Digest 1

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public international law

The Nature and Function of International Law (Higgins, Chapter 1) 1. International law is not rules. It is a normative system. A normative system is a system of conduct which is regarded by the actor, and the group as a whole, as being obligatory, and for which violation carries a price1. 2. The law is not only meant to resolve disputes, but also to secure certain values that we desire like security and freedom. Indeed, if the law as a system is effective, there would not be a need for disputes at all. This fundamental desire for dispute-avoidance is one of the primary goals of the proliferation of norms. And even if dispute could not totally be avoided, common norms would still dictate what the parameters of conduct would be.

b. IT IS ALSO ABOUT POWER. Critics say that international law, if it is more than just the application of rules, would be confused with power or control and not just authority (which they say the law is all about). Higgins counters that: “to seek to contrast law with power is fundamentally flawed. It assumes that law is concerned only with the concept of authority and not with power, or control. International law is indeed concerned with authority…but not authority alone. It is also not true that power stands somehow counterpoised to authority, and is nothing to do with law, and is indeed inimical to it. The authority which characterizes law exists not in a vacuum, but exactly where it intersects with power. Authority cannot exist in the total absence of control.”

3. In terms of the social purpose of international law, it is almost the same as domestic law2, but in terms of operationalization, it is different in that domestic law is applied vertically (i.e., from the authority to the subjects) while international law is applied horizontally (i.e., imposed between states having equal status and sovereignty as regards one another) 4. THE NATURE OF INTERNATIONAL LAW. Higgins provides a framework for analyzing international law as a “process” and not as a body of rules. Here is how Higgins explains the nature of international law: a. IT IS THE DECISION-MAKING PROCESS ITSELF. “It is a continuing process of authoritative decisions. This view rejects the notion of law merely as the impartial application of rules. International law is the entire decision-making process, and not just the reference to the trend of past decisions which are termed “rules”.3 This bias of Higgins toward the “lawas-process” argument runs counter to the teachings of legal theory’s legal positivism school4. Austin, for example, argues that if something is law, then it must emanate from a sovereign who sets it upon persons in a state of subjection to the former’s authority. Kelsen, seeking to give meaning to positivism in a horizontal, decentralized international legal order, where command and sovereign are notably lacking, proposed the existence of a grundnorm which is the highest fundamental norm from

c. IT IS ALSO ABOUT POLICY. Critics also counter that if international law is to allow a leeway for the choosing of the best rule to apply instead of just applying the rule that there is, it would be an instrument for politics and would be applied based on the biases of the decision-makers. Fitzmaurice’s dissent5 illustrates this critical view. Higgins said that this critique rests on two propositions: that the correct legal view is to be arrived at by applying rules, and that the correct legal view has nothing to do with applying past decisions to current contexts by reference to objectives or values that the law is designed to promote. Higgins answers: “ Policy considerations, although they differ from “rules”, are an integral part of that decision-making process which we call international law; the assessment of so-called extra-legal considerations is part of the legal process, just as the reference to the accumulation of past decisions and current norms. A refusal to acknowledge political and social factors cannot keep law neutral, for even such refusal is not without political and social consequence. There is no avoiding the essential relationship between law and politics”. So how does one prevent being biased and partial when given the chance to take political factors into consideration? Higgins proposes two safeguards: systematic consideration (make sure

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The most important feature about a norm is that it is established through social convention rather than positive legislation, i.e., it derives its validity from the fact that seemingly everyone for seemingly the longest time has held it to be true and desirable, and not from the fact that a law-making authority has expressly given it the status of a rule. 2 e.g., Domestic law is to road traffic as international law is to international aviation 3 Higgins puts a premium on the “contextualization” of rules rather than mechanically applying them. For Higgins, if international law is merely finding the rule and applying it, then it would be highly ineffective because differing contexts cannot be adequately addressed by uniform rules. Said Higgins: “ the determination of what is the relevant rule is part of the decision-maker’s function; and because the accumulated trend of past decisions should never be applied oblivious of context”. 4 Warning: ghosts of Legal Theory will be coming back to life in the following sentences. Sison alert!

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which all others derived their binding force. Higgins also cites the increasing prominence of the critical legal studies school which, like the policy science approach (the approach which takes into consideration the policy implications of every decision), believes that law is deeplyrooted in social theory and rejects law as rules and exceptions. However, the critical legal studies scholar will see law as contradictions or as essentially indeterminate at its core rather than as complementary or competing norms between which choices have to be made in particular circumstances. This views lead to the pessimistic conclusion that what international law can do is point out the problems but not assist in the achievement of goals.

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In the 1962 South West Africa Cases, Fitzmaurice and Spender in a joint dissenting opinion stated: “ We are not unmindful of, nor are we insensible to, the various considerations of a non-judicial character, social, humanitarian, and other…but these are matters for the political rather than the legal arena. They cannot be allowed to deflect us from our duty of reaching a conclusion strictly on the basis of what we believe to be the correct legal view.”

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* bok * cj * tiff * Gem * tin * that ALL factors are properly considered and not only those which the decision-maker selects consciously or otherwise) and open/ accountable consideration (make the process open to public scrutiny and discussion).

2 restraint. It is rarely in the national interest to violate international law, even though there might be short-term advantages in doing so. For law as a process of decision-making, this is enough.

d. IT ALSO HAS SOLID ANCHORS. Higgins does not believe that the policy-science approach (the approach which takes into consideration the policy implications of every decision) requires one to find every means possible if the end is desirable, i.e., the process of international law does not have to be as fluid and flexible as the decision-maker’s interests would allow. First, trends of past decisions still have an important role to play in the choices to be made, notwithstanding the importance of both context and desired outcome. Where there is ambiguity or uncertainty, the policy-directed choice can properly be made. Second, no matter what, we will each know which legal claims and decisions are intellectually supportable and which are not6. It is therefore a far-fetched idea that international law, in the hands of decision-makers, can be an irrational and incoherent hodgepodge of selfserving rules. Lastly, in international law, there are still certain norms that have received such universal acceptance and validity as to enjoy the status of absolute rules because of the common interest involved in them, like the prohibition on the use of certain weapons.

5. Higgins acknowledges that there are some inherent contradictions in the legal system that make the process of international law more complex. Koskenniemi, however, argues that it is totally impossible to make a rational choice for the common good amongst these contradictions. For Koskenniemi, issues of contextual justice require venturing into fields such as politics, social and economic casuistry which were formally delimited beyond the point at which legal argument is supposed to stop in order to remain legal. Higgins counters that law cannot alone achieve justice. The making of legal choices will not even contribute to justice if it purports to totally ignore everything that is not rules. To remain legal is to ensure that decisions are made by those authorized to do so, with important guiding reliance on past decisions, and with available choices being made on the basis of community interests and for the promotion of common values.

e. IT IS A COMMUNAL ENTERPRISE. Making choices in the process of international law is not undertaken without some guiding principles; and these guiding principles are the product of collective consensus. Proposing such principles predicate that certain views or assumptions as to what is desirable should prevail over others. For Higgins, it is the necessary stuff of our very existence in community with others. Everyone is entitled to participate in the identification and articulation as to what they perceive the values to be promoted. Many factors, including the responsive chords struck in those to whom the arguments is made, will determine whether particular suggestions prevail. f. IT ARISES FROM EITHER CONSENT OR NON-OPPOSITION. Higgins says that we have in international law a system in which norms emerge either through express consent, or because there is no opposition – or because it is thought that, sovereignty notwithstanding, opposition would not succeed – to obligations being imposed in the absence of such specific consent. g. IT HAS BASIS IN RECIPROCITY, CONSENT, AND CONSENSUS. Reciprocity is a central element in the basis of obligation of international law. As notions of natural justice are replaced by consent, so consent has gradually been replaced by consensus. Consensus comes about because states perceive a reciprocal advantage in cautioning self-

6. Law-as-process encourages interpretation and choice that is more compatible with values we seek to promote and objectives we seek to achieve. According to Higgins, if one adopts this view of the law and moves away from the law-as-rules paradigm, the distinction between lex lata (the law as it is) and lex ferenda (the law as it might be) becomes less important. The law-as-process approach also has the advantage of being able to ably deal with lacunae 7. The rule-based lawyer can say only that international law has nothing to say on the matter. But to the person who views international law as process, there are still the tools for authoritative decision-making on the problem (by the use of analogy, by reference to context, by analysis of the alternative consequences) notwithstanding the absence of a precise rule which must be applied. 7. Higgins also took note of the views from socialist scholars regarding the nature of international law. For pre-perestroika Marxists, international law was part of the superstructure of law. It was an attribute of the foreign policy of states, an expression of the will of the ruling class. Where the will of the ruling classes of the socialist and capitalist systems coincided, international law can exist. It existed side by side with socialist international law which is said to exist between the various socialist countries. From the socialist perspective, international law was not universal because of its nature – the coordination of the wills of socialist and capitalist states. 8. From the viewpoint of developing countries, the primary concern is that the substance of international law has been adopted before these states have become independent, and so their contributions to the articulation of these norms were limited. However, these countries did not state that these norms are inimical to them and that they were not bound by them upon achieving independence.

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Higgins also presents a counter-argument to critics by saying that “it is a chimera to suppose that, if only international law is perceived as the application of neutral rules, it will then be invoked only in an unbiased manner”. For Higgins, even the act of invoking supposedly neutral rules can be an inherently political and not a value-devoid actuation.

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Literally, an isolated area (derivative of the Spanish word “laguna”, meaning lake, which is a body of water isolated within a surrounding mass of land); it is used to refer to legal issues where there are no established legal solutions.

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* bok * cj * tiff * Gem * tin * International law has been widely accepted by the Third World as universal in application.

3 The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

9. APPLICABILITY OF INTERNATIONAL LAW. Higgins explains that international law applies to states, international organizations, individuals (their responsibility in the conduct of war, fundamental freedoms) and in some cases applies indirectly (when they are required to comply with UN trade sanctions against a particular country). 10. BASIS OF OBLIGATION OF INTERNATIONAL LAW. Certainly not sanction as Austin would have it, because it would be difficult to enforce international law through sanctions in the context of equally sovereign states. Some would say that the basis is natural law, because it is in the natural order of things that certain matters should be regulated in a compulsory manner. Koskenniemi believes that the natural obligations of justice are essentially what is necessary for subsistence and self-preservation. Others propose that the basis is consent, or that international law is binding because the states agreed that it should be. Kosekenniemi criticizes the consent theory by pointing out that international law is whatever states choose to regard as law, so that law cannot be an effective external constraint on their behavior. If states consent, then it is not law at all, but just an agreement by them that their behavior will be regarded as normative. Sources of International Law: Provenance and Problems (Higgins, Chapter 2) •

This chapter will deal with the following questions: a. Where do we find the substance of international law (IL)? b. What constitutes international law? c. What is the difference between a political proposal and a binding rule? What we are concerned with in this chapter is the "identification” of international law. This latter topic is commonly termed “sources of international law'. It is really all about the provenance of norms.

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It is strange that we spend so much time talking about the provenance of the norms that bind the participants in the international legal system. In domestic legal systems the sources of legal obligation are treated in a much more matter-of-fact way: legislation primary or secondary, and, in the common law, judicial decisions, are the sources. But we have become so preoccupied with jurisprudential debate about the sources of international law that we have lost sight of the fact that it is an admission of an uncertainty at the heart of the international legal system, uncertainty as to how we identify norms. The question of sources is thus of critical importance.

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Starting point for the discussion of sources: Article 38 (i) of the Statute of the International Court of Justice:

(b)international custom as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

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It is interesting that the route to the identification of sources is via an identification of what rules the ICJ will apply in resolving legal disputes. This has led some writers to contend that international law is defined as that which the Court would apply in a given case. Higgins finds this too narrow. For her, international law has to be identified by reference to what the actors (most often states), often without benefit of pronouncement by the ICJ, believe normative in their relations with each other.

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Custom

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Article 38 of the Statute contains the injunction that the Court should apply 'international custom, as evidence of a general practice accepted as law'. This formulation speaks of custom as evidence of a practice. Yet it is generally accepted that it is custom that is the source to be applied, and that it is practice which evidences custom. But practice by itself is not evidence of the existence of a custom— the norm must be 'accepted as law'. Thus, Article 38 could more correctly have been phrased to read 'international custom as evidenced by a general practice accepted as law'. In fact, this is the way the clause is interpreted in practice.

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One of the special characteristics of international law is that violations of law can lead to the formation of new law. Whether one believes that international law consists of rules that have been derived from consent or natural law; or whether international law is a process of decision-making, with appropriate reliance on past trends of decision-making in the light of current context and desired outcomes, there still remains the question of how the 'rules' or the 'trend of decision' change through time. And, in so far as these rules or trends of decisions are based on custom, then there is the related question of what legal significance is to be given to practice that is inconsistent with the perceived rules or trends of decision.

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* bok * cj * tiff * Gem * tin * o For rule-based international lawyers (even to non-lawyers, int’l relations students, and a guy named Georg Schwarzenberger), repeated violations of these rules is a reflection of the reality that at the end of the day international law is dependent upon power: and, if there is a divergence between the two, it is power politics that will prevail. From this perspective, thee reality is that there continue in existence certain rules which regrettably are widely disobeyed, and it is the task of the international lawyer to point to the existence of these rules and to take every opportunity to urge compliance with them—even if the battle against power politics takes very many years.

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For those who view IL as process-based, that which we describe as law is the confluence of authority and control. Where there is substantial non-compliance, over a period of time, the norms concerned begin to lose their normative character. What has been lost is the community expectation that claimed requirements of behaviour reflect legal obligation. But even for them, there are some difficult questions. What exactly causes a norm to lose its quality as law? Conceptually, this question is the same as that to be put regarding the formation of custom. To ask what is evidence of practice required for the loss of obligatory quality of a norm is the mirror of the evidence of practice required for the formation of the norm in the first place. If a customary rule loses its normative quality when it is widely ignored, over a significant period of time, does this not lead to a relativist view of the substantive content of international Iaw, with disturbing implications? Consider the following possibilities: (a) In the South West Africa Cases, South Africa argued that there was not in reality any norm of non-discrimination, as— regardless of the way states voted on resolutions on this issue —the great majority of states routinely discriminated against persons of colour. This argument really arose in the context of whether a norm of non-discrimination had ever developed and come into existence. (b) On genocide: all states agree that IL prohibits genocide (and that this total prohibition is today rooted in customary international law and not just in treaty obligations). So what if some states from time to time engage in genocide? Here we may safely answer that genocide, while it sometimes occurs and while its very nature make all norm compliance shocking, is certainly not the majority practice. The customary law that prohibits genocide remains intact, notwithstanding appalling examples of non-compliance. (c) On torture: No one doubts that there exists a norm prohibiting torture. No state denies the existence of such a norm. But it is equally clear from, for example, the reports of

4 Amnesty International, that the great majority of states systematically engage in torture. If one takes the view that noncompliance is relevant to the retention of normative quality, are we to conclude that there is not really any prohibition of torture under customary international law? ICJ said in Nicaragua v. United States, when determining the law on intervention and permitted use of force: If state acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attribute is to confirm rather than to weaken the rule. o

For those who do not view matters from the perspective of the battle between 'legal rules' and 'power politics', this last type of example presents very real difficulties. Tne answer seems to have been found by some in embracing, if not a hierarchical normativity, then a weighted normativity. Oscar Schachter says, “The rules against aggression and on self-defence are not just another set of international rules. They have a "higher normativity", a recognised claim to compliance that is different from the body of international law rules.” Essentially, the argument seems to be that, if these are not treated as 'rules of higher normativity' than ordinary rules, then they cannot be treated differently from ordinary rules so far as the evidence of practice is concerned; and, if they cannot be treated differently, then disaster will ensue. To assert an immutable core or norms which remain constant regardless of the attitudes of states is at once to insist upon one's own personal values (rather than internationally shared values) and to rely essentially on natural law in doing so. This is a perfectly possible position. Schachter further says that this is why states and tribunals do not question the continued force of those rules because of 'inconsistent or insufficient practice'. He refers to cases of-— genocide and to the killing of prisoners by their captors as not leading to the conclusion that the proscriptions no longer exist.

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Higgins’ approach: To say that the prescriptions against aggression and on self-defence are 'necessary rules of coexistence' and 'principles of minimum world order' is not to render these (rules against genocide, discrimination, torture, prisoners of war) as a species of grundnorm in respect of which the normal requirements of practice do not apply. Nor is the matter disposed of by noting that the prescriptions relating to aggression, use of force, protection of prisoners of war, and genocide are widely regarded as jus cogens. A norm that is jus cogens cannot be limited or derogated from by agreement between states in their relations with each other. I believe that to be exactly because the community as a whole Always will b

* bok * cj * tiff * Gem * tin * regards these norms as of critical importance, such that particular states cannot 'contract out' of them. But that is not to say that these prescriptions would somehow retain their normative quality if the world community as a whole did not regard them as such. The status of norms that we hold dear is to be protected by our efforts to invoke and apply them, in turn ensuring that they do not totally lose the support of the great majority of states. But they cannot be artificially protected through classifying them as rules with a 'higher normativity' which will continue to exist even if we fail to make states see the value of giving such prescriptions a normative quality.

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The answer lies elsewhere. First, we must not lose sight of the fact that it is the practice of the vast majority of states that is critical, both in the formation of new norms and in their development and change and possible death. No special attribution of a 'higher normative status' is needed.

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More difficult is the question of torture, because we are told, by reputable bodies in a position to know, that the majority of states in the world do engage in this repugnant practice. It is at this point that a further factor comes into play. New norms require both practice and opinio juris (the belief that a norm is accepted as law) before they can be said to represent customary international law. And so it is with the gradual death of existing norms and their replacement by others. The reason that the prohibition on torture continues to be a requirement of customary IL, even though widely abused, is not because it has a higher normative status that allows us to ignore the abuse, but because opinio juris as to its normative status continues to exist. No state, not even a state that tortures, believes that the international law prohibition is undesirable and that it is not bound by the prohibition. A new norm cannot emerge without both practice and opinio juris; and an existing norm does not die without the great majority of states engaging in both a contrary practice and withdrawing their opinio juris

5 concentrated focal point for state practice. Here, then, is the reason for looking to United Nations practice in a search for the direction of the development of international law. o

Two points, after 30 years: (a) first is how modest and indeed cautious those views are today, though in 1963 they were regarded as somewhat radical. There is nothing in this approach that suggests a belief in 'instant custom', or that the distinction between decisions and recommendations is to be ignored. The same was said by Judge Tanaka in his dissenting opinion in the South West Africa Cases (1966), that the requirements of custom—practice, repetition, opinio juris—may occur at an accelerated pace in the world of an international organization. But he did not suggest that the mere existence of a resolution obviated the need for these requirements: A State, instead of pronouncing its view to a few States directly concerned, has the opportunity, through the medium of the organization, to declare its position to all members of the organization and to know immediately their reaction on the same matter. In former days, practice, repetition and opinio juris sive necessilatis, which arc the ingredients of customary international law might be combined together in a very long and slow process extending over centuries. In the contemporary age of highly developed techniques of communication and information, the formation of a custom through the medium of international organizations is greatly facilitated and accelerated ... In his dissent in the Continental Shelf Cases, he said that the speed of present communications had 'minimised the importance of the time factor and has made possible the acceleration of the formation of customary international law…’. (b) the views I expressed in 1963 were directed to the place of UN practice in the development of IL. There was in the theoretical analysis virtually no reference to resolutions as such. Resolutions are but one manifestation of state practice. But in recent years there has been an obsessive interest with resolutions as an isolated phenomenon. The political bodies of international organizations engage in debate, etc; in preparing drafts intended for treaties, etc; and in decision/making that may or may not imply a legal view upon a particular issue. Some of these activities may result in resolutions of one sort or another. But the current fashion is often to examine the resolution to the exclusion of all else.

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Binding quality of resolutions

Resolutions of International Organizations o

In 1963, Higgins wrote: The United Nations is a very appropriate body to look to for indications of developments in international law, for international custom is to be deduced from the practice of States, which includes their international dealings as manifested by their diplomatic actions and public pronouncements. With the development of international organizations, the votes and views of States have come to have legal significance as evidence of customary law . . . Collective acts of States, repeated by and acquiesced in by sufficient numbers with sufficient frequency, eventually attain the status of law. The existence of the United Nations—and especially its accelerated trend towards universality of membership since 1955—now provides a very clear, very

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The binding or recommendatory quality of resolutions is closely related to the concept of state consent. But, as was remarked by Sir Kenneth Bailey in 1967: 'To say that a resolution is recommendation only is undoubtedly to assert that Always will b

* bok * cj * tiff * Gem * tin * governments are under no legal obligations to comply with it. Does this relegate General Assembly resolutions wholly to the sphere of moral or legal precepts, with no relevance to law?’ 

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But the passing of binding decisions is not the only way in which law development occurs. Legal consequence can also flow from acts which are not, in the formal sense, 'binding'. And, further, law is developed by a variety of non-legislative acts which do not seek to secure, in any direct sense, 'compliance' from Assembly members; we refer here to the 'law-declaring' activities of the Assembly. Illustrative of the distinction is the Namibia Advisory Opinion: The Court was faced with both General Assembly and Security Council resolutions that purported to terminate South Africa's mandate over South-West Africa. It found the Security Council resolution binding, even though it could not be clearly identified as a traditional 'Chapter 7' resolution; and it found that the General Assembly resolutions, while manifestly not binding, were not without legal effect, given the existence of a right to terminate and the Assembly's constitutional role in monitoring the mandate. ICJ said: ‘It would not be correct to assume that, because the General Assembly is in principle vested with recommendatory powers, it is debarred from adopting, in specific cases within the framework of its competence, resolutions which make determinations or have operative design.’ In some international organizations even the term 'recommendation' in its context sometimes signals more than one would expect from a literal reliance on that word. Thus 'recommendation' may still in context entail a duty of compliance or an obligation to act.

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Further, other recommendations (e.g. those to establish subsidiary bodies) entail financial consequences which are legally incumbent upon all members, whether they voted for them or not. (Illustrative is the ICJ Advisory Opinion on the Expenses Case).

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On the internal and external competence of a UN organ: The travaux have always made clear that “in the course of the operations from day to day of the various organs of the organisation it is inevitable that each organ will interpret such parts of the Charter as are applicable to its particular function”. The repeated practice of the organ, in interpreting the treaty, may establish a practice that, if the treaty deals with makers of general international law, can ultimately harden into custom.

6 Although organ practice may not be good evidence of the intention of the original state parties, it is of probative value as customary law. o

Declaratory Resolutions

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We turn to those activities where the international organization is concerned with general international law rather than its own procedural powers or even the direct interpretation of its own constituent instrument. Prominent among such activities is the passing of resolutions that purport to be declaratory of contemporary international law. Can we reject their legal relevance simply on the ground that they are recommendatory, or incapable of directly binding the membership at large? What status is therefore to be accorded to them?

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Opinions: (a) those who are deeply sceptical, in the generalized fashion, about the relevance of General Assembly resolutions (Judge Sir Gerald Fitzmaurice, Judge Stephen Schwebel, and Sir Francis Vallat, Professors David Johnson and Gaetano Arangio-Ruiz). The Englishmen in this group all arrive at their position primarily by an emphasis in their writings, or judicial decisions, on the recommendatory nature of Assembly resolutions and their inability to bind. Schwebel and Arangio-Ruiz arrive at their position through a different route. They fully accept that resolutions can contribute to the formation of customary international law, but express deep scepticism as to whether this really happens. Arangio-Ruiz says that General Assembly resolutions do not in fact contribute to the evolution of custom because states 'don't mean it'. ‘That is to say, states often don't meaningfully support what a resolution says and they almost always do not mean that the resolution is law.' Schwebel then adds a piercingly important point, agreeing that states 'don't mean it', he says: 'This may be as true or truer in the case of the unanimously adopted resolutions as in the case of majorityadopted resolutions. It may be truer still of resolutions adopted by "consensus". Thus the size of the majority has nothing to do with the intentions of the states voting for it. (b) Those who downplay the significance of Assembly resolutions as non-binding, but accept that it would be wholly exceptional for any single resolution to have normative results. They argue rather that the decentralized method of international law-making can cause the metamorphosis of 'General Assembly recommendations from non-binding resolutions to inchoate normative principles'. Always will b

* bok * cj * tiff * Gem * tin * (c) The radical end, those who invest Assembly resolutions with/considerably greater legal significance (Richard Falk, who wrote of “quasi-legislative competence” in the General Assembly, and Jorge Castaneda, who argued that through its repeated efforts to declare principles of IL, the General Assembly has secured powers beyond the recommendatory powers listed in the UN Charter).

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Issue: When we look at resolutions as a first step in the formation of custom, or as part of the evidence of the existence of general practice, is it enough that we look at the resolutions alone? Schwebel has insisted that, because opinio juris remains a critical element, one must look to see if states 'mean' what they have voted for— and looking at their practice outside the United Nations is one way we can ascertain this. (Illustration: the arbitral award of Professor Dupuy in the Texaco Case. Dupuy was engaged in trying to ascertain whether a resolution expressed a consensus on what was/the existing customary rule.). But one must take care not to use General Assembly resolutions as a shortcut to ascertaining international practice in its entirety on a matter—practice in the larger world arena is still the relevant canvas, although UN resolutions are a part of the picture. Resolutions cannot be a substitute for ascertaining custom; this task will continue to require that other evidences of state practice be examined alongside those collective acts evidenced in General Assembly resolutions. On Security Council Resolutions: Professor Tunkin indicated that decisions of the UN Security Council are not strictly speaking sources of international law. They have an ad hoc effect and may create binding obligations, but they are not sometimes of general applicability. Higgins largely agree with this view, though sometimes the substance of the Security Council work, and the fact that it is legal work repeated year in and year out, makes it engage in the processes of customary development as well as the mere imposing of obligation.

Conclusion: To answer the question “What is the role of resolutions of international organizations in the process of creatjKig norms in the international system?”, look at the following: (a) subject-matter of the resolutions in question (b) whether they are binding or recommendatory (c) at the majorities supporting their adoption (d) at repeated practice in relation to them (e) at evidence of opinio juris.

The Overlap between Treaty and Custom

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7 Provisions formulated in a treaty can in certain circumstances be binding even on states which are not parties to the treaty. This can occur if the provisions articulate what is already customary international law (e.g. Vienna Convention). But some elements of the Vienna Convention represent new law, and those elements are undertaken only by the parties to the Convention. And if a treaty has certain procedural or dispute settlement provisions built into it, a non-party will not be bound by those provisions, even if it is bound by certain substantive norms contained in the treaty, because they are already customary law. Thus, while not being bound by all the particular provisions of the Genocide Convention, no non-ratifying state could claim to be free to commit genocide because was not a party to that legal instrument.

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A much more difficult possibility may occur—namely, that provisions in a treaty are new at the time they are formulated; but that customary international law then develops in such a way as itself to embrace those new norms. (Illustration: North Sea Continental Shelf Cases)

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Case background: The Netherlands and Denmark claimed that the equidistance rule of Article 6 of the 1958 Continental Shelf Convention was binding upon the Federal Republic of Germany (a non-party) as a matter of customary law. The argument was that the equidistance rule of delimitation is, or must now be regarded as involving, a rule that is part of the corpus of general international law; and, like other rules of general or customary international law, binding on the Federal Republic automatically and independently of any specific assent, direct or indirect, given by the latter. Part of the proposition was based on an argument that the equidistance principle had a 'juristic inevitability' in continental-shelf delimitation. But the other part of the Dutch and Danish claim was that the work of international legal bodies, state practice and indeed the influence of the Geneva Convention itself had 'cumulatively evidenced or been creative of the opinio juris sive necessiatis requisite to the formation of new rules of customary international law'. Court concluded that Article 6 'did not embody or crystallize any pre-existing or emerging rule of customary international law', but then moved to see if such a rule had since come into being, 'partly because of its own impact partly on the basis of subsequent state practice—and that this rule, being now a rule of customary international law [is] binding on all states . . .' The Court noted that this would involve treating Article 6 as a norm-creating provision which has constituted the foundation of or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. The Court characterized the Always will b

* bok * cj * tiff * Gem * tin * process as one that is 'perfectly possible', but the result was 'not lightly to be regarded . . as having been attained'. o

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What would be needed for the result to be attained: (a) norm had first to be of a fundamentally norm-creating character. (b) even without the passage of any considerable period of time', a very widespread participation in the Convention might suffice, 'providred it included that of states, whose interests were specially affected'. ('substantial participation by those whose interest are affected', echoed by Dupuy in Texaco vs. Libya) (c) where non-parties applied the equidistance principle, said the Court, 'the basis of their action can only be problematical and must remain entirely speculative'. The Court found there was 'not a "shred of evidence" that they believed themselves to be applying a mandatory rule of international law'. This leads us right back to the problem of evidence for the establishment of custom, and in particular evidence as to opinio juris. And there is a related question: is the evidence of opinio juris the same when the norm tells one what to do (e.g. draw an equidistant line) as when it proscribes certain actions (e.g. do not commit genocide)? We can only say that the sources of international law are not compartmentalized, but do indeed overlap, And it will always be harder to show an emerging mandatory requirement that is obligatory for states than to show an emerging relaxation of a mandatory requirement, upon which states are entitled to rely.

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In so far as a treaty contains provisions not reflective of prior customary international law, it is true, as Fitzmaurice has said, that it provides for an exchange of obligations between the parties. But that does not mean to say that this is therefore not a source of law? It can only mean that Fitzmaurice viewed law as something in respect of which an 'obligation' existed—that is, that 'law' and 'obligation' were two different phenomena. If State A and State B agree upon cultural exchanges, there would be an obligation existing between them, but no law of cultural exchange. What it seems to boil down to is that if obligations are binding only upon parties who agree to them, and no others (because they are new, albeit contained in a treaty), they are not law.

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Law defined as norms of universal application: Professor Tunkin wrote that decisions of the UN Security Council are not strictly speaking sources of international law. They have an ad hoc effect and may create binding obligations but are not of general application beyond the moment and effect to which they are directed. Law defined as the conjoining of authority and law in a particular target: In this view, law embraces obligation, and a Security Council resolution or a treaty commitment is still law for the addressee or ratifying part, and no less so because it is not obligatory on the world at large.

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Sources of Law and Legal Obligations o

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Article 38 of the Statute speaks of general or special conventions as <-source of law. Thus bilateral or multilateral conventions each have a place in the sources of IL. It has been suggested by Fitzmaurice that treaties are not a source of law stricto sensu, but only a source of obligation between the parties. Judge Sir Robert Jennings has spoken of this as an insight whose truth, upon reflection, is apparent. Fitzmaurice's point is general, because he suggested that a treaty either contained already accepted norms, which themselves were thus the source of the law, or contained new provisions, which were an exchange of obligations between the treaty parties. But his observation is particularly striking in relation to bilateral treaties where the rehearsal of existing norms is often relatively muted, and the exchange of new bilateral obligations of behaviour is often particularly marked.

8 If existing norms are repeated in a treaty, an obligation would exist in respect of those norms, even were they not contained in that treaty. But of course multilateral treaties rarely simply repeat existing norms. Sometimes broad norms are filled out as to detail; sometimes existing norms will in a treaty be placed side by side with new norms.

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Looked at from this starting-point, custom is obligation involuntarily undertaken—that is, not based on the consent of any given state, no state has a veto over the emergence of a customary norm, which attains its status as such through repeated practice accomplished by opinio juris.

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Non-opposability: treaty is non-opposable to third parties, unless they accept its terms or unless it is a treaty whose terms a third party inherits by virtue of the law of state succession of treaties. States can also contribute to the formation of customary international law by unilateral practice. 9e.g. Truman Proclamation)

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The role of protest is to slow the formation of the new legal rule, or to prevent a unilateral act from being opposable. But, if a rule of general application does emerge (perhaps because the phenomenon is a more general one, widely practised), then an Always will b

* bok * cj * tiff * Gem * tin * initially protesting state will not remain exempt from the application of the new customary rule.

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To summarize: General IL creates and contains norms which are always obligatory. Treaties, in so far as they repeat the existing norms, create neither the norms nor the obligation. Law-making treaties that seek to develop new norms are both the source of the creation of the norm (though of course one can say the treaty is the vehicle for the consent that created the norm) and the mechanism for making it obligatory upon the ratifying parties. If treaties are concerned with norm-creation or elaboration and obligation, then there are other ways by which obligations simpliciter site undertaken. Thus treaties can be made opposable to a third party, by specific acceptance of their contents or, in certain categories of treaties, by state succession to such a treaty when it has been concluded by a state to which another state succeeds. Unilateral acts will be binding on the state making them only if they evidence an intention to be bound. That is the question of appreciation, on the basis of all the facts and the context. The distinction that has been drawn is between an intention to create a binding obligation, and the expression of a mere political intention. The law can signal the criteria, but the difficult problem of application of the criteria remains and cannot be short-circuited. Sometimes it is suggested that there has been a unilateral assumption of obligations not by statements made, but by virtue of a state's conduct— that is to say, an implicit assumption of obligation. The International Court of Justice has made clear, in the North Sea Continental Shelf Case and elsewhere that the unilateral assumption of obligations by conduct is not 'lightly to be presumed' and a 'very consistent course of conduct' is necessary. Nor is it to be lightly presumed that unilateral acts amount to a waiver of prior claimed rights. To be binding, a unilateral act will require to be a representation of fact or promised conduct, notified to the other party (or at least known by it). A failure to direct the obligation to a specific party will make the assumption of an obligation less likely (Burkina Faso v. Mali Case). The unilateral act may be in oral or written form. Detrimental reliance upon the representation or promise by the addressee of the unilateral representation or promise is frequently referred to in the writings on unilateral acts. But, properly analysed, detrimental reliance seems more relevant to estoppel than to the binding nature of the unilateral act. A unilateral act is either binding or not, depending upon all the circumstances and whether it was intended to create a legal obligation between the parties. It would seem that estoppel through detrimental reliance can operate to prevent such denial even when the unilateral act would not of itself have been regarded as binding. The case law seems tolerably clear that detrimental reliance is distinct from the assumption of legal obligation (e.g. Eastern Greenland case and Nuclear Test case).

9 Less clear is whether detrimental reliance really is required for estoppels to operate, Although the literature generallv assumes this to be a requirement, the case law is more ambiguous.

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Conclusion: Thirlway takes the view that at the end of the day IL is what the International Court of Justice would declare it to be. He cautions against a loose approach to the question of sources. But the reality is that the Court itself often seems to approach the question of sources with a certain looseness. Where the status of a treaty or a resolution at the heart of the very issue under consideration by the Court is invoked, a rather rigorous analysis of its status will ensue. But where resolutions or treaties are invoked somewhat incidentally as evidence of law, a much looser approach will suffice. If IL is what the ICJ is likely to say it will be, then—all the intellectual arguments notwithstanding—the Court, as much as the rest of us, is caught in the psychological moment: resolutions and treaties apparently do matter.

KURODA vs. JALANDONI (MARCH 26, 1949) PETITIONER: SHIGENORI KURODA RESPONDENTS: Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS , MELVILLE S. HUSSEY and ROBERT PORT PONENTE: MORAN, C.J. Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the Philippines during 1943 and 1944, who is now charged before a Military Commission convened by the Chief of Staff of the AFP, with having unlawfully disregarded and failed “to discharge his duties as such commander to control the operations of members of his command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces, in violation of the laws and customs of war”—comes before this Court seeking to establish the illegality of Executive Order No. 68 of the President of the RP; to enjoin and prohibit respondents Hussey and Port from participating in the prosecution of petitioner’s case before the Military Commission; and to permanently prohibit respondents from proceeding with the case of petitioner. In support of his case, petitioner tenders the following principal arguments: First.—“That EO No. 68, establishing the National War Crimes Office is illegal on the ground that it violates not only the provisions of our constitutional law but also our local laws, to say nothing of the fact (that) the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and, therefore, petitioner is charged of ‘crimes’ not based on law, national and international.” Hence, petitioner argues-“That in view of the fact that this commission has been organized by virtue of an unconstitutional law and an Always will b

* bok * cj * tiff * Gem * tin * illegal order, this commission is without jurisdiction to try the case of the petitioner.” Second.-That the participation in the prosecution of the case against petitioner before the Commission in behalf of the United States of America, of attorneys Hussey and Port, who are not attorneys authorized by the Supreme Court to practice law in the Philippines, is a diminution of our personality as an independent state, and their appointments as prosecutors are a violation of our Constitution for the reason that they are not qualified to practice law in the Philippines. Third.-That Attorneys Hussey and Port have no personality as prosecutors, the United States not being a party in interest in the case. ISSUE 1: WON EO 68 is CONSTITUTIONAL. HELD: YES. IT IS VALID & CONSTITUTIONAL RP CONSTI ADOPTS THE GENERALLY ACCEPTED PRINCIPLES OF INT’L LAW AS PART OF THE LAW OF THE NATION. EO68 and prescribing rules and regulations governing the trial of accused war criminals, was issued by the President of the Philippines on the 29th day of July, 1947. This Court holds that this order is valid and constitutional. Art. 2 of our Constitution provides in its section 3, that “The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation.” RP PRESIDENT ACTED IN ACCORDANCE WITH PRINCIPLES OF INT’L LAW. In accordance with the generally accepted principles of int’l law of the present day, including the Hague Convention, the Geneva Convention and significant precedents of international jurisprudence established by the United Nations, all those persons, military or civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto, in violation of the laws and customs of war, of humanity and civilization, are held accountable therefor. Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of the Philippines has acted in conformity with the generally accepted principles and policies of international law which are part of our Constitution. EXERCISE OF COMMANDER-IN-CHIEF POWERS. The promulgation of said EO is an exercise by the President of his powers as Commander in Chief of all our armed forces, as upheld by this Court in the case of Yamashita when we said “War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of war may remain pending which should be disposed of as in time of war. ‘An important incident to a conduct of war is the adoption of measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war.’ Indeed, the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war. And, in the language of a writer, a military commission ‘has jurisdiction so long as a technical state of war continues. This includes the

10 period of an armistice, or military occupation, up to the effective date of a treaty of peace, and may extend beyond, by treaty agreement.’ (Cowles, Trial of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944.)” Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect of war, namely, the trial and punishment of war criminals, through the issuance and enforcement of Executive Order No. 68. ISSUE 2: WON THE MILITARY COMMISSION HAS JURISDICTION TO TRY KURODA FOR ACT COMMITTED IN VIOLATION OF THE HAGUE & GENEVA CONVENTION EVEN IF AT THE TIME THE ALLEGED ACTS WERE COMMITTED RP WAS NOT YET A SIGNATORY. HELD: YES. THEY HAVE JURISDICTION. THE RULES & REGULATIONS OF THE HAGUE AND GENEVA CONVENTIONS FORM PART OF AND ARE WHOLLY BASED ON THE GENERALLY ACCEPTED PRINCIPLES OF INT’L LAW. Even if RP is not a signatory to the Hague Conv. and signed the Geneva Conv. only in 1947, it can’t be denied that the rules and regulations of the Hague and Geneva conv. form part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by the 2 belligerent nations, US and Japan, who were signatories to the 2 Conventions. Such rules and principles, therefore, form part of the law of our nation even if RP was not a signatory to the conventions embodying them, for our Consti has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory. EQUALLY BOUND TOGETHER WITH THE US AND WITH JAPAN. Furthermore, when the crimes charged against petitioner were allegedly committed, the Philippines was under the sovereignty of the US, and thus we were equally bound together with the US and with Japan, to the rights and obligations contained in the treaties between the belligerent countries. These rights and obligations were not erased by our assumption of full sovereignty. If at all, our emergence as a free state entitles us to enforce the right, on our own, of trying and punishing those who committed crimes against our people. In this connection, it is well to remember what we have said in the case of Laurel vs. Misa (76 Phil., 372): “… The change of our form of government from Commonwealth to Republic does not affect the prosecution of those charged with the crime of treason committed during the Commonwealth, because it is an offense against the same government and the same sovereign people...” By the same token, war crimes committed against our people and our government while we were a Commonwealth, are triable and punishable by our present Republic. ISSUE 3: WON THE 2 AMERICAN LAWYERS MAY PARTICIPATE IN THE PROSECUTION. HELD: YES. MILITARY COMMISSION IS A SPECIAL MILITARY TRIBUNAL GOVERNED BY A SPECIAL LAW AND NOT BY THE RULES OF COURT. The participation of Always will b

* bok * cj * tiff * Gem * tin * two American attorneys, Hussey and Port, in the prosecution the case was questioned on the ground that said attorneys are not qualified to practice law in the RP in accordance with our Rules of Court and the appointment of said attorneys as prosecutors is violative of our national sovereignty. The Court did not agree since the Military Commission is a special military tribunal governed by a special law and not by the Rules of Court which govern ordinary civil courts. It has already been shown that EO 68 which provides for the organization of such military commissions is a valid and constitutional law. There is nothing in said executive order which requires that counsel appearing before said commissions must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In fact, it is common in military tribunals that counsel for the parties are usually military personnel who are neither attorneys nor even possessed of legal training. APPLICATION OF PRINCIPLE OF COMITY. The appointment of the two American attorneys is not violative of our national sovereignty. It is only fair and proper that the US, which has submitted the vindication of crimes against her government and her people to a tribunal of our nation, should be allowed representation in the trial of those very crimes. If there has been any relinquishment of sovereignty, it has not been by our government but by the US Government which has yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of comity is to allow them representation in said trials. U.S. IS A PARTY-IN-INTEREST. Alleging that the US is not a party in interest in the case, petitioner challenges the personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the United States and its people have been equally, if not more greatly, aggrieved by the crimes with which petitioner stands charged before the Military Commission. It can be considered a privilege for our Republic that a leader nation should submit the vindication of the honor of its citizens and its government to a military tribunal of our country. DISPOSITION: The Military Commission having been convened by virtue of a valid law, with jurisdiction over the crimes charged which fall under the provisions of Executive Order No. 68, and having jurisdiction over the person of the petitioner by having said petitioner in its custody, this Court will not interfere with the due processes of such Military Commission. Paras, Feria, Pablo, Bengzon, Briones, Tuason, Montemayor, and Reyes, JJ., concur. PERFECTO. J., Dissenting: (his opinion contained a copy of E.O. No. 68, refer to the orig.) A military commission was created on December 1, 1948, to try Lt. Gen. Kuroda for violation of the laws and customs of land warfare. Hussey and Port, American citizens and not authorized by the SC to practice law, were appointed prosecutors representing the American CIC in the trial of the case.The charges against

11 petitioner has been filed since June 26, 1948, in the name of the People of the Philippines as accusers. HUSSEY & PORT CAN’T NOT APPEAR AS PROSECUTORS. There could not be any question that said persons cannot appear as prosecutors in petitioner’s case, as with such appearance they would be practicing law against the law. THE LEGISLATIVE POWER IS TO BE EXERCISED EXCLUSIVELY BY CONGRESS. EO 68 is a veritable piece of legislative measure, without the benefit of congressional enactment. The Constitution provides: “The Legislative powers shall be vested in a Congress of the Philippines, which shall consist of a Senate and a House of Representatives.” (Section 1, Article VI.) While there is no express provision in the fundamental law prohibiting the exercise of legislative power by agencies other than Congress, a reading of the whole context of the Constitution would dispel any doubt as to the constitutional intent that the legislative power is to be exercised exclusively by Congress, subject only to the veto power of the President of the Philippines, to the specific provisions which allow the President of the Philippines to suspend the privileges of the writ of habeas corpus and to place any part of the Philippines under martial law, and to the rule-making power expressly vested by the Constitution in the Supreme Court. There cannot be any question that the members of the Constitutional Convention were believers in the tripartite system of government as originally enunciated by Aristotle. Because the powers vested by our Constitution to the several departments of the government are in the nature of grants, not a recognition of pre-existing powers, no department of government may exercise any power or authority not expressly granted by the Constitution or by law by virtue of express authority of the Constitution. EO 68 IS ESSENTIALLY LEGISLATIVE. Executive Order No. 68 establishes a National War Crimes Office, and the power to establish government office is essentially legislative.The order provides that persons accused as war criminals shall be tried by military commissions. Whether such a provision is substantive or adjective, it is clearly legislative in nature. It confers upon military commissions jurisdiction to try all persons charged with war crimes. The power to define and allocate jurisdiction for the prosecution of persons accused of any crime is exclusively vested by the Constitution in Congress. It provides rules of procedure for the conduct of trials. This provision on procedural subject constitutes a usurpation of the rule-making power vested by the Constitution in the Supreme Court. It authorizes military commissions to adopt additional rules of procedure. If the President of the Philippines cannot exercise the rule-making power vested by the Constitution in the Supreme Court, he cannot, with more reason, delegate that power to military commissions. It appropriates the sum of P700,000 for the expenses of the National War Crimes Office established by the said Executive Order No. 69. This constitutes another usurpation of legislative power as the power to vote appropriations belongs to Congress. Executive Order No. 68, is, therefore, null and void, because, through it, the President of the Philippines usurped powers expressly vested by the Constitution in Congress and in the Supreme Court. Always will b

* bok * cj * tiff * Gem * tin * EMERGENCY POWERS GRANTED TO THE PRES. BY COMMONWEALTH ACT NO. 600, AS AMENDED BY COMMONWEALTH ACT NO. 620, AND COMMONWEALTH ACT NO. 671 CANNOT BE INVOKED. Challenged to show the constitutional or legal authority under which the President of the Philippines issued Executive Order No. 68, respondents could not give any definite answer. They attempted, however, to suggest that the President of the Philippines issued Executive Order No. 68 under the emergency powers granted to him by Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, and Commonwealth Act No. 671 [empowering the President to declare a State of Emergency during a period of war and authorizing him to promulgate rules] (refer to original for copy of said laws.) The Acts cannot validly be invoked, because they ceased to have any effect much before Executive Order No. 68 was issued on July 29, 1947. Said Acts had elapsed upon the liberation of the Philippines from the Japanese forces or, at the latest, when the surrender of Japan was signed in Tokyo on September 2, 1945. Ssaid measures were enacted by the Second National Assembly for the purpose of facing the emergency of an impending war and of the Pacific War that finally broke out with the attack of Pearl Harbor on December 7, 1941. We approved said extraordinary measures, by which, under the exceptional circumstances then prevailing, legislative powers were delegated to the President of the Philippines, by virtue of the following provisions of the Constitution: “In times of war or other national emergency, the Congress may by law authorize the President, for a limited period and subject to such restrictions as it may prescribe, to promulgate rules and regulations to carry out a declared national policy.” (Article VI, section 26.) It has never been the purpose of the National Assembly to extend the delegation beyond the emergency created ‘by the war, as to extend it farther would be violative of the express provisions of the Constitution. We are of the opinion that there is no doubt on this question; but if there could still be any, the same should be resolved in favor of the presumption that the National Assembly did not intend to violate the fundamental law. Only a few months after liberation and even before the surrender of Japan, or since the middle of 1945, the Congress started to function normally. The President still exercising legislative power in the form of executive orders, under the so-called emergency powers would lead to a situation pregnant with dangers to peace and order, to the rights and liberties of the people, and to Philippine democracy. VIOLATIVE OF DUE PROCESS & EQUAL PROTECTION. EO No. 68 is equally offensive to the Constitution because it violates the fundamental guarantees of the due process and equal protection of the law. It is especially so, because it permits the admission of many kinds of evidence by which no innocent person can afford to get acquittal, and by which it is impossible to determine whether an accused is guilty or not beyond all reasonable doubt. The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulations governing the trial of twelve criminals, issued by General Douglas MacArthur, Commander in Chief of the United States Armed Forces in Western Pacific, for the purpose of trying, among others, Generals Yamashita and Homma. What we said in our concurring

12 and dissenting opinion to the decision promulgated in the Yamashita case, and in our concurring and dissenting opinion to the resolution disposing the Homma case, are perfectly applicable to the offensive rules of evidence embodied in EO 68. Said rules of evidence are repugnant to conscience as under them no justice can be expected. For all the foregoing, conformably with our position in the Yamasita and Homma cases, we vote to declare Executive Order No. 68 null and void and to grant the petition. Petition denied. YAMASHITA vs. STYER (Dec. 19, 1945) Petitioner: Tomoyuki Yamashita Respondent: Wilhelm D. Styer, Commanding General, United States Army Forces, Western Pacific Nature: Original action in the Supreme Court. Habeas corpus and prohibition. Ponente: Moran, C.J. PETITION FOR HABEAS CORPUS, PROHIBITION. Tomoyuki Yamashita was former commanding general of the 14th army group of the Japanese Imperial Army in the Philippines, and now charged before an American Military Commission (MC) with the most monstrous crimes ever committed against the Americans and Filipinos. This is his petition for habeas corpus and prohibition against Lt. Gen. Wilhelm D. Styer. Yamashita became a prisoner of war (POW) of the US when he surrendered, but his status was later changed when he was confined as an accused war criminal charged before an MC constituted by Styer; and he now asks that he be reinstated to his former POW status, and that the MC be prohibited from further trying him, upon the following grounds: (1) That the MC was not duly constituted, and, therefore without jurisdiction; (2) That the Philippines cannot be considered as an occupied territory, and the MC cannot exercise jurisdiction therein; (3) That Spain, the "protecting power" of Japan, has not been given notice of the impending trial against Yamashita, contrary to the provisions of the Geneva Convention of July 27, 1929, and therefore, the MC has no jurisdiction to try him; (4) That there is against him no charge of an offense against the laws of war; and (5) That the rules of procedure and evidence under which the MC purports to be acting denied him a fair trial. ISSUE: WON his petition for habeas corpus is tenable. HELD: NO. Habeas corpus improper when release isn’t sought. His petition seeks no discharge from confinement but merely his restoration to his former POW status to be interned, not confined. The relative difference as to the degree of confinement in such cases is a matter of military measure, disciplinary in character, beyond the jurisdiction of civil courts. ISSUE: WON his petition for prohibition against Styer will prosper. Always will b

* bok * cj * tiff * Gem * tin * HELD: NO. PROHIBIYION CAN’T ISSUE VS 1 NOT MADE A PARTY. Neither may the petition for prohibition prosper. The MC is not made party respondent in this case, and although it may be acting, as alleged, without jurisdiction, no order may be issued in these proceedings requiring it to refrain from trying Yamashita. CIVIL COURTS WITHOUT JURISDICTION OVER US ARMY DURING WAR. Furthermore, this Court has no jurisdiction to entertain the petition even if the commission be joined as respondent. As held in Raquiza vs. Bradford, “"…an attempt of our civil courts to exercise jurisdiction over the US Army before such period (state of war) expires, would be considered as a violation of this country's faith…" especially as here the person confined is an enemy charged with the most heinous atrocities committed against Americans and Filipinos. There is some doubt as to whether war has already ended. War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of war may remain pending which should be disposed of as in time of war. As held in Ex parte Quirin (note – a US case), "an important incident to a conduct of war is the adoption of measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war." Indeed, the power to create a MC for the trial and punishment of war criminals is an aspect of waging war. And a MC "has jurisdiction so long as a technical state of war continues. This includes the period of an armistice, or military occupation, up to the effective date of a treaty of peace, and may extend beyond, by treaty agreement." (Cowles, Trial of War Criminals by Military Tribunals.) ISSUE: WON the MC has jurisdiction. HELD: YES. THE PAYOMO DOCTRINE As held in Payomo vs. Floyd, and this is applicable in time of war as well as in time of peace, this Court has no power to review upon habeas corpus the proceedings of a military or naval tribunal, and that, in such case, "the single inquiry, the test, is jurisdiction. That being established, the habeas corpus must be denied and the petitioner remanded." (In re Grimley – also a US case). Following this rule, we find that the MC has been validly constituted and it has jurisdiction both over the person of the petitioner and over the offenses with which he is charged. MILITARY COMMANDERS WITH POWER OVER MILITARY COMMISSIONS. The Commission has been validly constituted by Styler by order duly issued by Gen. Douglas MacArthur, Commander in Chief, US Army Forces, Pacific, in accordance with authority vested in him. Under paragraph 356 of the Rules of Land Warfare, a MC for the trial and punishment of war criminals must be designated by the belligerent. And the belligerent's representative here is none other than Gen. MacArthur. Articles of War Nos. 12 and 15 recognize the MC appointed by military command as an appropriate tribunal for the trial and

13 punishment of offenses against the law of war not ordinarily tried by court martial. Under the laws of war, a military commander has an implied power to appoint and convene a MC. This is upon the theory that since the power to create a MC is an aspect of waging war, Military Commanders have that power unless expressly withdrawn from them. JURISDICTION OF THE MC. The MC thus duly constituted has jurisdiction both over the person of Yamashita and over the offenses with which he is charged. It has jurisdiction over his person by reason of his having fallen into the hands of the US Army Forces. Under paragraph 347 of the Rules of Land Warfare, "the commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall." As to the jurisdiction of the MC over war crimes, the US SC said in Ex Parte Quirin: "From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of MCs to try persons and offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals." Yamashita is charged before the MC sitting at Manila with having permitted members of his command "to commit brutal atrocities and other high crimes against the people of the US and of its allies and dependencies, particularly the Philippines," (i.e. cruel and brutal massacre of civilians, devastation and destruction of properties). These are offenses against the laws of war as described in paragraph 347 of the Rules of Land Warfare. ISSUE: WON the Philippines is an occupied territory of the US. HELD: YES. AN OCCUPIED TERRITORY. According to the Regulations Governing the Trial of War Criminals in the Pacific, "the MC shall have jurisdiction over all of Japan and other areas occupied by the armed forces….” The US Forces have occupied the Philippines for the purpose of liberating the Filipino people from the shackles of Japanese tyranny, and the creation of a MC for the trial and punishment of Japanese war criminals is an incident of such war of liberation. ISSUE: WON notice to Spain is required. HELD: NO.

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* bok * cj * tiff * Gem * tin * NOTICE NOT A PREREQUISITE. The Geneva Convention does not state that notice is a prerequisite to the jurisdiction of MCs appointed by the victorious belligerent. However, the unconditional surrender of Japan and her acceptance of the terms of the Potsdam Ultimatum are a clear waiver of such a notice. Also Spain has severed her diplomatic relations with Japan because of atrocities committed by the Japanese troops against Spaniards in the Philippines. Apparently, therefore, Spain has ceased to be the protecting power of Japan. ISSUE: WON Yamashita was denied a fair trial. HELD: This issue cannot be reviewed in a petition for habeas corpus. PROCEDURE, NOT PROPER. The supposed irregularities committed by the MC in the admission of allegedly immaterial or hearsay evidence cannot divest the commission of its jurisdiction and cannot be reviewed in a petition for habeas corpus. For all the foregoing, petition is hereby dismissed, without costs. Jaranilla, Feria, De Joya, Pablo, Hilado, Bengzon, and Briones, J.J., concur. PARAS, J. I concur in the result. OZAETA, J., concurring and dissenting: LEGALLY CONSTITUTED THUS WITH JURISDICTION. I concur in the dismissal of the petition for habeas corpus and prohibition on the ground that the MC trying Yamashita has been legally constituted, and that such tribunal has jurisdiction to try and punish him for offenses against the law of war. (Ex parte Quirin) RAQUIZA INAPPLICABLE. I dissent from that portion of the opinion which cites and applies its decision in Raquiza, to the effect that an attempt of our civil courts to exercise jurisdiction over the US Army would be considered a violation of this country's faith. The decision in Raquiza, from which I dissented, was based mainly on the case of Coleman vs. Tennessee in which was mentioned merely by way of argument the rule of international law to the effect that a foreign army, permitted to march through a friendly country to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place. After reviewing the facts and the ruling of the court in the Coleman case, I said in my dissent: "Thus it is clear that the rule of international law above mentioned formed no part of the holding of the court in the said case… Neither can such rule of international law of itself be applicable to the relation between the Philippines and the US, for the reason that the former is still under the sovereignty of the latter. The US Army is not foreign to the Philippines. It is here not by permission or invitation of the Philippine Government but by right of sovereignty of the US over the Philippines... The US has the same obligation to defend and protect the Philippines, as it has to defend and protect Hawaii or California, from foreign invasion. The citizens of the

14 Philippines owe the same allegiance to the USA as the citizens of any territory or State of the Union." The rule of international law mentioned in the Coleman case and erroneously applied by analogy in the Raquiza case, has likewise no application whatever to the case at bar. PERFECTO, J., concurring and dissenting: (From the reviewer: according to Justice Perfecto, the legal basis is customary international law, specifically IHL  the laws and customs of warfare.) YAMASHITA SURRENDERS. Before Sept. 3, 1945, Yamashita was the commanding general of the 14th Army Group of the Imperial Japanese Army in the Philippines. On said date, he surrendered to the US Army at Baguio and became a POW of the US and was interned in New Bilibid Prison, in conformity with the provision of article 9 of the Geneva Convention, relative to the treatment of POWs, and of paragraph 82 of the Rules of Land Warfare of the United States War Department. WAR CRIMINAL. On Oct. 2, Styer charged Yamashita for violation of the laws of war, and it was alleged that between Oct. 9, 1944 to Sept. 2, 1945, Yamashita while commander of the armed forces of Japan, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against the Americans and their allies, particularly the Filipinos. Thus Yamashita lost his POW status and was confined as an accused war criminal. MILITARY COMMISSION. On Oct. 1, 1945, a MC was appointed to try Yamashita. At the same time several officers were designated to conduct the prosecution and several others to act as defense counsel. The MC was instructed to follow the provisions of the Sept. 24, 1945 letter, and was empowered to "make such rules for the conduct of the proceedings as it shall deem necessary for a full and fair trial of the person before it. Such evidence shall be admitted as would, in the opinion of the president of the commission, have probative value to a reasonable man and is relevant and material to the charges before the commission…” On the same day, by command of Gen. MacArthur, Styer was instructed to immediately proceed with Yamashita’s trial. Upon arraignment on Oct. 8, Yamashita entered a plea of not guilty. The bill of particulars, along with the supplemental bill of particulars, imputed 123 crimes to Yamashita. On Oct. 19, the defense filed a motion to dismiss the case as the charge "fails to state a violation of the laws of war by the accused, and that the commission has no jurisdiction to try this cause." This was denied. TRIAL. On the first day of trial, the prosecution offered in evidence an affidavit of Naukata Utsunomia executed on Oct. 1 and subscribed and sworn to before Captain Jerome Richard. The defense objected to the admission of the affidavit, invoking to said effect article 25 of the Articles of War prohibiting the introduction of depositions by the prosecution in a capital case in proceedings before a court martial or a MC. Hearsay evidence was also offered, but the defense’s objection to this was overruled. The defense counsel alleged then that the admission of Always will b

* bok * cj * tiff * Gem * tin * hearsay evidence was against Article of War 38, the manual for courts-martial, and the rules of evidence in criminal cases in the district courts of the US. Yamashita alleges that violations of legal rules of evidence have continued and are continuing during the trial. At the opening of the trial, "the prosecution stated that no notice of impending trial had been given the protecting power of Japan by the United States," such notice being required by article 60 of the Geneva Convention and of paragraph 133 of the Rules of Land Warfare, US War Department. Yamashita maintains that his confinement and trial as a war criminal are illegal and in violation of articles 1 and 3 of the Constitution of the US and its Fifth Amendment, and article 3 of the Constitution of the Philippines, and of certain provisions of the Geneva Convention. ISSUE: WON Yamashita’s rights are violated by his prosecution (he is deprived of his rights in this proceeding). HELD: NO. POWS SUBJECT TO LAWS IN FORCE IN DETAINING ARMY. The Rules of Land Warfare provide that "at the opening of a judicial proceeding directed against a POW the detaining power shall advise the representative of the protecting power thereof as soon as possible, and always before the date set for the opening of the trial.” Article VIII of the Convention respecting the laws and customs of war on land provides: "POWs shall be subject to the laws, regulations, and orders in force in the army of the State into whose hands they have fallen." Section 59 of General Orders No. 100, containing instructions for the government of US armies in the field provides: "A POW remains answerable for his crimes committed against the captor's army or people, committed before he was captured, and for which he has not been punished by his own authorities." HUMANE TREATMENT OF PRISONERS FROM ANCIENT GREECE, ROME. Many of the basic ideas which prevail today in the customs and usages of nations and became part of the international law emerged from the human mind centuries before the Christian Era. Such is the idea that prisoners of war are entitled to humane treatment, that treasons of war should be discountenanced, and that belligerents must abstain from causing harm to non-combatants. Some examples: In 427 B.C., when Alcibiades killed most of his captives including those who haven’t been in open hostilities against him, the Samian exiles remonstrated him. When the Mytileneans revolted from Athens, while an assembly initially ordered the Mytilenean males be killed, this was later revoked. Greeks did much to humanize warfare and to remove it from the atrocities which prevailed amongst the most of the nations of antiquity. The Roman policy was less rigorous than the Greeks. As stated by Virgilius, "the Roman policy from the first was, on the one hand, debellare super boo, to subdue the proud and arrogant peoples and, on the other, parcellare subiectes, to spare those who have submitted." A rule existed in Rome which prohibited the killing or enslaving of men captured in conquered cities, and the devastation of the territories. Poets,

15 philosophers, artists, and men of intellectual distinction in general, though regarded as enemies, were honored and respected. Temples, priest, and embassies were considered inviolable. The right of sanctuary was universally recognized. Mercy was shown to suppliant and helpless captives. Safe-conducts were granted and respected. Burial of dead was permitted, and graves were unmolested. It was considered wrong to cut off or poison the enemy's water supply, or to make use of poisonous weapons. ENTITLED TO ALL GUARANTEES ACCORDED TO PRISONERS. Impelled by irrepressible endeavors aimed towards the ideal, by the unconquerable natural urge for improvement, by the unquenchable thirstiness of perfection in all orders of life, humanity has been struggling during the last two dozen centuries to develop an international law which could answer more and more faithfully the demands of right and justice as expressed in principles which, weakly enunciated at first in the rudimentary juristic sense of peoples of antiquity, by the inherent power of their universal appeal to human conscience, at last were accepted, recognized, and consecrated by all the civilized nations of the world. Under these principles, Yamashita is entitled to be accorded all the guarantees, protections, and defenses that all prisoners should have, according to the customs and usages, conventions and treaties, judicial decisions and executive pronouncements, and generally accepted opinions of thinkers, legal philosophers and other expounders of just rules and principles of international law. The seriousness or unfathomable gravity of the charges against him must not be taken into consideration in order that true justice may be administered in this case. TREATMENT OF WAR CRIMINALS. "There is very little limitation on what a victorious nation can do with a vanquished State at the close of a war. One shudders to think what Germany and Japan would do if they were the victors! But the common law of nations probably requires a fair trial of offenders against war law as a prerequisite to punishment for alleged offenses; and the Geneva Convention so prescribed in the case of POWs. But in the final analysis a decent respect for the opinion of mankind and the judgment of history is, in effect, a victorious belligerent's main limitation on its treatment of the surrendered at the close of a war; and this is self-imposed.” (Sheldon Glueck, War Criminals). "Formalized vengeance can bring only ephemeral satisfaction, with every probability of ultimate regret; but vindication of law through legal process may contribute substantially to the re-establishment of order and decency in international relations." (Report of the Subcommittee on the Trial and Punishment of War Crimes). “Centuries of civilization stretched between the summary slaying of the defeated in a war, and the employment of familiar process and protections of justice according to law to air the extent and nature of individual guilt … and in the civilized administration of justice, even the most loathsome criminal caught redhanded must be given his day in court and an opportunity to interpose such defenses as he may have." (Sheldon Glueck) TRIAL TO BE HELD WHERE THE ATROCITIES WERE DONE. The vast majority of offenders will be tried in the domestic criminal or military tribunals of the injured nations. President Roosevelt, in condemning the crimes committed against the civil population in occupied lands, announced that "the time will come when the Always will b

* bok * cj * tiff * Gem * tin * criminals will have to stand in courts of law in the very countries which they are now oppressing, and to answer for their acts." INTERNATIONAL TRIBUNAL. At the end of World War I, some American members of the commission on responsibilities opposed the creation of an international high tribunal on the grounds that it was unprecedented and that there existed no international statute or convention making violations of the laws and customs of warfare international crimes, defining such offenses more specifically than the definitions to be found in the prohibitions of the unwritten or written law of nations, affixing a specific punishment to each crime, and giving jurisdiction to a world court. But Dr. Glueck believes that: “Provided the international tribunal affords as adequate a trial as the accused would have had in the court of any injured belligerent, he has no valid ground for complaint… all courts were at one time unprecedented. The problems presented by our epoch are unprecedented… Can history show a better age than our own to initiate a series of much-needed precedents? Few symbols of this new era which heralds the neighborly cooperation of civilized peoples in the vindication of the laws of civilized nations would be more impressive than an international criminal court, in which the plaintiff would be the world community… The international criminal court would be a more vivid symbol of the reign of justice of an international plane than even the permanent court at The Hague has been. In domestic polity, the administration of criminal justice is the strongest pillar of government. The doing of justice on an international plane and under international auspices is even more important. It is indispensable to the survival, in the intercourse of nations, of the very traditions of law and justice… The peerless and efficient administration of justice in the case of Axis war criminals is today indispensable as a token to the peoples of the world, a sign that crimes committed by one country's subject against the people of another member of the family of nations will be relentlessly punished even though they run into huge numbers, were committed by men in uniform, and are instigated by a Fuehrer endowed by himself and his intoxicated followers with the attributes of a demigod." "Adequate law for use by an international court now exists; and its enforcement by such a tribunal would violate no fundamental tenets of civilized nations. The law for an international tribunal can be drawn from the rich reservoirs of common and conventional law of nations and the principles, doctrines, and standards of criminal law that constitute the common denominator of all civilized penal codes… The punishment … to be imposed by the international tribunal could be based either upon the punishments permitted by the law of nations in the case of piracy and violations of the laws and customs of warfare or upon those provided for crimes of similar nature and gravity by the law of the accusing State, taking into account, also, where necessary in individual instances, the law of the defendant's States." ISSUE: WON Yamashita is charged with offenses against the laws of war. HELD: YES.

16 NO SURPRISE. Yamashita cannot allege ignorance of the fact that the criminal acts alleged in the specified charges against him are punishable by law, even in Japan. Since 1882 the Japanese Government had been enforcing a Criminal Code based on the Code of Napoleon of 1811, which punishes arson, rape, and murder/homicide. These offenses and many others, punished by our Penal Code, are known to the Japanese as crimes. WHAT ARE WAR CRIMES. From the Lauterpacht edition of Oppenheim's International Law: "SEC. 251. … war crimes are such hostile or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders. They include acts contrary to International Law perpetrated in violation of the law of the criminal's own State… as well as criminal acts contrary to the laws of war committed by order and on behalf of the enemy State. To that extent the notion of war crimes is based on the view that States and their organs are subject to criminal responsibility under International Law. "SEC. 253. The fact that a rule of warfare has been violated in pursuance of an order of the belligerent Government or of an individual belligerent commander does not deprive the act in question of its character as a war crime; neither does it, in principle, confer upon the perpetrator immunity from punishment by the injured belligerent… Undoubtedly, a Court confronted with the plea of superior orders adduced in justification of a war crime is bound to take into consideration the fact that obedience to military orders, not obviously unlawful, is the duty of every member of the armed forces and that the latter cannot, in conditions of war discipline, be expected to weigh scrupulously the legal merits of the order received; that rules of warfare are often controversial; and that an act otherwise amounting to a war crime may have been executed in obedience to orders conceived as a measure of reprisals. Such circumstances are probably in themselves sufficient to divest the act of the stigma of a war crime…However, subject to these qualifications, the question is governed by the major principle that members of the armed forces are bound to obey lawful orders only and that they cannot therefore escape liability if, in obedience to a command, they commit acts which both violate unchallenged rules of warfare and outrage the general sentiment of humanity. To limit liability to the person responsible for the order may frequently amount, in practice, to concentrating responsibility on the head of the State whose accountability, from the point of view of both international and constitutional law, is controversial. "SEC. 257. All war crimes may be punished with death, but belligerents may, of course, inflict a more lenient punishment, or commute a sentence of death into a more lenient penalty. If this be done and imprisonment take the place of capital punishment, the question arises whether persons so imprisoned must be released at the end of the war, although their term of imprisonment has not yet expired. Some answer this question in the affirmative, maintaining that it could never be lawful to inflict a penalty extending beyond the duration of the war. But it is believed that the question has to be answered in the negative. If a belligerent has a right to pronounce a sentence of a capital punishment, it is obvious that he may Always will b

* bok * cj * tiff * Gem * tin * select a more lenient penalty and carry it out even beyond the duration of the war. It would in no wise be in the interest of humanity to deny this right, for otherwise belligerents would be tempted always to pronounce and carry out a sentence of capital punishment in the interest of self-preservation. "SEC. 257a. The right of the belligerent to punish, during the war, such war criminals as fall into his hands is a well-recognized principle of International Law. It is a right of which he may effectively avail himself after he has occupied all or part of enemy territory, and is thus in the position to seize war criminals who happen to be there. He may, as a condition of the armistice, impose upon the authorities of the defeated State the duty to hand over persons charged with having committed war crimes, regardless of whether such persons are present in the territory actually occupied by him or in the territory which, at the successful end of hostilities, he is in the position to occupy. For in both cases the accused are, in effect, in his power. And although normally the Treaty of Peace brings to an end the right to prosecute war criminals, no rule of International Law prevents the victorious belligerent from imposing upon the defeated State the duty, as one of the provisions of the armistice or of the Peace Treaty, to surrender for trial persons accused of war crimes. In this, as in other matters, the will of the victor is the law of the Treaty. It is not to be expected that he will concede to the defeated State the corresponding right to punish any war criminals of the victorious belligerent. The resulting inequality is the unavoidable concomitant of the existing imperfections of international organization and of the institution of war itself. But the victorious belligerent may achieve a substantial approximation to justice by making full provision for a fair trial of the surrendered enemy nationals, and by offering to try before his tribunals such members of his own armed forces as are accused of war crimes. Such conduct may go a long way towards reducing substantially the inequality of treatment as between the victor and the vanquished." LAW OF NATIONS NOT YET A COHERENT, FIXED SYSTEM. The permissible acts of warfare are strictly limited. The treaties entered into between members of the family of nations are but specific definitions and reinforcements of the general common law of nations, the "unwritten" rules of warfare, which for centuries have limited the method and manner of conducting wars. The common law of nations, by which all states are and must be bound, dictates that warfare shall be carried on only in accordance with basic considerations of humanity and chivalry. As Dr. Glueck stated, “the law of nations has a long way to go before it can claim to be a coherent and fixed system. Its relevant tenets were developed under the presupposition that members of the community of nations are governed by selfimposed restraints in accordance with international law; but the emergence of states with a national policy of deliberate lawlessness and with their invasion of 'total war in the service of a program of world enslavement, compels a realistic modification of inadequate doctrines and principles of law.” After the first World War, the recommendation that a high tribunal (which would apply the principles of the law of nations, which is the result of established usages among civilized peoples) which would sentence convicted war criminals to such punishment as could be imposed for the offense by any country represented in the tribunal or by

17 the country of the convicted person. This was rejected as (American and Japanese) representatives asked whether international law recognized a penal law which was applicable to those found guilty. But in the Treaty of Versailles there were inserted the punitive articles recognizing the right of the allies: to bring those accused of violating laws and customs of war before military tribunals; to sentence the guilty to "punishments laid down by law;" and providing for the trial of the accused in military tribunals of the power against whose nationals the alleged crimes were committed. From all the foregoing, with regards to the petition for a writ of habeas corpus, we conclude: (1) That Yamashita, if he is responsible for the acts imputed to him in the charges filed before the MC can properly and justly be prosecuted and punished for them. (2) That the fact that he was the Commander in Chief of a belligerent army does not exempt him from criminal liability either for violations of international law or for the commission of crimes defined and punishable under the laws of the country where committed. (3) That his rights and privileges as a POW, under the Geneva Convention, are not incompatible with not are violated by his prosecution for the international and domestic crimes committed by him. (4) That under the principles of natural law, all persons guilty of such crimes are amenable to be arraigned before a court of justice and, after a fair trial, if found guilty, should bear the full weight of the law. (5) That Yamashita can be prosecuted before the Philippine civil courts in the like manner as a common criminal and be punished under the provisions of the Philippine Penal Code. (6) That the MC set up to try him possesses a jurisdiction which is concurrent with that of the Philippine civil courts, and the choice of the competent tribunal where he should be tried, which is a mere procedural technicality, is left to the wise discretion of the officials in charge of the prosecution. (7) That in violation of the law of nations, the offended party is the people of the whole world, and the case against him could be properly entitled as "Humanity vs. Yamashita," and no person in position to prosecute the violators can honestly shirk the responsibility of relentlessly prosecuting them, lest he be branded with the stigma of complicity. (8) That the absence of a codified International Penal Code or of a criminal law adopted by the comity of nations, with specific penalties for specific and welldefined international crimes, is not a bar to the prosecution of war criminals, as all civilized nations have provided in their laws the necessary punishment for war crimes which, for their very nature, cease to be lawful acts of war, and become ordinary crimes with the extraordinary character of having been committed in connection with war, which should be considered as an aggravating circumstance. ISSUE: WON the SC has jurisdiction to take cognizance of this case. HELD: YES. EXERCISE OF JUDICIAL POWER. The petition pertains to a judicial case wherein justice is to be administered. It is a criminal case initiated for Yamashita’s Always will b

* bok * cj * tiff * Gem * tin * prosecution and punishment. The case calls for the exercise of the judicial power, one of the three government powers. Under the Constitution, judicial power is primarily vested in the Supreme Court, which can exclusively exercise the whole power. But it also authorizes the enactment of laws sharing the power to inferior courts, which include all other courts and tribunals of all description, whether ordinary or extraordinary, whether civil or criminal, whether industrial or military, whether designated as "courts" or simply as "commissions." The Constitution (Art. VIII, Sec. 2) provides that the Congress is powerless to abolish, to review, revise, reverse, modify, or affirm any and all actuations of judicial nature of Styer and the MC before whom Yamashita is tried for his life. In fact, this Court's jurisdiction extends, not only to courts and judicial institutions, but to all persons and agencies which form part of the whole machinery of the administration of justice, in so far as is necessary to the administration of justice. JURISDICTION OVER THE PARTIES. We have jurisdiction over the person Styer, not as to the discharge of his military functions and duties, but regarding his official acts in connection with the administration of justice in the criminal case against Yamashita, and that jurisdiction became effective despite his refusal to sign receipt for the summons and his subordinate officers’ refusal to accept said summons. No one questions our jurisdiction over the person of Yamashita, he having voluntarily submitted himself to it by his petition. With respect to the MC, it is a proper party respondent and Yamashita should have included it as among the party respondents. But this omission is just a technical error of no vital consequence, because under the judicial rules, we can order the inclusion and the summoning of said military commission. Regarding the fear raised by the amicus curiae that this Court’s orders might be disregarded by the concerned military officers (i.e. Styer’s refusal to receive summons), the answer is simple. Quoting Raquiza: “…No one and nothing in the whole world… shall be powerful enough to make us flinch from complying with our plain duty as Justices of the Supreme Court. We must do our duty as our conscience dictates, without fear nor favor. It is our duty to make reason and right supreme, regardless of consequences. Law and justice might suffer setbacks, endure eclipses, but at the end they shall reign with all the splendors of real majesty." We recognize no one to be above the law. Mere military might cannot change and nullify the course of justice. In the long run, everybody must have to bow and prostrate himself before the supreme majesty of the law. ISSUE: WON the petition for habeas corpus is proper. HELD: NO. NOT A PROPER QUESTION. In praying for a writ of habeas corpus, he wants us to order that he be returned from the status of an accused war criminal to that of a POW. He is not seeking release from confinement, thus the petition must be denied. The purpose of the writ is to restore liberty to a person who is being deprived of it without due process of law. Such is not the case here. He does not complain of any illegal detention or deprivation of personal freedom. He is deprived of his liberty because he is, according to his own allegation, a POW. Whether or not he should be accused as a war criminal is not a proper question to

18 be raised in habeas corpus proceeding. The fact that he is an accused war criminal does not change his status as a war prisoner. He remains to be so, whether he is prosecuted as a war criminal or not. Not having lost his status as a war prisoner because he was placed and regarded as a war criminal, there is no reason for ordering his reversion to a status which he did not cease to retain since his surrender or capture. ISSUE: WON the Military Commission has jurisdiction. HELD: YES. MACARTHUR WITH AUTHORITY. The MC conducting the trial has jurisdiction to try him for the crimes alleged in the 123 items in the specified charges filed against him. From Yamashita’s very allegations and exhibits it appears that the MC was created and organized by orders of Gen. MacArthur, who has authority to convene an MC. NOT PREREQUISITES. Yamashita contends that the absence of martial law, military government, and active hostilities in the Philippines means that there was no authority to appoint the MC, thus it lacks jurisdiction. We don’t agree. These are not prerequisites for exercising the power of appointing a MC. In the absence of pre-established tribunals clothed with authority to try war criminals, MCs may be established for said purpose, and, unless organized by the Chief Executive himself, they may be organized by the military Commander in Chief (namely MacArthur), representing the Chief Executive. ISSUE: WON the rules of procedure and evidence followed by the Military Commission denied Yamashita a fair trial. HELD: YES. COLLECTIVE RESPONSIBILITY. Several features of the regulations governing the trial of war criminals must be challenged. Section 4-b on Jurisdiction provides: "Any military or naval unit or any official or unofficial group or organization, whether or not still in existence, may be charged with criminal acts or complicity therein and tried by a Military Commission." This advances the principle of collective responsibility in contrast to the principle of individualized criminal responsibility. Under the principle of individualized criminal responsibility, no person may be convicted of any offense without due process of law and without proving in said process, in which he should also enjoy the guarantee of equal protection of the laws, that he is personally guilty of the offense. Under the principle of collective criminal responsibility, any member of any social group or organization may be convicted without any hearing if, in a process where he did not have his day in court, the social group or any other member thereof is found guilty of an offense (ex. when a barrio was suspected of harboring guerrillas, all the houses were burned).This principle violates the constitutional guarantee of due process of law and, therefore, we should have issued a writ of prohibition enjoining the Military Commission from exercising this unconstitutional jurisdiction. VIOLATE DUE PROCESS, RIGHT TO MEET WITNESSES. Section 16 on Evidence provides what may be admitted as evidence: "Any document which Always will b

* bok * cj * tiff * Gem * tin * appears to the commission to have been signed or issued officially by any officer, department, agency, or member of the armed forces of any government, without proof of the signature or of the issuance of the document." This is a denial of the due process of law constitutionally guaranteed to all persons. The authenticity or genuineness of a document is an essential element before it may be admitted as evidence. Proof of signature or of the issuance of the document is essential to show its genuineness. The following may also be admitted as evidence according to section 16 (3): "Affidavits, depositions, or other statements taken by an officer detailed for that purpose by military authority" And also under 16(4): "Any diary, letter or other document appearing to the commission to contain information relating to the charge.” These are clear violations of the constitutional guarantee that in all criminal prosecutions the accused shall enjoy the right to meet the witnesses face to face. The admission of the evidence above-mentioned must be prohibited, and that a writ of prohibition issued by this Court is a proper remedy. HEARSAY AS EVIDENCE. Section 16-d provides: "If the accused is charged with an offense involving concerted criminal action upon the part of a military or naval unit, or any group or organization, evidence which has been given previously at a trial of any other member of that unit, group or organization, relative to that concerted offense, may be received as prima facie evidence that the accused likewise is guilty of that offense." In section 16-e, the objectionable feature of a hearsay evidence is aggravated by the adherence to the principle of collective criminal responsibility. It provides: "The findings and judgment of a commission in any trial of a unit, group or organization with respect to the criminal character, purpose or activities thereof shall be given full faith and credit in any subsequent trial by that or any other commission of an individual person charged with criminal responsibility through membership in that unit, group or organization. Upon proof of membership in such unit, group or organization convicted by a commission, the burden of proof shall shift to the accused to establish any mitigating circumstances relating to his membership or participation therein." RIGHTS FOR ALL. Yamashita is entitled to all the safeguards of a fair trial. The fundamental rights and freedoms guaranteed in the Charter of the United Nations are guaranteed to all human beings, without exception. Quoting Pres. Truman, “Liberty knows no race, creed or class in our country or in the world… Triumph over the enemy has not dispelled every difficulty. Many vital and far-reaching decisions await us as we strive for a just and enduring peace. We will not fail if we preserve, in our own land and throughout the world, the same devotion to the essential freedoms and rights of mankind which sustained us throughout the way and brought us final victory." PERFECTO PONTIFICATES. If Yamashita is tried and convicted under a process in which some of the recognized essential guarantees for a fair trial are violated, it would produce a result opposite that expected by those who are following up the trials of all war criminals; the arousing of a deep-rooted universal conviction that law must be supreme and that justice should be equally administered to each and every member of humanity. The peoples of all nations who are keenly watching

19 Yamashita’s prosecution should be convinced, by conclusive evidence, that said prosecution is not a mere parody of the administration of justice, devised to disguise the primitive impulses of vengeance and retaliation, the instinctive urge to crush at all costs, no matter what the means, a hated fallen enemy. The prosecution, trial, and conviction of Yamashita must impress all the peoples of the world that the principle of law is paramount, and supersedes and wipes out all other considerations in dealing with war or common criminals. Otherwise, their faith in the supremacy of law as the invulnerable bulwark of all fundamental human rights will be shaken, and the moral position of the victorious United Nations, the ethical value of the grandiose pronouncements of their great leaders, and the profound significance of the lofty ideals for which millions of their soldiers have fought and died, will be weakened and diminished to such an extent as to make barren all the tremendous sacrifices made by so many countries and so many peoples in the last global hecatomb. From all the foregoing, when the resolution to dispose of this case was put to a vote, we concurred in the denial of the petition for a writ of habeas corpus, and we voted for the granting of the writ of prohibition in order that the objectionable features in the trial before the Military Commission may be eliminated, so that Yamashita may be given the full justice due to all human beings. NORTH SEA CONTINENTAL SHELF CASES (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) International Court of Justice, February 20, 1969. Note: reference to paragraph # (i.e. par. 12) indicates the numbered paragraphs in the original, if you want the complete text. The 3 maps referred to are also in the original. D & N means Denmark and the Netherlands. NATURE OF ACTION. By the 2 Special Agreements respectively concluded between the Kingdom of Denmark and the Federal Republic of Germany, and between the Federal Republic and the Kingdom of the Netherlands, the Parties have submitted to the Court certain differences concerning 'the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them'-with the exception of those areas, situated in the immediate vicinity of the coast, which have already been the subject of delimitation by two agreements dated Dec. 1, 1964, and June 9, 1965, concluded in the one case between the Federal Republic and the Netherlands, and in the other between the Federal Republic and Denmark. It is in respect of the delimitation of the continental shelf areas lying beyond and to seaward of those affected by the partial boundaries thus established, that the Court is requested by each of the two Special Agreements to decide what are the applicable 'principles and rules of international law'. The Court is not asked actually to delimit the further boundaries which will be involved, this task being reserved by the Special Agreements to the Parties, which undertake to effect such a delimitation 'by agreement in pursuance of the decision requested from the ... Court'-that is to Always will b

* bok * cj * tiff * Gem * tin * say on the basis of, and in accordance with, the principles and rules of international law found by the Court to be applicable.

20 boundary is to leave to each Party every point of the continental shelf which lies nearer to its coast than to the coast of the other Party.”

GERMANY’S ARGUMENT. “The delimitation of the continental shelf between the Parties in the North Sea is governed by the principle that each coastal State is entitled to a just and equitable share.” The method of determining continental shelf boundaries by the equidistance method, in conformity with the principle of Article 6, paragraph 2, of the Continental Shelf Convention, had not become customary international law and was not under the circumstances the appropriate method. The equidistance method could not be used where it would not achieve a just and equitable apportionment of the shelf.

FEATURES OF THE NORTH SEA. Per Art. 4 of the North Sea Policing of Fisheries Convention of May 6, 1882, the North Sea, which lies between continental Europe and Great Britain in the east-west direction, is roughly oval in shape and stretches from the straits of Dover northwards to a parallel drawn between a point immediately north of the Shetland Islands and the mouth of the Sogne Fiord in Norway, about 75 km above Bergen, beyond which is the North Atlantic Ocean. In the extreme northwest, it is bounded by a line connecting the Orkney and Shetland island groups; while on its north-eastern side, the line separating it from the entrances to the Baltic Sea lies between Hanstholm at the north-west point of Denmark, and Lindesnes at the southern tip of Norway. Eastward of this line the Skagerrak begins. Thus, the North Sea has to some extent the general look of an enclosed sea without actually being one. Round its shores are situated, on its eastern side and starting from the north, Norway, Denmark, the Federal Republic of Germany, the Netherlands, Belgium and France; while the whole western side is taken up by Great Britain, together with the island groups of the Orkneys and Shetlands. From this it will be seen that the continental shelf of the Federal Republic is situated between those of Denmark and the Netherlands.

1. The delimitation of the continental shelf between the Parties in the North Sea is governed by the principle that each coastal State is entitled to a just and equitable share. 2. (a) The method of determining boundaries of the continental shelf in such a way that every point of the boundary is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured (equidistance method) is not a rule of customary international law. (b) The rule contained in the second sentence of paragraph 2 of Article 6 of the Continental Shelf Convention, prescribing that in the absence of agreement, and unless another boundary is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance, has not become customary international law. (c) Even if the rule under (b) would be applicable between the Parties, special circumstances within the meaning of that rule would exclude the application of the equidistance method in the present case. 3. (a) The equidistance method cannot be used for the delimitation of the continental shelf unless it is established by agreement, arbitration, or otherwise, that it will achieve a just and equitable apportionment of the continental shelf among the States concerned. (b) As to the delimitation of the continental shelf between the Parties in the North Sea, the Kingdom of Denmark and the Kingdom of the Netherlands cannot rely on the application of the equidistance method, since it would not lead to an equitable apportionment. 4. Consequently, the delimitation of the continental shelf in the North Sea between the Parties is a matter which has to be settled by agreement. This agreement should apportion a just and equitable share to each of the Parties in the light of all factors relevant in this respect.' DENMARK AND NETHERLANDS’ ARGUMENT. The delimitation should be governed by the principle of Art. 6, par. 2, and that where the Parties were in disagreement as to the boundary and special circumstances did not justify another boundary, then “the boundary between them is to be determined by the application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured. The boundary should be determined “on the basis of the exclusive rights of each Party over the continental shelf adjacent to its coast and of the principle that the

SURROUNDINGS. The waters of the North Sea are shallow, and the whole seabed consists of continental shelf at a depth of less than 200 metres, except for the formation known as the Norwegian Trough, a belt of water 200-650 metres deep, fringing the southern and south-western coasts of Norway to a width averaging about 80-100 km. Much the greater part of this continental shelf has already been the subject of delimitation by a series of agreements concluded between the UK (which, as stated, lies along the whole western side of it) and certain of the States on the eastern side, namely Norway, Denmark and the Netherlands. These 3 delimitations were carried out by the drawing of what are known as 'median lines' which, for immediate present purposes, may be described as boundaries drawn between the continental shelf areas of 'opposite' States, dividing the intervening spaces equally between them. These lines are shown on Map 1 on page 594, together with a similar line, also established by agreement, drawn between the shelf areas of Norway and Denmark. Theoretically it would be possible also to draw the following median lines in the North Sea, namely UK/Federal Republic (which would lie east of the present line UK/NorwayDenmark-Netherlands); Norway/Federal Republic (which would lie south of the present line Norway/Denmark); and Norway/Netherlands (which would lie north of whatever line is eventually determined to be the continental shelf boundary between the Federal Republic and the Netherlands). Even if these median lines were drawn however, the question would arise whether the UK, Norway and the Netherlands could take advantage of them as against the parties to the existing delimitations, since these lines would, it seems, in each case lie beyond (i.e., respectively to the east, south and north of) the boundaries already effective under the existing agreements at present in force (see Map 2 on page 595).

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* bok * cj * tiff * Gem * tin * BOUNDARIES. In addition to the partial boundary lines FederalRepublic/Denmark and Federal Republic/Netherlands, which, as mentioned in par. 1 above, were respectively established by the agreements of June 9, 1965 and Dec. 1, 1964, and which are shown as lines A-B and C-D on Map 3 on page 596, another line has been drawn in this area, namely that represented by the line E-F on that map. This line, which divides areas respectively untimed (to the north of it) by Denmark, and (to the south of it) by the Netherlands, is the outcome of an agreement between those two countries dated Mar. 31, 1966, reflecting the view taken by them as to what are the correct boundary lines between their respective continental shelf areas and that of the Federal Republic, beyond the partial boundaries A-B and C-D already drawn. These further and unagreed boundaries to seaward, are shown on Map 3 by means of the dotted lines B-E and D-E. They are the lines, the correctness of which in law the Court is in effect, though indirectly, called upon to determine. Also shown on Map 3 are the two pecked lines B-F and D-F, representing approximately the boundaries which the Federal Republic would have wished to obtain in the course of the negotiations that took place between the Federal Republic and the other two Parties prior to the submission of the matter to the Court. The nature of these negotiations must now be described. EQUIDISTANCE METHOD. Under the agreements of December 1964 and June 1965, already mentioned, the partial boundaries represented by the map lines A-B and C-D had, according to the information furnished to the Court by the Parties, been drawn mainly by application of the principle of equidistance, using that term as denoting the abstract concept of equidistance. A line so drawn, known as an 'equidistance line', may be described as one which leaves to each of the parties concerned all those portions of the continental shelf that are nearer to a point on its own coast than they are to any point on the coast of the other party. An equidistance line may consist either of a 'median' line between 'opposite' States, or of a 'lateral' line between 'adjacent' States. In certain geographical configurations of which the Parties furnished examples, a given equidistance line may partake in varying degree of the nature both of a median and of a lateral line. There exists nevertheless a distinction to be drawn between the two, which will be mentioned in its place. NEGOTIATIONS FAIL. Negotiations between the Parties for the prolongation of the partial boundaries broke down mainly because Denmark and the Netherlands respectively wished this prolongation also to be effected on the basis of the equidistance principle,-and this would have resulted in the dotted lines B- E and D-E, shown on Map 3; whereas the Federal Republic considered that such an outcome would be inequitable because it would unduly curtail what the Republic believed should be its proper share of continental shelf area, on the basis of proportionality to the length of its North Sea coastline. It will be observed that neither of the lines in question, taken by itself, would produce this effect, but only both of them together-an element regarded by Denmark and the Netherlands as irrelevant to what they viewed as being 2 separate and self-contained delimitations, each of which should be carried out without reference to the other.

21 PROBLEM: UNEQUAL SHARES. The reason for the result that would be produced by the two lines B-E and D-E, taken conjointly, is that in the case of a concave or recessing coast such as that of the Federal Republic on the North Sea, the effect of the use of the equidistance method is to pull the line of the boundary inwards, in the direction of the concavity. Consequently, where two such lines are drawn at different points on a concave coast, they will, if the curvature is pronounced, inevitably meet at a relatively short distance from the coast, thus causing the continental shelf area they enclose, to take the form approximately of a triangle with its apex to seaward and, as it was put on behalf of the Federal Republic, 'cutting off' the coastal State from the further areas of the continental shelf outside of and beyond this triangle. The effect of concavity could of course equally be produced for a country with a straight coastline if the coasts of adjacent countries protruded immediately on either side of it. In contrast to this, the effect of coastal projections, or of convex or outwardly curving coasts such as are, to a moderate extent, those of Denmark and the Netherlands, is to cause boundary lines drawn on an equidistance basis to leave the coast on divergent courses, thus having a widening tendency on the area of continental shelf off that coast. These two distinct effects, which are shown in sketches I-III to be found on page 16, are directly attributable to the use of the equidistance method of delimiting continental shelf boundaries off recessing or projecting coasts. It goes without saying that on these types of coasts the equidistance method produces exactly similar effects in the delimitation of the lateral boundaries of the territorial sea of the States concerned. However, owing to the very close proximity of such waters to the coasts concerned, these effects are much less marked and may be very slight,-and there are other aspects involved, which will be considered in their place. It will suffice to mention here that, for instance, a deviation from a line drawn perpendicular to the general direction of the coast, of only 5 km, at a distance of about 5 km from that coast, will grow into one of over 30 at a distance of over 100 km. COURT ACTION. After the negotiations, separately held between the Federal Republic and the other 2 Parties respectively, had in each case, failed to result in any agreement about the delimitation of the boundary extending beyond the partial one already agreed, tripartite talks between all the Parties took place in The Hague in February-March 1966, in Bonn in May and again in Copenhagen in August. These also proving fruitless, it was then decided to submit the matter to the Court. In the meantime the Governments of Denmark and the Netherlands had, by means of the agreement of Mar. 31, 1966 (par. 5), proceeded to a delimitation as between themselves of the continental shelf areas lying between the apex of the triangle notionally ascribed by them to the Federal Republic (point E on Map 3) and the median line already drawn in the North Sea, by means of a boundary drawn on equidistance principles, meeting that line at the point marked F on Map 3. On May 25, 1966, the Government of the Federal Republic, taking the view that this delimitation was res inter alios acta, notified the Governments of Denmark and the Netherlands, by means of an aide-memoire, that the agreement thus concluded could not 'have any effect on the question of the delimitation of the German-Netherlands or the German-Danish parts of the continental shelf in the North Sea'. Always will b

* bok * cj * tiff * Gem * tin * In pursuance of the tripartite arrangements that had been made at Bonn and Copenhagen, Special Agreements for the submission to the Court of the differences involved were initialed in Aug. 1966 and signed on Feb. 2, 1967. By a tripartite Protocol signed the same day it was provided (a) that the Government of the Kingdom of the Netherlands would notify the 2 Special Agreements to the Court, in accordance with Art. 40, par. 1, of the Court's Statute, together with the text of the Protocol itself; (b) that after such notification, the Parties would ask the Court to join the two cases; and (c) that for the purpose of the appointment of a judge ad hoc, the Kingdoms of Denmark and the Netherlands should be considered as being in the same interest within the meaning of Art. 31, par. 5, of the Court's Statute. Following upon these communications, duly made to it in the implementation of the Protocol, the Court, by an Order dated Apr. 26, 1968, declared Denmark and the Netherlands to be in the same interest, and joined the proceedings in the 2 cases. DENMARK & NETHERLANDS. The whole matter is governed by a mandatory rule of law which, reflecting the language of Art. 6 of the Convention on the Continental Shelf concluded at Geneva on Apr. 29, 1958, was designated by them as the 'equidistance-special circumstances' rule. According to this contention, 'equidistance' is not merely a method of the cartographical construction of a boundary line, but the essential element in a rule of law which may be stated as follows,-namely that in the absence of agreement by the Parties to employ another method or to proceed to a delimitation on an ad hoc basis, all continental shelf boundaries must be drawn by means of an equidistance line, unless, or except to the extent to which, 'special circumstances' are recognized to exist,-an equidistance line being, it will be recalled, a line every point on which is the same distance away from whatever point is nearest to it on the coast of each of the countries concerned-or rather, strictly, on the baseline of the territorial sea along that coast. As regards what constitutes 'special circumstances', all that need be said at this stage is that according to the view put forward on behalf of Denmark and the Netherlands, the configuration of the German North Sea coast, its recessive character, and the fact that it makes nearly a right-angled bend in midcourse, would not of itself constitute, for either of the two boundary lines concerned, a special circumstance calling for or warranting a departure from the equidistance method of delimitation: only the presence of some special feature, minor in itself-such as an islet or small protuberance-but so placed as to produce a disproportionately distorting effect on an otherwise acceptable boundary line would, so it was claimed, possess this character. THEIR BASIS. These various contentions, together with the view that a rule of equidistance-special circumstances is binding on the Federal Republic, are founded by Denmark and the Netherlands partly on the 1958 Geneva Convention on the Continental Shelf already mentioned (preceding paragraph), and partly on general considerations of law relating to the continental shelf, lying outside this Convention. Similar considerations are equally put forward to found the contention that the delimitation on an equidistance basis of the line E-F (Map 3) by the Netherlands-Danish agreement of Mar. 31, 1966 (par. 5 above) is valid erga omnes, and must be respected by the Federal Republic unless it can demonstrate the existence of juridically relevant 'special circumstances'.

22 GERMANY. While recognizing the utility of equidistance as a method of delimitation, and that it can in many cases be employed appropriately and with advantage, denies its obligatory character for States not parties to the Geneva Convention, and contends that the correct rule to be applied, at any rate in such circumstances as those of the North Sea, is one according to which each of the States concerned should have a 'just and equitable share' of the available continental shelf, in proportion to the length of its coastline or sea-frontage. It was also contended that in a sea shaped as is the North Sea, the whole bed of which, except for the Norwegian Trough, consists of continental shelf at a depth of less than 200 metres, and where the situation of the circumjacent States causes a natural convergence of their respective continental shelf areas, towards a central point situated on the median line of the whole seabed-or at any rate in those localities where this is the case-each of the States concerned is entitled to a continental shelf area extending up to this central point (in effect a sector), or at least extending to the median line at some point or other. In this way the 'cut-off' effect, of which the Federal Republic complains, caused, as explained in par. 8, by the drawing of equidistance lines at the two ends of an inward curving or recessed coast, would be avoided. As a means of giving effect to these ideas, it proposed the method of the 'coastal front', or facade, constituted by a straight baseline joining these ends, upon which the necessary geometrical constructions would be erected. Alternatively, the Federal Republic claimed that if, contrary to its main contention, the equidistance method was held to be applicable, then the configuration of the German North Sea coast constituted a 'special circumstance' such as to justify a departure from that method of delimitation in this particular case. It said that the claim for a just and equitable share did not in any way involve asking the Court to give a decision ex aequo et bono (which, having regard to the terms of par. 2 of Art. 38 of the Court's Statute, would not be possible without the consent of the Parties),-for the principle of the just and equitable share was one of the recognized general principles of law which, by virtue of par. 1 (c) of the same Article, the Court was entitled to apply as a matter of the justitia distributiva which entered into all legal systems. It appeared, moreover, that whatever its underlying motivation, the claim of the Federal Republic was, at least ostensibly, to a just and equitable share of the space involved, rather than to a share of the natural resources as such, mineral or other, to be found in it, the location of which could not in any case be fully ascertained at present. ISSUE: What principles and rules of international law are applicable to the delimitation of the areas of continental shelf involved? HELD: The Geneva Convention did not embody or crystallize any pre- existing or emergent rule of customary law, according to which the delimitation of continental shelf areas between adjacent States must, unless the Parties otherwise agree, be carried out on an equidistance-special circumstances basis. A rule was of course embodied in Art. 6 of the Convention, but as a purely conventional rule. Whether it has since acquired a broader basis remains to be seen: qua conventional rule however, as has already been concluded, it is not opposable to the Federal Republic.

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* bok * cj * tiff * Gem * tin * DELIMITATION DEFINED. Delimitation is a process which involves establishing the boundaries of an area already, in principle, appertaining to the coastal State and not the determination de novo of such an area. Delimitation in an equitable manner is one thing, but not the same thing as awarding a just and equitable share of a previously undelimited area, even though in a number of cases the results may be comparable, or even identical. COURT REJECTS GERMANY’S POINT. It considers that, having regard both to the language of the Special Agreements and to more general considerations of law relating to the regime of the continental shelf, its task in the present proceedings relates essentially to the delimitation and not the apportionment of the areas concerned, or their division into converging sectors. INHERENT RIGHT TO TERRITORY. The doctrine of the just and equitable share appears to be wholly at variance with what the Court entertains no doubt is the most fundamental of all the rules of law relating to the continental shelf, enshrined in Art. 2 of the 1958 Geneva Convention, though quite independent of it;-namely that the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. Its existence can be declared (and many States have done this) but does not need to be constituted. Furthermore, the right does not depend on its being exercised. To echo the language of the Geneva Convention, it is 'exclusive' in the sense that if the coastal State does not choose to explore or exploit the areas of shelf appertaining to it, that is its own affair, but no one else may do so without its express consent. EQUITABLE DELIMITATION. It follows that even in such a situation as that of the North Sea, the notion of apportioning an as yet undelimited area, considered as a whole (which underlies the doctrine of the just and equitable share), is quite foreign to, and inconsistent with, the basic concept of continental shelf entitlement, according to which the process of delimitation is essentially one of drawing a boundary line between areas which already appertain to one or other of the States affected. The delimitation itself must indeed be equitably effected, but it cannot have as its object the awarding of an equitable share, or indeed of a share, as such, at all,-for the fundamental concept involved does not admit of there being anything undivided to share out. Evidently any dispute about boundaries must involve that there is a disputed marginal or fringe area, to which both parties are laying claim, so that any delimitation of it which does not leave it wholly to one of the parties will in practice divide it between them in certain shares, or operate as if such a division had been made. But this does not mean that there has been an apportionment of something that previously consisted of an integral, still less an undivided whole. DENMARK & NETHERLANDS’S CLAIM. Their general character has already been indicated in par. 13 and 14: the most convenient way of dealing with them

23 will be on the basis of the following question-namely, does the equidistancespecial circumstances principle constitute a mandatory rule, either on a conventional or on a customary international law basis, in such a way as to govern any delimitation of the North Sea continental shelf areas between the Federal Republic and the Kingdoms of Denmark and the Netherlands respectively? Whether, in any delimitation of these areas, the Federal Republic is under a legal obligation to accept the application of the equidistance-special circumstances principle? CONVENIENT METHOD, BUT MANDATORY, OBLIGATORY? It has never been doubted that the equidistance method of delimitation is a very convenient one, the use of which is indicated in a considerable number of cases. It constitutes a method capable of being employed in almost all circumstances, however singular the results might sometimes be, and has the virtue that if necessary,-if for instance, the Parties are unable to enter into negotiations,-any cartographer can de facto trace such a boundary on the appropriate maps and charts, and those traced by competent cartographers will for all practical purposes agree. In short, it would probably be true to say that no other method of delimitation has the same combination of practical convenience and certainty of application. Yet these factors do not suffice of themselves to convert what is a method into a rule of law, making the acceptance of the results of using that method obligatory in all cases in which the parties do not agree otherwise, or in which 'special circumstances' cannot be shown to exist. Juridically, if there is such a rule, it must draw its legal force from other factors than the existence of these advantages, important though they may be. It should also be noticed that the counterpart of this conclusion is no less valid, and that the practical advantages of the equidistance method would continue to exist whether its employment were obligatory or not. LEGAL BASIS FOR INSISTENCE FOR THE EQUIDISTANCE METHOD. The first question to be considered is whether the 1958 Geneva Convention on the Continental Shelf is binding for all the Parties in this case-that is to say whether, as contended by Denmark and the Netherlands, the use of this method is rendered obligatory for the present delimitations by virtue of the delimitations provision (Art. 6) of that instrument, according to the conditions laid down in it. Clearly, if this is so, then the provisions of the Convention will prevail in the relations between the Parties, and would take precedence of any rules having a more general character, or derived from another source. On that basis the Court's reply to the question put to it in the Special Agreements would necessarily be to the effect that as between the Parties the relevant provisions of the Convention represented the applicable rules of law-that is to say constituted the law for the Parties-and its sole remaining task would be to interpret those provisions, in so far as their meaning was disputed or appeared to be uncertain, and to apply them to the particular circumstances involved. ART. 6 OF THE GENEVA CONVENTION, PAR. 2 of which Denmark and the Netherlands contend not only to be applicable as a conventional rule, but also to represent the accepted rule of general international law on the subject of continental shelf delimitation, as it exists independently of the Convention, read as follows: Always will b

* bok * cj * tiff * Gem * tin * '1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest point of the baselines from which the breadth of the territorial sea of each State is measured. 2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.' The Convention received 46 signatures and, up-to-date, there have been 39 ratifications or accessions. It came into force on June 10, 1964, having received the 22 ratifications or accessions required for that purpose (Art. 11), and was therefore in force at the time when the various delimitations of continental shelf boundaries described earlier (par. 1 and 5) took place between the Parties. But, under the formal provisions of the Convention, it is in force for any individual State only in so far as, having signed it within the time-limit provided for that purpose, that State has also subsequently ratified it; or, not having signed within that timelimit, has subsequently acceded to the Convention. Denmark and the Netherlands have both signed and ratified the Convention, and are parties to it, the former since June 10, 1964, the latter since Mar. 20, 1966. Germany was 1 of the signatories of the Convention, but has never ratified it, and is consequently not a party. D & N INSISTS THAT GERMANY IS ESTOPPED FROM OPPOSING THE CONVENTION’S PROVISIONS. Denmark and the Netherlands admit that in these circumstances the Convention cannot, as such, be binding on the Federal Republic, in the sense of the Republic being contractually bound by it. But it is contended that the Convention, or the regime of the Convention, and in particular of Art. 6, has become binding on the Federal Republic in another way,-namely because, by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the conventional regime; or has recognized it as being generally applicable to the delimitation of continental shelf areas. It has also been suggested that the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as to cause other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken up. It appears to the Court that only the existence of a situation of estoppel could suffice to lend substance to this contention,-that is to say if the Federal Republic were now precluded from denying the applicability of the conventional regime, by reason of past conduct, declarations, etc., which not only clearly and consistently evinced acceptance of that regime, but also had caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice. Of this there is no evidence whatever in the present case.

24 RECOGNITION OF THE CONVENTION CANNOT BE PRESUMED. It is clear that only a very definite, very consistent course of conduct on the part of a state in the situation of the Federal Republic could justify the Court in upholding them; and, if this had existed-that is to say if there had been a real intention to manifest acceptance or recognition of the applicability of the conventional regime-then it must be asked why it was that the Federal Republic did not take the obvious step of giving expression to this readiness by simply ratifying the Convention. In principle, when a number of States, including the one whose conduct is invoked, and those invoking it, have drawn up a convention specifically providing for a particular method by which the intention to become bound by the regime of the convention is to be manifested-namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way. Indeed if it were a question not of obligation but of rights,-if, that is to say, a State which, though entitled to do so, had not ratified or acceded, attempted to claim rights under the convention, on the basis of a declared willingness to be bound by it, or of conduct evincing acceptance of the conventional regime, it would simply be told that, not having become a party to the convention it could not claim any rights under it until the professed willingness and acceptance had been manifested in the prescribed form. EVEN IF RECOGNIZED, EXCLUSIONS PERMITTED. A further point, not in itself conclusive, but to be noted, is that if the Federal Republic had ratified the Geneva Convention, it could have entered-and could, if it ratified now, enter-a reservation to Art. 6, by reason of the faculty to do so conferred by Art. 12 of the Convention. This faculty would remain, whatever the previous conduct of the Federal Republic might have been-a fact which at least adds to the difficulties involved by the Danish-Netherlands contention. EXAMPLES OF GERMANY’S “ACCEPTANCE”. Little useful purpose would be served by passing in review and subjecting to detailed scrutiny the various acts relied on by Denmark and the Netherlands as being indicative of the Federal Republic's acceptance of the regime of Art. 6;-for instance that at the Geneva Conference the Federal Republic did not take formal objection to Art. 6 and eventually signed the Convention without entering any reservation in respect of that provision; that it at one time announced its intention to ratify the Convention; that in its public declarations concerning its continental shelf rights it appeared to rely on, or at least cited, certain provisions of the Geneva Convention. In this last connection a good deal has been made of the joint Minute signed in Bonn, on Aug. 4, 1964, between the then-negotiating delegations of the Federal Republic and the Netherlands. But this minute made it clear that what the Federal Republic was seeking was an agreed division, rather than a delimitation of the central North Sea continental shelf areas, and the reference it made to Art. 6 was specifically to the first sentence of par. 1 and 2 of that Article, which speaks exclusively of delimitation by agreement and not at all of the use of the equidistance method.

Always will b

* bok * cj * tiff * Gem * tin * NO ESTOPPEL. None of the elements invoked is decisive; each is ultimately negative or inconclusive; all are capable of varying interpretations or explanations. It would be one thing to infer from the declarations of the Federal Republic an admission accepting the fundamental concept of coastal State rights in respect of the continental shelf: it would be quite another matter to see in this an acceptance of the rules of delimitation contained in the Convention. The declarations of the Federal Republic, taken in the aggregate, might at most justify the view that to begin with, and before becoming fully aware of what the probable effects in the North Sea would be, the Federal Republic was not specifically opposed to the equidistance principle as embodied in Art. 6 of the Convention. But from a purely negative conclusion such as this, it would certainly not be possible to draw the positive inference that the Federal Republic, though not a party to the Convention, had accepted the regime of Art. 6 in a manner binding upon itself. D & N’S PROPOSAL REJECTED. The dangers of the doctrine here advanced by Denmark and the Netherlands, if it had to be given general application in the international law field, hardly need stressing. Moreover, any such inference would immediately be nullified by the fact that, as soon as concrete delimitations of North Sea continental shelf areas began to be carried out, the Federal Republic, as described earlier (par. 9 and 12), at once reserved its position with regard to those delimitations which (effected on an equidistance basis) might be prejudicial to the delimitation of its own continental shelf areas. ADDITIONAL ISSUES: DELIMITATION BY AGREEMENT & SPECIAL CIRCUMSTANCES. What is the relationship between the requirement of Art. 6 for delimitation by agreement, and the requirements relating to equidistance and special circumstances that are to be applied in 'the absence of' such agreement,i.e., in the absence of agreement on the matter, is there a presumption that the continental shelf boundary between any 2 adjacent States consists automatically of an equidistance line,-or must negotiations for an agreed boundary prove finally abortive before the acceptance of a boundary drawn on an equidistance basis becomes obligatory in terms of Art. 6, if no special circumstances exist? The delimitation of the line E-F, as shown on Map 3, which was affected by Denmark and the Netherlands under the agreement of Mar. 31, 1966 already mentioned (par. 5 and 9), to which the Federal Republic was not a party, must have been based on the tacit assumption that, no agreement to the contrary having been reached in the negotiations between the Federal Republic and Denmark and the Netherlands respectively (par. 7), the boundary between the continental shelf areas of the Republic and those of the other two countries must be deemed to be an equidistance one;-or in other words the delimitation of the line E-F, and its validity erga omnes including the Federal Republic, as contended for by Denmark and the Netherlands, presupposes both the delimitation and the validity on an equidistance basis, of the lines B-E and D-E on Map 3, considered by Denmark and the Netherlands to represent the boundaries between their continental shelf areas and those of the Federal Republic.

25 ART. 6 AAPLIES ONLY TO ADJACENT OR OPPOSITE STATES. Since, Art. 6 of the Geneva Convention provides only for delimitation between 'adjacent' States, which Denmark and the Netherlands clearly are not, or between 'opposite' States which, despite suggestions to the contrary, the Court thinks they equally are not, the delimitation of the line E-F on Map 3 could not in any case find its validity in Art. 6, even if that provision were opposable to the Federal Republic. The validity of this delimitation must be sought in some other source of law. It is a main contention of Denmark and the Netherlands that there does in fact exist such another source, furnishing a rule that validates not only this particular delimitation, but all delimitations effected on an equidistance basis,-and indeed requiring delimitation on that basis unless the States concerned otherwise agree, and whether or not the Geneva Convention is applicable. D & N: GERMANY BOUND TO ACCEPT DELIMITATION ON AN EQUIDISTANCE-SPECIAL CIRCUMSTANCES BASIS because the use of this method is not in the nature of a merely conventional obligation, but is, or must now be regarded as involving, a rule that is part of the corpus of general international law;-and, like other rules of general or customary international law, is binding on the Federal Republic automatically and independently of any specific assent, direct or indirect, given by the latter. This contention has both a positive law and a more fundamentalist aspect. As a matter of positive law, it is based on the work done in this field by international legal bodies, on State practice and on the influence attributed to the Geneva Convention itself,-the claim being that these various factors have cumulatively evidenced or been creative of the opinion juris sive necessitatis, requisite for the formation of new rules of customary international law. In its fundamentalist aspect, the view put forward derives from what might be called the natural law of the continental shelf, in the sense that the equidistance principle is seen as a necessary expression in the field of delimitation of the accepted doctrine of the exclusive appurtenance of the continental shelf to the nearby coastal State, and therefore as having an a priori character of so to speak juristic inevitability. The Court will begin by examining this latter aspect, both because it is the more fundamental, and was so presented on behalf of Denmark and the Netherlands-i.e., as something governing the whole case; and because, if it is correct that the equidistance principle is, as the point was put in the course of the argument, to be regarded as inherent in the whole basic concept of continental shelf rights, then equidistance should constitute the rule according to positive law tests also. On the other hand, if equidistance should not possess any a priori character of necessity or inherency, this would not be any bar to its having become a rule of positive law through influences such as those of the Geneva Convention and State practice,-and that aspect of the matter would remain for later examination. SOVEREIGNTY. The a priori argument starts from the position described in par. 19, according to which the right of the coastal State to its continental shelf areas is based on its sovereignty over the land domain, of which the shelf area is the natural prolongation into and under the sea. From this notion of appurtenance is derived the view which, as has already been indicated, the Court accepts, that the coastal State's rights exist ipso facto and ab initio without there being any question of having to make good a claim to the areas concerned, or of any Always will b

* bok * cj * tiff * Gem * tin * apportionment of the continental shelf between different States. This was one reason why the Court felt bound to reject the claim of the Federal Republic (in the particular form which it took) to be awarded a 'just and equitable share' of the shelf areas involved in the present proceedings. Denmark and the Netherlands, for their part, claim that the test of appurtenance must be 'proximity', or more accurately 'closer proximity': all those parts of the shelf being considered as appurtenant to a particular coastal State which are (but only if they are) closer to it than they are to any point on the coast of another State. Hence delimitation must be effected by a method which will leave to each one of the States concerned all those areas that are nearest to its own coast. Only a line drawn on equidistance principles will do this. Therefore, it is contended, only such a line can be valid (unless the Parties, for reasons of their own, agree on another), because only such a line can be thus consistent with basic continental shelf doctrine. PROXIMITY. The idea of absolute proximity is certainly not implied by the vague and general terminology employed in the literature of the subject, and in most State proclamations and international conventions and other instruments-terms such as 'near', 'close to its shores', 'off its coast', 'opposite', 'in front of the coast', 'in the vicinity of', 'neighboring the coast', 'adjacent to', 'contiguous', etc.,-all of them terms of a somewhat imprecise character which, although they convey a reasonably clear general idea, are capable of a considerable fluidity of meaning. The most frequently employed of these terms, namely 'adjacent to', is evident that by no stretch of imagination can a point on the continental shelf situated say a hundred miles, or even much less, from a given coast, be regarded as 'adjacent' to it, or to any coast at all, in the normal sense of adjacency, even if the point concerned is nearer to some one coast than to any other. This would be even truer of localities where, physically, the continental shelf begins to merge with the ocean depths. Equally, a point inshore situated near the meeting place of the coasts of two States can often properly be said to be adjacent to both coasts, even though it may be fractionally closer to the one than the other. Indeed, local geographical configuration may sometimes cause it to have a closer physical connection with the coast to which it is not in fact closest. There seems in consequence to be no necessary, and certainly no complete, identity between the notions of adjacency and proximity; and therefore the question of which parts of the continental shelf 'adjacent to' a coastline bordering more than one State fall within the appurtenance of which of them, remains to this extent an open one, not to be determined on a basis exclusively of proximity. Even if proximity may afford one of the tests to be applied and an important one in the right conditions, it may not necessarily be the only, nor in all circumstances, the most appropriate one. Hence it would seem that the notion of adjacency, so constantly employed in continental shelf doctrine from the start, only implies proximity in a general sense, and does not imply any fundamental or inherent rule the ultimate effect of which would be to prohibit any State (otherwise than by agreement) from exercising continental shelf rights in respect of areas closer to the coast of another State. MORE FUNDAMENTAL: NATURAL PROLONGATION OR CONTINUATION OF LAND TERRITORY OR DOMAIN OR LAND SOVEREIGHNTY OF THE COASTAL STATE, INTO & UNDER THE HIGH SEAS, VIA THE BED OF ITS TERRITORIAL SEA WHICH IS UNDER FULL SOVEREIGNTY OF THE STATE.

26 There are various ways of formulating this principle, but the underlying idea, namely of an extension of something already possessed, is the same, and it is this idea of extension which is, in the Court's opinion, determinant. Submarine areas do not really appertain to the coastal State because-or not only becausethey are near it. They are near it of course; but this would not suffice to confer title, any more than, according to a well-established principle of law recognized by both sides in the present case, mere proximity confers per se title to land territory. What confers the ipso jure title which international law attributes to the coastal State in respect of its continental shelf, is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion,-in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea. From this it would follow that whenever a given submarine area does not constitute a natural-or the most natural-extension of the land territory of a coastal State, even though that area may be closer to it than it is to the territory of any other State, it cannot be regarded as appertaining to that State;-or at least it cannot be so regarded in the face of a competing claim by a State of whose land territory the submarine area concerned is to be regarded as a natural extension, even if it is less close to it. D & N’S AND G’S INTERPRETATIONS OF THE PROLONGATION PRINCIPLE INCORRECT. Denmark and the Netherlands identified natural prolongation with closest proximity and therefrom argued that it called for an equidistance line: the Federal Republic seemed to think it implied the notion of the just and equitable share, although the connection is distinctly remote. (The Federal Republic did however invoke another idea, namely that of the proportionality of a State's continental shelf area to the length of its coastline, which obviously does have an intimate connection with the prolongation principle, and will be considered in its place.) As regards equidistance, it clearly cannot be identified with the notion of natural prolongation or extension, since, as has already been stated (par. 8), the use of the equidistance method would frequently cause areas which are the natural prolongation or extension of the territory of one State to be attributed to another, when the configuration of the latter's coast makes the equidistance line swing out laterally across the former's coastal front, cutting it off from areas situated directly before that front . EXAMPLE OF ABOVE SITUATION. The fluidity of all these notions is well illustrated by the case of the Norwegian Trough (par. 4 above). The Court notes that the shelf areas in the North Sea separated from the Norwegian coast by the 80-100 km of the Trough cannot in any physical sense be said to be adjacent to it, nor to be its natural prolongation. They are nevertheless considered by the States parties to the relevant delimitations, as described in par. 4, to appertain to Norway up to the median lines shown on Map 1. True these median lines are themselves drawn on equidistance principles; but it was only by first ignoring the existence of the Trough that these median lines fell to be drawn at all. THAT EQUIDISTANCE IS NECESSARY & AN INESCAPABLE A PRIORI ACCOMPANIMENT OF THE BASIC CONSITINENTAL SHELF DOCTRINE IS INCORRECT. It is said not to be possible to maintain that there is a rule of law Always will b

* bok * cj * tiff * Gem * tin * ascribing certain areas to a State as a matter of inherent and original right (see par. 19 and 20), without also admitting the existence of some rule by which those areas can be obligatorily delimited. The Court cannot accept the logic of this view. The problem arises only where there is a dispute and only in respect of the marginal areas involved. The appurtenance of a given area, considered as an entity, in no way governs the precise delimitation of its boundaries, any more than uncertainty as to boundaries can affect territorial rights. There is for instance no rule that the land frontiers of a State must be fully delimited and defined, and often in various places and for long periods they are not, as is shown by the case of the entry of Albania into the League of Nations (Monastery of Saint Naoum, Advisory Opinion, 1924, P.C.I.J., Series B, No. 9, at p. 10). GENESIS AND DEVELOPMENT OF THE EQUIDISTANCE METHOD OF DELIMITATION. Such a review may appropriately start with the instrument, generally known as the 'Truman Proclamation', issued by the US on Sept. 28, 1945. Although this instrument was not the first or only one to have appeared, it has a special status. Previously, various theories as to the nature and extent of the rights relative to or exercisable over the continental shelf had been advanced by jurists, publicists and technicians. The Truman Proclamation however, soon came to be regarded as the starting point of the positive law on the subject, and the chief doctrine it enunciated, namely that of the coastal State as having an original, natural, and exclusive (in short a vested) right to the continental shelf off its shores, came to prevail over all others, being now reflected in Art. 2 of the 1958 Geneva Convention on the Continental Shelf. WRT the delimitation of lateral boundaries between the continental shelves of adjacent States, a matter which had given rise to some consideration on the technical, but very little on the juristic level, the Truman Proclamation stated that such boundaries 'shall be determined by the US and the State concerned in accordance with equitable principles'. These 2 concepts, of delimitation by mutual agreement and delimitation in accordance with equitable principles, have underlain all the subsequent history of the subject. They were reflected in various other State proclamations of the period, and after, and in the later work on the subject. U.N. INVOLVEMENT. It was in the International Law Commission of the United Nations that the question of delimitation as between adjacent States was first taken up seriously as part of a general jurisdical project; for outside the ranks of the hydrographers and cartographers, questions of delimitation were not much thought about in earlier continental shelf doctrine. Juridical interest was focused mainly on questions as what was the legal basis on which any rights at all in respect of the continental shelf could be claimed, and what was the nature of those rights. As regards boundaries, the main issue was not that of boundaries between States but of the seaward limit of the area in respect of which the coastal State could claim exclusive rights of exploitation. States in most cases had not found it necessary to conclude treaties or legislate about their lateral sea boundaries with adjacent States before the question of exploiting the natural resources of the seabed and subsoil arose;-practice was sparse. NO U.N. RULE PRESCRIBING USE OF A SPECIFIC METHOD. In the records of the International Law Commission, which had the matter under consideration from

27 1950 to 1956, there is no indication at all that any of its members supposed that it was incumbent on the Commission to adopt a rule of equidistance because this gave expression to, and translated into linear terms, a principle of proximity inherent in the basic concept of the continental shelf, causing every part of the shelf to appertain to the nearest coastal State and to no other, and because such a rule must therefore be mandatory as a matter of customary international law. Such an idea does not seem ever to have been propounded. Had it been, and had it had the self-evident character contended for by Denmark and the Netherlands, the Commission would have had no alternative but to adopt it, and its long continued hesitations over this matter would be incomprehensible. NO PRIORITY TO THE EQUIDISTANCE METHOD. It is moreover, in the present context, a striking feature of the Commission's discussions that during the early and middle stages, not only was the notion of equidistance never considered from the standpoint of its having a priori a character of inherent necessity: it was never given any special prominence at all, and certainly no priority. The Commission discussed various other possibilities as having equal if not superior status such as delimitation by agreement, by reference to arbitration, by drawing lines perpendicular to the coast, by prolonging the dividing line of adjacent territorial waters (the principle of which was itself not as yet settled), and on occasion the Commission seriously considered adopting one or other of these solutions. It was not in fact until after the matter had been referred to a committee of hydrographical experts, which reported in 1953, that the equidistance principle began to take precedence over other possibilities: the Report of the Commission for that year (its principal report on the topic of delimitation as such) makes it clear that before this reference to the experts the Commission had felt unable to formulate any definite rule at all, the previous trend of opinion having been mainly in favor of delimitation by agreement or by reference to arbitration. COMMITTEE OF EXPERTS FORMULATES THE METHOD. It was largely because of these difficulties that it was decided to consult the Committee of Experts. Equidistance was in fact only 1 of 4 methods suggested to them, the other 3 being (a) the continuation in the seaward direction of the land frontier between the two adjacent States concerned; (b) the drawing of a perpendicular to the coast at the point of its intersection with this land frontier; and (c) the drawing of a line perpendicular to the line of the 'general direction' of the coast. The matter was not even put to the experts directly as a question of continental shelf delimitation, but in the context of the delimitation of the lateral boundary between adjacent territorial waters, no account being taken of the possibility that the situation respecting territorial waters might be different. COMMITTEE REPORT. The Committee of Experts simply reported that after a thorough discussion of the different methods-(no official records of this discussion)-they had decided that 'the (lateral) boundary through the territorial sea-if not already fixed otherwise-should be drawn according to the principle of equidistance from the respective coastlines'. They added, however, significantly, that in 'a number of cases this may not lead to an equitable solution, which should be then arrived at by negotiation'. Only after that did they add, as a rider to this conclusion, that they had considered it 'important to find a formula for drawing the Always will b

* bok * cj * tiff * Gem * tin * international boundaries in the territorial waters of States, which could also be used for the delimitation of the respective continental shelves of 2 States bordering the same continental shelf'. In this almost impromptu, and certainly contingent manner was the principle of equidistance for the delimitation of continental shelf boundaries propounded. It is clear from the Report of the Commission for 1953 (par. 50) that the latter adopted it largely on the basis of the recommendation of the Committee of Experts, and even so in a text that gave priority to delimitation by agreement and also introduced an exception in favor of 'special circumstances' which the Committee had not formally proposed. The Court thinks that the experts were actuated by considerations not of legal theory but of practical convenience and cartography of the kind mentioned in par. 22 above. Although there are no official records of their discussions, note the correspondence passing between certain of them and the Commission's Special Rapporteur on the subject, which was deposited by one of the Parties during the oral hearing at the request of the Court. Nor, even after this, when a decision in principle had been taken in favor of an equidistance rule, was there an end to the Commission's hesitations, for as late as 3 years after the adoption of the report of the Committee of Experts, when the Commission was finalizing the whole complex of drafts comprised under the topic of the Law of the Sea, various doubts about the equidistance principle were still being voiced in the Commission, on such grounds for instance as that its strict application would be open, in certain cases, to the objection that the geographical configuration of the coast would render a boundary drawn on this basis inequitable. LIMITATIONS OF THE METHOD. A further point of some significance is that neither in the Committee of Experts, nor in the Commission itself, nor subsequently at the Geneva Conference, does there appear to have been any discussion of delimitation in the context, not merely of 2 adjacent States, but of 3 or more States on the same coast, or in the same vicinity,-from which it can reasonably be inferred that the possible resulting situations, some of which have been described in par. 8 above, were never really envisaged or taken into account. Also, the relevant part of par. 2 of Art. 6 of the Geneva Convention speaks of delimiting the continental shelf of ‘2’ adjacent States (although a reference simply to 'adjacent States' would have sufficed), whereas in respect of median lines the reference in par. 1 of that Art. is to 'two or more' opposite States. EQUIDISTANCE, BASED UPON AGREEMENT & EQUITY, NOT INHERENTLY NECESSARY. At no time was the notion of equidistance as an inherent necessity of continental shelf doctrine entertained. It was, and it really remained to the end, governed by two beliefs;-namely, first, that no one single method of delimitation was likely to prove satisfactory in all circumstances, and that delimitation should, therefore, be carried out by agreement (or by reference to arbitration); and secondly, that it should be effected on equitable principles. It was in pursuance of the 1ST of these beliefs that in the draft that emerged as Art. 6, the Commission gave priority to delimitation by agreement,-and in pursuance of the 2ND that it introduced the exception in favor of 'special circumstances'. Yet the record shows that, even with these mitigations, doubts persisted, particularly as to whether the equidistance principle would in all cases prove equitable.

28 D & N’S THEORY INVERTS THE TRUE ORDER OF THINGS: so far from an equidistance rule having been generated by an antecedent principle of proximity inherent in the whole concept of continental shelf appurtenance, the latter is rather a rationalization of the former-an ex post facto construct directed to providing a logical juristic basis for a method of delimitation propounded largely for different reasons, cartographical and other. Given also that for the reasons already set out (par. 40-46) the theory cannot be said to be endowed with any quality of logical necessity either, the Court is unable to accept it. 2 SUBSIDIARY MATTERS. Most of the difficulties felt in the International Law Commission related, as here, to the case of the lateral boundary between adjacent States. Less difficulty was felt over that of the median line boundary between opposite States, although it too is an equidistance line. The continental shelf area off, and dividing, opposite States, can be claimed by each of them to be a natural prolongation of its territory. These prolongations meet and overlap, and can therefore only be delimited by means of a median line; and, ignoring the presence of islets, rocks and minor coastal projections, the disproportionally distorting effect of which can be eliminated by other means, such a line must effect an equal division of the particular area involved. If there is a 3RD State on 1 of the coasts concerned, the area of mutual natural prolongation with that of the same or another opposite State will be a separate and distinct one, to be treated in the same way. This type of case is therefore different from that of laterally adjacent States on the same coast with no immediately opposite coast in front of it, and does not give rise to the same kind of problem-a conclusion which also finds some confirmation in the difference of language to be observed in the 2 paragraphs of Art. 6 (reproduced in par. 26 above) as respects recourse in the one case to median lines and in the other to lateral equidistance lines, in the event of absence of agreement. If on the other hand, there is no essential difference in the process of delimiting the continental shelf areas between opposite States and that of delimitations between adjacent States, then the results ought in principle to be the same or at least comparable. But in fact, whereas a median line divides equally between the 2 opposite countries areas that can be regarded as being the natural prolongation of the territory of each of them, a lateral equidistance line often leaves to 1 of the States concerned areas that are a natural prolongation of the territory of the other. LATERAL BOUNDARY BETWEEN ADJACENT TERRITORIAL WATERS TO BE DRAWN ON AN EQUIDISTANCE BASIS. As was convincingly demonstrated in the maps and diagrams furnished by the Parties, and as has been noted in par. 8, the distorting effects of lateral equidistance lines under certain conditions of coastal configuration are nevertheless comparatively small within the limits of territorial waters, but produce their maximum effect in the localities where the main continental shelf areas lie further out. There is also a direct correlation between the notion of closest proximity to the coast and the sovereign jurisdiction which the coastal State is entitled to exercise and must exercise, not only over the seabed underneath the territorial waters but over the waters themselves, which does not exist in respect of continental shelf areas where there is no jurisdiction over the superjacent waters, and over the seabed only for purposes of exploration and exploitation. Always will b

* bok * cj * tiff * Gem * tin * STATUS OF THE PRINCIPLE (WRT DELIMITATION PROVISION) (A) AS IT STOOD WHEN THE CONVENTION WAS DRAWN UP, (B) AS IT RESULTED FROM THE EFFECT OF THE CONVENTION, AND (C) IN THE LIGHT OF STATE PRACTICE SUBSEQUENT TO THE CONVENTION. The 1st of these questions can conveniently be considered in the form suggested on behalf of Denmark and the Netherlands themselves in the course of the oral hearing, when it was stated that they had not in fact contended that the delimitation article (Art. 6) of the Convention 'embodied already received rules of customary law in the sense that the Convention was merely declaratory of existing rules'. Their contention was, rather, that although prior to the Conference, continental shelf law was only in the formative stage, and State practice lacked uniformity, yet 'the process of the definition and consolidation of the emerging customary law took place through the work of the International Law Commission, the reaction of governments to that work and the proceedings of the Geneva Conference'; and this emerging customary law became 'crystallized in the adoption of the Continental Shelf Convention by the Conference'. COURT REJECTS ABOVE ARGUMENT. The Court cannot accept it as regards the delimitation provision (Art. 6), the relevant parts of which were adopted almost unchanged from the draft of the International Law Commission that formed the basis of discussion at the Conference. The status of the rule in the Convention therefore depends mainly on the processes that led the Commission to propose it. These processes have already been reviewed in connection with the DanishNetherlands contention of an a priori necessity for equidistance, and the Court considers this review sufficient for present purposes also, in order to show that the principle of equidistance, as it now figures in Art. 6, was proposed by the Commission with considerable hesitation, somewhat on an experimental basis, at most de lege ferenda, and not at all de lege lata or as an emerging rule of customary international law. This is clearly not the sort of foundation on which Art. 6 of the Convention could be said to have reflected or crystallized such a rule. RESERVATIONS POSSIBLE. The foregoing conclusion receives significant confirmation from the fact that Art. 6 is one of those in respect of which, under the reservations article of the Convention (Art. 12) reservations may be made by any State on signing, ratifying or acceding,-for, speaking generally, it is a characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making unilateral reservations may, within certain limits, be admitted;-whereas this cannot be so in the case of general or customary law rules and obligations which, by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favor. Consequently, it is to be expected that when, for whatever reason, rules or obligations of this order are embodied, or are intended to be reflected in certain provisions of a convention, such provisions will figure amongst those in respect of which a right of unilateral reservation is not conferred, or is excluded. This expectation is, in principle, fulfilled by Art. 12 of the Geneva Continental Shelf Convention, which permits reservations to be made to all the articles of the Convention 'other than to Art. 1 to 3 inclusive'-these 3 Articles being the ones

29 which, it is clear, were then regarded as reflecting, or as crystallizing, received or at least emergent rules of customary international law relative to the continental shelf, amongst them the question of the seaward extent of the shelf; the jurisdical character of the coastal State's entitlement; the nature of the rights exercisable; the kind of natural resources to which there relate; and the preservation intact of the legal status as high seas of the waters over the shelf, and the legal status of the superjacent air-space. NO RESERVATION, NO PREVIOUSLY EXISTING OR EMERGENT RULES OF LAW. The normal inference would be that any articles that do not figure among those excluded from the faculty of reservation under Art. 12, were not regarded as declaratory of previously existing or emergent rules of law; and this is the inference the Court in fact draws in respect of Art. 6 (delimitation), having regard also to the attitude of the International Law Commission to this provision, as already described in general terms. Naturally this would not of itself prevent this provision from eventually passing into the general corpus of customary international law by one of the processes considered in par. 70-81 below. But what is now under consideration is whether it originally figured in the Convention as such a rule. OTHER EXCLUSIONS. It has been suggested that the inference drawn at the beginning of the preceding paragraph is not necessarily warranted, seeing that there are certain other provisions of the Convention, also not excluded from the faculty of reservation, but which do undoubtedly in principle relate to matters that lie within the field of received customary law, such as the obligation not to impede the laying or maintenance of submarine cables or pipelines on the continental shelf seabed (Art. 4), and the general obligation not unjustifiably to interfere with freedom of navigation, fishing, and so on (Art. 5, par. 1 & 6). These matters however, all relate to or are consequential upon principles or rules of general maritime law, very considerably ante-dating the Convention, and not directly connected with but only incidental to continental shelf rights as such. They were mentioned in the Convention, not in order to declare or confirm their existence, which was not necessary, but simply to ensure that they were not prejudiced by the exercise of continental shelf rights as provided for in the Convention. Another method of drafting might have clarified the point, but this cannot alter the fact that no reservation could release the reserving party from obligations of general maritime law existing outside and independently of the Convention, and especially obligations formalized in Art. 2 of the contemporaneous Convention on the High Seas, expressed by its preamble to be declaratory of established principles of international law. ART. 6-DELIMITATION-DIFFERENT. It does directly relate to continental shelf rights as such, rather than to matters incidental to these; and since it was not, as were Art. 1 to 3, excluded from the faculty of reservation, it is a legitimate inference that it was considered to have a different and less fundamental status and not, like those Articles, to reflect pre-existing or emergent customary law. It was however contended on behalf of Denmark and the Netherlands that the right of reservation given in respect of Art. 6 was not intended to be an unfettered right, and that in particular it does not extend to effecting a total exclusion of the Always will b

* bok * cj * tiff * Gem * tin * equidistance principle of delimitation,-for, so it was claimed, delimitation on the basis of that principle is implicit in Articles 1 and 2 of the Convention, in respect of which no reservations are permitted. Hence the right of reservation under Art. 6 could only be exercised in a manner consistent with the preservation of at least the basic principle of equidistance. In this connection it was pointed out that, of the no more than 4 reservations so far entered in respect of Art. 6, 1 at least of which was somewhat far reaching, none has purported to effect such a total exclusion or denial. The Court finds this argument unconvincing for a number of reasons. Articles 1 and 2 of the Geneva Convention do not appear to have any direct connection with inter-State delimitation as such. Art. 1 is concerned only with the outer, seaward, limit of the shelf generally, not with boundaries between the shelf areas of opposite or adjacent States. Art. 2 is equally not concerned with such boundaries. The suggestion seems to be that the notion of equidistance is implicit in the reference in par. 2 of Art. 2 to the rights of the coastal State over its continental shelf being 'exclusive'. So far as actual language is concerned this interpretation is clearly incorrect. The true sense of the passage is that in whatever areas of the continental shelf a coastal State has rights, those rights are exclusive rights, not exercisable by any other State. But this says nothing as to what in fact are the precise areas in respect of which each coastal State possesses these exclusive rights. This question, which can arise only as regards the fringes of a coastal State's shelf area is, as explained at the end of par. 20, exactly what falls to be settled through the process of delimitation, and this is the sphere of Art. 6, not Art. 2. No valid conclusions can be drawn from the fact that the faculty of entering reservations to Art. 6 has been exercised only sparingly and within certain limits. This is the affair exclusively of those States which have not wished to exercise the faculty, or which have been content to do so only to a limited extent. Their action or inaction cannot affect the right of other States to enter reservations to whatever is the legitimate extent of the right. D & N: EVEN IF, AT THE DATE OF THE GENEVA CONVENTION, NO RULE OF CUSTOMARY INT’L LAW IN FAVOR OF THE EQUIDISTANCE PRINCIPLE, AND NO SUCH RULE WAS CRYSTALLIZED IN ART. 6, SUCH A RULE HAS COME INTO BEING SINCE THE CONVENTION, PARTLY BECAUSE OF ITS OWN IMPACT, PARTLY ON THE BASIS OF SUBSEQUENT STATE PRACTICE,-and that this rule, being now a rule of customary international law binding on all States, including therefore the Federal Republic, should be declared applicable to the delimitation of the boundaries between the Parties' respective continental shelf areas in the North Sea. NORM-CREATING PROVISION? NO. In so far as this contention is based on the view that Art. 6 of the Convention has had the influence, and has produced the effect, described, it clearly involves treating that Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio

30 juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. This process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. This result is not lightly to be regarded as having been attained. AT THE START, IT SHOULD BE NORM-CREATING. It would be necessary that the provision should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law. Considered in abstracto the equidistance principle might be said to fulfill this requirement. Yet in the particular form in which it is embodied in Art. 6, and having regard to the relationship of that Article to other provisions, this must be open to some doubt. In the first place, Art. 6 is so framed as to put 2ND the obligation to make use of the equidistance method, causing it to come after a primary obligation to effect delimitation by agreement. Such a primary obligation constitutes an unusual preface to what is claimed to be a potential general rule of law. Without attempting to enter into, still less pronounce upon any question of jus cogens, it is well understood that, in practice, rules of international law can, by agreement, be derogated from in particular cases, or as between particular parties,-but this is not normally the subject of any express provision, as it is in Art. 6. Secondly the part played by the notion of special circumstances relative to the principle of equidistance as embodied in Art. 6, and the very considerable, still unresolved controversies as to the exact meaning and scope of this notion, must raise further doubts as to the potentially norm-creating character of the rule. Finally, the faculty of making reservations to Art. 6, while it might not of itself prevent the equidistance principle being eventually received as general law, does add considerably to the difficulty of regarding this result as having been brought about (or being potentially possible) on the basis of the Convention: for so long as this faculty continues to exist, and is not the subject of any revision brought about in consequence of a request made under Art. 13-of which there is at present no official indication-it is the Convention itself which would, for the reasons already indicated, seem to deny to the provisions of Art. 6 the same norm-creating character as, for instance, Art. 1 and 2 possess. WRT THE OTHER ELEMENTS usually regarded as necessary before a conventional rule can be considered to have become a general rule of international law, it might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected. Here however, even if allowance is made for the existence of a number of States to whom participation in the Geneva Convention is not open, or which, by reason for instance of being land-locked States, would have no interest in becoming parties to it, the number of ratifications and accessions so far secured is, though respectable, hardly sufficient. That nonratification may sometimes be due to factors other than active disapproval of the convention concerned can hardly constitute a basis on which positive acceptance of its principles can be implied: the reasons are speculative, but the facts remain.

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* bok * cj * tiff * Gem * tin * WRT TIME. It is over 10 years since the Convention was signed, but that it is even now less than 5 since it came into force in June 1964, and that when the present proceedings were brought it was less than 3 years, while less than 1 had elapsed at the time when the respective negotiations between the Federal Republic and the other 2 Parties for a complete delimitation broke down on the question of the application of the equidistance principle. Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked;-and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. WHETHER STATE PRACTICE IN CONTINENTAL SHELF DELIMITATION HAS, SUBSEQUENT TO THE CONVENTION, BEEN OF SUCH A KIND AS TO SATISFY THIS REQUIREMENT? Some 15 cases have been cited in the course of the proceedings, occurring mostly since the signature of the 1958 Geneva Convention, in which continental shelf boundaries have been delimited according to the equidistance principle-in the majority of the cases by agreement, in a few others unilaterally-or else the delimitation was foreshadowed but has not yet been carried out. Amongst these 15 are the 4 North Sea delimitations UK/NorwayDenmark-Netherlands, and Norway/Denmark already mentioned in par. 4. But even if these various cases constituted more than a very small proportion of those potentially calling for delimitation in the world as a whole, it is not necessary to enumerate or evaluate them separately, since there are, a priori, several grounds which deprive them of weight as precedents in the present context. NO OBLIGATION, WHETHER PARTY TO THE CONVENTION OR NOT. Over half the States concerned, whether acting unilaterally or conjointly, were or shortly became parties to the Geneva Convention, and were therefore presumably, so far as they were concerned, acting actually or potentially in the application of the Convention. From their action no inference could legitimately be drawn as to the existence of a rule of customary international law in favor of the equidistance principle. As regards those States, on the other hand, which were not, and have not become parties to the Convention, the basis of their action can only be problematical and must remain entirely speculative. Clearly, they were not applying the Convention. But from that no inference could justifiably be drawn that they believed themselves to be applying a mandatory rule of customary international law. There is not a shred of evidence that they did and, as has been seen (par. 22 and 23), there is no lack of other reasons for using the equidistance method, so that acting, or agreeing to act in a certain way, does not of itself demonstrate anything of a juridical nature. MUST BE SETTLED PRACTICE, DONE WITH SENSE OF OBLIGATION. Even if these instances of action by non-parties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris; -for, in order to achieve this result, 2

31 conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, (ceremonial and protocol) which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty. VIEW OF THE PERMANENT COURT OF INTERNATIONAL JUSTICE IN THE LOTUS CASE adopted: the principle of which is, by analogy, applicable almost word for word, mutatis mutandis, here (P.C.I.J., Series A, No. 10, 1927, at p. 28): 'Even if the rarity of the judicial decisions to be found ... were sufficient to prove ... the circumstance alleged ..., it would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, ...there are other circumstances calculated to show that the contrary is true.' NO LEGAL COMPULSION. In certain cases-not a great number-the States concerned agreed to draw or did draw the boundaries concerned according to the principle of equidistance. There is no evidence that they so acted because they felt legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so-especially considering that they might have been motivated by other obvious factors. USUALLY, OPPOSITE, NOT LATERAL STATES ARE INVOLVED. In almost all of the cases cited, the delimitations concerned were median-line delimitations between opposite States, not lateral delimitations between adjacent States. The case of median-line delimitations between opposite States is different in various respects, and as being sufficiently distinct not to constitute a precedent for the delimitation of lateral boundaries (par.57). In only 1 situation discussed by the Parties does there appear to have been a geographical configuration which to some extent resembles the present one, in the sense that a number of States on the same coastline are grouped around a sharp curve or bend of it. No complete delimitation in this area has however yet been carried out. But the Court is not concerned to deny to this case, or any other of those cited, all evidential value in favor of the thesis of Denmark and the Netherlands. It simply considers that they are inconclusive, and insufficient to bear the weight sought to be put upon them as evidence of such a settled practice, manifested in such circumstances, as would justify the inference that delimitation according to the principle of equidistance amounts to a mandatory rule of customary international law,-more particularly where lateral delimitations are concerned. There are of course plenty Always will b

* bok * cj * tiff * Gem * tin * of cases of delimitations of waters, as opposed to seabed, being carried out on the basis of equidistance-mostly of internal waters (lakes, rivers, etc.), and mostly median-line cases. The nearest analogy is that of adjacent territorial waters, but as already explained (par. 59) the Court does not consider this case to be analogous to that of the continental shelf. IF THE GENEVA CONVENTION WAS NOT IN ITS ORIGINS OR INCEPTION DECLARATORY OF A MANDATORY RULE OF CUSTOMARY INT’L LAW ENJOINING THE USE OF THE EQUIDISTANCE PRINCIPLE FOR THE DELIMITATION OF CONTINENTAL SHELF AREAS BETWEEN ADJACENT STATES, NEITHER HAS ITS SUBSEQUENT EFFECT BEEN CONSTITUTIVE OF SUCH A RULE; AND THAT STATE PRACTICE UP-TO-DATE HAS EQUALLY BEEN INSUFFICIENT FOR THE PURPOSE. This conclusion, coupled with that reached earlier (par. 56) to the effect that the equidistance principle could not be regarded as being a rule of law on any a priori basis of logical necessity deriving from the fundamental theory of the continental shelf, leads to the final conclusion on this part of the case that the use of the equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings. It becomes unnecessary for the Court to determine whether or not the configuration of the German North Sea coast constitutes a 'special circumstance' for the purposes either of Art. 6 or of any rule of customary international law,-since once the use of the equidistance method of delimitation is determined not to be obligatory in any event, it ceases to be legally necessary to prove the existence of special circumstances in order to justify not using that method. COURT TO GUIDE, NOT DICTATE. The Court is not called upon to delimit the areas of continental shelf appertaining respectively to each Party, and in consequence is not bound to prescribe the methods to be employed for the purposes of such a delimitation. It has to indicate to the Parties the principles and rules of law in the light of which the methods for eventually effecting the delimitation will have to be chosen, by providing the Parties with the requisite directions, without substituting itself for them by means of a detailed indication of the methods to be followed and the factors to be taken into account for the purposes of a delimitation the carrying out of which the Parties have expressly reserved to themselves. DELIMITATION MUST BE THE OBJECT OF AGREEMENT BETWEEN THE STATES CONCERNED, AND THAT SUCH AGREEMENT MUST BE ARRIVED AT IN ACCORDANCE WITH EQUITABLE PRINCIPLES. On a foundation of very general precepts of justice and good faith, actual rules of law are here involved which govern the delimitation of adjacent continental shelves- that is to say, rules binding upon States for all delimitations; in short, it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles, in accordance with the ideas which have always underlain the development of the legal regime of the continental shelf in this field, namely: (a) the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of

32 negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it; (b) the parties are under an obligation to act in such a way that, in the particular case, and taking all the circumstances into account, equitable principles are applied,-for this purpose the equidistance method can be used, but other methods exist and may be employed, alone or in combination, according to the areas involved; (c) for the reasons given in paragraphs 43 and 44, the continental shelf of any State must be the natural prolongation of its land territory and must not encroach upon what is the natural prolongation of the territory of another State. WRT RULE 1, NEGOTIATION. The obligation to negotiate which the Parties assumed by Art. 1, par. 2, of the Special Agreements arises out of the Truman Proclamation, which, (par. 47), must be considered as having propounded the rules of law in this field, but also that this obligation merely constitutes a special application of a principle which underlies all international relations, and which is moreover recognized in Art. 33 of the Charter of the U.N. as one of the methods for the peaceful settlement of international disputes. The fundamental character of this method of settlement is emphasized by the observable fact that judicial or arbitral settlement is not universally accepted. DUTY TO NEGOTIATE. As the Permanent Court of International Justice said in its Order of Aug. 19, 1929 in the case of the Free Zones of Upper Savoy and the District of Gex, the judicial settlement of international disputes 'is simply an alternative to the direct and friendly settlement of such disputes between the parties' (P.C.I.J., Series A, No. 22, at p. 13). Defining the content of the obligation to negotiate, the Permanent Court, in its Advisory Opinion in the case of Railway Traffic between Lithuania and Poland, said that the obligation was 'not only to enter into negotiations but also to pursue them as far as possible with a view to concluding agreements', even if an obligation to negotiate did not imply an obligation to reach agreement (P.C.I.J., Series A/B, No. 42, 1931, at p. 116). Here, whatever the details of the negotiations carried on in 1965 and 1966, they failed of their purpose because the Denmark and the Netherlands, convinced that the equidistance principle alone was applicable, in consequence of a rule binding upon the Federal Republic, saw no reason to depart from that rule; and equally, given the geographical considerations stated in the last sentence of par. 7 above, the Federal Republic could not accept the situation resulting from the application of that rule. So far therefore the negotiations have not satisfied the conditions indicated in par. 85 (a), but fresh negotiations are to take place on the basis of the present Judgment. RULE 2, EQUITY. The legal basis of that rule in the particular case of the delimitation of the continental shelf as between adjoining States rests also on a broader basis. Whatever the legal reasoning of a court of justice, its decisions must by definition be just, and therefore in that sense equitable. Nevertheless, when mention is made of a court dispensing justice or declaring the law, what is Always will b

* bok * cj * tiff * Gem * tin * meant is that the decision finds its objective justification in considerations lying not outside but within the rules, and in this field it is precisely a rule of law that calls for the application of equitable principles. There is consequently no question in this case of any decision ex aequo et bono, such as would only be possible under the conditions prescribed by Art. 38, par. 2, of the Court's Statute. Nor would this be the first time that the Court has adopted such an attitude, as is shown by the following passage from the Advisory Opinion given in the case of Judgments of the Administrative Tribunal of the I.L.O. upon Complaints Made against Unesco (I.C.J. Reports 1956, at p. 100): 'In view of this the Court need not examine the allegation that the validity of the judgments of the Tribunal is vitiated by excess of jurisdiction on the ground that it awarded compensation ex aequo et bono. It will confine itself to stating that, in the reasons given by the Tribunal in support of its decision on the merits, the Tribunal said: 'That redress will be ensured ex aequo et bono by the granting to the complainant of the sum set forth below.' It does not appear from the context of the judgment that the Tribunal thereby intended to depart from principles of law. The apparent intention was to say that, as the precise determination of the actual amount to be awarded could not be based on any specific rule of law, the Tribunal fixed what the Court, in other circumstances, has described as the true measure of compensation and the reasonable figure of such compensation (Corfu Channel case, Judgment of Dec. 15th, 1949, I.C.J. Reports 1949, p. 249).' INEQUITY OF THE EQUIDISTANCE METHOD, IN CERTAIN GEOGRAPHICAL CIRCUMSTANCES: (a) The slightest irregularity in a coastline is automatically magnified by the equidistance line as regards the consequences for the delimitation of the continental shelf. Thus it has been seen in the case of concave or convex coastlines that if the equidistance method is employed, then the greater the irregularity and the further from the coastline the area to be delimited, the more unreasonable are the results produced. So great an exaggeration of the consequences of a natural geographical feature must be remedied or compensated for as far as possible, being of itself creative of inequity. (b) In the case of the North Sea in particular, where there is no outer boundary to the continental shelf, it happens that the claims of several States converge, meet and intercross in localities where, despite their distance from the coast, the bed of the sea still unquestionably consists of continental shelf. A study of these convergences, as revealed by the maps, shows how inequitable would be the apparent simplification brought about by a delimitation which, ignoring such geographical circumstances, was based solely on the equidistance method. IS IT NECESSARY TO EMPLOY ONLY ONE METHOD FOR THE PURPOSES OF A GIVEN DELIMITATION? NO. No objection need be felt to the idea of effecting a delimitation of adjoining continental shelf areas by the concurrent use of various methods. Equity does not necessarily imply equality. There can never be any question of completely refashioning nature, and equity does not require that a State without access to the sea should be allotted an area of continental shelf, any more than there could be a question of rendering the situation of a

33 State with an extensive coastline similar to that of a State with a restricted coastline. Equality is to be reckoned within the same plane, and it is not such natural inequalities as these that equity could remedy. But here, there are 3 States whose North Sea coastlines are in fact comparable in length and which, have been given broadly equal treatment by nature except that the configuration of one of the coastlines would, if the equidistance method is used, deny to one of these States treatment equal or comparable to that given the other two. Here, in a theoretical situation of equality within the same order, an inequity is created. What is unacceptable in this instance is that a State should enjoy continental shelf rights considerably different from those of its neighbors merely because in the one case the coastline is roughly convex in form and in the other it is markedly concave, although those coastlines are comparable in length. It is not a question of totally refashioning geography whatever the facts of the situation but, given a geographical situation of quasi-equality as between a number of States, of abating the effects of an incidental special feature from which an unjustifiable difference of treatment could result. SEEK NOT 1 METHOD BUT 1 GOAL. It has been maintained that no one method of delimitation can prevent such results and that all can lead to relative injustices. This can only strengthen the view that it is necessary to seek not one method of delimitation but one goal. As the operation of delimiting is a matter of determining areas appertaining to different jurisdictions, it is a truism to say that the determination must be equitable; rather is the problem above all one of defining the means whereby the delimitation can be carried out in such a way as to be recognized as equitable. Although the Parties have made it known that they intend to reserve for themselves the application of the principles and rules laid down by the Court, it would, even so, be insufficient simply to rely on the rule of equity without giving some degree of indication as to the possible ways in which it might be applied in the present case, it being understood that the Parties will be free to agree upon one method rather than another, or different methods if they so prefer. There is no legal limit to the considerations which States may take account of for the purpose of making sure that they apply equitable procedures, and more often than not it is the balancing-up of all such considerations that will produce this result rather than reliance on one to the exclusion of all others. The problem of the relative weight to be accorded to different considerations naturally varies with the circumstances of the case. BALANCE FACTORS: GEOLOGICAL, GEOGRAPHICAL, IDEA OF THE UNITY OF ANY DEPOSITS, PROPORTIONALITY. These criteria, though not entirely precise, can provide adequate bases for decision adapted to the factual situation. GEOLOGY. The institution of the continental shelf has arisen out of the recognition of a physical fact; and the link between this fact and the law, without which that institution would never have existed, remains an important element for the application of its legal regime. The continental shelf is, by definition, an area physically extending the territory of most coastal States into a species of platform which has attracted the attention first of geographers and hydrographers and then of jurists. The importance of the geological aspect is emphasized by the care which, at the beginning of its investigation, the International Law Commission took Always will b

* bok * cj * tiff * Gem * tin * to acquire exact information as to its characteristics, as can be seen in particular from the definitions to be found on page 131 of Volume I of the Yearbook of the International Law Commission for 1956. The appurtenance of the shelf to the countries in front of whose coastlines it lies, is therefore a fact, and it can be useful to consider the geology of that shelf in order to find out whether the direction taken by certain configurational features should influence delimitation because, in certain localities, they point-up the whole notion of the appurtenance of the continental shelf to the State whose territory it does in fact prolong. GEOGRAPHY. The doctrine of the continental shelf is a recent instance of encroachment on maritime expanses which, during the greater part of history, appertained to no-one. The contiguous zone and the continental shelf are in this respect concepts of the same kind. In both instances the principle is applied that the land dominates the sea; it is consequently necessary to examine closely the geographical configuration of the coastlines of the countries whose continental shelves are to be delimited. This is one of the reasons why the Court does not consider that markedly pronounced configurations can be ignored; for, since the land is the legal source of the power which a State may exercise over territorial extensions to seaward, it must first be clearly established what features do in fact constitute such extensions. Above all is this the case when what is involved is no longer areas of sea, such as the contiguous zone, but stretches of submerged land; for the legal regime of the continental shelf is that of a soil and a subsoil, 2 words evocative of the land and not of the sea. UNITY OF ANY DEPOSITS. The natural resources of the subsoil of the sea in those parts which consist of continental shelf are the very object of the legal regime established subsequent to the Truman Proclamation. Yet it frequently occurs that the same deposit lies on both sides of the line dividing a continental shelf between two States, and since it is possible to exploit such a deposit from either side, a problem immediately arises on account of the risk of prejudicial or wasteful exploitation by one or other of the States concerned. To look no farther than the North Sea, the practice of States shows how this problem has been dealt with, and all that is needed is to refer to the undertakings entered into by the coastal States of that sea with a view to ensuring the most efficient exploitation or the apportionment of the products extracted-(Mar. 10, 1965 agreement between the UK and Norway, Art. 4; the agreement of Oct. 6, 1965 between the Netherlands and the UK relating to 'the exploitation of single geological structures extending across the dividing line on the continental shelf under the North Sea'; and the agreement of May 14, 1962 between the Federal Republic and the Netherlands concerning a joint plan for exploiting the natural resources underlying the area of the Ems Estuary where the frontier between the 2 States has not been finally delimited.) The Court does not consider that unity of deposit constitutes anything more than a factual element which it is reasonable to take into consideration in the course of the negotiations for a delimitation. The Parties are fully aware of the existence of the problem as also of the possible ways of solving it. REASONABLE DEGREE OF PROPORTIONALITY which a delimitation effected according to equitable principles ought to bring about between the extent of the

34 continental shelf appertaining to the States concerned and the lengths of their respective coastlines,-these being measured according to their general direction in order to establish the necessary balance between States with straight, and those with markedly concave or convex coasts, or to reduce very irregular coastlines to their truer proportions. The choice and application of the appropriate technical methods would be a matter for the parties. One method discussed, under the name of the principle of the coastal front, consists in drawing a straight baseline between the extreme points at either end of the coast concerned, or in some cases a series of such lines. Where the parties wish to employ in particular the equidistance method of delimitation, the establishment of one or more baselines of this kind can play a useful part in eliminating or diminishing the distortions that might result from the use of that method. PARTIES TO CHOOSE WHAT’S BEST. In a sea with the particular configuration of the North Sea, and in view of the particular geographical situation of the Parties' coastlines upon that sea, the methods chosen by them for the purpose of fixing the delimitation of their respective areas may happen in certain localities to lead to an overlapping of the areas appertaining to them. The Court considers that such a situation must be accepted as a given fact and resolved either by an agreed, or failing that by an equal division of the overlapping areas, or by agreements for joint exploitation, the latter solution appearing particularly appropriate when it is a question of preserving the unity of a deposit. The Court has examined the problems raised by the present case in its own context, which is strictly that of delimitation. Other questions relating to the general legal regime of the continental shelf, have been examined for that purpose only. This regime furnishes an example of a legal theory derived from a particular source that has secured a general following. As the Court has recalled in the first part of its Judgment, it was the Truman Proclamation of Sept. 28, 1945 which was at the origin of the theory, whose special features reflect that origin. It would therefore not be in harmony with this history to over-systematize a pragmatic construct the developments of which have occurred within a relatively short space of time. For these reasons, THE COURT, by 11 votes to 6, finds that, in each case, (A) the use of the equidistance method of delimitation not being obligatory as between the Parties; and (B) there being no other single method of delimitation the use of which is in all circumstances obligatory; (C) the principles and rules of international law applicable to the delimitation as between the Parties of the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial boundary determined by the agreements of 1 December 1964 and 9 June 1965, respectively, are as follows: (1) delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf Always will b

* bok * cj * tiff * Gem * tin * that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other; (2) if, in the application of the preceding sub-paragraph, the delimitation leaves to the Parties areas that overlap, these are to be divided between them in agreed proportions or, failing agreement, equally, unless they decide on a regime of joint jurisdiction, user, or exploitation for the zones of overlap or any part of them; (D) in the course of the negotiations, the factors to be taken into account are to include: (1) the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features; (2) so far as known or readily ascertainable, the physical and geological structure, and natural resources, of the continental shelf areas involved; (3) the element of a reasonable degree of proportionality, which a delimitation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the coastal State and the length of its coast measured in the general direction of the coastline, account being taken for this purpose of the effects, actual or prospective, of any other continental shelf delimitations between adjacent States in the same region. SEPARATE OPINION OF PRESIDENT J. L. BUSTAMANTE Y RIVERO: doubts par. 59 of the main opinion. “the concept…of ‘natural prolongation’ of the land territory of a State and the extent of the continental shelf appertaining to such land territory.” He prefers low-water mark, “A more stable baseline must be found and it might be obtained by measuring the length of the coastline according to its general direction, by means of a straight line drawn between the 2 extreme points of the marine frontier of the State concerned.” JUDGE JESSUP: concurs, but thought more attention should be given the “realities” of the “just and equitable share,” emphasizing “known or probable existence of deposits of oil and gas in that seabed.” Further, “It is of course true that there is no rule of international law which requires States surrounding an area such as the North Sea to delimit their respective sections of the continental shelf in such a way as to apportion to each State a 'fair share' of the mineral resources on or in that shelf. Such a rule would be impossible of application since it would require as a condition precedent precise knowledge of the location and size or productivity of all parts of the area.” Even if the equidistance method was not mandatory by international law, the Court must assume that the Parties acted in good faith, and should not consider void the licenses previously granted by Denmark and the Netherlands in reliance upon their mutual delimitation agreement of 1966. When claims overlap, agreed division or joint exploitation might be appropriate. JUDGE PADILLA NERVO: concurs, “In my opinion, Article 6 does not embody a pre-existing accepted rule of customary international law, or one which has come to be regarded as such…The acts of the Federal Republic which are invoked as evidence that it has gone quite a long way towards recognizing the Convention, cannot override the fact that it has consistently refused to recognize Article 6 and

35 the equidistance method as an expression of a generally accepted rule of international law and has objected to its applicability as against itself. The Federal Republic, like any other State, could assert its rights over the continental shelf without relying on the Convention. The only principle of general international law implicit in Article 6 is the obligation to negotiate, since the delimitation between the continental shelves of adjacent States 'shall be determined by agreement between them’. The fact that the equidistance method has been followed in several bilateral agreements between neighbouring States does not mean at all that those States were compelled by the Convention to use the equidistance method. It only means that there was agreement between them because they considered such method satisfactory, fair, equitable and convenient. They also departed from the equidistance method when they agreed to do that. JUDGE AMMOUN: concurs, I am in agreement with the majority of the Court in declaring that the equidistance method provided for in Article 6, paragraph 2, of the 1958 Convention, is not opposable as a rule of treaty-law to the Federal Republic of Germany, and that this rule has also not up to the present time become a rule of customary law. On the other hand, I consider that recourse may be had to the equidistance method, qualified by special circumstances, as a legal rule applicable to the case and derived from a general principle of law, namely equity praeter legem. JUDGE KORETZKY: dissents, I consider that the principles and rules of international law enshrined in Art. 6, par. 2, of the Convention on the Continental Shelf ought to be applied in these cases at least qua general principles and rules of international law. But even if one does not agree that this provision is applicable in these cases in its entirety or in part, it is nevertheless necessary that the principles and rules which are applied in the delimitation of a lateral boundary of the continental shelf should have a natural connection with the three interconnected principles and rules-agreement, special circumstances, equidistance-which determine the boundaries of a territorial sea. For, considering that it is a continuation, a natural prolongation of the territorial sea (its bed and subsoil), the continental shelf is not unlimited in extent, whether seaward or laterally, but lies within limits consistently continuing the boundary lines of the territorial sea in accordance with the same principles, rules and treaty provisions as provided the basis for the determination of the territorial sea between the 2 given adjacent States; that is, in these cases, between the Netherlands and Germany on the one hand and between Denmark and Germany on the other. JUDGE TANAKA: agrees as to the 1ST principle of international law to be applied in the delimitation or the obligation to enter into negotiations with a view to arriving at an agreement. But on the “substantive” issue as to equidistance principle or equitable principle, he dissents: 1) the Court recognizes that delimitation by the application of the equidistance principle would produce in the present cases an unjust & inequitable effect detrimental to Germany, which is not the case, as stated above; 2) on this hypothesis, the Court admits in favor of the Federal Republic an appeal to higher ideas of law such as justice, equity or equitableness, and reasonableness, which are self-evident but which, owing to their general and abstract character, are unable to furnish any concrete criteria for delimitation in Always will b

* bok * cj * tiff * Gem * tin * the present cases. Reference to the equitable principle is nothing else but begging the question; and 3) the factors which may be taken into consideration to carry out the equitable principle are of diverse nature and susceptible of different evaluations. Consequently, it appears extremely doubtful whether the negotiations could be expected to achieve a successful result, and more likely that they would engender new complications and chaos. The important matter in connection with the present cases is that the Parties should have a guarantee of being able to terminate the possibly endless repetition of detailed negotiations by the final application of the equidistance principle. Another important matter should be that, the Court by according the equidistance principle the status of a world law would make a contribution to the progressive development of international law.

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JUDGE LACHS: dissents, the real legal problem with which the Court has been confronted is not that of the binding effect of the equidistance rule upon the Federal Republic, for this is established, but the question of whether there are special circumstances which would justify a departure from it in the present cases. No such special circumstances exist. The evidence produced in the cases before the Court is not in fact sufficient to justify an exemption from the rule. It has not been shown that its application would, on account of the bend in the coast, expose the Federal Republic to any special hardship, impose upon it any undue burdens or create for it any serious difficulties. He finds no adequate basis for exemption from the equidistance rule, thus, Art. 6 must be applied JUDGE SØRENSEN: dissents, since the Convention belongs to a particular category of multilateral conventions, namely those which result from the work of the United Nations in the field of codification and progressive development of international law, under Art. 13 of the Charter. Contrary to the majority opinion’s “minimum conditions for recognizing that a treaty provision attains the character of a generally accepted rule of customary law,” he says that “a relevant element that a convention has been adopted in the process of codification and development of international law under the UN Charter.” Since the Geneva Convention has been ratified or acceded to by a significant number of nations all over the world and no state exercising sovereign rights over its continental shelf per the provisions of the Convention has met protest other than those arising from interpretation of the provisions, he posits that “as a result of a continuous process over a quarter of a century, the rules embodied in the Geneva Convention on the Continental Shelf have now attained the status of generally accepted rules of international law.” The general rule must be applied. “But the Court has to base its findings on the geographical and political factors as they are, and not upon comparisons with hypothetical situations. The politico-geographical circumstances of coastal States all over the world, including those around the North Sea, are extremely different and have the effect of producing great inequalities as to the areas of continental shelf which each State could claim under the principle of equidistance. The special circumstances clauses of Art. 6 cannot reasonably be understood as being designed to rectify any such inequalities caused by elementary geographical factors in combination with the location of political frontiers.”

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