NORTH SEA CONTINENTAL SHELF CASES (Germany vs.
Denmark; The Court also rejected the contentions of the Federal Republic in so far as
Germany vs. The Netherlands)
Judgment of 20 February 1969
The Court delivered judgment, by 11 votes to 6, in the North Sea Continental
Shelf cases.
The dispute, which was submitted to the Court on 20 February 1967, related to
the delimitation of the continental shelf between the Federal Republic of
Germany and Denmark on the one hand, and between the Federal Republic of
Germany and the Netherlands on the other. The Parties asked the Court to state
the principles and rules of international law applicable, and undertook
thereafter to carry out the delimitations on that basis.
The Court rejected the contention of Denmark and the Netherlands to the
effect that the delimitations in question had to be carried out in accordance
with the principle of equidistance as defined in Article 6 of the 1958 Geneva
Convention on the Continental Shelf, holding:
- that the Federal Republic, which had not ratified the Convention, was not
legally bound by the provisions of Article 6;
- that the equidistance principle was not a necessary consequence of the
general concept of continental shelf rights, and was not a rule of customary
international law.
these sought acceptance of the principle of an apportionment of the continental
shelf into just and equitable shares. It held that each Party had an original right
to those areas of the continental shelf which constituted the natural
prolongation of its land territory into and under the sea. It was not a question
of apportioning or sharing out those areas, but of delimiting them.
The Court found that the boundary lines in question were to be drawn by
agreement between the Parties and in accordance with equitable principles,
and it indicated certain factors to be taken into consideration for that purpose.
It was now for the Parties to negotiate on the basis of such principles, as they
have agreed to do.
The proceedings, relating to the delimitation as between the Parties of the
areas of the North Sea continental shelf appertaining to each of them, were
instituted on 20 February 1967 by the communication to the Registry of the
Court of two Special Agreements, between Denmark and the Federal Republic
and the Federal Republic and the Netherlands respectively. By an Order of 26
April 1968, the Court joined the proceedings in the two cases.
The Court decided the two cases in a single Judgment, which it adopted by
eleven votes to six. Amongst the Members of the Court concurring in the
Judgment, Judge Sir Muhammad Zafrulla Khan appended a declaration; and
President Bustamante y Rivero and Judges Jessup, Padilla Nervo and Ammoun
appended separate opinions. In the case of the non-concurring Judges, a
declaration of his dissent was appended by Judge Bengzon; and Vice-President
Koretsky, together with Judges Tanaka, Morelli and Lachs, and Judge ad hoc
Sorensen, appended dissenting opinions.
In its Judgment, the Court examined in the context of the delimitations
concerned the problems relating to the legal regime of the continental shelf
raised by the contentions of the Parties.
The Facts and the Contentions of the Parties (paras. 1-17 of the Judgment)
The two Special Agreements had asked the Court to declare the principles and
rules of international law applicable to the delimitation as between the Parties
of the areas of the North Sea continental shelf appertaining to each of them
beyond the partial boundaries in the immediate vicinity of the coast already
determined between the Federal Republic and the Netherlands by an
agreement of 1 December 1964 and between the Federal Republic and
Denmark by an agreement of 9 June 1965.The Court was not asked actually to
delimit the further boundaries involved, the Parties undertaking in their
respective Special Agreements to effect such delimitation by agreement in
pursuance of the Court's decision.
The waters of the North Sea were shallow, the whole seabed, except for the
Norwegian Trough, consisting of continental shelf at a depth of less than 200
metres. Most of it had already been delimited between the coastal States
concerned. The Federal Republic and Denmark and the Netherlands,
respectively, had, however, been unable to agree on the prolongation of the
partial boundaries referred to above, mainly because Denmark and the
Netherlands had wished this prolongation to be effected on the basis of the
equidistance principle, whereas the Federal Republic had considered that it
would unduly curtail what the Federal Republic believed should be its proper
share of continental shelf area, on the basis of proportionality to the length of
its North Sea coastline. Neither of the boundaries in question would by itself
produce this effect, but only both of them together - an element regarded by
Denmark and the Netherlands as irrelevant to what they viewed as being two
separate delimitations, to be carried out without reference to the other.
A boundary based on the equidistance principle, i.e., an "equidistance line",
left to each of the Parties concerned all those portions of the continental shelf
that were nearer to a point on its own coast than they were to any point on the
coast of the other Party. In the case of a concave or recessing coast such as that
of the Federal Republic on the North Sea, the effect of the equidistance method
was to pull the line of the boundary inwards, in the direction of the concavity.
Consequently, where two equidistance lines were drawn, they would, if the
curvature were pronounced, inevitably meet at a relatively short distance from
the coast, thus "cutting off" the coastal State from the area of the continental
shelf outside. In contrast, the effect of convex or outwardly curving coasts,
such as were, to a moderate extent, those of Denmark and the Netherlands, was
to cause the equidistance lines to leave the coasts on divergent courses, thus
having a widening tendency on the area of continental shelf off that coast.
It had been contended on behalf of Denmark and the Netherlands that the
whole matter was governed by a mandatory rule of law which, reflecting the
language of Article 6 of the Geneva Convention on the Continental Shelf of 29
April 1958, was designated by them as the "equidistance-special
circumstances" rule. That rule was to the effect that in the absence of
agreement by the parties to employ another method, all continental shelf
boundaries had to be drawn by means of an equidistance line unless "special
circumstances" were recognized to exist. According to Denmark and the
Netherlands, the configuration of the German North Sea coast did not of itself
constitute, for either of the two boundary lines concerned, a special
circumstance.
The Federal Republic, for its part, had contended that the correct rule, at any
rate in such circumstances as those of the North Sea, was one according to
which each of the States concerned should have a "just and equitable share" of
the available continental shelf, in proportion to the length of its sea-frontage. It
had also contended that in a sea shaped as is the North Sea, each of the States
concerned was entitled to a continental shelf area extending up to the central
point of that sea, or at least extending to its median line. Alternatively, the
Federal Republic had claimed that if the equidistance method were held to bc
applicable, the configuration of the German North Sea coast constituted a
special circumstance such as to justify a departure from that method of
delimitation in this particular case.
The Apportionment Theory Rejected (paras. 18-20 of the Judgment)
The Court felt unable to accept, in the particular form it had taken, the first
contention put forward on behalf of the Federal Republic. Its task was to
delimit, not to apportion the areas concerned. The process of delimitation
involved establishing the boundaries of an area already, in principle,
appertaining to the coastal State and not the determination de novo of such an
area. The doctrine of the just and equitable share was wholly at variance with
the most fundamental of all the rules of law relating to the continental shelf,
namely, that the rights of the coastal State in respect of the area of continental
shelf constituting a natural prolongation of its land territory under the sea
existed ipso facto and ab initio, by virtue of its sovereignty over the land. That
right was inherent. In order to exercise it, no special legal acts had to be
performed. It followed that the notion of apportioning an as yet undelimited
area considered as a whole (which underlay the doctrine of the just and
equitable share) was inconsistent with the basic concept of continental shelf
entitlement.
Non-Applicability of Article 6 of the 1958 Continental Shelf Convention
(paras. 21-36 of the Judgment)
The Court then turned to the question whether in delimiting those areas the
Federal Republic was under a legal obligation to accept the application of the
equidistance principle. While it was probably true that no other method of
delimitation had the same combination of practical convenience and certainty
of application, those factors did not suffice of themselves to convert what was
a method into a rule of law. Such a method would have to draw its legal force
from other factors than the existence of those advantages.
The first question to be considered was whether the 1958 Geneva Convention
on the Continental Shelf was binding for all the Parties in the case. Under the
formal provisions of the Convention, it was in force for any individual State
that had signed it within the time-limit provided, only if that State had also
subsequently ratified it. Denmark and the Netherlands had both signed and
ratified the Convention and were parties to it, but the Federal Republic,
although one of the signatories of the Convention, had never ratified it, and
was consequently not a party. It was admitted on behalf of Denmark and the
Netherlands that in the circumstances the Convention could not, as such, be
binding on the Federal Republic. But it was contended that the regime of
Article 6 of the Convention had become binding on the Federal Republic,
because, by conduct, by public statements and proclamations, and in other
ways, the Republic had assumed the obligations of the Convention.
It was clear that only a very definite, very consistent course of conduct on the
part of a State in the situation of the Federal Republic could justify upholding
those contentions. When a number of States drew up a convention specifically
providing for a particular method by which the intention to become bound by
the regime of the convention was to be manifested, it was not lightly to be
presumed that a State which had not carried out those formalities had
nevertheless somehow become bound in another way. Furthermore, had the
Federal Republic ratified the Geneva Convention, it could have entered a
reservation to Article 6, by reason of the faculty to do so conferred by Article
12 of the Convention.
Only the existence of a situation of estoppel could lend substance to the
contention of Denmark and the Netherlands - i.e., if the Federal Republic were
now precluded from denying the applicability of the conventional regime, by
reason of past conduct, declarations, etc., which not only clearly and
consistently evinced acceptance of that regime, but also had caused Denmark
or the Netherlands, in reliance on such conduct, detrimentally to change
position or suffer some prejudice. Of this there was no evidence. Accordingly,
Article 6 of the Geneva Convention was not, as such, applicable to the
delimitations involved in the present proceedings.
The Equidistance Principle Not Inherent in the Basic Doctrine of the
Continental Shelf (paras. 37-59 of the Judgment)
It had been maintained by Denmark and the Netherlands that the Federal
Republic was in any event, and quite apart from the Geneva Convention,
bound to accept delimitation on an equidistance basis, since the use of that
method was a rule of general or customary international law, automatically
binding on the Federal Republic.
One argument advanced by them in support of this contention, which might be
termed the a priori argument, started from the position that the rights of the
coastal State to its continental shelf areas were based on its sovereignty over
the land domain, of which the shelf area was the natural prolongation under the
sea. From this notion of appurtenance was derived the view, which the Court
accepted, that the coastal State's rights existed ipso facto and ab initio.
Denmark and the Netherlands claimed that the test of appurtenance must be
"proximity": all those parts of the shelf being considered as appurtenant to a
particular coastal State which were closer to it than they were to any point on
the coast of another State. Hence, delimitation had to be effected by a method
which would leave to each one of the States concerned all those areas that
were nearest to its own coast. As only an equidistance line would do this, only
such a line could be valid, it was contended.
This view had much force; the greater part of a State's continental shelf areas
would normally in fact be nearer to its coasts than to any other. But the real
issue was whether it followed that every part of the area concerned must be
placed in that way. The Court did not consider this to follow from the notion of
proximity, which was a somewhat fluid one. More fundamental was the
concept of the continental shelf as being the natural prolongation of the land
domain. Even if proximity might afford one of the tests to be applied, and an
important one in the right conditions, it might not necessarily be the only, nor
in all circumstances the most appropriate, one. Submarine areas did not
appertain to the coastal State merely because they were near it, nor did their
appurtenance depend on any certainty of delimitation as to their boundaries.
What conferred the ipso jure title was the fact that the submarine areas
concerned might be deemed to be actually part of its territory in the sense that
they were a prolongation of its land territory under the sea. Equidistance
clearly could not be identified with the notion of natural prolongation, since
the use of the equidistance method would frequently cause areas which were
the natural prolongation of the territory of one State to be attributed to another.
Hence, the notion of equidistance was not an inescapable a priori
accompaniment of basic continental shelf doctrine.
A review of the genesis of the equidistance method of delimitation confirmed
the foregoing conclusion. The "Truman Proclamation" issued by the
Government of the United States on 28 September 1945 could be regarded as a
starting point of the positive law on the subject, and the chief doctrine it
enunciated, that the coastal State had an original, natural and exclusive right to
the continental shelf off its shores, had come to prevail over all others and was
now reflected in the1958 Geneva Convention. With regard to the delimitation
of boundaries between the continental shelves of adjacent States, the Truman
Proclamation had stated that such boundaries "shall be determined by the
United States and the State concerned in accordance with equitable principles".
These two concepts, of delimitation by mutual agreement and delimitation in
accordance with equitable principles, had underlain all the subsequent history
of the subject. It had been largely on the recommendation of a committee of
experts that the principle of equidistance for the delimitation of continental
shelf boundaries had been accepted by the United Nations International Law
Commission in the text it had laid before the Geneva Conference of 1958 on
the Law of the Sea which had adopted the Continental Shelf Convention. It
could legitimately be assumed that the experts had been actuated by
considerations not of legal theory but of practical convenience and
cartography. Moreover, the article adopted by the Commission had given
priority to delimitation by agreement and had contained an exception in favour
of "special circumstances".
The Court consequently considered that Denmark and the Netherlands inverted
the true order of things and that, far from an equidistance rule having been
generated by an antecedent principle of proximity inherent in the whole
concept of continental shelf appurtenance, the latter was rather a
rationalization of the former
The Equidistance Principle Not a Rule of Customary International Law (paras.
60-82 of the Judgment)
The question remained whether through positive law processes the
equidistance principle must now be regarded as a rule of customary
international law.
Rejecting the contentions of Denmark and the Netherlands, the Court
considered that the principle of equidistance, as it figured in Article 6 of the
Geneva Convention, had not been proposed by the International Law
Commission as an emerging rule of customary international law. This Article
could not be said to have reflected or crystallized such a rule. This was
confirmed by the fact that any State might make reservations in respect of
Article 6, unlike Articles 1, 2 and 3, on signing, ratifying or acceding to the
Convention. While certain other provisions of the Convention, although
relating to matters that lay within the field of received customary law, were
also not excluded from the faculty of reservation, they all related to rules of
general maritime law very considerably antedating the Convention which were
only incidental to continental shelf rights as such, and had been mentioned in
the Convention simply to ensure that they were not prejudiced by the exercise
of continental shelf rights. Article 6, however, related directly to continental
shelf rights as such, and since it was not excluded from the faculty of
reservation, it was a legitimate inference that it was not considered to reflect
emergent customary law.
It had been argued on behalf of Denmark and the Netherlands that even if at
the date of the Geneva Convention no rule of customary international law
existed in favour of the equidistance principle, such a rule had nevertheless
come into being since the Convention, partly because of its own impact, and
partly on the basis of subsequent State practice. In order for this process to
occur it was necessary that Article 6 of the Convention should, at all events
potentially, be of a norm-creating character. Article 6 was so framed, however,
as to put the obligation to make use of the equidistance method after a primary
obligation to effect delimitation by agreement. Furthermore, the part played by
the notion of special circumstances in relation to the principle of equidistance,
the controversies as to the exact meaning and scope of that notion, and the
faculty of making reservations to Article 6 must all raise doubts as to the
potentially norm-creating character of that Article.
Furthermore, while a very widespread and representative participation in a
convention might show that a conventional rule had become a general rule of
international law, in the present case the number of ratifications and accessions
so far was hardly sufficient. As regards the time element, although the passage
of only a short period of time was not necessarily a bar to the formation of a
new rule of customary international law on the basis of what was originally a
purely conventional rule, it was indispensable that State practice during that
period, including that of States whose interests were specially affected, should
have been both extensive and virtually uniform in the sense of the provision
invoked and should have occurred in such a way as to show a general
recognition that a rule of law was involved. Some 15 cases had been cited in
which the States concerned had agreed to draw or had drawn the boundaries
concerned according to the principle of equidistance, but there was no
evidence that they had so acted because they had felt legally compelled to
draw them in that way by reason of a rule of customary law. The cases cited
were inconclusive and insufficient evidence of a settled practice.
The Court consequently concluded that the Geneva Convention was not in its
origins or inception declaratory of a mandatory rule of customary international
law enjoining the use of the equidistance principle, its subsequent effect had
not been constitutive of such a rule, and State practice up to date had equally
been insufficient for the purpose.
The Principles and Rules of Law Applicable (paras. 83-101 of the Judgment)
The legal situation was that the Parties were under no obligation to apply the
equidistance principle either under the 1958 Convention or as a rule of general
or customary international law. It consequently became unnecessary for the
Court to consider whether or not the configuration of the German North Sea
coast constituted a "special circumstance". It remained for the Court, however,
to indicate to the Parties the principles and rules of law in the light of which
delimitation was to be effected.
The basic principles in the matter of delimitation, deriving from the Truman
Proclamation, were that it must be the object of agreement between the States
concerned and that such agreement must be arrived at in accordance with
equitable principles. The Parties were under an obligation to enter into
negotiations with a view to arriving at an agreement and not merely to go
through a formal process of negotiation as a sort of prior condition for the
automatic application of a certain method of delimitation in the absence of
agreement; they were so to conduct themselves that the negotiations were
meaningful, which would not be the case when one of them insisted upon its
own position without contemplating any modification of it. This obligation
was merely a special application of a principle underlying all international
relations, which was moreover recognized in Article 33 of the Charter of the
United Nations as one of the methods for the peaceful settlement of
international disputes.
The Parties were under an obligation to act in such a way that in the particular
case, and taking all the circumstances into account, equitable principles were
applied. There was no question of the Court's decision being ex aequo et bono.
It was precisely a rule of law that called for the application of equitable
principles, and in such cases as the present ones the equidistance method could
unquestionably lead to inequity. Other methods existed and might be
employed, alone or in combination, according to the areas involved. Although
the Parties intended themselves to apply the principles and rules laid down by
the Court some indication was called for of the possible ways in which they
might apply them.
For all the foregoing reasons, the Court found in each case that the use of the
equidistance method of delimitation was not obligatory as between the Parties;
that no other single method of delimitation was in all circumstances
obligatory; that delimitation was to be effected by agreement in accordance
with equitable principles and taking account of all relevant circumstances, in
such a way as to leave as much as possible to each Party all those parts of the
continental shelf that constituted a natural prolongation of its land territory,
without encroachment on the natural prolongation of the land territory of the
other; and that, if such delimitation produced overlapping areas, they were to
be divided between the Parties in agreed proportions, or, failing agreement,
equally, unless they decided on a regime of joint jurisdiction, user, or
exploitation.
In the course of negotiations, the factors to be taken into account were to
include: the general configuration of the coasts of the Parties, as well as the
presence of any special or unusual features; so far as known or readily
ascertainable, the physical and geological structure and natural resources of the
continental shelf areas involved, the element of a reasonable degree of
proportionality between the extent of the continental shelf areas appertaining
to each State and the length of its coast measured in the general direction of
the coastline, taking into account the effects, actual or prospective, of any
other continental shelf delimitations in the same region.
NORTH SEA CONTINENTAL SHELF CASES (SUMMARY)
Name of the Case: The North Sea Continental Shelf Cases
(Germany/Denmark; Germany/Netherlands); Year of Decision: 1969; and
Court: ICJ.
NB: This post discussed only aspects of the case related to treaty or customary
international law.
Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out
the dual requirement for forming customary international law – State practice
(objective element) and opinio juris (subjective element). It elaborated the
criteria necessary to establish State practice – widespread and representative
participation. The case highlighted that the State practice of importance were delimit – the parties agreed to delimit the continental shelf as between their
of those States whose interests were affected by the custom. It also identified countries, by agreement, after the determination of the ICJ on the applicable
the fact that uniform and consistent practice was necessary to show opinio juris principles.
– a belief that the practice amounts to a legal obligation. The North Sea
Facts of the Case:
Continental Self Cases also dispelled the myth that duration of the practice (i.e.
the number of years) was an essential factor in forming customary Netherlands and Denmark had drawn partial boundary lines based on the
international law. equidistance principle (A-B and C-D). An agreement on further prolongation
of the boundary proved difficult because Denmark and Netherlands wished
The case involved the delimitation of the continental shelf areas in the North
this prolongation to take place based on the equidistance principle (B-E and D-
Sea between Germany and Denmark and Germany and Netherlands beyond
E) where as Germany was of the view that, together, these two boundaries
the partial boundaries previously agreed upon by these States. The parties
would produce an inequitable result for her. Germany stated that due to its
requested the ICJ to decide the principles and rules of international law that are
concave coastline, such a line would result in her loosing out on her share of
applicable to the above delimitation. The parties disagreed on the applicable
the continental shelf based on proportionality to the length of its North Sea
principles or rules of delimitation – Netherlands and Denmark relied on the
coastline. The Court had to decide the principles and rules of international law
principle of equidistance (the method of determining the boundaries in such a
applicable to this delimitation. In doing so, the court had to decide if the
way that every point in the boundary is equidistant from the nearest points of
principles espoused by the parties were binding on the parties either through
the baselines from which the breath of the territorial sea of each State is
treaty law or customary international law.
measured). Germany sought to get a decision in favour of the notion that the
delimitation of the relevant continental shelf is governed by the principle that Questions before the Court (as relevant to this post):
each coastal state is entitled to a just and equitable share (hereinafter called
Is Germany under a legal obligation to accept the equidistance-special
just and equitable principle/method). Contrary to Denmark and Netherlands,
circumstances principle, contained in Article 6 of the Geneva Convention,
Germany argued that the principle of equidistance was neither a mandatory
either as a customary international law rule or on the basis of the Geneva
rule in delimitation of the continental shelf nor a rule of customary
Convention?
international law that was not binding on Germany. The court was not asked to
The Court’s Decision:
The use of the equidistance method had not crystallised into customary law
and was is not obligatory for the delimitation of the areas in the North Sea
related to the present proceedings.
Relevant Findings of the Court:
Nature of the treaty obligation: Is the 1958 Geneva Convention, and in
particular Article 6, binding on Germany?
1. Article 6 of the Geneva Convention on the Continental Shelf states that
unless the parties have agreed on a method for delimitation or unless special
circumstances exist, the equidistance method would apply (see Article 6).
Germany has signed but not ratified the Geneva Convention, while
Netherlands and Denmark are parties to the Convention. The latter two States
argue that while Germany is not a party to the Convention (not having ratified
it), she is still bound by Article 6 of the Convention because:
“…(1) by conduct, by public statements and proclamations, and in other ways,
the Republic has unilaterally assumed the obligations of the Convention; or
has manifested its acceptance of the conventional regime; or has recognized it
as being generally applicable to the delimitation of continental shelf areas…
(2) the Federal Republic had held itself out as so assuming, accepting or
recognizing, in such a manner as to cause other States, and in particular
Denmark and the Netherlands, to rely on the attitude thus taken up” (the latter
is called the principle of estoppel).
2. The Court rejected the first argument. It stated that only a ‘very definite very
consistent course of conduct on the part of a State’ would allow the court to
presume that a State had somehow become bound by a treaty (by a means
other than in a formal manner: i.e. ratification) when the State was ‘at all times
fully able and entitled to…’ accept the treaty commitments in a formal manner.
The Court held that Germany had not unilaterally assumed obligations under
the Convention. The court also took notice of the fact that even if Germany
ratified the treaty, she had the option of entering into a reservation on Article 6
following which that particular article would no longer be applicable to
Germany (i.e. even if one were to assume that Germany had intended to
become a party to the Convention, it does not presuppose that it would have
also undertaken those obligations contained in Article 6).
3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which
came into force in 1980, discusses more fully the obligations of third States to
treaties. It clearly stipulates that an obligation arises for a third State from a
provision of a treaty only if (1) the parties to the treaty intend the provision to
create this obligation for the third States; and (2) the third State expressly
accepts that obligation in writing (A. 35 of the VCLT). The VCLT was not in
force when the ICJ deliberated on this case. However, as seen above, the ICJ’s
position was consistent the VCLT. (See the relevant provisions of the Vienna
Convention on the Law of Treaties).
4. The court held that the existence of a situation of estoppel would have
allowed Article 6 to become binding on Germany – but held that Germany’s
action did not support an argument for estoppel. The court also held that the
mere fact that Germany may not have specifically objected to the equidistance
principle as contained in Article 6 is not sufficient to state that the principle is
now binding upon it.
5. In conclusion, the court held that Germany had not acted in any way to incur
obligations contained in Article 6 of the Geneva Convention. The equidistance
– special circumstances rule was not binding on Germany by way of treaty.
Nature of the customary international law obligation: Is Germany bound by the
provisions of Article 6 of the Geneva Convention by way of customary
international law?
6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted
rule of general international law on the subject of continental shelf
delimitation’ and existed independently of the Convention. Therefore, they
argued, Germany is bound by it by way of customary international law.
7. To decide if the equidistance principle bound Germany by way of customary
international law, the court examined (1) the status of the principle contained
in Article 6 as it stood when the Convention was being drawn up (2) and after
the latter came into force.
What was the customary law status of Article 6 at the time of drafting the
Convention?
8. The court held the principle of equidistance, as contained in Article 6, did
not form a part of existing or emerging customary international law at the time
of drafting the Convention. The Court supported this finding based on (1) the
hesitation expressed by the drafters of the Convention – International Law
Commission – on the inclusion of Article 6 (para. 62) and (2) the fact
reservations to Article 6 was permissible under the Convention (Article 12).
The court held:
… Article 6 is one of those in respect of which, under the reservations article
of the Convention (Article 12) reservations may be made by any State on
signing, ratifying or acceding for, speaking generally, it is a characteristic of
purely conventional rules and obligations that, in regard to them, some faculty
of making unilateral reservations may, within certain limits, be admitted;
whereas this cannot be so in the case of general or customary law rules and
obligations which, by their very nature, must have equal force for all members
of the international community, and cannot therefore be the subject of any
right of unilateral exclusion exercisable at will by any one of them in its own
favor…. The normal inference would therefore be that any articles that do not
figure among those excluded from the faculty of reservation under Article 12,
were not regarded as declaratory of previously existing or emergent rules of
law (see para 65 for a counter argument and the court’s careful differentiation)
…”
Did the provisions in Article 6 on the equidistance principle attain the
customary law status after the Convention came into force?
9. The court then examined whether the rule contained in Article 6 had become
customary international law after the Convention entered into force – either
due the convention itself (i.e., if enough States had ratified the Convention in a
manner to fulfil the criteria specified below), or because of subsequent State
practice (i.e. even if adequate number of States had not ratified the Convention
one could find sufficient State practice to meet the criteria below). The court
held that Article 6 of the Convention had not attained a customary law status
(compare the 1958 Geneva Convention with the four Geneva Conventions on
1949 in the field of international humanitarian law in terms of its authority as a
pronouncement of customary international law).
10. For a customary rule to emerge the court held that it needed: (1) very
widespread and representative participation in the convention, including States
whose interests were specially affected (i.e. generality); and (2) virtually
uniform practice (i.e. consistent and uniform usage) undertaken in a manner
that demonstrates (3) a general recognition of the rule of law or legal
obligation (i.e. opinio juries). In the North Sea Continental Shelf cases the
court held that the passage of a considerable period of time was unnecessary
(i.e. duration) for the formation of a customary law.
Widespread and representative participation
11. The court held that the first criteria was not met. The number of
ratifications and accessions to the convention (39 States) were not adequately
representative (including of coastal States – i.e. those States whose rights are
affected) or widespread.
Duration
12. The court held that duration taken for the customary law rule to emerge is
not as important as widespread and representative participation, uniform usage
and the existence of an opinio juris.
“Although the passage of only a short period of time (in this case, 3 – 5 years)
is not necessarily, or of itself, a bar to the formation of a new rule of customary
international law on the basis of what was originally a purely conventional
rule, an indispensable requirement would be that within the period in question,
short though it might be, State practice, including that of States whose interests
are specially affected, should have been both extensive and virtually uniform
in the sense of the provision invoked and should moreover have occurred in
such a way as to show a general recognition that a rule of law or legal
obligation is involved (text in brackets added).”
Opinio juris itself enough. There are many international acts, e.g., in the field of ceremonial
and protocol, which are performed almost invariably, but which are motivated
13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions
only by considerations of courtesy, convenience or tradition, and not by any
(Lotus case) in so far as those acts or omissions are done following a belief
sense of legal duty.
that the said State is obligated by law to act or refrain from acting in a
particular way. (For more on opinio juris click here) 15. The court concluded that the equidistance principle was not binding on
Germany by way of treaty or customary international law because, in the case
14. The Court examined 15 cases where States had delimited their boundaries
of the latter, the principle had not attained a customary international law status
using the equidistance method, after the Convention came into force (paras. 75
at the time of the entry into force of the Geneva Convention or thereafter. As
-77). The court concluded, even if there were some State practice in favour of
such, the court held that the use of the equidistance method is not obligatory
the equidistance principle the court could not deduct the necessary opinio juris
for the delimitation of the areas concerned in the present proceedings.
from this State practice. The North Sea Continental Shelf Cases confirmed that
both State practice (the objective element) and opinio juris (the subjective
element) are essential pre-requisites for the formation of a customary law rule.
This is consistent with Article 38 (1) (b) of the Statute of the ICJ. The
following explains the concept of opinio juris and the difference between
customs (i.e. habits) and customary law:

Not only must the acts concerned amount to a settled practice, but they must
also be such, or be carried out in such a way, as to be evidence of a belief that
this practice is rendered obligatory by the existence of a rule of law requiring
it. The need for such a belief, i.e, the existence of a subjective element, is
implicit in the very notion of the opinio juris sive necessitatis. The States
concerned must therefore feel that they are conforming to what amounts to a
legal obligation. The frequency, or even habitual character of the acts is not in
 Case Concerning Sovereignty over
Pulau Ligitan and Pulau Sipada
(Indonesia v. Malaysia)
Judgment of 17 December 2002
INTRODUCTION
In 1996, for the first time in the history of Southeast Asia, two neighbouring
countries mutually agreed to peacefully resolve an emotive territorial dispute
between them through the involvement of a third party, on the basis of
international law. In that year, Malaysia and Indonesia agreed to submit their
respective claims for sovereignty over Pulau Ligitan and Pulau Sipadan for
adjudication by the International Court of Justice (ICJ) in The Hague.
The first case from Southeast Asia which came before the Court in 1959 was
not by mutual agreement. Cambodia had then unilaterally applied to the Court
to declare the Temple of Preah Vihear — which was situated on the border
between the two countries — as belonging to Cambodia instead of Thailand.
In 1962, the Court did rule in favor of Cambodia. The case of Pulau Ligitan
and Pulau Sipadan acquired even greater
significance, although unintended, when the issue of the Philippine claim to
Sabah came before the Court at the same time — and the ICJ pronounced its
verdict, albeit indirectly, that the Philippines had no case to make.
HISTORY OF THE DISPUTE BETWEEN MALAYSIA AND
INDONESIA
The status of Pulau Ligitan and Pulau Sipadan had become an issue in 1969
when Indonesia disputed Malaysia’s sovereignty over the two islands during
negotiations on the delimitation of the continental shelf boundaries between
the two countries.
Between 1992 and 1994, three rounds of informal talks were held between
officials of both countries to resolve the issue but without any success.
In September 1994, Dr. (Tun) Mahathir Mohamad and President Soeharto
agreed, since the talks at the level of officials could not make any progress, to
let the discussions continue at the level of their personal representatives. To
undertake this task, Prime Minister Mahathir appointed Anwar Ibrahim, then
Deputy Prime Minister, while President Soeharto appointed Moerdiono, then
Minister/ State Secretary.
Anwar and Moerdiono met four times; July 1995 (Jakarta), September 1995
(Kuala Lumpur), September 1995 (Jakarta) and June 1996 (Kuala Lumpur).
At the conclusion of the fourth round of their meetings, DPM Anwar and
Minister Moerdiono, based on suggestions made to them by officials involved
in the informal round of talks, recommended to Prime Minister Mahathir and
President Soeharto, for the two Heads of Government to consider and agree,
that Malaysia and Indonesia request the ICJ to determine the question of
sovereignty over Pulau Ligitan and Pulau Sipadan. They also agreed to
recommend that any decision of the ICJ on the matter should be accepted by
the Government of Malaysia and the Government of Indonesia as final and
binding.
AGREEMENT TO REFER THE DISPUTE TO THE ICJ
In October 1996, when they met in Kuala Lumpur, Dr. (Tun) Mahathir
Mohamad and President Soeharto agreed that the issue of sovereignty over
Pulau Ligitan and Pulau Sipadan be referred to the ICJ.
For non-signatories to the Statutes of the ICJ (both Malaysia and Indonesia
were non-signatories), a Special Agreement between the parties was required if
the parties desired the ICJ to adjudicate their dispute. Two rounds of meetings
of officials were held to negotiate the text of the Special Agreement for
submission to the
ICJ the dispute between Malaysia and Indonesia concerning sovereignty over
Pulau Ligitan and Pulau Sipadan.
The first round was held in Kuala Lumpur (January 1997) and the second
round in Bandung (April 1997). During the second round, the two sides
reached consensus on the text of the Agreement. In his closing remarks at the
meeting, the Leader of the Malaysian Delegation paid tribute to President
Soeharto who played a big part in facilitating a peaceful resolution of the
dispute, having spoken about the importance of resolving the issue of Pulau
Ligitan and Pulau Sipadan in order not to burden future generations with an
unresolved issue which could exacerbate in the future if it was not settled by
peaceful means at this time.
On 31 May 1997, the Special Agreement was signed by the Foreign Ministers
of Malaysia (Abdullah Ahmad Badawi) and Indonesia (Ali Alatas)[1].
Following that, and as provided for in the Special Agreement, Malaysia and
Indonesia simultaneously submitted to the ICJ three rounds of written
pleadings regarding their respective cases: Memorial (2 November 1999),
Counter Memorial (2 August 2000) and Reply (2 March 2001).
The ICJ held the Oral Hearings for the Case Concerning Sovereignty Over
Pulau Ligitan and Pulau Sipadan (Indonesia/ Malaysia) from 3 to 12 June
2002, in The Hague.
[1]Special Agreement for Submission to the International Court of Justice of
the Dispute Between Malaysia and Indonesia Concerning Sovereignty over
Pulau Ligitan and Pulau Sipadan, 31 May 1997.
THE BASIS OF INDONESIA’S CASE
Indonesia contended that it had acquired the treaty title to Pulau Ligitan and
Pulau Sipadan through the 1891 Anglo-Dutch Convention between Great
Britain and the Netherlands, a Treaty which described the boundary separating
the Dutch and British possessions on the island of Borneo. Indonesia argued
that the meaning of Article IV of the 1891 Convention extended the land
boundary at 4°10’ north latitude eastward into the sea, and the Islands of
Ligitan and Sipadan were located to the south of that line, thus lying on the
Indonesian side.
Article IV reads as follows:
“From 4°10’ north latitude on the east coast the boundary line shall be
continued eastward along that parallel, across the island of Sebittik; that
portion of the island situated to the north of that parallel shall belong
unreservedly to the British North Borneo Company, and the portion south of
that parallel to the Netherlands”.[2]
Malaysia disputed Indonesia’s interpretation of Article IV of the 1891
Convention, and argued that the land boundary terminated on the eastern coast
of Sebatik Island. The Treaty itself referred to no map, and no map was
attached to it. Malaysia based its argument on the meaning of the words
actually used in the Treaty.
[2] Memorial of Malaysia, Volume 1, paragraph 8.4.
And the words meant that the boundary did not extend far eastward into the
sea as to show the Islands of Ligitan and Sipadan south of any line as theorized
by Indonesia.
MALAYSIA’S CASE WAS BASED ON TWO ARGUMENTS
Malaysia’s case as based on a chain of title Firstly, Malaysia argued that it and
its predecessor states had acquired a good title to Pulau Ligitan and Pulau
Sipadan through a series of treaties with other states with interests in the area.
These treaties included the 1878 cession and grant by the Sultan of Sulu to
Alfred Dent and Baron von Overback, as representatives of a British company,
of certain parts of his territories and lands in the Island of Borneo. Then
followed the recognition of British rights to North Borneo by Spain in 1885,
by the Netherlands in 1891 and by the United States in 1930. Sabah, including
Pulau Ligitan and Pulau Sipadan, finally became part of Malaysia under the
Malaysia Agreement of 1963.
Malaysia’s case as based on effectivités Secondly, Malaysia had also
submitted, in the written pleadings and during the oral proceedings, various
evidence that Pulau Ligitan and Pulau Sipadan had in fact been in the
possession and subject to the actual administration of Malaysia and its
predecessors in title from 1878 while it was impossible for Indonesia to assert
the same.
INDONESIA’S ALTERNATIVE ARGUMENT
On the last day of its turn to speak in the Court, Indonesia stated, as an
alternative and subsidiary argument, that if the ICJ were to find the 1891
Convention incapable of conferring sovereignty over Pulau Ligitan and Pulau
Sipadan to the Netherlands/ Indonesia, their sovereignty over the two islands
could equally be established as successor in title from the Sultan of Bulongan.
Malaysia counter argued that there was no evidence whatsoever that the Sultan
of Bulongan had any authority over Pulau Ligitan and Pulau Sipadan which
were respectively some 42 and 55 nautical miles way from the land-based
Sultanate of Bulongan. Malaysia produced expert historical evidence on this
point which identified Bulongan as a small coastal Sultanate with limited
territorial reach.
THE COURT DECIDED IN FAVOUR OF MALAYSIA
The Court did not give weight to Malaysia’s arguments based on the chain of
title. However, Malaysia’s effective possession and administration of Pulau
Ligitan and Pulau Sipadan was duly recognized by the ICJ.
The Court stated that the measures taken by Malaysia including the regulation
and control of the collection of turtle eggs on Pulau Ligitan and Pulau Sipadan
and the establishment of a bird reserve on Sipadan must be seen as regulatory
and administrative assertions of authority (effectivités) over the territory which
is specified by name.
The Court concluded that these and some other activities undertaken by
Malaysia, although modest in number, covered a considerable period of time
and showed a pattern revealing an intention to exercise State functions in
respect of the two islands in the context that the effectivités relied upon by
Indonesia lacked the requisite intention and will to act in a sovereign capacity.
In its Judgment delivered on 17 December 2002, the Court decided, by a
majority vote of 16 to 1, that sovereignty over Pulau Ligitan and Pulau
Sipadan belonged to Malaysia.[3]
The case was thus won by Malaysia on the basis of its effectivités, rather than
its arguments based on the chain of title.
INTERVENTION BY THE PHILIPPINES
At this point, this account back-tracks in time to narrate the action taken by the
Philippines to intervene in this case between Malaysia and Indonesia.
It all began on 22 February 2001, just before the completion of the written
phase of the proceedings, when the Philippines applied to the ICJ to obtain
copies of the pleadings of Malaysia and Indonesia concerning the case. Both
Malaysia and Indonesia objected to the request from the Philippines. This
request was accordingly denied by the Court.
After failing to obtain copies of the documents exchanged between Malaysia
and Indonesia, the Philippines took the next step to become fully involved as
an interested party in the case. For this purpose, on 13 May 2001, the
Philippines filed an application to intervene in the proceedings before the
Court.
The application was made under the provisions of Article 62 of the statutes of
the ICJ which reads as follows:
Should a state consider that it has an interest of a legal nature which may be
affected by the decision in the case, it may submit a request to the Court to be
permitted to intervene.
It shall be for the Court to decide upon this request.
[3] Judgment, 17 December 2002, paragraph 150.
Both Malaysia and Indonesia registered their objections to the Philippine
application. Accordingly, the ICJ held special Oral Hearings to consider the
Philippine application for intervention. This took place in the Court in The
Hague from 25 to 29 June 2001.
During the Oral Hearings, the Philippines made explicit that its request to
intervene was intended to serve two purposes: first, to preserve its claim to
dominion and sovereignty over North Borneo and second, to inform the Court
how its claim to Sabah might be affected by the Court’s decision in the present
case between Malaysia and Indonesia.
The Philippines also informed the Court that it was not making any claim to
Pulau Ligitan and Pulau Sipadan. It merely wanted to protect its interests when
the Court would finally decide on the sovereignty over the two islands in
dispute between Malaysia and Indonesia.
HISTORY OF THE PHILIPPINE CLAIM TO SABAH
In 1962, the Philippines took certain actions to exert its claim to Sabah, in the
context of a campaign of opposition to the formation of the Federation of
Malaysia.
In 1962, one Mohammad Esmail Kiram, claiming to be the Sultan of Sulu and
acting with the advice and consent of a dubiously convened Ruma Bechara,
signed together with Emmanuel Pelaez, then Vice President and Secretary of
Foreign Affairs, an Instrument of Cession of the Territory of North Borneo to
the Republic of the Philippines. This act, according to the Philippine argument,
effected a transfer of sovereignty over Sabah to the Republic of the
Philippines.
In 1968, Malaysian and Philippine officials met in Bangkok to discuss ways
for the Philippines to drop its claim amicably and honourably. However, the
talks broke down upon the insistence of the Philippine Delegation that the way
forward was to take the matter to the International Court of Justice for a
decision.
By courtesy of Article 62 of the Statutes of the ICJ, the Philippines finally had
its day in court in 2001, albeit via the rear entrance.
It quickly became obvious to all present in the Court during the Oral Hearings
that their legal grounds for requesting to intervene in the case were very weak
indeed. But the Philippines succeeded, nevertheless, in using their appearance
in the Court to expound, and placed on the Court’s record, the details
surrounding the Philippine claim to Sabah.
MALAYSIA’S REBUTTAL OF THE PHILIPPINE CLAIM TO SABAH
Although the Court hearings were meant to debate only the issue of the
Philippine request for intervention in the case between Malaysia and
Indonesia, the Malaysian Delegation had no choice but to challenge the
extraneous exposition made by the Philippine Delegation regarding the
Philippine claim to Sabah. The Malaysian Delegation explained why Malaysia
rejected the Philippine claim to Sabah, absolutely and unconditionally.
Malaysia asked the Court to take note that the arguments advanced by the
Philippine Delegation were substantively flawed and the object of their claim
was territorially imprecise. Malaysia informed the Court that, as an
international entity, the Sultanate of Sulu disappeared in September 1878 when
Spain at last succeeded in conquering the Sultanate. It disappeared as an entity
of any kind whatsoever when the United States abolished the Sultanate entirely
in 1936 upon the death of the last Sultan of Sulu in that year. Thereafter the
private law heirs of the private property of the Sultan accepted money which
had previously been paid to the Sultan. They did so pursuant to a judgment of
the High Court of the State of North Borneo in 1938, which dealt with the
legal situation following the final abolition of the Sultanate. That
judgment made it clear that the right to the money had nothing whatever to do
with any question of sovereignty.
Malaysia explained to the Court the sovereign status of British North Borneo
before and up to 1962. Great Britain and Germany recognized the sovereignty
of Spain over the Sulu Archipelago and the limits of Spanish influence in the
region in the Madrid Protocol of 1885. Under the same agreement, Spain had
relinquished all claims to Borneo. Subsequently, the United States expressly
recognized the Madrid transactions in its capacity as sovereign over the
Philippines and as successor to Spain. The United States did so twice; in the
1907 Exchange of Notes and in the 1930 Boundary Convention, between the
United States and Great Britain.
Malaysia emphasized to the Court that each of the treaties of 1885, 1907 and
1930 explicitly accepted that North Borneo was British territory, not Spanish,
not American, and not Filipino. Therefore nothing that private citizens did in
1962 could possibly have changed that. Malaysia pointed out to the Court that
it would be very odd indeed to suggest that the private law heirs of the last
Sultan of Sulu could retain — in their collective possession, as it were — the
late Sultan’s sovereignty over territory which they could transfer to the
Philippines in a private law deed in 1962. Yet that was the proposition which
the Philippine Delegation apeared to be making before the Court.
Malaysia further informed the Court that in the same year 1962, an election
was held in North Borneo (and Sarawak) in which joining Malaysia was the
key issue. The people decided by a substantial majority in favour of the pro-
Malaysia party. A Commission [4] established by the then administering
authority, Great Britain, reached the same conclusion. The Secretary-General
of the United Nations confirmed it in 1963 [5] when he stated that there was
no doubt about the wishes of a sizeable majority of the peoples of these
territories to join the Federation of Malaysia.
Thus, in 1963 Great Britain relinquished its sovereignty over Sabah, and in
that year Sabah became part of the new Federation of Malaysia.
THE COURT REJECTED THE PHILIPPINE APPLICATION FOR
INTERVENTION
On 23 October 2001, the ICJ rendered its Judgment regarding the Philippine
request to intervene in the case between Malaysia and Indonesia. The Court
disallowed the request, stating that the Philippines had failed to demonstrate an
interest of a legal nature that would entitle them to intervene in the case
concerning sovereignty over Pulau Sipadan and Ligitan between Malaysia and
Indonesia.
The result of the secret voting by the Court was 16 in favor of the majority
opinion and 1 against.
The sole negative vote came from Judge Oda, who wrote a Dissenting Opinion
[6] which included the following: Quote: I voted against the operative part of
the Judgment, as I firmly believe that the Philippine request for permission to
intervene in the case between Indonesia and Malaysia should have been
granted. That vote has led me to express this dissenting opinion. I wish,
however, to emphasize that my disagreement with the Court is limited at this
time strictly to the issue decided in this Judgment, namely the Philippines right
to intervene in these proceeding, and is not in any way indicative of my views
in respect of the validity of any
claim the Philippines might have to North Borneo or in respect of the merits in
the principal case between Indonesia and Malaysia. Unquote
[4] Report of the Commission of Enquiry, North Borneo and Sarawak (The
Cobbold Commission Report).
[5] United Nations Malaysia Mission Report, 1963.
[6] Dissenting Opinion by Judge Oda, 23 October 2001, paragraph 1.
Another Separate Opinion entered by Judge ad hoc Franck who voted with the
majority, which was recorded as forming part of the written Judgment, was
most noteworthy. In one part of his separate opinion, Judge ad hoc Franck said
that the Philippine claim to Sabah had become a purely historical matter
because,
whatever the basis, it had been overtaken by the exercise of self-determination
by the people of Sabah in 1963. [7]

[7] Separate Opinion of Judge ad hoc Franck, 23 October 2001, paragraph 15.
THE DIPLOMATIC AND LEGAL SIGNIFICANCE OF THE ICJ
DECISIONS
The peaceful resolution of the dispute between Malaysia and Indonesia on the
basis of international law was not only unprecedented for Southeast Asia but it
also established a good model for the pacific settlement of disputes. The best
solutions for problems between nations are normally secured through friendly
negotiations. However, under the circumstances prevailing at that time,
reference to the ICJ for adjudication proved to be the best option for both
Malaysia and Indonesia.
The request for intervention by the Philippines produced an unexpected turn of
events. For the first time, the so-called Philippine claim to Sabah came to be
subjected to judicial scrutiny, albeit in an indirect manner. And it exposed the
fact that the Philippine claim lacked clarity and its presentation in the Court
involved serious unexplained discrepancies. The decision of the ICJ, in
disallowing the request for intervention by the Philippines, including the
independent observations made by two Judges, showed clearly that the attempt
to interest the Court in the matter of the Philippine claim to Sabah had simply
failed to prosper. Malaysia objected to the Philippine request to intervene, and
succeeded in preventing the Philippines from using Article 62 of the Statutes
of the ICJ as a platform to advance its claim. Malaysia was satisfied with the
opportunity it had to explain to the Court that not merely had the Philippines
no right to intervene before
the Court in the case concerning Pulau Ligitan and Pulau Sipadan; it had no
claim to make against Malaysia regarding Sabah. Malaysia amply
demonstrated to the Court that in fact and in law, the Philippine claim to Sabah
was totally lacking in foundation.
The intervention by the Philippines began as an irritant and a distraction to the
proceedings in the Court between the two actual parties to the dispute —
Malaysia and Indonesia. In the end, the Philippines not only failed in its bid to
intervene but lost substantial ground — diplomatically and legally — in its
attempt to resurrect the so-called Philippine claim to Sabah.
CONCLUSION
Malaysia won at the International Court of Justice — in both the intervention
phase (Indonesia/Malaysia/Philippines) and the merits phase
(Indonesia/Malaysia) — because Malaysia had a good case, and argued it fully
and thoroughly. This was made possible by good teamwork including many
years of researching thousands of documents and maps spanning several
centuries, in archives and depositories, in Sabah, Peninsular Malaysia, the
United Kingdom, the United States, India and The Netherlands. This research
was conducted by officers of the Ministry of Foreign Affairs including
Malaysian Embassies in the aforementioned countries, the Department of
National Archives, the Department of Survey and Mapping, the Ministry of
Land and Cooperative Development, the Navy, other Agencies of Government
as well as several scholars and historians from universities in Malaysia and
abroad.
 Maritime Dispute (Peru v. Chile) area lying out to a distance of 200 nm from its baseline (and beyond 200 nm
from the Chilean baseline). Peru referred to this area as the “outer triangle”

On 27 January 2014, the International Court of Justice (ICJ) delivered its Delimiting the boundary by the use of the parallel of latitude method urged by

judgment on the maritime boundary dispute between Peru and Chile (Peru v. Chile (instead of based on the equidistance principle favoured by Peru) greatly

Chile, Judgment, General List No. 137). The Court had to determine first enlarges the ocean space subject to Chilean sovereign rights and jurisdiction,

whether a maritime boundary existed between Peru and Chile. If so, then it whilst significantly diminishing those of Peru. The significant economic

also had to consider the nature and extent of the boundary. impact for both states in where the boundary line is set is readily apparent. The
water column seaward of the coasts of Peru and Chile, known as the Humbolt

Peru’s application instituting proceedings in 2008 asserted that the limits of its Current, is extremely rich in living marine resources. In 2008, it was said to be

southern maritime boundary and Chile’s abutting northern maritime boundary the most productive marine ecosystem in the world and approximately 18%-

were uncertain and requested the ICJ to delimit the respective maritime zones 20% of world’s total fish catch is harvested in the waters off Peru and Chile

based on a line “equidistant from the baselines of both Parties, up to a point (Mark McGinley, Humboldt Current large marine ecosystem, Encyclopedia of

situated at a distance of 200 nautical miles (nm) from those baselines” (Peru v. Earth). Given this economic significance, since 1982 Peru had repeatedly

Chile, para. 14). Chile disputed this uncertainty and maintained that the sought to negotiate, presumably pursuant to Article 74 of the United Nations

maritime boundary had been settled by a prior agreement. Chile maintained Convention for the Law of the Sea, an agreement finally establishing a

that the delimitation under the agreement was based on a “parallel of latitude maritime boundary with Chile. However, in Chile’s view the boundary had

passing through the most seaward boundary marker of the land boundary been formally delimited by an agreement reflected in Paragraph IV of the 1952

between Chile and Peru” and extending 200 nm (id.). The respective positions Santiago Declaration and that this boundary was protected from challenge on

of both Chile and Peru are shown below in sketch-map No. 2 of the Court’s the basis of pacta sunt servanda (agreements must be kept) and the need to

judgment (Peru v. Chile, para 22). Peru also argued that if the parallel of ensure the stability of boundaries.

latitude method of delimitation was adopted, then at the end of the common
boundary it was entitled to exercise exclusive sovereign rights over a maritime Ultimately, the Court fashioned a boundary that neither Peru nor Chile had
pleaded. The Court delimited the starting point (Boundary Marker No. 1) and a
parallel maritime boundary line that extended 80 nm (Point A) on the basis of a
tacit agreement. Beyond that initial 80 nm segment, the Court called on
customary international law in order to delimit the seaward boundary related to
overlapping claims out to 200 nm (Point B) then dropping down to where the
maritime entitlements of the parties end (Point C
The Treatment of the Dispute by the ICJ
The Court starts by noting that its jurisdiction arises, according to Peru and
unchallenged by Chile, by virtue of the compromissory clause in the 1948
American Treaty on Pacific Settlement (Art. XXXI). The judgment then
briefly recounts the fascinating genesis of the maritime boundary dispute
between Peru and Chile.
The dispute is traced back to the 19th Century and in the “War of the Pacific”
(1879-1883) between Chile, Peru and Bolivia, which revolved around control
over nitrate resources in the Atacama Desert. Chile ultimately proved
victorious and annexed the Peruvian provinces of Tacna, Arica and Tarapacá.
In 1883 Chile and Peru entered into a peace treaty known as the Treaty of
Ancón and hostilities came to an end. Under the terms of the treaty, Chile was
supposed to organise a plebiscite after ten years in which the populations of
Tacna and Arica would decide which country they wanted to belong to. It
failed to do this and following mediation by the President of the United States
in 1929 the two countries entered into the Treaty of Lima whereby they agreed
that Tacna would be returned to Peru and Chile would retain Arica. They also
agreed to the establishment of a Mixed Commission of Limits to determine the
land boundary between the two countries, which was accomplished by its 1930
Final Act
While Peru and Chile agreed that their land boundary had been conclusively
determined, Peru maintained that this was not the case with the party’s
common maritime boundary and requested the Court to delimit the maritime
zones between the parties by means of a line equidistant from the baselines of
both parties. Peru asserted that the start of the boundary should be at Punta
Concordia, where the land border hits the sea. As noted, Peru also requested
the ICJ to declare the “outer triangle” subject to its sovereign rights and
jurisdiction as within 200 nm of its baselines, but more than 200 nm from
Chile’s baselines. Chile argued contra-wise that a definitive boundary had been
agreed in the 1952 Santiago Declaration, as supported by a reading of
preceding and subsequent instruments and their travaux preparatoires. Chile
maintained that the maritime boundary line followed the parallel of latitude
passing through the most seaward boundary marker of the land boundary (250
meters north of Punta Concordia), Boundary Marker No. 1 (referred to as Hito
No. 1 in the 1930 Final Act) and extending to 200 nm. Chile requested the
Court to recognize and declare this pre-existing maritime boundary and
dismiss Peru’s claim in its entirety.
The Court began its analysis by considering a series of instruments and
agreements between Peru and Chile, including the 1947 unilateral
Proclamations (1947 Proclamations) by both states claiming a 200 nm
exclusive maritime zone of each coast, the 1952 Santiago Declaration on the
Maritime Zone (1952 Santiago Declaration), and related agreements concluded
over the next two years, especially the 1954 Agreement Relating to a Special
Maritime Frontier Zone (1954 Agreement), as well as relevant state practice.
Of course, at this period of time customary international law was silent about
the declaration of 200 nm exclusive maritime zones in relation to living marine
resources, although the Truman Proclamation did serve to crystalize the
customary international law over the delimitation of overlapping claims over
the continental shelf.
In terms of the 1947 Proclamations, the ICJ ruled (as conceded by Chile) that
they did not, of themselves, establish an international maritime boundary
between the parties. However, the Court did find that the Proclamations were
evidence of the necessity of an understanding of the need to establish the
lateral limits of the claimed maritime zones in the future. The Court then
examined the 1952 Santiago Declaration, in particular paragraph IV which
states:
In the case of island territories, the zone of 200 nautical miles shall apply to
the entire coast of the island or group of islands. If an island or group of
islands belonging to one of the countries making the declaration is situated less
than 200 nautical miles from the general maritime zone belonging to another
of those countries, the maritime zone of the island or group of islands shall be
limited by the parallel at the point at which the land frontier of the States
concerned reaches the sea.
For Chile, paragraph IV clearly indicated a general maritime delimitation
between Peru and Chile extending to 200 nm had been intended. If this were
not the case, then it would be impossible to know if an island was within 200
nm of the “general maritime zone” of the neighbouring State. The Court
disagreed. Interestingly, the Court held that the 1952 Declaration, which
presumably started life as a declarative political instrument, was transformed
into a treaty (properly so called) by virtue of its ratification by each signatory
and its registration with the U.N. under Article 102 of the U.N. Charter. Treaty
though it became, the Court held that it did not constitute an agreement to
establish a maritime boundary.
Interpreting the 1952 Declaration according to the ordinary meaning of its
terms, the Court found that the Parties had only agreed on the limits of certain
insular maritime zones and the zones generated by the continental coasts that
abut these zones. The Court further considered the object and purpose of the
1952 Declaration and found the focus to be on conservation and protection of
natural resources. It found it was not necessary to consider the situation of
small islands located close to the coast near the Peru-Chile land boundary
because the concerns about insular zones arose from a concern expressed by
Ecuador. Finally the Court rejected Chile’s claim that the Minutes of the 1952
conference leading to the Declaration constitute an “agreement relation to the
treaty” under Article 31(2)(a) of the Vienna Convention on the Law of
Treaties. The Court found they were not an agreement but more in the nature
of travaux, which were not needed as supplementary means of interpretation in
this case.
Yet, the Court accepted Chilean reliance on the provisions of various
agreements from 1952 to 1954, within the context of the 1947 Proclamations
and the 1952 Santiago Declaration, was sufficient to establish a tacit
agreement for a general parallel maritime boundary starting at Boundary
Marker No. 1. In reaching this conclusion the Court examined relevant
practice of the Parties in the early and mid-1950s, as well as the wider context
including developments in the law of the sea at that time. It also assessed the
practice of the two Parties subsequent to 1954. The ICJ noted that the practice
and agreements before 1954 “suggested an evolving understanding between
the Parties concerning their maritime boundary” (Peru v. Chile, para. 91). The
Court also considered the 1954 Agreement as it addressed violations of the
maritime frontier by small fishing vessels. Article 1 of the 1954 Agreement
established a special zone “at a distance of 12 nautical miles from the coast,
extending to a breadth of 10 nautical miles on either side of the parallel which
constitutes the maritime boundary between the two countries.” The ICJ found
that the 1954 Agreement constituted an acknowledgement by the Parties that a
maritime boundary was in existence (even though the Agreement gave no
indication of the nature or extent of that boundary). Recognizing the heavy
burden of the pre-existing implied agreement, the Court stated:
In an earlier case, the Court, recognizing that “[t]he establishment of a
permanent maritime boundary is a matter of grave importance”, underlined
that “evidence of a tacit legal agreement must be compelling” (Territorial and
Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v Honduras), Judgment, I.C.J. Reports 2007 (II), p. 735, para. 253).
In this case, the Court has before it an Agreement which makes clear that the
maritime boundary along a parallel already existed between the Parties. The
1954 Agreement is decisive in this respect. That Agreement cements the tacit
agreement.
The Court found that certain 1968-1969 lighthouse arrangements, while not
constituting maritime boundary delimitation, proceeded on the basis that a
maritime boundary already existed extending along the parallel of latitude
from Boundary Marker No.1 (and not Punta Concordia).
The Court next examined the character of the maritime boundary that had been
established by tacit agreement. Because the 1947 Proclamations and the 1952
Declaration referred to both the sea-bed and the waters above the sea-bed,
making no distinction between these two different maritime aspects. The Court
concluded that the tacitly agreed boundary was a single maritime boundary
applicable to the water column, the sea-bed and its subsoil.
Turning to the extent of the existing maritime boundary established by tacit
agreement, the Court focused on the purpose of the 1954 agreement and the
practice of the parties. As the 1954 Agreement was specifically concluded to
regulate fisheries and prevent innocent and inadvertent violations of the
frontiers of each state, the Court concluded that the boundary must extend at
least to the distance where such activity was taking place at the time. The
Court noted that the fish species making up the bulk of the annual catch of the
two states in the 1950s were mostly harvested within 60 nm of the coast. On
the basis of 1950s fishing practices and the law of the sea existing at the time,
the ICJ concluded that the agreed maritime boundary did not extend beyond 80
nm from its starting-point (Point A on sketch-map No. 4).
The Court then addressed the delimitation of the boundary beyond Point A
following its three-step method it has established to help reach an equitable
delimitation. At the first step – the application of the equidistance principle –
the Court constructed a provisional equidistance line, drawing a circle with an
80 nm radius from Point A, in order to determine the relevant base points on
the Peruvian coast. This equidistance line was extended out to 200 nm from
the Chilean coast (to Point B). The Court did not find it necessary to address
the submission of Peru regarding the “outer triangle” because it did not arise.
The delimitation of the Parties’ overlapping maritime entitlements beyond
Point A was by way of an equidistance line and it did not present an “outer
triangle.” Thus, the Peruvian entitlement by virtue of the maritime boundary
extends south of Point B to Point C for approximately 22 nm following the
200 nm limit of Chile.
At the second step – the consideration of other relevant circumstances that
might alter the provisional equidistance line – the Court found that there were
no relevant circumstances calling for adjustment of the provisional
equidistance line.
At the third step – proportionality analysis – the Court examined whether the
result achieved was significantly disproportionate in relation to the lengths of
the relevant coasts. The Court noted that the object of delimitation was to
achieve an equitable result, not an arithmetical equal apportionment of
maritime areas. In this case, the existence of an agreed boundary running along
a parallel for 80 nm made the calculation of the relevant coastal length and
coastal areas “difficult, if not impossible” (Peru v. Chile, para. 193). The
Court, accordingly, did not calculate any sort of precise ratios of entitlement,
but instead broadly assessed the proportionality of the delimitation and
concluded no significant disproportionality existed that militated against the
equitable nature of the provisional equidistance line beyond Point A (Peru v.
Chile, para. 194).
Some Thoughts about the Judgment
The peaceful resolution of this maritime boundary dispute is to be welcomed,
especially given that its origins began through hostilities and the use of force.
It seems plain that the Court achieved (even if it was not striving for) a
reasonable compromise between the absolutist positions that had been staked
out by Peru and Chile. Chile has a lateral boundary out to 80 nm and the some evidence in an attempt to identify what was the outer point of the tacitly agreed
of the richest fisheries in the area of overlapping claims. Peru has an boundary. The Court relied on fisheries statistics cited by both Chile in its
equidistant boundary from that point out to 200 nm which gives it roughly written statements in order to determine which species were fished in the
21,000 sq km of the disputed 38,000 sq km overlapping claims, including its 1950s. The Court also utilized statements made by Peru at the 1958 United
“outer triangle”. Thus, both parties are able to claim “victory” to a degree. Nations Conference on the Law of the Sea to determine the range of such
species at the time. The evidence, thus, gives the 80 nm initial established by
Importantly, however, the judgment broadly adheres to the proposition that the the Court a basis in fact, although an empirical scientific basis is absent and six
delimitation of maritime boundaries represent a just and “equitable solution”. members of the Court did not reach this conclusion.
It is true that the Court in reaching its judgment has been proactive in
achieving an outcome that was pleaded by neither party. In this regard, the In terms of the methodology of delimitation beyond Point A employed by the
Declaration of Judge Donoghue bears attention. Because neither party Court, not much new appears in the judgment. The delimitation follows the
convinced the Court on the law, neither party fully briefed the Court on the doctrinaire three-step methodology repeatedly approved by the Court in what
delimitation actually made by the Court; either the initial 80 nm segment is an unexceptional geographic setting.
settled by agreement or the area beyond Point A delimited on the basis of
equidistance. Judge Donoghue would have the Court in such circumstances
consider the need to request additional briefing or evidence from the parties
and/or render an interim decision while seeking additional submissions on the
new or remaining issues. Just as importantly, Judge Donoghue is cognizant of
opportunities for judicial cross-fertilization and calls on the Court to be open to
making use of appropriate procedural approaches and practices of other
tribunals.

Significantly, the Court took detailed, hands-on approach to the practice of the
parties in the pre-exclusive economic zone era and to the assessment of the
 International Tribunal for the Law of the Sea issues judgment in strained in October 2008 when survey ships subcontracted by Daewoo, acting
Bangladesh/Myanmar under licence from Myanmar, began conducting survey work close to St
Martin’s Island and in a maritime area claimed by Bangladesh. Bangladesh

On 14 March 2012, the International Tribunal for the Law of the Sea (the responded by dispatching three naval vessels leading to a stand-off between

“ITLOS“) issued its judgment in the dispute concerning delimitation of the the two navies lasting over a week until the Daewoo vessels withdrew. This

maritime boundary between Bangladesh and Myanmar in the Bay of Bengal. incident focused attention on the maritime boundary, leading to further talks.

This case, upon which Herbert Smith advised, is a significant contribution to In the absence of agreement, however, and in the face of rising tension in the

the jurisprudence in this area. This post highlights three key points arising out region, arbitral proceedings were commenced by Bangladesh in October 2009,

of the judgment, and examines what it may mean for the future resolution of pursuant to UNCLOS. A few weeks later Myanmar deposited a “Declaration”

other maritime boundary disputes. under UNCLOS accepting the jurisdiction of the ITLOS to hear the dispute.
Bangladesh itself then lodged a similar Declaration on 12 December 2009,

Background initiated proceedings before the ITLOS on the next day, and withdrew the
separate arbitral proceedings. Myanmar withdrew its Declaration in January

Almost since Bangladesh’s independence in 1971, it has been in negotiation 2010, presumably to prevent other proceedings being brought against it before

with Myanmar over their maritime boundary in the Bay of Bengal. the ITLOS. But it was considered that this did not affect the jurisdiction of the
ITLOS over the proceedings that had already commenced.

The Bay of Bengal is rich with hydrocarbons, some of which are now more
accessible given advances in deep water exploration. Despite many meetings 1. The ITLOS: the Sleeping Beauty of maritime dispute resolution?

to negotiate the maritime boundary, no final delimitation was agreed.

States have conventionally submitted resolution of their boundary disputes to

Relations between Bangladesh and Myanmar, both parties to the United the International Court of Justice (the “ICJ“) or to arbitral tribunals. Under

Nations Convention on the Law of the Sea (“UNCLOS“), became severely UNCLOS, States are permitted to submit maritime disputes not only to the ICJ
and to arbitration (in accordance with UNCLOS Annex VII and VIII) but also
to the ITLOS.
Despite the prominent role it has been given under UNCLOS in interpreting
and enforcing rights and obligations under UNCLOS, many of the cases before
the ITLOS in its 16 year history have concerned prompt release of vessels, and
to a lesser degree fishing issues (particularly of swordfish and southern blue
fin tuna). Bangladesh/Myanmar was the first time that a dispute on the
delimitation of a maritime boundary had been submitted to the ITLOS.
Whilst it was common ground between the Parties that the territorial sea (12
nautical miles (“NM“)) and the exclusive economic zone (“EEZ“) and “inner”
continental shelf (up to 200 NM) should be delimited by the ITLOS, there was
considerable debate as to whether (i) the ITLOS had jurisdiction to delimit the
continental shelf beyond 200 NM and, (ii) if so, whether it should exercise that
jurisdiction.
The ITLOS expressly took jurisdiction over the issue because it felt that “it
would not be conducive to the efficient operation of [UNCLOS]” to do
otherwise and because it felt that “it has an obligation to adjudicate the dispute
and to delimit the continental shelf between the Parties beyond 200 NM“. This
was so, notwithstanding Myanmar’s December 2008 submission to the
Commission on the Limits of the Continental Shelf (the “CLCS”), a separate
body established under UNCLOS, and in the face of Myanmar’s objections as
to the “advisability” of the ITLOS in doing so, in light of the claims of third
parties (and specifically India), and rights to the international seabed area.
The ITLOS took jurisdiction because:-
There is but one continental shelf: UNCLOS does not distinguish between the
“inner” and “outer” parts of the continental shelf.
Since its decision was only binding on the parties before it, namely
Bangladesh and Myanmar, no prejudice could be suffered by third parties such
as India.
It was not persuaded by the fact that the CLCS had not yet made its
recommendations[2] on the submissions made by both Myanmar and
Bangladesh on the outer limits of the continental shelf respectively claimed by
each State.[3] In this connection, it distinguished between its own role to
“delimit” the continental shelf, and the CLCS’s role to “delineate” it – in other
words, the ITLOS was content to take jurisdiction over describing the direction
of the continental shelf boundary, but not to define its terminus, which it left to
the CLCS. In this way, it considered that its exercise of jurisdiction was not an
“encroachment” on the functions of the CLCS.
In light of its approach, the clarity of its near unanimous judgment on
delimitation beyond 200 NM (of 22 members of the ITLOS, there was one
dissenting opinion), and the widening ambit of its caseload (now including the
advisory opinion in the Rare Metals Case[4]), other States may be increasingly
persuaded to choose the ITLOS for their maritime disputes.

As such, Bangladesh/Myanmar may mark a coming of age for the ITLOS and
its role in maritime dispute resolution and in particular, those concerning
maritime boundaries.
2. Endorsement of maritime delimitation methodology – greater certainty
in future cases
The ITLOS noted that in relation to the delimitation of the EEZ and
continental shelf, a single maritime boundary should be drawn. It considered
that no mandatory approach to delimitation existed in international law, but
that over time the “equidistance/relevant circumstances” method had become
the most widely adopted, subject to an assessment of whether the outcome was
disproportionate. This involves three separate stages:-
First, drawing a provisional equidistance line based on the geography of the
States’ coasts; and
Second, asking whether there were any “relevant circumstances” which
required that line to be adjusted to allow for an equitable result; and
Finally, applying the “test of disproportionality“.
In Bangladesh/Myanmar, the ITLOS considered that after constructing the
provisional equidistance line, Bangladesh’s “manifestly concave” coast line
was a “relevant circumstance” which necessitated adjustment of that
provisional equidistance line. Concavity will not always be taken into
consideration, but “…when an equidistance line drawn between two States
produces a cut-off effect on the maritime entitlement of one of those States, as
a result of the coast, then an adjustment of that line may be necessary in order
to reach an equitable result.”
However, it did not consider that St Martin’s Island, a “significant maritime
feature by virtue of its size and population and the extent of economic and
other activities“, which the ITLOS had awarded its own 12 NM territorial sea,
warranted an adjustment of the provisional equidistance line; nor would the
Bengal depositional system, being the “physical, geological and
geomorphological connection between Bangladesh’s land mass and the Bay of
Bengal” be a relevant circumstance to be taken into consideration either.
The ITLOS then endorsed the third stage in the methodology for maritime
delimitation, which has emerged from the case law over a period of time.[5]
At this third stage, a tribunal must ascertain whether the delimitation line leads
to “an inequitable result by reason of any marked disproportion” between the
ratio of the relevant coastal lengths and the maritime areas of the respective
States parties. This tends to be a fairly general test that one side has not been
treated inequitably, rather than a substantive analysis of whether a ratio is
“proportionate“. As the ITLOS noted, “mathematical precision is not
required“.
After deciding that the scientific evidence presented by Bangladesh did not
prevent Myanmar making a claim to the outer part of the continental shelf, the
ITLOS found that no further adjustment to the equidistance line was Second, the adjusted equidistance line extending beyond 200 NM plotted by
necessary: the ratio between the total areas awarded and the ratio of the the ITLOS does not have a terminus point – it is said to continue “until it
respective lengths of Bangladesh and Myanmar’s coastlines were not reaches the area where the rights of third party States may be affected.” Those
disproportionate. rights remain a live issue.

3. Sovereign rights over the Bay of Bengal: some uncertainties removed,
but some remain
The ITLOS’s judgment helps to clarify some of the issues at stake including
the sovereign rights of a large area of the EEZ and continental shelf of the Bay
of Bengal. These are directly relevant to the rights of Bangladesh and
Myanmar to grant hydrocarbon exploration and production rights in those
areas and will give comfort to oil companies such as ConocoPhillips, Tullow
and Daewoo who have interests there.
In this regard, the status of India’s substantial claims within the Bay of Bengal
remains very much unsettled. As noted by the ITLOS, its judgment does not
bind third-parties such as India (which is currently engaged in arbitral
proceedings of its own with Bangladesh) and its delimitation is without
prejudice to the delineation of the continental shelf to be decided upon by the
CLCS.

Yet for all the clarity of the judgment, uncertainties remain.

First, a small “grey area” within 200 NM of the Myanmar coast, but on the
Bangladesh side of the delimitation line, was not delimited by the ITLOS.
After considering the difficulties it presented, the ITLOS instead noted that
there existed many ways for the parties to reach an agreement on this limited
area, hinting perhaps at joint development or unitisation.
 Magallona vs Ermita
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 95221 (RA 9522) adjusting the countrys
archipelagic baselines and classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the
maritime baselines of the Philippines as an archipelagic State.3 This law
followed the framing of the Convention on the Territorial Sea and the
Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the
sovereign right of States parties over their territorial sea, the breadth of which,
however, was left undetermined. Attempts to fill this void during the second
round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus,
domestically, RA 3046 remained unchanged for nearly five decades, save for
legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting
typographical errors and reserving the drawing of baselines around Sabah in
North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute
now under scrutiny. The change was prompted by the need to make RA 3046
compliant with the terms of the United Nations Convention on the Law of the
Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6
Among others, UNCLOS III prescribes the water-land ratio, length, and
contour of baselines of archipelagic States like the Philippines7 and sets the
deadline for the filing of application for the extended continental shelf.8
Complying with these requirements, RA 9522 shortened one baseline,
optimized the location of some basepoints around the Philippine archipelago
and classified adjacent territories, namely, the Kalayaan Island Group (KIG)
and the Scarborough Shoal, as regimes of islands whose islands generate their
own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective
capacities as citizens, taxpayers or x x x legislators,9 as the case may be, assail
the constitutionality of RA 9522 on two principal grounds, namely: (1) RA
9522 reduces Philippine maritime territory, and logically, the reach of the
Philippine states sovereign power, in violation of Article 1 of the 1987
Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary
treaties,12 and (2) RA 9522 opens the countrys waters landward of the
baselines to maritime passage by all vessels and aircrafts, undermining
Philippine sovereignty and national security, contravening the countrys
nuclear-free policy, and damaging marine resources, in violation of relevant
constitutional provisions.13
In addition, petitioners contend that RA 9522s treatment of the KIG as regime We left unacted petitioners prayer for an injunctive writ.
of islands not only results in the loss of a large maritime area but also The Issues
prejudices the livelihood of subsistence fishermen.14 To buttress their
argument of territorial diminution, petitioners facially attack RA 9522 for what The petition raises the following issues:
it excluded and included its failure to reference either the Treaty of Paris or
Sabah and its use of UNCLOS IIIs framework of regime of islands to 1. Preliminarily
determine the maritime zones of the KIG and the Scarborough Shoal.
1. Whether petitioners possess locus standi to bring this suit; and
Commenting on the petition, respondent officials raised threshold issues 2. Whether the writs of certiorari and prohibition are the proper remedies to
questioning (1) the petitions compliance with the case or controversy assail the constitutionality of RA 9522.
requirement for judicial review grounded on petitioners alleged lack of locus
standi and (2) the propriety of the writs of certiorari and prohibition to assail 2. On the merits, whether RA 9522 is unconstitutional.
the constitutionality of RA 9522. On the merits, respondents defended RA
9522 as the countrys compliance with the terms of UNCLOS III, preserving The Ruling of the Court
Philippine territory over the KIG or Scarborough Shoal. Respondents add that On the threshold issues, we hold that (1) petitioners possess locus standi to
RA 9522 does not undermine the countrys security, environment and economic bring this suit as citizens and (2) the writs of certiorari and prohibition are
interests or relinquish the Philippines claim over Sabah. proper remedies to test the constitutionality of RA 9522. On the merits, we
find no basis to declare RA 9522 unconstitutional.
Respondents also question the normative force, under international law, of
petitioners assertion that what Spain ceded to the United States under the On the Threshold Issues
Treaty of Paris were the islands and all the waters found within the boundaries
of the rectangular area drawn under the Treaty of Paris. Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators
and taxpayers because the petition alleges neither infringement of legislative
prerogative15 nor misuse of public funds,16 occasioned by the passage and
implementation of RA 9522. Nonetheless, we recognize petitioners locus
standi as citizens with constitutionally sufficient interest in the resolution of
the merits of the case which undoubtedly raises issues of national significance
necessitating urgent resolution. Indeed, owing to the peculiar nature of RA
9522, it is understandably difficult to find other litigants possessing a more
direct and specific interest to bring the suit, thus satisfying one of the
requirements for granting citizenship standing.17
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary grounds,
respondents seek a strict observance of the offices of the writs of certiorari and
prohibition, noting that the writs cannot issue absent any showing of grave
abuse of discretion in the exercise of judicial, quasi-judicial or ministerial
powers on the part of respondents and resulting prejudice on the part of
petitioners.18
Respondents submission holds true in ordinary civil proceedings. When this
Court exercises its constitutional power of judicial review, however, we have,
by tradition, viewed the writs of certiorari and prohibition as proper remedial
vehicles to test the constitutionality of statutes,19 and indeed, of acts of other
branches of government.20 Issues of constitutional import are sometimes
crafted out of statutes which, while having no bearing on the personal interests
of the petitioners, carry such relevance in the life of this nation that the Court
inevitably finds itself constrained to take cognizance of the case and pass upon
the issues raised, non-compliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 dismembers a large portion of the national
territory21 because it discards the pre-UNCLOS III demarcation of Philippine
territory under the Treaty of Paris and related treaties, successively encoded in
the definition of national territory under the 1935, 1973 and 1987
Constitutions. Petitioners theorize that this constitutional definition trumps any
treaty or statutory provision denying the Philippines sovereign control over
waters, beyond the territorial sea recognized at the time of the Treaty of Paris,
that Spain supposedly ceded to the United States. Petitioners argue that from
the Treaty of Paris technical description, Philippine sovereignty over territorial
waters extends hundreds of nautical miles around the Philippine archipelago,
embracing the rectangular area delineated in the Treaty of Paris.22
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime
zones (i.e., the territorial waters [12 nautical miles from the baselines],
contiguous zone [24 nautical miles from the baselines], exclusive economic
zone [200 nautical miles from the baselines]), and continental shelves that
UNCLOS III delimits.23 UNCLOS III was the culmination of decades-long
negotiations among United Nations members to codify norms regulating the
conduct of States in the worlds oceans and submarine areas, recognizing
coastal and archipelagic States graduated authority over a limited span of
waters and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS
III States parties to mark-out specific basepoints along their coasts from which
baselines are drawn, either straight or contoured, to serve as geographic
starting points to measure the breadth of the maritime zones and continental
shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be
any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous
zone, the exclusive economic zone and the continental shelf. The breadth of
the territorial sea, the contiguous zone, the exclusive economic zone and the
continental shelf shall be measured from archipelagic baselines drawn in
accordance with article 47. (Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III
States parties to delimit with precision the extent of their maritime zones and
continental shelves. In turn, this gives notice to the rest of the international
community of the scope of the maritime space and submarine areas within
which States parties exercise treaty-based rights, namely, the exercise of
sovereignty over territorial waters (Article 2), the jurisdiction to enforce
customs, fiscal, immigration, and sanitation laws in the contiguous zone
(Article 33), and the right to exploit the living and non-living resources in the
exclusive economic zone (Article 56) and continental shelf (Article 77).
Even under petitioners theory that the Philippine territory embraces the islands
and all the waters within the rectangular area delimited in the Treaty of Paris,
the baselines of the Philippines would still have to be drawn in accordance
with RA 9522 because this is the only way to draw the baselines in conformity
with UNCLOS III. The baselines cannot be drawn from the boundaries or
other portions of the rectangular area delineated in the Treaty of Paris, but
from the outermost islands and drying reefs of the archipelago.24
UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory
through occupation, accretion, cession and prescription,25 not by executing
multilateral treaties on the regulations of sea-use rights or enacting statutes to
comply with the treatys terms to delimit maritime zones and continental
shelves. Territorial claims to land features are outside UNCLOS III, and are
instead governed by the rules on general international law.26
RA 9522s Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines Claim of Sovereignty
Over these Areas
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands
framework to draw the baselines, and to measure the breadth of the applicable
maritime zones of the KIG, weakens our territorial claim over that area.27
Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the
Philippine archipelagic baselines results in the loss of about 15,000 square
nautical miles of territorial waters, prejudicing the livelihood of subsistence
fishermen.28 A comparison of the configuration of the baselines drawn under
RA 3046 and RA 9522 and the extent of maritime space encompassed by each
law, coupled with a reading of the text of RA 9522 and its congressional
deliberations, vis--vis the Philippines obligations under UNCLOS III, belie
this view.
The configuration of the baselines drawn under RA 3046 and RA 9522 shows
that RA 9522 merely followed the basepoints mapped by RA 3046, save for at
least nine basepoints that RA 9522 skipped to optimize the location of
basepoints and adjust the length of one baseline (and thus comply with
UNCLOS IIIs limitation on the maximum length of baselines). Under RA
3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the
baselines drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners argument branding RA 9522
as a statutory renunciation of the Philippines claim over the KIG, assuming
that baselines are relevant for this purpose.
Petitioners assertion of loss of about 15,000 square nautical miles of territorial
waters under RA 9522 is similarly unfounded both in fact and law. On the
contrary, RA 9522, by optimizing the location of basepoints, increased the
Philippines total maritime space (covering its internal waters, territorial sea
and exclusive economic zone) by 145,216 square nautical miles, as shown in
the table below:29
Thus, as the map below shows, the reach of the exclusive economic zone
drawn under RA 9522 even extends way beyond the waters covered by the
rectangular demarcation under the Treaty of Paris. Of course, where there are
overlapping exclusive economic zones of opposite or adjacent States, there
will have to be a delineation of maritime boundaries in accordance with
UNCLOS III.30
Further, petitioners argument that the KIG now lies outside Philippine territory
because the baselines that RA 9522 draws do not enclose the KIG is negated
by RA 9522 itself. Section 2 of the law commits to text the Philippines
continued claim of sovereignty and jurisdiction over the KIG and the
Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines
likewise exercises sovereignty and jurisdiction shall be determined as Regime
of Islands under the Republic of the Philippines consistent with Article 121 of
the United Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No.
1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part
of the Philippine archipelago, adverse legal effects would have ensued. The
Philippines would have committed a breach of two provisions of UNCLOS III.
First, Article 47 (3) of UNCLOS III requires that [t]he drawing of such
baselines shall not depart to any appreciable extent from the general
configuration of the archipelago. Second, Article 47 (2) of UNCLOS III
requires that the length of the baselines shall not exceed 100 nautical miles,
save for three per cent (3%) of the total number of baselines which can reach
up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty over the KIG32
and the Scarborough Shoal for several decades, these outlying areas are
located at an appreciable distance from the nearest shoreline of the Philippine
archipelago,33 such that any straight baseline loped around them from the
nearest basepoint will inevitably depart to an appreciable extent from the
general configuration of the archipelago.
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-
Santiago, took pains to emphasize the foregoing during the Senate
deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the
Spratlys and the Scarborough Shoal are outside our archipelagic baseline
because if we put them inside our baselines we might be accused of violating
the provision of international law which states: The drawing of such baseline
shall not depart to any appreciable extent from the general configuration of the
archipelago. So sa loob ng ating baseline, dapat magkalapit ang mga islands.
Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa
atin although we are still allowed by international law to claim them as our
own.
This is called contested islands outside our configuration. We see that our
archipelago is defined by the orange line which [we] call[] archipelagic
baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is
Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or
the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang
dating archipelagic baselines para lamang masama itong dalawang circles,
hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations
because of the rule that it should follow the natural configuration of the
archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS
IIIs limits. The need to shorten this baseline, and in addition, to optimize the
location of basepoints using current maps, became imperative as discussed by
respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines
to draw the outer limits of its maritime zones including the extended
continental shelf in the manner provided by Article 47 of [UNCLOS III]. As
defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from
some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock
Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the
maximum length allowed under Article 47(2) of the [UNCLOS III], which
states that The length of such baselines shall not exceed 100 nautical miles,
except that up to 3 per cent of the total number of baselines enclosing any
archipelago may exceed that length, up to a maximum length of 125 nautical
miles.
2. The selection of basepoints is not optimal. At least 9 basepoints can be
skipped or deleted from the baselines system. This will enclose an additional
2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not
established by geodetic survey methods. Accordingly, some of the points,
particularly along the west coasts of Luzon down to Palawan were later found
to be located either inland or on water, not on low-water line and drying reefs
as prescribed by Article 47.35
Hence, far from surrendering the Philippines claim over the KIG and the
Scarborough Shoal, Congress decision to classify the KIG and the
Scarborough Shoal as Regime[s] of Islands under the Republic of the
Philippines consistent with Article 12136 of UNCLOS III manifests the
Philippine States responsible observance of its pacta sunt servanda obligation
under UNCLOS III. Under Article 121 of UNCLOS III, any naturally formed
area of land, surrounded by water, which is above water at high tide, such as
portions of the KIG, qualifies under the category of regime of islands, whose
islands generate their own applicable maritime zones.37
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize
the Philippines claim over Sabah in North Borneo is also untenable. Section 2
of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing
the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of
the baselines of the territorial sea around the territory of Sabah, situated in
North Borneo, over which the Republic of the Philippines has acquired
dominion and sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitutions
Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend
that the law unconstitutionally converts internal waters into archipelagic
waters, hence subjecting these waters to the right of innocent and sea lanes
passage under UNCLOS III, including overflight. Petitioners extrapolate that
these passage rights indubitably expose Philippine internal waters to nuclear
and maritime pollution hazards, in violation of the Constitution.38
Whether referred to as Philippine internal waters under Article I of the
Constitution39 or as archipelagic waters under UNCLOS III (Article 49 [1]),
the Philippines exercises sovereignty over the body of water lying landward of
the baselines, including the air space over it and the submarine areas
underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over
archipelagic waters and of their bed and subsoil.
1. The sovereignty of an archipelagic State extends to the waters enclosed by
the archipelagic baselines drawn in accordance with article 47, described as
archipelagic waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as
well as to their bed and subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall
not in other respects affect the status of the archipelagic waters, including the
sea lanes, or the exercise by the archipelagic State of its sovereignty over such
waters and their air space, bed and subsoil, and the resources contained
therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal
and international law norms subjecting the territorial sea or archipelagic waters
to necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation, consistent with the international law
principle of freedom of navigation. Thus, domestically, the political branches
of the Philippine government, in the competent discharge of their
constitutional powers, may pass legislation designating routes within the
archipelagic waters to regulate innocent and sea lanes passage.40 Indeed, bills
drawing nautical highways for sea lanes passage are now pending in
Congress.41
In the absence of municipal legislation, international law norms, now codified
in UNCLOS III, operate to grant innocent passage rights over the territorial sea
or archipelagic waters, subject to the treatys limitations and conditions for their
exercise.42 Significantly, the right of innocent passage is a customary
international law,43 thus automatically incorporated in the corpus of Philippine
law.44 No modern State can validly invoke its sovereignty to absolutely forbid
innocent passage that is exercised in accordance with customary international
law without risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to
both the right of innocent passage and sea lanes passage45 does not place them
in lesser footing vis--vis continental coastal States which are subject, in their
territorial sea, to the right of innocent passage and the right of transit passage
through international straits. The imposition of these passage rights through
archipelagic waters under UNCLOS III was a concession by archipelagic
States, in exchange for their right to claim all the waters landward of their
baselines, regardless of their depth or distance from the coast, as archipelagic
waters subject to their territorial sovereignty. More importantly, the
recognition of archipelagic States archipelago and the waters enclosed by their
baselines as one cohesive entity prevents the treatment of their islands as
separate islands under UNCLOS III.46 Separate islands generate their own
maritime zones, placing the waters between islands separated by more than 24
nautical miles beyond the States territorial sovereignty, subjecting these waters
to the rights of other States under UNCLOS III.47
Petitioners invocation of non-executory constitutional provisions in Article II
(Declaration of Principles and State Policies)48 must also fail. Our present
state of jurisprudence considers the provisions in Article II as mere legislative
guides, which, absent enabling legislation, do not embody judicially
enforceable constitutional rights x x x.49 Article II provisions serve as guides
in formulating and interpreting implementing legislation, as well as in
interpreting executory provisions of the Constitution. Although Oposa v.
Factoran50 treated the right to a healthful and balanced ecology under Section
16 of Article II as an exception, the present petition lacks factual basis to
substantiate the claimed constitutional violation. The other provisions
petitioners cite, relating to the protection of marine wealth (Article XII,
Section 2, paragraph 251) and subsistence fishermen (Article XIII, Section
752), are not violated by RA 9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation
of all living and non-living resources within such zone. Such a maritime
delineation binds the international community since the delineation is in strict
observance of UNCLOS III. If the maritime delineation is contrary to
UNCLOS III, the international community will of course reject it and will
refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS
III creates a sui generis maritime space the exclusive economic zone in waters
previously part of the high seas. UNCLOS III grants new rights to coastal
States to exclusively exploit the resources found within this zone up to 200
nautical miles.53 UNCLOS III, however, preserves the traditional freedom of
navigation of other States that attached to this zone beyond the territorial sea
before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III,
Congress was not bound to pass RA 9522.54 We have looked at the relevant
provision of UNCLOS III55 and we find petitioners reading plausible.
Nevertheless, the prerogative of choosing this option belongs to Congress, not
to this Court. Moreover, the luxury of choosing this option comes at a very
steep price. Absent an UNCLOS III compliant baselines law, an archipelagic
State like the Philippines will find itself devoid of internationally acceptable
baselines from where the breadth of its maritime zones and continental shelf is
measured. This is recipe for a two-fronted disaster: first, it sends an open
invitation to the seafaring powers to freely enter and exploit the resources in
the waters and submarine areas around our archipelago; and second, it
weakens the countrys case in any international dispute over Philippine
maritime space. These are consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine
archipelago and adjacent areas, as embodied in RA 9522, allows an
internationally-recognized delimitation of the breadth of the Philippines
maritime zones and continental shelf. RA 9522 is therefore a most vital step on
the part of the Philippines in safeguarding its maritime zones, consistent with
the Constitution and our national interest.
WHEREFORE, we DISMISS the petition.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice