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“… Article 6 is one of those in respect of which, under 11. The Court held that the first criteria was not met. The
the reservations article of the Convention (Article 12) number of ratifications and accessions to the Convention
reservations may be made by any State on signing, (39 States) were not adequately representative or
ratifying or acceding, – for speaking generally, it is a widespread.
characteristic of purely conventional rules and
Duration
obligations that, in regard to them, some faculty of
making unilateral reservations may, within certain limits, 12. The Court held that the duration taken for a
be admitted; whereas this cannot be so in the case of customary law rule to emerge is not as important as
general or customary law rules and obligations which, by widespread and representative participation, uniform
their very nature, must have equal force for all members usage, and the existence of an opinio juris. It held that:
of the international community, and cannot therefore be
the subject of any right of unilateral exclusion “Although the passage of only a short period of time (in
exercisable at will by any one of them in its own favor…. this case, 3 – 5 years) is not necessarily, or of itself, a
bar to the formation of a new rule of customary Convention or thereafter. As such, the Court held that
international law on the basis of what was originally a the use of the equidistance method is not obligatory for
purely conventional rule, an indispensable requirement the delimitation of the areas concerned in the present
would be that within the period in question, short though proceedings.
it might be, State practice, including that of States whose
interests are specially affected, should have been both
extensive and virtually uniform in the sense of the
QATAR V BAHRAIN
provision invoked and should moreover have occurred in
such a way as to show a general recognition that a rule A claim to settle a dispute involving sovereignty over
of law or legal obligation is involved.” certain islands, sovereign rights over certain shoals and
delimitation of a maritime boundary was filed by Qatar
Opinio juris
(P) in the International Court of Justice against Bahrain
13. Opinio juris is reflected in acts of States (Nicaragua (D). The Court’s jurisdiction was however disputed by
Case) or in omissions (Lotus case), in so far as those Bahrain (D).
acts or omissions were done following a belief that the
Synopsis of Rule of Law. An international agreement
said State is obligated by law to act or refrain from acting
creating rights and obligations can be constituted by the
in a particular way. (For more on opinio juris click here).
signatories to the minutes of meetings and letters
14. The Court examined 15 cases where States had exchanged.
delimited their boundaries using the equidistance
Facts.
method, after the Convention came into force (paras. 75
-77). The Court concluded that even if there were some 1. A dispute concerning sovereignty over
State practice in favour of the equidistance principle, the certain islands and shoals, including the
Court could not deduct the necessary opinio juris from delimitation of a maritime boundary were
this State practice. The North Sea Continental Shelf issues upon which Qatar (P) and Bahrain (D)
Cases confirmed that both State practice (the objective sought to resolve for 20 years.
element) and opinio juris (the subjective element) are 2. During this period of time, letters were
essential pre-requisites for the formation of a customary exchanged and acknowledged by both
law rule. This is consistent with Article 38 (1) (b) of the parties heads of state. A Tripartite Committee
Statute of the ICJ. The Court explained the concept of “for the purpose of approaching the International
opinio juris and the difference between customs (i.e. Court of Justice”�..”� was formed by
habits) and customary law: representatives of Qatar (P), Bahrain (D) and
Saudi Arabia.
“Not only must the acts concerned amount to a settled
3. Though the committee met several time, it
practice, but they must also be such, or be carried out in
failed to produce an agreement on the
such a way, as to be evidence of a belief that this
specific terms for submitting the dispute to
practice is rendered obligatory by the existence of a rule
the Court. Eventually, the meetings
of law requiring it. The need for such a belief, i.e, the
culminated in “Minutes”�, which reaffirmed
existence of a subjective element, is implicit in the very
the process and stipulated that the parties
notion of the opinio juris sive necessitatis. The States
concerned must therefore feel that they are conforming “may”� submit the dispute to the I.C.J. after
to what amounts to a legal obligation. The frequency, or giving the Saudi King six months to resolve
even habitual character of the acts is not in itself the dispute. The Court’s jurisdiction was
enough. There are many international acts, e.g., in the disputed by Bahrain (D) when Qatar (P) filed a
field of ceremonial and protocol, which are performed claim in the I.C.J.
almost invariably, but which are motivated only by
Issue. Yes. An international agreement creating rights
considerations of courtesy, convenience or tradition, and
and obligations can be constituted by the signatories to
not by any sense of legal duty.” (Para 77).
the minutes of meetings and letters exchanged. Though
15. The Court concluded that the equidistance principle Bahrain (D) argued that the Minutes were only a record
was not binding on Germany by way of treaty or of negotiation and could not serve as a basis for the
customary international law. In the case of the latter, the I.C.J.’s jurisdiction, both parties agreed that the letters
principle had not attained a customary international law constituted an international agreement with binding
status at the time of the entry into force of the Geneva force.
International agreements do not take a single form under
the Vienna Convention on the Law of Treaties, and the
Court has enforced this rule in the past. In this case, the
Minutes not only contain the record of the meetings
between the parties, it also contained the reaffirmation of
obligations previously agreed to and agreement to allow
the King of Saudi Arabia to try to find a solution to the
dispute during a six-month period, and indicated the SOUTH CHINA SEA ARBITRATION
possibility of the involvement of the I.C.J. The Minutes
stipulated commitments to which the parties agreed, Legal Status of the Award
thereby creating rights and obligations in international
UNCLOS, the international legal basis for the arbitration,
law. This is the basis therefore of the existence of
is very clear in Annex VII, Arbitration, Article 11 that
international agreement.
“[t]he award of the arbitral tribunal shall be final and
On the part of the Bahrain’s (D) Foreign Minister, he binding and without appeal . . . . It shall be complied with
argued that no agreement existed because he never by the parties to the dispute.”[9]
intended to enter an agreement fails on the grounds that
Hence, there is no argument to be made that
he signed documents creating rights and obligations for
nonappearance by a state changes or effects the “final
his country. Also, Qatar’s (P) delay in applying to the
and binding” nature of the Award. Moreover, while China
United Nations Secretariat does not indicate that Qatar
has asserted both after the release of the 2015 Award
(P) never considered the Minutes to be an international
on Jurisdiction and the 2016 Award that the both are
agreement as Bahrain (D) argued. However, the
“null and void” and have “no binding force,”[10] there is
registration and non-registration with the Secretariat
no legal basis in UNCLOS for such assertions.
does not have any effect on the validity of the
agreement.
HELD: Yes. An international agreement creating rights China has further stated that it “neither accepts nor
and obligations can be constituted by the signatories to recognizes” the Award.[11] There is a modest practice of
the minutes of meetings and letters exchanged. Though states opting not to accept or recognize, and thus not
Bahrain (D) argued that the Minutes were only a record comply with, decisions of the ICJ, the International
of negotiation and could not serve as a basis for the Tribunal for the Law of the Sea (ITLOS), and a tribunal
I.C.J.’s jurisdiction, both parties agreed that the letters established pursuant to UNCLOS.
constituted an international agreement with binding
force.
There is no doubt that language plays a vital role in Rocks/Low-Tide Elevations or Islands
influencing a court’s decision as to whether an
agreement has been entered into and in this particular Jurisdiction
case, the language was the main focus of the I.C.J and it
The Philippines argued that the Tribunal had
was the contents of the Minutes that persuaded the
jurisdiction to determine whether certain insular
I.C.J. to reject the Bahrain foreign minister’s (D) claim
features in the South China Sea were either rocks
that he did not intend to enter into an agreement. Where
(entitled to a 12 nm territorial sea), low-tide
this is compared to general U.S. contract law, where a
elevations no territorial sea), or islands (entitled to a
claim by one of the parties that no contract existed
200 nm zone), even though the features in question
because there was no meeting of the minds might be the
were subject to territorial sovereignty disputes, as this
ground upon which a U.S. court would consider whether
involved interpretation of the relevant provisions of
a contract did exist with more care and thought than the
UNCLOS.[12]
I.C.J. gave the foreign minister of Bahrain’s (D) claims.
China directly countered this, arguing that the heart of
the dispute concerned territorial sovereignty, not the
“interpretation or application” of UNCLOS. [13] In the
alternative, China argued that the rock-or-island
determination concerned maritime boundary
delimitation, which, as result of China’s Declaration
of August 26, 2006,[14] was exempted from of the terms involved in this standard. Additionally,
compulsory adjudicative jurisdiction under the Tribunal directed that where the physical
UNCLOS.[15] 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
In reaching the conclusion that it had jurisdiction to
human community lacks the capacity to sustain
determine the status of the contested features, the
human habitation.”[26]
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- Applying their understanding of Article 121(3) to the
tide elevations.[16] In making this determination, it noted relevant high-tide features in the Spratly Islands, the
that none of the Philippine Submissions required a Tribunal noted that although the features were
determination of sovereignty. [17] “capable of enabling the survival of small groups of
people”[27] and that the features could not be
The Tribunal did not accept China’s assessment of the “dismissed as uninhabitable on the basis of their
dispute as involving maritime boundary delimitation, physical characteristics,” nevertheless, there was
stating that it was “not convinced,” and that “[i]t does not “no indication that anything fairly resembling a
follow . . . that a dispute over an issue that may be stable human community has ever formed on the
considered in the course of a maritime boundary Spratly Islands” with the result that all of the high-
delimitation constitutes a dispute over maritime tide features were classed as rocks.[28]
boundary delimitation itself.”[18] More specifically, the
Tribunal commented that entitlement to maritime zones The Nine-Dash Line and Historic Rights[29]
“is distinct” from delimitation of those zones in an area
where entitlements overlap.”[19] The principal jurisdictional question concerning the nine-
dash line and possible Chinese historic rights therein
Merits was whether such a claim was captured by the wording
of Article 298(1)(a)(i) of UNCLOS, covering “disputes . .
In the period immediately prior to the issuing of the .involving historic bays or title”[30] and thus that the
Award, China had significantly modified and Tribunal was without jurisdiction due to China’s 2006
enhanced numerous features in the Spratly Islands. Declaration.[31] On the merits, at issue was the
The Tribunal clearly stated that UNCLOS “requires relationship between the historic rights asserted by
that the status of a feature be ascertained on the China within the nine-dash line and the rights of the
basis of its earlier, natural condition, prior to the Philippines based on UNCLOS in areas beyond China’s
onset of significant human habitation.”[20] EEZ or continental shelf and within the EEZ or
continental shelf of the Philippines.
The Tribunal accepted that in order to examine the
Submissions regarding the location of the Philippine To deal with both questions, the Tribunal assessed “the
exclusive economic zone (EEZ), it was necessary to nature of any historic rights claimed by China” within the
determine the legal status of all of the relevant high-tide nine-dash line, which was “complicated by some
features that are part of the Spratly Islands.[21] The ambiguity in China’s position.”[32] The Tribunal
Tribunal focused upon the six largest features, observing undertook an examination of China’s statements and
that if these were characterized as rocks under actions[33] concluding “that China claims rights to living
UNCLOS, then the same conclusion would apply to the and non-living resources within the ‘nine-dash line’ but
other high-tide features in the Spratly Islands.[22] (apart from the territorial sea generated by any islands)
does not consider that those waters form part of its
Unlike previous international tribunals that had accepted
territorial sea or internal waters.”[34]
certain features as islands or rocks without explicitly
applying UNCLOS Article 121(3),[23] the Tribunal The Tribunal indicated that the term historic title in Article
analyzed its application in detail.[24] The Tribunal’s 298 centered on the historic title wording in Article 12(1)
interpretation placed great emphasis on the physical of the 1958 Convention on the Territorial Sea and
conditions of the feature in question such as “the Contiguous Zone.[35] The Tribunal took the view that the
natural capacity, without external additions . . . to 1958 “historic title” wording was tied directly to the
sustain human habitation or an economic life of its historic terminology as used in the 1951 Anglo-
own.”[25] The Tribunal also delved into the definition Norwegian Fisheries case, where the area in question
was “an area of sea claimed exceptionally as internal adjudicative bodies more readily make such
waters.”[36] Based upon this, the Tribunal took the determinations. It will be future tribunals, courts, and
view that the meaning of historic title in Article 298 state practice that will determine whether this
was “claims to sovereignty over maritime areas “missionary” aspect of the Award finds favour.
derived from historical circumstances.”[37] Having
determined that China was claiming historic rights Of final note, concerns about whether the Award and
and not historic title, the Tribunal concluded that China’s rejection of it have undermined confidence in
China’s 2006 Declaration was not available as UNCLOS dispute resolution procedures are perhaps
regards China’s historic claims.[38] 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.
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 Summary of Issues:
concluding that UNCLOS “leaves no space for an
The Philippines’ claims fell into four general categories.
assertion of historic rights,” and that “China’s claim to
The ruling of the Tribunal on each category of claims is
historic rights to the living and non-living resources
summarized below:
within the ‘nine-dash line’ is incompatible with the
Convention.”[39] 1. The broadest claim was a challenge to China’s “nine-
dash line” covering most of the South China Sea. China
Concluding Comments
has never clarified whether the line represents a
In the immediate aftermath, the reactions indicate little claim to the islands within the line and their adjacent
hope that the South China Sea Award will result in a waters; a boundary of national sovereignty over all
period of peaceful management of the tangled disputes the enclosed waters (including, but not limited by,
within the South China Sea. China has loudly the land features inside the line); or a “historic”
condemned the Award and a joint statement from claim of sovereignty or some other set of historic
ASEAN and China did not even mention it. Somewhat rights to the maritime space within the line. The
more encouraging are the preparatory talks that have Philippines sought a declaration that the countries’
taken place between the Philippines and China.[40] respective rights and obligations regarding the waters,
seabed, and maritime features of the South China Sea
are governed by UNCLOS. As such, China’s claims
based on any “historic rights” to waters, seabed, and
It has long been recognized by those who have a subsoil within the nine-dash line are contrary to
significant history with the South China Sea UNCLOS and invalid. (See Table: Claims 1 and 2)
disputes that if the numerous maritime features in
the South China Sea were all categorized as either Holding: UNCLOS “comprehensively” governs the
low-tide elevation or rocks, the result would be that parties’ respective rights to maritime areas in the South
the 200 nm zones in the region would be measured China Sea. Therefore, to the extent China’s nine-dash
from the mainland coasts. This would cause almost line is a claim of “historic rights” to the waters of the
all of the maritime claim disputes to become South China Sea, it is invalid.
bilateral, rather than multilateral, which could in turn
create a possibility for resolution and de-escalation. Reasoning: Whatever historic rights China may have
Part of this as well is that the nine-dash line be had were extinguished when UNCLOS was adopted, to
without legal effect. As of 2009, the South China Sea the extent those rights were incompatible with UNCLOS.
ASEAN states advocated such a position.[41] In light
2. The Philippines sought a determination as to whether
of the Tribunal’s ruling, this could be a potential path
certain land features in the Spratly Islands claimed by
forward.
both China and the Philippines are properly
Article 121(3) was a provision of deliberately negotiated characterized as islands, rocks, low tide elevations
vagueness, thus Tribunal’s rock/island criteria can be (LTEs), or submerged banks. Under UNCLOS, an
viewed perhaps as “missionary” work. The rock or island “island” generates both a territorial sea of 12
criteria in the Award may result in states able to more nautical miles and an exclusive economic zone
readily reach maritime boundary agreements and (EEZ) of up to 200 nautical miles, subject to
delimitation of a maritime boundary with any other Reasoning: This set of holdings depended on the
countries’ overlapping territorial seas or EEZs. A “rock” Tribunal finding that certain areas are within the
is entitled to a territorial sea no greater than 12 Philippines’ EEZ and not subject to possible overlapping
nautical miles, but not an EEZ. LTEs and submerged Chinese entitlements. It also depended on finding that
banks do not generate any such entitlements. (See activities such as island construction are, in accordance
Table: Claims 3, 4, 6, and 7) with China’s own public statements, not “military
activities” and therefore not excluded from jurisdiction
Holding: None of the features in the Spratly Islands under UNCLOS. Once this was established, the Tribunal
generates an EEZ, nor can the Spratly Islands generate considered Chinese activities in the relevant areas and
an EEZ collectively as a unit. As such, the Tribunal found that China had (a) interfered with Philippine
declared certain areas are within the Philippines’ EEZ petroleum exploration at Reed Bank, (b) purported to
and not overlapped by any possible Chinese entitlement. prohibit fishing by Philippine vessels within the Philippine
EEZ, (c) protected and failed to prevent Chinese
Reasoning: The baseline of analysis is what the features
fishermen from fishing within the Philippine EEZ at
can sustain in their “natural condition” (i.e., not after
Mischief Reef and Second Thomas Shoal, and (d)
construction of artificial islands, installation of
constructed artificial islands/installations at Mischief Reef
desalination plants, etc.). Based on historical evidence,
without the Philippines’ authorization. As for
none of the features in the Spratly Islands can
Scarborough Shoal, regardless of who has sovereignty,
sustain either a stable community of people or
both Philippine and Chinese fishermen have “traditional
economic activity that is not dependent on outside
fishing rights” at the Shoal that were not extinguished by
resources or purely extractive in nature. The current
UNCLOS, and China violated the Philippines’ rights by
presence of personnel on the features is dependent on
entirely preventing Filipino fishermen from fishing near
outside support and does not reflect the capacity of the
Scarborough Shoal after May 2012. In addition, Chinese
features in their natural condition.
artificial island construction has caused “severe harm to
3. The Philippines sought a declaration that China the coral reef environment” and China has failed to stop
violated UNCLOS by interfering with the Philippines’ its nationals from engaging in “harmful” and “destructive”
rights and freedoms within its EEZs. This includes harvesting and fishing of endangered sea turtles, coral,
preventing Philippine fishing around Scarborough Shoal, and giant clams in violation of UNCLOS. Finally,
violating UNCLOS’s environmental protection provisions Chinese law enforcement vessels violated maritime
through construction and fishing activities that have safety obligations by creating a serious risk of collision
harmed the marine environment (including at on two occasions in April and May 2012 during the
Scarborough Shoal, Second Thomas Shoal, and Scarborough Shoal standoff.
Mischief Reef), and by dangerously operating law
4. The Philippines sought a declaration that China’s
enforcement vessels around Scarborough Shoal. (See
recent actions, specifically its land reclamation and
Table: Claims 5, 8, 9, 10, 11, 12, and 13)
construction of artificial islands in the Spratly Islands
Holding: China violated the Philippines’ sovereign after the arbitration was commenced, violated the
rights in its EEZ. It did so by interfering with obligations UNCLOS places on states to refrain from
Philippine fishing and hydrocarbon exploration; conduct that “aggravates and extends” a dispute while
constructing artificial islands; and failing to prevent dispute resolution proceedings are pending. (See Table:
Chinese fishermen from fishing in the Philippines’ Claim 14)
EEZ. China also interfered with Philippine fishermen’s
Holding: China has aggravated and extended the
traditional fishing rights near Scarborough Shoal (without
disputes through its dredging, artificial island-building,
prejudice to the question of sovereignty over
and construction activities.
Scarborough Shoal). China’s construction of artificial
islands at seven features in the Spratly Islands, as well Reasoning: While these proceedings were pending,
as illegal fishing and harvesting by Chinese nationals, China has built a large island on Mischief Reed, an LTE
violate UNCLOS obligations to protect the marine within the Philippines’ EEZ; caused irreparable harm to
environment. Finally, Chinese law enforcement vessels the marine ecosystem; and permanently destroyed
unlawfully created a serious risk of collision by physically evidence of the natural condition of the features at issue.
obstructing Philippine vessels at Scarborough Shoal in
2012.
b. What role does the agreement between Iceland and
United Kingdom play within the court’s decision?
Decisions
Questions
*bunkering – the term used in the shipping industry to Panama contends that it “has and maintains a genuine
describe the selling of fuel from specialized vessels, link with the VIRGINIA G, with the VIRGINIA G’s owner
such as oil tankers, which supply fuel (such as light fuel, and with the VIRGINIA G’s operator” and that it
gas oil and marine diesel) to other vessels whilst at sea “exercises full and effective jurisdiction over the
(as defined by Panama in its memorial) VIRGINIA G.” It also emphasizes that “[i]t is not
contested that the VIRGINIA G was, at all relevant times,
RULING + RATIO:
fully registered under the flag of Panama” and that the
The regulation by a coastal State of bunkering of foreign vessel was recognized as such by the Guinea-Bissau
vessels fishing in its exclusive economic zone is among authorities, in particular, since the documents attesting
those measures which the coastal State may take in its its nationality were examined by the authorities of
exclusive economic zone. Guinea-Bissau and were found to be in order.
Issues: