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Aerial Incident of 27 July 1955 (Israel v. Bulgaria)

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Summary of the Summary of the Judgment of 26 May 1959
CASE CONCERNING THE AERIAL INCIDENT OF 27 JULY 1955
(ISRAEL v. BULGARIA) (PRELIMINARY OBJECTIONS)

Judgment of 26 May 1959

The case concerning the aerial incident of July 27th, 1955 (Israel v. Bulgaria), was submitted to the Court by an Application of the
Government of Israel, on October 16th, 1957, relating to a dispute which had arisen with regard to the destruction, on July 27th, 1955, by
the Bulgarian anti-aircraft defence forces, of an aircraft belonging to El Al Israel Airlines Ltd. The Application invoked Article 36 of the
Statute of the Court and the acceptance of the compulsory jurisdiction of the Court by Israel, on the one hand in its Declaration of 1956
replacing that of 1950, and by Bulgaria, on the other hand, in 1921. The Bulgarian Government had filed Preliminary Objections to the
jurisdiction of the Court.
The Court upheld the first of these objections, according to which the Declaration accepting the compulsory jurisdiction of the
Permanent Court of International Justice made by Bulgaria in 1921 cannot be regarded as constituting an acceptance of the compulsory
jurisdiction of the International Court of Justice. It therefore declared itself to be without jurisdiction.
*
**
In its Judgment, the Court first considered the First Preliminary Objection by Bulgaria.
In order to find the basis for the jurisdiction of the Court, the Government of Israel invoked the Declaration of acceptance of compulsory
jurisdiction signed by Bulgaria in 1921, at the same time as Protocol of Signature of the Statute of the Permanent Court of International
Justice, and Article 36, paragraph 5, of the Statute of the International Court of Justice, which reads as follows:
"Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are skill in force shall be
deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of
Justice for the period which they still have to run and in accordance with their terms."
To justify the application of the latter provision to the Bulgarian Declaration of 1921, the Government of Israel relied on the fact that
Bulgaria became a party to the Statute of the International Court of Justice on December 14th, 1955, as the result of its admission to the
United Nations. The Bulgarian Government denied that Article 36, paragraph 5, transferred the effect of its Declaration to the
jurisdiction of the International Court of Justice.
The Court had to determine whether Article 36, paragraph 5, is applicable to the Bulgarian Declaration. That it should apply in respect of
declarations made by States which were represented at the San Francisco Conference and were signatories of the Charter and of the
Statute can easily be understood. But is this provision meant also to cover declarations made by other States, including Bulgaria? The
text does not say so explicitly.
The Court observes that at the time of the adoption of the Statute a fundamental difference existed between the position of the signatory
States and of the other States which might subsequently be admitted to the United Nations. This difference derived from the situation
which Article 36, paragraph 5, was meant to regulate, namely, the transfer to the International Court of Justice of declarations relating to
the Permanent Court, which was on the point of disappearing. The question which the signatory States were easily able to resolve as
between themselves at that time would arise in a quite different form in the future as regards the other States.
Article 36, paragraph 5, considered in its application to States signatories of the Statute, effected a simple operation. The position would
have been quite different in respect of declarations by non-signatory States. For the latter, such a transfer must necessarily involve two
distinct operations, which might be separated by a considerable interval of time. On the one hand, old declarations would have had to
have been preserved with immediate effect; on the other hand, they would have had to be transferred to the jurisdiction of the new Court.
In addition to this fundamental difference in respect of the factors of the problem, there were special difficulties in resolving it in respect
of acceptances by non-signatory States. In the case of signatory States, Article 36 paragraph 5, maintained an existing obligation while
modifying its subject-matter. So far as non-signatory States were concerned, the Statute, in the absence of their consent, could neither
maintain nor transform their original obligation. Shortly after the entry into force of the Statute, the dissolution of the Permanent Court
freed them from that obligation. Accordingly, the question of a transformation of an existing obligation could no longer arise so far as
they were concerned; all that could be envisaged in their case was the creation of a new obligation binding upon them. To extend Article
36, paragraph 5, to those States would be to allow that provision to do in their case something quite different from what it did in the case
of signatory States. It is true that the States represented at San Francisco could have made an offer addressed to other States, for instance,
an offer to consider their acceptance of the compulsory jurisdiction of the Permanent Court as an acceptance of the jurisdiction of the
new Court, but there is nothing of this kind in Article 36, paragraph 5.
To restrict the application of this provision to the signatory States is to take into account the purpose for which it was adopted. At the
time of its adoption, the impending dissolution of the Permanent Court and, in consequence, the lapsing of acceptances of its compulsory
jurisdiction were in contemplation. Rather than expecting that the signatory States of the new Statute would deposit new declarations of
acceptance, it was sought to provide for this transitory situation by a transitional provision. The situation is entirely different when, the
old Court and the acceptance of its compulsory jurisdiction having long since disappeared, a State becomes party to the Statute of the
new Court. To the extent that the records of the San Francisco Conference provide any indication as to the scope of the application of
Article 36, paragraph 5, they confirm that this paragraph was intended to deal with declarations of signatory States only and not with a
State in the situation of Bulgaria.
However, the Government of Israel construed Article 36, paragraph 5, as covering a declaration made by a State which had not
participated in the San Francisco Conference and which only became a party to the Statute of the International Court of Justice much
later.
The Court, considering the matter from this angle also, found that Article 36, paragraph 5, could not in any event be operative as regards
Bulgaria until the date of its admission to the United Nations, namely, December 14th, 1955. At that date, however, the Declaration of
1921 was no longer in force in consequence of the dissolution of the Permanent Court in 1946. The acceptance set out in that Declaration
of the compulsory jurisdiction of the Permanent Court was devoid of object, since that Court was no longer in existence. And there is
nothing in Article 36, paragraph 5, to reveal any intention of preserving all the declarations which were in existence at the time of the
signature or entry into force of the Charter, regardless of the moment when a State having made a declaration became a party to the
Statute. The provision determines, in respect of a State to which it applies, the birth of the compulsory jurisdiction of the new Court. It
makes it subject to two conditions: (1) that the State having made the declaration should be a party to the Statute, (2) that the declaration
of that State should still be in force. Since the Bulgarian Declaration had lapsed before Bulgaria was admitted to the United Nations, it
cannot be said that at that time that Declaration was still in force. The second condition is therefore not satisfied in the present case.
Thus the Court finds that Article 36, paragraph 5, is not applicable to the Bulgarian Declaration of 1921. This view is confirmed by the
fact that it was the clear intention inspiring Article 36, paragraph 5, to preserve existing acceptances and not to restore legal force to
undertakings which had expired. On the other hand, in seeking and obtaining admission to the United Nations, Bulgaria accepted all the
provisions of the Statute, including Article 36. But Bulgaria's acceptance of Article 36, paragraph 5, does not constitute consent to the
compulsory jurisdiction of the Court, such consent can validly be given only in accordance with Article 36, paragraph 2.
Article 36, paragraph 5, cannot therefore lead the Court to find that the Bulgarian Declaration of 1921 provides a basis for its jurisdiction
to deal with the case. In these circumstances it is unnecessary for the Court to proceed to consideration of the other Bulgarian
Preliminary Objections.
*
**
Consequently, the Court finds, by twelve votes to four, that it is without jurisdiction to adjudicate upon the dispute brought before it by
the Application of the Government of Israel.
Vice-President Zafrulla Khan has appended a Declaration to the Judgment. Judges Badawi and Armand-Ugon have appended statements
of their Separate Opinions. Judges Sir Hersch Lauterpacht, Wellington Koo and Sir Percy Spender have appended to the Judgment a
statement of their Joint Dissenting Opinion. Judge ad hoc Goitein has appended to the Judgment a statement of his Dissenting Opinion.
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Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United


States of America)

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Summary of the Summary of the Judgment of 27 June 1986
CASE CONCERNING THE MILITARY AND PARAMILITARY ACTIVITIES
IN AND AGAINST NICARAGUA (NICARAGUA v. UNITED STATES OF AMERICA)
(MERITS)

Judgment of 27 June 1986

For its judgment on the merits in the case concerning military and Paramilitary Activities in and against Nicaragua brought by Nicaragua
against the United States of America, the Court was composed as follows:
President Nagendra Singh, Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Schwebel, Sir Robert
Jennings, Mbaye, Bedjaoui, Ni, Evensen, Judge ad hoc Colliard
*
**
OPERATIVE PART OF THE COURT'S JUDGMENT
THE COURT
(1) By eleven votes to four,
Decides that in adjudicating the dispute brought before it by the Application filed by the Republic of Nicaragua on 9 April 1984, the
Court is required to apply the "multilateral treaty reservation"contained in proviso (c) to the declaration of acceptance of jurisdiction
made under Article 36, paragraph 2, of the Statute of the Court by the Government of the Untied States of America deposited on
26 August 1946;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire; Judges Lachs, Oda, Ago, Schwebel, Sir Robert Jennings,
Mbaye, Bedjaoui and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Ruda, Elias, Sette-Camara and Ni.
(2) By twelve votes to three,
Rejects the justification of collective self-defence maintained by the United States of America in connection with the military and
paramilitary activities in and against Nicaragua the subject of this case;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(3) By twelve votes to three,
Decides that the United States of America, by training, arming, equipping, financing and supplying the contra forces or otherwise
encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of
Nicaragua, in breach of its obligation under customary international law not to intervene in the affairs of another State;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(4) By twelve votes to three,
Decides that the United States of America, by certain attacks on Nicaraguan territory in 1983-1984, namely attacks on Puerto Sandino on
13 September and 14 October 1983, an attack on Corinto on 10 October 1983; an attack on Potosi Naval Base on 4/5 January 1984, an
attack on San Juan del Sur on 7 March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March 1984; and an attack on San
Juan del Norte on 9 April 1984; and further by those acts of intervention referred to in subparagraph (3) hereof which involve the use of
force, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to use force against
another State;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(5) By twelve votes to three,
Decides that the United States of America, by directing or authorizing over Rights of Nicaraguan territory, and by the acts imputable to
the United States referred to in subparagraph (4) hereof, has acted, against the Republic of Nicaragua, in breach of its obligation under
customary international law not to violate the sovereignty of another State;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(6) By twelve votes to three,
Decides that, by laying mines in the internal or territorial waters of the Republic of Nicaragua during the first months of 1984, the United
States of America has acted, against the Republic of Nicaragua, in breach of its obligations under customary international law not to use
force against another State, not to intervene in its affairs, not to violate its sovereignty and not to interrupt peaceful maritime commerce;
IN FAVOUR: President Nagendra Singh, Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(7) By fourteen votes to one,
Decides that, by the acts referred to in subparagraph (6) hereof the United States of America has acted, against the Republic of
Nicaragua, in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the United
States of America and the Republic of Nicaragua signed at Managua on 21 January 1956;
IN FAVOUR: President Nagendra Singh, Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir
Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judge Schwebel.
(8) By fourteen votes to one,
Decides that the United States of America, by failing to make known the existence and location of the mines laid by it, referred to in
subparagraph (6) hereof, has acted in breach of its obligations under customary international law in this respect;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire, Judges Lachs, Ruda, Elias, Ago, Sette Camara, Schwebel, Sir
Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judge Oda.
(9) By fourteen votes to one,
Finds that the United States of America, by producing in 1983 a manual entitled "Operaciones sicolgicas en guerra de guerrillas", and
disseminating it to contra forces, has encouraged the commission by them of acts contrary to general principles of humanitarian law; but
does not find a basis for concluding that any such acts which may have been committed are imputable to the United States of America as
acts of the United States of America;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette Camara, Schwebel, Sir
Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judge Oda.
(10) By twelve votes to three,
Decides that the United States of America, by the attacks on Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring
a general embargo on trade with Nicaragua on 1 May 1985, has committed acts calculated to deprive of its object and purpose the Treaty
of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(11) By twelve votes to three,
Decides that the United States of America, by the attacks on Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring
a general embargo on trade with Nicaragua on 1 May 1985, has acted in breach of its obligations under Article XIX of the Treaty of
Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(12) By twelve votes to three,
Decides that the United States of America is under a duty immediately to cease and to refrain from all such acts as may constitute
breaches of the foregoing legal obligations;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(13) By twelve votes to three,
Decides that the United States of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to
Nicaragua by the breaches of obligations under customary international law enumerated above;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
(14) By fourteen votes to one,
Decides that the United States of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to
Nicaragua by the breaches of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January
1956;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir
Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judge Schwebel.
(15) By fourteen votes to one,
Decides that the form and amount of such reparation, failing agreement between the Parties, will be settled by the Court, and reserves for
this purpose the subsequent procedure in the case;
IN FAVOUR: President Nagendra Singh; Vice-President de Lacharrire; Judges Lachs, Ruda, Elias, Oda, Ago, Sette Camara, Sir
Robert Jennings, Mbaye, Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judge Schwebel.
(16) Unanimously,
Recalls to both Parties their obligation to seek a solution to their disputes by peaceful means in accordance with international law.
SUMMARY OF THE JUDGMENT
I. Qualits (paras. 1 to 17)
II. Background to the dispute (paras. 18-25)
III. The non-appearance of the Respondent and Article 53 of the Statute (paras. 26-31)
The Court recalls that subsequent to the delivery of its Judgment of 26 November 1984 on the jurisdiction of the Court and the
admissibility of Nicaragua's Application, the United States decided not to take part in the present phase of the proceedings. This however
does not prevent the Court from giving a decision in the case, but it has to do so while respecting the requirements of Article 53 of the
Statute, which provides for the situation when one of the parties does not appear. The Court's jurisdiction being established, it has in
accordance with Article 53 to satisfy itself that the claim of the party appearing is well founded in fact and law. In this respect the Court
recalls certain guiding principles brought out in a number of previous cases, one of which excludes any possibility of a judgment
automatically in favour of the party appearing. It also observes that it is valuable for the Court to know the views of the non-appearing
party, even if those views are expressed in ways not provided for in the Rules of Court. The principle of the equality of the parties has to
remain the basic principle, and the Court has to ensure that the party which declines to appear should not be permitted to profit from its
absence.
IV. Justiciability of the dispute (paras. 32-35)
The Court considers it appropriate to deal with a preliminary question. It has been suggested that the questions of the use of force and
collective self-defence raised in the case fall outside the limits of the kind of questions the Court can deal with, in other words that they
are not justiciable. However, in the first place the Parties have not argued that the present dispute is not a "legal dispute" within the
meaning of Article 36, paragraph 2, of the Statute, and secondly, the Court considers that the case does not necessarily involve it in
evaluation of political or military matters, which would be to overstep proper judicial bounds. Consequently, it is equipped to determine
these problems.
V. The significance of the multilateral treaty reservation (paras. 36-56)
The United States declaration of acceptance of the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute
contained a reservation excluding from operation of the declaration
"disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before
the Court, or (2) the United States of America specially agrees to jurisdiction".
In its Judgment of 26 November 1984 the Court found, on the basis of Article 79, paragraph 7, of the Rules of Court, that the objection to
jurisdiction based on the reservation raised "a question concerning matters of substance relating to the merits of the case" and that the
objection did "not possess, in the circumstances of the case, an exclusively preliminary character". Since it contained both preliminary
aspects and other aspects relating to the merits, it had to be dealt with at the stage of the merits.
In order to establish whether its jurisdiction were limited by the effect of the reservation in question, the Court has to ascertain whether
any third States, parties to the four multilateral treaties invoked by Nicaragua, and not parties to the proceedings, would be "affected" by
the Judgment. Of these treaties, the Court considers it sufficient to examine the position under the United Nations Charter and the
Charter of the Organization of American States.
The Court examines the impact of the multilateral treaty reservation on Nicaragua's claim that the United States has used force in breach
of the two Charters. The Court examines in particular the case of El Salvador, for whose benefit primarily the United States claims to be
exercising the right of collective self-defence which it regards as a justification of its own conduct towards Nicaragua, that right being
endorsed by the United Nations Charter (Art. 51) and the OAS Charter (Art. 21). The dispute is to this extent a dispute "arising under"
multilateral treaties to which the United States, Nicaragua and El Salvador are Parties. It appears clear to the Court that El Salvador
would be "affected" by the Court's decision on the lawfulness of resort by the United States to collective self-defence.
As to Nicaragua's claim that the United States has intervened in its affairs contrary to the OAS Charter (Art. 18) the Court observes that
it is impossible to say that a ruling on the alleged breach of the Charter by the United States would not "affect" El Salvador.
Having thus found that El Salvador would be "affected" by the decision that the Court would have to take on the claims of Nicaragua
based on violation of the two Charters by the United States, the Court concludes that the jurisdiction conferred on it by the United States
declaration does not permit it to entertain these claims. It makes it clear that the effect of the reservation is confined to barring the
applicability of these two multilateral treaties as multilateral treaty law, and has no further impact on the sources of international law
which Article 38 of the Statute requires the Court to apply, including customary international law.
VI. Establishment of the facts: evidence and methods employed by the Court (paras. 57-74)
The Court has had to determine the facts relevant to the dispute. The difficulty of its task derived from the marked disagreement between
the Parties, the non-appearance of the Respondent, the secrecy surrounding certain conduct, and the fact that the conflict is continuing.
On this last point, the Court takes the view, in accordance with the general principles as to the judicial process, that the facts to be taken
into account should be those occurring up to the close of the oral proceedings on the merits of the case (end of September 1985).
With regard to the production of evidence, the Court indicates how the requirements of its Statute - in particular Article 53 - and the
Rules of Court have to be met in the case, on the basis that the Court has freedom in estimating the value of the various elements of
evidence. It has not seen fit to order an enquiry under Article 50 of the Statute. With regard to certain documentary material (press
articles and various books), the Court has treated these with caution. It regards than not as evidence capable of proving facts, but as
material which can nevertheless contribute to corroborating the existence of a fact and be taken into account to show whether certain
facts are matters of public knowledge. With regard to statements by representatives of States, sometimes at the highest level, the Court
takes the view that such statements are of particular probative value when they acknowledge facts or conduct unfavourable to the State
represented by the person who made them. With regard to the evidence of witnesses presented by Nicaragua - five witnesses gave oral
evidence and another a written affidavit-one consequence of the absence of the Respondent was that the evidence of the witnesses was
not tested by cross-examination. The Court has not treated as evidence any part of the testimony which was a mere expression of opinion
as to the probability or otherwise of the existence of a fact not directly known to the witness. With regard in particular to affidavits and
sworn statements made by members of a Government, the Court considers that it can certainly retain such parts of this evidence as may
be regarded as contrary to the interests or contentions of the State to which the witness has allegiance; for the rest such evidence has to
be treated with great reserve.
The Court is also aware of a publication of the United States State Department entitled "Revolution Beyond Our Borders, Sandinista
Intervention in Central America" which was not submitted to the Court in any form or manner contemplated by the Statute and Rules of
Court. The Court considers that, in view of the special circumstances of this case, it may, within limits, make use of information in that
publication.
VII. The facts imputable to the United States (paras. 75 to 125)
1. The Court examines the allegations of Nicaragua that the mining of Nicaraguan ports or waters was carried out by United States
military personnel or persons of the nationality of Latin American countries in the pay of the United States. After examining the facts,
the Court finds it established that, on a date in late 1983 or early 1984, the President of the United States authorized a United States
Government agency to lay mines in Nicaraguan ports, that in early 1984 mines were laid in or close to the ports of El Bluff, Corinto and
Puerto Sandino, either in Nicaraguan internal waters or in its territorial sea or both, by persons in the pay and acting on the instructions of
that agency, under the supervision and with the logistic support of United States agents; that neither before the laying of the mines, nor
subsequently, did the United States Government issue any public and official warning to international shipping of the existence and
location of the mines; and that personal and material injury was caused by the explosion of the mines, which also created risks causing a
rise in marine insurance rates.
2. Nicaragua attributes to the direct action of United States personnel, or persons in its pay, operations against oil installations, a naval
base, etc., listed in paragraph 81 of the Judgment. The Court finds all these incidents, except three, to be established. Although it is not
proved that any United States military personnel took a direct part in the operations, United States agents participated in the planning,
direction and support. The imputability to the United States of these attacks appears therefore to the Court to be established.
3. Nicaragua complains of infringement of its air space by United States military aircraft. After indicating the evidence available, the
Court finds that the only violations of Nicaraguan air space imputable to the United States on the basis of the evidence are high altitude
reconnaissance flights and low altitude flights on 7 to 11 November 1984 causing "sonic booms".
With regard to joint military manoeuvres with Honduras carried out by the United States on Honduran territory near the
Honduras/Nicaragua frontier, the Court considers that they may be treated as public knowledge and thus sufficiently established.
4. The Court then examines the genesis, development and activities of the contra force, and the role of the United States in relation to it.
According to Nicaragua, the United States "conceived, created and organized a mercenary army, the contra force". On the basis of the
available information, the Court is not able to satisfy itself that the Respondent State "created" the contra force in Nicaragua, but holds it
established that it largely financed, trained, equipped, armed and organized the FDN, one element of the force.
It is claimed by Nicaragua that the United States Government devised the strategy and directed the tactics of the contra force, and
provided direct combat support for its military operations. In the light of the evidence and material available to it, the Court is not
satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics solely devised by
the United States. It therefore cannot uphold the contention of Nicaragua on this point. The Court however finds it clear that a number of
operations were decided and planned, if not actually by the United States advisers, then at least in close collaboration with them, and on
the basis of the intelligence and logistic support which the United States was able to offer. It is also established in the Court's view that
the support of the United States for the activities of the contras took various forms over the years, such as logistic support the supply of
information on the location and movements of the Sandinista troops, the use of sophisticated methods of communication, etc. The
evidence does not however warrant a finding that the United States gave direct combat support, if that is taken to mean direct
intervention by United States combat forces.
The Court has to determine whether the relationship of the contras to the United States Government was such that it would be right to
equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government. The
Court considers that the evidence available to it is insufficient to demonstrate the total dependence of the contras on United States aid. A
partial dependency, the exact extent of which the Court cannot establish, may be inferred from the fact that the leaders were selected by
the United States, and from other factors such as the organisation, training and equipping of the force, planning of operations, the
choosing of targets and the operational support provided. There is no clear evidence that the United States actually exercised such a
degree of control as to justify treating the contras as acting on its behalf.
5. Having reached the above conclusion, the Court takes the view that the contras remain responsible for their acts, in particular the
alleged violations by them of humanitarian law. For the United States to be legally responsible, it would have to be proved that that State
had effective control of the operations in the course of which the alleged violations were committed.
6. Nicaragua has complained of certain measures of an economic nature taken against it by the Government of the United States, which
it regards as an indirect form of intervention in its internal affairs. Economic aid was suspended in January 1981, and terminated in April
1981; the United States acted to oppose or block loans to Nicaragua by international financial bodies; the sugar import quota from
Nicaragua was reduced by 90 percent in September 1983; and a total trade embargo on Nicaragua was declared by an executive order of
the President of the United States on 1 May 1985.
VIII. The conduct of Nicaragua (paras. 126-171)
The Court has to ascertain, so far as possible, whether the activities of the United States complained of, claimed to have been the exercise
of collective self-defence, may be justified by certain facts attributable to Nicaragua.
1. The United States has contended that Nicaragua was actively supporting armed groups operating in certain of the neighbouring
countries, particularly in El Salvador, and specifically in the form of the supply of arms, an accusation which Nicaragua has repudiated.
The Court first examines the activity of Nicaragua with regard to El Salvador.
Having examined various evidence, and taking account of a number of concordant indications, many of which were provided by
Nicaragua itself, from which the Court can reasonably infer the provision of a certain amount of aid from Nicaraguan territory, the Court
concludes that support for the armed opposition in El Salvador from Nicaraguan territory was a fact up to the early months of 1981.
Subsequently, evidence of military aid from or through Nicaragua remains very weak, despite the deployment by the United States in the
region of extensive technical monitoring resources. The Court cannot however conclude that no transport of or traffic in arms existed. It
merely takes note that the allegations of arms traffic are not solidly established, and has not been able to satisfy itself that any continuing
flow on a significant scale took place after the early months of 1981.
Even supposing it were established that military aid was reaching the armed opposition in El Salvador from the territory of Nicaragua, it
skill remains to be proved that such aid is imputable to the authorities of Nicaragua, which has not sought to conceal the possibility of
weapons crossing its territory, but denies that this is the result of any deliberate official policy on its part. Having regard to the
circumstances characterizing this part of Central America, the Court considers that it is scarcely possible for Nicaragua's responsibility
for arms traffic on its territory to be automatically assumed. The Court considers it more consistent with the probabilities to recognize
that an activity of that nature, if on a limited scale, may very well be pursued unknown to the territorial government. In any event the
evidence is insufficient to satisfy the Court that the Government of Nicaragua was responsible for any flow of arms at either period.
2. The United States has also accused Nicaragua of being responsible for cross-border military attacks on Honduras and Costa Rica.
While not as fully informed on the question as it would wish to be, the Court considers as established the fact that certain trans-border
military incursions are imputable to the Government of Nicaragua.
3. The Judgment recalls certain events which occurred at the time of the fall of President Somoza, since reliance has been placed on them
by the United States to contend that the present Government of Nicaragua is in violation of certain alleged assurances given by its
immediate predecessor. The Judgment refers in particular to the "Plan to secure peace" sent on 12 July 1979 by the "Junta of the
Government of National Reconstruction" of Nicaragua to the Secretary-General of the OAS, mentioning, inter alia, its "firm intention to
establish full observance of human rights in our country" and "to call the first free elections our country has known in this century". The
United States considers that it has a special responsibility regarding the implementation of these commitments.
IX. The applicable law: customary international law (paras. 172-182)
The Court has reached the conclusion (section V, in fine) that it has to apply the multilateral treaty reservation in the United States
declaration, the consequential exclusion of multilateral treaties being without prejudice either to other treaties or other sources of law
enumerated in Article 38 of the Statute. In order to determine the law actually to be applied to the dispute, it has to ascertain the
consequences of the exclusion of the applicability of the multilateral treaties for the definition of the content of the customary
international law which remains applicable.
The Court, which has already commented briefly on this subject in the jurisdiction phase (I.C.J. Reports 1984, pp. 424 and 425, para.
73), develops its initial remarks. It does not consider that it can be claimed, as the United States does, that all the customary rules which
may be invoked have a content exactly identical to that of the rules contained in the treaties which cannot be applied by virtue of the
United States reservation. Even if a treaty norm and a customary norm relevant to the present dispute were to have exactly the same
content, this would not be a reason for the Court to take the view that the operation of the treaty process must necessarily deprive the
customary norm of its separate applicability. Consequently, the Court is in no way bound to uphold customary rules only in so far as they
differ from the treaty rules which it is prevented by the United States reservation from applying.
In response to an argument of the United States, the Court considers that the divergence between the content of the customary norms and
that of the treaty law norms is not such that a judgment confined to the field of customary international law would not be susceptible of
compliance or execution by the parties.
X. The content of the applicable law (paras. 183 to 225)
1. Introduction: general observations (paras. 183-186)
The Court has next to consider what are the rules of customary law applicable to the present dispute. For this purpose it has to consider
whether a customary rule exists in the opinio juris of States,and satisfy itself that it is confirmed by practice.
2. The prohibition of the use of force, and the right of self-defence (paras. 187 to 201)
The Court finds that both Parties take the view that the principles as to the use of force incorporated in the United Nations Charter
correspond, in essentials, to those found in customary international law. They therefore accept a treaty-law obligation to refrain in their
international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other
manner inconsistent with the purposes of the United Nations (Art. 2, para. 4, of the Charter). The Court has however to be satisfied that
there exists in customary law an opinio juris as to the binding character of such abstention. It considers that this opinio juris may be
deduced from, inter alia, the attitude of the Parties and of States towards certain General Assembly resolutions, and particularly
resolution 2625 (XXV) entitled "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among
States in Accordance with the Charter of the United Nations". Consent to such resolutions is one of the forms of expression of an opinio
juris with regard to the principle of non-use of force, regarded as a principle of customary international law, independently of the
provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter.
The general rule prohibiting force established in customary law allows for certain exceptions. The exception of the right of individual or
collective self-defence is also, in the view of States, established in customary law, as is apparent for example from the terms of Article 51
of the United Nations Charter, which refers to an "inherent right", and from the declaration in resolution 2625 (XXV). The Parties, who
consider the existence of this right to be established as a matter of customary international law, agree in holding that whether the
response to an attack is lawful depends on the observance of the criteria of the necessity and the proportionality of the measures taken in
self-defence.
Whether self-defence be individual or collective, it can only be exercised in response to an "armed attack". In the view of the Court, this
is to be understood as meaning not merely action by regular armed forces across an international border, but also the sending by a State
of armed bands on to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an
armed attack had it been carried out by regular armed forces. The Court quotes the definition of aggression annexed to General Assembly
resolution 3314 (XXIX) as expressing customary law in this respect.
The Court does not believe that the concept of "armed attack" includes assistance to rebels in the form of the provision of weapons or
logistical or other support. Furthermore, the Court finds that in customary international law, whether of a general kind or that particular
to the inter-American legal system, there is no rule permitting the exercise of collective self-defence in the absence of a request by the
State which is a victim of the alleged attack, this being additional to the requirement that the State in question should have declared itself
to have been attacked.
3. The principle of non-intervention (paras. 202 to 209)
The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference.
Expressions of an opinio juris of States regarding the existence of this principle are numerous. The Court notes that this principle, stated
in its own jurisprudence, has been reflected in numerous declarations and resolutions adopted by international organizations and
conferences in which the United States and Nicaragua have participated. The text thereof testifies to the acceptance by the United States
and Nicaragua of a customary principle which has universal application. As to the content of the principle in customary law, the Court
defines the constitutive elements which appear relevant in this case: a prohibited intervention must be one bearing on matters in which
each State is permitted, by the principle of State sovereignty, to decide freely (for example the choice of a political, economic, social and
cultural system, and formulation of foreign policy). Intervention is wrongful when it uses, in regard to such choices, methods of
coercion, particularly force, either in the direct form of military action or in the indirect form of support for subversive activities in
another State.
With regard to the practice of States, the Court notes that there have been in recent years a number of instances of foreign intervention in
one State for the benefit of forces opposed to the government of that State. It concludes that the practice of States does not justify the
view that any general right of intervention in support of an opposition within another State exists in contemporary international law; and
this is in fact not asserted either by the United States or by Nicaragua.
4. Collective counter-measures in response to conduct not amounting to armed attack (paras. 210 and 211)
The Court then considers the question whether, if one State acts towards another in breach of the principle of non-intervention, a third
State may lawfully take action by way of counter-measures which would amount to an intervention in the first State's internal affairs.
This would be analogous to the right of self-defence in the case of armed attack, but the act giving rise to the reaction would be less
grave, not amounting to armed attack. In the view of the Court, under international law in force today, States do not have a right of
"collective" armed response to acts which do not constitute an "armed attack".
5. State sovereignty (paras. 212 to 214)
Turning to the principle of respect for State sovereignty, the Court recalls that the concept of sovereignty, both in treaty-law and in
customary international law, extends to the internal waters and territorial sea of every State and to the airspace above its territory. It notes
that the laying of mines necessarily affects the sovereignty of the coastal State, and that if the right of access to ports is hindered by the
laying of mines by another State, what is infringed is the freedom of communications and of maritime commerce.
6. Humanitarian law (paras. 215 to 220)
The Court observes that the laying of mines in the waters of another State without any warning or notification is not only an unlawful act
but also a breach of the principles of humanitarian law underlying the Hague Convention No. VIII of 1907. This consideration leads the
Court on to examination of the international humanitarian law applicable to the dispute. Nicaragua has not expressly invoked the
provisions of international humanitarian law as such, but has complained of acts committed on its territory which would appear to be
breaches thereof. In its submissions it has accused the United States of having killed, wounded and kidnapped citizens of Nicaragua.
Since the evidence available is insufficient for the purpose of attributing to the United States the acts committed by the contras, the Court
rejects this submission.
The question however remains of the law applicable to the acts of the United States in relation to the activities of the contrast Although
Nicaragua has refrained from referring to the four Geneva Conventions of 12 August 1949, to which Nicaragua and the United States are
parties, the Court considers that the rules stated in Article 3, which is common to the four Conventions, applying to armed conflicts of a
non-international character, should be applied. The United States is under an obligation to "respect" the Conventions and even to "ensure
respect" for them, and thus not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions
of Article 3. This obligation derives from the general principles of humanitarian law to which the Conventions merely give specific
expression.
7. The 1956 treaty (paras. 221 to 225)
In its Judgment of 26 November 1984, the Court concluded that it had jurisdiction to entertain claims concerning the existence of a
dispute between the United States and Nicaragua as to the interpretation or application of a number of articles of the treaty of Friendship,
Commerce and Navigation signed at Managua on 21 January 1956. It has to determine the meaning of the various relevant provisions,
and in particular of Article XXI, paragraphs I (c) and I (d), by which the parties reserved the power to derogate from the other provisions.
XI. Application of the law to the facts (paras. 226 to 282)
Having set out the facts of the case and the rules of international law which appear to be in issue as a result of those facts, the Court has
now to appraise the facts in relation to the legal rules applicable, and determine whether there are present any circumstances excluding
the unlawfulness of particular acts.
1. The prohibition of the use of force and the right of self-defence (paras. 227 to 238)
Appraising the facts first in the light of the principle of the non-use of force, the Court considers that the laying of mines in early 1984
and certain attacks on Nicaraguan ports, oil installations and naval bases, imputable to the United States constitute infringements of this
principle, unless justified by circumstances which exclude their unlawfulness. It also considers that the United States has committed a
prima facie violation of the principle by arming and training the contras, unless this can be justified as an exercise of the right of self-
defence.
On the other hand, it does not consider that military manoeuvres held by the United States near the Nicaraguan borders, or the supply of
funds to the contras, amounts to a use of force.
The Court has to consider whether the acts which it regards as breaches of the principle may be justified by the exercise of the right of
collective self-defence, and has therefore to establish whether the circumstances required are present. For this, it would first have to find
that Nicaragua engaged in an armed attack against El Salvador, Honduras or Costa Rica, since only such an attack could justify reliance
on the right of self-defence. As regards El Salvador, the Court considers that in customary international law the provision of arms to the
opposition in another State does not constitute an armed attack on that State. As regards Honduras and Costa Rica, the Court states that,
in the absence of sufficient information as to the transborder incursions into the territory of those two States from Nicaragua, it is
difficult to decide whether they amount, singly or collectively, to an armed attack by Nicaragua. The Court finds that neither these
incursions nor the alleged supply of arms may be relied on as justifying the exercise of the right of collective self-defence.
Secondly, in order to determine whether the United States was justified in exercising self-defence, the Court has to ascertain whether the
circumstances required for the exercise of this right of collective self-defence were present, and therefore considers whether the States in
question believed that they were the victims of an armed attack by Nicaragua, and requested the assistance of the United States in the
exercise of collective self-defence. The Court has seen no evidence that the conduct of those States was consistent with such a situation.
Finally, appraising the United States activity in relation to the criteria of necessity and proportionality, the Court cannot find that the
activities in question were undertaken in the light of necessity, and finds that some of them cannot be regarded as satisfying the criterion
of proportionality.
Since the plea of collective self-defence advanced by the United States cannot be upheld, it follows that the United States has violated
the principle prohibiting recourse to the threat or use of force by the acts referred to in the first paragraph of this section.
2. The principle of non-intervention (paras. 239 to 245)
The Court finds it clearly established that the United States intended, by its support of the contras, to coerce Nicaragua in respect of
matters in which each State is permitted to decide freely, and that the intention of the contras themselves was to overthrow the present
Government of Nicaragua. It considers that if one State, with a view to the coercion of another State, supports and assists armed bands in
that State whose purpose is to overthrow its government, that amounts to an intervention in its internal affairs, whatever the political
objective of the State giving support. It therefore finds that the support given by the United States to the military and paramilitary
activities of the contras in Nicaragua, by financial support, training, supply of weapons, intelligence and logistic support, constitutes a
clear breach of the principle of non-intervention. Humanitarian aid on the other hand cannot be regarded as unlawful intervention. With
effect from 1 October 1984, the United States Congress has restricted the use of funds to "humanitarian assistance" to the contrast The
Court recalls that if the provision of "humanitarian assistance" is to escape condemnation as an intervention in the internal affairs of
another State, it must be limited to the purposes hallowed in the practice of the Red Cross, and above all be given without discrimination.
With regard to the form of indirect intervention which Nicaragua sees in the taking of certain action of an economic nature against it by
the United States, the Court is unable to regard such action in the present case as a breach of the customary law principle of non-
intervention.
3. Collective counter-measures in response to conduct not amounting to armed attack (paras. 246 to 249)
Having found that intervention in the internal affairs of another State does not produce an entitlement to take collective counter-measures
involving the use of force, the Court finds that the acts of which Nicaragua is accused, even assuming them to have been established and
imputable to that State, could not justify counter-measures taken by a third State, the United States, and particularly could not justify
intervention involving the use of force.
4. State sovereignty (paras. 250 to 253)
The Court finds that the assistance to the contras, the direct attacks on Nicaraguan ports, oil installations, etc., the mining operations in
Nicaraguan ports, and the acts of intervention involving the use of force referred to in the Judgment, which are already a breach of the
principle of non-use of force, are also an infringement of the principle of respect for territorial sovereignty. This principle is also directly
infringed by the unauthorized overflight of Nicaraguan territory. These acts cannot be justified by the activities in El Salvador attributed
to Nicaragua; assuming that such activities did in fact occur, they do not bring into effect any right belonging to the United States. The
Court also concludes that, in the context of the present proceedings, the laying of mines in or near Nicaraguan ports constitutes an
infringement, to Nicaragua's detriment, of the freedom of communications and of maritime commerce.
5. Humanitarian law (paras. 254 to 256)
The Court has found the United States responsible for the failure to give notice of the mining of Nicaraguan ports.
It has also found that, under general principles of humanitarian law, the United States was bound to refrain from encouragement of
persons or groups engaged in the conflict in Nicaragua to commit violations of common Article 3 of the four Geneva Conventions of 12
August 1949. The manual on "Psychological Operations in Guerrilla Warfare", for the publication and dissemination of which the United
States is responsible, advises certain acts which cannot but be regarded as contrary to that article.
6. Other grounds mentioned in justification of the acts of the United States (paras. 257 to 269)
The United States has linked its support to the contras with alleged breaches by the Government of Nicaragua of certain solemn
commitments to the Nicaraguan people, the United States and the OAS. The Court considers whether there is anything in the conduct of
Nicaragua which might legally warrant counter-measures by the United States in response to the alleged violations. With reference to the
"Plan to secure peace" put forward by the Junta of the Government of National Reconstruction (12 July 1979), the Court is unable to find
anything in the documents and communications transmitting the plan from which it can be inferred that any legal undertaking was
intended to exist. The Court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another
on the ground that the latter has opted for some particular ideology or political system. Furthermore the Respondent has not advanced a
legal argument based on an alleged new principle of "ideological intervention".
With regard more specifically to alleged violations of human rights relied on by the United States, the Court considers that the use of
force by the United States could not be the appropriate method to monitor or ensure respect for such rights, normally provided for in the
applicable conventions. With regard to the alleged militarization of Nicaragua, also referred to by the United States to justify its
activities, the Court observes that in international law there are no rules, other than such rules as may be accepted by the State concerned,
by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States
without exception.
7. The 1956 Treaty (paras. 270 to 282)
The Court turns to the claims of Nicaragua based on the Treaty of Friendship, Commerce and Navigation of 1956, and the claim that the
United States has deprived the Treaty of its object and purpose and emptied it of real content. The Court cannot however entertain these
claims unless the conduct complained of is not "measures . . . necessary to protect the essential security interests" of the United States,
since Article XXI of the Treaty provides that the Treaty shall not preclude the application of such measures. With regard to the question
what activities of the United States might have been such as to deprive the Treaty of its object and purpose, the Court makes a
distinction. It is unable to regard all the acts complained of in that light, but considers that there are certain activities which undermine
the whole spirit of the agreement. These are the mining of Nicaraguan ports, the direct attacks on ports, oil installations, etc., and the
general trade embargo.
The Court also upholds the contention that the mining of the ports is in manifest contradiction with the freedom of navigation and
commerce guaranteed by Article XIX of the Treaty. It also concludes that the trade embargo proclaimed on 1 May 1985 is contrary to
that article.
The Court therefore finds that the United States is prima facie in breach of an obligation not to deprive the 1956 Treaty of its object and
purpose (pacta sunt servanda), and has committed acts in contradiction with the terms of the Treaty. The Court has however to consider
whether the exception in Article XXI concerning "measures . . . necessary to protect the essential security interests" of a Party may be
invoked to justify the acts complained of. After examining the available material, particularly the Executive Order of President Reagan
of 1 May 1985, the Court finds that the mining of Nicaraguan ports, and the direct attacks on ports and oil installations, and the general
trade embargo of 1 May 1985, cannot be justified as necessary to protect the essential security interests of the United States.
XII. The claim for reparation (paras. 283 to 285)
The Court is requested to adjudge and declare that compensation is due to Nicaragua, the quantum thereof to be fixed subsequently, and
to award to Nicaragua the sum of 370.2 million US dollars as an interim award. After satisfying itself that it has jurisdiction to order
reparation, the Court considers appropriate the request of Nicaragua for the nature and amount of the reparation to be determined in a
subsequent phase of the proceedings. It also considers that there is no provision in the Statute of the Court either specifically empowering
it or debarring it from making an interim award of the kind requested. In a cases in which one Party is not appearing, the Court should
refrain from any unnecessary act which might prove an obstacle to a negotiated settlement. The Court therefore does not consider that it
can accede at this stage to this request by Nicaragua.
XIII. The provisional measures (paras. 286 to 289)
After recalling certain passages in its Order of 10 May 1984, the Court concludes that it is incumbent on each Party not to direct its
conduct solely by reference to what it believes to be its rights. Particularly is this so in a situation of armed conflict where no reparation
can efface the results of conduct which the Court may rule to have been contrary to international law
XIV. Peaceful settlement of disputes; the Contadora process (paras. 290 to 291)
In the present case the Court has already taken note of the Contadora process, and of the fact that it had been endorsed by the United
Nations Security Council and General Assembly, as well as by Nicaragua and the United States. It recalls to both Parties to the present
case the need to co-operate with the Contadora efforts in seeking a definitive and lasting peace in Central America, in accordance with
the principle of customary international law that prescribes the peaceful settlement of international disputes, also endorsed by Article 33
of the United Nations Charter.
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SUMMARY OF THE OPINIONS APPENDED TO
THE JUDGMENT OF THE COURT
Separate Opinion of Judge Nagendra Singh,
President
The operative part of paragraph 292 (16) of the Judgment adopted unanimously by the Court which enjoins parties to seek a peaceful
solution of their disputes in accordance with international law really rests on the due observance of two basic principles: namely that of
non-use of force in inter-State relations and that of non-intervention in the affairs of other States. This in the President's view is the main
thrust of the Judgment of the Court rendered with utmost sincerity to serve the best interests of the community.
In fact, the cardinal principle of non-use of force in international relations has been the pivotal point of a time-honoured legal philosophy
that has evolved particularly after the two world wars of the current century. The Charter provisions as well as the Latin American Treaty
System have not only developed the concept but strengthened it to the extent that it would stand on its own, even if the Charter and the
Treaty basis were held inapplicable in this case. The obvious explanation is that the original customary aspect which has evolved with
the treaty law development has come now to stay and survive as the existing modern concept of international law, whether customary,
because of its origins, or "a general principle of international law recognized by civilized nations". The contribution of the Court has
been to emphasize the principle of non-use of force as one belonging to the realm of jus cogens and hence as the very cornerstone of the
human effort to promote peace in a world torn by strife. Force begets force and aggravates conflicts, embitters relations and endangers
peaceful resolution of the dispute.
There is also the key doctrine of non-intervention in the affairs of States which is equally vital for the peace and progress of humanity
being essentially needed to promote the healthy existence of the community. The principle of non-intervention is to be treated as a
sanctified absolute rule of law.
States must observe both these principles namely that of non-use of force and that of non-intervention in the best interests of peace and
order in the community. The Court has rightly held them both as principles of customary international law although sanctified by treaty
law, but applicable in this case in the former customary manifestation having been reinvigorated by being further strengthened by the
express consent of States particularly the Parties in dispute here. This must indeed have all the weight that law could ever commend in
any case.
The decision of the Court is in the result of a collegiate exercise reached after prolonged deliberation and a full exchange of views of no
less than fifteen Judges who, working according to the Statute and Rules of the Court, have examined the legal arguments and all the
evidence before it. In this, as in all other cases, every care has been taken to strictly observe the procedures prescribed and the decision is
upheld by a clear majority. What is more, the binding character of the Judgment under the Statute (Art. 59) is made sacrosanct by a
provision of the UN Charter (Art. 94): all Members of the United Nations have undertaken an obligation to comply with the Court's
decisions addressed to them and to always respect the validity of the Judgment.
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Separate Opinion of Judge Lachs
Judge Lachs begins by drawing attention to the requirements of the Statute in respect of the personal qualities and diversity of origin that
must characterize Members of the Court, and deprecates any aspersion upon their independence.
On the substance of the Judgment he would have preferred more attention to be given to foreign assistance to the opposition forces in El
Salvador, and different formulae to have been used in various places.
Judge Lachs returns to some aspects of jurisdiction, considering that insufficient weight had previously been given to the forty years that
had elapsed before any public objection had been raised against the validity of Nicaragua's acceptance of the Court's jurisdiction. When
that validity had been privately questioned in connection with a case in the mid-1950s, action should have been taken by the United
Nations: Nicaragua should have been asked to complete any necessary formalities and, if it failed to do so, would have been removed
from the list of States subject to the compulsory jurisdiction of the Court. The United Nations having taken no action, it was legitimate to
view the imperfection as cured by acquiescence over a very long period. The jurisdiction of the Court based on the FCN Treaty of 1956
gave no cause for doubt.
Judge Lachs also deals with the question of the justiciability of the case: the close relationship between legal and political disputes, as
between law and politics. International law today covers such wide areas of international relations that only very few domains - for
instance, the problem of disarmament, or others, specifically excluded by States - are not justiciable. He specifically instances the case
concerning United States Diplomatic and Consular Staff in Tehran.
Referring to the Court's refusal to grant a hearing to El Salvador at the jurisdictional stage, Judge Lachs states that he has come to view it
as a judicial error which does not, however, justify any unrelated conclusions.
The broad confrontation between the Parties should, in Judge Lachs's view, be settled within the framework of the Contadora Plan, in co-
operation with all States of the region. The area, torn by conflicts, suffering from under-development for a long time, requires a new
approach based on equal consideration of the interests of all concerned in the spirit of good-neighbourly relations.
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Separate Opinion of Judge Ruda
The separate Opinion of Judge Ruda deals with four subjects. In the first place, Judge Ruda does not accept the reservation expressed by
the United States in the letter dated 18 January 1985 "in respect of any decision by the Court regarding Nicaragua's claims". In Judge
Ruda's view, pursuant to Article 94, paragraph I, of the Charter of the United Nations, the Member States of the United Nations have
formally accepted the obligation to comply with the Court's decisions.
The second part of the Opinion refers to the Vandenberg Amendment. Judge Ruda voted against the application of the Amendment, for
the reasons stated in the separate Opinion which he submitted in 1984.
In the third part, Judge Ruda deals with the question of self-defence. He explains that his conclusions are the same as those reached by
the Court, but in his view it is not necessary to enter into all the factual details, because assistance to rebels is not per se a pretext for self-
defence from the legal point of view.
The fourth part is devoted to the reasons why Judge Ruda, despite having voted in 1984 against the Treaty of Friendship, Commerce and
Navigation as a basis of the Court's jurisdiction, believes he is bound to vote on the substantive issues submitted to the Court on this
subject.
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Separate Opinion of Judge Elias
Judge Elias considers that, following the Court's Judgment in the jurisdictional phase, the multilateral treaty reservation attached to the
United States declaration accepting jurisdiction under the Optional Clause was left in abeyance and had no further relevance unless El
Salvador, Honduras or Costa Rica intervened in the phase on merits and reparation. For the Court to have applied it was therefore
incorrect and tantamount to invoking a power to revise its decision on jurisdiction and admissibility on behalf of non-parties to the case.
__________
Separate Opinion of Judge Ago
While subscribing to the Judgment as a whole and approving in particular the position adopted by the Court concerning the United
States' multilateral treaty reservation, Judge Ago remains hesitant about certain points. For example, he feels that the Court made a
somewhat too hasty finding as to the quasi-identity of substance between customary international law and the law enshrined in certain
major multilateral treaties of universal character, and was also somewhat too ready to see the endorsement of certain principles by UN
and OAS resolutions as proof of the presence of those principles in the opinio juris of members of the international community. Judge
Ago also feels obliged to draw attention to what he views as some partially contradictory aspects of the Court's assessment of the factual
and legal situation. He further considers that some passages of the Judgment show a paucity of legal reasoning to support the Court's
conclusions as to the imputability of certain acts to the Respondent qua acts giving rise to international responsibility, and would have
preferred to see the Court include a more explicit confirmation of its case-law on this subject.
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Separate Opinion of Judge Sette-Camara
Judge Sette-Camara fully concurs with the Judgment because he firmly believes that "the non-use of force as well as non-
intervention - the latter as a corollary of equality of States and self-determination - are not only cardinal principles of customary
international law but could in addition be recognized as peremptory rules of customary international law which impose obligations on all
States". His separate opinion deals only with subparagraph (1) of the operative part, against which he has voted. He maintains that the
multilateral treaty reservation, appended to the United States 1946 Declaration of Acceptance of the Jurisdiction of the Court according
to Article 36, paragraph 2, of the Statute, cannot be applied to the present case, since none of the decisions taken in the operative part can
in any way "affect" third States, and in particular El Salvador. The case is between Nicaragua and the United States and the binding force
of the Court's decision is confined to these two Parties. Judge Sette-Camara recognizes the right of any State making Declarations of
Acceptance to append to them whatever reservations it deems fit. However, he contends that the Court is free, and indeed bound, to
interpret those reservations. He regrets that the application of the multilateral treaty reservation debarred the Court from resting the
Judgment on the provisions of the Charter of the United Nations and the Charter of the Organization of American States, and forced it to
resort only to principles of customary international law and the bilateral Treaty of Friendship, Commerce and Navigation of 1956. He
submits that the law applied by the Judgment would be clearer and more precise if the Court had resorted to the specific provisions of the
relevant multilateral convention
__________
Separate Opinion of Judge Ni
Judge Ni's primary concern, as expressed in his separate opinion, is with respect to the "multilateral treaty reservation" invoked by the
United States. In his view, any acceptance of its applicability entailed (1) the exclusion of the Court from exercising jurisdiction in so far
as Nicaragua's claims were based on the multilateral treaties in question, and (2) the preclusion, if the case was on other grounds still in
the Court for adjudication of the merits, of the application of such multilateral treaties. In the instant case, however, the United States,
while invoking the multilateral treaty reservation to challenge the exercise of jurisdiction by the Court, had in the meantime persistently
claimed that the multilateral treaties, which constitute the very basis of its reservation, should alone be applied to the case in dispute.
That claim amounted in effect to a negation of its own reservation and, taking into account all the relevant circumstances, ought to have
been considered as a waiver of the multilateral treaty reservation. Such being the case, Judge Ni differed from the majority of the Court
in that he considered that the rules contained in multilateral treaties, as well as customary international law, should, where appropriate,
have been applied to the case.
__________
Dissenting Opinion of Judge Oda
Judge Oda agrees with the Court's recognition of the applicability of the multilateral treaty proviso attached to the United States' 1946
declaration but considers that, having thus decided that the dispute had arisen under a multilateral treaty, it should have ceased to
entertain the application of Nicaragua on the basis of that declaration. The Court had been wrong to interpret the exclusion of the dispute
by that proviso as merely placing restrictions upon the sources of law to which it was entitled to refer.
Judge Oda further believes that, to the extent that the Nicaraguan claims presupposed the Court's jurisdiction under declarations made
pursuant to Article 36 (2) of the Statute, which refers to "legal disputes", they should have been declared non-justiciable, since the
dispute was not "legal" within the meaning and intention of that clause or, even if it were, it was not one that the Court could properly
entertain: as a political dispute, it was more suitable for resolution by other organs and procedures. Moreover, the facts the Court could
elicit by examining the evidence in the absence of the Respondent fell far short of what was needed to show a complete picture.
Judge Oda thus considers that, in so far as the Court could properly entertain the case, it could do so on the basis of Article 36 (1) of the
Statute, where the term "all matters specially provided for in . . . treaties . . . in force" gave no such grounds for questioning the "legal"
nature of the dispute. The Court could therefore legitimately examine any breach of the concrete terms of the 1956 Treaty of Friendship,
Commerce and Navigation. In Judge Oda's view, the mining of the Nicaraguan ports had constituted such a breach, for which the United
States had incurred responsibility.
Judge Oda emphasizes that his negative votes on many counts of the Judgment must not be interpreted as implying that he is opposed to
the rules of law concerning the use of force or intervention, of whose violation the United States has been accused, but are merely a
logical consequence of his convictions on the subject of jurisdiction under Article 36 (2) of the Statute.
Finally, Judge Oda regrets that the Court has been needlessly precipitate in giving its views on collective self-defence in its first
Judgment to broach that subject.
__________
Dissenting Opinion of Judge Schwebel
Judge Schwebel dissented from the Court's Judgment on factual and legal grounds. He agreed with the Court in its holdings against the
United States for its failure to make known the existence and location of mines laid by it and its causing the publication of a manual
advocating acts in violation of the law of war. But Judge Schwebel concluded that the United States essentially acted lawfully in exerting
armed pressures against Nicaragua, both directly and through its support of the contras, because Nicaragua's prior and sustained support
of armed insurgency in El Salvador was tantamount to an armed attack upon El Salvador against which the United States could react in
collective self-defence in El Salvador's support.
Judge Schwebel found that, since 1979, Nicaragua had assisted and persisted in providing large-scale, vital assistance to the insurgents in
El Salvador. The delictual acts of Nicaragua had not been confined to providing the Salvadoran rebels with large quantities of arms,
munitions and supplies, which of themselves arguably might be seen as not tantamount to armed attack. Nicaragua had also joined with
the Salvadoran rebels in the organization, planning and training for their acts of insurgency, and had provided them with command-and-
control facilities, bases, communications and sanctuary which enabled the leadership of the Salvadoran rebels to operate from
Nicaraguan territory. That scale of assistance, in Judge Schwebel's view, was legally tantamount to an armed attack. Not only was El
Salvador entitled to defend itself against that armed attack, it had called upon the United States to assist it in the exercise of collective
self-defence. The United States was entitled to do so, through measures overt or covert. Those measures could be exerted not only in El
Salvador but against Nicaragua on its own territory.
In Judge Schwebel's view, the Court's conclusion that the Nicaraguan Government was not "responsible for any flow of arms" to the
Salvadoran insurgents was not sustained by "judicial or judicious" considerations. The Court had "excluded, discounted and excused the
unanswerable evidence of Nicaragua's major and maintained intervention in the Salvadoran insurgency". Nicaragua's intervention in El
Salvador in support of the Salvadoran insurgents was, Judge Schwebel held, admitted by the President of Nicaragua, affirmed by
Nicaragua's leading witness in the case, and confirmed by a "cornucopia of corroboration".
Even if, contrary to his view, Nicaragua's actions in support of the Salvadoran insurgency were not viewed as tantamount to an armed
attack, Judge Schwebel concluded that they undeniably constituted unlawful intervention. But the Court, "remarkably enough", while
finding the United States responsible for intervention in Nicaragua, failed to recognize Nicaragua's prior and continuing intervention in
El Salvador.
For United States measures in collective self-defence to be lawful, they must be necessary and proportionate. In Judge Schwebel's view,
it was doubtful whether the question of necessity in this case was justiciable, because the facts were so indeterminate, depending as they
did on whether measures not involving the use of force could succeed in terminating Nicaragua's intervention in El Salvador. But it could
reasonably be held that the necessity of those measures was indicated by "persistent Nicaraguan failure to cease armed subversion of El
Salvador".
Judge Schwebel held that "the actions of the United States are strikingly proportionate. The Salvadoran rebels, vitally supported by
Nicaragua, conduct a rebellion in El Salvador; in collective self-defence, the United States symmetrically supports rebels who conduct a
rebellion in Nicaragua. The rebels in El Salvador pervasively attack economic targets of importance in El Salvador; the United States
selectively attacks economic targets of military importance" in Nicaragua.
Judge Schwebel maintained that, in contemporary international law, the State which first intervenes with the use of force in another
State - as by substantial involvement in the sending of irregulars onto its territory - is, prima facie, the aggressor. Nicaragua's status
as prima facie aggressor can only be confirmed upon examination of the facts. "Moreover", Judge Schwebel concluded, "Nicaragua has
compounded its delictual behaviour by pressing false testimony on the Court in a deliberate effort to conceal it. Accordingly, on both
grounds, Nicaragua does not come before the Court with clean hands. Judgment in its favour thus unwarranted, and would be
unwarranted even if it should be concluded - as it should not be - that the responsive actions of the United States were unnecessary or
disproportionate."
__________
Dissenting Opinion of Judge Sir Robert Jennings
Judge Sir Robert Jennings agreed with the Court that the United States multilateral treaty reservation is valid and must be respected. He
was unable to accept the Court's decision that it could, nevertheless, exercise jurisdiction over the case by applying customary law in lieu
of the relevant multilateral treaties. Accordingly, whilst able to vote in favour of certain of the Court's findings, he felt compelled to vote
against its decisions on the use of force, on intervention, and on the question of self-defence, because in his view the Court was lacking
jurisdiction to decide those matters.
Disclaimer
Accessibility
100. CASE CONCERNING EAST TIMOR
(PORTUGAL v. AUSTRALIA)
In its Judgment on the case concerning East Timor (Portugal v. Australia), the
Court, by 14 votes to 2, found that it could not exercise the jurisdiction
conferred upon it by the declarations made by the Parties under Article 36,
paragraph 2, of its Statute to adjudicate upon the dispute referred to it by the
Application of the Portuguese Republic.
Those who voted in favour were: President Bedjaoui: Vice President Schwebel;
Judges Oda, Sir Robert Jennings, Guillaume, Shahabuddeen, Aguilar-
Mawdsley, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin;
Judge ad hoc Sir Ninian Stephen.
Against: Judge Weeramantry; Judge ad hoc Skubiszewski.
Judges Oda, Shahabuddeen, Ranjeva, and Vereshchetin appended separate
opinions to the Judgment of the Court.
Judge Weeramantry and Judge ad hoc Skubiszewski appended dissenting
opinions to the Judgment of the Court.
-----------
Summary of the Judgment
Procedural history (paras. 1-10)
In its Judgment the Court recalls that on 22 February 1991 Portugal instituted
proceedings against Australia concerning "certain activities of Australia with
respect to East Timor". According to the Application Australia had, by its
conduct, "failed to observe -- the obligation to respect the duties and powers of
[Portugal as] the administering Power [of East Timor].. and... the right of the
people of East Timor to self-determination and the related rights". In
consequence, according to the Application, Australia had "incurred
international responsibility vis--vis both the people of East Timor and
Portugal". As the basis for the jurisdiction of the Court, the Application refers
to the declarations by which the two States have accepted the compulsory
jurisdiction of the Court under Article 36, paragraph 2, of its Statute. In its
Counter-Memorial, Australia raised questions concerning the jurisdiction of the
Court and the admissibility of the Application. In the course of a meeting held
by the President of the Court the Parties agreed that these questions were
inextricably linked to the merits and that they should therefore be heard and
determined within the framework of the merits. The written proceedings having
been completed in July 1993, hearings were held between 30 January and 16
February 1995. The Judgment then sets out the final submissions which were
presented by both Parties in the course of the oral proceedings.
Historical background (paras. 11-18)
The Court then gives a short description of the history of the involvement of
Portugal and Indonesia in the Territory of East Timor and of a number of
Security Council and General Assembly resolutions concerning the question of
East Timor. It further describes the negotiations between Australia and
Indonesia leading to the Treaty of 11 December 1989, which created a "Zone of
Cooperation... in an area between the Indonesian Province of East Timor and
Northern Australia".
Summary of the contentions of the Parties (paras. 19-20)
The Court then summarizes the contentions of both Parties.
Australia's objection that there exists in reality no dispute between the
Parties (paras. 21-22)
The Court goes on to consider Australia's objection that there is in reality no
dispute between itself and Portugal. Australia contends that the case as
presented by Portugal is artificially limited to the question of the lawfulness of
Australia's conduct, and that the true respondent is Indonesia, not Australia.
Australia maintains that it is being sued in place of Indonesia. In this
connection, it points out that Portugal and Australia have accepted the
compulsory jurisdiction of the Court under Article 36, paragraph 2, of its
Statute, but that Indonesia has not.
The Court finds in this respect that for the purpose of verifying the existence of
a legal dispute in the present case, it is not relevant whether the "real dispute" is
between Portugal and Indonesia rather than Portugal and Australia. Portugal
has, rightly or wrongly, formulated complaints of fact and law against Australia
which the latter has denied. By virtue of this denial, there is a legal dispute.
Australia's objection that the Court is required to determine the rights and
obligations of Indonesia (paras. 23-35)
The Court then considers Australia's principal objection, to the effect that
Portugal's Application would require the Court to determine the rights and
obligations of Indonesia. Australia contends that the jurisdiction conferred upon
the Court by the Parties' declarations under Article 36, paragraph 2, of the
Statute would not enable the Court to act if, in order to do so, the Court were
required to rule on the lawfulness of Indonesia's entry into and continuing
presence in East Timor, on the validity of the 1989 Treaty between Australia
and Indonesia, or on the rights and obligations of Indonesia under that Treaty,
even if the Court did not have to determine its validity. In support of its
argument, it refers to the Court's Judgment in the case of the Monetary Gold
Removed from Rome in 1943. Portugal agrees that if its Application required
the Court to decide any of these questions, the Court could not entertain it. The
Parties disagree, however, as to whether the Court is required to decide any of
these questions in order to resolve the dispute referred to it.
Portugal contends first that its Application is concerned exclusively with the
objective conduct of Australia, which consists in having negotiated, concluded
and initiated performance of the 1989 Treaty with Indonesia, and that this
question is perfectly separable from any question relating to the lawfulness of
the conduct of Indonesia.
Having carefully considered the argument advanced by Portugal which seeks to
separate Australia's behaviour from that of the Indonesia, the Court concludes
that Australia's behaviour cannot be assessed without first entering into the
question why it is that Indonesia could not lawfully have concluded the 1989
Treaty, while Portugal allegedly could have done so; the very subject-matter of
the Court's decision would necessarily be a determination whether, having
regard to the circumstances in which Indonesia entered and remained in East
Timor, it could or could not have acquired the power to enter into treaties on
behalf of East Timor relating to the resources of its continental shelf. The Court
could not make such a determination in the absence of the consent of Indonesia.
The Court rejects Portugal's additional argument that the rights which Australia
allegedly breached were rights erga omnes and that accordingly Portugal could
require it, individually, to respect them regardless of whether or not another
State had conducted itself in a similarly unlawful manner.
In the Court's view, Portugal's assertion that the right of peoples to self-
determination, as it evolved from the Charter and from United Nations practice,
has an erga omnes character, is irreproachable. The principle of self-
determination of peoples has been recognized by the United Nations Charter
and in the jurisprudence of the Court; it is one of the essential principles of
contemporary international law. However, the Court considers that the erga
omnes character of a norm and the rule of consent to jurisdiction are two
different things. Whatever the nature of the obligations invoked, the Court
could not rule on the lawfulness of the conduct of a State when its judgment
would imply an evaluation of the lawfulness of the conduct of another State
which is not a party to the case.
The Court goes on to consider another argument of Portugal which, the Court
observes, rests on the premise that the United Nations resolutions, and in
particular those of the Security Council, can be read as imposing an obligation
on States not to recognize any authority on the part of Indonesia over East
Timor and, where the latter is concerned, to deal only with Portugal. Portugal
maintains that those resolutions would constitute "givens" on the content of
which the Court would not have to decide de novo.
The Court takes note of the fact that, for the two Parties, the Territory of East
Timor remains a non-self governing territory and its people has the right to
self-determination, and that the express reference to Portugal as the
"administering Power" in a number of the above-mentioned resolutions is not at
issue between them. The Court finds, however, that it cannot be inferred from
the sole fact that a number of resolutions of the General Assembly and the
Security Council refer to Portugal as the administering Power of East Timor
that they intended to establish an obligation on third States to treat exclusively
with Portugal as regards the continental shelf of East Timor. Without prejudice
to the question whether the resolutions under discussion could be binding in
nature, the Court considers as a result that they cannot be regarded as "givens"
which constitute a sufficient basis for determining the dispute between the
Parties.
It follows from this that the Court would necessarily have to rule upon the
lawfulness of Indonesia's conduct as a prerequisite for deciding on Portugal's
contention that Australia violated its obligation to respect Portugal's status as
administering Power, East Timor's status as a non-self governing territory and
the right of the people of the Territory to self-determination and to permanent
sovereignty over its wealth and natural resources. Indonesia's rights and
obligations would thus constitute the very subject matter of such a judgment
made in the absence of that State's consent. Such a judgment would run directly
counter to the "well-established principle of international law embodied in the
Court's Statute, namely, that the Court can only exercise jurisdiction over a
State with its consent" (Monetary Gold Removed from Rome in 1943, I.C.J.
Reports 1954, p. 32).
Conclusions (paras. 36-37)
The Court accordingly finds that it is not required to consider Australia's other
objections and that it cannot rule on Portugal's claims on the merits, whatever
the importance of the questions raised by those claims and of the rules of
international law which they bring into play.
The Court recalls in any event that it has taken note in the Judgment that, for
the two Parties, the Territory of East Timor remains a non-self governing
territory and its people has the right to self-determination.
Separate opinion of Judge Oda
Judge Oda, while agreeing that Portugal's Application should be dismissed as
the Court lacks jurisdiction to entertain it, considers that its dismissal should
not have been based upon the absence of Indonesia's consent, as in the Court's
Judgment, but upon the sole consideration that Portugal lacked locus standi.
After examining Portugal's complaint, Judge Oda concludes that Portugal "has
given an incorrect definition of the dispute and seems to have overlooked the
difference between the opposability to any State of its rights and duties as the
administering Power or of the rights of the people of East Timor and the more
basic question of whether Portugal is the State entitled to assert these rights and
duties." He further points out that the right of the people of East Timor to self-
determination and the related rights have not been challenged by Australia and,
in any event, cannot be made an issue in the present case. That case relates in
Judge Oda's view solely to the title to the continental shelf which Portugal
claims to possess as a coastal State.
Judge Oda goes on to note that, in the area of the "Timor Gap" Australia has
not asserted a new claim to any sea-bed area intruding into the area of any State
or of the people of the Territory of East Timor, nor has it acquired any new sea-
bed area from any State or from that people. The continental shelves of
Australia and of the opposite State overlap somewhere in the middle of the
"Timor Gap" and Australia should and did negotiate the question of that
overlapping with the coastal State lying opposite to it across the Timor Sea.
The central question in the present case is whether Portugal or Indonesia, as a
State lying opposite to Australia, was entitled to the continental shelf in the
"Timor Gap".
From a survey of events in relation to the delimitation of the continental shelf
in the relevant areas, it appears that since the seventies Indonesia claimed the
status of a coastal State for East Timor and, as such, negotiated with Australia.
If Portugal had also claimed that status, it could and should have initiated a
dispute over the corresponding title to the continental shelf with Indonesia, but
not with Australia. Not unless and until such time as Portugal had been
established as having the status of the coastal State entitled to the
corresponding continental shelf could any issue concerning the seabed area of
the "Timor Gap" have been the subject matter of a dispute between Portugal
and Australia. Had that been the case, the treaty between Australia and
Indonesia would certainly have been null and void from the outset. The reliance
of the Judgment on the principle of the required consent of the third party to the
Court's jurisdiction (as exemplified in the Monetary Gold) case accordingly
seems to be irrelevant.
A further historical survey shows that, in Judge Oda's view, "while the military
intervention of Indonesia in East Timor and the integration of East Timor into
Indonesia in the mid-1970s were not approved by the United Nations, there has
not been any reason to assume that Portugal has, since the late 1970s and up the
present time, been entrusted with the rights and responsibilities of an
administering Power for the Non-Self Governing Territory of East Timor. Few
States in the international community have in the recent past regarded, or at
present regard, Portugal as a State located in East Timor or would maintain that
as such it may lay claim to the continental shelf off the coast of East Timor".
Portugal therefore lacks standing as an Applicant State in this proceeding
which relates to the continental shelf extending southward into the Timor Sea
from the coast of East Timor in the "Timor Gap".
The lack of any evidence as to the view of the people of East Timor, on whose
behalf the Application has been filed, is one of the principal reasons leading to
the inability of the Court to decide the dispute.
Dissenting opinion of Judge Weeramantry
Judge Weeramantry, in his opinion, expresses agreement with the Court's
decision dismissing the objection that no real dispute exists between Australia
and Portugal. He also agrees with the stress laid by the Court on the importance
of self-determination as "one of the essential principles of contemporary
international law".
However, he differs from the majority of the Court on the question whether the
Court lacks jurisdiction on the ground that a decision against Australia would
involve a decision concerning the rights of Indonesia, a third State, not before
the Court.
The opinion analyses the Monetary Gold decision and the prior and subsequent
jurisprudence on this matter, and concludes from this analysis that, having
regard to the facts of this case, the Monetary Gold decision is not relevant
inasmuch as the Court could determine the matter before it entirely on the basis
of the obligations and actions of Australia alone, without any need to make an
adjudication on the conduct of Indonesia. A central principle of State
responsibility in international law is the individual responsibility of a State for
its actions, quite apart from the complicity of another State in those actions.
The respondent State's actions, in negotiating, concluding and initiating
performance of the Timor Gap Treaty, and taking internal legislative measures
for its application are thus justiciable on the basis of its unilateral conduct.
The rights of self-determination and permanent sovereignty over natural
resources are rights erga omnes belonging to the people of East Timor, and
therefore generate a corresponding duty upon all States, including the
Respondent, to recognize and respect those rights. The act of being party to a
treaty recognizing that East Timor, (admittedly a non-self governing territory
and recognized as such by the United Nations), has been incorporated in
another State, which treaty deals with a valuable non-renewable resource of the
people of East Timor for an initial period of forty years, without reference to
them or their authorized representative, raises substantial doubts regarding the
compatibility of these acts with the rights of the people of East Timor and the
obligations of Australia. The Court could have proceeded to determine whether
a course of action had been made out against Australia on such actions, without
the need for any adjudication concerning Indonesia.
The opinion also holds in favour of the right of Portugal to maintain this
application as the administering Power over East Timor, recognized as such by
the United Nations. The position and responsibilities of an administering Power
which continues to be so recognized by the United Nations are not lost by the
mere circumstance of loss of physical control, for such a proposition would run
contrary to the protective scheme embodied in the United Nations Charter for
the care of non-self governing territories.
Dissenting opinion of Judge Skubiszewski
In Judge Skubiszewski's view, the Court has jurisdiction in this case and the
Portuguese claims are admissible. The requirements of judicial propriety are
also met. The Court can render a decision on the merits.
In particular, even if the Court finds itself without jurisdiction to adjudicate on
any issue relating to the Timor Gap Treaty, the Court could deal with the first
submission of Portugal, i.e., with the status of East Timor, the applicability to
that territory of the principle of self-determination and some other basic
principles of international law, and the position of Portugal as administering
Power. This is so because the first submission can be separated from the
remaining submissions which concern exclusively the specific issues of the
treaty. It is true that the Court refers to the status of the territory and to self-
determination, and in this respect Judge Skubiszewski concurs with the Court
(as he also does in regard to the Court's rejection of the Australian objection
that there is no dispute between the Parties). But Judge Skubiszewski thinks
that the Court should have elaborated on these matters (as there are some
unclear points) and included the result of such elaboration in the operative
clause. By not doing so, the Court adopted a narrow view of its function.
The Monetary Gold rule does not exclude jurisdiction in this case. The premise
for the application of the rule is lacking here: to decide on all the submissions
of Portugal, the Court need not adjudicate on any powers, rights and duties of
Indonesia. In this case the Court adopted an extensive interpretation of the
Monetary Gold rule; this interpretation contrasts with its earlier practice. The
Court has gone beyond the limit of the operation of Monetary Gold.
The Court can decide on the lawfulness of some unilateral acts of Australia
leading to the conclusion of the Treaty. A decision thereon does not imply any
adjudication on Indonesia, nor does it involve any finding on the validity of the
Treaty (which the Court is not competent to make). The conduct of Australia
can be assessed in the light of United Nations law and resolutions. Such
assessment is not linked to any passing upon Indonesia's activities.
Portugal has the capacity to act before the Court in this case on behalf of East
Timor and to vindicate the respect for its position as administering Power.
In discussing and defining the present status of the Territory (i.e., after
annexation by Indonesia) the rule of non-recognition is relevant. In the instance
of East Timor, recognition of annexation erodes self-determination. The
position of Portugal as administering Power was questioned by Australia; the
Court should have clarified this issue. It is within its jurisdiction.
Even if the Court's Judgment is legally correct (which it is not), the Court's
function cannot be reduced to legal correctness alone. Otherwise the Court
would restrict its function to the detriment of justice and of the basic
constitutional rule that it is "the principal judicial organ of the United Nations".
That restrictive approach is illustrated by the Judgment and it is cause for
concern.

THE EL SALVADOR V. HONDURAS CASE

I. FACTS (A BRIEF OVERVIEW)

o Material
Before 1821, Central America was a colony of Spain under
Spanish administration
1821 - independence was achieved by the Federal Republic of
Central America
1839 - the Federal Republic of Central America broke up, with
Honduras and El Salvador becoming independent states
land, island and maritime dispute between Honduras and El
Salvador erupts in 1969 Soccer war
a series of unsuccessful or partially successful dispute resolution
efforts
1972 agreement - 13 unresolved disputes
1980 Peace Treaty - 6 unresolved disputes
the JTC effort fails
thereafter, El Salvador and Honduras reached a "Special
Agreement" for the ICJ to resolve the remaining 6 disputed
areas/boundaries

o Legal - the ICJ agreed to hear the case in a 5-judge ICJ Chamber

II. ISSUES

o Specific
How are the 6 territorial disputes to be resolved?
How is the uti possidetis principle to be applied here in the
absence of persuasive documentary evidence?

o General
What is the nature of the uti possidetis principle?
How is the uti possidetis principle to be applied in the absence of
persuasive documentary evidence?
III. HOLDING

The ICJ applied the uti possidetis principle to the 6 disputes

IV. SALIENT PRINCIPLES

o "The principle of uti possidetis is concerned as much with title to


territory as with the location of boundaries" (that is, the principle can
be applied to general territorial questions, not simply those of
boundaries per se)

o "certainly a key aspect of the principle is the denial of the possibility


of terra nullius" (that is, once a colony becomes an independent state,
the new state's territory cannot be acquired by another state through
occupation of "no-man's land")

o "uti possidetis is essentially a retrospective principle, investing as


international boundaries administrative limits intended originally for
quite different purposes" (implicit here: the approach to territorial
disputes draws upon old demarcations, divisions NOT intended to serve
as future state boundaries)

o Lacking "persuasive documentary evidence of the location of the


boundary at the time the states gained their independence" the Court:

attached weigh to a geographical feature

invoked "equity infra legem" (the IL "general principle" of


"fairness") -- the Court adopted a boundary originally proposed
in 1869

considered the conduct of the parties in the period following


independence (how the new states acted then suggested how
they then viewed the territorial situation)

"possession backed by the exercise of sovereignty may be


taken as evidence confirming uti possidetis juris title"
practically the only way in which the uti possidetis
juris could find formal expression so as to be judicially
recognized and determined"

Franais
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Permanent Court of International Justice

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua


intervening)

See also : Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island
and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras)

Incidental
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Summary of the Summary of the Judgment of 11 September 1992
CASE CONCERNING LAND, ISLAND AND
MARITIME FRONTIER DISPUTE
(EL SALVADOR/HONDURAS: NICARAGUA INTERVENING)
Judgment of 11 September 1992

The Chamber constituted by the Court in the case concerning the Land, Island and Maritime Frontier Dispute between El Salvador and
Honduras, Nicaragua intervening, first adopted the course of the boundary line in the disputed land sections between El Salvador and
Honduras. It then ruled on the legal status of the islands of the Gulf of Fonseca, as well as on the legal situation of the maritime spaces
within and outside the closing line of that Gulf.
*
The Chamber was composed as follows: Judge Sette-Camara, President of the Chamber; President Sir Robert Jennings; Vice-President
Oda; Judges ad hoc Valticos, Torres Bernrdez.
*
The full text of the operative part of the Judgment is as follows:
"425. For the reasons set out in the present Judgment, in particular paragraphs 68 to 103 thereof,
THE CHAMBER,
Unanimously,
Decides that the boundary line between the Republic of El Salvador and the Republic of Honduras in the first sector of their common
frontier not described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows: that the
boundary line between the Republic of El Salvador and the Republic of Honduras in the first sector of their common frontier not
described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows:
From the international tripoint known as El Trifinio on the summit of the Cerro Montecristo (point A on Map No. I [Map: First Sector -
Disputed Area - 54kb] annexed ; co-ordinates: 1425'10" N, 8921'20" W), the boundary runs in a generally easterly direction along
the watershed between the rivers Fro or Sesecapa and Del Rosario as far as the junction of this watershed with the watershed of the
basin of the quebrada de Pomola (point B on Map No. I annexed; co-ordinates: 1425'05" N, 8920'41" W); thereafter in a north-
easterly direction along the watershed of the basin of the quebrada de Pomola until the junction of this watershed with the watershed
between the quebrada de Cipresales and the quebrada del Cedrn, Pea Dorada and Pomola proper (point C on Map No. I annexed;
co-ordinates: 1425'09" N, 8920'30" W); from that point, along the last-named watershed as far as the intersection of the centre-lines
of the quebradas of Cipresales and Pomola (point D on Map No. I annexed; co-ordinates: 1424'42" N, 8918'19" W); thereafter,
downstream along the centre-line of the quebrada de Pomola, until the point on that centre-line which is closest to the boundary marker
of Pomola at El Talquezalar; and from that point in a straight line as far as that marker (point E on Map No. I annexed; co-ordinates:
1424'51" N, 8917'54" W); from there in a straight line in a south-easterly direction to the boundary marker of the Cerro Piedra
Menuda (point F on Map No. I annexed; co-ordinates: 1424'02" N, 8916'40" W), and thence in a straight line to the boundary
marker of the Cerro Zapotal (point G on Map No. I annexed; co-ordinates: 1423'26" N, 8914'43" W); for the purposes of illustration,
the line is indicated on Map No. I annexed.
426. For the reasons set out in the present Judgment, in particular paragraphs 104 to 127 thereof,
THE CHAMBER,
Unanimously,
Decides that the boundary line between the Republic of El Salvador and the Republic of Honduras in the second sector of their common
frontier not described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows: that the
boundary line between the Republic of El Salvador and the Republic of Honduras in the second sector of their common frontier not
described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows:
From the Pea de Cayaguanca (Point A on Map No. I I [Map: Second Sector - Disputed Area - 36kb] annexed; co-ordinates:
1421'54" N, 8910'11" W), the boundary runs in a straight line somewhat south of east to the Loma de Los Encinos (point B on Map
No. II annexed; co-ordinates: 1421'08" N, 8908'54" W), and from there in a straight line to the hill known as El Burro or Piedra
Rajada (point C on Map No. II annexed; co-ordinates: 1422'46" N, 8907'32" W); from there the boundary runs in a straight line to
the head of the quebrada Copantillo, and follows the middle of the quebrada Copantillo downstream to its confluence with the river
Sumpul (point D on Map No. II annexed; co-ordinates: 1424'12" N, 8906'07" W), and then follows the middle of the river Sumpul
downstream to its confluence with the quebrada Chiquita or Oscura (point E on Map No. II annexed; co-ordinates: 1420'25" N,
8904'57" W); for the purposes of illustration, the line is indicated on Map No. II annexed.
427. For the reasons set out in the present Judgment, in particular paragraphs 128 to 185 thereof,
THE CHAMBER,
Unanimously,
Decides that the boundary line between the Republic of El Salvador and the Republic of Honduras in the third sector of their common
frontier not described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows: that the
boundary line between the Republic of El Salvador and the Republic of Honduras in the third sector of their common frontier not
described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows:
From the Pacacio boundary marker (point A on Map No. III [Map: Third Sector - Disputed Area - 62 kb] annexed; co-ordinates:
1406'28" N, 8849'18" W) along the ro Pacacio upstream to a point (point B on Map No. III annexed; co-ordinates: 1406'38" N,
8848'47" W), west of the Cerro Tecolate or Los Tecolates; from there up the quebrada to the crest of the Cerro Tecolate or Los
Tecolates (point C on Map No. III annexed; co-ordinates: 1406'33" N, 8848'18" W), and along the watershed of this hill as far as a
ridge approximately 1 kilometre to the north-east (point D on Map No. III annexed; co-ordinates: 1406'48" N, 8847'52" W); from
there in an easterly direction to the neighbouring hill above the source of the Torrente La Puerta (point E on Map No. III annexed; co-
ordinates: 1406'48" N, 8847'31" W) and down that stream to where it meets the river Gualsinga (point F on Map No. III annexed;
co-ordinates: 1406'19" N, 8847'01" W); from there the boundary runs along the middle of the river Gualsinga downstream to its
confluence with the river Sazalapa (point G on Map No. III annexed; co-ordinates: 1406'12" N, 8846'58" W), and thence upstream
along the middle of the river Sazalapa to the confluence of the quebrada Llano Negro with that river (point H on Map No. III annexed;
co-ordinates: 1407'11" N, 8844'21" W); from there south-eastwards to the top of the hill (point I on Map No. III annexed; co-
ordinates: 1407'01" N, 8844'07" W), and thence south-eastwards to the crest of the hill marked on the map as a spot height of
1,017 metres (point J on Map No. III annexed; co-ordinates: 1406'45" N, 8843'45" W); from there the boundary, inclining still more
to the south, runs through the triangulation point known as La Caada (point K on Map No. III annexed; co-ordinates: 1406'00" N,
8843'52" W) to the ridge joining the hills indicated on the map as Cerro El Caracol and Cerro El Sapo (through point L on Map No. III
annexed; co-ordinates: 1405'23" N, 8843'47" W) and from there to the feature marked on the map as the Portillo El Chupa Miel
(point M on Map No. III annexed; co-ordinates: 1404'35" N, 8844'10" W); from there, following the ridge, to the Cerro El Cajete
(point N on Map No. III annexed; co-ordinates: 1403'55" N, 8844'20" W), and thence to the point where the present-day road from
Arcatao to Nombre de Jess passes between the Cerro El Ocotillo and the Cerro Lagunetas (point O on Map No. III annexed; co-
ordinates: 1403'18" N, 8844'16" W); from there south-eastwards to the crest of a hill marked on the map as a spot height of
848 metres (point P on Map No. III annexed; co-ordinates: 1402'58" N, 8843'56" W); from there slightly south of eastwards to
a quebrada and down the bed of the quebrada to its junction with the Gualcuqun river (point Q on Map No. III annexed; co-ordinates:
1402'42" N, 8842'34" W); the boundary then follows the middle of the Gualcuqun river downstream to the Poza del Cajon
(point R on Map No. III annexed; co-ordinates: 1401'28" N, 8841'10" W); for purposes of illustration, this line is shown on Map
No. III annexed.
428. For the reasons set out in the present Judgment, in particular paragraphs 186 to 267 thereof,
THE CHAMBER,
By four votes to one,
Decides that the boundary line between the Republic of El Salvador and the Republic of Honduras in the fourth sector of their common
frontier not described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows: that the
boundary line between the Republic of El Salvador and the Republic of Honduras in the fourth sector of their common frontier not
described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows:
From the source of the Orilla stream (Point A on Map No. IV [Map: Fourth Sector - Disputed Area - 61kb] annexed; co-ordinates:
1353'46" N, 8820'36" W) the boundary runs through the pass of El Jobo to the source of the Cueva Hedionda stream (point B on
Map No. IV; co-ordinates: 1353'39" N, 8820'20" W), and thence down the middle of that stream to its confluence with the river
Las Caas (Point C on Map No. IV annexed; co-ordinates: 1353'19" N, 8819'00" W), and thence following the middle of the river
upstream as far as a point (point D on Map No. IV annexed; co-ordinates: 1356'14" N, 8815'33" W) near the settlement of
Las Piletas; from there eastwards over a col indicated as point E on Map No. IV annexed (co-ordinates: 1356'19" N, 8814'12" W), to
a hill indicated as point F on Map No. IV annexed (co-ordinates: 1356'11" N, 8813'40" W), and then north-eastwards to a point on
the river Negro or Pichigual (marked G on Map No. IV annexed; co-ordinates: 1357'12" N, 8813'11" W); downstream along the
middle of the river Negro or Pichigual to its confluence with the river Negro-Quiagara (point H on Map No. IV; co-ordinates:
1359'37" N, 8814'18" W); then upstream along the middle of the river Negro-Quiagara as far as the Las Pilas boundary marker
(point I on Map No. IV; co-ordinates: 1400'02" N, 8806'29" W), and from there in a straight line to the Malpaso de Similatn
(point J on Map No. IV; co-ordinates: 1359'28" N, 8804'22" W); for the purposes of illustration, the line is indicated on Map No. IV
annexed.
IN FAVOUR: Judge Sette-Camara, President of the Chamber; President Sir Robert Jennings; Vice-
President Oda; Judge ad hoc Torres Bernrdez;
AGAINST: Judge ad hoc Valticos.
429. For the reasons set out in the present Judgment, in particular paragraphs 268 to 305 thereof,
THE CHAMBER,
Unanimously,
Decides that the boundary line between the Republic of El Salvador and the Republic of Honduras in the fifth sector of their common
frontier not described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows: that the
boundary line between the Republic of El Salvador and the Republic of Honduras in the fifth sector of their common frontier not
described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows:
From the confluence with the river Torola of the stream identified in the General Treaty of Peace as the quebrada de Mansupucagua
(point A on Map No. V [Map: Fifth Sector - Disputed Area - 50kb] annexed; co-ordinates: 1353'59" N, 8754'30" W) the boundary
runs upstream along the middle of the river Torola as far as its confluence with a stream known as the quebrada del Arenal
or quebrada de Aceituno (point B on Map No. V annexed; co-ordinates: 1353'50" N, 8750'40" W); thence up the course of that
stream as far as a point at or near its source (point C on Map No. V annexed; co-ordinates: 1354'30" N, 8750'20" W), and thence in
a straight line somewhat north of east to a hill some 1,100 metres high (point D on Map No. V annexed; co-ordinates: 1355'03" N,
8749'50" W); thence in a straight line to a hill near the river Unire (point E on Map No. V annexed; co-ordinates: 1355'16" N,
8748'20" W), and thence to the nearest point on the river Unire; downstream along the middle of that river to the point known as the
Paso de Unire (point F on Map No. V annexed; co-ordinates: 1352'07" N, 8746'01" W); for the purposes of illustration, the line is
indicated on Map No. V annexed.
430. For the reasons set out in the present Judgment, in particular paragraphs 306 to 322 thereof,
THE CHAMBER,
Unanimously,
Decides that the boundary line between the Republic of El Salvador and the Republic of Honduras in the sixth sector of their common
frontier not described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows: that the
boundary line between the Republic of El Salvador and the Republic of Honduras in the sixth sector of their common frontier not
described in Article 16 of the General Treaty of Peace signed by the Parties on 30 October 1980, is as follows:
From the point on the river Goascorn known as Los Amates (point A on Map No. VI [Map: Sixth Sector - Disputed Area - 51kb]
annexed; co-ordinates: 1326'28" N, 8743'25" W), the boundary follows the course of the river downstream, in the middle of the bed,
to the point where it emerges in the waters of the Bahia La Unin, Gulf of Fonseca, passing to the north-west of the Islas Ramaditas, the
co-ordinates of the endpoint in the bay being 1324'26" N, 8749'05" W; for the purposes of illustration, the line is indicated on
Map No. VI annexed.
431. For the reasons set out in the present Judgment, in particular paragraphs 323 to 368 thereof,
THE CHAMBER,
1. By four votes to one,
Decides that the Parties, by requesting the Chamber, in Article 2, paragraph 2, of the Special Agreement of 24 May 1986, "to determine
the legal situation of the islands ...", have conferred upon the Chamber jurisdiction to determine, as between the Parties, the legal
situation of all the islands of the Gulf of Fonseca; but that such jurisdiction should only be exercised in respect of those islands which
have been shown to be the subject of a dispute; that the Parties, by requesting the Chamber, in Article 2, paragraph 2, of the Special
Agreement of 24 May 1986, "to determine the legal situation of the islands ...", have conferred upon the Chamber jurisdiction to
determine, as between the Parties, the legal situation of all the islands of the Gulf of Fonseca; but that such jurisdiction should only be
exercised in respect of those islands which have been shown to be the subject of a dispute;
IN FAVOUR: Judge Sette-Camara, President of the Chamber; President Sir Robert Jennings; Vice-
President Oda; Judge ad hoc Valticos;
AGAINST: Judge ad hoc Torres Bernrdez.
2. Decides that the islands shown to be in dispute between the Parties are:
(i) by four votes to one, El Tigre;
IN FAVOUR: Judge Sette-Camara, President of the Chamber; President Sir Robert Jennings; Vice-President Oda; Judge ad hoc
Valticos;
AGAINST: Judge ad hoc Torres Bernrdez;
(ii) unanimously, Meanguera and Meanguerita.
3. Unanimously,
Decides that the island of El Tigre is part of the sovereign territory of the Republic of Honduras. that the island of El Tigre is part of the
sovereign territory of the Republic of Honduras.
4. Unanimously,
Decides that the island of Meanguera is part of the sovereign territory of the Republic of El Salvador. that the island of Meanguera is part
of the sovereign territory of the Republic of El Salvador.
5. By four votes to one,
Decides that the island of Meanguerita is part of the sovereign territory of the Republic of El Salvador; that the island of Meanguerita is
part of the sovereign territory of the Republic of El Salvador;
IN FAVOUR: Judge Sette-Camara, President of the Chamber; President Sir Robert Jennings; Vice-President Oda; Judge ad hoc
Valticos;
AGAINST: Judge ad hoc Torres Bernrdez.
432. For the reasons set out in the present Judgment, in particular paragraphs 369 to 420 thereof,
THE CHAMBER,
1. By four votes to one,
Decides that the legal situation of the waters of the Gulf of Fonseca is as follows: the Gulf of Fonseca is an historic bay the waters
whereof, having previously to 1821 been under the single control of Spain, and from 1821 to 1839 of the Federal Republic of Central
America, were thereafter succeeded to and held in sovereignty by the Republic of El Salvador, the Republic of Honduras, and the
Republic of Nicaragua, jointly, and continue to be so held, as defined in the present Judgment, but excluding a belt, as at present
established, extending 3 miles (1 marine league) from the littoral of each of the three States, such belt being under the exclusive
sovereignty of the coastal State, and subject to the delimitation between Honduras and Nicaragua effected in June 1900, and to the
existing rights of innocent passage through the 3-mile belt and the waters held in sovereignty jointly; the waters at the central portion of
the closing line of the Gulf, that is to say, between a point on that line 3 miles (1 marine league) from Punta Amapala and a point on that
line 3 miles (1 marine league) from Punta Cosigina, are subject to the joint entitlement of all three States of the Gulf unless and until a
delimitation of the relevant maritime area be effected; that the legal situation of the waters of the Gulf of Fonseca is as follows: the Gulf
of Fonseca is an historic bay the waters whereof, having previously to 1821 been under the single control of Spain, and from 1821 to
1839 of the Federal Republic of Central America, were thereafter succeeded to and held in sovereignty by the Republic of El Salvador,
the Republic of Honduras, and the Republic of Nicaragua, jointly, and continue to be so held, as defined in the present Judgment, but
excluding a belt, as at present established, extending 3 miles (1 marine league) from the littoral of each of the three States, such belt
being under the exclusive sovereignty of the coastal State, and subject to the delimitation between Honduras and Nicaragua effected in
June 1900, and to the existing rights of innocent passage through the 3-mile belt and the waters held in sovereignty jointly; the waters at
the central portion of the closing line of the Gulf, that is to say, between a point on that line 3 miles (1 marine league) from Punta
Amapala and a point on that line 3 miles (1 marine league) from Punta Cosigina, are subject to the joint entitlement of all three States
of the Gulf unless and until a delimitation of the relevant maritime area be effected;
IN FAVOUR: Judge Sette-Camara, President of the Chamber; President Sir Robert Jennings; Judge ad hoc
Valticos; Judge ad hoc Torres Bernrdez;
AGAINST: Vice-President Oda.
2. By four votes to one,
Decides that the Parties, by requesting the Chamber, in Article 2, paragraph 2, of the Special Agreement of 24 May 1986, "to determine
the legal situation of the ... maritime spaces", have not conferred upon the Chamber jurisdiction to effect any delimitation of those
maritime spaces, whether within or outside the Gulf; that the Parties, by requesting the Chamber, in Article 2, paragraph 2, of the Special
Agreement of 24 May 1986, "to determine the legal situation of the ... maritime spaces", have not conferred upon the Chamber
jurisdiction to effect any delimitation of those maritime spaces, whether within or outside the Gulf;
IN FAVOUR: Judge Sette-Camara, President of the Chamber; President Sir Robert Jennings; Vice-President Oda; Judge ad hoc
Valticos;
AGAINST: Judge ad hoc Torres Bernrdez.
3. By four votes to one,
Decides that the legal situation of the waters outside the Gulf is that, the Gulf of Fonseca being an historic bay with three coastal States,
the closing line of the Gulf constitutes the baseline of the territorial sea; the territorial sea, continental shelf and exclusive economic zone
of El Salvador and those of Nicaragua off the coasts of those two States are also to be measured outwards from a section of the closing
line extending 3 miles (1 marine league) along that line from Punta Amapala (in El Salvador) and 3 miles (1 marine league) from Punta
Cosigina (in Nicaragua) respectively; but entitlement to territorial sea, continental shelf and exclusive economic zone seaward of the
central portion of the closing line appertains to the three States of the Gulf, El Salvador, Honduras and Nicaragua; and that any
delimitation of the relevant maritime areas is to be effected by agreement on the basis of international law. that the legal situation of the
waters outside the Gulf is that, the Gulf of Fonseca being an historic bay with three coastal States, the closing line of the Gulf constitutes
the baseline of the territorial sea; the territorial sea, continental shelf and exclusive economic zone of El Salvador and those of Nicaragua
off the coasts of those two States are also to be measured outwards from a section of the closing line extending 3 miles (1 marine league)
along that line from Punta Amapala (in El Salvador) and 3 miles (1 marine league) from Punta Cosigina (in Nicaragua) respectively;
but entitlement to territorial sea, continental shelf and exclusive economic zone seaward of the central portion of the closing line
appertains to the three States of the Gulf, El Salvador, Honduras and Nicaragua; and that any delimitation of the relevant maritime areas
is to be effected by agreement on the basis of international law.
IN FAVOUR: Judge Sette-Camara, President of the Chamber; President Sir Robert Jennings; Judge ad hoc
Valticos; Judge ad hoc Torres Bernrdez;
AGAINST: Vice-President Oda."
*
Vice-President Oda appended a declaration to the Judgment; Judges ad hoc Valticos and Torres Bernrdez appended separate opinions;
Vice-President Oda appended a dissenting opinion.
*
I. Qualits (paras. 1-26)
The Chamber recapitulates the successive phases of the proceedings, namely: notification to the Registrar, on 11 December 1986, of the
Special Agreement signed on 24 May 1986 (in force on 1 October 1986) for the submission to a Chamber of the Court of a dispute
between the two States; formation by the Court, on 8 May 1987, of the Chamber to deal with the case; filing by Nicaragua, on
17 November 1989, of an Application for permission to intervene in the case; Order by the Court, of 28 February 1990, on the question
whether Nicaragua's Application for permission to intervene was a matter within the competence of the full Court or of the Chamber;
Judgment of the Chamber of 13 September 1990 acceding to Nicaragua's application for permission to intervene (but solely in respect of
the question of the status of the waters of the Gulf of Fonseca); holding of oral proceedings.
Article 2 of the Special Agreement, which defines the subject of the dispute, reads, in an agreed English translation:
"The Parties request the Chamber:
1. To delimit the frontier line in the areas or sections not described in Article 16 of the General Peace Treaty of 30 October 1980.
2. To determine the legal situation of the islands and maritime spaces."
The Judgment then quotes the submissions of the Parties, and the "conclusions" of the intervening State, as formulated at the various
stages of the proceedings.
II. General introduction (paras. 27-39)
The dispute before the Chamber has three elements: a dispute over the land boundary; a dispute over the legal situation of islands (in the
Gulf of Fonseca); and a dispute over the legal situation of maritime spaces (within and outside the Gulf of Fonseca).
The two Parties (and the intervening State) came into being with the break-up of the Spanish Empire in Central America; their territories
correspond to administrative sub-divisions of that Empire. It was from the outset accepted that the new international boundaries should,
in accordance with the principle generally applied in Spanish America of the uti possidetis juris, follow the colonial administrative
boundaries.
After the independence of Central America from Spain was proclaimed on 15 September 1821, Honduras and El Salvador first made up,
together with Costa Rica, Guatemala and Nicaragua, the Federal Republic of Central America, corresponding to the former Captaincy-
General of Guatemala or Kingdom of Guatemala. On the disintegration of that Republic in 1839, El Salvador and Honduras, along with
the other component States, became separate States.
The Chamber outlines the development of the three elements of the dispute, beginning with the genesis of the island dispute in 1854 and
of the land dispute in 1861. Border incidents led to tension and subsequently to armed conflict in 1969, but in 1972 El Salvador and
Honduras were able to agree on the major part of their land boundary, which had not yet been delimited, leaving however six sectors to
be settled. A mediation process begun in 1978 led to a General Treaty of Peace, signed and ratified in 1980 by the two Parties, which
defined the agreed sections of the boundary.
The Treaty further provided that a Joint Frontier Commission should delimit the frontier in the remaining six sectors and "determine the
legal situation of the islands and the maritime spaces". It provided that if within five years total agreement was not reached, the Parties
would, within six months, negotiate and conclude a special agreement to submit any existing controversy to the International Court of
Justice.
As the Commission did not accomplish its task within the time fixed, the Parties negotiated and concluded on 24 May 1986 the Special
Agreement mentioned above.
III. The land boundary: Introduction (paras. 40-67)
The Parties agree that the fundamental principle for determining the land frontier is the uti possidetis juris. The Chamber notes that the
essence of the agreed principle is its primary aim of securing respect for the territorial boundaries at the time of independence, and its
application has resulted in colonial administrative boundaries being transformed into international frontiers.
In Spanish Central America there were administrative boundaries of different kinds or degrees, and the jurisdictions of general
administrative bodies did not necessarily coincide territorially with those of bodies possessing particular or special jurisdiction. In
addition to the various civil jurisdictions there were ecclesiastical ones, which the main administrative units had to follow in principle.
The Parties have indicated to which colonial administrative divisions (provinces) they claim to have succeeded. The problem is to
identify the areas, and the boundaries, which corresponded to these provinces, which in 1821 became respectively El Salvador and
Honduras. No legislative or similar material indicating this has been produced, but the Parties have submitted, inter alia, documents
referred to collectively as "titles" (ttulos), concerning grants of land by the Spanish Crown in the disputed areas, from which, it is
claimed, the provincial boundaries can be deduced.
The Chamber then analyses the various meanings of the term "title". It concludes that, reserving, for the present, the special status
El Salvador attributes to "formal title deeds to commons", none of the titles produced recording grants of land to individuals or Indian
communities can be considered as "titles" in the same sense as, for example, a Spanish Royal Decree attributing certain areas to a
particular administrative unit; they are rather comparable to "colonial effectivits" as defined in a previous case, i.e., "the conduct of the
administrative authorities as proof of the effective exercise of territorial jurisdiction in the region during the colonial period"
(I.C.J. Reports 1986, p. 586, para. 63). In some cases the grant of a title was not perfected, but the record, particularly of a survey,
remains a "colonial effectivit" which may serve as evidence of the position of a provincial boundary.
Referring to the seven sectors of the boundary agreed in the General Treaty of Peace, the Chamber assumes that the agreed boundary was
arrived at applying principles and processes similar to those urged upon the Chamber for the non-agreed sectors. Observing the
predominance of local features, particularly rivers, in the definition of the agreed sectors, the Chamber has taken some account of the
suitability of certain topographical features to provide an identifiable and convenient boundary. The Chamber is here appealing not so
much to any concept of "natural frontiers", but rather to a presumption underlying the boundaries on which
the uti possidetis juris operates.
Under Article 5 of the Special Agreement, the Chamber is to take into account the rules of international law applicable between the
Parties, "including, where pertinent, the provisions of" the Treaty. This presumably means that the Chamber should also apply, where
pertinent, even those Articles which in the Treaty are addressed specifically to the Joint Frontier Commission. One of these is Article 26
of the Treaty, to the effect that the Commission shall take as a basis for delimitation the documents issued by the Spanish Crown or any
other Spanish authority, secular or ecclesiastical, during the colonial period, and indicating the jurisdictions or limits of territories or
settlements, as well as other evidence and arguments of a legal, historical, human or any other kind, brought before it by the Parties and
admitted under international law.
Drawing attention to the difference between its task and that of the Commission, which had merely to propose a frontier line, the
Chamber observes that Article 26 is not an applicable law clause, but rather a provision about evidence. In this light, the Chamber
comments on one particular class of titles, referred to as the "formal title-deeds to commons", for which El Salvador has claimed a
particular status in Spanish colonial law, that of acts of the Spanish Crown directly determining the extent of the territorial jurisdiction of
an administrative division. These titles, the so-called ttulos ejidales, are, according to El Salvador, the best possible evidence in
relation to the application of the uti possidetis juris principle.
The Chamber does not accept any interpretation of Article 26 as signifying that the Parties have by treaty adopted a special rule or
method of determination of the uti possidetis juris boundaries, on the basis of divisions between Indian poblaciones. It was the
administrative boundaries between Spanish colonial administrative units, not the boundaries between Indian settlements as such, that
were transformed into international boundaries in 1821.
El Salvador contends that the commons whose formal title-deeds it relies on were not private properties but belonged to the municipal
councils of the corresponding poblaciones. Control over those communal lands being exercised by the municipal authorities, and over
and above them by those of the colonial province to which the commons had been declared to belong, El Salvador maintains that if such
a grant of commons to a community in one province extended to lands situated within another, the administrative control of the province
to which the community belonged was determinative for the application of the uti possidetis juris, i.e., that, on independence, the whole
area of the commons appertained to the State within which the community was situated. The Chamber, which is faced with a situation of
this kind in three of six disputed sectors, has however been able to resolve the issue without having to determine this particular question
of Spanish colonial law, and therefore sees no reason to attempt to do so.
In the absence of legislative instruments formally defining provincial boundaries, not only land grants to Indian communities but also
grants to private individuals afford some evidence as to the location of boundaries. There must be a presumption that such grants would
normally avoid straddling a boundary between different administrative authorities, and where the provincial boundary location was
doubtful the common boundaries of two grants by different provincial authorities could well have become the provincial boundary. The
Chamber therefore considers the evidence of each of these grants on its merits and in relation to other arguments, but without treating
them as necessarily conclusive.
With regard to the land that had not been the subject of grants of various kinds by the Spanish Crown, referred to as crown lands, tierras
realengas, the Parties agree that such land was not unattributed but appertained to the one province or the other and accordingly passed,
on independence, into the sovereignty of the one State or the other.
With regard to post-independence grants or titles, the so-called "republican titles", the Chamber considers that they may well provide
some evidence of the position in 1821 and both Parties have offered them as such.
El Salvador, while admitting that the uti possidetis juris is the primary element for determining the land boundary, also puts forward, in
reliance on the second part of Article 26, arguments referred to as either "arguments of a human nature" or arguments based
on effectivits. Honduras also recognizes a certain confirmatory role for effectivits and has submitted evidence of acts of
administration of its own for that purpose.
El Salvador has first advanced arguments and material relating to demographic pressures in El Salvador creating a need for territory, as
compared with the relatively sparsely populated Honduras, and to the superior natural resources said to be enjoyed by Honduras.
El Salvador, however, does not appear to claim that a frontier based on the principle of uti possidetis juris could be adjusted subsequently
(except by agreement) on the ground of unequal population density. The Chamber will not lose sight of this dimension of the matter,
which is however without direct legal incidence.
El Salvador also relies on the alleged occupation of disputed areas by Salvadorians, their ownership of land in those areas, the supply by
it of public services there and its exercise in the areas of government powers, and claims, inter alia, that the practice of effective
administrative control has demonstrated an "animus" to possess the territories. Honduras rejects any argument of "effective control",
suggesting that the concept only refers to administrative control prior to independence. It considers that, at least since 1884, no acts of
sovereignty in the disputed areas can be relied on in view of the duty to respect the status quo in a disputed area. It has however
presented considerable material to show that Honduras can also rely on arguments of a human kind.
The Chamber considers that it may have regard, in certain instances, to documentary evidence of post-
independence effectivits affording indications of the 1821 uti possidetis juris boundary, provided a relationship exists between
the effectivits and the determination of that boundary.
El Salvador drew attention to difficulties in collecting evidence in certain areas owing to interference with governmental activities due to
acts of violence. The Chamber, while appreciating these difficulties, cannot apply a presumption that evidence which is unavailable
would, if produced, have supported a particular Party's case, still less a presumption of the existence of evidence not produced. In view of
these difficulties, El Salvador requested the Chamber to consider exercising its functions under Article 66 of the Rules of Court to obtain
evidence in situ. The Parties were however informed that the Chamber did not consider it necessary to exercise the functions in question,
nor to exercise its power, under Article 50 of the Statute, to arrange for an inquiry or expert opinion in the case, as El Salvador had also
requested it to do.
*
The Chamber will examine, in respect of each disputed sector, the evidence of post-colonial effectivits. Even when claims
of effectivit are given their due weight, it may occur in some areas that, following the delimitation of the disputed sector, nationals of
one Party will find themselves in the territory of the other. The Chamber has every confidence that the necessary measures to take
account of this will be taken by the Parties.
In connection with the concept of the "critical date" the Chamber observes that there seems to be no reason why acquiescence or
recognition should not operate where there is sufficient evidence to show that the Parties have in effect clearly accepted a variation or an
interpretation of the uti possidetis juris position.
IV. First sector of the land boundary (paras. 68-103) (paras. 68-103)
The first disputed sector of the land boundary runs from the agreed tripoint where the frontiers of El Salvador, Guatemala and Honduras
converge (Cerro Montecristo) to the summit of the Cerro Zapotal (see sketch-map A).
Both Parties recognize that most of the area between the lines they put forward corresponds to the land that was the subject of a ttulo
ejidal over the mountain of Tepangisir, granted in 1776 to the Indian community of San Francisco de Cital, which was situated in,
and under the jurisdiction of, the province of San Salvador. El Salvador contends that on independence the lands so granted became part
of El Salvador, so that in 1821 the boundary of the two provinces was defined by the north-eastern boundary of the Cital ejido.
Honduras, on the other hand, points out that when the 1776 title was granted, those lands included in it were specifically stated to be in
the Honduran province of Gracias a Dios, so that the lands became on independence part of Honduras.
The Chamber considers that it is not required to resolve this question. All negotiations prior to 1972 over the dispute as to the location of
the frontier in this sector were conducted on the basis, accepted by both sides, that it was the boundary between the ejidos of Cital and
Ocotepeque that defined the frontier. The frontier corresponding to Honduras's current interpretation of the legal effect of the 1776
Cital title was first put forward in negotiations held in 1972. Moreover a title granted by Honduras in 1914, and the position taken by
Honduras in the course of tripartite negotiations held between El Salvador, Guatemala and Honduras in 1934-1935, confirmed the
agreement between the Parties that the boundary between Cital and Ocotepeque defined the frontier between them. After recalling that
the effect of the uti possidetis juris principle was not to freeze for all time the provincial boundaries, the Chamber finds that Honduras's
conduct from 1881 to 1972 may be regarded as acquiescence in a boundary corresponding to that between the Tepangisir lands of
Cital and those of Ocotepeque.
The Chamber then turns to the question of a triangular area where, according to Honduras, the 1818 title of Ocotepeque penetrated the
north-eastern boundary of Cital, and to the disagreement between the Parties as to the interpretation of the Cital survey as regards
the north-western area.
With regard to the triangular area, the Chamber does not consider that such an overlapping would have been consciously made, and that
it should only be concluded that an overlap came about by mistake if there is no doubt that the two titles are not compatible. The
identification of the various relevant geographical locations cannot however be achieved with sufficient certainty to demonstrate an
overlap.
With respect to the disagreement on the boundary of the Cital title, the Chamber concludes that on this point the Honduran
interpretation of the relevant survey record is to be preferred.
The Chamber then turns to the part of the disputed area lying between the lands comprised in the Cital title and the international
tripoint. Honduras contends that since, according to the survey, the land in this area was crown land (tierras realengas), and the survey
was being effected in the province of Gracias a Dios, these must have been tierras realengas of that province and hence are now part of
Honduras.
El Salvador however claims this area on the basis of effectivits, and points to a number of villages or hamlets belonging to the
municipality of Cital within the area. The Chamber notes however the absence of evidence that the area or its inhabitants were under
the administration of that municipality. El Salvador also relies on a report by a Honduran Ambassador stating that the lands of the
disputed area belonged to inhabitants of the municipality of Cital in El Salvador. The Chamber however does not regard this as
sufficient since to constitute an effectivit relevant to the delimitation of the frontier at least some recognition or evidence was required
of the effective administration of the municipality of Cital in the area, which, it notes, has not been proved.
El Salvador also contends that ownership of land by Salvadorians in the disputed area less than 40 kilometres from the line Honduras
claims as the frontier shows that the area was not part of Honduras, as under the Constitution of Honduras land within 40 kilometres of
the frontier may only be acquired or possessed by native Hondurans. The Chamber rejects this contention since at the very least some
recognition by Honduras of the ownership of land by Salvadorians would have to be shown, which is not the case.
The Chamber observes that in the course of the 1934-1935 negotiations agreement was reached on a particular frontier line in this area.
The agreement by the representatives of El Salvador was only ad referendum, but the Chamber notes that while the Government of
El Salvador did not ratify the terms agreed upon ad referendum, neither did it denounce them; nor did Honduras retract its consent.
The Chamber considers that it can adopt the 1935 line, primarily since for the most part it follows the watersheds, which provide a clear
and unambiguous boundary; it reiterates its view that the suitability of topographical features to provide a readily identifiable and
convenient boundary is the material aspect where no conclusion unambiguously pointing to another boundary emerges from the
documentary material.
As regards material put forward by Honduras concerning the settlement of Hondurans in the disputed areas and the exercise there of
government functions by Honduras, the Chamber finds this material insufficient to affect the decision by way of effectivits.
The Chamber's conclusion regarding the first disputed sector of the land frontier is as follows [See sketch-map A on page 35; for the
identification letters and coordinates of the various defined points, see the operative clause of the Judgment, set out above, and the
1:50,000 maps available for inspection in the Registry.]:
"It begins at the tripoint with Guatemala, the 'point known as El Trifinio on the summit of the Cerro Montecristo' ... From this point, the
frontier between El Salvador and Honduras runs in a generally easterly direction, following the direct line of watersheds, in accordance
with the agreement reached in 1935, and accepted ad referendum by the representatives of El Salvador, ...
In accordance with the 1935 agreement ... , the frontier runs 'along the watershed between the rivers Fro or Sesecapa and Del Rosario
as far as the junction of this watershed with the watershed of the basin of the quebrada de Pomola' ... ; 'thereafter in a north-easterly
direction along the watershed of the basin of the quebrada de Pomola until the junction of this watershed with the watershed between
the quebrada de Cipresales and the quebrada del Cedrn, Pea Dorada and Pomola proper' ... ; 'from that point, along the last-named
watershed as far as the intersection of the centre-lines of the quebradas of Cipresales and Pomola' ... ; 'thereafter, downstream along the
centre-line of the quebrada de Pomola, until the point on that centre-line which is closest to the boundary marker of Pomola at
El Talquezalar; and from that point in a straight line as far as that marker' ... From the boundary marker of El Talquezalar, the frontier
continues in a straight line in a south-easterly direction to the boundary marker of the Cerro Piedra Menuda ... , and thence in a straight
line to the boundary marker of the Cerro Zapotal ..."
V. Second sector of the land boundary (paras. 104-127)
The second disputed sector of the land boundary lies between the Pea de Cayaguanca, and the confluence of the stream of Chiquita or
Oscura with the river Sumpul (see sketch-map B). Honduras bases its claim chiefly on the 1742 title of Jupula, issued in the context of
the long-standing dispute between the Indians of Ocotepeque in the province of Gracias a Dios, and those of Cital, in the province of
San Salvador. The principal outcome was the confirmation and agreement of the boundaries of the lands of Jupula, over which the
Indians of Ocotepeque claimed to have rights and which were attributed to the Indians of Cital. It was however recorded that the
inhabitants of Ocotepeque, having recognized the entitlement of the inhabitants of Cital to the land surveyed, also requested "that there
be left free for them a mountain called Cayaguanca which is above the Jupula river, which is crown land," and this request was acceded
to.
The Chamber finds that the Jupula title was evidence that in 1742 the mountain of Cayaguanca was tierras realengas and since the
community of Ocotepeque, in the Province of Gracias a Dios, was to cultivate it, it concludes that the mountain was tierras realengas of
that province, for which reason the mountain must on independence have formed part of Honduras on the basis of the uti possidetis juris.
The Chamber then turns to the location and extent of the mountain, which, according to Honduras, extended over the whole of the
disputed area in this sector, a claim disputed by El Salvador. In addition to arguments based on the wording of the 1742 title, El Salvador
refers to the 1818 title of Ocotepeque, issued to the community of Ocotepeque to re-establish the boundary markers of its lands,
contending that the mountain of Cayaguanca would necessarily have been included in that title if it had truly been awarded to the
inhabitants of Ocotepeque in 1742. The Chamber does not accept this argument; it finds that in 1821 the Indians of Ocotepeque, in the
province of Gracias a Dios, were entitled to the land resurveyed in 1818, and also to rights of usage over the mountain of Cayaguanca
somewhere to the east, and that the area subject to these rights, being tierras realengas of the province of Gracias a Dios, became
Honduran upon independence.
The problem remains, however, of determining the extent of the mountain of Cayaguanca. The Chamber sees no evidence of its
boundaries, and in particular none to support the Honduran claim that the area so referred to in 1742 extended as far east as the river
Sumpul, as claimed by Honduras.
The Chamber next considers what light might be thrown on the matter by the republican title invoked by El Salvador, referred to as that
of Dulce Nombre de la Palma, granted in 1833 to the community of La Palma in El Salvador. The Chamber considers this title
significant in that it showed how the uti possidetis juris position was understood when it was granted, i.e., very shortly after
independence. The Chamber examines in detail the Parties' conflicting interpretation of the title; it does not accept El Salvador's
interpretation whereby it would extend as far west as the Pea de Cayaguanca, and as co-terminous with the land surveyed in 1742 for
the Jupula title, and concludes that there was an intervening area not covered by either title. On this basis the Chamber determines the
course of the northwestern boundary of the title of Dulce Nombre de la Palma; the eastern boundary, as recognized by both Parties, is the
river Sumpul.
The Chamber then examines three Honduran republican titles in the disputed area, concluding that they do not conflict with the Dulce
Nombre de la Palma title so as to throw doubt on its interpretation.
The Chamber goes on to examine the effectivits claimed by each Party to ascertain whether they support the conclusion based on the
latter title. The Chamber concludes that there is no reason to alter its findings as to the position of the boundary in this region.
The Chamber next turns to the claim by El Salvador to a triangular strip along and outside the north-west boundary of the Dulce Nombre
de la Palma title, which El Salvador claims to be totally occupied by Salvadorians and administered by Salvadorian authorities. No
evidence to that effect has however been laid before the Chamber. Nor does it consider that a passage in the Reply of Honduras regarded
by El Salvador as an admission of the existence of Salvadorian effectivits in this area can be so read. There being no other evidence to
support El Salvador's claim to the strip in question, the Chamber holds that it appertains to Honduras, having formed part of the
"mountain of Cayaguanca" attributed to the community of Ocotepeque in 1742.
The Chamber turns finally to the part of the boundary between the Pea de Cayaguanca and the western boundary of the area covered
by the Dulce Nombre de la Palma title. It finds that El Salvador has not made good any claim to any area further west than the Loma de
los Encinos or "Santa Rosa hillock", the most westerly point of the Dulce Nombre de la Palma title. Noting that Honduras has only
asserted a claim, on the basis of the rights of Ocotepeque to the "mountain of Cayaguanca", so far south as a straight line joining the
Pea de Cayaguanca to the beginning of the next agreed sector, the Chamber considers that neither the principle ne ultra petita, nor any
suggested acquiescence by Honduras in the boundary asserted by it, debars the Chamber from enquiring whether the "mountain of
Cayaguanca" might have extended further south, so as to be co-terminous with the eastern boundary of the Jupula title. In view of the
reference in the latter to Cayaguanca as lying east of the most easterly landmark of Jupula, the Chamber considers that the area between
the Jupula and the la Palma lands belongs to Honduras, and that in the absence of any other criteria for determining the southward extent
of that area, the boundary between the Pea de Cayaguanca and the Loma de los Encinos should be a straight line.
The Chamber's conclusion regarding the course of the frontier in the second disputed sector is as follows [See sketch-map B on page 36;
for the indentification letters and coordinates of the various defined points, see the operative clause of the Judgment, set out above, and
the 1:50,000 maps available for inspection in the Registry.]:
"From ... the Pea de Cayaguanca, the frontier runs in a straight line somewhat south of east to the Loma de Los Encinos ... , and from
there in a straight line on a bearing of N 48 E, to the hill shown on the map produced by El Salvador as El Burro (and on the Honduran
maps and the United States Defense Mapping Agency maps as Piedra Rajada) ... The frontier then takes the shortest course to the head of
the quebrada del Copantillo, and follows the quebrada del Copantillo downstream to its confluence with the river Sumpul ... , and
follows the river Sumpul in turn downstream until its confluence with the quebrada Chiquita or Oscura ..."
VI. Third sector of the land boundary (paras. 128-185)
The third sector of the land boundary in dispute lies between the boundary marker of the Pacacio, on the river of that name, and the
boundary marker Poza del Cajn, on the river known as El Amatillo or Gualcuqun (see sketch-map C).
In terms of the grounds asserted for the claims of the Parties the Chamber divides the disputed area into three parts.
In the first part, the north-western area, Honduras invokes the uti possidetis juris of 1821 on the basis of land titles granted between 1719
and 1779. El Salvador on the contrary claims the major part of the area on the basis of post-independence effectivits or arguments of a
human nature. It does however claim a portion of the area as part of the lands of the 1724 title of Arcatao.
In the second part, the essential question is the validity, extent and relationship to each other of the Arcatao title relied on by El Salvador
and 18th century titles invoked by Honduras.
In the third part, the south-east section, there is a similar conflict between the Arcatao title and a lost title, that of Nombre de Jess in
the province of San Salvador, on the one hand, and the Honduran titles of San Juan de Arcatao, supplemented by the Honduran
republican titles of La Virtud and San Sebastin del Palo Verde. El Salvador claims a further area, outside the asserted limits of the
Arcatao and Nombre de Jess titles, on the basis of effectivits and human arguments.
The Chamber first surveys the uti possidetis juris position on the basis of the various titles produced.
With regard to the first part of the third sector, the Chamber upholds Honduras's contention in principle that the position of the pre-
independence provincial boundary is defined by two 18th century Honduran titles. After first reserving the question of precisely where
their southern limits lay, since if the Chamber found in favour of El Salvador's claim based on effectivits, it would not have to be
considered, the Chamber ultimately determines the boundary in this area on the basis of these titles.
As for the second part of the third sector, the Chamber considers it impossible to reconcile all the landmarks, distances and directions
given in the various 18th century surveys: the most that can be achieved is a line which harmonizes with such features as are identifiable
with a high degree of probability, corresponds more or less to the recorded distances and does not leave any major discrepancy
unexplained. The Chamber considers that three features are identifiable and that these three reference points make it possible to
reconstruct the boundary between the Province of Gracias a Dios and that of San Salvador in the area under consideration and thus
the uti possidetis juris line, which the Chamber describes.
With regard to the third part of the sector, the Chamber considers that on the basis of the reconstructed 1742 title of Nombre de Jess
and the 1766 and 1786 surveys of San Juan de Arcatao, it is established that the uti possidetis juris line corresponded to the boundary
between those two properties, which line the Chamber describes. In order to define the line more precisely the Chamber considers it
legitimate to have regard to the republican titles granted by Honduras in the region, the line found by the Chamber being consistent with
what it regards as the correct geographical location of those titles.
Having completed its survey of the uti possidetis juris position, the Chamber examines the claims made in the whole of the third sector
on the basis of effectivits. Regarding the claims made by El Salvador on such grounds, the Chamber is unable to regard the relevant
material as sufficient to affect its conclusion as to the position of the boundary. The Chamber reaches the same conclusion as regards the
evidence of effectivits submitted by Honduras.
The Chamber's conclusion regarding the course of the boundary in the third sector is as follows [See sketch-map C on page 37; for the
identification letters and coordinates of the various defined points, see the operative clause of the Judgment, set out above, and the
1:50,000 maps available for inspection in the Registry.]:
"From the Pacacio boundary marker ... along the ro Pacacio upstream to a point ... west of the Cerro Tecolate or Los Tecolates; from
there up the quebrada to the crest of the Cerro Tecolato or Los Tecolates ... , and along the watershed of this hill as far as a ridge
approximately 1 kilometre to the north-east ... ; from there in an easterly direction to the neighbouring hill above the source of the
Torrente La Puerta ... and down that stream to where it meets the river Gualsinga ... ; from there the boundary runs along the middle of
the river Gualsinga downstream to its confluence with the Sazalapa ... , and thence upstream along the middle of the river Sazalapa to the
confluence with the river Sazalapa of the quebrada Llano Negro ... ; from there south-eastwards to the hill indicated ... , and thence to the
crest of the hill marked on maps as being an elevation of 1,017 metres ... ; from there the boundary, inclining still more to the south, runs
through the triangulation point known as La Caada ... to the ridge joining the hills indicated on the El Salvador map as
Cerro El Caracol and Cerro El Sapo ... , and from there to the feature marked on the maps as the Portillo El Chupa Miel ... ; from there
following the ridge to the Cerro El Cajete ... , and thence to the point where the present-day road from Arcatao to Nombre de Jess
passes between the Cerro El Ocotillo and the Cerro Lagunetas ... ; from there south-eastwards, to the top of the hill ... marked on the
maps with a spot height of 848 metres; from there slightly south of east to a small quebrada; eastwards down the bed of the quebrada to
its junction with the river Amatillo or Gualcuqun ... ; the boundary then follows the middle of the Gualcuqun river downstream to
the Poza del Cajn ... , the point where the next agreed sector of boundary begins."
VII. Fourth sector of the land boundary (paras. 186-267) (paras. 186-267)
The fourth and longest disputed sector of the land boundary, also involving the largest area in dispute, lies between the source of the
Orilla stream and the Malpaso de Similatn boundary marker (see sketch-map D).
The principal issue in this sector, at least as regards the size of the area concerned, is whether the boundary follows the river Negro-
Quiagara, as Honduras contends, or a line contended for by El Salvador, some 8 kilometres to the north. In terms of
the uti possidetis juris principle, the issue is whether or not the province of San Miguel, which on independence became part of
El Salvador, extended to the north of that river or whether on the contrary the latter was in 1821 the boundary between that province and
the province of Comayagua, which became part of Honduras. El Salvador relies on a title issued in 1745 to the communities of Arambala
and Perqun in the province of San Miguel; the lands so granted extended north and south of the river Negro-Quiagara, but Honduras
contends that, north of that river, the lands were in the province of Comayagua.
The Chamber first sets out the relevant events, in particular a dispute between the Indian community of Arambala and Perqun, in the
province of San Miguel, and an Indian community established in Jocora or Jocoara in the province of Comayagua. The position of the
boundary between the province of San Miguel and that of Comayagua was one of the main issues in the dispute between the two
communities, which gave rise to a judicial decision of 1773. In 1815 a decision was issued by the Real Audiencia of Guatemala
confirming the rights of the Indians of Arambala-Perqun. The Parties made extensive reference to these decisions in support of their
contentions as to the location of the boundary; the Chamber is however reluctant to base a conclusion, one way or the other, on the 1773
decision and does not regard the 1815 one as wholly conclusive in respect of the location of the provincial boundary.
The Chamber then considers a contention by Honduras that El Salvador had in 1861 admitted that the Arambala-
Perqun ejidos extended across the provincial boundary. It refers to a note of 14 May 1861 in which the Minister for Foreign Relations
of El Salvador suggested negotiations to settle a long-standing dispute between the inhabitants of the villages of Arambala and Perqun,
on the one hand, and the village of Jocoara, on the other, and to the report of surveyors appointed to resolve the inter-village dispute. It
considers this note to be significant not only as, in effect, a recognition that the lands of the Arambala-Perqun community had, prior to
independence, straddled the provincial boundary, but also as recognition that, as a result, they straddled the international frontier.
The Chamber then turns to the south-western part of the disputed boundary, referred to as the sub-sector of Colomoncagua. The problem
here is, in broad terms, the determination of the extent of the lands of Colomoncagua, province of Comayagua (Honduras), to the west,
and those of the communities of Arambala-Perqun and Torola, Province of San Miguel (El Salvador), to the east and south-east. Both
Parties rely on titles and other documents of the colonial period; El Salvador has also submitted a remeasurement and renewed title of
1844. The Chamber notes that apart from the difficulties of identifying landmarks and reconciling the various surveys, the matter is
complicated by doubts each Party casts on the regularity or relevance of titles invoked by the other.
After listing chronologically the titles and documents claimed by the one side or the other to be relevant, the Chamber assesses five of
these documents to which the Parties took objection on various grounds.
The Chamber goes on to determine, on the basis of an examination of the titles and an assessment of the arguments advanced by the
Parties by reference to them, the line of the uti possidetis juris in the sub-sector under consideration. Having established that the inter-
provincial boundary was, in one area, the river Las Caas, the Chamber relies on a presumption that such a boundary is likely to follow
the river so long as its course is in the same general direction.
The Chamber then turns to the final section of the boundary between the river Las Caas and the source of the Orilla stream (end-point
of the sector). With respect to this section, the Chamber accepts the line claimed by Honduras on the basis of a title of 1653.
The Chamber next addresses the claim of El Salvador, based upon the uti possidetis juris in relation to the concept of tierras
realengas (crown land), to areas to the west and south-west of the land comprised in the ejidos of Arambala Perqun, lying on each side
of the river Negro-Quiagara, bounded on the west by the river Negro-Pichigual. The Chamber finds in favour of part of El Salvador's
claim, south of the river Negro-Pichigual, but is unable to accept the remainder.
The Chamber has finally to deal with the eastern part of the boundary line, that between the river Negro-Quiagara and Malpaso de
Similatn. An initial problem is that the Parties do not agree on the position of the Malpaso de Similatn, although this point defines
one of the agreed sectors of the boundary as recorded in Article 16 of the 1980 Peace Treaty, the two locations contended for being
2,500 metres apart. The Chamber therefore concludes that there is a dispute between the Parties on this point, which it has to resolve.
The Chamber notes that this dispute is part of a disagreement as to the course of the boundary beyond the Malpaso de Similatn, in the
sector which is deemed to have been agreed. While it does not consider that it has jurisdiction to settle disputed questions in an "agreed"
sector, neither does it consider that the existence of such a disagreement affects its jurisdiction to determine the boundary up to and
including the Malpaso de Similatn.
Noting that neither side has offered any evidence whatever as to the line of the uti possidetis juris in this region, the Chamber, being
satisfied that this line is impossible to determine in this area, considers it right to fall back on equity infra legem, in conjunction with an
unratified delimitation of 1869. The Chamber considers that it can in this case resort to the line then proposed in negotiations, as a
reasonable and fair solution in all the circumstances, particularly since there is nothing in the records of the negotiations to suggest any
fundamental disagreement between the Parties on that line.
The Chamber then considers the question of the effectivits El Salvador claims in the area north of the river Negro-Quiagara, which the
Chamber has found to fall on the Honduran side of the line of the uti possidetis juris, as well as the areas outside those lands. After
reviewing the evidence presented by El Salvador, the Chamber finds that, to the extent that it can relate various place-names to the
disputed areas and to the uti possidetis juris boundary, it cannot regard this material as sufficient evidence of any kind
of effectivits which could be taken into account in determining the boundary.
Turning to the effectivits claimed by Honduras, the Chamber does not see here sufficient evidence of Honduran effectivits to an area
clearly shown to be on the El Salvador side of the boundary line to justify doubting that that boundary represents
the uti possidetis juris line.
The Chamber's conclusion regarding the course of the boundary in the fourth disputed sector is as follows [See sketch-map D on page
38; for the identification letters and coordinates of the various defined points, see the operative clause of the Judgment, set out above,
and the 1:50,000 maps available for inspection in the Registry.]:
"from the source of the Orilla stream ... the boundary runs through the pass of El Jobo to the source of the Cueva Hedionda stream ... ,
and thence down the middle of that stream to its confluence with the river Las Caas ... , and thence following the middle of the river
upstream as far as a point ... near the settlement of Las Piletas; from there eastwards over a col ... to a hill ... , and then north-eastwards to
a point on the river Negro or Pichigual ... ; downstream along the middle of the river Negro or Pichigual to its confluence with the river
Negro-Quiaguara ... ; then upstream along the middle of the river Negro-Quiaguara as far as the Las Pilas boundary marker ... , and from
there in a straight line to the Malpaso de Similatn as identified by Honduras".
VIII. Fifth sector of the land boundary (paras. 268-305)
The fifth disputed sector extends from "the point on the north bank of the river Torola where it is joined by the Manzupucagua stream" to
the Paso de Unire in the Unire river (see sketch-map E).
El Salvador's claim is based essentially on the ttulo ejidal granted to the village of Polors, Province of San Miguel, in 1760,
following a survey; the boundary line El Salvador claims is what it considers to be the northern boundary of the lands comprised in that
title, save for a narrow strip on the western side, claimed on the basis of "human arguments".
Honduras, while disputing El Salvador's geographic interpretation of the Polors title, concedes that it extended across part of the river
Torola, but nevertheless claims that the frontier today should follow that river. It contends that the northern part of the ejidos granted to
Polors in 1760, including all the lands north of the river and also extending south of it, had formerly been the land of San Miguel de
Sapigre, a village which had disappeared owing to an epidemic some time after 1734, and that the village had been in the jurisdiction of
Comayagua, so that those lands, although granted to Polors, remained within that jurisdiction. It follows, according to Honduras, that
the uti possidetis juris line ran along the boundary between those lands and the other Polors lands; but Honduras concedes that as a
result of events in 1854 it acquiesced in a boundary further north, formed by the Torola. Alternatively Honduras claims the Polors
lands north of the river on the basis that El Salvador acquiesced, in the 19th century, in the Torola as frontier. The western part of the
disputed area, which Honduras considers to fall outside the Polors title, is claimed by it as part of the lands of Cacaoterique, a village
in the jurisdiction of Comayagua.
Noting that the title of Polors was granted by the authorities of the province of San Miguel, the Chamber considers that it must be
presumed that the lands comprised in the survey were all within the jurisdiction of San Miguel, a presumption which, the Chamber notes,
is supported by the text.
After examining the available material as to the existence, location and extent of the village of San Miguel de Sapigre, the Chamber
concludes that the claim of Honduras through that extinct village is not supported by sufficient evidence; it does not therefore have to go
into the question of the effect of the inclusion in an ejido of one jurisdiction of tierras realengas of another. It concludes that
the ejido granted in 1760 to the village of Polors, in the Province of San Miguel, was wholly situated in that province and that
accordingly the provincial boundary lay beyond the northern limit of that ejido or coincided with it. There being equally no evidence of
any change in the situation between 1760 and 1821, the uti possidetis juris line may be taken to have been in the same position.
The Chamber then examines the claim of Honduras that, whatever the 1821 position, El Salvador had, by its conduct between 1821 and
1897, acquiesced in the river Torola as boundary. The conduct in question was the granting by the Government of El Salvador, in 1842,
of a title to an estate that both parties claim was carved out of the ejidos of Polors and El Salvador's reaction, or lack of reaction, to the
granting of two titles over lands north of the river Torola by Honduras in 1856 and 1879. From an examination of these events, the
Chamber does not find it possible to uphold Honduras's claim that El Salvador acquiesced in the river Torola as the boundary in the
relevant area.
The Chamber goes on to interpret the extent of the Polors ejido as surveyed in 1760, on the face of the text and in the light of
developments after 1821. Following a lengthy and detailed analysis of the Polors title, the Chamber concludes that neither of the
interpretations of it by the Parties can be reconciled with the relevant landmarks and distances; the inconsistency crystallized during the
negotiations that led up to the unratified Cruz-Letona Convention in 1884. In the light of certain republican titles, the Chamber arrives at
an interpretation of the Polors title which, if not perfectly in harmony with all the relevant data, produces a better fit than either of the
Parties' interpretations. As to neighbouring titles, the Chamber takes the view that, on the material available, no totally consistent
mapping of the Polors title and the survey of Cacaoterique can be achieved.
In the eastern part of the sector, the Chamber notes that the Parties agree that the river Unire constitutes the boundary of their territories
for some distance upstream of the "Paso de Unire", but disagree as to which of two tributaries is to be regarded as the headwaters of the
Unire. Honduras claims that between the Unire and the headwaters of the Torola the boundary is a straight line corresponding to the
southwestern limit of the lands comprised in the 1738 Honduran title of San Antonio de Padua. After analysing the Polors title and
1682 and 1738 surveys of San Antonio, the Chamber finds that it is not convinced by the Honduran argument that the San Antonio lands
extended westwards across the river Unire and holds that it was the river which was the uti possidetis juris line, as claimed by
El Salvador.
To the west of the Polors lands, since El Salvador's claim to land north of the river is based solely on the Polors title (save for the
strip on the west claimed on the basis of "human arguments"), the river Torola forms the boundary between the Polors lands and the
starting point of the sector. With regard to the strip of land claimed by El Salvador on the west, the Chamber considers that, for lack of
evidence, this claim cannot be sustained.
Turning finally to the evidence of effectivits submitted by Honduras with respect to all six sectors, the Chamber concludes that this is
insufficient to justify re-examining its conclusion as to the boundary line.
The Chamber's conclusion regarding the course of the boundary in the fifth disputed sector is as follows [See sketch-map E on page 39;
for the identification letters and coordinates of the various defined points, see the operative clause of the Judgment, set out above, and the
1:50,000 maps available for inspection in the Registry.]:
"From the confluence with the river Torola of the stream identified in the General Treaty of Peace as the quebrada de Mansupucagua ...
the boundary runs upstream along the middle of the river Torola as far as its confluence with a stream known as the quebrada del Arenal
or quebrada de Aceituno ...; thence up the middle of the course of that stream as far as [a] point, at or near its source, ..., and thence in a
straight line somewhat north of east to a hill some 1,100 metres high ...; thence in a straight line to a hill near the river Unire ..., and
thence to the nearest point on the river Unire; downstream along that river to the point known as the Paso de Unire ..."
IX. Sixth sector of the land boundary (paras. 306-322) (paras. 306-322)
The sixth and final disputed sector of the land boundary is that between a point on the river Goascorn known as Los Amates, and the
waters of the Gulf of Fonseca (see sketch-map F). Honduras contends that in 1821 the river Goascorn constituted the boundary
between the colonial units to which the two States have succeeded, that there has been no material change in the course of the river since
1821, and that the boundary therefore follows the present stream flowing into the Gulf north-west of the Islas Ramaditas in the Bay of
La Unin. El Salvador however claims that it is a previous course followed by the river which defines the boundary and that this course
can be traced and reaches the Gulf at Estero La Cut.
The Chamber begins by examining an argument El Salvador bases on history. The Parties agree that during the colonial period a river
called the Goascorn constituted the boundary between the province of San Miguel and the Alcalda Mayor de Minas of Tegucigalpa,
and that El Salvador succeeded on independence to the territory of the province; but El Salvador denies that Honduras acquired any
rights over the former territory of the Alcalda Mayor of Tegucigalpa, which according to El Salvador did not in 1821 belong to the
province of Honduras but was an independent entity. The Chamber however observes that on the basis of the uti possidetis juris,
El Salvador and Honduras succeeded to all the relevant colonial territories, leaving no terra nullius, and that the former Alcalda Mayor
was at no time after 1821 an independent state additional to them. Its territory had to pass either to El Salvador or to Honduras and the
Chamber understands it to have passed to Honduras.
The Chamber observes that El Salvador's argument of law, on the basis that the former bed of the river Goascorn forms
the uti possidetis juris boundary, is that where a boundary is formed by the course of a river and the stream suddenly forms a new bed,
this process of "avulsion" does not bring about a change in the boundary, which continues along the old channel. No record of an abrupt
change of course having occurred has been brought to the Chamber's attention, but were the Chamber satisfied that the course was earlier
so radically different from its present one, then an avulsion might reasonably be inferred. The Chamber notes that there is no scientific
evidence that the previous course was such that the river debouched in the Estero La Cut rather than in any of the other neighbouring
inlets in the coastline.
El Salvador's case appears to be that if the change in the river's course occurred after 1821, the river was the boundary which under
the uti possidetis juris had become the international frontier, and would have been maintained as it was by virtue of a rule of international
law; if the course changed before 1821 and no further change took place after 1821, El Salvador's claim to the "old" course as the
modern boundary would be based on a rule concerning avulsion which would be one not of international law but of Spanish colonial law.
El Salvador has not committed itself to an opinion on the position of the river in 1821, but does contend that a rule on avulsion
supporting its claim was part of Spanish colonial law.
In the Chamber's view, however, any claim by El Salvador that the boundary follows an old course of the river abandoned at some
time before 1821 must be rejected. It is a claim that was first made in 1972 and is inconsistent with the previous history of the dispute.
The Chamber then turns to the evidence concerning the course of the Goascorn in 1821. El Salvador relies on certain titles to private
lands, beginning with a 1695 survey. Honduras produces land titles dating from the 17th and 19th centuries as well as a map or chart of
the Gulf of Fonseca prepared by an expedition in 1794-1796, and a map of 1804.
The Chamber considers that the report of the expedition that led to the preparation of the 1796 map, and the map itself, leave little room
for doubt that in 1821 the Goascorn was already flowing in its present-day course. It emphasizes that the 1796 map is not one which
purports to indicate frontiers or political divisions, but the visual representation of what was recorded in the contemporary report. The
Chamber sees no difficulty in basing a conclusion on the expedition report combined with the map.
The Chamber adds that similar weight may be attached to the conduct of the Parties in negotiations in 1880 and 1884. In 1884 it was
agreed that the Goascorn river was to be regarded as the boundary between the two Republics, "from its mouth in the Gulf of
Fonseca ... upstream as far as the confluence with the Guajiniquil or Pescado river ...", and the 1880 record refers to the boundary
following the river from its mouth "upstream in a north-easterly direction", i.e., the direction taken by the present course, not the
hypothetical old course of the river. The Chamber also observes that an interpretation of these texts as referring to the old course of the
river is untenable in view of the cartographic material of the period, presumably available to the delegates, which pointed
overwhelmingly to the river being then in its present course and forming the international boundary.
Referring to a suggestion by El Salvador that the river Goascorn would have returned to its old course had it not been prevented from
so doing by a wall or dike built by Honduras in 1916, the Chamber does not consider that this allegation, even if proved, would affect its
decision.
At its mouth in the Bay of La Unin the river divides into several branches, separated by islands and islets. Honduras has indicated that
its claimed boundary passes to the north-west of these islands, thus leaving them all in Honduran territory. El Salvador, contending as it
does that the boundary does not follow the present course of the Goascorn at all, has not expressed a view on whether a line following
that course should pass north-west or south-east of the islands or between them. The area at stake is very small and the islets involved do
not seem to be inhabited or habitable. The Chamber considers, however, that it would not complete its task of delimiting the sixth sector
were it to leave unsettled the question of the choice of one of the present mouths of the Goascorn as the situation of the boundary line.
It notes at the same time that the material on which to found a decision is scanty. After describing the position taken by Honduras since
negotiations held in 1972, as well as its position during the work of the Joint Frontier Commission and in its submissions, the Chamber
considers that it may uphold the relevant Honduran submissions in the terms in which they were presented.
The Chamber's conclusion regarding the sixth disputed sector is as follows [See sketch-map F on page 40; for the identification letters
and coordinates of the various defined points, see the operative clause of the Judgment, set out above, and the 1:50,000 maps available
for inspection in the Registry.]:
"From the point known as Los Amates ... the boundary follows the middle of the bed of the river Goascorn to the point where it
emerges in the waters of the Bahia La Union, Gulf of Fonseca, passing to the north-west of the Islas Ramaditas."
X. Legal situation of the islands (paras. 323-368) (paras. 323-368)
The major islands in the Gulf are indicated on sketch-map G annexed. El Salvador asks the Chamber to declare that it has sovereignty
over all the islands within the Gulf except Zacate Grande and the Farallones; Honduras asks it to declare that only Meanguera and
Meanguerita islands are in dispute between the Parties and that Honduras has sovereignty over them.
In the view of the Chamber the provision of the Special Agreement that it determine "la situacin jurdica insular" confers upon it
jurisdiction in respect of all the islands of the Gulf. A judicial determination, however, is only required in respect of such islands as are in
dispute between the Parties; this excludes, inter alia, the Farallones, which are recognized by both Parties as belonging to Nicaragua.
The Chamber considers that prima facie the existence of a dispute over an island can be deduced from the fact of its being the subject of
specific and argued claims. Noting that El Salvador has pressed its claim to El Tigre island with arguments in support and that Honduras
has advanced counter-arguments, though with the object of showing that there is no dispute over El Tigre, the Chamber considers that,
either since 1985 or at least since issue was joined in these proceedings, the islands in dispute are El Tigre, Meanguera and Meanguerita.
Honduras contends however that, since the 1980 General Treaty of Peace uses the same terms as Article 2, paragraph 2, of the Special
Agreement, the jurisdiction of the Chamber must be limited to the islands in dispute at the time the Treaty was concluded, i.e.,
Meanguera and Meanguerita, the Salvadorian claim to El Tigre having been made only in 1985. The Chamber however observes that the
question whether a given island is in dispute is relevant, not to the question of the existence of jurisdiction, but to that of its exercise.
Honduras also claims that there is no real dispute over El Tigre, which has since 1854 been recognized by El Salvador as belonging to
Honduras, but that El Salvador has made a belated claim to it as a political or tactical move. The Chamber notes that for it to find that
there is no dispute would require it first to determine that El Salvador's claim is wholly unfounded, and to do so can hardly be viewed as
anything but the determination of a dispute. The Chamber therefore concludes that it should determine whether Honduras or El Salvador
has jurisdiction over each of the islands of El Tigre, Meanguera and Meanguerita.
Honduras contends that by virtue of Article 26 of the General Treaty of Peace the law applicable to the dispute is solely
the uti possidetis juris of 1821, while El Salvador maintains that the Chamber has to apply the modern law on acquisition of territory and
look at the effective exercise or display of State sovereignty over the islands as well as historical titles.
The Chamber has no doubt that the determination of sovereignty over the islands must start with the uti possidetis juris. In 1821, none of
the islands of the Gulf, which had been under the sovereignty of the Spanish Crown, were terra nullius. Sovereignty over them could
therefore not be acquired by occupation and the matter was thus one of the succession of the newly-independent States to the islands.
The Chamber will therefore consider whether the appurtenance in 1821 of each disputed island to one or the other of the various
administrative units of the Spanish colonial structure can be established, regard being had not only to legislative and administrative texts
of the colonial period, but also to "colonial effectivits". The Chamber observes that in the case of the islands the legal and
administrative texts are confused and conflicting, and that it is possible that Spanish colonial law gave no clear and definite answer as to
the appurtenance of some areas. It therefore considers it particularly appropriate to examine the conduct of the new States during the
period immediately after 1821. Claims then made, and the reaction - or lack of reaction - to them may throw light on the contemporary
appreciation of what the situation in 1821 had been, or should be taken to have been.
The Chamber notes that El Salvador claims all the islands in the Gulf (except Zacate Grande) on the basis that during the colonial period
they were within the jurisdiction of the township of San Miguel in the colonial province of San Salvador, which was in turn within the
jurisdiction of the Real Audiencia of Guatemala. Honduras asserts that the islands formed part of the bishopric and province of
Honduras, that the Spanish Crown had attributed Meanguera and Meanguerita to that province and that ecclesiastical jurisdiction over
the islands appertained to the parish of Choluteca and the Guardana of Nacaome, assigned to the bishopric of Comayagua. Honduras
has also presented an array of incidents and events by way of colonial effectivits.
The fact that the ecclesiastical jurisdiction has been relied on as evidence of "colonial effectivits" presents difficulties, as the presence
of the church on the islands, which were sparsely populated, was not permanent.
The Chamber's task is made more difficult by the fact that many of the historical events relied on can be, and have been, interpreted in
different ways and thus used to support the arguments of either Party.
The Chamber considers it unnecessary to analyse in further detail the arguments each Party advances to show that it acquired sovereignty
over some or all of the islands by the application of the uti possidetis juris principle, the material available being too fragmentary and
ambiguous to admit of any firm conclusion. The Chamber must therefore consider the post-independence conduct of the Parties, as
indicative of what must have been the 1821 position. This may be supplemented by considerations independent of
the uti possidetis juris principle, in particular the possible significance of the conduct of the Parties as constituting acquiescence. The
Chamber also notes that under Article 26 of the General Treaty of Peace, it may consider all "other evidence and arguments of a legal,
historical, human or other kind, brought before it by the Parties and admitted under international law".
The law of acquisition of territory, invoked by El Salvador, is in principle clearly established and buttressed by arbitral and judicial
decisions. The difficulty with its application here is that it was developed primarily to deal with the acquisition of sovereignty over terra
nullius. Both Parties however assert a title of succession from the Spanish Crown, so that the question arises whether the exercise or
display of sovereignty by the one Party, particularly when coupled with lack of protest by the other, could indicate the presence of
an uti possidetis juris title in the former Party, where the evidence based on titles or colonial effectivits is ambiguous. The Chamber
notes that in the Minquiers and Ecrehos case in 1953 the Court did not simply disregard the ancient titles and decide on the basis of more
recent displays of sovereignty.
In the view of the Chamber, where the relevant administrative boundary in the colonial period was ill-defined or its position disputed, the
behaviour of the two States in the years following independence may serve as a guide to where the boundary was, either in their shared
view, or in the view acted on by one and acquiesced in by the other.
Being uninhabited or sparsely inhabited, the islands did not arouse any interest or dispute until the years nearing the mid-19th century.
What then occurred appears to be highly material. The islands were not terra nullius and in legal theory each island already appertained
to one of the Gulf States as heir to the appropriate part of the Spanish colonial possession, which precluded acquisition by occupation;
but effective possession by one of the States of an island could constitute a post-colonial effectivit, throwing light on the contemporary
appreciation of the legal situation. Possession backed by the exercise of sovereignty may confirm the uti possidetis juris title. The
Chamber does not find it necessary to decide whether such possession could be recognized even in contradiction of such a title, but in the
case of the islands, where the historical material of colonial times is confused and contradictory and independence was not immediately
followed by unambiguous acts of sovereignty, this is practically the only way in which the uti possidetis juris could find formal
expression.
The Chamber deals first with El Tigre, and reviews the historical events concerning it from 1833 onward. Noting that Honduras has
remained in effective occupation of the island since 1849, the Chamber concludes that the conduct of the Parties in the years following
the dissolution of the Federal Republic of Central America was consistent with the assumption that El Tigre appertained to Honduras.
Given the attachment of the Central American States to the principle of uti possidetis juris, the Chamber considers that that
contemporary assumption also implied belief that Honduras was entitled to the island by succession from Spain, or, at least, that such
succession by Honduras was not contradicted by any known colonial title. Although Honduras has not formally requested a finding of its
sovereignty over El Tigre, the Chamber considers that it should define its legal situation by holding that sovereignty over El Tigre
belongs to Honduras.
Regarding Meanguera and Meanguerita, the Chamber observes that throughout the argument the two islands were treated by both Parties
as constituting a single insular unity. The smallness of Meanguerita, its contiguity to the larger island, and the fact that it is uninhabited
allow its characterization as a "dependency" of Meanguera. That Meanguerita is "capable of appropriation" is undoubted: although
without fresh water, it is not a low-tide elevation and is covered by vegetation. The Parties have treated it as capable of appropriation,
since they claim sovereignty over it.
The Chamber notes that the initial formal manifestation of the dispute occurred in 1854, when a circular letter made widely known
El Salvador's claim to the island. Furthermore, in 1856 and 1879 El Salvador's official journal carried reports concerning administrative
acts relating to it. The Chamber has seen no record of reactions or protest by Honduras over these publications.
The Chamber observes that from the late 19th century the presence of El Salvador on Meanguera intensified, still without objection or
protest from Honduras, and that it has received considerable documentary evidence on the administration of Meanguera by El Salvador.
Throughout the period covered by that documentation there is no record of any protest by Honduras, with the exception of one recent
event, described later. Furthermore, El Salvador called a witness, a Salvadorian resident of the island, and his testimony, not challenged
by Honduras, shows that El Salvador has exercised State power over Meanguera.
According to the material before the Chamber, it was only in January 1991 that the Government of Honduras made protests to the
Government of El Salvador concerning Meanguera, which were rejected by the latter Government. The Chamber considers that the
Honduran protest was made too late to affect the presumption of acquiescence on the part of Honduras. The conduct of Honduras vis--
vis earlier effectivits reveals some form of tacit consent to the situation.
The Chamber's conclusion is thus the following. In relation to the islands, the "documents which were issued by the Spanish Crown or by
any other Spanish authority, whether secular or ecclesiastical", do not appear sufficient to "indicate the jurisdictions or limits of
territories or settlements" in terms of Article 26 of that Treaty, so that no firm conclusion can be based upon such material, taken in
isolation, for deciding between the two claims to an uti possidetis juris title. Under the final sentence of Article 26, the Chamber is
however entitled to consider both the effective interpretation of the uti possidetis juris by the Parties, in the years following
independence, as throwing light on the application of the principle, and the evidence of effective possession and control of an island by
one Party without protest by the other, as pointing to acquiescence. The evidence as to possession and control, and the display and
exercise of sovereignty, by Honduras over El Tigre and by El Salvador over Meanguera (to which Meanguerita is an appendage),
coupled in each case with the attitude of the other Party, clearly shows that Honduras was treated as having succeeded to Spanish
sovereignty over El Tigre, and El Salvador to Spanish sovereignty over Meanguera and Meanguerita.
XI. Legal situation of the maritime spaces (paras. 369-420) (paras. 369-420)
The Chamber first recalls that Nicaragua had been authorized to intervene in the proceedings, but solely on the question of the legal
rgime of the waters of the Gulf of Fonseca. Referring to complaints by the Parties that Nicaragua had dealt with matters beyond the
limits of its permitted intervention, the Chamber observes that it has taken account of Nicaragua's arguments only where they appear
relevant in its consideration of the rgime of the waters of the Gulf of Fonseca.
The Chamber then refers to the disagreement between the Parties on whether Article 2, paragraph 2, of the Special Agreement empowers
or requires the Chamber to delimit a maritime boundary, within or without the Gulf. El Salvador maintains that "the Chamber has no
jurisdiction to effect any delimitation of the maritime spaces", whereas Honduras seeks the delimitation of the maritime boundary inside
and outside the Gulf. The Chamber notes that these contentions have to be seen in relation to the position of the Parties as to the legal
status of the Gulf waters: El Salvador claims that they are subject to a condominium in favour of the three coastal States and that
delimitation would therefore be inappropriate, whereas Honduras argues that within the Gulf there is a community of interests which
necessitates a judicial delimitation.
In application of the normal rules of treaty interpretation (Article 31 of the Vienna Convention of the Law of Treaties), the Chamber first
considers what is the "ordinary meaning" of the terms of the Special Agreement. It concludes that no indication of a common intention to
obtain a delimitation from the Chamber can be derived from the text as it stands. Turning to the context, the Chamber observes that the
Special Agreement used the wording "to delimit the boundary line" regarding the land frontier, while confining the task of the Chamber
as it relates to the islands and maritime spaces to "determine [their] legal situation", the same contrast of wording being observed in
Article 18, paragraph 2, of the General Treaty of Peace. Noting that Honduras itself recognizes that the island dispute is not a conflict of
delimitation but of attribution of sovereignty over a detached territory, the Chamber observes that it is difficult to accept that the wording
"to determine the legal situation", used for both the islands and the maritime spaces, would have a completely different meaning
regarding the islands and regarding maritime spaces.
Invoking the principle of effectiveness, Honduras argues that the context of the Treaty and the Special Agreement militate against the
Parties having intended merely a determination of the legal situation of the spaces unaccompanied by delimitation, the object and
purpose of the Special Agreement being to dispose completely of a longstanding corpus of disputes. In the Chamber's view, however, in
interpreting a text of this kind, regard must be had to the common intention as it is expressed. In effect, what Honduras is proposing is
recourse to the "circumstances" of the conclusion of the Special Agreement, which constitute no more than a supplementary means of
interpretation.
To explain the absence of any specific reference to delimitation in the Special Agreement, Honduras points to a provision in the
Constitution of El Salvador such that its representatives could never have intended to sign a special agreement contemplating any
delimitation of the waters of the Gulf. Honduras contends that it was for this reason that the expression "determine the legal situation"
was chosen, intended as a neutral term which would not prejudice the position of either Party. The Chamber is unable to accept this
contention, which amounts to a recognition that the Parties were unable to agree that the Chamber should have jurisdiction to delimit the
waters of the Gulf. It concludes that the agreement between the Parties, expressed in Article 2, paragraph 2, of the Special Agreement,
that the Chamber should determine the legal situation of the maritime spaces did not extend to their delimitation.
Relying on the fact that the expression "determine the legal situation of the island and the maritime spaces" is also used in Article 18 of
the General Treaty of Peace of 1980, defining the role of the Joint Frontier Commission, Honduras invokes the subsequent practice of the
Parties in the application of the Treaty and invites the Chamber to take into account the fact that the Joint Frontier Commission examined
proposals aimed at such delimitation. The Chamber considers that, while both customary law and the Vienna Convention on the Law of
Treaties (Art. 31, para. 3 (b)) allow such practice to be taken into account for purposes of interpretation, none of the considerations raised
by Honduras can prevail over the absence from the text of any specific reference to delimitation.
The Chamber then turns to the legal situation of the waters of the Gulf, which falls to be determined by the application of "the rules of
international law applicable between the Parties, including where pertinent, the provisions of the General Treaty of Peace", as provided
in Articles 2 and 5 of the Special Agreement.
Following a description of the geographical characteristics of the Gulf, the coastline of which is divided between El Salvador, Honduras
and Nicaragua (see sketch-map G annexed) and the conditions of navigation within it, the Chamber points out that the dimensions and
proportions of the Gulf are such that it would nowadays be a juridical bay under the provisions (which might be found to express general
customary law) of the Convention on the Territorial Sea and the Contiguous Zone (1958) and the Convention on the Law of the Sea
(1982), the consequence being that, if it were a single-State bay, a closing line might now be drawn and the waters be thereby enclosed
and "considered as internal waters". The Parties, the intervening State, as well as commentators generally, are agreed that the Gulf is an
historic bay, and that its waters are accordingly historic waters. Such waters were defined in the Fisheries case between the
United Kingdom and Norway as "waters which are treated as internal waters but which would not have that character were it not for the
existence of an historic title" (I.C.J. Reports 1951, p. 130). This should be read in the light of the observation in the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya) case, that
"general international law ... does not provide for a single 'rgime' for 'historic waters' or 'historic bays', but only for a particular
rgime for each of the concrete, recognized cases of 'historic waters' or 'historic bays'" (I.C.J. Reports 1982, p. 74).
The Court concludes that it is clearly necessary to investigate the particular history of the Gulf to discover the "rgime" resulting
therefrom, adding that the particular historical rgime established by practice must be especially important in a pluri-State bay, a kind
of bay for which there are notoriously no agreed and codified general rules of the kind so well established for single-State bays.
Since its discovery in 1522 until 1821, the Gulf was a single-State bay the waters of which were under the single sway of the Spanish
Crown. The rights in the Gulf of the present coastal States were thus acquired, like their land territories, by succession from Spain. The
Chamber must therefore enquire into the legal situation of the waters of the Gulf in 1821; for the principle of uti possidetis juris should
apply to those waters as well as to the land.
The legal status of the Gulf waters after 1821 was a question which faced the Central American Court of Justice in the case between
El Salvador and Nicaragua concerning the Gulf in which it rendered its Judgement of 9 March 1917. That Judgement, which examined
the particular rgime of the Gulf of Fonseca, must therefore be taken into consideration as an important part of the Gulf's history. The
case before the Central American Court was brought by El Salvador against Nicaragua because of the latter's entry into the Bryan-
Chamorro Treaty of 1914 with the United States, by which Nicaragua granted the latter a concession for the construction of an
interoceanic canal and of a naval base in the Gulf, an arrangement that would allegedly prejudice El Salvador's own rights in the Gulf.
On the underlying question of the status of the waters of the Gulf there were three matters which practice and the 1917 Judgement took
account of: first, the practice of all three coastal States had established and mutually recognized as 1 marine league (3 nautical miles)
littoral maritime belt off their respective mainland coasts and islands, in which belt they each exercised an exclusive jurisdiction and
sovereignty, though with rights of innocent passage conceded on a mutual basis; second, all three States recognized a further belt of
3 marine leagues (9 nautical miles) for rights of "maritime inspection" for fiscal purposes and for national security; third, there was an
Agreement of 1900 between Honduras and Nicaragua by which a partial maritime boundary between the two States had been delimited,
which, however, stopped well short of the waters of the main entrance to the bay.
Furthermore the Central American Court unanimously held that the Gulf "is an historic bay possessed of the characteristics of a closed
sea" and that "... the parties are agreed that the Gulf is a closed sea ..."; by "closed sea" the Court seems to mean simply that it is not part
of the high seas and its waters are not international waters. At another point the Judgement describes the Gulf as "an historic or vital
bay".
The Chamber then points out that the term "territorial waters" used in the Judgement did not then necessarily indicate what would now
be called "territorial sea"; and explains what might appear to be an inconsistency in the Judgement concerning rights of "innocent use",
which are at odds with the present general understanding of the legal status of the waters of a bay as constituting "internal waters". The
Chamber observes that the rules and principles normally applicable to single-State bays are not necessarily appropriate to a bay which is
a pluri-State bay and also a historic one. Moreover, there is a need for shipping to have access to any of the three coastal States through
the main channels between the bay and the ocean. Rights of innocent passage are not inconsistent with a rgime of historic waters.
There is furthermore the practical point that since these waters were outside the 3-mile maritime belt of exclusive jurisdiction in which
innocent passage was nevertheless recognized in practice, it would have been absurd not to recognize passage rights in these waters,
which have to be crossed in order to reach those maritime belts.
All three coastal States continue to claim that the Gulf is an historic bay with the character of a closed sea, and it seems also to continue
to be the subject of that "acquiescence on the part of other nations" to which the 1917 Judgement refers; moreover that position has been
generally accepted by commentators. The problem is the precise character of the sovereignty the three coastal States enjoy in these
historic waters. Recalling the former view that in a pluri-State bay, if it is not historic waters, the territorial sea follows the sinuosities of
the coast and the remainder of the waters of the bay are part of the high seas, the Chamber notes that this solution is not possible in the
case of the Gulf of Fonseca since it is an historic bay and therefore a "closed sea".
The Chamber then quotes the holding by the Central American Court that "... the legal status of the Gulf of Fonseca ... is that of property
belonging to the three countries that surround it ..." and that "... the high parties are agreed that the waters which form the entrance to the
Gulf intermingle ...". In addition the Judgement recognized that maritime belts of 1 marine league from the coast were within the
exclusive jurisdiction of the coastal State and therefore should "be excepted from the community of interests or ownership". After
quoting the paragraphs of the Judgement setting forth the Court's general conclusions, the Chamber observes that the essence of its
decision on the legal status of the waters of the Gulf was that these historic waters were then subject to a "co-ownership" (condominio) of
the three coastal States.
The Chamber notes that El Salvador approves strongly of the condominium concept, and holds that this status not only prevails but also
cannot be changed without its consent. Honduras opposes the condominium idea and accordingly calls in question the correctness of this
part of the 1917 Judgement, whilst also relying on the fact that it was not a party to the case and so cannot be bound by the decision.
Nicaragua is, and has consistently been, opposed to the condominium solution.
Honduras also argues against the condominium on the ground that condominia can only be established by agreement. It is doubtless right
in claiming that condominia, in the sense of arrangements for the common government of territory, have ordinarily been created by
treaty. But what the Central American Court had in mind was a joint sovereignty arising as a juridical consequence of the 1821
succession. State succession is one of the ways in which territorial sovereignty passes from one State to another and there seems no
reason in principle why a succession should not create a joint sovereignty where a single and undivided maritime area passes to two or
more new States. The Chamber thus sees the 1917 Judgement as using the term condominium to describe what it regards as the joint
inheritance by three States of waters which had belonged to a single State and in which there were no maritime administrative boundaries
in 1821 or indeed at the end of the Federal Republic of Central America in 1839.
Thus the ratio decidendi of the Judgement appears to be that there was, at the time of independence, no delimitation between the three
countries; and the waters of the Gulf have remained undivided and in a state of community which entails a condominium or co-
ownership. Further the existence of a community was evidenced by continued and peaceful use of the waters by all the riparian States
after independence.
As regards the status of the 1917 Judgement, the Chamber observes that although the Court's jurisdiction was contested by Nicaragua,
which also protested the Judgement, it is nevertheless a valid decision of a competent court. Honduras, which, on learning of the
proceedings before the Court, formally protested to El Salvador that it did not recognize the status of co-ownership in the waters of the
Gulf, has, in the present case, relied on the principle that a decision in a judgment or an arbitral award can only be opposed to the parties.
Nicaragua, a party to the 1917 case, is an intervener but not a Party in the present one. It therefore does not appear that the Chamber is
required to pronounce upon the question whether the 1917 Judgement is res judicata between the States parties to it, only one of which is
a Party to the present proceedings, a question which is not helpful in a case raising a question of the joint ownership of three coastal
States. The Chamber must make up its own mind on the status of the waters of the Gulf, taking such account of the 1917 decision as it
appears to the Chamber to merit.
The opinion of the Chamber on the rgime of the historic waters of the Gulf parallels the opinion expressed in the 1917 Judgement. The
Chamber finds that, reserving the question of the 1900 Honduras/Nicaragua delimitation, the Gulf waters, other than the 3-mile maritime
belt, are historic waters and subject to a joint sovereignty of the three coastal States, basing itself on the following reasons. As to the
historic character of the Gulf waters, there are the consistent claims of the three coastal States and the absence of protest from other
States. As to the character of rights in the waters of the Gulf, these were waters of a single State bay during the greater part of their
known history and were not divided or apportioned between the different administrative units which became the three coastal States.
There was no attempt to divide and delimit the waters according to the principle of uti possidetis juris, this being a fundamental
difference between the land areas and the maritime area. The delimitation effected between Nicaragua and Honduras in 1900, which was
substantially an application of the method of equidistance, gives no clue that it was in any way inspired by the application of
the uti possidetis juris. A joint succession of the three States to the maritime area therefore seems to be the logical outcome of the
principle of uti possidetis juris itself.
The Chamber notes that Honduras, whilst arguing against the condominium, does not consider it sufficient simply to reject it, but
proposes an alternative idea, that of "community of interests" or of "interest". That there is a community of interests of the three coastal
States of the Gulf is not open to doubt, but it seems odd to postulate such a community as an argument against a condominium, which is
almost an ideal embodiment of the community of interest requirements of equality of user, common legal rights and the "exclusion of
any preferential privilege". The essential feature of the "community of interests" existing, according to Honduras, in respect of the waters
of the Gulf, and which distinguishes it from the condominio referred to by the Central American Court or the condominium asserted by
El Salvador, is that the "community of interests" does not merely permit of a delimitation but necessitates it.
El Salvador for its part is not suggesting that the waters subject to joint sovereignty cannot be divided, if there is agreement to do so.
What it maintains is that a decision on the status of the waters is an essential prerequisite to the process of delimitation. Moreover the
geographical situation of the Gulf is such that mere delimitation without agreement on questions of passage and access would leave
many practical problems unsolved.
The Chamber notes that the normal geographical closing line of the bay would be the line Punta Amapala to Punta Cosigina; it rejects
a thesis elaborated by El Salvador of an "inner gulf" and an "outer gulf", based on a reference in the 1917 Judgement to an inner closing
line, there being nothing in that Judgement to support the suggestion that Honduran legal interests in the Gulf waters were limited to the
area inside the inner line. Recalling that there had been considerable argument between the Parties about whether the closing line of the
Gulf is also a baseline, the Chamber accepts the definition of it as the ocean limit of the Gulf, which however must be the baseline for
whatever rgime lies beyond it, which must be different from that of the Gulf.
As to the legal status of the waters inside the Gulf closing line other than the 3-mile maritime belts, the Chamber considers whether or
not they are "internal waters"; noting that rights of passage through them must be available to vessels of third States seeking access to a
port in any of the three coastal States, it observes that it might be sensible to regard those waters, in so far as they are the subject of the
condominium or co-ownership, as sui generis. The essential juridical status of these waters is however the same as that of internal
waters, since they are claimed titre de souverain and are not territorial sea.
With regard to the 1900 Honduran/Nicaraguan delimitation line, the Chamber finds, from the conduct of El Salvador, that the existence
of the delimitation has been accepted by it in the terms indicated in the 1917 Judgement.
In connection with any delimitation of the waters of the Gulf, the Chamber finds that the existence of joint sovereignty in all the waters
subject to a condominium other than those subject to the treaty or customary delimitations means that Honduras has existing legal rights
(not merely an interest) in the Gulf waters up to the bay closing line, subject of course to the equivalent rights of El Salvador and
Nicaragua.
Regarding the question of the waters outside the Gulf, the Chamber observes that it involves entirely new concepts of law unthought-of
in 1917, in particular continental shelf and the exclusive economic zone. There is also a prior question about territorial sea. The littoral
maritime belts of 1 marine league along the coastlines of the Gulf are not truly territorial seas in the sense of the modern law of the sea.
For a territorial sea normally has beyond it the continental shelf, and either waters of the high seas or an exclusive economic zone and the
maritime belts within the Gulf do not have outside them any of these areas. The maritime belts may properly be regarded as the internal
waters of the coastal State, even though subject, as indeed are all the waters of the Gulf, to rights of innocent passage.
The Chamber therefore finds that there is a territorial sea proper seawards of the closing line of the Gulf and, since there is a
condominium of the waters of the Gulf, there is a tripartite presence at the closing line and Honduras is not locked out from rights in
respect of the ocean waters outside the bay. It is only seaward of the closing line that modern territorial seas can exist, since otherwise
the Gulf waters could not be waters of an historic bay, which the Parties and the intervening State agree to be the legal position. And if
the waters internal to that bay are subject to a threefold joint sovereignty, it is the three coastal States that are entitled to territorial sea
outside the bay.
As for the legal rgime of the waters, seabed and subsoil off the closing line of the Gulf, the Chamber first observes that the problem
must be confined to the area off the baseline but excluding a 3-mile, or 1 marine league, strip of it at either extremity, corresponding to
the existing maritime belts of El Salvador and Nicaragua respectively. At the time of the Central American Court's decision the waters
outside the remainder of the baseline were high seas. Nevertheless the modern law of the sea has added territorial sea extending from the
baseline, has recognized continental shelf as extending beyond the territorial sea and belonging ipso jure to the coastal State, and confers
a right on the coastal State to claim an exclusive economic zone extending up to 200 miles from the baseline of the territorial sea.
Since the legal situation on the landward side of the closing line is one of joint sovereignty, it follows that all three of the joint sovereigns
must be entitled outside the closing line to territorial sea, continental shelf and exclusive economic zone. Whether this situation should
remain in being or be replaced by a division and delimitation into three separate zones is, as inside the Gulf also, a matter for the three
States to decide. Any such delimitation of maritime areas will fall to be effected by agreement on the basis of international law.
XII. Effect of Judgment for the intervening State (paras. 421-424) (paras. 421-424)
Turning to the question of the effect of its Judgment for the intervening State, the Chamber observes that the terms in which intervention
was granted were that Nicaragua would not become party to the proceedings. Accordingly the binding force of the Judgment for the
Parties, as contemplated by Article 59 of the Statute of the Court, does not extend to Nicaragua as intervener.
In its Application for permission to intervene, Nicaragua had stated that it "intends to subject itself to the binding effect of the decision",
but from the written statement submitted by Nicaragua it is clear that Nicaragua does not now regard itself as obligated to treat the
Judgment as binding upon it. With regard to the effect, if any, of the statement in Nicaragua's Application, the Chamber, notes that its
Judgment of 13 September 1990 emphasized the need, if an intervener is to become a party, for the consent of the existing parties to the
case; it observes that if an intervener becomes a party, and is thus bound by the judgment, it becomes entitled equally to assert the
binding force of the judgment against the other parties. Noting that neither Party has given any indication of consent to Nicaragua's being
recognized to have any status enabling it to rely on the Judgment, the Chamber concludes that in the circumstances of the case the
Judgment is not res judicata for Nicaragua.
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Declaration of Judge Oda
On the subject of Nicaragua's intervention, Judge Oda, in an appended declaration, disputes the Chamber's findings as to its Judgment's
lack of binding effect upon the intervening State. Though not a party to the case, Nicaragua will in his view certainly be bound by the
Judgment in so far as it relates to the legal situation of the maritime spaces of the Gulf, and he refers in that connection to his views on
the general subject of the effects of Judgments on intervening States as expressed in two previous cases.
Judge Oda states that, by his declaration, he does not, however, intend to lend his accord to the Chamber's findings on the maritime
spaces dispute, the subject of his dissenting opinion.
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Separate opinion of Judge ad hoc Valticos
The scope of the uti possidetis juris principle and the effectivits
The application of the uti possidetis juris principle has given rise to difficulties inasmuch as the rights involved could date back several
centuries and it has not been easy to determine those that were relevant in determining the boundaries in question. According to the
opinion summarized, in view of the conditions in which and the reasons for which they were granted, the issue of ttulos ejidales could
not be disregarded for purposes of delimiting the boundaries.
Furthermore, the role given to the effectivits has been insufficient.
In any event, the care the Chamber has taken to resolve the difficulties it has met is worthy of praise.
Tepangisir sector. While in various respects the author of the opinion concurs with the views of the Chamber, he believes that the
boundary drawn to the west of Talquezalar should have run in a north-westerly direction, towards the Cerro Oscuro, before once again
turning downward (in a south-westerly direction towards the tripoint of Montecristo).. While in various respects the author of the opinion
concurs with the views of the Chamber, he believes that the boundary drawn to the west of Talquezalar should have run in a north-
westerly direction, towards the Cerro Oscuro, before once again turning downward (in a south-westerly direction towards the tripoint of
Montecristo).
Sazalapa-Arcatao sector. The Chamber based itself on various questionable titles, as a result of which it cut back El Salvador's claims
excessively, particularly with regard to two protrusions to the north-west and the north-east of the area in question, as well as in the
central part, at the level of the so-called Gualcimaca title.. The Chamber based itself on various questionable titles, as a result of which it
cut back El Salvador's claims excessively, particularly with regard to two protrusions to the north-west and the north-east of the area in
question, as well as in the central part, at the level of the so-called Gualcimaca title.
Naguaterique sector. The author of the opinion disagrees with the boundary line drawn by the Chamber along the river Negro-Quiagara.
He sets forth his reasons for preferring the Cerro La Ardilla line.. The author of the opinion disagrees with the boundary line drawn by
the Chamber along the river Negro-Quiagara. He sets forth his reasons for preferring the Cerro La Ardilla line.
Dolores sector. The 1760 title concerning Poloros should take precedence in this regard and the boundary should run to the north of the
river Torola. The difficulty is due to the distances and the area mentioned in the title. The Chamber has therefore decided to grant
El Salvador, in this area, a quadrilateral considerably smaller than what that State claimed. But this solution has involved a questionable
change in the names of the summits and rivers concerned.. The 1760 title concerning Poloros should take precedence in this regard and
the boundary should run to the north of the river Torola. The difficulty is due to the distances and the area mentioned in the title. The
Chamber has therefore decided to grant El Salvador, in this area, a quadrilateral considerably smaller than what that State claimed. But
this solution has involved a questionable change in the names of the summits and rivers concerned.
The maritime spaces. Despite the serious objections to which they are open, the author of the opinion feels that the arguments endorsed
by the majority of the Chamber are acceptable, regard being had to the special character of the Gulf of Fonseca as a historic bay with
three coastal States.. Despite the serious objections to which they are open, the author of the opinion feels that the arguments endorsed by
the majority of the Chamber are acceptable, regard being had to the special character of the Gulf of Fonseca as a historic bay with three
coastal States.
With regard to the various other points (concerning the land, the islands and the waters within the Gulf), the author of the opinion
concurs fully with the views of the Chamber.
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Separate Opinion of Judge ad hoc Torres Bernrdez
In his Separate Opinion, Judge Torres Bernrdez gives the reasons for his overall concurrence with the Judgment of the Chamber and
for his having voted for all its operative part, with the exception of the decisions concerning the attribution of sovereignty over the island
of Meanguerita and the interpretation of Article 2, paragraph 2, of the Special Agreement. Following an introduction underlining the
unity of the case as well as its fundamental, although not exclusive, State succession character, the considerations, observations and
reservations contained in the Opinion are presented under the main headings of the three major aspects of the case, namely the "land
boundary dispute", the "island dispute", and the "maritime dispute".
Judge Torres Bernrdez stresses the importance of the uti possidetis juris principle as the fundamental norm applicable to the case,
examining in this connection the contents, object and purpose of the uti possidetis juris as customarily understood by the Spanish-
American Republics, and the relationship between that principle and the effectivits invoked in the case, as well as the question of the
proof of the uti possidetis juris principle, the evidentiary value of the ttulos ejidales submitted by the Parties included. Judge
Torres Bernrdez approves the Chamber's general concentration on applying the uti possidetis juris principle in the light of the
fundamental State succession character of the case and the fact that both Parties are Spanish-American Republics. However, Article 5 of
the Special Agreement does not exclude the application, wherever pertinent, of other rules of international law also binding the Parties.
The principle of consent, including any consent implied by the conduct of the Parties subsequent to the critical date of 1821, is for
Judge Torres Bernrdez one of those rules of international law which also applied in the case in various ways (element of confirmation
or interpretation of the 1821 uti possidetis juris; establishment of effectivits alleged; determination of situations of "acquiescence" or
"recognition").
Regarding the land boundary dispute, Judge Torres Bernrdez considers the overall results of the application by the Chamber of the law
described to the six sectors in dispute to be as a whole satisfactory, having regard to the evidence submitted by the Parties; subject to a
few specific reservations, the frontier line defined for each of those sectors by the Judgment are de jure lines by virtue either of the
1821 uti possidetis juris or of the consent derived from conduct of the Parties, or of both. His specific reservations concern the line
between Talquezalar and Piedra Menuda in the first sector (the question of the Tepangisir boundary marker and corresponding
indentation), the line between Las Lagunetas or Portillo de Las Lagunetas and Poza del Cajn in the third sector (the Gualcuqun or
El Amatillo river line) and the Las Caas river line of the frontier in the fourth sector, particularly the segment of that line running from
the Torola lands down to the Mojn of Champate. Judge Torres Bernrdez voted, however, in favour of the frontier line defined by the
Judgment for the six sectors, out of the conviction that those lines are "as a whole" de jure lines as requested by the Parties in Article 5 of
the Special Agreement.
So far as the island dispute is concerned, Judge Torres Bernrdez upholds the submission of the Republic of Honduras that Meanguera
and Meanguerita were the only islands in dispute as between the Parties at the current proceedings. He dissociates himself, therefore,
from the finding of the majority that El Tigre was also an island in dispute, as well as from the reasoning of the Judgment as to the
definition of the islands in dispute: both the finding and the reasoning in question are contrary to the stability of international relations
and do not correspond to basic tenets of international judicial law. A non-existing dispute objection formally submitted by a party has an
autonomy of its own, should be determined as a preliminary matter on the basis of the objective grounds provided by the case file as a
whole and should not be disposed of by subsuming it into the different matters of the existence of jurisdiction and its exercise.
Judge Torres Bernrdez stresses his view that, as a consequence of the approach followed by the majority, the Judgment concludes by
stating the obvious, namely that the island of El Tigre is part of the sovereign territory of the Republic of Honduras. Honduras had not
requested the Chamber to pronounce any such "confirmation" of its sovereignty of El Tigre, a sovereignty which was not subject to
adjudication, because it had been decided over 170 years ago by the 1821 uti possidetis juris as well as by the recognition of the
Republic of El Salvador and third Powers over 140 years ago.
As to the islands which he considers to be in dispute, namely Meanguera and Meanguerita, Judge Torres Bernrdez concurs with the
other members of the Chamber in the finding that the island of Meanguera is today part of the sovereign territory of the Republic of
El Salvador. The path whereby Judge Torres Bernrdez reaches this conclusion differs, however, from the one followed in the
Judgment. In his opinion, the island of Meanguera, as well as the island of Meanguerita, belonged in 1821 to the Republic of Honduras
by virtue of the uti possidetis juris principle. He considers, therefore, that the inconclusive finding of the Chamber in this respect is not
supported by the colonial titles and effectivits documented by the Parties. He finds, however, that the 1821 uti possidetis juris rights of
Honduras in Meanguera were at a certain moment in time (well after the dispute arose in 1854) displaced or eroded in favour of
El Salvador as a result of the State effectivits established by the latter in and with respect to the island and of the related past conduct
of the Republic of Honduras at the relevant time vis--vis such effectivits and their gradual development. On the other hand, similar
State effectivits on the part of El Salvador and related past conduct of Honduras being absent in the case of Meanguerita,
Judge Torres Bernrdez concludes that the 1821 uti possidetis juris must needs prevail in the case of that island. This means that today,
as in 1821, sovereignty over Meanguerita belongs to the Republic of Honduras. Judge Torres Bernrdez regrets that the Judgment failed
to treat the question of sovereignty over Meanguerita on its own merits, and, having regard to the circumstances of the case, he rejects
the applicability to Meanguerita of the concept of "proximity" as well as the thesis of its constituting an "appendage" of Meanguera.
Judge Torres Bernrdez endorses in toto the reasoning and conclusions of the Judgment concerning the substantive aspects of
the "maritime dispute" with respect to both the "particular rgime" of the Gulf of Fonseca and its waters and the entitlement of the
Republic of Honduras, as well as the Republic of El Salvador and the Republic of Nicaragua, to a territorial sea, continental shelf and
exclusive economic zone in the open waters of the Pacific Ocean seaward of the central portion of the closing line of the Gulf of Fonseca
as that line is defined in the Judgment, delimitation of those maritime spaces outside the Gulf of Fonseca having to be effected by
agreement on the basis of international law. Thus the rights of the Republic of Honduras as a State participating on a basis of perfect
equality with the other two States of the Gulf in the "particular rgime" of the Gulf of Fonseca, as well as the status of the Republic of
Honduras as a Pacific coastal State, have been fully recognized by the Judgment, which dismisses some arguments advanced at the
current proceedings aimed at occluding Honduras at the back of the Gulf.
As to the "particular rgime" of the Gulf of Fonseca, Judge Torres Bernrdez underlines, in his Opinion, that the Gulf of Fonseca is a
"historic bay" to which the Republic of Honduras, the Republic of El Salvador and the Republic of Nicaragua succeeded in 1821 on the
occasion of their separation from Spain and their constitution as independent sovereign nations. The "historic" status of the waters of the
Gulf of Fonseca was there when the "successoral event" took place. This means, in the opinion of Judge Torres Bernrdez, that the
sovereign rights of each and every one of the three Republics in the waters of the Gulf cannot be subject to question by any foreign
Power. But at the moment when the succession occurred the predecessor State had not - administratively speaking - divided the waters of
the historic bay of Fonseca between the territorial jurisdictions of the colonial provinces, or units thereof, which in 1821 formed
respectively one or another of the three States of the Gulf. Thus Judge Torres Bernrdez concludes that the Judgment is quite right in
declaring that the historic waters of the Gulf which had not been divided by Honduras, El Salvador and Nicaragua subsequent to 1821,
continued to be held in sovereignty by the three republics jointly, pending their delimitation.
In this connection, Judge Torres Bernrdez emphasizes that the "joint sovereignty" status of the undivided "historic waters" of the Gulf
of Fonseca has, therefore, a "successorial origin" as stated in the Judgment. It is a "joint sovereignty", pending delimitation, which results
from the operation of the principles and rules of international law governing succession to territory, the "historic waters" of the Gulf of
Fonseca entailing, like any other historic waters, "territorial rights". Judge Torres Bernrdez also stresses that the present Judgment
limits itself to declaring the legal situation of the waters of the Gulf of Fonseca resulting from the above and subsequent related
developments, i.e., to declaring the existing "particular rgime" of the Gulf of Fonseca as a "historic bay" in terms of contemporary
international law, but without adding elements of any kind to that "particular rgime" as it exists at present. The Judgment is not
therefore a piece of judicial legislation and should not be read that way at all. Nor is it a Judgment on the interpretation and/or
application of the 1917 Judgement of the Central American Court of Justice. Conversely, that 1917 Judgement is not an element for the
interpretation or application of the present Judgment, which stands on its own feet.
By declaring the "particular rgime" of the historic bay of Fonseca in terms of the international law in force, and not of the international
law in force in 1917 or earlier, the Chamber, according to Judge Torres Bernrdez, has clarified a number of legal issues such as the
"internal" character of the waters within the Gulf, the meaning of the "one-marine-league" belt of exclusive jurisdiction over them, the
"baseline" character of the "closing-line" of the Gulf, and the identification of those States which participate as equal partners in the
"joint sovereignty" over the undivided waters of the Gulf. The individual elements now composing the "particular rgime" of the Gulf
of Fonseca declared by the Judgment vary, however, in nature. Some result from the succession, others from subsequent agreement or
concurrent conduct (implied consent) of the three nations of the Gulf as independent States. In this respect Judge Torres Bernrdez
refers to the "maritime belt" of exclusive sovereignty or jurisdiction - considered by the Judgment as forming part of the "particular
rgime" of Fonseca - as one of those elements of the "particular rgime" which possess a "consensual" origin, pointing out that the
scope of the States' present consent to the "maritime belt" had not been pleaded before the Chamber. It follows, in his view, that any
problem which might arise concerning entitlement to, delimitation of, location, etc., of "maritime belts" are matters to be solved by
agreement among the States of the Gulf.
As to the competence of the Chamber to effect "delimitations" - a question relating to the interpretation of paragraph 2 of Article 2 of the
Special Agreement on which the Parties were greatly at variance -, Judge Torres Bernrdez considers that the issue has become "moot"
because of the Judgment's recognition of rights and entitlements of the Republic of Nicaragua within and outside the Gulf. As a result of
this supervenient "mootness", Judge Torres Bernrdez, invoking the jurisprudence of the Court, considers that the Judgment should
have refrained from making any judicial pronouncement on the said interpretative dispute. As to the substance of this dispute, Judge
Torres Bernrdez concludes that the Chamber was competent to effect "delimitations" under Article 2, paragraph 2, of the Special
Agreement, dissociating himself from the finding to the contrary of the majority of the Chamber.
Lastly, Judge Torres Bernrdez expresses his agreement with the tenor of the Declaration appended by Vice-President Oda. In the view
of Judge Torres Bernrdez, a non-party State intervening under Article 62 of the Statute - as the Republic of Nicaragua in the current
proceedings - is under certain obligations of a kind analogous mutatis mutandis to that provided for in Article 63 of the Statute, but the
Judgment as such is not res judicata for Nicaragua.
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Dissenting opinion of Judge Oda
In his dissenting opinion Judge ODA states that, while he is in agreement with the Chamber's findings on the disputes concerning the
land frontier and the islands, his understanding of both the contemporary and the traditional law of the sea is greatly at variance with the
views underlying the Judgment's pronouncements in regard to the maritime spaces. He considers that the concept of a "pluri-State" bay
has no existence as a legal institution and that consequently the Gulf of Fonseca is not a "bay" in the legal sense. Neither was the
Chamber right to assume that it belonged to the category of a "historic bay". Instead of its waters being held in joint sovereignty outside a
three-mile coastal belt, as the Chamber holds, they consist of the sum of the territorial seas of each State.
In the contemporary law of the sea, Judge Oda explains, waters adjacent to coasts have to be either "internal waters" - the case of (legal)
"bays" or of "historic bays" counting as such - or territorial waters: there is no third possibility (excepting the new concept of
archipelagic waters, not applicable in the instant case). But the Chamber has obscured the issue by employing vocabulary extraneous to
the past and present law of the sea. Its assessment of the legal status of the maritime spaces thus finds no warrant in that law.
Judge Oda supports his position with a detailed analysis of the development since 1894 of the definition and status of a "bay" in
international law, from the early work of the Institut de droit international and International Law Association, to the most recent United
Nations Conference on the Law of the Sea, passing through arbitral case-law and the opinions of authoritative writers and rapporteurs.
Judge Oda lists five reasons why full weight should not have been given to the conclusions of the Central American Court of Justice in
1917 to the effect that the waters of the Gulf were subject to a condominium, created by joint inheritance of an area which had
constituted a unity previous to the 1821 succession, except for a three-mile coastal belt under the exclusive sovereignty of the respective
riparian States, and he points out the exiguity of the area remaining after deduction of that belt. Indeed, the Central American Court
appears to have acted under the influence of a sense prevalent among the three riparian States that the Gulf should not remain open to
free use by any other State than themselves, and to have authorized a sui generis rgime based on a local illusion as to the historical
background of law and fact. Yet there is no ground for believing that, prior to 1821 or 1839 either Spain or the Federal Republic of
Central America had any control in the Gulf beyond the traditional cannon-range from the shore. Both the 1917 and the present
Judgment depend on the assumption that the Gulf waters prior to those dates not only formed an undivided bay but lay also as an
entirety within a single jurisdiction. But at those times there did not exist any concept of a bay as a geographical entity possessing a
distinct legal status. Moreover, even if in 1821 or 1839 all the waters of the Gulf did possess unitary status, the natural result of the
partition of the coasts among three new territorial sovereigns would have been the inheritance and control by each one separately of its
own offshore waters, a solution actually reflected in the acknowledgement of the littoral belt. Judge Oda considers that by endorsing that
belt and treating it as "internal waters" the Chamber's Judgment has confused the law of the sea. It similarly relies on a concept now
discarded as superfluous when it describes the maritime spaces in the Gulf as "historic waters"; this description had been used on
occasion to justify the status either of internal waters or of territorial sea, though not both at once, but the concept had never existed as an
independent institution in the law of the sea.
As to the true legal status of the waters of the Gulf of Fonseca, Judge Oda find that there is no evidence to suggest that, as from the time
when the concept of territorial sea emerged in the last century, the claims of the three riparian States to territorial seas in the Gulf
differed from their claims off their other coasts, though El Salvador and Honduras eventually legislated for the exercise of police power
beyond the three-mile territorial sea and Nicaragua reportedly took the same position, which received general acceptance. Neither did
their attitudes in 1917 feature a common confidence in rejecting the application to all the Gulf waters of the then prevalent "open seas"
doctrine, even if they all preferred that an area covered entirely by their territorial seas and police zones should not remain open to free
use by other States - a preference behind their common agreement in the instant proceedings to denominate the Gulf (erroneously) as a
"historic bay".
The boundary line drawn by the Honduran/Nicaraguan mixed commission in 1900 demonstrated that at any time the waters of the Gulf
could be so divided, though as between El Salvador and Honduras the presence of scattered islands would have complicated the task.
Whatever the status of such divided waters may earlier have been, the Gulf of Fonseca must now be deemed entirely covered by the
respective territorial seas of the three riparian States, given the universally agreed 12-mile limit and the claims of Latin-American States
that contributed to its acceptance. No maritime space exists in the Gulf more than 12 miles from any of its coasts.
Beyond establishing the legal status of the waters, the Chamber was not in a position to effect any delimitation. Nevertheless,
Article 15 of the 1982 UN Convention on the Law of the Sea, providing for delimitation, failing agreement, by the equidistance method
unless historic title or other special circumstances dictate otherwise, should not be ignored. Judge Oda points out that application of the
equidistance method thus remains a rule in the delimitation of the territorial sea, even if that of achieving "an equitable solution" prevails
in the delimitation of the economic zone and continental shelf of neighbouring States.
Against that background, Judge Oda considers the right of Honduras within and without the Gulf. Within it, Honduras is in his view not
entitled to any claim beyond the meeting-point of the three respective territorial seas. Its title is thus locked within the Gulf. In its
decision as to the legal status of the waters, the Chamber seems to have been concerned to ensure the innocent passage of Honduran
vessels, but such passage through territorial seas is protected for any State by international law. In any case, the mutual understanding
displayed by the three riparian States should enable them to co-operate, in keeping with the provisions on an "enclosed or semi-enclosed
sea" in the 1982 Convention.
As for the waters outside the Gulf, Judge Oda cannot accept the Chamber's finding that, since a condominium prevails up to the closing-
line, Honduras is entitled to a continental shelf or exclusive economic zone in the Pacific. That conclusion flies in the face of a
geographical reality such as there can never be any question of completely refashioning. Whether Honduras, which possesses a long
Atlantic coastline, can be included in the category of "geographically disadvantaged States" as defined by the 1982 Convention is open to
question. This does not, however, rule out the possibility of its being granted the right to fish in the exclusive economic zones of the
other two States.
__________
1 See sketch-map A annexed; for the identification letters and co-ordinates of the various defined points, see the operative clause of the
Judgment, set out above, and the 1:50,000 maps available for inspection in the Registry.
2 See sketch-map B annexed; for the identification letters and co-ordinates of the various defined points, see the operative clause of the
Judgment, set out above, and the 1:50,000 maps available for inspection in the Registry.
3 See sketch-map C annexed; for the identification letters and co-ordinates of the various defined points, see the operative clause of the
Judgment, set out above, and the 1:50,000 maps available for inspection in the Registry.
4 See sketch-map D annexed; for the identification letters and co-ordinates of the various defined points, see the operative clause of the
Judgment, set out above, and the 1:50,000 maps available for inspection in the Registry.
5 See sketch-map E annexed; for the identification letters and co-ordinates of the various defined points, see the operative clause of the
Judgment, set out above, and the 1:50,000 maps available for inspection in the Registry.
6 See sketch-map F annexed; for the identification letters and co-ordinates of the various defined points, see the operative clause of the
Judgment, set out above, and the 1:50,000 maps available for inspection in the Registry.
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International Law > International Law Keyed to Damrosche > Chapter 17

Corfu Channel Case (United


Kingdom v. Albania)
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Citation. I.C.J., 1949 1.C.J.4.

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

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

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

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

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

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

G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors,
and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE
SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO,
AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by
their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA.
CONCEPCION, all surnamed MISA, minors and represented by their parents GEORGE
and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his parents
ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her
parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO,
minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA
DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO
JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and
CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and
MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their parents
ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE
and DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and
HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA,
minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA.
and REGINA MA., all surnamed ABAYA, minors, represented by their parents
ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed
CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA,
CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and
represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH,
STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by
their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA,
DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents
FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL
NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of
the Department of Environment and Natural Resources, and THE HONORABLE
ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.

DAVIDE, JR., J.:


In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful
ecology which the petitioners dramatically associate with the twin concepts of "inter-
generational responsibility" and "inter-generational justice." Specifically, it touches on the
issue of whether the said petitioners have a cause of action to "prevent the misappropriation
or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's
vital life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66
(Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region.
The principal plaintiffs therein, now the principal petitioners, are all minors duly represented
and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized
for the purpose of, inter alia, engaging in concerted action geared for the protection of our
environment and natural resources. The original defendant was the Honorable Fulgencio S.
Factoran, Jr., then Secretary of the Department of Environment and Natural Resources
(DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala,
was subsequently ordered upon proper motion by the petitioners. 1 The complaint 2 was
instituted as a taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic
of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural
resource treasure that is the country's virgin tropical forests." The same was filed for themselves
and others who are equally concerned about the preservation of said resource but are "so
numerous that it is impracticable to bring them all before the Court." The minors further
asseverate that they "represent their generation as well as generations yet
unborn." 4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting in his behalf to

(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5
The complaint starts off with the general averments that the Philippine archipelago of 7,100
islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush
and verdant rainforests in which varied, rare and unique species of flora and fauna may be
found; these rainforests contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed,
endured and flourished since time immemorial; scientific evidence reveals that in order to
maintain a balanced and healthful ecology, the country's land area should be utilized on the
basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the distortion and disturbance
of this balance as a consequence of deforestation have resulted in a host of environmental
tragedies, such as (a) water shortages resulting from drying up of the water table, otherwise
known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water
table as a result of the intrusion therein of salt water, incontrovertible examples of which may
be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion
and the consequential loss of soil fertility and agricultural productivity, with the volume of soil
eroded estimated at one billion (1,000,000,000) cubic meters per annum approximately
the size of the entire island of Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of
cultural communities, including the disappearance of the Filipino's indigenous cultures, (f) the
siltation of rivers and seabeds and consequential destruction of corals and other aquatic life
leading to a critical reduction in marine resource productivity, (g) recurrent spells of drought
as is presently experienced by the entire country, (h) increasing velocity of typhoon winds
which result from the absence of windbreakers, (i) the floodings of lowlands and agricultural
plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and
shortening of the lifespan of multi-billion peso dams constructed and operated for the
purpose of supplying water for domestic uses, irrigation and the generation of electric power,
and (k) the reduction of the earth's capacity to process carbon dioxide gases which has led
to perplexing and catastrophic climatic changes such as the phenomenon of global warming,
otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and
deforestation are so capable of unquestionable demonstration that the same may be
submitted as a matter of judicial notice. This notwithstanding, they expressed their intention
to present expert witnesses as well as documentary, photographic and film evidence in the
course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of
rainforests constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million
hectares of said rainforests or four per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests
are left, barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0
million hectares of immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted timber license
agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million
hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex
"A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25
hectares per hour nighttime, Saturdays, Sundays and holidays included the Philippines
will be bereft of forest resources after the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and irreparable damage of
this continued trend of deforestation to the plaintiff minor's generation and to generations yet
unborn are evident and incontrovertible. As a matter of fact, the environmental damages
enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the
generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the remaining
forest stands will work great damage and irreparable injury to plaintiffs especially plaintiff
minors and their successors who may never see, use, benefit from and enjoy this rare and
unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural
resource property he holds in trust for the benefit of plaintiff minors and succeeding
generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are
entitled to protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On
March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits
in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing
serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of
the rights of plaintiffs, especially plaintiff minors who may be left with a country that is
desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous
cultures which the Philippines had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the
public policy enunciated in the Philippine Environmental Policy which, in pertinent part, states
that it is the policy of the State
(a) to create, develop, maintain and improve conditions under which man and nature can
thrive in productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future generations of
Filipinos and;
(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity
and well-being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is
contradictory to the Constitutional policy of the State to
a. effect "a more equitable distribution of opportunities, income and wealth" and "make full
and efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14,
Article XIV, id.);
d. "protect and advance the right of the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind the natural law
and violative of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant action
to arrest the unabated hemorrhage of the country's vital life support systems and continued
rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss
the complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action
against him and (2) the issue raised by the plaintiffs is a political question which properly
pertains to the legislative or executive branches of Government. In their 12 July 1990
Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a
justiciable question as it involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to
dismiss. 7 In the said order, not only was the defendant's claim that the complaint states no
cause of action against him and that it raises a political question sustained, the respondent
Judge further ruled that the granting of the relief prayed for would result in the impairment of
contracts which is prohibited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised
Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground
that the respondent Judge gravely abused his discretion in dismissing the action. Again, the
parents of the plaintiffs-minors not only represent their children, but have also joined the
latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the parties to
submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a
Comment in behalf of the respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it
contains sufficient allegations concerning their right to a sound environment based on
Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order
(E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151
(Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing
the right of the people to a balanced and healthful ecology, the concept of generational
genocide in Criminal Law and the concept of man's inalienable right to self-preservation and
self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's
correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of
discretion in granting Timber License Agreements (TLAs) to cover more areas for logging
than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause,
petitioners maintain that the same does not apply in this case because TLAs are not
contracts. They likewise submit that even if TLAs may be considered protected by the said
clause, it is well settled that they may still be revoked by the State when the public interest so
requires.
On the other hand, the respondents aver that the petitioners failed to allege in their complaint
a specific legal right violated by the respondent Secretary for which any relief is provided by
law. They see nothing in the complaint but vague and nebulous allegations concerning an
"environmental right" which supposedly entitles the petitioners to the "protection by the state
in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid
cause of action. They then reiterate the theory that the question of whether logging should be
permitted in the country is a political question which should be properly addressed to the
executive or legislative branches of Government. They therefore assert that the petitioners'
resources is not to file an action to court, but to lobby before Congress for the passage of a
bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be
done by the State without due process of law. Once issued, a TLA remains effective for a
certain period of time usually for twenty-five (25) years. During its effectivity, the same can
neither be revised nor cancelled unless the holder has been found, after due notice and
hearing, to have violated the terms of the agreement or other forestry laws and regulations.
Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite
hearing would be violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners
instituted Civil Case No. 90-777 as a class suit. The original defendant and the present
respondents did not take issue with this matter. Nevertheless, We hereby rule that the said
civil case is indeed a class suit. The subject matter of the complaint is of common and
general interest not just to several, but to all citizens of the Philippines. Consequently, since
the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all
of them before the court. We likewise declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all concerned interests. Hence, all the
requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of
Court are present both in the said civil case and in the instant petition, the latter being but an
incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that they
represent their generation as well as generations yet unborn. We find no difficulty in ruling
that they can, for themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the succeeding generations
can only be based on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as hereinafter expounded,
considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such
rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that their exploration, development
and utilization be equitably accessible to the present as well as future generations. 10 Needless to
say, every generation has a responsibility to the next to preserve that rhythm and harmony for the
full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of
their right to a sound environment constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now proceed to the
merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration and
evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to
find for the petitioners and rule against the respondent Judge's challenged order for having
been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent
portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree
with the defendant. For although we believe that plaintiffs have but the noblest of all
intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they
are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and
redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete
with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs
fail to state a cause of action in its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with political
color and involving a matter of public policy, may not be taken cognizance of by this Court
without doing violence to the sacred principle of "Separation of Powers" of the three (3) co-
equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements. For to do otherwise
would amount to "impairment of contracts" abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with
sufficient definiteness a specific legal right involved or a specific legal wrong committed, and
that the complaint is replete with vague assumptions and conclusions based on unverified
data. A reading of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the right to a balanced and
healthful ecology which, for the first time in our nation's constitutional history, is solemnly
incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly
provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding section of the
same article:
Sec. 15. The State shall protect and promote the right to health of the people and instill
health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill of Rights, it does not follow that it is less
important than any of the civil and political rights enumerated in the latter. Such a right
belongs to a different category of rights altogether for it concerns nothing less than self-
preservation and self-perpetuation aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all governments and constitutions. As a
matter of fact, these basic rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers that unless the
rights to a balanced and healthful ecology and to health are mandated as state policies by
the Constitution itself, thereby highlighting their continuing importance and imposing upon
the state a solemn obligation to preserve the first and protect and advance the second, the
day would not be too far when all else would be lost not only for the present generation, but
also for those to come generations which stand to inherit nothing but parched earth
incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain
from impairing the environment. During the debates on this right in one of the plenary
sessions of the 1986 Constitutional Commission, the following exchange transpired between
Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the
section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of pollution air,
water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the
correlative duty of not impairing the same and, therefore, sanctions may be provided for
impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and
conservation of the country's forests.
Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to
health, as well as the other related provisions of the Constitution concerning the
conservation, development and utilization of the country's natural resources, 13 then President
Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly
mandates that the Department of Environment and Natural Resources "shall be the primary
government agency responsible for the conservation, management, development and proper use
of the country's environment and natural resources, specifically forest and grazing lands, mineral,
resources, including those in reservation and watershed areas, and lands of the public domain,
as well as the licensing and regulation of all natural resources as may be provided for by law in
order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present
and future generations of Filipinos." Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the
sustainable use, development, management, renewal, and conservation of the country's
forest, mineral, land, off-shore areas and other natural resources, including the protection
and enhancement of the quality of the environment, and equitable access of the different
segments of the population to the development and the use of the country's natural
resources, not only for the present generation but for future generations as well. It is also the
policy of the state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and conservation of
our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative
Code of 1987, 15specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino
people, the full exploration and development as well as the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity
of maintaining a sound ecological balance and protecting and enhancing the quality of the
environment and the objective of making the exploration, development and utilization of such
natural resources equitably accessible to the different segments of the present as well as
future generations.
(2) The State shall likewise recognize and apply a true value system that takes into account
social and environmental cost implications relative to the utilization, development and
conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment." Section 2 of the same Title, on the
other hand, specifically speaks of the mandate of the DENR; however, it makes particular
reference to the fact of the agency's being subject to law and higher authority. Said section
provides:
Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be
primarily responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State's
constitutional mandate to control and supervise the exploration, development, utilization, and
conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will
serve as the bases for policy formulation, and have defined the powers and functions of the
DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution,
specific statutes already paid special attention to the "environmental right" of the present and
future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and
P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a
continuing policy of the State (a) to create, develop, maintain and improve conditions under
which man and nature can thrive in productive and enjoyable harmony with each other, (b) to
fulfill the social, economic and other requirements of present and future generations of
Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a
life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each generation
as trustee and guardian of the environment for succeeding generations." 17 The latter statute, on
the other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful
ecology is as clear as the DENR's duty under its mandate and by virtue of its powers and
functions under E.O. No. 192 and the Administrative Code of 1987 to protect and advance
the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to
respect or protect the same gives rise to a cause of action. Petitioners maintain that the
granting of the TLAs, which they claim was done with grave abuse of discretion, violated
their right to a balanced and healthful ecology; hence, the full protection thereof requires that
no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and its
essential elements are legal right of the plaintiff, correlative obligation of the defendant, and
act or omission of the defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the
complaint fails to state a cause of action, 19 the question submitted to the court for resolution
involves the sufficiency of the facts alleged in the complaint itself. No other matter should be
considered; furthermore, the truth of falsity of the said allegations is beside the point for the truth
thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is:
admitting such alleged facts to be true, may the court render a valid judgment in accordance with
the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the
judiciary should "exercise the utmost care and circumspection in passing upon a motion to
dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a
correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants
or recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law
itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements under the
introductory affirmative allegations, as well as the specific averments under the sub-heading
CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of
their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs
prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is
concerned, there is the need to implead, as party defendants, the grantees thereof for they
are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy
formulation or determination by the executive or legislative branches of Government is not
squarely put in issue. What is principally involved is the enforcement of a right vis-a-
vis policies already formulated and expressed in legislation. It must, nonetheless, be
emphasized that the political question doctrine is no longer, the insurmountable obstacle to
the exercise of judicial power or the impenetrable shield that protects executive and
legislative actions from judicial inquiry or review. The second paragraph of section 1, Article
VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A.
Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred as law. The second part of the authority
represents a broadening of judicial power to enable the courts of justice to review what was
before forbidden territory, to wit, the discretion of the political departments of the
government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the
power to rule upon even the wisdom of the decisions of the executive and the legislature and
to declare their acts invalid for lack or excess of jurisdiction because tainted with grave
abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion,"
which is a very elastic phrase that can expand or contract according to the disposition of the
judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from revolving it under the expanded
jurisdiction conferred upon us that now covers, in proper cases, even the political question.
Article VII, Section 1, of the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-impairment
of contracts clause found in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements. For to do otherwise
would amount to "impairment of contracts" abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a
sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious
reasons, even invoke in his motion to dismiss the non-impairment clause. If he had done so,
he would have acted with utmost infidelity to the Government by providing undue and
unwarranted benefits and advantages to the timber license holders because he would have
forever bound the Government to strictly respect the said licenses according to their terms
and conditions regardless of changes in policy and the demands of public interest and
welfare. He was aware that as correctly pointed out by the petitioners, into every timber
license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may amend, modify,
replace or rescind any contract, concession, permit, licenses or any other form of privilege
granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not
a contract, property or a property right protested by the due process clause of the
Constitution. In Tan vs. Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber license is
not a contract within the purview of the due process clause; it is only a license or privilege,
which can be validly withdrawn whenever dictated by public interest or public welfare as in
this case.
A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a
contract between the authority, federal, state, or municipal, granting it and the person to
whom it is granted; neither is it property or a property right, nor does it create a vested right;
nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of license does not
create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G.
7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments by which
the State regulates the utilization and disposition of forest resources to the end that public
welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege
granted by the State to qualified entities, and do not vest in the latter a permanent or
irrevocable right to the particular concession area and the forest products therein. They may
be validly amended, modified, replaced or rescinded by the Chief Executive when national
interests so require. Thus, they are not deemed contracts within the purview of the due
process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA
302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the instant case
does not involve a law or even an executive issuance declaring the cancellation or
modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be
invoked. Nevertheless, granting further that a law has actually been passed mandating
cancellations or modifications, the same cannot still be stigmatized as a violation of the non-
impairment clause. This is because by its very nature and purpose, such as law could have
only been passed in the exercise of the police power of the state for the purpose of
advancing the right of the people to a balanced and healthful ecology, promoting their health
and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be absolute. The
same is understood to be subject to reasonable legislative regulation aimed at the promotion
of public health, moral, safety and welfare. In other words, the constitutional guaranty of non-
impairment of obligations of contract is limited by the exercise of the police power of the
State, in the interest of public health, safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine
American Life Insurance Co. vs. Auditor General, 30 to wit:
Under our form of government the use of property and the making of contracts are normally
matters of private and not of public concern. The general rule is that both shall be free of
governmental interference. But neither property rights nor contract rights are absolute; for
government cannot exist if the citizen may at will use his property to the detriment of his
fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the
private right is that of the public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could
apply with respect to the prayer to enjoin the respondent Secretary from receiving, accepting,
processing, renewing or approving new timber licenses for, save in cases of renewal, no
contract would have as of yet existed in the other instances. Moreover, with respect to
renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the
challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is
hereby set aside. The petitioners may therefore amend their complaint to implead as
defendants the holders or grantees of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason,
JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions

FELICIANO, J., concurring


I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this
case which, to my mind, is one of the most important cases decided by this Court in the last
few years. The seminal principles laid down in this decision are likely to influence profoundly
the direction and course of the protection and management of the environment, which of
course embraces the utilization of all the natural resources in the territorial base of our polity.
I have therefore sought to clarify, basically to myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the
bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of
petitioners' claim that their suit is properly regarded as a class suit. I understand locus
standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit.
Because of the very broadness of the concept of "class" here involved membership in this
"class" appears to embrace everyone living in the country whether now or in the
future it appears to me that everyone who may be expected to benefit from the course of
action petitioners seek to require public respondents to take, is vested with the
necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries'
right of action in the field of environmental protection, as against both the public
administrative agency directly concerned and the private persons or entities operating in the
field or sector of activity involved. Whether such beneficiaries' right of action may be found
under any and all circumstances, or whether some failure to act, in the first instance, on the
part of the governmental agency concerned must be shown ("prior exhaustion of
administrative remedies"), is not discussed in the decision and presumably is left for future
determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one specific
fundamental legal right the right to a balanced and healthful ecology" (Decision, p. 14).
There is no question that "the right to a balanced and healthful ecology" is "fundamental" and
that, accordingly, it has been "constitutionalized." But although it is fundamental in character,
I suggest, with very great respect, that it cannot be characterized as "specific," without doing
excessive violence to language. It is in fact very difficult to fashion language more
comprehensive in scope and generalized in character than a right to "a balanced and
healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and
smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and
raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and
whole communities; of dumping of organic and inorganic wastes on open land, streets and
thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or
slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources
through the use of dynamite or cyanide and other chemicals; contamination of ground water
resources; loss of certain species of fauna and flora; and so on. The other statements
pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1,
Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977
all appear to be formulations of policy, as general and abstract as the constitutional
statements of basic policy in Article II, Section 16 ("the right to a balanced and healthful
ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon
the other hand, a compendious collection of more "specific environment management
policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to
an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court
has identified the particular provision or provisions (if any) of the Philippine Environment
Code which give rise to a specific legal right which petitioners are seeking to enforce.
Secondly, the Philippine Environment Code identifies with notable care the particular
government agency charged with the formulation and implementation of guidelines and
programs dealing with each of the headings and sub-headings mentioned above. The
Philippine Environment Code does not, in other words, appear to contemplate action on the
part of private persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right
comprised in the constitutional statements above noted, the Court is in effect saying that
Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially
enforceable even in their present form. The implications of this doctrine will have to be
explored in future cases; those implications are too large and far-reaching in nature even to
be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific
legal right a right cast in language of a significantly lower order of generality than Article II
(15) of the Constitution that is or may be violated by the actions, or failures to act, imputed
to the public respondent by petitioners so that the trial court can validly render judgment
granting all or part of the relief prayed for. To my mind, the Court should be understood as
simply saying that such a more specific legal right or rights may well exist in our corpus of
law, considering the general policy principles found in the Constitution and the existence of
the Philippine Environment Code, and that the trial court should have given petitioners an
effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to
dismiss.
It seems to me important that the legal right which is an essential component of a cause of
action be a specific, operable legal right, rather than a constitutional or statutory policy, for at
least two (2) reasons. One is that unless the legal right claimed to have been violated or
disregarded is given specification in operational terms, defendants may well be unable to
defend themselves intelligently and effectively; in other words, there are due process
dimensions to this matter.
The second is a broader-gauge consideration where a specific violation of law or
applicable regulation is not alleged or proved, petitioners can be expected to fall back on the
expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of
the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and
"the right to health" are combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments the legislative and executive departments
must be given a real and effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose
concession agreements or TLA's petitioners demand public respondents should cancel, must
be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to
the relief demanded is not dependent upon proof of breach by the timber companies of one
or more of the specific terms and conditions of their concession agreements (and this,
petitioners implicitly assume), what will those companies litigate about? The answer I
suggest is that they may seek to dispute the existence of the specific legal right petitioners
should allege, as well as the reality of the claimed factual nexus between petitioners' specific
legal rights and the claimed wrongful acts or failures to act of public respondent
administrative agency. They may also controvert the appropriateness of the remedy or
remedies demanded by petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including
the forest cover of our territory, is of extreme importance for the country. The doctrines set
out in the Court's decision issued today should, however, be subjected to closer
examination.

# Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this
case which, to my mind, is one of the most important cases decided by this Court in the last
few years. The seminal principles laid down in this decision are likely to influence profoundly
the direction and course of the protection and management of the environment, which of
course embraces the utilization of all the natural resources in the territorial base of our polity.
I have therefore sought to clarify, basically to myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the
bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of
petitioners' claim that their suit is properly regarded as a class suit. I understand locus
standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit.
Because of the very broadness of the concept of "class" here involved membership in this
"class" appears to embrace everyone living in the country whether now or in the
future it appears to me that everyone who may be expected to benefit from the course of
action petitioners seek to require public respondents to take, is vested with the
necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries'
right of action in the field of environmental protection, as against both the public
administrative agency directly concerned and the private persons or entities operating in the
field or sector of activity involved. Whether such beneficiaries' right of action may be found
under any and all circumstances, or whether some failure to act, in the first instance, on the
part of the governmental agency concerned must be shown ("prior exhaustion of
administrative remedies"), is not discussed in the decision and presumably is left for future
determination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one specific
fundamental legal right the right to a balanced and healthful ecology" (Decision, p. 14).
There is no question that "the right to a balanced and healthful ecology" is "fundamental" and
that, accordingly, it has been "constitutionalized." But although it is fundamental in character,
I suggest, with very great respect, that it cannot be characterized as "specific," without doing
excessive violence to language. It is in fact very difficult to fashion language more
comprehensive in scope and generalized in character than a right to "a balanced and
healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and
smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and
raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and
whole communities; of dumping of organic and inorganic wastes on open land, streets and
thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or
slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources
through the use of dynamite or cyanide and other chemicals; contamination of ground water
resources; loss of certain species of fauna and flora; and so on. The other statements
pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1,
Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977
all appear to be formulations of policy, as general and abstract as the constitutional
statements of basic policy in Article II, Section 16 ("the right to a balanced and healthful
ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon
the other hand, a compendious collection of more "specific environment management
policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to
an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court
has identified the particular provision or provisions (if any) of the Philippine Environment
Code which give rise to a specific legal right which petitioners are seeking to enforce.
Secondly, the Philippine Environment Code identifies with notable care the particular
government agency charged with the formulation and implementation of guidelines and
programs dealing with each of the headings and sub-headings mentioned above. The
Philippine Environment Code does not, in other words, appear to contemplate action on the
part of private persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right
comprised in the constitutional statements above noted, the Court is in effect saying that
Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially
enforceable even in their present form. The implications of this doctrine will have to be
explored in future cases; those implications are too large and far-reaching in nature even to
be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific
legal right a right cast in language of a significantly lower order of generality than Article II
(15) of the Constitution that is or may be violated by the actions, or failures to act, imputed
to the public respondent by petitioners so that the trial court can validly render judgment
granting all or part of the relief prayed for. To my mind, the Court should be understood as
simply saying that such a more specific legal right or rights may well exist in our corpus of
law, considering the general policy principles found in the Constitution and the existence of
the Philippine Environment Code, and that the trial court should have given petitioners an
effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to
dismiss.
It seems to me important that the legal right which is an essential component of a cause of
action be a specific, operable legal right, rather than a constitutional or statutory policy, for at
least two (2) reasons. One is that unless the legal right claimed to have been violated or
disregarded is given specification in operational terms, defendants may well be unable to
defend themselves intelligently and effectively; in other words, there are due process
dimensions to this matter.
The second is a broader-gauge consideration where a specific violation of law or
applicable regulation is not alleged or proved, petitioners can be expected to fall back on the
expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of
the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and
"the right to health" are combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments the legislative and executive departments
must be given a real and effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose
concession agreements or TLA's petitioners demand public respondents should cancel, must
be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to
the relief demanded is not dependent upon proof of breach by the timber companies of one
or more of the specific terms and conditions of their concession agreements (and this,
petitioners implicitly assume), what will those companies litigate about? The answer I
suggest is that they may seek to dispute the existence of the specific legal right petitioners
should allege, as well as the reality of the claimed factual nexus between petitioners' specific
legal rights and the claimed wrongful acts or failures to act of public respondent
administrative agency. They may also controvert the appropriateness of the remedy or
remedies demanded by petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including
the forest cover of our territory, is of extreme importance for the country. The doctrines set
out in the Court's decision issued today should, however, be subjected to closer
examination.
# Footnotes
1 Rollo, 164; 186.
2 Id., 62-65, exclusive of annexes.
3 Under Section 12, Rule 3, Revised Rules of Court.
4 Rollo, 67.
5 Id., 74.
6 Rollo, 70-73.
7 Annex "B" of Petitions; Id., 43-44.
8 Paragraph 7, Petition, 6; Rollo, 20.
9 Webster's Third New International Dictionary, unabridged, 1986, 1508.
10 Title XIV (Environment and Natural Resources), Book IV of the Administrative Code of
1987, E.O. No. 292.
11 Annex "B" of Petition; Rollo, 43-44.
12 Record of the Constitutional Commission, vol. 4, 913.
13 For instance, the Preamble and Article XII on the National Economy and Patrimony.
14 The Reorganization Act of the Department of Environment and Natural Resources.
15 E.O. No. 292.
16 Section 1.
17 Section 2.
18 Ma-ao Sugar Central Co. vs. Barrios, 79 Phil. 666 [1947]; Community Investment and
Finance Corp. vs. Garcia, 88 Phil. 215 [1951]; Remitere vs. Vda. de Yulo, 16 SCRA 251
[1966]; Caseas vs. Rosales, 19 SCRA 462 [1967]; Virata vs. Sandiganbayan, 202 SCRA
680 [1991]; Madrona vs. Rosal, 204 SCRA 1 [1991].
19 Section 1(q), Rule 16, Revised Rules of Court.
20 Adamos vs. J.M. Tuason and Co., Inc. 25 SCRA 529 [1968]; Virata vs.
Sandiganbayn, supra; Madrona vs. Rosal, supra.
21 39 SCRA 473, 479 [1971].
22 1991 ed., 226-227.
23 180 SCRA 496, 501-502 [1989]. See also, Coseteng vs. Mitra, 187 SCRA 377 [1990];
Gonzales vs. Macaraig, 191 SCRA 452 [1990]; Llamas vs. Orbos, 202 SCRA 844 [1991];
Bengzon vs. Senate Blue Ribbon Committee, 203 SCRA 767 [1991].
24 Rollo, 44.
25 125 SCRA 302, 325 [1983].
26 190 SCRA 673, 684 [1990].
27 Article III, 1987 Constitution.
28 110 Phil. 198, 203 [1960]; footnotes omitted.
29 291 U.S. 502, 523, 78 L. ed. 940, 947-949.
30 22 SCRA 135, 146-147 [1968].
31 Ongsiako vs. Gamboa, 86 Phil. 50 [1950]; Abe vs. Foster Wheeler Corp. supra.; Phil.
American Life Insurance Co. vs. Auditor General, supra.; Alalayan vs. NPC, 24 SCRA
172[1968]; Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54 [1974]; Kabiling vs.
National Housing Authority, 156 SCRA 623 [1987].
MMDA v Concerned Residents of Manila Bay (Environmental Law)
Metropolitan Manila Development Authority v Concerned Residents of Manila Bay

GR No. 171947-48

December 18, 2008

FACTS:

The complaint by the


residents alleged that the water quality of the Manila Bay had fallen way
below the allowable standards set by law, specifically Presidential Decree No. (PD)
1152 or the Philippine Environment Code and that ALL defendants (public officials) must
be jointly and/or solidarily liable and collectively ordered to clean up Manila Bay and to
restore its water quality to class B, waters fit for swimming, diving, and other forms of
contact recreation.

ISSUES:

(1) WON Sections 17 and 20 of PD 1152 under the headings,


Upgrading of Water Quality and Clean-up Operations, envisage a cleanup in
general or are they limited only to the cleanup of specific pollution incidents;

(2) WON petitioners be compel led by mandamus to clean up and rehabilitate the Manila
Bay.

APPLICABLE LAWS:

PD 1152 Philippine Environmental Code Section 17. Upgrading of Water Quality.


Where the quality of water has deteriorated t o a degree where it s state
will adversely affect its best u sage, the government agencies concerned shall
take such measures as may be necessary to upgrade the quality of such water
to meet the prescribed water quality standards. Section 20. Clean-up Operations.
It shall be the responsibility of the polluter to contain , remove and clean -
up water pollution incidents at his own expense. In
case of his failure to do so, the government agencies concerned
shall undertake containment, removal and clean-up operations and expenses incurred
in said operation shall be charged against the persons and/ or entities responsible
for such pollution.

HELD:
(1) Sec. 17 does not in any way state that the government agencies
concerned ought to confine themselves to the containment, removal, and cleaning
operations when a specific pollution incident occurs. On the contrary,
Sec. 17 requires them to act even in the absence of a specific pollution incident,
as long as water quality has deteriorated to a degree where its state will adversely
affect its best usage. Section 17 & 20 are of general application and are not for specific
pollution incidents only. The fact that the pollution of the Manila Bay is of such
magnitude and scope that it is well -nigh impossible to draw the
line between a specific and a general pollution incident.

(2) The Cleaning or Rehabilitation of Manila Bay Can be Compelled by Mandamus. While the
implementation of the MMDA's mandated tasks may entail a decision-making process,
the enforcement of the law or the very act of doing what the law
exacts to be done is ministerial in nature and may
be compelled by mandamus. Under what other judicial discipline describes as con
tinuing mandamus , the Court may, under extraordinary
circumstances, issue directives with the end in view of ensuring that its decision would
not be set to naught by administrative inaction or indifference.

NOTE: This continuing mandamus is no longer applicable, since this is institutionalized in


the rules of procedure for environmental cases.

20 days Temporary restraining order

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Republic of the Philippines
SUPREME COURT
Manila


EN BANC


METROPOLITAN MANILA G.R. Nos. 171947-48
DEVELOPMENT AUTHORITY,
DEPARTMENT OF
ENVIRONMENT AND NATURAL Present:
RESOURCES,DEPARTMENT OF
EDUCATION, CULTURE AND
SPORTS,[1]DEPARTMENT OF CORONA, C.J.,
HEALTH,DEPARTMENT OF CARPIO,
AGRICULTURE,DEPARTMENT OF CARPIO MORALES,
PUBLICWORKS AND VELASCO, JR.,
HIGHWAYS,DEPARTMENT OF NACHURA,
BUDGET ANDMANAGEMENT, LEONARDO-DE CASTRO,
PHILIPPINECOAST GUARD, BRION,
PHILIPPINENATIONAL POLICE PERALTA,
MARITIMEGROUP, and BERSAMIN,
DEPARTMENT OFTHE INTERIOR DEL CASTILLO,
AND LOCALGOVERNMENT, ABAD,
Petitioners, VILLARAMA, JR.,
PEREZ,
- versus - MENDOZA, and
SERENO, JJ.
CONCERNED RESIDENTS
OFMANILA BAY, represented
and joined by DIVINA V. ILAS,
SABINIANO ALBARRACIN,
MANUEL SANTOS, JR., DINAH
DELA PEA, PAUL DENNIS
QUINTERO, MA. VICTORIA
LLENOS, DONNA CALOZA,
FATIMA QUITAIN, VENICE
SEGARRA, FRITZIE TANGKIA,
SARAH JOELLE LINTAG,
HANNIBAL AUGUSTUS BOBIS,
FELIMON SANTIAGUEL, and
JAIME AGUSTIN R. OPOSA, Promulgated:
Respondents. February 15, 2011


x-----------------------------------------------------------------------------------------x
RESOLUTION


VELASCO, JR., J.:

On December 18, 2008, this Court rendered a Decision in G.R. Nos. 171947-
48 ordering petitioners to clean up, rehabilitate and preserve Manila Bay in
their different capacities. The fallo reads:

WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the
CA in CA-G.R. CV No. 76528 and SP No. 74944 and the September 13, 2002
Decision of the RTC in Civil Case No. 1851-99 are AFFIRMED but with
MODIFICATIONS in view of subsequent developments or supervening events in
the case. The fallo of the RTC Decision shall now read:

WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-


government agencies to clean up, rehabilitate, and preserve Manila Bay, and restore
and maintain its waters to SB level (Class B sea waters per Water Classification
Tables under DENR Administrative Order No. 34 [1990]) to make them fit for
swimming, skin-diving, and other forms of contact recreation.

In particular:

(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency
responsible for the conservation, management, development, and proper use of the
countrys environment and natural resources, and Sec. 19 of RA 9275, designating
the DENR as the primary government agency responsible for its enforcement and
implementation, the DENR is directed to fully implement its Operational Plan for
the Manila Bay Coastal Strategy for the rehabilitation, restoration, and conservation
of the Manila Bay at the earliest possible time. It is ordered to call regular
coordination meetings with concerned government departments and agencies to
ensure the successful implementation of the aforesaid plan of action in accordance
with its indicated completion schedules.

(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987
and Sec. 25 of the Local Government Code of 1991, the DILG, in exercising the
Presidents power of general supervision and its duty to promulgate guidelines in
establishing waste management programs under Sec. 43 of the Philippine
Environment Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal,
Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all factories,
commercial establishments, and private homes along the banks of the major river
systems in their respective areas of jurisdiction, such as but not limited to the Pasig-
Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the
Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando
(Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna
De Bay, and other minor rivers and waterways that eventually discharge water into
the Manila Bay; and the lands abutting the bay, to determine whether they have
wastewater treatment facilities or hygienic septic tanks as prescribed by existing
laws, ordinances, and rules and regulations. If none be found, these LGUs shall be
ordered to require non-complying establishments and homes to set up said facilities
or septic tanks within a reasonable time to prevent industrial wastes, sewage water,
and human wastes from flowing into these rivers, waterways, esteros, and the
Manila Bay, under pain of closure or imposition of fines and other sanctions.

(3) As mandated by Sec. 8 of RA 9275, the MWSS is directed to provide, install,


operate, and maintain the necessary adequate waste water treatment facilities in
Metro Manila, Rizal, and Cavite where needed at the earliest possible time.

(4) Pursuant to RA 9275, the LWUA, through the local water districts and in
coordination with the DENR, is ordered to provide, install, operate, and maintain
sewerage and sanitation facilities and the efficient and safe collection, treatment,
and disposal of sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga,
and Bataan where needed at the earliest possible time.

(5) Pursuant to Sec. 65 of RA 8550, the DA, through the BFAR, is ordered to
improve and restore the marine life of the Manila Bay. It is also directed to assist
the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan
in developing, using recognized methods, the fisheries and aquatic resources in
the Manila Bay.

(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group,
in accordance with Sec. 124 of RA 8550, in coordination with each other, shall
apprehend violators of PD 979, RA 8550, and other existing laws and regulations
designed to prevent marine pollution in the Manila Bay.

(7) Pursuant to Secs. 2 and 6-c of EO 513 and the International Convention for the
Prevention of Pollution from Ships, the PPA is ordered to immediately adopt such
measures to prevent the discharge and dumping of solid and liquid wastes and other
ship-generated wastes into the Manila Bay waters from vessels docked at ports and
apprehend the violators.

(8) The MMDA, as the lead agency and implementor of programs and projects for
flood control projects and drainage services in Metro Manila, in coordination with
the DPWH, DILG, affected LGUs, PNP Maritime Group, Housing and Urban
Development Coordinating Council (HUDCC), and other agencies, shall dismantle
and remove all structures, constructions, and other encroachments established or
built in violation of RA 7279, and other applicable laws along the Pasig-Marikina-
San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros in
Metro Manila. The DPWH, as the principal implementor of programs and projects
for flood control services in the rest of the country more particularly in Bulacan,
Bataan, Pampanga, Cavite, and Laguna, in coordination with the DILG, affected
LGUs, PNP Maritime Group, HUDCC, and other concerned government agencies,
shall remove and demolish all structures, constructions, and other encroachments
built in breach of RA 7279 and other applicable laws along the Meycauayan-
Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite)
River, the Laguna De Bay, and other rivers, connecting waterways, and esteros that
discharge wastewater into the Manila Bay.

In addition, the MMDA is ordered to establish, operate, and maintain a sanitary


landfill, as prescribed by RA 9003, within a period of one (1) year from finality of
this Decision. On matters within its territorial jurisdiction and in connection with
the discharge of its duties on the maintenance of sanitary landfills and like
undertakings, it is also ordered to cause the apprehension and filing of the
appropriate criminal cases against violators of the respective penal provisions of
RA 9003, Sec. 27 of RA 9275 (the Clean Water Act), and other existing laws on
pollution.

(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within
one (1) year from finality of this Decision, determine if all licensed septic and
sludge companies have the proper facilities for the treatment and disposal of fecal
sludge and sewage coming from septic tanks. The DOH shall give the companies,
if found to be non-complying, a reasonable time within which to set up the
necessary facilities under pain of cancellation of its environmental sanitation
clearance.

(10) Pursuant to Sec. 53 of PD 1152, Sec. 118 of RA 8550, and Sec. 56 of RA 9003,
the DepEd shall integrate lessons on pollution prevention, waste management,
environmental protection, and like subjects in the school curricula of all levels to
inculcate in the minds and hearts of students and, through them, their parents and
friends, the importance of their duty toward achieving and maintaining a balanced
and healthful ecosystem in the Manila Bay and the entire Philippine archipelago.

(11) The DBM shall consider incorporating an adequate budget in the General
Appropriations Act of 2010 and succeeding years to cover the expenses relating to
the cleanup, restoration, and preservation of the water quality of the Manila Bay, in
line with the countrys development objective to attain economic growth in a manner
consistent with the protection, preservation, and revival of our marine waters.

(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH,
DBM, PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA,
in line with the principle of continuing mandamus, shall, from finality of this
Decision, each submit to the Court a quarterly progressive report of the activities
undertaken in accordance with this Decision.

SO ORDERED.


The government agencies did not file any motion for reconsideration and the
Decision became final in January 2009.

The case is now in the execution phase of the final and executory December
18, 2008 Decision. The Manila Bay Advisory Committee was created to
receive and evaluate the quarterly progressive reports on the activities
undertaken by the agencies in accordance with said decision and to monitor
the execution phase.

In the absence of specific completion periods, the Committee recommended


that time frames be set for the agencies to perform their assigned tasks. This
may be viewed as an encroachment over the powers and functions of the
Executive Branch headed by the President of the Philippines.

This view is misplaced.

The issuance of subsequent resolutions by the Court is simply an exercise of


judicial power under Art. VIII of the Constitution, because the execution of
the Decision is but an integral part of the adjudicative function of the
Court. None of the agencies ever questioned the power of the Court to
implement the December 18, 2008 Decision nor has any of them raised the
alleged encroachment by the Court over executive functions.

While additional activities are required of the agencies like submission of


plans of action, data or status reports, these directives are but part and parcel
of the execution stage of a final decision under Rule 39 of the Rules of
Court. Section 47 of Rule 39 reads:

Section 47. Effect of judgments or final orders.The effect of a judgment or final


order rendered by a court of the Philippines, having jurisdiction to pronounce the
judgment or final order, may be as follows:
xxxx

(c) In any other litigation between the same parties of their successors in
interest, that only is deemed to have been adjudged in a former judgment or
final order which appears upon its face to have been so adjudged, or which
was actually and necessarily included therein or necessary thereto. (Emphasis
supplied.)

It is clear that the final judgment includes not only what appears upon its face
to have been so adjudged but also those matters actually and necessarily
included therein or necessary thereto. Certainly, any activity that is needed to
fully implement a final judgment is necessarily encompassed by said
judgment.

Moreover, the submission of periodic reports is sanctioned by Secs. 7 and 8,


Rule 8 of the Rules of Procedure for Environmental cases:
Sec. 7. Judgment.If warranted, the court shall grant the privilege of the writ of
continuing mandamus requiring respondent to perform an act or series of acts until
the judgment is fully satisfied and to grant such other reliefs as may be warranted
resulting from the wrongful or illegal acts of the respondent. The court shall
require the respondent to submit periodic reports detailing the progress and
execution of the judgment, and the court may, by itself or through a
commissioner or the appropriate government agency, evaluate and monitor
compliance. The petitioner may submit its comments or observations on the
execution of the judgment.

Sec. 8. Return of the writ.The periodic reports submitted by the respondent


detailing compliance with the judgment shall be contained in partial returns of the
writ. Upon full satisfaction of the judgment, a final return of the writ shall be made
to the court by the respondent. If the court finds that the judgment has been fully
implemented, the satisfaction of judgment shall be entered in the court docket.
(Emphasis supplied.)

With the final and executory judgment in MMDA, the writ of continuing
mandamus issued in MMDA means that until petitioner-agencies have shown
full compliance with the Courts orders, the Court exercises continuing
jurisdiction over them until full execution of the judgment.

There being no encroachment over executive functions to speak of, We shall


now proceed to the recommendation of the Manila Bay Advisory Committee.


Several problems were encountered by the Manila Bay Advisory
Committee.[2] An evaluation of the quarterly progressive reports has shown
that (1) there are voluminous quarterly progressive reports that are being
submitted; (2) petitioner-agencies do not have a uniform manner of reporting
their cleanup, rehabilitation and preservation activities; (3) as yet no definite
deadlines have been set by petitioner DENR as to petitioner-agencies
timeframe for their respective duties; (4) as of June 2010 there has been a
change in leadership in both the national and local levels; and (5) some
agencies have encountered difficulties in complying with the Courts
directives.

In order to implement the afore-quoted Decision, certain directives have to be


issued by the Court to address the said concerns.

Acting on the recommendation of the Manila Bay Advisory Committee, the


Court hereby resolves to ORDER the following:

(1) The Department of Environment and Natural Resources (DENR), as lead


agency in the Philippine Clean Water Act of 2004, shall submit to the Court
on or before June 30, 2011 the updated Operational Plan for the Manila Bay
Coastal Strategy.

The DENR is ordered to submit summarized data on the overall quality


of Manila Bay waters for all four quarters of 2010 on or before June 30, 2011.

The DENR is further ordered to submit the names and addresses of persons
and companies in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga
and Bataan that generate toxic and hazardous waste on or before September
30, 2011.

(2) On or before June 30, 2011, the Department of the Interior and Local
Government (DILG) shall order the Mayors of all cities in Metro Manila; the
Governors of Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan; and the
Mayors of all the cities and towns in said provinces to inspect all factories,
commercial establishments and private homes along the banks of the major
river systemssuch as but not limited to the Pasig-Marikina-San Juan Rivers,
the National Capital Region (Paranaque-Zapote, Las Pinas) Rivers, the
Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-
Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite)
River, and the Laguna De Bayand other minor rivers and waterways within
their jurisdiction that eventually discharge water into the Manila Bay and the
lands abutting it, to determine if they have wastewater treatment facilities
and/or hygienic septic tanks, as prescribed by existing laws, ordinances, rules
and regulations. Said local government unit (LGU) officials are given up to
September 30, 2011 to finish the inspection of said establishments and houses.

In case of non-compliance, the LGU officials shall take appropriate action to


ensure compliance by non-complying factories, commercial establishments
and private homes with said law, rules and regulations requiring the
construction or installment of wastewater treatment facilities or hygienic
septic tanks.

The aforementioned governors and mayors shall submit to the DILG on or


before December 31, 2011 their respective compliance reports which will
contain the names and addresses or offices of the owners of all the non-
complying factories, commercial establishments and private homes, copy
furnished the concerned environmental agency, be it the local DENR office
or the Laguna Lake Development Authority.

The DILG is required to submit a five-year plan of action that will contain
measures intended to ensure compliance of all non-complying factories,
commercial establishments, and private homes.

On or before June 30, 2011, the DILG and the mayors of all cities in Metro
Manila shall consider providing land for the wastewater facilities of the
Metropolitan Waterworks and Sewerage System (MWSS) or its
concessionaires (Maynilad and Manila Water, Inc.) within their respective
jurisdictions.

(3) The MWSS shall submit to the Court on or before June 30, 2011 the list
of areas in Metro Manila, Rizal and Cavite that do not have the necessary
wastewater treatment facilities. Within the same period, the concessionaires
of the MWSS shall submit their plans and projects for the construction of
wastewater treatment facilities in all the aforesaid areas and the completion
period for said facilities, which shall not go beyond 2037.

On or before June 30, 2011, the MWSS is further required to have its two
concessionaires submit a report on the amount collected as sewerage fees in
their respective areas of operation as of December 31, 2010.

(4) The Local Water Utilities Administration is ordered to submit on or before


September 30, 2011 its plan to provide, install, operate and maintain sewerage
and sanitation facilities in said cities and towns and the completion period for
said works, which shall be fully implemented by December 31, 2020.
(5) The Department of Agriculture (DA), through the Bureau of Fisheries and
Aquatic Resources, shall submit to the Court on or before June 30, 2011 a
report on areas in Manila Bay where marine life has to be restored or improved
and the assistance it has extended to the LGUs in Metro Manila, Rizal, Cavite,
Laguna, Bulacan, Pampanga and Bataan in developing the fisheries and
aquatic resources in Manila Bay. The report shall contain monitoring data on
the marine life in said areas. Within the same period, it shall submit its five-
year plan to restore and improve the marine life in Manila Bay, its future
activities to assist the aforementioned LGUs for that purpose, and the
completion period for said undertakings.

The DA shall submit to the Court on or before September 30, 2011 the
baseline data as of September 30, 2010 on the pollution loading into
the Manila Bay system from agricultural and livestock sources.

(6) The Philippine Ports Authority (PPA) shall incorporate in its quarterly
reports the list of violators it has apprehended and the status of their cases.
The PPA is further ordered to include in its report the names, make and
capacity of the ships that dock in PPA ports. The PPA shall submit to the
Court on or before June 30, 2011 the measures it intends to undertake to
implement its compliance with paragraph 7 of the dispositive portion of the
MMDA Decision and the completion dates of such measures.
The PPA should include in its report the activities of its concessionaire that
collects and disposes of the solid and liquid wastes and other ship-generated
wastes, which shall state the names, make and capacity of the ships serviced
by it since August 2003 up to the present date, the dates the ships docked at
PPA ports, the number of days the ship was at sea with the corresponding
number of passengers and crew per trip, the volume of solid, liquid and other
wastes collected from said ships, the treatment undertaken and the disposal
site for said wastes.

(7) The Philippine National Police (PNP) Maritime Group shall submit on or
before June 30, 2011 its five-year plan of action on the measures and activities
it intends to undertake to apprehend the violators of Republic Act No. (RA)
8550 or the Philippine Fisheries Code of 1998 and other pertinent laws,
ordinances and regulations to prevent marine pollution in Manila Bay and to
ensure the successful prosecution of violators.

The Philippine Coast Guard shall likewise submit on or before June 30, 2011
its five-year plan of action on the measures and activities they intend to
undertake to apprehend the violators of Presidential Decree No. 979 or
the Marine Pollution Decree of 1976 and RA 9993 or the Philippine Coast
Guard Law of 2009 and other pertinent laws and regulations to prevent marine
pollution in Manila Bay and to ensure the successful prosecution of violators.

(8) The Metropolitan Manila Development Authority (MMDA) shall submit


to the Court on or before June 30, 2011 the names and addresses of the
informal settlers in Metro Manila who, as of December 31, 2010, own and
occupy houses, structures, constructions and other encroachments established
or built along the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-
Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers,
and connecting waterways and esteros, in violation of RA 7279 and other
applicable laws. On or before June 30, 2011, the MMDA shall submit its plan
for the removal of said informal settlers and the demolition of the aforesaid
houses, structures, constructions and encroachments, as well as the
completion dates for said activities, which shall be fully implemented not later
than December 31, 2015.

The MMDA is ordered to submit a status report, within thirty (30) days from
receipt of this Resolution, on the establishment of a sanitary landfill facility
for Metro Manila in compliance with the standards under RA 9003 or
the Ecological Solid Waste Management Act.
On or before June 30, 2011, the MMDA shall submit a report of the location
of open and controlled dumps in Metro Manila whose operations are illegal
after February 21, 2006,[3] pursuant to Secs. 36 and 37 of RA 9003, and its
plan for the closure of these open and controlled dumps to be accomplished
not later than December 31, 2012. Also, on or before June 30, 2011, the
DENR Secretary, as Chairperson of the National Solid Waste Management
Commission (NSWMC), shall submit a report on the location of all open and
controlled dumps in Rizal, Cavite, Laguna, Bulacan, Pampanga and Bataan.

On or before June 30, 2011, the DENR Secretary, in his capacity as NSWMC
Chairperson, shall submit a report on whether or not the following landfills
strictly comply with Secs. 41 and 42 of RA 9003 on the establishment and
operation of sanitary landfills, to wit:

National Capital Region

1. Navotas SLF (PhilEco), Brgy. Tanza (New Site), Navotas City


2. Payatas Controlled Dumpsite, Barangay Payatas, Quezon City

Region III

3. Sitio Coral, Brgy. Matictic, Norzagaray, Bulacan


4. Sitio Tiakad, Brgy. San Mateo, Norzagaray, Bulacan
5. Brgy. Minuyan, San Jose del Monte City, Bulacan
6. Brgy. Mapalad, Santa Rosa, Nueva Ecija
7. Sub-zone Kalangitan, Clark Capas, Tarlac Special
Economic Zone

Region IV-A

8. Kalayaan (Longos), Laguna


9. Brgy. Sto. Nino, San Pablo City, Laguna
10. Brgy. San Antonio (Pilotage SLF), San Pedro, Laguna
11. Morong, Rizal
12. Sitio Lukutan, Brgy. San Isidro, Rodriguez (Montalban), Rizal
(ISWIMS)
13. Brgy. Pintong Bukawe, San Mateo, Rizal (SMSLFDC)
On or before June 30, 2011, the MMDA and the seventeen (17) LGUs in
Metro Manila are ordered to jointly submit a report on the average amount of
garbage collected monthly per district in all the cities in Metro Manila from
January 2009 up to December 31, 2010 vis--vis the average amount of garbage
disposed monthly in landfills and dumpsites. In its quarterly report for the last
quarter of 2010 and thereafter, MMDA shall report on the apprehensions for
violations of the penal provisions of RA 9003, RA 9275 and other laws on
pollution for the said period.
On or before June 30, 2011, the DPWH and the LGUs in Rizal, Laguna,
Cavite, Bulacan, Pampanga, and Bataan shall submit the names and addresses
of the informal settlers in their respective areas who, as of September 30,
2010, own or occupy houses, structures, constructions, and other
encroachments built along the Meycauayan-Marilao-Obando (Bulacan)
Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna de
Bay, and other rivers, connecting waterways and esteros that discharge
wastewater into the Manila Bay, in breach of RA 7279 and other applicable
laws. On or before June 30, 2011, the DPWH and the aforesaid LGUs shall
jointly submit their plan for the removal of said informal settlers and the
demolition of the aforesaid structures, constructions and encroachments, as
well as the completion dates for such activities which shall be implemented
not later than December 31, 2012.
(9) The Department of Health (DOH) shall submit to the Court on or before
June 30, 2011 the names and addresses of the owners of septic and sludge
companies including those that do not have the proper facilities for the
treatment and disposal of fecal sludge and sewage coming from septic tanks.

The DOH shall implement rules and regulations on Environmental Sanitation


Clearances and shall require companies to procure a license to operate from
the DOH.

The DOH and DENR-Environmental Management Bureau shall develop a


toxic and hazardous waste management system by June 30, 2011 which will
implement segregation of hospital/toxic/hazardous wastes and prevent mixing
with municipal solid waste.

On or before June 30, 2011, the DOH shall submit a plan of action to ensure
that the said companies have proper disposal facilities and the completion
dates of compliance.
(10) The Department of Education (DepEd) shall submit to the Court on or
before May 31, 2011 a report on the specific subjects on pollution prevention,
waste management, environmental protection, environmental laws and the
like that it has integrated into the school curricula in all levels for the school
year 2011-2012.

On or before June 30, 2011, the DepEd shall also submit its plan of action to
ensure compliance of all the schools under its supervision with respect to the
integration of the aforementioned subjects in the school curricula which shall
be fully implemented by June 30, 2012.
(11) All the agencies are required to submit their quarterly reports
electronically using the forms below. The agencies may add other key
performance indicators that they have identified.

SO ORDERED.

PRESBITERO J. VELASCO, JR. Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice




See dissenting opinion I join the dissent of J. Carpio
ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE


CASTRO
Associate Justice Associate Justice

I join the dissent of J. Carpio


ARTURO D. BRION DIOSDADO M. PERALTA
Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO


Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.


Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA


Associate Justice Associate Justice


See dissenting opinion
MARIA LOURDES P. A. SERENO
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified


that the conclusions in the above Resolution had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

[1]
Now the Department of Education (DepEd).
[2]
On February 10, 2009, the Court En Banc approved a resolution creating an Advisory Committee that will
verify the reports of the government agencies tasked to clean up the Manila Bay. It is composed of two
members of the Court and three technical experts:

Hon. Presbitero J. Velasco, Jr.


Chairperson and ponente of MMDA vs. Concerned Residents of Manila

Hon. Jose Midas P. Marquez


Court Administrator
Vice-Chairperson

Members/Technical Experts:

Dr. Gil S. Jacinto
Former Director, UP Marine Science Institute

Dr. Elisea G. Gozun


Chair of Earth Day Network and Former DENR Secretary

Dr. Antonio G.M. La Via


Former DENR Undersecretary
Dean of the Ateneo School of Government
[3]
Our Decision in Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay, G.R.
Nos. 171947-48, December 18, 2008, 574 SCRA 661, 690, states: RA 9003 took effect on February 15,
2001 and the adverted grace period of five (5) years [in Sec. 37 of RA 9003] which ended on February
21, 2006 has come and gone, but no single sanitary landfill which strictly complies with the prescribed
standards under RA 9003 has yet been set up. (Emphasis supplied.)

Oposa vs Factoran
Natural and Environmental Laws; Constitutional Law: Intergenerational
Responsibility
GR No. 101083; July 30 1993

FACTS:
A taxpayers class suit was filed by minors Juan Antonio Oposa, et al., representing
their generation and generations yet unborn, and represented by their parents
against Fulgencio Factoran Jr., Secretary of DENR. They prayed that judgment be
rendered ordering the defendant, his agents, representatives and other persons
acting in his behalf to:

1. Cancel all existing Timber Licensing Agreements (TLA) in the country;


2. Cease and desist from receiving, accepting, processing, renewing, or
appraising new TLAs;

and granting the plaintiffs such other reliefs just and equitable under the premises.
They alleged that they have a clear and constitutional right to a balanced and
healthful ecology and are entitled to protection by the State in its capacity as parens
patriae. Furthermore, they claim that the act of the defendant in allowing TLA
holders to cut and deforest the remaining forests constitutes a misappropriation
and/or impairment of the natural resources property he holds in trust for the benefit
of the plaintiff minors and succeeding generations.
The defendant filed a motion to dismiss the complaint on the following grounds:

1. Plaintiffs have no cause of action against him;


2. The issues raised by the plaintiffs is a political question which properly
pertains to the legislative or executive branches of the government.

ISSUE:
Do the petitioner-minors have a cause of action in filing a class suit to prevent the
misappropriation or impairment of Philippine rainforests?

HELD:
Yes. Petitioner-minors assert that they represent their generation as well as
generations to come. The Supreme Court ruled that they can, for themselves, for
others of their generation, and for the succeeding generation, file a class suit. Their
personality to sue in behalf of succeeding generations is based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right considers the rhythm and harmony of nature
which indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the countrys forest, mineral, land, waters,
fisheries, wildlife, offshore areas and other natural resources to the end that their
exploration, development, and utilization be equitably accessible to the present as
well as the future generations.
Needless to say, every generation has a responsibility to the next to preserve that
rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put
a little differently, the minors assertion of their right to a sound environment
constitutes at the same time, the performance of their obligation to ensure the
protection of that right for the generations to come.
Case concerning Gabckovo-Nagymaros Project (Hungary/Slovakia)

Judgment

The Hague, 25 September. The International Court of Justice today delivered judgment on a protracted dispute between
Hungary and Slovakia over the construction and operation of dams on the river Danube which found both States in breach of
their legal obligations. It called on both countries to carry out the relevant treaty between them while taking account of the
factual situation that has developed since 1989.
Hungary and Czechoslovakia in 1977 concluded a treaty for the building of dam structures in Slovakia and Hungary for the
production of electric power, flood control and improvement of navigation on the Danube. In 1989 Hungary suspended and
subsequently abandoned completion of the project alleging that it entailed grave risks to the Hungarian environment and the
water supply of Budapest. Slovakia (successor to Czechoslovakia) denied these allegations and insisted that Hungary carry out
its treaty obligations. It planned and subsequently put into operation an alternative project only on Slovak territory, whose
operation had effects on Hungary's access to the water of the Danube.
In its judgment, the Court found:
- that Hungary was not entitled to suspend and subsequently abandon, in 1989, its part of the works in the dam project, as laid
down in the treaty signed in 1977 by Hungary and Czechoslovakia and related instruments;
- that Czechoslovakia was entitled to start, in November 1991, preparation of an alternative provisional solution (called
"Variant C"), but not to put that solution into operation in October 1992 as a unilateral measure;
- that Hungary's notification of termination of the 1977 Treaty and related instruments on 19 May 1992 did not legally
terminate them (and that they are consequently still in force and govern the relationship between the Parties);
- and that Slovakia, as successor to Czechoslovakia became a party to the Treaty of 1977.
As to the future conduct of the Parties, the Court found:
- that Hungary and Slovakia must negotiate in good faith in the light of the prevailing situation, and must take all necessary
measures to ensure the achievement of the objectives of the 1977 Treaty;
- that, unless the Parties agree otherwise, a joint operational rgime for the dam on Slovak territory must be established in
accordance with the Treaty of 1977;
- that each Party must compensate the other Party for the damage caused by its conduct;
- and that the accounts for the construction and operation of the works must be settled in accordance with the relevant
provisions of the 1977 Treaty and its related instruments.
*
The Court held that newly developed norms of environmental law are relevant for the implementation of the Treaty and that
the Parties could, by agreement, incorporate them through the application of several of its articles. It found that the Parties, in
order to reconcile economic development with protection of the environment, "should look afresh at the effects on the
environment of the operation of the Gabkovo power plant. In particular they must find a satisfactory solution for the volume
of water to be released into the old bed of the Danube and into the side-arms of the river."
*
**
The Court was composed as follows: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume,
Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek; Judge ad
hoc Skubiszewski; Registrar Valencia-Ospina.
President Schwebel and Judge Rezek appended declarations to the Judgment of the Court; Vice-President Weeramantry and
Judges Bedjaoui and Koroma appended separate opinions; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Vereshchetin, Parra-
Aranguren and Judge ad hoc Skubiszewski appended dissenting opinions.
*
**
A summary of the Judgment is given in Press Communiqu No. 97/10 bis. The text of the declarations and a brief summary of
the opinions may be found in the Annex to that press communiqu.
The printed text of the Judgment and of the declarations and opinions appended to it will become available in due course
(orders and enquiries should be addressed to the Distribution and Sales Section, Office of the United Nations, 1211 Geneva
10; the Sales Section, United Nations, New York, N.Y. 10017; or any appropriate specialized bookshop).
The full text of the Judgment, as well as of the Press Communiqus, will be available on the Internet. The address of the
Court's website is: http://www.icj-cij.org

4. SUMMARY OF DECISIONS BY INTERNATIONAL TRIBUNALS


INCLUDING ARBITRAL AWARDS

4.1 INTERNATIONAL TRIBUNALS


4.1.1 Permanent Court of International Justice
4.1.1.1 Jurisdiction of the European Commission of the Danube between Galatz
and Braila, Advisory Opinion of 8 December 1927[119]
Introduction
The Danube is the second longest river in Europe. It is formed by two headstreams (each
about 25 miles long), the Brigach River and Brege River, which rise in the Black Forest
in Germany and unite below Donaueschingen only 20 miles await from Schaffhausen on
the Rhine. Thereafter, it enters the Black Sea in a wide, marshy delta.
Entering Germany, it flows through Wttemberg, past Ulm, and enters Austria, continues
through Upper and Lower Austria. Near Vienna it forms a short frontier, and a longer
frontier between Austria and Czechoslovakia. It passes Hungary (Komrno), Budapest
and enters Yugoslavia, past Novi Sad, Belgradee, then reaches Romania, enters the great
Walachian plain and forms most of the Rumanian-Bulgarian border. Below Galati
(Romania) it receives the Prut River at the border of the Ukraine. Near Tulcea it forms
three main arms: the Kilija, the Sulina and the St. George. The Sulina, the central arm of
the delta, enters the Black Sea at town of Sulina.
Facts
Under the Treaty of Paris of 1856, the Danube was subjected to an international regime
which applied the principles of river law embodied in the Final Act of the Congress of
Vienna in 1815. By the Treaty of Paris of 1856, two Commissions were established: a
permanent riparian Commission (which never actually became operative), and a
European Commission as a temporary technical body. The powers of the European
Commission were extended to the Romanian seaport of Galatz, a seat being granted to
that country by the Treaty of Berlin of 1878.
The Treaty of London of 1883 extended this jurisdiction to Braila, another port in
Romania; but Romania had not signed this Treaty. The Treaty of Versailles of 1919
declared the Danube an international river from Ulm to the sea and confirmed the
jurisdiction of the European Commission in the powers vested in it before the war.
This Commission consisted of representatives of Great Britain, France, Italy and
Romania.
The Definitive Statute of the Danube was signed on 23 July 1921 at an international
conference meeting in Paris, and provided as follows:
Article 5
The European Commission retains the powers which it possessed before the war. No
alteration is made in the rights, prerogatives and privileges which it possesses in virtue of
the treaties, conventions, international acts and agreements relative to the Danube and its
mouths.
Article 6
The authority of the European Commission extends, under the same conditions as before,
and without any modification of its existing limits, over the maritime Danube, that is to
say, from the mouths of the river to the point where the authority of the International
Commission commences.
Article 9 of the Statute extended the jurisdiction of the International Commission from
Ulm to Braila. Romania expressed different view with regard to the powers of the
Commission in the sector Galatz-Braila from that of France, Great Britain and Italy. The
matter was submitted by the Special Committee to the Permanent Court of International
Justice for an advisory opinion.
Request for the Advisory Opinion
Three questions were put by the Special Committee:
1) Under the law at present in force, has the European Commission of the Danube the
same powers on the maritime sector of the Danube from Galatz to Braila as on the sector
below Galatz? If it has not the same powers, does it possess powers of any kind? If so,
what are these powers? How far upstream do they extend?
2) Should the European Commission of the Danube possess either the same powers on
the Galatz-Braila sector as on the sector below Galatz, or certain powers, do these powers
extend over one or more zones, territorially defined and corresponding to all or part of the
navigable channel to the exclusion of other zones territorially defined and corresponding
to harbour zones subject to the exclusive competence of the Romanian authorities? If so,
according to what criteria shall the line of demarcation be fixed as between territorial
zones placed under the competence of the European Commission and zones placed under
the competence of the Romanian authorities?
3) If the contrary is the case on what non-territorial basis is the exact dividing line
between the respective competence of the European Commission of the Danube and of
the Romanian authorities to be fixed?
Summary of the Advisory Opinion
1. As for the first question, in the opinion of the Court, the law in force is the Definitive
Statute of 1921. All Parties concerned, i.e. France, Great Britain, Italy and Romania have
signed and ratified both the Treaty of Versailles and the Definitive Statute. The Definitive
Statute placed the entire navigable Danube under an international regime, and the
jurisdiction of the European Commission extended from Ulm to Braila (Article 9) that is
to say, as far as Braila.
2. As for the second question, as to whether the Commission should exercise all the
powers in the sector Galatz-Braila in the same way as they are exercised in the sector
below Galatz, according to the view of France, Great Britain and Italy, or only strictly
technical powers in the disputed sector (Galatz-Braila) according to the view of Romania,
the Court finds that Article 6 of the Statute of 1921 is not a new draft conferring only
technical powers on the Commission, because the preparatory works cannot change the
interpretation of the text of Article 6. The Interpretative Protocol is not part of the Statute
and that is why it cannot prevail against the Definitive Statute. So the Court concludes
that before the war, the Commission had the same powers with respect to the Galatz-
Braila sector as in the sector below Galatz.
The Court follows functional criteria to delimit the powers of the European Commission
and Romania in the Galatz-Braila sector. Taking into account the principles of freedom of
navigation and equality of flags, the Court establishes two criteria:
(a) in the ports of Galatz and Braila, the European Commission alone has jurisdiction
over navigation, that conception being taken to mean any movement of vessels forming
part of their voyage;
(b) with regard to vessels moved or otherwise at rest in these ports, and with regard to
the use by vessels of the installations and services of these ports... the powers of
regulation and jurisdiction belong to the territorial authorities; the right of supervision,
with a view to ensuring freedom of navigation and equal treatment of all flags, belongs to
the European Commission.
4.1.1.2 Case relating to the Territorial Jurisdiction of the International
Commission of the River Oder, Judgement of 10 September 1929[120]
Introduction
The Oder River is the second longest river of Poland. It rises in Czechoslovakia in the
Oder Mountains, 10 miles East-Northeast of Olomouc. It flows through the Moravian
Gate, past Nov, Bohumin, into Poland, then past Opole, Wroclaw. It enters the Oder
Marshes, dividing into two arms, the East Oder and the West Oder (Berlin-Stettin Canal).
Fifteen miles north of Stettin, it empties into the Baltic. The Oder forms the northern part
of the Oder-Neisse Line, the border between Poland and East Germany determined in
1945 by the Potsdam Conference.
Facts
Under the Treaty of Versailles of 1919 (first paragraph of Article 331), the Oder was
declared an international river. The second paragraph of that Article declared as
possessing international status all navigable parts of these river systems which naturally
provide more than one State with access to the sea, with or without transhipment from
one vessel to another; together with lateral canals and channels constructed either to
duplicate or to improve naturally navigable sections of the specified river systems, or to
connect two naturally navigable sections of the same river.
By Article 341 of the Treaty, the Oder was placed under the administration of an
International Commission consisting of representatives of Poland, Germany, Great
Britain, Czechoslovakia, France, Denmark and Sweden. The task of this Commission was
to define the sections of the river or its tributaries to which the international regime shall
be applied.
The differences between Poland and other members of the Commission concerned the
question as to at what point the jurisdiction of the Commission should end in respect of
two tributaries of the Oder: the Netze (Notec) and the Marthe (Warta). In the view of
Poland, the jurisdiction of the Commission ended at the point where each river crossed
the Polish frontier, while the other members of the Commission considered that it should
be the point where each river ceased to be navigable, even if that point was situated
within the Polish territory.
The Governments represented on the International Commission of the Oder drew up a
Special Agreement asking the Court:
Does the jurisdiction of the International Commission of the Oder extend, under the
provisions of the Treaty of Versailles, to the sections of the tributaries of the Oder,
Warthe (Warta) and Netze (Notec), which are situated in the Polish territory, and, if so,
what is the principle laid down which must be adopted for the purpose of determining the
upstream limits of the Commission's jurisdiction?
Submissions of the Parties
As to the first question, Germany, Denmark, France, Great Britain, Sweden and
Czechoslovakia asked the Court to declare that the jurisdiction of the International
Commission extended to the sections of the Warthe and the Netze situated in Polish
territory. For the juridical bases of their position, they cited the Barcelona Statute of 1921
(definition of navigable waterways of international concern), and the Treaty of Versailles
(Article 331 - conditions of navigability). As to the second question, the upstream limits
of the Commission's jurisdiction they submitted, should include all sections of the above
two tributaries.
The Polish Government took the contrary view and asked the Court to declare that the
jurisdiction of the International Commission did not extend to those two sections (of the
Warthe and the Netze) situated in Polish territory.
Summary of the Judgement
Before rendering its judgement, the Court had to clarify two questions. The first of these
related to Article 341 of the Treaty of Versailles stating that:
The Oder shall be placed under the administration of an International Commission.
In the Polish view, the tributaries of the river were not placed under the authority of the
Commission. The Court however rejoined that the Special Agreement expressly
mentioned the Warthe and the Netze. This meant that the Commission's jurisdiction
extended to the tributaries.
The second question related to the applicability of the Statute Annexed to the Barcelona
Convention of 20 April 1921, on which the Six Governments (except Poland) based their
arguments. The Court observed that Poland had ratified neither the Convention nor the
Statute of Barcelona, and that neither therefore could be cited against Poland, and
accordingly based its judgement exclusively on the Treaty of Versailles.
In order to answer the first question, the Court had to interpret the second paragraph of
Article 331 of the Treaty of Versailles stating as follows:
All navigable parts of those river systems which naturally provide more than one State
with access to the sea.
The difference between an international and national river is that the first must be
navigable and naturally provide more than one State with access to the sea. There wasno
question as to the navigability of the Warthe or the Netze, but Poland considered that the
sections of the Warthe and the Netze in Polish territory provided only Poland with access
to the sea, whereas the six Governments maintained the contrary (access to the sea for
other States). The Court based its judgement on the concept of a community of interest
of riparian States, thus:
When consideration is given to the manner in which States have regarded the concrete
situations arising out of the fact that a single waterway traverses or separates the territory
of more than one State, and the possibility of fulfilling the requirements of justice and the
considerations of utility which this fact places in relief, it is at once seen that a solution of
the problem has been sought not in the idea of a right of passage in favour of upstream
States, but in that of a community of interest of riparian States. This community of
interest in a navigable river becomes the basis of a common legal right, the essential
features of which are the perfect equality of all riparian States in the use of the whole
course of the river and the exclusion of any preferential privilege of any riparian State in
relation to others.
The Court went on to affirm that the jurisdiction of the International Commission of the
Oder extended to the sections of the tributaries of the Oder, Warthe and Netze, situated in
Polish territory.
Regarding the second question, namely, what is the principle laid down which must be
adopted for the purpose of determining the upstream limits of the Commission's
jurisdiction, the Court based its decision on Article 331 of the Treaty of Versailles. The
Court had this to say:
The jurisdiction of the Commission extends up to the points at which the Warthe
(Warta) and the Netze (Notec) cease to be either naturally navigable or navigable by
means of lateral channels or canals which duplicate or improve naturally navigable
sections or connect two naturally navigable sections of the same river.
4.1.1.3 The Oscar Chinn Case, Judgement of 12 December 1934[121]
Introduction
The Congo River, the second longest river in Africa, rises in the Katanga plateau in the
southeastern part of what was at the time of the dispute the Belgian Congo (now Zaire)
across the Central African depression and turns, reaching the Atlantic Ocean through a
narrow gorge in the Crystal Mountains. With its numerous tributaries, it drains a basin of
some 1,450,000 sq. miles (the second largest basin in the world). The Congo is the chief
thoroughfare for trade in the Belgian Congo (now Zaire).
Facts
The river transport company Union nationale des transports fluviaux (Unatra), with
majority capital held by the State was set up in 1925 in the Belgian Congo (now Zaire, at
Leopoldville). Four years later, in 1929, a British national, Oscar Chinn also established a
river transport company in the Belgian Congo. As a result of the depression of 1930/31,
the prices of raw materials of tropical origin fell, and the Belgian Government, by
decision of 20 June 1931, ordered the lowering of the transport companies rates to a
nominal level. Any loss would be reimbursed. Other private transporters, both Belgian
and foreign, including Chinn, were excluded from this rgime on the grounds of its
temporary character.
In October 1932, the Belgian Government offered refunds to the private companies.
Oscar Chinn however did not avail himself of this provision because he had gone out of
business in July 1931. Instead, he sought the protection of the British Government,
considering that he had been forged to go out of business following the decision of 20
June 1931 by which the Belgian Government had established a de facto monopoly in
favour of Unatra.
According to the British Government, this decision violated the provisions of
the Convention of Saint-Germain of 10 September 1919 on the Status of the Congo,
claiming on these grounds reparation by the Belgian Government for the losses suffered
by Oscar Chinn.
The matter was brought before the Permanent Court of International Justice by a special
agreement signed at Brussels on 13 April 1934 between the two Governments (British
and Belgian). Then put to the Court the following questions:
1. Having regard to all the circumstances of the case, were the above-mentioned
measures complained of by the Government of the United Kingdom in conflict with the
international obligations of the Belgian Government towards the Government of the
United Kingdom?
2. If the answer to question 1 above is in the affirmative, and if Mr. Oscar Chinn has
suffered damage on account of the non-observance by the Belgian Government of the
above-mentioned obligations, what is the reparation to be paid by the Belgian
Government to the Government of the United Kingdom?
Submissions of the Parties
The United Kingdom asked the Court to declare that the Belgian Government, by its
decision of 20 June 1931, violated obligations toward the Government of the United
Kingdom under the Convention of Saint-Germain and general international law and that
the Belgian Government should pay the reparation for the damage suffered by Chinn.
Summary of the Judgement
First, the Court analysed the basis on which these obligations arose, namely the
Convention of Saint-Germain of 1919, and the general principles of international law.
Article 1 of the Convention of Saint-Germain reads:
The signatory powers undertake to maintain between their respective nationals and those
of States, Members of the League of Nations, which may adhere to the present
Convention a complete commercial equality in the territories under their authority within
the area defined by Article 1 of the General Act of Berlin of 26 February 1885, set out in
the Annex hereto, but subject to the reservation specified in the final paragraph of that
Article.
This Article makes it clear that the Convention of Saint-Germain abrogated the General
Act of Berlin of 1885 and the General Act and Declaration of Brussels of 1890. The law
applicable to this item case was the Convention of Saint-Germain, which confirmed the
principle of free navigation and the principle of freedom of trade. But, for the Court,
freedom of trade does not mean the abolition of commercial competition; it presupposes
the existence of such competition.
Taking into account the temporary character of the measures taken by the Belgian
Government and the special circumstances (the depression of 1930/31), the Court did not
consider these like a violation of the Convention of Saint-Germain.
As for any violation of general international law to the effect that all States have a duty to
respect the vested rights of foreigners - the Court could not accept this argument, since no
vested right was violated by the Belgian Government.
4.1.1.4 The Diversion of Water from the Meuse, Judgement of 28 June 1937[122]
Introduction
The River Meuse rises in northeastern France, flows through Belgium and Holland into
the North Sea, where it forms a common delta with the Rhine. The Rhine-Meuse delta is
formed by the Upper Merwede, which has two tributaries, the New Merwede and the
Lower Merwede. From its source in the Plateau of Langres, six miles west-northwest of
Bourbone-les-Bains, it passes Neufchteau au Troussey, entering Belgium below Givet.
Passing Lige, it forms the Netherlands-Belgian border. At Maastricht it is wholly in the
Netherlands.
Facts
The Netherlands and Belgium concluded a Treaty on 12 May 1863 in order to settle
permanently and definitively the rgime governing diversions of water from the Meuse
for the feeding of navigation canals and irrigation channels.
By Article 1 of this Treaty, the construction of the new intake has been provided in the
Netherlands, below Maastricht, and it would constitute the feeding conduct for all canals
situated below that town and for irrigation in the Campine and in the Netherlands.
In 1925, the two States signed a new agreement designed to settle all differences
concerning the construction or the enlargement of new canals. The Netherlands First
Chamber however refused to ratify. Following this, the Netherlands started to construct
the Juliana Canal, the Bosscheveld Lock and the Borgharen barrage, while Belgium
began to construct the Albert Canal, a barrage at Monsin and a lock at Neerhaeren. The
Netherlands seized the Court with a unilateral application under Article 36(2) of the
Court's Statute (compulsory jurisdiction).
Submission of the Parties
The Netherlands asked the Court to declare that the construction of the new canals by
Belgium was contrary to the Treaty of 1863, and to order Belgium:
a) to discontinue all the works and to restore to a condition consistent with the Treaty of
1863 all works constructed in breach of that Treaty; and
b) to discontinue any feeding held to be contrary to the said Treaty and to refrain from
any further feeding.
Belgium asked the Court to declare that the Netherlands' submission was ill-founded, that
the Borgharen barrage had been constructed in breach of the Treaty of 1863 and that the
Juliana Canal too, was subject to the provisions of that same Treaty.
Summary of the Judgement
The Court rejected the Netherlands' submission with effect that the Article 1 of the Treaty
of 1863 gave it the right to supervise and control all the intakes, situated not only in
Netherlands' territory, but also in Belgium. The text of this article provided for only one,
single feeder in the Netherlands.
With regard to the construction by Belgium of the Albert Canal (water taken from the
Meuse in Netherlands territory), the origin of the water was irrelevant, In the opinion of
the Court, the two States could modify, enlarge, transform, fill the canals and increase the
volume of water in them on condition that the canals did not leave their territories and the
volume of water was not affected.
The Court rejected the first Belgian submission concerning the Borgharen barrage, stating
that the Treaty of 1863 did not forbid the Netherlands to alter the depth of water in the
Meuse at Maastricht without the consent of Belgium, if the discharge of water, the
volume and the current were not affected.
The second Belgian submission was also rejected by the Court on the ground that the
construction of the Juliana Canal which was situated on the right bank of the Meuse did
not come under the rgime of water supply provided for by the Treaty of 1863, which
was designed to regulate the supply of water to the canals situated on the left bank of the
Meuse.
4.1.2 International Court of Justice
4.1.2.1 Case concerning the Gabckovo - Nagymaros Project (Hungary/Slovakia),
Judgment of 25 September 1997[123]
Introduction
The sector of the Danube river with which this case is concerned is a stretch of
approximately 200 kilometres, between Bratislava in Slovakia and Budapest in Hungary.
Below Bratislava, the river gradient decreases markedly, creating an alluvial plain of
gravel and sand sediment. The boundary between the two States is constituted, in the
major part of that region, by the main channel of the river. Cunovo and, further
downstream, Gabckovo, are situated in this sector of the river on Slovak territory,
Cunovo on the right bank and Gabckovo on the left. Further downstream, after the
confluence of the various branches, the river enters Hungarian territory. Nagymaros lies
in a narrow valley at a bend in the Danube just before it turns south, enclosing the large
river island of Szentendre before reaching Budapest.
Facts
The present case arose out of the signature, on 16 September 1977, by the Hungarian
People's Republic and the Czechoslovak People's Republic, of a treaty concerning the
construction and operation of the Gabckovo-Nagymaros System of Locks (hereinafter
called the 1977 Treaty). The names of the two contracting States have varied over the
years; they are referred to as Hungary and Czechoslovakia. The 1977 Treaty entered into
force on 30 June 1978.
It provides for the construction and operation of a System of Locks by the parties as a
joint investment. According to its Preamble, the system was designed to attain the
broad utilization of the natural resources of the Bratislava-Budapest section of the
Danube river for the development of water resources, energy, transport, agriculture and
other sectors of the national economy of the Contracting Parties. The joint investment
was thus essentially aimed at the production of hydroelectricity, the improvement of
navigation on the relevant section of the Danube and the protection of the areas along the
banks against flooding. At the same time, by the terms of the Treaty, the contracting
parties undertook to ensure that the quality of water in the Danube was not impaired as a
result of the Project, and that compliance with the obligations for the protection of nature
arising in connection with the construction and operation of the System of Locks would
be observed.
The 1977 Treaty provides for the building of two series of locks, one at Gabckovo (in
Czechoslovak territory) and the other at Nagymaros (in Hungarian territory), to constitute
a single and indivisible operational system of works. The Treaty further provided that
the technical specifications concerning the system would be included in the Joint
Contractual Plan which was to be drawn up in accordance with the Agreement signed by
the two Governments for this purpose on 6 May 1976. It also provided for the
construction, financing and management of the works on a joint basis in which the Parties
participated in equal measure.
The Joint Contractual Plan, set forth, on a large number of points, both the objectives of
the system and the characteristics of the works. It also contained Preliminary Operating
and Maintenance Rules, Article 23 of which specified that The final operating rules
[should] be approved within a year of the setting into operation of the system.
The Court observed that the Project was thus to have taken the form of an integrated joint
project with the two contracting parties on an equal footing in respect of the financing,
construction and operation of the works. Its single and indivisible nature was to have
been realized through the Joint Contractual Plan which complemented the Treaty. In
particular, Hungary would have had control of the sluices at Dunakiliti and the works at
Nagymaros, whereas Czechoslovakia would have had control of the works at Gabckovo.
The schedule of work had for its part been fixed in an Agreement on mutual assistance
signed by the two parties on 16 September 1977, at the same time as the Treaty itself.
The Agreement made some adjustments to the allocation of the works between the parties
as laid down by the Treaty. Work on the Project started in 1978. On Hungary's initiative,
the two parties first agreed, by two Protocols signed on 10 October 1983 to slow the work
down and to postpone putting into operation the power plants, and then, by a Protocol
signed on 6 February 1989 to accelerate the Project.
As a result of intense criticism which the Project had generated in Hungary, the
Hungarian Government decided on 13 May 1989 to suspend the works at Nagymaros
pending the completion of various studies which the competent authorities were to finish
before 31 July 1989. On 21 July 1989, the Hungarian Government extended the
suspension of the works at Nagymaros until 31 October 1989, and, in addition, suspended
the works at Dunakiliti until the same date. Lastly, on 27 October 1989, Hungary decided
to abandon the works at Nagymaros and to maintain the status quo at Dunakiliti.
During this period, negotiations took place between the parties. Czechoslovakia also
started investigating alternative solutions. One of them, an alternative solution
subsequently known as Variant C, entailed a unilateral diversion of the Danube by
Czechoslovakia on its territory some 10 kilometres upstream of Dunakiliti. In its final
stage, Variant C included the construction at Cunovo of an overflow dam and a levee
linking that dam to the south bank of the bypass canal. Provision was made for ancillary
works.
On 23 July 1991, the Slovak Government decided to begin, in September 1991,
construction to put the Gabckovo Project into operation by the provisional solution.
Work on Variant C began in November 1991. Discussions continued between the two
parties but to no avail, and, on 19 May 1992, the Hungarian Government transmitted to
the Czechoslovak Government a Note Verbale terminating the 1977 Treaty with effect
from 25 May 1992. On 15 October 1992, Czechoslovakia began work to enable the
Danube to be closed and, starting on 23 October, proceeded to the damming of the river.
The Court finally took note of the fact that on 1 January 1993 Slovakia became an
independent State; that in a Special Agreement thereafter concluded between Hungary
and Slovakia, signed at Brussels on 7 April 1993, the Parties agreed to establish and
implement a temporary water management rgime for the Danube; and that finally they
concluded an Agreement in respect of it on 19 April 1995, which would come to an end
14 days after the Judgment of the Court. The Court also observes that not only the 1977
Treaty, but also the related instruments are covered in the preamble to the Special
Agreement and that the Parties, when concentrating their reasoning on the 1977 Treaty,
appear to have extended their arguments to the related instruments.
Proceedings had been instituted on 2 July 1993 by a joint notification of the Special
Agreement. After setting out the text of the Agreement, the Court recited the successive
stages of the proceedings, referring, among other things, to its visit, on the invitation of
the parties, to the area, from 1 to 4 April 1997. It further set out the submissions of the
Parties.
Submission of the Parties
1. In terms of Article 2, paragraph 1 (a), of the Special Agreement, the Court is requested
to decide first
whether the Republic of Hungary was entitled to suspend and subsequently abandon, in
1989, the works on the Nagymaros Project and on the part of the Gabckovo Project for
which the Treaty attributed responsibility to the Republic of Hungary.
2. By the terms of Article 2, paragraph 1 (b), of the Special Agreement, the Court is
asked in the second place to decide
(b) whether the Czech and Slovak Federal Republic was entitled to proceed, in
November 1991, to the 'provisional solution' and to put into operation from October 1992
this system.
3. By the terms of Article 2, paragraph 1 (c), of the Special Agreement, the Court is
asked, thirdly, to determine
what are the legal effects of the notification, on 19 May 1992, of the termination of the
Treaty by the Republic of Hungary.
Summary of the Judgement
In relation to the first point the Court found that Hungary was not entitled to suspend and
subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of
the Gabckovo Project for which the 1977 Treaty and related instruments attributed
responsibility to it.
In relation to the second point the Court found that Czechoslovakia was entitled to
proceed, in November 1991, to Variant C in so far as it then confined itself to
undertaking works which did not predetermine the final decision to be taken by it. On the
other hand, Czechoslovakia was not entitled to put that Variant into operation from
October 1992.
In relation to the third point during the proceedings, Hungary presented five arguments in
support of the lawfulness, and thus the effectiveness, of its notification of termination.
These were the existence of a state of necessity; the impossibility of performance of the
Treaty; the occurrence of a fundamental change of circumstances; the material breach of
the Treaty by Czechoslovakia; and, finally, the development of new norms of
international environmental law. Slovakia contested each of these grounds.
- State of necessity
The Court observed that, even if a state of necessity is found to exist, it is not a ground
for the termination of a treaty. It may only be invoked to exonerate from its responsibility
a State which has failed to implement a treaty.
- Impossibility of performance
The Court found that it was not necessary to determine whether the term object in
Article 61 of the Vienna Convention of 1969 on the Law of Treaties (which speaks of
permanent disappearance or destruction of an object indispensable for the execution of
the treaty as a ground for terminating or withdrawing from it) can also be understood to
embrace a legal rgime as in any event, even if that were the case, it would have to
conclude that in this instance that rgime had not definitively ceased to exist. The 1977
Treaty - and in particular its Articles 15, 19 and 20 - actually made available to the parties
the necessary means to proceed at any time, by negotiation, to the required readjustments
between economic imperatives and ecological imperatives.
- Fundamental change of circumstances
In the Court's view, the prevalent political conditions were not so closely linked to the
object and purpose of the Treaty that they constituted an essential basis of the consent of
the parties and, in changing, radically altered the extent of the obligations still to be
performed. The same holds good for the economic system in force at the time of the
conclusion of the 1977 Treaty. Nor did the Court consider that new developments in the
state of environmental knowledge and of environmental law can be said to have been
completely unforeseen. What is more, the formulation of Articles 15, 19 and 20 is
designed to accommodate change. The changed circumstances advanced by Hungary
were thus, in the Court's view, not of such a nature, either individually or collectively,
that their effect would radically transform the extent of the obligations still to be
performed in order to accomplish the Project.
- Material breach of the Treaty
Hungary's main argument for invoking a material breach of the Treaty was the
construction and putting into operation of Variant C. The Court pointed out that it had
already found that Czechoslovakia violated the Treaty only when it diverted the waters of
the Danube into the bypass canal in October 1992. In constructing the works which
would lead to the putting into operation of Variant C, Czechoslovakia did not act
unlawfully. In the Court's view, therefore, the notification of termination by Hungary on
19 May 1992 was premature. No breach of the Treaty by Czechoslovakia had yet taken
place and consequently Hungary was not entitled to invoke any such breach of the Treaty
as a ground for terminating it when it did.
- Development of new norms of international environmental law
The Court noted that neither of the Parties contended that new peremptory norms of
environmental law had emerged since the conclusion of the 1977 Treaty; and the Court
will consequently not be required to examine the scope of Article 64 of the Vienna
Convention on the Law of Treaties (which treats of the voidance and termination of a
treaty because of the emergence of a new peremptory norm of general international law
(jus cogens)). On the other hand, the Court wishes to point out that newly developed
norms of environmental law are relevant for the implementation of the Treaty and that the
parties could, by agreement, incorporate them through the application of Articles 15, 19
and 20 of the Treaty. These articles do not contain specific obligations of performance
but require the parties, in carrying out their obligations to ensure that the quality of water
in the Danube is not impaired and that nature is protected, to take new environmental
norms into consideration when agreeing upon the means to be specified in the Joint
Contractual Plan. By inserting these evolving provisions in the Treaty, the parties
recognized the potential necessity to adapt the Project. Consequently, the Treaty is not
static, and is open to adapt to emerging norms of international law. By means of Articles
15 and 19, new environmental norms can be incorporated in the Joint Contractual Plan.
The awareness of the vulnerability of the environment and the recognition that
environmental risks have to be assessed on a continuous basis have become much
stronger in the years since the Treaty's conclusion. These new concerns have enhanced
the relevance of Articles 15, 19 and 20. The Court recognizes that both Parties agree on
the need to take environmental concerns seriously and to take the required precautionary
measures, but they fundamentally disagree on the consequences this has for the joint
Project. In such a case, third-party involvement may be helpful and instrumental in
finding a solution, provided each of the Parties is flexible in its position.
Finally, the Court was of the view that although it has found that both Hungary and
Czechoslovakia failed to comply with their obligations under the 1977 Treaty, this
reciprocal wrongful conduct did not bring the Treaty to an end nor justify its termination.
In the light of the conclusions it has reached above, the Court found that the notification
of termination by Hungary of 19 May 1992 did not have the legal effect of terminating
the 1977 Treaty and related instruments.
In relation to the dissolution of Czechoslovakia, the Court found that the 1977 Treaty
created rights and obligations attaching to the parts of the Danube to which it relates;
thus the Treaty itself could not be affected by a succession of States. The Court therefore
concluded that the 1977 Treaty became binding upon Slovakia on 1 January 1993.
Legal consequences of the Judgment
The Court observed that the part of its Judgment which answers the questions in Article
2, paragraph 1, of the Special Agreement has a declaratory character. It deals with the
past conduct of the Parties and determines the lawfulness or unlawfulness of that conduct
between 1989 and 1992 as well as its effects on the existence of the Treaty. Now the
Court has, on the basis of the foregoing findings, to determine what the future conduct of
the Parties should be. This part of the Judgment is prescriptive rather than declaratory
because it determines what the rights and obligations of the Parties are. The Parties will
have to seek agreement on the modalities of the execution of the Judgment in the light of
this determination, as they agreed to do in Article 5 of the Special Agreement.
In this regard it is of cardinal importance that the Court has found that the 1977 Treaty is
still in force and consequently governs the relationship between the Parties. That
relationship is also determined by the rules of other relevant conventions to which the
two States are party, by the rules of general international law and, in this particular case,
by the rules of State responsibility; but it is governed, above all, by the applicable rules of
the 1977 Treaty as a lex specialis. The Court observed that it cannot, however, disregard
the fact that the Treaty has not been fully implemented by either party for years, and
indeed that their acts of commission and omission have contributed to creating the factual
situation that now exists. Nor can it overlook that factual situation - or the practical
possibilities and impossibilities to which it gives rise - when deciding on the legal
requirements for the future conduct of the Parties. What is essential, therefore, is that the
factual situation as it has developed since 1989 shall be placed within the context of the
preserved and developing treaty relationship, in order to achieve its object and purpose in
so far as that is feasible. For it is only then that the irregular state of affairs which exists
as the result of the failure of both Parties to comply with their treaty obligations can be
remedied.
The Court pointed out that the 1977 Treaty is not only a joint investment project for the
production of energy, but it was designed to serve other objectives as well: the
improvement of the navigability of the Danube, flood control and regulation of ice-
discharge, and the protection of the natural environment. In order to achieve these
objectives the parties accepted obligations of conduct, obligations of performance, and
obligations of result. The Court is of the opinion that the Parties are under a legal
obligation, during the negotiations to be held by virtue of Article 5 of the Special
Agreement, to consider, within the context of the 1977 Treaty, in what way the multiple
objectives of the Treaty can best be served, keeping in mind that all of them should be
fulfilled.
It is clear that the Project's impact upon, and its implications for, the environment are of
necessity a key issue. The numerous scientific reports which have been presented to the
Court by the Parties - even if their conclusions are often contradictory - provide abundant
evidence that this impact and these implications are considerable.
In order to evaluate the environmental risks, current standards must be taken into
consideration. This is not only allowed by the wording of Articles 15 and 19, but even
prescribed, to the extent that these articles impose a continuing - and thus necessarily
evolving - obligation on the parties to maintain the quality of the water of the Danube and
to protect nature. The Court is mindful that, in the field of environmental protection,
vigilance and prevention are required on account of the often irreversible character of
damage to the environment and of the limitations inherent in the very mechanism of
reparation of this type of damage.
Throughout the ages, mankind has, for economic and other reasons, constantly interfered
with nature. In the past, this was often done without consideration of the effects upon the
environment. Owing to new scientific insights and to a growing awareness of the risks for
mankind - for present and future generations - of pursuit of such interventions at an
unconsidered and unabated pace. New norms and standards have been developed, set
forth in a great number of instruments during the last two decades. Such new norms have
to be taken into consideration, and such new standards given proper weight, not only
when States contemplate new activities but also when continuing with activities begun in
the past. For the purposes of the present case, this means that the Parties together should
look afresh at the effects on the environment of the operation of the Gabckovo power
plant. In particular they must find a satisfactory solution for the volume of water to be
released into the old bed of the Danube and into the side-arms on both sides of the river.
It is not for the Court to determine what shall be the final result of these negotiations to
be conducted by the Parties. It is for the Parties themselves to find an agreed solution that
takes account of the objectives of the Treaty, which must be pursued in a joint and
integrated way, as well as the norms of international environmental law and the principles
of the law of international watercourses. The Court will recall in this context that, as it
said in the North Sea Continental Shelf cases:
[the Parties] are under an obligation so to conduct themselves that the negotiations are
meaningful, which will not be the case when either of them insists upon its own position
without contemplating any modification of it (I.C.J. Reports 1969, p. 47, para. 85).
What is required in the present case by the rule pacta sunt servanda, as reflected in
Article 26 of the Vienna Convention of 1969 on the Law of Treaties, is that the Parties
find an agreed solution within the co-operative context of the Treaty. Article 26 combines
two elements, which are of equal importance. It provides that Every treaty in force is
binding upon the parties to it and must be performed by them in good faith. This latter
element, in the Court's view, implies that, in this case, it is the purpose of the Treaty, and
the intentions of the parties in concluding it, which should prevail over its literal
application. The principle of good faith obliges the Parties to apply it in a reasonable way
and in such a manner that its purpose can be realized.
The 1977 Treaty not only contains a joint investment programme, it also establishes a
rgime.
According to the Treaty, the main structures of the System of Locks are the joint property
of the Parties; their operation will take the form of a co-ordinated single unit; and the
benefits of the project shall be equally shared. Since the Court has found that the Treaty
is still in force and that, under its terms, the joint rgime is a basic element, it considers
that, unless the Parties agree otherwise, such a rgime should be restored. The Court is of
the opinion that the works at Cunovo should become a jointly operated unit within the
meaning of Article 10, paragraph 1, in view of their pivotal role in the operation of what
remains of the Project and for the water-management rgime. The dam at Cunovo has
taken over the role which was originally destined for the works at Dunakiliti, and
therefore should have a similar status. The Court also concludes that Variant C, which it
considers operates in a manner incompatible with the Treaty, should be made to conform
to it.
Re-establishment of the joint rgime will also reflect in an optimal way the concept of
common utilization of shared water resources for the achievement of the several
objectives mentioned in the Treaty, in concordance with Article 5, paragraph 2, of the
Convention on the Law of the Non-Navigational Uses of International Watercourses,
according to which:
Watercourse States shall participate in the use, development and protection of an
international watercourse in an equitable and reasonable manner. Such participation
includes both the right to utilize the watercourse and the duty to cooperate in the
protection and development thereof, as provided in the present Convention. (General
Assembly, Doc. A/51/869 of 11 April 1997.)
Having thus far indicated what in its view should be the effects of its finding that the
1977 Treaty is still in force, the Court turned to the legal consequences of the
internationally wrongful acts committed by the Parties, as it had also been asked by both
Parties to determine the consequences of the Judgment as they bear upon payment of
damages.
The Court has not been asked at this stage to determine the quantum of damages due, but
to indicate on what basis they should be paid. Both Parties claimed to have suffered
considerable financial losses and both claim pecuniary compensation for them.
In the Judgment, the Court has concluded that both Parties committed internationally
wrongful acts, and it has noted that those acts gave rise to the damage sustained by the
Parties; consequently, Hungary and Slovakia are both under an obligation to pay
compensation and are both entitled to obtain compensation. The Court observes,
however, that given the fact that there have been intersecting wrongs by both Parties, the
issue of compensation could satisfactorily be resolved in the framework of an overall
settlement if each of the Parties were to renounce or cancel all financial claims and
counter-claims. At the same time, the Court wishes to point out that the settlement of
accounts for the construction of the works is different from the issue of compensation,
and must be resolved in accordance with the 1977 Treaty and related instruments. If
Hungary is to share in the operation and benefits of the Cunovo complex, it must pay a
proportionate share of the building and running costs.
4.2 ARBITRAL AWARDS
4.2.1 Helmand River Delta Case [124] - Arbitral Awards of 19 August 1872 and 10 April
1905
Introduction
The Helmand River rises in the mountains, 35 miles west of Kabul in Afghanistan and
flows for 700 miles in Afghan territory. Downstream, about 40 miles to the north at
Kohak, the river divides into two channels, flowing north and northwest into the Seistan
lakes depression. The easterly tributary at Kohak, referred to as the Common River (in
Afghanistan) and Rud-i-Pariun (in Iran) forms the boundary between the two countries
for 12 miles and divides, flowing into lakes in Afghanistan and Iran. The other tributary
at Kohak is the Rud-i-Seistan, which flows west and north-west to the Seistan lakes in
Iran.
4.2.1.1 Award of 19 August 1872 rendered by General Goldsmid
Facts
A first dispute between Afghanistan and Persia arose in connection with the delimitation
of their boundary and the use of the waters of the Helmand River in the delta region
(below Band-i-Kamal Khan) called Sistan or Seistan. In 1872, the dispute was submitted
to the arbitration of a British Commissioner, General Goldsmid.
Summary of the arbitral award
On 19 August 1872, General Goldsmid gave his award at Teheran in the following terms:
Persia should not possess land on the right bank of the Helmand. It appears therefore
beyond doubt indispensable that... both banks of the Helmand above the Kohak Band be
given up to Afghanistan... The main bed of the Helmand therefore below Kohak should
be the eastern boundary of Persian Sistan... It is moreover to be well understood that no
works are to be carried out on either side calculated to interfere with the requisite supply
of water for irrigation on the banks of the Helmand.
4.2.1.2 Award of 10 April 1905 rendered by Colonel MacMahon
Facts
In 1902, the second dispute was submitted to the arbitration of a British Commissioner,
Colonel MacMahon, who on 10 April 1905 rendered an award, defining what amount of
water fairly represented a requisite supply for irrigation provided on behalf of Persia by
the award of 1872. The Mission in Seistan had been created in order to determine this
requisite supply for Persian needs and it has been stated that one third of the water which
reached Seistan would suffice for irrigation in Persian Seistan, leaving at the same tire a
requisite supply for Afghan requirements as well.
Summary of the Arbitral Award
The award contained eight clauses, the first and the seventh being the most relevant for
the question under dispute. Thus:
Clause I - No irrigation works are to be carried out on either side calculated to interfere
with the requisite supply of water for irrigation on both banks of the river, but both sides
have the right, within their own territories, to maintain existing canals, to open out old or
disused canals, and to make new canals, from the Helmand river, provided that the supply
of water requisite for irrigation on both sides is not diminished.
Clause VII - It will be noted that the rights to the Helmand river which its geographical
position naturally gives to Afghanistan as owner of the Upper Helmand, have been
restricted to the extent stated above in favour of Persia in accordance with Sir Frederick
Goldsmid's award. It follows, therefore, that Persia has no right to alienate to any other
power the water rights thus acquired without the consent of Afghanistan.[125]
4.2.2 San Juan River Case - Award of 22 March 1888 rendered by President Grover
Cleveland [126]

Introduction
San Juan River forms an outlet of Lake Nicaragua on the Nicaragua-Costa Rica border
and issues from the southwest end of the lake at San Carlos, the river past El Castillo
reaching the Caribbean Sea at An Juan del Norte (Greytown). To the right, it receives the
San Carlos and Sarapiqui rivers. Near its mouth it forms three main arms: the Juanillo (in
the north), the San Juan proper and the Rio Colorado (in the South).
Facts
Costa Rica and Nicaragua concluded a Treaty (Caas-Jerez Treaty) on 15 April 1858, for
the delimitation of their boundary. Article II fixed the dividing line between the two
countries as:
Starting from the Caribbean Sea, shall begin at the end of Punta de Castilla, at the mouth
of the San Juan de Nicaragua river, and shall run along the right bank of the said river up
to a point three English miles distant from Castillo Viejo, the said distance to be
measured between the exterior works of the said castle and the above-named point.
Article VI reads as follows.
The Republic of Nicaragua shall have exclusively the dominion and sovereign
jurisdiction over the waters of the San Juan river from its origin in the Lake to its mouth
in the Atlantic; but the Republic of Costa Rica shall have the perpetual right of free
navigation on the said waters, between the said mouth and the point, three English miles
distant from Castillo Viejo.[127]
A dispute arose as to the validity of this Treaty and the Parties concluded on 24
December 1886 a compromise and submitted this dispute to the arbitration of the
President of the United States of America. If the arbitrator decided that the Treaty was
valid, he would have to interpret certain doubtful points in it.
Summary of the Arbitral Award
The award rendered on 22 March 1888 by Grover Cleveland, President of the United
States of America, stated that the Boundary Treaty of 15 April 1858 was valid. With
regard to the special rights of both Countries, the arbitrator next observed:
Second. The Republic of Costa Rica under said Treaty and the stipulations contained in
the sixth article thereof, has not the right of navigation of the River San Juan with vessels
of war.[128]
Third. The Republic of Costa Rica cannot prevent the Republic of Nicaragua from
executing at her own expense and within her own territory such works of improvement,
provided such works of improvement do not result in the occupation or flooding or
damage of Costa Rica territory, or in the destruction or serious impairment of the
navigation of the said River or any of its branches at any point where Costa Rica is
entitled to navigate the same. The Republic of Costa Rica has the right to demand
indemnification for any places belonging to her on the right bank of the River San Juan
which may be occupied without her consent, and for any lands on the same bank which
may be flooded or damaged in any other way in consequence of works of
improvement.[129]
4.2.3 Kushk River Case - Award of 22 August (3 September) 1893 rendered by an
Anglo-Russian Commission [130]

Introduction
The Kushk River forms the boundary between northwest Afghanistan and southeast
Turkmen. It rises in Paropamisus Mountains, 55 miles east-northeast of Herat, flows 150
miles northwest, past Kushk and empties into Murgab River (in Afghanistan).
Facts
On 10 September 1885, Great Britain and Russia concluded a Protocol for the
delimitation of the boundary between Afghanistan and Russia. A joint commission was
established in order to examine and determine the details concerning this boundary.
Under Clause III of the final Protocol No. 4, signed by this Commission at St. Petersburg
on 10 (22) July 1887:
The clause in Protocol No. 4 of the 14th (26th) December 1805, prohibiting the Afghans
from making use of the irrigating canals in the Kushk Valley below Chahil Dukhter
which were not in use at that time, remains in force, but it is understood that this clause
can only be applied to the canals supplied by the Kushk. The Afghans shall not have the
right to make use of the waters of the Kushk for their agricultural works north of Chahil
Dukhter; but the waters of the Moghur belong exclusively to them, and they may carry
out any works they may think necessary in order to make use of them.
A new Commission was established in order to settle a dispute concerning the application
of this clause.
Summary of the Arbitral Award
On 22 August (3 September) 1893, the Commission drew us a final protocol and decided
that:
III. In order to elucidate and complete Clause III of Protocol No. 4 of 10th (22nd) July
1887, the Commissioners have established that the Afghans shall not be able to take off
water from the river Kushk, north of the ruins of the Chahil Dukhteran bridge (Pul-i-
Kishti), for irrigation by means of either new or disused or closed canals; the Afghans
shall not have the right to carry on, below the parallel of Chahil Dukhteran fronting pillar
No. 23, for irrigation, the branches of the canals which take off from the Kushk south of
the ruins of the Chahil Dukhteran bridge (Pul-i-Kishti), but they shall have the right to
make use of the said branches to irrigate their cultivation as far as the parallel of the
Chahil Dukhteran frontier pillar No. 23.
4.2.4 Faber Case - Award of 1903 rendered by Henry M. Duffield [131]

Introduction
The Zula River rises in the Cordillera Oriental, west of Pamplona in Colombia. It flows
North, past Puerto Villamizar, and across the international line, to Catatumbo River in the
Maracaibo basin 4 miles West of Encontrados.
The Catatumbo River rises in the Cordillera Oriental of Colombia, southeast of Ocaa,
and flows North through foothills, then East into the Maracaibo lowlands of Venezuela,
where it receives Zula River, and then into Lake Maracaibo.
Facts
The claimant Faber was a German subject, not domiciled in Venezuela, residing and
having his place of business in Ccuta, in Colombia. When Venezuela, by Executive
decrees, suspended in 1900, 1901 and 1902 the navigation of the rivers Zula and
Catatumbo, Germany intervened, forcing Venezuela to open the river traffic on these two
rivers (the Zula route) stating that there were German merchants in Ccuta who were
injured by the Venezuelan decrees. By the Washington protocol of 13 February 1903,
Germany and Venezuela established the Mixed Claims Commission, with Henry M.
Duffield as umpire.
Summary of the Arbitral Award.
The umpire Henry M. Duffield, appointed by a German-Venezuelan Mixed Claims
Commission, stated that:
The Catatumbo, so far as it is navigable, is entirely within the boundaries of Venezuela
after the confluence of the Zula River with it.
After explaining the physical and political conditions of Venezuela, he said that:
Venezuela had the right to suspend the traffic on these rivers by the closing of these
ports. She was in full possession of them and they were actually under her sovereignty.
He added that Venezuela, by thus exercising her sovereignty, excluded from her internal
commerce boats of other nationalities, and she had the right to regulate the internal
navigation over its rivers and lakes, according to the principle of the free use of rivers
running to the sea, because:
It must be considered as an international doctrine that the navigation of rivers passing
through the territory of several States together with all their affluents must be free from
the point where they begin to be navigable to the point where they empty into the sea.
As to the right of innocent use, the umpire stated that:
Most of the advocates of the innocent use of rivers base their claim upon the grounds
that inhabitants of lands traversed by another portion of the stream have a special right of
use of the other portions because such use is highly advantageous to them. If the
proprietary right of the State to the portion of the river within its boundaries be conceded,
as it must be generally, there can be no logical defense of this position. It certainly is a
novel proposition that because one may be so situated that the use of the property of
another will be of special advantage to him he may on that ground demand such use as a
right. The rights of an individual are not created or determined by his wants or even his
necessities.
4.2.5 Tacna-Arica Case - Award of 4 March 1925 rendered by President Calvin
Coolidge [132]

Introduction
The Camarones River rises in the Andes, in the Northern part of Chile, southeast of
Arica, and flows about 65 miles west to the Pacific.
The Ucayali River is situated in the Eastern part of Peru. It is one of the Amazon's main
headstreams, formed by the union of Apurimac (Tambo) and Urubamba rivers; it flows
about 1,000 miles North, past Masisea, Pucallpa, and Contamana and joins the Maraon
River, to form the Amazon for 55 miles of its course. The main affluents are: the Pachitea
(left) and the Tapiche (right) rivers.
The Sama River is formed by the confluence of the river Chaspaya and the river Tala,
west of Tarata, the capital of the Peruvian province. From this junction the river Sama
flows to the sea cutting across the Northern portion of the Peruvian province of Tacna.
Facts
A dispute arose between Chile and Peru as to the Northern and Southern boundary of the
territory covered by Article 3 of the Treaty of Ancon, signed on 20 October 1883.
Article 3 stated as follows:
The territory of the provinces of Tacna and Arica, bounded on the North by the river
Sama from its source in the Cordilleras on the frontier of Bolivia to its mouth at the sea,
on the South by the ravine and river Camarones, on the East by the Republic of Bolivia,
and on the West by the Pacific Ocean, shall continue in the possession of Chile subject to
Chilean laws and authority during a period of ten years, to be reckoned from the date of
the ratification of the present treaty of peace.
Chile contends that the treaty established a river line, that is the river Sama from its
source to its mouth, that treaty of Ancon dealt with the Peruvian provinces of Tacna and
Arica and with a portion of another Peruvian province, of Tarata. In the view of Peru,
Article 3 dealt only with provinces of Tacna and Arica, the province of Tarata is not
included. The problem arose as regards the river line, because there was no such river
line as the treaty described. The river Sama is formed by the confluence of the river
Chaspaya and the river Tala, west of the capital of the Peruvian province of Tarata; but
there is no river Sama that had its source in the Cordilleras on the frontier of Bolivia.
Summary of Arbrital Award
By a Special Agreement of 20 June 1922, the two Countries submitted the controversy to
arbitration. The Arbitrator, President Calvin Coolidge, stated:
There is a dispute as to which of the tributaries of the river Sama east of the junction of
the rivers Chaspaya and Tala should be regarded as the main affluent or the continuation
of the river Sama, but neither the Chaspaya nor the Tala, nor their tributaries, conform to
the description of the treaty and enable the Arbitrator to establish any line of the river
Sama as described from its source in the Cordilleras on the frontier of Bolivia to its
mouth at the sea.
The President, rendered his award on 4 March 1925, as follows:
The Arbitrator decides that no part of the Peruvian province of Tarata is included in the
territory covered by the provisions of Article 3 of the Treaty of Ancon; that the territory
to which Article 3 relates is exclusively that of the Peruvian provinces of Tacna and
Arica as they stood on 20 October 1883; and that the Northern boundary of that part of
the territory covered by Article 3 which was within the Peruvian province of Tacna is the
river Sama.
The Arbitrator decides that the Southern boundary of the territory covered by Article 3 of
the Treaty of Ancon is the provincial boundary between the Peruvian provinces of Arica
and Tarapaca as they stood on 20 October 1883.
Finally, a treaty between Chile and Peru was concluded at Lima on 3 June 1929, with the
assistance of President Hoover, giving Tacna to Peru, and Arica to Chile.
4.2.6 Zarumilla River Case - Arbitral Award of 14 July 1945 rendered by the
Chancellery of Brazil [133],[134]

Introduction
Zarumilla is a province in Northwest Peru. East-Northeast of Tumbes, department in
Peru, the Zarumilla river starts (it is a very short river), on the border between Peru and
Ecuador.
The Santiago River is situated between Ecuador and Peru, formed by the Paute and the
Zamora Rivers in Santiago-Zamora province (Ecuador). It flows about 150 miles South
to the Maraon river at the Western end of Pongo de Manseriche.
The Zamora River rises in the Andes, Southeastern part of Ecuador, South of Loja city,
and flows about 150 miles East and North through tropical forests to join the Paute
(Namangoza) River.
The Paute River rises in the Andes, Southeastern part of central Ecuador, South of
Cuenca, flows Northeast, past Paute, then Southeast to join the Zamora. It is about 125
miles long. Its lower course is called Namangoza.
The Maraon River is one of the Amazon's main headstreams in Peru. It rises in the
Andes from a series of small lakes, and flows North-Northwest along high Andean
ranges, almost reaching Ecuador border, and turns Northeast to break through the famous
Pongo de Manseriche gorge into Amazon basin.
Facts
In 1938 Peruvian forces occupied the provinces of El Oro and Loja in Ecuador. By
intervention of Argentina, Brazil, Chile and the United States of America, Ecuador and
Peru concluded a protocol of peace in Rio de Janeiro on 29 January 1942. By Article 8 of
this protocol, the borderline in Eastern Ecuador started in the conloir of San Francisco,
following a divortium aquarum between the rivers Zamora and Santiago, up to the
junction of the Zamora and Yaupi.
The difficulties arose as to the delimitation of the Western section of the border between
the two Countries. By exchange of notes of 22 May 1944, they accepted the mediation of
Brazil as proposed by dr. Oswaldo Aranha, Brazilian Foreign Secretary. For the Southern
part of the border, both Parties accepted a divortium aquarum, but in the North-Eastern
part, the line of watershed divided into several branches. The post-captain Brazilian Braz
Dias de Aguiar was chosen to act in his capacity as technician arbitrator, in order to
resolve difficulties in the sector of Lagartococha-Guspi.
Summary of the Arbitral Award
Braz Dias de Aguiar rendered award the 14 July 1945, accepted by both Parties, declared:
Peru undertakes, within three years, to divert a part of the Zarumilla River so that it may
run in the old bed, so as to guarantee the necessary aid for the subsistence of the
Ecuadorian populations located along its banks, thus ensuring Ecuador the codominion
over the waters in accordance with International practice.
4.2.7 Lake Lanoux Case - Award of 16 November 1957 rendered by an Arbitral
Tribunal [135]

Introduction
Lake Lanoux is situated on the Southern slope of the Pyrnes, In French territory (the
department of Pyrnes-Orientales). The lake is fed by streams, all of which rise on
French territory and traverse only that territory. The lake waters flow out through a single
stream, the Fontvive, which IS one of the sources of the Carol River. The latter, after
about twenty-five kilometres from Lake Lanoux in French territory, crosses the Spanish
border at Puigcerda and continues its course in Spain t for about six kilometres before
joining the Segre river, which ultimately empties into the Ebro. Before entering Spain,
the waters of the Carol teed the Puigcerda canal, which is the private property of the
Spanish town of Puigcerda
Facts
France and Spain signed at Bayonne on 26 May 1866 the Additional Act to the Boundary
Treaties concluded on 2 December 1856, 14 April 1862 and 26 May 1866 for the
regulation of waters of common use.
On 21 September 1950, Electricit de France applied to the French Ministry of Industry
to divert the waters of the Lake Lanoux to the River Arige. The waters so diverted were
to be completely returned to the River Carol by means of a tunnel connecting the rivers
Arige and Carol above the outlet to the Puigcerda Canal. France accepted the principle
that waters diverted had to be returned, and that the quantity of water to be returned
should correspond only to the actual needs of the Spanish riparian users.
On the basis of the Arbitration Treaty of 10 July 1929, between France and Spain, the
two Countries signed a Compromis at Madrid, on 19 November 1956, by virtue of which
the Arbitral Tribunal met in Geneva to pronounce on the following:
Is the French Government justified in its contention that in carrying out, without a
preliminary agreement between the two Governments, works for the use of the waters of
Lake Lanoux on the terms laid down in the project and in the French proposals
mentioned in the preamble to this compromis, it would not commit a violation of the
provisions of the Treaty of Bayonne of 26 May 1866 and of the Additional Act of the
same date?
Summary of the Arbitral Award
The Arbitral Tribunal rendered its award on 16 November 1957, as follows:
1. The public works envisaged in the French scheme are wholly situated in France; the
most important part if not the whole of the effects of such works will be felt in French
territory; they would concern waters which Article 8 of the Additional Act submits to
French territorial sovereignty as follows:
Article 8 - All standing and flowing waters, whether they are in the private or public
domain, are subject to the sovereignty of the State in which they are located, and
therefore to that State's legislation, except for the modifications agreed upon between the
two Governments. Flowing waters change jurisdiction at the moment when they pass
from one country to the other, and, when the watercourses constitute a boundary, each
State exercises its jurisdiction up to the middle of the flow.
The Tribunal held that this Act imposed a reservation to the principle of territorial
sovereignty, but could not accept that these amendments should be interpreted strictly,
because they derogated from sovereignty. It stated:
Territorial sovereignty plays the part of a presumption. It must bend before all
international obligations, whatever their origin, but only before such obligations.
Later, the Tribunal determined the French obligations in this matter. Spain based its
arguments on the text of the Treaty and of the Additional Act of 1866, but in addition:
The Spanish Government bases its contention on both the general and traditional
features or the rgime or the Pyrenean boundaries and on certain rules of customary
international law (droit international commun) in order to proceed to the interpretation of
the Treaty and the Additional Act of 1866.
The Tribunal next considered the following two questions:
(a) did the French project constitute a violation of the Treaty of Bayonne and of the
Additional Act?
(b) if not, could the execution of such works constitute a violation of the Treaty and of
the Additional Act, because it had been subject to preliminary agreement between the two
Countries, or because other provisions of Article 11 of the Additional Act concerning the
negotiations between the two Countries had not been observed?
As to the first question (a) the Tribunal stated that Spain based its claim on two grounds:
a prohibition, in the absence of agreement, of compensation between two basins, despite
the equivalence between diversion and restitution, and a prohibition, in the absence of
agreement, of any act which would create a de facto inequality with a physical possibility
of a violation of rights.
In connection with a first ground the Tribunal considered that the diversion-with-
restitution envisaged in the French project was not contrary to the Treaty and to the
Additional Act of 1866, because:
The unity of a basin is sanctioned at the juridical level only to the extent that it
corresponds to human realities. The water which by nature constitutes a fungible item
may be the object of a restitution which does not change its qualities in regard to human
needs. A diversion with restitution, such as that envisaged by the French project, does not
change a state of affairs organized for the working of the requirements of social life.
In regard to the second ground, the Tribunal declared:
In any case, we do not find either in the Treaty and the Additional Act of 26 May
1866, or in customary international law, any rule that prohibits one State, acting to
safeguard its legitimate interests, to put itself in a situation that would permit it in effect,
in violation of its international pledges to injure a neighbouring State even seriously.
The Tribunal replied in the negative to the first question (a), to the effect that the French
project did not constitute a violation of the Treaty of Bayonne and of the Additional Act.
As to the second question (b), the Tribunal examined the Spanish argument, namely, that
the French project had been subject to the prior agreement. Spain made reference to the
system of joint community grazing rights or to the generally accepted principles of
international law, but the Tribunal rejected this argument, because:
The pasturage rights that the Spanish Commune of Llivia possesses on French territory,
in no way touch the waters of Lake Lanoux or of the Carol and that:
... the rule according to which States may utilize the hydraulic force of international
watercourses only on condition of a prior agreement between the interested States cannot
be established either as a custom or, even less, as a general principle of law.
The Tribunal cited Article 1 of the multilateral Convention of Geneva of 9 December
1923, relative to the utilization of hydraulic forces of interest to several States to the
effect that:
The present Convention in no way alters the freedom of each State, within the
framework of international law, to carry out on its territory all operations for the
development of hydraulic power which it desires.
With respect to the other obligations arising from Article 11 of the Additional Act, the
tribunal stated:
Article 11 of the Additional Act imposes on the States in which it is proposed to erect
words or to grant new concessions likely to change the course or the volume of a
successive watercourse a double obligation. One is to give a prior notice to the competent
authorities of the frontier district; the other is to set up machinery for dealing with
compensation claims and safeguards for all interests involved on either side.
France had given notice of its projects in relation to Lake Lanoux, and this was not
contested. The Tribunal noted:
In the case of Lake Lanoux, France has maintained to the end the solution which
consists in diverting the waters of the Carol to the Arige with full restitution. By making
this choice, France is only making use of a right; the development works of Lake Lanoux
are on French territory, the financing of and responsibility for the enterprise fall upon
France, and France alone is the judge of works of public utility which are to be executed
on her own territory, save for the provisions of Articles 9 and 10 of the Additional Act,
which, however, the French scheme does not infringe.
The Tribunal took the view that the French project satisfied the obligations of Article 11
of the Additional Act, and that France in carrying out, without a preliminary agreement
between the two Countries, works for the use of the waters of Lake Lanoux did not
commit a violation of the provisions of the Treaty of Bayonne of 26 May 1866 or of the
Additional Act.
4.2.8 Gut Dam Case - Decisions of 1968 rendered by the Lake Ontario Claims
Tribunal [136]

Introduction
The St. Lawrence River is one of the principal rivers in North America and chief outlet
for the Great Lakes. The St. Lawrence proper issues from the Northeastern end of Lake
Ontario and flows 744 miles Northeast to its mouth on the Gulf of St. Lawrence. Below
Lake Ontario, the river forms about 114 miles of international boundary. Later, it widens
into Lake St. Francis and then into St. Louis at mouth of the Ottawa River. It links up
with the Atlantic Ocean through the Gulf of St. Lawrence.
Lake Ontario is situated between the United States and Canada. It is the smallest of the
Great Lakes. It receives the drainage of entire Great Lakes system through the Niagara
River and discharges through the St. Lawrence.
Facts
In 1874, Canada proposed to construct a dam between Adams Island in Canadian
territory and Les Galops Island in United States territory in the St. Lawrence River, in
order to improve navigation. The dam was to stop the flow of water through the channel
(known as the Gut Channel) which passed between these two islands. The Government of
Canada requested the consent of the United States to the construction of a dam, which
was given in 1903 under two conditions:
1. That if, after said dam has been constructed, it is found that it materially affects the
water levels of Lake Ontario or the St. Lawrence River or causes any injury to the
interests of the United States, the Government of Canada shall mane such changes
therein, and provide such additional regulation works in connection therewith as the
Secretary of War may order.
2. That if the construction and operation of said dam shall cause damage or detriment to
the property owners of Les Galops Island or to the property or any other citizens of the
United States, the Government of Canada shall pay such amount of compensation as may
be agreed upon between the said Government and the Parties damaged, or as may be
awarded the said Parties in the proper court of the United States before which claims for
damage may be brought.
Canada constructed the dam, but it was too low. So in 1904 a fresh consent was sought to
increase the height of the dam. The United States duly consented. Between 1904 and
1951, as a result of certain changes, the flow of water in the Great Lakes - St. Lawrence
River Basin was affected. They did not affect Gut Dam, but did affect the quantity of
water flowing into Lake Ontario and the St. Lawrence River.
In 1951-1952 the level of Lake Ontario and the St. Lawrence River reached
unprecedented heights, which caused flooding and erosion damage to the North and
South shores of the Great Lakes, including Lake Ontario, belonging to the United States
citizens. In 1962, the Congress of the United States authorized the Foreign Claims
Settlement Commission of the United States to adjudicate claims of the U.S. citizens
against Canada for damage caused to their property by Gut Dam. The United States and
Canada by agreement signed on 25 March 1965, established the Lake Ontario Claims
Tribunal. Both Parties chose as Chairman of the Tribunal Dr. Lambertus Erades, Vice-
President of the District Court of Rotterdam (Netherlands).
4.2.8.1 Decision of 15 January 1968
Facts
The first question concerned the liability of Canada for damages caused by the Gut Dam.
Canada extended its liability only to a small class of persons, the owner of Galops Island,
i.e. the island on the United States side of the river which the dam abutted. The United
States argued that under the 1903 agreement, Canada was required to compensate any
citizen of the United States whose property was damaged.
The second question arose whether the obligation was limited not only to persons but also
as to time.
Summary of the decision
The decision found in favour of the United States position, to the effect that Canada
should be liable to compensate for damages Caused by the Gut Dam, is as follows:
The obligation extended not only to the owners of Les Galops Island but to any citizen
of the United States.
4.2.8.2 Decision of 12 February 1968
Facts
The Tribunal next decided the second question, as to whether there was a time limitation
on the obligation of Canada to compensate United States citizens for damage caused by
the Gut Dam.
Canada argued that the time for such compensations expired in 1908. The United States
rejoined that there was no time limit, and that Canada by sending a diplomatic note to the
United States Government in 1952, acknowledging liability for damage caused by the
dam, could not argue that its obligation expired in 1908.
Summary of the decision
The Tribunal held:
In official diplomatic representations the Canadian Government clearly recognized its
obligation to pay compensation so far as the 1951-1952 claims are concerned.... It is clear
to the Tribunal that the only issues which remain for its consideration are the questions
whether Gut Dam caused the damage for which claims have been filed and the quantum
of such damages.
The Tribunal recommended a compromise settlement.
4.2.8.3 Decision of 27 September 1903
Facts
The negotiations were undertaken between the two Countries, and an agreement was
reached, namely that Canada would pay to the United States $350,000 for damage caused
by the Gut Dam to American nationals.
Summary of the decision
The Tribunal recorded a joint communication concerning the compromise settlement and
thereafter dissolved.
4.2.9 Landmark 62 - Mount Fitz Roy Case - Award of 21 October 1994 rendered by
an Arbitral Tribunal [137]

Introduction
The area between landmark 62 and Mount Fitz Roy is quasi-rectangular, with three main
mountain ranges from north-northeast to south-southwest. In the second (towards the
east) mountain range there are two headwaters: Ro Obstculo, draining towards the
Pacific; and a tributary of the Laguna Larga-Laguna del Desierto-Ro Las Vueltas (or
Gatica)-lake Viedma system, on the Atlantic watershed. Total surface area is
approximately 481 Km.
Facts
In 1902 a dispute on the boundary line was submitted to the arbitration of Great Britain.
The arbitral award stated that the terms of the Treaty of Friendship, Commerce and
Navigation and Protocols between the two countries were inapplicable to their
geographical conditions and subsequently would base its decision on the best
interpretation of the diplomatic instruments submitted to it.
It divided the eastern (Argentina) and western (Chile) basins of lakes Buenos Aires,
Pueyrredon (or Cochrane), and San Martin; and the dividing ranges carrying the lofty
peaks known as Mounts San Lorenzo and Fits Roy. A stone landmark (No. 62) was
placed at the Southern shore of Lake San Martin. The boundary in that sector
corresponded to a line drawn from landmark 62 to Mount Fitz Roy. There was general
agreement on the placement of the extreme points of the boundary. However, there were
differences on the demarcation of the connecting line on the ground.
In 1984 a Treaty of Peace and Friendship was signed at the Vatican setting, among other
things, legal mechanisms for differences regarding the boundary and the placement of
landmarks.
In 1991, Argentina and Chile decided to subject the differences on the boundary line in
the sector located between landmark 62 and Mount Fits Roy to arbitration. The decision
of the Tribunal was to be based on the interpretation and application of the Arbitral
Award of 1902.
Summary of the Arbitral Award
The Tribunal found that demarcation works taking place after the 1902 award were
irrelevant to determine the intention of the arbitration in relation to the sector determined
by landmark 62 and Mount Fitz Roy.
The Tribunal decided that the drawing of the limit between landmark 62 and Mount Fitz
Roy is the local water-parting. This divide consists of a line from landmark 62 to Mount
Martinez de Rosas. From there the divide continues towards the South-Southwest
following the summits of the Martinez de Rosas chain. Then it descends to the pass
between lagoons Redonda and Larga. It continues towards until Mount Treno. The water-
divide turns to the Demetrio Mount, then to the Tambo Pass to reach the summit of
Mount Melanasio or Ventisquero. The line turns to Mount Gorra Blanca, and it reaches
the Marconi Pass. Thereafter, it ascends to the Marconi Norte Mountain, continuing south
to the Rincn Mount. Finally, it divides runs towards the east, separating the Electric
River to the north and the Fitz Roy river and Viedna Glacier to the south, ending up to
the summit of Mount Fitz Roy.

[119] Text in: Permanent Court of International Justice, Series B, No. 14, Series C, Nos. 13-IV(V), (II), (III), (IV).
Request for an advisory opinion made by the Council of the League of Nations on 9 December 1926.
Parties: France, Great Britain, Italy and Romania.
[120] Text in: Permanent Court of International Justice, Series A, No. 23, Series C, No. 17 (II), Document instituting

proceedings: Special Agreement of 30 October 1928.


Parties: Germany, Denmark, France, Great Britain, Sweden, Czechoslovakia and Poland.
[121] Text in: Permanent Court of International Justice, Series A/B, No. 63, Series C, No. 75.

Parties: Great Britain, Belgium.


[122] Text in: Permanent Court of International Justice, Series A/B, No. 70, Series C, No. 81.

Parties: Belgium, Netherlands.


[123] Text in: International Court of Justice, Communiqu (unofficial) No. 97/10 bis of 25 September 1997 and

Judgement. Both available from the ICJ Internet Home Page.


Parties: Hungary and Slovakia.
[124] Text in: Mayors St. John, Lovett, and Evan Smith and Mayor-General Sir Frederick John Goldsmid, Eastern

Persia, An Account of the Journeys of the Persian Boundary Commission, 1870-71-72, (London, 1876), Vol. I, p.
413.
Parties: Afghanistan, Persia.
[125] On 7 September 1950, the two Governments signed an agreement "Terms of Reference of the Helmand River

Delta Commission and an interpretative statement relative thereto, agreed by Conferees of Afghanistan and Iran"
(text in: ST/LEG/SER.B/12, 270), and established the Helmand River Delta Commission for the elaboration of the
technical methods concerning the share of the water of the Helmand River for Iran (Seistan) and Afghanistan
(Chakhansur).
[126]
Text in: Moore, History and Digest of International Arbitration to which the United States has been a party,
Washington, 1898, Vol. V, p. 4706.
[127]
See text under footnote (2) on next page.
Parties: Costa Rica, Nicaragua.
[128] See text under footnote 2.

[129] For the text, see: Moore, op. cit. Vol. 2, p. 1964; the interpretation of article VIII of the Caas-Jerez Treaty of

15 April 1858 and of certain passages of this award were the subject of a decision rendered on 30 September
1916 between Costa Rica and Nicaragua by the Central American Court of Justice. For the text of this decision,
see American Journal of International Law (1917), Vol. 11, p. 181, and La Gaceta, Costa Rica, 7 October 1916.
[130] Text in: G.F. de Martens, Nouveau Recueil Gnral de traits, 1888, 2e srie, t. XIII, p. 566.

Parties: Great Britain, Russia.


[131] Text in: Reports of International Arbitral Awards, Vol. X, p. 466.

Parties: Germany, Venezuela.


[132]
Text in: Reports of International Arbitral Awards, Vol. II, pp. 921-958.
Parties: Chile, Peru.
[133]
The "Aranha formula".
[134]
Text in: Informe del Ministro de las Relaciones Exteriores a la Nacin, p. 623, (Quito, 1946).
Parties: Ecuador, Peru.
[135] Text in: International Law Reports, 1957, p. 101.

Parties: Spain, France.


[136]
Text in: International Legal Materials, 1969. pp. 118-143.
Parties: U.S.A., Canada.
[137]
Text in: Tribunal Arbitral Internacional, Sentencia del 21 de Octubre de 1994, Controversia sobre el recorrido
de la traza entre Hito 62 y el Monte Fitz Roy.
Parties: Argentina, Chile.

TANADA v. ANGARA
October 26, 2012 Leave a comment

272 SCRA 18, May 2, 1997

Facts :

This is a petition seeking to nullify the Philippine ratification of the World Trade Organization (WTO) Agreement.

Petitioners question the concurrence of herein respondents acting in their capacities as Senators via signing the said

agreement.

The WTO opens access to foreign markets, especially its major trading partners, through the reduction of tariffs on its

exports, particularly agricultural and industrial products. Thus, provides new opportunities for the service sector cost

and uncertainty associated with exporting and more investment in the country. These are the predicted benefits as

reflected in the agreement and as viewed by the signatory Senators, a free market espoused by WTO.
Petitioners on the other hand viewed the WTO agreement as one that limits, restricts and impair Philippine economic

sovereignty and legislative power. That the Filipino First policy of the Constitution was taken for granted as it gives

foreign trading intervention.

Issue : Whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part

of the Senate in giving its concurrence of the said WTO agreement.

Held:

In its Declaration of Principles and state policies, the Constitution adopts the generally accepted principles of

international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom,

cooperation and amity , with all nations. By the doctrine of incorporation, the country is bound by generally accepted

principles of international law, which are considered automatically part of our own laws. Pacta sunt servanda

international agreements must be performed in good faith. A treaty is not a mere moral obligation but creates a legally

binding obligation on the parties.

Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute because it is a regulation

of commercial relations among nations. Such as when Philippines joined the United Nations (UN) it consented to

restrict its sovereignty right under the concept of sovereignty as autolimitation. What Senate did was a valid exercise

of authority. As to determine whether such exercise is wise, beneficial or viable is outside the realm of judicial inquiry

and review. The act of signing the said agreement is not a legislative restriction as WTO allows withdrawal of

membership should this be the political desire of a member. Also, it should not be viewed as a limitation of economic

sovereignty. WTO remains as the only viable structure for multilateral trading and the veritable forum for the

development of international trade law. Its alternative is isolation, stagnation if not economic self-destruction. Thus, the

people be allowed, through their duly elected officers, make their free choice.

Petition is DISMISSED for lack of merit.

Tanada vs Angara
Justiciable Question; Theory of Auto-Limitation; Declaration of
Principles and State Policies

TANADA VS ANGARA
G.R. No. 118295 May 2, 1997

Wigberto E. Tanada et al, in representation of various taxpayers and as non-governmental


organizations, petitioners,
vs.
EDGARDO ANGARA, et al, respondents.

Facts:
This is a case petition by Sen. Wigberto Tanada, together with other lawmakers, taxpayers, and various NGOs
to nullify the Philippine ratification of the World Trade Organization (WTO) Agreement.

Petitioners believe that this will be detrimental to the growth of our National Economy and against to the
Filipino First policy. The WTO opens access to foreign markets, especially its major trading partners,
through the reduction of tariffs on its exports, particularly agricultural and industrial products. Thus, provides
new opportunities for the service sector cost and uncertainty associated with exporting and more investment in
the country. These are the predicted benefits as reflected in the agreement and as viewed by the signatory
Senators, a free market espoused by WTO.

Petitioners also contends that it is in conflict with the provisions of our constitution, since the said Agreement
is an assault on the sovereign powers of the Philippines because it meant that Congress could not pass
legislation that would be good for national interest and general welfare if such legislation would not conform
to the WTO Agreement.

Issues:

1. Whether or not the petition present a justiciable controversy.


2. Whether or not the provisions of the Agreement Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that
agreement cited by petitioners directly contravene or undermine the letter, spirit and intent of Section 19,
Article II and Sections 10 and 12, Article XII of the 1987 Constitution.
3. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of
legislative power by Congress.
4. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this
Honorable Court in promulgating the rules of evidence.
5. Whether or not the concurrence of the Senate in the ratification by the President of the Philippines of the
Agreement establishing the World Trade Organization implied rejection of the treaty embodied in the
Final Act.

Discussions:

1987 Constitution states that Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government.
Although the Constitution mandates to develop a self-reliant and independent national economy controlled
by Filipinos, does not necessarily rule out the entry of foreign investments, goods and services. It
contemplates neither economic seclusion nor mendicancy in the international community. The WTO
itself has some built-in advantages to protect weak and developing economies, which comprise the vast
majority of its members. Unlike in the UN where major states have permanent seats and veto powers in
the Security Council, in the WTO, decisions are made on the basis of sovereign equality, with each
members vote equal in weight to that of any other. Hence, poor countries can protect their common
interests more effectively through the WTO than through one-on-one negotiations with developed
countries. Within the WTO, developing countries can form powerful blocs to push their economic agenda
more decisively than outside the Organization. Which is not merely a matter of practical alliances but a
negotiating strategy rooted in law. Thus, the basic principles underlying the WTO Agreement recognize
the need of developing countries like the Philippines to share in the growth in international trade
commensurate with the needs of their economic development.
In its Declaration of Principles and State Policies, the Constitution adopts the generally accepted
principles of international law as part of the law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity, with all nations. By the doctrine of incorporation, the country is
bound by generally accepted principles of international law, which are considered to be automatically part
of our own laws. A state which has contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the fulfillment of the obligations
undertaken. Paragraph 1, Article 34 of the General Provisions and Basic Principles of the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS) may intrudes on the power of the Supreme
Court to promulgate rules concerning pleading, practice and procedures. With regard to Infringement of a
design patent, WTO members shall be free to determine the appropriate method of implementing the
provisions of TRIPS within their own internal systems and processes.
The alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by the
adoption of the generally accepted principles of international law as part of the law of the land and the
adherence of the Constitution to the policy of cooperation and amity with all nations. The Senate, after
deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO Agreement thereby
making it a part of the law of the land is a legitimate exercise of its sovereign duty and power.

Rulings:

1. In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the
petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute. As explained by former Chief Justice Roberto Concepcion, the judiciary is the final
arbiter on the question of whether or not a branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting
to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this
nature.
2. While the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises,
at the same time, it recognizes the need for business exchange with the rest of the world on the bases of
equality and reciprocity and limits protection of Filipino enterprises only against foreign competition and
trade practices that are unfair. In other words, the Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and services in the development of the Philippine
economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and
investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition that is unfair.
3. By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary
act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or
derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of
mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their
otherwise absolute rights. As shown by the foregoing treaties Philippines has entered, a portion of
sovereignty may be waived without violating the Constitution, based on the rationale that the Philippines
adopts the generally accepted principles of international law as part of the law of the land and adheres to
the policy of cooperation and amity with all nations.
4. The provision in Article 34 of WTO agreement does not contain an unreasonable burden, consistent as it is
with due process and the concept of adversarial dispute settlement inherent in our judicial system.
5. The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required from
its signatories, namely, concurrence of the Senate in the WTO Agreement. Moreover, the Senate was well-
aware of what it was concurring in as shown by the members deliberation on August 25, 1994. After
reading the letter of President Ramos dated August 11, 1994, the senators of the Republic minutely
dissected what the Senate was concurring in.