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CORFU CHANNEL CASE (UNITED KINGDOM v. ALBANIA)
Brief Fact Summary. The fact that the Albanian (P) authorities
did not make the presence of mines in its waters was the basis
of the United Kingdom (D) claim against them.
Synopsis of Rule of Law. International obligations in peace time
are created through elementary consideration.
FACTS
On October 22nd, 1946, two British cruisers and two destroyers,
coming from the south, entered the North Corfu Strait. The
channel they were following, which was in Albanian waters, was
regarded as safe: it had been swept in 1944 and check-swept in
1945. One of the destroyers, the Saumarez, when off Saranda,
struck a mine and was gravely damaged. The other destroyer,
the Volage, was sent to her assistance and, while towing her,
struck another mine and was also seriously damaged. Forty-five
British officers and sailors lost their lives, and forty-two others
were wounded.
An incident had already occurred in these waters on May 15th,
1946: an Albanian battery had fired in the direction of two British
cruisers. The United Kingdom Government had protested,
stating that innocent passage through straits is a right
recognized by international law; the Albanian Government had
replied that foreign warships and merchant vessels had no right
to pass through Albanian territorial waters without prior
authorization; and on August 2nd, 1946, the United Kingdom
Government had replied that if, in the future, fire was opened on
a British warship passing through the channel, the fire would be
returned. Finally, on September 21st, 1946, the Admiralty in
London had cabled to the British Commander-in-Chief in the
Mediterranean to the following x effect: "Establishment of
diplomatic relations with Albania is again under consideration by
His Majesty's Government who wish to know whether the
Albanian Government have learnt to behave themselves.
Information is requested whether any ships under your
command have passed through the North Corfu Strait since
August and, if not, whether you intend them to do so shortly."
After the explosions on October 22nd, the United Kingdom
Government sent a Note to Tirana announcing its intention to
sweep the Corfu Channel shortly. The reply was that this
consent would not be given unless the operation in question took
place outside Albanian territorial waters and that any sweep
undertaken in those waters would be a violation of Albania's
sovereignty.
The sweep effected by the British Navy took place on November
12th/13th 1946, in Albanian territorial waters and within the limits
of the channel previously swept. Twenty-two moored mines
were cut; they were mines of the German GY type.
ISSUE
1. The first question put by the Special Agreement is
that of Albania's responsibility, under international law, for the
explosions on October 22nd, 1946.
2. Did the United Kingdom violate Albanian sovereignty
on October 22nd, 1946, or on November 12th/13th, 1946?
HELD
1. The Court finds, in the first place, that the explosions
were caused by mines belonging to the minefield discovered on
November 13th. It is not, indeed, contested that this minefield
had been recently laid; it was in the channel, which had been
previously swept and check-swept and could be regarded as
safe, that the explosions had taken place. The nature of the
damage shows that it was due to mines of the same type as
those swept on November 13th; finally, the theory that the mines
discovered on November 13th might have been laid after the
explosions on October 22nd is too improbable to be accepted.
In these circumstances the question arises what is the legal
basis of Albania's responsibility? The Court does not feel that it
need pay serious attention to the suggestion that Albania herself
laid the mines: that suggestion was only put forward pro
memoria, without evidence in support, and could not be
reconciled with the undisputed fact that, on the whole Albanian
littoral, there are only a few launches and motor boats. But the
United Kingdom also alleged the connivance of Albania: that the
mine laying had been carried out by two Yugoslav warships by
the request of Albania, or with her acquiescence. The Court
finds that this collusion has not been proved. A charge of such
exceptional gravity against a State would require a degree of
certainty that has not been reached here, and the origin of the
mines laid in Albanian territorial waters remains a matter for
conjecture.
The United Kingdom also argued that, whoever might be the
authors of the mine laying, it could not have been effected
without Albania's knowledge. True, the mere fact that mines
were laid in Albanian waters neither involves prima facie
responsibility nor does it shift the burden of proof. On the other
hand, the exclusive control exercised by a State within its
frontiers may make it impossible to furnish direct proof of facts
which would involve its responsibility in case of a violation of
international law. The State which is the victim must, in that
ease, be allowed a more liberal recourse to inferences of fact
and circumstantial evidence; such indirect evidence must be
regarded as of especial weight when based on a series of facts,
linked together and leading logically to a single conclusion.
In the present case two series of facts, which corroborate one
another, have to be considered.
The first relates to the Albanian Government's attitude before
and after the catastrophe. The laying of the mines took place in
a period in which it had shown its intention to keep a jealous
watch on its territorial waters and in which it was requiring prior
authorization before they were entered, this vigilance
sometimes going so far as to involve the use of force: all of which
render the assertion of ignorance a priori improbable. Moreover,
when the Albanian Government had become fully aware of the
existence of a minefield, it protested strongly against the activity
of the British Fleet, but not against the laying of the mines,
though this act, if effected without her consent, would have been
a very serious violation of her sovereignty; she did not notify
shipping of the existence of the minefield, as would be required
by international law; and she did not undertake any of the
measures of judicial investigation which would seem to be

incumbent on her in such a case. Such an attitude could only be
explained if the Albanian Government, while knowing of the
mine laying, desired the circumstances in which it was effected
to remain secret.
The second series of facts relates to the possibility of observing
the mine laying from the Albanian coast. Geographically, the
channel is easily watched: it is dominated by heights offering
excellent observation points, and it runs close to the coast (the
nearest mine was 500 m. from the shore). The methodical and
well-thought-out laying of the mines compelled the minelayers
to remain from two to two-and-a-half hours in the waters
between Cape Kiephali and the St. George's Monastery. In
regard to that point, the naval experts appointed by the Court
reported, after enquiry and investigation on the spot, that they
considered it to be indisputable that, if a normal look-out was
kept at Cape Kiephali, Denta Point, and St. George's Monastery,
and if the lookouts were equipped with binoculars, under normal
weather conditions for this area, the mine-laying operations
must have been noticed by these coastguards. The existence of
a look-out post at Denta Point was not established; but the
Court, basing itself on the declarations of the Albanian
Government that lock-out posts were stationed at other points,
refers to the following conclusions in the experts' report: that in
the case of mine laying 1) from the North towards the South, the
minelayers would have been seen from Cape Kiephali; if from
South towards the North, they would have been seen from Cape
Kiephali and St. George's Monastery.
From all the facts and observations mentioned above, the Court
draws the conclusion that the laying of the minefield could not
have been accomplished without the knowledge of Albania. As
regards the obligations resulting for her from this knowledge,
they are not disputed. It was her duty to notify shipping and
especially to warn the ships proceeding through the Strait on
October 22nd of the danger to which they were exposed. In fact,
nothing was attempted by Albania to prevent the disaster, and
these grave omissions involve her international responsibility.
The Special Agreement asks the Court to say whether, on this
ground, there is "any duty" for Albania "to pay compensation" to
the United Kingdom. This text gave rise to certain doubts: could
the Court not only decide on the principle of compensation but
also assess the amount? The Court answered in the affirmative
and, by a special Order, it has fixed dine-limits to enable the
Parties to submit their views to it on this subject.
2. The Albanian claim to make the passage of ships
conditional on a prior authorization conflicts with the generally
admitted principle that States, in time of peace, have a right to
send their warships through straits used for international
navigation between two parts of the high seas, provided that the
passage is innocent. The Corfu Strait belongs geographically to
this category, even though it is only of secondary importance (in
the sense that it is not a necessary route between two parts of
the high seas) and irrespective of the volume of traffic passing
through it. A fact of particular importance is that it constitutes a
frontier between Albania and Greece, and that a part of the strait
is wholly within the territorial waters of those States. It is a fact
that the two States did not maintain normal relations, Greece
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having made territorial claims precisely with regard to a part of
the coast bordering the strait. However, the Court is of opinion
that Albania would have been justified in view of these
exceptional circumstances, in issuing regulations in respect of
the passage, but not in prohibiting such passage or in subjecting
it to the requirement of special authorization.
Albania has denied that the passage on October 22 was
innocent. She alleges that it was a political mission and that the
methods employed - the number of ships, their formation,
armament, manoeuvres, etc. - showed an intention to intimidate.
The Court examined the different Albanian contentions so far as
they appeared relevant. Its conclusion is that the passage was
innocent both in its principle, since it was designed to affirm a
right which had been unjustly denied, and in its methods of
execution, which were not unreasonable in view of the firing from
the Albanian battery on May 15th.
As regards the operation on November 12th/13th, it was
executed contrary to the clearly expressed wish of the Albanian
Government; it did not have the consent of the international mine
clearance organizations; it could not be justified as the exercise
of the right of innocent passage. The United Kingdom has stated
that its object was to secure the mines as quickly as possible for
fear lest they should be taken away by the authors of the mine
laying or by the Albanian authorities: this was presented either
as a new and special application of the theory of intervention, by
means of which the intervening State was acting to facilitate the
task of the international tribunal, or as a method of self-
protection or self-help. The Court cannot accept these lines of
defence. It can only regard the alleged right of intervention as
the manifestation of a policy of force which cannot find a place
in international law. As regards the notion of self-help, the Court
is also unable to accept it: between independent States the
respect for territorial sovereignty is an essential foundation for
international relations. Certainly, the Court recognises the
Albanian Government's complete failure to carry out its duties
after the explosions and the dilatory nature of its diplomatic
Notes as extenuating circumstances for the action of the United
Kingdom. But, to ensure respect for international law, of which it
is the organ, the Court must declare that the action of the British
Navy constituted a violation of Albanian sovereignty. This
declaration is in accordance with the request made by Albania
through her counsel and is in itself appropriate satisfaction.
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THE ANGLO-NORWEGIAN FISHERIES CASE
Since 1911 British trawlers had been seized and condemned for
violating measures taken by the Norwegian government
specifying the limits within which fishing was prohibited to
foreigners. In 1935, a decree was adopted establishing the lines
of delimitation of the Norwegian fisheries zone.
On 24th September 1949 the government of the United
Kingdom filed the registry of the international court of justice an
application instituting proceedings against Norway. The subject
of the proceeding was the validity, under international law, of the
lines of delimitation of the Norwegian fisheries zone as set forth
in a Decree of 12th July 1935.

The application referred to the declaration by which the united
Kingdom and Norway had accepted the compulsory jurisdiction
of the International Court of Justice in accordance with article 36
(2) of its statute.
The parties involved in this case were Norway and the United
Kingdom, of Great Britain and Northern Ireland. The
implementation of the Royal Norwegian Decree of the 1935 was
met with resistance from the United Kingdom. The decree
covers the drawing of straight lines, called baselines 4 miles
deep into the sea. This 4 miles area is reserved fishing exclusive
for Norwegian nationals. Under article 36(2) both UK and
Norway were willing to accept the jurisdiction of the ICJ on this
case and with no appeal. The issues that constitute the case
were submitted to the court and the arguments presented by
both countries. The issues claims the court to: declare the
principles of international law applicable in defining the
baselines by reference to which Norwegian government was
entitled to delimit a fisheries zone and exclusively reserved to its
nationals; and to define the said base lines in the light of the
arguments of the parties in order to avoid further legal
difference; and secondly to award damages to the government
of the United Kingdom in respect of all interferences by the
Norwegian authorities with British fishing vessels outside the
fisheries zone, which in accordance with ICJ's decision, the
Norwegian government may be entitled to reserve for its
nationals.
The United Kingdom argued that;
Norway could only draw straight lines across bays
The length of lines drawn on the formations of the
Skaergaard fjord must not exceed 10 nautical miles( the 10 Mile
rule)
That certain lines did not follow the general direction of
the coast or did not follow it sufficiently , or they did not respect
certain connection of sea and land separating them
That the Norwegian system of delimitation was
unknown to the British and lack the notoriety to provide the basis
of historic title enforcement upon opposable to by the United
Kingdom
The Kingdom of Norway argued;
That the base lines had to be drawn in such a way as
to respect the general direction of the coast and in a reasonable
manner.
The case was submitted to the International Court of Justice by
the government of the United Kingdom. The government of
United Kingdom wants the ICJ to declare the validity of the base
lines under international law and receive compensation for
damages caused by Norwegian authorities as to the seizures of
British Fishing vessels.
The judgment of the court first examines the applicability of the
principles put forward by the government of the UK, then the
Norwegian system, and finally the conformity of that system with
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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.
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THE TRAIL SMELTER ARBITRATION CASE (UNITED
STATES VS CANADA)
Brief Fact Summary
The Trail Smelter Case1 arose in the field of late 1950's and
came up with the issue of International Environmental Law. In
this case it was damage caused by one State to the
environment of the other that triggered the legal claim. Legally
the issue was not viewed as different from damage caused to
the public or private property, for instance by the inadvertent
penetration of a foreign State's territory by armed forces. For the
first time an International Tribunal propounded the principle that
as State may not use, or allow its national's to use, its own
territory in such a manner as to cause injury to a neighboring
country
FACTS
The Columbia River rises in Canada and flows past a lead and
zinc smelter located at Trail, in British Columbia (Canada). The
smelter company was alleged to cause damage to trees, crops
and land in the American States of Washington. he climate from
beyond Trail on the United States boundary is dry, but not arid.
The smelter was built under U.S. auspices, but had been taken
over. In 1906, the Consolidated Mining and Smelting Company
of Canada, Limited acquired the smelter plant at Trail. Since that
time, the Canadian company, without interruption, has operated
the Smelter, and from time to time has greatly added to the plant
until it has become one of the best and largest equipped
smelting plants on the American continent. In 1925 and 1927,
stacks, 409 feet high, were erected and the smelter increased
its output, resulting in more sulphur dioxide fumes. The higher
stacks increased the area of damage in the United States. From
1925 to 1931, damage had been caused in the State of
Washington by the sulphur dioxide coming from the Trail
Smelter, and the International Joint Commission recommended
payment of $350,000 in respect of damage to 1 January, 1932.
The United States informed Canada that the conditions were still
unsatisfactory and an Arbikal Tribunal was set up to "finally
decide" whether further damage had been caused in
Washington and the indemnity due, whether the smelter should
be required to cease operation; the measures to be adopted to
this end; and compensation due. The Tribunal was directed to
apply the law and practice of the United States as well as
international law and practice. The United States Government,
on February 17, 1933, made represents to the Canadian
Government that the existing conditions were entirely
unsatisfactory and that damage was still occurring and
diplomatic negotiations were entered into, which resulted in the
signing of the present convention.
The Court held Canada responsible for the conduct of the Trail
Smelter and enjoined it to pay compensation to United States.
The court also provided for future monitoring of the effects of the
factory's activities on the environment, to prevent possible future
damages to the United States environment.
The subsequent diplomatic negotiations led to the United States
and Canada signing and ratifying a Convention in 1935.
Through the Convention, the two countries agreed to refer the
matter to a three-member arbitration tribunal composed of an

American, a Canadian, and an independent chairman (a Belgian
national was ultimately appointed). The arbitration tribunal was
charged with first determining whether damages caused by Trail
Smelter continued to occur after January 1, 1932 and, if so, what
indemnity should be paid. Under the Convention, Canada had
already agreed to pay the United States $ 350,000 for damages
prior to 1932, based on the findings of the IJC. The arbitration
tribunal addressed this first question in this context of the case
determining that the damages caused by the Canadian smelter
to properties in Washington State from 1932 to 1937 amounted
to $ 78,000 (equivalent to approximately $ 1.1 million in 2006).
The arbitration tribunal's more difficult, and ultimately more
significant charge, was to decide whether the Canadian smelter
should be required to refrain from causing damage in the State
of Washington in the future, and what measures or regime, if
any, should be adopted or maintained by the smelter, in addition
to future "indemnity or compensation.
To answer these questions, the tribunal was directed to apply
the law and practice followed in dealing with cognate questions
in the United States of America as well as International Law and
Practice, and give consideration to the desire of the High
Contracting Parties to reach a solution just to all parties
concerned.
ISSUE
The Trail Smelter case came up with the issue of "duty"
of states to "prevent transboundary harm" and invoking the
"polluter pays" principle.
HELD
Transboundary Harm' issue
Transboundary Harm proceeds in three parts. Part One
examines the historical foundations of the case, its influence on
international environmental law, and the smelter's continuing yet
largely unknown toxic legacy. Part Two examines the case's
contemporary significance for the law of transboundary
environmental harm. Part Three looks beyond environmental
law to examine the significance of the Trail Smelter arbitration
for legal responses to other transboundary harms, from
international terrorism to Internet torts. Illustratively:
Part one examination begins with a detailed account of the
history surrounding the dispute, describing the important roles
of the private parties involved and examining the actions of the
state actors in arbitrating the dispute on behalf of the parties.
Part One also examines the "jurisprudential legacy" of the
decision in an increasingly prevention-focused, regulatory world.
The usefulness of the Smelter case is limited by the fact that the
dispute turned more on the rights of states as "sovereign equals"
and less on the undesirability of transboundary pollution. Unlike
the situation in Trail, in contemporary disputes the cause of
damages is often unclear and the disputing countries often lack
a history of cooperation and "reciprocal" interests which counsel
them toward cooperation and moderation. The enduring
significance of the "due diligence" obligation was created by the
Tribunal. The obligation "not to cause serious environmental
harm" - was originally intended to ensure the continuing
compliance of the Trail Smelter with pollution-prevention
measures. Due diligence, is recognized by the "Draft Articles on
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Prevention of Transboundary Harm from Hazardous Activities"
as the requisite level of intent needed to establish the liability of
transboundary polluters. Part One closes with an account of a
new dispute over pollution by the Trail Smelter - the United
States Environmental Protection Agency (EPA) has recently
issued a regulatory order under the Comprehensive
Environmental Response, Compensation and Liability Act
(CERCLA) against Cominco relating to pollution of the Columbia
River "watershed." An action to enforce the order is pending in
United States Courts. The regulatory character of this action,
and the attempt by the United States to directly regulate a
foreign entity under a "strict liability" theory of accountability,
demonstrates a drastic break in the character of modern
transboundary pollution disputes.
Part Two examines the significance and potential relevance of
the Trail Smelter principles to important "contemporary" issues
in transboundary environmental harm. The issues surveyed
include genetically modified organisms, nuclear energy, global
climate change, hazardous waste transport, transboundary air
pollution, and marine pollution, among others. The difficulty of
identifying any particular polluting entity as the single cause of
global pollution problems, like climate change cannot be
identified. The requirement of "clear and convincing evidence"
of "serious" environmental harm makes liability increasingly
difficult to establish, and bilateral litigation becomes less
effective in solving widespread pollution problems. States still
reign supreme even in such international regulatory regimes, as
conventions generally depend upon state cooperation and often
are more concerned with preserving the sovereign equality of
states than preventing pollution. One other key theme in Part
Two is a recognition of the fact that although Canada voluntarily
assumed responsibility for the actions of a private company in
the Trail Smelter arbitration, such attributions of control are more
problematic.
Part Three innovatively examines the applicability of Trail
Smelter to non-environmental forms of "transboundary harm" as
broadly defined, including terrorism, refugee flows, Internet
torts, drug trafficking, and human rights. Generally, such
analyses find that Trail's lessons are not easily transposed to
other sorts of transboundary harm. First, "liability regimes"
imposing damages for continuing harms are not always
appropriate to remedy non-environmental harms. In the cases
of migration of refugees forcing the state from which the harm
emanated to compensate other states for the harm engendered
will not generally resolve the problem because the harms tend
to arise from instability, poverty, or weak governments within
those states. Not only will those states generally have little
money to satisfy any potential judgment, but any such judgment
could only serve to further destabilize the state and increase the
harm.
In other situations, the intense focus of Trail Smelter on theories
of sovereign equality makes it less well suited to address harms
caused by private actors. For example, with respect to Internet
torts or terrorism, states may not be well placed to prevent the
commission of such harms by private actors. In addition,
multinational corporations often operate across many different
states, making it difficult to hold any one state responsible for
their harmful actions. Rather, multinational corporations often

have better resources and scientific knowledge to regulate their
own actions in ways consistent with notions of "corporate social
and environmental responsibility" and therefore states must
work together with those corporations in that regard. Finally, the
Trail Smelter remains relevant insofar as it would counsel that
states be held responsible for their own extraterritorial actions
which result in human rights violations abroad.
General principles
Only two General Principles have been evolved from the case
of Smelter. The first and more general one is that enjoying every
State not to allow its territory to be used in such a way as to
damage the environment of other States or of areas beyond the
limits of national jurisdiction. This principle was first set out by
the Arbitral Courts in the Smelter case. This principle is
substantially based on an even more general obligation,
enunciated in the Corfu Channel13 case where the principle laid
down that every State is under the obligation not to allow
knowingly its territory to be used for acts contrary to the rights of
the other States.
The second general principle attested to by the general and
increasing concern of the States about the environment and
born out by the great number of treaties concluded that imposing
upon States the obligation to co-operate for the protection of the
environment. This principle had already been eluded in the
decision of the Smelter case. It is off course much looser than
the previous one but already reflects a new approach to
environmental issues, based on the assumption that the
environment is a matter of general concern. It follows from this
principle that every State must co-operate for the protection of
this precious asset, regardless of whether or not its own
environment has been or may be harmed. This principle can
only be applied jointly with the customary rule on good faith,
which states every State must in good faith endeavor to co-
operate with other States with a view to protecting the
environment. A blunt refusal to co-operate, unaccompanied by
a statement of he reasons for such attitude, would amount to a
breach of the principle.'15 After dealing with issues of
transboundary harm and general principles applicable in this
case we have to give the answers to the questions that has
come up in this case relating to whether the Canadian smelter
should be required to refrain from causing damage in the State
of Washington in the future, and what measures or regime, if
any, should be adopted or maintained by the smelter, in addition
to future "indemnity or compensation."
The tribunal first concluded that there was no need to choose
between the law of the United States or international law to
decide the case, as the law followed in the United States in
dealing with the quasi-sovereign rights of the States of the
Union, in the matter of transboundary pollution, is in conformity
with the general rules of international law. The tribunal cited a
leading international law authority: "As Professor Eagleton puts
in ... 'A State owes at all times a duty to protect other States
against injurious acts by individuals from within its
jurisdiction.'"16The tribunal supplemented this general rule with
a comprehensive summary of the United States Supreme
Court's decisions regarding interstate transboundary pollution,
including cases both between two sovereign states and between
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a state and local governments or private parties (such as cities
and mining companies). Taking the decisions as a whole, the
tribunal stated the following principles for transboundary
pollution disputes:
No State has the right to use or permit the use of its territory in
such a manner as to cause injury by fumes in or to the territory
of another or the properties or persons therein, when the cause
is of serious consequence and the injury is established by clear
and convincing evidence.
The tribunal further held that the Dominion of Canada is
responsible in international law for the conduct of the Trail
Smelter. Therefore, it is the duty of the Government of the
Dominion of Canada to see to it that this conduct should be in
conformity with the obligation of the Dominion under
international law as herein determined.
Applying these principles to the dispute at hand, the tribunal
required the Trail Smelter to "refrain from causing any damage
through fumes in the State of Washington."18 The tribunal
specifically noted that such damage would be actionable under
United States law in a suit between private individuals. Further,
the tribunal ordered a detailed management regime and
regulations for the smelter to prevent sulphur dioxide emissions
from reaching levels that cause property damage in Washington
State. The tribunal also indicated that it would allow future claims
for damages that occur, despite the imposed management
regime.
CONCLUSION
Canada was held liable to the United States for the damages
and injuries done by fumes carried by the winds from a privately
owned company of smelter in Canada and was required to
prevent such damages in future. The tribunal found it
unnecessary to decide whether the question should be
answered on the basis of United States Law or the International
Law, since the law followed between the states of the United
States in the manner of air pollution, is in conformity with the
general rules of International law. Pointing to the absence of
international decisions dealing with air pollution, the tribunal
said, The nearest analogy is that of water pollution, but again
found no interrelation decisions. On both air and water pollution,
the tribunal found certain United States Supreme Court
decisions which may be legitimately taken as a guide in this field
of international law, for it is reasonable to follow by analogy, in
international cases, precedent established by that court in
dealing with controversies between the States of the Union or
with other controversies concerning the quasi-sovereign rights
of that states, where no contrary rule prevails in international law
and no reason for rejecting such precedents can be adduced
from the limitations of sovereignty inherent in the Constitution of
the United States. The tribunal referred to one Swiss case, on
water pollution, Georgia vs Tennessee Copper Co.
under the principles of international law, as well as the law of the
United States, no State has the right to use or permit the use of
its territory in such a manner as to cause injury by fumes in or to
the territory of another or the properties or persons therein, when

the case is of serious consequences and the injury is
established by clear and convincing evidence.
Considering the circumstances of the case, the Tribunal held
that the Dominion of Canada is responsible by international law
for the conduct of the Trail Smelter. Apart from the undertakings
of the Convention, it is therefore the duty of the Government of
the Dominion of Canada to see to it that this conduct should be
in conformity with the obligation of the Dominion under
international law as herein determined.
Therefore, so long as the present conditions in the Columbia
River Valley prevail, the Trail Smelter shall be required to refrain
from causing any damage through fumes in the State of
Washington; the damage herein referred to and its extent being
such as would be recoverable under the decisions of the courts
of the United States in suits between private individuals. The
indemnity for such damage should be fixed in such a manner as
the Governments should agree upon.
---------------------------xxx-------------------------
BARCELONA TRACTION, LIGHT AND POWER COMPANY,
LTD. (BELGIUM V. SPAIN)
FACTS
Barcelona Traction, Light, and Power Company, Ltd was a
corporation incorporated in Canada, with Toronto headquarters
that made and supplied electricity in Spain. It had issued bonds
to non-Spanish investors, but during the Spanish Civil War
(1936-9) the Spanish government refused to allow BTLP to
transfer currency to pay bondholders the interest they were due.
In 1948 a group of bondholders sued in Spain to declare that
BTLP had defaulted on the ground it had failed to pay the
interest. The Spanish court allowed their claim. The business
was sold, the surplus distributed to the bondholders, and a small
amount was paid to shareholders. The shareholders in Canada
succeeded in persuading Canada and other states to complain
that Spain had denied justice and violated a series of treaty
obligations. However, Canada eventually accepted that Spain
had the right to prevent BTLP from transferring currency and
declaring BTLP bankrupt. Of the shares, 88 per cent were
owned by Belgians, and the Belgian government complained,
insisting the Spanish government had not acted properly. They
made an initial claim at the International Court of Justice in 1958,
but later withdrew it to allow negotiations. Subsequent
negotiations broke down, and a new claim was filed in 1962.
Spain contended that Belgium had no standing because BTLP
was a Canadian company.
ISSUE
Does a state assumes an obligation concerning the treatment
of foreign investments based on general international law,
once the state admits foreign investments or foreign nationals
into its territory?
HELD
The International Court of Justice huevos that Belgium had no
legal interest in the matter to justify it bringing a claim. Although
Belgian shareholders suffered if a wrong was done to the
company, it was only the company's rights that could have been
infringed by Spain's actions. It would only be if direct
Page |7
shareholder rights (such as to dividends) were affected, that the
state of the shareholders would have an independent right of
action. It was a general rule of international law that when an
unlawful act was committed against a company, only the state
of incorporation of the company could sue, and because
Canada had chosen not to, this was the end. The idea of a
"diplomatic protection" of shareholders was unsound because it
would create confusion and insecurity in economic relations as
shares are 'widely scattered and frequently change hands'. The
court also said that a state is bound to give the same legal
protection to foreign investments and nationals, either for natural
or legal persons, when it admits them to its territory.
Padilla Nervo J said the following.
The history of the responsibility of States in respect to
the treatment of foreign nationals is the history of abuses, illegal
interference in the domestic jurisdiction of weaker States, unjust
claims, threats and even military aggression under the flag of
exercising rights of protection, and the imposing of sanctions in
order to oblige a government to make the reparations
demanded.
Special agreements to establish arbitral tribunals were on many
occasions concluded under pressure, by political, economic or
military threats.
The protecting States, in many instances, are more concerned
with obtaining financial settlements than with preserving
principles. Against the pressure of diplomatic protection, weaker
States could do no more than to preserve and defend a principle
of international law, while giving way under the guise of
accepting friendly settlements, either giving the compensation
demanded or by establishing claims commissions which had as
a point of departure the acceptance of responsibility for acts or
omissions, where the government was, neither in fact nor in law,
really responsible.
In the written and in the oral pleadings the Applicant has made
reference, in support of his thesis, to arbitral decisions of claims
commissionsamong others those between Mexico and the
United States, 1923.
These decisions do not necessarily give expression to rules of
customary international law, as ... the Commissions were
authorized to decide these claims "in accordance with principles
of international law, justice and equity," and, therefore, may
have been influenced by other than strictly legal considerations.
...
Now the evolution of international law has other horizons and its
progressive development is more promising, as Rosenne wrote:
There is prevalent in the world today a widespread questioning
of the contemporary international law. This feeling is based on
the view that for the greater part international law is the product
of European imperialism and colonialism and does not take
sufficient account of the completely changed pattern of
international relations which now exists....

Careful scrutiny of the record of the Court may lead to the
conclusion that it has been remarkably perceptive of the
changing currents of international thought. In this respect it has
performed a major service to the international community as a
whole, because the need to bring international law into line with
present-day requirements and conditions is real and urgent.
The law, in all its aspects, the jurisprudence and the practice of
States change as the world and the everyday requirements of
international life change, but those responsible for its
progressive evolution should take care that their decisions do,
in the long run, contribute to the maintenance of peace and
security and the betterment of the majority of mankind.
In considering the needs and the good of the international
community in our changing world, one must realize that there
are more important aspects than those concerned with
economic interests and profit making; other legitimate interests
of a political and moral nature are at stake and should be
considered in judging the behavior and operation of the complex
international scope of modern commercial enterprises.
It is not the shareholders in those huge corporations who are in
need of diplomatic protection; it is rather the poorer or weaker
States, where the investments take place, who need to be
protected against encroachment by powerful financial groups, or
against unwarranted diplomatic pressure from governments
who appear to be always ready to back at any rate their national
shareholders, even when they are legally obliged to share the
risk of their corporation and follow its fate, or even in case of
shareholders who are not or have never been under the limited
jurisdiction of the State of residence accused of having violated
in respect of them certain fundamental rights concerning the
treatment of foreigners. It can be said that, by the mere fact of
the existence of certain rules concerning the treatment of
foreigners, these have certain fundamental rights that the State
of residence cannot violate without incurring international
responsibility; but this is not the case of foreign shareholders as
such, who may be scattered all over the world and have never
been or need not be residents of the respondent State or under
its jurisdiction.
In the case of the Rosa Gelbtrunk claim between Salvador and
the United States, the President of the arbitration commission
expressed a view which may summarize the position of
foreigners in a country where they are resident. This view was
expressed as follows:
A citizen or subject of one nation who, in the pursuit of
commercial enterprise, carries on trade within the territory and
under the protection of the sovereignty of a nation other than his
own, is to be considered as having cast in his lot with the
subjects or citizens of the State in which he resides and carries
on business. (Italics added.)
"In this case," Schwarzenberger remarks, "the rule was applied
to the loss of foreign property in the course of a civil war. The
decision touches, however, one aspect of a much wider
problem: the existence of international minimum standards, by
which, regarding foreigners, territorial jurisdiction is limited." ...
Page |8
Much has been said about the justification for not leaving the
shareholders in those enterprises without protection.
Perhaps modem international business practice has a tendency
to be soft and partial towards the powerful and the rich, but no
rule of law could be built on such flimsy bases.
Investors who go abroad in search of profits take a risk and go
there for better or for worse, not only for better. They should
respect the institutions and abide by the national laws of the
country where they chose to go.
---------------------------xxx---------------------------
ICJ ADVISORY OPINION ON LEGALITY OF THE THREAT
OR USE OF NUCLEAR WEAPONS
Submission of the request and subsequent procedure
(paras. 1-9)
The Court begins by recalling that by a letter dated 19 December
1994, filed in the Registry on 6 January 1995, the Secretary-
General of the United Nations officially communicated to the
Registrar the decision taken by the General Assembly to submit
a question to the Court for an advisory opinion. The final
paragraph of Resolution 49/75 K, adopted by the General
Assembly on 15 December 1994, which sets forth the question,
provides that the General Assembly "Decides, pursuant to
Article 96, paragraph 1, of the Charter of the United Nations, to
request the International Court of Justice urgently to render its
advisory opinion on the following question: 'Is the threat or use
of nuclear weapons in any circumstance permitted under
international law?'."
The Court then recapitulates the various stages of the
proceedings.
Jurisdiction of the Court paras. 10-18)
The Court first considers whether it has the jurisdiction to give a
reply to the request of the General Assembly for an Advisory
Opinion and whether, should the answer be in the affirmative,
there is any reason it should decline to exercise any such
jurisdiction.
The Court observes that it draws its competence in respect of
advisory opinions from Article 65, paragraph 1, of its Statute,
while Article 96, paragraph 1 of the Charter provides that:
"The General Assembly or the Security Council may
request the International Court of Justice to give an
advisory opinion on any legal question."
Some States which oppose the giving of an opinion by the Court
argued that the General Assembly and Security Council may
ask for an advisory opinion on any legal question only within the
scope of their activities. In the view of the Court, it matters little
whether this interpretation of Article 96, paragraph 1, is or is not
correct; in the present case, the General Assembly has
competence in any event to seize the Court. Referring to Articles
10, 11 and 13 of the Charter, the Court finds that, indeed, the
question put to the Court has a relevance to many aspects of

the activities and concerns of the General Assembly including
those relating to the threat or use of force in international
relations, the disarmament process, and the progressive
development of international law.
"Legal Question" (para. 13)
The Court observes that it has already had occasion to indicate
that questions "framed in terms of law and raising problems of
international law . . . are by their very nature susceptible of a
reply based on law . . . [and] appear . . . to be questions of a
legal character" (Western Sahara, Advisory Opinion, I.C.J.
Reports 1975, p. 18, para. 15).
It finds that the question put to the Court by the General
Assembly is indeed a legal one, since the Court is asked to rule
on the compatibility of the threat or use of nuclear weapons with
the relevant principles and rules of international law. To do this,
the Court must identify the existing principles and rules, interpret
them and apply them to the threat or use of nuclear weapons,
thus offering a reply to the question posed based on law.
The fact that this question also has political aspects, as, in the
nature of things, is the case with so many questions which arise
in international life, does not suffice to deprive it of its character
as a "legal question" and to "deprive the Court of a competence
expressly conferred on it by its Statute". Nor are the political
nature of the motives which may be said to have inspired the
request or the political implications that the opinion given might
have of relevance in the establishment of the Court's jurisdiction
to give such an opinion.
Discretion of the Court to give an advisory opinion (paras.
14-19)
Article 65, paragraph 1, of the Statute provides: "The Court may
give an advisory opinion . . ." (Emphasis added.) This is more
than an enabling provision. As the Court has repeatedly
emphasized, the Statute leaves a discretion as to whether or not
it will give an advisory opinion that has been requested of it,
once it has established its competence to do so. In this context,
the Court has previously noted as follows:
"The Court's Opinion is given not to the States, but to the organ
which is entitled to request it; the reply of the Court, itself an
'organ of the United Nations', represents its participation in the
activities of the Organization, and, in principle, should not be
refused." (Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, First Phase, Advisory Opinion, I.C.J.
Reports 1950, p. 71; . . .)"
In the history of the present Court there has been no refusal,
based on the discretionary power of the Court, to act upon a
request for advisory opinion; in the case concerning the Legality
of the Use by a State of Nuclear Weapons in Armed Conflict the
refusal to give the World Health Organization the advisory
opinion requested by it was justified by the Court's lack of
jurisdiction in that case.
Several reasons were adduced in these proceedings in order to
persuade the Court that in the exercise of its discretionary power
it should decline to render the opinion requested by the General
Page |9
Assembly. Some States, in contending that the question put to
the Court is vague and abstract, appeared to mean by this that
there exists no specific dispute on the subject-matter of the
question. In order to respond to this argument, it is necessary to
distinguish between requirements governing contentious
procedure and those applicable to advisory opinions. The
purpose of the advisory function is not to settle - at least directly
- disputes between States, but to offer legal advice to the organs
and institutions requesting the opinion. The fact that the
question put to the Court does not relate to a specific dispute
should consequently not lead the Court to decline to give the
opinion requested. Other arguments concerned the fear that the
abstract nature of the question might lead the Court to make
hypothetical or speculative declarations outside the scope of its
judicial function; the fact that the General Assembly has not
explained to the Court for what precise purposes it seeks the
advisory opinion; that a reply from the Court in this case might
adversely affect disarmament negotiations and would, therefore,
be contrary to the interest of the United Nations; and that in
answering the question posed, the Court would be going beyond
its judicial role and would be taking upon itself a law-making
capacity.
The Court does not accept those arguments and concludes that
it has the authority to deliver an opinion on the question posed
by the General Assembly, and that there exist no "compelling
reasons" which would lead the Court to exercise its discretion
not to do so. It points out, however, that it is an entirely different
question whether, under the constraints placed upon it as a
judicial organ, it will be able to give a complete answer to the
question asked of it. But that is a different matter from a refusal
to answer at all.
Formulation of the question posed (paras. 20 and 22)
The Court finds it unnecessary to pronounce on the possible
divergences between the English and French texts of the
question put. Its real objective is clear: to determine the legality
or illegality of the threat or use of nuclear weapons. And the
argument concerning the legal conclusions to be drawn from the
use of the word "permitted", and the questions of burden of proof
to which it was said to give rise, are found by the Court to be
without particular significance for the disposition of the issues
before it.
The Applicable Law (paras. 23-34)
In seeking to answer the question put to it by the General
Assembly, the Court must decide, after consideration of the
great corpus of international law norms available to it, what
might be the relevant applicable law.
The Court considers that the question whether a particular loss
of life, through the use of a certain weapon in warfare, is to be
considered an arbitrary deprivation of life contrary to Article 6 of
the International Covenant on Civil and Political Rights, as
argued by some of the proponents of the illegality of the use of
nuclear weapons, can only be decided by reference to the law
applicable in armed conflict and not deduced from the terms of
the Covenant itself. The Court also points out that the prohibition
of genocide would be pertinent in this case if the recourse to
nuclear weapons did indeed entail the element of intent, towards

a group as such, required by Article II of the Convention on the
Prevention and Punishment of the Crime of Genocide. In the
view of the Court, it would only be possible to arrive at such a
conclusion after having taken due account of the circumstances
specific to each case. And the Court further finds that while the
existing international law relating to the protection and
safeguarding of the environment does not specifically prohibit
the use of nuclear weapons, it indicates important environmental
factors that are properly to be taken into account in the context
of the implementation of the principles and rules of the law
applicable in armed conflict.
In the light of the foregoing the Court concludes that the most
directly relevant applicable law governing the question of which
it was seised, is that relating to the use of force enshrined in the
United Nations Charter and the law applicable in armed conflict
which regulates the conduct of hostilities, together with any
specific treaties on nuclear weapons that the Court might
determine to be relevant.
Unique characteristics of nuclear weapons (paras. 35 and 36)
The Court notes that in order correctly to apply to the present
case the Charter law on the use of force and the law applicable
in armed conflict, in particular humanitarian law, it is imperative
for it to take account of the unique characteristics of nuclear
weapons, and in particular their destructive capacity, their
capacity to cause untold human suffering, and their ability to
cause damage to generations to come.
Provisions of the Charter relating to the threat or use of
force (paras. 37-50)
The Court then addresses the question of the legality or illegality
of recourse to nuclear weapons in the light of the provisions of
the Charter relating to the threat or use of force.
In Article 2, paragraph 4, of the Charter the use of force against
the territorial integrity or political independence of another State
or in any other manner inconsistent with the purposes of the
United Nations is prohibited.
This prohibition of the use of force is to be considered in the light
of other relevant provisions of the Charter. In Article 51, the
Charter recognizes the inherent right of individual or collective
self-defense if an armed attack occurs. A further lawful use of
force is envisaged in Article 42, whereby the Security Council
may take military enforcement measures in conformity with
Chapter VII of the Charter.
These provisions do not refer to specific weapons. They apply
to any use of force, regardless of the weapons employed. The
Charter neither expressly prohibits, nor permits, the use of any
specific weapon, including nuclear weapons.
The entitlement to resort to self-defense under Article 51 is
subject to the conditions of necessity and proportionality. As the
Court stated in the case concerning Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States
of America) (I.C.J. Reports 1986, p. 94, para. 176): "there is a
specific rule whereby self-defense would warrant only measures
which are proportional to the armed attack and necessary to
P a g e | 10
respond to it, a rule well established in customary international
law".
The proportionality principle may thus not in itself exclude the
use of nuclear weapons in self-defense in all circumstances. But
at the same time, a use of force that is proportionate under the
law of self-defense, must, in order to be lawful, also meet the
requirements of the law applicable in armed conflict which
comprise in particular the principles and rules of humanitarian
law. And the Court notes that the very nature of all nuclear
weapons and the profound risks associated therewith are further
considerations to be borne in mind by States believing they can
exercise a nuclear response in self-defense in accordance with
the requirements of proportionality.
In order to lessen or eliminate the risk of unlawful attack, States
sometimes signal that they possess certain weapons to use in
self-defense against any State violating their territorial integrity
or political independence. Whether a signaled intention to use
force if certain events occur is or is not a "threat" within Article
2, paragraph 4, of the Charter depends upon various factors.
The notions of "threat" and "use" of force under Article 2,
paragraph 4, of the Charter stand together in the sense that if
the use of force itself in a given case is illegal - for whatever
reason - the threat to use such force will likewise be illegal. In
short, if it is to be lawful, the declared readiness of a State to use
force must be a use of force that is in conformity with the Charter.
For the rest, no State - whether or not it defended the policy of
deterrence - suggested to the Court that it would be lawful to
threaten to use force if the use of force contemplated would be
illegal.
Rules on the lawfulness or unlawfulness of nuclear
weapons as such (paras. 49-73)
Having dealt with the Charter provisions relating to the threat or
use of force, the Court turns to the law applicable in situations
of armed conflict. It first addresses the question whether there
are specific rules in international law regulating the legality or
illegality of recourse to nuclear weapons per se; it then examines
the question put to it in the light of the law applicable in armed
conflict proper, i.e. the principles and rules of humanitarian law
applicable in armed conflict, and the law of neutrality.
The Court notes by way of introduction that international
customary and treaty law does not contain any specific
prescription authorizing the threat or use of nuclear weapons or
any other weapon in general or in certain circumstances, in
particular those of the exercise of legitimate self-defense. Nor,
however, is there any principle or rule of international law which
would make the legality of the threat or use of nuclear weapons
or of any other weapons dependent on a specific authorization.
State practice shows that the illegality of the use of certain
weapons as such does not result from an absence of
authorization but, on the contrary, is formulated in terms of
prohibition.
It does not seem to the Court that the use of nuclear weapons
can be regarded as specifically prohibited on the basis of certain
provisions of the Second Hague Declaration of 1899, the
Regulations annexed to the Hague Convention IV of 1907 or the
1925 Geneva Protocol. The pattern until now has been for

weapons of mass destruction to be declared illegal by specific
instruments. But the Court does not find any specific prohibition
of recourse to nuclear weapons in treaties expressly prohibiting
the use of certain weapons of mass destruction; and observes
that, although, in the last two decades, a great many
negotiations have been conducted regarding nuclear weapons,
they have not resulted in a treaty of general prohibition of the
same kind as for bacteriological and chemical weapons.
The Court notes that the treaties dealing exclusively with
acquisition, manufacture, possession, deployment and testing of
nuclear weapons, without specifically addressing their threat or
use, certainly point to an increasing concern in the international
community with these weapons; It concludes from this that these
treaties could therefore be seen as foreshadowing a future
general prohibition of the use of such weapons, but that they do
not constitute such a prohibition by themselves. As to the
treaties of Tlatelolco and Rarotonga and their Protocols, and
also the declarations made in connection with the indefinite
extension of the Treaty on the Non-Proliferation of Nuclear
Weapons, it emerges from these instruments that:
(a) a number of States have undertaken not to use
nuclear weapons in specific zones (Latin America; the South
Pacific) or against certain other States (non-nuclear-weapon
States which are parties to the Treaty on the Non-Proliferation
of Nuclear Weapons);
(b) Nevertheless, even within this framework, the
nuclear-weapon States have reserved the right to use nuclear
weapons in certain circumstances; and
(c) These reservations met with no objection from the
parties to the Tlatelolco or Rarotonga Treaties or from the
Security Council.
The Court then turns to an examination of customary
international law to determine whether a prohibition of the threat
or use of nuclear weapons as such flows from that source of law.
It notes that the Members of the international community are
profoundly divided on the matter of whether non-recourse to
nuclear weapons over the past fifty years constitutes the
expression of an opinio juris. Under these circumstances the
Court does not consider itself able to find that there is such an
opinio juris. It points out that the adoption each year by the
General Assembly, by a large majority, of resolutions recalling
the content of resolution 1653 (XVI), and requesting the member
States to conclude a convention prohibiting the use of nuclear
weapons in any circumstance, reveals the desire of a very large
section of the international community to take, by a specific and
express prohibition of the use of nuclear weapons, a significant
step forward along the road to complete nuclear disarmament.
The emergence, as lex lata, of a customary rule specifically
prohibiting the use of nuclear weapons as such is hampered by
the continuing tensions between the nascent opinio juris on the
one hand, and the still strong adherence to the doctrine of
deterrence (in which the right to use those weapons in the
exercise of the right to self-defense against an armed attack
threatening the vital security interests of the State is reserved)
on the other.
P a g e | 11
International humanitarian law (paras. 74-87)
Not having found a conventional rule of general scope, nor a
customary rule specifically proscribing the threat or use of
nuclear weapons per se, the Court then deals with the question
whether recourse to nuclear weapons must be considered as
illegal in the light of the principles and rules of international
humanitarian law applicable in armed conflict and of the law of
neutrality.
After sketching the historical development of the body of rules
which originally were called "laws and customs of war" and later
came to be termed "international humanitarian law", the Court
observes that the cardinal principles contained in the texts
constituting the fabric of humanitarian law are the following. The
first is aimed at the protection of the civilian population and
civilian objects and establishes the distinction between
combatants and non-combatants; States must never make
civilians the object of attack and must consequently never use
weapons that are incapable of distinguishing between civilian
and military targets. According to the second principle, it is
prohibited to cause unnecessary suffering to combatants: it is
accordingly prohibited to use weapons causing them such harm
or uselessly aggravating their suffering. In application of that
second principle, States do not have unlimited freedom of
choice of means in the weapons they use.
The Court also refers to the Martens Clause, which was first
included in the Hague Convention II with Respect to the Laws
and Customs of War on Land of 1899 and which has proved to
be an effective means of addressing the rapid evolution of
military technology. A modern version of that clause is to be
found in Article 1, paragraph 2, of Additional Protocol I of 1977,
which reads as follows:
"In cases not covered by this Protocol or by other international
agreements, civilians and combatants remain under the
protection and authority of the principles of international law
derived from established custom, from the principles of
humanity and from the dictates of public conscience."
The extensive codification of humanitarian law and the extent of
the accession to the resultant treaties, as well as the fact that
the denunciation clauses that existed in the codification
instruments have never been used, have provided the
international community with a corpus of treaty rules the great
majority of which had already become customary and which
reflected the most universally recognized humanitarian
principles. These rules indicate the normal conduct and
behaviour expected of States.
Turning to the applicability of the principles and rules of
humanitarian law to a possible threat or use of nuclear weapons,
the Court notes that nuclear weapons were invented after most
of the principles and rules of humanitarian law applicable in
armed conflict had already come into existence; the
Conferences of 1949 and 1974-1977 left these weapons aside,
and there is a qualitative as well as quantitative difference
between nuclear weapons and all conventional arms. However,
in the Court's view, it cannot be concluded from this that the
established principles and rules of humanitarian law applicable
in armed conflict did not apply to nuclear weapons. Such a

conclusion would be incompatible with the intrinsically
humanitarian character of the legal principles in question which
permeates the entire law of armed conflict and applies to all
forms of warfare and to all kinds of weapons, those of the past,
those of the present and those of the future. In this respect it
seems significant that the thesis that the rules of humanitarian
law do not apply to the new weaponry, because of the newness
of the latter, has not been advocated in the present proceedings.
The principle of neutrality (paras. 88 and 89)
The Court finds that as in the case of the principles of
humanitarian law applicable in armed conflict, international law
leaves no doubt that the principle of neutrality, whatever its
content, which is of a fundamental character similar to that of the
humanitarian principles and rules, is applicable (subject to the
relevant provisions of the United Nations Charter), to all
international armed conflict, whatever type of weapons might be
used.
Conclusions to be drawn from the applicability of international
humanitarian law and the principle of neutrality (paras. 90-97)
The Court observes that, although the applicability of the
principles and rules of humanitarian law and of the principle of
neutrality to nuclear weapons is hardly disputed, the conclusions
to be drawn from this applicability are, on the other hand,
controversial.
According to one point of view, the fact that recourse to nuclear
weapons is subject to and regulated by the law of armed conflict,
does not necessarily mean that such recourse is as such
prohibited. Another view holds that recourse to nuclear
weapons, in view of the necessarily indiscriminate
consequences of their use, could never be compatible with the
principles and rules of humanitarian law and is therefore
prohibited. A similar view has been expressed with respect to
the effects of the principle of neutrality. Like the principles and
rules of humanitarian law, that principle has therefore been
considered by some to rule out the use of a weapon the effects
of which simply cannot be contained within the territories of the
contending States.
The Court observes that, in view of the unique characteristics of
nuclear weapons, to which the Court has referred above, the
use of such weapons in fact seems scarcely reconcilable with
respect for the requirements of the law applicable in armed
conflict. It considers nevertheless, that it does not have sufficient
elements to enable it to conclude with certainty that the use of
nuclear weapons would necessarily be at variance with the
principles and rules of law applicable in armed conflict in any
circumstance. Furthermore, the Court cannot lose sight of the
fundamental right of every State to survival, and thus its right to
resort to self-defense, in accordance with Article 51 of the
Charter, when its survival is at stake. Nor can it ignore the
practice referred to as "policy of deterrence", to which an
appreciable section of the international community adhered for
many years.
Accordingly, in view of the present state of international law
viewed as a whole, as examined by the Court, and of the
elements of fact at its disposal, the Court is led to observe that
P a g e | 12
it cannot reach a definitive conclusion as to the legality or
illegality of the use of nuclear weapons by a State in an extreme
circumstance of self-defense, in which its very survival would be
at stake.
Obligation to negotiate nuclear disarmament (paras. 98-
103)
Given the eminently difficult issues that arise in applying the law
on the use of force and above all the law applicable in armed
conflict to nuclear weapons, the Court considers that it needs to
examine one further aspect of the question before it, seen in a
broader context.
In the long run, international law, and with it the stability of the
international order which it is intended to govern, are bound to
suffer from the continuing difference of views with regard to the
legal status of weapons as deadly as nuclear weapons. It is
consequently important to put an end to this state of affairs: the
long-promised complete nuclear disarmament appears to be the
most appropriate means of achieving that result.
In these circumstances, the Court appreciates the full
importance of the recognition by Article VI of the Treaty on the
Non-Proliferation of Nuclear Weapons of an obligation to
negotiate in good faith a nuclear disarmament. The legal import
of that obligation goes beyond that of a mere obligation of
conduct; the obligation involved here is an obligation to achieve
a precise result - nuclear disarmament in all its aspects - by
adopting a particular course of conduct, namely, the pursuit of
negotiations on the matter in good faith. This twofold obligation
to pursue and to conclude negotiations formally concerns the
182 States parties to the Treaty on the Non-Proliferation of
Nuclear Weapons, or, in other words, the vast majority of the
international community. Indeed, any realistic search for general
and complete disarmament, especially nuclear disarmament,
necessitates the co-operation of all States.
The Court finally emphasizes that its reply to the question put to
it by the General Assembly rests on the totality of the legal
grounds set forth by the Court above (paragraphs 20 to 103),
each of which is to be read in the light of the others. Some of
these grounds are not such as to form the object of formal
conclusions in the final paragraph of the Opinion; they
nevertheless retain, in the view of the Court, all their importance.
----------------------------xxx------------------------------
SOUTH CHINA SEA ARBITRATION (award of july 2016)
On 12 July 2016, the Permanent Court of Arbitration published
an arbitration award by the tribunal which it states is final and
binding as set out in the Convention.[30][42] Conclusions
expressed in the award included the following:
Regarding the "Nine-Dash Line" and China's claim in the
maritime areas of the South China Sea [43]
The [UNCLOS] Convention defines the scope of maritime
entitlements in the South China Sea, which may not extend
beyond the limits imposed therein.[44]
Chinas claims to historic rights, or other sovereign
rights or jurisdiction, with respect to the maritime areas of the
South China Sea encompassed by the relevant part of the nine-

dash line are contrary to the Convention and without lawful
effect to the extent that they exceed the geographic and
substantive limits of Chinas maritime entitlements under the
Convention. The Convention superseded any historic rights or
other sovereign rights or jurisdiction in excess of the limits
imposed therein.[45]
Regarding the status of features as above/below water at high
tide (Submissions no. 4 and 6)
High-tide features: (a) Scarborough Shoal, (b)
Cuarteron Reef, (c) Fiery Cross Reef, (d) Johnson Reef, (e)
McKennan Reef, and (f) Gaven Reef (North).[46]
Low-tide elevations: (a) Hughes Reef, (b) Gaven Reef
(South), (c) Subi Reef, (d) Mischief Reef, (e) Second Thomas
Shoal.[47]
Hughes Reef lies within 12 nautical miles of the high-
tide features on McKennan Reef and Sin Cowe Island, Gaven
Reef (South) lies within 12 nautical miles of the high-tide
features at Gaven Reef (North) and Namyit Island, and that Subi
Reef lies within 12 nautical miles of the high-tide feature of
Sandy Cay on the reefs to the west of Thitu.[48]
Regarding the status of features as rocks/islands (Submissions
no. 3, 5, and 7)
Scarborough Shoal contains, within the meaning of
Article 121(1) of the Convention, naturally formed areas of land,
surrounded by water, which are above water at high tide.
However, under Article 121(3) of the Convention, the high-tide
features at Scarborough Shoal are rocks that cannot sustain
human habitation or economic life of their own and accordingly
shall have no exclusive economic zone or continental shelf.[49]
Johnson Reef, Cuarteron Reef, and Fiery Cross Reef
contain, within the meaning of Article 121(1) of the Convention,
naturally formed areas of land, surrounded by water, which are
above water at high tide. However, for purposes of Article 121(3)
of the Convention, the high-tide features at Johnson Reef,
Cuarteron Reef, and Fiery Cross Reef are rocks that cannot
sustain human habitation or economic life of their own and
accordingly shall have no exclusive economic zone or
continental shelf.[50]
The high-tide features at Gaven Reef (North) and
McKennan Reef are rocks that cannot sustain human habitation
or economic life of their own and accordingly shall have no
exclusive economic zone or continental shelf.[51]
Mischief Reef and Second Thomas Shoal are both low-
tide elevations that generate no maritime zones of their own
[and] that none of the high-tide features in the Spratly Islands
are capable of sustaining human habitation or an economic life
of their own within the meaning of those terms in Article 121(3)
of the Convention. All of the high-tide features in the Spratly
Islands are therefore legally rocks for purposes of Article 121(3)
and do not generate entitlements to an exclusive economic zone
or continental shelf. There is, accordingly, no possible
entitlement by China to any maritime zone in the area of either
Mischief Reef or Second Thomas Shoal and no jurisdictional
P a g e | 13
obstacle to the tribunals consideration of the Philippines
Submission No. 5.[52]
Both Mischief Reef and Second Thomas Shoal are
located within 200 nautical miles of the Philippines coast on the
island of Palawan and are located in an area that is not
overlapped by the entitlements generated by any maritime
feature claimed by China. It follows, therefore, that, as between
the Philippines and China, Mischief Reef and Second Thomas
Shoal form part of the exclusive economic zone and continental
shelf of the Philippines.[53]
Regarding alleged interference with the Philippines' sovereign
rights in its EEZ and continental shelf (Submission no. 8)
China has, through the operation of its marine
surveillance vessels with respect to M/V Veritas Voyager on 1
to 2 March 2011 breached Article 77 of the Convention with
respect to the Philippines sovereign rights over the non-living
resources of its continental shelf in the area of Reed Bank [and]
that China has, by promulgating its 2012 moratorium on fishing
in the South China Sea, without exception for areas of the South
China Sea falling within the exclusive economic zone of the
Philippines and without limiting the moratorium to Chinese
flagged vessels, breached Article 56 of the Convention with
respect to the Philippines sovereign rights over the living
resources of its exclusive economic zone.[54]
Regarding alleged failure to prevent Chinese nationals from
exploiting the Philippines' living resources (Submission no. 9)
China has, through the operation of its marine
surveillance vessels in tolerating and failing to exercise due
diligence to prevent fishing by Chinese flagged vessels at
Mischief Reef and Second Thomas Shoal in May 2013, failed to
exhibit due regard for the Philippines sovereign rights with
respect to fisheries in its exclusive economic zone. Accordingly,
China has breached its obligations under Article 58(3) of the
Convention.[55]
Regarding China's actions in respect of traditional fishing at
Scarborough Shoal (Submission no. 10)
China has, through the operation of its official vessels
at Scarborough Shoal from May 2012 onwards, unlawfully
prevented Filipino fishermen from engaging in traditional fishing
at Scarborough Shoal.[56]
Regarding alleged failure to protect and preserve )the marine
environment (Submissions no. 11 and 12(B))
China has, through its toleration and protection of, and
failure to prevent Chinese fishing vessels engaging in harmful
harvesting activities of endangered species at Scarborough
Shoal, Second Thomas Shoal and other features in the Spratly
Islands, breached Articles 192 and 194(5) of the
Convention.[57]
China has, through its island-building activities at
Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson
Reef, Hughes Reef, Subi Reef and Mischief Reef, breached
Articles 192, 194(1), 194(5), 197, 123, and 206 of the
Convention.[58]

Regarding occupation and construction activities on Mischief
Reef (Submission no. 12)
China has, through its construction of installations and
artificial islands at Mischief Reef without the authorisation of the
Philippines, breached Articles 60 and 80 of the Convention with
respect to the Philippines sovereign rights in its exclusive
economic zone and continental shelf [and], as a low-tide
elevation, Mischief Reef is not capable of appropriation.[59]
Regarding operation of law enforcement vessels in a dangerous
manner (Submission no. 13)
China has, by virtue of the conduct of Chinese law
enforcement vessels in the vicinity of Scarborough Shoal,
created serious risk of collision and danger to Philippine vessels
and personnel. The Tribunal finds China to have violated Rules
2, 6, 7, 8, 15, and 16 of the COLREGS and, as a consequence,
to be in breach of Article 94 of the Convention.[60]
Regarding aggravation or extension of the dispute between the
parties (Submission No. 14)
China has in the course of these proceedings
aggravated and extended the disputes between the Parties
through its dredging, artificial island-building, and construction
activities [in several particulars itemized in the award].[61]
Regarding the future conduct of the parties (Submission no. 15)
Both Parties are obliged to comply with the
Convention, including its provisions regarding the resolution of
disputes, and to respect the rights and freedoms of other States
under the Convention. Neither Party contests this.
----------------------------xxx--------------------------
CHAGOS MARINE PROTECTED AREA ARBITRATION
(MAURITIUS V. UNITED KINGDOM)
On 18 March 2015 the Permanent Court of Arbitration in The
Hague (PCA) handed down its award in the matter of the
Chagos Marine Protected Area Arbitration between Mauritius
and the UK.
The arbitration focused on the 2010 establishment by the UK of
a Marine Protected Area (MPA) around the Chagos
Archipelago, in the Indian Ocean. The archipelago is under UK
administration as the British Indian Ocean Territory.
The PCA found as follows:
It declined jurisdiction to consider Mauritius' claim that the UK
was not the "coastal State" in respect of the archipelago for the
purposes of the 1982 United Nations Convention on the Law of
the Sea (UNCLOS). This was because the parties dispute
related to land sovereignty over the archipelago, and their
differing views on the "coastal State" were simply one aspect of
this larger dispute. The land sovereignty issue was not
genuinely related to the UNCLOS (paras 207-221 of the award).
Nor did it have jurisdiction to consider Mauritius' alternative
claim that certain undertakings by the UK had endowed
Mauritius with rights as a "coastal State" in respect of the
archipelago. The true "object of the claim" (Nuclear Tests (New
Zealand v. France), Judgment, I.C.J. Reports 1974) was to
P a g e | 14
bolster Mauritius claim to sovereignty over the archipelago.
Therefore, this alternative claim related to the same dispute in
respect of land sovereignty over the archipelago as Mauritius
previous submission (paras 228-230 of the award).
However, it did have jurisdiction to consider Mauritius' claim that
the UKs declaration of the MPA was not compatible with the
UKs UNCLOS obligations. The dispute between the parties in
relation to the compatibility of the MPA with the UNCLOS related
more broadly to the preservation of the marine environment and
to the legal regime applicable to the archipelago and its
surrounding waters when it was eventually returned to Mauritius
(paras 283-323).
As a result of undertakings given by the UK in 1965 and
repeated thereafter, Mauritius held legally binding rights to fish
in the waters surrounding the archipelago, to the eventual return
of the archipelago to Mauritius when no longer needed for
defence purposes, and to the preservation of the benefit of any
minerals or oil discovered in or near the archipelago pending its
eventual return. In declaring the MPA, the UK failed to give due
regard to these rights and breached its obligations under the
UNCLOS (Chapter VI - Merits).
There was no dispute between the parties regarding
submissions to the Commission on the Limits of the Continental
Shelf, and it was therefore unnecessary for the PCA to exercise
jurisdiction in respect of Mauritius' claim on this issue (paras
331-350).
Two PCA members issued a joint Dissenting and Concurring
Opinion, setting out their view that the PCA should have found
that it had jurisdiction to consider Mauritius claims concerning
the identity of the "coastal State". The Dissenting and
Concurring Opinion also expressed the view that the PCA
should have exercised that jurisdiction to hold that the UKs
detachment of the archipelago from the colony of Mauritius in
1965 was contrary to the principles of decolonisation and self-
determination.
---------------------------------xxx------------------------------
GABCIKOCO-NAGYMAROS PROJECT (HUNGARY V.
SLOVAKIA)
FACTS
In 1977, Hungary and Czechoslovakia entered into a treaty to
build and operate various structures (a reservoir, dam, bypass
canal, hydroelectric power plants, and navigational and flood
control improvements) on the Danube River, their shared
border. Construction began in 1978 but was not completed. In
1989, both countries experienced major political and economic
changes. New political leadership in both countries expressed
concerns over going through with the projects for environmental
and economic reasons. Hungary first suspended its share of the
project in 1989 and later abandoned it. Czechoslovakia began
work in 1991 on a new version of the plan. However, in 1993,
Czechoslovakia dissolved into two states, and Slovakia became
independent. Hungary and Slovakia submitted a dispute to the
International Court of Justice (ICJ) and requested the court to
determine on the basis of international law whether Hungary
was entitled to suspend and then abandon its part of the Danube
project. Hungary argued it was entitled to suspend and abandon
due to changed circumstances and impossibility of performance.
 P a g e | 15

ISSUE:
Must a fundamental change of circumstances have been
unforeseen and must the existence of the circumstances at the
time of the treatys conclusion have constituted an essential
basis of the consent of the parties to be bound?

HELD.
Yes. A vital change of circumstances must have been
unforeseen and the existence of the circumstances at the time
of the treatys conclusion must have constituted an essential
basis of the consent of the parties to be bound by their
agreement. Where the common political and economic
conditions were not so closely related to the goals and purpose
of the treaty as to constitute an essential basis of the consent of
the parties, there was no fundamental change of
circumstances.it is only in exceptional cases that the plea of
fundamental change of circumstance may be applied.

DISCUSSION.
The Court relied on the Vienna Convention. The Convention
may be seen as a codification of existing customary law on the
subject of termination of a treaty on the basis of change in
circumstances. New developments in environmental law were
not completely unforeseen.