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Summary of the Summary of the Advisory Opinion of 16 October 1975

WESTERN SAHARA

Advisory Opinion of 16 October 1975

In its Advisory Opinion which the General Assembly of the United Nations had requested on two
questions concerning Western Sahara, the Court,

With regard to Question I, "Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of
colonization by Spain a territory belonging to no one (terra nullius)?",

- decided by 13 votes to 3 to comply with the request for an advisory opinion;

- was unanimously of opinion that Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of
colonization by Spain was not a territory belonging to no one (terra nullius).

With regard to Question II, "What were the legal ties between this territory and the Kingdom of Morocco
and the Mauritanian entity?", the Court

- decided by 14 votes to 2 to comply with the request for an advisory opinion;

- was of opinion, by 14 votes to 2, that there were legal ties between this territory and the Kingdom of
Morocco of the kinds indicated in the penultimate paragraph of the Advisory Opinion;

- was of opinion, by 15 votes to 1, that there were legal ties between this territory and the Mauritanian
entity of the kinds indicated in the penultimate paragraph of the Advisory Opinion.

The penultimate paragraph of the Advisory Opinion was to the effect that:

The materials and information presented to the Court show the existence, at the time of Spanish
colonization, of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in
the territory of Western Sahara. They equally show the existence of rights, including some rights relating
to the land, which constituted legal ties between the Mauritanian entity, as understood by the Court, and
the territory of Western Sahara. On the other hand, the Court's conclusion is that the materials and
information presented to it do not establish any tie of territorial sovereignty between the territory of
Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found
legal ties of such a nature as might affect the application of General Assembly resolution 1514 (XV) in
the decolonization of Western Sahara and, in particular, of the principle of self-determination through the
free and genuine expression of the will of the peoples of the Territory.

For these proceedings the Court was composed as follows: President Lachs; Vice-President Ammoun;
Judges Forster, Gros, Bengzon, Petrn, Onyeama, Dillard, Ignacio-Pinto, de Castro, Morozov, Jimnez
de Archaga, Sir Humphrey Waldock, Nagendra Singh and Ruda; Judge ad hoc Boni.

Judges Gros, Ignacio-Pinto and Nagendra Singh appended declarations to the Advisory Opinion; Vice-
President Ammoun and Judges Forster, Petrn, Dillard, de Castro and Boni appended separate opinions,
and Judge Ruda a dissenting opinion.

In these declarations and opinions the judges concerned make clear and explain their positions.

**

Course of the Proceedings

(paras. 1-13 of Advisory Opinion)

The Court first recalls that the General Assembly of the United Nations decided to submit two questions
for the Court's advisory opinion by resolution 3292 (XXIX) adopted on 13 December 1974 and received
in the Registry on 21 December. It retraces the subsequent steps in the proceedings, including the
transmission of a dossier of documents by the Secretary-General of the United Nations (Statute, Art. 65,
para. 2) and the presentation of written statements or letters and/or oral statements by 14 States, including
Algeria, Mauritania, Morocco, Spain and Zaire (Statute, Art. 66).

Mauritania and Morocco each asked to be authorized to choose a judge ad hoc to sit in the proceedings.
By an Order of 22 May 1975 (I.C.J. Reports 1975, p. 6), the Court found that Morocco was entitled under
Articles 31 and 68 of the Statute and Article 89 of the Rules of Court to choose a person to sit as judge ad
hoc, but that, in the case of Mauritania, the conditions for the application of those Articles had not been
satisfied. At the same time the Court stated that those conclusions in no way prejudged its views with
regard to the questions referred to it or any other question which might fall to be decided, including those
of its competence to give an advisory opinion and the propriety of exercising that competence.

Competence of the Court

(paras. 14-22 of Advisory Opinion)

Under Article 65, paragraph 1, of the Statute, the Court may give an advisory opinion on any legal
question at the request of any duly authorized body. The Court notes that the General Assembly of the
United Nations is suitably authorized by Article 96, paragraph 1, of the Charter and that the two questions
submitted are framed in terms of law and raise problems of international law. They are in principle
questions of a legal character, even if they also embody questions of fact, and even if they do not call
upon the Court to pronounce on existing rights and obligations. The Court is accordingly competent to
entertain the request.

Propriety of Giving an Advisory Opinion

(paras. 23-74 of Advisory Opinion)

Spain put forward objections which in its view would render the giving of an opinion incompatible with
the Court's judicial character. It referred in the first place to the fact that it had not given its consent to the
Court's adjudicating upon the questions submitted. It maintained (a) that the subject of the questions was
substantially identical to that of a dispute concerning Western Sahara which Morocco, in September
1974, had invited it to submit jointly to the Court, a proposal which it had refused: the advisory
jurisdiction was therefore being used to circumvent the principle that the Court has no jurisdiction to
settle a dispute without the consent of the parties; (b) that the case involved a dispute concerning the
attribution of territorial sovereignty over Western Sahara and that the consent of States was always
necessary for the adjudication of such disputes; (c) that in the circumstances of the case the Court could
not fulfil the requirements of good administration of justice with regard to the determination of the facts.
The Court considers (a) that the General Assembly, while noting that a legal controversy over the status
of Western Sahara had arisen during its discussions, did not have the object of bringing before the Court a
dispute or legal controversy with a view to its subsequent peaceful settlement, but sought an advisory
opinion which would be of assistance in the exercise of its functions concerning the decolonization of the
territory, hence the legal position of Spain could not be compromised by the Court's answers to the
questions submitted; (b) that those questions do not call upon the Court to adjudicate on existing
territorial rights; (c) that it has been placed in possession of sufficient information and evidence.

Spain suggested in the second place that the questions submitted to the Court were academic and devoid
of purpose or practical effect, in that the United Nations had already settled the method to be followed for
the decolonization of Western Sahara, namely a consultation of the indigenous population by means of a
referendum to be conducted by Spain under United Nations auspices. The Court examines the resolutions
adopted by the General Assembly on the subject, from resolution 1514 (XV) of 14 December 1960, the
Declaration on the Granting of Independence to Colonial Countries and Peoples, to resolution 3292
(XXIX) on Western Sahara, embodying the request for advisory opinion. It concludes that the
decolonization process envisaged by the General Assembly is one which will respect the right of the
population of Western Sahara to determine their future political status by their own freely expressed will.
This right to self-determination, which is not affected by the request for advisory opinion and constitutes
a basic assumption of the questions put to the Court, leaves the General Assembly a measure of discretion
with respect to the forms and procedures by which it is to be realized. The Advisory Opinion will thus
furnish the Assembly with elements of a legal character relevant to that further discussion of the problem
to which resolution 3292 (XXIX) alludes.

Consequently the Court finds no compelling reason for refusing to give a reply to the two questions
submitted to it in the request for advisory opinion.

Question 1: "Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the Time of Colonization by
Spain a Territory Belonging to No One (terra nullius)?"

(paras. 75-83 of Advisory Opinion)

For the purposes of the Advisory Opinion, the "time of colonization by Spain" may be considered as the
period beginning in 1884, when Spain proclaimed its protectorate over the Rio de Oro. It is therefore by
reference to the law in force at that period that the legal concept of terra nullius must be interpreted. In
law, "occupation" was a means of peaceably acquiring sovereignty over territory otherwise than by
cession or succession; it was a cardinal condition of a valid "occupation" that the territory should be terra
nullius. According to the State practice of that period, territories inhabited by tribes or peoples having a
social and political organization were not regarded as terrae nullius: in their case sovereignty was not
generally considered as effected through occupation, but through agreements concluded with local rulers.
The information furnished to the Court shows (a) that at the time of colonization Western Sahara was
inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs
competent to represent them; (b) that Spain did not proceed upon the basis that it was establishing its
sovereignty over terrae nullius: thus in his Order of 26 December 1884 the King of Spain proclaimed
that he was taking the Rio de Oro under his protection on the basis of agreements entered into with the
chiefs of local tribes.

The Court therefore gives a negative answer to Question I. In accordance with the terms of the request for
advisory opinion, "if the answer to the first question is in the negative", the Court is to reply to Question
II.

Question 11: "What Were the Legal Ties of This Territory with the Kingdom of Morocco and the
Mauritanian Entity?"

(paras. 84-161 of Advisory Opinion)

The meaning of the words "legal ties" has to be sought in the object and purpose of resolution 3292
(XXIX) of the United Nations General Assembly. It appears to the Court that they must be understood as
referring to such legal ties as may affect the policy to be followed in the decolonization of Western
Sahara. The Court cannot accept the view that the ties in question could be limited to ties established
directly with the territory and without reference to the people who may be found in it. At the time of its
colonization the territory had a sparse population that for the most part consisted of nomadic tribes the
members of which traversed the desert on more or less regular routes, sometimes reaching as far as
southern Morocco or regions of present-day Mauritania Algeria or other States. These tribes were of the
Islamic faith.

Morocco (paragraphs 90-129 of the Advisory Opinion) presented its claim to legal ties with Western
Sahara as a claim to ties of sovereignty on the ground of an alleged immemorial possession of the
territory and an uninterrupted exercise of authority. In the view of the Court, however, what must be of
decisive importance in determining its answer to Question II must be evidence directly relating to
effective display of authority in Western Sahara at the time of its colonization by Spain and in the period
immediately preceding. Morocco requests that the Court should take account of the special structure of
the Moroccan State. That State was founded on the common religious bond of Islam and on the
allegiance of various tribes to the Sultan, through their caids or sheiks, rather than on the notion of
territory. It consisted partly of what was called the Bled Makhzen, areas actually subject to the Sultan,
and partly of what was called the Bled Siba, areas in which the tribes were not submissive to him; at the
relevant period, the areas immediately to the north of Western Sahara lay within the Bled Siba.

As evidence of its display of sovereignty in Western Sahara, Morocco invoked alleged acts of internal
display of Moroccan authority, consisting principally of evidence said to show the allegiance of Saharan
caids to the Sultan, including dahirs and other documents concerning the appointment of caids, the
alleged imposition of Koranic and other taxes, and acts of military resistance to foreign penetration of the
territory. Morocco also relied on certain international acts said to constitute recognition by other States of
its sovereignty over the whole or part of Western Sahara, including (a) certain treaties concluded with
Spain, the United States and Great Britain and Spain between 1767 and 1861, provisions of which dealt
inter alia with the safety of persons shipwrecked on the coast of Wad Noun or its vicinity, (b) certain
bilateral treaties of the late nineteenth and early twentieth centuries whereby Great Britain, Spain, France
and Germany were said to have recognized that Moroccan sovereignty extended as far south as Cape
Bojador or the boundary of the Rio de Oro.

Having considered this evidence and the observations of the other States which took part in the
proceedings, the Court finds that neither the internal nor the international acts relied upon by Morocco
indicate the existence at the relevant period of either the existence or the international recognition of legal
ties of territorial sovereignty between Western Sahara and the Moroccan State. Even taking account of the
specific structure of that State, they do not show that Morocco displayed any effective and exclusive State
activity in Western Sahara. They do, however, provide indications that a legal tie of allegiance existed at
the relevant period between the Sultan and some, but only some, of the nomadic peoples of the territory,
through Tekna caids of the Noun region, and they show that the Sultan displayed, and was recognized by
other States to possess, some authority or influence with respect to those tribes.

The term "Mauritanian entity" (paragraphs 139-152 of the Advisory Opinion) was first employed during
the session of the General Assembly in 1974 at which resolution 3292 (XXIX), requesting an advisory
opinion of the Court, was adopted. It denotes the cultural, geographical and social entity within which the
Islamic Republic of Mauritania was to be created. According to Mauritania, that entity, at the relevant
period, was the Bilad Shinguitti or Shinguitti country, a distinct human unit, characterized by a common
language, way of life, religion and system of laws, featuring two types of political authority: emirates and
tribal groups.

Expressly recognizing that these emirates and tribes did not constitute a State, Mauritania suggested that
the concepts of "nation" and of "people" would be the most appropriate to explain the position of the
Shinguitti people at the time of colonization. At that period, according to Mauritania, the Mauritanian
entity extended from the Senegal river to the Wad Sakiet El Hamra. The territory at present under Spanish
administration and the present territory of the Islamic Republic of Mauritania thus together constituted
indissociable parts of a single entity and had legal ties with one another.

The information before the Court discloses that, while there existed among them many ties of a racial,
linguistic, religious, cultural and economic nature, the emirates and many of the tribes in the entity were
independent in relation to one another; they had no common institutions or organs. The Mauritanian
entity therefore did not have the character of a personality or corporate entity distinct from the several
emirates or tribes which comprised it. The Court concludes that at the time of colonization by Spain there
did not exist between the territory of Western Sahara and the Mauritanian entity any tie of sovereignty, or
of allegiance of tribes, or of simple inclusion in the same legal entity. Nevertheless, the General Assembly
does not appear to have so framed Question II as to confine the question exclusively to those legal ties
which imply territorial sovereignty, which would be to disregard the possible relevance of other legal ties
to the decolonization process. The Court considers that, in the relevant period, the nomadic peoples of the
Shinguitti country possessed rights, including some rights relating to the lands through which they
migrated. These rights constituted legal ties between Western Sahara and the Mauritanian entity. They
were ties which knew no frontier between the territories and were vital to the very maintenance of life in
the region.

Morocco and Mauritania both laid stress on the overlapping character of the respective legal ties which
they claimed Western Sahara to have had with them at the time of colonization (paragraphs 153-160 of
the Advisory Opinion). Although their views appeared to have evolved considerably in that respect, the
two States both stated at the end of the proceedings that there was a north appertaining to Morocco and a
south appertaining to Mauritania without any geographical void in between, but with some overlapping
as a result of the intersection of nomadic routes. The Court confines itself to noting that this geographical
overlapping indicates the difficulty of disentangling the various relationships existing in the Western
Sahara region at the time of colonization.

INTERNATIONAL STATUS OF SOUTH-WEST AFRICA


Advisory Opinion of 11 July 1950

The question concerning the International States of South West Africa had been referred for an
advisory opinion to the Court by the General Assembly of the United Nations (G.A. resolution of
6 December 1949).

The Court decided unanimously that South-West Africa was a territory under the international
Mandate assumed by the Union of South Africa on December 17th, 1920;

by 12 votes to 2 that the Union of South Africa continued to have the international obligations
resulting from the Mandate, including the obligation to submit reports and transmit petitions from
the inhabitants of that Territory, the supervisory functions to be exercised by the United Nations
and the reference to the Permanent Court of International Justice to be replaced by reference to
the International Court of Justice, in accordance with Article 7 of the Mandate and Article 37 of
the Statute of the Court;

unanimously that the provisions of Chapter XII of the Charter were applicable to the Territory of
South-West Africa in the sense that they provided a means by which the Territory may be brought
under the Trusteeship system;

by 8 votes to 6 that the Charter did not impose on the Union of South Africa a legal obligation to
place the Territory under Trusteeship;

and finally, unanimously that the Union of South Africa was not competent to modify the
international status of South-West Africa, such competence resting with the Union acting with the
consent of the United Nations.

**

The circumstances in which the Court was called upon to give its opinion were the following:

The Territory of South-West Africa was one of the German overseas possessions in respect of
which Germany, by Article 119 of the Treaty of Versailles renounced all her rights and titles in
favour of the Principal Allied and Associated Powers. After the war of 1914-1918 this Territory
was placed under a Mandate conferred upon the Union of South Africa which was to have full
power of administration and legislation over the Territory as an integral portion of the Union. The
Union Government was to exercise an international Sanction of administration on behalf of the
League, with the object of promoting the well-being and development of the inhabitants.

After the second world war, the Union of South Africa, alleging that the Mandate had lapsed,
sought the recognition of the United Nations to the integration of the Territory in the Union.
The United Nations refused their consent to this integration and invited the Union of South Africa
to place the Territory under Trusteeship, according to the provisions of Chapter XII of the
Charter.

The Union of South Africa having refused to comply, the General Assembly of the United
Nations, on December 6th, 1949, adopted the following resolution:

The General Assembly,

Recalling its previous resolutions 65 (I) of 14 December 1946, 141 (II) of 1 November 1947 and
227 (III) of 26 November 1948 concerning the Territory of South-West Africa,

Considering that it is desirable that the General Assembly, for its further consideration of the question,
should obtain an advisory opinion on its legal aspects,

1. Decides to submit the following questions to the International Court of Justice with a request
for an advisory opinion which shall be transmitted to the General Assembly before its fifth
regular session, if possible:

"What is the international status of the Territory of South-West Africa and what are the
international obligations of the Union of South Africa arising therefrom, in particular:

"(a) Does the Union of South Africa continue to have international obligations under the
Mandate for South-West Africa and, if so, what are those obligations?

"(b) Are the provisions of Chapter XII of the Charter applicable and, if so, in what
manner, to the Territory of South-West Africa?

"(c) Has the Union of South Africa the competence to modify the international status of
the Territory of South West Africa, or, in the event of a negative reply, where does
competence rest to determine and modify the international status of the Territory?"

2. Requests the Secretary-General to transmit the present resolution to the International Court of
Justice, in accordance with Article 65 of the Statute of the Court, accompanied by all documents
likely to throw light upon the question.

The Secretary-General shall include among these documents the text of article 22 of the Covenant
of the League of Nations; the text of the Mandate for German South-West Africa, confirmed by
the Council of the League on 17 December 1920; relevant documentation concerning the
objectives and the Sanctions of the Mandates System; the text of the resolution adopted by the
League of Nations on the question of Mandates on 18 April 1946; the text of Articles 77 and 80 of
the Charter and data on the discussion of these Articles in the San Francisco Conference and the
General Assembly; the report of the Fourth Committee and the official records, including the
annexes, of the consideration of the question of South-West Africa at the fourth session of the
General Assembly.
*

**

In its opinion the Court examined first if the Mandate conferred by the Principal Allied and
Associated Powers on His Britannic Majesty, to be exercised on his behalf by the Union of South
Africa, over the Territory of South-West Africa was still in existence. The Court declared that the
League was not a "mandator" in the sense in which this term is used in the national law of certain
states. The Mandate had only the name in common with the several notions of mandate in
national law. The essentially international character of the functions of the Union appeared from
the fact that these functions were subject to the supervision of the Council of the League and to
the obligation to present annual reports to it; it also appeared from the fact that any Member of
the League could submit to the Permanent Court of International Justice any dispute with the
Union Government relating to the interpretation or the application of the provisions of the
Mandate.

The international obligations assumed by the Union of South Africa were of two kinds. One kind
was directly related to the administration of the Territory and corresponded to the sacred trust of
civilization referred to in article 22 of the Covenant; the other related to the machinery for
implementation and was closely linked to the supervision and control of the League. It
corresponded to the "securities for the performance of this trust" referred to in the same Article.

The obligations of the first group represent the very essence of the sacred trust of civilization.
Their raison d'tre and original object remain. Since their fulfilment did not depend on the
existence of the League of Nations, they could not be brought to an end merely because this
supervisory organ ceased to exist. This view is confirmed by Article 80, paragraph 1, of the
Charter, maintaining the rights of States and peoples and the terms of existing international
instruments until the territories in question are placed under the trusteeship system. Moreover, the
resolution of the League of Nations of April 18, 1946, said that the League's functions with
respect to mandated territories would come to an end; it did not say that the Mandates themselves
came to an end.

By this Resolution the Assembly of the League of Nations manifested its understanding that the
Mandates would continue in existence until "other arrangements" were established and the Union
of South Africa, in declarations made to the League of Nations as well as to the United Nations,
had recognized that its obligations under the Mandate continued after the disappearance of the
League. Interpretation placed upon legal instruments by the parties to them, though not
conclusive as to their meaning, have considerable probative value when they contain recognition
by a party of its own obligations under an instrument.

With regard to the second group of obligations, the Court said that some doubts might arise from
the fact that the supervisory functions of the League with regard to mandated territories not
placed under the new trusteeship system were neither expressly transferred to the United Nations,
nor expressly assumed by that Organization. Nevertheless, the obligation incumbent upon a
Mandatory State to accept international supervision and to submit reports is an important part of
the Mandates System. It could not be concluded that the obligation to submit to supervision had
disappeared merely because the supervisory organ had ceased to exist when the United Nations
had another international organ performing similar, though not identical, supervisory functions.

These general considerations were confirmed by Article 80, paragraph 1, of the Charter, which
purports to safeguard not only the rights of States, but also the rights of the peoples of mandated
territories until trusteeship agreements were concluded. The competence of the General Assembly
of the United Nations to exercise such supervision and to receive and examine reports is derived
from the provisions of Article 10 of the Charter, which authorizes the General Assembly to
discuss any questions on any matters within the scope of the Charter, and make recommendations
to the Members of the United Nations. Moreover, the Resolution of April 18th, 1946, of the
Assembly of the League of Nations presupposes that the supervisory functions exercised by the
League would be taken over by the United Nations.

The right of petition was not mentioned in the Covenant or the Mandate, but was organized by a
decision of the Council of the League. The Court was of opinion that this right which the
inhabitants of South-West Africa had thus acquired, was maintained by Article 80, paragraph 1, of
the Charter, as this clause was interpreted above. The Court was therefore of the opinion that
petitions are to be transmitted by the Government of the Union to the General Assembly of the
United Nations, which is legally qualified to deal with them.

Therefore, South-West Africa is still to be considered a territory held under the Mandate of
December 17th, 1920. The degree of supervision by the General Assembly should not exceed that
which applied under the Mandates System. These observations apply to annual reports and
petitions.

Having regard to Article 37 of the Statute of the International Court of Justice and Article 80,
paragraph 1, of the Charter, the Court was of opinion that this clause in the Mandate was still in
force, and therefore that the Union of South Africa was under an obligation to accept the
compulsory jurisdiction of the Court according to those provisions.

With regard to question (b) the Court said that Chapter XII of the Charter applied to the Territory
of South-West Africa in this sense, that it provides a means by which the Territory may be
brought under the trusteeship system.

With regard to the second part of the question, dealing with the manner in which those provisions
are applicable, the Court said that the provisions of this chapter did not impose upon the Union of
South Africa an obligation to put the Territory under Trusteeship by means of a Trusteeship
Agreement. This opinion is based on the permissive language of Articles 75 and 77. These
Articles refer to an "agreement" which implies consent of the parties concerned. The fact that
Article 77 refers to the "voluntary" placement of certain Territories under Trusteeship does not
show that the placing of other territories under Trusteeship is compulsory. The word "voluntary"
used with respect to territories in category (c) in Article 77 can be explained as having been used
out of an abundance of caution and as an added assurance of free initiative to States having
territories falling within that category.
The Court considered that if Article 80, paragraph 2 had been intended to create an obligation for
a Mandatory State to negotiate and conclude an agreement, such intention would have been
expressed in a direct manner. It considered also that this article did not create an obligation to
enter into negotiations with a view to concluding a Trusteeship Agreement as this provision
expressly refers to delay or postponement "of the negotiation and conclusion", and not to
negotiations only. Moreover, it refers not merely to territories held under mandate but also to
other territories. Finally the obligation merely to negotiate does not of itself assure the conclusion
of Trusteeship Agreements. It is true that the Charter has contemplated and regulated only one
single system, the international Trusteeship system. If it may be concluded that it was expected
that the mandatory States would follow the normal course indicated by the Charter and conclude
Trusteeship Agreements, the Court was unable to deduce from these general considerations any
legal obligation for mandatory States to conclude or negotiate such agreements. It is not for the
Court to pronounce on the political or moral duties which these considerations may involve.

With regard to question (c) the Court decided that the Union had no competence to modify
unilaterally the international status of the Territory. It repeated that the normal way of modifying
the international status of the Territory would be to place it under the Trusteeship System by
means of a Trusteeship Agreement, in accordance with the provisions of Chapter XII of the
Charter.

Article 7 of the Mandate required the authorization of the Council of the League for any
modifications of its terms. In accordance with the reply given to question (a) the Court said that
those powers of supervision now belong to the General Assembly of the United Nations. Articles
79 and 85 of the Charter required that a trusteeship agreement be approved by the General
Assembly. By analogy it could be inferred that the same procedure was applicable to any
modification of the international status of a territory under Mandate which would not have for its
purpose the placing of the territory under the trusteeship system.

Moreover, the Union of South Africa itself decided to submit the question of the future
international status of the territory to the "judgment" of the General Assembly as the "competent
international organ". In so doing, the Union recognised the competence of the General Assembly
in the matter. On the basis of these considerations, the Court concluded that competence to
determine and modify the international status of the Territory rested with the Union, acting in
agreement with the United Nations.

Sir Arnold McNair and Judge Read appended to the Court's Opinion a statement of their separate
opinions.

Availing themselves of the right conferred on them by Article 57 of the Statute, Judges Alvarez,
De Visscher and Krylov appended to the Opinion statements of their dissenting opinions.

Vice-President Guerrero declared that he could not concur in the Court's opinion on the answer to
question (b). For him, the Charter imposed on the South African Union an obligation to place the
Territory under Trusteeship. On this point and on the text in general, he shared the views
expressed by Judge De Visscher.
Judges Zoricic and Badawi Pasha declared that they were unable to concur in the answer given by
the Court to the second part of the question under letter (b) and declared that they shared in the
general views expressed on this point in the dissenting opinion of Judge De Visscher.

The Court's opinion was given in a public hearing. Oral statements were presented on behalf of
the Secretary-General of the United Nations by the Assistant Secretary-General in charge of the
Legal Department, and on behalf of the Governments of the Philippines and of the Union of
South Africa.

LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF


SOUTH AFRICA IN NAMIBIA (SOUTH-WEST AFRICA)
NOTWITHSTANDING SECURITY COUNCIL RESOLUTION 276 (1970)

Advisory Opinion of 21 June 1971

In its advisory opinion on the question put by the Security Council of the United Nations, "What are the
legal consequences for States of the continued presence of South Africa in Namibia notwithstanding
Security Council resolution 276 (1970)?", the Court was of opinion,

by 13 votes to 2,

(1) that, the continued presence of South Africa in Namibia being illegal, South Africa is under obligation
to withdraw its administration from Namibia immediately and thus put an end to its occupation of the
Territory;

by 11 votes to 4,

(2) that States Members of the United Nations are under obligation to recognize the illegality of South
Africa's presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to
refrain from any acts and in particular any dealings with the Government of South Africa implying
recognition of the legality of, or lending support or assistance to, such presence and administration;

(3) that it is incumbent upon States which are not Members of the United Nations to give assistance,
within the scope of subparagraph (2) above, in the action which has been taken by the United Nations
with regard to Namibia.

**

For these proceedings the Court was composed as follows: President Sir Muhammad Zafrulla Khan; Vice-
President Ammoun; Judges Sir Gerald Fitzmaurice, Padilla Nervo, Forster, Gros, Bengzon, Petrn,
Lachs, Onyeama, Dillard, Ignacio-Pinto, de Castro, Morozov and Jimnez de Archaga.
The President of the Court, Sir Muhammad Zafrulla Khan, has appended a declaration to the Advisory
Opinion. Vice-President Ammoun and Judges Padilla Nervo, Petrn, Onyeama, Dillard and de Castro
have appended separate opinions. Judge Sir Gerald Fitzmaurice and Judge Gros have appended dissenting
opinions.

Course of the Proceedings

(paras. 1-18 of the Advisory Opinion)

The Court first recalls that the request for the advisory opinion emanated from the United Nations
Security Council, which decided to submit it by resolution 284 (1970) adopted on 29 July 1970. The
Court goes on to recapitulate the different steps in the subsequent proceedings.

It refers in particular to the three Orders of 26 January 1971 whereby the Court decided not to accede to
the objections raised by the Government of South Africa against the participation in the proceedings of
three Members of the Court. These objections were based on statements which the Judges in question had
made in a former capacity as representatives of their Governments in United Nations organs dealing with
matters concerning Namibia, or on their participation in the same capacity in the work of those organs.
The Court came to the conclusion that none of the three cases called for the application of Article 17,
paragraph 2, of its Statute.

Objections against the Court's Dealing with the Question

(paras. 19-41 of the Advisory Opinion)

The Government of South Africa contended that the Court was not competent to deliver the opinion,
because Security Council resolution 284 (1970) was invalid for the following reasons: (a) two permanent
members of the Council abstained during the voting (Charter of the United Nations, Art. 27, para. 3); (b)
as the question related to a dispute between South Africa and other Members of the United Nations, South
Africa should have been invited to participate in the discussion (Charter, Art. 32) and the proviso
requiring members of the Security Council which are parties to a dispute to abstain from voting should
have been observed (Charter, Art. 27, para. 3). The Court points out that (a) for a long period the
voluntary abstention of a permanent member has consistently been interpreted as not constituting a bar to
the adoption of resolutions by the Security Council; (b) the question of Namibia was placed on the agenda
of the Council as a situation and the South African Government failed to draw the Council's attention to
the necessity in its eyes of treating it as a dispute.

In the alternative the Government of South Africa maintained that even if the Court had competence it
should nevertheless, as a matter of judicial propriety, refuse to give the opinion requested, on account of
political pressure to which it was contended, the Court had been or might be subjected. On 8 February
1971, at the opening of the public sittings, the President of the Court declared that it would not be proper
for the Court to entertain those observations, bearing as they did on the very nature of the Court as the
principal judicial organ of the United Nations, an organ which, in that capacity, acts only on the basis of
law, independently of all outside influences or interventions whatsoever.
The Government of South Africa also advanced another reason for not giving the advisory opinion
requested: that the question was in reality contentious, because it related to an existing dispute between
South Africa and other States. The Court considers that it was asked to deal with a request put forward by
a United Nations organ with a view to seeking legal advice on the consequences of its own decisions. The
fact that, in order to give its answer, the Court might have to pronounce on legal questions upon which
divergent views exist between South Africa and the United Nations does not convert the case into a
dispute between States. (There was therefore no necessity to apply Article 83 of the Rules of Court,
according to which, if an advisory opinion is requested upon a legal question "actually pending between
two or more States", Article 31 of the Statute, dealing with judges ad hoc, is applicable; the Government
of South Africa having requested leave to choose a judge ad hoc, the Court heard its observations on that
point on 27 January 1971 but, in the light of the above considerations, decided by the Order of
29 January 1971 not to accede to that request.)

In sum, the Court saw no reason to decline to answer the request for an advisory opinion.

History of the Mandate

(paras. 42-86 of the Advisory Opinion)

Refuting the contentions of the South African Government and citing its own pronouncements in previous
proceedings concerning South West Africa (Advisory Opinions of 1950, 1955 and 1956; Judgment of
1962), the Court recapitulates the history of the Mandate.

The mandates system established by Article 22 of the Covenant of the League of Nations was based upon
two principles of paramount importance: the principle of non-annexation and the principle that the well-
being and development of the peoples concerned formed a sacred trust of civilisation. Taking the
developments of the past half century into account, there can be little doubt that the ultimate objective of
the sacred trust was self-determination and independence. The mandatory was to observe a number of
obligations, and the Council of the League was to see that they were fulfilled. The rights of the mandatory
as such had their foundation in those obligations.

When the League of Nations was dissolved, the raison d'etre and original object of these obligations
remained. Since their fulfilment did not depend on the existence of the League, they could not be brought
to an end merely because the supervisory organ had ceased to exist. The Members of the League had not
declared, or accepted even by implication, that the mandates would be cancelled or lapse with the
dissolution of the League.

The last resolution of the League Assembly and Article 80, paragraph 1, of the United Nations Charter
maintained the obligations of mandatories. The International Court of Justice has consistently recognized
that the Mandate survived the demise of the League, and South Africa also admitted as much for a
number of years. Thus the supervisory element, which is an essential part of the Mandate, was bound to
survive. The United Nations suggested a system of supervision which would not exceed that which
applied under the mandates system, but this proposal was rejected by South Africa.

Resolutions by the General Assembly and the Security Council


(paras. 87-116 of the Advisory Opinion)

Eventually, in 1966, the General Assembly of the United Nations adopted resolution 2145 (XXI),
whereby it decided that the Mandate was terminated and that South Africa had no other right to
administer the Territory. Subsequently the Security Council adopted various resolutions including
resolution 276 (1970) declaring the continued presence of South Africa in Namibia illegal. Objections
challenging the validity of these resolutions having been raised, the Court points out that it does not
possess powers of judicial review or appeal in relation to the United Nations organs in question. Nor does
the validity of their resolutions form the subject of the request for advisory opinion. The Court
nevertheless, in the exercise of its judicial function, and since these objections have been advanced,
considers them in the course of its reasoning before determining the legal consequences arising from
those resolutions.

It first recalls that the entry into force of the United Nations Charter established a relationship between all
Members of the United Nations on the one side, and each mandatory Power on the other, and that one of
the fundamental principles governing that relationship is that the party which disowns or does not fulfil its
obligations cannot be recognized as retaining the rights which it claims to derive from the relationship.
Resolution 2145 (XXI) determined that there had been a material breach of the Mandate, which South
Africa had in fact disavowed.

It has been contended (a) that the Covenant of the League of Nations did not confer on the Council of the
League power to terminate a mandate for misconduct of the mandatory and that the United Nations could
not derive from the League greater powers than the latter itself had, (b) that, even if the Council of the
League had possessed the power of revocation of the Mandate, it could not have been exercised
unilaterally but only in co-operation with the Mandatory; (c) that resolution 2145 (XXI) made
pronouncements which the General Assembly, not being a judicial organ, was not competent to make; (d)
that a detailed factual investigation was called for (e) that one part of resolution 2145 (XXI) decided in
effect a transfer of territory.

The Court observes (a) that, according to a general principle of international law (incorporated in the
Vienna Convention on the Law of Treaties), the right to terminate a treaty on account of breach must be
presumed to exist in respect of all treaties, even if unexpressed; (b) that the consent of the wrongdoer to
such a form of termination cannot be required; (c) that the United Nations, as a successor to the League,
acting through its competent organ, must be seen above all as the supervisory institution competent to
pronounce on the conduct of the Mandatory; (d) that the failure of South Africa to comply with the
obligation to submit to supervision cannot be disputed; (e) that the General Assembly was not making a
finding on facts, but formulating a legal situation; it would not be correct to assume that, because it is in
principle vested with recommendatory powers, it is debarred from adopting, in special cases within the
framework of its competence, resolutions which make determinations or have operative design.

The General Assembly, however, lacked the necessary powers to ensure the withdrawal of South Africa
from the Territory and therefore, acting in accordance with Article 11, paragraph 2, of the Charter,
enlisted the co-operation of the Security Council. The Council for its part, when it adopted the resolutions
concerned, was acting in the exercise of what it deemed to be its primary responsibility for the
maintenance of peace and security. Article 24 of the Charter vests in the Security Council the necessary
authority. Its decisions were taken in conformity with the purposes and principles of the Charter, under
Article 25 of which it is for member States to comply with those decisions, even those members of the
Security Council which voted against them and those Members of the United Nations who are not
members of the Council.

Legal Consequences for States of the Continued Presence of South Africa in Namibia

(paras. 117-127 and 133 of the Advisory Opinion)

The Court stresses that a binding determination made by a competent organ of the United Nations to the
effect that a situation is illegal cannot remain without consequence.

South Africa, being responsible for having created and maintained that situation, has the obligation to put
an end to it and withdraw its administration from the Territory. By occupying the Territory without title,
South Africa incurs international responsibilities arising from a continuing violation of an international
obligation. It also remains accountable for any violations of the rights of the people of Namibia, or of its
obligations under international law towards other States in respect of the exercise of its powers in relation
to the Territory.

The member States of the United Nations are under obligation to recognize the illegality and invalidity of
South Africa's continued presence in Namibia and to refrain from lending any support or any form of
assistance to South Africa with reference to its occupation of Namibia. The precise determination of the
acts permitted - what measures should be selected, what scope they should be given and by whom they
should be applied - is a matter which lies within the competence of the appropriate political organs of the
United Nations acting within their authority under the Charter. Thus it is for the Security Council to
determine any further measures consequent upon the decisions already taken by it. The Court in
consequence confines itself to giving advice on those dealings with the Government of South Africa
which, under the Charter of the United Nations and general international law, should be considered as
inconsistent with resolution 276 (1970) because they might imply recognizing South Africa's presence in
Namibia as legal:

(a) Member States are under obligation (subject to (d) below) to abstain from entering into treaty relations
with South Africa in all cases in which the Government of South Africa purports to act on behalf of or
concerning Namibia. With respect to existing bilateral treaties member States must abstain from invoking
or applying those treaties or provisions of treaties concluded by South Africa on behalf of or concerning
Namibia which involve active intergovernmental co-operation. With respect to multilateral treaties, the
same rule cannot be applied to certain general conventions such as those with humanitarian character, the
non-performance of which may adversely affect the people of Namibia: it will be for the competent
international organs to take specific measures in this respect.

(b) Member States are under obligation to abstain from sending diplomatic or special missions to South
Africa including in their jurisdiction the territory of Namibia, to abstain from sending consular agents to
Namibia, and to withdraw any such agents already there; and to make it clear to South Africa that the
maintenance of diplomatic or consular relations does not imply any recognition of its authority with
regard to Namibia.

(c) Member States are under obligation to abstain from entering into economic and other forms of
relations with South Africa on behalf of or concerning Namibia which may entrench its authority over the
territory.

(d) However, non-recognition should not result in depriving the people of Namibia of any advantages
derived from international co-operation. In particular, the illegality or invalidity of actsperformed by the
Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate
cannot be extended to such acts as the registration of births, deaths and marriages.

As to States not members of the United Nations, although they are not bound by Articles 24 and 95 of the
Charter, they have been called upon by resolution 276 (1970) to give assistance in the action which has
been taken by the United Nations with regard to Namibia. In the view of the Court, the termination of the
Mandate and the declaration of the illegality of South Africa's presence in Namibia are opposable to all
States in the sense of barring erga omnes the legality of the situation which is maintained in violation of
international law. In particular, no State which enters into relations with South Africa concerning Namibia
may expect the United Nations or its Members to recognize the validity or effects of any such
relationship. The Mandate having been terminated by a decision of the international organization in which
the supervisory authority was vested, it is for non-member States to act accordingly. All States should
bear in mind that the entity injured by the illegal presence of South Africa in Namibia is a people which
must look to the international community for assistance in its progress towards the goals for which the
sacred trust was instituted.

Accordingly, the Court has given the replies reproduced above on page 1.

Propositions by South Africa concerning the Supply of Further Factual Information and the Possible
Holding of a Plebiscite

(paras. 128-132 of the Advisory Opinion)

The Government of South Africa had expressed the desire to supply the Court with further factual
information concerning the purposes and objectives of its policy of separate development, contending that
to establish a breach of its substantive international obligations under the Mandate it would be necessary
to prove that South Africa had failed to exercise its powers with a view to promoting the well-being and
progress of the inhabitants. The Court found that no factual evidence was needed for the purpose of
determining whether the policy of apartheid in Namibia was in conformity with the international
obligations assumed by South Africa. It is undisputed that the official governmental policy pursued by
South Africa in Namibia is to achieve a complete physical separation of races and ethnic groups. This
means the enforcement of distinctions, exclusions, restrictions and limitations exclusively based on
grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental
human rights. This the Court views as a flagrant violation of the purposes and principles of the Charter of
the United Nations.
The Government of South Africa had also submitted a request that a plebiscite should be held in the
Territory of Namibia under the joint supervision of the Court and the Government of South Africa. The
Court having concluded that no further evidence was required, that the Mandate had been validly
terminated and that in consequence South Africa's presence in Namibia was illegal and its acts on behalf
of or concerning Namibia illegal and invalid, it was not able to entertain this proposal.

By a letter of 14 May 1971 the President informed the representatives of the States and organizations
which had participated in the oral proceedings that the Court had decided not to accede to the two above-
mentioned requests.

**

DECLARATION AND SEPARATE OR

DISSENTING OPINIONS

Subparagraph 1 of the operative clause of the Advisory Opinion (illegality of the presence of South Africa
in Namibia-see page 1 of this Communiqu) was adopted by 13 votes to 2. Subparagraphs 2 and 3 were
adopted by 11 votes to 4.

Judge Sir Gerald Fitzmaurice (dissenting opinion) considers that the Mandate was not validly revoked,
that the Mandatory is still subject to the obligations of the Mandate whatever these may be, and that
States Members of the United Nations are bound to respect the position unless and until it is changed by
lawful means.

Judge Gros (dissenting opinion) disagrees with the Court's conclusions as to the legal validity and effects
of General Assembly resolution 2145 (XXI), but considers that South Africa ought to agree to negotiate
on the conversion of the Mandate into a United Nations trusteeship.

Judges Petrn and Onyeama (separate opinions) voted for subparagraph 1 of the operative clause but
against subparagraphs 2 and 3, which in their view ascribe too broad a scope to the effects of non-
recognition.

Judge Dillard (separate opinion), concurring in the operative clause, adds certain mainly cautionary
comments on subparagraph 2.

Judges Sir Gerald Fitzmaurice, Gros, Petrn, Onyeama and Dillard also criticize certain decisions taken
by the Court with reference to its composition.

The President (declaration) and Judges Padilla Nervo and de Castro (separate opinions) accept the
operative clause in full.
The Vice-President (separate opinion) while sharing the views expressed in the Advisory Opinion
considers that the operative clause is not sufficiently explicit or decisive.

JUDGMENT OF THE NUREMBERG TRIBUNAL

ON September 30, 1946, seven years and a month after the Second World War began with the onset of the
German armies across the western frontiers of Poland, the International Military Tribunal at Nuremberg
pronounced a mainly unanimous judgment in a document of 50,000 words on the German personalities
and organisations charged before it. This judgment has certainly been an epoch-making event. Nothing at
all comparable has ever taken place before. For the first time a court representing the principal nations of
the world emerging victorious from a great war has formally tried the political leaders of a sovereign state
for responsibility for waging aggressive war defined as a crime. The defendants at Nuremberg have also,
of course, been tried for all manner of atrocities committed in connection with German aggressions, and
this has not involved any new principle of jurisprudence, for it has long been recognised that the victor in
war has the right to try by court-martial officers and others of the defeated nation who have committed
atrocities contrary to the accepted laws of war against the victor's nationals. Although this right has not
hitherto been invoked in application to the rulers and highest military authorities of an enemy country, it
could have been so applied to the Nazi leaders and it provided grounds for the punishment of most of
themall those who have been convicted at Nuremberg on charges of "War Crimes" in the narrow sense
and "Crimes against Humanity"even without any accusation of "Crimes against Peace." But
responsibility for the war itself has been the central charge in the Nuremberg indictment, and the Tribunal
has declared in its judgment: "To initiate a war of aggression is not only an international crime; it is the
supreme international crime, differing only from other war crimes in that it contains within itself the
accumulated evil of the whole."

It is of interest to recall that when in 1918 the question of trying the Kaiser came up before the British
War Cabinet, the Attorney-General (who was later to become Lord Birkenhead) reported in favour of
trying him for having committed offences against international law by the violation of the guaranteed
neutrality of Belgium and by authorising unrestricted submarine warfare, but advised against prosecution
for "the crime against humanity of having caused the war," not on the ground that such a charge was
legally inadmissible, but because "we do not wish to be confronted by a meticulous examination of the
history of European politics for the past twenty years." Lord Birkenhead indeed saw clearly that a charge
of war guilt involves a record of national policies, and that such a record may not leave unscathed the
reputations of the prosecuting governments. In the Nuremberg case such a historical record has actually
been written; the judgment clearly claimsor at any rate will be claimedto stand as an adequate history
of the great events with which it deals as well as being a legal verdict on the accused. This aspect of the
trial cannot be overlooked in any estimate of what has been achieved by the judicial process.

It has in fact been easy on the evidence to obtain a conviction of the Nazi leadership on the charge of
planning and initiating aggressive wars. The prosecution has had at its disposal, not only the record of
German acts which was available to the Allied Governments before the end of the war, but also a great
mass of documentary material captured in Germany, including minutes of secret conferences in which
Hitler expounded his plans to a select circle of his colleagues. These documents, the authenticity of which
was not seriously challenged by the defence, provided the most striking proof of the deliberateness and
premeditation of Hitler's aggressions and revealed the hollowness of the various excuses made for them at
the time by Nazi propaganda.
In the minutes of a secret conference held in the Reich chancellery on November 5, 1937, Hitler is
recorded as saying to his Foreign Minister (then Freiherr von Neurath), his War Minister and the
commanders-in-chief of the three fighting services: "The question for Germany is where the greatest
possible conquest could be made at the lowest cost." This declaration was preceded by an allocution on
economic theory and racial biology justifying a policy of acquiring fresh "living space" for the German
nation. Hitler maintained that neither autarky nor international trade could provide Germany with
satisfactory economic life and scope for its capacities. He went on:

The only way out, and one which may appear imaginary, is the securing of greater living space, an
endeavour which at all times has been the cause of formations of States and movements of nations. It is
explicable that this tendency finds no interest in Geneva and in satisfied States . . . every space expansion
can only be effected by breaking resistance and taking risks. Even setbacks are unavoidable; neither
formerly nor today has space been found without an owner; the attacker always comes up against the
proprietor.

There is nothing here about any external threat to Germany which might justify extraordinary war
preparations; the purpose is quite frankly territorial conquest. Hitler admits, however, that Germany "must
reckon with its two hateful enemies, England and France, to whom a strong German colossus in the centre
of Europe would be intolerable," and speculates on the when and how of "the decision to apply force." He
concludes that action must in any case be taken not later than the period 1943-45 (because, for reasons
which he gives, he expects Germany's relative position to deteriorate after that date), but that war against
Czechoslovakia should be launched earlier if France is either paralysed by internal political crisis or
diverted by a war with Italy.

This document of the autumn of 1937 reveals the long-term plan with the utmost lucidity, but the stages in
its accomplishment were liable to adjustment according to circumstances, and the minutes of later
conferences show Hitler making up his mind on his estimate of the current situation. In a very important
conference held on May 23, 1939, shortly after the giving of the British guarantee to Poland, Hitler
explains that the problem for solution is "to attack Poland at the first suitable opportunity." He says he
will try to isolate Poland diplomatically, but if this proves impossible, and "if it is not certain that a
German-Polish conflict will not lead to war in the West," then "it will be better to attack in the West." The
most interesting revelation of this document is that Hitler in the spring of 1939 was in favour of starting a
war by direct attack on France and the Low Countries on the 1914 model; he was still assuming the
hostility of Russia, but told the conference that "it is not impossible that Russia will show herself to be
disinterested in the destruction of Poland."

The Nuremberg judgment uses these documents to establish beyond challenge the calculated
aggressiveness of Nazi policy. It is indeed proved conclusively that Hitler and his responsible ministers
and military commanders undertook aggressive wars with the utmost premeditationwhich is all that
needed to be proved for the legal condemnation of those of them brought before the Nuremberg Tribunal.
However, at one point in the record of events included in the judgment a curious oblivion seems to have
affected the judges with regard not only to facts which have long been known but also to important
evidence given during the trial itself. As we approach the subject of the German-Soviet Non-Aggression
Pact of August, 1939, some inhibition appears to interrupt the flow of narrative and the whole episode is
passed over with the bald statement that "the defendant Ribbentrop was sent to Moscow to negotiate a
non-aggression pact with the Soviet Union."

During the trial the defence lawyer Seidl produced witnesses, including Baron von Weizsaecker,
permanent Secretary of State in the German Foreign Office from 1938 to 1943, who testified about a
secret treaty attached to the Non-Aggression Pact and providing for territorial partition of six European
states between Germany and the Soviet Union.

The prosecution made no attempt to disprove this evidence; nevertheless, the judgment completely
ignores it. Such silence unfortunately shows that the Nuremberg Tribunal is only within certain limits an
independent judiciary. In ordinary criminal law it would certainly be a remarkable case if a judge,
summing up on a charge of murder, were to avoid mentioning evidence on the part played by an
accomplice in the murder because the evidence revealed that the judge himself had been that accomplice.
That nobody thinks such reticence extraordinary in the case of Nuremberg merely demonstrates how far
we still really are from anything that can be called a "reign of law" in international affairs. Both Britain
and France are on record as having concurred in the expulsion of the Soviet Union from the League of
Nations for its unprovoked attack on Finland in 1939; this verdict still stands and is not modified by
anything which has happened since. In 1939 Moscow openly gloried in military cooperation with
Germany for the destruction of Poland, "that ugly offspring of the Versailles Treaty," and Ribbentrop in
his last plea quoted a cable of congratulation from Stalin as proof that the Soviet Union had not then
regarded the war against Poland as an aggression. The contrast between 1939 and 1946 is indeed
fantastic, and it is too much to expect that either historians in the future or Germans in the present will
share in the current United Nations convention of not seeing it.

Nor should the Western world console itself that the Russians alone stand condemned at the bar of the
Allies' own justice. Waging aggressive war is the chief count in the indictment, but it is not the only one.
Among crimes against humanity stands the offence of the indiscriminate bombing of civilian populations.
Can the Americans who dropped the atom bomb and the British who destroyed the cities of Western
Germany plead "not guilty" on this count? Crimes against humanity also include the mass expulsion of
populations. Can the Anglo-Saxon leaders who at Potsdam condoned the expulsion of millions of
Germans from their homes hold themselves completely innocent?

The result of the Nuremberg trial has been a well-deserved fate for a group of evil men whose terrible
guilt has been thoroughly demonstrated for all time; yet the force of the condemnation is not unaffected
by the fact that the nations sitting in judgment have so clearly proclaimed themselves exempt from the
law which they have administered.

IN THE MATTER OF THE SOUTH CHINA SEA ARBITRATION

Introduction

Since the 1970s, the South China Sea has been a nest of competing sovereignty claims over the island
features and ocean spaces by a number of adjacent countries. Included in this is Chinas nine-dash line,
first officially communicated in notes verbale to the United Nations in 2009. In addition, China has
recently engaged in, amongst other things, the physical enhancement of many of the small features of the
Spratly Islands and enforcement of a moratorium on fishing in the South China Sea.

The decision of the South China Sea Arbitration by a tribunal established pursuant to the UN Convention
on the Law of the Sea (UNCLOS) has landed in this cauldron. UNCLOS provides for compulsory
adjudication of disputes concerning the interpretation and application of the Convention, subject to a
number of exceptions. In 2013, the Philippines commenced the case against China.Although a long-
standing party to the Convention, China declined to participate in the establishment of the Tribunal or to
appear before it. In deciding not to appear, China has followed a small number of states that have
similarly declined to participate in cases before the International Court of Justice (ICJ), as well as the
more recent nonparticipation by the Russian Federation in UNCLOS procedures in the Arctic Sunrise
Case brought by the Netherlands.

There were fifteen Philippine Submissions dealt with by the Tribunal. The Submissions that have received
the most post-decision attention and that are the focus of this Insight include the legal validity of Chinas
claim of rights within the nine-dash line in light of UNCLOS and whatif anymaritime zones
appertain to the insular features in the South China Sea.

China viewed the principal subject matters in dispute as political and beyond the jurisdiction and
competence of the Tribunal. The Philippines characterized the subject matters in dispute as involving the
interpretation and application of UNCLOS and thus within the jurisdiction of the Tribunal. As a result of
this difference of views, it was necessary for the Tribunal to assess whether it had jurisdiction to deal with
the merits of the Philippine submissions.

The Tribunal held that it had jurisdiction to consider the merits of almost all the Submissions made by the
Philippines and, overall, accepted the claims and arguments on the merits asserted by the Philippines.

Legal Status of the Award

UNCLOS, the international legal basis for the arbitration, is very clear in Annex VII, Arbitration, Article
11 that [t]he award of the arbitral tribunal shall be final and binding and without appeal . . . . It shall be
complied with by the parties to the dispute.

Hence, there is no argument to be made that nonappearance by a state changes or effects the final and
binding nature of the Award. Moreover, while China has asserted both after the release of the 2015
Award on Jurisdiction and the 2016 Award that the both are null and void and have no binding force,
there is no legal basis in UNCLOS for such assertions.

China has further stated that it neither accepts nor recognizes the Award. There is a modest practice of
states opting not to accept or recognize, and thus not comply with, decisions of the ICJ, the International
Tribunal for the Law of the Sea (ITLOS), and a tribunal established pursuant to UNCLOS.

Rocks/Low-Tide Elevations or Islands

Jurisdiction

The Philippines argued that the Tribunal had jurisdiction to determine whether certain insular features in
the South China Sea were either rocks (entitled to a 12 nm territorial sea), low-tide elevations no
territorial sea), or islands (entitled to a 200 nm zone), even though the features in question were subject to
territorial sovereignty disputes, as this involved interpretation of the relevant provisions of UNCLOS.
China directly countered this, arguing that the heart of the dispute concerned territorial sovereignty, not
the interpretation or application of UNCLOS. In the alternative, China argued that the rock-or-island
determination concerned maritime boundary delimitation, which, as result of Chinas Declaration of
August 26, 2006, was exempted from compulsory adjudicative jurisdiction under UNCLOS.

In reaching the conclusion that it had jurisdiction to determine the status of the contested features, the
Tribunal stated that it does not accept . . . that it follows from the existence of a dispute over sovereignty
that sovereignty is also the appropriate characterization of the Philippine claims that the features were
rocks or low-tide elevations. In making this determination, it noted that none of the Philippine
Submissions required a determination of sovereignty.

The Tribunal did not accept Chinas assessment of the dispute as involving maritime boundary
delimitation, stating that it was not convinced, and that [i]t does not follow . . . that a dispute over an
issue that may be considered in the course of a maritime boundary delimitation constitutes a dispute over
maritime boundary delimitation itself. More specifically, the Tribunal commented that entitlement to
maritime zones is distinct from delimitation of those zones in an area where entitlements overlap.

Merits

In the period immediately prior to the issuing of the Award, China had significantly modified and
enhanced numerous features in the Spratly Islands. The Tribunal clearly stated that UNCLOS requires
that the status of a feature be ascertained on the basis of its earlier, natural condition, prior to the onset of
significant human habitation.

The Tribunal accepted that in order to examine the Submissions regarding the location of the Philippine
exclusive economic zone (EEZ), it was necessary to determine the legal status of all of the relevant high-
tide features that are part of the Spratly Islands. The Tribunal focused upon the six largest features,
observing that if these were characterized as rocks under UNCLOS, then the same conclusion would
apply to the other high-tide features in the Spratly Islands.

Unlike previous international tribunals that had accepted certain features as islands or rocks without
explicitly applying UNCLOS Article 121(3), the Tribunal analyzed its application in detail. The
Tribunals interpretation placed great emphasis on the physical conditions of the feature in question such
as the natural capacity, without external additions . . . to sustain human habitation or an economic life of
its own.The Tribunal also delved into the definition of the terms involved in this standard. Additionally,
the Tribunal directed that where the physical conditions did not determine clearly whether a feature is a
rock or island then the historical use will be relevant. In this regard, the Tribunal concluded that a feature
that has never historically sustained a human community lacks the capacity to sustain human habitation.

Applying their understanding of Article 121(3) to the relevant high-tide features in the Spratly Islands, the
Tribunal noted that although the features were capable of enabling the survival of small groups of
peopleand that the features could not be dismissed as uninhabitable on the basis of their physical
characteristics, nevertheless, there was no indication that anything fairly resembling a stable human
community has ever formed on the Spratly Islands with the result that all of the high-tide features were
classed as rocks.
The Nine-Dash Line and Historic Rights

The principal jurisdictional question concerning the nine-dash line and possible Chinese historic rights
therein was whether such a claim was captured by the wording of Article 298(1)(a)(i) of UNCLOS,
covering disputes . . .involving historic bays or title and thus that the Tribunal was without jurisdiction
due to Chinas 2006 Declaration. On the merits, at issue was the relationship between the historic rights
asserted by China within the nine-dash line and the rights of the Philippines based on UNCLOS in areas
beyond Chinas EEZ or continental shelf and within the EEZ or continental shelf of the Philippines.

To deal with both questions, the Tribunal assessed the nature of any historic rights claimed by China
within the nine-dash line, which was complicated by some ambiguity in Chinas position. The Tribunal
undertook an examination of Chinas statements and actions concluding that China claims rights to
living and non-living resources within the nine-dash line but (apart from the territorial sea generated by
any islands) does not consider that those waters form part of its territorial sea or internal waters.

The Tribunal indicated that the term historic title in Article 298 centered on the historic title wording in
Article 12(1) of the 1958 Convention on the Territorial Sea and Contiguous Zone. The Tribunal took the
view that the 1958 historic title wording was tied directly to the historic terminology as used in the
1951 Anglo-Norwegian Fisheries case, where the area in question was an area of sea claimed
exceptionally as internal waters.Based upon this, the Tribunal took the view that the meaning of historic
title in Article 298 was claims to sovereignty over maritime areas derived from historical
circumstances. Having determined that China was claiming historic rights and not historic title, the
Tribunal concluded that Chinas 2006 Declaration was not available as regards Chinas historic claims.

Concerning the merits, the relationship between the historic rights asserted by China within the nine-dash
line and the rights of the Philippines based on UNCLOS, the Tribunal sided with the Philippines
concluding that UNCLOS leaves no space for an assertion of historic rights, and that Chinas claim to
historic rights to the living and non-living resources within the nine-dash line is incompatible with the
Convention.

Concluding Comments

In the immediate aftermath, the reactions indicate little hope that the South China Sea Award will result in
a period of peaceful management of the tangled disputes within the South China Sea. China has loudly
condemned the Award and a joint statement from ASEAN and China did not even mention it. Somewhat
more encouraging are the preparatory talks that have taken place between the Philippines and China.

It has long been recognized by those who have a significant history with the South China Sea disputes
that if the numerous maritime features in the South China Sea were all categorized as either low-tide
elevation or rocks, the result would be that the 200 nm zones in the region would be measured from the
mainland coasts. This would cause almost all of the maritime claim disputes to become bilateral, rather
than multilateral, which could in turn create a possibility for resolution and de-escalation. Part of this as
well is that the nine-dash line be without legal effect. As of 2009, the South China Sea ASEAN states
advocated such a position.In light of the Tribunals ruling, this could be a potential path forward.
Article 121(3) was a provision of deliberately negotiated vagueness, thus Tribunals rock/island criteria
can be viewed perhaps as missionary work. The rock or island criteria in the Award may result in states
able to more readily reach maritime boundary agreements and adjudicative bodies more readily make
such determinations. It will be future tribunals, courts, and state practice that will determine whether this
missionary aspect of the Award finds favour.

Of final note, concerns about whether the Award and Chinas rejection of it have undermined confidence
in UNCLOS dispute resolution procedures are perhaps misplaced. Subsequent to the commencement of
the South China Sea Arbitration, three parties have brought cases before ITLOS and two have
commenced UNCLOS, Annex VII arbitration cases.

MAGALLONA v. ERMITA, G.R. 187167, August 16, 2011

Facts:

In 1961, Congress passed R.A. 3046 demarcating the maritime baselines of the Philippines as an
Archepelagic State pursuant to UNCLOS I of 9158, codifying the sovereignty of State parties over their
territorial sea. Then in 1968, it was amended by R.A. 5446, correcting some errors in R.A. 3046 reserving
the drawing of baselines around Sabah.

In 2009, it was again amended by R.A. 9522, to be compliant with the UNCLOS III of 1984. The
requirements complied with are: to shorten one baseline, to optimize the location of some basepoints and
classify KIG and Scarborough Shoal as regime of islands.

Petitioner now assails the constitutionality of the law for three main reasons:

1. it reduces the Philippine maritime territory under Article 1;

2. it opens the countrys waters to innocent and sea lanes passages hence undermining our sovereignty
and security; and

3. treating KIG and Scarborough as regime of islands would weaken our claim over those territories.

Issue: Whether R.A. 9522 is constitutional?

Ruling:

1. UNCLOS III has nothing to do with acquisition or loss of territory. it is just a codified norm that
regulates conduct of States. On the other hand, RA 9522 is a baseline law to mark out basepoints along
coasts, serving as geographic starting points to measure. it merely notices the international community of
the scope of our maritime space.

2. If passages is the issue, domestically, the legislature can enact legislation designating routes within the
archipelagic waters to regulate innocent and sea lanes passages. but in the absence of such, international
law norms operate.
the fact that for archipelagic states, their waters are subject to both passages does not place them in lesser
footing vis a vis continental coastal states. Moreover, RIOP is a customary international law, no modern
state can invoke its sovereignty to forbid such passage.

3. On the KIG issue, RA 9522 merely followed the basepoints mapped by RA 3046 and in fact, it
increased the Phils. total maritime space. Moreover, the itself commits the Phils. continues claim of
sovereignty and jurisdiction over KIG.

If not, it would be a breach to 2 provisions of the UNCLOS III:

Art. 47 (3): drawing of basepoints shall not depart to any appreciable extent from the general
configuration of the archipelago.

Art 47 (2): the length of baselines shall not exceed 100 mm.

KIG and SS are far from our baselines, if we draw to include them, well breach the rules: that it should
follow the natural configuration of the archipelago.

ISLAND OF PALMAS CASE

Brief Fact Summary. Both the United States (P) laid claim to the ownership of the Island of Palmas.
While the U.S. (P) maintained that it was part of the Philippines, the Netherlands (D) claimed it as their
own.

Synopsis of Rule of Law. A title that is inchoate cannot prevail over a definite title found on the
continuous and peaceful display of sovereignty.

Facts. Both the United States (P) laid claim to the ownership of the Island of Palmas. While the U.S. (P)
maintained that it was part of the Philippines, the Netherlands (D) claimed it as their own. The claim of
the U.S. (P) was back up with the fact that the islands had been ceded by Spain by the Treaty of Paris in
1898, and as successor to the rights of Spain over the Philippines, it based its claim of title in the first
place on discovery. On the part of the Netherlands (D), they claimed to have possessed and exercised
rights of sovereignty over the island from 1677 or earlier to the present.

Issue. Can a title which is inchoate prevail over a definite title found on the continuous and peaceful
display of sovereignty?

Held. (Huber, Arb.). No. A title that is inchoate cannot prevail over a definite title found on the continuous
and peaceful display of sovereignty. The peaceful and continuous display of territorial sovereignty is as
good as title. However, discovery alone without subsequent act cannot suffice to prove sovereignty over
the island. The territorial sovereignty of the Netherlands (D) was not contested by anyone from 1700 to
1906. The title of discovery at best an inchoate title does not therefore prevail over the Netherlands (D)
claims of sovereignty.

Discussion. Evidence of contracts made by the East India Company and the Netherlands (D) was
examined by the arbitrator. The claims made by the Netherlands (D) were also based on the premise of
the convention it had with the princes and native chieftains of the islands. Hence, at the time of the Treaty
of Paris in 1898, Spain was found not to have dominion over the island.
y 4,700 private U.S. claims, ordered payment by Iran (D) to U.S. nationals amounting to over $2.5 billion.

LEGAL STATUS OF EASTERN GREENLAND

Brief Fact Summary. The statement made by the Norwegian Minister was claimed to be binding on his
country by Denmark (P).

Synopsis of Rule of Law. A country is bound by the reply given on its behalf by its Minister of Foreign
Affairs.

Facts. The agreement not to obstruct Danish (P) plans with regard to Greenland was what Denmark
wanted to obtain from Norway (D). To this request, a declaration on behalf of the Norwegian government
(D) was made by its Minister for Foreign Affairs that Norway (D) would not make any difficulty in the
settlement of the question.

Issue. Is a country bound by the reply given on its behalf by its Minister of Foreign Affairs?

Held. Yes. A country is bound by the reply given on its behalf by its Minister of Foreign Affairs.
Therefore in this case, the response by the diplomatic representative of a foreign power is binding upon
the country the Minister represents.

Discussion. The main source of international law on treaties is the Vienna Convention on the Law of
Treaties. The Convention was ratified by 35 countries but not by the United States. Unilateral statements
may also be binding on states.

Facts
In the 1920s, Norway occupied and claimed as its own parts of Eastern Greenland, a territory previously
claimed by Denmark. A Danish diplomatic representative asked Norways Minister of Foreign Affairs
about the countrys intentions toward Eastern Greenland. The Minister replied that Norway did not intend
to contest Danish sovereignty over the whole of Greenland. Denmark later sued Norway before the
Permanent Court of International Justice on the ground that Norway violated Danish sovereignty in
Eastern Greenland.
ANGLO-NORWEGIAN FISHERIES CASE

Since 1911 British trawlers had been seized and condemned for violating measures taken by the
Norwegian government specifying the limits within which fishing was prohibited to foreigners. In 1935, a
decree was adopted establishing the lines of delimitation of the Norwegian fisheries zone.

On 24th September 1949 the government of the United Kingdom filed the registry of the international
court of justice an application instituting proceedings against Norway. The subject of the proceeding was
the validity, under international law, of the lines of delimitation of the Norwegian fisheries zone as set
forth in a Decree of 12th July 1935.

The application referred to the declaration by which the united Kingdom and Norway had accepted the
compulsory jurisdiction of the International Court of Justice in accordance with article 36 (2) of its
statute.

The parties involved in this case were Norway and the United Kingdom, of Great Britain and Northern
Ireland. The implementation of the Royal Norwegian Decree of the 1935 was met with resistance from
the United Kingdom. The decree covers the drawing of straight lines, called baselines 4 miles deep into
the sea. This 4 miles area is reserved fishing exclusive for Norwegian nationals. Under article 36(2) both
UK and Norway were willing to accept the jurisdiction of the ICJ on this case and with no appeal. The
issues that constitute the case were submitted to the court and the arguments presented by both countries.
The issues claims the court to: declare the principles of international law applicable in defining the
baselines by reference to which Norwegian government was entitled to delimit a fisheries zone and
exclusively reserved to its nationals; and to define the said base lines in the light of the arguments of the
parties in order to avoid further legal difference; and secondly to award damages to the government of the
United Kingdom in respect of all interferences by the Norwegian authorities with British fishing vessels
outside the fisheries zone, which in accordance with ICJ's decision, the Norwegian government may be
entitled to reserve for its nationals.

The United Kingdom argued that;

Norway could only draw straight lines across bays

The length of lines drawn on the formations of the Skaergaard fjord must not exceed 10 nautical
miles( the 10 Mile rule)

That certain lines did not follow the general direction of the coast or did not follow it
sufficiently , or they did not respect certain connection of sea and land separating them

That the Norwegian system of delimitation was unknown to the British and lack the notoriety to
provide the basis of historic title enforcement upon opposable to by the United Kingdom

The Kingdom of Norway argued;


That the base lines had to be drawn in such a way as to respect the general direction of the coast
and in a reasonable manner.

The case was submitted to the International Court of Justice by the government of the United Kingdom.
The government of United Kingdom wants the ICJ to declare the validity of the base lines under
international law and receive compensation for damages caused by Norwegian authorities as to the
seizures of British Fishing vessels.

The judgment of the court first examines the applicability of the principles put forward by the government
of the UK, then the Norwegian system, and finally the conformity of that system with international law.
The first principle put forward by the UK is that the baselines must be low water mark, this indeed is the
criterion generally adopted my most states and but differ as to its application. (Johnson 154). The court
considered the methods of drawing the lines but, the court rejected the trace Parallele which consists of
drawing the outer limits of the belt following the coast and all its sinuosity. The court also rejected the
courbe tangent (arcs of a circle) and it is not obligatory under international law to use these methods of
drawing the lines. The court also paid particular attention to the geographical aspect of the case. The
geographical realities and historic control of the Norwegian coast inevitably contributed to the final
decision by the ICJ. The coast of Norway is too indented and is an exception under international law from
the 3 miles territorial waters rule. The fjords, Sunds along the coastline which have the characteristic of a
bay or legal straits should be considered Norwegian for historical reasons that the territorial sea should be
measured from the line of low water mark. So it was agreed on the outset of both parties and the court
that Norway had the right to claim a 4 mile belt of territorial sea. The court concluded that it was the outer
line of the Skaergaard that must be taken into account in admitting the belt of the Norwegian territorial
waters. (Johnson 154- 158). There is one consideration not to be overlooked, the scope of which extends
beyond geographical factors. That of certain economic interests peculiar to a region, the reality and
importance of which are clearly evidenced by a long usage (Johnson 160)

The law relied upon mainly international Law of the sea; how far a state can modify its territorial waters
and its control over it, exclusively reserving fishing for its nationals. In this case, rules that are practiced
for instance how long a baseline should be. Only a 10 mile long straight line is allowed and this has been
the practice by most states however it is different in the case of Norway because of Norway's geographic
indentation, islands and islets.

The international customary law has been a law of reference in the court arguments. Judge Read from
Canada asserts that Customary international law does not recognize the rule according to which belts of
territorial waters of coastal states is to be measured. More so public international law has been relied upon
in this case. It regulates relation between states; the United Kingdom and Norway.

Maritime Law

Coastline Rule
The judgment was rendered in favor of Norway on the 18th December 1951. By 10 votes to 2 the court
held that the method employed in the delimitation of the fisheries zone by the Royal Norwegian decree of
the 12th July 1935 is not contrary to international law. By 8 votes to 4 votes the court also held that the
base lines fixed by this decree in application are not contrary to international law. However there are
separate opinions and dissenting opinions from the judges in the court.

Judge Hackworth declared that he concurred with the operative part of the judgment because he
considered that the Norwegian government had proved the existence of historic title of the disputed areas
of water.

Judge Alvarez from Chile relied on the evolving principles of the law of nations applicable to the law of
the sea.

States have the right to modify the extent of the of their territorial sea

Any state directly concerned may object to another state's decision as to the extent of its territorial
sea

International status of bays and straits must be determined by the coastal state directly concerned
with due regard to the general interest and

Historic rights and concept of prescription in international law.

Judge Hsu Mo from china opinions diverge from the court's with regards to conformity with principles of
international law to the straight lines drawn by the Decree of 1935. He allowed possibility in certain
circumstances, for instance, belt measured at low tide, Norway's geographic and historic conditions. But
drawing the straight lines as of the 1935 degree is a moving away from the practice of the general rule.
(Johnson 171)

The dissenting opinions from judge McNair rested upon few rules of law of international waters. Though
there are exceptions, in case of bays, the normal procedure to calculate territorial waters in from the land,
a line which follows the coastline. Judge McNair rejected the argument upon which Norway based its
decree including:

Protecting Norway's economic and other social interests

The UK should not be precluded from objecting the Norwegian system embodied in the Decree
because previous acquiescence in the system and

An historic title allowing the state to acquire waters that would otherwise have the status of deep
sea. Judge McNair concluded that the 1935 decree is not compatible with international law.
(Johnson173)

Furthermore, Judge Read from Canada was unable to concur with parts of the judgment. Read rejected
justification by Norway for enlarging her maritime domain and seizing and condemning foreign ships
(Johnson 173);
Sovereignty of the coastal state is not the basis for Norway to claim 4 mile belt from straight base
lines

Customary international law does not recognize the rule according to which belts of territorial
waters of coastal states is to be measured.

Norwegian system cannot be compatible with international law.

THE CORFU CHANNEL CASE (UK VS ALBANIA)

Brief Fact Summary. The right to send its warship through the straits used for international
navigations was the claim put forward by the United Kingdom (P).

Synopsis of Rule of Law. The geographical situation connecting two parts of the high seas and
not the fact of its being used for international navigation is the test of whether a channel should
be considered as belonging to the class of international highways through which passage cannot
be prohibited by a coastal state in time of peace.

Facts. Albanian (D) forces fired at British warships (P) which were sailing though the North
Corfu Channel. The Albanian (D) government maintained that foreign ships had no right to pass
through Albanian territorial waters without prior notification and permission from its authorities
when the United Kingdom (P) protested the actions of the Albanian (D) forces. The argument
United Kingdom (P) put forward was that states could send their ships for innocent purposes
through straits used for international navigation but the Albanian (D) refuted this on the ground
that the channel did not belong to the class f international highways through which a right of
passage exists because it was exclusively for local traffic. This channel has also been a subject of
territorial disputes between Greece and Albania, though Albania was afraid of Greek incursions.

Issue. Can the geographical situation connecting two parts of the highs sea and not the fact of its
being used for the international navigation, be a test of whether a channel can be considered as
belonging to the class of international highways through which passage cannot be prohibited by a
coastal state in a time of peace?
Held. Yes. The geographical situation connecting two parts of the high seas and not the fact of its
being used for international navigation is the test of whether a channel should be considered as
belonging to the class of international highways through which passage cannot be prohibited by a
coastal state in time of peace. The North Corfu Channel can be categorized to the class of
international highways through which passage cannot be prohibited by a coastal state in time of
peace. If Albania had issued such regulation in light of the state of war with Greece, then Albania
would have been justified in issuing regulations in respect of the passage of warships through the
strait.

Discussion. In 1982, the U.N. Convention on the Law of the Sea was passed. It stipulates that
whether coastal or landlocked, states can enjoy the right of innocent passage through territorial
sea. But 12 nautical miles from the coast was the maximum limit of which the territorial sea was
held to exist.

FISHERIES JURISDICTION
Brief Fact Summary. The right to send its warship through the straits used for international navigations
was the claim put forward by the United Kingdom (P).

Synopsis of Rule of Law. The geographical situation connecting two parts of the high seas and not the
fact of its being used for international navigation is the test of whether a channel should be considered as
belonging to the class of international highways through which passage cannot be prohibited by a coastal
state in time of peace.

Facts. Albanian (D) forces fired at British warships (P) which were sailing though the North Corfu
Channel. The Albanian (D) government maintained that foreign ships had no right to pass through
Albanian territorial waters without prior notification and permission from its authorities when the United
Kingdom (P) protested the actions of the Albanian (D) forces. The argument United Kingdom (P) put
forward was that states could send their ships for innocent purposes through straits used for international
navigation but the Albanian (D) refuted this on the ground that the channel did not belong to the class f
international highways through which a right of passage exists because it was exclusively for local traffic.
This channel has also been a subject of territorial disputes between Greece and Albania, though Albania
was afraid of Greek incursions.

Issue. Can the geographical situation connecting two parts of the highs sea and not the fact of its being
used for the international navigation, be a test of whether a channel can be considered as belonging to the
class of international highways through which passage cannot be prohibited by a coastal state in a time of
peace?

Held. Yes. The geographical situation connecting two parts of the high seas and not the fact of its being
used for international navigation is the test of whether a channel should be considered as belonging to the
class of international highways through which passage cannot be prohibited by a coastal state in time of
peace. The North Corfu Channel can be categorized to the class of international highways through which
passage cannot be prohibited by a coastal state in time of peace. If Albania had issued such regulation in
light of the state of war with Greece, then Albania would have been justified in issuing regulations in
respect of the passage of warships through the strait.

Discussion. In 1982, the U.N. Convention on the Law of the Sea was passed. It stipulates that whether
coastal or landlocked, states can enjoy the right of innocent passage through territorial sea. But 12
nautical miles from the coast was the maximum limit of which the territorial sea was held to exist.

SECRETARY OF JUSTICE VS. LANTION

FACTS:
Secretary Of Justice Franklin Drilon, representing the Government of the Republic of the Philippines,
signed in Manila the extradition Treaty Between the Government of the Philippines and the Government
of the U.S.A. The Philippine Senate ratified the said Treaty.
On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S Note
Verbale No. 0522 containing a request for the extradition of private respondent Mark Jiminez to the
United States.
On the same day petitioner designate and authorizing a panel of attorneys to take charge of and to handle
the case. Pending evaluation of the aforestated extradition documents, Mark Jiminez through counsel,
wrote a letter to Justice Secretary requesting copies of the official extradition request from the U.S
Government and that he be given ample time to comment on the request after he shall have received
copies of the requested papers but the petitioner denied the request for the consistency of Article 7 of the
RP-US Extradition Treaty stated in Article 7 that the Philippine Government must present the interests of
the United States in any proceedings arising out of a request for extradition.

ISSUE: Whether or not to uphold a citizens basic due process rights or the governments ironclad duties
under a treaty.

RULING: Petition dismissed.


The human rights of person, whether citizen or alien , and the rights of the accused guaranteed in our
Constitution should take precedence over treaty rights claimed by a contracting state. The duties of the
government to the individual deserve preferential consideration when they collide with its treaty
obligations to the government of another state. This is so although we recognize treaties as a source of
binding obligations under generally accepted principles of international law incorporated in our
Constitution as part of the law of the land.
The doctrine of incorporation is applied whenever municipal tribunals are confronted with situation in
which there appears to be a conflict between a rule of international law and the provision of the
constitution or statute of the local state.

Petitioner (Secretary of Justice) is ordered to furnish Mark Jimenez copies of the extradition request and
its supporting papers, and to grant him (Mark Jimenez) a reasonable period within which to file his
comment with supporting evidence.

Under the Doctrine of Incorporation, rules of international law form part of the law of the land and no
further legislative action is needed to make such rules applicable in the domestic sphere.

The doctrine of incorporation is applied whenever municipal tribunals are confronted with situations in
which there appears to be a conflict between a rule of international law and the provisions of the
constitution or statute of the local state.

Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed
that municipal law was enacted with proper regard for the generally accepted principles of international
law in observance of the incorporation clause in the above cited constitutional provision.

In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule
of international law and a municipal law, jurisprudence dictates that municipal law should be upheld by
the municipal courts, for the reason that such courts are organs of municipal law and are accordingly
bound by it in all circumstances.

The fact that international law has been made part of the law of the land does not pertain to or imply the
primacy of international law over national or municipal law in the municipal sphere. The doctrine of
incorporation, as applied in most countries, decrees that rules of international law are given equal
standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex
posterior derogate priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In
states where the Constitution is the highest law of the land, such as the Republic of the Philippines, both
statutes and treaties may be invalidated if they are in conflict with the constitution
Government of the USA v. Hon. Purganan
GR. NO. 148571 Sept. 24 2002
PANGANIBAN, J.

Lessons: Extradition Process, Bail on Extradition, Right of Due Process and Fundamental Fairness in
Extradition

Laws: Bill of Rights, PD 1069, US-Phil Extradition Treaty

FACTS:

Petition is a sequel to the case Sec. of Justice v. Hon. Lantion. The Secretary was ordered to furnish
Mr. Jimenez copies of the extradition request and its supporting papers and to grant the latter a reasonable
period within which to file a comment and supporting evidence. But, on motion for reconsideration by
the Sec. of Justice, it reversed its decision but held that the Mr. Jimenez was bereft of the right to notice
and hearing during the evaluation stage of the extradition process. On May 18, 2001, the Government of
the USA, represented by the Philippine Department of Justice, filed with the RTC, the Petition for
Extradition praying for the issuance of an order for his immediate arrest pursuant to Sec. 6 of PD 1069
in order to prevent the flight of Jimenez. Before the RTC could act on the petition, Mr. Jimenez filed
before it an Urgent Manifestation/Ex-Parte Motion praying for his application for an arrest warrant be
set for hearing. After the hearing, as required by the court, Mr. Jimenez submitted his Memorandum.
Therein seeking an alternative prayer that in case a warrant should issue, he be allowed to post bail in the
amount of P100,000. The court ordered the issuance of a warrant for his arrest and fixing bail for his
temporary liberty at P1M in cash. After he had surrendered his passport and posted the required cash
bond, Jimenez was granted provisional liberty.

Government of the USA filed a petition for Certiorari under Rule 65 of the Rules of Court to set aside
the order for the issuance of a warrant for his arrest and fixing bail for his temporary liberty at P1M in
cash which the court deems best to take cognizance as there is still no local jurisprudence to guide lower
court.

ISSUES:
i. Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction in adopting a procedure of first hearing a potential
extraditee before issuing an arrest warrant under Section 6 of PD No. 1069
ii. Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction in granting the prayer for bail
iii. Whether or NOT there is a violation of due process

HELD: Petition is GRANTED. Bail bond posted is CANCELLED. Regional Trial Court of
Manila is directed to conduct the extradition proceedings before it.
i. YES.

By using the phrase if it appears, the law further conveys that accuracy is not as
important as speed at such early stage. From the knowledge and the material then available to it, the court
is expected merely to get a good first impression or a prima facie finding sufficient to make a speedy
initial determination as regards the arrest and detention of the accused. The prima facie existence of
probable cause for hearing the petition and, a priori, for issuing an arrest warrant was already evident
from the Petition itself and its supporting documents. Hence, after having already determined therefrom
that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter
for hearing upon motion of Jimenez. The silence of the Law and the Treaty leans to the more reasonable
interpretation that there is no intention to punctuate with a hearing every little step in the entire
proceedings. It also bears emphasizing at this point that extradition proceedings are summary in nature.
Sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing
at some future date would give them ample opportunity to prepare and execute an escape which neither
the Treaty nor the Law could have intended.

Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a
notice or a hearing before the issuance of a warrant of arrest. To determine probable cause for the
issuance of arrest warrants, the Constitution itself requires only the examination under oath or affirmation
of complainants and the witnesses they may produce.

The Proper Procedure to Best Serve The Ends Of Justice In Extradition Cases
Upon receipt of a petition for extradition and its supporting documents, the judge must study them and
make, as soon as possible, a prima facie finding whether
a) they are sufficient in form and substance
b) they show compliance with the Extradition Treaty and Law
c) the person sought is extraditable

At his discretion, the judge may require the submission of further documentation or may personally
examine the affiants and witnesses of the petitioner. If, in spite of this study and examination, no prima
facie finding is possible, the petition may be dismissed at the discretion of the judge. On the other hand,
if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant
for the arrest of the extraditee, who is at the same time summoned to answer the petition and to appear at
scheduled summary hearings. Prior to the issuance of the warrant, the judge must not inform or notify the
potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape and
frustrate the proceedings.

ii. Yes.

The constitutional provision on bail on Article III, Section 13 of the Constitution, as well
as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained
for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition
courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail
flows from the presumption of innocence in favor of every accused who should not be subjected to the
loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond
reasonable doubt. In extradition, the presumption of innocence is not at issue. The provision in the
Constitution stating that the right to bail shall not be impaired even when the privilege of the writ of
habeas corpus is suspended finds application only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.

That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an
argument to grant him one in the present case. Extradition proceedings are separate and distinct from the
trial for the offenses for which he is charged. He should apply for bail before the courts trying the
criminal cases against him, not before the extradition court.

Exceptions to the No Bail Rule


Bail is not a matter of right in extradition cases. It is subject to judicial discretion in the context of the
peculiar facts of each case. Bail may be applied for and granted as an exception, only upon a clear and
convincing showing
1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and
2) that there exist special, humanitarian and compelling circumstances including, as a matter of
reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in
extradition cases therein

Since this exception has no express or specific statutory basis, and since it is derived essentially from
general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered
requirement with clarity, precision and emphatic forcefulness.

It must be noted that even before private respondent ran for and won a congressional seat in Manila, it
was already of public knowledge that the United States was requesting his extradition. Therefore, his
constituents were or should have been prepared for the consequences of the extradition case. Thus, the
court ruled against his claim that his election to public office is by itself a compelling reason to grant him
bail.

Giving premium to delay by considering it as a special circumstance for the grant of bail would be
tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch out
and unreasonably delay the extradition proceedings even more. Extradition proceedings should be
conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; and,
while safeguarding basic individual rights, to avoid the legalistic contortions, delays and technicalities
that may negate that purpose.

That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground and
still be within reach of our government if and when it matters; that is, upon the resolution of the Petition
for Extradition.

iii. NO.

Potential extraditees are entitled to the rights to due process and to fundamental fairness. The doctrine
of right to due process and fundamental fairness does not always call for a prior opportunity to be heard.
A subsequent opportunity to be heard is enough. He will be given full opportunity to be heard
subsequently, when the extradition court hears the Petition for Extradition. Indeed, available during the
hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness
that is compatible with the summary nature of extradition.

It is also worth noting that before the US government requested the extradition of respondent,
proceedings had already been conducted in that country. He already had that opportunity in the
requesting state; yet, instead of taking it, he ran away.

Other Doctrines:

Five Postulates of Extradition


1) Extradition Is a Major Instrument for the Suppression of Crime

In this era of globalization, easier and faster international travel, and an expanding ring of
international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with
other states in order to improve our chances of suppressing crime in our own country.

2) The Requesting State Will Accord Due Process to the Accused

By entering into an extradition treaty, the Philippines is deemed to have reposed its trust
in the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability
and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein.

3) The Proceedings Are Sui Generis

An extradition proceeding is sui generis:


a) It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed
by the Bill of Rights. It does not involve the determination of the guilt or innocence of an accused. His
guilt or innocence will be adjudged in the court of the state where he will be extradited.
b) An extradition proceeding is summary in nature while criminal proceedings involve a full-blown
trial.
c) In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond
reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the
existence of a prima facie case
d) Unlike in a criminal case where judgment becomes executory upon being rendered final, in an
extradition proceeding, our courts may adjudge an individual extraditable but the President has the final
discretion to extradite him.

Extradition is merely a measure of international judicial assistance through which a person charged with
or convicted of a crime is restored to a jurisdiction with the best claim to try that person. The ultimate
purpose of extradition proceedings in court is only to determine whether the extradition request complies
with the Extradition Treaty, and whether the person sought is extraditable.
4) Compliance Shall Be in Good Faith.

We are bound by pacta sunt servanda to comply in good faith with our obligations
under the Treaty. Accordingly, the Philippines must be ready and in a position to deliver the
accused, should it be found proper

5) There Is an Underlying Risk of Flight

Indeed, extradition hearings would not even begin, if only the accused were
willing to submit to trial in the requesting country. Prior acts of herein respondent:
a) leaving the requesting state right before the conclusion of his indictment proceedings there; and
b) remaining in the requested state despite learning that the requesting state is seeking his return and
that the crimes he is charged with are bailable

Extradition is Essentially Executive


Extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power
to conduct foreign relations and to implement treaties. Thus, the Executive Department of government
has broad discretion in its duty and power of implementation.

Cuevaz v. Muoz (G.R. No. 140520; December 18, 2000)

Facts: The Hong Kong Magistrates Court at Eastern Magistracy issued a warrant for the arrest of
respondent Juan Antonio Muoz for seven (7) counts of accepting an advantage as an agent and seven (7)
counts of conspiracy to defraud, contrary to the common law of Hong Kong

The Department of Justice received a request for the provisional arrest of the respondent from the Mutual
Legal Assistance Unit, International Law Division of the Hong Kong Department of Justice pursuant to
Article 11(1) of the RP-Hong Kong Extradition Agreement. Upon application of the NBI, RTC of Manila
issued an Order granting the application for provisional arrest and issuing the corresponding Order of
Arrest. Consequently, respondent was arrested pursuant to the said order, and is currently detained at the
NBI detention cell.

Respondent filed with the Court of Appeals, a petition for certiorari, prohibition and mandamus with
application for preliminary mandatory injunction and/or writ of habeas corpus assailing the validity of the
Order of Arrest. The Court of Appeals rendered a decision declaring the Order of Arrest null and void on
the grounds, among others that the request for provisional arrest and the accompanying warrant of arrest
and summary of facts were unauthenticated and mere facsimile copies which are insufficient to form a
basis for the issuance of the Order of Arrest.

Thus, petitioner Justice Serafin R. Cuevas, in his capacity as the Secretary of the Department of Justice,
lost no time in filing the instant petition.

Issue: Whether or not the request for provisional arrest of respondent and its accompanying documents
must be authenticated.
Held: The request for provisional arrest of respondent and its accompanying documents is valid despite
lack of authentication. There is no requirement for the authentication of a request for provisional arrest
and its accompanying documents. The enumeration in the provision of RP-Hong Kong Extradition
Agreement does not specify that these documents must be authenticated copies. This may be gleaned
from the fact that while Article 11(1) does not require the accompanying documents of a request for
provisional arrest to be authenticated, Article 9 of the same Extradition Agreement makes authentication
a requisite for admission in evidence of any document accompanying a request for surrender or
extradition. In other words, authentication is required for the request for surrender or extradition but not
for the request for provisional arrest.

The RP-Hong Kong Extradition Agreement, as they are worded, serves the purpose sought to be achieved
by treaty stipulations for provisional arrest. The process of preparing a formal request for extradition and
its accompanying documents, and transmitting them through diplomatic channels, is not only time-
consuming but also leakage-prone. There is naturally a great likelihood of flight by criminals who get an
intimation of the pending request for their extradition. To solve this problem, speedier initial steps in the
form of treaty stipulations for provisional arrest were formulated. Thus, it is an accepted practice for the
requesting state to rush its request in the form of a telex or diplomatic cable.

Respondents reliance on Garvida v. Sales, Jr. is misplaced. The proscription against the admission of a
pleading that has been transmitted by facsimile machine has no application in the case at bar for obvious
reasons. First, the instant case does not involve a pleading; and second, unlike the COMELEC Rules of
Procedure which do not sanction the filing of a pleading by means of a facsimile machine, P.D. No. 1069
and the RP Hong Kong Extradition Agreement do not prohibit the transmission of a request for
provisional arrest by means of a fax machine.

GOVERNMENT OF HK VS OLALIA

Private respondent Muoz was charged before Hong Kong Court. Warrants of arrest were issued and by
virtue of a final decree the validity of the Order of Arrest was upheld. The petitioner Hong Kong
Administrative Region filed a petition for the extradition of the private respondent. In the same case, a
petition for bail was filed by the private respondent.

The petition for bail was denied by reason that there was no Philippine law granting the same in
extradition cases and that the respondent was a high flight risk. Private respondent filed a motion for
reconsideration and was granted by the respondent judge subject to the following conditions:

1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will
appear and answer the issues raised in these proceedings and will at all times hold himself amenable to
orders and processes of this Court, will further appear for judgment. If accused fails in this undertaking,
the cash bond will be forfeited in favor of the government;

2. Accused must surrender his valid passport to this Court;

3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold
departure order before this Court even in extradition proceeding; and
4. Accused is required to report to the government prosecutors handling this case or if they so desire to
the nearest office, at any time and day of the week; and if they further desire, manifest before this Court to
require that all the assets of accused, real and personal, be filed with this Court soonest, with the condition
that if the accused flees from his undertaking, said assets be forfeited in favor of the government and that
the corresponding lien/annotation be noted therein accordingly.

Petitioner filed a motion to vacate the said order but was denied by the respondent judge. Hence, this
instant petition.

Issue

WON a potential extraditee is entitled to post bail

Ruling

A potential extraditee is entitled to bail.

Ratio Decidendi

Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of
jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory
law providing that a potential extraditee has a right to bail, the right being limited solely to criminal
proceedings.

On the other hand, private respondent maintained that the right to bail guaranteed under the Bill of Rights
extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged
deprivation of ones liberty.

In this case, the Court reviewed what was held in Government of United States of America v. Hon.
Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario
Batacan Crespo GR No. 153675 April 2007, that the constitutional provision on bail does not apply to
extradition proceedings, the same being available only in criminal proceedings. The Court took
cognizance of the following trends in international law:

(1) the growing importance of the individual person in public international;

(2) the higher value now being given to human rights;

(3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty
obligations; and

(4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand,
and the law on extradition, on the other.

In light of the recent developments in international law, where emphasis is given to the worth of the
individual and the sanctity of human rights, the Court departed from the ruling in Purganan, and held that
an extraditee may be allowed to post bail.