Parties to the principles of international law as regards the delimitation of their
respective jurisdiction.
Subject to the provisions of Article 16, all questions of jurisdiction
shall, as between Turkey and the other contracting Powers, be
decided in accordance with the principles of international law.
27
Article 6 Turkish Penal Code
Any foreigner who, apart from the cases contemplated by Article 4, commits an offence abroad to the
prejudice of Turkey or of a Turkish subject, for which offence Turkish law prescribes a penalty involving
loss of freedom for a minimum period of not less than one year, shall be punished in accordance with the
Turkish Penal Code provided that he is arrested in Turkey. The penalty shall however be reduced by one
third and instead of the death penalty, twenty years of penal servitude shall be awarded.
Nevertheless, in such cases, the prosecution will only be instituted at the request of the Minister of Justice
or on the complaint of the injured Party.
If the offence committed injures another foreigner, the guilty person shall be punished at the request of the
Minister of Justice, in accordance with the provisions set out in the first paragraph of this article, provided
however that:
(1) the article in question is one for which Turkish law prescribes a penalty involving loss of freedom for a
minimum period of three years;
(2) there is no extradition treaty or that extradition has not been accepted either by the government of the
locality where the guilty person has committed the offence or by the government of his own country.
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1. FRANCE: MEANING OF “PRINCIPLES OF INTERNATIONAL LAW” in this
article should be sought in the light of the evolution of the Convention.
AMENDMENT SOUGHT BY TURKEY; REACTION OF THE OTHER
STATES. France states that during the preparatory work, the Turkish
Government, by means of an amendment to the relevant article of a draft for the
Convention, sought to extend its jurisdiction to crimes committed in the territory
of a third State, provided that, under Turkish law, such crimes were within the
jurisdiction of Turkish Courts. France and Italy made reservations to this
amendment while the British representative definitely rejected it. The question
was subsequently referred to the Drafting Committee and it confined itself in its
version of the draft to a declaration to the effect that questions of jurisdiction
should be decided in accordance with the principles of international law.
The French Government deduces from these facts that the prosecution
of Demons is contrary to the intention which guided the preparation of the
Convention of Lausanne.
2. THERE IS NO OCCASION TO HAVE REGARD TO PREPARATORY WORK IF
THE TEXT OF A CONVENTION IS SUFFICIENTLY CLEAR IN ITSELF. The
words "principles of international law", as ordinarily used, can only mean
international law as it is applied between all nations belonging to the community
of States. This interpretation is borne out by the context of the article itself which
says that the principles of international law are to determine questions of
jurisdiction - not only criminal but also civil - between the contracting Parties,
subject only to the exception provided for in Article 16. The preamble of the
Convention says that the High Contracting Parties are desirous of effecting a
settlement in accordance "with modem international law", and Article 28 of the
Treaty of Peace of Lausanne, to which the Convention in question is annexed,
decrees the complete abolition of the Capitulations “in every respect". In these
circumstances it is impossible - except in pursuance of a definite stipulation - to
construe the expression "principles of international law" otherwise than as
meaning the principles which are in force between all independent nations and
which therefore apply equally to all the contracting Parties.
Moreover, the records of the preparation of the Convention respecting
conditions of residence and business and jurisdiction would not furnish anything
calculated to overrule the construction indicated by the actual terms of Article 15.
It is true that the representatives of France, Great Britain and Italy rejected the
Turkish amendment already mentioned. But only the British delegate - and this
conformably to British municipal law which maintains the territorial principle in
regard to criminal jurisdiction - stated the reasons for his opposition to the Turkish
amendment; the reasons for the French and Italian reservations and for the
omission from the draft prepared by the Drafting Committee of any definition of
the scope of the criminal jurisdiction in respect of foreigners, are unknown and
might have been unconnected with the arguments now advanced by France.
The original draft of the relevant article, which limited Turkish
jurisdiction to crimes committed in Turkey itself, was also discarded by
the Drafting Committee; this circumstance might with equal justification give the
impression that the intention of the framers of the Convention was not to limit this
jurisdiction in any way. The two opposing proposals designed to determine
definitely the area of application of Turkish criminal law having thus been
discarded, the wording ultimately adopted by common consent for
34
Article 15 can only refer to the principles of general international law relating to
jurisdiction.
ISSUE: Does Turkey need to point at an exact principle of international law which grants it
jurisdiction or is it enough that it shows that it has not acted contrary to principles of
international law?
THE VIEW THAT ALL TURKEY HAS TO DO IS SHOW THAT IT HAD NOT VIOLATED
PRINCIPLES OF INTERNATIONAL LAW FITS THEIR SPECIAL AGREEMENT. Because
said agreement asks the Court to say whether Turkey has acted contrary to the principles
of international law and, if so, what principles. It is not a question of stating principles which
would permit Turkey to take criminal proceedings, but of formulating the principles, if any,
which might have been violated by such proceedings. This way of stating the question is
also dictated by the very nature and existing conditions of international law.
NATURE AND EXISTING CONDITIONS OF INTERNATIONAL LAW. International law
governs relations between independent States. The rules of law binding upon States
emanate from their own free will as expressed in conventions or by usages generally
accepted as expressing principles of law and established in order to regulate the relations
between these co-existing independent communities or with a view to the achievement of
common aims. Restrictions upon the independence of States cannot therefore be
presumed.
FIRST RESTRICTION—NOT TOEXERCISE POWER OVER ANOTHER’S TERRITORY.
The first and foremost restriction imposed by international law upon a State is that –failing
the existence of a permissive rule to the contrary – it may not exercise its power in any
form in the territory of another State.
JURISDICTION IS CERTAINLY TERRITORIAL. It cannot be exercised by a State outside
its territory except by virtue of a permissive rule derived from international custom or from a
convention.
NO GENEREAL PROHIBITION FOR STATES TO EXTEND APPLICATION OF THEIR
LAWS ABROAD. It does not, however, follow that international law prohibits a State from
exercising jurisdiction in its own territory, in respect of any case which relates to acts which
have taken place abroad, and in which it cannot rely on some permissive rule of
international law. Such a view would only be tenable if international law contained a
general prohibition to States to extend the application of their laws and the jurisdiction of
their courts to persons, property and acts outside their territory, and if, as an exception to
this general prohibition, it allowed States to do so in certain specific cases. But this is not
the case under international law at present. Far from laying down a general prohibition to
the effect that States may not extend the application of their laws and the jurisdiction of
their courts to persons, property and acts outside their territory, it leaves them in this
respect a wide measure of discretion, which is only limited in certain cases by prohibitive
rules. In other cases, every State remains free to adopt the principles which it regards as
best and most suitable.
DISCRETION ALLOWED FOR A GREAT VARIETY OF RULES; NEED TO RECONCILE
THEM. In order to remedy the difficulties resulting from such variety, efforts have been
made, both in Europe and America, to prepare conventions which would limit the discretion
at present left to States in this respect by international law, thus making good the existing
lacunæ in respect of jurisdiction or removing the conflicting jurisdictions arising from the
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diversity of the principles adopted by the various States. In these circumstances all that
can be required of a State is that it should not overstep the limits which international law
places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its
sovereignty.
FRANCE’S CONTENTION UNTENABLE. The contention of the French Government that
Turkey must in each case be able to cite a rule of international law authorizing her to
exercise jurisdiction, is opposed to the generally accepted international law to which Article
13 of the Convention of Lausanne refers. Having regard to the terms of Article 15 France’s
contention would apply in regard to civil as well as to criminal cases, and would be
applicable on conditions of absolute reciprocity as between Turkey and the other
contracting Parties. It would therefore in many cases result in paralysing the action of the
courts, owing to the impossibility of citing a universally accepted rule on which to support
the exercise of their jurisdiction.
TERRITORIALITY OF CRIMINAL LAW. Though it is true that in all systems of law the
principle of the territorial character of criminal law is fundamental, it is equally true that all
or nearly all these systems of law extend their action to offences committed outside the
territory of the State which adopts them, and they do so in ways which vary from State to
State. The territoriality of criminal law is not an absolute principle of international law and
does not coincide with territorial sovereignty.
TURKEY’S STANDPOINT. The principle of freedom, in virtue of which each State may
regulate its legislation at its discretion, provided that in so doing it does not come in conflict
with a restriction imposed by international law, would also apply as regards law governing
the scope of jurisdiction in criminal cases.
ICJ: In order to establish this, one must prove the existence of a principle of international
law restricting the discretion of States as regards criminal legislation.
FRANCE’S STANDPOITNT. The exclusively territorial character of law relating to this
domain constitutes a principle which, except as otherwise expressly provided, would, ipso
facto, prevent States from extending the criminal jurisdiction of their courts beyond their
frontiers. The
exceptions include for instance extraterritorial jurisdiction over nationals and over crimes
directed against public safety, would therefore rest on special permissive rules forming part
of international law.
ICJ: It must be recognized that, in the absence of a treaty provision, its correctness
depends upon whether there is a custom having the force of law establishing it. The same
is true as to the applicability of this system - assuming it to have been recognized as sound
- in the particular case. Before ascertaining whether there may be a rule of international
law expressly allowing Turkey to prosecute a foreigner for an offence committed by him
outside Turkey, it is necessary to begin by establishing both that the system is well-
founded and that it is applicable in the particular case.
SAME RESULT FROM THESE STANDPOINTS. In this particular case: the necessity of
ascertaining whether or not under international law there is a principle which would have
prohibited Turkey, in the circumstances of the case before the Court, from prosecuting
Demons.
35
LOOK AT PRECEDENTS. This must be ascertained by examining precedents offering a
close analogy to the case under consideration. It is only from precedents of this nature that
the existence of a general principle applicable to the particular case may appear. If found,
for example, that, according to the practice of States, the jurisdiction of the State whose
flag was, flown was not established by international law as exclusive with regard to
collision cases on the high seas, it would not be necessary to ascertain whether there were
a more general restriction; since, as regards that restriction-supposing that it existed-the
fact that it had been established that there was no prohibition in respect of collision on the
high seas would be tantamount to a special permissive rule. The Court must ascertain
WON there exists a rule of international law limiting the freedom of States to extend the
criminal jurisdiction of their courts to a situation uniting the circumstances of the present
case.
ISSUE: WON general international law, to which Article 15 of the Convention of Lausanne
refers, contains a rule prohibiting Turkey from prosecuting Demons? HELD: NO. This
involves concurrent jurisdiction.
EXAMINATION OF FRANCE’S ARGUMENTS. The arguments advanced by the French
Government, are, in substance, the following:
(1) International law does not allow a State to take proceedings with regard to offences
committed by foreigners abroad, just because of the nationality of the victim; and this is the
situation in the present case because the offence must be regarded as having been
committed on board the French vessel.
(2) International law recognizes the exclusive jurisdiction of the State whose flag is flown
as
regards everything which occurs on board a ship on the high seas.
(3) This principle is especially applicable in a collision case.
FIRST ARGUMENT: Its examination is strictly confined to the specific situation in the
present case, for it is only in regard to this situation that its decision is asked for. The
characteristic features of the situation of fact are: there has been a collision on the high
seas between two vessels flying different flags, on one of which was one of the persons
alleged to be guilty of the offence, while the victims were on board the other.
NATIONALITY OF VICTIM NOT SOLE BASIS. It’s not necessary to consider the
contention that a State cannot punish offences committed abroad by a foreigner simply by
reason of the nationality of the victim. For this contention only relates to the case where the
nationality of the victim is the only criterion on which the criminal jurisdiction of the State is
based. Even if that argument were correct generally speaking - and in regard to this the
Court reserves its opinion - it could only be used in the present case if international law
forbade Turkey to take into consideration the fact that the offence produced its effects on
the Turkish vessel and consequently in a place assimilated to Turkish territory in which the
application of Turkish criminal law cannot be challenged, even in regard to offences
committed there by foreigners. But no such rule of international law exists. No argument
has come to the knowledge of the Court from which it could be deduced that States
recognize themselves to be under an obligation towards each other only to have regard to
the place where the author of the offence happens to be at the time of the offence.
LOOK NOT ONLY AT THE PLACE WHER OFFENSE COMMITTED BUT AT
THE ELEMENTS OF THE CRIME. It is certain that the courts of many countries, even of
countries which have given their criminal legislation a strictly territorial character, interpret
criminal law in the sense that offences, the authors of which at the moment of commission
are in the territory of another State, are nevertheless to be regarded as having been
committed in the national territory, if one of the constituent elements of the offence, and
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more especially its effects, have taken place there. French courts have, in regard to a
variety of situations, given decisions sanctioning this way of interpreting the territorial
principle.
NO PROTESTS RE: THIS RULE. The Court does not know any case in which
governments have protested against the fact that the criminal law of some country
contained a rule to this effect or that the courts of a country construed their criminal law in
this sense. Once it is admitted that the effects of the offence were produced on the Turkish
vessel, it becomes impossible to hold that there is a rule of international law which
prohibits Turkey from prosecuting Demons because of the fact that the author of the
offence was on board the French ship. Since the special agreement does not deal with the
provision of Turkish law under which the prosecution was instituted, but only with the
question whether the prosecution should be regarded as contrary to the principles of
international law, there is no reason preventing the Court from confining itself to observing
that, in this case, a prosecution may also be justified from the point of view of the so-called
territorial principle.
EVEN IF ARTICLE 6 OF TURKISH LAW IS INCOMPATIBLE WITH INTERNATIONAL
LAW, IT DOES NOT FOLLOW THAT THE PROSECUTION ITSELF IS CONTRARY TO
INTERNATIONAL LAW, since the prosecution might have been based on another
provision of Turkish law which would not have been contrary to any principle of
international law. The fact that the judicial authorities may have committed an error in their
choice of the legal provision applicable to the particular case and compatible with
international law only concerns municipal law and can only affect international law in so far
as a treaty provision enters into account, or the possibility of a denial of justice arises.
MANSLAUGHTER. It has been argued that the offence of manslaughter cannot be
localized at the spot where the mortal effect is felt; for the effect is not intentional and it
cannot be said that there is, in the mind of the delinquent, any culpable intent directed
towards the territory where the mortal effect is produced.
ICJ: It might be observed that the effect is a factor of outstanding importance in
offences such as manslaughter, which are punished precisely in consideration of their
effects rather than of the subjective intention of the delinquent. But the Court is not called
upon to consider this question, which is one of interpretation of Turkish criminal law. Suffice
to observe that no argument has been put forward and nothing has been found from which
it would follow that international law has established a rule imposing on States this reading
of the conception of the offence of manslaughter.
SECOND ARGUMENT: The principle that the State whose flag is flown has exclusive
jurisdiction over everything which occurs on board a merchant ship on the high seas.
VESSELS CONTROLLED BY STATE WHOSE FLAG THEY FLY. Apart from
certain special cases defined by international law - vessels on the high seas are subject to
no authority except that of the State whose flag they fly. In virtue of the principle of the
freedom of the seas (absence of any territorial sovereignty upon the high seas), no State
may exercise any kind of jurisdiction over foreign vessels upon them. Thus, if a war vessel,
happening to be at the spot where a collision occurs between a vessel flying its flag and a
foreign vessel were to send on board the latter an officer to make investigations or to take
evidence, such an act would undoubtedly be contrary to international law.
But it does not follow that a State can never in its own territory exercise
jurisdiction over acts which have occurred on board a foreign ship on the high seas. A
corollary of the principle of the freedom of the seas is that a ship on the high seas is
assimilated to the territory of the State the flag of which it flies, for, just as in its own
territory, that State exercises its authority, upon it, and no other State may do so.
36
All that can be said is that by virtue of the principle of the freedom of the seas, a
ship is placed in the same position as national territory but there is nothing to support the
claim according to which the rights of the State under whose flag the vessel sails may go
farther than the rights which it exercises within its territory properly so called.
CONCLUSION: WHAT OCCURS ON BOARD A VESSEL ON THE HIGH SEAS
MUST BE REGARDED AS IF IT OCCURRED ON THE TERRITORY OF THE STATE
WHOSE FLAG THE SHIP FLIES. If a guilty act committed on the high seas produces its,
effects on a vessel flying another flag or in foreign territory, the same principles must be
applied as if the territories of two different States were concerned, and the conclusion must
therefore be drawn that there is no rule of international law prohibiting the State to which
the ship on which the effects of the offence have taken place belongs, from regarding the
offence as having been committed in its territory and prosecuting, accordingly, the
delinquent. This conclusion could only be overcome if it were shown that there was a rule
of customary international law which established the exclusive jurisdiction of the State
whose flag was flown.
The French Government has endeavored to prove the existence of such a rule,
having recourse for this purpose to the teachings of publicists, to decisions of municipal
and international tribunals, and especially to conventions which, while creating exceptions
to the principle of the freedom of the seas by permitting the war and police vessels of a
State to exercise a more or less extensive control over the merchant vessels of another
State, reserve jurisdiction to the courts of the country whose flag is flown by the vessel
proceeded against.
EXISTENCE OF RULE OR EXCLUSIVE JURISDICTION NOT CONCLUSIVELY
PROVED.
AS REGARDS TEACHINGS OF PUBLICISTS, and apart from the question as to
what their value may be from the point of view of establishing the existence of a rule of
customary law, it is no doubt true that all or nearly all writers teach that ships on the high
seas are subject exclusively to the jurisdiction of the State whose flag they fly. But the
important point is the significance attached by them to this principle. It does not appear that
in general, writers bestow upon this principle a scope differing from or wider than that
explained above and which is equivalent to saying that the jurisdiction of a State over
vessels on the high seas is the same in extent as its jurisdiction in its own territory. On the
other hand, there is no lack of writers who, upon a close study of the special question
whether a State can prosecute for offences committed on board a foreign ship on the high
seas, definitely come to the conclusion that such offences must be regarded as if they had
been committed in the territory of the State whose flag the ship flies, and that consequently
the general rules of each legal system in regard to offences committed abroad are
applicable.
IN REGARD TO PRECEDENTS, leaving aside the collision cases, none of them
relates to offences affecting two ships flying the flags of two different countries, and that
consequently they are not of much importance in the case before the Court.
Costa Rica Packe case is no exception, for the place on which the alleged
depredations took place was adrift without flag or crew, and this circumstance certainly
influenced, perhaps decisively, the conclusion arrived at by the arbitrator.
John Anderson case (not real title): There is no lack of cases in which a State
has claimed a right to prosecute for an offence, committed on board a foreign ship, which it
regarded as punishable under its legislation. Thus Great Britain refused the request of the
United States for the extradition of John Anderson, a British seaman who had committed
homicide on board an American vessel, stating that she did not dispute the jurisdiction of
the United States but that she was entitled to exercise hers concurrently. This case is
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relevant in spite of Anderson's British nationality, in order to show that the principle of the
exclusive jurisdiction of the country whose flag the vessel flies is not universally accepted.
The cases in which the exclusive jurisdiction of the State whose flag was flown
has been recognized would seem rather to have been cases in which the foreign State
was interested only by reason of the nationality of the victim, and in which, according to the
legislation of that State itself or the practice of its courts, that ground was not regarded as
sufficient to authorize prosecution for an offence committed abroad by a foreigner.
AS REGARDS CONVENTIONS: THEY DO NOT EXPRESS GENERAL
PRINCIPLES OF INTERNATIONAL LAW. Those expressly reserving jurisdiction
exclusively to the State whose flag is flown, it is not absolutely certain that this stipulation is
to be regarded as expressing a general principle of law rather than as corresponding to the
extraordinary jurisdiction which these conventions confer on the state-owned ships of a
particular country in respect of ships of another country on the high seas.
CONVENTIONS RELATE TO MATTERS OF A PARTICULAR KIND, closely
connected with the policing of the seas, such as the slave trade, damage to submarine
cables, fisheries, etc., and not to common-law offences.
OFFENCES CONTEMPLATED BY THE CONVENTIONS ONLY CONCERN A
SINGLE SHIP. It is impossible therefore to make any deduction from them in regard to
matters which concern two ships and consequently the jurisdiction of two different States.
CONCLUSION: The second argument put forward by the French Government does not,
any more than the first, establish the existence of a rule of international law prohibiting
Turkey from prosecuting Demons.
THIRD ARGUMENT: Is there a rule specially applying to collision cases, according to
which criminal proceedings regarding such cases come exclusively within the jurisdiction of
the State whose flag is flown.
ACCORDING TO FRANCE, ONLY IN CIVIL CASES: The fact that questions of
jurisdiction in collision cases, which frequently arise before civil courts, are but rarely
encountered in the practice of criminal courts. It deduced from this that, in practice,
prosecutions only occur before the courts of the State whose flag is flown and that that
circumstance is proof of a tacit consent on the part of States and, consequently, shows
what positive international law is in collision cases.
ICJ: THIS DEDUCTION IS UNWARRANTED. RARITY OF CASES DOES NOT
MEAN STATES ARE CONSCIOUS OF A DUTY TO ABSTAIN FROM PROSECUTING.
Even if the rarity of the judicial decisions to be found among the reported cases were
sufficient to prove in point of fact the circumstance alleged by the Agent for the French
Government, it would merely show that States had often, in practice, abstained from
instituting criminal proceedings, and not that they recognized themselves as being obliged
to do so; for only if such abstention were based on their being conscious of having a duty
to abstain would it be possible to speak of an international custom. The alleged fact does
not allow one to infer that States have been conscious of having such a duty; on the other
hand, there are other circumstances calculated to show that the contrary is true.
MUNICIPAL COURTS DECISIONS. So far as the Court is aware there are no decisions of
international tribunals in this matter; but some decisions of municipal courts have been
cited.
Without considering the value to be attributed to the judgments of municipal
courts in connection with the establishment of the existence of a rule of international law,
suffice to observe that the decisions quoted sometimes support one view and sometimes
the other.
37
CITED BY FRANCE: Ortigia-Oncle-Joseph case before the Court of Aix and the
Franconia-Strathclyde case before the British Court for Crown Cases Reserved, as being
in favor of the exclusive jurisdiction of the State whose flag is flown.
CITED BY TURKEY: Ortigia-Oncle-Joseph case before the Italian Courts and the
Ekbatana-West-Hinder case before the Belgian Courts have been cited in support of the
opposing contention.
COURT WILL NOT CONSIDER MUNICIPAL DECISIONS ANYMORE EXCEPT TO SAY
THAT THERE IS NO RESTRICTIVE RULE OF INTERNATIONAL LAW BECAUSE THEY
ARE DIVIDED. Lengthy discussions took place between the Parties as to the importance
of each of these decisions as regards the details of which the Court confines itself to a
reference to the Cases and Counter-Cases of the Parties. It is not necessary to consider
them. Suffice to observe that, as municipal jurisprudence is thus divided, it is hardly
possible to see in it an indication of the existence of the restrictive rule of international law
which alone could serve as a basis for the contention of the French Government.
IT DOES NOT APPEAR THAT THE STATES CONCERNED HAVE OBJECTED TO
CRIMINAL PROCEEDINGS IN RESPECT OF COLLISION CASES BEFORE THE
COURTS OF A COUNTRY OTHER THAN THAT THE FLAG OF WHICH WAS FLOWN, or
that they have made protests. Their conduct does not appear to have differed appreciably
from that observed by them in all cases of concurrent jurisdiction. This fact is directly
opposed to the existence of a tacit consent on the part of States to the exclusive
jurisdiction of the State whose flag is flown, which France has thought it possible to deduce
from the infrequency of questions of jurisdiction before criminal courts. It seems hardly
probable, and it would not be in accordance with international practice that the French
Government in the Ortigia-Oncle-Joseph case and the German Government in the
Ekbalana-West-Hinder case would have omitted to protest against the exercise of criminal
jurisdiction have by the Italian and Belgian Courts, if they had really thought that this was a
violation of international law.
VALUE OF THE Franconia case: It should be observed that the part of the decision which
bears the closest relation to the present case is the part relating to the localization of the
offence on the vessel responsible for the collision. But, whatever the value of the opinion
expressed by the majority of the judges on this particular point may be in other respects,
there would seem to be no doubt that if, in the minds of these judges, it was based on a
rule of international law, their conception of that law, peculiar to English jurisprudence, is
far from being generally accepted even in common-law countries. This view seems to be
borne out by the fact that the standpoint taken by the majority of the judges in regard to the
localization of an offence, the author of which is situated in the territory of one State while
its effects are produced in another State, has been abandoned in more recent English
decisions. This development of English case-law tends to support the view that
international law leaves States a free hand in this respect.
ANOTHER CONTENTION: It is a question of the observance of the national regulations of
each merchant marine and that effective punishment does not consist so much in the
infliction of some months' imprisonment upon the captain as in the cancellation of his
certificate as master, that is to say, in depriving him of the command of his ship.
ICJ’ ANSWER; CRIMINAL AND NOT ADMINISTRATIVE: In the present case a
prosecution was instituted for an offence at criminal law and not for a breach of discipline.
Neither the necessity of taking administrative regulations into account (even ignoring the
circumstance that it is a question of uniform regulations adopted by States as a result of an
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international conference) nor the impossibility of applying certain disciplinary penalties can
prevent the application of criminal law and of penal measures of repression.
CONCLUSION: That there is no rule of international law in regard to collision cases to the
effect that criminal proceedings are exclusively within the jurisdiction of the State whose
flag is flown.
This conclusion is easily explained if the manner in which the collision brings the
jurisdiction of two different countries into play be considered.
DONE IN THE LOTUS, EFFECTS FELT IN THE BOZ-KOURT= THEREFORE,
CONCURRENT JURISDICTION. The offence for which Demons appears to have been
prosecuted was an act – of negligence or imprudence – having its origin on board the
Lotus, while its effects made themselves felt on board the Boz-Kourt. These two elements
are, legally, entirely inseparable, so much so that their separation renders the offence non-
existent. Neither the exclusive jurisdiction of either State nor the limitations of the
jurisdiction of each to the occurrences which took place on the respective ships would
appear calculated to satisfy the requirements of justice and effectively to protect the
interests of the two States. It is only natural that each should be able to exercise
jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of
concurrent jurisdiction.
COURT DOES NOT CONFINE ITSELF TO THE ARGUMENTS OF THE PARTIES. In the
fulfillment of its task of ascertaining what the international law is, it has not confined itself to
a consideration of the arguments put forward, but has included in its researches all
precedents, teachings and facts to which it had access and which might possibly have
revealed the existence of one of the principles of international law contemplated in the
special agreement.
RESULT: It has not established the existence of any such principle. It must therefore be
held that there is no principle of international law, within the meaning of Article 15 of the
Convention of Lausanne of July 24, 1923, which precludes the institution of the criminal
proceedings under consideration.
Consequently, Turkey, by instituting, in virtue of the discretion which international
law leaves to every sovereign State, the criminal proceedings in question, has not, in the
absence of such principles, acted in a manner contrary to the principles of international law
within the meaning of the special agreement.
NO NEED TO DISCUSS ON THE JOINT PROSECUTION. There is no need for it to
consider the question whether the fact that the prosecution of Demons was "joint"
(connexe) with that of the captain of the Boz-Kourt would be calculated to justify an
extension of Turkish jurisdiction. This question would only have arisen if the Court had
arrived at the conclusion that there was a rule of international law prohibiting Turkey from
prosecuting Lieutenant Demons; for only in that case would it have been necessary to ask
whether that rule might be overridden by the fact of the
connexity" (connexite) of the offences.
Having thus answered the first question submitted by the special agreement in the
negative, the Court need not consider the second question, regarding the pecuniary
reparation which might have been due to Lieutenant Demons.
FOR THESE REASONS, The Court, having heard both Parties, gives, by the President's
casting vote - the votes being equally divided -, judgment to the effect
38
(1) that, following the collision which occurred on August 2nd, 1926, on the high seas
between the French steamship Lotus and she Turkish steamship Boz-Kourt, and upon the
arrival of the French ship at Stamboul, and in consequence of the loss of the Boz-Kourt
having involved the death of eight Turkish nationals, Turkey, by instituting criminal
proceedings in pursuance of Turkish law against Lieutenant Demons, officer of the watch
on board the Lotus at the time of the collision, has not acted in conflict with the principles
of international law, contrary to Article 15 of the Convention of Lausanne of July 24th,
1923, respecting conditions of residence and business and jurisdiction;
(2) that, consequently, there is no occasion to give judgment on the question of the
pecuniary reparation which might have been due to Lieutenant Demons if Turkey, by
prosecuting him as above stated, had acted in a manner contrary to the principles of
international law.
Legal Status of Eastern Greenland: Denmark v. Norway (April 5, 1933)
PCIJ Series A/B No. 53
PRELIMINARY MATTERS:
DENMARK SUES. On July 12, 1931, the Denmark filed with the Registry of the
Permanent Court of International Justice, in accordance with Article 40 of the Statute and
Article 35 of the Rules of Court, relying on the optional clause of Article 36 (2) of the
Statute, a suit against Norway for Norway had published a proclamation that it had
proceeded to occupy certain territories in Eastern Greenland, which Denmark claims to be
subject of their sovereignty. The application was given to Norway and since the PCIJ had
no members belonging to both countries, both Denmark and Norway availed themselves of
their right to appoint a judge ad hoc.
WHAT DENMARK WANTS. Denmark asked the court for judgment to the effect that:
(note, they asked for #1 in their application and #2 and 3 in their reply)
1.) The promulgation of the declaration of occupation by Norway and any steps
taken in this connection constitute a violation of the existing legal situation and
are accordingly unlawful and invalid.
2.) That the Court reject Norway’s counter-case (see next) and;
3.) That Norway shall bear the costs incurred by Denmark in this case.
WHAT NORWAY WANTS. Norway, in their counter-case asked the court for judgment to
the effect that: (note, they just repeated what they said in the Counter-Case in their
rejoinder)
1.) Denmark has no sovereignty over Elrik Raudes Land;
2.) That Norway has acquired the sovereignty over Elrik Raudes Land; and
3.) That Denmark shall bear the costs incurred by Norway in this case.
FACTS:
NORWAY’S PROCLAMATION. Norway, in its proclamation of July 10, 1931, said that it is
taking possession of which is “officially confirmed”, and which is “placed under Norwegian
sovereignty” of Elrik Raudes Land in Eastern Greenland. This proclamation was criticized
for its failure to specify the limits of the occupation but it must have been intended that on
the eastern side of the sea and the western side the “inland ice” should constitute the limits
of the area occupied.
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DESCRIPTION OF GREENLAND. Greenland, which extends from latitude 59° 46' to 83°
39' N. and from longitude 73° to 10° 33' W., and the southernmost point of which is in
about longitude 630 W. of Greenwich, has a total area of about 2,200,000 square
kilometres; five sixths of this area are covered by the "Inland Ice", so that only a narrow
strip of varying width along the coasts is free of permanent ice. It should be added that only
in the last years of the XIXth century was it definitely established that Greenland is not
connected by land with the other parts of the continent of America, i.e. that Greenland is an
island.
The climate and character of Greenland are those of an Arctic country. The "Inland Ice" is
difficult to traverse, and parts of the coast - particularly of the East coast - are for months
together difficult of access owing to the influence of the Polar current and the stormy winds
on the icebergs and the floe ice and owing to the frequent spells of bad weather.
DISCOVERY OF GREENLAND. According to the information supplied by the Parties, it
was about the year 900 AD when Greenland was discovered. It was colonized about a
century later. The best known of the colonists was Eric the Red, who was an inhabitant of
Iceland of Norwegian origin. It was at the time that 2 settlements called Eystribygd and
Vestribygd were founded towards the southern end of the western coast. These
settlements appear to have existed as an independent State for some time, but became
tributary to the Kingdom of Norway in the 13th Century. These settlements had
disappeared before 1500.
NORDIC SETTLEMENTS UNDER THE KING OF NORWAY. The historian Sturla
Thodarson tells how the men of Greenland undertook to pay tribute, and how, for every
man murdered, a fine should be payable to the King of Norway whether the man was a
Norwegian or a Greenlander and whether killed in the settlements or in the districts to
which people went for the summer. These Norse settlements disappeared.
DENMARK AND NORWAY UNITED. In 1380, the Kingdoms of Norway and Denmark
were united. However, this union lasted until only until 1814. According to Norway, there
was nothing during this period that would show that Greenland, in so far as it constituted a
dependency of the Crown, should not be regarded as a Norwegian possession. The
disappearance of the Nordic colonies did not put an end to the King’s pretensions to the
sovereignty over Greenland.
THE SUCCEEDING PERIOD. The Norwegian Counter-Case describes the succeeding
period as an era of unsuccessful efforts on the part of the Catholic Church, of the Kings of
Norway and Denmark and of their subjects, to renew relations with the Norwegian colonies
of Western Greenland. The passports delivered by the King to the leader of two such
expeditions - Godske Lindenow, a Danish subject, indicated the voyage as “ad terram
nostrum Grunlandiam”. Some Eskimos brought back from Greenland are described by the
King as “Our subjects”. In 1635, a letter addressed to Christian IV, the King of France,
describes Greenland as:” a divis nostris antecessoribus Regibus Norvegice ad Nos
devoluta”
In 1636, the King gives a concession to the Burgomaster and certain citizens of
Copenhagen for a monopoly of the navigation and trading in Greenland and gives
directions as to their dealing with "Notre pauvre peuple, Nos sujets et habitants dudit
pays". In 1666, Frederick III is said to have added a bear to the arms of the Danish
Monarchy as the emblem of Greenland. Similarly, foreign countries appear to have
39
acquiesced in the claims of the King of Denmark. Both the States-General of the United
Provinces in 1631 and the King of France in 1636 intimated that they did not dispute the
claims; and, by the Treaty of Lund of September 27th, 1679 (7th Secret Article), Sweden
recognized the ancient rights and claims of the King of Denmark over Greenland and the
adjacent seas and coasts. (Sorry guys I can’t find translations for these).
GREENLAND COMPANY. In 1721, the pastor Hans Egede, of Bergen in Norway, formed
a "Greenland Company", went to Greenland as a missionary and founded a new colony
there, which was soon followed by other settlements. This was because it was feared that
the Greenlanders has lapsed back into Paganism. In 1723, this Company was granted a
concession placing at its disposal for twenty-five years "the whole country of Greenland" -
the King simply reserving his "sovereignty, absolutum dominium and hereditary rights". The
Company was, however, dissolved and, after an interval during which the State itself took
over the conduct of Greenland affairs by means of a "Greenland Department" attached to
the Royal Chancellory, a fresh concession was granted in 1734 to a certain Jacob Severin.
GREENLAND COMMISSION. Before the renewal of this last concession, the King formed
a “Greenland Commission” to which he entrusted matters arising out of the concession.
The King afterwards issued an Ordinance prohibiting any person, whether a subject or a
foreigner, from doing business in breach of Jacob Severin’s concession, provided that the
situation and limits of the colonies were published. The Ordinance also prohibited all
persons from robbing the Greenlanders or committing any acts of violence against them in
any place in Greenland, whether by land or sea.
STATE TOOK OVER GREENLAND TRADE. Jacob Severin’s concession eventually
expired and a new concession was made to another until 1774. However, during this year,
the State itself took over the Greenland trade, which it administered by means of an
autonomous Board. Since then, the Greenland trade has been a monopoly of the state of
Denmark. In 1781, regulations were made dividing Greenland into a northern and a
southern district. Factories were established.
THE NAPOLEONIC ERA. Denmark and Norway used to be united but it was because of
the war between Denmark and Sweden that Norway was ceded to Sweden. France and
Denmark had an alliance but Sweden had Russia, Great Britain, and Prussia has its allies.
Denmark lost the war against Sweden and Norway was ceded over Sweden, except for
Greenland, Iceland, and the Faroe Islands. This was provided in Article 4 of the Treaty of
Kiel.
GREENLAND CAME TO BE SEEN AS A DANISH DEPENDENCY, NOT NORWEGIAN.
1.) Danish explorations during the 19th Century.
a. Holm Expedition
b. Ryder Expedition
c. Amdrup Expedition
d. Danmark Expedition
2.) Robert Perry, an American, explored the northern sections of Greenland but all
his claims in Greenland were ceded to Denmark.
3.) Denmark granted concessions to an Englishman (J. W. Tayler) with the condition
that any station to be established is to be under the sovereignty of the Danish
crown.
4.) Applications for the erection of telegraph lines were made with the Kingdom of
Denmark.
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5.) A Danish settlement was established in Greenland’s East Coast.
6.) A private Danish society established in 1909 a mission station on the Northwest
Coast of Greenland.
7.) A decree was issued in 1905 by the Danish Minister of Interior, fixing the limits of
the territorial waters round Greenland. The fishing was reserved by Danish
subjects.
8.) A law was promulgated in 1908 by Denmark relating to the administration of
Greenland.
9.) A decree was issued by the King that the trading, mission, and hunting stations
established in Greenland is henceforth linked up with Danish colonies.
NORWAY HAD ACTIVITIES IN GREENLAND AS WELL.
1.) Norway had expeditions periodically during the summer of 1889, and in 1908-
1909, and again in 1922 and 1926.
2.) Norway was able to establish a provisional wireless station in Mygg-Bukta.
FEARS OF DENMARK. During the 19th Century, the Danish Government made a practice
excluding Greenland from the commercial conventions it concluded and in other ways,
acted upon the assumption that Danish sovereignty extended to the whole of Greenland.
Because of this, the Minister of State of Denmark addressed a letter to M. Wormskjöld, an
expert in Greenland affairs, indicating the weakness of the Danish position and the
contentions which a foreign Power might adduce in favor of a right to occupy the Eastern
Coast. It was probably because of this fear that Denmark set up a Commission for the
study of the natural and ethnographic phenomena of Greenland. It was at the beginning of
the 20th Century that opinion manifested in favor of the more effective colonization of the
uncolonized areas in Greenland in order that the risk of foreign settlement might be
obviated.
THE GREAT WAR. During the Great War of 1914-1918, Denmark ceded to the US the
Danish Antilles. America though signed a treaty with Denmark where the US would not
object to the Danish Government extending their political economic interests to the whole
of Greenland.
DENMARK AND NORWAY TALKS (1ST). There was a Peace Conference for the purpose
of considering the claims that may be put forward by different countries to Spitzbergen.
However, Denmark was willing to give an assurance to Norway that Denmark has not
special interest in Spitzbergen. Denmark then pointed out to Norway that the Denmark
“had been anxious for some years past to obtain the recognition by all the interested
Powers of Denmark’s sovereignty over the whole of Greenland” and that Denmark
intended to place that question in the Peace Conference.
The Norwegian Minister for Foreign Affairs (M. Ihlen) merely replied that “the question
would be considered”. The Minister afterwards made a statement to the effect that “the
Norwegian Government would not make any difficulties in the settlement of the question”.
DENMARK APPROACHES OTHER GOVERNMENTS. In 1920, Denmark approached
the Governments in London, Paris, Rome, and Tokyo with a view to obtaining assurances
from these Governments on the subject of the recognition of Denmark’s sovereignty over
the whole of Greenland. Each of those Governments replied in terms which satisfied the
Danish Government.
40
DENMARK APPROACHES SWEDEN/NORWAY In 1921, Denmark approached Sweden
and Denmark for the same purpose. The Swedish Government made no difficulty.
However, the Norwegian Government was not prepared to adopt the same attitude unless
it received an undertaking from Denmark that the liberty of hunting and fishing on the East
coast shall not be interfered with. Denmark was unwilling to give this undertaking, as it
alleges that it would have involved a reversal of policy which Denmark had hitherto
followed of endeavouring to shield the Eskimo people of Greenland on grounds of health
from uncontrolled contact with white races.
As soot as it became clear that Norway was unwilling to give the desired assurances,
Denmark instructed its Minister at Christiana that no further application was to be made
and that it would rest content with the verbal undertaking given by M. Ihlen in 1919.
On the Danish side there was evinced willingness to make every effort to satisfy the
desire of the Norwegian Government that Norwegians should be able to continue to fish
and hunt on the East coast of Greenland but a determination not to give way on the claim
to sovereignty. On the Norwegian side it was gradually made clear that, in the opinion of
the Norwegian Government, the uncolonized part of the East coast of Greenland was a
terra nullius, and that Denmark's political aspirations could only be met if it involved no
sacrifice of Norwegian economic interests. This disagreement, however, on the point of
principle as to the status of the territory did not exclude a mutual desire to find a practical
solution of the fishing and hunting questions.
RESOLUTION OF STORTING (NORWAY’S PARLIAMENT). ON July 13, 1923, the
Norwegian Minister for Foreign Affairs informed Denmark that the Storting passed a
resolution calling on Norway to “invite the Danish Government to enter in to negotiations
on the question of Greenland, the said negotiations to be conducted on a free basis
between representatives specially appointed for that purpose by the 2 countries”.
Denmark accepted the invitation. Negotiations began in September 1923 but as they
progressed, points on which no agreement could be reached were eliminated.
AGREEMENT OF DENMARK/NORWAY. On July 9m 1924, the parties signed a
Convention applicable to the whole Eastern Coast of Greenland, excluding the district of
Angmagssalik for a period of 20 years. Under Article 2, ships were to have free access to
the East Coast, and their crews were given the right to land, to winter in the territory and to
hunt and fish. Article 5 provides that the erection of meteorological, telegraphic, and
telephonic stations are authorized. However, both Denmark and Norway reserved its
opinion on questions concerning Greenland not dealt with in the Convention. The main
points that weren’t agreed on is the Danish contention that Denmark possessed full and
entire sovereignty and the Danish contention that all the parts of Greenland which had not
been occupied in such a manner as to bring them effectively under the administration of
Denmark were in the condition of Terra Nullius, and that if they cease to be terrce nullius,
they must pass under Norwegian sovereignty.
DENMARK MAKES A PROCLAMATION. Denmark announced that it would permit
Danish vessels and persons on board of them to navigate to the territory, subject to
conditions which were identical with those laid down in the Convention. The decree added
that the permission granted would be applicable also to nationals, vessels and companies
of Iceland and of foreign nations with which the Danish Government should conclude an
agreement. This act occasioned reservations on the part of Norway.
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Denmark afterwards promulgated a law “on fishing and hunting in Greenland waters”. This Resolution issued by Norway. This occupied territory was named “Elrik Raudes Land” by
law reserved hunting and fishing in Greenland waters exclusively for Danish subjects Norway.
(including Eskimos) settled in Greenland, and for persons obtaining special licenses. This
was followed by a law “concerning the administration of Greenland” which divided ARGUMENTS BY NORWAY:
Greenland, from an administrative point of view, into 3 provinces, and laid down that “all 1.) Sovereignty which Denmark now enjoys over Greenland has existed for a long,
commercial activities in Greenland are reserved to the Danish State under the direction of time, has been continuously and peacefully exercised, and until the present
the Minister of the Interior”. Norway made “categorical reservations” against the latter law, dispute, has not been contested by any Power.
“in so far as it applies to regions where the sovereignty of Denmark has not hitherto been 2.) Norway, by treaty or otherwise herself recognized Danish sovereignty over
demonstrated. Greenland as a whole and therefore cannot dispute it.
 Denmark maintained that the promise by in 1919 by M. Ihlen, the Norwegian
BRITS/FRENCH ASK FOR MFN. In 1925, the England and France requested Denmark Minister for Foreign affairs, speaking on behalf of his Government debarred
requested Denmark to grant the most-favoured nation treatment (it is a status accorded by Norway from proceeding to any occupation of territory in Greenland even if
1 nation to another where the nation granted the status would receive all advantages that she had not by other acts recognized an existing Danish sovereignty there.
any 3rd nation receives). Denmark granted these requests. When Norway learned of this,
she draw the attention of England and France to the fact that Norway had not recognized ARGUMENTS BY NORWAY:
Danish sovereighty over the whole of Greenland. Norway also informed all the other 1.) Denmark possessed no sovereignty over the area which Norway occupied on
Powers whom it regarded as being interested.
July 10, 1931, and that at the time of the occupation the area was terra nullius.
2.) The area lay outside the limits of the Danish colonies in Greenland and that
NORWAY CONFERRED POLICE POWERS ON NATIONALS. In the summer of 1930,
Danish sovereignty extended no further than the limits of these colonies.
Norway conferred police powers on certain Norwegian national “for the inspection of the
Norwegian hunting stations in Eastern Greenland”. Denmark became uneasy at this action
ISSUE1: WON Denmark has exercised sovereign rights over Greenland as a whole for a
and told Norway that she would could not countenance the granting of regular police
long time and has obtained thereby a valid title to sovereignty.
powers to Norwegian nationals in territories situated in Greenland, seeing that these
territories were, in the Danish view, subject to Danish sovereignty. Norway replied that it
HELD: Yes. Denmark has obtained a valid title to sovereignty. Denmark’s claim is not
was fully entitled to invest Norwegian nationals in Eastern Greenland with police powers, in
founded upon any particular act of occupation but alleges a title “founded on the peaceful
light of their view that Eastern Greenland constituted a terra nullius.
and continuous display of State authority over the island”. It is based upon the view that
Denmark now enjoys all the rights which the King of Denmark and Norway enjoyed over
THREE YEARS PLAN. In 1930, Denmark inaugurated the “Three Years Plan” for
Greenland up until 1814.
scientific research in the central part of Eastern Greenland. Norway pointed out that the 3
Years Plan’s object was not purely scientific but also had the practical aim of colonization.
It must be borne in mind, however, that as the critical date is July 10, 1931, it is not
Norway strongly urged Denmark to do everything in its power to ensure that the Plan
necessary that sovereignty over Greenland should have existed throughout the period
should not be carried out in such a way as to conflict with the provisions of the Convention
during which the Danish Government maintains that it was in being. Even if the material
concerning Eastern Greenland, or with the legitimate interests of Norwegian hunters in that
submitted to the Court might be thought insufficient to establish the existence of that
country.
sovereignty during the earlier periods, this would not exclude a finding that it is sufficient to
establish a valid title in the period immediately preceding the occupation.
PARTIES AGREE TO BRING DISPUTE TO PCIJ. Because they couldn’t agree and
because Norway was insisting on its terra nullius theory while Denmark insisted that it had
Before proceeding to consider in detail the evidence submitted to the Court, it may be
sovereignty over the entire island, Denmark sought for conciliation or a judicial settlement
well to state that a claim to sovereignty based not upon some particular act or title such as
by the Permanent Court of International Justice. Norway consented to submit the question
a treaty of cession but merely upon continued display of authority, involves two elements
to the PCIJ by a Special Agreement. It though suggested that in case the Court finds that
each of which must be shown to exist: the intention and will to act as sovereign, and
Denmark had not acquired sovereignty over Greenland or over a part thereof, Denmark
some actual exercise or display of such authority.
would not oppose the acquisition of Norway of sovereignty over the regions in question.
Denmark replied that that the Special Agreement should include the provision that neither
Another circumstance which must be taken into account by any tribunal which has to
the Danish nor Norwegian Governments would, in the course of the examination of the
adjudicate upon a claim to sovereignty over a particular territory is the extent to which the
case, take any surprise action, or any step calculated to modify the existing situation.
sovereignty is also claimed by some other Power. In most of the cases involving claims to
territorial sovereignty which have come before an international tribunal, there have been
HALLVARD DEVOLD, A NORWEGIAN, OCCUPIES PART OF EASTERN GREENLAND.
two competing claims to the sovereignty, and the tribunal has had to decide which of the
On June 28, 1931, certain Norwegian hunters led by Hallvard Devold announced that they
two is the stronger. One of the peculiar features of the present case is that up to 1931
had occupied the territory lying between Carlsberg Fjord, and Bessel Fjord, in the name of
there was no claim by any Power other than Denmark to the sovereignty over Greenland.
the King of Norway. They occupied the territory on their own initiative. After the fact, the
Indeed, up till 1931, no Power disputed the Danish claim to sovereignty.
occupation was supported by the Norwegian Government, as evidenced by a Royal

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It is impossible to read the records of the decisions in cases as to territorial sovereignty
without observing that in many cases the tribunal has been satisfied with very little in the
way of the actual exercise of sovereign rights, provided that the other State could not make
out a superior claim. This is particularly true in the case of claims to sovereignty over
areas in thinly populated or unsettled countries.
Sovereignty over Greenland can be seen in the undertaking recorded by Sturla Thordarson
that fines should be paid to the King of Norway by the men of Greenland in respect of
murders whether the dead man was a Norwegian or a Greenlander and whether killed in
the settlement or even as far to the North as under the Pole Star, shows that the King of
Norway's jurisdiction was not restricted to the confines of the two settlements of Eystribygd
and Vestribygd. So far as it is possible to apply modern terminology to the rights and
pretensions of the kings of Norway in Greenland in the 13 th and 14th centuries, the Court
holds that at that date these rights amounted to sovereignty and that they were not limited
to the two settlements.
The expeditions sent out in 1605 and 1606 under Lindenow to "Our Country of Greenland",
the efforts to assure respect on the part of foreign Powers for the King's rights there and
the claim to exclude foreigners from the Greenland trade all show that the King considered
that in his dealings with Greenland he was dealing with a country with respect to which he
had a special position superior to that of any other Power. This special position can only
have been derived from the sovereign rights which accrued to the King of Norway from the
submission made to him by the early Nordic settlers and which descended to the Danish-
Norwegian kings. It must have covered the territory which is known as Greenland today,
because the country was inhabited. The expedition in 1605 brought back some of the
inhabitants, whereas Spitzbergen was admittedly uninhabited. Lastly, as there were at this
date no colonies or settlements in
Greenland, the King's claims cannot have been limited to any particular places in the
country.
After the founding of Hans Egede's colonies in 1721, there is in part at least of Greenland
a manifestation and exercise of sovereign rights. Consequently, both the elements
necessary to establish a valid title to sovereignty - the intention and the exercise - were
present, but the question arises as to how far the operation of these elements extended.
The King's pretensions to sovereignty which existed at the time of the foundation of the
colonies are sufficient to demonstrate the intention, and, as said above, these were not
limited to any particular part of the country.
Was the exercise of sovereign rights such as to confer a valid title to sovereignty over the
whole country? The founding of the colonies was accompanied by the grant of a monopoly
of the trade, and before long legislation was found to be necessary to protect and enforce
the monopoly. In the earlier Ordinances of 1740-1751, issued at the time when Jacob
Severin was the grantee of the monopoly, the prohibition of trading was restricted to the
colonies, but those Ordinances also contained a prohibition of injurious treatment of the
Greenlanders, and this was not limited to the colonies but operated in Greenland as a
whole. Furthermore, the prohibition of trading was to apply not only in the existing colonies
but in any future colonies which might be established. Legislation is one of the most
obvious forms of the exercise of sovereign power, and it is clear that the operation of these
enactments was not restricted to the limits of the colonies. It therefore follows that the
sovereign right in virtue of which the enactments were issued cannot have been restricted
to the limits of the colonies.
42
The Ordinance of 1758 and that of 1776 (which is still in force) also operated beyond the
limits of the colonies: under these Ordinances, the prohibition on trading is no longer
restricted to the colonies but is to apply "in all places what-ever". This extension in the area
of the monopoly is reflected in the terms of the commercial treaties of the period. The
treaties before 1758 (those of 1742 between Denmark and France, of 1748 between
Denmark and the Two Sicilies and of 1756 between Denmark and the Republic of Genoa)
make an exception for the trade "with His Majesty's colonies in Greenland". The notes
exchanged with Russia in 1782 relate to "Greenland" in general.
SUB-ISSUE1: WON sovereignty was lost after the disappearance of the 2 Nordic
settlements because of conquest.
HELD: No. Conquest only operates as a cause of loss of sovereignty when there is war
between two States and by reason of the defeat of one of them sovereignty over territory
passes from the loser to the victorious State. The principle does not apply in a case where
a settlement has been established in a distant country and its inhabitants are massacred
by the aboriginal population. Nor is the fact of "conquest" established. It is known now that
the settlements must have disappeared at an early date, but at the time there seems to
have been a belief that despite the loss of contact and the loss of knowledge of the
whereabouts of the settlements one or both of them would again be discovered and found
to contain the descendants of the early settlers.
SUB-ISSUE2: WON sovereignty was lost after the disappearance of the 2 Nordic
settlements because of voluntary abandonment.
HELD: No. There is nothing to show any definite renunciation on the part of the Kings of
Norway or Denmark. Also, despite having no intercourse with Greenland, the tradition of
the King’s rights lived on, and in the early part of the 17 th Century, a revival of interest in
Greenland on the part of both the King and of his people took place. That period was an
era of adventure and exploration. The example set by the navigators of foreign countries
was inspiring, and a desire arose in Norway and Denmark to recover the territory which
had been subject to the sovereignty of the King's ancestors in the past.
SUB-ISSUE3: WON Denmark used the word “Greenland” not in the geographical sense
but only means the colonies or the colonized area on the West Coast.
HELD: No. The burden of proof lies on Norway to prove that Denmark used the word
“Greenland” only to mean the colonies on the West Coast. The geographical meaning of
the word "Greenland", i.e. the name which is habitually used in the maps to denominate
the whole island, must be regarded as the ordinary meaning of the word. In the opinion of
the Court, Norway has not succeeded in establishing her contention. It is not sufficient for
her to show that in many of these legislative and administrative acts action was only to be
taken in the colonies. Most of them dealt with things which only happened in the colonies
and not in the rest of the country. The fact that most of these acts were concerned with
what happened in the colonies and that the colonies were all situated on the West coast is
not by itself sufficient ground for holding that the authority in virtue of which the act was
taken – whether legislative or administrative – was also restricted to the colonized area.
Unless it was so restricted, it affords no ground for interpreting the word “Greenland” in this
restricted sense.
Besides, the Ordinances of 1740, 1751, 1758, and 1776 purport to operate in Greenland
generally. If the terms of these Ordinances are examined closely, they do not bear out the
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view that “Greenland” means only the colonized area. There is nothing to show that the
word "Greenland" is not used all through the Ordinance in the same sense. The Ordinance
is issued by the King as Hereditary Sovereign of Greenland. It has been shown above that
the rights and pretensions which the King derived from his ancestors as kings of Norway
were not limited to any particular part of Greenland, because no colonies existed at the
time, but extended to the whole country. Again, the colonies are described as colonies
established in Greenland, so that the colonies and Greenland cannot have coincided.
SUB-ISSUE4: WON “Greenland” as used in the documents of this period (the 18 th century)
cannot have been intended to include the East Coast because at that time, the East Coast
was yet unknown.
HELD: No. An examination of the maps of the 17 th and 18th centuries shows that the
general features and configuration of the East coast of Greenland were known to the
cartographers. Even if no evidence of any landings on the coast have been produced, the
ships which hunted whales in the waters to the East of Greenland sighted the land at
intervals and gave names to the prominent features which were observed. Indeed,
"Greenland" as a geographical term was even more used in connection with the East coast
than with the West coast, as the term "Straat Davis" was often used to describe the West
coast, or colonized area, of Greenland.
------- AS TO THE CONVENTIONS WHERE DENMARK EXCLUDED GREENLAND -------
Another proof of Denmark’s sovereignty over the islands is the series of conventions which
have been concluded by Denmark and in which, with the concurrence of the other
contracting Party, a stipulation has been inserted to the effect that the convention shall not
apply to Greenland.
In many of these cases, the wording is quite specific; for instance, Article 6 of the
Treaty of 1826 with the United States of America: "The present Convention shall not apply
to the Northern possessions of His Majesty the King of Denmark, that is to say Iceland, the
Færö Islands and Greenland...."
The importance of these treaties is that they show a willingness on the part of the States
with which Denmark has contracted to admit her right to exclude Greenland. To some of
these treaties, Norway has herself been a Party, and these must be dealt with later
because they are relied on by Denmark as constituting binding admissions by Norway that
Greenland is subject to Danish sovereignty. For the purpose of the present argument, the
importance of these conventions, with whatever States they have been concluded, is due
to the support which they lend to the Danish argument that Denmark possesses
sovereignty over Greenland as a whole.
These treaties demonstrate Denmark’s will and intention to exercise sovereignty over
Greenland.
Other proofs of sovereignty derived from the conventions and contracts:
1.) The concessions for the erection of telegraph lines and legislation fixing the limits
of territorial waters manifest the exercise of sovereign authority.
2.) Denmark sought the recognition of Denmark’s sovereignty over Greenland from
other countries and the Court held that this action was for the recognition of
existing sovereignty and not consent to the acquisition of new sovereignty,
despite the usage of the phrase “extension of sovereignty”.
43
SUB-ISSUE6: WON Norway, in providing in the concession contract with the Englishman
Tayler that the establishments created by the concessionaires were to be placed under the
sovereignty of the Crown of Denmark is evidence that Denmark itself realized that Danish
sovereignty did not extend to that part of Greenland
HELD: No. Denmark was afraid that foreign Powers would attempt to make settlements
on the East Coast and that specific provision (Ariticle 2) in the concession contract was
intended to make sure that the settlements established by Tayler should not be made the
basis of a claim of occupation and sovereignty by the King of England.
------- AS TO THE LAWS PROMULGATED BY DENMARK IN GREENLAND -------
Denmark promulgated several laws affecting Greenland, such as the law on hunting and
fishing and the division of Greenland into 3 provinces, in an administrative point of view.
These were all cases in which the Danish Government was exercising governmental
functions in connection with the territory now under dispute. The character of these Danish
acts is not altered by the protests or reserves which, from time to time, were made by the
Norwegian Government. These acts, coupled with the activities of the Danish hunting
expeditions which were supported by the Danish Government, the increase in the number
of scientific expeditions engaged in mapping and exploring the country with the
authorization and encouragement of the Government, even though the expeditions may
have been organized by non-official institutions, the occasions on which the Godthaab, a
vessel belonging to the State and placed at one time under the command of a naval officer,
was sent to the East coast on inspection duty, the issue of permits by the Danish
authorities, under regulations issued in 1930, to persons visiting the eastern coast of
Greenland, show to a sufficient extent - even when separated from the history of the
preceding periods - the two elements necessary to establish a valid title to sovereignty,
namely : the intention and will to exercise such sovereignty and the manifestation of State
activity.
------- CONCLUSION AS TO SOVEREIGNTY -------
Even if the period from 1921 to July 10th, 1931, is taken by itself and without reference
to the preceding periods, the conclusion reached by the Court is that during this time
Denmark regarded herself as possessing sovereignty over all Greenland and displayed
and exercised her sovereign rights to an extent sufficient to constitute a valid title to
sovereignty. When considered in conjunction with the facts of the preceding periods, the
case in favour of Denmark is confirmed and strengthened.
It follows from the above that the Court is satisfied that Denmark has succeeded in
establishing her contention that at the critical date, namely, July 10, 1931, she
possessed a valid title to the sovereignty over all Greenland. This finding
constitutes by itself sufficient reason for holding that the occupation of July 10,
1931, and any steps taken in this connection by the Norwegian Government were
illegal and invalid.
ISSUE2: WON Norway had given certain undertakings which recognize Danish
sovereignty over all Greenland.
HELD: Yes.
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In the first place, the Court holds that at the time of the termination of the Union between
Denmark and Norway in 1814, Norway did not undertake to dispute Danish sovereignty
over Greenland. Article 4 of the Treaty of Kiel specifically exempts Greenland from the
lands to be ceded by Denmark to Sweden.
Storting, the Parliament of Norway, petitioned to the King of Norway to recover Norway’s
former territories, including Greenland. However, they withdrew their claim upon learning
of Denmark’s refusal.
Moreover, in March 1819, the Minister of Foreign Affairs of Norway and Sweden (Sweden
had control over Norway during this time), wrote to the British Minister in Stockholm that
the King of Sweden and Norway agreed to renounce in favor of the Kingdom of Denmark
their claims over Iceland, Greenland, and the Faroe Islands. The letter was written
because Norway-Sweden was asking for the intervention of the British Prince Regent in
settling its differences with Denmark, especially with its financial obligations under the
Treaty of Kiel.
A second series of undertakings by Norway, recognizing Danish sovereignty over
Greenland, is afforded by various bilateral agreements concluded by Norway with
Denmark, and by various multilateral agreements to which both Denmark and Norway
were contracting Parties, in which Greenland has been described as a Danish colony or as
forming part of Denmark or in which Denmark has been allowed to exclude Greenland
from the operation of the agreement.
The first of these agreements is the Commercial Treaty concluded between Denmark and
Norway-Sweden. Article 5 of that Treaty reads as follows: "The respective colonies of the
two High Contracting Parties, including in the case of Denmark, Greenland, Iceland, and
the Faroe Isles, shall be specially excepted from the provisions of the four preceding
articles, which shall only be applicable to the Kingdom of Denmark, the Duchies of Slesvig,
Holstein and Lauenbourg of the one part, and to the Kingdoms of Sweden and Norway, of
the other part."
Among more modern agreements may be quoted, as examples, the stipulations in the
Universal Postal Conventions of 1920, 1924 and 1929, which say that: "The following
shall be considered as belonging to the Universal Postal Union: .... (c) the Faroe Isles and
Greenland, as being part of Denmark."
It has already been said that when the Treaty of 1826 speaks of "Greenland", this can only
denote Greenland in the sense, for example, of Article 4 of the Treaty of Kiel, i.e. the whole
of Greenland. The same applies to the Danish-Norwegian Agreements, referred to above,
which followed the Treaty of 1826. In accepting these bilateral and multilateral agreements
as binding upon herself, Norway reaffirmed that she recognized the whole of Greenland as
Danish; and thereby she has debarred herself from contesting Danish sovereignty over the
whole of Greenland, and, in consequence, from proceeding to occupy any part of it.
In addition to the above, Denmark relied on the declaration of M. Ihlen, the Minister of
Foreign Affairs of Norway in 1919. He told the Danish Minister that the Norwegian
Government would not make any difficulties in the settlement of this question (on
Denmark’s sovereignty over Greenland).
44
The Court considers it beyond all dispute that a reply of this nature given by the Minister
for Foreign Affairs on behalf of his Government in response to a request by the diplomatic
representative of a foreign Power, in regard to a question falling within his province, is
binding upon the country to which the Minister belongs.
Norway has objected that the Danish Government's intention to extend the monopoly
régime to the whole of Greenland was not mentioned in the Danish request of July 14,
1919, as is alleged to have been done at a later date in the communications addressed to
the interested Powers in 1920 and 1921; and it is argued that if the Norwegian
Government had been warned of this intention, the declaration of the Minister for Foreign
Affairs would have been in the negative; and that, in consequence, the declaration, though
unconditional and definitive in form, cannot be relied on against Norway.
The Court cannot admit this objection. It seems difficult to believe that Norway could not
have foreseen the extension of the monopoly, in view of the fact that the United States of
America, which had received in 1915 a request similar to that made to Norway on July 14,
1919, had understood perfectly well that the Danish plans in regard to the uncolonized
parts of Greenland involved an extension of the monopoly régime - although this was not
mentioned in the Danish request at Washington - and had for that very reason at first
demanded the maintenance of the "open door". It is all the more difficult for the Court to
accept the Norwegian argument on this point because the monopoly, in Greenland, is an
institution which traces its origin to the Dano-Norwegian administration in the 18th century.
From the foregoing, it results that the Court is unable to regard the Ihlen declaration of
July 22, 1919, otherwise than as unconditional and definitive.
DISPOSITIVE PART: Each Party has prayed the Court to order the other Party to pay the
costs in the present case. The Court, however, holds that there is no need in the present
case to deviate from the general rule laid down in Article 64 of the Statute, namely, that
each Party will bear its own costs.
FOR THESE REASONS, The Court, by twelve votes to two,
(1) decides that the declaration of occupation promulgated by the Norwegian
Government on July 10th, 1931, and any steps taken in this respect by that
Government, constitute a violation of the existing legal situation and are
accordingly unlawful and invalid;
(2) rejects the opposing submissions of the Norwegian Government;
(3) declares that there is no need to deviate from the general rule laid down in Article 64 of
the Statute that each Party will bear its own costs.
The Minquiers and Ecrehos Case: France v. United Kingdom (17 Nov. 1953)
By a letter dated Dec. 5th, 1951, the British Ambassador to the Netherlands transmitted to
the Registry on behalf of his Government a certified copy of a Special Agreement
concluded between the Government of the United Kingdom of Great Britain and Northern
Ireland and the Government of the French Republic, signed on Dec. 9th, 1950, the
instruments of ratification in respect of which were exchanged at Paris on Sept. 4th, 1951.
Pursuant to Article 33, paragraph 2, of the Rules of Court, the French Government was
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informed of the notification to the Court of the Special Agreement, copies of which were, in
accordance with Article 34, paragraph 2, of the Rules of Court, transmitted to the States
entitled to appear before the Court and to the Secretary-General of the United Nations.
The Preamble and Articles 1 and II of the Special Agreement were in the following terms:
"The Government of the United Kingdom of Great Britain and Northern Ireland and the
Government of the French Republic;
Considering that differences have arisen between them as a result of claims by each of
them to sovereignty over the islets and rocks in the Minquiers and Ecrehos groups;
Desiring that these differences should be settled by a decision of the International Court of
Justice determining their respective rights as regards sovereignty over those islets and
rocks;
Desiring to define the issues to be submitted to the International Court of Justice; Have
agreed as follows:
The Court is requested to determine whether the sovereignty over the islets and rocks (in
so far as they are capable of appropriation) of the Minquiers and Ecrehos groups
respectively belongs to the United Kingdom or the French Republic.
Without prejudice to any question as to the burden of proof, the Contracting Parties agree,
having regard to Art. 37 of the Rules of Court, that the written proceedings should consist
of:
(1) a United Kingdom memorial to be submitted within 3 months of the notification of the
present Agreement to the Court in pursuance of Article III below;
(2) a French counter-memorial to be submitted within 3 months of delivery of the United
Kingdom memorial;
(3) a United Kingdom reply followed by a French rejoinder to be delivered within such
times as the Court may order."
Pleadings were filed and on Mar. 28, 1953, hearings were set for Sept. 17 and Oct. 8,
1953. During the hearings, the Court, in accordance with Article 13, paragraph 1, of the
Rules, heard the Parties who by agreement addressed the Court in the order in which they
had submitted their Pleadings. At the end of the arguments, that is on Oct. 6th and 8th
respectively, the following FINAL SUBMISSIONS were presented by the Parties:
On behalf of the United Kingdom Government: "The Court is asked to declare: That the
United Kingdom is entitled under international law to full and undivided sovereignty over all
the Islets and Rocks of the Minquiers and the Ecréhos groups:
1) by reason of having established the existence of an ancient title supported throughout
by effective possession evidenced by acts which manifest a continuous display of
sovereignty over the groups; alternatively,
2) by reason of having established title by long continued effective possession alone,
such possession being evidenced by similar acts."
On behalf of the French Government: "May it please the Court, To adjudge and declare:
(1) that France posesses an original title to the islets and rocks of the Minquiers group on
the one hand and the Ecrehos group on the other;
(2) that France has at al times confirmed this original title by an effective exercise of her
sovereignty to the extent that the character of these islets and rocks lent itself to such an
exercise;
(3) that the United Kingdom has been unable to establish that it had effective possession
of these islets and rocks at the time of the conclusion of the Treaty of Paris of 1259, which
made effective possession the necessary condition for English sovereignty over the
various Channel Islands, or at any subsequent period ;
45
(4) that by the Convention of Aug. 2nd, 1839, UK and France brought into being, between
a line three miles from low water mark on the island of Jersey and an ad hoc line
defined in Article I of the Convention, a zone in which fishery of every type should be
common to the subjects of the two countries;
(5) that the islets and rocks of the Minquiers and Ecrehos groups, being within the common
fishery zone as so defined, were, in 1839, subjected by the Parties to a régime of common
user for fishery purposes, without the territorial sovereignty over these islets and rocks
being otherwise affected by the said Convention;
(6) that the acts performed by each Party on the islets and rocks subsequently to Aug. 2nd,
1839, are consequently not capable of being set up against the other Party as
manifestations of territorial sovereignty, with the result that such sovereignty belongs
today to that one of the Parties to whom it belonged before Aug. 2nd, 1839;
(7) that this 'critical date' would still apply even if the construction put upon the Convention
of Aug. 2nd, 1839, by the French Government should be incorrect, since the Government
of
the UK was not unaware of this interpretation or of the possibility it afforded to the
Government of the UK and to British subjects to benefit from the institution of a common
user of the islets and rocks of the two groups for fishery purposes, as this resulted, in the
mind of the French Government, from Article 3 of the Convention of Aug. 2nd, 1839;
(8) that, even if the 'critical date' should be fixed at a date subsequent to Aug. 2nd, 1839,
the acts of possession invoked by the Government of the UK do not satisfy the conditions
required by international law for the acquisition or preservation of territorial sovereignty;
(9) that, furthermore, France in the nineteenth and twentieth centuries has performed the
acts of sovereignty required, having regard to the special character of these islets, and has
assumed the essential responsibilities inherent in her sovereignty;
(IO) that, for these reasons, sovereignty over the islets and rocks of the Minquiers group
and the Ecrehos group respectively belongs, in so far as these islets and rocks are
capable of appropriation, to the French Republic."
UK’S SUBMISSIONS consist of 3 paragraphs, the last 2 being reasons underlying the first,
to be regarded as its FINAL SUBMISSION: "that the UK is entitled under international law
to full and undivided sovereignty over all the Islets and Rocks of the Minquiers and the
Ecréhous groups"
FRANCE’S SUBMISSIONS consist of 10 paragraphs, the first 9 being reasons leading up
to the last, to be regarded as its FINAL SUBMISSION: "that, for these reasons, sovereignty
over the islets and rocks of the Minquiers group and the Ecrehos group respectively
belongs, in so far as these islets and rocks are capable of appropriation, to the French
Republic".
By Art. 1 of the Special Agreement, signed on Dec. 9th, 1950, the Court is requested "to
determine whether the sovereignty over the islets and rocks (in so far as they are capable
of appropriation) of the Minquiers and Ecrehos groups respectively belongs to the UK or
the French Republic".
ISSUES NARROWED. The Court has to determine which of the Parties has produced the
more convincing proof of title to one or the other of these groups, or to both of them. By the
formulation of Article 1, the Parties have excluded the status of res nullius as well as that of
condominium.
BURDEN OF PROOF ON CLAIMANT. In Article II the Parties have stated their agreement
as to the presentation of the Pleadings "without prejudice to any question as to the burden
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of proof", a question which it is for the Court to decide. Having regard to the position of the
Parties, both claiming sovereignty over the same territory, and in view of the formulation of
the task of the Court in Article 1, and the terms of Article II, the Court is of opinion that each
Party has to prove its alleged title and the facts upon which it relies.
SPECIAL AGREEMENT. The Court is requested to determine the sovereignty over the
islets and rocks in so far as they are capable of appropriation—relating to islets and rocks
which are physically capable of appropriation. It is requested to decide in general to which
Party sovereignty over each group as a whole belongs, without determining in detail the
facts relating to the particular units of which the groups consist.
DESCRIPTION. These groups lie between the British Channel Island of Jersey and the
coast of France and consist each of two or three habitable islets, many smaller islets and a
great number of rocks. The ECREHOS GROUP lies north-east of Jersey, 3.9 sea-miles
from that island, measured from the rock nearest thereto and permanently above water,
and 6.6 sea-miles from the coast of France, measured in the same way. The MINQUIERS
GROUP lies south of Jersey, 9.8 sea-miles therefrom and 16.2 sea-miles from the French
mainland, measured in the same way. This group lies 8 sea-miles from the Chausey
Islands which belong to France.
BOTH CLAIM TITLES. Both Parties contend that they have respectively an ancient or
original title to the Ecrehos and the Minquiers, and that their title has always been
maintained and was never lost. The case does not present the characteristics of a dispute
concerning the acquisition of sovereignty over terra nullius.
UK: derives the ancient title it invokes from the conquest of England in 1066 by William,
Duke of Normandy. By this conquest England became united with the Duchy of Normandy,
including the Channel Islands, and this union lasted until 1204 when King Philip Augustus
of France drove the Anglo-Norman forces out of Continental Normandy. But his attempts to
occupy also the Islands were not successful, except for brief periods when some of them
were taken by French forces. Thus, UK submits the view that all of the Channel Islands,
including the Ecrehos and the Minquiers, remained, as before, united with England and
that this situation of fact was placed on a legal basis by subsequent Treaties concluded
between the English and French Kings.
FRANCE: does not dispute that the Islands of Jersey, Guernsey, Aldemey, Sark, Herm and
Jethou continued to be held by the King of England; but it denies that the Ecrehos and
Minquiers groups were held by him after the dismemberment of the Duchy of Normandy in
1204. After that event, these 2 groups were, it is asserted, held by the King of France
together with some other islands close to the continent, and reference is made to the same
medieval Treaties as those which are invoked by UK.
ISSUE: Do these treaties, invoked by both parties, contain anything on the status of
Ecrehos and Minquiers?
HELD: NO.
THE TREATY OF LAMBETH OF 1217, to which the Parties have referred, cannot be said
to contain anything which might elucidate this question.
• Treaty of Paris of 1259, the principal Treaty on which the Parties rely, enumerates in
Article 4 all the lands which the King of England should hold in fee of the King of
France in Saintonge beyond the river Charente as well as Bordeaux, Bayonne and
46
Gascony and "all the land which he holds on this side of the sea of England in fee and
in demesne and the islands, if any there be, which the king of England holds which
are of the realm of France, and he shall hold of us as peer of France and Duke of
Aquitaine". These terms seem to refer to islands which the King of England held as
Duke of Aquitaine, and not to the Channel Islands. But even assuming that these
Islands were also included, the article refers in any case only to islands, if any there
be, which are held by the English King. It does not say which islands were at that time
held by him.
• Art. 6 enumerates all the lands which the King of England relinquished "in any part of
the Realm of France or in the islands, if any are held by us or by our brother or by
others in our or their behalf". This text refers only to islands, if any, which are held by
the King of France, without indicating which islands were so held. From the text itself
of this Treaty nothing can be deduced WRT the status of the Ecrehos and the
Minquiers.
• Treaty of Calais of 1360, Art. 6 provided that the King of England shall have and hold
all islands which he "now holds". This must be considered as including those of the
Channel Islands which the King held at that time. But as it is not said which of these
Islands were held by the English King, it is not possible to draw from this text alone
any conclusion as to the status of the islets in dispute.
• Treaty of Troyes of 1420 also not helpful.
TREATIES FAILED TO SPECIFY WHICH ISLANDS WERE HELD BY THE KINGS OR
ENGLAND & FRANCE RESPECTIVELY. The Court would not be justified in drawing from
them any conclusion as to whether the Ecrehos and the Minquiers at the time when these
Treaties were signed were held either by the English or by the French King.
BUT, OTHER DOCUMENTS PROVIDE SOME INDICATION AS TO THE POSSESSION
OF THE ISLETS IN DISPUTE.
• By a Charter of Jan. 14th, 1200, King John of England granted to one of his Barons,
Piers des Préaux, the Islands of Jersey, Guernsey and Alderney "to have and to hold
of us by service of three knights' fees".
• 3 years later, by a Charter of 1203, Piers des Préaux granted to the Abbey of Val-
Richer "the island of Escrehou in entirety", stating that the King of England "gave me
the islands" (insulas mihi dedit), showing that he treated the Ecrehos as an integral
part of the fief of the Islands which he had received from the King.
• English King’s Order of July 5th, 1258, the Sub-Warden of the Islands was ordered "to
guard the islands of Gernere and Geresey, and the king's other islands in his
keeping".
• Letters Patent of the English King, dated June 28th, 1360: the "keeper of the islands
of Gerneseye, Jereseye, Serk and Aurneye, and the other islands adjacent thereto"
may have the keeping for a further period.
• Truce of London of 1471, Art. 3: the King of France would not make any hostile act
against the Kingdom of England and other lands specially mentioned, including the
Islands "of Guernsey, Jersey and Alderney [and other territories, islands, lands and
lordships, which are, or will be, held and possessed by the said lord King of England
or by his subjects".
• A Papal Bull of January 1500, transferring the Channel Islands from the Diocese of
Coutances to the Diocese of Winchester, mentioned "the Islands of Jersey and
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Guernsey, Chausey, Alderney, Herm and Sark", while 2 commercial Treaties of 1606
and 1655 mentioned only Jersey and Guernsey.
UK ARGUES: the Channel Islands in the Middle Ages were considered as an entity,
physically distinct from Continental Normandy, and that any failure to mention by name any
particular island in any relevant document, while enumerating other Channel islands, does
not imply that any such island lay outside this entity.
COURT AGREES. Having regard to these documents, particularly to the Charters of 1200
and 1203, and of the undisputed fact that the whole of Normandy, including all of the
Channel Islands, was held by the English King in his capacity as Duke of Normandy from
1066 until 1204, there appears to be a strong presumption in favour of this British view. If
the Ecrehos and Minquiers were never specifically mentioned in such enumerations, this
was probably due to their slight importance. Even some of the more important Islands,
such as Sark and Herm, were only occasionally mentioned by name in documents of that
period, though they were held by the English King just as were the 3 largest Islands. BUT
SUCH IS INSUFFICIENT FOR A DEFINITIVE CONCLUSION AS TO SOVEREIGNTY
SINCE THIS MUST ULTIMATELY DEPEND ON EVIDENCE DIRECTLY RELATING TO
POSSESSION OF THESE GROUPS.
FRANCE derives the original title it invokes from the fact that the Dukes of Normandy were
the vassals of the Kings of France, and that the Kings of England after 1066, in their
capacity as Dukes of Normandy, held the Duchy in fee of the French Kings. It is contended
that the Channel Islands became added to the fiefs of the Duke of Normandy when William
Longsword in 933 received the Islands in fee of the King of France, and that he, as well as
his successors, did homage to the French Kings for the whole of Normandy, including the
Islands. It also relies on a Judgment of April 1202, of the Court of France and contends
that King John of England was thereby condemned to forfeit all the lands which he held in
fee of the King of France, including the whole of Normandy.
UK’S REBUTTAL. It contends that the feudal title of the French Kings in respect of
Normandy was only nominal. It denies that the Channel Islands were received by the Duke
of Normandy in fee of the King of France, and that William Longsword or any of his
successors ever did homage for the Islands. It contests the validity, and even the
existence, of the Judgment of 1202, and asserts that even if such a Judgment was validly
pronounced against the English King in his capacity as Duke of Normandy, it could not
have the alleged consequences.
THE COURT FOUND IT UNNECESARY TO SOLVE THESE HISTORICAL
CONTROVERSIES. Even if the Kings of France did have an original feudal title also in
respect of the Channel Islands, such a title must have lapsed as a consequence of the
events of the year 1204 and following years. Such an alleged original feudal title of the
Kings of France in respect of the Channel Islands could today produce no legal effect,
unless it had been replaced by another title valid according to the law of the time of
replacement. It is for France to establish that it was so replaced. The Court will later deal
with the evidence which that Government has produced with a view to establishing that its
alleged original title was replaced by effective possession of the islets in dispute.
JUDGMENT OF 1202, WHATEVER VIEW IS HELD AS TO ITS EXISTENCE, VALIDITY,
SCOPE AND CONSEQUENCES, WAS NOT EXECUTED IN RESPECT OF THE
CHANNEL ISLANDS, THE FRENCH KINGS HAVING FAILED TO OBTAIN
47
POSSESSION OF THESE ISLANDS EXCEPT FOR BRIEF PERIODS. Even if this feudal
Judgment, assuming it was pronounced, was intended to produce legal effects at that time,
it remained in any case inoperative WRT the Channel Islands. To revive its legal force to-
day by attributing legal effects to it after an interval of more than 7 centuries seems to lead
far beyond any reasonable application of legal considerations.
FRANCE ARGUES THAT THE DISMEMBERMENT OF THE DUCHY OF NORMANDY IN
1204 (when Continental Normandy was occupied by the King of France) HAS LEGAL
SIGNIFICANCE: if UK is unable to establish its claim to the Ecrehos and the Minquiers,
the title to these islets must be considered as having remained with France since 1204.
BUT since that time there has been a further development in the territorial position. Many
wars and peace settlements between the 2 States succeeded each other during the
following centuries. The Channel Islands, or some of them, were occupied temporarily by
French forces during some years immediately following the events in 1204, as well as for
brief periods in the next 2 centuries, and Continental Normandy was reconquered by the
English King and held by him for a long period in the fifteenth century. It is difficult to see
why the dismemberment in 1204 should have the legal consequences attributed to it by
France.
COURT. What is of decisive importance is not indirect presumptions deduced from events
in the Middle Ages, but the evidence which relates directly to the possession of the
Ecrehos and Minquiers groups.
OTHER CONCERNS: CONVENTION ON FISHERY on Aug. 2, 1839 between France and
UK, particularly on the oyster fishery between the Island of Jersey and the neighbouring
coast of France. It is common ground between the Parties that this Convention did not
settle the question of sovereignty over the Ecrehos and the Minquiers. France’s
contentions (see 4-6 of France’s Submissions) were based on the first 3 Articles of the
Convention, particularly on Article 3.
Art. I: an ad hoc line is acknowledged by the 2 Governments "as defining the limits
between which and the French shore the oyster fishery shall be reserved exclusively to
French subjects".
Art. 2: "oyster fishery within three miles of the Island of Jersey, calculated from lower water
mark, shall be reserved exclusively to British subjects".
Art. 3: "The oyster fishery outside of the limits within which that fishery is exclusively
reserved to French and British subjects respectively, as stipulated in the preceding articles,
shall be common to the subjects of both countries."
UK DENIES. France asserts and UK denies that the Ecrehos and Minquiers groups are
included within this agreed common fishery zone; UK basing itself on Art. 9 concerning
exclusive right of fishery for British subjects within 3 miles from low water mark "along the
whole extent of the coasts of the British Islands".
COURT: UNNECESSARY TO DETERMINE WHETHER THE WATERS OF THE
ECREHOS AND MINQUIERS GROUPS ARE INSIDE OR OUTSIDE THE COMMON
FISHERY ZONE ESTABLISHED BY ART. 3. Even if it be held that these groups lie within
this common fishery zone, the Court cannot admit that such an agreed common fishery
zone in these waters would involve a régime of common user of the land territory of the
islets and rocks, since the Articles relied on refer to fishery only and not to any kind of user
of land territory. Nor can the Court admit that such an agreed common fishery zone should
necessarily have the effect of precluding the Parties from relying on subsequent acts
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involving a manifestation of sovereignty in respect of the islets. The Parties could have
established such a common fishery zone, including the waters of the groups, even if these
groups had in 1839 been under the undisputed exclusive sovereignty of one of them ; and
they could equally have acquired or claimed exclusive sovereignty after 1839 and relied
upon subsequent acts involving the manifestation of sovereignty, notwithstanding such an
agreed common fishery zone, provided of course that the common fishing in this zone
would not in any way be impaired thereby.
The above-mentioned contention as to exclusion of acts subsequent to 1839 is also not
compatible with the attitude which France has taken since that time. It not only claimed
sovereignty over the Ecrehos in 1886 and over the Minquiers in 1888, and later, but it has,
to establish such a sovereignty, itself relied on measures taken subsequent to 1839, as
referred to in its communications to the Foreign Office, of August 1888, and July 1903, as
well as in the present proceedings.
SPECIAL AGREEMENT BARS USE OF CONVENTION OF 1839. Nor can the contention
that the Court should determine to which Party sovereignty belonged in 1839, be
considered as consistent with the Special Agreement of 1950, by which the Court is
requested to determine to which Party sovereignty belongs at present. The Court is unable
to accept the contentions as to the effects of the Convention of 1839 on the question of the
sovereignty.
CRITICAL DATES. The Parties have further discussed the question of the selection of a
"critical date" for allowing evidence.
UK: though the Parties have for a long time disagreed as to the sovereignty over the 2
groups, the dispute did not become "crystallized" before the conclusion of the Special
Agreement of Dec. 1950, thus, this date should be considered as the critical date, with the
result that all acts before that date must be taken into consideration by the Court.
FRANCE: contends that the date of the Convention of 1839 should be selected as the
critical date, and that all subsequent acts must be excluded from consideration.
COURT: DATE OF CONVENTION NOT TO BE USED; SUBSEQUENT ACTS
ADMISSIBLE. At the date of the Convention of 1839, no dispute as to the sovereignty over
the Ecrehos and Minquiers groups had yet arisen. The Parties had for a considerable time
been in disagreement WRT the exclusive right to fish oysters, but they did not link that
question to the question of sovereignty over the Ecrehos and the Minquiers. There is no
reason why the conclusion of that Convention should have any effect on the question of
allowing or ruling out evidence relating to sovereignty. A dispute as to sovereignty over the
groups did not arise before the years 1886 and 1888, when France first claimed
sovereignty over the Ecrehos and the Minquiers respectively. But in view of the special
circumstances of the present case, subsequent acts should also be considered, unless the
measure in question was taken with a view to improving the legal position of the Party
concerned. In many respects activity in regard to these groups had developed gradually
long before the dispute as to sovereignty arose, and it has since continued without
interruption and in a similar manner. There would be no justification for ruling out all events
which during this continued development occurred after the years 1886 and 1888
respectively.
UK’S OTHER ARGUMENTS:
48
1) It tried to show that the groups must be considered as dependencies of Jersey and has
referred to Article 38 of a Franco-British Fishery Convention of 1867, which was ratified but
not brought into operation, providing that: "The terms 'British Islands' and 'United
Kingdom', employed in this Convention, shall include the Islands of Jersey, Guernsey,
Alderney, Sark and Man, with their dependencies."
2) It has also invoked similar clauses in a Franco-British Submarine Telegraph Convention
of 1859 and in a British Sea Fisheries Act of 1843. These clauses indicate that there are
islands or islets which are dependencies of such Channel Islands as are enumerated;
but no evidence is produced showing that it was the intention of the contracting Parties to
include the Ecrehos and Minquiers groups within the terms "British Islands" or
dependencies" or, on the other hand, to exclude the groups from these terms.
COURT CONSIDERS 2 CLAIMS TO SOVEREIGNTY, BEGINS WITH UK’S EVIDENCE.
The Charter of 1200 of the English King, whereby he granted the fief of the Channel
Islands to Piers des Préaux, and the Charter of 1203, whereby the latter in turn granted the
Ecrehos to the Abbey of Val-Richer, show that the Ecrehos were treated by him as an
integral part of his fief. The grant of the Ecrehos was in frankalmoin.
FRANCE: contends that such a grant had the effect of severing the feudal link between
Piers des Préaux and the Abbey, so that the Ecrehos no longer formed a part of the fief of
the Channel Islands. Thus, the Ecrehos remained subject to the Duke of Normandy
through the intermediary of the Abbey of Val-Richer, which was situated on
the French mainland, and that, when the King of France succeeded to the rights of the
Duke after the occupation of ContinentaI Normandy in 1204, the Abbey "passed under his
protection, as did the Ecrehos, whose overlord he became".
CHARTER OF 1203 READ MORE CLOSELY. It provided the following [Translation from
Gallia Christiana, XI, col. 94, No. XXXII (Instrumenta)]: ".... Know ye all that I, having
regard to the mercy of God, have granted and given and by my present charter have
confirmed to God and to the church of St. Mary of Val-Richer and to the monks there
serving God, for the salvation of the sou1 of John, illustrious king of England, who gave me
the islands, and for the salvation of the souls of myself and of my father and mother and of
all my ancestors, the island of Escrehou in entirety, for the building there of a church in
honour of God and of the blessed Mary, so that the divine mysteries be daily celebrated
there, to have and possess [it] and whatever in the same island they shall be able to
increase and build, freely and quietly, fully and honourably, in free pure and perpetual
alms. I have further granted to the aforesaid monks whatever by my men of Jersey, and of
Guernsey, and of Alderney, having regard to charity, shall be reasonably given to them,
saving my right."
EVIDENCE AGAINST FRANCE’S ARGUMENT:
• LAND HELD IN TENURE: NO SEVERANCE OF FEUDAL TIES. It appears clearly
from the Grand Coutumier de Normandie of the thirteenth century, chapters XXVIII
and XXXII (de Gruchy edition, 1881, pp. 90-91 and 98), that land held in frankalmoin
was a tenure, and that such a grant in frankalmoin to an ecclesiastical institution did
not have the effect of severing feudal ties. The text of the first part of Chapter XXXII is
as follows: [Translation] "They are said to hold by alms who hold lands given in pure
alms to God and his servants, wherein the donors retain nothing to themselves or
their heirs save only the patronal domain; and they hold from them by alms only, as
from patrons. Who can make alms out of any land, save only that which is his own
therein. Wherefore note that neither the duke, nor barons, nor anyone, ought to
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sustain any detriment if their men make alms of the lands which they hold of them;
and their lords shall exercise their justice and levy their rights in the lands so put in
alms, notwithstanding.”
• TEXT: GRANTOR RETAINED THE "PATRONAL DOMAIN" (DOMINIUM
PATRONALE). According to this ancient Norman custom, Piers des Préaux did not by
his grant drop out of the feudal chain as far as the Ecrehos was concerned. He
continued to hold the Ecrehos as a part of his fief of the Channel Islands, with the
Abbot of Val-Richer as his vassal and the King of England as his overlord, and the
King continued to exercise his justice and levy his rights in the land so put in alms. By
granting the Ecrehos in frankalmoin to the Abbey, Piers des Préaux did not, and could
not, alienate the island from the fief of the Channel Islands; it remained a part of that
fief.
FRANCE CONTESTS THIS VIEW on the ground that Piers des Préaux had not in the
Charter reserved any feudal service and that he therefore had not created a feudal tenure.
It seems that no such condition for the creation of a "teneure par ornosne", or frankalmoin,
was required by the ancient Norman custom, as described in the Coutumier.
COURT: NO CONDITION. But even assuming that a condition or reservation was required,
the grant to the Abbey did contain such a condition or reservation. As is seen from the text
of the Charter, the Abbey was to build a church in the Ecrehos "so that the divine mysteries
be daily celebrated there", and when the grant was said to be given "for the salvation of the
soul of John, illustrious king of England .... and for the salvation of the souls of myself and
of my father and mother and al1 my ancestors", this could, in view of the custom at that
time, only mean that a service of prayers was reserved in the Charter.
• QUO WARRANTO PROCEEDINGS. That this must also have been the view of the
Abbot himself and of his successors is seen from the records of certain Quo Warranto
proceedings held in Jersey in 1309 before the King's itinerant Justices. The Assize
Rolls show that a chapel had in fact been built in the Ecrehos, and that the Prior of
that chapel, appearing before the Justices, gave evidence that he and his fellow
monk, dwelling in the chapel throughout the whole year, "always celebrate for the lord
the King and his progenitors". These records show that the Prior himself as well as
the Justices called the grant a tefzz~ra(?).
• REVERSION TO ENGLISH KING. Shortly after his grant of 1203 Piers des Préaux
forfeited the fief of the Channel Islands, which thereupon reverted to the English King
and were administered by Wardens appointed by that King, except for certain periods
in the thirteenth and the beginning of the fourteenth century, when the Islands were
again granted in fee. Up to 1309, there is no indication that any change had occurred
as to the connection of the Ecrehos with the Channel Islands.
• QUO WARRANTO. The object of the Quo Warranto proceedings of 1309 mentioned
above was to enquire into the property and revenue of the English King. These
proceedings took the form of calling upon persons to justify their possession of
property. The Abbot of Val-Richer was summoned before the King's Justices to
answer regarding a mill and the advocatio of the Priory of the Ecrehos as well as a
rent. As the mill was situated in Jersey and the rent was payable there, the
proceedings in respect of these objects do not show anything with regard to the status
of the Ecrehos. But the question of the advocatio is in a different position. Such a right
of a patron to presentation to an ecclesiastical office was, according to an ancient
49
Norman custom, considered and treated as a jus in rem, inherent in the soil and
inseparable from the territory of the fief to which it was attached. (Grand Coutzwnier
de Normandie, Chapter CXI, de Gruchy edition, p. 259) When the Abbot of Val-Richer
was summoned before the King's Justices in Jersey to answer for this advocatio, it
must have been on the ground that the Ecrehos, to which the advocatio was attached,
was within the domain of the English King. And when the Prior of the Ecrelios
appeared as the Abbot's attorney in answer to the summons, jurisdiction in respect of
the Ecrehos was exercised by the Justices, who decided that "it is permitted to the
said Prior to hold the premissa as he holds them as long as it shall please the lord the
King". The Prior of the Ecrehos became involved in 3 other legal proceedings in
Jersey in the years 1323 and 1331. As they concerned events which occurred in
Jersey, they do not throw any light upon the status of the Ecrehos, but they show that
there was a close relationship between the Ecrehos and Jersey at that time.
• LETTERS OF PROTECTION. Further evidence of this relationship is given by Letters
of Protection, which, on Aug. 18th, 1337, shortly before the outbreak of the Hundred
Years War between England and France, then granted by the English King to 10
Priors of Jersey and Guernsey, including the Prior of the Ecrehos, who was described
as "Prior de Acrehowe de Insula de Iereseye". Such protection was apparently
accorded to him because the Priory was under the authority of the English King.
• In his CHARTER OF 1203 Piers des Préaux "granted to the aforesaid monks
whatever by my men of Jersey and of Guernsey and of Alderney, having regard to
charity, shall be reasonably given to them, saving my right". That such gifts were in
fact given to the Priory of the Ecrehos is shown by subsequent documents, such as
an account of the Warden of the Channel Islands for 1328-1329, a list of rents in a
fifteenth century rental and in other
rentals of Jersey showing wheat-rents due by certain Jersey parishioners "by cause of
Escrehoo" in 1528 and some later years. It is explained that these wheat-rents, which
formerly were due to the Priory, had been appropriated by the English King as a result
of confiscatory measures taken against "alien priories".
BOTH TRIED TO USE THIS WRT THE STATUS OF ECREHOS: FRANCE: The
confiscation of the Ecrehos rents can only be ascribed to the fact that the Priory was
regarded as foreign; it was the result of measures taken against "alien priories". UK: This
term meant priories established on English soil whose mother church was situated
on foreign territory.
COURT. It cannot find that the Parties have justified their respective contentions in this
regard. It appears that it was as a result of these confiscatorv measures that the Priory,
having lost its means of subsistence, some time later was abandoned and the chapel fell
into ruins. The close relationship between the Ecrehos and Jersey ceased and for a
considerable period thereafter the islets were only occasionally visited by Jerseymen for
the purpose of fishing and collecting seaweed.
NOT UK’S JURIDICTION. In 1706 fishermen from Jersey proceeding to the Ecrehos came
across a Frenchman there who had just fled from police prosecution in France, and at his
request they brought him to Jersey, where he was examined by the authorities. The UK
Government has relied on this examination, but it cannot be considered as an exercise of
jurisdiction in respect of the Ecrehos. It was a measure which would naturally have been
taken against any fugitive arriving in Jersey who was a national of another State.
SANITARY MEASURE. In 1754 plague broke out at Rouen and, as a sanitary measure,
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the States of Jersey issued an Act providing inter alia: "Qu'aucun Vaisseau ou Bateau
venant du Royaume de France ne sera souffert à entrer dans aucun Havre, ni mettre à
Terre Aucun Passagers ou Marchandises en aucun Endroit de cette Isle, pareille Deffence
etant faite à l'egard des Iles & Rochers de Chauzé, Marqués, & Icrehots, ou Rochers
adjacents."
BOTH INVOKED THIS ACT BUT TEXT IS AMBIGUOUS. It may signify a ban on traffic
from France to these islands and rocks, thereby involving a manifestation of authority in
respect of them. But the text may also mean that traffic to Jersey from France, as well as
from these islands and rocks is forbidden, as in a previous prohibition in 1720. The
prohibition could then be explained by the fact that it was impossible to create a sanitary
barrier round the Minquiers and the Ecrehos, and that therefore it became necessary to
defend Jersey against the dangers of infection spreading from these islets. But even if this
were the case, it would not follow that these islets were regarded as foreign territory.
HISTORICAL EVIDENCE. From the beginning of the nineteenth century the connection
between the Ecrehos & Jersey became closer again because of the growing importance of
the oyster fishery in the waters surrounding the islets, & Jersey authorities took, during the
subsequent period, action in many ways in respect of the islets. Of the manifold facts
invoked by UK, the Court attaches, in particular, probative value to the acts which relate to
the exercise of jurisdiction & local administration & to legislation (Reviewer: clincher for
UK):
• JURISDICTION OF COURTS. In 1826 criminal proceedings were instituted before the
Royal Court of Jersey against a Jerseyman for having shot at a person on the
Ecrehos. Similar judicial proceedings in Jersey in respect of criminal offences
committed on the Ecrehos took place in 1881, 1883, 1891, 1913 and 1921. The Court
is satisfied that the Courts of Jersey, in such criminal cases, have no jurisdiction in the
matter of a criminal offence committed outside the Bailiwick of Jersey, even though
the offence be committed by a British subject resident in Jersey, and that Jersey
authorities took action in these cases because the Ecrehos were considered to be
within the Bailiwick. Jersey courts have exercised criminal jurisdiction in respect of the
Ecrehos during nearly 100 years.
• INQUESTS. The law of Jersey has for centuries required the holding of an inquest on
corpses found within the Bailiwick where it was not clear that death was due to natural
causes. Such inquests on corpses found at the Ecrehos were held in 1859, 1917 and
1948 and are additional evidence of the exercise of jurisdiction in respect of these
islets.
• TAXATION. Since about 1820, and probably earlier, persons from Jersey have
erected and maintained some habitable houses or huts on the islets of the Ecrehos,
where they have stayed during the fishing season. Some of these houses or huts
have, for the purpose of parochial rates, been included in the records of the Parish of
St. Martin in Jersey, which have been kept since 1889, and they have been assessed
for the levying of local taxes. Rating schedules for 1889 and 1950 were produced in
evidence.
• LICENSING. A register of fishing boats for the port of Jersey shows that the fishing
boat belonging to a Jersey fisherman, who lived permanently on an islet of the
Ecrehos for over 40 years, was entered in that register in 1872, the port or place of
the boat being indicated as "Ecrehos Rocks", and that the licence of that boat was
cancelled in 1882. According to a letter of June, 1876, from the Principal Customs
50
Officer of Jersey, an official of that Island visited occasionally the Ecrehos for the
purpose of endorsing the licence of that boat.
• REAL ESTATE CONTRACTS. Contracts of sale relating to real property on the
Ecrehos islets have been passed before the competent authorities of Jersey and
registered in the public registry of deeds of that island. Examples of such registration
of contracts are produced for 1863, 1881, 1884 and some later years.
• CENSUS. In 1884, a custom-house was established in the Ecrehos by Jersey
customs authorities. The islets have been included by Jersey authorities within the
scope of their census enumerations, and in 1901 an official enumerator visited the
islets for the purpose of taking the census.
These facts show that Jersey authorities have in several ways exercised ORDINARY
LOCAL ADMINISTRATION in respect of the Ecrehos during a long period of time.
By a BRITISH TREASURY WARRANT OF 1375, constituting Jersey as a Port of the
Channel Islands, the "Ecrehou Rocks" were included within the limits of that port. This
legislative Act was a clear manifestation of British sovereignty over the Ecrehos at a time
when a dispute as to such sovereignty had not yet arisen. France protested in 1376 on the
ground that this Act derogated from the Fishery Convention of 1839, but this protest could
not deprive the Act of its character as a manifestation of sovereignty.
VISITS. Jersey authorities had made periodical official visits to the Ecrehos since 1885,
and that they have carried out various works and constructions there, such as a slipway in
1895, a signal post in 1910 and the placing of a mooring buoy in 1939.
FRANCE in addition to the alleged original feudal title considered above, has invoked the
fact that the States of Jersey in 1646 prohibited the inhabitants of Jersey from fishing
without special permission at the Ecrehos and the Chausey Islands, and that they
restricted visits to the Ecrehos in 1692 because of the war between England and France.
This shows, it is contended, that the Ecrehos were not considered as British territory.
COURT: NOT A NECESSARY OR NATURAL INFERENCE TO BE DRAWN FROM THE
FACTS. In the course of the diplomatic exchanges between the 2 Governments in the
beginning of the nineteenth century concerning fisheries off the coast of Cotentin, the
French ambassador in London addressed to the Foreign Office a Note, dated June 1820,
attaching 2 charts sent from the French Ministry of Marine to the French Ministry of Foreign
Affairs purporting to delimit the areas within which the fishermen of each country were
entitled to exclusive rights of fishery. In these charts a blue line marking territorial waters
was drawn dong the coast of the French mainland and round the Chausey Islands, which
were indicated as French, and a red line marking territorial waters was drawn
round Jersey, Alderney, Sark and the Minquiers, which were indicated as British. No line of
territorial waters was drawn round the Ecrehos group, one part of which was included in
the red line for Jersey and consequently marked as belonging to Great Britain and the
other part apparently treated as res nullius. When France in 1876 protested against the
British Treasury Warrant of 1875 and challenged British sovereignty over the Ecrehos, it
did not itself claim sovereignty, but continued to treat the Ecrehos as res nullius. In a letter
of March 26, 1884, from the French Ministry of Foreign Affairs to the French Minister
of Marine, it was stated that the British Government had not ceased to claim the Ecrehos
as a dependency to the Channel Islands, and it was suggested that French fishermen
should be prohibited access to the Ecrehos. It does not appear that any such measure was
taken, and subsequently, in a Note to the Foreign Office of Dec. 15th, 1886, France
claimed for the first time sovereignty over the Ecrehos "à la lumière des nouvelles
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données historiques et géologiques".
RULING: the ECREHOS GROUP in the beginning of the thirteenth century was
considered and treated as an integral part of the fief of the Channel Islands which were
held by the English King, and that the group continued to be under the dominion of that
King, who in the beginning of the fourteenth century exercised jurisdiction in respect
thereof. The Court also finds that British authorities during the greater part of the
nineteenth century and in the twentieth century have exercised State functions in respect
of the group. But France has not produced evidence showing that it has any valid title to
the group. It must be concluded that the sovereignty over the Ecrehos belongs to the UK.
COURT CONSIDERS CLAIMS TO SOVEREIGNTY OVER THE MINQUIERS, BEGINS
WITH UK’S EVIDENCE:
• The Rolls of the Manorial Court of the fief of Noirmont in Jersey contain 3 entries for
the years 1615, 1616 and 1617 concerning certain objects shipwrecked at the
Minquiers. The first 2 entries state that certain wreckage of a ship, believed to belong
to Honfleur, and lost at the Minquiers, was carried off from the islets by certain named
persons. The Court, which was held "on this fief", ordered the Serjeant to take charge
of the objects until other provision should have been made. The 3rd entry states that a
named person is "in default towards the Officers of the Seigneur for having taken
away an Anchor from the Minquiers and their neighbourhood and carried it to St.
Malo". The Court, which again was held "on
the fief", ordered that certain persons "keep their day at the next Court, or answer in
the superior Court if the circumstances shall require". UK contends and France
contests that these entries show that the Minquiers were a part of the fief of Noirmont.
• UK further invoked a Judgment of 1692 of the Royal Court of Jersey in litigation
between the English King and the guardian of the Seigneur of the fief of Samarès in
Jersey, concerning goods shipwrecked on the rocks of the Minquiers. The Court
decided that the goods should be shared between the 2 litigants and the salvors, each
taking a third, and it based this decision on "certain Letters" of the King's Privy Council
of 1620 and on an Act of 1632. As these documents are not produced, it cannot be
seen on what ground the Judgment was based. It is therefore not possible to draw
from this Judgment any conclusion supporting the British claim to the Minquiers.
• In 1779 the Jersey Piers and Harbours Cornmittee made an order for subsidizing the
owner of a boat for the use of his boat and for services rendered by him and his crew
"who have been at the Minquiers for the purpose of helping and saving persons.
FRANCE: refers to the Grand Coutzmier de Normandie, which deals with wreck in Ch.
XVII (de Gruchy edition, pp. 48-50) and contains detailed statements as to custody and
ownership. The wreck should be guarded and inspected by the Bailiff or his Officers, then it
should be given into custody of the lord of the fief or of "preudes hommes" and kept during
a year and a day in case the owner should come forward and claim it. The Coutumier
enumerates the things to which the Duke of Normandy was entitled and continues: "All
things other than these shall enure to the lord in whose fief the wreck is found."
COURT: it was on the basis of this ancient Norman custom that the Planorial Court of
Noirmont dealt with these 2 cases of wreck found at the Minquiers, on behalf of "the lord in
whose fief the wreck is found", the lord of Noirmont. In the first case it ordered the Serjeant
to take charge of the wreck, in the second case it declared a certain person to be "in
default towards the Officers of the Seigneur" for having taken away the wreck, and it
ordered some other persons to "keep their day at the next Court". As the jurisdiction of a
51
local Court such as that of a Manor must have been strictly territorial and, in cases
concerning wreck, limited to wreck found within the territory of its jurisdiction, it is difficult to
explain its dealing with the 2 cases unless the Minquiers were considered to be a part of
the fief of Noirmont.
RULING: UK’s evidence shows that the Minquiers in the beginning of the seventeenth
century were treated as a part of the fief of Noirmont in Jersey, and that British authorities
during a considerable part of the nineteenth century and in the twentieth century have
exercised State functions in respect of this group.
FRANCE ALSO CONTENTED THAT THE MINQUIERS HAVE BEEN A DEPENDENCY
OF THE CHAUSEY ISLANDS, WHICH HAVE ALWAYS BELONGED TO FRANCE, and
which in 1022 were granted by the Duke of Normandy to the Abbey of Mont-Saint-Michel. It
has referred to a Papal Bull of 1179 which confirmed this Abbey in al1 its possessions,
among which the Bull mentioned "totanz i~zsztlam de cause cz~nz pertine~ztiis suis". BUT
from this general clause about appurtenances to the Chausey Islands no deduction can be
made WRT the status of the Minquiers.
UK: THE CHAUSEY ISLANDS BELONGED TO ENGLAND UNTIL ABOUT 1764. But the
Court does not consider it necessary to determine at what time the Chausey Islands
became a French possession. In 1784 a French national submitted to the French Minister
of Marine an application for a concession in respect of the Minquiers, an application which
was not granted. The correspondence between the French authorities, relating to this
matter, does not disclose anything which could support the present French claim to
sovereignty, but it reveals certain fears of creating difficulties with the English Crown. In
1831 a French national made a hydrographical survey of the Minquiers group; but a British
Naval officer, on instructions from the British Admiralty, surveyed both the Minquiers and
the Ecrehos as early as 1813-1815.
FRANCE’S EVIDENCE.
• LIGHTING & BOUYING. Since 1861 it has assumed the sole charge of the lighting
and buoying of the Minquiers for more than 75 years, without objection from UK. The
buoys were placed outside the reefs of the group and purported to aid navigation to
and from French ports and protect shipping against the dangerous reefs of the
Minquiers.
• SURVEY. In 1888 a French mission, appointed to make a hydrographic survey of the
islets, erected provisional beacons on several of them to facilitate the survey.
• VISITS. French Prime Minister and the Air Minister in 1938 travelled to the Minquiers
in order to inspect the buoying.
• RESIDENTS. Frenchman in 1939 erected a house on one of the islets with a subsidy
from the Mayor of Granville.
• PROJECTS. Recent hydro-electric projects for the installation of tidal power plants in
the Bay of Mont-Saint-Michel and the region of the Minquiers islets.
COURT: FRANCE’S ARGUMENTS INSUFFICIENT TO SHOW FRANCE’S VALID TITILE
TO THE MINQUIERS. As to the above-mentioned acts from the nineteenth and twentieth
centuries in particular, including the buoying outside the reefs of the group, such acts can
hardly be considered as sufficient evidence of the intention of that Government to act as
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sovereign over the islets; nor are those acts of such a character that they can be
considered as involving a manifestation of State authority in respect of the islets.
COURT DEBUNKS FRANCE’S EVIDENCE.
• ADMISSION. A perusal of the diplomatic exchanges between the 2 Governments from
the beginning of the nineteenth century confirms this view. By his Note of June 1820,
to the Foreign Office, the French Ambassador in London transmitted a letter from the
French Minister of Marine of Sept. 14th, 1819, to the French Foreign Minister, in which
the Minquiers were stated to be "possédés par L'Angleterre", and in one of the charts
enclosed the Minquiers group was indicated as being British. It is argued by France
that this admission cannot be invoked against it, as it was made in the course of
negotiations which did not result in agreement. But it was not a proposal or a
concession made during negotiations, but a statement of facts transmitted to the
Foreign Office by the French Ambassador, who did not express any reservation in
respect thereof. This statement must be considered as evidence of the French official
view at that time.
• NO RESERVATION AS TO DEPENDENCY. When the British Embassy in Paris, in a
Note of Nov. 1869, to the French Foreign Minister, had complained about alleged theft
by French fishermen at the Minquiers and referred to this group as "this dependency
of the Channel Islands", the French Minister, in his reply of March 1870, refuted the
accusation against French fishermen, but made no reservation in respect of the
statement that the Minquiers group was a dependency of the Channel Islands. It was
not until 1888, that France, in a Note of Aug. 27th for the first time made a claim to
sovereignty over that group, a claim which appears to have been provoked by a visit
to the islets of the Jersey Piers and Harbours Committee.
• UK’S PROTEST TO HOUSE-BUILDING. In 1929 a French national, M. Leroux,
commenced the construction of a house on one of the islets of the Minquiers in virtue
of a lease issued by French Government officials. In a Note of July 26th, 1929, UK
protested and said that they "have no doubt that the French Government, in order to
obviate all risk of the occurrence of some untoward incident on the spot, will restrain
RIonsieur Leroux from proceeding further with his building operations". No reply
appears to have been given by the France; but the construction of the house was
stopped. That it was stopped at the instigation of that Government appears to follow
from a Note of Oct. 5th, 1937, from the French Ambassador to the Foreign Office,
where it was stated that "the French Government, moreover, in spite of the slight
distance between the Minquiers islands and the Chausey Islands, did not hesitate, a
few years ago, to prevent the acquisition of land on the Minquiers by French
nationals".
RULING. In such circumstances, and having regard to the view expressed above WRT the
evidence produced by UK, the Court is of opinion that the sovereignty over the Minquiers
belongs to the UK.
For these reasons, unanimously, finds that the sovereignty over the islets and rocks of the
Ecrehos and Minquiers groups, in so far as these islets and rocks are capable of
appropriation, belongs to the United Kingdom.
Judge ALTAREZ declares that he concurs in the conclusions reached in the Judgment of
the Court but for different reasons. In his opinion, it is clear from the written proceedings
and the oral arguments that the Parties have attributed excessive importance to historic
52
titles and that they have not sufficiently taken into account the state of international law or
its present tendencies in regard to territorial sovereignty. He wishes to emphasize that the
task of the Court is to resolve international disputes by applying, not the traditional or
classical international law, but that which exists at the present day and which is in
conformity with the new conditions of international life, and to develop this law in a
progressive spirit.
Anglo-Norwegian Fisheries Case: United Kingdom of Great Britain and Northern
Ireland v. Kingdom of Norway (18 Dec. 1951)
Validity in international law of Royal Norwegian Decree of 1935 delimiting Norwegian
fisheries zone - fisheries zone-territorial sea - Special characteristics of Norwegian coast;
"skjærgaard" - Base-line for measuring breadth of territorial sea; low-water mark - Outer
coast line of "skjærgaard" - Internal waters: territorial waters - Tracé parallele method;
envelopes of arcs of circles method, straight base-lines method - Length of straight base-
lines; l0-mile rule for bays; historic waters-Straits; Indreleia - International interest in
delimitation of maritime areas - General criteria for such delimitation; general direction of
the coast; relationship between sea areas and land formations - Norwegian system of
delimitation regarded as adaptation of general international law - Consistency in
application of this system - Absence of opposition or reservations by foreign States -
Notoriety - Conformity of base-lines adopted by 1935 Decree with principles of
international law applicable to delimitation of the territorial sea.
HISTORICAL BACKGROUND. At the start of the 17th century, British fishermen refrained
from fishing in Norwegian coastal waters due to complaints from the King of Denmark and
Norway. This lasted from 1616-1618 to 1906. In 1906, a few British fishing vessels
appeared off the coasts of Eastern Finnmark, and starting from 1908 their numbers
increased. The locals were perturbed, and the Norwegian Government took measures to
specify the limits/areas within which fishing by foreigners were prohibited.
SEIZURES OF VESSELS. In 1911, a British trawler which violated the Norwegian
measures was seized and condemned. The two Governments started negotiations, but
these were interrupted by the war in 1914. From 1922 onwards incidents recurred, and the
number of warnings and arrests increased. Further negotiations were initiated in 1924.
THE ROYAL DECREE. On July 27, 1933, the UK Government sent a memorandum to the
Norwegian Government complaining that in delimiting the territorial sea the Norwegian
authorities had used unjustifiable base-lines. On July 12th, 1935, a Norwegian Royal
Decree was enacted delimiting the Norwegian fisheries zone north of 66o 28.8' North
latitude. Pending the results of their talks the Norwegian Government made it known that
the Norwegian fishery patrol vessels would deal leniently with foreign vessels fishing a
certain distance within the fishing limits established by this decree.
This Decree was based on several considerations, including "well-established national
titles of right", "the geographical conditions prevailing on the Norwegian coasts", "the
safeguard of the vital interests of the inhabitants of the northern-most parts of the country".
It also relied on the Royal Decrees of February 22nd, 1812, October 16th, 1869, January
5th, 1881, and September 9th, 1889.
The Decree provided that "lines of delimitation towards the high sea of the Norwegian
fisheries zone as regards that part of Norway which is situated northward of 66o 28.8'
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North latitude . . . shall run parallel with straight base-lines drawn between fixed points on
the mainland, on islands or rocks, starting from the final point of the boundary line of the
Realm in the easternmost part of the Varangerfjord and going as far as Traena in the
County of Nordland". And while this refers to the Norwegian fisheries zone, there is no
doubt that the delimited zone was the sea area which Norway considers to be her territorial
sea.
IN 1948, SINCE NO AGREEMENT was reached, Norway abandoned its lenient
enforcement of the 1935 Decree. Incidents increased, and a considerable number of
British trawlers were arrested and condemned. Thus on Sept. 28, 1949, the UK instituted
proceedings against Norway regarding the validity, under international law, of the lines of
delimitation of the Norwegian fisheries zone laid down by the Royal Decree of July 12,
1935 (as amended by a Decree of Dec. 10, 1937) for that part north of 66o 28.8' (or 66o
28' 48') N. latitude.
THE UK APPLICATION asked the Court:
"(a) to declare the principles of international law to be applied in defining the base-lines, by
reference to which the Norwegian Government is entitled to delimit a fisheries zone,
extending to seaward 4 sea miles from those lines and exclusively reserved for its own
nationals, and to define the said base-lines in so far it appears necessary, in the light of the
arguments of the Parties, in order to avoid further legal differences between them;
(b) to award damages to the Government of the United Kingdom in respect of all
interferences by the Norwegian authorities with British fishing vessels outside the zone
which, in accordance with the Court's decision under (a), the Norwegian Government is
entitled to reserve for its nationals."
SUBMISSIONS/CONCLUSIONS OF THE UK. The United Kingdom submits that the Court
should decide that the maritime limits which Norway is entitled to enforce as against the
United Kingdom should be drawn in accordance with tile following principles:
(1) That Norway is entitled to a belt of territorial waters of fixed breadth-the breadth cannot,
as a maximum, exceed 4 sea miles.
(2) That, in consequence, the outer limit of Norway's territorial waters must never be more
than 4 sea miles from some point on the base-line.
(3) That, subject to Nos. (4), (9) and (10) below, the base-line must be low-water mark on
permanently dry land (which is part of Norwegian territory) or the proper closing line (see
No. (7) below) of Norwegian internal waters.
(4) That, where there is a low-tide elevation situated within 4 sea miles of permanently dry
land, or of the proper closing line of Norwegian internal waters, the outer limit of Norwegian
territorial waters may be 4 sea miles from the outer edge (at low tide) of this low-tide
elevation. In no other case may a low-tide elevation be taken into account.
(5) That Norway is entitled to claim as Norwegian internal waters, on historic grounds, all
fjords and sunds which fall within the conception of a bay as defined in international law
(see No. (6) below), whether the proper closing line of the indentation is more or less than
10 sea miles long.
(6) That the definition of a bay in international law is a well-marked indentation, whose
penetration inland is in such proportion to the width of its mouth as to constitute the
indentation more than a mere curvature of the coast.
(7) That, where an area of water is a bay, the principle which determines where, the
closing line should be drawn, is that the closing line should be drawn between the natural
geographical entrance points where the indentation ceases to have the configuration of a
bay.
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(8) That a legal strait is any geographical strait which connects two portions of the high
seas.
(9) (a) That Norway is entitled to claim as Norwegian territorial waters, on historic grounds,
all the waters of the fjords and sunds which have the character of legal straits.
(b) Where the maritime belts drawn from each shore overlap at each end of the strait, the
limit of territorial waters is formed by the outer rims of these two maritime belts. Where,
however, the maritime belts so drawn do not overlap, the limit follows the outer rims of
each of these two maritime belts, until they intersect with the straight line, joining the
natural entrance points of the strait, after which intersection the limit follows that straight
line.
(10). That, in the case of the Vestfjord, the outer limit of Norwegian territorial waters, at the
south-westerly end of the fjord, is the pecked green line shown on Charts Nos. 8 and 9 of
Annex 35 of the Reply.
(11) That Norway, by reason of her historic title to fjords and sunds (see Nos. (5) and (9)
(a) above), is entitled to claim, either as internal or as territorial waters, the areas of water
lying between the island fringe and the mainland of Norway. In order to determine what
areas must be deemed to lie between the island fringe and the mainland, and whether
these areas are internal or territorial waters, the principles of Nos. (6), (7), (8) and (9) (b)
must be applied to indentations in the island fringe and to indentations between the island
fringe and the mainland-those areas which lie in indentations having the character of bays,
and within the proper closing lines thereof, being deemed to be internal waters; and those
areas which lie in indentations having the character of legal straits, and within the proper
limits thereof, being deemed to be territorial waters.
(12) That Norway is not entitled, as against the United Kingdom, to enforce any claims to
waters not covered by the preceding principles. As between Norway and the United
Kingdom, waters off the coast of Norway north of parallel 66o 28.8' N which are not
Norwegian by virtue of the above-mentioned principles, are high seas.
(13) That the Norwegian Royal Decree of 12th July, 1935, is not enforceable against the
United Kingdom to the extent that it claims as Norwegian waters (internal or territorial
waters) areas of water not covered by Nos. (1)-(11).
(14) That Norway is under an international obligation to pay to the United Kingdom
compensation is respect of all the arrests since 16th September, 1948, of British fishing
vessels in waters which are high seas by virtue of the application principles.
NORWAY’S SUBMISSIONS. Having regard to the fact that the Norwegian Royal Decree
Of July 12th, 1935, is not inconsistent with the rules of international law binding upon
Norway, and having regard to the fact that Norway possesses, in any event, an historic title
to all the waters included within the limits laid down by that decree.May it please the Court,
in one single judgment, rejecting all submissions to the contrary, to adjudge and declare
that the delimitation of the fisheries zone fixed by the Norwegian Royal Decree of July
12th, 1935, is not contrary to international law."
MAIN ISSUES: WON the lines prescribed by the Royal Decree of 1935 as the base-lines
for the delimitation of the fisheries zone have been drawn in accordance with the
applicable rules of international law, and WON the method employed by the Decree is
contrary to international law.
HELD: Neither the method employed for the delimitation by the Decree nor the lines fixed
by the Decree are contrary to international law.
CLAIMS OF THE PARTIES. The UK’s claim is founded on what it regards as the general
international law applicable to the delimitation of the fisheries zone. Norway doesn’t deny
that there exists rules of international law to which delimitation must conform. However, it
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believes that UK’s propositions (nos. 3-11 of the Submissions) don’t possess the character
attributed to them by the UK. And Norway relies on its own system of delimitation which it
asserts to conform with the requirements of international law.
THE DISPUTED COASTAL ZONE is of considerable length. It lies north of latitude 66o
28.8' N (north of the Arctic Circle) and it includes the coast of the Norwegian mainland and
all the islands, islets, rocks and reefs, known by the name of the "skjærgaard" (literally,
rock rampart), together with all Norwegian internal and territorial waters. The coast of the
mainland is over 1500 kilometres in length and has a very distinctive configuration. Very
broken along its whole length, it constantly opens out into indentations often penetrating for
great distances inland. To the west, the land configuration stretches out into the sea: the
large and small islands, mountainous in character, the islets, rocks and reefs, some always
above water, others emerging only at low tide, are in truth but an extension of the
Norwegian mainland. The number of insular formations, large and small, which make up
the "skjærgaard", is estimated to be 120,000. From the southern end of the disputed area
to the North Cape, the "skjærgaard" lies along the whole of the coast of the mainland; east
of the North Cape, the "skjærgaard" ends, but the coast line continues to be broken by
large and deeply indented fjords. Within the "skjærgaard", almost every island has its large
and its small bays; countless arms of the sea, straits, channels and mere waterways serve
as a means of communication for the local population which inhabits the islands as it does
the mainland. The coast of the mainland does not constitute a clear dividing line between
land and sea. What really constitutes the Norwegian coast line is the outer line of the
"skjærgaard".
The whole of this region is mountainous. Along the coast are situated comparatively
shallow banks, veritable under-water terraces which constitute fishing grounds where fish
are particularly abundant; these grounds were known to Norwegian fishermen and
exploited by them from time immemorial. Since these banks lay within the range of vision,
the most desirable fishing grounds were always located and identified by means of the
method of alignments at points where two lines drawn between points selected on the
coast or on islands intersected. In these barren regions the inhabitants of the coastal zone
derive their livelihood essentially from fishing.
ISSUE: WON Norway, in fixing the base-lines for the delimitation of the Norwegian
fisheries zone, violated international law.
HELD: NO.
SUBISSUE: WRT the 4-mile breadth of the territorial sea, from what base-line is this
breadth to be reckoned?
HELD: Given the geographic realities of the disputed area, the relevant line is that of the
skjaergaard.
THE UK CONTENDS THAT the base-line must be low-water mark on permanently dry
land which is a part of Norwegian territory, or the proper closing line of Norwegian internal
waters.
GENERALLY ADOPTED. For the purpose of measuring the breadth of the territorial sea, it
is the low-water mark as opposed to the high-water mark, or the mean between the two
tides, which has generally been adopted in the practice of States. This criterion is the most
favourable to the coastal State and clearly shows the character of territorial waters as
appurtenant to the land territory. The Parties agree as to this criterion, but that they differ
as to its application.
54
MAINLAND V. SKJAERGAARD. The ICJ must decide whether the relevant low-water
mark is that of the mainland or of the "skjærgaard". Since the mainland is bordered in its
western sector by the "skjærgaard", which constitutes a whole with the mainland, it is the
outer line of the "skjærgaard" which must be taken into account in delimiting the belt of
Norwegian territorial waters. This solution is dictated by geographic realities.
SUBISSUE: Which method (in determining baselines) should be followed?
HELD: The method of straight baselines.
TRACÉ PARALLELE. The simplest method is the tracé parallele, which consists of
drawing the outer limit of the belt of territorial waters by following the coast in all its
sinuosities. This method may be applied without difficulty to an ordinary coast, which is not
too broken. Where a coast is deeply indented and cut into (like the Eastern Finnmark) or
where it is bordered by an archipelago (like the "skjærgaard"), the base-line becomes
independent of the low-water mark, and can only be determined by means of a geometric
construction. In such circumstances the line of the low-water mark can no longer be put
forward as a rule requiring the coast line to be followed in all its sinuosities; nor can one
speak of exceptions when contemplating so rugged a coast in detail. Such a coast, viewed
as a whole, calls for the application of a different method. It is true that the experts of the
Second Sub-Committee of the Second Committee of the 1930 Conference for the
codification of international law formulated the low-water mark rule somewhat strictly
("following all the sinuosities of the coast"). But they were at the same time obliged to
admit many exceptions relating to bays, islands near the coast, groups of islands. In this
case this method, which was invoked against Norway in the Memorial and later
abandoned, is not relevant.
THE COURBE TANGENTE. The UK considers the courbe tangente method (“envelopes of
arcs of circles”) to be the correct one. The arcs of circles method, which is constantly used
for determining the position of a point or object at sea, is a new technique in so far as it is a
method for delimiting the territorial sea. This technique was proposed by the US delegation
at the 1930 Conference for the codification of international law. Its purpose is to secure the
application of the principle that the belt of territorial waters must follow the line of the coast.
But this method is not obligatory by law.
STRAIGHT BASE-LINES METHOD. The principle that the belt of territorial waters must
follow the general direction of the coast makes it possible to fix certain criteria valid for any
delimitation of the territorial sea. In order to apply this principle, several States have
deemed it necessary to follow the straight base-lines method and that they have not
encountered objections from other States. This method consists of selecting appropriate
points on the low-water mark and drawing straight lines between them. This has been
done, not only in the case of well-defined bays, but also in cases of minor curvatures of the
coast line where it was solely a question of giving a simpler form to the belt of territorial
waters.
WRT UK’S ARGUMENT THAT NORWAY MAY DRAW STRAIGHT LINES ONLY
ACROSS BAYS. The Court is unable to share this view. If the belt of territorial waters must
follow the outer line of the skjærgaard", and if the method of straight baselines must be
admitted in certain cases, there is no valid reason to draw them only across bays and not
also to draw them between islands, islets and rocks, across the sea areas separating
them, even when such areas do not fall within the conception of a bay. It is sufficient that
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they should be situated between the island formations of the "skjærgaard", inter fauces
terrarum.
SUBISSUE: Must there be a maximum length for the straight lines, as argued by the UK
(Submission #5), except in the case of the closing line of internal waters to which the UK
concedes that Norway has a historic title?
HELD: The 10-mile rule hasn’t acquired the authority of a gen. rule of international law.
PRELIM. REMARKS WRT SUBMISSIONS 5, 9 AND 11 OF THE UK. By "historic waters"
are usually meant waters which are treated as internal waters but which would not have
that character were it not for the existence of an historic title. The UK refers to the notion of
historic titles both in respect of territorial waters and internal waters, considering such titles
as derogations from general international law. In its opinion Norway can justify the claim
that these waters are territorial or internal on the ground that she has exercised the
necessary jurisdiction over them for a long period without opposition from other States, a
kind of possessio longi temporis, with the result that her jurisdiction over these waters must
now be recognized although it constitutes a derogation from the rules in force. Norwegian
sovereignty over these waters would constitute an exception, historic titles justifying
situations which would otherwise be in conflict with international law.
UK: 10-MILE RULE, RULE OF INTERNATIONAL LAW. The UK concedes that Norway is
entitled to claim as internal waters all the waters of fjords and sunds which fall within the
conception of a bay as defined in international law whether the closing line of the
indentation is more or less than ten sea miles long. But the UK concedes this only based
on a historic title; thus it has not abandoned its contention that the ten-mile rule is to be
regarded as a rule of international law.
ICJ: NO. Though 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. Also the rule is inapplicable against Norway as she has always opposed
any attempt to apply it to the Norwegian coast.
UK: LENGTH LESS THAN 10. Regarding the length of the base-lines drawn across the
waters between the various formations of the "skjærgaard", the UK contends that the
length mustn’t exceed 10 miles. This is based on the analogy with the alleged 10-mile rule
for bays.
WRT THIS POINT, the practice of States doesn’t justify the formulation of any general rule
of law. The attempts that have been made to subject groups of islands or coastal
archipelagos to conditions analogous to the limitations concerning bays have not got
beyond the stage of proposals. Furthermore, apart from any question of limiting the lines to
ten miles, it may be that several lines can be envisaged. In such cases the coastal State
would seem to be in the best position to appraise the local conditions dictating the
selection. Thus, in the Decree, Norway didn’t apply an exceptional system but merely
applied general international law to a specific case.
THEREFORE NORWAY, IN FIXING THE BASE-LINES, DIDN’T VIOLATE
INTERNATIONAL LAW. But, despite the absence of rules with the technically precise
character alleged by the UK, the Norwegian delimitation is still subject to certain principles
which make it possible to judge the delimitation’s validity under international law. The
55
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.
PRINCIPLES. Certain basic considerations inherent in the nature of the territorial sea bring
to light certain criteria which, though not entirely precise, can provide courts with an
adequate basis for their decisions, which can be adapted to the diverse facts in question.
Among these some reference must be made to the close dependence of the territorial sea
upon the land domain. It is the land which confers upon the coastal State a right to the
waters off its coasts. It follows that while such a State must be allowed the latitude
necessary in order to be able to adapt its delimitation to practical needs and local
requirements, the drawing of base-lines must not depart to any appreciable extent from the
general direction of the coast. Another fundamental consideration is the more or less close
relationship existing between certain sea areas and the land formations which divide or
surround them. The real question raised in the choice of base-lines is in effect whether
certain sea areas lying within these lines are sufficiently closely linked to the land domain
to be subject to the regime of internal waters. This idea, which is at the basis of the
determination of the rules relating to bays, should be liberally applied in the case of a
coast, the geographical configuration of which is as unusual as that of Norway. The last
consideration is that of certain economic interests peculiar to a region, the reality and
importance of which are clearly evidenced by long usage.
ISSUE: WON the 1935 Decree was in accordance with international law.
HELD: YES.
NORWAY: DECREE AS APPLICATION OF INTERNATIONAL LAW. Norway asserts that
the 1935 Decree was the application of a traditional Norwegian system of delimitation, and
this system conformed with international law. Regarding its reference to historic title,
Norway said: "The Norwegian Government does not rely upon history to justify exceptional
rights, to claim areas of sea which the general law would deny; it invokes history, together
with other factors, to justify the way in which it applies the general law." Norway also
believes that the rules of international law take into account the diversity of facts and
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 infringe the general law; it is an
adaptation rendered necessary by local conditions.
SUBISSUE: WON the straight lines method has been established in Norway,
HELD: YES. This method, imposed by geography, has been established in Norway and
consolidated by a constant and sufficiently long practice.
WRT THE EXISTENCE OF A NORWEGIAN SYSTEM, THE ROYAL DECREE OF FEB.
22, 1812 is of cardinal importance. This Decree is in the following terms: "We wish to lay
down as a rule that, in all cases when there is a question of determining the limit of our
territorial sovereignty at sea, that limit shall be reckoned at the distance of one ordinary
sea league from the island or islet farthest from the mainland, not covered by the sea; of
which all proper authorities shall be informed by rescript". This text does not clearly
indicate how the base-lines were to be drawn. It does not say in express terms that the
lines must take the form of straight lines drawn between these points. But the 1812 Decree
was construed in this way in Norway during the 19th and 20th centuries.
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CONSTRUCTION OF THE 1812 DECREE. The Decree of Oct. 16, 1869, relating to the
delimitation of Sunnmöre, and the Statement of Reasons for this Decree, are particularly
revealing as to the traditional Norwegian conception and construction of the 1812 Decree.
It was by reference to the 1812 Decree, and relying on "the conception" adopted by that
Decree, that the Ministry of the Interior justified the drawing of a straight line 26 miles long
between the two outermost points of the "skjærgaard". The Decree of September 9th, 1889
applied the same method, drawing four straight lines. The 1812 Decree was similarly
construed by the Territorial Waters Boundary Commission, as said in the Norwegian
Memorandum: "The direction laid down by this Decree should be interpreted in the sense
that the starting-point for calculating the breadth of the territorial waters should be a line
drawn along the 'skjærgaard' between the furthest rocks and, where there is no
'skjærgaard', between the extreme points". The judgment delivered by the Norwegian
Supreme Court in 1934, in the St. Just case, provided final authority for this interpretation.
This conception accords with the geographical characteristics of the Norwegian coast and
is not contrary to the principles of international law.
PRACTICE. It should be pointed out that whereas the 1812 Decree designated as base-
points "the island or islet farthest from the mainland not covered by the sea", Norwegian
governmental practice subsequently interpreted this provision as meaning that the limit
was to be reckoned from the outermost islands and islets "not continuously covered by the
sea".
The 1812 Decree, although quite general in its terms, had as its immediate object the fixing
of the limit applicable for the purposes of maritime neutrality. However, as soon as the
Norwegian Government found itself impelled by circumstances to delimit its fisheries zone,
it regarded that Decree as laying down principles to be applied for purposes other than
neutrality. The Statements of Reasons of October 1st, 1869, December 20th, 1880, and
May 24th, 1889, are conclusive on this point. They also show that the delimitation effected
in 1869 and in 1889 constituted a reasoned application of a definite system applicable to
the whole of the Norwegian coast line, and was not merely legislation of local interest
called for by any special requirements. The Statement of Reasons of the 1869 Decree
states: "My Ministry assumes that the general rule mentioned above [namely, the four-mile
rule], which is recognized by international law for the determination of the extent of a
country's territorial waters, must be applied here in such a way that the sea area inside a
line drawn parallel to a straight line between the two outermost islands or rocks not
covered by the sea, Svinoy to the south and Storholmen to the north, and one
geographical league north-west of that straight line, should be considered Norwegian
maritime territory."
The 1869 Statement of Reasons brings out all the elements which go to make up what
Norway describes as its traditional system of delimitation: base-points provided by the
islands or islets farthest from the mainland, the use of straight lines joining up these points,
the lack of any maximum length for such lines. The judgment of the Norwegian Supreme
Court in the St. Just case upheld this interpretation and added that the 1812 Decree had
never been understood or applied in such a way as to make the boundary follow the
sinuosities of the coast or to cause its position to be determined by means of circles drawn
round the points of the Skjærgaard or of the mainland furthest out to sea - a method which
it would be very difficult to adopt or to enforce in practice, having regard to the special
configuration of this coast". Finally, it is established that, according to the Norwegian
system, the base-lines must follow the general direction of the coast, which is in conformity
with international law.
56
FRENCH CORRESPONDENCE ALSO SIGNIFICANT. Equally significant is the
correspondence between Norway and France between 1869-1870. On Dec. 1869, only
two months after the promulgation of the Decree relating to the delimitation of Sunnmöre,
the French asked Norway for an explanation of this enactment. In a second Note it pointed
out that the distance between the base-points was greater than 10 sea miles, and that the
line joining up these points should have been a broken line following the configuration of
the coast. In a note of Feb. 1870 the Ministry for Foreign Affairs, also dealing with the
question from the point of view of international law, replied as follows: "… Your Excellency
drew my attention to the fixing of the fishery limit in the Sunnmöre Archipelago by a straight
line instead of a broken line. According to the view held by your Government, as the
distance between the islets of Svinöy and Storholmen is more than 10 sea miles, the
fishery limits between these two points should have been a broken line following the
configuration of the coast line and nearer to it than the present limit. 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 any foundation in reality: one bay, by reason of the varying
formations of the coast and sea-bed, may have an entirely different character from that of
another bay of the same width. It seems to me rather that the local conditions and
considerations of what is practicable and equitable should be decisive in specific cases.
The configuration of our coasts in no way resembles that of the coasts of other European
countries, and that fact alone makes the adoption of any absolute rule of universal
application impossible in this case. I venture to claim that all these reasons militate in
favour of the line laid down by the Decree of October 16th. A broken line, conforming
closely to the indentations of the coast line between Sinvöy and Storholmen, would have
resulted in a boundary so involved and so indistinct that it would have been impossible to
exercise any supervision over it . . ."
This can only be construed as the considered expression of a legal conception regarded
by Norway as compatible with international law. And indeed, the French Government did
not pursue the matter, as it accepted the 1869 delimitation as resting upon "a practical
study of the configuration of the coast line and of the conditions of the inhabitants".
THEREFORE, having established the existence and the constituent elements of the
Norwegian system of delimitation, the ICJ also finds that this system was consistently
applied by Norwegian authorities and that it encountered no opposition on the part of other
States.
SUBISSUE: WON Norway has consistently followed the principles of delimitation which it
claimed to form its system.
HELD: YES. Norwegian authorities applied their system of delimitation consistently and
uninterruptedly from 1869 until the time when the dispute arose.
UK ARGUES that Norway hasn’t consistently followed the principles of delimitation which,
it claims, form its system, and that it has admitted by implication that some other method
would be necessary to comply with international law. The UK specifically referred to the
period between 1906-1908. Regarding the law of June 2, 1906 (prohibited fishing by
foreigners), the UK argues that the general character of this law shows that no definite
system (of delimitation) existed in Norway.
A PROHIBITION, NOT DELIMITATION. The ICJ is unable to accept this interpretation, as
the object of the law was to renew the prohibition against fishing and not to undertake a
precise delimitation of the territorial sea.
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UK: LOOK AT THE LETTER OF MARCH 24, 1908, from the Minister for Foreign Affairs to
the Minister of National Defence, which (according to the UK) shows Norway’s adherence
to the low-water mark rule (which is contrary to Norway’s present position).
ICJ: UK IS CONFUSED. This interpretation can’t be accepted as it rests upon a confusion
between the low-water mark rule as understood by the UK, which requires that all the
sinuosities of the coast line at low tide should be followed, and the general practice of
selecting the low-tide mark rather than that of the high tide for measuring the extent of the
territorial sea.
UK: LOOK AT NOV. 11, 1908 NOTE from the Norwegian Minister for Foreign Affairs to the
French Charge d'Affaires at Christiania, in reply to a request for information as to whether
Norway had modified the limits of her territorial waters. The Minister said: "Interpreting
Norwegian regulations in this matter, whilst at the same time conforming to the general rule
of the Law of Nations, this Ministry gave its opinion that the distance from the coast should
be measured from. the low-water mark and that every islet not continuously covered by the
sea should be reckoned as a starting-point.” The UK argues that by the reference to "the
general rule of the Law of Nations", instead of to its own system of delimitation which uses
of straight lines, and by its statement that "every islet not continuously covered by the sea
should be reckoned as a starting-point", Norway had completely departed from what it
today describes as its system.
ICJ: ON BREADTH, NOT STRAIGHT LINES. The request for information to which
Norway was replying related not to the use of straight lines, but to the breadth of its
territorial waters. The point of Norway’s reply was that there had been no modification in
the Norwegian legislation. Moreover, it is impossible to rely upon a few words taken from a
single note to draw the conclusion that Norway had abandoned a position which its earlier
official documents had clearly indicated.
SUBISSUE: WON Norway’s application of its system was opposed by other States.
HELD: NO. The general toleration of the international community shows that the
Norwegian system wasn’t regarded as contrary to international law.
NORWAY: PROMULGATION OF DELIMITATION DECREES (1869, 1889) AND
APPLICATION NOT OPPOSED BY OTHER STATES. And as these Decrees constitute
the application of a well-defined and uniform system, it is this system itself which would
reap the benefit of general toleration, the basis of an historical consolidation which would
make it enforceable as against all States.
THE GENERAL TOLERATION of foreign States to the Norwegian practice is an
unchallenged fact. For a period of more than 60 years the UK itself didn’t contest it. It was
only in1933 that the UK made a formal and definite protest on this point.
ON UK’S ARGUMENT THAT NORWAY’S SYSTEM WASN’T KNOWN TO IT, AND THAT
THE SYSTEM LACKED THE NOTORIETY ESSENTIAL TO PROVIDE THE BASIS OF
AN HISTORIC TITLE ENFORCEABLE AGAINST THE UK. The ICJ is unable to accept
this view. As a coastal State on the North Sea, greatly interested in the fisheries in this
area, as a maritime Power traditionally concerned with the law of the sea and concerned
particularly to defend the freedom of the seas, the UK couldn’t have been ignorant of the
1869 Decree which had at once provoked a request for explanations by the French
Government. Nor could it have been under any misapprehension as to the significance of
57
its terms, which clearly described it as constituting the application of a system. The same
observation applies to the Decree of 1889 which must have appeared to the UK as a
reiterated manifestation of the Norwegian practice.
Norway's attitude with regard to the North Sea Fisheries (Police) Convention of 1882 is a
further fact which must at once have attracted UK’s attention. There is scarcely any
fisheries convention of greater importance to the coastal States of the North Sea or of
greater interest to the UK. Norway's refusal to adhere to this Convention clearly raised the
question of the delimitation of her maritime domain, especially with regard to bays, the
question of their delimitation by means of straight lines of which Norway challenged the
maximum length adopted in the Convention. Having regard to the fact that a few years
before, the delimitation of Sunnmöre by the 1869 Decree had been presented as an
application of the Norwegian system, one cannot avoid the conclusion that, from that time
on, all the elements of the problem of Norwegian coastal waters had been clearly stated.
The steps subsequently taken by the UK to secure Norway's adherence to the Convention
clearly show that she was aware of and interested in the question. The Court also took
note of the fact that the UK refrained from formulating reservations.
THEREFORE…The notoriety of the facts, the general toleration of the international
community, UK’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 UK. The ICJ thus concludes 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 constant 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.
SUBISSUE: WON the 1935 Decree conforms to the Norwegian system.
HELD: YES. The lines in the 1935 Decree conformed to the traditional Norwegian system.
REFERRED TO THE TRAD. SYSTEM. The schedule appended to the 1935 Decree
indicates the fixed points between which the straight base-lines are drawn. These lines
were the result of a careful study initiated by the Norwegian authorities as far back as
1911. The base-lines recommended by the Foreign Affairs Committee of the Storting for
the delimitation of the fisheries zone and adopted and made public for the first time by the
1935 Decree are the same as those which the so-called Territorial Waters Boundary
Commissions, successively appointed on June 29th, 1911, and July 12th, 1912, had drawn
in 1912 for Finnmark and in 1913 for Nordland and Troms. The 1911 and 1912
Commissions advocated these lines and in so doing constantly referred, as did the 1935
Decree, to the traditional system of delimitation adopted by earlier acts (Decrees of 1812,
1869 and 1889).
SUBISSUE: Regardless of the conformity of the 1935 Decree to the Norwegian system,
WON the base-lines are contrary to the principles (stated above by the ICJ) as governing
any delimitation of the territorial sea, and thus unjustified.
HELD: NO. The lines were justified.
THE UK CONTENDS that certain lines don’t follow the general direction of the coast, or
don’t follow it sufficiently closely, or that they don’t respect the natural connection existing
between certain sea areas and the land formations separating or surrounding them; thus,
these lines are contrary to the principles which govern the delimitation of the maritime
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domain. The sectors cited by the UK are: the sector of Sværholthavet (between base-
points 11 and 12) and that of Lopphavet (between base-points 20 and 21).
RE: SVAERHOLT, W/ CHARACTER OF A BAY. The base-line between points 11 and 12
(which is 38.6 miles long) delimits the waters of the Svaerholt lying between Cape Nordkyn
and the North Cape. The UK denies that the basin so delimited has the character of a bay.
Its argument is founded on a geographical consideration. In its opinion, the calculation of
the basin's penetration inland must stop at the tip of the Sværholt peninsula
(Sværholtklubben). The penetration inland thus obtained being only 11.5 sea miles, as
against 38.6 miles of breadth at the entrance, it is alleged that the basin in question does
not have the character of a bay. The ICJ is unable to share this view. It considers that the
basin in question must be contemplated in the light of all the geographical factors involved.
The fact that a peninsula juts out and forms two wide fjords, the Laksefjord and the
Porsangerfjord, cannot deprive the basin of the character of a bay. It is the distances
between the disputed base-line and the most inland point of these fjords, 50 and 75 sea
miles respectively, which must be taken into account in appreciating the proportion
between the penetration inland and the width at the mouth. The Sværholthavet has the
character of a bay.
RE: LOPPHAVET. The Lopphavet basin constitutes an ill-defined geographic whole. It
cannot be regarded as having the character of a bay. It is made up of an extensive area of
water dotted with large islands which are separated by inlets that terminate in the various
fjords. The base-line has been challenged on the ground that it does not respect the
general direction of the coast. It should be observed that, however justified the rule in
question may be, it is devoid of any mathematical precision. In order properly to apply the
rules, regard must be had for the relation between the deviation complained of and what,
according to the terms of the rule, must be regarded as the general direction of the coast.
One cannot confine oneself to examining one sector of the coast alone, except in a case of
manifest abuse; nor can one rely on the impression that may be gathered from a large
scale chart of this sector alone. In the case in point, the divergence between the base-line
and the land formations is not such that this is a distortion of the general direction of the
Norwegian coast.
Even if the deviation here was too pronounced, Norway has relied on an historic title
clearly referable to the waters of the Lopphavet - the exclusive privilege to fish and hunt
whales granted at the end of the 17th century to Lt. Commander Erich Lorch under a
number of licences which show that the water situated in the vicinity of the sunken rock of
Gjesbaaen or Gjesboene and the fishing grounds pertaining thereto were regarded as
falling exclusively within Norwegian sovereignty. These ancient concessions tend to
confirm Norway’s contention that the fisheries zone reserved before 1812 was in fact much
more extensive than the one delimited in 1935. Although it is not always clear to what
specific areas they apply, the historical data produced in support of Norway’s contention
lend some weight to the idea of survival of traditional rights reserved to the inhabitants of
the Kingdom over fishing grounds included in the 1935 delimitation, particularly in the case
of Lopphavet. Such rights, founded on the vital needs of the population and attested by
very ancient and peaceful usage, may legitimately be taken into account in drawing a line
which appears to the Court to have been kept within the bounds of what is moderate and
reasonable.
WRT VESTFJORD, after the oral argument, its delimitation no longer presents the
importance it had in the early stages of the proceedings. Since the Court has found that
the waters of the Indreleia are internal waters, the waters of the Vestfjord, as indeed the
58
waters of all other Norwegian fjords, can only be regarded as internal waters. Whatever
difference may still exist between the views of the UK and of Norway on this point is
negligible.
For these reasons, THE COURT, rejecting all submissions to the contrary, Finds by ten
votes to two, that the method employed for the delimitation of the fisheries zone by the
Royal Norwegian Decree of July 12th, 1935, is not contrary to international law; and by
eight votes to four, that the base-lines fixed by the said Decree in application of this
method are not contrary to international law.
WESTERN SAHARA (REQUEST FOR ADVISORY OPINION) ORDER (16 Oct 1975)
1.C.J. Reports 1975, p. 12.
UN GA ASKS FOR COURT’S ADVISORY OPINION.
1. The questions upon which the advisory opinion of the Court has been asked were laid
before the Court by a letter dated 17 December 1974, filed in the Registry on 21 Decemter
1974, addressed by the UN Sec-Gen to the President of the Court. In his letter he informed
the Court that, by resolution 3292 (XXIX) adopted on 13 December 1974, the UN General
Assembly had decided to request the Court to give an advisory opinion at an early date on
the questions set out in the resolution. The text of that resolution is as follows:
"The General Assembly,
Recalling its resolution 1514 (XV) of 14 December 1960 containing the
Declaration on the Granting of Independence to Colonial Countries and Peoples,
Recalling also its resolutions 2072 (XX) of 16 December 1965, 2229 (XXI) of 20
December 1966, 2354 (XXII) of 19 December 1967, 2428 (XXIII) of 18 December
1968, 2591 (XXIV) of 16 December 1969, 271 1 (XXV) of 14 December 1970,
2983 (XXVII) of 14 December 1972 and 3162 (XXVIII) of 14 December 1973,
Reaffirming the right of the population of the Spanish Sahara to self
determination in accordance with resolution 1514 (XV),
Considering that the persistence of a colonial situation in Western Sahara
jeopardizes stability and harmony in the north-west African region,
Taking into account the statements made in the General Assembly on 30
September and 2 October 1974 by the Ministers for Foreign Affairs of the
Kingdom of Morocco and of the Islamic Republic of Mauritania,
Taking note of the statements made in the Fourth Committee by the
representatives of Morocco 3 and Mauritania4, in which the two countries
acknowledged that they were both interested in the future of the Territory,
Having heard the statements by the representative of Algerias,
Having heard the statements by the representative of Spain,
Noting that during the discussion a legal controversy arose over the status of the
said territory at the time of its colonization by Spain,
Considering, therefore, that it is highly desirable that the General Assembly, in
order to continue the discussion of this question at its thirtieth session, should
receive an advisory opinion on some important legal aspects of the problem,
Bearing in mind Article 96 of the Charter of the United Nations and Article 65 of
the Statute of the International Court of Justice,
1. Decides to request the International Court of Justice, without prejudice to the
application of the principles embodied in General Assembly resolution 1514 (XV),
to give an advisory opinion at an early date on the following questions:
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I. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of
colonization by Spain a territory belonging to no one
(terra nullius)?
If the answer to the first question is in the negative,
II. What were the legal ties between this territory and the Kingdom of
Morocco and the Mauritanian entity?
2. Calls upon Spain, in its capacity as administering Power in particular, as well
as Morocco and Mauritania, in their capacity as interested parties, to submit to
the International Court of Justice all such information and documents as may be
needed to clarify those questions;
3. Urges the administering Power to postpone the referendum it contemplated
holding in Western Sahara until the General Assembly decides on the policy to
be followed in order to accelerate the decolonization process in the territory, in
accordance with resolution 1514 (XV), in the best possible conditions, in the light
of the advisory opinion t0 be given by the International Court of Justice;
4. Reiterates its invitation to al1 States to observe the resolutions of the General
Assembly regarding the activities of foreign economic and financial interests in
the Territory and to abstain from contributing their investments or immigration
policy to the maintenance of a colonial situation in the Territory;
5. Requests the Special Conlnlittee on the Situation with regard to the
lmplementation of the Declaration on the Granting of lndependence to Colonial
Countries and Peoples to keep the situation in the Territory under review,
including the sending of a visiting iiiission to the Territory, and to report thereon to
the General Asseinbly at its thirtieth session."
“CONTROVERSY” CHANGED TO “DIFFICULTY”.
2. In a communication received in the Registry on 19 August 1975, the Sec-Gen indicated
that, owing to a technical error, the word "controversy" in the ninth paragraph of the
preamble of the above resolution had been replaced by the word "difficulty" in the text
originally transmitted to the President of the Court.
COURT GIVES NOTICE OF THE REQUEST TO ALL STATES ENTITLED TO APPEAR
BEFORE THE COURT.
3. By letters dated 6 January 1975 the Registrar, pursuant to Article 66, paragraph 1, of the
Statute of the Court, gave notice of the request for advisory opinion to all States entitled to
appear before the Court.
COURT FIXES TIME-LIMIT FOR RECEIVING WRITTEN STATEMENTS.
4. The Court having decided, pursuant to Article 66, paragraph 2, of the Statute, that the
States Members of the United Nations were likely to be able to furnish information on the
questions submitted, the President, by an Order dated 3 January 1975, fixed 27 March
1975 as the time-limit within which the Court would be prepared to receive written
statements from them. Accordingly, the special and direct communication provided for in
Article 66, paragraph 2, of the Statute was included in the letters addressed to those
States on 6 January 1975.
COUNTRIES SUBMIT WRITTEN STATEMENTS.
5. The following States submitted written statements or letters to the Court in response to
the Registry's communications: Chile, Colombia, Costa Rica, Dominican Republic,
Ecuador, France, Guatemala, Mauritania, Morocco, Nicaragua, Fanama and Spain. The
texts of these statements and letters were transmitted to the States Members, and to the
UN Sec-Gen, and made accessible to the public as from 22 April 1975.
59
ADDITIONAL SUBMISSIONS BY SPAIN, MOROCCO AND MAURITANIA.
6. In addition to its written statement, Spain submitted six volumes entitled "Information
and Documents presented by the Spanish Government to the Court in accordance with
paragraph 2 of resolution 3292 (XXIX) of the United Nations General Assembly", and two
volumes of "Further Documents" submitted on the same basis. Morocco similarly
submitted a large number of documents "in support of its written statement and in
accordance with paragraph 2 of resolution 3292 (XXIX)". Mauritania likewise appended
documentary annexes to its written statement. All three States provided cartographical
material.
SEC-GEN SUBMITS DOSSIER.
7. The Sec-Gen, pursuant to Article 65, paragraph 2, of the Statute and Article 88 of the
Rules of Court, transmitted to the Court a dossier of documents likely to throw light upon
the question, together with an lntroductory Note; this dossier was received in the Registry
in several instalments, in the two official languages of the Court, between 18 February and
15 April 1975. On 23 April 1975 the Registrar transmitted to the States Members the
Introductory Note and the list of the documents comprised in the dossier.
MOROCCO AND MAURITANIA ASKS APPOINTMENT OF JUDGE AD HOC.
8. By letters dated 25 and 26 March 1975, respectively, Morocco and Mauritania each
submitted a request for the appointment of a judge ad hoc to sit in the case. At public
sittings held from 12 to 16 May 1975 the Court heard observations on this question from
representatives of those States, as also of Spain and Algeria, which had likewise asked to
be heard.
THERE IS A LEGAL DISPUTE BETWEEN MOROCCO AND SPAIN REGARDING WEST
SAHARA; NONE BETWEEN MAURITANIA AND SPAIN, BUT NO PREJUDGMENT ON
LOCUS STANDING OF ANY INTERESTED STATE AND ANY FUTURE QUESTION.
9. In an Order of 22 May 1975 (I.C.J. Reports 1975, pp. 6-10) the Court concluded that, for
the purpose of the preliminary issue of its composition, the material submitted to it
indicated that at the time of the adoption of resolution 3292 (XXIX):
". . . there appeared to be a legal dispute between Morocco and Spain regarding
the Territory of Western Sahara; that the questions contained in the request for
an opinion [might] be considered to be connected with that dispute; and that, in
consequence, for purposes of application of Article 89 of the Rules of Court, the
advisory opinion requested in that resolution appear[ed] to be one 'upon a legal
question actually pending between two or more States';''
with regard to Mauritania, the Court concluded that the material submitted to it, while
showing that at the time of the adoption of the resolution "Mauritania had previously
adduced a series of considerations in support of its particular interest in the territory of
Western Sahara", indicated, for the purpose of the aforesaid preliminary issue, that at that
time "there appeared to be no legal dispute between Mauritania and Spain regarding the
Territory of Western Sahara; and that, in consequence, for purposes of application of
Article 89 of the Rules of Court, the advisory opinion requested" appeared "not to be one
'upon a legal question actually pending' between those States"; those conclusions, the
Court stated, "in no way prejudge[d] the locus standi of any interested State in regard to
matters raised in the present case, nor [did] they prejudge the views of the Court with
regard to the questions referred to it", or any other question which might fall to be decided
in the further proceedings, including those of the Court's competence and the propriety of
its exercise. The Court found accordingly that Morocco was entitled under Articles 31 and
68 of the Statute and Article 89 of the Rules of Court to choose a person to sit as judge ad
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hoc, but that, in the case of Mauritania, the conditions for the application of those Articles
had not been satisfied.
MOROCCO CHOOSES IVORY COAST SC PRESIDENT AS JUDGE AD HOC.
10. Morocco had, in its communication of 25 March 1975 mentioned above chosen Mr.
Alphonse Boni, President of the Supreme Court of the Ivory Coast, to sit as judge ad hoc in
the case. Spain, consulted in accordance with Article 3, paragraph 1, of the Rules of Court,
did not make any objection to this choice.
REGISTRAR ASKS UN MEMBERS IF THEY INTEND TO TAKE PART IN ORAL
PROCEEDINGS; PRESENTATION OF ORAL STATEMENTS.
11. By a letter of 29 May 1975, the Registrar invited the Governments of the States
Members to inform him whether they intended to take part in the oral proceedings. In
addition to the four Governments which had already submitted observations during the
hearings devoted to the question of the appointment of judges ad hoc, Zaire indicated that
it proposed to submit its point of view to the Court. These Governments and the UN Sec-
Gen were informed that the date fixed for the opening of the oral proceedings was 25 June
1975. In the course of 27 public sittings, held between 25 June and 30 July 1975, oral
statements were made to the Court by the following representatives:
for Morocco: (deleted)
for Mauritania: (deleted)
for Zaire: (deleted)
for Algeria: (deleted)
for Spain: (deleted)
COURT FIRST CONSIDERS PROCEDURAL MATTERS, WHICH IT SAYS ARE
ACTUALLY THE SUBSTANCE OF THE CASE.
12. The Court will first consider certain matters regarding the procedure adopted in the
present case. One is a suggestion that the Court ought to have suspended the
proceedings on the substance of the questions referred to it and to have first confined itself
to determining in interlocutory proceedings certain issues said to be preliminary: whether
the Court is confronted with a legal question; whether there are compelling reasons for the
Court's declining to reply to the request; what the eventual effect of the Court's findings
may be in respect of the further process of decolonization of the territory. That these issues
are of a purely preliminary character is, however, impossible to accept, particularly as they
concern the object and nature of the request, the role of consent in the present
proceedings, and the meaning and scope of the questions referred to the Court. Far from
having a preliminary character, they constitute part of the substance of the case. Moreover,
the procedure suggested, instead of facilitating the work of the Court, would have caused
unwarranted delay in the discharge of the Court's functions and in its responding to the
request of the GA. In the event, the procedure adopted by the Court afforded a full
opportunity for all the above issues to be examined, and in fact they were debated in
extensive proceedings.
APPOINTMENT OF JUDGES AD HOC SHOULD BE SETTLED FIRST.
13. Another suggestion is that, before pronouncing on the requests made by Morocco and
Mauritania for appointment of judges ad hoc, the Court ought to have decided with finality
whether there was in this case a legal dispute between those States and Spain. However,
as the Court said in the case concerning the Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1 970) :
60
". . . the question whether a judge ad hoc should be appointed is of course a
matter concerning the composition of the Bench and possesses . . . absolute
logical priority. It has to be settled prior to the opening of the oral proceedings,
and indeed before any further issues, even of procedures, can be decided. Until
it is disposed of the Court cannot proceed with the case. It is thus a logical
necessity that any request for the appointment of a judge ad hoc must be treated
as a primary matter on the basis of a prima facie appreciation of the facts and the
law. This cannot be construed as meaning that the Court’s decision thereon may
involve the irrevocable disposal of a point of substance or of one related to the
Court’s competence… [T]o assert that the question of a judge ad hoc could not
be validly settled until the Court had been able to analyse substantive issues is
tantamount to suggesting that the composition of the Court could be left in doubt,
until an advanced stage in the case.” (I.C.J. Reports 1971, p.25.)
It is also to be observed that if the Court had subordinated its decision on the requests for
judges ad hoc to a final conclusion on these allegedly preliminary issues, the practical
result would have been that these issues – some of the most important and controverted in
the case – would have been decided with the participation of a judge of Spanish nationality
and without the question of judges ad hoc having been resolved.
STATUTORY BASIS FOR ASKING ADVISORY OPINION.
14. Under Art 65, para 1, of the Statute:
“The Court may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the
United Nations to make such a request.”
The present request has been made pursuant to Art 96, para 1, of the UN Charter, under
which the GA may seek the Court’s advisory opinion on any legal question.
QUESTIONS RAISED HAVE LEGAL CHARACTER, BUT COURT WANTS TO
ADDRESS DOUBTS REGARDING SUCH.
15. The questions submitted by the GA have been framed in terms of law and raise
problems of international law: whether a territory was terra nullius at the time of its
colonization; what legal ties there were between that territory and Morocco and the
Mauritanian entity. These questions are by their very nature susceptible of a reply based
on law; indeed, they are scarcely susceptible of a reply otherwise on the basis of law. In
principle, therefore, they appear to the Court to be questions of a legal character. It may be
added that none of the States which have appeared before it have contended that the
questions are not legal questions within the meaning of Art 96, para 1, of the Charter and
Art 65, para 1, of the Statute. It is necessary, however, to consider the matter further,
because doubts have been raised concerning the legal character of the questions in the
particular circumstances of this case.
MIXED QUESTION OF FACT AND LAW IS STILL A LEGAL QUESTION.
16. It has been suggested that the questions posed by the GA are not legal, but are either
factual or are questions of a purely historical or academic character.
17. It is true that, in order to reply to the questions, the Court will have to determine certain
facts, before being able to assess their legal significance. However, a mixed question of
law and fact is none the less a legal question within the meaning of Article 96, paragraph 1,
of the Charter and Article 65, paragraph 1, of the Statute. As the Court observed in its
Opinion concerning the Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution
276 (1970) :
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"In the view of the Court, the contingency that there may be factual issues
underlying the question posed does not alter its character as a 'legal question' as
envisaged in Article 96 of the Charter. The reference in this provision to legal
questions cannot be interpreted as opposing legal to factual issues. Normally, to
enable a court to pronounce on legal questions, it must also be acquainted with,
take into account and, if necessary, make findings as to the relevant factual
issues." (I.C.J.Reports 1971, p. 27.)
COURT CAN CONSIDER ANY LEGAL QUESTION.
18. The questions put to the Court confine the period to be taken into consideration to the
time of colonization by Spain. The view has been expressed that in order to be a "legal
question" within the meaning of Article 65, paragraph 1, of the Statute, a question must not
be of a historical character, but must concern or affect existing rights or obligations. Yet
there is nothing in the Charter or Statute to limit either the competence of the GA to
request an advisory opinion, or the competence of the Court to give one, to legal questions
relating to existing rights or obligations. There have been instances of Advisory Opinions
which did not concern existing rights nor an actually pending issue (e.g., Designation of
the Workers' Delegate for the Netherlands ut the Third Session of the International Labour
Conference, Advisory Opinion, 1922, P.C.I.J., Series B, No. 1). When confronted, in the
advisory case concerning Conditions of Admission of a State to Membership in the United
Nations (Article 4 of Charter), with the proposition that the Court should not deal with a
question couched in abstract terms, this Court rejected it in the following words:
"That is a mere affirmation devoid of any justification. According to Article 96 of
the Charter and Article 65 of the Statute, the Court may give an advisory opinion
on any legal question, abstract or otherwise." (I.C.J. Reports 194 7-1 948, p. 61)
And in its Advisory Opinion of 12 July 1973 the Court said:
"The mere fact that it is not the rights of States which are in issue in the
proceedings cannot suffice to deprive the Court of a competence expressly
conferred on it by its Statute." (Application for Review of Judgement No. 158 of
the United Nations Administrative Tribunal, I.C.J. Reports 1973, p. 172.)
Although these pronouncements were made in somewhat different contexts, they indicate
that the references to "any legal question" in the abovementioned provisions of the Charter
and Statute are not to be interpreted restrictively.
19. Thus, to assert that an advisory opinion deals with a legal question within the meaning
of the Statute only when it pronounces directly upon the rights and obligations of the States
or parties concerned, or upon the conditions which, if fulfilled, would result in the coming
into existence, modification or termination of such a right or obligation, would be to take too
restrictive a view of the scope of the Court's advisory jurisdiction. It has undoubtedly been
the usual situation for an advisory opinion of the Court to pronounce on existing rights and
obligations, or on their coming into existence, modification or termination, or on the powers
of international organs. However, the Court may also be requested to give its opinion on
questions of law which do not call for any pronouncement of that kind, though they may
have their place within a wider problem the solution of which could involve such matters.
This does not signify that the Court is any the less competent to entertain the request if it is
satisfied that the questions are in fact legal ones, and to give an opinion once it is satisfied
that there is no compelling reason for declining to do so.
ISSUE OF RELEVANCE AND PRACTICAL INTEREST OF THE QUESTIONS POSED
CONCERNS REGARDING THE PROPRIETY OF EXERCISING COURT’S
COMPETENCE.
61
20. The Court accordingly finds that it is competent under Article 65, paragraph 1, of its
Statute to entertain the present request, regardless of the fact that the Assembly has not
requested the determination of existing rights and obligations. At the same time it appears
from resolution 3292 (XXIX) that the opinion is sought for a practical and contemporary
purpose, namely, in order that the GA should be in a better position to decide at its 13th
session on the policy to be followed for the decolonization of Western Sahara. However,
the issue of the relevance and practical interest of the questions posed concerns, not the
competence of the Court, but the propriety of its exercise. It is therefore in considering the
subject of judicial propriety that the Court will examine the objection which has been raised
in this connection, alleging that the questions are devoid of any useful object.
21. Similarly, the absence of an interested State's consent to the exercise of the Court's
advisory jurisdiction does not concern the competence of the Court but the propriety of its
exercise, as clearly appears from the Advisory Opinion concerning the Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, First Phase, to which reference will
be made later. Hence, notwithstanding the fact that Spain has based on the absence of its
consent an objection against the competence of the Court as well as the propriety of its
exercise, it is in dealing with the latter that the Court will examine the issues raised by that
lack of consent.
22. In sum, while the Court is satisfied of its competence to entertain the present request, it
remains to be considered whether, in the circumstances of this case, it should exercise this
competence or, on the contrary, decline to do so, whether on the grounds already referred
to or for any other reason.
POWER TO GIVE ADVISORY OPINIONS IS PERMISSIVE, DISCRETIONARY.
23. Article 65, paragraph 1, of the Statute, which establishes the power of the Court to give
an advisory opinion, is permissive and, under it, that power is of a discretionary character.
In exercising this discretion, the ICJ, like the Permanent Court of International Justice, has
always been guided by the principle that, as a judicial body, it is bound to remain faithful to
the requirements of its judicial character even in giving advisory opinions. If the question is
a legal one which the Court is undoubtedly competent to answer, it may none the less
decline to do so. As this Court has said in previous Opinions, the permissive character of
Article 65, paragraph 1, gives it the power to examine whether the circumstances of the
case are of such a character as should lead it to decline to answer the request. It has also
said that the reply of the Court represents its participation in the activities of the
Organization (UN) and, in principle, should not be refused. By lending its assistance in the
solution of a problem confronting the GA, the Court would discharge its functions as the
principal judicial organ of the UN. The Court has further said that only "compelling reasons"
should lead it to refuse to give a requested advisory opinion (cf. Interpretation of Peace
Treaties with Bulgaria, Hungary and Romania, First Phase, I.C.J. Reports 1950, p. 72;
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports
1971, p. 27).
COURT WILL DEAL WITH SPAIN’S OBJECTIONS FOUNDED ON LACK OF CONSENT
TO THE ADJUDICATION OF THE QUESTIONS.
24. Spain has put forward a series of objections which in its view would render the giving of
an opinion in the present case incompatible with the Court's judicial character. Certain of
these are based on the consequences said to follow from the absence of Spain's consent
to the adjudication of the questions. Another relates to the alleged academic nature,
irrelevance or lack of object of those questions. Spain has asked the Court to give priority
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to the examination of the latter. The Court will, however, deal with the objections founded
on the lack of Spain's consent to adjudication of the questions, before turning to the
objection which concerns the subject-matter of the questions themselves.
SPAIN’S OBSERVATIONS RELATING TO LACK OF ITS CONSENT TO THE
PROCEEDINGS.
25. Spain has made a number of observations relating to the lack of its consent to the
proceedings, which, it considers, should lead the Court to decline to give an opinion. These
observations may be summarized as follows:
(a) In the present case the advisory jurisdiction is being used to circumvent the
principle that jurisdiction to settle a dispute requires the consent of the parties.
(b) The questions, as formulated, raise issues concerning the attribution of
territorial sovereignty over Western Sahara.
(c) The Court does not possess the necessary information concerning the
relevant facts to enable it to pronounce judicially on the questions submitted to it.
FIRST OBSERVATION: SPAIN NEVER CONSENTED TO SUBMISSION OF THE ISSUE
TO COURT.
26. The first of the above observations is based on the fact that on 23 September 1974 the
Minister for Foreign Affairs of Morocco addressed a communication to the Minister for
Foreign Affairs of Spain recalling the terms of a statement by which His Majesty King
Hassan II had on 17 September 1974 proposed the joint submission to the ICJ of an issue
expressed in the following terms:
"You, the Spanish Government, claim that the Sahara was res nullius. You claim
that it was a territory or property left uninherited, you claim that no power and no
administration had been established over the Sahara: Morocco claims the
contrary. Let us request the arbitration of the International Court of Justice at The
Hague. . . It will state the law on the basis of the titles submitted . . ."
Spain has stated before the Court that it did not consent and does not consent now to the
submission of this issue to the jurisdiction of the Court.
SPAIN CLAIMS THAT ADVISORY PROCEDURE IS BEING USED TO BYPASS THE
CONSENT OF A STATE.
27. Spain considers that the subject of the dispute which Morocco invited it to submit jointly
to the Court for decision in contentious proceedings, and the subject of the questions on
which the advisory opinion is requested, are substantially identical; thus the advisory
procedure is said to have been used as an alternative after the failure of an attempt to
make use of the contentious jurisdiction with regard to the same question. Consequently,
to give a reply would, according to Spain, be to allow the advisory procedure to be used as
a means of bypassing the consent of a State, which constitutes the basis of the Court's
jurisdiction. If the Court were to countenance such a use of its advisory jurisdiction, the
outcome would be to obliterate the distinction between the two spheres of the Court's
jurisdiction, and the fundamental principle of the independence of States would be
affected, for States would find their disputes with other States being submitted to the Court,
by this indirect means, without their consent; this might result in compulsory jurisdiction
being achieved by majority vote in a political organ. Such circumvention of the well-
established principle of consent for the exercise of international jurisdiction would
constitute, according to this view, a compelling reason for declining to answer the request.
SUPPORT OF SPAIN’S PROPOSITION; MOROCCO AND MAURITANIA COUNTERS.
28. In support of these propositions Spain has invoked the fundamental rule, repeatedly
reaffirmed in the Court's jurisprudence, that a State cannot, without its consent, be
62
compelled to submit its disputes with other States to the Court's adjudication. It has relied,
in particular, on the application of this rule to the advisory jurisdiction by the Permanent
Court of International Justice in the Status of Eastern Carelia case, maintaining that the
essential principle enunciated in that case is not modified by the decisions of the present
Court in the cases concerning the Interpretation of Peace Treaties with Bulgaria, Hungary
and Romania, First Phase (1950) and the Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970). Morocco and Mauritania, on the other hand, have
maintained that the present case falls within the principles applied in those two decisions
and that the ratio decidendi of the Status of Eastern Carelia case is not applicable to it.
SPAIN, INDEED, DID NOT CONSENT TO THE ADJUDICATION.
29. It is clear that Spain has not consented to the adjudication of the questions. It did not
agree to Morocco's proposal for the joint submission to the Court of the issue raised in the
communication of 23 September 1974. Spain made no reply to the letter setting out the
proposal, and this was properly understood by Morocco as signifying its rejection by Spain.
As to the request for an advisory opinion, the records of the discussions in the Fourth
Committee and in the plenary of the GA confirm that Spain raised objections to the Court's
being asked for an opinion on the basis of the two questions formulated in the present
request. The Spanish delegation stated that it was prepared to join in the request only if
the questions put were supplemented by another question establishing a satisfactory
balance between the historical and legal exposition of the matter and the current situation
viewed in the light of the UN Charter and the relevant GA resolutions on the decolonization
of the territory. In view of Spain's persistent objections to the questions formulated in
resolution 3292 (XXIX), the fact that it abstained and did not vote against the resolution
cannot be interpreted as implying its consent to the adjudication of those questions by the
Court. Moreover, its participation in the Court's proceedings cannot be understood as
implying that it has consented to the adjudication of the questions posed in resolution 3292
(XXIX), for it has persistently maintained its objections throughout.
SPAIN’S POSITION FINDS NO PARALLEL IN THE STATUS OF EASTERN CARELIA
CASE.
30. In other respects, however, Spain's position in relation to the present proceedings finds
no parallel in the circumstances of the advisory proceedings concerning the Status of
Eastern Carelia in 1923. In that case, one of the States concerned was neither a party to
the Statute of the Permanent Court nor, at the time, a Member of the League of Nations,
and lack of competence of the League to deal with a dispute involving non-member States
which refused its intervention was a decisive reason for the Court's declining to give an
answer. In the present case, Spain is a UN Member and has accepted the provisions of the
Charter and Statute; it has thereby in general given its consent to the exercise by the Court
of its advisory jurisdiction. It has not objected, and could not validly object, to the GA’s
exercise of its powers to deal with the decolonization of a non-self-governing territory and
to seek an opinion on questions relevant to the exercise of those powers. In the
proceedings in the GA, Spain did not oppose the reference of the Western Sahara
question as such to the Court's advisory jurisdiction: it objected rather to the restriction of
that reference to the historical aspects of that question.
CONTENTIOUS PROCEDURE DIFFERENT FROM THOSE APPLICABLE TO
ADVISORY OPINIONS.
31. In the proceedings concerning the Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, First Phase, this Court had to consider how far the views
expressed by the Permanent Court in the Status of Eastern Carelia case were still
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pertinent in relation to the applicable provisions of the UN Charter and the Statute of the
Court. It stated, inter alia:
"This objection reveals a confusion between the principles governing contentious
procedure and those which are applicable to Advisory Opinions. The consent of
States, parties to a dispute, is the basis of the Court's jurisdiction in contentious
cases. The situation is different in regard to advisory proceedings even where the
Request for an Opinion relates to a legal question actually pending between
States. The Court's reply is only of an advisory character: as such, it has no
binding force. It follows that no State, whether a Member of the United Nations or
not, can prevent the giving of an Advisory Opinion which the United Nations
considers to be desirable in order to obtain enlightenment as to the course of
action it should take. The Court's Opinion is given not to the States, but to the
organ which is entitled to request it; the reply of the Court, itself an 'organ of the
United Nations', represents its participation in the activities of the organization,
and, in principle, should not be refused." (1.C. J. Reports 1950, p. 71 .)
BUT CONSENT OF STATE MAY STILL BE RELEVANT IN CERTAIN CIRCUMSTANCES.
32. The Court, it is true, affirmed in this pronouncement that its competence to give an
opinion did not depend on the consent of the interested States, even when the case
concerned a legal question actually pending between them. However, the Court proceeded
not merely to stress its judicial character and the permissive nature of Article 65, paragraph
1, of the Statute but to examine, specifically in relation to the opposition of some of the
interested States, the question of the judicial propriety of giving the opinion. Moreover, the
Court emphasized the circumstances differentiating the case then under consideration
from the Status of Eastern Carelia case and explained the particular grounds which led it to
conclude that there was no reason requiring the Court to refuse to reply to the request.
Thus the Court recognized that lack of consent might constitute a ground for declining to
give the opinion requested if, in the circumstances of a given case, considerations of
judicial propriety should oblige the Court to refuse an opinion. In short, the consent of an
interested State continues to be relevant, not for the Court's competence, but for the
appreciation of the propriety of giving an opinion.
33. In certain circumstances, therefore, the lack of consent of an interested State may
render the giving of an advisory opinion incompatible with the Court's judicial character. An
instance of this would be when the circumstances disclose that to give a reply would have
the effect of circumventing the principle that a State is not obliged to allow its disputes to
be submitted to judicial settlement without its consent. If such a situation should arise, the
powers of the Court under the discretion given to it by Article 65, paragraph 1, of the
Statute, would afford sufficient legal means to ensure respect for the fundamental principle
of consent to jurisdiction.
IN THE PRESENT CASE, THERE IS A LEGAL CONTROVERSY WHICH AROSE
DURING GA PROCEEDINGS, NOT IN BILATERAL RELATIONS.
34. The situation existing in the present case is not, however, the one envisaged above.
There is in this case a legal controversy, but one which arose during the proceedings of the
GA and in relation to matters with which it was dealing. It did not arise independently in
bilateral relations. In a communication addressed on 10 November 1958 to the UN Sec-
Gen, Spain stated: "Spain possesses no non-self-governing territories, since the territories
subject to its sovereignty in Africa are, in accordance with the legislation now in force,
considered to be and classified as provinces of Spain". This gave rise to the "most explicit
reservations" of the Government of Morocco, which, in a communication to the Sec-Gen of
63
20 November 1958, stated that it "claim[ed] certain African territories at present under
Spanish control as an integral part of Moroccan national territory".
STATEMENTS OF SPAIN AND MOROCCO.
35. On 12 October 1961, after Spain had agreed to transmit information on the territories in
question, Morocco formulated in the Fourth Committee of the GA "the strongest
reservations" regarding any information Spain might submit concerning them. "Those cities
and regions", it said, "formed an integral part of Morocco and the statutes at present
governing them were contrary to international law and incompatible with the territorial
sovereignty and integrity of Morocco". In answering these reservations, Spain drew
attention, with reference to Western Sahara, to the statement it had made on 10 October
1961 in the General Assembly: ". . . the historic presence of Spanish citizens on the West
Coast of Africa, not subject to the sovereignty of any other country and devoting
themselves largely to fishing, goes back a very long way and has been confirmed by
international law . . . [T]he rulers of Morocco have recognized on repeated occasions that
their sovereignty does not extend to the coasts of the present Spanish province of the
Sahara".
DEVELOPMENT OF THE CONTROVERSY IN THE GA.
36. The legal controversy which thus arose in the General Assembly in regard to Western
Sahara remained in a latent state from 1966 to 1974, a period in which Morocco, without
abandoning its legal position, accepted the application of the principle of self-
determination. The controversy reappeared when Morocco directly presented to Spain its
legal claim in the above communication of 23 September 1974, and continued to subsist;
this communication, however, did not have the effect of detaching the dispute from the
decolonization proceedings of the UN. The submission of the issue to the Court was
explicitly proposed by Morocco "in order to guide the United Nations towards a final
solution of the problem of Western Sahara.. .".
MAURITANIA LAYS CLAIM AFTER BECOMING UN MEMBER.
37. After it became a Member in 1960, Mauritania put forward in the UN the claim that
Western Sahara was a part of its national territory. It was however prepared to acquiesce
in the will of the population and did not confront Spain with a direct legal claim parallel to
that of Morocco.
QUESTIONS IN THE REQUEST FRO ADVISORY OPINION DIFFERENT FROM THOSE
RAISED IN THE MOROCCAN PROPOSAL.
38. As previously noted, Spain considers that the terms of the Moroccan Note of 23
September 1974 and those of the request are substantially identical. This is not however
the case. The questions in the request differ materially from those raised in the Moroccan
proposal, in that the former introduces the issue of the ties of the territory with the
Mauritanian entity and places the case referred to the Court in a different context. In the
GA debates the claims of Mauritania and Morocco to legal ties appeared, in many
respects, as conflicting; in the oral proceedings before the Court they were described as
overlapping in certain areas rather than as conflicting. The interaction between these two
claims in respect of the same territory introduces, in either situation, a substantial
difference, going beyond a mere broadening in the scope of the questions posed. In any
event, the terms of the request contain a proviso concerning the application of GA
resolution 1514 (XV). Thus the legal questions of which the Court has been seised are
located in a broader frame of reference than the settlement of a particular dispute and
embrace other elements. These elements, moreover, are not confined to the past but are
also directed to the present and the future.
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OBJECT OF GA’S REQUEST: OPINION AS ASSISTANCE IN THE EXERCISE OF
FUNCTIONS RE DECOLONIZATION.
39. The above considerations are pertinent for a determination of the object of the present
request. The object of the GA has not been to bring before the Court, by way of a request
for advisory opinion, a dispute or legal controversy, in order that it may later, on the basis
of the Court's opinion, exercise its powers and functions for the peaceful settlement of that
dispute or controversy. The object of the request is an entirely different one: to obtain from
the Court an opinion which the GA deems of assistance to it for the proper exercise of its
functions concerning the decolonization of the territory.
40. The GA, as appears from paragraph 3 of resolution 3292 (XXIX), has asked the Court
for an opinion so as to be in a position to decide "on the policy to be followed in order to
accelerate the decolonization process in the territory . . . in the best possible conditions, in
the light of the advisory opinion.. .". The true object of the request is also stressed in the
preamble of resolution 3292 (XXIX), where it is stated "that it is highly desirable that the
General Assembly, in order to continue the discussion of this question at its thirtieth
session, should receive an advisory opinion on some important legal aspects of the
problem".
LEGITIMATE INTEREST OF GA CANNOT BE AFFECTED BY MOROCCO’S
PROPOSAL TO SUBMIT TO ADJUDICATION.
41. What the Court said in a similar context, in its Advisory Opinion on Reservations to the
Convention on the Prevention and Punishment of the Crime of Genocide, applies also to
the present case: "The object of this request for an Opinion is to guide the United Nations
in respect of its own action." (I.C.J. Reports 1951, p. 19.) The legitimate interest of the GA
in obtaining an opinion from the Court in respect of its own future action cannot be affected
or prejudiced by the fact that Morocco made a proposal, not accepted by Spain, to submit
for adjudication by the Court a dispute raising issues related to those contained in the
request. It is difficult to see on what basis the sending of the Note would make Spain's
consent necessary for the reference of the questions to the Court, if that consent would not
otherwise be needed.
ISSUE BETWEEN MOROCCO AND SPAIN IS ABOUT THE RIGHTS OF THE
MOROCCO OVER THE TERRITORY AT THE TIME OF THE COLONIZATION.
42. Furthermore, the origin and scope of the dispute, as above described, are important in
appreciating, from the point of view of the exercise of the Court's discretion, the real
significance in this case of the lack of Spain's consent. The issue between Morocco and
Spain regarding Western Sahara is not one as to the legal status of the territory today, but
one as to the rights of Morocco over it at the time of colonization. The settlement of this
issue will not affect the rights of Spain today as the administering Power, but will assist the
General Assembly in deciding on the policy to be followed in order to accelerate the
decolonization process in the territory. It follows that the legal position of the State which
has refused its consent to the present proceedings is not "in any way compromised by the
answers that the Court may give to the questions put to it" (Znterpretation of Peace
Treaties with Bulgaria, Hungary and Romania, First Phase, Z.C.J. Reports 1950, p. 72).
SECOND OBESERVATION: DISPUTE IS TERRITORIAL SO STATE CONSENT IS
REQUIRED; COURT DISAGREES.
43. A second way in which Spain has put the objection of lack of its consent is to maintain
that the dispute is a territorial one and that the consent of a State to adjudication of a
dispute concerning the attribution of territorial sovereignty is always necessary. The
64
questions in the request do not however relate to a territorial dispute, in the proper sense
of the term, between the interested States. They do not put Spain's present position as the
administering Power of the territory in issue before the Court: resolution 3292 (XXIX) itself
recognizes the current legal status of Spain as administering Power. Nor is in issue before
the Court the validity of the titles which led to Spain's becoming the administering Power of
the territory, and this was recognized in the oral proceedings. The Court finds that the
request for an opinion does not call for adjudication upon existing territorial rights or
sovereignty over territory. Nor does the Court's Order of 22 May 1975 convey any
implication that the present case relates to a claim of a territorial nature.
THIRD OBSERVATION: COURT CANNOT FULFIL THE REQUIREMENTS OF GOOD
ADMINISTRATION OF JUSTICE AS REGARDS THE DETERMINATION OF THE
FACTS; COURT COMPARES WITH THE STTAUS OF THE EASTERN CARELIA CASE
AND FOUND THAT CASE DIFFERENT FROM THE PRESENT ONE.
44. A third way in which Spain, in its written statement, has presented its opposition to the
Court's pronouncing upon the questions posed in the request is to maintain that in this
case the Court cannot fulfil the requirements of good administration of justice as regards
the determination of the facts. The attribution of territorial sovereignty, it argues, usually
centres on material acts involving the exercise of that sovereignty, and the consideration of
such acts and of the respective titles inevitably involves an exhaustive determination of
facts. In advisory proceedings there are properly speaking no parties obliged to furnish the
necessary evidence, and the ordinary rules concerning the burden of proof can hardly be
applied. That being so, according to Spain, the Court should refrain from replying in the
absence of facts which are undisputed, since it would not be in possession of sufficient
information such as would be available in adversary proceedings.
45. Considerations of this kind played a role in the case concerning the Status of Eastern
Carelia. In that instance, the non-participation of a State concerned in the case was a
secondary reason for the refusal to answer. The Permanent Court of International Justice
noted the difficulty of making an enquiry into facts concerning the main point of a
controversy when one of the parties thereto refused to take part in the proceedings.
46. Although in that case the refusal of one State to take part in the proceedings was the
cause of the inadequacy of the evidence, it was the actual lack of "materials sufficient to
enable it to arrive at any judicial conclusion upon the question of fact" (P.C.Z.J., Series B,
No, 5, p. 28) which was considered by the Permanent Court, for reasons of judicial
propriety, to prevent it from giving an opinion. Consequently, the issue is whether the Court
has before it sufficient information and evidence to enable it to arrive at a judicial
conclusion upon any disputed questions of fact the determination of which is necessary for
it to give an opinion in conditions compatible with its judicial character.
47. The situation in the present case is entirely different from that with which the
Permanent Court was confronted in the Status of Eastern Carelia case. Mauritania,
Morocco and Spain have furnished very extensive documentary evidence of the facts
which they considered relevant to the Court's examination of the questions posed in the
request, and each of these countries, as well as Algeria and Zaire, have presented their
views on these facts and on the observations of the others. The Secretary-General has
also furnished a dossier of documents concerning the discussion of the question of
Western Sahara in the competent United Nations organs. The Court therefore considers
that the information and evidence before it are sufficient to enable it to arrive at a judicial
conclusion concerning the facts which are relevant to its opinion and necessary for replying
to the two questions posed in the request.
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SPAIN CLAIMS THE REPLY FROM THE COURT WOULD BE DEVOID OF ANY
PURPOSE; MOROCCO, MAURITANIA, ALGERIA COUNTER.
48. The Court has been asked to state that it ought not to examine the substance of the
present request, since the reply to the questions put to it would be devoid of purpose.
Spain considers that the UN has already affirmed the nature of the decolonization process
applicable to Western Sahara in accordance with GA resolution 1514 (XV); that the method
of decolonization-a consultation of the indigenous population by means of a referendum to
be conducted by the administering Power under UN auspices-has been settled by the GA.
According to Spain, the questions put to the Court are therefore irrelevant, and the
answers cannot have any practical effect.
49. Morocco has expressed the view that the GA has not finally settled the principles and
techniques to be followed, being free to choose from a wide range of solutions in the light
of two basic principles: that of self-determination indicated in paragraph 2 of resolution
1514 (XV), and the principle of the national unity and territorial integrity of countries,
enunciated in paragraph 6 of the same resolution. Morocco points out that decolonization
may come about through the reintegration of a province with the mother country from
which it was detached in the process of colonization. Thus, in the view of Morocco, the
questions are relevant because the Court's answer will place the GA in a better position to
choose the process best suited for the decolonization of the territory.
50. Mauritania maintains that the principle of self-determination cannot be dissociated from
that of respect for national unity and territorial integrity; that the GA examines each
question in the context of the situations to be regulated; in several instances, it has been
induced to give priority to territorial integrity, particularly in situations where the territory had
been created by a colonizing Power to the detriment of a State or country to which the
territory belonged. Mauritania, pointing out that resolutions 1541 (XV) and 2625 (XXV)
have laid down various methods and possibilities for decolonization, considers, in view of
the foregoing, that the questions put to the Court are relevant and should be answered.
51. Algeria states that the self-determination of peoples is the fundamental principle
governing decolonization, enshrined in Articles 1 and 55 of the Charter and in GA
resolution 1514 (XV); that, through successive resolutions which recommend that the
population should be consulted as to its own future, the GA has recognized the right of the
people of Western Sahara to exercise free and genuine self-determination; and that the
application of self-determination in the framework of such consultation has been accepted
by the administering Power and supported by regional institutions and international
conferences, as well as endorsed by the countries of the area. In the light of these
considerations, Algeria is of the view that the Court should answer the request and, in
doing so, should not disregard the fact that the GA, in resolution 3292 (XXIX), has itself
confirmed its will to apply resolution 1514 (XV), that is to Say, a system of decolonization
based on the self determination of the people of Western Sahara.
COURT EXAMINES APPLICABLE PRINCIPLES OF DECOLONIZATION.
52. Extensive argument and divergent views have been presented to the Court as to how,
and in what form, the principles of decolonization apply in this instance, in the light of the
various GA resolutions on decolonization in general and on decolonization of the territory
of Western Sahara in particular. This matter is not directly the subject of the questions put
to the Court, but it is raised as a basis for an objection to the Court's replying to the
request. In any event, the applicable principles of decolonization call for examination by the
Court, in that they are an essential part of the framework of the questions contained in the
65
request. The reference in those questions to a historical period cannot be understood to
fetter or
hamper the Court in the discharge of its judicial functions. That would not be consistent
with the Court's judicial character; for in the exercise of its functions it is necessarily called
upon to take into account existing rules of international law which are directly connected
with the terms of the request and indispensable for the proper interpretation and
understanding of its Opinion (cf. 1. C. J. Reports 1962, p. 157).
53. The proposition that those questions are academic and legally irrelevant is intimately
connected with their object, the determination of which requires the Court to consider, not
only the whole text of resolution 3292 (XXIX), but also the general background and the
circumstances which led to its adoption. This is so because resolution 3292 (XXIX) is the
latest of a long series of GA resolutions dealing with Western Sahara. All these resolutions,
including resolution 3292 (XXIX), were drawn up in the general context of the policies of
the GA regarding the decolonization of non-self-governing territories. Consequently, in
order to appraise the correctness or otherwise of Spain's view as to the object of the
questions posed, it is necessary to recall briefly the basic principles governing the
decolonization policy of the General Assembly, the general lines of previous General
Assembly resolutions on the question of Western Sahara, and the preparatory work and
context of resolution 3292 (XXIX).
PRINCIPLES OF SELF DETREMINATION APPLICABLE TO NON-SELF GOVERNING
TERRITORIES.
(a) UN Charter
54. The UN Charter in Article 1, paragraph 2, indicates, as one of the purposes of the UN:
"To develop friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples . . ." This purpose is further developed in Articles
55 and 56 of the Charter. Those provisions have direct and particular relevance for non-
self-governing territories, which are dealt with in Chapter XI of the Charter. As the Court
stated in its Advisory Opinion of 21 June 1971 on The Legal Consequences for States of
the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1 970):
". . . the subsequent development of international law in regard to non-self-
governing territories, as enshrined in the Charter of the United Nations, made the
principle of self-determination applicable to all of them" (I.C.J. Reports 1971, p.
31).
(b) DECLARATION ON THE GRANTING OF INDEPENDENCE TO COLONIAL
COUNTRIES AND PEOPLES, GENERAL ASSEMBLY RESOLUTION 1514 (XV).
55. The principle of self-determination as a right of peoples, and its application for the
purpose of bringing all colonial situations to a speedy end, were enunciated in the
Declaration on the Granting of Independence to Colonial Countries and Peoples, General
Assembly resolution 1514 (XV). In this resolution the General Assembly proclaims "the
necessity of bringing to a speedy and unconditional end colonialism in al1 its forms and
manifestations". To this end the resolution provides inter alia:
"2. All peoples have the right to self-determination; by virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development.
5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or
all other territories which have not yet attained independence, to transfer all
powers to the peoples of those territories, without any conditions or reservations,
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in accordance with their freely expressed will and desire, without any distinction
as to race, creed or colour, in order to enable them to enjoy complete
independence and freedom.
6. Any attempt aimed at the partial or total disruption of the national unity and the
territorial integrity of a country is incompatible with the purpose and principles of
the Charter of the United Nations."
The above provisions, in particular paragraph 2, thus confirm and ernphasize that the
application of the right of self-determination requires a free and genuine expression of the
will of the peoples concerned.
56. The Court had occasion to refer to this resolution in the abovementioned Advisory
Opinion of 21 June 1971. Speaking of the development of international law in regard to
non-self-governing territories, the Court there stated:
"A further important stage in this development was the Declaration on the
Granting of Independence to Colonial Countries and Peoples (General Assembly
resolution 1514 (XV) of 14 December 1960), which embraces all peoples and
territories which 'have not yet attained independence'." (I.C. J. Reports 1971, p.
31)
It went on to state:
". . . the Court must take into consideration the changes which have occurred in
the supervening half-century, and its interpretation cannot remain unaffected by
the subsequent development of law, through the Charter of the United Nations
and by way of customary law" (ibid.).
The Court then concluded:
"In the domain to which the present proceedings relate, the last fifty years, as
indicated above, have brought important developments. These developments
leave little doubt that the ultimate objective of the sacred trust was the self-
determination and independence of the peoples concerned. In this domain, as
elsewhere, the corpus juris gentium has been considerably enriched, and this the
Court, if it is faithfully to discharge its functions, may not ignore." (Ibid., pp. 31 f.)
(c) GA RESOLUTION 1541 (XV).
57. GA resolution 1514 (XV) provided the basis for the process of decolonization which has
resulted since 1960 in the creation of many States which are today UN Members. It is
complemented in certain of its aspects by GA resolution 1541 (XV), which has been
invoked in the present proceedings. The latter resolution contemplates for non-self-
governing territories more than one possibility, namely:
(a) emergence as a sovereign independent State;
(b) free association with an independent State; or
(c) integration with an independent State.
At the same time, certain of its provisions give effect to the essential feature of the right of
self-determination as established in resolution 1514 (XV). Thus principle VII of resolution
1541 (XV) declares that: "Free association should be the result of a free and voluntary
choice by the peoples of the territory concerned expressed through informed and
democratic processes." Again, principle IX of resolution 1541 (XV) declares that:
"Integration should have come about in the following circumstances:
(b) The integration should be the result of the freely expressed wishes of the
territory's peoples acting with full knowledge of the change in their status, their
wishes having been expressed through informed and democratic processes,
impartially conducted and based on universal adult suffrage. The United Nations
could, when it deems it necessary, supervise these processes."
66
(d) GA RESOLUTION 2625 (XXV)
58. General Assembly resolution 2625 (XXV), "Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in accordance with the
Charter of the United Nations, -- to which reference was also made in the proceedings --
mentions other possibilities besides independence, association or integration. But in doing
so it reiterates the basic need to take account of the wishes of the people concerned:
"The establishment of a sovereign and independent State, the free association or
integration with an independent State or the emergence into any other political
status freely determined by a people constitute modes of implementing the right
of self-determination by that people." (Emphasis added.)
Resolution 2625 (XXV) further provides that:
"Every State has the duty to promote, through joint and separate action,
realization of the principle of equal rights and self-determination of peoples in
accordance with the provisions of the Charter, and to render assistance to the
United Nations in carrying out the responsibilities entrusted to it by the Charter
regarding the implementation of the principle, in order:
(b) To bring a speedy end to colonialism, having due regard to the freely
expressed will of the peoples concerned."
VALIDITY OF PRINCIPLES NOT AFFECTED WITH DISPENSATION OF
CONSULTATION BY THE GA IN CERTAIN CASES.
59. The validity of the principle of self-determination, defined as the need to pay regard to
the freely expressed will of peoples, is not affected by the fact that in certain cases the GA
has dispensed with the requirement of consulting the inhabitants of a given territory. Those
instances were based either on the consideration that a certain population did not
constitute a "people" entitled to self-determination or on the conviction that a consultation
was totally unnecessary, in view of special circumstances.
COURT NOW TURNS TO THE SPECIFIC RESOLUTIONS OF WESTERN SAHARA’S
DECOLONIZATION.
60. Having set out the basic principles governing the decolonization policy of the GA, the
Court now turns to those resolutions which bear specifically on the decolonization of
Western Sahara. Their analysis is necessary in order to determine the validity of the view
that the questions posed in resolution 3292 (XXIX) lack object. In particular it is pertinent to
compare the different ways in which the GA resolutions adopted from 1966 to 1969 dealt
with the questions of Ifni and Western Sahara.
61. In 1966, in the Special Committee on the Situation with regard to the Implementation of
the Declaration on the Granting of Independence to Colonial Countries and Peoples, Spain
expressed itself in favour of the decolonization of Western Sahara through the exercise by
the population of the territory of their right to self-determination. At that time this suggestion
received the support of Mauritania and the assent of Morocco. As to Ifni, Spain suggested
establishing contact with Morocco as a preliminary step. Morocco stated that the
decolonization of Ifni should be brought into line with paragraph 6 of resolution 1514 (XV).
(a) RESOLUTION 2229 (XXI)
62. On the basis of the proposals of the Special Committee, the GA adopted resolution
2229 (XXI), which dealt differently with Ifni and Western Sahara. In the case of Ifni, the
resolution:
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"3. Requests the administering Power to take immediately the necessary steps to
accelerate the decolonization of Ifni and to determine with the Government of
Morocco, bearing in mind the aspirations of the indigenous population,
procedures for the transfer of powers in accordance with the provisions of
General Assembly resolution 1514 (XV)."
In the case of Western Sahara, the resolution:
"4. Invites the administering Power to determine at the earliest possible date, in
conformity with the aspirations of the indigenous people of Spanish Sahara and
in consultation with the Governments of Mauritania and Morocco and any other
interested Party, the procedures for the holding of a referendum under United
Nations auspices with a view to enabling the indigenous population of the
Territory to exercise freely its right,to self-determination . . ."
In respect of this territory the resolution also set out conditions designed to ensure the free
expression of the will of the people, including the provision by the administering Power of
"facilities to a United Nations mission so that it may be able to participate actively in the
organization and holding of the referendum".
(b) RESOLUTIONS 2354 (XXII) AND 2428 (XXIII)
63. Resolution 2229 (XXI) was the model for a series of resolutions the provisions of which
regarding Western Sahara were in their substance almost identical. Only a few minor
variations were introduced. In 1967 the operative part of resolution 2354 (XXII) was divided
into two sections, one dealing with Ifni and the other with Western Sahara; and in 1968
resolution 2428 (XXIII), similarly divided, included a preamble noting "the difference in
nature of the legal status of these two Territories, as well as the processes of
decolonization envisaged by General Assembly resolution 2354 (XXII) for these
Territories". Since 1969 Ifni, having been decolonized by transfer to Morocco, has no
longer appeared in the resolutions of the Assembly.
(c) RESOLUTIONS 2983 (XXVII) AND 3162 (XXVIII)
64. In subsequent years, the GA maintained its approach to the question of Western
Sahara, and reiterated in more pressing terms the need to consult the wishes of the people
of the territory as to their political future. Indeed resolution 2983 (XXVII) of 1972 expressly
reaffirms "the responsibility of the United Nations in all consultations intended to lead to the
free expression of the wishes of the people". Resolution 3162 (XXVIII) of 1973, while
deploring the fact that the UN mission whose active participation in the organization and
holding of the referendum had been recommended since 1966 had not yet been able to
visit the territory, reaffirms the GA's:
". . . attachment to the principle of self-determination and its concern to see that
principle applied with a framework that will guarantee the inhabitants of the
Sahara under Spanish domination free and authentic expression of their wishes,
in accordance with the relevant United Nations resolutions on the subject".
ALL RESOLUTIONS ADOPTED WITH MOROCCO AND MAURITANIA LAYING CLAIM
ON THE TERRIRTORY, AASENTED TO A REFERENDUM.
65. All these resolutions from 1966 to 1973 were adopted in the face of reminders by
Morocco and Mauritania of their respective claims that Western Sahara constituted an
integral part of their territory. At the same time Morocco and Mauritania assented to the
holding of a referendum. These States, among others, alleging that the recommendations
of the GA were being disregarded by Spain, emphasized the need for the referendum to be
held in satisfactory conditions and under the supervision of the UN.
67
RESOLUTION 3292 (XXIX) URGES SPAIN TO POSTPONE REFERENDUM;
REFERENCES MADE TO RESOLUTION 1514.
66. A significant change was introduced in resolution 3292 (XXIX) by which the Court is
seised of the present request for an advisory opinion. The administering Power is urged in
paragraph 3 of the resolution "to postpone the referendum it contemplated holding in
Western Sahara". The GA took special care, however, to insert provisions making it clear
that such a postponement did not prejudice or affect the right of the people of Western
Sahara to self-determination in accordance with resolution 1514 (XV).
67. The provisions in question contain three express references to resolution 1514 (XV). In
the GA debates the representative of the Ivory Coast, one of the sponsors of resolution
3292 (XXIX), after describing the text before the GA as the result of a compromise, called
attention to these references to resolution 1514 (XV), explaining that they had been
introduced into the original text in order to enable the GA to be consistent. In the light of the
terms of resolution 3292 (XXIX) this must be understood as indicating the intention to
ensure the consistency of that resolution with previous resolutions of the GA.
68. The third paragraph in the preamble of resolution 3292 (XXIX) reaffirms "the right of the
population of the Spanish Sahara to self determination in accordance with resolution 1514
(XV)". In paragraph 1 of the operative part, where the questions asked of the Court are
formulated, the Court is requested, "without prejudice to the application of the principles
embodied in General Assembly resolution 1514 (XV)", to give its advisory opinion. This
mention of resolution 1514 (XV) is thus made to relate to the actual request for the opinion.
The reference to the application of the principles embodied in resolution 1514 (XV) has
necessarily to be read in the light of the GA's reaffirmation in the third paragraph of the
preamble of "the right of the population of the Spanish Sahara to self-determination in
accordance with resolution 1514 (XV)".
69. In paragraph 3 of the operative part it is urged that the referendum be postponed "until
the General Assembly decides on the policy to be followed in order to accelerate the
decolonization process in the territory, in accordance with resolution 1514 (XV)". This third
mention of resolution 1514 (XV), which has also to be read in the light of the preamble,
thus refers to it as governing "the decolonization process in the territory" and "the policy to
be followed in order to accelerate" that process.
70. In short, the decolonization process to be accelerated which is envisaged by the GA in
this provision is one which will respect the right of the population of Western Sahara to
determine their future political status by their own freely expressed will. This right is not
affected by the present request for an advisory opinion, nor by resolution 3292 (XXIX); on
the contrary, it is expressly reaffirmed in that resolution. The right of that population to self-
determination constitutes therefore a basic assumption of the questions put to the Court.
EFFECT OF COURT’S ADVISORY OPINION; COURT FINDS NO COMPELLING
REASON NOT TO GIVE ADVISORY OPINION.
71. It remains to be ascertained whether the application of the right of self-determination to
the decolonization of Western Sahara renders without object the two specific questions put
to the Court. The Court has already concluded that the two questions must be considered
in the whole context of the decolonization process. The right of self-determination leaves
the GA a measure of discretion with respect to the forms and procedures by which that
right is to be realized.
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72. An advisory opinion of the Court on the legal status of the territory at the time of
Spanish colonization and on the nature of any ties then existing with Morocco and with the
Mauritanian entity may assist the GA in the future decisions which it is called upon to take.
The GA has referred to its intention to 'continue its discussion of this question" in the light
of the Court's advisory opinion. The Court, when considering the object of the questions in
accordance with the text of resolution 3292 (XXIX), cannot fail to note this statement. As to
the future action of the GA, various possibilities exist, for instance with regard to
consultations between the interested States, and the procedures and guarantees required
for ensuring a free and genuine expression of the will of the people. In general, an opinion
given by the Court in the present proceedings will furnish the GA with elements of a legal
character relevant to its further treatment of the decolonization of Western Sahara.
73. In any event, to what extent or degree its opinion will have an impact on the action of
the GA is not for the Court to decide. The function of the Court is to give an opinion based
on law, once it has come to the conclusion that the questions put to it are relevant and
have a practical and contemporary effect and, consequently, are not devoid of object or
purpose.
74. In the light of the considerations set out in paragraphs 23-73 above, the Court finds no
compelling reason, in the circumstances of the present case, to refuse to comply with the
request by the GA for an advisory opinion.
COURT NOW ADDRESSES THE QUESTIONS.
75. Having established that it is seised of a request for advisory opinion which it is
competent to entertain and that it should comply with that request, the Court will now
examine the two questions which have been referred to it by General Assembly resolution
3292 (XXIX). These questions are so formulated that an answer to the second is called for
only if the answer to the first is in the negative: (see the questions in the 1st page of this
case digest)
The suggestion has been made that the two questions are so far connected in substance
that an affirmative answer could scarcely be given to the first question without also
investigating the answer to be given to the second. It is possible, however, that, in the
actual circumstances of the case, a negative answer to the first question may be called for
irrespective of the Court's conclusions regarding the answer to be given to the second.
Accordingly, the two questions will be taken up separately and in turn.
PRELIMINARY ISSUE: “TIME OF COLONIZATION BY SPAIN”.
76. The request, by its express terms, relates Question 1 specifically to the time of
colonization of Western Sahara (Rio de Oro and Sakiet El Hamra) by Spain. Similarly, by
making the second question conditional upon the answer to the first and by formulating it in
the past tense, the request also unmistakably relates the second question to that same
period. Consequently, before embarking on its examination of the questions, the Court has
to determine what, for the purposes of the present Opinion, should be considered "the time
of colonization by Spain". In this connection, it emphasizes that it is not here concerned to
establish a "critical date" in the sense given to this term in territorial disputes; for the
questions do not ask the Court to adjudicate between conflicting legal titles to Western
Sahara. It is here concerned only to identify the period of the historical context in which the
request places the questions referred to the Court and the answers to be given to those
questions.
77. In the view of the Court, for the purposes of the present Opinion, "the time of
colonization by Spain" may be considered as the period beginning in 1884, when Spain
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proclaimed a protectorate over the Rio de Oro. It is true that Spain has mentioned certain
earlier acts of alleged display of Spanish sovereignty in the fifteenth and sixteenth
centuries. But it has explained that it did so only to enlighten the Court as to the remote
antecedents of the Spanish presence on the west-African Coast, and not to prove any
continuity between those acts and "the time of colonization by Spain", which it conceded
should be regarded as beginning in 1884. In any event, the information before the Court
convinces it that the period beginning in 1884 represents "the time of colonization by
Spain" of Western Sahara within the meaning of the request and constitutes the temporal
context within which the two questions are placed by the terms of the request.
78. Although the Court has thus been asked to render an opinion solely upon the legal
status and legal ties of Western Sahara as these existed at the period beginning in 1884,
this does not mean that any information regarding its legal status or legal ties at other
times is wholly without relevance for the purposes of this Opinion. It does, however, mean
that such information has present relevance only in so far as it may throw light on the
questions as to what were the legal status and the legal ties of Western Sahara at that
period.
“TERRA NULLIUS” AND WHETHER WESTERN SAHARA WAS TERRA NULLIUS AT
THE TIME OF COLONIZATION OF SPAIN.
79. Turning to Question I, the Court observes that the request specifically locates the
question in the context of "the time of colonization by Spain", and it therefore seems clear
that the words "Was Western Sahara . . . a territory belonging to no one (terra nullius)?"
have to be interpreted by reference to the law in force at that period. The expression "terra
nullius" was a legal term of art employed in connection with "occupation" as one of the
accepted legal methods of acquiring sovereignty over territory. "Occupation" being legally
an original means of peaceably acquiring sovereignty over territory otherwise than by
cession or succession, it was a cardinal condition of a valid "occupation" that the territory
should be terra nullius- a territory belonging to no-one - at the time of the act alleged to
constitute the "occupation" (cf. Legal Status of Eastern Greenland, P.C.I.J., Series A/B, No.
53, pp. 44 f. and 63 f.). In the view of the Court, therefore, a determination that Western
Sahara was a "terra nullius" at the time of colonization by Spain would be possible only if it
were established that at that time the territory belonged to no-one in the sense that it was
then open to acquisition through the legal process of "occupation".
TERRITORIES WITH TRIBES, SOCIALLY/POLITICALLY ORGANIZED PEOPLES NOT
REGARDED AS TERRA NULLIUS; SOVEREIGNTY ACQUIRED THRU AGREEMENTS
WITH LOCAL RULERS.
80. Whatever differences of opinion there may have been among jurists, the State practice
of the relevant period indicates that territories inhabited by tribes or peoples having a social
and political organization were not regarded as terrae nullius. It shows that in the case of
such territories the acquisition of sovereignty was not generally considered as effected
unilaterally through "occupation" of terra nullius by original title but through agreements
concluded with local rulers. On occasion, it is true, the word "occupation" was used in a
non-technical sense denoting simply acquisition of sovereignty; but that did not signify that
the acquisition of sovereignty through such agreements with authorities of the country was
regarded as an "occupation" of a "terra nullius” in the proper sense of these terms. On the
contrary, such agreements with local rulers, whether or not considered as an actual
"cession" of the territory, were regarded as derivative roots of title, and not original titles
obtained by occupation of terrae nullius.
INFORMATION SHOWED THAT WESTERN SAHARA WAS NOT TERRA NULLIUS.
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81. In the present instance, the information furnished to the Court shows that at the time of
colonization Western Sahara was inhabited by peoples which, if nomadic, were socially
and politically organized in tribes and under chiefs competent to represent them. It also
shows that, in colonizing Western Sahara, Spain did not proceed on the basis that it was
establishing its sovereignty over terrae nullius. In its Royal Order of 26 December 1884, far
from treating the case as one of occupation of terra nullius, Spain proclaimed that the King
was taking the Rio de Oro under his protection on the basis of agreements which had been
entered into with the chiefs of the local tribes: the Order referred expressly to "the
documents which the independent tribes of this part of the coast" had "signed with the
representative of the Sociedad Espafiola de Africanistas", and announced that the King
had confirmed "the deeds of adherence" to Spain. Likewise, in negotiating with France
concerning the limits of Spanish territory to the north of the Rio de Oro, that is, in the
Sakiet El Hamra area, Spain did not rely upon any claim to the acquisition of sovereignty
over a terra nullius.
COURT HOLDS WESTERN SAHARA WAS NOT TERRA NULLIUS; UNECESSARY TO
PRONOUNCE CORRECTNESS OR OTHERWISE OF MOROCCO AND MAURITANIA’S
VIEWS SINCE IT CANNOT CHANGE THE HOLDING THAT THE TERRITORY IS NOT
TERRA NULLIUS.
82. Before the Court, differing views were expressed concerning the nature and legal value
of agreements between a State and local chiefs. But the Court is not asked by Question I
to pronounce upon the legal character or the legality of the titles which led to Spain
becoming the administering Power of Western Sahara. It is asked only to state whether
Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain
was "a territory belonging to no one (terra nullius)". As to this question, the Court is
satisfied that, for the reasons which it has given, its answer must be in the negative.
Accordingly, the Court does not find it necessary first to pronounce upon the correctness or
otherwise of Morocco's view that the territory was not terra nullius at that time because the
local tribes were then subject to the sovereignty of the Sultan of Morocco; nor upon
Mauritania's corresponding proposition that the territory was not terra nullius because the
local tribes, in its view, then formed part of the "Bilad Shinguitti" or Mauritanian entity. Any
conclusions that the Court may reach with respect to either of these points of view cannot
change the negative character of the answer which, for other reasons already set out, it
has found that it must give to Question I.
83. The Court's answer to Question I is, therefore, in the negative and, in accordance with
the terms of the request, it will now turn to Question II.
COURT, ON QUESTION II; WHAT “LEGAL TIES” MEANS.
84. Question II asks the Court to state "what were the legal ties between this territory" -
that is, Western Sahara- "and the Kingdom of Morocco and the Mauritanian entity". The
scope of this question depends upon the meaning to be attached to the expression "legal
ties" in the context of the time of the colonization of the territory by Spain. That expression,
however, unlike "terra nullius" in Question I, was not a term having in itself a very precise
meaning. Accordingly, in the view of the Court, the meaning of the expression "legal ties" in
Question II has to be found rather in the object and purpose of GA resolution 3292 (XXIX),
by which it was decided to request the present advisory opinion of the Court.
85. Analysis of this resolution, as the Court has already pointed out, shows that the two
questions contained in the request have been put to the Court in the context of
proceedings in the GA directed to the decolonization of Western Sahara in conformity with
resolution 1514 (XV) of 14 December 1960. During the discussion of this item, according to
69
resolution 3292 (XXIX), a legal controversy arose over the status of Western Sahara at the
time of its colonization by Spain; and the records of the proceedings make it plain that the
"legal controversy" in question concerned pretensions put forward, on the one hand, by
Morocco that the territory was then a part of the Sherifian State and, on the other, by
Mauritania that the territory then formed part of the Bilad Shinguitti or Mauritanian entity.
Accordingly, it appears to the Court that in Question II the words "legal ties between this
territory and the Kingdom of Morocco and the Mauritanian entity" must be understood as
referring to such "legal ties" as may affect the policy to be followed in the decolonization of
Western Sahara. In this connection, the Court cannot accept the view that the legal ties the
GA had in mind in framing Question II were limited to ties established directly with the
territory and without reference to the people who may be found in it. Such an interpretation
would unduly restrict the scope of the question, since legal ties are normally established in
relation to people.
MOROCCO AND MAURITANIA SHOULD SATISFY THAT LEGAL TIES EXISTED
BETWEEN W. SAHARA AND MOROCCO OR MAURITANIA AT THE TIME OF SPAIN’S
COLONIZATION.
86. The Court further observes that, inasmuch as Question II had its origin in the
contentions of Morocco and Mauritania, it was for them to satisfy the Court in the present
proceedings that legal ties existed between Western Sahara and the Kingdom of Morocco
or the Mauritanian entity at the time of the colonization of the territory by Spain.
CHARACTERISTICS OF W. SAHARA, AS BACKGROUND FOR DETERMINING LEGAL
TIES.
87. Western Sahara (Rio de Oro and Sakiet El Hamra) is a territory having very special
characteristics which, at the time of colonization by Spain, largely determined the way of
life and social and political organization of the peoples inhabiting it. In consequence, the
legal regime of Western Sahara, including its legal relations with neighbouring territories,
cannot properly be appreciated without reference to these special characteristics. The
territory forms part of the great Sahara desert which extends from the Atlantic Coast of
Africa to Egypt and the Sudan. At the time of its colonization by Spain, the area of this
desert with which the Court is concerned was being exploited, because of its low and
spasmodic rainfall, almost exclusively by nomads, pasturing their animals or growing crops
as and where conditions were favourable. It may be said that the territory, at the time of its
colonization, had a sparse population that, for the most part, consisted of nomadic tribes
the members of which traversed the desert on more or less regular routes dictated by the
seasons and the wells or water-holes available to them. In general, the Court was
informed, the right of pasture was enjoyed in common by these tribes; some areas suitable
for cultivation, on the other hand, were subject to a greater degree to separate rights.
Perennial water-holes were in principle considered the property of the tribe which put them
into commission, though their use also was open to all, subject to certain customs as to
priorities and the amount of water taken. Similarly, many tribes were said to have their
recognized burial grounds, which constituted a rallying point for themselves and for allied
tribes. Another feature of life in the region, according to the information before the Court,
was that inter-tribal conflict was not infrequent.
88. These various points of attraction of a tribe to particular localities were reflected in its
nomadic routes. But what is important for present purposes is the fact that the sparsity of
the resources and the spasmodic character of the rainfall compelled all those nomadic
tribes to traverse very wide areas of the desert. In consequence, the nomadic routes of
none of them were confined to Western Sahara; some passed also through areas of
southern Morocco, or of present-day Mauritania or Algeria, and some even through further
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countries. All the tribes were of the Islamic faith and the whole territory lay within the Dar
al-Islam. In general, authority in the tribe was vested in a sheikh, subject to the assent of
the "Juma'a", that is, of an assembly of its leading members, and the tribe had its own
customary law applicable in conjunction with the Koranic law. Not infrequently one tribe
had ties with another, either of dependence or of alliance, which were essentially tribal
rather than territorial, ties of allegiance or vassalage.
COURT NOTES THAT MOROCCO AND MAURITANIA’S CONTENTIONS RE LEGAL
TIES ARE DIFFERENT, OPPOSED.
89. It is in the context of such a territory and such a social and political organization of the
population that the Court has to examine the question of the "legal ties" between Western
Sahara and the Kingdom of Morocco and the Mauritanian entity at the time of colonization
by Spain. At the conclusion of the oral proceedings, as will be seen, Morocco and
Mauritania took up what was almost a common position on the answer to be given by the
Court on Question II. The contentions on which they respectively base the legal ties which
they claim to have had with Western Sahara at the time of its colonization by Spain are,
however, different and in some degree opposed. The Court will, therefore, examine them
separately.
MOROCCO CONTENDS IMMEMORIAL POSSESSION;SUPPORTING EVIDENCE.
90. Morocco's claim to "legal ties" with Western Sahara at the time of colonization by Spain
has been put to the Court as a claim to ties of sovereignty on the ground of an alleged
immemorial possession of the territory. This immemorial possession, it maintains, was
based not on an isolated act of occupation but on the public display of sovereignty,
uninterrupted and uncontested, for centuries.
91. In support of this claim Morocco refers to a series of events stretching back to the Arab
conquest of North Africa in the seventh century A.D., the evidence of which is,
understandably, for the most part taken from historical works. The far-flung, spasmodic and
often transitory character of many of these events renders the historical material somewhat
equivocal as evidence of possession of the territory now in question. Morocco, however,
invokes inter alia the decision of the Permanent Court of International Justice in the Legal
Status of Eastern Greenland case (P.C.I.J., Series A/B, No. 53). Stressing that during a
long period Morocco was the only independent State which existed in the north-west of
Africa, it points to the geographical contiguity of Western Sahara to Morocco and the
desert character of the territory. In the light of these considerations, it maintains that the
historical material suffices to establish Morocco's claim to a title based "upon continued
display of authority" (loc. cit., p. 45) on the same principles as those applied by the
Permanent Court in upholding Denmark's claim to possession of the
whole of Greenland.
DIFFICULTIES WITH MOROCCO’S CLAIM.
92. This method of formulating Morocco's claims to ties of sovereignty with Western
Sahara encounters certain difficulties. As the Permanent Court stated in the case
concerning the Legal Status of Eastern Greenland, a claim to sovereignty based upon
continued display of authority involves "two elements each of which must be shown to
exist: the intention and will to act as sovereign, and some actual exercise or display of
such authority" (ibid.,pp. 45 f). True, the Permanent Court recognized that in the case of
claims to sovereignty over areas in thinly populated or unsettled countries, "very little in the
way of actual exercise of sovereign rights" (ibid., p. 46) might be sufficient in the absence
of a competing claim. But, in the present instance, Western Sahara, if somewhat sparsely
populated, was a territory across which socially and politically organized tribes were in
70
constant movement and where armed incidents between these tribes were frequent. In the
particular circumstances outlined in paragraphs 87 and 88 above, the paucity of evidence
of actual display of authority unambiguously relating to Western Sahara renders it difficult
to consider the Moroccan claim as on all fours with that of Denmark in the Eastern
Greenland case. Nor is the difficulty cured by introducing the argument of geographical
unity or contiguity. In fact, the information before the Court shows that the geographical
unity of Western Sahara with Morocco is somewhat debatable, which also militates against
giving effect to the concept of contiguity. Even if the geographical contiguity of Western
Sahara with Morocco could be taken into account in the present connection, it would only
make the paucity of evidence of unambiguous display of authority with respect to Western
Sahara more difficult to reconcile with Morocco's claim to immemorial possession.
COURT GIVES IMPORTANCE TO EFFECTIVE DISPLAY OF AUTHORITY BY
MOROCCO AT TIME OF COLONIZATION SO IT CONSIDERS SPECIFIC EVIDENCE OF
MOROCCO REGARDING SUCH.
93. In the view of the Court, however, what must be of decisive importance in determining
its answer to Question II is not indirect inferences drawn from events in past history but
evidence directly relating to effective display of authority in Western Sahara at the time of
its colonization by Spain and in the period immediately preceding that time (cf. Minquiers
and Ecrehos, Judgment, I.C.J. Reports 1953, p. 57). As Morocco has also adduced
specific evidence relating to the time of colonization and the period preceding it, the Court
will now consider that evidence.
COURT CONSIDERS SPECIAL STRUCTURE OF THE SHERIFIAN STATE.
94. Morocco requests that, in appreciating the evidence, the Court should take account of
the special structure of the Sherifian State. No rule of international law, in the view of the
Court, requires the structure of a State to follow any particular pattern, as is evident from
the diversity of the forms of State found in the world today. Morocco's request is therefore
justified. At the same time, where sovereignty over territory is claimed, the particular
structure of a State may be a relevant element in appreciating the reality or otherwise of a
display of State activity adduced as evidence of that sovereignty.
THE SHERIFIAN STATE.
95. That the Sherifian State at the time of the Spanish colonization of Western Sahara was
a State of a special character is certain. Its special character consisted in the fact that it
was founded on the common religious bond of Islam existing among the peoples and on
the allegiance of various tribes to the Sultan, through their caids or sheikhs, rather than on
the notion of territory. Common religious links have, of course, existed in many parts of the
world without signifying a legal tie of sovereignty or subordination to a ruler. Even the Dar
al-Islam, as Morocco itself pointed out in its oral statement, knows and then knew separate
States within the common religious bond of Islam. Political ties of allegiance to a ruler, on
the other hand, have frequently formed a major element in the composition of a State.
Such an allegiance, however, if it is to afford indications of the ruler's sovereignty, must
clearly be real and manifested in acts evidencing acceptance of his political authority.
Otherwise, there will be no genuine display or exercise of State authority. lt follows that the
special character of the Moroccan State and the special forms in which its exercise of
sovereignty may, in consequence, have expressed itself, do not dispense the Court from
appreciating whether at the relevant time Moroccan sovereignty was effectively exercised
or displayed in Western Sahara.
96. It has been stated before the Court, and not disputed in the course of the proceedings,
that at the relevant period the Moroccan State consisted partly of what was called the Bled
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Makhzen, areas actually subject to the Sultan, and partly of what was called the Bled Siba,
areas in which de facto the tribes were not submissive to the Sultan. Morocco states that
the two expressions, Bled Makhzen and Bled Siba, merely described two types of
relationship between the Moroccan local authorities and the central power, not a territorial
separation; and that the existence of these different types did not affect the unity of
Morocco. Because of a common cultural heritage, the spiritual authority of the Sultan was
always accepted. Thus the difference between the Bled Makhzen and the Bled Siba,
Morocco maintains, did not reflect a wish to challenge the existence of the central power
so much as the conditions for the exercise of that power; and the Bled Siba was, in
practice, a way of affecting an administrative decentralization of authority. Against this view
it is stated that what characterized the Bled Siba was that it was not administered by the
Makhzen; it did not contribute contingents to the Sherifian army; no taxes were collected
there by the Makhzen; the government of the people was in the hands of caids appointed
by the tribes, and their powers were derived more from the acquiescence of the tribes than
from any delegation of authority by the Sultan; even if these local powers did not totally
reject any connection with the Sherifian State, in reality they became de facto independent
powers. It is also said that the historical evidence shows the territory between the Souss
and the Dra’a to ave been in a state of permanent insubordination and part of the Bled
Siba; and that this implies that there was no effective and continuous display of State
functions even in those areas to the north of Western Sahara. In the present proceedings,
it has been common ground between Mauritania, Morocco and Spain that the Bled Siba
was considered as forming part of the Moroccan State at that time, as also appears from
the information before the Court.
97. That the areas immediately to the north of Western Sahara lay within the Bled Siba at
the relevant period is a point which does not appear to be in dispute. This is accordingly an
element to be taken into consideration in appreciating the material which has been
submitted regarding the alleged display of Moroccan authority in Western Sahara itself.
EVIDENCE OF INTERNAL DISPLAY OF MOROOCCAN AUTHORITY AND INT’L ACTS
SHOWING RECOGNITION.
98. As evidence of its display of sovereignty in Western Sahara, Morocco has invoked
alleged acts of internal display of Moroccan authority and also certain international acts
said to constitute recognition by other States of its sovereignty over the whole or part of the
territory.
99. The principal indications of “internal” display of authority invoked by Morocco consist of
evidence alleged to show the allegiance of Saharan caids to the Sultan, including dahirs
and other documents concerning the appointment of caids, the alleged imposition of
Koranic and other taxes, and what were referred to as “military decisions” said to constitute
acts of resistance to foreign penetration of the territory. In particular, the allegiance is
claimed of the confederation of Tekna tribes, together with its allies, one part of which was
stated to be established in the Noun and another part to lead a nomadic life the route of
which traversed areas of Western Sahara. Moreover, Morocco alleges that, after the
marabout Ma ul-‘Aineen established himself at Smara in the Sakiet El Hamra in the late
1890s, much of the territory came
SPAIN CLAIMS STRIKING ABSENCE OF EVIDENCE RE MOROCCO’S DISPLAY OF
AUTHORITY, PAYMENT OF TAXES BY TRIBES.
100. Spain, on the other hand, maintains that there is a striking absence of any
documentary evidence or other traces of a display of political authority by Morocco with
respect to Western Sahara. The acts of appointment of caids produced by Morocco,
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whether dahirs or official correspondence, do not in Spain's view relate to Western Sahara
but to areas within southern Morocco such as the Noun and the Dra'a; nor has any
document of acceptance by the recipients been adduced. Furthermore, according to Spain,
these alleged appointments as caid were conferred on sheikhs already elected by their
own tribes and were, in truth, only titles of honour bestowed on existing and de facto
independent local rulers. As to the Tekna confederation, its two parts are said to have been
in quite different relations to the Sultan: only the settled Tekna, established in southern
Morocco, acknowledged their political allegiance to the Sultan, while the nomadic septs of
the tribe who traversed the Western Sahara were "free" Tekna, autonomous and
independent of the Sultan. Nor was Ma ul-'Aineen, according to Spain, at any time the
personal representative of the Sultan's authority in Western Sahara; on the contrary, he
exercised his authority to the south of the Dra'a in complete independence of the Sultan;
his relations with the Sultan were based on mutual respect and a common interest in
resisting French expansion from the south; they were relations of equality, not political ties
of allegiance or of sovereignty.
101. Further, Spain invokes the absence of any evidence of the payment of taxes by tribes
of Western Sahara and denies all possibility of such evidence being adduced; according to
Spain, it was a characteristic even of the Bled Siba that the tribes refused to be taxed, and
in Western Sahara there was no question of taxes having been paid to the Makhzen. As to
the Sultan's expeditions of 1882 and 1886, these, according to Spain, are shown by the
historical evidence never to have reached Western Sahara or even the Dra'a, but only the
Souss and the Noun; nor did they succeed in completely subjecting even those areas; and
they cannot therefore constitute evidence of display of authority with respect to Western
Sahara. Their purpose, Spain maintains, was to prevent commerce between Europeans
and the tribes of the Souss and Noun, and this purpose was unrelated to Western Sahara.
Again, the alleged acts of resistance in Western Sahara to foreign penetration are said by
Spain to have been nothing more than occasional raids to obtain booty or hostages for
ransom and to have nothing to do with display of Moroccan authority. In general, both on
geographical and on other grounds, Spain questions the unity of the Saharan region with
the regions of southern Morocco.
MAURITANIA’S VIEWS ON MOROCCO’S EVIDENCE.
102. Mauritania's views, in so far as they relate to Morocco's pretensions to have exercised
sovereignty over Western Sahara at the time of its colonization, may be summarized as
follows: Mauritania does not oppose Morocco's claim to have displayed its authority in
some, more northerly, areas of the territory. Thus it does not dispute the allegiance at that
time of the Tekna confederation to the Sultan, nor Morocco's claim that, through the
intermediary of Tekna caids in southern Morocco, it exercised a measure of authority over
Tekna nomads who traversed those areas of Western Sahara. Mauritania does not,
however, admit the allegiance of other tribes in Western Sahara to the Sultan, as it
considers them to belong to the Bilad Shinguitti, or Mauritanian entity. In particular, like
Spain, it maintains that the Regheibat were a tribe of marabout warriors wholly
independent of both the Tekna caids and the Sultan, and that their links were rather with
the tribes of the Bilad Shinguitti. Again, Mauritania does not admit that the marabout
sheikh, Ma ul-'Aineen, represented the authority of the Sultan in Western Sahara. Instead,
it insists that he was a Shinguitti personality, who acquired influence and renown as head
of a religious brotherhood in the Bilad Shinguitti and also became a political figure in the
Sakiet El Hamra in the later stages of his life. Like Spain also, Mauritania maintains that,
as a political figure organizing and leading resistance to French penetration, Ma ul-'Aineen
dealt with the Sultan on a basis of co-operation between equals; and that the relation
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between them was not one of allegiance but of an alliance, lasting only until the time came
when the sheikh proclaimed himself Sultan.
COURTS VIEWS THAT MOROCCO’S ARGUMENTS CANNOT BE CONSIDERED AS
DISPOSING THE DIFFICULTIES IN THE WAY OF ITS CLAIM TO HAVE EXERCISED
AUTHORITY.
103. The Court does not overlook the position of the Sultan of Morocco as a religious
leader. In the view of the Court, however, the information and arguments invoked by
Morocco cannot, for the most part, be considered as disposing of the difficulties in the way
of its claim to have exercised effectively internal sovereignty over Western Sahara. The
material before the Court appears to support the view that almost all the dahirs and other
acts concerning caids relate to areas situated within present-day Morocco itself and do not
in themselves provide evidence of effective display of Moroccan authority in Western
Sahara. Nor can the information furnished by Morocco be said to provide convincing
evidence of the imposition or levying of Moroccan taxes with respect to the territory. As to
Sheikh Ma ul-'Aineen, the complexities of his career may leave doubts as to the precise
nature of his relations with the Sultan, and different interpretations have been put upon
them. The material before the Court, taken as a whole, does not suffice to convince it that
the activities of this sheikh should be considered as having constituted a display of the
Sultan's authority in Western Sahara at the time of its colonization.
104. Furthermore, the information before the Court appears to confirm that the expeditions
of Sultan HassanI1 to the south in 1882 and 1886 both had objects specifically directed to
the Souss and the Noun and, in fact, did not go beyond the Noun; so that they did not
reach even as far as the Dra'a, still less Western Sahara. Nor does the material furnished
lead the Court to conclude that the alleged acts of resistance in Western Sahara to foreign
penetration could be considered as acts of the Moroccan State. Similarly, the despatch of
arms by the Sultan to Ma ul-'Aineen and others to encourage their resistance to French
penetration to the east of Western Sahara is, in any case, open to other interpretations
than the display of the Sultan's authority. Again, although Morocco asserts that the
Regheibat tribe always recognized the suzerainty of the Tekna confederation, and through
them that of the Sultan himself, this assertion has not been supported by any convincing
evidence. Moreover, both Spain and Mauritania insist that this tribe of marabout warriors
was wholly independent.
BUT THE ARGUMENTS DO NOT EXCLUDE THE POSSIBILITY THAT THE
MOROCCAN SULTAN DISPLAYED AUTHORITY OVER SOME OF W. SAHARAN
TRIBES.
105. Consequently, the information before the Court does not support Morocco's claim to
have exercised territorial sovereignty over Western Sahara. On the other hand, it does not
appear to exclude the possibility that the Sultan displayed authority over some of the tribes
in Western Sahara. That this was so with regard to the Regheibat or other independent
tribes living in the territory could clearly not be sustained. The position is different,
however, with regard to the septs of the Tekna whose routes of migration are established
as having included the territory of the Tekna caids within Morocco as well as parts of
Western Sahara. True, the territory of the Tekna caids in the Noun and the Dra'a were Bled
Siba at the relevant period and the subordination of the Tekna caids to the Sultan was
sometimes uncertain. But the fact remains that the Noun and the Dra'a were recognized to
be part of the Sherifian State and the Tekna caids to represent the authority of the Sultan.
No doubt, as appears from previous paragraphs, the allegiance of the nomadic septs of the
Tekna to the Tekna confederation has been in dispute in the present proceedings. The
mere fact that those Tekna septs in their
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nomadic journeys spent periods of time within the territory of the caids of the Tekna
confederation appears, however, to the Court to lend support to the view that they were
subject, at least in some measure, to the authority of Tekna caids. The Court at the same
time notes that Mauritania considers these Tekna septs to have been in "Moroccan fealty".
106. Furthermore, the material before the Court contains various indications of some
projection of the Sultan's authority to certain Tekna tribes or septs nomadizing in Western
Sahara. Such indications are, for example, to be found in certain documents relating to the
recovery of shipwrecked seamen and other foreigners held captive by Teknas in Western
Sahara; in documents showing that on some occasions, notably the Sultan's visits to the
south in 1882 and 1886, he received the allegiance of certain nomadic tribes which came
from Western Sahara for the purpose; and in letters from the Sultan to Tekna caids
requesting the performance of certain acts to the south of the Noun and the Dra'a.
Accordingly, and after taking due account of any contradictory indications, the Court
considers that, taken as a whole, the information before it shows the display of some
authority by the Sultan, through Tekna caids, over the Tekna septs nomadizing in Western
Sahara.
NO SHOWING OF TERRITORIAL TIE BETWEEN MOROCCO AND W. SAHARA.
107. Thus, even taking account of the specific structure of the Sherifian State, the material
so far examined does not establish any tie of territorial sovereignty between Western
Sahara and that State. It does not show that Morocco displayed effective and exclusive
State activity in Western Sahara. It does however provide indications that a legal tie of
allegiance had existed at the relevant period between the Sultan and some, but only some,
of the nomadic peoples of the territory.
COURT NOW LOOKS AT THE INT’L ACTS CLAIMED BY MOROCCO.
108. The Court must now examine whether its appreciation of the legal situation which
appears from a study of the internal acts invoked by Morocco is affected to any extent by a
consideration of the international acts said by it to show that the Sultan's sovereignty was
directly or indirectly recognized as extending to the south of the Noun and the Dra'a. The
material upon which it relies may conveniently be considered under four heads:
(a) A series of Moroccan treaties, and more especially a treaty with Spain of
1767, and treaties of 1836, 1856 and 1861 with the US, Great Britain and Spain
respectively, provisions of which deal with the rescue and safety of mariners
shipwrecked on the Coast of Wad Noun or its vicinity.
(b) A Moroccan treaty with Great Britain of 1895 in which Great Britain, it is
claimed, recognized "the lands that are between Wad Draa and Cape Bojador,
and which are called Terfaya above named, and all the lands behind it" as part of
Morocco.
(c) Diplomatic correspondence concerning the implementation of Article 8 of the
Treaty of Tetuan of 1860 and an alleged agreement with Spain of 1900 relating to
the cession of Ifni, which are claimed to show Spanish recognition of Moroccan
sovereignty as far southwards as Cape Bojador.
(d) A Franco-German exchange of letters of 1911 which expressed the
understanding of the parties that "Morocco comprises all that part of northern
Africa which is situated between Algeria, French West Africa, and the Spanish
colony of Rio de Oro".
(a) Treaty of Marakesh of 1767
109. The treaty provisions cited by Morocco begin with Article 18 of the Treaty of
Marrakesh of 1767, the interpretation of which is in dispute between Morocco and Spain.
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This Article concerned a project of the Canary Islanders to set up a trading and fishing post
on "the coasts of Wad Noun", according to Morocco, or "to the south of the River Noun",
according to Spain, and the dispute is as to the scope of the Sultan's disavowal in Article
18 of any responsibility with respect to such a project. Morocco states that in the Arabic
text the Article has the following meaning:
"His Imperial Majesty warns the inhabitants of the Canaries against any fishing
expedition to the coasts of Wad Noun and beyond. He disclaims any
responsibility for the way they may be treated by the Arabs of the country, to
whom it is difficult to apply decisions, since they have no fixed residence, travel
as they wish and pitch their tents where they choose. The inhabitants of the
Canaries are certain to be maltreated by those Arabs."
It contends, moreover, that this Arabic text is the only "official text" and should have
preference also as being the more limited interpretation. On the basis of the Arabic text, it
maintains that the Article signifies that the Sultan was recognized to have the power to take
decisions with respect to the inhabitants of "Wad Noun and beyond", though it was difficult
to apply his decisions to them.
110. Spain, however, stresses that the Spanish text of the treaty is also an original text,
which is equally authentic and has the following meaning:
"His Imperial Majesty refrains from expressing an opinion with regard to the
trading post which His Catholic Majesty wishes to establish to the south of the
River Noun, since he cannot take responsibility for accidents and misfortunes,
because his domination [sus dominios] does not extend so far. . . . Northwards
from Santa Cruz, His Imperial Majesty grants to the Canary Islanders and the
Spaniards the right of fishing without authorizing any other nation to do so."
It also disputes the meaning attributed by Morocco to the crucial words in the Arabic text
and maintains that the meaning found in the Spanish text is confirmed by the wording of
contemporary letters sent by the Sultan to King Carlos III, as well as other diplomatic
material, and by a later Hispano-Moroccan treaty of 1799. Morocco, it should be
interposed, in its turn questions the meaning given by Spain to certain words in the Arabic
texts of the Sultan's letters and the 1767 treaty. Spain, however, on the basis of its
interpretations of the various texts, contends that Article 18 of that treaty, far from
evidencing Spanish recognition of the Sultan's sovereignty to the south of the Wad Noun,
constitutes a disavowal by the Sultan himself of any pretensions to authority in that region.
111. The Court does not find it necessary to resolve the controversy regarding the text of
Article 18 of this early treaty, because a number of later treaties, closer to the time of the
colonization of Western Sahara and thus more pertinent in the present connection,
contained clauses of a similar character, concerning mariners shipwrecked on coasts of
the Wad Noun. It confines itself, therefore, to the following observations: In so far as this,
or any other treaty provision, is relied upon by Morocco as showing international
recognition by another State of Moroccan sovereignty, it would be difficult to consider such
international recognition as established on the sole basis of a Moroccan text diverging
materially from an authentic text of the same treaty written in the language of the other
State. In any event, the question of international recognition which Morocco claims to be
raised by Article 18 of the Treaty of 1767 hinges upon the meaning to be given to such
phrases as "Wad Noun and beyond" and "to the south of the River Noun", which is also a
matter in dispute and calls for consideration in connection with the later treaties.
(b) Hispano-Moroccan Treaty of Commerce and Navigation (1861)
112. Article 18 of the 1767 treaty is indeed superseded for present purposes by provisions
in Article 38 of the Hispano-Moroccan Treaty of Commerce and Navigation of 20
73
November 1861, which itself followed the model of similar provisions in treaties signed by
Morocco with the United States in 1836 and with Great Britain in 1856. The relevant
provisions of the 1861 treaty ran:
"If a Spanish vessel of war or merchant ship get aground or be wrecked on any
part of the coasts of Morocco, she shall be respected and assisted in every way,
in conformity with the laws of friendship, and the said vessel and everything in
her shall be taken care of and returned to her owners, or to the Spanish Consul-
General . . . If a Spanish vessel be wrecked at Wad Noun or on any other part of
its coast, the Sultan of Morocco shall make use of his authority to save and
protect the master and crew until they return to their country, and the Spanish
Consul-General, Consul, Vice-Consul, Consular Agent, or person appointed by
them shall be allowed to collect every information they may require . . . The
Governors in the service of the Sultan of Morocco shall likewise assist the
Spanish Consul-General, Consul, Vice-Consul, Consular Agent or person
appointed by them, in their investigations, according to the laws of friendship."
Morocco considers that these provisions, and similar provisions in other treaties, recognize
the existence of Moroccan authorities in the Noun and Western Sahara, in the form of
Governors in the service of the Sultan of Morocco, and also the effective possibilities of
action by those Governors. It also argues that they recognize Moroccan sovereignty over
Western Sahara because under Article 38 the Spanish authorities receive permission to
enquire into the fate of shipwrecked mariners and derive that permission from the Sultan.
113. Morocco further considers that this view of the treaty provisions is confirmed by
Spanish diplomatic documents relating to the recovery in 1863 of nine sailors from the
Spanish vessel Esmeralda who had been captured, while fishing, by "Moors of the frontier
coast". According to the documents, this incident occurred "more than 180 miles south of
Cape Noun" and the Moors had demanded a ransom. The Spanish Minister of State had
then instructed the Spanish Minister in Morocco to make the necessary request to the
Sultan, pursuant to Article 38 of the 1861 treaty, "to use his powers to rescue the captive
sailors". In due course the sailors were reported to have been freed and to be in the hands
of Sheikh Beyrouk of the Noun; and the Spanish Minister in Morocco was authorized to
make a gift to the sheikh as a mark of gratitude.
114. Spain, on the other hand, claims that the origin of the shipwreck clauses was directly
connected with the state of insubordination in the Souss and the Noun, and stresses that
the treaties contained two systems of rescue and protection. One system, which it calls the
general system, provided for areas where the Sultan did exercise his authority and
undertook to use his normal powers to protect the shipwrecked. The other was a special
régime for the Wad Noun. If a vessel were shipwrecked at the Wad Noun or beyond, the
treaty provisions gave a different answer as to the duty of the Sultan. In that case, he did
not "order" or "protect" but undertook to try to liberate the shipwrecked persons so far as
he was able; and in order to do that he would use his influence with the peoples
neighbouring on his realm and negotiate the ransoming of the sailors, usually with the local
authorities. It was not, Spain considers, a matter of his exercising his own authority.
115. Spain also refers to various diplomatic documents relating to the recovery of sailors
from a number of shipwrecked vessels as confirming the above interpretation of the
clauses. Those documents, it States, show that in all those cases, including that of the
Esmeralda, it was the intervention of the Beyrouk family, the sheikhs of the Wad Noun,
which was decisive for the liberation of the captives, and that they negotiated directly with
the Spanish Consul at Mogador. In one case, according to these documents, Sheikh
Beyrouk informed the Spanish authorities that he had resisted the Sultan's efforts to wrest
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the prisoners from him and that their liberation had been achieved only when he himself
had "negotiated the affair with the Spanish nation". According to Spain, this evidence
indicates that to the north of Agadir the power of the Sultan was exercised and the Sultan
could give orders; from Agadir to the south, in the Souss, the Noun and the Dra'a, the
Sultan negotiated with local powers, he could not give orders; and this, Spain says,
explains the cardinal role played by Sheikh Beyrouk in these matters.
(c) Use of the terms "the coasts of Wad Noun", "to the south of Wad Noun" or "Wad
Noun and beyond" showing international recognition
116. Implicit in Morocco's claim that these treaties signify international recognition of the
exercise of its sovereignty in Western Sahara is the proposition that phrases such as "the
coasts of Wad Noun", "to the south of Wad Noun" or "Wad Noun and beyond" are apt to
comprise Western Sahara. This proposition it advances on the basis that "Wad Noun" was
a term used with two meanings: one narrow and restricted to the Wad Noun itself, the
other wider and covering not only the Wad Noun but the Dra'a and the Sakiet El Hamra.
This wider meaning, it indicates, was the one with which the term was used in Moroccan
documents and treaties. Spain, on the other hand, maintains that no evidence has been
adduced to demonstrate the use of the term Wad Noun with that special meaning, that
there is no trace of it in the cartography of the period and that the testimony of travellers
and explorers is conclusive as to the geographical separation of the Wad Noun country
from the Sakiet El Hamra. It is for Morocco to demonstrate convincingly the use of the term
with that special meaning (cf. Legal Status of Eastern Greenland, P.C.I.J., Series A/B, No.
53, p. 49) and this demonstration, in the view of the Court, is lacking.
(d) Esmeralda incident .
117. In the particular case of the Esmeralda, as the Court has already noted, Morocco
points to documents showing a request by Spain to the Sultan in 1863 for the application of
Article 38 of the Treaty of 1861 in respect of an incident which had occurred more than 180
miles to the south of Cape Noun. That incident may, therefore, be invoked as indicating
Spain's recognition of the applicability of the treaty provision in relation to that part of the
Coast of Western Sahara. But those documents, especially when read together with further
documents before the Court relating to the same incident, do not appear to warrant the
conclusion that Spain thereby also recognized the Sultan's territorial sovereignty over that
part of Western Sahara. The documents, and the whole incident, appear rather to confirm
the view that Article 38, and other similar provisions, concerned, instead, the exercise of
the personal authority or influence of the Sultan, through the Tekna caids of the Wad Noun,
to negotiate the ransom of the shipwrecked sailors from the tribe holding them captive to
the south of the Wad Noun. Clearly, Morocco is correct in saying that these provisions
would have been pointless if the other State concerned had not considered the Sultan to
be in a position to exercise some authority or influence over the people holding the sailors
captive. But it is a quite different thing to maintain that those provisions implied
international recognition by the other State concerned of the Sultan as territorial sovereign
in Western Sahara.
118. Examination of the provisions discussed above shows therefore, in the view of the
Court, that they cannot be considered as implying international recognition of the Sultan's
territorial sovereignty in Western Sahara. It confirms that they are to be understood as
concerned with the display of the Sultan's authority or influence in Western Sahara only in
terms of ties of allegiance or of personal influence in respect of some of the nomadic tribes
of the territory.
(e) Anglo-Moroccan Agreement (1895)
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119. The Anglo-Moroccan Agreement of 13 March 1895 is invoked by Morocco as
evidencing specific international recognition by Great Britain that Moroccan territory
reached as far south as Cape Bojador. This treaty concerned the purchase by the Sultan
from the North-West African Company of the trading-station which had been set up at
Cape Juby some years previously by agreements made between Mr. Donald Mackenzie
and Sheikh Beyrouk. The treaty of 1895 provided inter alia that, if the Moroccan
Government bought the trading-station from the Company, "no one will have any claim to
the lands that are between Wad Draa and Cape Bojador, and which are called Terfaya
above named, and all the lands behind it, because all this belongs to the territory of
Morocco". A further clause provided that the Moroccan Government in turn undertook that
"they will not give any part of the above-named lands to any-one whatsoever without the
concurrence of the English Government". Morocco asks the Court to see these provisions
as constituting express recognition by Great Britain of Moroccan sovereignty at the
relevant period in all the land between the Wad Dra'a and Cape Bojador and the
hinterland.
120. The difficulty with this interpretation of the 1895 treaty is that it is at variance with the
facts as shown in the diplomatic correspondence surrounding the transaction concerning
the Mackenzie trading-station; Numerous documents relating to this transaction and
presented to the Court show that the position repeatedly taken by Great Britain was that
Cape Juby was outside Moroccan territory, which in its view did not extend beyond the
Dra'a. In the light of this material the provisions of the 1895 treaty invoked by Morocco
appear to the Court to represent an agreement by Great Britain not to question in future
any pretensions of the Sultan to the lands between the Dra'a and Cape Bojador, and not a
recognition by Great Britain of previously existing Moroccan sovereignty over those lands.
In short, what those provisions yielded to the Sultan was acceptance by Great Britain not
of his existing sovereignty but of his interest in that area.
(e) Treaty of Tetuan (1860) and diplomatic note of 19 Oct 1900
121. Morocco also asks the Court to find indications of Spanish recognition of Moroccan
sovereignty southwards as far as Cape Bojador in diplomatic material concerning the
implementation of Article 8 of the Treaty of Tetuan of 1860 and an agreement of 1900
alleged to have been concluded with Spain in that connection. By Article 8 of the Treaty of
Tetuan, the Sultan had agreed to concede to Spain "in perpetuity, on the Coast of the
Ocean, near Santa Cruz la Pequefia, the territory sufficient for the construction of a
fisheries establishment, as Spain possessed in prior times". Morocco invokes a diplomatic
Note of 19 October 1900 from the Spanish Ambassador in Brussels to the Belgian Foreign
Minister, which referred to instructions having been given to the Spanish representative in
Tangier "to negotiate an exchange between the port of Ifni and another port situated
between Ifni and Cape Bojador as well as the cession of the city of Terfaya between the
Dra'a and Cape Bojador . . .". In the same year a publication in Spain appeared to give
some substance to the suggestion that as a result of those negotiations a protocol had
been concluded in this connection.
122. Spain however, denies altogether the existence of any such protocol, which, it argues,
Morocco could not have failed to produce if it had been concluded; for Morocco itself would
have been one of the parties to this alleged agreement. An examination of its archives,
Spain States, shows that no agreement was concluded at the time of the mission, although
the press published erroneous news on the subject at the time. Mauritania also voices
strong doubts as to the existence of the alleged protocol. It further says:
"In the absence of direct evidence, and faced with second-hand references,
which are geographically vague and general, it is difficult to express a view on
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the question, and in particular to draw any conclusions as to territorial
recognitions by the Spanish Government.”
123. The doubts raised by both Spain and Mauritania as to the alleged protocol of 1900
have not been dispelled by the material before the Court. The Court is not, therefore, able
to take the possible existence of such a document into account.
(f) letters annexed to the Agreement between France and Germany (4 Nov 1911)
124. There remains the exchange of letters annexed to the Agreement between France
and Germany of 4 November 1911, which Morocco presents as recognition by those
Powers of Moroccan sovereignty over the Sakiet El Hamra. In Article 1 of the Agreement
Germany undertook not to interfere with the action of France in Morocco. The exchange of
letters then further provided that:
"Germany will not intervene in any special agreements which France and Spain
may think fit to conclude with each other on the subject of Morocco, it being
understood that Morocco comprises all that part of northern Africa which is
situated between Algeria, French West Africa and the Spanish colony of Rio de
Oro."
It is on these last words that Morocco relies; and it maintains that, whatever construction is
put upon the exchange of letters, those words mean that the agreement recognized that
the Sakiet El Hamra belonged to Morocco. In support of this contention, it refers to certain
diplomatic letters which are claimed to show that, when France and Germany drew up the
exchange, they meant "to posit the principle that the Sakiet El Hamra was part of
Moroccan territory".
SPAIN RAISES THE FOLLOWING AGREEMENTS.
(a) Franco-Spanish Conventions (1904 and 1912)
125. Spain, on the other hand, points to Article 6 of the earlier Franco-Spanish Convention
of 3 October 1904, which stated:
". . . the Government of the French Republic acknowledges that Spain has
henceforward full liberty of action in regard to the territory comprised between the
26" and 27" 40' north latitude and the 11th meridian West of Paris, which are
outside the limits of Morocco".
It further points to Article 2 of the Franco-Spanish Convention of 27 November 1912 as
providing expressly that Article 6 of the 1904 Convention was to "remain effective". In
those two Conventions, it observes, France clearly recognized that the Sakiet El Hamra
was "outside the limits of Morocco". At the same time, it contests the view expressed by
Morocco in the proceedings that these Conventions are not opposable to Morocco. It also
draws attention to other diplomatic material relating to the 1911 exchange of letters and
claimed by it to show that this was concerned with Franco-German relations and not with
the existing frontier of Morocco.
VARIOUS AGREEMENTS’ PURPOSE WAS NOT TO RECOGNIZE OR DENY AN
EXISTING SOVEREIGNTY OVER A TERRITORY, BUT TO RECOGNIZE OR RESERVE
A “SPHERE OF INFLUENCE” FOR ONE OR BOTH PARTIES.
126. In the present connection, the Court emphasizes, the question at issue is not the
Spanish position in the Sakiet El Hamra but the alleged recognition by other States of
Moroccan sovereignty over the Sakiet El Hamra at the time of colonization by Spain.
Accordingly the question of how far any of these agreements may or may not be
opposable to any of the States concerned does not arise. The various international
agreements referred to by Morocco and Spain are of concern to the Court only in so far as
they may contain indications of such recognition. These agreements, in the opinion of the
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Court, are of limited value in this regard; for it was not their purpose either to recognize an
existing sovereignty over a territory or to deny its existence. Their purpose, in their different
contexts, was rather to recognize or reserve for one or both parties a "sphere of influence"
as understood in the practice of that time. In other words, one party granted to the other
freedom of action in certain defined areas, or promised non-interference in an area
claimed by the other party. Such agreements were essentially contractual in character.
This is why one party might be found acknowledging in 1904, vis-à-vis Spain, that the
Sakiet El Hamra was "outside the limits of Morocco" in order to allow Spain full liberty of
action in regard to that area, and yet employing a different geographical description of
Morocco in 1911 in order to ensure the complete exclusion of Germany from that area.
COURT FINDS DIFFICULTY ACCEPTING THE 1911 FRANCO-GERMAN EXCHANGE
OF LETTERS.
127. In consequence, the Court finds difficulty in accepting the Franco-German exchange
of letters of 1911 as constituting recognition of the limits of Morocco rather than of the
sphere of France's political interests vis-à-vis Germany.
ELEMENT ADDUCED BY MOROCCO DID NOT ESTABLISH INT’L RECOGNITION OF
MOROCCAN TERRITORIAL SOVEREIGNTY, BUT MATERIAL RE SHIPWRECKED
SAILORS INDICATES INT’L RECOGNITION AT TIME OF COLONIZATION OVER SOME
NOMADS IN W. SAHARA.
128. Examination of the various elements adduced by Morocco in the present proceedings
does not, therefore, appear to the Court to establish the international recognition by other
States of Moroccan territorial sovereignty in Western Sahara at the time of the Spanish
colonization. Some elements, however, more especially the material relating to the
recovery of shipwrecked sailors, do provide indications of international recognition at the
time of colonization of authority or influence of the Sultan, displayed through Tekna caids of
the Noun, over some nomads in Western Sahara.
INFORMATION INDICATES LEGAL TIE OF ALLEGIANCE BETWEEN THE SULTAN
AND SOME TRIBES, NOT LEGAL TIE OF TERRITORIAL SOVEREIGNTY BETWEEN
W. SAHARA AND MOROCCO.
129. The inferences to be drawn from the information before the Court concerning internal
acts of Moroccan sovereignty and from that concerning international acts are, therefore, in
accord in not providing indications of the existence, at the relevant period, of any legal tie
of territorial sovereignty between Western Sahara and the Moroccan State. At the same
time, they are in accord in providing indications of a legal tie of allegiance between the
Sultan and some, though only some, of the tribes of the territory, and in providing
indications of some display of the Sultan's authority or influence with respect to those
tribes. Before attempting, however, to formulate more precisely its conclusions as to the
answer to be given to Question II in the case of Morocco, the Court must examine the
situation in the territory at the time of colonization in relation to the Mauritanian entity. This
is so because the "legal ties" invoked by Mauritania overlap with those invoked by
Morocco.
COURT LOOKS AT WHAT LEGAL TIES EXISTED BETWEEN W. SAHARA AND
MAURITANIA.
130. The Court will therefore now take up the question of what were the legal ties which
existed between Western Sahara, at the time of its colonization by Spain, and the
Mauritanian entity. As the very formulation of Question II implies, the position of Mauritania
in relation to Western Sahara at that date differs from that of Morocco for the reason that
there was not then any Mauritanian State in existence. In the present proceedings
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Mauritania has expressly accepted that the "Mauritanian entity" did not then constitute a
State; and also that the present statehood of Mauritania "is not retroactive". Consequently,
it is clear that it is not legal ties of State sovereignty with which the Court is concerned in
the case of the "Mauritanian entity" but other legal ties. It also follows that the first point for
the Court's consideration is the legal nature of the "Mauritanian entity" with which Western
Sahara is claimed by Mauritania to have had those legal ties at the time of colonization by
Spain.
“MAURITANIAN ENTITY”; POLITICAL ENTITIES; TRIBAL GROUPS.
131. The term "Mauritanian entity", as appears from the information before the Court, is a
term first employed during the session of the GA in 1974 at which resolution 3292 (XXIX)
was adopted. This term, Mauritania maintains, was used by the GA to denote the cultural,
geographical and social entity which existed at the time in the region of Western Sahara
and within which the Islamic Republic of Mauritania was later to be created. That such is
the sense in which the term is used in Question II has not been disputed.
132. Explaining its concept of the Mauritanian entity at the time of the colonization of
Western Sahara, Mauritania has stated:
(a) Geographically, the entity covered a vast region lying between, on the east,
the meridian of Timbuktu and, on the West, the Atlantic, and bounded on the
south by the Senegal river and on the north by the Wad Sakiet El Hamra. In the
eyes both of its own inhabitants and of the Arabo-Islamic communities, that
region constituted a distinct entity.
(b) That entity was the Bilad Shinguitti, or Shinguitti country, which constituted a
distinct human unit, characterized by a common language, way of life and
religion. It had a uniform social structure, composed of three "orders": warrior
tribes exercising political power; marabout tribes engaged in religious, teaching,
cultural, judicial and economic activities; client-vassal tribes under the protection
of a warrior or marabut tribe. A further characteristic of the Bilad Shinguitti was
the much freer status of women than in neighbouring Islamic societies. The most
significant feature of the Bilad Shinguitti was the importance given to the
marabout tribes, who created a strong written cultural tradition in religious
studies, education, literature and poetry; indeed, its fame in the Arab world
derived from the reputation acquired by its scholars.
133. According to Mauritania, two types of political authority were found in the Bilad
Shinguitti: the emirates and the tribal groups not formed into emirates. The major part of
the Shinguitti country was composed of the four Emirates of the Trarza, the Brakna, the
Tagant and the Adrar, where the town of Shinguit is situated. This town was both the centre
of Shinguitti culture and a crossroads of the caravan trade, so that the Emirate of the Adrar
became the pole of attraction for the important nomadic tribes of the Sahara. At the time of
the Spanish colonization of Western Sahara, Mauritania maintains, the Emir of the Adrar
was the principal political figure of the north and north-west Shinguitti country, and
possessed "an influence extending from the Sakiet El Hamra to the Senegal". In this
connection, it invokes the testimony of the Spanish explorer, Captain Cervera, who in 1886
concluded with the Emir at 'Ijil a treaty by which, had it been ratified, Spain would have
been recognized as sovereign of the whole Adrar at-Tmarr. He had reported at the time
that it was thanks to the Emir that several tribal chiefs were assembled at 'Ijil; that it was
under the Emir's protection that the Spanish delegation had been able to attend the
meeting safely; and that the parties to the two treaties concluded on that occasion included
chiefs not only of tribes of the Adrar but also of tribes from West of the Emirate, Le., from
the territory of the Rio de Oro.
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134. In addition to the four emirates, Mauritania mentions a number of other tribal groups,
not formed into emirates, which existed in Western Sahara at the time of its colonization by
Spain. Among these it names as the main tribes the 'Aroussiyeen, Oulad Deleim, Oulad
Bu-Sba', Ahil Barik-Allah and Regheibat. It maintains that all these tribes and the four
emirates themselves were both autonomous and independent, not acknowledging any tie
of political allegiance to the Sultan of Morocco. Their independence, it states, is shown by
the numerous treaties which they signed with foreign Powers, and by the fact that "the
emirs, sheikhs and other tribal chiefs were riever invested by outside authorities and
always derived their powers from the special rules governing the devolution of power in the
Shinguitti entity". Each emirate and tribal group was autonomously administered by its
ruler, whose appointment and important acts were subject to the assent of the assembly of
the Juma'a.
135. Mauritania recognizes that the emirates and the tribes were not under any common
hierarchical structure. "In this respect", it has said:
". . . the Shinguitti entity could not be assimilated to a State, nor to a federation,
nor even to a confederation, unless one saw fit to give that name to the tenuous
political ties linking the various tribes".
Within the entity there were "great confederations of tribes, or emirates whose influence, in
the form sometimes of vassalage and sometimes of alliance, extended far beyond their
own frontiers". Even so, Mauritania recognizes that this is not a sufficient basis for saying
that "the Shinguitti entity was endowed with international personality, or enjoyed any
sovereignty as the word was understood at that time".
136. The Bilad Shinguitti, according to Mauritania, was a community having its own
cohesion, its own special characteristics, and a common Saharan law concerning the use
of water-holes, grazing lands and agricultural lands, the regulation of inter-tribal hostilities
and the settlement of disputes. Within this community:
"It was in reality the component entities which were endowed with the legal
personalities or sovereignties, Save in so far as these had been wholly or partly
alienated, by ties of vassalage or alliance, to other such components. The
sovereignty of the different component entities obviously derived from their
practice";
each body, as master of a territory, ensured the protection of the territory and of its
subjects against acts of war or pillage and, correspondingly, its ruler had the duty to
safeguard outsiders who sought his protection. When the emirs or sheikhs formed
alliances with or waged war on one another, it was a question of relations between equals.
But the existence of the community became apparent when its independence was
threatened, as is shown, in the view of Mauritania, by the concerted effort made by the
tribes throughout the Shinguitti country to resist French penetration.
137. At the same time, Mauritania lays emphasis on the tips of the Saharan area and the
nomadic existence of many of the tribes which have already been referred to in this
Opinion. Life in the arid areas of the Shinguitti country, it observes, required the continuous
quest for suitable pastures and water-holes; and each tribe had a well-defined migration
area with established migration routes determined by the location of water-holes, burial
grounds, cultivated areas and pastures. The colonial Powers, it further observes, in
drawing frontiers took no account of these human factors and in particular of the tribal
territories and migration routes, which were, as a result, bisected and even trisected by
those artificial frontiers. Nevertheless, the tribes of necessity continued to make their
traditional migrations, traversing the Shinguitti country comprised within the territory of the
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present-day Islamic Republic of Mauritania and Western Sahara. The same families and
their properties were to be found on either side of the artificial frontier. Some wells, lands
and burial grounds of the Rio de Oro, for example, belonged to Mauritanian tribes, while
watering places and palm oases in what is now part of the Islamic Republic were the
properties of tribes of Western Sahara. These facts of life in the region, it points out, were
recognized by France and Spain, which, in 1934, concluded an administrative agreement
to prevent any obstacles to the nomadic existence of the tribes.
“NATION”, “PEOPLE BEST DESCRIBES SHINGUITTI PEOPLE.
138. If it is thought necessary to have recourse to verbal classifications, Mauritania
suggests that the concepts of "nation" and of "people" would be the most appropriate to
explain the position of the Shinguitti people at the time of colonization; they would most
nearly describe an entity which despite its political diversity bore the characteristics of an
independent nation, a people formed of tribes, confederations and emirates jointly
exercising co-sovereignty over the Shinguitti country.
MAURITANIA’S VIEW AS TO LEGAL TIES BETWEEN IT AND W. SAHARA.
139. As to the legal ties between Western Sahara and the Mauritanian entity, the views of
Mauritania are as follows: At the time of Spanish colonization, the Mauritanian entity
extended from the Senegal river to the Wad Sakiet El Hamra. That being so, the part of the
territories now under Spanish administration which lie "to the south of the Wad Sakiet El
Hamra was an integral part of the Mauritanian entity". The legal relation between the part
under Spanish administration and the Mauritanian entity was, therefore, "the simple one of
inclusion". At that time, the Bilad Shinguitti was an entity united by historical, religious,
linguistic, social, cultural and legal ties, and it formed a community having its own
cohesion. The territories occupied by Spain, on the other hand, did not form an entity of
their own and did not have any identity. The part to the south of the Wad Sakiet El Hamra
was, legally speaking, part of the Mauritanian entity. That part and the present territory of
the Islamic Republic of Mauritania together constitute "the indissociable parts of the
Mauritanian entity".
140. In thet of the foregoing, Mauritania asks the Court to find that "at the time of
colonization by Spain the part of the Sahara now under Spanish administration did have
legal ties with the Mauritanian entity". At the same time, it takes the position that where the
Mauritanian entity ended the Kingdom of Morocco began. It also makes clear that the
finding which it requests is limited to the part of Western Sahara to the south of the Sakiet
El Hamra, subject to some overlapping between the legal ties of the Mauritanian entity and
those of Morocco solely where they met, owing to the overlapping of the nomadic routes of
their respective tribes.
SPAIN COUNTERS THAT SHINGUITTI ENTITY DOES NOT COINCIDE WITH
MAURITANIAN ENTITY.
141. Spain considers that there are a number of obstacles in the way of accepting the
views of the Islamic Republic. The Bilad Shinguitti or Shinguitti entity, it says, by no means
coincides with what is called the Mauritanian entity. In its broadest sense, the Bilad
Shinguitti is the area of an Islamaic culture, and it is a cultural and religious centre which
had a certain influence up to the sixteenth century. Spain finds it impossible, however, to
accept that a cultural phenomenon, limited in time and space, could be identical with an
alleged entity of which the significance was mainly geographical and which had wider
limits: Shinguit's religious and cultural influence and its fame in the Islamic world is not to
be confused with the political hegemony of the Emirate of the Adrar which, when it came
into being in the eighteenth century, included the town of Shinguit in its borders.
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THAT ENTITY MUST HAVE COMPONENT PARTS THAT ARE HOMOGENEOUS.
142. Again, in the view of Spain, the idea of an entity must express not only a belonging
but also the idea that the component parts are homogeneous. The Mauritanian entity,
however, is said to have been formed of heterogeneous components, some being mere
tribes and others having a more complex degree of integration, such as an emirate. As to
the Emirate of the Adrar, which is claimed to have been the nucleus of the Mauritanian
entity, Spain maintains that it was a region distinct and independent from all those
surrounding it, politically, socially and economically. Spain considers it to have constituted
a centre of autonomous power distinct both from the other emirates in the south and from
the independent nomad tribes in the north and West. Furthermore, at the period of
colonization of Western Sahara, this emirate, according to Spain, was undergoing grave
internal troubles and also being harassed by the neighbouring Emirates of the Trarza and
the Tagant, and Spain describes the region as having then been in a state of anarchy.
THAT THERE IS NO PROOF OF ANY TIE OF ALLEGIANCE BETWEEN W. SAHARAN
AND MAURITANIAN TRIBES.
143. Another difficulty, according to Spain, is that the concept of a Mauritanian entity is not
accompanied by proof of any tie of allegiance between the tribes inhabiting the territory of
Western Sahara and the Mauritanian tribes or between the tribes of the territory and the
Emirate of the Adrar. Far from merging into or disappearing within the framework of the so-
called Mauritanian entity, Spain maintains, the tribes of Western Sahara led their own life
independently of the other Saharan tribes. In its view, there is an almost total lack of
evidence which might give support to the Mauritanian argument over and above the mere
sociological facts about nomadic life.
SPAIN RAISES TREATIES IT, FRANCE, AND SAHARAN TRIBES CONCLUDED AS
PROOF OF THE TRIBES’ INDEPENDENCE.
144. As to the agreements concluded by the independent tribes of the Sahara with Spanish
explorers and with France, Spain considers those documents to run counter to the thesis
that there was a "Mauritanian entitv" in which tribes of Western Sahara were integrated. It
regards the texts of the two treaties signed a 'Ijil on 12 July 1886, one with the independent
tribes and the other with the Emir, as decisive on this point. The first was concluded with
the tribes living in the area between the Atlantic and the western slopes of the Adrar, who
ceded to Spain "all territories between the Coast of the Spanish possessions of the Atlantic
between Cape Bojador and Cabo Blanco and the western boundary of the Adrar"; the
second treaty was concluded with the Emir and "recognizes Spanish sovereignty over the
whole territory of the Adrar at-Tmarr". The existence of these two separate treaties, in
Spain's view, evidences not only the total independence of those tribes and of the Emirate,
but also their independence of each other; and it further proves that the Emir may have
exerted influence but never political authority over those tribes. The independence of the
tribes as between themselves is held by Spain to be also shown by the signature of the
1884 treaty by one tribe alone with the explorer Bonelli. Furthermore, other participants in
this alleged entity, the Emirates of the Brakna, Trarza and Tagant and the tribes of the
Hodh, signed with France a long series of treaties throughout the nineteenth century. Spain
therefore finds it difficult to appreciate the coherence of the alleged Shinguitti entity.
THAT THE TERRITORY HAS A SEPARATE ENTITY OF ITS OWN, CONTRARY TO
WHAT MAURITANIA ADVANCES.
145. Furthermore Spain rejects the proposition, bound up with the concept of the
Mauritanian entity advanced by Mauritania that the territory under Spanish administration
did not itself form an entity or possess an identity of its own. It considers that what is the
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present territory of Western Sahara was the foundation of a Saharan people with its own
well-defined character, made up of autonomous tribes, independent of any external
authority; and that this people lived in a fairly well-defined area and had developed an
organization and a system of life in common, on the basis of collective self-awareness and
mutual solidarity. In Western Sahara, it says, a clear distinction was made by the
population and in literature between their own country, the country of the nomads, and
other neighbouring countries of a sedentary way of life, such as Shinguitti, Tishit and
Timbuktu. The land of the settled people coincided to a large extent, in the north, with the
historic frontiers of Morocco and, in the south, with the Emirate of the Adrar at-Tmarr.
There was thus, according to Spain, a Sahrawi people at the time of colonization, coherent
and distinct from the Mauritanian emirates; and this people in no way regarded itself as
part of the Bilad Shinguitti or Mauritanian entity.
THAT MAURITANIA COULD NOT BE REGARDED AS SUCCESSOR OF THE
MAURITANIAN ENTITY.
146. Another legal difficulty, according to Spain, is that the Islamic Republic could not be
regarded as the direct successor to the alleged historical Mauritanian entity; for the notion
of Mauritania was born in 1904 at a time when the territory of Western Sahara is said by
Spain already to have had an existence well established in fact and in law.
147. On the basis of the foregoing considerations, Spain maintains that at the time of
colonization by Spain there were no legal ties between the territory of Western Sahara and
the Mauritanian entity.
COURT FINDS THAT BILAD SHINGUITTI DID NOT HAVE THE CHARACTER OF A
PERSONALITY OR CORPORATE ENTITY DISTINCT FROM THE SEVERAL EMIRATES
AND TRIBES WHICH COMPOSED IT.
148. In the case concerning Reparation for Injuries Suffered in the Service of the United
Nations, the Court observed: "The subjects of law in any legal system are not necessarily
identical in their nature or in the extent of their rights, and their nature depends upon the
needs of the community" (I.C.J. Reports 1949, p. 178). In examining the propositions of
Mauritania regarding the legal nature of the Bilad Shinguitti or Mauritanian entity, the Court
gives full weight both to that observation and to the special characteristics of the Saharan
region and peoples with which the present proceedings are concerned. Some criterion has,
however, to be employed to determine in any particular case whether what confronts the
law is or is not legally an "entity". The Court, moreover, notes that in the Reparation case
the criterion which it applied was to enquire whether the UN Organization - the entity
involved - was in "such a position that it possesses, in regard to its Members, rights which
it is entitled to ask them to respect" (ibid.). In that Opinion, no doubt, the criterion was
applied in a somewhat special context. Nevertheless, it expresses the essential test where
a group, whether composed of States, of tribes or of individuals, is claimed to be a legal
entity distinct from its members.
149. In the present case, the information before the Court discloses that, at the time of the
Spanish colonization, there existed many ties of a racial, linguistic, religious, cultural and
economic nature between various tribes and emirates whose peoples dwelt in the Saharan
region which today is comprised within the Territory of Western Sahara and the Islamic
Republic of Mauritania. It also discloses, however, the independence of the emirates and
many of the tribes in relation to one another and, despite some forms of common activity,
the absence among them of any common institutions or organs, even of a quite minimal
character. Accordingly, the Court is unable to find that the information before it provides
any basis for considering the emirates and tribes which existed in the region to have
78
constituted, in another phrase used by the Court in the Reparation case, "an entity capable
of availing itself of obligations incumbent upon its Members" (ibid.). Whether the
Mauritanian entity is described as the Bilad Shinguitti, or as the Shinguitti "nation", as
Mauritania suggests, or as some form of league or association, the difficulty remains that it
did not have the character of a personality or corporate entity distinct from the several
emirates and tribes which composed it. The proposition, therefore, that the Bilad Shinguitti
should be considered as having been a Mauritanian "entity" enjoying some form of
sovereignty in Western Sahara is not one that can be sustained.
COURT CONCLUDES THAT AT TIME OF COLONIZATION, THERE IS NO TIE OF
SOVEREIGNTY OR OF ALLEGIANCE OF TRIBES, OR OF SIMPLE INCLUSION IN THE
SAME LEGAL ENTITY BETWEEN W. SAHARA AND MAURITANIA.
150. In the light of the above considerations, the Court must conclude that at the time of
colonization by Spain there did not exist between the territory of Western Sahara and the
Mauritanian entity any tie of sovereignty, or of allegiance of tribes, or of "simple inclusion"
in the same legal entity.
BUT “LEGAL TIES” IN THE GA’S RESOLUTION CONSIDERS THE POSSIBILITY OF
OTHER LEGAL TIES.
151. This conclusion does not, however, mean that the reply to Question II should
necessarily be that at the time of colonization by Spain no legal ties at all existed between
the territory of Western Sahara and the Mauritanian entity. The language employed by the
GA in Question II does not appear to the Court to confine the question exclusively to those
legal ties which imply territorial sovereignty. On the contrary, the use of the expression
"legal ties" in conjunction with "Mauritanian entity" indicates that Question II envisages the
possibility of other ties of a legal character. To confine the question to ties of sovereignty
would, moreover, be to ignore the special characteristics of the Saharan region and
peoples to which reference has been made in paragraphs 87 and 88 above, and also to
disregard the possible relevance of other legal ties to the various procedures concerned in
the decolonization process.
NOMADISM CREATED CERTAIN TIES OF LEGAL CHARACTER.
152. The information before the Court makes it clear that the nomadism of the great
majority of the peoples of Western Sahara at the time of its colonization gave rise to
certain ties of a legal character between the tribes of the territory and those of
neighbouring regions of the Bilad Shinguitti. The migration routes of almost all the nomadic
tribes of Western Sahara, the Court was informed, crossed what were to become the
colonial frontiers and traversed, inter alia, substantial areas of what is today the territory of
the Islamic Republic of Mauritania. The tribes, in their migrations, had grazing pastures,
cultivated lands, and wells or water-holes in both territories, and their burial grounds in one
or other territory. These basic elements of the nomads' way of life, as stated earlier in this
Opinion, were in some measure the subject of tribal rights, and their use was in general
regulated by customs. Furthermore, the relations between all the tribes of the region in
such matters as inter-tribal clashes and the settlement of disputes were also governed by a
body of inter-tribal custom. Before the time of Western Sahara's colonization by Spain,
those legal ties neither had nor could have any other source than the usages of the tribes
themselves or Koranic law. Accordingly, although the Bilad Shinguitti has not been shown
to have existed as a legal entity, the nomadic peoples of the Shinguitti country should, in
the view of the Court, be considered as having in the relevant period possessed rights,
including some rights relating to the lands through which they migrated. These rights, the
Court concludes, constituted legal ties between the territory of Western Sahara and the
"Mauritanian entity", this expression being taken to denote the various tribes living in the
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territories of the Bilad Shinguitti which are now comprised within the Islamic Republic of
Mauritania. They were ties which knew no frontier between the territories and were vital to
the very maintenance of life in the region.
OVERLAPPING CHARACTER OF THE TIES OF MOROCCO AND MAURITANIA WITH
W. SAHARA.
153. In the oral proceedings, Morocco and Mauritania both laid stress on the overlapping
character of the respective legal ties which they claim Western Sahara to have had with
them at the time of colonization. Although the view of the Court as to the nature of those
ties differs in important respects from those of the two States concerned, the Court is of the
opinion that the overlapping character of the ties of the territory with Morocco and the
"Mauritanian entity", as defined by the Court, calls for consideration in connection with
Question II. This is because the overlapping character of the ties appears to the Court to
be a significant element in appreciating their scope and implications.
154. The views of Morocco and Mauritania appear to have evolved considerably since their
respective claims to special links with Western Sahara were first raised in the UN. It
suffices, for the purposes of this Opinion, to note their views as finally formulated before
the Court.
MOROCCO’S ASSERTION.
155. Morocco's views were explained as follows:
"Morocco asserts the exercise of its sovereignty, but it does not deny, in so doing,
that legal ties of another nature, no less essential having regard to the question
put to the Court and to the forms of political life in the region concerned at the
time of Spanish colonization, may be asserted by Mauritania. '
...............................
the sovereignty invoked by Morocco and the legal ties invoked by Mauritania
were exercised on nomadic tribes and had their first impact on human beings. Of
course, these human beings traced in their travels the outline of a territorial entity
but, because of the very nature of the relationships between man and the land,
some geographical overlappings were inevitable.
When Morocco cites dahirs addressed to geographical destinations extending to
Cabo Blanco, it is relying on documents attesting the allegiance of tribes finding
themselves at given times at certain points in their nomadic itineraries. But it
does not mean thereby to claim that, viewed from the standpoint of the
destination of the dahir, the strongest link was not with the Mauritanian entity.
Conversely, Morocco does not consider that geographical reference by
Mauritania to the outer limits of the nomadic itineraries of Mauritanian tribes rules
out the predominance of Moroccan sovereignty in those areas.
In short, there is a north and there is a south which juxtapose in space the legal
ties of Western Sahara with Morocco and with Mauritania."
Amplifying this explanation, Morocco said:
". . . when Morocco refers to Cabo Blanco and Villa Cisneros in stating
arguments of a general character, it is not intending thereby to maintain that its
sovereignty extended over those regions at the time of the Spanish colonization;
for at the period under consideration those regions were an integral part of the
Mauritanian entity, to which the Islamic Republic of Mauritania is the sole
successor."
MAURITANIA’S ASSERTION.
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156. The views of Mauritania were explained as follows:
". . . the Governments of the Islamic Republic of Mauritania and of the Kingdom
of Morocco recognize that there is a north appertaining to Morocco, a south
appertaining to Mauritania and that there are some overlappings as a result of
the intersection of the nomadic routes from the north and from the south. As a
result, therefore, there is no no-man's land between the influence of Morocco and
that of the Mauritanian entity . . ."
"The areas of overlap which have been referred to before the Court implied the
superimposition of the Mauritanian entity, the Shinguitti entity, and the Kingdom
of Morocco, solely where they met. Thus the mention of Cabo Blanco and Villa
Cisneros by Morocco cannot signify that those regions were, at the time of
colonization, under Moroccan sovereignty, as was conceded . . . on 25 July . . .
Similarly, the fact that there may have been this or that Mauritanian nomadic
migration in the region of the Sakiet El Hamra cannot be regarded as implying
any dispute as to the fact that that region appertains to the Kingdom of Morocco,
which, in the view of the Mauritanian Government, did not end at the limits of the
Makhzen."
157. It has to be added that Morocco and Mauritania both emphasized that, in their view,
the overlapping left "no geographical void" -- no "no-man's land" -- between their
respective ties with Western Sahara.
158. The Court, as has already been indicated, concurs in the view that Question II does
not envisage any form of territorial delimitation by the Court. It is also evident that the
conclusions reached by the Court concerning the ties which existed between Western
Sahara and the Kingdom of Morocco or the Mauritanian entity, as defined above, at the
time of colonization lead also to the conclusion that there was a certain overlapping of
those ties. The findings of the Court, however, regarding the nature of the legal ties of the
territory respectively with the Kingdom of Morocco and the Mauritanian entity differ
materially from the views advanced in that respect by Morocco and Mauritania. In the
opinion of the Court those ties did not involve territorial sovereignty or co-sovereignty or
territorial inclusion in a legal entity. In consequence, the "geographical overlapping" drawn
attention to by the two States had, in the Court's view, a different character from that
envisaged in the statements quoted above.
CAUSE OF OVERLAPPING.
159. The overlapping arose simply from the geographical locations of the migration routes
of the nomadic tribes; and the intersection and overlapping of those routes was a crucial
element in the complex situation found in Western Sahara at that time. To speak of a
"north" and a "south" and an overlapping with no void in between does not, therefore,
reflect the true complexity of that situation. This complexity was, indeed, increased by the
independence of some of the nomads, notably the Regheibat, a tribe prominent in Western
Sahara. The Regheibat, although they may have had links with the tribes of the Bilad
Shinguitti, were essentially an autonomous and independent people in the region with
which these proceedings are concerned. Nor is the complexity of the legal relations of
Western Sahara with the neighbouring territories at that time fully described unless
mention is made of the fact that the nomadic routes of certain tribes passed also within
areas of what is present-day Algeria.
SIGNIFICANCE OF THE GEOGRAPHICAL OVERLAPPING.
160. In the view of the Court, therefore, the significance of the geographical overlapping is
not that it indicates a "north" and a "south" without a "no-man's land". Its significance is
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rather that it indicates the difficulty of disentangling the various relationships existing in the
Western Sahara region at the time of colonization by Spain.
REITERATIONS.
161. As already indicated in paragraph 70 of this Opinion, the GA has made it clear, in
resolution 3292 (XXIX), that the right of the population of Western Sahara to self-
determination is not prejudiced or affected by the present request for an advisory opinion,
nor by any other provision contained in that resolution. It is also clear that, when the GA
asks in Question II what were the legal ties between the territory of Western Sahara and
the Kingdom of Morocco and the Mauritanian entity, it is addressing an enquiry to the Court
as to the nature of these legal ties. This question, as stated in paragraph 85 above, must
be understood as referring to such legal ties as may affect the policy to be followed in the
decolonization of Western Sahara. In framing its answer, the Court cannot be unmindful of
the purpose for which its opinion is sought. Its answer is requested in order to assist the
Ga to determine its future decolonization policy and in particular to pronounce on the
claims of Morocco and Mauritania to have had legal ties with Western Sahara involving the
territorial integrity of their respective countries.
COURT FINDS NO TIE OF TERRITORIAL SOVEREIGNTY BETWEEN W. SAHARA AND
MOROCCO OR MAURITANIA.
162. The materials and information presented to the Court show the existence, at the time
of Spanish colonization, of legal ties of allegiance between the Sultan of Morocco and
some of the tribes living in the territory of Western Sahara. They equally show the
existence of rights, including some rights relating to the land, which constituted legal ties
between the Mauritanian entity, as understood by the Court, and the territory of Western
Sahara. On the other hand, the Court's conclusion is that the materials and information
presented to it do not establish any tie of territorial sovereignty between the territory of
Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has
not found legal ties of such a nature as might affect the application of resolution 1514 (XV)
in the decolonization of Western Sahara and, in particular, of the principle of self-
determination through the free and genuine expression of the will of the peoples of the
Territory (cf. paragraphs 54-59 above).
.163. For these reasons, THE COURT DECIDES, with regard to Question 1,
by 13 votes to 3,
and with regard to Question II, by 14 votes to 2,
to comply with the request for an advisory opinion;
with regard to Question 1,
unanimously, that Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of
colonization by Spain was nota territory belonging to no-one (terra nullius);
with regard to Question II, by 14 votes to 2,
that there were legal ties between this territory and the Kingdom of Morocco of the kinds
indicated in paragraph 162 of this Opinion;
by 15 votes to 1, that there were legal ties between this territory and the Mauritanian entity
of the kinds indicated in paragraph 162 of this Opinion.
Preah Vihear Temple Case  please refer to the previous digest compilation
Burkina Faso vs. Republic of Mali (Dec 22, 1986)
80
Frontier dispute - Frontiers inherited from the colonial period - Applicable law - Principle
of uti possidetis juris - Nature and scope of the principle - Critical date - Place of colonial
law (French droit d'outre-mer) - Role of equity infra legem - Form of equity which would
constitute a method of interpretation of the law.
Conduct of a Party - Argument from acquiescence - Unilateral act of one government -
Intention to become bound - Interpretation of the act in the light of all the factual
circumstances and of the possibility of becoming bound by other means - Acceptance of
the application to the dispute of certain principles and rules - Rules expressly recognized
by the contesting States.
Interests of a third State - Frontier ending in a tripoint - Judicial competence and
exercise of the judicial function - Distinction between the determination of a land boundary
and the identification of the rules applicable to the delimitation of the continental shelf -
Duty of the Chamber to rule upon the whole of the petitum.
Titles and evidence - Difficulties relating to evidence - Legislative and regulatory texts -
Value of the texts as evidence independently of their validity in the internal legal order -
Cartographic materials - Maps as extrinsic evidence - Possibility of a map being one of the
elements constituting the expression of the State's intentions - Value of maps as evidence -
Technical reliability - Neutrality of their sources - Problems raised in this case by the
cartographic materials (incompatibility, deficiencies) - The 'colonial effectivites' as evidence
of the effective exercise of territorial jurisdiction - Correspondence among the colonial
administrators.
Equitable application of a rule of law - Local agreement not approved by the competent
authorities on the international plane - Circumstances in which the agreement was
reached.
Parties: Republic of Nicaragua and the Government of the United States of America
Note: Summary of facts (DISCLAIMER: GALING LANG SA DIGEST to ok?)
“Before the Chamber had the opportunity to decide the question, the dispute flared up into
war on Christmas Day 1985 apparently because of a census carried out by Burkinabe
authorities allegedly violating Malian sovereignty. Both Parties then asked the Chamber to
indicate provisional measures in order to preserve their respective rights although, at the
same time, they were engaged, since 1977, in a political mediation endeavour within a
regional West African group under the Accord de non-agression et d'assistance en matière
de dèfense (A.N.A.D.). On 30 December 1985, this group reached a common declaration
made by Burkina Faso and Mali containing the terms of a cease-fire but postponing the
question of troop withdrawal which, according to Burkina Faso, should be ordered by the
Court. With a view to the common declaration and the negotiation process under the
auspices of A.N.A.D., Mali objected to the request. In its Order of 10 January 1986, the
Chamber stated that the negotiations between the Parties were not incompatible with the
functions of the Court but concluded, with regard to this special item, that an order
concerning the withdrawal of the troops required geographical and strategic expertise
which the Chamber lacked so that the regulation of this point was left to the A.N.A.D.
process. Among the provisional measures indicated by the Chamber there may be
mentioned the order to re-establish, as regards the administration of the disputed areas,
the status quo ante the armed conflict.”
I. Basic Facts (par. 1-14)
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1. By a joint letter dated 14 October 1983, filed in the Registry of the Court on 20 October
1983, the Minister for Foreign Affairs and International Co-operation of the Republic of Mali
and the Minister for Foreign Affairs of the Republic of Upper Volta transmitted to the
Registrar a Special Agreement which was dated 16 September 1983, by which Upper Volta
and Mali had agreed to submit to a chamber of the Court, to be constituted pursuant to
Article 26, paragraph 2, of the Statute of the Court, a dispute relating to the delimitation of
part of their common frontier.
2. Contents of Special Agreement (Sep 16, 1983):
The main question: 'What is the line of the frontier between the Republic of the Upper
Volta and the Republic of Mali in the disputed area?'
Or “What is the frontier which was inherited from the French administration, that is, the
frontier which existed at the moment of independence?” -> par. 33
NOTE: The disputed area consists of a band of territory extending from the sector Koro
(Mali) Djibo (Upper Volta) up to and including the region of the Beli.
3. In a letter dated 24 January 1986, the Co-Agent of the Republic of Mali transmitted to
the Registrar the final communique, issued on 18 January 1986, of the first extraordinary
conference of Heads of State and Government of the member countries of ANAD (Accord
de non-agression et d'assistance en matiere de defense). That communique reported that
the Heads of State of Burkina Faso and the Republic of Mali had agreed 'to withdraw all
their armed forces from either side of the disputed area and to effect their return to their
respective territories'.
II. SUBMISSIONS OF THE PARTIES (PARA. 15)
On behalf of Burkina Faso
In accordance with the Special Agreement of 16 September 1983, it asked the court to
adjudge and declare that the course of the frontier between Burkina Faso and the Republic
of Mali is constituted by the following line:
a. West of the point with the geographical co-ordinates:
longitude 0 40'47"W
latitude 15 00'03'N
-the line is as shown on the 1:200,000 scale map of the French Institut geographique
national (1960 edition), the villages of Dioulouna, Oukoulou, Agoulourou and Koubo being
located in Burkinabe territory.
b. East of the point with the geographical co-ordinates:
longitude 0 40'47"W
latitude 15 00'03"N
-the line corresponds to the information given in letter 191 CM2 of *561 19 February 1935,
and on the 1:500,000 scale map, 1925 edition, as far as the northern point of the pool of In
Abao.
c. From the northern point of the pool of In Abao, the line follows the course shown on
the 1:500,000 scale map, 1925 edition, leaving the region of the Beli to Burkina Faso, as
far as the tripoint with the frontier of Niger, which is formed by the heights of N'Gouma,
situated to the north of the Kabia ford.
81
On behalf of Mali
Ask the court to state that the frontier line between the Republic of Mali and Burkina Faso
in the disputed area runs through the following points:
- Lofou,
- the mosque-shaped enclosure situated 2 kilometres to the north of Diguel,
- a point situated 3 kilometres to the south of Kounia,
- The Selba baobab,
- the tondigaria,
- Fourfare Tiaiga,
- Fourfare Wande,
- Gariol,
- Gountoure Kiri,
- a point to the east of the pool of Ketiouaire, having the following geographical co-
ordinates: longitude 0 44'47"W latitude 14 56'52"N
- the pool of Raf Naman,
and from that point follows the marigot passing, in particular, through the pool of Fadar-
Fadar, the pool of In Abao, the pool of Tin Akoff and the pool of In Tangoum, terminating at
the Kabia ford.
It was also asked to the Court that it should refrain from determining the tripoint between
the Republic of Mali, Burkina Faso and Niger.
Note Par. 16 --- summary of the entire dispute
The task entrusted to the Chamber in this case by the Special Agreement concluded
between the two Parties on 16 September 1983 is that of indicating the line of the frontier
between Burkina Faso and the Republic of Mali in the disputed area, as defined in that
Special Agreement. The two States have a common frontier of 1,380 kilometres according
to Burkina Faso and 1,297 kilometres according to Mali, of which almost 900 kilometres
according to Burkina Faso and almost 1,022 kilometres according to Mali have been
successfully delimited by agreement between the Parties. The disputed area is defined by
the Special Agreement as 'a band of territory extending from the sector Koro (Mali) Djibo
(Upper Volta) up to and including the region of the Beli'. The Beli is the largest of the
temporary watercourses in the region. It originates in the eastern slopes of the Hombori
mountains and flows to the south-east before joining the Niger river outside the disputed
area. In the dry season it consists of a chain of 11 pools. In their submissions to the
Chamber, each of the Parties indicated the frontier line which it considered well-founded in
law. According to either contention, the disputed frontier runs in an approximately west-
east direction between Mali to the north and Burkina Faso to the south. The end-point of
the frontier to the east, the position of which has not been determined, is also a point on
the frontier between Niger and the two disputant States and is, accordingly a tripoint. By
the Niamey Protocol of 23 June 1964 between Upper Volta and Niger, those two States
agreed that, for the purpose of delimiting their common frontier, they would have recourse
to certain documents which were mentioned in the Protocol and treated as basic
documents. However, the two States have not as yet carried out any delimitation
operations. As for the frontier between Mali and Niger, it was decided at a recent meeting
between representatives of those two States that bilateral negotiations would be set in train
with a view to determining it, but no agreement has at present been concluded on the
subject.
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In the present case, Mali maintains, that the Chamber must refrain from taking any
decision on the position of the above-mentioned tripoint. Burkina Faso, on the
other hand, maintains that such a decision is necessary as an integral part of the
task entrusted to the Chamber.
III. DISTINCTION BETWEEN 'DELIMITATION DISPUTES' AND 'DISPUTES AS TO
ATTRIBUTION OF TERRITORY' (PAR. 17-18)
Legal Writer’s Distinction:
a) Frontier Disputes or Delimitation Disputes -- refer to delimitation operations affecting
what has been described as 'a portion of land which is not geographically autonomous.’
b) Disputes as to attribution of territory -- refer to delimitation operations affecting what has
been described as 'a portion of land which is not geographically autonomous’.
Both Parties seem ultimately to have accepted that the present dispute belongs rather to
the category of delimitation disputes, even though they fail to agree on the conclusions to
be drawn from this. In fact, however, in the great majority of cases, including this one, the
distinction outlined above is not so much a difference in kind but rather a difference of
degree as to the way the operation in question is carried out. The effect of any
delimitation, no matter how small the disputed area crossed by the line, is an
apportionment of the areas of land lying on either side of the line.
In the present case, it may be noted that the Special Agreement, in Article I, refers not
merely to a line to be drawn, but to a disputed 'area', which it defines as consisting of a
'band' of territory encompassing the 'region' of the Beli.
IV. SOURCE OF RIGHTS OF PARTIES: Principle of the intangibility of frontiers
inherited from colonization (PAR 19)
It must be remembered that both States derived their existence from the process of
decolonization which has been unfolding in Africa during the past 30 years (at that time).
Their territories, and that of Niger, were formerly part of the French colonies which were
grouped together under the name of French West Africa (AOF). It can be said that Burkina
Faso corresponds to the colony of Upper Volta, and the Republic of Mali to the colony of
Sudan (formerly French Sudan).
It is to be supposed that both parties drew inspiration from the principle expressly stated in
the well-known resolution (AGH/Res. 16 (I)), adopted at the first session of the
Conference of African Heads of State and Government, meeting in Cairo in 1964,
whereby the Conference solemnly declared that all member States of the Organization of
African Unity 'solemnly . . . pledge themselves to respect the frontiers existing on their
achievement of national independence'
Hence, both parties asked the court to resolve the dispute by using the 'principle of the
intangibility of frontiers inherited from colonization.'
V. THE PRINCIPLE OF UTI POSSIDETIS JURIS (PAR 20-26);
20. Since the two Parties had expressly requested the Chamber to resolve their dispute on
the basis, in particular, of the 'principle of the intangibility of frontiers inherited from
colonization', the Chamber cannot disregard the principle of uti possidetis juris, the
application of which gives rise to this respect for intangibility of frontiers. Although there is
no need, for the purposes of the present case, to show that this is a firmly established
principle of international law where decolonization is concerned, the Chamber nonetheless
82
wishes to emphasize its general scope, in view of its exceptional importance for the African
continent and for the two Parties. In this connection it should be noted that the principle of
uti possidetis seems to have been first invoked and applied in Spanish America, inasmuch
as this was the continent which first witnessed the phenomenon of decolonization involving
the formation of a number of sovereign States on territory formerly belonging to a single
metropolitan State. Nevertheless the principle is not a special rule which pertains solely to
one specific system of international law. It is a general principle, which is logically
connected with the phenomenon of the obtaining of independence, wherever it occurs. Its
obvious purpose is to prevent the independence and stability of new States being
endangered by fratricidal struggles provoked by the challenging of frontiers following the
withdrawal of the administering power.
21. It was for this reason that, as soon as the phenomenon of decolonization characteristic
of the situation in Spanish America in the 19th century subsequently appeared in Africa in
the 20th century, the principle of uti possidetis, in the sense described above, fell to be
applied. The fact that the new African States have respected the administrative
boundaries and frontiers established by the colonial powers must be seen not as a
mere practice contributing to the gradual emergence of a principle of customary
international law, limited in its impact to the African continent as it had previously
been to Spanish America, but as the application in Africa of a rule of general scope.
22. The elements of uti possidetis were latent in the many declarations made by African
leaders in the dawn of independence. These declarations confirmed the maintenance of
the territorial status quo at the time of independence, and stated the principle of respect
both for the frontiers deriving from international agreements, and for those resulting from
mere internal administrative divisions. The Charter of the Organization of African Unity did
not ignore the principle of uti possidetis, but made only indirect reference to it in Article 3,
according to which member States solemnly affirm the principle of respect for the
sovereignty and territorial integrity of every State. However, at their first summit conference
after the creation of the Organization of African Unity, the African Heads of State, in their
Resolution mentioned above (AGH/Res. 16 (I)), adopted in Cairo in July 1964,
deliberately defined and stressed the principle of uti possidetis juris contained only
in an implicit sense in the Charter of their organization.
23. There are several different aspects to this principle, in its well-known application in
Spanish America. The first aspect, emphasized by the Latin genitive juris, is found in the
pre-eminence accorded to legal title over effective possession as a basis of sovereignty.
Its purpose, at the time of the achievement of independence by the former Spanish
colonies of America, was to scotch any designs which non-American colonizing powers
might have on regions which had been assigned by the former metropolitan State to one
division or another, but which were still uninhabited or unexplored. However, there is more
to the principle of uti possidetis than this particular aspect. The essence of the principle
lies in its primary aim of securing respect for the territorial boundaries at the
moment when independence is achieved. Such territorial boundaries might be no more
than delimitations between different administrative divisions or colonies all subject to the
same sovereign. In that case, the application of the principle of uti possidetis resulted in
administrative boundaries being transformed into international frontiers in the full sense of
the term. This is true both of the States which took shape in the regions of South America
which were dependent on the Spanish Crown, and of the States Parties to the present
case, which took shape within the vast territories of French West Africa. Uti possidetis, as
a principle which upgraded former administrative delimitations, established during the
colonial period, to international frontiers, is therefore a principle of a general kind which
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is logically connected with this form of decolonization wherever it occurs.
24. The territorial boundaries which have to be respected may also derive from
international frontiers which previously divided a colony of one State from a colony of
another, or indeed a colonial territory from the territory of an independent State, or one
which was under protectorate, but had retained its international personality. There is no
doubt that the obligation to respect pre-existing international frontiers in the event of a
State succession derives from a general rule of international law, whether or not the rule is
expressed in the formula uti possidetis. Hence the numerous solemn affirmations of the
intangibility of the frontiers existing at the time of the independence of African States,
whether made by senior African statesmen or by organs of the Organization of African
Unity itself, are evidently declaratory rather than constitutive: they recognize and
confirm an existing principle, and do not seek to consecrate a new principle or the
extension to Africa of a rule previously applied only in another continent.
25. However, it may be wondered how the time-hallowed principle has been able to
withstand the new approaches to international law as expressed in Africa, where the
successive attainment of independence and the emergence of new States have been
accompanied by a certain questioning of traditional international law. At first sight this
principle conflicts outright with another one, the right of peoples to self-
determination. In fact, however, the maintenance of the territorial status quo in
Africa is often seen as the wisest course, to preserve what has been achieved by
peoples who have struggled for their independence, and to avoid a disruption which
would deprive the continent of the gains achieved by much sacrifice. The essential
requirement of stability in order to survive, to develop and gradually to consolidate their
independence in all fields, has induced African States judiciously to consent to the
respecting of colonial frontiers, and to take account of it in the interpretation of the principle
of self-determination of peoples.
26. Thus the principle of uti possidetis has kept its place among the most important legal
principles, despite the apparent contradiction which explained its coexistence alongside
the new norms. Indeed it was by deliberate choice that African States selected, among all
the classic principles, that of uti possidetis. This remains an undeniable fact. In the light of
the foregoing remarks, it is clear that the applicability of uti possidetis in the present
case cannot be challenged merely because in 1960, the year when Mali and Burkina
Faso achieved independence, the Organization of African Unity which was to
proclaim this principle did not yet exist, and the above-mentioned resolution calling
for respect for the pre-existing frontiers dates only from 1964.
VI. WHAT EQUITY CAN BE INVOKED: INFRA LEGEM (27-28)
27, Mali urges that account should be taken of 'that form of equity which is inseparable
from the application of international law', which it sees as equivalent to equity infra legem.
Although it did not object to this concept being resorted to, Burkina Faso considered that it
was far from clear what the practical implications would be in this case. It emphasized that
in the field of territorial boundary delimitation there is no equivalent to the concept of
'equitable principles' so frequently referred to by the law applicable in the delimitation of
maritime areas. Mali did not question this statement; it explained that what it had in mind
was simply the equity which is a normal part of the due application of law.
28. It is clear that the Chamber cannot decide ex aequo et bono in this case. Since the
Parties have not entrusted it with the task of carrying out an adjustment of their respective
interests, it must also dismiss any possibility of resorting to equity contra legem. Nor will
83
the Chamber apply equity praeter legem. On the other hand, it will have regard to equity
infra legem, that is, that form of equity which constitutes a method of interpretation
of the law in force, and is one of its attributes. As the Court has observed: 'It is not a
matter of finding simply an equitable solution, but an equitable solution derived from the
applicable law." (Fisheries Jurisdiction, I.C.J. Reports 1974, p. 33, para. 78; p. 202, para.
69.)
---- note----
Only equity infra legem was to be considered. This is shown by the application which the
Chamber made of equity in delimitating the frontier on the basis of the rules and principles
applicable in the case. These considerations of equity infra legem had to come into play in
order to guide the Chamber in the exercise of its functions of interpreting and applying the
law and the legal titles involved, since it had to draw a delimitation line and not only to
indicate the principles on the basis of which the Parties would themselves proceed
to delimitation.
VII. FRENCH COLONIAL LAW: 'droit d'outre-mer' (par. 29-30)
Chamber had to refer to the French colonial law, droit d'outre-mer, since both Parties had
been part of French West Africa. As the frontier between the Parties became an
international frontier upon independence, French law, according to the Chamber, could
no longer play a role in itself but only as one factual element among others, or as
evidence indicative of what has been called the "colonial heritage" (i.e. the
photograph of the territory), because international law did not contain any renvoi to
the law of the colonizing States.
Note: paragraphs 31-33 trace the history of the French colonization…
The Judgment briefly reviews how territorial administration was organized in French West
Africa - to which both Parties previously belonged - with its hierarchy of administrative units
(colonies, cercles, subdivisions, cantons, villages), before recapitulating the history of both
the colonies concerned since 1919, in order to determine what, for each of the two Parties,
was the colonial heritage to which the un possidetis was to apply. Mali gained its
independence in 1960 under the name of the Federation of Mali, succeeding the Sudanese
Republic which had emerged, in 1959, from an overseas territory called the French Sudan.
The history of Upper Volta is more complicated. It came into being in 1919 but was then
abolished in 1932, and again reconstituted by a law of 4 September 1947, which stated
that the boundaries of "the re-established territory of Upper Volta" were to be "those of the
former colony of Upper Volta on 5 September 1932". It was this reconstituted Upper Volta
which subsequently obtained independence in 1960 and took the name of Burkina Faso in
1984. In the present case, therefore, the problem is to ascertain what frontier was inherited
from the French administration; more precisely, to ascertain what, in the disputed area,
was the frontier which existed in 1959-1960 between the territoires d'outre-mer of Sudan
and Upper Volta. The Parties both agree that when they became independent there was a
definite frontier, and they accept that no modification took place in the disputed area
between January 1959 and August 1960, or has taken place since.
VIII. PRELIMINARY QUESTION NUMBER 1: ALLEGED ACQUIESENCE OF MALI
(para. 34- 43)
[NOTE THAT if this objection were well-founded there would have been no need for the
Chamber to establish the frontier inherited from the colonial period.]
[i] Burkina Faso had argued that Mali had accepted as binding the solution to the dispute
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outlined by the Mediation Commission of the Organization of African Unity.
 Basis of claim (Par. 37)
“On 17 and 18 June 1975, the Mediation Commission met at Lome. With the
participation of the Presidents of Upper Volta and Mali, the Commission adopted a final
communique stating that:
'Upper Volta and Mali undertake to bring their dispute to an end on the basis of
the recommendations of the Mediation Commission.
The Chamber, however, disposed of this objection because, on the one hand, (a) both
Parties had agreed that the Commission had not been a judicial organ competent to
issue legally binding decisions and, on the other hand, (b) the Commission had never
completed its work.
[ii] Burkina also noted the official declarations of Mali concerning the acceptance of the
binding character of the solution to be found by the Commission
Basis of argument (Par. 36):
“On 11 April 1975, the head of State of Mali granted an interview to the France-
Presse agency, during which he stated that:
'Mali extends over 1,240,000 square kilometres, and we cannot justify fighting for
a scrap of territory 150 kilometres long. Even if the Organization of African Unity
Commission decides objectively that the frontier line passes through Bamako, my
Government will comply with the decision.'
The Chamber stated that those declarations had not been made during negotiations
between the two Parties and thus could at most be regarded as unilateral acts not
intended to create legal obligations.
Citing Nuclear Test Cases (par. 39)
But the Court also made clear in those cases that it is only 'when it is the intention of the
State making the declaration that it should become bound according to its terms'
that 'that intention confers on the declaration the character of a legal undertaking'.
Thus it all depends on the intention of the State in question, and the Court emphasized that
it is for the Court to 'form its own view of the meaning and scope intended by the author of
a unilateral declaration which may create a legal obligation' (I.C.J. Reports 1974, pp. 267,
472
Citing Nicaragua vs. US
The Court therein examined a communication transmitted by the Junta of National
Reconstruction of Nicaragua to the Organization of American States, in which the Junta
listed its objectives; but the Court was unable to find anything in that communication 'from
which it can be inferred that any legal undertaking was intended to exist' (I.C.J.
Reports 1986, p. 132, para. 261).
[iii] Burkina Faso argued that Mali had acquiesced to the application of the principles of
delimitation approved by the sub-commission and intended to serve as a basis for the final
report of the Mediation Commission (par 41)
84
 Basis of argument (par 37)
“On 17 and 18 June 1975, the Mediation Commission met at Lome. With the
participation of the Presidents of Upper Volta and Mali, the Commission adopted a final
communique stating that:
'Upper Volta and Mali undertake to bring their dispute to an end on the basis of
the recommendations of the Mediation Commission.
The two Parties agree to the establishment by the Chairman of the Mediation
Commission of a neutral technical committee . . . the task of this committee being
to determine the location of the villages of Dionouga, Diolouna, Oukoulou and
Koubo, to reconnoitre the frontier and to make proposals for its materialization to
the Commission.'”
The Chamber found that Mali's approach to those principle was of little significance: since
the Chamber had to decide on the basis of international law the principles found by the
sub-commission had to be applied as such if they were elements of law; if not, they were of
no importance since the Special Agreement did not refer to them.
IX. INTERFERENCE OF THIRD PERSON’S RIGHTS: fixing the tripoint (par 44-
50)
[i] Mali had argued that the Chamber was not competent to fix the tripoint Mali-Niger-
Burkina Faso, forming the end-point of the frontier between the parties, without Niger's
agreement. Burkina Faso in turn considered that according to the Special Agreement the
Chamber had to determine definitively the entire common frontier and thus to determine
the tripoint.
In the present case, the Chamber finds it to be clear from the wording of the Special
Agreement - including its preamble - that the common intention of the Parties was that the
Chamber should indicate the frontier line between their respective territories throughout the
whole of the 'disputed area', and that this area was for them the whole of the frontier not
yet delimited by joint agreement.
The Chamber also stated that its jurisdiction was not restricted only because of the fact
that the disputed area was adjacent to a third State, Niger, not party to the proceedings,
whose rights, incidentally, were protected under Article 59 of the Statute of the Court
which provides that 'The decision of the Court has no binding force except between
the parties and in respect of that particular case'
[ii] As to the second aspect of the question whether the need of safeguarding the interests
of a third State concerned would require the Chamber to refrain from determining the
whole course of the frontier line as requested in the Special Agreement
The Chamber found that this would presuppose that those legal interests of the third State
would form the very subject-matter of the decision which, however, was not the case: In
the present case, the Chamber had not so much to define a tripoint, as to indicate the
ultimate point of the frontier which ceases to divide the territories of Burkina Faso and Mali,
which implied logically that the territory of a third State (Niger) lies beyond the end-point of
that frontier. “The Chamber is in fact required, not to fix a tripoint, which would necessitate
the consent of all the States concerned, but to ascertain, in the light of the evidence which
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the Parties have made available to it, how far the frontier which they inherited from the
colonial power extends.” (par 49)
X. EVIDENCE RELIED ON BY THE PARTIES (paras. 51-65)
The Parties have relied upon different types of evidence to give support to their arguments.
1. PAR 51- Parties have referred to legislative and regulative texts or administrative
documents, of which the basic document is the French law of 4 September 1947 "for the
re-establishment of the territory of Upper Volta", providing that the boundaries of the re-
established territory were to be "those of the former colony of Upper Volta on 5 September
1932". At the time of independence in 1960, those boundaries were the same as those
which had existed on 5 September 1932.
 However, the texts and documents produced in evidence contain no complete
description of the course of the boundary between French Sudan and Upper Volta
during the two periods when these colonies co-existed (1919-1932 and 1947-1960).
They are limited in scope, and their legal force or the correct interpretation of them are
matters of dispute between the Parties.
2.PAR 53- Apart from the regulative or administrative texts referred to in Paragraph 52, the
two States have also produced an abundant and varied collection of cartographic materials
and have discussed in considerable detail the question of the probative force of the maps
and the respective legal force of the various kinds of evidence.
The Chamber notes that, in frontier delimitations, maps merely constitute information
(accuracy varies from case to case), and never constitute territorial titles in
themselves alone. They are merely extrinsic evidence which may be used, along with
other evidence, to establish the real facts. Their value depends on their technical
reliability and their neutrality in relation to the dispute and the Parties to that
dispute; they cannot effect any reversal of the onus of proof. Information derived from
human intervention, such as the names of places and of geographical features (the
toponymy) and the depiction of frontiers and other political boundaries, does not thereby
become more reliable.
 When considering the maps produced in this case, the Chamber notes that not one of
the maps available to it can provide a direct official illustration of the words contained in
four essential texts (see next section) even though it was clear from their wording that two
of those texts were intended to be accompanied by maps. Although the Chamber has been
presented with a considerable body of maps, sketches and drawings for a region that is
nevertheless described as partly unknown, no indisputable frontier line can be
discerned from these documents. Particular vigilance is therefore required in examining
the file of maps.
3. PAR 59- Two of the maps produced appear to be of special significance. These are the
1:500,000 scale map of the colonies of French West Africa, 1925 edition, known as the
Blondel la Rougery map, and the 1:200,000 scale map of West Africa, issued by the
French Institut géographique national (ION) and originally published between 1958 and
1960.
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PAR 60- With regard to the first of these maps (the Blondel la Rougery map), the
Chamber considers that the administrative boundaries shown on it do not in
themselves possess any particular authority.
PAR 61/62- With regard to the second map, the Chamber finds that, since it was drawn
up by a body which was neutral towards the Parties, although it does not possess
the status of a legal title, it is a visual portrayal both of the available texts and of
information obtained on the ground. However, having regard to the date on which the
surveys were made and the neutrality of the source, the Chamber considers that where all
other evidence is lacking, or is not sufficient to show an exact line, the probative value of
the IGN map becomes decisive.
3. PAR 63 Among the evidence to be taken into consideration, the Parties invoke the
"colonial effectivités in other words, the conduct of the administrative authorities as proof
of the effective exercise of territorial jurisdiction in the region during the colonial period.
 PAR 63 The role played in this case by such effectivites is complex, and the Chamber
will have to weigh carefully the legal force of these in each particular instance. It must
however state forthwith, in general terms, what legal relationship exists between such acts
and the titles on which the implementation of the principle of uti possidetis is grounded.
For this purpose, a distinction must be drawn among several eventualities. Where the act
corresponds exactly to law, where effective administration is additional to the uti
possidetis juris, the only role of effectivite is to confirm the exercise of the right
derived from a legal title. Where the act does not correspond to the law, where the
territory which is the subject of the dispute is effectively administered by a State other than
the one possessing the legal title, preference should be given to the holder of the title. In
the event that the effectivite does not co-exist with any legal title, it must invariably be
taken into consideration. Finally, there are cases where the legal title is not capable of
showing exactly the territorial expanse to which it relates. The effectivites can then play an
essential role in showing how the title is interpreted in practice.
*
 PAR 64 The Chamber emphasizes that the present case is a decidedly unusual one as
concerns the facts to be proven or the evidence to be produced. Although the Parties have
provided as complete a case file as possible, the Chamber cannot be certain of deciding
the case on the basis of full knowledge of the facts. The case file shows inconsistencies
and shortcomings. The systematic application of the rule concerning the burden of proof
cannot always provide a solution, and the rejection of any particular argument for lack of
proof is not sufficient to warrant upholding the contrary argument.
 PAR 65 In these circumstances, it is clear that the Court cannot resolve the problem by
means of any of its powers in the matter of evidence under Articles 48, 49 and 50 of its
Statute. Nor can the solution be looked for in a systematic application of the rule
concerning the burden of proof.
XI. LEGISLATIVE AND REGULATIVE TITLES AND ADMINISTRATIVE
DOCUMENTS INVOKED BY THE PARTIES: THEIR APPLICABILITY TO THE
DETERMINATION OF THE FRONTIER LINE (PARAS. 66-105) AND THE QUESTION OF
THEIR IMPLEMENTATION (PARAS. 106-111)
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The Chamber deals first with the legislative and regulative titles and the administrative
documents invoked by the Parties, and considers what weight to attach to each of them,
for the purpose of indicating the course of the line in the sector to which they relate. The
Judgment presents these texts in chronological order:
a. PAR 67 Order of 31 December 1922 for the reorganization of the Timbuktu
region.
The Parties agree in recognizing the validity and pertinence of this text.
b. PAR 68 Order dated 31 August 1927 issued by the Governor General ad interim
of French West Africa, relating to the boundaries of the colonies of Niger and Upper Volta;
this Order was amended by an erratum dated 5 October 1927.
The Parties both treat this text as relevant in so far as it refers to the tripoint discussed
previously. They disagree, however, regarding its validity; Mali claims that the Order and
the erratum are invalidated by a factual error relating to the location of the heights of
N'Gouma, so that Burkina Faso may not properly rely upon them.
The Chamber emphasizes that, in the present proceedings, the Order and erratum have
only evidentiary value in respect of the location of the end-point of the boundary between
French Sudan and Upper Volta. The Chamber considers it unnecessary to endeavour
to determine the legal validity of the text, its value as evidence - which is accepted
by Mali - being a separate question.
c. PAR 73- Decree of 5 September 1932 abolishing the colony of Upper Volta and
annexing its component cercles either to French Sudan or to Niger
d. PAR 75- Exchange of letters which took place in 1935: this correspondence
consists of letter 191 CM2 of 19 February 1935 addressed to the Lieutenant-Governors of
Niger and French Sudan by the Governor-General of French West Africa, and the reply
from the Lieutenant-Governor of the French Sudan dated 3 June 1935. The Governor-
General suggested a description of the boundary between Niger and the French Sudan, to
which the Lieutenant-Governor of the Sudan replied by proposing only one amendment.
 This description appears to correspond to the line shown on the Blondel la Rougery
map (see sketch map No. 3 in the Judgment). The draft description was not followed up
but its interpretation is a matter of dispute between the Parties, the issue being whether the
proposed description did no more than describe an existing boundary (the "declaratory"
theory of Burkina Faso) or whether the letter reflected an intention to define the legal
boundary de novo (the "modifying" theory argued by Mali). The Chamber concludes that
the definition of the boundary given in letter 191 CM2 corresponded, in the minds
both of the Governor-General and of all the administrators who were consulted, to
the defacto situation.
e. PAR 87 Order No 2728 AP issued on 27 November 1935 by the Governor-
General ad interim of French West Africa for the delimitation of the cercles of Bafoulabé,
Bamako and Mopti (French Sudan). The last-named cercle bordered on the cercle of
Ouahigonya, which was then a part of French Sudan and which reverted to Upper Volta as
from 1947. This boundary was again to form the boundary between the territories of Upper
Volta and Sudan until independence-hence its significance. The text describes the eastern
boundary of the Sudanese cercle of Mopti as being "a line running markedly north-east,
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leaving to the cercle of Mopti the villages of Yoro, Dioulouna, Oukoulou, Agoulourou,
Koubo . . . ". The Parties do not agree on the legal significance to be ascribed to this
provision. They disagree as to whether the line indicated in the text, which "leaves" the
villages in question to the cercle of Mopti, had the effect of attributing to that cercle villages
which had previously been part of another cercle (Burkina Faso's contention) or whether
this definition of the line rather implied that these villages already belonged to the cercle of
Mopti (Mali's contention).
 The Chamber considers whether the actual text of Order 2728 AP, and the
administrative context in which it was issued, provide any indication of the scope which the
Governor-General ad interim intended it to have. It concludes that there is at least a
presumption that Order 2728 AP had neither the aim nor the result of modifying the
boundaries which existed in 1935 between the Sudanese cercles of Mopti and
Ouahigouya (no modification having been made between 1932 and 1935).
 The Chamber then enquires whether the content of Order 2728 AP operates to reverse
or to confirm this presumption. It concludes from a detailed study of the documentary
and cartographic evidence from which these villages can be located that this
material does not overturn the presumption that Order 2728 AP was declaratory in
nature.
In the course of its demonstration, the Chamber explains that the part of the frontier
whose determination calls for the scope of Order 2728 AP to be ascertained has been
called in the Judgment "the sector of the four villages". The words "four villages" refer to
the villages of Dioulouna (which can be identified as the village which now goes under the
name of Dionouga), Oukoulou, Agoulourou and Koubo (the village of Yoro, also mentioned
in the Judgment, was definitely part of the cercle of Mopti, and is not in issue).
 The Chamber considers what relationship can be established among the pieces of
information provided by the various texts of which it has to make use, and reaches a
number of conclusions. It notes that on certain points the sources agree and bear one
another out, but that in some respects, in view of the shortcomings of the maps at the time,
they tend to conflict.
XII. Determination of the frontier in the disputed area (paras. 112-174)
(I am not sure if this part is relevant but I just added it anyway)
1. The end-point in the west (paras. 112-113)
The Chamber begins by fixing the end-point of the frontier already established between the
Parties by agreement, in other words the western extremity of the disputed area. They
have not clearly indicated this point, but the Chamber considers that it can justifiably
conclude that both Parties accept the frontier line shown on the 1:200,000 scale map of
West Africa published by the IGN to the south of the point with the geographical co-
ordinates 1° 59' 01" W and 14° 24' 40" N (point A on the map annexed to the Judgment). It
is from that point that the Parties are requesting it to indicate the line of their common
frontier in an easterly direction.
2. Villages and farming hamlets (paras. 114-117)
The Chamber considers it necessary to examine the meaning to be ascribed to the word
"village", since the regulative texts which fix the district boundaries generally refer merely
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to the villages comprising them, without further geographical clarification. It frequently
happens that the inhabitants of a village cultivate land some distance away, taking up
residence in "farming hamlets" forming dependencies of the village. The Chamber has to
decide whether, for the purpose of the delimitation which it is asked to effect, the farming
hamlets form part of the villages on which they depend. It is not persuaded that, when a
village was a feature used to define the composition of a wider administrative entity, these
farming hamlets were always taken into consideration in drawing the boundary of such an
entity. It is only when it has examined all the available information relating to the extent of a
particular village that it will be able to ascertain whether a particular piece of land is to be
treated as part of that village despite its lack of a connection with it, or as a satellite hamlet
which does not fall within the boundaries of the village.
3. The sector of the four villages (paras. 118-126)
Since Order 2728 AP defines the boundary between the cercles of Mopti and Ouahigouya
in terms of the villages "left" to the cercle of Mopti, the Chamber identifies the villages in
question and ascertains their territorial extent. It finds that Burkina Faso does not contest
the Malian character of the village of Yoro, and that there is no disagreement regarding the
first part of the frontier, which runs in a northerly direction from point A as far as the point
with the coordinates 1° 58' 49" W and 14° 28' 30" N (point B).
As for Dionouga, the Parties agree in identifying it with the village of Dioulouna mentioned
in the Order. The Chamber considers that it can conclude from the information available to
it, especially in relation to the track-laying operations undertaken on the orders of the
administrators concerned, these being a significant element of the "effectivités", that the
administrative boundary at the relevant time during the colonial period intersected the track
connecting this village to the nearby village of Diguel at a distance of approximately 7.5
kilometres to the south of Dionouga. The frontier line therefore does likewise, at the point
with the co-ordinates 1° 54' 24" W and 14° 29' 20" N (point C).
As for the villages of Oukoulou and Agoulourou, mentioned in Order 2728 AP, the Chamber
emphasizes that it is quite irrelevant whether these villages are now in existence or not.
The fact that they may have disappeared has no impact on the boundary which was
defined at the time. It may however be noted that the positions of the villages of Kounia
and Oukoulourou correspond to those of the two villages referred to in the Order.
As regards Koubo, about which there is some confusion of nomenclature, the information
available to the Chamber is not sufficient to establish with certainty whether it is the village
of Kobou or the hamlet of Kobo which corresponds to the village of Koubo mentioned in
the Order. But since the hamlet lies only 4 kilometres from the village, the Chamber
considers it reasonable to treat them as a whole, drawing the frontier in such a way as to
leave both of them to Mali.
The Chamber therefore considers that a line drawn at a distance of approximately 2
kilometres to the south of the present-day villages of Kounia and Okoulourou corresponds
to the boundary described in Order 2728 AP. This line runs through the point with the co-
ordinates 1° 46' 38" W and 14° 28' 54" N (point D) and through the point with the
coordinates 1° 40' 40" W and 14° 30' 03" N (point E).
4. The pool of Toussougou, the pool of Kétiouaire and the pool of Soum (paras. 127-150)
87
The line described in Order 2728 AP of 1935 extends in a "markedly north-east" direction,
"passing to the south of the pool of Toussougou and culminating in a point located to the
east of the pool of Kétiouaire". There is a problem as to the whereabouts of these pools,
since none of the maps contemporary with the Order which the Parties have presented to
the Chamber show any pools bearing these names. However, both Parties admit that there
is at least one pool in the region of the village of Toussougou, while offering as evidence
only maps which contradict one another. The question therefore arises whether the pool of
Féto Maraboulé, which lies to the south-west of the village and has only recently been
shown on the maps, is an integral part of this pool. The Chamber's opinion is that the two
pools remain separate, even during the rainy season, and that the pool of Féto Maraboulé
is not to be identified with the pool of Toussougou referred to in the Order, which is smaller
and lies close to the village with the same name. Moreover, an identification of the two
pools would have an impact on the course of the line. The Chamber, which has to interpret
the reference to the pool of Toussougou in Order 2728 AP, considers that the interpretation
to be made must be such as to minimize the margin of error involved in defining the tripoint
at which, according to letter 191 CM2, the cercles of Mopti, Ouahigouya and Dori meet.
Before defining the course of the line in relation to the pool of Toussougou, the Chamber
attempts to locate the pool of Kétiouaire, near which the boundary described in Order 2728
AP also ran.
In Order 2728 AP, the pool of Kétiouaire constitutes an important element of the boundary
therein defined. It therefore has to be ascertained whether, in 1935, there was a pool Lying
in a "markedly north-east" direction in relation to a point situated "to the south of the pool of
Toussougou", close to the tripoint of the cercles of Mopti, Gourma-Rharous and Dori, and
to the west of it. After due appraisal of all the information available to it, the Chamber is
unable to locate the pool of Kétiouaire. Nor does it consider any identification possible
between the pool of Kétiouaire and the pool of Soum, which is situated some kilometres to
the east/northeast of the pool of Toussougou and close to the meeting point, not of the
three cercles mentioned above, but of the cercles of Mopti, Ouahigouya and Dori.
The Chamber remains persuaded by the case file that the pool of Soum is a frontier pool,
but finds no indications dating from the colonial period from which the line could be said to
run either to the north or to the south of the pool, or to divide it. This being so, the Chamber
notes that although it has received no mandate from the Parties to make its own free
choice of an appropriate frontier, it has nevertheless the task of drawing a precise line, and
for that purpose can appeal to the equity infra legem which the Parties have themselves
acknowledged to be applicable in the present case. In order to achieve an equitable
solution along these lines, on the basis of the applicable law, the Chamber finds that
account must be taken, in particular, of the circumstances in which the commandants of
two adjacent cercles, one in Mali and the other in Upper Volta, recognized in a 1965
agreement, not endorsed by the competent authorities, that the pool should be shared. It
concludes that the pool of Soum must be divided in two in an equitable manner. The line
should therefore cross the pool in such a way as to divide its maximum area during the
rainy season equally between the two States.
The Chamber notes that this line does not pass through the co-ordinates mentioned in
letter 191 CM2, and concludes from an investigation of the topographical data that the
tripoint must have lain to the south-east of the point indicated by these co-ordinates. Since
this letter did not become a regulative text, it ranks only as evidence of the boundary which
had "de facto value" at the time. It now transpires that the maps then available were not
sufficiently accurate to warrant such a precise definition. Thus the fact that these
coordinates are found to have been defined with less accuracy than had been thought
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does not contradict the Governor-General's intention or deprive the letter of probative
force.
The boundary in this region takes the following course: from point E, the line continues
straight as far as a point with the co-ordinates 1° 19' 05" W and 14° 43' 45" N, situated
approximately 2.6kilometres south of the pool of Toussougou (point F), and then reaches
the pool of Soum at the point with the co-ordinates 1° 05' 34" W and 14° 47' 04" N (point
G); it crosses the pool from west to east, dividing it equally.
5. The sector from the pool of Soum to mount Tabakarech (paras. 151-156)
In order to determine the line of the frontier east of the pool of Soum, the Chamber has to
refer to the wording of letter 191 CM2 of 1935, which it has found to possess probative
value. According to Burkina Faso the line follows the indications in this letter and on the
Blondel la Rougery map of 1925, from the point with the co-ordinates 0° 50' 47" W and 15°
00' 03" N, as far as the pool of In Abao. There seems to be no doubt that the purpose of
letter 191 CM2 was to define in textual form a boundary shown on that map, and here the
Parties are in agreement. Mali has emphasized the inaccuracy and shortcomings of this
map as regards the toponomy and orography. The Chamber considers that in the sector
from the pool of Soum to Tabakarech no problem arises in the selection of a map. In the
absence of other indications to the contrary, the letter must be interpreted as contemplating
a straight line connecting mount Tabakarech to the tripoint where the boundaries of the
cercles of Mopti, Ouahigouya and Dori converge.
The Chamber concludes that from point G the frontier runs in a north-northeasterly
direction as far as the point mentioned by Burkina Faso, and from that point to Mount
Tabakarech. This hill is to be identified with the elevation which appears on the IGN
1:200,000 map under the name of Tin Tabakat, with the geographical co-ordinates 0° 43'
29" W and 15° 05' 00" N (point H).
6. The pool of In Abao (paras. 157-163)
In determining the next section of the line, the Chamber must refer to the Order made by
the Governor-General of French West Africa on 31 December 1922. In that Order, from the
pool of In Abao the western boundary of the cercle of Gao follows "the northern boundary
of Upper Volta". The boundary to be established by the Chamber must include that pool;
the pool must therefore be identified in order to determine the frontier line in relation to it.
The information on the various maps concerning the location and size of the pool is
contradictory (see sketch map No. 5 in the Judgment). From the information available the
Chamber considers it likely that the pool is the one located at the junction of two marigots,
one being the Béli, running from west to east, and the other running from north to south. In
the absence of more precise and reliable information than has been submitted to it
concerning the relationship between the frontier line and the pool of In Abao, the Chamber
must conclude that the boundary crosses the pool in such a way as to divide it equally
between the two Parties.
The frontier must follow the IGN line from point H as far as the point with the co-ordinates
0° 26' 35" W and 15° 05' 00" N (point I) where it turns south-east to join the Béli. It
continues straight as far as point J, which lies on the west bank of the pool of In Abao, and
point K, which lies on the east bank of the same pool. From point K, the line once more
runs in a north-easterly direction, and rejoins the IGN line at the point where that line, after
leaving the Béli to head north-eastward, again turns south-east to form an orographic
88
boundary (point L - 0° 14' 44" W and 15° 04' 42" N). Points J and K will be determined with
the assistance of experts appointed pursuant to Article IV of the Special Agreement.
7. The region of the Béli (para. 164)
For the whole of this region Mali, rejecting letter 191 CM2 of 1935, argues in favour of a
frontier running along the marigot. The two Parties have debated at length the choice
which was open to the administering power, as between a hydrographic frontier along the
Béli and an orographic frontier along the crestline of the elevations rising to the north of the
marigot. In the Chamber's opinion, letter 191 CM2 proves that the orographic boundary
was adopted. As for the boundary line described in that letter, the Chamber notes that the
IGN map enjoys the approval of both Parties, at least in regard to its representation of the
topography. It sees no reason to depart from the broken line of small crosses which is
shown on that map and appears to be a faithful representation of the boundary described
in letter 191 CM2, except with regard to the easternmost part of the line, where the
problem arises of Mount N'Gouma.
8. The heights of N'Gouma (paras. 165-174)
With regard to the final segment of the frontier line, the essential question for the Chamber
is the location of the "heights of N'Gouma" mentioned in the erratum to the 1927 Order
relating to the boundaries between Upper Volta and Niger (see sketch map No. 6 in the
Judgment). That erratum defined the boundary as "a line starting at the heights of
N'Gouma, passing through the Kabia ford . . . ". Mali has argued that this text was
invalidated by a factual error, in that it referred to Mount N'Gouma as being to the north of
the ford, whereas it was actually located south-west of it as shown on the 1960 IGN map,
which, according to Mali, is the only accurate picture of the situation. The Chamber has
already stated that the text of the Order and of the erratum should not be set aside in
limine; their probative value has to be appraised in order to determine the end-point of the
frontier. It emphasizes that the maps of the period, such as the Blondel la Rougery map of
1925, locate Mount N'Gouma to the north of the Kabia ford, and that this location is also
borne out by a 1:1,000,000 map, evidence which the Chamber considers cannot be
overlooked, although the official body which approved it is unknown. Although the
1:200,000 IGN map of 1960 attaches the name N'Gouma to an elevation situated south-
east of the ford, it also contains altimetric information from which it may be inferred that
elevations ranged in a quarter-circle between a position north of the ford and another east-
southeast of it together constitute an ensemble to which the name "N'Gouma" could be
given. The existence of elevations to the north of the ford has, moreover, been confirmed
by observations made on the ground in 1975.
Since the Chamber is not aware of any oral tradition going back at least to 1927 which
might serve to contradict the indications given by the maps and documents of the period, it
concludes that the Governor-General, in the 1927 Order and the erratum and in his letter
191 CM2 of 1935, described an existing boundary which passed through elevations rising
to the north of the Kabia ford, and that the administrators considered, rightly or wrongly,
that those elevations were known to the local people as the "heights of N'Gouma". The
Chamber has therefore only to ascertain the location, within the area of high ground
surrounding the ford, of the end-point of the boundary defined by the above-mentioned
texts. It concludes that this point should be fixed three kilometres to the north of the ford at
the spot defined by the co-ordinates 0° 14' 39" E and l4° 54' 48" N (point M).
XIII. The line of the frontier (para. 175)
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The Chamber fixes the line of the frontier between the Parties in the disputed area. This
line is reproduced, for illustrative purposes, on a map which is a compilation of five sheets
of the 1:200,000 IGN map and is annexed to the Judgment.
XIV. Demarcation (para. 176)
The Chamber is ready to accept the task which the Parties have entrusted to it, and to
nominate three experts to assist them in the demarcation operation, which is to take place
within one year of the delivery of the Judgment. In its opinion, however, it is inappropriate
to make in its Judgment the nomination requested by the Parties, which will be made later
by means of an Order.
XV. Provisional measures (paras. 177-178)
The Judgment states that the Order of 10 January 1986 ceases to be operative upon the
delivery of the Judgment. The Chamber notes with satisfaction that the Heads of State of
Burkina Faso and the Republic of Mali have agreed "to withdraw all their armed forces
from either side of the disputed area and to effect their return to their respective territories"
XVI. Binding force of the Judgment (para. 178)
The Chamber also notes that the Parties, already bound by Article 94, paragraph 1, of the
Charter of the United Nations, expressly declared in Article IV, paragraph 1, of the Special
Agreement that they "accept the Judgment of the Chamber . . . as final and binding
upon them". The Chamber is happy to record the attachment of both Parties to the
international judicial process and to the peaceful settlement of disputes.
XVII. Operative clause (para. 179)
For these reasons,
THE CHAMBER,
Unanimously, Decides
A. That the frontier line between Burkina Faso and the Republic of Mali in the disputed
area, as defined in the Special Agreement concluded on 16 September 1983 between
those two States, is as follows:
(1) From a point with the geographical co-ordinates 1 59'01" W and 14 24'40 " N (point A),
the line runs in a northerly direction following the broken line of small crosses appearing on
the map of West Africa on the scale 1:200,000 published by the French Institut
geographique national (IGN) (hereinafter referred to as 'the IGN line') as far as the point
with the geographical co-ordinates 1 58'49" W and 14 28'30" N (point B).
(2) At point B, the line turns eastwards and intersects the track connecting Dionouga and
Diguel at approximately 7.5 kilometres from Dionouga at a point with the geographical co-
ordinates 1 54'24" W and 14 29'20" N (point C).
(3) From point C, the line runs approximately 2 kilometres to the south of the villages of
Kounia and Oukoulourou, passing through the point with the geographical co-ordinates 1
46'38" W and 14 28'54" N (point D), and the point with the co-ordinates 1 40'40" W and 14
89
30'03" N (point E).
(4) From point E, the line continues straight as far as a point with the geographical co-
ordinates 1 19'05" W and 14 43'45" N (point F), situated approximately 2.6 kilometres to
the south of the pool of Toussougou.
(5) From point F, the line continues straight as far as the point with the geographical co-
ordinates 1 05'34" W and 14 47'04" N (point G) situated on the west bank of the pool of
Soum, which it crosses in a general west-east direction and divides equally between the
two States; it then turns in a generally north/north-easterly direction to rejoin the IGN line
at the point with the geographical co-ordinates 0 43'29" W and 15 05'00" N (point H).
(6) From point H, the line follows the IGN line as far as the point with the geographical co-
ordinates 0 26'35" W and 15 05'00" N (point I); from there it turns towards the south-east
and continues straight as far as point J defined below.
(7) Points J and K, the geographical co-ordinates of which will be determined by the
Parties with the assistance of the experts nominated pursuant to Article IV of the Special
Agreement, fulfil three conditions: they are situated on the same parallel of latitude; point
J lies on the west bank of the pool of In Abao and point K on the east bank of the pool; the
line drawn between them will result in dividing the area of the pool equally between the
Parties.
(8) At point K the line turns towards the north-east and continues straight as far as the
point with the geographical co-ordinates 0 14'44" W and 15 04'42" N (point L), and, from
that point, continues straight to a point with the geographical co-ordinates 0 14'39' E and
14 54'48" N (point M), situated approximately 3 kilometres to the north of the Kabia ford.
B. That the Chamber will at a later date, by Order, nominate three experts in accordance
with Article IV, paragraph 3, of the Special Agreement of 16 September 1983.
Done in French and in English, the French text being authoritative, at the Peace Palace,
The Hague, this twenty-second day of December, one thousand nine hundred and eighty-
six, in three copies, one of which will be placed in the archives of the Court and the others
transmitted to the Government of Burkina Faso and the Government of the Republic of
Mali respectively.
XVIII. SUMMARY OF THE OPINIONS APPENDED TO THE JUDGMENT OF THE
CHAMBER
A. Separate Opinion of Judge ad hoc François Luchaire
Judge Luchaire voted for the operative provisions of the Judgment because they were
founded upon reasoning of which the logic is unquestionable, but he does not fully endorse
some of its aspects or conclusions. He has therefore found it necessary to comment on the
following points:
1. The principle of the right of peoples to self determination, free choice of status and
consequences for the French territoires d'outre-mer of the referendum held on 28
September 1958.
2. Acquiescence - estoppel - interpretation of the Conakry communiqué.
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3. Reference to the 1932 boundaries drawn by the French administration on the maps of
the period. Later documents irrelevant.
4. Acquiescence arising from the participation of Dioulouna in the democratic process in
Sudan.
5. Possibility of a line passing through Kobo - Fayando - Toussougou. Difficulties in relation
to Dourumgara and In Abao - Tin Kacham.
B. Separate Opinion of Judge ad hoc Georges Abi-Saab
Although he voted for the operative provisions of the Judgment, Judge Abi-Saab cannot
endorse certain aspects of either the Chamber's reasoning or its conclusions.
In particular, he dissociates himself from the Judgment's treatment of French colonial law,
which, in his opinion, has been analysed in excessive detail. He also dissociates himself
from the role attributed to letter 191 CM2 of 1935, the declaratory nature of which in
respect of pre-existing territorial boundaries he regards as a mere possibility, not hardened
to certainty by any evidence.
Judge Abi-Saab considers that the decision to base the line in the Béli region on that letter,
which is simply a verbal reflection of the Blondel la Rougery map, amounts to giving this
map the status of a legal title, although according to the Judgment itself maps in
themselves are never sufficient to constitute such a title.
Having emphasized the difficulties which sometimes arise in applying the principle of uti
possidetis, the author notes that the Chamber has adopted a possible legal solution within
the bounds of the degrees of freedom which exist in the case. He considers this legally
acceptable, but would have preferred another approach, relying to a greater extent upon
considerations of equity infra legem in the interpretation and application of the law, the
area concerned being a nomadic one afflicted by drought, so that access to water is vital.
CASE CONCERNING KASIKILI/SEDUDU ISLAND: BOTSWANA v. NAMIBIA (13
December 1999)
SPECIAL AGREEMENT BETWEEN BOTSWANA & NAMIBIA TO SUBMIT DISPUTE TO
THE ICJ. Botswana and Namibia transmitted to the Registrar the original text of a Special
Agreement between the two States where both states agreed to submit the dispute as to
the relative boundary around Kasikili/Sedudu Island. It was mentioned in such agreement
that both states desire to settle the dispute by peaceful means in accordance with the
principles of the UN Charter and the Charter of the Organization of African Unity. In 1992,
both states appointed a Joint Team of Technical Experts on the Boundary between
Botswana and Namibia around Kasikili/Sedudu Island to determine the boundary between
Namibia and Botswana around Kasikili/Sedudu Island on the basis of the Treaty of
1 July 1890 between Great Britain and Germany respecting the spheres of influence of the
two countries in Africa and the applicable principles of international law. This Joint Team of
Experts was unable to reach a conclusion on the question referred to it and recommended
'recourse to the peaceful settlement of the dispute on the basis of the applicable rules and
principles of international law.
90
DETERMINE BOUNDARY & LEGAL STATUS OF ISLAND. The ICJ is asked to
determine, on the basis of the Anglo-German Treaty of 1 July 1890 and the rules and
principles of international law, the boundary between Namibia and Botswana around
Kasikili/Sedudu Island and the legal status of the island.
9. In the course of the written proceedings, the following submissions were presented by
the Parties:
SUBMISSIONS:
FOR BOTSWANA.
1. The northern and western channel of the Chobe River in the vicinity of Kasikili/Sedudu
Island constitutes the 'main channel' of the Chobe River in accordance with the provisions
of Article III (2) of the Anglo-German Agreement of 1890; and that:
2. Consequently, sovereignty in respect of Kasikili/Sedudu Island inheres exclusively in the
Republic of Botswana."
FOR NAMIBIA.
1. The channel that lies to the south of Kasikili/Sedudu Island is the main channel of the
Chobe River.
2. The channel that lies to the north of Kasikili/Sedudu Island is not the main channel of
the Chobe River.
3. Namibia and its predecessors have occupied and used Kasikili Island and exercised
sovereign jurisdiction over it, with the knowledge and acquiescence of Botswana and its
predecessors since at least 1890.
4. The boundary between Namibia and Botswana around Kasikili/Sedudu Island lies in the
centre (the thalweg) of the southern channel of the Chobe River.
5. The legal status of Kasikili/Sedudu Island is that it is a part of the territory under the
sovereignty of Namibia.
GEOGRAPHY LESSON.
THE ISLAND. The Island referred to, which in Namibia is known as "Kasikili", and in
Botswana as "Sedudu", is approximately 3.5 square km in area. It is located in the Chobe
River, which divides around it to the north and south, in the area bounded approximately by
meridians 25° 07' and 25° 08' E longitude and parallels 17° 47' and 17° 50' S latitude, and
is some 20 km upstream of Kazungula where the Chobe flows into the Zambezi. The
Chobe has its source on the central plateau of Angola, where it is called the Rio Cuando.
The Botswana town of Kasane lies on the south bank some 1.5 kilometres downstream
from Kasikili/Sedudu Island, and the Namibian village of Kasika is located on the
northwestern bank of the Chobe.
Nearly due south of the Island, on the Botswana side, are the headquarters of the Chobe
National Park, a protected reserve with a wide variety of wildlife. This southern bank is
characterized by a steep sandy ridge ranging between 900 and 1,000 meters above mean
sea level. The area on the Namibian side, to the north of the Island, has no such
geographical feature. It forms part of a strip of territory called the "Caprivi Strip". This part
of the Caprivi Strip is within the seasonal flood plain of the Zambezi River. The Island,
which is 927 meters above mean sea level, forms part of this plain, and is subject to
flooding of several months' duration, beginning around March. In order to assist in the
reading of this Judgment, the Court has included below three sketch-maps, the first
illustrating the position of Botswana and Namibia on the continent of Africa (Sketch-map
No. 1); the second showing the Caprivi Strip and the Chobe (Sketch-map No. 2); and the
third showing Kasikili/Sedudu Island (Sketch-map No. 3).
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Parties is set against the background of the 19 th century race among the European colonial
Sketch-map 1 powers for the partition of Africa. In the spring of 1890, Germany and Great Britain entered
into negotiations with a view to reaching agreement concerning their trade and their
spheres of influence in Africa. In the south-west of the continent, Great Britain sought to
protect the south-north trade routes running through Lake Ngami to Victoria Falls, while
Germany, which had already laid claim to a large portion of what was called "South West
Africa", sought British recognition of its access to the Zambezi. These negotiations
culminated in the conclusion of the 1890 Treaty, which concerned several regions of the
African continent, namely east Africa, south-west Africa, Togo and Zanzibar, and involved
the cession to Germany of the island of Heligoland, in exchange for Zanzibar. The Treaty
delimited inter alia the spheres of influence of Germany and Great Britain in south-west
Africa; that delimitation lies at the heart of the present case.

AFTER COLONIAL RULE: THE RISE OF THE STATES OF BOTSWANA & NAMIBIA. In
Sketch-map 2
the ensuing century, the territories involved experienced various mutations in status. The
independent Republic of Botswana came into being in 1966, on the territory of the former
British Bechuanaland Protectorate. German administration of South West Africa turned out
to be short-lived. Upon the outbreak of the First World War in 1914, the Caprivi Strip was
occupied and governed by British forces from Southern Rhodesia. From 1919 until 1966,
South Africa was the administering authority of the territory of South West Africa under a
mandate from the League of Nations. For part of this period, from 1921 to 1929, South
Africa delegated the administration of the Caprivi Strip to the authorities of the British
Bechuanaland Protectorate. South Africa's mandate over South West Africa was
terminated by the United Nations General Assembly in 1966, following which the Assembly
established a United Nations Council for South West Africa (which subsequently became
the United Nations Council for Namibia), which it designated as the authority responsible
for the administration of Namibia; but South Africa remained in de facto control of the
territory, despite United Nations policy to the contrary, until Namibia's independence on
21 March 1990.
Sketch-map 3
APPLICABLE LAWS:
1. 1890 TREATY which Botswana and Namibia acknowledge to be binding on them.
2. ART. 31 OF THE VIENNA CONVENTION which states:
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to
the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the
conclusion of the treaty and accepted by the other parties as an instrument related to the
treaty."
This provision will be referred to in the interpretation of the 1890 Treaty. Even if neither
Botswana nor Namibia are parties to the Vienna Convention on the Law of Treaties, both
of them consider that Article 31 of the Convention is applicable inasmuch as it reflects
customary international law.
3. RULES & PRINCIPLES OF INT’L LAW. The Special Agreement also refers, in Article I,
to the "rules and principles of international law". Article III of the Special Agreement further
states that these rules and principles "shall be those set forth in the provisions of Article 38,
HISTORICAL ANTECEDENT: paragraph 1, of the Statute of the International Court of Justice".
1890 TREATY BETWEEN GREAT BRITAIN & GERMANY. The dispute between the 4. Charter of the United Nations and the Charter of the Organization of African Unity
(OAU), as well as to resolution AHG/Res. 16 (1), adopted in Cairo on 21 July 1964 by
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the Assembly of Heads of State and Government of the OAU. The latter provides that
Member States of the OAU pledge themselves inter alia to respect the frontiers existing on
their achievement of national independence (an implementation of the principle of uti
possedetis juris).
INTERPRETATION OF THE 1890 TREATY.
Article III (DIVIDING LINE BETWEEN THE PROTECTORATES OF GERMANY & G.B.)
of which reads as follows:
"In Southwest Africa the sphere in which the exercise of influence is reserved to Germany
is bounded:
1. To the south by a line commencing at the mouth of the Orange river, and ascending the
north bank of that river to the point of its intersection by the 20th degree of east longitude.
2. To the east by a line commencing at the above-named point, and following the 20th
degree of east longitude to the point of its intersection by the 22nd parallel of south
latitude; it runs eastward along that parallel to the point of its intersection by the 21st
degree of east longitude; thence it follows that degree northward to the point of its
intersection by the 18th parallel of south latitude; it runs eastward along that parallel till it
reaches the river Chobe, and descends the centre of the main channel of that river to its
junction with the Zambesi, where it terminates.
It is understood that under this arrangement Germany shall have free access from her
Protectorate to the Zambesi by a strip of territory, which shall at no point be less than 20
English miles in width.
The sphere in which the exercise of influence is reserved to Great Britain is bounded to the
west and northwest by the above-mentioned line. It includes Lake Ngami.
The course of the above boundary is traced in general accordance with a map officially
prepared for the British Government in 1889.
LIMITATION OF THE TREATY: DOES NOT PROVIDE CRITERIA FOR DETERMINING
WHOSE TERRITORY THE CENTER OF THE CHANNEL IS. As far as the region covered
by the present case is concerned, this provision locates the dividing line between the
spheres of influence of the contracting parties in the "main channel" of the River Chobe;
however, neither this, nor any other provision of the Treaty, furnishes criteria enabling that
"main channel" to be identified. It must also be noted that the English version refers to the
"centre" of the main channel, while the German version uses the term "thalweg" of that
channel (Thalweg des Hauptlaufes).
BOTSWANA’s CONTENTIONS: DETERMINE THE THALWEG OF CHOBE RIVER TO
DETERMINE THE BOUNDARY. "in a bifurcated28 stretch of river, such as the Chobe
River in the vicinity of Kasikili/Sedudu Island, both channels will have their respective
thalwege. However, the thalweg of the main channel will be at a lower elevation than the
thalweg of the other channel. Only the thalweg of the main channel can be logically
connected to the thalweg of the channel upstream of the point of bifurcation and
downstream of the point of reunion." Botswana maintains that, in order to establish the line
of the boundary around Kasikili/Sedudu Island, it is sufficient to determine the thalweg of
the Chobe; it is that which identifies the main channel of the river.
28
Definition: Divided into 2 branches, forked
92
NAMIBIA’s CONTENTIONS: IDENTIFY THE MAIN CHANNEL FIRST. the task of the
Court is first to identify the main channel of the Chobe around Kasikili/Sedudu Island, and
then to determine where the centre of this channel lies:
"The 'main channel' must be found first; the 'centre' can necessarily only be found
afterward. This point is equally pertinent to the German translation of the formula '. . . im
Thalweg des Hauptlaufes . . .' In the same way as with the English text, the search must
first be for the 'Hauptlauf' and for the 'Thalweg' only after the 'Hauptlauf' has been found.
The 'Hauptlauf' cannot be identified by first seeking to find the 'Thalweg'."
DEFINITION OF THALWEG. word "thalweg" has variously been taken to mean "the most
suitable channel for navigation" on the river, the line "determined by the line of deepest
soundings", or "the median line of the main channel followed by boatmen travelling
downstream". Treaties or conventions which define boundaries in watercourses nowadays
usually refer to the thalweg as the boundary when the watercourse is navigable and to the
median line between the two banks when it is not, although it cannot be said that practice
has been fully consistent.
“THALWEG” SYNONYMOUS WITH “CENTER OF THE CHANNEL”. The Court further
notes that at the time of the conclusion of the 1890 Treaty, it may be that the terms "centre
of the main channel" and "Thalweg" des Hauptlaufes were used interchangeably. In this
respect, it is of interest to note that, some three years before the conclusion of the 1890
Treaty, the Institut de droit international stated the following in Article 3, paragraph 2, of the
"Draft concerning the international regulation of fluvial navigation", adopted at Heidelberg
on 9 September 1887: "The boundary of States separated by a river is indicated by the
thalweg, that is to say, the median line of the channel" (Annuaire de l'Institut de droit
international, 1887-1888, p. 182), the term "channel" being understood to refer to the
passage open to navigation in the bed of the river, as is clear from the title of the draft.
Indeed, the parties to the 1890 Treaty themselves used the terms "centre of the channel"
and "thalweg" as synonyms, one being understood as the translation of the other. The
Court will accordingly treat the words "centre of the main channel" in Article III,
paragraph 2, of the 1890 Treaty as having the same meaning as the words "Thalweg des
Hauptlaufes".
“CHANNEL” GIVEN GENERAL CONSTRUCTION. In this case, the Parties to the dispute
have used the term "channel" to refer to each of the two branches of the Chobe that ring
Kasikili/Sedudu Island, and have not confined the term "channel" to the stricter usage
meaning the navigable passage of a river or of one of its branches. In view of this fact, the
Court itself in this Judgment will likewise employ the term "channel" in a broad sense.
REAL DISPUTE: LOCATION OF THE MAIN CHANNEL. In the Court's opinion, the real
dispute between the Parties concerns the location of the main channel where the boundary
lies. In Botswana's view, it is to be found "on the basis of the thalwegs in the northern and
western channel of the Chobe", whereas in Namibia's view, it "lies in the centre (that is to
say thalweg) of the southern channel of the Chobe River".
DETERMINIG THE MAIN CHANNEL. While Botswana thought it sufficient for the Court to
locate the line of deepest soundings in this section of the Chobe, which in its view leads to
the centre of the northern channel as the boundary, the Court notes that this was not the
only test it relied on. Moreover, the Court observes that by introducing the term "main
channel" into the draft treaty, the contracting parties must be assumed to have intended
that a precise meaning be given to it. For these reasons, the Court will therefore proceed
first to determine the main channel. In so doing, it will seek to determine the ordinary
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meaning of the words "main channel" by reference to the most commonly used criteria in
international law and practice, to which the Parties have referred.
DISTINGUISHING FEAUTURES OF RIVER CHOBE.
For Botswana, the Chobe "is a perennial river independent of the Zambezi River, with a
stable profile, continuous downstream flow and visible and stable banks".
For Namibia, the Chobe cannot be regarded as a perennial river, and that in reality it is an
ephemeral (fleeting) watercourse. Namibia points out that the Chobe is very often dry over
a substantial section of its course, so that it is not navigable over most of its length.
COURTS ADOPTS NO FINDINGS RE: FEATURES OF RIVER CHOBE. The Court does
not find itself charged with making findings on the distinguishing features of the Chobe
River. It will take these into account only in so far as they affect the sector of
Kasikili/Sedudu Island.
CRITERIA FOR IDENTIFYING THE MAIN CHANNEL:
FOR BOTSWANA, the relevant criteria are as follows:
1. greatest depth and width;
2. bed profile configuration;
3. navigability;
4. greater flow of water;
5. channel capacity - determined by width and depth of the channel and in the
discharge equation it is represented by cross-sectional area. From the cross-
section survey and the analysis of satellite imagery, it is clear that the northern
channel is deeper than the southern channel.
6. flow velocity - Flow velocity is a function of bed slope, hydraulic radius and
roughness coefficient. . . . the northern channel has a steeper bed slope; both of
its banks are smooth (compared to the southern channel), therefore velocity will
be higher in that channel.
7. volume of flow - Volume of flow in a channel is computed as the product of
channel capacity (cross-section area) and mean velocity through the cross-
section.
FOR NAMIBIA, the possible criteria for identifying the main channel in a river with more
than one channel are:
1. the channel with the greatest width, or
2. the greatest depth (But Namibia contends that because of the sharp variations in
the level of the Chobe's waters, neither width nor depth are suitable criteria for
determining which channel is the main channel)
3. the channel that carries the largest proportion of the annual flow of the river.
(Namibia attaches the greatest weight to the amount of flow: according to
Namibia, the main channel is the one "that carries the largest proportion of the
annual flow of the river".)
4. velocity
5. discharge - product of width, mean depth and mean velocity, and is a determinant
of transport capacity, it is the most straightforward and general criterion.
6. sediment transport capacity
7. the channel that is "most used for river traffic".
COURT CANNOT RELY ON ONE SINGLE CRITERION. Court finds that it cannot rely on
one single criterion in order to identify the main channel of the Chobe around
Kasikili/Sedudu Island, because the natural features of a river may vary markedly along its
93
course and from one case to another.
“EXPERT OPINION” ON WHAT A MAIN CHANNEL IS. The scientific works which define
the concept of "main channel" frequently refer to various criteria: such as
1. "the widest, deepest channel, in particular the one which carries the greatest flow
of water" (from Dictionnaire français d'hydrologie de surface avec équivalents en
anglais, espagnol, allemand)
2. "the middle, deepest or most navigable channel" (from Water and Wastewater
Control Engineering Glossary)
3. Similarly, in the Rio Palena Arbitration, the arbitral tribunal appointed by the
Queen of England applied several criteria in determining the major channel of a
boundary river.
The Court will take into account all of these criteria.
NO MAJOR MUTATION IN THE CHANNELS THROUGHOUT TIME. Court notes, on the
basis of the information supplied by both Parties concerning the hydrological situation of
Kasikili/Sedudu Island, that the channels have not undergone radical change over the last
hundred years. The aerial photographs taken in 1925 to 1985 show no major mutation in
the channels of the Chobe and indicate that the channels surrounding the Island remained
relatively stable throughout that period of time. In short, the present hydrological situation
of the Chobe around Kasikili/Sedudu Island may be presumed to be essentially the same
as that which existed when the 1890 Treaty was concluded.
EXAMINING THE CRITERION OF DEPTH.
BOTSWANA: According to Botswana's experts, the mean depth of the northern channel is
5.70 metres, clearly exceeding the mean depth of the southern channel by 2.13 metres. As
for the shallowest points, the depth is said to be 1.5 to 2 metres at the entry to the southern
channel, i.e., a much shallower depth than in the northern channel.
NAMIBIA: Although Namibia agrees that the northern channel has the greater mean
depth, it disputes that this conclusion is of any importance whatsoever for determining the
main channel. It maintains that what is important in this respect is not mean depth but
draught29 at the shallowest point of the channel; and it asserts that any differences
between the shallowest points in the northern and southern channels are minute. For
Namibia, the results of the 1985 Joint Survey (see paragraph 64 below) in respect of the
minimum depth of the two channels (see Reply of Namibia, Vol. II, Second supplementary
report to the expert report on the identification of the main channel of the Chobe River at
Kasikili Island, Fig. 14) are inconclusive, in so far as "the minimum thalweg depths of the
two channels within the bifurcation zone were not determined" Namibia also introduced
photographs showing a herd of elephants crossing the two channels of the Chobe, but
produced no figures to show that the minimum depth of the southern channel was greater
than that of the northern channel.
COURT’s CONCLUSION: Northern channel is deeper than the southern one as regards
mean depth, and even as regards minimum depth.
CRITERION OF WIDTH. The width of a river may increase or decrease in line with the
variable level of its waters. In order to deal with this phenomenon, the width has often been
determined on the basis of the low water mark or the mean water level which offer an
acceptable basis for defining the characteristic features of a watercourse (channels,
29
The amount of water required to float a ship
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centre, flow, etc.).

NORTHERN CHANNEL WIDER THAN SOUTHERN. As early as 1912, Captain Eason, of

the Bechuanaland Police, after having visited the area, described the northern channel as
being twice the width of the southern channel (see paragraph 53 below). The aerial
photographs of the area concerned taken between 1925 and 1985 show a northern
channel that is wider than the southern one. The satellite pictures taken in June 1975, then
in March 1995 and June 1996 show the northern channel as being wider than the southern
channel. The Court concludes that apart from the season of flooding that is indeed the
situation.

CRITERION OF FLOW/VOLUME OF WATER.

Botswana: "the northern channel conveys about twice as much flow as the southern
channel. The mean discharge at Site II in the northern channel is 78.865 m3/s compared to
41.823 m3/s at Site I in the southern channel. Notice that the ratio of roughly 1:2 between
the mean discharges of the southern and northern channels also applies to the median
and maximum discharges." In Botswana's presentation, the two channels around
Kasikili/Sedudu Island are those visible on the map.

Namibia: "the southern channel carries not only the major portion, but substantially all of
the flow of the River in the vicinity of Kasikili Island, while the northern channel has almost
no longitudinal flow and is little more than a relict channel of the Zambezi floodplain".
Namibia provides the following figures for the volume of flow during the period from
30 April to 2 May 1998: "In the main channel to the south of the Island, the flow was 247
m3/s, i.e., almost 60% of the total. In the northern channel it was 188 m3/s." photo 1

NAMIBIA’s MAJOR CHANNEL. For its part, Namibia argues, placing particular reliance
on certain maps and images, in support of the existence of a major channel of the Chobe,
of which the southern channel - visible throughout the year except when the river is in flood
- merely constitutes the thalweg (see photo 1). According to Namibia, "the left bank [of this
large channel] is marked by the line of high ground crossing the Island in a west-east
direction". This is the channel said to carry "the largest proportion of the annual flow of the
river" and therefore to constitute the main channel of the Chobe in the sector of
Kasikili/Sedudu Island. On a number of the photographs and maps submitted by Namibia
(refer to photo 1) the banks of this channel, described as the main channel, are shown by
means of arrows or by a continuous line.

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BOTSWANA’s REASONS FOR DISPUTING NAMIBIA’s CLAIM OF THE EXISTENCE OF
A MAIN CHANNEL:
1. The surmised Namibian waterway across the Island occupies one sixth to one
fifth of the northern channel.
2. It traverses the high elevations of the Island.
3. The proposed line of its left bank, on examination of the aerial photographs and
satellite images, is not a bank but a narrow sub-channel.
4. That line is not tree-lined;
5. The lower eastern areas of the Island, on the evidence, are the more probable
path of overflow of Zambezi floods."
In short, Botswana states, there is "no independent evidence to support the existence of a
'channel', let alone a 'main' one across the Island in the terms of Article III of the Anglo-
German Agreement of 1890".
COURT NOT PERSUADED THAT A MAIN CHANNEL EXISTS. Determination of the main
channel must be made according to the low water baseline and not the floodline. The
evidence shows that when the river is in flood, the Island is submerged by floodwater and
the entire region takes on the appearance of an enormous lake. Since the two channels
are then no longer distinguishable, it is not possible to determine the main channel in
relation to the other channel. As for the channel described by Namibia as the main
channel, the Court finds that the largest part of its bed remains dry for the greater part of
the year. High sand bars which are among the highest points of the Island (927 metres
above sea-level) are found there, but it must also be noted that it was in this bed that
cultivation took place, according to the evidence of a 1943 aerial photograph submitted by
both Parties. It is difficult to accept that this bed, generally dry, and which would occupy the
southwestern part of the Island, can be the bed of the main channel. The Court therefore is
not persuaded by Namibia's argument concerning the existence of this major "main"
channel whose visible southern channel would merely constitute the thalweg.
CRITERION OF GENERAL PHYSICAL APPEARANCE: COURT ALSO CANNOT
CONCLUDE THAT THE SOUTHERN CHANNEL IS PREFERRED BASED ON ITS
GENERAL PHYSICAL APPEARANCE. Namibia emphasizes the importance of the Chobe
Ridge in the area in question as a "stable and clearly visible escarpment some 50 metres
high"; it uses this as an argument for determining the main channel, by maintaining that the
right bank of the southern channel, which follows the Chobe Ridge, has certain
characteristics ("a steep, well-defined bank with a strip of riverine vegetation along it") that
make it readily identifiable. The Court would observe that, even if one part of the right bank
of this channel is easily identifiable from a distance, other parts of this bank are not, and
neither is the left bank. The Court is therefore unable to conclude that, in terms of
visibility - or of general physical appearance - the southern channel is to be preferred to the
northern channel.
CRITERION OF BED PROFILE CONFIGURATION: COURT FOUND THAT SOUTHERN
CHANNEL HAS MEANDERS30 TYPICAL TO SECONDARY BRANCHES OF
WATERCOURSES. The Court turns now to the criteria put forward by Botswana
concerning "bed profile configuration". The Court finds that the northern channel of the
Chobe, around Kasikili/Sedudu Island, does not contain any of the meanders that are so
30
a twist or bend in something especially a river, path or street.
95
typical of the secondary branches of watercourses. The southern channel, however, does
show such meanders. Namibia indeed acknowledges the curved nature of the southern
channel but, in light of the sediment deposition, draws contrary conclusions with regard to
the importance of this channel. Having examined the arguments, maps and photographs
put forward by the Parties, the Court is unable to conclude that, from its bed
configuration, the southern channel constitutes the principal and natural
prolongation of the course of the Chobe before the bifurcation.
CRITERION OF NAVIGABILITY OF WATERCOURSE: NORTHERN CHANNEL IS MORE
NAVIGABLE. The navigability of a watercourse is the combined result of its depth, its
width and the volume of water it carries, taking account of natural obstacles such as
waterfalls, rapids, shallow points, etc., along its course. The Court notes that the
navigability of watercourses varies greatly, depending on prevailing natural conditions.
Those conditions can prevent the use of the watercourse in question by large vessels
carrying substantial cargoes, but permit light flat-bottomed vessels to navigate. In the
present case, the data furnished by the Parties tend to prove that the navigability of the two
channels around Kasikili/Sedudu Island is limited by their shallowness. This situation
inclines the Court to the view that, in this respect, the "main channel" in this part of the
Chobe is that of the two which offers more favourable conditions for navigation. In the
Court's view, it is the northern channel which meets this criterion. However, the only record
of the northern channel being used by for navigation purposes was in 1947 when a barge
sought permission to pass through it. The Court has no information regarding the volume
of timber carried, the duration of this undertaking or its success; nor has it been informed
of other attempts which may have been made to utilize the Chobe for navigational
purposes. This absence of data enables the Court to conclude that the economic
importance of navigation, even in the northern channel, has remained slight. Nevertheless,
it follows from the Trollope-Redman correspondence of 1948 - which correspondence the
Court will consider later - that the northern channel of the Chobe was regarded as a
"stretch of water . . . navigable and giving access to the higher reaches of the Chobe,
unlike the southern channel. This correspondence also indicates that "the Southern
Channel was not navigable by timber barges when the river was not in flood. Moreover, the
use of the southern channel by flat-bottomed tourist boats does not in itself prove that the
latter offers more favourable conditions for navigation than the northern channel. The
economic importance of tourism in the southern channel does not alter its conditions of
navigability.
FOR THE FOREGOING REASONS, THE COURT CONCLUDES THAT, IN
ACCORDANCE WITH THE ORDINARY MEANING OF THE TERMS THAT APPEAR IN
THE PERTINENT PROVISION OF THE 1890 TREATY, THE NORTHERN CHANNEL OF
THE RIVER CHOBE AROUND KASIKILI/SEDUDU ISLAND MUST BE REGARDED AS
ITS MAIN CHANNEL.
3 ON-SITE SURVEYS CONCLUDED THAT THE NORTHERN CHANNEL IS THE MAIN
CHANNEL OF THE RIVER CHOBE.
(1) In 1912, Captain H. E. Eason, of the Bechuanaland Police, reported that he considered
undoubtedlythat the north should be claimed as the main channel. At the western end of
the island. the north channel at this period of the year is over one hundred feet wide and 8
feet deep, the south channel about forty feet wide and four feet deep. The south channel
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is merely a back water, what current there is goes round the North.
(2) the 1948 joint reportby Messrs. Trollope and Redman, respectively Magistrate of the
Eastern Caprivi Strip and District Commissioner at Kasane (Bechuanaland), contains the
following conclusions on this point: the 'main Channel' lies in the waterway which would
include the island in question in the Bechuanaland Protectorate;
(3) the 1958 joint report by a joint team of experts from South Africa and Botswana resulted
in the following conclusion: "The main channel of the Chobe River now passes
Sidudu/Kasikili Island to the west and to the north of it.
TO UNDERSTAND HOW THE TERMS IN THE TREATY WERE INTENDED TO BE
CONSTRUED, LET’S TURN TO THE OBJECT & PURPOSE OF TREATY: TO DELIMIT
SPHERES OF INFLUENCE. While the treaty in question is not a boundary treaty proper
but a treaty delimiting spheres of influence, the Parties nonetheless accept it as the treaty
determining the boundary between their territories. The major concern of each contracting
party was to protect its sphere of influence against any intervention by the other party and
to obviate any risk of future disputes. Article VII of the 1890 Treaty is worded as follows:
"The two Powers engage that neither will interfere with any sphere of influence assigned to
the other by Articles I to IV. One Power will not in the sphere of the other make
acquisitions, conclude Treaties, accept sovereign rights or Protectorates, nor hinder the
extension of influence of the other. It is understood that no Companies nor individuals
subject to one Power can exercise sovereign rights in a sphere assigned to the other,
except with the assent of the latter."
INTENTION TO SET A BOUNDARY IN USING “CENTRE OF THE MAIN CHANNEL”.
The contracting powers, by opting for the words "centre of the main channel", intended to
establish a boundary separating their spheres of influence even in the case of a river
having more than one channel. They possessed only rudimentary information about the
Chobe's channels. If they knew that such channels existed, their number, features,
navigability, etc., and their relative importance remained unknown to them. This situation
explains the method adopted to define the southern boundary of the Caprivi Strip.
ANALOGY TO TEMPLE CASE: COACHING IN GENERAL TERMS THE BOUNDARY
LINE. The Court stated the present case is similar to the Temple of Preah Vihear where
Thailand and France entered into a treaty setting a watershed line or to a crest line as
basis for the boundary but which make no provision for any delimitation. In addition, in that
case, the Court held that this was "an obvious and convenient way of describing a frontier
line objectively, though in general terms. Same is the approach by Botswana and Namibia.
NAVIGATION A FACTOR IN DELIMITING. The Court notes that navigation appears to
have been a factor in the choice of the contracting powers in delimiting their spheres of
influence. The great rivers of Africa traditionally offered the colonial powers a highway
penetrating deep into the African continent. It was to gain access to the Zambezi that
Germany sought "a strip of territory which shall at no point be less than 20 English miles in
width" - terms which were eventually included in the provisions of Article III, paragraph 2, of
the Treaty. Admittedly, this strip of territory did provide access to the Zambezi, but its
southern boundary was formed by the Chobe River, which was apparently assumed to be
navigable, as suggested by the use of the word "thalweg" in the text of the German version
of the Treaty. The difficulties of the land route owing to regular flooding, and the obstacles
96
to navigation on the Chobe, were, in all probability, little known at the time.
The fact that the words "centre of the main channel" were included in the draft Treaty on
the initiative of the British Government suggests that Great Britain no less than Germany
sought to have access to the Zambezi. In order to mark the separation of their spheres of
influence, the contracting parties chose "the centre of the main channel" of the Chobe, thus
ensuring that there was a well-defined, recognizable boundary, in a watercourse that was
assumed to be navigable. There are grounds for thinking that one of the reasons
underlying their decision was navigation, but the Court does not consider that navigation
was the sole objective of the provisions of Article III, paragraph 2, of the Treaty. In referring
to the main channel of the Chobe, the parties sought both to secure for themselves
freedom of navigation on the river and to delimit as precisely as possible their respective
spheres of influence.
The travaux préparatoires of the Treaty concerning south-west Africa and the Caprivi Strip
in particular support this reasoning. Initial attempts to record the parties' agreement
described the boundary simply as following the course of the Chobe, without reference to
any channel. Article II of the provisional agreement initialled by Lord Salisbury and
Count Hatzfeldt on 17 June 1890 stipulated:
"The frontier between the German territory and the English territory in the south-west of
Africa shall follow, from the point which has been agreed upon in previous arrangements,
the 22nd degree of south latitude (leaving Lake Ngami to England), to the east up to the
21st degree of longitude; from thence to the north to where that degree touches the 18th
degree of south latitude. Thence, the line of demarcation shall be carried to the east along
the centre of the River Tschobi, up to the point where it flows into the Zambesi."
The text subsequently prepared by the British and German negotiators, and transmitted to
the British Foreign Office on 21 June 1890, as "a draft of the Articles of Agreement" was
worded:
"The boundary runs eastward along that parallel till it reaches the River Chobe, and
descends the centre of that river to its junction with the Zambesi, where it terminates. It is
understood that, under this arrangement, Germany shall have free access from her
Protectorate to the Zambesi by the Chobe."
On 25 June 1890, the British side proposed the following wording: "In paragraph 2 of
Article III, after the words 'the River Chobe, and descends the centre of,' the words 'the
main channel of' should be inserted."
The proposal was accepted by the German side and translated as "in der Thal-Linie des
Hauptlaufes dieses Flusses". In the end the word Thal-Linie was replaced by the word
Thalweg. The German text is therefore a word-for-word translation of the British proposal
and follows the English text. Therefore, it may reasonably be supposed that these terms
are synonymous and that the English text, like the German text, correctly and accurately
expresses the will of the contracting parties.
SUBSEQUENT PRACTICE OF THE PARTIES: AN ELEMENT IN THE
INTERPRETATION OF THAT TREATY.
In the course of the proceedings, Botswana and Namibia made abundant reference to the
subsequent practice of the parties to the 1890 Treaty - and of their successors - as an
element in the interpretation of that Treaty.
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ARTICLE 31, PARAGRAPH 3, OF THE 1969 VIENNA CONVENTION ON THE LAW OF
TREATIES, which, as stated earlier, reflects customary law, provides as follows:
“General rule of interpretation
There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;”
WHAT IS A “SUBSEQUENT AGREEMENT”? The International Law Commission, in its
commentary on what was then Article 27 of the draft Convention, stated the following:
"an agreement as to the interpretation of a provision reached after the conclusion of the
treaty represents an authentic interpretation by the parties which must be read into the
treaty for purposes of its interpretation" (Yearbook of the International Law Commission,
1966, Vol. II, p. 221, para. 14).
HOW IS "SUBSEQUENT PRACTICE" IMPORTANT? The ILC states:
"The importance of such subsequent practice in the application of the treaty, as an
element of interpretation, is obvious; for it constitutes objective evidence of the
understanding of the parties as to the meaning of the treaty. Recourse to it as a means of
interpretation is well-established in the jurisprudence of international tribunals." Indeed in
the past, when called upon to interpret the provisions of a treaty, the Court has itself
frequently examined the subsequent practice of the parties in the application of that treaty.
BOTSWANA’s EVIDENCE. In support of its interpretation of Article III, paragraph 2, of the
1890 Treaty, Botswana relies principally on three sets of documents:
1. A REPORT ON A RECONNAISSANCE OF THE CHOBE PRODUCED IN
AUGUST 1912 BY AN OFFICER OF THE BECHUANALAND PROTECTORATE
POLICE, CAPTAIN EASON.
EASON FOUND THAT NORTHERN CHANNEL WAS THE MAIN CHANNEL. About the
year 1910, negotiations took place between Germany and Great Britain concerning the
boundary between their respective possessions in the area of the Caprivi Strip west of the
intersection of the 18th parallel with the River Chobe, and arbitration of the matter was
considered. Anticipating a possible extension of the discussions to include the boundary
east of that point, the British Secretary of State for the Colonies, in a letter to the High
Commissioner responsible for Bechuanaland, expressed that with the second clause of
Article III of the Anglo-German Agreement of 1890 providing that the boundary 'descends
the centre of the main channel of that river (i.e., the River Chobe) to its junction with the
Zambesi and with, the River Chobe dividing into more than one channel which afterwards
reunite, the question as to which is the main channel will require consideration. He
requested that information be sent to him from local sources in support of the view that the
north channel is the main channel. Such information should be accompanied by a map
and, if possible, by measurements of the streams, and should be in a form which can, if
necessary, be laid before the arbitrator as part of the case of His Majesty's Government.
Thus Captain Eason was instructed to prepare a "Report on the main channel of the
Chobe river. That Report, which bears the date 5 August 1912, states his findings that
undoubtedly the North should be claimed as the main channel. He observed that at the
Western end of the island the North channel at this period of the year is over one hundred
feet wide and eight feet deep, the South channel about forty feet wide and four feet deep.
The South channel is merely a back water, that the natives living at Kasika in German
territory are at present growing crops on it.
97
NOT EVIDENCE OF SUBSEQUENT PRACTICE. Botswana claimed that the Eason
Report represented practice in the application of the 1890 Treaty. Namibia disputed this,
pointing out inter alia that Great Britain had not made any claim on this basis, even though
its exchanges with Germany concerning the rest of the southern boundary continued until
the outbreak of the First World War. However, in the final version of its argument,
Botswana, while continuing to rely on the Eason Report for other purposes, accepted that it
could not be regarded as evidence of subsequent practice relating to the application of the
1890 Treaty. The Court shares the view that the Eason Report and its surrounding
circumstances cannot be regarded as representing "subsequent practice in the application
of the treaty" of 1890, within the meaning of Article 31, paragraph 3 (b), of the Vienna
Convention. It notes that the Report appears never to have been made known to Germany
and to have remained at all times an internal document. The Court observes, moreover,
that the British Government itself never took the Report any further, whether immediately
afterwards (the anticipated arbitration not having taken place) or later on (for example
when the Caprivi Strip was occupied by British troops during the First World War, or when
it was administered by the British authorities on behalf of South Africa between 1921 and
1929).
2. AN ARRANGEMENT ARRIVED AT IN AUGUST 1951 BETWEEN
MAJOR TROLLOPE, MAGISTRATE FOR THE EASTERN CAPRIVI, AND
MR. DICKINSON, A DISTRICT COMMISSIONER IN THE BECHUANALAND
PROTECTORATE, TOGETHER WITH THE CORRESPONDENCE THAT
PRECEDED AND FOLLOWED THAT ARRANGEMENT;
JOINT REPORT OF TROLLOPE & REDMAN. In 1947, Mr. Ker, who was operating a
transport business in Bechuanaland, planned to bring timber down the Chobe using the
northern channel. He obtained the necessary permission from the competent official in the
Caprivi Strip, Major Trollope, but also raised the matter with the Bechuanaland authorities.
Correspondence then ensued between Major Trollope and the Assistant District
Commissioner at Bechuanaland, Mr. Redman. Then, Major Trollope and Mr. Redman
conducted an investigation to ascertain as to whether the stretch of water in question in
fact forms the boundary. They produced a Joint Report entitled "Boundary between the
Bechuanaland Protectorate and the Eastern Caprivi Zipfel: Kasikili Island", in which, after
citing the provisions of Article III, paragraph 2, of the 1890 Treaty, they stated the following:
"We find after separate examination of the terrain and the examination of an aerial
photograph that the 'main Channel' does not follow the waterway which is usually shown
on maps as the boundary between the two Territories. We express the opinion that the
'main Channel lies in the waterway which would include the island in question in the
Bechuanaland Protectorate. On the other hand we are satisfied, after enquiry that since at
least 1907, use has been made of the Island by Eastern Caprivi Zipfel tribesmen and that
that position still continues. We know of no evidence of the Island having been made use
of, or claimed, by Bechuanaland Tribesmen or Authorities or of any objection to the use
thereof by Caprivi Tribesmen being made.
FINDING NORTH CHANNEL AS NAVIGABLE. Major Trollope sent a copy of the Report
to the Secretary of Native Affairs at Pretoria under cover of a letter of 21 January 1948. He
proposed various solutions, after first pointing out that "the Bechuanaland authorities are
anxious to have the northern channel recognised as the boundary because that stretch of
water is navigable and gives access to the higher reaches of the Chobe - which is not the
case in respect of the southern channel".
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For his part, Mr. Redman forwarded a copy of the Joint Report to the Government
Secretary at Mafeking, under cover of a letter of 26 January 1948, in which he stated inter
alia that: "the Southern Channel was not navigable by Mr. Ker's Barges when the river was
not in flood" and that it was "even difficult for small craft to navigate it"; that "the map,
which showed the boundary to follow the Southern Channel, was . . . inaccurate and had
probably been drawn by someone who had not examined the river to determine the main
Channel"; that according to "further information from an inhabitant of the Island . . . in 1924
a Caprivi Chief . . . [had] applied to . . . the Resident Magistrate at Kasane, for permission
for his people to plough on the Island"; and that "surrender of this Island would prevent this
Territory from having free use of the Chobe River, which [might] one day become an
extremely important waterway".
After Major Trollope and Mr. Redman forwarded the Joint Report of 19 January 1948 to
their respective authorities, there ensued an extended correspondence between those
authorities. Each of the Parties to the present proceedings relies on the Trollope-Redman
Joint Report and the correspondence relating thereto in support of its position. The
consequences that they draw from them, however, differ significantly. According to
Botswana, these documents show that the boundary around Kasikili/Sedudu Island follows
the northern channel; Namibia disputes this, claiming that those same documents
demonstrate that the Island forms part of the Caprivi Strip.
COURT’S CONCLUSIONS. From the various administrative and diplomatic documents
referred to above, the Court, for its part, observes the following:
(1) prior to 1947 no differences had arisen between Bechuanaland and the power
administering the Caprivi Strip with regard to the boundary in the area of Kasikili/Sedudu
Island;
(2) it appears that, on the basis of the maps available at the time, the boundary had until
then been supposed to be located in the southern channel of the Chobe;
(3) in 1948 a local official from the Caprivi and a local official from Bechuanaland came to
the joint conclusion, "[a]fter separate examination of the terrain and the examination of an
aerial photograph", that the "main channel" around Kasikili/Sedudu Island was the northern
one (without specifying what criteria they had employed); at the same time they noted that
since at least 1907 use had been made of the Island by Caprivi tribesmen without
objection by the Bechuanaland authorities and that that situation still continued; and they
recorded that they had "neither arrived at, nor expressed any joint opinion on the effect of
these facts on the ownership of the Island";
(4) the higher authorities in Bechuanaland subsequently took the view that the boundary
around the Island was located in the northern channel of the Chobe, and that South
Africa's claims to the Island itself were unfounded under the 1890 Treaty; nevertheless,
they were initially inclined to accept those claims, on condition that they retained access to
the northern channel, but later, after consulting London, they abandoned that idea, fearing
that this would result in a modification of the boundary that, in view of the mandate over
South West Africa, would give rise to a variety of complications;
(5) the higher authorities in South Africa, while not disputing the possibility of the "main
channel" around Kasikili/Sedudu Island being the northern one and at the same time
demonstrating a flexible attitude with regard to access to that channel, clearly asserted
their claims to the Island;
(6) the local officials in the Caprivi Strip and in Bechuanaland, aware of the positions of
their respective superior authorities but keen to remain on neighbourly terms, agreed to
shelve their legal differences and to maintain, until further notice, the status quo ante (use
of Kasikili/Sedudu Island by Caprivi tribesmen and open access to the northern channel of
the Chobe);
98
(7) the local official in the Caprivi Strip described the question of the "Northern Waterway"
as "concomitant" with that of the "legal aspect regarding Kasikili Island", and his
counterpart in Bechuanaland did not challenge this;
(8) the issue of access to the Island by Bechuanaland tribesmen was not pursued further.
DID NOT RISE TO SUBSEQUENT PRACTICE. From all of the foregoing, the Court
concludes that the above-mentioned events, which occurred between 1947 and 1951,
demonstrate the absence of agreement between South Africa and Bechuanaland with
regard to the location of the boundary around Kasikili/Sedudu Island and the status of the
Island. Those events cannot therefore constitute "subsequent practice in the application of
the treaty [of 1890] which establishes the agreement of the parties regarding its
interpretation" (1969 Vienna Convention on the Law of Treaties, Art. 31, para. 3 (b)). A
fortiori, they cannot have given rise to an "agreement between the parties regarding the
interpretation of the treaty or the application of its provisions" (ibid., Art. 31, para. 3 (a)).
3. AN AGREEMENT CONCLUDED IN DECEMBER 1984 BETWEEN THE
AUTHORITIES OF BOTSWANA AND SOUTH AFRICA FOR THE CONDUCT
OF A JOINT SURVEY OF THE CHOBE, TOGETHER WITH THE RESULTANT
SURVEY REPORT.
AGREED TO CONDUCT JOINT SURVEY. In October 1984 an incident during which shots
were fired took place between members of the Botswana Defence Force and South African
soldiers who were travelling by boat in the Chobe's southern channel. At a meeting held in
Pretoria on 19 December 1984 between representatives of various South African and
Botswanan ministries, it emerged that the incident had arisen out of differences of
interpretation as to the precise location of the boundary around Kasikili/Sedudu Island. At
this meeting, reference was made to the terms of the 1890 Treaty and it was agreed "that a
joint survey should take place as a matter of urgency to determine whether the main
Channel of the Chobe River is located to the north or the south of the Sidudu/Kasikili
Island".
FINDINGS OF SURVEY. The joint survey was carried out at the beginning of July 1985.
The "survey report", drawn up on 15 July 1985, was preceded by an analysis of the
available maps stating that, while those prior to 1975 located the boundary in the southern
channel, Botswana had in 1975 published a map which placed the boundary to the north
and west of the Island: it was concluded from this that "[t]he disparity in the depiction of the
boundary between South African maps and those of Botswana had probably been a
contributory factor in the recent border incident near Kasane". The conclusions of the
survey report were as follows:
"The main channel of the Chobe River now passes Sidudu/Kasikili Island to the west and
to the north of it. The evidence available seems to point to the fact that this has been the
case, at least, since 1912. It was not possible to ascertain whether a particularly heavy
flood changed the course of the river between 1890 and 1912. If the main channel of the
river was ever situated to the south of the island, it is probable that erosion in the Sidudu
Valley, the location of which can be seen in the annexed Map C, has caused the partial
silting up of the southern channel. Air photographs showing the channels of the river in the
vicinity of the island are available in the archives of the two national survey organisations.
No substantial change in the position of the channels is evident from the photographs."
EXCHANGES BETWEEN THE 2 PARTIES AFTER SURVEY. NAMIBIA SOUGHT
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FURTHER NEGOTIATIONS. The Department of External Affairs of Botswana officially
forwarded a copy of this joint survey to South Africa's Department of Foreign Affairs under
cover of a Note dated 4 November 1985. It would appear that South Africa never
responded to this Note. On 13 October 1986 officials of the ministries of foreign affairs of
Botswana and South Africa held a meeting at which the matter of Kasikili/Sedudu Island
was briefly discussed. According to the record of this meeting drawn up by the Botswana
side, the head of the South African delegation "suggested the maintenance of the status
quo till political circumstances could permit direct negotiations between Botswana and
independent Namibia"; the head of the Botswana delegation replied "that there was no
more room for negotiations because a joint Botswana-South Africa team of experts had
confirmed that the Island belonged to Botswana"; and the South African representative
"[d]ecided to go back to look at this question once again".
On 22 October 1986 the Botswana authorities sent a telex to Pretoria in which they
referred to the discussions of 13 October and went on to say: "It will be recalled that the
Botswana side submitted that Sidudu/Kasikili Island is part of the territory of Botswana, as
confirmed by the Botswana/South Africa Joint Team of Experts which reported to the two
Governments in July, 1985. [We] wish to inform [you] that the Government of Botswana
has since occupied Sidudu/Kasikili Island and expects the Government of South Africa to
respect the sovereignty and territorial integrity of the Republic of Botswana in respect of
the Island."
The South African authorities replied in the following terms: "The Sidudu/Kasikili border
issue addresses the international boundary between Botswana and South West
Africa/Namibia. According to International Law, such cases should be discussed between
the two countries concerned. It is therefore suggested that the Cabinet of South West
Africa/Namibia should be approached by the Botswana Government for a proper
resolution of the matter under consideration.”
The exchange ended with a telex from the Botswana authorities dated 25 November 1986,
which read as follows: "The joint Botswana/South Africa team of experts were never asked
to demarcate an international boundary but 'to determine whether the main channel of the
Chobe River is located to the north or south of Sidudu Island'. The Joint Team confirmed
what had always been the fact, namely that the main channel is located to the north of the
island, and that is where the boundary is. It is therefore clear that adequate clarification of
the matter has been made to satisfy normal requirements and no further discussion of the
matter is necessary."
BOTSWANA: THE FINDINGS OF THE SURVEY WERE BINDING. In these proceedings,
Botswana contends that the decision taken in December 1984 to carry out a joint survey,
and all the documents relating to that decision - including the survey of July 1985
itself - constitute an "intergovernmental agreement . . . between the parties regarding . . .
the application" of the 1890 Treaty, which confirmed that the boundary around
Kasikili/Sedudu Island was located in the northern channel of the Chobe. Botswana points
out inter alia that "general international law does not require any particular formality for the
conclusion of an international agreement" and that "the only criterion is the intention of the
parties to conclude a binding agreement and this can be inferred from the circumstances".
NAMIBIA: NO SUCH AGREEMENT. Namibia categorically denies that the discussions
conducted between the Botswana and South African authorities in 1984-1985 led to an
agreement on the boundary; it stresses in this connection that the July 1985 joint survey
was not "self-executing" and was devoid of any legally binding status unless the parties
99
concerned took the appropriate measures to confer such status upon it. Namibia points out
that, once the United Nations General Assembly had terminated South Africa's mandate
over South West Africa in 1966, neither South Africa nor Botswana could in any case
conclude any kind of agreement on the boundaries of this territory.
COURT: NO AGREEMENT BETWEEN PARTIES TO BE BOUND. Court cannot conclude
therefrom that in 1984-1985 South Africa and Botswana had agreed on anything more than
the despatch of the joint team of experts. In particular, the Court cannot conclude that the
two States agreed in some fashion or other to recognize themselves as legally bound by
the results of the joint survey carried out in July 1985. Neither the record of the meeting
held in Pretoria on 19 December 1984 nor the experts' terms of reference serve to
establish that any such agreement was reached. Moreover, the subsequent
correspondence between the South African and Botswana authorities appears to deny the
existence of any such agreement: in its Note of 4 November 1985, Botswana called upon
South Africa to accept the survey conclusions; not only did South Africa fail to accept them
but on several occasions it emphasized the need for Botswana to negotiate and agree on
the question of the boundary with the relevant authorities of South West Africa/Namibia, or
indeed of the future independent Namibia.
BOTSWANA’S CONTENTON REGARDING CAPACITY OF NAMIBIA AS A STATE TO
CONCLUDE AN AGREEMENT DOES NOT STAND. The Court has reached the
conclusion that there was no agreement between South Africa and Botswana "regarding
the . . . application of the [1890 Treaty]". This is in itself sufficient to dispose of the matter. It
is unnecessary to add that in 1984 and 1985 the two States had no competence to
conclude such an agreement, since at that time the United Nations General Assembly had
already terminated South Africa's Mandate over South West Africa by
resolution 2145 (XXI) of 27 October 1966, and the Security Council had approved that
measure by resolution 276 (1970) of 30 January 1970. The Court itself, in its Advisory
Opinion of 21 June 1971 on the Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), stated the following in this regard:
"(1) . . . the continued presence of South Africa in Namibia being illegal, South Africa is
under obligation to withdraw its administration from Namibia immediately and thus put an
end to its occupation of the Territory;
(2) . . . States Members of the United Nations are under obligation to recognize the
illegality of South Africa's presence in Namibia and the invalidity of its acts on behalf of or
concerning Namibia, and to refrain from any acts and in particular any dealings with the
Government of South Africa implying recognition of the legality of . . . such presence and
administration" (I.C.J. Reports 1971, p. 58, para. 133).
OTHER ARGUMENTS AS TO NAMIBIA’S ADOPTION OF THE AGREEMENT IS
UNTENABLE. Furthermore, the evidence indicates that the Botswana Government's
preliminary contacts with the President of the United Nations Council for Namibia and the
United Nations Commissioner for Namibia with a view to obtaining their approval prior to
the Pretoria meeting of 19 December 1984 were not pursued further, and did not have the
result sought by Botswana. Nor does the Court need to examine any further Botswana's
alternative argument that, even if the 1984-1985 "agreement" was invalid, it had been
"adopted" by Namibia, first before the Joint Team of Technical Experts in 1994, then before
the Court itself. The Court need only observe that no such "adoption" by Namibia has been
established.
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NAMIBIA’s ARGUMENTS AS TO SUBSEQUENT PRACTICE OF THE PARTIES TO THE
1890 TREATY.
SIGNIFICANCE OF SUBSEQUENT PRACTICE. Namibia contends that subsequent
practice is relevant to the present controversy in three distinct ways:
(1) it corroborates the interpretation of the Treaty . . .
(2), it gives rise to a second and entirely independent basis for Namibia's claim under the
doctrines concerning acquisition of territory by prescription, acquiescence and recognition.
(3), the conduct of the parties shows that Namibia was in possession of the Island at the
time of termination of colonial rule, a fact that is pertinent to the application of the principle
of uti possidetis."
BASIS OF NAMIBIA’S CLAIM. At the hearings Namibia stressed that "its primary claim is
that its title is treaty-based", the claim "of prescription being asserted in the alternative";
The subsequent practice relied on by Namibia consists of
1. "THE CONTROL AND USE OF KASIKILI ISLAND BY THE MASUBIA OF CAPRIVI,
THE EXERCISE OF JURISDICTION OVER THE ISLAND BY THE NAMIBIAN
GOVERNING AUTHORITIES, AND THE SILENCE BY BOTSWANA AND ITS
PREDECESSORS PERSISTING FOR ALMOST A CENTURY WITH FULL
KNOWLEDGE OF THE FACTS . . ."
Namibia contends that the members of the Masubia tribe - a people from the eastern part
of the Caprivi Strip - had a "continued presence" on the Island at least between 1890 and
the late 1940s. Citing various official documents, explorers' accounts and testimony of
witnesses, it states that: "from the beginning of the colonial period at least, and probably a
good deal further back than that, Kasikili Island was agricultural land cultivated by the
people occupying what is now the Eastern Caprivi"; that "[t]heir occupation was
continuous, exclusive and uninterrupted, in so far as the physical conditions of the Island
allowed"; and that "Kasikili Island/Kasika [a Caprivi village] was a well organized village
community, with a chief and at times with a school - its centre of gravity moving from one
pole to the other in accordance with the dictates of the annual flood". According to
Namibia, Germany from 1909, then its successors after 1915, incorporated the local
institutions of the Masubia into the structure of colonial governance, using them as
instruments for exercising their authority. The Masubia thus constituted a key component
of the system of "indirect rule" which prevailed in the region. Namibia emphasizes that all
these facts were known to the Bechuanaland authorities just across the Chobe, in Kasane,
and that they made no objection or protest, at least until the late 1940s. And Namibia
concludes that:
"[t]he continued control and use of Kasikili Island by the people of the Eastern Caprivi, the
exercise of jurisdiction over the Island by the governing authorities in the Caprivi Strip, and
the continued silence of those on the other side of the Chobe . . . confirm the interpretation
of the Treaty . . . [whereby] Article III . . . attributes Kasikili Island to Namibia".
BOTSWANA COUNTERS NAMIBIA’S CLAIM. The Namibian argument based upon
subsequent conduct of the parties rests upon extraordinarily weak foundations, both in
conceptual and in factual terms. The conceptual foundations are weak because in truth,
the 'subsequent conduct' argument of Namibia is an argument grounded in acquisitive
prescription. Thus, subsequent conduct, which relates to an existing legal instrument, is
opposed to prescription, the purpose of which is to destroy and to supplant a pre-existing
title." It does not dispute that people from the Caprivi at times used the Island for
agricultural purposes, but it stresses the sporadic nature of that use and claims that the
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same applied to people living on the other side of the Chobe, in Bechuanaland. At all
events, Botswana denies categorically that there was ever a permanent settlement or a
village on Kasikili/Sedudu Island. And it concludes that the Eason Report of 1912, the
diplomatic transactions of 1948 to 1951, and other pieces of evidence "all . . . establish
conclusively that in administrative terms the Island always formed part of Botswana and its
predecessor, the Bechuanaland Protectorate".
DO DOES THE LONG-STANDING, UNOPPOSED, PRESENCE OF MASUBIA
TRIBESPEOPLE ON KASIKILI/SEDUDU ISLAND CONSTITUTES SUBSEQUENT
PRACTICE IN THE APPLICATION OF THE 1890 TREATY WHICH ESTABLISHES THE
AGREEMENT OF THE PARTIES REGARDING ITS INTERPRETATION" (1969 VIENNA
CONVENTION ON THE LAW OF TREATIES, ART. 31, PARA. 3 (B))?
To establish such practice, at least two criteria would have to be satisfied:
(1) that the occupation of the Island by the Masubia was linked to a belief on the part of the
Caprivi authorities that the boundary laid down by the 1890 Treaty followed the southern
channel of the Chobe;
(2) that the Bechuanaland authorities were fully aware of and accepted this as a
confirmation of the Treaty boundary.
EMPLOYMENT OF SOUTHERN CHANNEL AS BOUNDARY LINE NOT LINKED TO
ANY TERRITORIAL CLAIM. While it is true that the early maps of the region placed the
boundary around Kasikili/Sedudu Island in the southern channel of the Chobe, none of
them officially interpreted the 1890 Treaty and the evidence would tend rather to suggest
that the boundary line was shown as following the southern channel as a result of the
intermittent presence on the Island of people from the Caprivi Strip. However, there is
nothing that shows, in the opinion of the Court, that this presence was linked to territorial
claims by the Caprivi authorities. It is, moreover, not uncommon for the inhabitants of
border regions in Africa to traverse such borders for purposes of agriculture and grazing,
without raising concern on the part of the authorities on either side of the border.
PRESENCE OF MASUBIA IN THE ISLAND MERELY TOLERATED. Furthermore, the
Court is mindful that, already in 1912, when Great Britain was concerned with determining
the boundary of the Bechuanaland Protectorate in the area in question, Captain Eason of
the Bechuanaland police stated that "the North should be claimed as the main channel" of
the Chobe around Kasikili/Sedudu Island (which, in view of the terms of the 1890 Treaty,
placed the Island in Bechuanaland territory), while at the same time observing - without
apparently seeing this as being in any way a problem - that "[t]he natives living at Kasika in
German territory [we]re . . . growing crops on it" (see paragraph 53 above). There were
similar statements in the Trollope-Redman Report of 19 January 1948, in which the two
officials expressed the view that "the 'main channel' lies in the waterway which would
include the island in question in the Bechuanaland Protectorate"; at the same time, they
noted that "use ha[d] been made of the Island by Eastern Caprivi Zipfel tribesmen" without
objection from Bechuanaland (see paragraph 57 above). Finally, the joint survey report on
the Chobe drawn up by South African and Botswanan experts on 15 July 1985 in the
context of discussions on the location of the boundary around Kasikili/Sedudu Island noted
that "[l]ivestock from Caprivi [we]re swum across the river when grazing on the Caprivi side
[wa]s poor"; at the same time it suggested that "visits to the Island had, in recent years,
become infrequent" (see paragraph 64 above). It would therefore seem that, as far as
Bechuanaland, and subsequently Botswana, were concerned, the intermittent presence of
the Masubia on the Island did not trouble anyone and was tolerated, not least because it
did not appear to be connected with interpretation of the terms of the 1890 Treaty. The
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Court concludes from the foregoing that the peaceful and public use of Kasikili/Sedudu
Island, over a period of many years, by Masubia tribesmen from the Eastern Caprivi does
not constitute "subsequent practice in the application of the [1890] treaty" within the
meaning of Article 31, paragraph 3 (b), of the Vienna Convention on the Law of Treaties.
OTHER FACTS AS EVIDENCE OF SUBSEQUENT PRACTICE BY THE PARTIES TO
THE 1890 TREATY.
ISLAND IS PART OF THE CHOBE NATIONAL PARK. Botswana asserts that
Kasikili/Sedudu Island forms part of the Chobe National Park established in 1967 and,
before that, was part of the Chobe Game Reserve created in 1960. According to
Botswana, the use of the international boundary as the northern limit of the Game
Reserve, and subsequently of the National Park, in the documents relating to their
establishment necessarily had the effect of including Kasikili/Sedudu Island within them.
But these documents establishing the Chobe Game Reserve and the Chobe National Park
to which Botswana refers are internal documents, which, moreover, contain no express
reference to Kasikili/Sedudu Island.
ALLEGED VISIT OF BOTSWANA’S HEAD OF STATE TO THE ISLAND. Botswana also
relies on an affidavit and report by a witness concerning a visit to Kasane in 1972 by the
then Botswana Head of State; from this it seeks to imply that he may have visited the
Island as well, while at the same time acknowledging that there is no direct evidence that
he actually did so.
ACKNOWLEDGEMENT OF BOTSWANA’S MAGISTRATE THAT THE ISLAND IS
OUTSIDE THEIR JURISDICTION. Namibia, for its part, places reliance on an incident
occurring during the same period. It states that three or four Caprivians were arrested on
the Island by Botswana game wardens for poaching and released by a Botswana
magistrate after a five-day detention, on the grounds that they had been arrested outside
Botswana's jurisdiction. Namibia regards this as an acknowledgment by a Botswanan
official of Namibian sovereignty over the Island. This however was not sufficiently proven.
THE COURT DOES NOT CONSIDER THESE ADDITIONAL FACTS AS
REPRESENTING "SUBSEQUENT PRACTICE IN THE APPLICATION OF THE [1890]
TREATY WHICH ESTABLISHES THE AGREEMENT OF THE PARTIES REGARDING
ITS INTERPRETATION" (1969 VIENNA CONVENTION ON THE LAW OF TREATIES,
ART. 31, PARA. 3 (B)).
SURVEYS SUPPORT CONCLUSION THAT THE NORTH CHANNEL IS THE MAIN
CHANNEL. Surveys were carried in 1912, 1948 and 1985 out on the ground identified the
channel of the Chobe to the north and west as the "main channel" of the river around
Kasikili/Sedudu Island. The factual findings that the parties concerned arrived at separately
in 1948 were expressed in concurrent terms in a joint report. In addition, the survey made
in 1985 was conducted jointly by the parties then concerned. The factual findings made on
these occasions were not, as such, disputed at the time. The Court finds that these facts,
while not constituting subsequent practice by the parties in the interpretation of the 1890
Treaty, nevertheless support the conclusions which it has reached by interpreting Article III,
paragraph 2, of the 1890 Treaty in accordance with the ordinary meaning to be given to its
terms.
MAPS DO NOT PROVIDE EVIDENCE OF THE PARTY’S SUBSEQUENT PRACTICE OR
OF THEIR INTERPRETATION OF THE TREATY.
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Both Parties have submitted in evidence in support of their respective positions a large
number of maps, dating back as far as 1880. Namibia points out that the majority of the
maps submitted in these proceedings, even those emanating from British colonial sources
and intended to show the boundaries of Bechuanaland, tend to place the boundary around
Kasikili/Sedudu Island in the southern channel. Namibia relies on this as "a specialized
form of 'subsequent practice' and . . . also an aspect both of the exercise of jurisdiction and
the acquiescence in it that matures into prescriptive title". Namibia also relies in this regard
on the Court's decision in the Temple of Preah Vihear case, where it was held that
acceptance by the parties to a treaty of a map showing a boundary may constitute an
interpretation that departs from the express terms of that treaty. Namibia then concludes:
"This substantially unbroken practice by all three of the parties most closely concerned
with the boundary between Botswana and Namibia - Germany, Great Britain and South
Africa - strongly substantiates Namibia's contention as to the proper interpretation of
Article III (2) of the 1890 Treaty. At the same time, it lends significant support to Namibia's
claim of sovereignty over the Island by virtue of the doctrine of prescription and the
principle of uti possidetis."
Botswana for its part places less reliance on maps, pointing out, inter alia, that most of the
early maps show too little detail, or are too small in scale, to be of value in this case.
Botswana asserts, however, that the available maps and sketches indicate that, from the
time the Chobe was surveyed with any particularity by European explorers from the 1860s
onwards, a north channel around the Island was known and regularly depicted. In
Botswana's view, the Court should look for a map that shows agreement of the
Parties - and that is to be found in the map attached to the Joint Survey of 1985, which
shows the boundary between South Africa and Botswana to lie in the northern channel of
the Chobe.
PROBATIVE VALUE OF MAPS. The Court will begin by recalling what the Chamber
dealing with the Frontier Dispute (Burkina Faso/Republic of Mali) case had to say on the
evidentiary value of maps:
"maps merely constitute information which varies in accuracy from case to case; of
themselves, and by virtue solely of their existence, they cannot constitute a territorial title,
that is, a document endowed by international law with intrinsic legal force for the purpose
of establishing territorial rights. Of course, in some cases maps may acquire such legal
force, but where this is so the legal force does not arise solely from their intrinsic merits: it
is because such maps fall into the category of physical expressions of the will of the State
or States concerned. This is the case, for example, when maps are annexed to an official
text of which they form an integral part. Except in this clearly defined case, maps are only
extrinsic evidence of varying reliability or unreliability which may be used, along with other
evidence of a circumstantial kind, to establish or reconstitute the real facts."
As far as the present case is concerned, the Court notes that, according to Article III,
paragraph 2, of the 1890 Treaty, "[t]he course of the . . . boundary is traced in general
accordance with a Map officially prepared for the British Government in 1889". No
boundary line is drawn on this map, and it was not annexed to the 1890 Treaty, although a
slightly later version of it was subsequently bound up with this Treaty in the British Foreign
Office archive, as being the map alluded to in Article III, paragraph 2. There is also a map
entitled "Map to Illustrate Article III of the Anglo-German Agreement of 1st July 1890",
published in 1909 in the third edition of Hertslet's Map of Africa by Treaty. While the Parties
differ in their view of the precise origin of this map, they apparently agree that it does not
depict any relevant information concerning the channels around Kasikili/Sedudu Island or
the location of the boundary. The Court notes that there was no map appended to the 1890
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Treaty officially expressing the intentions of Germany and Great Britain with regard to the
course of the boundary between their respective possessions in the area.
Certainly it is true, as the Court has already stated, that maps published subsequently to
the 1890 Treaty, in so far as they showed the boundary at all, for a number of years placed
it in the channel of the Chobe passing to the south of the Island. However, there was no
indication that the placement of the boundary in these maps was meant to be in
accordance with Article III, paragraph 2, of the 1890 Treaty; rather, its origins may be linked
to the use of the Island by the Masubia, which the Court has already rejected as evidence
of practice reflecting subsequent interpretation of Article III, paragraph 2, by the parties to
the 1890 Treaty.
The Court considers that, in the light of disagreements regarding the maps, there cannot
be any question of the authorities concerned having accepted the maps then available in a
manner capable of constituting "subsequent practice in the application of the [1890] treaty",
still less recognition of the boundary shown on those maps. To the contrary, it appears to
the Court that the parties largely ignored the maps, which they regarded as either accurate
or inaccurate according to their respective positions on the course of the boundary. In view
of the absence of any map officially reflecting the intentions of the parties to the
1890 Treaty and of any express or tacit agreement between them or their successors
concerning the validity of the boundary depicted in a map and in the light of the uncertainty
and inconsistency of the cartographic material submitted to it, the Court considers itself
unable to draw conclusions from the map evidence produced in this case. That evidence
cannot therefore "endors[e] a conclusion at which a court has arrived by other means
unconnected with the maps"
COURT FINDS THE BOUNDARY TO BE THE NORTHERN CHANNEL. The foregoing
interpretation of the relevant provisions of the 1890 Treaty leads the Court to conclude that
the boundary between Botswana and Namibia around Kasikili/Sedudu Island provided for
in this Treaty lies in the northern channel of the Chobe River. Inasmuch as Botswana and
Namibia agreed, in their replies to a question put by a Member of the Court, that the
thalweg was formed by the line of deepest soundings, the Court concludes that the
boundary follows that line in the northern channel around Kasikili/Sedudu Island.
COURT DISPOSES NAMIBIA’S CLAIM OF PRESCRIPTION. Namibia, however, claims
title to Kasikili/Sedudu Island, not only on the basis of the 1890 Treaty but also, in the
alternative, on the basis of the doctrine of prescription. Namibia argues that "by virtue of
continuous and exclusive occupation and use of Kasikili Island and exercise of sovereign
jurisdiction over it from the beginning of the century, with full knowledge, acceptance and
acquiescence by the governing authorities in Bechuanaland and Botswana, Namibia has
prescriptive title to the Island".
BOTSWANA: COURT CANNOT GIVE COURSE TO THIS CLAIM BECAUSE IT IS
BEYOND THEIR SPECIAL AGREEMENT. Botswana maintains that the Court cannot take
into consideration Namibia's arguments relating to prescription and acquiescence as these
are not included in the scope of the question submitted to it under the terms of the Special
Agreement. According to Botswana, the purpose of that Agreement was to obtain from the
Court determination of the boundary solely on the basis of the 1890 Treaty; invoking
prescription would therefore involve adopting a totally different basis for determining the
boundary. In support of its argument, Botswana points out in particular that the reference in
the Special Agreement to the "rules and principles of international law" is "pleonastic",
since an international agreement is normally interpreted taking into account any relevant
rules of international law applicable in the relations between the parties. And it adds that:
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"the alleged evidence of prescriptive title cannot be accepted as 'subsequent practice',
because in such a hypothesis the working assumption is precisely the existence of a title
of Botswana (or its predecessor) which allegedly is displaced by the operation of
prescription".
Namibia disputes this argument. It claims, for its part, that the wording of the question in
the Special Agreement is clear and "requires the Court to consider any evidence or
submissions of the parties grounded in general rules and principles of international law
equally with submissions based on the 1890 Treaty" According to Namibia, "Botswana's
attempt to treat the reference to the `rules and principles of international law' as if it were
not included in the Special Agreement contravenes fundamental rules of treaty
interpretation." It stresses the contradictory nature of the position taken by Botswana,
which, on the one hand, suggests that the expression "rules and principles of international
law" covers only the rules and principles concerning treaty interpretation and, on the other,
itself acknowledges that international law rules concerning treaty interpretation are
comprehended in the first clause of the question referring to the 1890 Treaty. Namibia also
reproaches Botswana for ignoring the dual nature of the argument it has put forward that
"either the subsequent conduct operates as a 'practice . . . which establishes the
agreement of the parties regarding [the] interpretation' of the Treaty; or it stands as an
independent root of title based on the doctrine of prescription and/or acquiescence".
COURT HOLDS THAT IT CAN SINCE IT IS PART OF INTERNATIONAL LAW. The Court
notes that under the terms of Article I of the Special Agreement, it is asked to determine
the boundary between Namibia and Botswana around Kasikili/Sedudu Island and the legal
status of the Island "on the basis of the Anglo-German Treaty of 1 July 1890 and the rules
and principles of international law". Even if there had been no reference to the "rules and
principles of international law", the Court would in any event have been entitled to apply
the general rules of international treaty interpretation for the purposes of interpreting the
1890 Treaty. It can therefore be assumed that the reference expressly made, in this
provision, to the "rules and principles of international law", if it is to be meaningful, signifies
something else. In fact, the Court observes that the expression in question is very general
and, if interpreted in its normal sense, could not refer solely to the rules and principles of
treaty interpretation. The restrictive interpretation of this wording espoused by Botswana
appears to be even less well-founded, in that Article III of the Special Agreement specifies
that "[t]he rules and principles of international law applicable to the dispute shall be those
set forth in the provisions of Article 38, paragraph 1, of the Statute of the International
Court of Justice". This wording shows that the Parties had no intention of confining the
rules and principles of law applicable in this case solely to the rules and principles of
international law relating to treaty interpretation.
In the Court's view the Special Agreement, in referring to the "rules and principles of
international law", not only authorizes the Court to interpret the 1890 Treaty in the light of
those rules and principles but also to apply those rules and principles independently. The
Court therefore considers that the Special Agreement does not preclude the Court from
examining arguments relating to prescription put forward by Namibia.
4 CONDITIONS FOR POSSESSION TO MATURE TO PRESCRIPTIVE TITLE
ACCORDING TO NAMBIA:
1. The possession of the . . . state must be exercised à titre de souverain.
2. The possession must be peaceful and uninterrupted.
3. The possession must be public.
4. The possession must endure for a certain length of time."
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Namibia alleges that in the present case Germany was in peaceful possession of the
Island from before the beginning of the century and exercised sovereignty over it from the
time of the establishment of the first colonial station in the Caprivi in 1909, all in full view
and with the full knowledge of the Bechuanaland authorities at Kasane, only a kilometre or
two from the Island. It states that this peaceful and public possession of the Island, à titre
de souverain, was continued without interruption by Germany's successor until accession
of the territory to independence. Finally, it notes that, after itself becoming independent in
1966, Botswana, which was aware of the facts, remained silent for almost two further
decades.
In support of its allegations, Namibia emphasizes the importance of the presence on the
Island of Masubia people from the Eastern Caprivi "from the beginning of the colonial
period at least, and probably a good deal further back than that.”
Although it considers the doctrine of prescription inapplicable in this case for the reasons
referred to earlier, Botswana accepts the criteria for acquiring prescriptive title as set out by
Namibia; it argues, however, that those criteria have not been satisfied by Namibia and its
predecessors. Botswana asserts, in substance, that "there is no credible evidence that
either Namibia or its predecessors exercised State authority in respect of Kasikili/Sedudu"
and that even if peaceful, public and continuous possession of the Island by the people of
Caprivi had been proved, it could not have been à titre de souverain. Botswana does not
dispute that people from the Caprivi used Kasikili/Sedudu Island at times for agricultural
purposes; but it maintains that so did people living on the other side of the Chobe, in
Bechuanaland, and denies that there was ever any village or permanent settlement on the
Island. Botswana emphasizes that in any case "[t]he acts of private persons cannot
generate title unless those acts are subsequently ratified by the State"; that no evidence
has been offered to the effect that the Masubia chiefs had authority to engage in title-
generating activities for the benefit of Germany or its successors; and that evidence is also
lacking of any "genuine belief" in the existence of title on the part of Germany and its
successors.
With regard to patrolling by South Africa, Botswana asserts that this involved at the very
most anti-guerilla operations, which cannot be classified as an exercise of jurisdiction; it
claims that the incident of 1984 could not constitute evidence of peaceful possession for
the purposes of prescription. Finally, Botswana denies that the map evidence has any
value in this case; it maintains that this evidence is contradictory and confused and that the
authorities of Bechuanaland and Botswana never recognized or acquiesced in the maps
showing the boundary in the southern channel.
COURT HOLDS THAT CONDITIONS CITED BY NAMIBIA TO CONFER TITLE
THROUGH PRESCRIPTION ARE NOT SATISFIED IN THIS CASE AND THAT
NAMIBIA'S ARGUMENT ON ACQUISITIVE PRESCRIPTION THEREFORE CANNOT BE
ACCEPTED.
It follows from this examination that even if links of allegiance may have existed between
the Masubia and the Caprivi authorities, it has not been established that the members of
this tribe occupied the Island à titre de souverain, i.e., that they were exercising functions
of State authority there on behalf of those authorities. Indeed, the evidence shows that the
Masubia used the Island intermittently, according to the seasons and their needs, for
exclusively agricultural purposes; this use, which began prior to the establishment of any
103
colonial administration in the Caprivi Strip, seems to have subsequently continued without
being linked to territorial claims on the part of the Authority administering the Caprivi.
Admittedly, when, in 1947-1948, the question of the boundary in the region arose for the
first time between the local authorities of Bechuanaland Protectorate and of South Africa,
the Chobe's "main channel" around the Island was said to be the northern channel, but the
South African authorities relied on the presence of the Masubia on the Island in order to
maintain that they had title based on prescription. However, from then on the
Bechuanaland authorities took the position that the boundary was located in the northern
channel and that the Island was part of the Protectorate; after some hesitation, they
declined to satisfy South Africa's claims to the Island, while at the same time recognizing
the need to protect the interests of the Caprivi tribes. The Court infers from this, first, that
for Bechuanaland, the activities of the Masubia on the Island were an independent issue
from that of title to the Island and, second, that, as soon as South Africa officially claimed
title, Bechuanaland did not accept that claim, which precluded acquiescence on its part.
In the Court's view, Namibia has not established with the necessary degree of precision
and certainty that acts of State authority capable of providing alternative justification for
prescriptive title, in accordance with the conditions set out by Namibia, were carried out by
its predecessors or by itself with regard to Kasikili/Sedudu Island. The Court has already
observed above that it is unable to draw conclusions from the map evidence produced in
this case (see paragraph 87 above). Nor in its view, can conclusions be drawn from the
incident involving Botswana and South African defence forces in the channel to the south
of the Island in October 1984.
THE COURT HAS NOT ACCEPTED NAMIBIA'S ARGUMENT ON PRESCRIPTION, IT
FOLLOWS FOR THIS REASON ALSO THAT KASIKILI/SEDUDU ISLAND FORMS
PART OF THE TERRITORY OF BOTSWANA.
KASANE COMMUNIQUE. The Court observes, however, that the Kasane Communiqué of
24 May 1992 records that the Presidents of Namibia and Botswana agreed and resolved
that:
"(c) existing social interaction between the people of Namibia and Botswana should
continue;
(d) the economic activities such as fishing shall continue on the understanding that fishing
nets should not be laid across the river;
(e) navigation should remain unimpeded including free movement of tourists".
The Court further observes that in explanation and in pursuance of the foregoing
agreement, Botswana stated at the oral hearings:
"Botswana's policy is to allow free navigation, including unimpeded movement of tourist
boats even in the southern channel. This policy applies to boats owned by Namibian tourist
operators as well. The only requirement is that all tourist boats should be registered. This
requirement is meant solely to prevent the danger of environmental pollution of the Chobe
River. Experience has shown that some tourist boat operators tended to transport their
boats from Okavango waters, infested with river weeds, down to the Chobe River, without
applying for a trans-zonal permit. The Department of Water Affairs, and not the Botswana
Defence Force, is responsible for enforcing the policy on anti-pollution of the river waters.
Botswana's policy on free navigation, including the free movement of tourist boats, was set
out in paragraph (e) of the Kasane Communiqué . . . Since the Kasane Communiqué was
agreed in May 1992, there has been no complaint from the Namibian Government that
Botswana ever breached paragraph (e) of the Communiqué which guarantees unimpeded
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navigation."
FREE NAVIGATION, EQUAL NATIONAL TREATMENT. The Court, which by the terms of
the Joint Agreement between the Parties is empowered to determine the legal status of
Kasikili/Sedudu Island concludes, in the light of the above-mentioned provisions of the
Kasane Communiqué, and in particular of its subparagraph (e) and the interpretation of
that subparagraph given before it in this case, that the Parties have undertaken to one
another that there shall be unimpeded navigation for craft of their nationals and flags in the
channels of Kasikili/Sedudu Island. As a result, in the southern channel of Kasikili/Sedudu
Island, the nationals of Namibia, and vessels flying its flag, are entitled to, and shall enjoy,
a treatment equal to that accorded by Botswana to its own nationals and to vessels flying
its own flag. Nationals of the two States, and vessels, whether flying the flag of Botswana
or of Namibia, shall be subject to the same conditions as regards navigation and
environmental protection. In the northern channel, each Party shall likewise accord the
nationals of, and vessels flying the flag of, the other, equal national treatment.
DISPOSITION. For these reasons, the Court
(1) By eleven votes to four, Finds that the boundary between the Republic of Botswana
and the Republic of Namibia follows the line of deepest soundings in the northern channel
of the Chobe River around Kasikili/Sedudu Island;
(2) By eleven votes to four, Finds that Kasikili/Sedudu Island forms part of the territory of
the Republic of Botswana;
(3) Unanimously, Finds that, in the two channels around Kasikili/Sedudu Island, the
nationals of, and vessels flying the flags of, the Republic of Botswana and the Republic of
Namibia shall enjoy equal national treatment.
Libya v Chad
This is a case concerning a territorial dispute; the parties are Libya and Chad.
(Consult the Maps frequently, unless born cartographer – tip.)
I. LIBYA INFORMS THE COURT OF FAILURE OF NEGOTIATIONS
Aug 31, 1990: Libya filed in the Court Registry a notification of an agreement entitled “
Framework Agreement on the Peaceful Settlement of the Territorial Dispute between Libya
and Chad” (aka the Accord-Cadre). Libya, in the notification, informed the UN that Libya
and Chad has resolved to settle their territorial disputes peacefully; that they shall do so
first, by political conciliation, for a year; in the absence of this, they shall submit to the ICJ
and shall take measures to withdraw forces from the areas in dispute; and that, in sum,
they shall refrain from doing acts which may be harmful to the other state (like hostile
media campaigns, intervention in the internal affairs of the other, sending support to the
hostile forces of either) and that they are signing a treaty of friendship, good-neighborliness
and economic and financial cooperation.
Libya then proceeded to say that the negotiations have failed, and thus, it is bound by the
Accord-Cadre (specifically par 2) to the dispute to the ICJ. The dispute submitted is their
territorial dispute, referred to in the same agreement, and the question to Court is this:
“In further implementation of the Accord Cadre, and taking into account the territorial
dispute of the Parties, to decide upon the limits of their respective territories in accordance
with the rules of International Law applicable in the matter.
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Chad was notified; it also instituted proceedings against Libya. It based its claim, and
likewise believed the Court had jurisdiction due to, Article 2 a of the Accord-Cadre, and
subsidiarily, Art. 8 of the Treaty of Friendship and Good Neighborliness. Its request was
posed in this way: “to determine the course of the frontier between the Republic of Chad
and Libya in accordance with the rules and principles of International applicable in the
matter between the Parties.”
The memorials were filed; the parties were consulted; and finally the Parties had their
counsels. Proceedings then began.
II. SUBMISSIONS OF THE PARTIES.
A. LIBYA’S SUBMISSIONS (usual formalities): Having regard to the various international
treaties, agreements, accords and understandings and their effect or lack thereof on the
present dispute as set out in Libya’s Memorial, Counter-Memorial, Reply and oral
pleadings; In view of the other facts and circumstances having a bearing on this case, as
discussed above and in Libya’s pleadings; In light of the conduct of the Parties, of the
conduct of other States or political, secular or religious forces whose conduct bears on the
rights and titles claimed by the Parties, and of the conduct of the indigenous peoples
whose territories are the subject of this dispute; In application of the principles and rules of
Intl. Law of relevance to this dispute, May it please the Court, rejecting all contrary claims
and submissions: To adjudge and declare as follows: [submissions]
L1. That there exists no boundary, east of Toummo, between Libya and Chad by virtue of
any existing international agreement
L2. In deciding on the attribution of the respective territories between Libya and Chad in
accordance with applicable rules of Intl. law, the following are relevant:
a) the territory in question, at all relevant times, was NOT terra nullius;
b) title to the territory was, at all relevant times, vested in the people inhabiting the territory,
who were tribes, confederations of tribes or other peoples owing allegiance to the
Senoussi Order who had accepted Senoussi leadership, in the fight against the
encroachment of France and Italy;
c) that these peoples were, at all relevant times, culturally, economically and politically part
of the Libyan peoples;
d) that, on the international plane, there existed a community of title of the indigenous
peoples, and the rights and titles of the Ottoman empire, passed on to Italy in 1912 and
inherited by Libya in 1951;
e) that Chad’s claim rested on the claim inherited from France
f) that (“but”) French claim to the area rested on “actes internationaux” and did not create a
boundary east of Toummo, and there is no valid alternative basis to support the French
claim to the area disputed.
L3. That in the light of all the above factors, Libya has clear title to all the territory north of
the line…(Libya says its territory extends to the area bounded by a line starting at the
intersection of the eastern boundary of Niger and 18 0 N latitude, continues in a strict
southeast direction till it reaches 15 0 latitude, and then follows this parallel eastwards to its
junction with the existing boundary between Chad and Sudan - to see Libya’s claim, refer
to Map 1).
B. CHAD’S SUBMISSION: Chad respectfully requested the Court to adjudge and declare
that its frontier with Libya is constituted by the following line (see Map1 again for details)
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C.1 From the point of intersection of 24 0 of longitude east of Greenwich with the parallel of
19 0 30 ‘ of latitude north, the frontier shall run as far as the point of intersection of the
Tropic of Cancer with the 16 0 longitude east of Greenwich.
C.2 From that point, (pt. of intersection of Cancer with 16 long. east of Greenwich), it shall
follow a line running towards the well of Toummo as far as the 15th degree east of
Greenwich.
C. COURT’S DETERMINATION (as to the nature of the dispute)
The Court has been informed of the present dispute between the parties by the
notifications of the special agreement constituted by the Accord-Cadre of Aug 31 1989.
The Accord described the dispute as “their territorial dispute” but gave no further
particularization, and it is apparent from the pleadings of the parties that they disagree as
to the nature of the dispute.
Again, this is Libya’s contention on the dispute: “In further implementation of the Accord
Cadre, and taking into account the territorial dispute of the Parties, to decide upon the
limits of their respective territories in accordance with the rules of International Law
applicable in the matter.”
Chad, on the other hand, indicated that there was a frontier (boundary) between Chad and
Libya, and which was not disputed until the 70’s, and stated that the object of the case is to
arrive at a firm definition of that frontier, in application of the applicable principles and rules.
Thus, its request: “to determine the course of the frontier between the Republic of Chad
and Libya in accordance with the rules and principles of International applicable in the
matter between the Parties.”
Libya then proceeds on the basis that there exists no boundary, and asks the Court to
determine one; while Chad asserts that there is already an existing boundary, and asks the
Court to declare what that boundary is. Libya sees this case as attribution of territory, while
Chad considers it a dispute over a location of a boundary.
The area in dispute has been referred to by Libya as the Borderlands. See Map 1 for
illustration. Libya claims all territory north of the “Libyan” line; while the other line
constitutes the area which Chad claims.
III. BASIS OF CLAIMS
1. LIBYA – Libya bases it claims on a coalescence of rights and titles; those of the
indigenous inhabitants, those of the Senoussi Order (a religious confraternity, founded
during the early part of the 19th century, which wielded great influence and a certain
amount of authority in the north and north-east of Africa) and those of a succession of
sovereign states, namely the Ottoman Empire, Italy, and Libya itself.
2. CHAD – claims a boundary on the basis of a Treaty of Friendship and Good
Neighborliness concluded by France (under which Chad was a colony of) and Libya on
Aug 10 1995 (the 1955 Treaty). In the alternative, Chad claims that the lines delimiting the
zones of influence in earlier treaties, referred to in the 1955 Treaty had acquired the
character of boundaries through French effectivites; so that even irrespective of treaty
provisions it can rely on these effectivites in the matter of the area. Note: CHAD was
known as FRENCH EQUATORIAL AFRICA in 1955.
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IV. AS USUAL, the ICJ TREATS US TO A “BRIEF” “EXCITING” LOOK AT PAST
EVENTS:
Libya, which was a colony of Italy, became a sovereign state after WWII, on Dec 24 1951,
pursuant to GA resolution 289. Chad was then a French colony (but later gained
independence in 1960). The dispute now is set against a background of military, diplomatic
and administrative activities on the part of the Ottoman empire, France, Great Britain, Italy
and the Senoussi Order. It appeared that at the end of the 19th century, and at the
beginning of the 20th, France, Great Britain and Italy agreed to divide large tracts of Africa
into mutually recognized zones of influence. The limits were contained in the agreements,
identified by points in the ground and by lines of longitude and latitude. Afterwards, they
entered into treaties regarding their boundaries in the region, with themselves and the
Ottoman Empire, which was already present then, and the Senoussi Order too, who had
established on many points zawiyas which fostered trade, regulated caravans and
functioned as religious centers. At this time, Chad was being colonized by France.
Consequently, large tracts of Africa were grouped together, in what was later known as
French West Africa and French Equatorial Africa (CHAD).
France and Great Britain entered into 2 successive agreements: 1) an Exchange of
Declarations (at London, 1890) and 2) a Convention (Paris, 1898) where they recognized
certain territories as falling within the sphere of the other State. In 1899, by a Declaration
which both signed at London, French Territory was limited by a specified line; there was no
map attached to the Declaration, but later the French published a Livre Jaune including a
map. (see Map 2 to view this thrilling line)
In 1900, France and Italy exchanged letters about their interests in Africa. In 1902, Italy
was assured France would only expand its territory up to the frontier of Tripolania, “as
shown on the map annexed to the Declaration of March 1899”. This map could’ve been
none other than the Livre Jaune Map.
On May 1910 the Tunisian Government and the Ottoman Empire, by Convention defined
the frontier between the Regency of Tunis and the Vilayet of Tripoli. In 1912 Italian
sovereignty was established over the Turkish provinces of Tripolitania and Cyrcnaica, by
the Treaty of Ouchy and Lausanne, which, however, made some reservations possible for
the Sultan. In 1919, France and Great Britain had a Convention to be supplementary to the
1899 Declaration, recording an interpretation of such a Declaration defining the limits of the
French zone. Then an arrangement was formed between France and Italy, by an exchange
of letters, for the fixing of boundary between Tripolitania and French possessions in Africa
west of Toummo.
Then, in 1923, the Treaty of Lausanne (a new one) re-established peace between Turkey
and other signatories (inc. France, Britain, Italy); it included a provision that Turkey
recognized abolition of its rights over Libya under the old Treaty of Lausanne (1912). In
1924, France and Great Britain defined the boundary between French Equatorial Africa
and the Anglo-Egyptian Sudan; in 1934, Great Britain and Italy defined the boundary
between Libya and Sudan.
In 1935, France and Italy entered into a Treaty for settlement of pending questions
between them in Africa. This Treaty included a definition of a boundary between Libya and
French colonies east of Toummo; however this Treaty was never ratified. This Treaty will
henceforth be referred to a the “non-ratified Treaty of 1935”.
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In 1947, after WWII, the Treaty of Peace with Italy was signed. According to Article 23 of
this Treaty, Italy renounced all territories in Africa – Libya, Eritrea and Italian Somaliland.
After 4 years, Libya was proclaimed independent by Gen. Assembly resolution.
4.1 THE 1955 TREATY (Treaty of Friendship and Good Neighborliness)
In 1955, Libya entered into negotiations with France, which led to the Treaty of Friendship
and Good Neighborliness (August, 1955). Libya wanted the French to remove French
forces in the Fezzan, which was Libyan territory, so Libyan forces can be stationed there,
and also raised some issues as to boundaries. It is to be noted that at that time, France
had some territories in Africa which bordered Libya on the west and south and French
authority was challenged in those areas. In East of Toummo, on the other hand, France
had the view that there was an existing frontier resulting from the Anglo-French
Agreements of 1898, 1899 and 1919, and obtaining Libyan acceptance of these
agreements would entail inapplicability of the non-ratified treaty of 1935, and this was
important to France.
Both Parties recognize that the 1955 Treaty is the logical starting point for consideration of
the issues. Neither questions its validity. But Libya says that although the Treaty states that
it has been entered into “on the basis of complete equality, independence and liberty” it
(Libya) lacked the experience to negotiate with France, a Power with long international
experience. Libya suggests that the French attempted to take advantage of Libya’s lack of
knowledge as to the relevant facts, that Libya was then placed at a disadvantage in
relation to the provisions concerning the boundaries, and that the Court should take this
into consideration when interpreting the Treaty.
The Treaty concerns the future relationship of the 2 parties. The question of frontiers can
be found in Article 3 with Annex 1. Conventions were attached also (of Good
Neighborliness, on Economic Cooperation, and a “ Particular Convention” on the
withdrawal of French forces).
4.2 ARTICLE 3 OF THE 1955 TREATY
The Court first considered Article 3 together with its Annex to decide WON the Treaty
resulted in a conventional boundary between the parties. If it did, then this would be the
answer to the parties’ issues. So, the first task would be to interpret the Article itself. Article
3 reads:
“The 2 High Contracting Parties recognize that the frontiers between the territories of
Tunisia, Algeria, French West Africa and French Equatorial Africa, on the one hand, and
Libya, on the other, are those that result from the international instruments in force on the
date of the constitution of the United Kingdom of Libya as listed in the attached Exchange
of Letters.”
Annex 1, comprises an exchange of letters; quotes Article 3 then reads as follows:
“The reference is to the following texts:
- the Franco-British Convention of June 14 1898;
- the Declaration completing the same, of March 21, 1899;
- the Franco Italian Agreements of Nov. 1 1902;
- the Convention between the French Republic and the Sublime Porte, of May 12
1910 (recognized to be that of May 19, 1910)
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- the Franco-British Convention of Sept 8 1919
- the Franco-Italian Arrangement of Sept 12 1919.
With respect to this latter arrangement and in conformity with the principles set forth
therein, it was recognized by the 2 delegations that, between Ghat and Toummo, the
frontier traverses the following 3 pts: the Takharhouri Gap, the Col d’Anai and Landmark
1010. The Govt. of France is ready to appoint experts who might become part of a Joint
Franco-Libyan Commission entrusted with the task of making out the frontier, wherever
that work has not yet been done and where either govt. may consider it necessary.”
Interpretation of treaties must be in good faith, in accordance with the ordinary meaning to
be given to its terms in their context and in the light of its object and purpose; this is in
accordance with customary law reflected in Art 31 of the Vienna Convention on the Law on
Treaties. Interpretation must be based above all upon the text of the treaty; preparatory
work of the treaty may be resorted to as a supplementary measure.
According to Article 3, the parties “recognize that the frontiers are “those that result” from
certain intl. instruments. “Recognize” indicates that a legal obligation is undertaken. To
recognize a frontier is to essentially “accept” that frontier, to draw legal consequences from
its existence, to respect it and to renounce the right to contest it in the future.
4.3 LIBYA’S CONTENTIONS AS TO ARTICLE 3
LIBYA CONTENTION # 1. It is Libya’s contention that parties to the 1955 treaty intended
to recognize only the frontiers previously fixed by international instruments, that is, where
frontiers already existed, they were confirmed by this treaty, but where there were none,
the treaty did not create one.
Court’s Reply: We are unable to accept this view. There is no difficulty either in
ascertaining the meaning of the relevant terms of the treaty or in giving effect to them. In
the view of the Court, the treaty signified that the parties thereby recognized complete
frontiers between their respective territories as a result of the combined effect of the
instruments in Annex I. No relevant frontier was to be left undefined and no instrument
listed was superfluous. It would be incompatible with the recognition couched in such
terms to allow only some instruments to contribute, and for a frontier to be left undefined.
By entering into the Treaty, the parties recognized the frontiers to which the treaty referred.
LIBYA CONTENTION # 2. Libya argues that of all the instruments listed in Annex 1, only
the Franco-Ottoman convention of 1910 and the Franco-Italian arrangement of 1919 had
produced frontiers binding on Libya at the time of independence. The other conventions, it
said, had the following effects:
1) 1899 Franco-British Declaration: merely defined a line delimiting spheres of
influence, and not territorial frontier
2) 1919 Franco-British convention: did not tackle the issue
3) 1901 Franco-Italian exchange of letters – no longer in force because Italy
renounced its rights to the African territories
Court: does not consider it is called to determine these questions; frontier-fixing depends
on the will of the sovereign states directly concerned. Nothing prevents them from settling
the dispute by mutual agreement, to consider a certain line as a frontier. If already a
territorial boundary, it’s confirmed purely and simply; if not previously a territorial boundary,
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the parties must “recognize” it with a legal force that it previously lacked. Intl conventions
and case law show a variety of ways for such recognition.
Example: the Temple of Preah Vihear case, where a line on a map was upheld by the
Court, because the Parties therein had, by their conduct, “recognized” such line.
3. To support its contention, Libya points that Art. 3 uses the word “frontiers”. It argues that
by use of this word, the Parties had in view delimitation of some frontiers, not all.
Court: the use of the plural is in view of the fact that there were differences of legal status
between the territories bordering Libya, who had different relations with France and whose
frontiers were delimited by different agreements.
(Tunisia was a protectorate; Algeria a groupe de departements; French Equatorial Africa
groupe de terrritoires d’outre-mer). Thus, the use of the plural is appropriate. Libya is
wrong in its interpretation. Moreover, the frontier between French Equatorial Africa and
Libya were the one referred to.
Court: the fact that Art 3 specifies that the frontiers recognized are those “ that result from
the intl. instruments” defined in Annex 1 means all the frontiers result from these
instruments. Any other construction would be contrary to Art 3 and would render ineffective
reference to any instrument in Annex 1.
In fact, the Permanent ICJ, in its Advisory Opinion of Nov. 21 1925 on a provision of the
Treaty of Lausanne said that any article designed to fix a frontier should be interpreted so
that a precise, complete and definitive frontier should be established.
Also, in 1959, in the Sovereignty over Certain Frontier Land case, the Court held that “any
interpretation under which the Boundary Convention is regarded as leaving in suspense
and abandoning for a subsequent appreciation of the status quo the determination of the
right of one State or the other to the disputed plots would be incompatible with that
common intention.”
WHAT ARTICLE 3 IS. The Court then considers that Art 3 was aimed at settling all frontier
questions. The intention of the parties reveals that all the frontiers are to be included, and
none left out. When it used the words “the frontiers between the territories” refer to the all
frontiers between Libya and territories which France was responsible for. While Art 3 does
not define the frontiers, it refers to instruments in Annex 1, which was taken by the parties
as exhaustive in regard to the delimitation of their frontiers.
LIBYA CONTENTION # 3. Libya contends that among the instruments in Annex 1, only
those in force at the time of Libya’s independence should be taken into account, and that
the others, including the ones relied on by Chad, were no longer in force on the date of the
former’s acquisition of independence, and should not be considered. Also, it says that
other instruments, aside from those in Annex 1, could be referred to.
Court: we are unable to accept this contention. Art 3 does not merely refer to the intl.
instruments in force on the date of the constitution of Libya, but to intl. instruments in force
“tels qu’ils sont defines ( sorry, walang translations na binigay. Let’s just say they refer to
instruments even prior to Libya’s independence) listed in Annex 1. It would be pointless to
draw a governing set of instruments but leave in scrutiny WON they were in force. It’s clear
that the parties consider the listed instruments as in force for purposes of Art 3. Also, the
parties took the precaution of determining by mutual agreement which instruments to
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consider. Such drafting thus excludes any other instrument which might have concerned
the territory. (ex: the non-ratified treaty of 1935)
Because the parties agreed to establish by agreement the course of the boundary which
presented no difficulty in interpretation, the Court’s task is clear:
“having before it a clause which leaves little to be desired in the nature of clearness, it is
bound to apply the clause as it stands, without considering whether other provisions might,
with advantage have been added to or substituted with it.” (Acquisition of Polish
Nationality, Advisory Opinion)
The text of Art 3 clearly conveys intention to reach a definitive settlement of the questions
of the Parties’ common frontiers. Art 3 and Annex 1 intend to define borders by reference
to legal instruments. Any other construction would be against the interpretation of treaties,
upheld by intl. jurisprudence, namely, that of effectiveness.
V. THE COURT READS THE TREATY; CITES SOME PROVISIONS SHOWING
REGIONS CLAIMED BY LIBYA WERE CLASSIFIED AS FRENCH TERRITORY.
The Treaty is one of friendship and good neighborliness, concluded in the spirit of mutual
understanding, and on the basis of complete equality, independence and liberty. The
parties stated it was to facilitate the settle of all questions arising from the Parties’
geographical locations and interests in the area. The object and purpose, was to define
boundaries.
Also, the presupposition that the Treaty did define the frontiers underlies Art 4, where the
parties undertake all measures to preserve peace in areas bordering the frontiers. Of note
also is Article 5, which adds that “with regard to Libya, this shall apply to the Libyan
territory as defined in Art 3 of the present treaty; thus the parties understood the Article as
a provision which defined Libya’s territory.
Title III of the Treaty, beginning with Art 9, of the Convention of Good Neighborliness
(one of the instruments in Annex I) concerns Caravan Traffic and trans-frontier Movements.
It reads that France and Libya grants freedom of movement to nomads from tribes that
traditionally trade on either side of the frontier between Algeria, French West Africa and
French Equatorial Africa, on the one hand, and Libya, on the other, to maintain caravan
links between regions of Tibesti, Ennedi, Borkou, Bilma and the Aijers on the one hand,
and those of Koufra, Mourzouk, Oubari, Ghat, Edri and Ghadames, on the other”. Such
provision refers to the frontier between French Equatorial Africa and Libya it clear that that
frontier, according to the parties, separates the French rules regions (Tibesti, Ennedi,
Bourkou, a.k.a the BET) and Libyan regions (Koufra, Mourzouk, etc.). (consult Map 1;
clearly, just by looking at the map, one can see that Tibesti, Ennedi and Bourkou are within
the area claimed by Libya; however, the Treaty clearly classifies them as French-ruled
regions, not Libyan regions)
.Art 10, of the Convention of Good Neighborliness establishes a zone for caravan traffic on
both sides of the frontier. The zone is bounded:
“On French territory: by a line which, leaving the frontier to the west of Ghadames, runs
thoruh Tinfouchaye, Timellouline, Ohanet, Fort-Polignac, Fort-Gadel, Bilma, Zouar,
Largeau, Fada and continues in a straight line as far as the Franco-Sudanese frontier.
On Libyan territory: by a line leaving Sinaouen, runs thoruh Derj, Edri, El Abiod, Ghoddoua,
Zouila, Ouau, En Namous, Koufra and continues in a straight line as far as the Libyo-
Egyptian frontier.”
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(see Map 1)
By this, Libya recognized that Zouar, Largeau and Fada lie in French territory. (In its claim,
Libya includes these regions, but the Convention, which it was party to, clearly indicates
such areas are not in its territory.)
Article 11 of the Convention (of Good Neighborliness) stipulates that “caravan permits
shall be issued…in French territory by administrative authorities of…Zouar, Largeau,
Fada.; and in Libyan territory by…Mourzouk, Koufra and the Oraghen Toaureg.
( return to the Map; again, Zouar, Largeau and Fada are claimed by Libya, but this
provision says they are under France, and not in the former’s territory.)
Article 13, 15, 16 and Article 18 of the Convention all use the words “move freely across
the frontier (13) ”, “on either side of the frontier”, “frontier zone(15)” “cross the frontier (16)”,
“cross-border transit (Art 18)” and the “French and Libyan frontier authorities (17 and 20)”.
Use of these expressions clearly indicate the existence of a frontier. (Libya is therefore
wrong in saying there was no frontier/ boundary previously existing). The 1955 Treaty
undeniably provided for a frontier between Libya and French Equatorial Africa as one of
the appended Conventions contained in detail, provisions governing trans-frontier
movement in the region.
[Conclusion: There were boundaries already existing. Libya errs in saying there none. –
digester’s addition]
5.1 A DELVE INTO TREATY PREPARATIONS.
To confirm its reading of the text, the Court delved into circumstances surrounding the
treaty. It was shown that the French ambassador Dejean argued it was not possible to
conclude the treaty without agreement on the frontiers; to which the Libyan Prime Minister
said: the question of frontiers was not free from difficulty since the Italians had occupied
many centers behind the existing frontier.
Dejean replied that the Italians had exploited France’s weakness in the war.
Libya then proposed that the question of frontiers be deferred at the present time to study
the subject, and then experts could be dispatched to work with French experts to reach
agreement on demarcation; that it be considered sufficient to say that the Agreement of
1919 was acceptable and implementation of it be left to the near future.
Court: It can be discerned that the Libyan Prime Minister accepted the 1919 agreement.
Implementation, as used, can only mean demarcating operations on the frontier. The
Minister also spoke of agreement on demarcation, which presupposes the prior
delimitation, or definition of the frontier. Use of the term “demarcation” creates a
presumption that the parties considered the definition of the frontiers as already effected,
to be followed, if necessary, by demarcation, provided in Annex I.
The conclusion is that the Parties wished, by the 1955 Treaty, and particularly by its
Art 3 to define their common frontier.
VI. WHAT THE FRONTIER BETWEEN LIBYA AND CHAD/ FRENCH EQUATORIAL
AFRICA (in 1955) IS
First, note that the non-ratified Treaty of 1935 was not included in the list of instruments in
Annex I. Yet it was the most detailed. (see sketch Map 2 for the frontier/ line it provided).
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The 1st instrument mentioned in Annex I (Franco-British Convention of June 1898) has no
direct relation to the present dispute. However, it is mentioned in the Annex because of the
Additional Decl. of March 21, 1899, which complements the Convention of 1898, defining a
line limiting the French zone to the north-east in the direction of Egypt and the Nile Valley,
under British control. Such a line is relevant.
The limitation was worded as follows: “it is understood, in principle, that to the north of the
15th parallel the French Zone shall be limited to the north-east and east by a line which
shall start from the pt. of intersection of the Tropic of Cancer with the 16 th degree of
longitude east of Greenwich, shall run to the south east until it meets the 24th degree east
of Greenwich, and shall then follow the 24th degree until it meets, to the north of the 15th
parallel of latitude, the frontier of Daifur as it shall eventually be fixed”.
This text, the Court said, has ambiguities. The words “in principle” raises question whether
the line was to be strictly south-east or whether some leeway was possible. A few days
after the Declaration, a map was published in a Livre Jaune; in that map a red line
appeared, and was continuous where it reflected boundaries defined in that Convention
and was pecked where it indicated the limit of the French Zone defined in par. 3 of the
Convention. The pecked line was shown to run not strictly southeast, but in an east-south-
east direction. See Sketch Map 3 for an exciting comparison of the Lines.
The Convention of Sept 8 1919 resolved the question of the line for the French Zone. Such
Convention was supplementary to the Declaration; and was an addition to 1898
Convention. The line it drew was an east-south-east line rather than a strict south east line.
See Sketch 3 again to relish the sight of this line.
Court: there’s thus little point in considering the pre-1919 situation, as the Anglo-
French Convention of Sept 8 19191 determined the precise end-point of the line in
question. It is the correct interpretation of the 1899 Declaration. It is opposable to Libya by
virtue of the 1955 Treaty. The Court concludes that the line described in the 1919
Convention represents the frontier between CHAD and LIBYA TO THE EAST of the
meridian 16 0 east.
Now, to the frontier west of that meridian. The Franco-Italian exchange of letters of Nov. 1
1902 refers to both the Anglo-French Declaration of 1899 and the Franco-Italian exchange
of letters of 1900; it states:
“ the limit to the French expansion in North Africa, as referred to in the above mentioned
letter, dated Dec 14 1900, is to be taken as corresponding to the frontier of Tripolitania as
shown on the map annexed to the Declaration of March 21 1899.
The map referred to is the map in the Livre Jaune which showed a pecked line indicating
Tripolitania’s frontier. That line must therefore be examined by the Court in determining the
frontier between Libya and Chad, to the extent that it does not result from the Anglo-French
Agreements of 1898, 1899 and 1919.
(Treaties discarded as having no bearing: Convention between the Tunisian Govt. and the
Ottoman Govt. Franco-Italian Arrangement of 1919- only to sector between Ghadames and
Toummo. Both have no bearing to the Libya-Chad dispute)
A. How the Line which results from the combined effect of the Annex I instruments
is made up, as far as Libya and Chad are concerned.
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It is clear that the eastern end-point of the frontier will lie on the meridian 24 0 east, where
Sudan’s boundary is. Chad asks the Court to declare the course of the frontier as far as
the fifteenth degree east of Greenwich; between 240 and 160 east of Greenwich, the line
there is determined by the Anglo-French Convention of Sept 1919; a straight line from the
pt. of intersection of the 240 with the parallel 190 30 ‘ north to the pt. of intersection of the
meridian 160
east with the Tropic of Cancer. From this point, the line is determined by the Franco-Italian
exchange of Letters, by reference to the Livre Jaune map; this line runs to a point south of
Toummo but before it reaches such point crosses the meridian 150 east. This line is
confirmed in the Particular Convention annexed to the 1955 Treaty, which was for the
withdrawal of French forces in the Fezzan; by a deliberation of some military routes the
Court concluded that the Livre jaune map line as being the boundary of Chad’s
territory. (see Map 3)
Chad, in its submission, asks the Court to declare the frontier as far west as the 15 th
degree meridian east. It however, has not defined the point at which the frontier crosses
the meridian. The parties also have not indicated the exact coordinates of Toummo. On the
basis of the maps produced, however, the Court concludes that line of the Livre jaune map
crosses the 150 meridian east at the point of intersection of that meridian with the parallel
230 of north latitude. In this sector, the frontier is a straight line from the latter point to the
pt. of intersection of the meridian 160 east with the Tropic of Cancer.
B. A FRONTIER RESULTED FROM THE 1955 Treaty…so what?
Having concluded that the 1955 Treaty produced a frontier and having established where
that frontier lay (see last paragraph)it is now time to consider the attitude of the parties to
the question of frontiers. No subsequent agreement between the Parties called in question
the frontier made from the 1955 treaty. And if one considers treaties after 1955, there is
support that the existence of a determined frontier was acted upon by the parties.
Examples: 1. 1966 Friendship Treaty between Chad and Libya, which mentioned the
frontier between the 2 countries, of people living on each side of the frontier, frontier
authorities, etc.
2. 1972 Agreement on Friendship, Cooperation and Mutual Assistance: In Art. 2, it was
recognized that frontiers existed between the 2 countries.
3. The Accord of 1981: where the Parties decided that the frontiers between them shall be
opened to weld together the two fraternal peoples of Libya and Chad.
C. Attitudes of the Parties subsequent to the 1955 treaty
Chad’s territory (1, 284, 000 sq. kilometers) includes the area of the BET (as submitted by
France). As mentioned the BET (Tibesti, Ennedi, Bourkou) is part of Chad, due to the 1955
Treaty, and not of Libya. Libya did not challenge the territorial dimensions of Chad.
As for Chad, it has consistently held that id does have a boundary with Libya. It also
believes that its territory includes the Aouzou Strip (see Map 2), which is between the lines
of 1919 and 1935, so it naturally complained when Libyan forces occupied the Aouzou
strip.
Libya did not justify the occupation; when the dispute was brought before the Council,
Libya questioned the jurisdiction of the Security Council ( not the correct forum). Thus,
Chad is consistent in its conduct regarding its territory.
109
[Paragraph 72 of the original] Article 11 of the 1955 Treaty provides:
“The present treaty is concluded for a period of 20 years. The High Contracting parties
shall be at all times to enter into consultations with a view to its revision. Such
consultations shall be compulsory at the end of the 10 year period following its entry into
force. The present Treaty can be terminated by either Party 20 years after entry into force,
or at any later time, provided one year’s notice is given to the other Party”
These provisions notwithstanding, the Treaty must be taken to have established a
permanent frontier. Nothing in the treaty indicates the frontier was temporary; on the
contrary it bears all hallmarks of finality. The establishment of the frontier has a legal life
independent of the treaty; once agreed, the boundary stands; any other approach would
threaten the fundamental principles of the stability of boundaries.
[par. 73] A boundary established by a treaty thus achieves a permanence which the treaty
itself does not necessarily enjoy; the treaty can cease to be in force without affecting the
continuance of the boundary. Here, the parties did not terminate the treaty, but WON they
did, the boundary remains. This is not to say that 2 States may not by mutual agreement
vary the border between them; such a result can of course be achieved by mutual consent,
but when a boundary has been the subject of agreement the continued existence of that
boundary is NOT DEPENDENT ON THE CONTINUING LIFE OF THE TREATY UNDER
WHICH THE BOUNDARY IS AGREED.
The 150 Line claimed by Libya as the boundary is unsupported by the 1955 treaty or the
annexed instruments. The effect of the instruments in Annex I to the 1955 Treaty are as
follows:
- a composite boundary results from the instruments. It comprises 2 sectors
separately dealt with in the instruments in Annex I: first, a sector to the east of the
pt. of intersection of the Tropic of Cancer with the 16 th degree of longitude east of
Greenwich, and second a sector west of that point. This point is point X. See Map
4.
- The eastern sector of the boundary is provided for by the Anglo-French
Convention of Sept. 1919; a straight line between point X and point Y (see Map
4)
- The western sector, from point X in the direction of Toummo, is provided by the
Franco-Italian Accord of Nov 1 1902; this is a straight line following the frontier of
Tripolitania as indicated on the Livre jaune map, from point X to point Z (see Map
4)
- Thus, the Convention of June 1898 with the Declaration of 1899, the Accord of
1902 and the Convention of Sept. 1919 – all provide a complete frontier between
Libya and Chad.
VII Conclusion
Thus, the territorial dispute was conclusively determined by a Treaty to which Libya is an
original party and Chad a party in succession to France. The Court’s conclusion that the
Treaty contains an agreed boundary renders it unnecessary to consider the history of the
Borderlands claimed by Libya on basis of title derived from indigenous people and other
groups (like the Senoussi).
Also, the effectiveness of occupation, though peaceful and constant, are not matters for
determination in this case. The concept of terra nullius and the nature of the Senoussi,
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Ottoman or the French administration are not germane to the issue. In short, the 1955
Treaty completely determined the boundary between Libya and Chad.
[Par 77] For these reasons, The Court, By 16 votes to 1,
1) Finds that the boundary between Libya and Chad is defined by the Treaty of
Friendship and Good Neighborliness concluded on Aug. 10 1955 between the
France and Libya
2) Finds that the course of the boundary is as follows:
From the pt. of intersection of the 24th meridian east with the parallel 190 30’
north, a straight line to the point of intersection of the Tropic of Cancer with the
16th meridian east; and from that point a straight line to the point of intersection of
the 15th meridian east and the parallel 230 of latitude north;
CASE CONCERNING LAND, ISLAND AND MARITIME FRONTIER DISPUTE: EL
SALVADOR v. HONDURAS, with NICARAGUA INTERVENING31 (11 September 1992)
SUMMARY OF RULINGS.
(As abstracted by the Planck Institute)
FIRST ISSUE: LAND FRONTIER DISPUTES
VOTING: the decision of the Court was unanimous for all but the fourth sector32, which was
decided against the vote of ad hoc Judge Valticos.
RATIO: The Court relied on the uti possidetis juris principle, according to which the national
boundaries of former colonies correspond to the earlier administrative borders of the
colonies. The Court underlined that it was the application of this principle which provided
States liberated from former colonial empires with internationally recognized borders. The
different titles invoked by the parties to the case were of different legal value; thus, the
Court decided to recognize only the title deeds granted by the Spanish crown as valid
proof of title as well as topographical characteristics in order to define a clearly
recognizable borderline.
SECOND ISSUE: ISLANDS OF THE GULF OF FONSECA
VOTING: the Court decided in a vote of 4 to 1 (against : ad hoc Judge Torres Bernárdez)
RATIO: The decision of the Court was based on the assumption that none of the islands
had been terra nullius in 1821, the date of independance. Thus, sovereignty over the
islands had been achieved according to the uti possidetis juris principle. However, the
application of this principle suffered from the lack of documents that might have testified
clearly the appertainance of the islands to one administrative district or the other. Thus the
Court was forced to concentrate more on the behaviour of the parties with regard to the
islands after 1821. On this basis the Court found that El Tigre appertained to Honduras and
Meanguera and Meanguerita to El Salvador.
THIRD ISSUE: MARITIME SPACE WITHIN AND BEYOND THE GULF OF FONSECA
VOTING: vote of 4 to 1 in all the following four sub-issues:
31
Nicaragua was allowed to intervene only with regard to the third issue of the case, i.e., the legal status
of the maritime space within and beyond the Gulf of Fonseca.
32
There are six sectors in dispute, i.e., six land frontiers between El Salvador and Honduras that the
Chamber of the ICJ must delimit.
110
(1) the Court came to the conclusion that it was not competent to delimit the waters of the
Gulf, because the Special Agreement did not contain indications in this sense. According to
the Agreement, the Court had to determine the legal status of the waters of the Gulf on the
basis of applicable international law and, insofar as necessary, the General Peace Treaty
of 1980 between El Salvador and Honduras.
(2) In view of its general characteristics, dimensions and proportions, the Gulf would today
be regarded as a juridical bay in accordance with the Convention on the Territorial Sea and
the Contiguous Zone of 1958 and the Convention on the Law of the Sea of 1982. As a
consequence thereof, if the Gulf was a single State bay, a closing line could be drawn and
the waters thereby enclosed and considered as internal waters. However, the Gulf was not
a single State bay but constituted a so called historical bay, which is neither defined in the
1958 Convention nor in the Convention of 1982. From this fact the Court concluded that its
decision had to be taken on the basis of customary international law. After reviewing its
own jurisprudence on the topic, the Court found that it had to examine the history of the
Gulf. In this context, much weight was accorded to a judgment of the Central American
Court of Justice of 1917 in a dispute between El Salvador and Nicaragua. That Court had
come to the conclusion that the Gulf of Fonseca effectively constituted a "closed sea"
belonging to all three coastal States communally, with the exception of a three mile zone
established unilaterally by each coastal State. Thus, the Central American Court viewed
the Gulf of Fonseca as a condominium resulting from the succession of the three States
from Spain in 1821. Until then, the Gulf had been a single State bay belonging to Spain
alone. According to the Court, the decision of the Central American Court underlined the
fact that at the time of independance, no boundaries were delimited in the Gulf and thus
the waters had remained undivided. The Court, however, stressed that the decision of the
Central American Court constituted a binding judgment only between the two parties
originally involved, namely El Salvador and Nicaragua, and accordingly, the Court had to
reach its own decision. With a 4 to 1 vote, the Court affirmed that the Gulf of Fonseca was
a case of "historic waters", whereby the three coastal States had succeeded to communal
sovereignty. In contrast to the frontier delimited on land, the waters of the Gulf had never
been divided or otherwise delimited after the independance of the three coastal States.
Thus, the communal succession for the three States was a logical consequence of the uti
possidetis juris principle with regard to the sovereignty of the Gulf.
(3) the Court drew the closing line of the Gulf between Punta de Amapala and Punta
Cosiguina and determined that the special regime of the Gulf did not extend beyond this
closing line. The legal status of these waters inside the Gulf were defined by the Court as
sui generis, but would be the same as that of internal waters and not that of territorial sea,
except for the three-mile coastal zone of each State.
(4) As to the waters outside the Gulf, the Chamber noted that entirely new concepts of
maritime law existed present day, unheard of in 1917. The Chamber held in this context
that there is a territorial sea proper seawards of the closing line of the Gulf. Since there is a
condominium of the waters inside the Gulf, there is a tripartite presence at the closing line.
Only seaward of the closing line could modern territorial seas exist, as otherwise, the Gulf
waters could not be waters of a historic bay. Therefore, the three coastal States, joint
sovereigns of the internal waters, must each be entitled outside the closing line to a
territorial sea, continental shelf and exclusive economic zone. It is, however, for the three
States to decide whether this situation should be upheld or replaced by a division and
delimitation into three separate zones.
PREFACE.
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1. HISTORICAL ANTECEDENTS. Back in the Spanish colonial times, both Honduras and
El Salvador belonged to the Captaincy-General of Guatemala; Guatemala, in turn, was a
part of Mexico at the time. In 1821 after the fall of the Spanish colonial empire in Central
America, Honduras and El Salvador joined the Federal Republic of Central America
(together with Costa Rica, Guatemala, and Nicaragua). Later on, both countries became
independent in 1839 after the disintegration of the Federal Republic. Their respective
national borders corresponded to the administrative borders recognized for the former
Spanish colonies according to the uti possidetis iuris33 principle applied first in Central
America and later in Africa.
2. INITIAL DISPUTES. As early as 1854, the legal status of the islands located in the Gulf
of Fonseca became an issue of dispute; the question of the land frontier followed in 1861.
Border incidents led to mounting tension between El Salvador and Honduras and,
ultimately, to an armed conflict in 1969. However, in 1972 the parties were able to reach an
agreement on a substantial part of the land border between El Salvador and Honduras;
only six sectors of the frontier remained unsettled. A mediation process initiated in 1978
resulted in the conclusion of a peace treaty in 1980. Under the 30 October 1980 General
Peace Treaty a Joint Border Commission was created to determine the boundary in the
remaining six sectors as well as to decide upon the legal status of the islands and the
maritime spaces. In the event that the parties did not reach a settlement within five years,
the treaty provided that the parties, within six months, would conclude a Special
Agreement to submit the dispute to the ICJ. Accordingly, a Special Agreement was
concluded on May, 24, 1986 requesting the Court to (1) delimit the frontier between El
Salvador and Honduras in the subject six sectors, (2) to determine the legal status of the
islands in the Gulf of Fonseca, and (3) determine the legal status of the waters within and
outside the Gulf of Fonseca.
3. COMMENCEMENT OF THE ACTION. On 11 December 1986, El Salvador and
Honduras jointly notified the ICJ of a Special Agreement concluded between them on 24
May 1986 whereby a dispute referred to as "Land, Island and Maritime Frontier Dispute"
would be submitted for decision by a Chamber to be constituted according to Article 26
para.2 of the ICJ Statute. The Chamber would consist of three Members of the Court and
two judges ad hoc chosen by each Party. The Chamber finally consisted of Judges Oda,
Sette-Camara and Sir Robert Jennings and the ad hoc Judges Valticos and Torres
Bernárdez.
PART ONE. Introduction to the Land Boundaries
4. APPLICATION OF UTI POSSIDETIS JURIS. The Parties agree that the fundamental
principle for determining the land frontier is the uti possidetis juris. The Chamber notes that
the essence of the agreed principle is its primary aim of securing respect for the territorial
boundaries at the time of independence, and its application has resulted in colonial
administrative boundaries being transformed into international frontiers. In Spanish Central
America there were administrative boundaries of different kinds or degrees, and the
jurisdictions of general administrative bodies did not necessarily coincide territorially with
those of bodies possessing particular or special jurisdiction. In addition to the various civil
jurisdictions there were ecclesiastical ones, which the main administrative units had to
follow in principle. The Parties have indicated to which colonial administrative divisions
33
The principle states that the national boundaries of former colonies correspond to the earlier
administrative borders of the colonies
111
(provinces) they claim to have succeeded. The problem is to identify the areas, and the
boundaries, which corresponded to these provinces, which in 1821 became respectively El
Salvador and Honduras. No legislative or similar material indicating this has been
produced, but the Parties have submitted, inter alia, documents referred to collectively as
"titles" (títulos), concerning grants of land by the Spanish Crown in the disputed areas,
from which, it is claimed, the provincial boundaries can be deduced.
5. COLONIAL EFFECTIVITÉS.The Chamber analyzed the various meanings of the term
"title". It concludes that none of the titles produced by El Salvador (which records grants of
land to individuals or Indian communities) can be considered as "titles" in the same sense
as, for example, a Spanish Royal Decree (which attributes certain areas to a particular
administrative unit). Rather, they are comparable to "colonial effectivités" 34. In some cases
the grant of a title was not perfected, but the record, particularly of a survey, remains a
"colonial effectivité" which may serve as evidence of the position of a provincial boundary.
Referring to the seven sectors of the boundary agreed in the General Treaty of Peace, the
Chamber assumes that the agreed boundary was arrived at applying principles and
processes similar to those urged upon the Chamber for the non-agreed sectors. Observing
the predominance of local features, particularly rivers, in the definition of the agreed
sectors, the Chamber has taken some account of the suitability of certain topographical
features to provide an identifiable and convenient boundary. The Chamber is here
appealing not so much to any concept of "natural frontiers", but rather to a presumption
underlying the boundaries on which the uti possidetis juris operates.
6. ARTICLE 26 OF 1980 TREATY IS NOT AN “APPLICABLE LAW CLAUSE” BUT A
RULE OF EVIDENCE. Under Article 5 of the Special Agreement, the Chamber is to take
into account the rules of international law applicable between the Parties, "including, where
pertinent, the provisions of" the Treaty. This presumably means that the Chamber should
also apply, where pertinent, even those Articles which in the Treaty are addressed
specifically to the Joint Frontier Commission. One of these is Article 26 of the Treaty, to the
effect that the Commission shall take as a basis for delimitation the documents issued by
the Spanish Crown or any other Spanish authority, secular or ecclesiastical, during the
colonial period, and indicating the jurisdictions or limits of territories or settlements, as well
as other evidence and arguments of a legal, historical, human or any other kind, brought
before it by the Parties and admitted under international law. Drawing attention to the
difference between its task and that of the Commission, which had merely to propose a
frontier line, the Chamber observes that Article 26 is not an applicable law clause, but
rather a provision about evidence.
7. EL SALVADOR’S ARGUMENT: THE TITULOS EJIDALES ARE CONTROLLING. The
Chamber comments on one particular class of titles, referred to as the "formal title-deeds
to commons", for which El Salvador has claimed a particular status in Spanish colonial law,
that of acts of the Spanish Crown directly determining the extent of the territorial
jurisdiction of an administrative division. These titles, the so-called títulos ejidales, are,
according to El Salvador, the best possible evidence in relation to the application of the uti
possidetis juris principle. The Chamber does not accept any interpretation of Article 26 as
signifying that the Parties have by treaty adopted a special rule or method of determination
of the uti possidetis juris boundaries, on the basis of divisions between Indian poblaciones.
It was the administrative boundaries between Spanish colonial administrative units, not the
34
As defined in a previous case, effectivites refer to "the conduct of the administrative authorities as proof
of the effective exercise of territorial jurisdiction in the region during the colonial period" (I.C.J. Reports
1986, p. 586, para. 63)
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boundaries between Indian settlements as such, that were transformed into international
boundaries in 1821. El Salvador contends that the commons whose formal title-deeds it
relies on were not private properties but belonged to the municipal councils of the
corresponding poblaciones. Control over those communal lands being exercised by the
municipal authorities, and over and above them by those of the colonial province to which
the commons had been declared to belong, El Salvador maintains that if such a grant of
commons to a community in one province extended to lands situated within another, the
administrative control of the province to which the community belonged was determinative
for the application of the uti possidetis juris, i.e., that, on independence, the whole area of
the commons appertained to the State within which the community was situated 35. The
Chamber, which is faced with a situation of this kind in three of six disputed sectors, has
however been able to resolve the issue without having to determine this particular question
of Spanish colonial law, and therefore sees no reason to attempt to do so.
8. THE CHAMBER MUST CONSIDER ALL MANNER OF TITLES AS INDICATIVE, BUT
NOT CONCLUSIVE, EVIDENCE OF INTER-PROVINCIAL BOUNDARIES. In the absence
of legislative instruments formally defining provincial boundaries, not only land grants to
Indian communities but also grants to private individuals afford some evidence as to the
location of boundaries. There must be a presumption that such grants would normally
avoid straddling a boundary between different administrative authorities, and where the
provincial boundary location was doubtful the common boundaries of two grants by
different provincial authorities could well have become the provincial boundary. The
Chamber therefore considers the evidence of each of these grants on its merits and in
relation to other arguments, but without treating them as necessarily conclusive.36
9. THE SUBMISSIONS OF THE PARTIES. With regard to the land that had not been the
subject of grants of various kinds by the Spanish Crown, referred to as crown lands, tierras
realengas, the Parties agree that such land was not unattributed but appertained to the
one province or the other and accordingly passed, on independence, into the sovereignty
of the one State or the other. With regard to post-independence grants or titles, the so-
called "republican titles", the Chamber considers that they may well provide some
evidence of the position in 1821 and both Parties have offered them as such. El Salvador,
while admitting that the uti possidetis juris is the primary element for determining the land
boundary, also puts forward, in reliance on the second part of Article 26, arguments
referred to as either "arguments of a human nature" or arguments based on effectivités.
35
In essence, El Salvador is arguing that administrative divisions should not be determinative of the
delimitation. The Chamber must look at which provincial authority exercises control over a particular
commons or Indian settlement/ community. For example, if community A ( as determined by the titulos
ejidales) is situated between province X and province Y, but province X exercises control over community
A, the area of community A which extends to province Y must be considered as forming part of province
X and the area of province Y must be diminished accordingly.
36
In sum, the principle followed by the Chamber in determining the boundaries are as follows: (1) uti
possidetis juris shall apply primarily; therefore, if a boundary is clearly defined between El Salvador and
Honduras based on tierras realengas (royal grants of the Spanish Crown) and with due consideration to
topographical characteristics, such boundary shall be respected (2) if the boundaries are unclear, pre-
independence grants (grants to Indian communities and grants to private individuals) and post-
independence grants (Republican titles) will be examined as evidence of the recognition of boundaries on
the presumption that “such grants would normally avoid straddling a boundary between different
administrative authorities” (3) lastly, the Chamber will resort to contemporaneous acts of the two states
evincing a belief that one belongs to a particular unit as evidenced by the exercise of control over an area
– this is where the post-colonial effectivités would come in since they refer to the exercise of territorial
jurisdiction by administrative authorities.
112
Honduras also recognizes a certain confirmatory role for effectivités and has submitted
evidence of acts of administration of its own for that purpose. El Salvador has first
advanced arguments and material relating to demographic pressures in El Salvador
creating a need for territory, as compared with the relatively sparsely populated Honduras,
and to the superior natural resources said to be enjoyed by Honduras. El Salvador,
however, does not appear to claim that a frontier based on the principle of uti possidetis
juris could be adjusted subsequently (except by agreement) on the ground of unequal
population density. The Chamber will not lose sight of this dimension of the matter, which is
however without direct legal incidence. El Salvador also relies on the alleged occupation of
disputed areas by Salvadorians, their ownership of land in those areas, the supply by it of
public services there and its exercise in the areas of government powers, and claims, inter
alia, that the practice of effective administrative control has demonstrated an "animus" to
possess the territories. Honduras rejects any argument of "effective control", suggesting
that the concept only refers to administrative control prior to independence. It considers
that, at least since 1884, no acts of sovereignty in the disputed areas can be relied on in
view of the duty to respect the status quo in a disputed area. It has however presented
considerable material to show that Honduras can also rely on arguments of a human kind.
The Chamber considers that it may have regard, in certain instances, to documentary
evidence of post-independence effectivités affording indications of the 1821 uti possidetis
juris boundary, provided a relationship exists between the effectivités and the
determination of that boundary.
PART TWO. Sector-by-sector delimitation of boundaries and the determining factors
behind them37
A. FIRST SECTOR. The first disputed sector of the land boundary runs from the agreed
tripoint where the frontiers of El Salvador, Guatemala and Honduras converge (Cerro
Montecristo) to the summit of the Cerro Zapotal.
10. FIRST DETERMINING FACTOR: PRIOR AGREEMENT BETWEEN THE PARTIES
AND ACQUIESCENCE BY HONDURAS. All negotiations prior to 1972 over the dispute as
to the location of the frontier in this sector were conducted on the basis, accepted by both
sides, that it was the boundary between the ejidos of Citalá and Ocotepeque that defined
the frontier. Moreover a title granted by Honduras in 1914, and the position taken by
Honduras in the course of tripartite negotiations held between El Salvador, Guatemala and
Honduras in 1934-1935, confirmed the agreement between the Parties that the boundary
between Citalá and Ocotepeque defined the frontier between them. After recalling that the
effect of the uti possidetis juris principle was not to freeze for all time the provincial
boundaries, the Chamber finds that Honduras's conduct from 1881 to 1972 may be
regarded as acquiescence in a boundary corresponding to that between the Tepangüisir
lands of Citalá and those of Ocotepeque.
11. SECOND DETERMINING FACTOR: CONTEMPORANEOUS ACTS AND
EFFECTIVITES. The Chamber then turns to the part of the disputed area lying between
the lands comprised in the Citalá title and the international tripoint. Honduras contends that
since, according to the survey, the land in this area was crown land (tierras realengas), and
the survey was being effected in the province of Gracias a Dios, these must have been
37
I took the liberty to delete some of the delimitation provisions that deal only with technical factors. I am
including here only those delimitations that have been arrived at because of the application of the
principles referred to in footnote no. 4 of this digest. For a more-than-500-page case, this is the best I can
do. Sorry for any inconvenience and/ or injury that I may cause ---ceejay balisacan
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tierras realengas of that province and hence are now part of Honduras. El Salvador
however claims this area on the basis of effectivités, and points to a number of villages or
hamlets belonging to the municipality of Citalá within the area. The Chamber notes
however the absence of evidence that the area or its inhabitants were under the
administration of that municipality. El Salvador also relies on a report by a Honduran
Ambassador stating that the lands of the disputed area belonged to inhabitants of the
municipality of Citalá in El Salvador. The Chamber however does not regard this as
sufficient since to constitute an effectivité relevant to the delimitation of the frontier at least
some recognition or evidence was required of the effective administration of the
municipality of Citalá in the area, which, it notes, has not been proved. El Salvador also
contends that ownership of land by Salvadorians in the disputed area less than 40
kilometres from the line Honduras claims as the frontier shows that the area was not part
of Honduras, as under the Constitution of Honduras land within 40 kilometres of the frontier
may only be acquired or possessed by native Hondurans. The Chamber rejects this
contention since at the very least some recognition by Honduras of the ownership of land
by Salvadorians would have to be shown, which is not the case. The Chamber observes
that in the course of the 1934-1935 negotiations agreement was reached on a particular
frontier line in this area. The agreement by the representatives of El Salvador was only ad
referendum, but the Chamber notes that while the Government of El Salvador did not ratify
the terms agreed upon ad referendum, neither did it denounce them; nor did Honduras
retract its consent.
12. THIRD DETERMINING FACTOR: TOPOGRAPHY. The Chamber considers that it can
adopt the 1935 line, primarily since for the most part it follows the watersheds, which
provide a clear and unambiguous boundary; it reiterates its view that the suitability of
topographical features to provide a readily identifiable and convenient boundary is the
material aspect where no conclusion unambiguously pointing to another boundary
emerges from the documentary material.
B. SECOND SECTOR. The second disputed sector of the land boundary lies between the
Peña de Cayaguanca, and the confluence of the stream of Chiquita or Oscura with the
river Sumpul.
13. DETERMINING FACTOR: CROWN LAND/ ROYAL GRANTS. Honduras bases its
claim chiefly on the 1742 title of Jupula, issued in the context of the long-standing dispute
between the Indians of Ocotepeque in the province of Gracias a Dios, and those of Citalá,
in the province of San Salvador. The principal outcome was the confirmation and
agreement of the boundaries of the lands of Jupula, over which the Indians of Ocotepeque
claimed to have rights and which were attributed to the Indians of Citalá. It was however
recorded that the inhabitants of Ocotepeque, having recognized the entitlement of the
inhabitants of Citalá to the land surveyed, also requested "that there be left free for them a
mountain called Cayaguanca which is above the Jupula river, which is crown land," and
this request was acceded to. The Chamber finds that the Jupula title was evidence that in
1742 the mountain of Cayaguanca was tierras realengas and since the community of
Ocotepeque, in the Province of Gracias a Dios, was to cultivate it, it concludes that the
mountain was tierras realengas of that province, for which reason the mountain must on
independence have formed part of Honduras on the basis of the uti possidetis juris. The
Chamber next turns to the claim by El Salvador to a triangular strip along and outside the
north-west boundary of the Dulce Nombre de la Palma title, which El Salvador claims to be
totally occupied by Salvadorians and administered by Salvadorian authorities [the claim is
therefore based on effectivite]. No evidence to that effect has however been laid before the
Chamber. Nor does it consider that a passage in the Reply of Honduras regarded by El
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Salvador as an admission of the existence of Salvadorian effectivités in this area can be so
read. There being no other evidence to support El Salvador's claim to the strip in question,
the Chamber holds that it appertains to Honduras, having formed part of the "mountain of
Cayaguanca" [which is crown land] attributed to the community of Ocotepeque in 1742.
C. THIRD SECTOR. The third sector of the land boundary in dispute lies between the
boundary marker of the Pacacio, on the river of that name, and the boundary marker Poza
del Cajón, on the river known as El Amatillo or Gualcuquín.
14. FIRST DETERMINING FACTOR: PRE-INDEPENDENCE GRANTS. With regard to the
first part of the third sector, the Chamber upholds Honduras's contention in principle that
the position of the pre-independence provincial boundary is defined by two 18th century
Honduran titles. After first reserving the question of precisely where their southern limits
lay, since if the Chamber found in favour of El Salvador's claim based on effectivités, it
would not have to be considered, the Chamber ultimately determines the boundary in this
area on the basis of these titles.
15. SECOND DETERMINING FACTOR: A DEMARCATION THAT HARMONIZES
DIFFERENT PRIOR SURVEYS. As for the second part of the third sector, the Chamber
considers it impossible to reconcile all the landmarks, distances and directions given in the
various 18th century surveys: the most that can be achieved is a line which harmonizes
with such features as are identifiable with a high degree of probability, corresponds more
or less to the recorded distances and does not leave any major discrepancy unexplained.
The Chamber considers that three features are identifiable and that these three reference
points make it possible to reconstruct the boundary between the Province of Gracias a
Dios and that of San Salvador in the area under consideration and thus the uti possidetis
juris line, which the Chamber describes.
16. THIRD DETERMINING FACTOR: PRIOR SURVEYS AS SUPPORTED BY
REPUBLICAN TITLES. With regard to the third part of the sector, the Chamber considers
that on the basis of the reconstructed 1742 title of Nombre de Jesús and the 1766 and
1786 surveys of San Juan de Arcatao, it is established that the uti possidetis juris line
corresponded to the boundary between those two properties, which line the Chamber
describes. In order to define the line more precisely the Chamber considers it legitimate to
have regard to the republican titles granted by Honduras in the region, the line found by
the Chamber being consistent with what it regards as the correct geographical location of
those titles.
D. FOURTH SECTOR. The fourth and longest disputed sector of the land boundary, also
involving the largest area in dispute, lies between the source of the Orilla stream and the
Malpaso de Similatón boundary marker.
17. FIRST DETERMINING FACTOR: TOPOGRAPHY AS SUPPORTED BY VARIOUS
PRE-INDEPENDENCE TITLES. The Chamber goes on to determine, on the basis of an
examination of the titles and an assessment of the arguments advanced by the Parties by
reference to them, the line of the uti possidetis juris in the sub-sector under consideration.
Having established that the inter-provincial boundary was, in one area, the river Las
Cañas, the Chamber relies on a presumption that such a boundary is likely to follow the
river so long as its course is in the same general direction. The Chamber then turns to the
final section of the boundary between the river Las Cañas and the source of the Orilla
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stream (end-point of the sector). With respect to this section, the Chamber accepts the line
claimed by Honduras on the basis of a title of 1653.
18. SECOND DETERMINING FACTOR: CROWN LAND/ ROYAL GRANTS. The
Chamber next addresses the claim of El Salvador, based upon the uti possidetis juris in
relation to the concept of tierras realengas (crown land), to areas to the west and south-
west of the land comprised in the ejidos of Arambala Perquín, lying on each side of the
river Negro-Quiagara, bounded on the west by the river Negro-Pichigual. The Chamber
finds in favour of part of El Salvador's claim, south of the river Negro-Pichigual, but is
unable to accept the remainder.
19. THIRD DETERMINING FACTOR: EQUITY, IN CONJUNCTION WITH A PRIOR
ABSENCE OF DISAGREEMENT. Noting that neither side has offered any evidence
whatever as to the line of the uti possidetis juris in this region, the Chamber, being satisfied
that this line is impossible to determine in this area, considers it right to fall back on equity
infra legem, in conjunction with an unratified delimitation of 1869. The Chamber considers
that it can in this case resort to the line then proposed in negotiations, as a reasonable and
fair solution in all the circumstances, particularly since there is nothing in the records of the
negotiations to suggest any fundamental disagreement between the Parties on that line.
20. NON-FACTOR: EFFECTIVITES (INSUFFICIENCY OF EVIDENCE THEREOF). The
Chamber then considers the question of the effectivités El Salvador claims in the area
north of the river Negro-Quiagara, which the Chamber has found to fall on the Honduran
side of the line of the uti possidetis juris, as well as the areas outside those lands. After
reviewing the evidence presented by El Salvador, the Chamber finds that, to the extent that
it can relate various place-names to the disputed areas and to the uti possidetis juris
boundary, it cannot regard this material as sufficient evidence of any kind of effectivités
which could be taken into account in determining the boundary. Turning to the effectivités
claimed by Honduras, the Chamber does not see here sufficient evidence of Honduran
effectivités to an area clearly shown to be on the El Salvador side of the boundary line to
justify doubting that that boundary represents the uti possidetis juris line.
E. FIFTH SECTOR. The fifth disputed sector extends from "the point on the north bank of
the river Torola where it is joined by the Manzupucagua stream" to the Paso de Unire in
the Unire river.
21. NON-FACTOR: ACQUIESCENCE (INSUFFICIENCY OF EVIDENCE THEREOF). The
Chamber then examines the claim of Honduras that, whatever the 1821 position, El
Salvador had, by its conduct between 1821 and 1897, acquiesced in the river Torola as
boundary. The conduct in question was the granting by the Government of El Salvador, in
1842, of a title to an estate that both parties claim was carved out of the ejidos of Polorós
and El Salvador's reaction, or lack of reaction, to the granting of two titles over lands north
of the river Torola by Honduras in 1856 and 1879. From an examination of these events,
the Chamber does not find it possible to uphold Honduras's claim that El Salvador
acquiesced in the river Torola as the boundary in the relevant area.
F. SIXTH SECTOR. The sixth and final disputed sector of the land boundary is that
between a point on the river Goascorán known as Los Amates, and the waters of the Gulf
of Fonseca.
22. DETERMINING FACTOR: CONSISTENT POSITION OF HONDURAS (AS OPPOSED
TO NON-EXPRESSION OF EL SALVADOR’S VIEW). At its mouth in the Bay of La Unión
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the river divides into several branches, separated by islands and islets. Honduras has
indicated that its claimed boundary passes to the north-west of these islands, thus leaving
them all in Honduran territory. El Salvador, contending as it does that the boundary does
not follow the present course of the Goascorán at all, has not expressed a view on whether
a line following that course should pass north-west or south-east of the islands or between
them. The area at stake is very small and the islets involved do not seem to be inhabited or
habitable. The Chamber considers, however, that it would not complete its task of
delimiting the sixth sector were it to leave unsettled the question of the choice of one of the
present mouths of the Goascorán as the situation of the boundary line. It notes at the same
time that the material on which to found a decision is scanty. After describing the position
taken by Honduras since negotiations held in 1972, as well as its position during the work
of the Joint Frontier Commission and in its submissions, the Chamber considers that it may
uphold the relevant Honduran submissions in the terms in which they were presented.
PART THREE. Legal situation of the islands in the Gulf of Fonseca
(In the view of the Chamber the provision of the Special Agreement that it determine "la
situación jurídica insular" confers upon it jurisdiction in respect of all the islands of the Gulf.
A judicial determination, however, is only required in respect of such islands as are in
dispute between the Parties; this excludes, inter alia, the Farallones, which are recognized
by both Parties as belonging to Nicaragua.)
23. CONFLICTING VIEWS REGARDING APPLICABLE LAW. Honduras contends that by
virtue of Article 26 of the General Treaty of Peace the law applicable to the dispute is solely
the uti possidetis juris of 1821, while El Salvador maintains that the Chamber has to apply
the modern law on acquisition of territory and look at the effective exercise or display of
State sovereignty over the islands as well as historical titles.
24. THE ISLANDS HAVE NEVER BEEN TERRA NULLIUS (AND THEREFORE NOT
SUBJECT TO ACQUISITION BY OCCUPATION). The Chamber has no doubt that the
determination of sovereignty over the islands must start with the uti possidetis juris. In
1821, none of the islands of the Gulf, which had been under the sovereignty of the Spanish
Crown, were terra nullius. Sovereignty over them could therefore not be acquired by
occupation and the matter was thus one of the succession of the newly-independent
States to the islands. The Chamber will therefore consider whether the appurtenance in
1821 of each disputed island to one or the other of the various administrative units of the
Spanish colonial structure can be established, regard being had not only to legislative and
administrative texts of the colonial period, but also to "colonial effectivités". The Chamber
observes that in the case of the islands the legal and administrative texts are confused and
conflicting, and that it is possible that Spanish colonial law gave no clear and definite
answer as to the appurtenance of some areas. It therefore considers it particularly
appropriate to examine the conduct of the new States during the period immediately after
1821. Claims then made, and the reaction - or lack of reaction - to them may throw light on
the contemporary appreciation of what the situation in 1821 had been, or should be taken
to have been.
25. CONFLICTING BASES OF CLAIMS. The Chamber notes that El Salvador claims all
the islands in the Gulf (except Zacate Grande) on the basis that during the colonial period
they were within the jurisdiction of the township of San Miguel in the colonial province of
San Salvador, which was in turn within the jurisdiction of the Real Audiencia of Guatemala.
Honduras asserts that the islands formed part of the bishopric and province of Honduras,
that the Spanish Crown had attributed Meanguera and Meanguerita to that province and
that ecclesiastical jurisdiction over the islands appertained to the parish of Choluteca and
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the Guardanía of Nacaome, assigned to the bishopric of Comayagua. Honduras has also
presented an array of incidents and events by way of colonial effectivités.
26. DETERMINING FACTOR ACCORDING TO THE COURT: CONTEMPORANEOUS
ACTS. The Chamber considers it unnecessary to analyse in further detail the arguments
each Party advances to show that it acquired sovereignty over some or all of the islands by
the application of the uti possidetis juris principle, the material available being too
fragmentary and ambiguous to admit of any firm conclusion. The Chamber must therefore
consider the post-independence conduct of the Parties, as indicative of what must have
been the 1821 position. This may be supplemented by considerations independent of the
uti possidetis juris principle, in particular the possible significance of the conduct of the
Parties as constituting acquiescence. The Chamber also notes that under Article 26 of the
General Treaty of Peace, it may consider all "other evidence and arguments of a legal,
historical, human or other kind, brought before it by the Parties and admitted under
international law". In the view of the Chamber, where the relevant administrative boundary
in the colonial period was ill-defined or its position disputed, the behavior of the two States
in the years following independence may serve as a guide to where the boundary was,
either in their shared view, or in the view acted on by one and acquiesced in by the other.
27. APPLICATION OF TERRA NULLIUS. The law of acquisition of territory, invoked by El
Salvador, is in principle clearly established and buttressed by arbitral and judicial
decisions. The difficulty with its application here is that it was developed primarily to deal
with the acquisition of sovereignty over terra nullius. Both Parties however assert a title of
succession from the Spanish Crown, so that the question arises whether the exercise or
display of sovereignty by the one Party, particularly when coupled with lack of protest by
the other, could indicate the presence of an uti possidetis juris title in the former Party,
where the evidence based on titles or colonial effectivités is ambiguous. The Chamber
notes that in the Minquiers and Ecrehos case in 1953 the Court did not simply disregard
the ancient titles and decide on the basis of more recent displays of sovereignty.
28. DECISION AS TO EL TIGRE ISLAND: DETERMINING FACTOR IS HONDURAS’S
CONTINUED EFFECTIVE OCCUPATION. The Chamber deals first with El Tigre, and
reviews the historical events concerning it from 1833 onward. Noting that Honduras has
remained in effective occupation of the island since 1849, the Chamber concludes that the
conduct of the Parties in the years following the dissolution of the Federal Republic of
Central America was consistent with the assumption that El Tigre appertained to Honduras.
Given the attachment of the Central American States to the principle of uti possidetis juris,
the Chamber considers that that contemporary assumption also implied belief that
Honduras was entitled to the island by succession from Spain, or, at least, that such
succession by Honduras was not contradicted by any known colonial title. Although
Honduras has not formally requested a finding of its sovereignty over El Tigre, the
Chamber considers that it should define its legal situation by holding that sovereignty over
El Tigre belongs to Honduras.
29. DECISION AS TO MEANGUERA AND MEANGUERITA ISLANDS: DETERMINING
FACTORS ARE EL SALVADOR’S CONTINUED ADMINISTRATION AND HONDURAS’S
LACK OF (OR BELATED) PROTEST. Regarding Meanguera and Meanguerita, the
Chamber observes that throughout the argument the two islands were treated by both
Parties as constituting a single insular unity. The smallness of Meanguerita, its contiguity to
the larger island, and the fact that it is uninhabited allow its characterization as a
"dependency" of Meanguera. That Meanguerita is "capable of appropriation" is undoubted:
although without fresh water, it is not a low-tide elevation and is covered by vegetation.
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The Parties have treated it as capable of appropriation, since they claim sovereignty over
it. The Chamber notes that the initial formal manifestation of the dispute occurred in 1854,
when a circular letter made widely known El Salvador's claim to the island. Furthermore, in
1856 and 1879 El Salvador's official journal carried reports concerning administrative acts
relating to it. The Chamber has seen no record of reactions or protest by Honduras over
these publications. The Chamber observes that from the late 19th century the presence of
El Salvador on Meanguera intensified, still without objection or protest from Honduras, and
that it has received considerable documentary evidence on the administration of
Meanguera by El Salvador. Throughout the period covered by that documentation there is
no record of any protest by Honduras, with the exception of one recent event, described
later. Furthermore, El Salvador called a witness, a Salvadorian resident of the island, and
his testimony, not challenged by Honduras, shows that El Salvador has exercised State
power over Meanguera. According to the material before the Chamber, it was only in
January 1991 that the Government of Honduras made protests to the Government of El
Salvador concerning Meanguera, which were rejected by the latter Government. The
Chamber considers that the Honduran protest was made too late to affect the presumption
of acquiescence on the part of Honduras. The conduct of Honduras vis-à-vis earlier
effectivités reveals some form of tacit consent to the situation.
PART FOUR. Legal situation of the maritime spaces within and outside the Gulf of
Fonseca
(The Chamber first recalls that Nicaragua had been authorized to intervene in the
proceedings, but solely on the question of the legal régime of the waters of the Gulf of
Fonseca. Referring to complaints by the Parties that Nicaragua had dealt with matters
beyond the limits of its permitted intervention, the Chamber observes that it has taken
account of Nicaragua's arguments only where they appear relevant in its consideration of
the régime of the waters of the Gulf of Fonseca.)
30. CONFLICTING POSITIONS AS TO JURISDICTION. The Chamber then refers to the
disagreement between the Parties on whether Article 2, paragraph 2, of the Special
Agreement empowers or requires the Chamber to delimit a maritime boundary, within or
without the Gulf. El Salvador maintains that "the Chamber has no jurisdiction to effect any
delimitation of the maritime spaces", whereas Honduras seeks the delimitation of the
maritime boundary inside and outside the Gulf. The Chamber notes that these contentions
have to be seen in relation to the position of the Parties as to the legal status of the Gulf
waters: El Salvador claims that they are subject to a condominium in favour of the three
coastal States and that delimitation would therefore be inappropriate, whereas Honduras
argues that within the Gulf there is a community of interests which necessitates a judicial
delimitation.
31. TEXTUAL INTERPRETATION OF THE SPECIAL AGREEMENT. In application of the
normal rules of treaty interpretation (Article 31 of the Vienna Convention of the Law of
Treaties), the Chamber first considers what is the "ordinary meaning" of the terms of the
Special Agreement. It concludes that no indication of a common intention to obtain a
delimitation from the Chamber can be derived from the text as it stands. Turning to the
context, the Chamber observes that the Special Agreement used the wording "to delimit
the boundary line" regarding the land frontier, while confining the task of the Chamber as it
relates to the islands and maritime spaces to "determine [their] legal situation", the same
contrast of wording being observed in Article 18, paragraph 2, of the General Treaty of
Peace. Noting that Honduras itself recognizes that the island dispute is not a conflict of
delimitation but of attribution of sovereignty over a detached territory, the Chamber
observes that it is difficult to accept that the wording "to determine the legal situation", used
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for both the islands and the maritime spaces, would have a completely different meaning
regarding the islands and regarding maritime spaces.
To explain the absence of any specific reference to delimitation in the Special
Agreement, Honduras points to a provision in the Constitution of El Salvador such that its
representatives could never have intended to sign a special agreement contemplating any
delimitation of the waters of the Gulf. Honduras contends that it was for this reason that the
expression "determine the legal situation" was chosen, intended as a neutral term which
would not prejudice the position of either Party. The Chamber is unable to accept this
contention, which amounts to a recognition that the Parties were unable to agree that the
Chamber should have jurisdiction to delimit the waters of the Gulf. It concludes that the
agreement between the Parties, expressed in Article 2, paragraph 2, of the Special
Agreement, that the Chamber should determine the legal situation of the maritime spaces
did not extend to their delimitation.
Relying on the fact that the expression "determine the legal situation of the island
and the maritime spaces" is also used in Article 18 of the General Treaty of Peace of 1980,
defining the role of the Joint Frontier Commission, Honduras invokes the subsequent
practice of the Parties in the application of the Treaty and invites the Chamber to take into
account the fact that the Joint Frontier Commission examined proposals aimed at such
delimitation. The Chamber considers that, while both customary law and the Vienna
Convention on the Law of Treaties (Art. 31, para. 3 (b)) allow such practice to be taken into
account for purposes of interpretation, none of the considerations raised by Honduras can
prevail over the absence from the text of any specific reference to delimitation.
32. CHARACTER OF THE GULF OF FONSECA. Following a description of the
geographical characteristics of the Gulf, the coastline of which is divided between El
Salvador, Honduras and Nicaragua and the conditions of navigation within it, the Chamber
points out that the dimensions and proportions of the Gulf are such that it would nowadays
be a juridical bay under the provisions of the Convention on the Territorial Sea and the
Contiguous Zone (1958) and the Convention on the Law of the Sea (1982), the
consequence being that, if it were a single-State bay, a closing line might now be drawn
and the waters be thereby enclosed and "considered as internal waters". The Parties, the
intervening State, as well as commentators generally, are agreed that the Gulf is an
historic bay, and that its waters are accordingly historic waters. Such waters were defined
in the Fisheries case between the United Kingdom and Norway as "waters which are
treated as internal waters but which would not have that character were it not for the
existence of an historic title" (I.C.J. Reports 1951, p. 130). This should be read in the light
of the observation in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case, that
"general international law ... does not provide for a single 'régime' for 'historic waters' or
'historic bays', but only for a particular régime for each of the concrete, recognized cases of
'historic waters' or 'historic bays'" (I.C.J. Reports 1982, p. 74).
33. CONSIDERATIONS FOR THE CHAMBER. The Court concludes that it is clearly
necessary to investigate the particular history of the Gulf to discover the "régime" resulting
therefrom, adding that the particular historical régime established by practice must be
especially important in a pluri-State bay, a kind of bay for which there are notoriously no
agreed and codified general rules of the kind so well established for single-State bays.
Since its discovery in 1522 until 1821, the Gulf was a single-State bay the waters of which
were under the single sway of the Spanish Crown. The rights in the Gulf of the present
coastal States were thus acquired, like their land territories, by succession from Spain. The
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Chamber must therefore enquire into the legal situation of the waters of the Gulf in 1821;
for the principle of uti possidetis juris should apply to those waters as well as to the land.
34. PREVIOUS JUDGMENT: CONDOMINIO REGIME OVER THE GULF OF FONSECA.
The Chamber quotes the holding by the Central American Court38 that "... the legal status
of the Gulf of Fonseca ... is that of property belonging to the three countries that surround it
..." and that "... the high parties are agreed that the waters which form the entrance to the
Gulf intermingle ...". In addition the Judgement recognized that maritime belts of 1 marine
league from the coast were within the exclusive jurisdiction of the coastal State and
therefore should "be excepted from the community of interests or ownership". After quoting
the paragraphs of the Judgement setting forth the Court's general conclusions, the
Chamber observes that the essence of its decision on the legal status of the waters of the
Gulf was that these historic waters were then subject to a "co-ownership" (condominio) of
the three coastal States.
35. CONFLICTING VIEWS REGARDING CONDOMINIO RULING. The Chamber notes
that El Salvador approves strongly of the condominium concept, and holds that this status
not only prevails but also cannot be changed without its consent. Honduras opposes the
condominium idea and accordingly calls in question the correctness of this part of the 1917
Judgement, whilst also relying on the fact that it was not a party to the case and so cannot
be bound by the decision. Nicaragua is, and has consistently been, opposed to the
condominium solution. Honduras also argues against the condominium on the ground that
condominia can only be established by agreement. It is doubtless right in claiming that
condominia, in the sense of arrangements for the common government of territory, have
ordinarily been created by treaty. But what the Central American Court had in mind was a
joint sovereignty arising as a juridical consequence of the 1821 succession. State
succession is one of the ways in which territorial sovereignty passes from one State to
another and there seems no reason in principle why a succession should not create a joint
sovereignty where a single and undivided maritime area passes to two or more new
States. The Chamber thus sees the 1917 Judgement as using the term condominium to
describe what it regards as the joint inheritance by three States of waters which had
belonged to a single State and in which there were no maritime administrative boundaries
in 1821 or indeed at the end of the Federal Republic of Central America in 1839. Thus the
ratio decidendi of the Judgement appears to be that there was, at the time of
independence, no delimitation between the three countries; and the waters of the Gulf
have remained undivided and in a state of community which entails a condominium or co-
ownership. Further the existence of a community was evidenced by continued and
peaceful use of the waters by all the riparian States after independence. As regards the
status of the 1917 Judgement, the Chamber observes that although the Court's jurisdiction
was contested by Nicaragua, which also protested the Judgement, it is nevertheless a
valid decision of a competent court. Honduras, which, on learning of the proceedings
before the Court, formally protested to El Salvador that it did not recognize the status of co-
ownership in the waters of the Gulf, has, in the present case, relied on the principle that a
decision in a judgment or an arbitral award can only be opposed to the parties. Nicaragua,
a party to the 1917 case, is an intervener but not a Party in the present one. It therefore
does not appear that the Chamber is required to pronounce upon the question whether the
1917 Judgement is res judicata between the States parties to it, only one of which is a
Party to the present proceedings, a question which is not helpful in a case raising a
question of the joint ownership of three coastal States. The Chamber must make up its
38
The matter of the legal status of the Gulf of Fonseca has been decided by the Central American Court of
Justice in a case between Nicaragua and El Salvador (1917).
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own mind on the status of the waters of the Gulf, taking such account of the 1917 decision
as it appears to the Chamber to merit.
36. CHAMBER UPHOLDS THE CONDOMINIO RULING. The Chamber finds that the Gulf
waters, other than the 3-mile maritime belt, are historic waters and subject to a joint
sovereignty of the three coastal States, basing itself on the following reasons. As to the
historic character of the Gulf waters, there are the consistent claims of the three coastal
States and the absence of protest from other States. As to the character of rights in the
waters of the Gulf, these were waters of a single State bay during the greater part of their
known history and were not divided or apportioned between the different administrative
units which became the three coastal States. There was no attempt to divide and delimit
the waters according to the principle of uti possidetis juris, this being a fundamental
difference between the land areas and the maritime area. The delimitation effected
between Nicaragua and Honduras in 1900, which was substantially an application of the
method of equidistance, gives no clue that it was in any way inspired by the application of
the uti possidetis juris. A joint succession of the three States to the maritime area therefore
seems to be the logical outcome of the principle of uti possidetis juris itself. As to the legal
status of the waters inside the Gulf closing line other than the 3-mile maritime belts, the
Chamber considers whether or not they are "internal waters"; noting that rights of passage
through them must be available to vessels of third States seeking access to a port in any of
the three coastal States, it observes that it might be sensible to regard those waters, in so
far as they are the subject of the condominium or co-ownership, as sui generis. The
essential juridical status of these waters is however the same as that of internal waters,
since they are claimed à titre de souverain and are not territorial sea.
37. EFFECT OF THE JUDGMENT ON INTERVENOR-NICARAGUA. Turning to the
question of the effect of its Judgment for the intervening State, the Chamber observes that
the terms in which intervention was granted were that Nicaragua would not become party
to the proceedings. Accordingly the binding force of the Judgment for the Parties, as
contemplated by Article 59 of the Statute of the Court, does not extend to Nicaragua as
intervener. In its Application for permission to intervene, Nicaragua had stated that it
"intends to subject itself to the binding effect of the decision", but from the written
statement submitted by Nicaragua it is clear that Nicaragua does not now regard itself as
obligated to treat the Judgment as binding upon it. With regard to the effect, if any, of the
statement in Nicaragua's Application, the Chamber, notes that its Judgment of 13
September 1990 emphasized the need, if an intervener is to become a party, for the
consent of the existing parties to the case; it observes that if an intervener becomes a
party, and is thus bound by the judgment, it becomes entitled equally to assert the binding
force of the judgment against the other parties. Noting that neither Party has given any
indication of consent to Nicaragua's being recognized to have any status enabling it to rely
on the Judgment, the Chamber concludes that in the circumstances of the case the
Judgment is not res judicata for Nicaragua.
PART FIVE. Operative portion of the decision
For the reasons set out in the present Judgment, in particular paragraphs 68 to 103
thereof,
THE CHAMBER, Unanimously, Decides that the boundary line between the Republic of El
Salvador and the Republic of Honduras in the first sector of their common frontier not
described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October
1980, is as follows: that the boundary line between the Republic of El Salvador and the
117
Republic of Honduras in the first sector of their common frontier not described in Article 16
of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows:
From the international tripoint known as El Trifinio on the summit of the Cerro Montecristo
(point A on Map No. I [Map: First Sector - Disputed Area - 54kb] annexed ; co-ordinates:
14º25'10" N, 89º21'20" W), the boundary runs in a generally easterly direction along the
watershed between the rivers Frío or Sesecapa and Del Rosario as far as the junction of
this watershed with the watershed of the basin of the quebrada de Pomola (point B on Map
No. I annexed; co-ordinates: 14º25'05" N, 89º20'41" W); thereafter in a north-easterly
direction along the watershed of the basin of the quebrada de Pomola until the junction of
this watershed with the watershed between the quebrada de Cipresales and the quebrada
del Cedrón, Peña Dorada and Pomola proper (point C on Map No. I annexed; co-
ordinates: 14º25'09" N, 89º20'30" W); from that point, along the last-named watershed as
far as the intersection of the centre-lines of the quebradas of Cipresales and Pomola (point
D on Map No. I annexed; co-ordinates: 14º24'42" N, 89º18'19" W); thereafter, downstream
along the centre-line of the quebrada de Pomola, until the point on that centre-line which is
closest to the boundary marker of Pomola at El Talquezalar; and from that point in a
straight line as far as that marker (point E on Map No. I annexed; co-ordinates: 14º24'51"
N, 89º17'54" W); from there in a straight line in a south-easterly direction to the boundary
marker of the Cerro Piedra Menuda (point F on Map No. I annexed; co-ordinates:
14º24'02" N, 89º16'40" W), and thence in a straight line to the boundary marker of the
Cerro Zapotal (point G on Map No. I annexed; co-ordinates: 14º23'26" N, 89º14'43" W); for
the purposes of illustration, the line is indicated on Map No. I annexed.
For the reasons set out in the present Judgment, in particular paragraphs 104 to 127
thereof,
THE CHAMBER, Unanimously, Decides that the boundary line between the Republic of El
Salvador and the Republic of Honduras in the second sector of their common frontier not
described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October
1980, is as follows: that the boundary line between the Republic of El Salvador and the
Republic of Honduras in the second sector of their common frontier not described in Article
16 of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows:
From the Peña de Cayaguanca (Point A on Map No. I I [Map: Second Sector - Disputed
Area - 36kb] annexed; co-ordinates: 14º21'54" N, 89º10'11" W), the boundary runs in a
straight line somewhat south of east to the Loma de Los Encinos (point B on Map No. II
annexed; co-ordinates: 14º21'08" N, 89º08'54" W), and from there in a straight line to the
hill known as El Burro or Piedra Rajada (point C on Map No. II annexed; co-ordinates:
14º22'46" N, 89º07'32" W); from there the boundary runs in a straight line to the head of
the quebrada Copantillo, and follows the middle of the quebrada Copantillo downstream to
its confluence with the river Sumpul (point D on Map No. II annexed; co-ordinates:
14º24'12" N, 89º06'07" W), and then follows the middle of the river Sumpul downstream to
its confluence with the quebrada Chiquita or Oscura (point E on Map No. II annexed; co-
ordinates: 14º20'25" N, 89º04'57" W); for the purposes of illustration, the line is indicated
on Map No. II annexed.
For the reasons set out in the present Judgment, in particular paragraphs 128 to 185
thereof,
THE CHAMBER, Unanimously,Decides that the boundary line between the Republic of El
Salvador and the Republic of Honduras in the third sector of their common frontier not
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described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October
1980, is as follows: that the boundary line between the Republic of El Salvador and the
Republic of Honduras in the third sector of their common frontier not described in Article 16
of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows:
From the Pacacio boundary marker (point A on Map No. III [Map: Third Sector - Disputed
Area - 62 kb] annexed; co-ordinates: 14º06'28" N, 88º49'18" W) along the río Pacacio
upstream to a point (point B on Map No. III annexed; co-ordinates: 14º06'38" N, 88º48'47"
W), west of the Cerro Tecolate or Los Tecolates; from there up the quebrada to the crest of
the Cerro Tecolate or Los Tecolates (point C on Map No. III annexed; co-ordinates:
14º06'33" N, 88º48'18" W), and along the watershed of this hill as far as a ridge
approximately 1 kilometre to the north-east (point D on Map No. III annexed; co-ordinates:
14º06'48" N, 88º47'52" W); from there in an easterly direction to the neighbouring hill
above the source of the Torrente La Puerta (point E on Map No. III annexed; co-ordinates:
14º06'48" N, 88º47'31" W) and down that stream to where it meets the river Gualsinga
(point F on Map No. III annexed; co-ordinates: 14º06'19" N, 88º47'01" W); from there the
boundary runs along the middle of the river Gualsinga downstream to its confluence with
the river Sazalapa (point G on Map No. III annexed; co-ordinates: 14º06'12" N, 88º46'58"
W), and thence upstream along the middle of the river Sazalapa to the confluence of the
quebrada Llano Negro with that river (point H on Map No. III annexed; co-ordinates:
14º07'11" N, 88º44'21" W); from there south-eastwards to the top of the hill (point I on Map
No. III annexed; co-ordinates: 14º07'01" N, 88º44'07" W), and thence south-eastwards to
the crest of the hill marked on the map as a spot height of 1,017 metres (point J on Map
No. III annexed; co-ordinates: 14º06'45" N, 88º43'45" W); from there the boundary,
inclining still more to the south, runs through the triangulation point known as La Cañada
(point K on Map No. III annexed; co-ordinates: 14º06'00" N, 88º43'52" W) to the ridge
joining the hills indicated on the map as Cerro El Caracol and Cerro El Sapo (through point
L on Map No. III annexed; co-ordinates: 14º05'23" N, 88º43'47" W) and from there to the
feature marked on the map as the Portillo El Chupa Miel (point M on Map No. III annexed;
co-ordinates: 14º04'35" N, 88º44'10" W); from there, following the ridge, to the Cerro El
Cajete (point N on Map No. III annexed; co-ordinates: 14º03'55" N, 88º44'20" W), and
thence to the point where the present-day road from Arcatao to Nombre de Jesús passes
between the Cerro El Ocotillo and the Cerro Lagunetas (point O on Map No. III annexed;
co-ordinates: 14º03'18" N, 88º44'16" W); from there south-eastwards to the crest of a hill
marked on the map as a spot height of 848 metres (point P on Map No. III annexed; co-
ordinates: 14º02'58" N, 88º43'56" W); from there slightly south of eastwards to a quebrada
and down the bed of the quebrada to its junction with the Gualcuquín river (point Q on Map
No. III annexed; co-ordinates: 14º02'42" N, 88º42'34" W); the boundary then follows the
middle of the Gualcuquín river downstream to the Poza del Cajon (point R on Map No. III
annexed; co-ordinates: 14º01'28" N, 88º41'10" W); for purposes of illustration, this line is
shown on Map No. III annexed.
For the reasons set out in the present Judgment, in particular paragraphs 186 to 267
thereof,
THE CHAMBER, By four votes to one, Decides that the boundary line between the
Republic of El Salvador and the Republic of Honduras in the fourth sector of their common
frontier not described in Article 16 of the General Treaty of Peace signed by the Parties on
30 October 1980, is as follows: that the boundary line between the Republic of El Salvador
and the Republic of Honduras in the fourth sector of their common frontier not described in
Article 16 of the General Treaty of Peace signed by the Parties on 30 October 1980, is as
follows:
118
From the source of the Orilla stream (Point A on Map No. IV [Map: Fourth Sector -
Disputed Area - 61kb] annexed; co-ordinates: 13º53'46" N, 88º20'36" W) the boundary
runs through the pass of El Jobo to the source of the Cueva Hedionda stream (point B on
Map No. IV; co-ordinates: 13º53'39" N, 88º20'20" W), and thence down the middle of that
stream to its confluence with the river Las Cañas (Point C on Map No. IV annexed; co-
ordinates: 13º53'19" N, 88º19'00" W), and thence following the middle of the river
upstream as far as a point (point D on Map No. IV annexed; co-ordinates: 13º56'14" N,
88º15'33" W) near the settlement of Las Piletas; from there eastwards over a col indicated
as point E on Map No. IV annexed (co-ordinates: 13º56'19" N, 88º14'12" W), to a hill
indicated as point F on Map No. IV annexed (co-ordinates: 13º56'11" N, 88º13'40" W), and
then north-eastwards to a point on the river Negro or Pichigual (marked G on Map No. IV
annexed; co-ordinates: 13º57'12" N, 88º13'11" W); downstream along the middle of the
river Negro or Pichigual to its confluence with the river Negro-Quiagara (point H on Map
No. IV; co-ordinates: 13º59'37" N, 88º14'18" W); then upstream along the middle of the
river Negro-Quiagara as far as the Las Pilas boundary marker (point I on Map No. IV; co-
ordinates: 14º00'02" N, 88º06'29" W), and from there in a straight line to the Malpaso de
Similatón (point J on Map No. IV; co-ordinates: 13º59'28" N, 88º04'22" W); for the
purposes of illustration, the line is indicated on Map No. IV annexed.
For the reasons set out in the present Judgment, in particular paragraphs 268 to 305
thereof,
THE CHAMBER, Unanimously, Decides that the boundary line between the Republic of El
Salvador and the Republic of Honduras in the fifth sector of their common frontier not
described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October
1980, is as follows: that the boundary line between the Republic of El Salvador and the
Republic of Honduras in the fifth sector of their common frontier not described in Article 16
of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows:
From the confluence with the river Torola of the stream identified in the General Treaty of
Peace as the quebrada de Mansupucagua (point A on Map No. V [Map: Fifth Sector -
Disputed Area - 50kb] annexed; co-ordinates: 13º53'59" N, 87º54'30" W) the boundary
runs upstream along the middle of the river Torola as far as its confluence with a stream
known as the quebrada del Arenal or quebrada de Aceituno (point B on Map No. V
annexed; co-ordinates: 13º53'50" N, 87º50'40" W); thence up the course of that stream as
far as a point at or near its source (point C on Map No. V annexed; co-ordinates: 13º54'30"
N, 87º50'20" W), and thence in a straight line somewhat north of east to a hill some 1,100
metres high (point D on Map No. V annexed; co-ordinates: 13º55'03" N, 87º49'50" W);
thence in a straight line to a hill near the river Unire (point E on Map No. V annexed; co-
ordinates: 13º55'16" N, 87º48'20" W), and thence to the nearest point on the river Unire;
downstream along the middle of that river to the point known as the Paso de Unire (point F
on Map No. V annexed; co-ordinates: 13º52'07" N, 87º46'01" W); for the purposes of
illustration, the line is indicated on Map No. V annexed.
For the reasons set out in the present Judgment, in particular paragraphs 306 to 322
thereof,
THE CHAMBER, Unanimously, Decides that the boundary line between the Republic of El
Salvador and the Republic of Honduras in the sixth sector of their common frontier not
described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October
1980, is as follows: that the boundary line between the Republic of El Salvador and the
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Republic of Honduras in the sixth sector of their common frontier not described in Article 16
of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows:
From the point on the river Goascorán known as Los Amates (point A on Map No. VI [Map:
Sixth Sector - Disputed Area - 51kb] annexed; co-ordinates: 13º26'28" N, 87º43'25" W), the
boundary follows the course of the river downstream, in the middle of the bed, to the point
where it emerges in the waters of the Bahia La Unión, Gulf of Fonseca, passing to the
north-west of the Islas Ramaditas, the co-ordinates of the endpoint in the bay being
13º24'26" N, 87º49'05" W; for the purposes of illustration, the line is indicated on Map No.
VI annexed.
For the reasons set out in the present Judgment, in particular paragraphs 323 to 368
thereof,
THE CHAMBER, 1. By four votes to one, Decides that the Parties, by requesting the
Chamber, in Article 2, paragraph 2, of the Special Agreement of 24 May 1986, "to
determine the legal situation of the islands ...", have conferred upon the Chamber
jurisdiction to determine, as between the Parties, the legal situation of all the islands of the
Gulf of Fonseca; but that such jurisdiction should only be exercised in respect of those
islands which have been shown to be the subject of a dispute; that the Parties, by
requesting the Chamber, in Article 2, paragraph 2, of the Special Agreement of 24 May
1986, "to determine the legal situation of the islands ...", have conferred upon the Chamber
jurisdiction to determine, as between the Parties, the legal situation of all the islands of the
Gulf of Fonseca; but that such jurisdiction should only be exercised in respect of those
islands which have been shown to be the subject of a dispute;
2. Decides that the islands shown to be in dispute between the Parties are:
(i) by four votes to one, El Tigre;
(ii) unanimously, Meanguera and Meanguerita.
3. Unanimously, Decides that the island of El Tigre is part of the sovereign territory of the
Republic of Honduras. that the island of El Tigre is part of the sovereign territory of the
Republic of Honduras.
4. Unanimously, Decides that the island of Meanguera is part of the sovereign territory of
the Republic of El Salvador. that the island of Meanguera is part of the sovereign territory
of the Republic of El Salvador.
5. By four votes to one, Decides that the island of Meanguerita is part of the sovereign
territory of the Republic of El Salvador; that the island of Meanguerita is part of the
sovereign territory of the Republic of El Salvador;
For the reasons set out in the present Judgment, in particular paragraphs 369 to 420
thereof, THE CHAMBER,
1. By four votes to one, Decides that the legal situation of the waters of the Gulf of
Fonseca is as follows: the Gulf of Fonseca is an historic bay the waters whereof, having
previously to 1821 been under the single control of Spain, and from 1821 to 1839 of the
Federal Republic of Central America, were thereafter succeeded to and held in sovereignty
by the Republic of El Salvador, the Republic of Honduras, and the Republic of Nicaragua,
119
jointly, and continue to be so held, as defined in the present Judgment, but excluding a
belt, as at present established, extending 3 miles (1 marine league) from the littoral of each
of the three States, such belt being under the exclusive sovereignty of the coastal State,
and subject to the delimitation between Honduras and Nicaragua effected in June 1900,
and to the existing rights of innocent passage through the 3-mile belt and the waters held
in sovereignty jointly; the waters at the central portion of the closing line of the Gulf, that is
to say, between a point on that line 3 miles (1 marine league) from Punta Amapala and a
point on that line 3 miles (1 marine league) from Punta Cosigüina, are subject to the joint
entitlement of all three States of the Gulf unless and until a delimitation of the relevant
maritime area be effected; that the legal situation of the waters of the Gulf of Fonseca is as
follows: the Gulf of Fonseca is an historic bay the waters whereof, having previously to
1821 been under the single control of Spain, and from 1821 to 1839 of the Federal
Republic of Central America, were thereafter succeeded to and held in sovereignty by the
Republic of El Salvador, the Republic of Honduras, and the Republic of Nicaragua, jointly,
and continue to be so held, as defined in the present Judgment, but excluding a belt, as at
present established, extending 3 miles (1 marine league) from the littoral of each of the
three States, such belt being under the exclusive sovereignty of the coastal State, and
subject to the delimitation between Honduras and Nicaragua effected in June 1900, and to
the existing rights of innocent passage through the 3-mile belt and the waters held in
sovereignty jointly; the waters at the central portion of the closing line of the Gulf, that is to
say, between a point on that line 3 miles (1 marine league) from Punta Amapala and a
point on that line 3 miles (1 marine league) from Punta Cosigüina, are subject to the joint
entitlement of all three States of the Gulf unless and until a delimitation of the relevant
maritime area be effected;
2. By four votes to one, Decides that the Parties, by requesting the Chamber, in Article 2,
paragraph 2, of the Special Agreement of 24 May 1986, "to determine the legal situation of
the ... maritime spaces", have not conferred upon the Chamber jurisdiction to effect any
delimitation of those maritime spaces, whether within or outside the Gulf; that the Parties,
by requesting the Chamber, in Article 2, paragraph 2, of the Special Agreement of 24 May
1986, "to determine the legal situation of the ... maritime spaces", have not conferred upon
the Chamber jurisdiction to effect any delimitation of those maritime spaces, whether within
or outside the Gulf;
3. By four votes to one, Decides that the legal situation of the waters outside the Gulf is
that, the Gulf of Fonseca being an historic bay with three coastal States, the closing line of
the Gulf constitutes the baseline of the territorial sea; the territorial sea, continental shelf
and exclusive economic zone of El Salvador and those of Nicaragua off the coasts of those
two States are also to be measured outwards from a section of the closing line extending 3
miles (1 marine league) along that line from Punta Amapala (in El Salvador) and 3 miles (1
marine league) from Punta Cosigüina (in Nicaragua) respectively; but entitlement to
territorial sea, continental shelf and exclusive economic zone seaward of the central
portion of the closing line appertains to the three States of the Gulf, El Salvador, Honduras
and Nicaragua; and that any delimitation of the relevant maritime areas is to be effected by
agreement on the basis of international law. that the legal situation of the waters outside
the Gulf is that, the Gulf of Fonseca being an historic bay with three coastal States, the
closing line of the Gulf constitutes the baseline of the territorial sea; the territorial sea,
continental shelf and exclusive economic zone of El Salvador and those of Nicaragua off
the coasts of those two States are also to be measured outwards from a section of the
closing line extending 3 miles (1 marine league) along that line from Punta Amapala (in El
Salvador) and 3 miles (1 marine league) from Punta Cosigüina (in Nicaragua) respectively;
but entitlement to territorial sea, continental shelf and exclusive economic zone seaward of
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the central portion of the closing line appertains to the three States of the Gulf, El Salvador,
Honduras and Nicaragua; and that any delimitation of the relevant maritime areas is to be
effected by agreement on the basis of international law.
PART SIX.
Separate opinions
Declaration of Judge Oda
On the subject of Nicaragua's intervention, Judge Oda, in an appended declaration,
disputes the Chamber's findings as to its Judgment's lack of binding effect upon the
intervening State. Though not a party to the case, Nicaragua will in his view certainly be
bound by the Judgment in so far as it relates to the legal situation of the maritime spaces
of the Gulf, and he refers in that connection to his views on the general subject of the
effects of Judgments on intervening States as expressed in two previous cases.
Judge Oda states that, by his declaration, he does not, however, intend to lend his accord
to the Chamber's findings on the maritime spaces dispute, the subject of his dissenting
opinion.
Separate opinion of Judge ad hoc Valticos
The scope of the uti possidetis juris principle and the effectivités
The application of the uti possidetis juris principle has given rise to difficulties inasmuch as
the rights involved could date back several centuries and it has not been easy to determine
those that were relevant in determining the boundaries in question. According to the
opinion summarized, in view of the conditions in which and the reasons for which they
were granted, the issue of títulos ejidales could not be disregarded for purposes of
delimiting the boundaries.
Furthermore, the role given to the effectivités has been insufficient.
In any event, the care the Chamber has taken to resolve the difficulties it has met is worthy
of praise.
Tepangüisir sector. While in various respects the author of the opinion concurs with the
views of the Chamber, he believes that the boundary drawn to the west of Talquezalar
should have run in a north-westerly direction, towards the Cerro Oscuro, before once again
turning downward (in a south-westerly direction towards the tripoint of Montecristo).. While
in various respects the author of the opinion concurs with the views of the Chamber, he
believes that the boundary drawn to the west of Talquezalar should have run in a north-
westerly direction, towards the Cerro Oscuro, before once again turning downward (in a
south-westerly direction towards the tripoint of Montecristo).
Sazalapa-Arcatao sector. The Chamber based itself on various questionable titles, as a
result of which it cut back El Salvador's claims excessively, particularly with regard to two
protrusions to the north-west and the north-east of the area in question, as well as in the
central part, at the level of the so-called Gualcimaca title.. The Chamber based itself on
various questionable titles, as a result of which it cut back El Salvador's claims excessively,
particularly with regard to two protrusions to the north-west and the north-east of the area
in question, as well as in the central part, at the level of the so-called Gualcimaca title.
120
Naguaterique sector. The author of the opinion disagrees with the boundary line drawn by
the Chamber along the river Negro-Quiagara. He sets forth his reasons for preferring the
Cerro La Ardilla line.. The author of the opinion disagrees with the boundary line drawn by
the Chamber along the river Negro-Quiagara. He sets forth his reasons for preferring the
Cerro La Ardilla line.
Dolores sector. The 1760 title concerning Poloros should take precedence in this regard
and the boundary should run to the north of the river Torola. The difficulty is due to the
distances and the area mentioned in the title. The Chamber has therefore decided to grant
El Salvador, in this area, a quadrilateral considerably smaller than what that State claimed.
But this solution has involved a questionable change in the names of the summits and
rivers concerned.. The 1760 title concerning Poloros should take precedence in this regard
and the boundary should run to the north of the river Torola. The difficulty is due to the
distances and the area mentioned in the title. The Chamber has therefore decided to grant
El Salvador, in this area, a quadrilateral considerably smaller than what that State claimed.
But this solution has involved a questionable change in the names of the summits and
rivers concerned.
The maritime spaces. Despite the serious objections to which they are open, the author of
the opinion feels that the arguments endorsed by the majority of the Chamber are
acceptable, regard being had to the special character of the Gulf of Fonseca as a historic
bay with three coastal States.. Despite the serious objections to which they are open, the
author of the opinion feels that the arguments endorsed by the majority of the Chamber are
acceptable, regard being had to the special character of the Gulf of Fonseca as a historic
bay with three coastal States.
With regard to the various other points (concerning the land, the islands and the waters
within the Gulf), the author of the opinion concurs fully with the views of the Chamber.
Separate Opinion of Judge ad hoc Torres Bernárdez
In his Separate Opinion, Judge Torres Bernárdez gives the reasons for his overall
concurrence with the Judgment of the Chamber and for his having voted for all its
operative part, with the exception of the decisions concerning the attribution of sovereignty
over the island of Meanguerita and the interpretation of Article 2, paragraph 2, of the
Special Agreement. Following an introduction underlining the unity of the case as well as
its fundamental, although not exclusive, State succession character, the considerations,
observations and reservations contained in the Opinion are presented under the main
headings of the three major aspects of the case, namely the "land boundary dispute", the
"island dispute", and the "maritime dispute".
Judge Torres Bernárdez stresses the importance of the uti possidetis juris principle as the
fundamental norm applicable to the case, examining in this connection the contents, object
and purpose of the uti possidetis juris as customarily understood by the Spanish-American
Republics, and the relationship between that principle and the effectivités invoked in the
case, as well as the question of the proof of the uti possidetis juris principle, the evidentiary
value of the títulos ejidales submitted by the Parties included. Judge Torres Bernárdez
approves the Chamber's general concentration on applying the uti possidetis juris principle
in the light of the fundamental State succession character of the case and the fact that both
Parties are Spanish-American Republics. However, Article 5 of the Special Agreement
does not exclude the application, wherever pertinent, of other rules of international law also
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binding the Parties. The principle of consent, including any consent implied by the conduct
of the Parties subsequent to the critical date of 1821, is for Judge Torres Bernárdez one of
those rules of international law which also applied in the case in various ways (element of
confirmation or interpretation of the 1821 uti possidetis juris; establishment of effectivités
alleged; determination of situations of "acquiescence" or "recognition").
Regarding the land boundary dispute, Judge Torres Bernárdez considers the overall
results of the application by the Chamber of the law described to the six sectors in dispute
to be as a whole satisfactory, having regard to the evidence submitted by the Parties;
subject to a few specific reservations, the frontier line defined for each of those sectors by
the Judgment are de jure lines by virtue either of the 1821 uti possidetis juris or of the
consent derived from conduct of the Parties, or of both. His specific reservations concern
the line between Talquezalar and Piedra Menuda in the first sector (the question of the
Tepangüisir boundary marker and corresponding indentation), the line between Las
Lagunetas or Portillo de Las Lagunetas and Poza del Cajón in the third sector (the
Gualcuquín or El Amatillo river line) and the Las Cañas river line of the frontier in the fourth
sector, particularly the segment of that line running from the Torola lands down to the
Mojón of Champate. Judge Torres Bernárdez voted, however, in favour of the frontier line
defined by the Judgment for the six sectors, out of the conviction that those lines are "as a
whole" de jure lines as requested by the Parties in Article 5 of the Special Agreement.
So far as the island dispute is concerned, Judge Torres Bernárdez upholds the submission
of the Republic of Honduras that Meanguera and Meanguerita were the only islands in
dispute as between the Parties at the current proceedings. He dissociates himself,
therefore, from the finding of the majority that El Tigre was also an island in dispute, as well
as from the reasoning of the Judgment as to the definition of the islands in dispute: both
the finding and the reasoning in question are contrary to the stability of international
relations and do not correspond to basic tenets of international judicial law. A non-existing
dispute objection formally submitted by a party has an autonomy of its own, should be
determined as a preliminary matter on the basis of the objective grounds provided by the
case file as a whole and should not be disposed of by subsuming it into the different
matters of the existence of jurisdiction and its exercise. Judge Torres Bernárdez stresses
his view that, as a consequence of the approach followed by the majority, the Judgment
concludes by stating the obvious, namely that the island of El Tigre is part of the sovereign
territory of the Republic of Honduras. Honduras had not requested the Chamber to
pronounce any such "confirmation" of its sovereignty of El Tigre, a sovereignty which was
not subject to adjudication, because it had been decided over 170 years ago by the 1821
uti possidetis juris as well as by the recognition of the Republic of El Salvador and third
Powers over 140 years ago.
As to the islands which he considers to be in dispute, namely Meanguera and
Meanguerita, Judge Torres Bernárdez concurs with the other members of the Chamber in
the finding that the island of Meanguera is today part of the sovereign territory of the
Republic of El Salvador. The path whereby Judge Torres Bernárdez reaches this
conclusion differs, however, from the one followed in the Judgment. In his opinion, the
island of Meanguera, as well as the island of Meanguerita, belonged in 1821 to the
Republic of Honduras by virtue of the uti possidetis juris principle. He considers, therefore,
that the inconclusive finding of the Chamber in this respect is not supported by the colonial
titles and effectivités documented by the Parties. He finds, however, that the 1821 uti
possidetis juris rights of Honduras in Meanguera were at a certain moment in time (well
after the dispute arose in 1854) displaced or eroded in favour of El Salvador as a result of
the State effectivités established by the latter in and with respect to the island and of the
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related past conduct of the Republic of Honduras at the relevant time vis-à-vis such
effectivités and their gradual development. On the other hand, similar State effectivités on
the part of El Salvador and related past conduct of Honduras being absent in the case of
Meanguerita, Judge Torres Bernárdez concludes that the 1821 uti possidetis juris must
needs prevail in the case of that island. This means that today, as in 1821, sovereignty
over Meanguerita belongs to the Republic of Honduras. Judge Torres Bernárdez regrets
that the Judgment failed to treat the question of sovereignty over Meanguerita on its own
merits, and, having regard to the circumstances of the case, he rejects the applicability to
Meanguerita of the concept of "proximity" as well as the thesis of its constituting an
"appendage" of Meanguera.
Judge Torres Bernárdez endorses in toto the reasoning and conclusions of the Judgment
concerning the substantive aspects of the "maritime dispute" with respect to both the
"particular régime" of the Gulf of Fonseca and its waters and the entitlement of the
Republic of Honduras, as well as the Republic of El Salvador and the Republic of
Nicaragua, to a territorial sea, continental shelf and exclusive economic zone in the open
waters of the Pacific Ocean seaward of the central portion of the closing line of the Gulf of
Fonseca as that line is defined in the Judgment, delimitation of those maritime spaces
outside the Gulf of Fonseca having to be effected by agreement on the basis of
international law. Thus the rights of the Republic of Honduras as a State participating on a
basis of perfect equality with the other two States of the Gulf in the "particular régime" of
the Gulf of Fonseca, as well as the status of the Republic of Honduras as a Pacific coastal
State, have been fully recognized by the Judgment, which dismisses some arguments
advanced at the current proceedings aimed at occluding Honduras at the back of the Gulf.
As to the "particular régime" of the Gulf of Fonseca, Judge Torres Bernárdez underlines, in
his Opinion, that the Gulf of Fonseca is a "historic bay" to which the Republic of Honduras,
the Republic of El Salvador and the Republic of Nicaragua succeeded in 1821 on the
occasion of their separation from Spain and their constitution as independent sovereign
nations. The "historic" status of the waters of the Gulf of Fonseca was there when the
"successoral event" took place. This means, in the opinion of Judge Torres Bernárdez, that
the sovereign rights of each and every one of the three Republics in the waters of the Gulf
cannot be subject to question by any foreign Power. But at the moment when the
succession occurred the predecessor State had not - administratively speaking - divided
the waters of the historic bay of Fonseca between the territorial jurisdictions of the colonial
provinces, or units thereof, which in 1821 formed respectively one or another of the three
States of the Gulf. Thus Judge Torres Bernárdez concludes that the Judgment is quite right
in declaring that the historic waters of the Gulf which had not been divided by Honduras, El
Salvador and Nicaragua subsequent to 1821, continued to be held in sovereignty by the
three republics jointly, pending their delimitation.
In this connection, Judge Torres Bernárdez emphasizes that the "joint sovereignty" status
of the undivided "historic waters" of the Gulf of Fonseca has, therefore, a "successorial
origin" as stated in the Judgment. It is a "joint sovereignty", pending delimitation, which
results from the operation of the principles and rules of international law governing
succession to territory, the "historic waters" of the Gulf of Fonseca entailing, like any other
historic waters, "territorial rights". Judge Torres Bernárdez also stresses that the present
Judgment limits itself to declaring the legal situation of the waters of the Gulf of Fonseca
resulting from the above and subsequent related developments, i.e., to declaring the
existing "particular régime" of the Gulf of Fonseca as a "historic bay" in terms of
contemporary international law, but without adding elements of any kind to that "particular
régime" as it exists at present. The Judgment is not therefore a piece of judicial legislation
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and should not be read that way at all. Nor is it a Judgment on the interpretation and/or
application of the 1917 Judgement of the Central American Court of Justice. Conversely,
that 1917 Judgement is not an element for the interpretation or application of the present
Judgment, which stands on its own feet.
By declaring the "particular régime" of the historic bay of Fonseca in terms of the
international law in force, and not of the international law in force in 1917 or earlier, the
Chamber, according to Judge Torres Bernárdez, has clarified a number of legal issues
such as the "internal" character of the waters within the Gulf, the meaning of the "one-
marine-league" belt of exclusive jurisdiction over them, the "baseline" character of the
"closing-line" of the Gulf, and the identification of those States which participate as equal
partners in the "joint sovereignty" over the undivided waters of the Gulf. The individual
elements now composing the "particular régime" of the Gulf of Fonseca declared by the
Judgment vary, however, in nature. Some result from the succession, others from
subsequent agreement or concurrent conduct (implied consent) of the three nations of the
Gulf as independent States. In this respect Judge Torres Bernárdez refers to the "maritime
belt" of exclusive sovereignty or jurisdiction - considered by the Judgment as forming part
of the "particular régime" of Fonseca - as one of those elements of the "particular régime"
which possess a "consensual" origin, pointing out that the scope of the States' present
consent to the "maritime belt" had not been pleaded before the Chamber. It follows, in his
view, that any problem which might arise concerning entitlement to, delimitation of,
location, etc., of "maritime belts" are matters to be solved by agreement among the States
of the Gulf.
As to the competence of the Chamber to effect "delimitations" - a question relating to the
interpretation of paragraph 2 of Article 2 of the Special Agreement on which the Parties
were greatly at variance -, Judge Torres Bernárdez considers that the issue has become
"moot" because of the Judgment's recognition of rights and entitlements of the Republic of
Nicaragua within and outside the Gulf. As a result of this supervenient "mootness", Judge
Torres Bernárdez, invoking the jurisprudence of the Court, considers that the Judgment
should have refrained from making any judicial pronouncement on the said interpretative
dispute. As to the substance of this dispute, Judge Torres Bernárdez concludes that the
Chamber was competent to effect "delimitations" under Article 2, paragraph 2, of the
Special Agreement, dissociating himself from the finding to the contrary of the majority of
the Chamber.
Lastly, Judge Torres Bernárdez expresses his agreement with the tenor of the Declaration
appended by Vice-President Oda. In the view of Judge Torres Bernárdez, a non-party
State intervening under Article 62 of the Statute - as the Republic of Nicaragua in the
current proceedings - is under certain obligations of a kind analogous mutatis mutandis to
that provided for in Article 63 of the Statute, but the Judgment as such is not res judicata
for Nicaragua.
Dissenting opinion of Judge Oda
In his dissenting opinion Judge ODA states that, while he is in agreement with the
Chamber's findings on the disputes concerning the land frontier and the islands, his
understanding of both the contemporary and the traditional law of the sea is greatly at
variance with the views underlying the Judgment's pronouncements in regard to the
maritime spaces. He considers that the concept of a "pluri-State" bay has no existence as
a legal institution and that consequently the Gulf of Fonseca is not a "bay" in the legal
sense. Neither was the Chamber right to assume that it belonged to the category of a
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"historic bay". Instead of its waters being held in joint sovereignty outside a three-mile
coastal belt, as the Chamber holds, they consist of the sum of the territorial seas of each
State.
In the contemporary law of the sea, Judge Oda explains, waters adjacent to coasts have to
be either "internal waters" - the case of (legal) "bays" or of "historic bays" counting as such
- or territorial waters: there is no third possibility (excepting the new concept of archipelagic
waters, not applicable in the instant case). But the Chamber has obscured the issue by
employing vocabulary extraneous to the past and present law of the sea. Its assessment of
the legal status of the maritime spaces thus finds no warrant in that law.
Judge Oda supports his position with a detailed analysis of the development since 1894 of
the definition and status of a "bay" in international law, from the early work of the Institut de
droit international and International Law Association, to the most recent United Nations
Conference on the Law of the Sea, passing through arbitral case-law and the opinions of
authoritative writers and rapporteurs.
Judge Oda lists five reasons why full weight should not have been given to the conclusions
of the Central American Court of Justice in 1917 to the effect that the waters of the Gulf
were subject to a condominium, created by joint inheritance of an area which had
constituted a unity previous to the 1821 succession, except for a three-mile coastal belt
under the exclusive sovereignty of the respective riparian States, and he points out the
exiguity of the area remaining after deduction of that belt. Indeed, the Central American
Court appears to have acted under the influence of a sense prevalent among the three
riparian States that the Gulf should not remain open to free use by any other State than
themselves, and to have authorized a sui generis régime based on a local illusion as to the
historical background of law and fact. Yet there is no ground for believing that, prior to 1821
or 1839 either Spain or the Federal Republic of Central America had any control in the Gulf
beyond the traditional cannon-range from the shore. Both the 1917 and the present
Judgment depend on the assumption that the Gulf waters prior to those dates not only
formed an undivided bay but lay also as an entirety within a single jurisdiction. But at those
times there did not exist any concept of a bay as a geographical entity possessing a
distinct legal status. Moreover, even if in 1821 or 1839 all the waters of the Gulf did
possess unitary status, the natural result of the partition of the coasts among three new
territorial sovereigns would have been the inheritance and control by each one separately
of its own offshore waters, a solution actually reflected in the acknowledgement of the
littoral belt. Judge Oda considers that by endorsing that belt and treating it as "internal
waters" the Chamber's Judgment has confused the law of the sea. It similarly relies on a
concept now discarded as superfluous when it describes the maritime spaces in the Gulf
as "historic waters"; this description had been used on occasion to justify the status either
of internal waters or of territorial sea, though not both at once, but the concept had never
existed as an independent institution in the law of the sea.
As to the true legal status of the waters of the Gulf of Fonseca, Judge Oda find that there is
no evidence to suggest that, as from the time when the concept of territorial sea emerged
in the last century, the claims of the three riparian States to territorial seas in the Gulf
differed from their claims off their other coasts, though El Salvador and Honduras
eventually legislated for the exercise of police power beyond the three-mile territorial sea
and Nicaragua reportedly took the same position, which received general acceptance.
Neither did their attitudes in 1917 feature a common confidence in rejecting the application
to all the Gulf waters of the then prevalent "open seas" doctrine, even if they all preferred
that an area covered entirely by their territorial seas and police zones should not remain
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open to free use by other States - a preference behind their common agreement in the
instant proceedings to denominate the Gulf (erroneously) as a "historic bay".

The boundary line drawn by the Honduran/Nicaraguan mixed commission in 1900

demonstrated that at any time the waters of the Gulf could be so divided, though as
between El Salvador and Honduras the presence of scattered islands would have
complicated the task. Whatever the status of such divided waters may earlier have been,
the Gulf of Fonseca must now be deemed entirely covered by the respective territorial
seas of the three riparian States, given the universally agreed 12-mile limit and the claims
of Latin-American States that contributed to its acceptance. No maritime space exists in
the Gulf more than 12 miles from any of its coasts.

Beyond establishing the legal status of the waters, the Chamber was not in a position to
effect any delimitation. Nevertheless,

Article 15 of the 1982 UN Convention on the Law of the Sea, providing for delimitation,
failing agreement, by the equidistance method unless historic title or other special
circumstances dictate otherwise, should not be ignored. Judge Oda points out that
application of the equidistance method thus remains a rule in the delimitation of the
territorial sea, even if that of achieving "an equitable solution" prevails in the delimitation of
the economic zone and continental shelf of neighbouring States.

Against that background, Judge Oda considers the right of Honduras within and without
the Gulf. Within it, Honduras is in his view not entitled to any claim beyond the meeting-
point of the three respective territorial seas. Its title is thus locked within the Gulf. In its
decision as to the legal status of the waters, the Chamber seems to have been concerned
to ensure the innocent passage of Honduran vessels, but such passage through territorial
seas is protected for any State by international law. In any case, the mutual understanding
displayed by the three riparian States should enable them to co-operate, in keeping with
the provisions on an "enclosed or semi-enclosed sea" in the 1982 Convention.

As for the waters outside the Gulf, Judge Oda cannot accept the Chamber's finding that,
since a condominium prevails up to the closing-line, Honduras is entitled to a continental
shelf or exclusive economic zone in the Pacific. That conclusion flies in the face of a
geographical reality such as there can never be any question of completely refashioning.
Whether Honduras, which possesses a long Atlantic coastline, can be included in the
category of "geographically disadvantaged States" as defined by the 1982 Convention is
open to question. This does not, however, rule out the possibility of its being granted the
right to fish in the exclusive economic zones of the other two States.

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