Page |1
PHILIPPINES v. CHINA
Background
The dispute has been affected by the fact that, after Japan
renounced all claims to the Spratly Islands and other conquered
islands and territories in the Treaty of San Francisco and Treaty
of Peace with the Republic of China (Taiwan) signed on 8
September 1951, it did not indicate successor states[12] since
China was not invited to the treaty talks held in San Francisco.
In reaction to that, on 15 August, the Chinese government
issued the Declaration on the Draft Peace Treaty with Japan by
the US and the UK and on the San Francisco Conference by the
then Foreign Minister Zhou Enlai, reitirating China's sovereignty
over the archipelagos in the South China Sea, including the
Spratly Islands, and protesting about the absence of any
provisions in the draft on who shall take over the South China
Sea islands following Japan's renouncement of all rights, title
and claim to them. It reiterated that "the Chinese government of
the day had taken over those islands" and that the PRC's rightful
sovereignty "shall remain intact".[13]
On 28 April 1952, the United States presided over the signing of
the Treaty of Peace between Japan and the Republic of China.
Article 2 of the document provided that "It is recognized that
under Article 2 of the Treaty of Peace which Japan signed at the
city of San Francisco on 8 September 1951 (hereinafter referred
to as the San Francisco Treaty), Japan has renounced all right,
title, and claim to Taiwan (Formosa) and Penghu (the
Pescadores) as well as the Spratly Islands and the Paracel
Islands."[13]
The Philippines bases its claim on its geographical proximity to
the Spratly Islands.[14]
In May 1956, the dispute escalated after Filipino national Tomas
Cloma and his followers settled on the islands and declared the
territory as "Freedomland", now known as Kalayaan for himself
and later requested to make the territory a protectorate of the
Philippines.[15] Tomas Cloma even stole China (ROC)'s
national flag from the Taiping Island. In July 1956, he apologized
officially for his act and he surrendered the flag he stole to
China's embassy in Manila. On 2 October 1956, he wrote a letter
and ensured he would not make further training voyages or
landings in the territorial waters of China (ROC).[16]
Philippine troops were sent to three of the islands in 1968,[15]
when the Philippines were under President Ferdinand Marcos.
In the 1970s, some countries began to invade and occupy
islands and reefs in the Spratlys.[17][18] The Spratlys were
placed under the jurisdiction of the province of Palawan in
1978.[15]
The People's Republic of China (PRC) claims it is entitled to the
Paracel and Spratly Islands because they were seen as integral
parts of the Ming dynasty.[14] China and Taiwan have these
same territorial claims.[14] The Republic of China (Taiwan) took
control of the largest island - Taiping Island - in the group since
1946.[15]
Vietnam states that the islands have belonged to it since the
17th century, using historical documents of ownership as
evidence.[14] Hanoi began to occupy the westernmost islands
during this period.[14]
In the early 1970s, Malaysia joined the dispute by claiming the
islands nearest to it.[19]
Brunei also extended its exclusive economic zone, claiming
Louisa Reef.
Optional exceptions to applicability of compulsory
procedure
Article 298 of Section 3 of Part XV of the Convention provides
optional exceptions to applicability of compulsory procedures
provided in Section 2. China made declaration in accordance
with the UN Convention on the Law of the Sea in 2006 not to
accept any of the procedures provided for in section 2 of Part
XV of the Convention. Many countries including the United
Kingdom, Australia, Italy, France, Canada, and Spain made
similar declarations to reject any of the procedures provided for
in sections 2 of Part XV of the Convention with respect to the
different categories of disputes.
Philippine stance
The Philippines contended that the "nine-dotted line" claim by
China is invalid because it violates the UNCLOS agreements
about exclusive economic zones and territorial seas.[23] It says
that because most of the features in the South China Sea, such
as most of the Spratly Islands, cannot sustain life, they cannot
be given their own continental shelf as defined in the convention.
Chinese stance
China refused to participate in the arbitration, stating that
several treaties with the Philippines stipulate that bilateral
negotiations be used to resolve border disputes. It also accuses
the Philippines of violating the voluntary Declaration on the
Conduct of Parties in the South China Sea, made in 2002
between ASEAN and China, which also stipulated bilateral
negotiations as the means of resolving border and other
disputes.[25][26][27] China issued a position paper in December
2014 arguing the dispute was not subject to arbitration because
it was ultimately a matter of sovereignty, not exploitation
rights.[28] Its refusal will not prevent the PCA tribunal from
proceeding with the case.[29] After the award ruling, the PRC
issued a statement rejecting it as 'null' and having decided not
to abide by the arbitral tribunal's decision, said it will "ignore the
ruling"
Claimants of the South China Sea
Taiwanese stance
The arbitral tribunal has not invited Taiwan to join the arbitration,
and no opinion of Taiwan has been sought.[31] The Philippines
claimed that Taiping Island is a rock. In response,[32] President
Ma Ying-jeou of Taiwan rejected the Philippines' claim as
"patently false".[33] Taiwan invited the Philippines and five
arbitrators to visit Taiping Island; the Philippines rejected the
invitation, and there was no response from the PCA tribunal.[34]
Vietnamese stance
On 11 December 2014, Vietnam filed a statement to the tribunal
which put forward three points: 1) Vietnam supports the filing of
this case by the Philippines, 2) it rejects China's "nine-dashed
line", and 3) it asks the PCA tribunal to take note of Vietnam's
claims on certain islands such as the Paracels.[35]

Other stances
Brunei sent its own UNCLOS claim through a preliminary
submission prior to the arbitration.[36] In May 2009, Malaysia
and Vietnam, as well as Vietnam alone, filed claims to the
International Tribunal for the Law of the Sea with regard to the
islands [clarification needed]. This was in relation to extending
their claimed continental shelves and Exclusive Economic
Zones. The People's Republic of China rejected the claims since
those violate the "nine-dotted line". The Philippines challenged
the Malaysian claim stating that the claims overlap with the
North Borneo dispute.[37]
Indonesia made a comment on China's claim by saying that the
features are rocks and cannot sustain life, effectively calling the
Chinese claim invalid. The Philippines echoed Indonesia's
claims, further stating that the islands belong to them through
geographic proximity.
Arbitration
Hearings
On 7 July 2015, case hearings began with the Philippines asking
the tribunal to invalidate China's claims. The hearings were also
attended by observers from Indonesia, Japan, Malaysia,
Thailand and Vietnam.[6] The case has been compared to
Nicaragua v. United States due to similarities of the parties
involved such as that a developing country is challenging a
permanent member of the United Nations Security Council in an
arbitral tribunal.[39]
On 29 October 2015, the PCA tribunal ruled that it had the power
to hear the case. It agreed to take up seven of the 15
submissions made by Manila, in particular whether Scarborough
Shoal and low-tide areas like Mischief Reef can be considered
islands. It set aside seven more pointed claims mainly accusing
Beijing of acting unlawfully to be considered at the next hearing
on the case's merits. It also told Manila to narrow down the
scope of its final request that the judges order that "China shall
desist from further unlawful claims and activities."[7]
The arbitral tribunal scheduled the hearing on merits of the case
from 24 to 30 November 2015.
Award on Jurisdiction and Admissibility
On 29 October 2015, the PCA published the award by the
tribunal on Jurisdiction and Admissibility[41] for the case. The
tribunal found that it has jurisdiction to consider the following
seven Philippines Submissions. The number is the Philippines
Submissions number. The tribunal reserved consideration of its
jurisdiction to rule on No. 1, 2, 5, 8, 9, 12, and 14.
No.3 Philippines position that Scarborough Shoal is a
rock under Article 121(3).
No.4 Philippines position that Mischief Reef, Second
Thomas Shoal, and Subi Reef are low tide elevations
that do not generate entitlement to maritime zones.
No.6 Whether Gaven Reef and McKennan Reef
(including Hughes Reef) are low-tide elevations that
do not generate any maritime entitlements of their
own".
No.7 Whether Johnson Reef, Cuarteron Reef, and
Fiery Cross Reef do or do not generate an entitlement
to an exclusive economic zone or continental shelf.
No.10 "premised on [the] fact that China has unlawfully
prevented Philippine fishermen from carrying out
Page |2
traditional fishing activities within the territorial sea of
Scarborough Shoal."
No.11 Chinas failure to protect and preserve the
marine environment at these two shoals [Scarborough
Shoal and Second Thomas Shoal].
No.13 Philippines protest against Chinas purported
law enforcement activities as violating the Convention
on the International Regulations for the Prevention of
Collisions at Sea and also violating UNCLOS.
The tribunal stated in the award that there are disputes in all of
the 15 submissions from the Philippines,[41] but for submissions
such as No.3, No.4, No.6 and No.7, no known claims from the
Philippines prior to the initiation of arbitration exist, and China
was not aware or opposed such claims prior to the initiation of
arbitration. Chinese Society of International Law (CSIL) states
that the tribunal was trying to hide its incapability to prove that
maritime entitlements of the nine features constitute the
disputes.[4]
For Submission No.8 to No.14, the tribunal held the view that
lawfulness of China's activities in the South China Sea is not
related to sovereignty. CSIL has asserted that disagreements
concern territorial sovereignty, and constitute no dispute with
respect to the claims advanced by the Philippines.
Award
On 12 July 2016, the Permanent Court of Arbitration published
an arbitration award by the tribunal which it states is final and
binding as set out in the Convention.[30][42] Conclusions
expressed in the award included the following:
Regarding the "Nine-Dash Line" and China's claim in the
maritime areas of the South China Sea[43]
The [UNCLOS] Convention defines the scope of
maritime entitlements in the South China Sea, which
may not extend beyond the limits imposed therein.[44]
Chinas claims to historic rights, or other sovereign
rights or jurisdiction, with respect to the maritime areas
of the South China Sea encompassed by the relevant
part of the nine-dash line are contrary to the
Convention and without lawful effect to the extent that
they exceed the geographic and substantive limits of
Chinas maritime entitlements under the Convention.
The Convention superseded any historic rights or other
sovereign rights or jurisdiction in excess of the limits
imposed therein.[45]
Regarding the status of features as above/below water at high
tide (Submissions no. 4 and 6)
High-tide features: (a) Scarborough Shoal, (b)
Cuarteron Reef, (c) Fiery Cross Reef, (d) Johnson
Reef, (e) McKennan Reef, and (f) Gaven Reef
(North).[46]
Low-tide elevations: (a) Hughes Reef, (b) Gaven Reef
(South), (c) Subi Reef, (d) Mischief Reef, (e) Second
Thomas Shoal.[47]
Hughes Reef lies within 12 nautical miles of the high-
tide features on McKennan Reef and Sin Cowe Island,
Gaven Reef (South) lies within 12 nautical miles of the
high-tide features at Gaven Reef (North) and Namyit
Island, and that Subi Reef lies within 12 nautical miles
of the high-tide feature of Sandy Cay on the reefs to
the west of Thitu.[48]
Regarding the status of features as rocks/islands (Submissions
no. 3, 5, and 7)

Scarborough Shoal contains, within the meaning of
Article 121(1) of the Convention, naturally formed
areas of land, surrounded by water, which are above
water at high tide. However, under Article 121(3) of the
Convention, the high-tide features at Scarborough
Shoal are rocks that cannot sustain human habitation
or economic life of their own and accordingly shall have
no exclusive economic zone or continental shelf.[49]
Johnson Reef, Cuarteron Reef, and Fiery Cross Reef
contain, within the meaning of Article 121(1) of the
Convention, naturally formed areas of land,
surrounded by water, which are above water at high
tide. However, for purposes of Article 121(3) of the
Convention, the high-tide features at Johnson Reef,
Cuarteron Reef, and Fiery Cross Reef are rocks that
cannot sustain human habitation or economic life of
their own and accordingly shall have no exclusive
economic zone or continental shelf.[50]
The high-tide features at Gaven Reef (North) and
McKennan Reef are rocks that cannot sustain human
habitation or economic life of their own and accordingly
shall have no exclusive economic zone or continental
shelf.[51]
Mischief Reef and Second Thomas Shoal are both low-
tide elevations that generate no maritime zones of their
own [and] that none of the high-tide features in the
Spratly Islands are capable of sustaining human
habitation or an economic life of their own within the
meaning of those terms in Article 121(3) of the
Convention. All of the high-tide features in the Spratly
Islands are therefore legally rocks for purposes of
Article 121(3) and do not generate entitlements to an
exclusive economic zone or continental shelf. There is,
accordingly, no possible entitlement by China to any
maritime zone in the area of either Mischief Reef or
Second Thomas Shoal and no jurisdictional obstacle to
the tribunals consideration of the Philippines
Submission No. 5.[52]
Both Mischief Reef and Second Thomas Shoal are
located within 200 nautical miles of the Philippines
coast on the island of Palawan and are located in an
area that is not overlapped by the entitlements
generated by any maritime feature claimed by China. It
follows, therefore, that, as between the Philippines and
China, Mischief Reef and Second Thomas Shoal form
part of the exclusive economic zone and continental
shelf of the Philippines.[53]
Regarding alleged interference with the Philippines' sovereign
rights in its EEZ and continental shelf (Submission no. 8)
China has, through the operation of its marine
surveillance vessels with respect to M/V Veritas
Voyager on 1 to 2 March 2011 breached Article 77 of
the Convention with respect to the Philippines
sovereign rights over the non-living resources of its
continental shelf in the area of Reed Bank [and] that
China has, by promulgating its 2012 moratorium on
fishing in the South China Sea, without exception for
areas of the South China Sea falling within the
exclusive economic zone of the Philippines and without
limiting the moratorium to Chinese flagged vessels,
breached Article 56 of the Convention with respect to
the Philippines sovereign rights over the living
resources of its exclusive economic zone.[54]
Page |3
Regarding alleged failure to prevent Chinese nationals from
exploiting the Philippines' living resources (Submission no. 9)
China has, through the operation of its marine
surveillance vessels in tolerating and failing to exercise
due diligence to prevent fishing by Chinese flagged
vessels at Mischief Reef and Second Thomas Shoal in
May 2013, failed to exhibit due regard for the
Philippines sovereign rights with respect to fisheries in
its exclusive economic zone. Accordingly, China has
breached its obligations under Article 58(3) of the
Convention.[55]
Regarding China's actions in respect of traditional fishing at
Scarborough Shoal (Submission no. 10)
China has, through the operation of its official vessels
at Scarborough Shoal from May 2012 onwards,
unlawfully prevented Filipino fishermen from engaging
in traditional fishing at Scarborough Shoal.[56]
Regarding alleged failure to protect and preserve )the marine
environment (Submissions no. 11 and 12(B))
China has, through its toleration and protection of, and
failure to prevent Chinese fishing vessels engaging in
harmful harvesting activities of endangered species at
Scarborough Shoal, Second Thomas Shoal and other
features in the Spratly Islands, breached Articles 192
and 194(5) of the Convention.[57]
China has, through its island-building activities at
Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North),
Johnson Reef, Hughes Reef, Subi Reef and Mischief
Reef, breached Articles 192, 194(1), 194(5), 197, 123,
and 206 of the Convention.[58]
Regarding occupation and construction activities on Mischief
Reef (Submission no. 12)
China has, through its construction of installations and
artificial islands at Mischief Reef without the
authorisation of the Philippines, breached Articles 60
and 80 of the Convention with respect to the
Philippines sovereign rights in its exclusive economic
zone and continental shelf [and], as a low-tide
elevation, Mischief Reef is not capable of
appropriation.[59]
Regarding operation of law enforcement vessels in a dangerous
manner (Submission no. 13)
China has, by virtue of the conduct of Chinese law
enforcement vessels in the vicinity of Scarborough
Shoal, created serious risk of collision and danger to
Philippine vessels and personnel. The Tribunal finds
China to have violated Rules 2, 6, 7, 8, 15, and 16 of
the COLREGS and, as a consequence, to be in breach
of Article 94 of the Convention.[60]
Regarding aggravation or extension of the dispute between the
parties (Submission No. 14)
China has in the course of these proceedings
aggravated and extended the disputes between the
Parties through its dredging, artificial island-building,
and construction activities [in several particulars
itemized in the award].[61]
Regarding the future conduct of the parties (Submission no. 15)
Both Parties are obliged to comply with the
Convention, including its provisions regarding the
resolution of disputes, and to respect the rights and
freedoms of other States under the Convention.
Neither Party contests this.
---------------------XXX--------------------

MILITARY & PARAMILITARY ACTIVITIES IN & AGAINST
NICARAGUA (NICARAGUA V. UNITED STATES)
Citation. I.C.J. 1984 I.C.J. 39
Brief Fact Summary. Nicaragua (P) brought a suit against the
United States (D) on the ground that the United States (D) was
responsible for illegal military and paramilitary activities in and
against Nicaragua. The jurisdiction of the International Court of
Justice to entertain the case as well as the admissibility of
Nicaraguas (P) application to the I.C.J. was challenged by the
United States (D).
Synopsis of Rule of Law. Nicaragua (P) brought a suit against
the United States (D) on the ground that the United States (D)
was responsible for illegal military and paramilitary activities in
and against Nicaragua. The jurisdiction of the International
Court of Justice to entertain the case as well as the admissibility
of Nicaraguas (P) application to the I.C.J. was challenged by
the United States (D).
Facts. The United States (D) challenged the jurisdiction of the
I.C.J when it was held responsible for illegal military and
paramilitary activities in and against Nicaragua (P) in the suit the
plaintiff brought against the defendant in 1984. Though a
declaration accepting the mandatory jurisdiction of the Court
was deposited by the United States (D) in a 1946, it tried to
justify the declaration in a 1984 notification by referring to the
1946 declaration and stating in part that the declaration shall
not apply to disputes with any Central American State.
Apart from maintaining the ground that the I.C.J lacked
jurisdiction, the States (D) also argued that Nicaragua (P) failed
to deposit a similar declaration to the Court. On the other hand,
Nicaragua (P) based its argument on its reliance on the 1946
declaration made by the United states (D) due to the fact that it
was a state accepting the same obligation as the United States
(D) when it filed charges in the I.C.J. against the United States
(D).
Also, the plaintiff intent to submit to the compulsory jurisdiction
of the I.C.J. was pointed out by the valid declaration it made in
1929 with the I.C.Js predecessor, which was the Permanent
Court of International Justice, even though Nicaragua had failed
to deposit it with that court. The admissibility of Nicaraguas (P)
application to the I.C.J. was also challenged by the United
States (D).
Issue. (1) Is the jurisdiction to entertain a dispute between two
states, if they both accept the Courts jurisdiction, within the
jurisdiction of the International Court of Justice?
(2) Where no grounds exist to exclude the application of a state,
is the application of such a state to the International Court of
Justice admissible?
Held. (1) Yes. The jurisdiction of the Court to entertain a dispute
between two states if each of the States accepted the Courts
jurisdiction is within the jurisdiction of the International Court of
Justice. Even though Nicaragua (P) declaration of 1929 was not
deposited with the Permanent Court, because of the potential
effect it had that it would last for many years, it was valid.
Thus, it maintained its effect when Nicaragua became a party to
the Statute of the I.C.J because the declaration was made
unconditionally and was valid for an unlimited period. The
intention of the current drafters of the current Statute was to
maintain the greatest possible continuity between it and the
Page |4
Permanent Court. Thus, when Nicaragua (P) accepted the
Statute, this would have been deemed that the plaintiff had given
its consent to the transfer of its declaration to the I.C.J.
(2) Yes. When no grounds exist to exclude the application of a
state, the application of such a state to the International Court of
Justice is admissible. The five grounds upon which the United
States (D) challenged the admissibility of Nicaraguas (P)
application were that the plaintiff failed because there is no
indispensable parties rule when it could not bring forth
necessary parties, Nicaraguas (P) request of the Court to
consider the possibility of a threat to peace which is the
exclusive province of the Security Council, failed due to the fact
that I.C.J. can exercise jurisdiction which is concurrent with that
of the Security Council, that the I.C.J. is unable to deal with
situations involving ongoing armed conflict and that there is
nothing compelling the I.C.J. to decline to consider one aspect
of a dispute just because the dispute has other aspects due to
the fact that the case is incompatible with the Contadora process
to which Nicaragua (P) is a party.
Discussion. Although the questions of jurisdiction and
admissibility are primarily based on the principle that the I.C.J.
has only as much power as that agreed to by the parties, these
can be quite complicated. The 1946 declaration of the United
States and the 1929 declaration of Nicaragua was the main
focus of the case on declaration and each of these declarations
pointed out the respective parties intent as it related to the
I.C.Js jurisdiction.
---------------------XXX-----------------------
THE ANGLO-NORWEGIAN FISHERIES CASE
Since 1911 British trawlers had been seized and condemned for
violating measures taken by the Norwegian government
specifying the limits within which fishing was prohibited to
foreigners. In 1935, a decree was adopted establishing the lines
of delimitation of the Norwegian fisheries zone.
On 24th September 1949 the government of the United
Kingdom filed the registry of the international court of justice an
application instituting proceedings against Norway. The subject
of the proceeding was the validity, under international law, of the
lines of delimitation of the Norwegian fisheries zone as set forth
in a Decree of 12th July 1935.
The application referred to the declaration by which the united
Kingdom and Norway had accepted the compulsory jurisdiction
of the International Court of Justice in accordance with article 36
(2) of its statute.
The parties involved in this case were Norway and the United
Kingdom, of Great Britain and Northern Ireland. The
implementation of the Royal Norwegian Decree of the 1935 was
met with resistance from the United Kingdom. The decree
covers the drawing of straight lines, called baselines 4 miles
deep into the sea. This 4 miles area is reserved fishing exclusive
for Norwegian nationals. Under article 36(2) both UK and
Norway were willing to accept the jurisdiction of the ICJ on this
case and with no appeal. The issues that constitute the case
were submitted to the court and the arguments presented by
both countries. The issues claims the court to: declare the
principles of international law applicable in defining the
baselines by reference to which Norwegian government was
entitled to delimit a fisheries zone and exclusively reserved to its
nationals; and to define the said base lines in the light of the

arguments of the parties in order to avoid further legal
difference; and secondly 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
fisheries zone, which in accordance with ICJ's decision, the
Norwegian government may be entitled to reserve for its
nationals.
The United Kingdom argued that;
Norway could only draw straight lines across bays
The length of lines drawn on the formations of the
Skaergaard fjord must not exceed 10 nautical miles(
the 10 Mile rule)
That certain lines did not follow the general direction of
the coast or did not follow it sufficiently , or they did not
respect certain connection of sea and land separating
them
That the Norwegian system of delimitation was
unknown to the British and lack the notoriety to provide
the basis of historic title enforcement upon opposable
to by the United Kingdom
The Kingdom of Norway argued;
That the base lines had to be drawn in such a way as
to respect the general direction of the coast and in a
reasonable manner.
The case was submitted to the International Court of Justice by
the government of the United Kingdom. The government of
United Kingdom wants the ICJ to declare the validity of the base
lines under international law and receive compensation for
damages caused by Norwegian authorities as to the seizures of
British Fishing vessels.
The judgment of the court first examines the applicability of the
principles put forward by the government of the UK, then the
Norwegian system, and finally the conformity of that system with
international law. The first principle put forward by the UK is that
the baselines must be low water mark, this indeed is the criterion
generally adopted my most states and but differ as to its
application. (Johnson 154). The court considered the methods
of drawing the lines but, the court rejected the trace Parallele
which consists of drawing the outer limits of the belt following
the coast and all its sinuosity. The court also rejected the
courbe tangent (arcs of a circle) and it is not obligatory under
international law to use these methods of drawing the lines. The
court also paid particular attention to the geographical aspect of
the case. The geographical realities and historic control of the
Norwegian coast inevitably contributed to the final decision by
the ICJ. The coast of Norway is too indented and is an exception
under international law from the 3 miles territorial waters rule.
The fjords, Sunds along the coastline which have the
characteristic of a bay or legal straits should be considered
Norwegian for historical reasons that the territorial sea should
be measured from the line of low water mark. So it was agreed
on the outset of both parties and the court that Norway had the
right to claim a 4 mile belt of territorial sea. The court concluded
that it was the outer line of the Skaergaard that must be taken
into account in admitting the belt of the Norwegian territorial
waters. (Johnson 154- 158). There is one consideration not to
Page |5
be overlooked, the scope of which extends beyond geographical
factors. That of certain economic interests peculiar to a region,
the reality and importance of which are clearly evidenced by a
long usage (Johnson 160)
The law relied upon mainly international Law of the sea; how far
a state can modify its territorial waters and its control over it,
exclusively reserving fishing for its nationals. In this case, rules
that are practiced for instance how long a baseline should be.
Only a 10 mile long straight line is allowed and this has been the
practice by most states however it is different in the case of
Norway because of Norway's geographic indentation, islands
and islets.
The international customary law has been a law of reference in
the court arguments. Judge Read from Canada asserts that
Customary international law does not recognize the rule
according to which belts of territorial waters of coastal states is
to be measured. More so public international law has been relied
upon in this case. It regulates relation between states; the United
Kingdom and Norway.
Maritime Law
Coastline Rule
The judgment was rendered in favor of Norway on the 18th
December 1951. By 10 votes to 2 the court held that the method
employed in the delimitation of the fisheries zone by the Royal
Norwegian decree of the 12th July 1935 is not contrary to
international law. By 8 votes to 4 votes the court also held that
the base lines fixed by this decree in application are not contrary
to international law. However there are separate opinions and
dissenting opinions from the judges in the court.
Judge Hackworth declared that he concurred with the operative
part of the judgment because he considered that the Norwegian
government had proved the existence of historic title of the
disputed areas of water.
Judge Alvarez from Chile relied on the evolving principles of the
law of nations applicable to the law of the sea.
States have the right to modify the extent of the of their
territorial sea
Any state directly concerned may object to another
state's decision as to the extent of its territorial sea
International status of bays and straits must be
determined by the coastal state directly concerned with
due regard to the general interest and
Historic rights and concept of prescription in
international law.
Judge Hsu Mo from china opinions diverge from the court's with
regards to conformity with principles of international law to the
straight lines drawn by the Decree of 1935. He allowed
possibility in certain circumstances, for instance, belt measured
at low tide, Norway's geographic and historic conditions. But
drawing the straight lines as of the 1935 degree is a moving
away from the practice of the general rule. (Johnson 171)
The dissenting opinions from judge McNair rested upon few
rules of law of international waters. Though there are

exceptions, in case of bays, the normal procedure to calculate
territorial waters in from the land, a line which follows the
coastline. Judge McNair rejected the argument upon which
Norway based its decree including:
Protecting Norway's economic and other social
interests
The UK should not be precluded from objecting the
Norwegian system embodied in the Decree because
previous acquiescence in the system and
An historic title allowing the state to acquire waters that
would otherwise have the status of deep sea. Judge
McNair concluded that the 1935 decree is not
compatible with international law.(Johnson173)
Furthermore, Judge Read from Canada was unable to concur
with parts of the judgment. Read rejected justification by Norway
for enlarging her maritime domain and seizing and condemning
foreign ships (Johnson 173);
Sovereignty of the coastal state is not the basis for
Norway to claim 4 mile belt from straight base lines
Customary international law does not recognize the
rule according to which belts of territorial waters of
coastal states is to be measured.
Norwegian system cannot be compatible with
international law.
-----------------------------XXX------------------------
NORTH SEA CONTINENTAL SHELF CASES (FEDERAL
REPUBLIC OF GERMANY v. DENMARK; FEDERAL
REPUBLIC OF GERMANY v. NETHERLANDS)
Brief Fact Summary. The view that customary rules of
international law determined the boundaries of areas located on
the continental shelf between their countries and the Federal
Republic of Germany (D) was contended by Denmark (P) and
the Netherlands (P).
Synopsis of Rule of Law. For a custom to become binding as
international law, it must amount to a settled practice and must
be rendered obligatory by a rule requiring it.
Facts. That the boundaries between their respective areas of
the continental shelf in the North Sea and the area claimed by
the Federal Republic of Germany (D), should be determined by
the application of the principle of equidistance as set forth in
Article 6 of the Geneva Convention of 1958 on the Continental
Shelf, which by January 1, 1969 had been ratified or acceded to
by 39 states but to which Germany was not a party, was the
basis of Denmarks (D) and the Netherlands (P) contention.
Because the use of the delimitation method was not merely a
conventional obligation, but a rule that was part of the corpus of
general international law and like other rules of general or
customary international law, which was binding automatically on
Germany (D), independent of any specific assent, direct or
indirect, given by Germany (D), Denmark (P) and the
Netherlands (P) contended that Germany (D) was bound to
accept the delimitation on an equidistance basis.
Page |6
Issue. Must delimitation be the object of an equitable agreement
between the states involved?
Held. Yes. Delimitation must be the object of an equitable
agreement between the states involved. As stipulated in Article
6 of the Geneva Convention, equidistance principle is not part
of customary international law. Article 6 makes the obligation to
use the equidistance method a secondary one which comes into
play only when agreements between the parties are absent.
Although the principle of equidistance is not given a fundamental
norm-creating character by Article 6, which is necessary to the
formation of a general rule of law.
In this case, after taking into consideration all relevant
circumstances, the delimitation here is to be excused by
equitable agreement.
Dissent. (Lachs, J.) not only the states who are parties to the
Convention on the Continental Shelf have accepted the
principles and rules enshrined in the Convention including the
equidistance rule, but by other states who that have
subsequently followed it in agreements, or in their legislation, or
have acquiesced in it when faced with legislative acts of other
affecting them. This can be seen as evidence of a practice
widespread enough to satisfy the criteria for a general rule of
law.
Discussion. The concept of opinion juris analyzed by the
dissent is in consonance with the position taken by some legal
scholars who maintain that opinio juris may be presumed from
uniformities of practice regarding matters viewed normally as
involving legal rights and obligations. A contrary position
maintains that the practice of states must be accompanied by or
consist of statements that something is law before it can become
law.
-----------------------------XXX------------------------
LIBYA v. MALTA
Issue: What principles and rules of international law are
applicable to the delimitation of the area of continental shelf
which appertains to the Malta and the area of continental shelf
which appertains to the Libya, and how in practice such
principles and rules can be applied by the two Parties in this
particular case in order that they may without difficulty delimit
such area by an agreement as provided in Article III: Following
the final decision of the International Court of Justice the
Government of the Republic of Malta and the Government of the
Libyan Arab Republic shall enter into negotiations for
determining the area of their respective continental shelves and
for concluding an agreement for that purpose in accordance with
the decision of the Court.
Malta: Lets draw a specific line (a median* line). The natural
prolongation of the land territory of a State into the sea remains
the fundamental basis of legal title to continental shelf areas.
Delimitation should also be influenced by the relative economic
position of the two States in question***. Derived from the
sovereign equality of States, the maritime extensions generated
by the sovereignty of each State must be of equal juridical value,
whatever the length of the coasts****.
Libya: Courts task does not extend to the actual drawing of the
delimitation line. The continental shelf rights are no longer
defined in the light of physical criteria; they are controlled by the
concept of distance from the coast. The natural prolongation, in

the physical sense, of the land territory into the sea is still a
primary basis of title to continental shelf. Here, there are two
distinct continental shelves divided by what is called the "rift
zone**", and it is "within, and following the general direction of,
the Rift Zone" that the delimitation should be carried out. The
landmass*** provides the legal justification of entitlement to
continental shelf rights, such that a State with a greater
landmass would have a more intense natural prolongation
COURT RULING
(1) Malta is a party to the 1958 Geneva Convention on
the Continental Shelf, while Libya is not; both Parties have
signed the 1982 United Nations Convention on the Law of the
Sea, but that Convention has not yet entered into force.
However, the Parties are in accord in considering that some of
its provisions constitute the expression of customary law, while
holding different views as to which provisions have this status.
(2) The institution of the exclusive economic zone, with
its rule on entitlement by reason of distance, is shown by the
practice of States to have become a part of customary law; and
although the institutions of the continental shelf and the
exclusive economic zone are different and distinct, the rights
which the exclusive economic zone entails over the sea-bed of
the zone are defined by reference to the regime laid down for
the continental shelf. Although there can be a continental shelf
where there is no exclusive economic zone, there cannot be an
exclusive economic zone without a corresponding continental
shelf. It follows that, for juridical and practical reasons, the
distance criterion must now apply to the continental shelf as well
as to the exclusive economic zone (ie, 200 miles from coast).
(3) *The equidistance method is not one which must
necessarily be used. It is not the only appropriate method of
delimitation, nor the only permissible point of departure.
Moreover, the Court considers that the practice of States in this
field falls short of proving the existence of a rule prescribing the
use of equidistance, or indeed of any method, as obligatory.
(4) **Rift zone concept is rejected. Since the
development of the law enables a State to claim continental
shelf up to as far as 200 miles from its coast, whatever the
geological characteristics of the corresponding sea-bed and
subsoil, there is no reason to ascribe any role to geological or
geophysical factors within that distance. Since in the present
instance the distance between the coasts of the Parties is less
than 400 miles, so that no geophysical feature can lie more than
200 miles from each coast, the "rift zone" cannot constitute a
fundamental discontinuity terminating the southward extension
of the Maltese shelf and the northward extension of the Libyan
as if it were some natural boundary.
(5) The delimitation of the continental shelf must be
effected by the application of equitable principles in all the
relevant circumstances in order to achieve an equitable result,
viz:
a. the principle that there is to be no question of
refashioning geography;
b. the principle of non-encroachment by one Party on
areas appertaining to the other;
c. the principle of the respect due to all relevant
circumstances; the principle that "equity does not necessarily
imply equality" and that there can be no question of distributive
justice.
(6) ***The practice of States re: landmass basis, in the
jurisprudence or in the work of the Third United Nations
Conference on the Law of the Sea is unfounded. Nor does the
Court consider Maltas contention re: relative economic position.
Page |7
Regarding the security or defence interests of the two Parties,
the Court notes that the delimitation which will result from the
application of the present Judgment is not so near to the coast
of either Party as to make these questions a particular
consideration. As for the treatment of islands in continental shelf
delimitation Malta has drawn a distinction between island States
and islands politically linked to a mainland State. In this
connection the Court merely notes that, Malta being
independent, the relationship of its coasts with the coasts of its
neighbors is different from what it would be if it were part of the
territory of one of them. This aspect of the matter also seems to
the Court to be linked to the position of the Maltese islands in
the wider geographical context, to which it will return.
(7) ****If coastal States have an equal entitlement, ipso
jure and ab initio, to their continental shelves, this does not imply
an equality in the extent of these shelves, and thus reference to
the length of coasts as a relevant consideration cannot be
excluded a priori.
(8) To use the ratio of coastal lengths as self-
determinative of the seaward reach and area of continental shelf
proper to each, is to go far beyond the use of proportionality as
a test of equity, in the sense employed in the case concerning
the Continental Shelf (Tunisia/Libyan Arab Jamahiriya). Such
use finds no support in the practice of States or their public
statements, or in the jurisprudence.
(9) Provisional equidistance: The law applicable to the
present dispute is based on the criterion of distance in relation
to the coast (the principle of adjacency measured by distance),
and noting that the equitableness of the equidistance method is
particularly marked in cases where the delimitation concerns
States with opposite coasts, the Court considers that the tracing
of a median line between the coasts of Malta and Libya, by way
of a provisional step in a process to be continued by other
operations, is the most judicious manner of proceeding with a
view to the eventual achievement of an equitable result.
(10) Adjustment of the equidistance line, grounds: (a)
disparity in the lengths of the relevant coasts of the Parties to
attribute a greater are of shelf to Libya Maltese coast is 24
miles long and the Libyan coast 192 miles long; (b) southern
location of the coasts of the Maltese islands delimitation line
be adjusted so as to lie closer to the coasts of Malta; (c)
independence of Malta from Italy an equitable boundary
between Libya and Malta must be to the south of a notional
median line between Libya and Sicily.
(11) Proportionality test: Although a test of
proportionality may be used, based on the ratio between the
lengths of the relevant coasts and the areas of shelf attributed,
there may be certain practical difficulties which render this test
inappropriate. They are particularly evident in the present case,
inter alia because the area to which the Judgment will apply is
limited by reason of the existence of claims of third States, and
to apply the proportionality test simply to the areas within these
limits would be unrealistic.
-----------------------------XXX------------------------
TUNISIA v. LIBYA
-----------------------------XXX------------------------
GUINEA V GUINEA BISSAU
-----------------------------XXX------------------------
AEGEAN SEA CONTINENTAL SHELF CASE (GREECE v.
TURKEY)
Maritime and aerial zones of influence
Several of the Aegean issues deal with the delimitation of both
countries' zones of influence in the air and on the sea around

their respective territories. These issues owe their virulence to a
geographical peculiarity of the Aegean sea and its territories.
While the mainland coasts of Greece and Turkey bordering the
Aegean Sea on both sides represent roughly equal shares of its
total coastline, the overwhelming number of the many Aegean
islands belong to Greece. In particular, there is a chain of Greek
islands lined up along the Turkish west coast (Lesbos, Chios,
Samos, and the Dodecanese islands), partly in very close
proximity to the mainland. Their existence blocks Turkey from
extending any of its zones of influence beyond a few nautical
miles off its coastline. As the breadth of maritime and areal
zones of influence, such as the territorial waters and national
airspace, are measured from the nearest territory of the state in
question, including its islands, any possible extension of such
zones would necessarily benefit Greece much more than Turkey
proportionally.
According to a popular perception of these issues in the two
countries, Turkey is concerned that Greece might be trying to
extend its zones of influence to such a degree that it would turn
the Aegean effectively into a "Greek lake". Conversely, Greece
is concerned that Turkey might try to "occupy half of the
Aegean", i.e. establish Turkish zones of influence towards the
middle of the Aegean, beyond the chain of outlying Greek
islands, turning these into a kind of exclave surrounded by
Turkish waters, and thus cutting them off from their motherland.
Territorial waters
Territorial waters give the littoral state full control over air
navigation in the airspace above, and partial control over
shipping, although foreign ships (both civil and military) are
normally guaranteed innocent passage through them. The
standard width of territorial waters that countries are customarily
entitled to has steadily increased in the course of the 20th
century: from initially 3 nautical miles (5.6 km) at the beginning
of the century, to 6 nautical miles (11 km), and currently 12
nautical miles (22 km). The current value has been enshrined in
treaty law by the United Nations Convention on the Law of the
Sea of 1982 (Art.3). In the Aegean the territorial waters claimed
by both sides are still at 6 miles. The possibility of an extension
to 12 miles has fuelled Turkish concerns over a possible
disproportionate increase in Greek-controlled space. Turkey has
refused to become a member of the convention and does not
consider itself bound by it. Turkey considers the convention as
res inter alios acta, i.e. a treaty that can only be binding to the
signing parties but not to others. Greece, which is a party to the
convention, has stated that it reserves the right to apply this rule
and extend its waters to 12 miles at some point in the future,
although it has never actually attempted to do so. It holds that
the 12 mile rule is not only treaty law but also customary law, as
per the wide consensus established among the international
community. Against this, Turkey argues that the special
geographical properties of the Aegean Sea make a strict
application of the 12 mile rule in this case illicit in the interest of
equity.[2] Turkey has itself applied the customary 12 mile limit to
its coasts outside the Aegean.
Tensions over the 12 mile question ran highest between the two
countries in the early 1990s, when the Law of the Sea was going
to come into force. On 9 June 1995, the Turkish parliament
officially declared that unilateral action by Greece would
constitute a casus belli, i.e. reason to go to war. This declaration
has been condemned by Greece as a violation of the Charter of
the United Nations, which forbids "the threat or use of force
Page |8
against the territorial integrity or political independence of any
state".
National airspace
The national airspace is normally defined as the airspace
covering a state's land territory and its adjacent territorial waters.
National airspace gives the sovereign state a large degree of
control over foreign air traffic. While civil aviation is normally
allowed passage under international treaties, foreign military
and other state aircraft (unlike military vessels in the territorial
waters) do not have a right to free passage through another
state's national airspace.[3] The delimitation of national airspace
claimed by Greece is unique, as it does not coincide with the
boundary of the territorial waters. Greece claims 10 nautical
miles (19 km) of airspace, as opposed to currently 6 miles of
territorial waters. Since 1974, Turkey has refused to
acknowledge the validity of the outer 4-mile belt of airspace that
extends beyond the Greek territorial waters. Turkey cites the
statutes of the International Civil Aviation Organization (ICAO)
of 1948, as containing a binding definition that both zones must
coincide.[4] Against this, Greece argues that:
its 10-nautical-mile (19 km) claim predates the ICAO
statute, having been fixed in 1931, and that it was
acknowledged by all its neighbours, including Turkey,
before and after 1948, hence constituting an
established right;[5]
its 10-mile claim can also be interpreted as just a
partial, selective use of the much wider rights
guaranteed by the Law of the Sea, namely the right to
a 12-mile zone both in the air and on the water;
Greek territorial waters are set at the 6 mile boundary
only because of Turkey's casus belli.
The conflict over military flight activities has led to a practice of
continuous tactical military provocations, with Turkish aircraft
flying in the outer 4 mile zone of contentious airspace and Greek
aircraft intercepting them. These encounters often lead to so-
called "dog-fights", dangerous flight maneuvers that have
repeatedly ended in casualties on both sides. In one instance in
1996, it has been alleged that a Turkish plane was accidentally
shot down by a Greek one.
Continental shelf
In the context of the Aegean dispute, the term continental shelf
refers to a littoral state's exclusive right to economic exploitation
of resources on and under the sea-bed, for instance oil drilling,
in an area adjacent to its territorial waters and extending into the
High Seas. The width of the continental shelf is commonly
defined for purposes of international law as not exceeding 200
nautical miles. Where the territories of two states lie closer
opposite each other than double that distance, the division is
made by the median line. The concept of the continental shelf is
closely connected to that of an exclusive economic zone, which
refers to a littoral state's control over fishery and similar rights.
Both concepts were developed in international law from the
middle of the 20th century, and were codified in the United
Nations Convention on the Law of the Sea in 1982.
The dispute between Turkey and Greece is to what degree the
Greek islands off the Turkish coast should be taken into account
for determining the Greek and Turkish economic zones. Turkey
argues that the notion of "continental shelf", by its very definition,
implies that distances should be measured from the continental
mainland, claiming that the sea-bed of the Aegean

geographically forms a natural prolongation of the Anatolian
land mass. This would mean for Turkey to be entitled to
economic zones up to the median line of the Aegean (leaving
out, of course, the territorial waters around the Greek islands in
its eastern half, which would remain as Greek exclaves.)
Greece, on the other hand, claims that all islands must be taken
into account on an equal basis. This would mean that Greece
would gain the economic rights to almost the whole of the
Aegean.[2]
In this matter, Greece has the UN Law of the Sea on its side,
although the Convention restricts the application of this rule to
islands of a notable size, as opposed to small uninhabitable
islets and rocks. The precise delimitation of the economic zones
is the only one of all the Aegean issues where Greece has
officially acknowledged that Turkey has legitimate interests that
might require some international process of arbitration or
compromise between the two sides.[5]
Tensions over the continental shelf were particularly high during
the mid-1970s and again the late 1980s, when it was believed
that the Aegean Sea might hold rich oil reserves. Turkey at that
time conducted exploratory oceanographic research missions in
parts of the disputed area. These were perceived as a
dangerous provocation by Greece, which led to a buildup of
mutual military threats in 1976 and again in 1987.
Demarcation
By virtue of an agreement signed in 1952, the whole airspace
over the Aegean, up to the boundary of the national airspace of
Turkey, has been assigned to Athens FIR, administered by
Greece. Shortly after the Cyprus crisis of 1974, Turkey
unilaterally attempted to change this arrangement, issuing a
Notice to Airmen (NOTAM) stating that it would take over the
administration of the eastern half of the Aegean airspace,
including the national airspace of the Greek islands in that area.
Greece responded with a declaration rejecting this move, and
declaring the disputed zone unsafe for aviation due to the
conflicting claims to authority. This led to some disruption in civil
aviation in the area. Turkey later changed its stance, and since
1980 has returned to recognizing Athens FIR in its original
demarcation.[5] In practice, the FIR demarcation is currently no
longer a disputed issue.
Strategies of conflict resolution
The decades since the 1970s have seen a repeated heightening
and abating of political and military tensions over the Aegean.
Thus, the crisis of 1987 was followed by a series of negotiations
and agreements in Davos and Brussels in 1988. Again, after the
Imia/Kardak crisis of 1996, there came an agreement over
peaceful neighbourly relations reached at a meeting in Madrid
in 1997. The period since about 1999 has been marked by a
steady improvement of bilateral relations.
For years, the Aegean dispute has been a matter not only about
conflicting claims of substance. Rather, proposed strategies of
how to resolve the substantial differences have themselves
constituted a matter of heated dispute. Whereas Turkey has
traditionally preferred to regard the whole set of topics as a
political issue, requiring bilateral political negotiation,[1] Greece
views them as separate and purely legal issues[citation
needed], requiring only the application of existing principles of
international law. Turkey has advocated direct negotiation, with
a view to establishing what it would regard as an equitable
Page |9
compromise. Greece refuses to accept any process that would
put it under pressure to engage in a give-and-take over what it
perceives as inalienable and unnegotiable sovereign rights. Up
to the late 1990s, the only avenue of conflict resolution that
Greece deemed acceptable was to submit the issues separately
to the International Court of Justice in The Hague.
The resulting stalemate between both sides over process was
partially changed after 1999, when the European summit of
Helsinki opened up a path towards Turkey's accession to the
EU. In the summit agreement, Turkey accepted an obligation to
solve its bilateral disputes with Greece before actual accession
talks would start. This was perceived as giving Greece a new
tactical advantage over Turkey in determining which paths of
conflict resolution to choose. During the following years, both
countries held regular bilateral talks on the level of technical
specialists, trying to determine possible future procedures.
According to press reports[citation needed], both sides seemed
close to an agreement about how to submit the dispute to the
court at The Hague, a step which would have fulfilled many of
the old demands of Greece. However, a newly elected Greek
government under Kostas Karamanlis, soon after it took office
in March 2004, opted out of this plan, because Ankara was
insisting that all the issues, including Imia/Kardak and the "grey
zones", belonged to a single negotiating item. Athens saw them
as separate.[17] However, Greek policy remained at the
forefront in advocating closer links between Ankara and the EU.
This resulted in the European Union finally opening accession
talks with Turkey without its previous demands having been
fulfilled.
------------------------------XXX-----------------------
ANGLO-FRENCH
------------------------------XXX-----------------------
LEGAL STATUS OF EASTERN GREENLAND (NORWAY V.
DENMARK)
Brief Fact Summary. The statement made by the Norwegian
Minister was claimed to be binding on his country by Denmark
(P).
Synopsis of Rule of Law. A country is bound by the reply given
on its behalf by its Minister of Foreign Affairs.
Facts
In the 1920s, Norway occupied and claimed as its own parts of
Eastern Greenland, a territory previously claimed by Denmark.
A Danish diplomatic representative asked Norways Minister of
Foreign Affairs about the countrys intentions toward Eastern
Greenland. The Minister replied that Norway did not intend to
contest Danish sovereignty over the whole of Greenland.
Denmark later sued Norway before the Permanent Court of
International Justice on the ground that Norway violated Danish
sovereignty in Eastern Greenland.
The agreement not to obstruct Danish (P) plans with regard to
Greenland was what Denmark wanted to obtain from Norway
(D). To this request, a declaration on behalf of the Norwegian
government (D) was made by its Minister for Foreign Affairs that
Norway (D) would not make any difficulty in the settlement of the
question.
Issue. Is a country bound by the reply given on its behalf by its
Minister of Foreign Affairs?

Held. Yes. A country is bound by the reply given on its behalf by
its Minister of Foreign Affairs. Therefore in this case, the
response by the diplomatic representative of a foreign power is
binding upon the country the Minister represents.
Discussion. The main source of international law on treaties is
the Vienna Convention on the Law of Treaties. The Convention
was ratified by 35 countries but not by the United States.
Unilateral statements may also be binding on states.
-----------------------------XXX------------------------
CANADA & FRANCE, ST. PIERRE
-----------------------------XXX------------------------
FISHERIES JURISDICTION (SPAIN V. CANADA)
On 28 March 1995 Spain filed an application instituting
proceedings against Canada with respect to a dispute relating
to the Canadian Coastal Fisheries Protection Act (as amended
on 12 May 1994), to the implementing regulations of that Act
and to certain measures taken on the basis of that legislation.
The dispute deals in particular with the boarding on the high
seas, on 9 March 1995, of a fishing boat, the Estai, flying the
Spanish flag and with a Spanish crew, by a Canadian patrol
boat, the Cape Roger.
Spain alleged that the boarding of the Estai by the Cape Roger
occurred "after successive attempts at boarding by gunboats
manned by individuals armed with automatic weapons". It added
that "the boat and its crew were forcibly escorted away and held
incommunicado in the Canadian port of St. John's,
Newfoundland, where the captain of the boat was imprisoned
and subjected to criminal proceedings for having fished on the
high seas". In its Application, Spain indicated that by this action
Canada had violated the principles of general international law
which proclaim freedom of navigation and freedom of fishing on
the high seas, as well as the exclusive jurisdiction of the flag
State over ships on the high seas. Spain also contended that
Canada had breached the norms of general international law
which reject the right of hot pursuit on the high seas and prohibit
imprisonment and corporal punishment as penalties in case of
violations of fishing laws and regulations. Spain maintained that
by the Canadian Act "an attempt was made to impose on all
persons on board foreign ships a broad prohibition on fishing in
the NAFO [Northwest Atlantic Fisheries Organization]
Regulatory Area, that is, on the high seas".
As a basis of the Court's jurisdiction, Spain referred to the
declarations of both States by which they accept that jurisdiction
as compulsory (Article 36, paragraph 2, of the Statute of the
Court).That provision, known as the "Optional Clause," provides
that the states parties to the ICJ Statute (currently all the 185
UN member states and Nauru and Switzerland) may at any time
file with the UN Secretary-General declarations stating that they
recognize as compulsory, without special agreement, in relation
to any other state accepting the same obligation, the Court's
jurisdiction in all legal disputes concerning the interpretation of
a treaty, any question of international law, the existence of any
fact which, if established, would constitute a breach of an
international obligation, or the nature or extent of the reparation
to be made for the breach of an international obligation. On 21
April 1995, Canada informed the Court that it lacked jurisdiction
to deal with the case because of a reservation made in its
Declaration recognizing the compulsory jurisdiction of the Court
of 10 May 1994. In this Declaration, Canada said the Court had
a compulsory jurisdiction "over all disputes . . . other than . . .
disputes arising out of or concerning conservation and
P a g e | 10
management measures taken by Canada with respect to
vessels fishing in the NAFO Regulatory Area . . . and the
enforcement of such measures".
On December 4, 1998, the International Court of Justice (ICJ)
ruled (12-5) that it lacks jurisdiction to adjudicate the dispute
brought by the Kingdom of Spain against Canada in 1995. The
Court agreed with Canada that the words of an Optional Clause
declaration, including a reservation contained therein, must be
interpreted in a natural and reasonable way, having due regard
to the intention of the state making the reservation at the time
when it accepted the Court's compulsory jurisdiction. Such
state's intention, in turn, may be deduced not only from the text
of the relevant clause, but also from the context in which the
clause is to be read, the circumstances of its preparation, and
the purposes intended to be served. The Court thus stressed
that a reservation to a declaration should be interpreted in a
manner compatible with the effect sought by the reserving state;
reservations operate to define the parameters of a state's
acceptance of the Court's compulsory jurisdiction.In offering its
interpretation of Canada's reservation, the Court considered that
the reservation's purpose was to prevent it from exercising
jurisdiction over matters that might arise with regard to the
international legality of the Canadian legislation and its
implementation. The Court addressed what it saw as Spain's
four main arguments in favor of jurisdiction: (1) the dispute
brought by Spain falls outside the terms of the Canadian
reservation by reason of its subject-matter; (2) the Canadian
legislation cannot, in international law, constitute "conservation
and management measures;" (3) the reservation covers only
"vessels" that are stateless or flying a flag of convenience; and
(4) the pursuit, boarding and seizure of the Spanish ship cannot
be regarded in international law as the enforcement of
conservation and management measures. Court concluded that
the dispute submitted to it by Spain constitutes a dispute "arising
out of" and "concerning" "conservation and management
measures taken by Canada with respect to vessels fishing in the
NAFO Regulatory Area" and "the enforcement of such
measures." Consequently, the Court concluded that this dispute
comes within the terms of the Canadian reservation and found,
by 12 votes to 5, that it lacks jurisdiction to adjudicate upon the
dispute.
This is the first time since the judgment in Aegean Sea
Continental Shelf (Greece v. Turkey) rendered in 1978 that the
Court has found, at a preliminary stage, that it is without
jurisdiction to entertain an application. The Court's refusal to
entertain Portugal's Application in the case concerning East
Timor (Portugal v. Australia) in 1995, although technically a
dismissal, was based on a finding at the merits stage that the
Court could not exercise the jurisdiction conferred upon it to
adjudicate the dispute referred by Portugal in the absence of
Indonesia as a necessary third party.
------------------------XXX--------------------------
M/V SAIGA (ST. VINCENT & GRENADINES V. GUINEA)
Facts
a. On 13 November 1997, the Agent of Saint Vincent
and the Grenadines filed in the Registry of the Tribunal by
facsimile an Application under article 292 of the United Nations
Convention on the Law of the Sea, instituting proceedings
against Guinea in respect of a dispute concerning the prompt
release of the M/V Saiga and its crew.

b. The Saiga was taken into custody by the Guinea
authorities under suspicion of smuggling in the Exclusive
Economic Zone of Guinea.
c. The Saiga was serving as a bunkering vessel,
refueling fishing vessels and other vessels operating off the
coast of Guinea.
d. When arrested, the Saiga was at a point further
south than the limits of the Guinea specific economic zone.
When being arrested, two crewmembers were seriously injured
on board the ship. The Saiga was detained and brought back to
Guinea. At the time of arrest, the vessel was drifting within the
Exclusive Economic Zone of
Sierra Leone.
e. Saint Vincent and the Grenadines are asking for the
return of the vessel under
Article 292 of the United Nations Convention on the Law of the
Sea, concerning the prompt release of vessels and crews upon
the posting of a bond or other financial security.
f. Guinea argues that it executed a legitimate arrest as
it came about at the end of a hot pursuit following a violation of
customs laws in the contiguous zone of
Guinea.
g. Saint Vincent and the Grenadines and Guinea are
both State parties of the United
Nations Convention on the Law of the Sea. The Tribunal
therefore has jurisdiction in this case.
Questions
a. Was the Saiga in violation of violating customs laws
while in the Exclusive economic zone of Guinea by refueling
other vessels in these waters?
b. Is Guinea in violation of the UN convention, Article
292 for failing to not comply with the prompt release of the vessel
and crew upon receiving bond?
Decisions
a. Concerning the Question of the violation of customs
laws of Guinea by the Saiga, the tribunal concluded that during
the time of arrest, the Saiga was not in violation of any of
Guineas custom laws as it was acting with no intention of
smuggling. It was acting though as a fishing vessel in this
instance under the facts that it was only refueling other vessels
in the area.
b. Concerning the Article 292 of the UN Convention,
the tribunal found that Guinea was in violation of this code and
was ordered to make reparations to Saint Vincent and the
Grenadines. The crew and vessel was to be promptly released.
Guinea confiscated the oil that the vessel was carrying and the
oil was therefore seen as a bond. Guinea was ordered to pay for
the oil which it had confiscated as it acted as a bond and was
also ordered to pay Saint Vincent and the Grenadines the sum
of four hundred thousand United States dollars($ 400,000.00).
Principles
a. The main principle in this case as not the question if
the Saiga was in violation of operating the Exclusive Economic
Zone of Guinea, but rather the question if Guinea was in
violation of Article 292 of the UN Convention and had not
proceeded correctly in handling the prompt release of the vessel
and crew upon posting a bail bond.
Conclusion
The International Tribunal for the Law of the Sea decided in this
case that Saint Vincent and the Grenadines argument against
P a g e | 11
Guinea was well founded and therefore decided to rule in their
favor concerning the release of the vessel and its crew. The
case is important in International Law because it was the first
time Article 292 had been examined under international
circumstances and it stands as a judgment that must be followed
for the laws of the seas.
---------------------------XXX----------------------
GULF OF MAINE (CANADA v. USA)
Judgment of 12 October 1984
I. The Special Agreement and the Chamber's Jurisdiction
(paras. 1-27)
After recapitulating the various stages in the
proceedings and setting out the formal submission of the Parties
(paras. 1-13), the Chamber takes note of the provisions of the
Special Agreement by which the case was brought before it.
Under Article II, paragraph 1, of that Special Agreement, it was:
"requested to decide, in accordance with the principles and rules
of international law applicable in the matter as between the
Parties, the following question:
What is the course of the single maritime boundary that
divides the continental shelf and fisheries zones of Canada and
the United States of America from a point in latitude 44 11' 12"
N, longitude 67 16' 46" W to a point to be determined by the
Chamber within an area bounded by straight lines Connecting
the following sets of geographic coordinates: latitude 40 N,
longitude 67 W; latitude 40 N, longitude 65 W; latitude
42 N, longitude 65 W?"
(For the location of the starting-point and terminal area of the
delimitation, see Map No. 1.)
The Chamber notes that the Special Agreement
imposes no limitation on its jurisdiction other than that resulting
from the terms of this question, and that the rights of third States
in the marine and submarine areas to which the case related
could not in any way be affected by the delimitation. It also notes
that, the case having been submitted by special agreement, no
preliminary question of jurisdiction arose. The only initial
problem that might theoretically arise is whether and to what
extent the Chamber is obliged to adhere to the terms of the
Special Agreement as regards the starting-point of the line to be
drawn - called point A - and the triangular area within which that
line is to terminate. Noting the reasons for the Parties' choice of
the point and area in question, the Chamber sees a decisive
consideration for not adopting any other starting-point or
terminal area in the fact that, under international law, mutual
agreement between States concerned is the preferred
procedure for establishing a maritime delimitation; since Canada
and the United States of America had by mutual agreement
taken a step towards the solution of their dispute which must not
be disregarded, the Chamber must, in performing the task
conferred upon it, conform to the terms by which the Parties
have defined it.
The Chamber notes that there are profound differences
between the case before it and other delimitation cases
previously brought before the Court in that:
(a) the Chamber is requested to draw the line of
delimitation itself and not merely to undertake a task preliminary
to the determination of a line; and
(b) the delimitation requested does not relate
exclusively to the continental shelf but to both the shelf and the
exclusive fishing zone, the delimitation to be by a single
boundary. With regard to (b), the Chamber is of the view that

there is certainly no rule of international law, or any material
impossibility, to prevent it from determining such a line.
II. The delimitation area (paras. 28-59)
The Chamber finds it indispensable to define with
greater precision the geographical area-"the Gulf of Maine area"
- within which the delimitation has to be carried out. It notes that
the Gulf of Maine properly so called is a broad indentation in the
eastern coast of the North-American continent, having roughly
the shape of an elongated rectangle whose short sides are
made up mainly by the coasts of Massachusetts in the west and
Nova Scotia in the east, whose long landward side is made up
by the coast of Maine from Cape Elizabeth to the terminus of the
international boundary between the United States and Canada
and whose fourth, Atlantic side would be an imaginary line,
between Nantucket and Cape Sable, agreed by the Parties to
be the "closing line" of the Gulf of Maine.
The Chamber emphasizes the quasi-parallel direction
of the opposite coasts of Massachusetts and Nova Scotia. It
points out that the reference to "long" and "short" sides is not to
be interpreted as an espousal of the idea of distinguishing
"primary" and "secondary" coastal fronts. The latter distinction is
merely the expression of a human value judgment, which is
necessarily subjective and may vary on the basis of the same
facts, depending on the ends in view. It points out, with reference
to certain arguments put forward by the Parties, that
geographical facts are the result of natural phenomena and can
only be taken as they are.
The delimitation, the Chamber observes, is not limited
to the Gulf of Maine but comprises, beyond the Gulf closing line,
another maritime expanse including the whole of the Georges
Bank, the main focus of the dispute. The Chamber rejects
however the arguments of the Parties tending to involve coasts
other than those directly surrounding the Gulf so as to extend
the delimitation area to expanses which have in fact nothing to
do with it.
After noting that it has up to this point based itself on
aspects inherent in physical geography, the Chamber goes on
to consider the geological and geomorphological characteristics
of the area. It notes that the Parties are in agreement that
geological factors are not significant and finds that, given the
unity and uniformity of the sea-bed, there are no
geomorphological reasons for distinguishing between the
respective natural prolongations of the United States and
Canadian coasts in the continental shelf of the delimitation area:
even the Northeast Channel, which is the most prominent
feature, does not have the characteristics of a real trough
dividing two geomorphologically distinct units.
As regards another component element of the
delimitation area, the "water column", the Chamber notes that
while Canada emphasized its character of overall unity, the
United States invoked the existence of three distinct ecological
rgimes separated by natural boundaries the most important of
which consisted of the Northeast Channel; the Chamber,
however, is not convinced of the possibility of discerning, in so
fluctuating an environment as the waters of the ocean, any
natural boundaries capable of serving as a basis for carrying out
a delimitation of the kind requested.
III. Origins and development of the dispute (paras. 60-78)
Beginning with a reference to the Truman
Proclamations of 1945, the Chamber summarizes the origins
and development of the dispute, which first materialized in the
1960s in relation to the continental shelf, as soon as petroleum
P a g e | 12
exploration had begun on either side, more particularly in certain
locations on Georges Bank. In 1976-1977 certain events
occurred which added to the continental shelf dimension that of
the waters and their living resources, for both States proceeded
to institute an exclusive 200 mile fishery zone off their coasts
and adopted regulations specifying the limits of the zone and
continental shelf they claimed. In its account of the negotiations
which eventually led to the reference of the dispute to the Court,
the Chamber notes that in 1976 the United States adopted a line
limiting both the continental shelf and the fishing zones and the
adoption by Canada of a first line in 1976 (Map No. 2).
The Chamber takes note of the respective delimitation
lines now proposed by each Party (Map No. 3). The Canadian
line, described like that of 1976 as an equidistance line, is one
constructed almost entirely from the nearest points of the
baselines from which the breadth of the territorial sea is
measured. Those points happen to be exclusively islands, rocks
or low-tide elevations, yet the basepoints on the Massachusetts
coast which had initially been chosen for the 1976 line have
been shifted westward so that the new line no longer takes
account of the protrusion formed by Cape Cod and Nantucket
Island and is accordingly displaced west. The line proposed by
the United States is a perpendicular to the general direction of
the coast from the starting-point agreed upon by the Parties,
adjusted to avoid the splitting of fishing banks. It differs from the
"Northeast Channel line" adopted in 1976 which, according to its
authors, had been based upon the "equidistance/special
circumstances" rub of Article 6 of the 1958 Geneva Convention.
The Chamber notes that the two successive lines put forward by
Canada were both drawn primarily with the continental shelf in
mind, whereas the United States lines were both drawn up
initially on the basis of different considerations though both
treated the fishery rgime as essential.
IV. The applicable principles and rules of international law
(paras. 79-112)
After observing that the terms "principles and rules"
really convey one and the same idea, the Chamber stresses that
a distinction has to be made between such principles or rules
and what, rather, are equitable criteria or practical methods for
ensuring that a particular situation is dealt with in accordance
with those principles and rules. Of its nature, customary
international law can only provide a few basic legal principles
serving as guidelines and cannot be expected also to specify the
equitable criteria to be applied or the practical methods to be
followed. The same may however not be true of international
treaty law.
To determine the principles and rules of international
law governing maritime delimitation, the Chamber begins by
examining the Geneva Convention of 29 April 1958 on the
Continental Shelf, which has been ratified by both the Parties to
the case, who both also recognize that it is in force between
them. In particular the Chamber examines Article 6, paragraphs
1 and 2, from which a principle of international law may be
deduced to the effect bat any delimitation of a continental shelf
effected unilaterally by one State regardless of the views of the
other State or States concerned is not opposable to those
States. To this principle may conceivably be added a latent rule
that any agreement or other equivalent solution should involve
the application of equitable criteria. The Chamber goes on to
consider the bearing on the problem of various judicial decisions
and to comment upon the work of the Third United Nations
Conference on the Law of the Sea, noting that certain provisions
concerning the continental shelf and the exclusive economic

zone were, in the Convention of 1982, adopted without any
objections and may be regarded as consonant at present with
general international law on the question.
As regards the respective positions of the Parties in the
light of those findings, the Chamber notes their agreement as to
the existence of a fundamental norm of international law calling
for a single maritime boundary to be determined in accordance
with the applicable law, in conformity with equitable principles,
having regard to all relevant circumstances, in order to achieve
an equitable result. However, there is no longer agreement
between the Parties when each separately seeks to ascertain
whether international law might also contain other mandatory
rules in the same field. The Chamber rejects the Canadian
argument from geographical adjacency to the effect that a rule
exists whereby a State any part of whose coasts is less distant
from the zones to be attributed than those of the other State
concerned would be entitled to have the zones recognized as its
own. The Chamber also finds unacceptable the distinction made
by the United States between "primary" and "secondary" coasts
and the consequent preferential relationship said to exist
between the "principal" coasts and the maritime and submarine
areas situated frontally before them.
In concluding this part of its considerations, the
Chamber sets out a more precise reformulation of the
fundamental norm acknowledged by the Parties:
"No maritime delimitation between States with opposite or
adjacent coasts may be effected unilaterally by one of those
States. Such delimitation must be sought and effected by means
of an agreement, following negotiations conducted in good faith
and with the genuine intention of achieving a positive result.
Where, however, such agreement cannot be achieved,
delimitation should be effected by recourse to a third party
possessing the necessary competence.
"In either case delimitation is to be effected by the application of
equitable criteria and by the use of practical methods capable of
ensuring, with regard to the geographic configuration of the area
and other relevant circumstances, an equitable result." (Para.
112.)
V. The equitable criteria and practical methods applicable to the
delimitation (paras. 113-163)
Turning to the question of the criteria and methods
which are capable of ensuring an equitable result and whose
application is prescribed by the above norm, the Chamber is of
the view that they must be looked for not in customary
international law but in positive international law, and in that
connection it examines those provided for by the 1958
Convention on the Continental Shelf, in Article 6 (median line in
the case of opposite coasts, lateral equidistance line in the case
of adjacent coasts). The Chamber points out that a treaty
obligation concerning the delimitation of the continental shelf
cannot be extended so as to apply to the superjacent waters
and, after rejecting the Canadian argument that the combined
equidistance/special-circumstances rule has become a rule of
general international law, finds that Article 6, while in force
between the Parties, does not entail either for them or for the
Chamber any legal obligation to apply its provisions to the
present delimitation.
The Chamber next turns to the question whether any
obligation of that kind can have resulted from the conduct of the
Parties and whether the conduct of one of them might not have
constituted an acquiescence in the application of a specific
method or resulted in a modus vivendi with regard to a line
corresponding to such an application. Dealing first with a
P a g e | 13
Canadian argument that the conduct of the United States had
evinced a form of consent to the application of the equidistance
method, especially in the Georges Bank sector, the Chamber
finds that reliance on acquiescence or estoppel is not warranted
in the circumstances and that the conduct of the Parties not
prove the existence of any such modus vivendi. As for the
argument of the United States based on Canada's failure to
react to the Truman Proclamation that amounted to claiming that
delimitation must be effected in accordance with equitable
principles; consequently, the United States position on that point
merely referred back to the "fundamental norm" acknowledged
by both Parties. On the basis of that analysis, the Chamber
concludes that the Parties, in the current state of the law
governing relations between them, are not bound, under a rule
of treaty law or other rule, to apply certain criteria or certain
methods for the establishment of the single maritime boundary,
and that the Chamber is not so bound either.
Regarding possible criteria, the Chamber does not
consider that it would be useful to undertake a more or less
complete enumeration in the abstract of those that might be
theoretically conceivable, or an evaluation of their greater or
lesser degree of equity. It also notes, in regard to the practical
methods, that none would intrinsically bring greater justice or be
of greater practical usefulness than others, and that there must
be willingness to adopt a combination of different methods
whenever circumstances so require.
VI. The criteria and methods proposed by the Parties and the
lines resulting from their application to the delimitation (paras.
164-189)
Once the dispute had taken on its present dual
dimension (first the continental shelf and subsequently fisheries)
both Parties took care to specify and publish their respective
claims, proposing the application of very different criteria and the
use of very different practical methods. Each had successively
proposed two delimitation lines (Maps Nos. 2 and 3).
The United States had first proposed, in 1976, a
criterion attaching determinative value to the natural, especially
ecological, factors of the area. Its line corresponded
approximately to the line of the greatest depths, leaving German
Bank to Canada and Georges Bank to the United States. The
Chamber considers that this line, inspired as it was by the
objective of distributing fishery resources in accordance with a
"natural" criterion, was too biased towards one aspect (fisheries)
to be considered as equitable in relation to the overall problem.
In 1982 the United States proposed a second line with the
general direction of the coast as its central idea, the criterion
applied being that of the frontal projection of the primary coastal
front. This application resulted in a perpendicular to the general
direction of the coastline, adjusted however to take account of
various relevant circumstances, in particular such ecological
circumstances as the existence of fishing banks. The Chamber
considers it almost an essential condition for the use of such a
method that the boundary to be drawn should concern two
countries whose territories lie successively along a more or less
rectilinear coast, for a certain distance at least. But it would be
difficult to imagine a case less conducive to the application of
that method than the Gulf of Maine case. The circumstances
would moreover entail so many adjustments that the character
of the method would be completely distorted.
As for the Canadian proposals, the Chamber considers
together the two lines proposed respectively in 1976 and 1977,
as they are essentially based on the same criterion, that of the
equal division of disputed areas - and the same method -

equidistance. Canada described the first line as a strict
equidistance line, and the second as an equidistance line
corrected on account of the special circumstance formed by the
protrusion of Nantucket Island and the Cape Cod peninsula,
alleged to be geographical anomalies that Canada is entitled to
discount, so that its delimitation line is displaced towards the
west. The Chamber notes that in the case before it the difference
in the lengths of the two States' coastlines within the delimitation
area is particularly marked and would constitute a valid ground
for making a correction even if this factor in itself furnished
neither a criterion nor a method of delimitation. Furthermore, the
Canadian line appears to neglect the difference between two
situations clearly distinguished by the 1958 Convention, namely
that of adjacent coasts and that of opposite coasts, and fails to
take account of the fact that the relationship of lateral adjacency
between on the one hand, part of the coast of Nova Scotia and
its prolongation across the opening of the Bay of Fundy and, on
the other hand, the coast of Maine, gives way to a relationship
of frontal opposition between the other relevant part of the coast
of Nova Scotia and the coast of Massachusetts. The Canadian
line fails to allow for this new relationship, which is nevertheless
the most characteristic feature of the objective situation in the
context of which the delimitation is to be effected.
VII. The criteria and methods held by the Chamber to be
applicable. Line resulting from their application to the
delimitation (paras. 190-229)
The Chamber considers that, having regard to all those
considerations, it must put forward its own solution
independently of the Parties. It must exclude criteria which,
however equitable they may appear in themselves, are not
suited to the delimitation of both of the two objects in respect of
which the delimitation is requested - the continental shelf and
the fishery zones. Inevitably, criteria will be preferred which, by
their more neutral character, are best suited for use in a
multipurpose delimitation. The Chamber feels bound to turn in
the present case to criteria more especially derived from
geography, and it is inevitable that its basic choice should favour
the criterion whereby one should aim at an equal division of
areas where the maritime projections of the coasts of the States
between which delimitation is to be effected converge and
overlap. However, some corrections must be made to certain
effects of applying that criterion that might be unreasonable, so
that the concurrent use of auxiliary criteria may appear
indispensable. As regards the practical methods to be used for
giving effect to the criteria indicated, the Chamber considers
that, like the criteria themselves, they must be basically founded
upon geography and be as suitable for the delimitation of the
sea-bed and subsoil as to that of the superjacent waters and
their living resources. In the outcome, therefore, only
geometrical methods will serve.
Turning to the concrete choice of the methods it
considers appropriate for implementing the equitable criteria it
has decided to apply, the Chamber notes that the coastal
configuration of the Gulf of Maine excludes any possibility of the
boundary's being formed by a basically unidirectional line, given
the change of situation noted in the geography of the Gulf. It is
only in the northeastern vector of the Gulf that the prevailing
relationship of the coasts of the United States and Canada is
one of lateral adjacency. In the sector closest to the closing line,
it is one of oppositeness. In the Chamber's view it is therefore
obvious that, between point A and the line from Nantucket to
Cape Sable, i.e. within the limits of the Gulf of Maine proper, the
delimitation line must comprise two segments.
P a g e | 14
In the case of the first segment, the one closest to the
international boundary terminus, there is no special
circumstance to militate against the division into, as far as
possible, equal parts of the overlapping created by the lateral
superimposition of the maritime projections of the two States'
coasts. Rejecting the employment of a lateral equidistance line
on account of the disadvantages it is found to entail, the
Chamber follows the method of drawing, from point A, two
perpendiculars to the two basic coastal lines, namely the line
from Cape Elizabeth to the international boundary terminus and
the line running thence to Cape Sable. At point A, those two
perpendiculars form an acute angle of 278. It is the bisector of
this angle which is prescribed for the first sector of the
delimitation line (Map No. 4).
In turning to the second segment, the Chamber
proceeds by two stages. First, it decides the method to be
employed in view of the quasi-parallelism between the coasts of
Nova Scotia and Massachusetts. As these are opposite coasts,
the application of a geometrical method can only result in the
drawing of a median delimitation line approximately parallel to
them. The Chamber finds, however, that, while a median line
would be perfectly legitimate if the international boundary ended
in the very middle of the coast at the back of the Gulf, in the
actual circumstances where it is situated at the northeastern
corner of the rectangle which geometrically represents the
shape of the Gulf the use of a median line would result in an
unreasonable effect, in that it would give Canada the same
overall maritime projection in the delimitation area as if the entire
eastern part of the coast of Maine belonged to Canada instead
of the United States. That being so, the Chamber finds a second
stage necessary, in which it corrects the median line to take
account of the undeniably important circumstance of the
difference in length between the two States' coastlines abutting
on the delimitation area. As the total length of the United States
coastlines on the Gulf is approximately 284 nautical miles, and
that of the Canadian coasts (including part of the coast of the
Bay of Fundy) is approximately 206 nautical miles, the ratio of
the coastlines is 1.38 to 1. However, a further correction is
necessitated by the presence of Seal Island off Nova Scotia. The
Chamber considers that it would be excessive to consider the
coastline of Nova Scotia as displaced in a southwesterly
direction by the entire distance between Seal Island and that
coast, and therefore considers it appropriate to attribute half
effect to the island. Taking that into account, the ratio to be
applied to determine the position of the corrected median line on
a line across the Gulf between the points where the coasts of
Nova Scotia and Massachusetts are closest (i.e. a line from the
tip of Cape Cod to Chebogue Point) becomes 1.32 to 1. The
second segment of the delimitation will therefore correspond to
the median line as thus corrected, from its intersection with the
bisector drawn from point A (first segment) to the point where it
reaches the closing line of the Gulf (Map No. 4).
As for the third segment of the delimitation, relating to
that part of the delimitation area lying outside the Gulf of Maine,
this portion of the line is situated throughout its length in the
open ocean. It appears obvious that the most appropriate
geometrical method for this segment is the drawing of a
perpendicular to the closing line of the Gulf. One advantage of
this method is to give the final segment of the line practically the
same orientation as that given by both Parties to the final portion
of the respective lines they envisaged. As for the exact point on
the closing line from which the perpendicular should be drawn
seawards, it will coincide with the intersection of that line with
the corrected median line. Starting from that point, the third

segment crosses Georges Bank between points on the 100-
fathom depth line with the following coordinates:
42 11'.8 N, 67 11'.0 W
41 10'.1 N, 66 17'.9 W
The terminus of this final segment will be situated
within the triangle defined by the Special Agreement and
coincide with the last point it reaches within the overlapping of
the respective 200-mile zones claimed by the two States.
VIII. Verification of the equitable character of the result (paras.
230-241)
Having drawn the delimitation line requested by the
Parties, the final task of the Chamber is to verify whether the
result obtained can be considered as intrinsically equitable in the
light of all the circumstances. While such verification is not
absolutely necessary where the first two segments of the line
are concerned, since the Chamber's guiding parameters were
provided by geography, the situation is different as regards the
third segment, which is the one of greatest concern to the
Parties on account of the presence in the area it traverses of
Georges Bank, the principal stake in the proceedings on
account of the potential resources of its subsoil and the
economic importance of its fisheries.
In the eyes of the United States, the decisive factor lies
in the fishing carried on by the United States and its nationals
ever since the country's independence and even before,
activities which they are held to have been alone in pursuing
over the greater part of that period, and which were
accompanied by other maritime activities concerning
navigational assistance, rescue, research, defence, etc. Canada
laid greater emphasis on the socio-economic aspects,
concentrating on the recent past, especially the last 15 years,
and presenting as an equitable principle the idea that a single
maritime boundary should ensure the maintenance of the
existing structures of fishing which, according to it, were of vital
importance to the coastal communities of the area.
The Chamber explains why it cannot subscribe to
these contentions and finds that it is clearly out of the question
to consider the respective scale of activities in the domain of
fishing or petroleum exploitation as an equitable criterion to be
applied in determining the delimitation line. What the Chamber
would regard as a legitimate scruple lies rather in concern lest,
unexpectedly, the overall result should appear radically
inequitable as entailing disastrous repercussions on the
subsistence and economic development of the populations
concerned. It considers that there is no reason to fear any such
danger in the present case on account of the Chamber's choice
of delimitation line or, more especially, the course of its third
segment, and concludes that the overall result of the delimitation
is equitable. Noting the long tradition of friendly and fruitful co-
operation in maritime matters between Canada and the United
States, the Chamber considers that the Parties will be able to
surmount any difficulties and take the right steps to ensure the
positive development of their activities in the important domains
concerned.
---------------------------XXX----------------------
ERITREA-YEMEN
Background
The archipelago is on the southern side of the Red Sea near
Bab-el-Mandeb (Mouth of the Red Sea). The Red Sea is about
60 miles (100 km) wide at this point. Since the British occupation
of Aden, the islands had generally been regarded as part of
Yemen.
P a g e | 15
After being granted independence and membership of the
United Nations, the new Eritrean government started
negotiations with Yemen over the status of the archipelago. Two
rounds of talks had taken place before the invasion:
Gutmann [French mediator] produced an Agreement on
Principles, which Eritrea and Yemen signed on 21 May. The two
sides agreed to resort to arbitration, to refrain from using force
and to abide by the verdict of an arbitration tribunal. The French
mediation effort almost collapsed when on 10 August, Eritrean
forces occupied Hanish al-Saghir. With Yemen threatening to
take military action, the UN Security Council ordered Eritrean
troops off the island. Asmara withdrew its forces on 27 August.
The renewed threat of conflict prompted Eritrea, at the end of
August, to begin deploying along its coastline Russian-made
SAM missiles acquired from Ethiopia.
Lefebvre.[4]
On 22 November 1995, Yemen's Foreign Minister Adb al-Karim
al-Iryani met in San'a' with three Eritrean officials to discuss the
problem. Iryani, heading a Yemeni delegation, then attended a
meeting in Eritrea on 7 December. There, both sides agreed to
resolve their dispute over maritime borders through
negotiations, which they scheduled for February 1996. If those
negotiations failed, both sides agreed to take the case to the ICJ
at The Hague.
Lefebvre.[5]
Greater Hanish (or Hanish al-Kabir) is one of three main islands
in an archipelago, and until 1995, it was inhabited only by a
handful of Yemeni fishermen. In 1995, a German company,
under Yemeni auspices, began building a hotel and scuba diving
centre on the Island. The Yemenis then sent a force of 200 men
to guard the construction site. Eritrean officials thought that the
construction work on Greater Hanish was an attempt to establish
facts on the ground before the negotiations scheduled for
February started. "Prompted by concern over the Yemeni
construction project on Hanish al-Kabir, Eritrea's Foreign
Minister Petros Solomon delivered, on 11 November 1995, an
ultimatum giving San'a one month to withdraw Yemeni military
forces and civilians from Hanish al-Kabir".
Armed conflict
When the Eritrean ultimatum ran out and the Yemeni military
forces and civilians had not withdrawn, Eritrea launched an
operation to take the island by force. The Eritreans used all
seaworthy vessels that they had to land ground forces on the
islands. Some Eritrean troops landed in fishing vessels and a
commandeered Egyptian ferry. The Eritreans also used aircraft
to ferry troops to the island. Eritrean forces attacked the Yemeni
contingent and overran the entire island within three days of
combat.
During the fighting, a Russian merchant ship was damaged by
Eritrean gunfire after it was mistaken for a Yemeni naval vessel.
Alleged foreign involvement and other motives for the
attack
The Eritrean attack on the Hanish islands was said by Yemenis
to be supported by Israel.[8] According to Yemeni sources, the
Eritrean operation may have been directed by Israeli officers.[9]
Sources close to the office of Yemeni President Ali Abdullah
Saleh claimed that "several Israelis" had directed the operation,
including a lieutenant-colonel named as Michael Duma. This
 P a g e | 16

claim was based on several coded messages in Hebrew

allegedly intercepted by Yemeni intelligence.[7] Despite this,
Yemen made no formal complaint to Israel.[10]

According to Steven Carol, in light of Yemeni military humiliation

in the battle for Great Hanish island, the proposed allegation of
Israeli involvement may have been nothing more than an
attempt of Yemen to "save some face".[10]

In 1996, Brian Whitaker (1996) and Carol (2012) suggest that

apart from the overt casus belli (that the war was initiated to
establish facts on the ground), three other reasons had been
proposed for the attack by the Eritreans on the island. The
Yemeni opposition sources claimed that during 1994, Yemen
received clandestine military assistance from Israel via the
Eritreans, and the Eritreans took Hanish when Yemen failed to
deliver the promised payments. Yemen's military claim, that it
had intercepted radio messages in Hebrew and that "several
Israelis" had helped to direct the Eritrean operation, led the Arab
League to suggest that the real motive for the attack was that
Israel intended to set up a base on the island. The third reason
put forward was that there may be oil in the Red Sea and that
the territorial rights to the seabed were the underlying reason for
the war.

Arbitration
As no resolution to the problem could be reached in bilateral
talks, the status of the archipelago was placed in front of the
Permanent Court of Arbitration in The Hague in the
Netherlands.[11] The Permanent Court of Arbitration
determined that most of the archipelago belonged to Yemen,
while Eritrea was to retain the right to fish the waters around all
the islands and sovereignty over some small islands close to
Eritrea.[1][10]

The islands, islet, rocks, and low-tide elevations of the Zuqar-

Hanish group, including, but not limited to, Three Foot Rock,
Parkin Rock, Rocky Islets, Pin Rock, Suyul Hanish, Mid Islet,
Double Peak Island, Round Island, North Round Island, Quoin
Island (1343'N, 4248'E), Chor Rock, Greater Hanish, Peaky
Islet, Mushajirah, Addar Ail Islets, Haycock Island (1347'N,
4247'E; not to be confused with the Haycock Islands to the
southwest of Greater Hanish), Low Island (1352'N, 4249'E)
including the unnamed islets and rocks close north, east and
south, Lesser Hanish including the unnamed islets and rocks
close north east, Tongue Island and the unnamed islet close
south, Near Island and the unnamed islet close south east,
Shark Island, Jabal Zuquar Island, High Island, and the Abu Ali
Islands (including Quoin Island (1405'N, 4249'E) and Pile
Island) are subject to the territorial sovereignty of Yemen;

CHAPTER XI Disposition.[12]
On 1 November 1998 "Yemeni Defence Minister Mohammad
Diefallah Mohammad raised his country's flag over the island of
Greater Hanish as Yemeni army and navy troops took up
positions on it. At the same time, Eritrean troops departed on
board a helicopter and a naval vessel".
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MAURITIUS V. UNITED KINGDOM