Decision: Carpio, J.: The Case

PIL
Magalona vs Ermita
D E C I S I O N
CARPIO, J .:
The Case
This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 9522
1
(RA 9522) adjusting the countrys
archipelagic baselines and classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)
2
demarcating the
maritime baselines of the Philippines as an archipelagic State.
3
This law followed the
framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958
(UNCLOS I),
4
codifying, among others, the sovereign right of States parties over their
territorial sea, the breadth of which, however, was left undetermined. Attempts to
fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II)
proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five
decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446])
correcting typographical errors and reserving the drawing of baselines around Sabah
in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now
under scrutiny. The change was prompted by the need to make RA 3046 compliant
with the terms of the United Nations Convention on the Law of the Sea (UNCLOS
III),
5
which the Philippines ratified on 27 February 1984.
6
Among others, UNCLOS III
prescribes the water-land ratio, length, and contour of baselines of archipelagic States
like the Philippines
7
and sets the deadline for the filing of application for the extended
continental shelf.
8
Complying with these requirements, RA 9522 shortened one
baseline, optimized the location of some basepoints around the Philippine archipelago
and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the
Scarborough Shoal, as regimes of islands whose islands generate their own
applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective
capacities as citizens, taxpayers or x x x legislators,
9
as the case may be, assail the
constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces
Philippine maritime territory, and logically, the reach of the Philippine states
sovereign power, in violation of Article 1 of the 1987 Constitution,
10
embodying the
terms of the Treaty of Paris
11
and ancillary treaties,
12
and (2) RA 9522 opens the
countrys waters landward of the baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and national security, contravening the
countrys nuclear-free policy, and damaging marine resources, in violation of relevant
constitutional provisions.
13

In addition, petitioners contend that RA 9522s treatment of the KIG as
regime of islands not only results in the loss of a large maritime area but also
prejudices the livelihood of subsistence fishermen.
14
To buttress their argument of
territorial diminution, petitioners facially attack RA 9522 for what it excluded and
included its failure to reference either the Treaty of Paris or Sabah and its use of
UNCLOS IIIs framework of regime of islands to determine the maritime zones of the
KIG and the Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning
(1) the petitions compliance with the case or controversy requirement for judicial
review grounded on petitioners alleged lack of locus standi and (2) the propriety of
the writs of certiorari and prohibition to assail the constitutionality of RA 9522. On
the merits, respondents defended RA 9522 as the countrys compliance with the terms
of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not undermine the countrys security,
environment and economic interests or relinquish the Philippines claim over Sabah.
Respondents also question the normative force, under international law, of
petitioners assertion that what Spain ceded to the United States under the Treaty of
Paris were the islands and all the waters found within the boundaries of the
rectangular area drawn under the Treaty of Paris.
We left unacted petitioners prayer for an injunctive writ.
The Issues
The petition raises the following issues:

1. Preliminarily

1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to assail
the constitutionality of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this
suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to
test the constitutionality of RA 9522. On the merits, we find no basis to declare RA
9522 unconstitutional.

On the Threshold I ssues
Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and
taxpayers because the petition alleges neither infringement of legislative
prerogative
15
nor misuse of public funds,
16
occasioned by the passage and
implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as
citizens with constitutionally sufficient interest in the resolution of the merits of the
case which undoubtedly raises issues of national significance necessitating urgent
resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably
difficult to find other litigants possessing a more direct and specific interest to bring
the suit, thus satisfying one of the requirements for granting citizenship standing.
17

The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents seek
a strict observance of the offices of the writs of certiorari and prohibition, noting that
the writs cannot issue absent any showing of grave abuse of discretion in the exercise
of judicial, quasi-judicial or ministerial powers on the part of respondents and
resulting prejudice on the part of petitioners.
18

Respondents submission holds true in ordinary civil proceedings. When this Court
exercises its constitutional power of judicial review, however, we have, by tradition,
viewed the writs of certiorari and prohibition as proper remedial vehicles to test the
constitutionality of statutes,
19
and indeed, of acts of other branches of
government.
20
Issues of constitutional import are sometimes crafted out of statutes
which, while having no bearing on the personal interests of the petitioners, carry such
relevance in the life of this nation that the Court inevitably finds itself constrained to
take cognizance of the case and pass upon the issues raised, non-compliance with the
letter of procedural rules notwithstanding. The statute sought to be reviewed here is
one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS I I I , not to
Delineate Philippine Territory
Petitioners submit that RA 9522 dismembers a large portion of the national
territory
21
because it discards the pre-UNCLOS III demarcation of Philippine territory
under the Treaty of Paris and related treaties, successively encoded in the definition of
national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize
that this constitutional definition trumps any treaty or statutory provision denying the
Philippines sovereign control over waters, beyond the territorial sea recognized at the
time of the Treaty of Paris, that Spain supposedly ceded to the United States.
Petitioners argue that from the Treaty of Paris technical description, Philippine
sovereignty over territorial waters extends hundreds of nautical miles around the
Philippine archipelago, embracing the rectangular area delineated in the Treaty of
Paris.
22

Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e.,
the territorial waters [12 nautical miles from the baselines], contiguous zone [24
nautical miles from the baselines], exclusive economic zone [200 nautical miles from
the baselines]), and continental shelves that UNCLOS III delimits.
23
UNCLOS III was
the culmination of decades-long negotiations among United Nations members to
codify norms regulating the conduct of States in the worlds oceans and submarine
areas, recognizing coastal and archipelagic States graduated authority over a limited
span of waters and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS
III States parties to mark-out specific basepoints along their coasts from which
baselines are drawn, either straight or contoured, to serve as geographic starting points
to measure the breadth of the maritime zones and continental shelf. Article 48 of
UNCLOS III on archipelagic States like ours could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf.
The breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf shall be measured from
archipelagic baselines drawn in accordance with article 47. (Emphasis
supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III
States parties to delimit with precision the extent of their maritime zones and
continental shelves. In turn, this gives notice to the rest of the international
community of the scope of the maritime space and submarine areas within which
States parties exercise treaty-based rights, namely, the exercise of sovereignty over
territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration,
and sanitation laws in the contiguous zone (Article 33), and the right to exploit the
living and non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).
Even under petitioners theory that the Philippine territory embraces the islands
and all the waters within the rectangular area delimited in the Treaty of Paris, the
baselines of the Philippines would still have to be drawn in accordance with RA 9522
because this is the only way to draw the baselines in conformity with UNCLOS III.
The baselines cannot be drawn from the boundaries or other portions of the
rectangular area delineated in the Treaty of Paris, but from the outermost islands and
drying reefs of the archipelago.
24

UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription,
25
not by executing multilateral treaties
on the regulations of sea-use rights or enacting statutes to comply with the treatys
terms to delimit maritime zones and continental shelves. Territorial claims to land
features are outside UNCLOS III, and are instead governed by the rules on general
international law.
26

RA 9522s Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KI G and the
Scarborough Shoal, not I nconsistent
with the Philippines Claim of Sovereignty
Over these Areas
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands
framework to draw the baselines, and to measure the breadth of the applicable
maritime zones of the KIG, weakens our territorial claim over that area.
27
Petitioners
add that the KIGs (and Scarborough Shoals) exclusion from the Philippine
archipelagic baselines results in the loss of about 15,000 square nautical miles of
territorial waters, prejudicing the livelihood of subsistence fishermen.
28
A comparison
of the configuration of the baselines drawn under RA 3046 and RA 9522 and the
extent of maritime space encompassed by each law, coupled with a reading of the text
of RA 9522 and its congressional deliberations, vis--vis the Philippines obligations
under UNCLOS III, belie this view.
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA
9522 merely followed the basepoints mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the
length of one baseline (and thus comply with UNCLOS IIIs limitation on the
maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine
archipelago. This undeniable cartographic fact takes the wind out of petitioners
argument branding RA 9522 as a statutory renunciation of the Philippines claim over
the KIG, assuming that baselines are relevant for this purpose.
Petitioners assertion of loss of about 15,000 square nautical miles of territorial
waters under RA 9522 is similarly unfounded both in fact and law. On the contrary,
RA 9522, by optimizing the location of basepoints, increased the Philippines total
maritime space (covering its internal waters, territorial sea and exclusive economic
zone) by 145,216 square nautical miles, as shown in the table below:
29

Extent of maritime area
using RA 3046, as
amended, taking into
account the Treaty of Paris
delimitation (in square
nautical miles)
Extent of maritime
area using RA 9522,
taking into account
UNCLOS III (in
square nautical
miles)
Internal or
archipelagic
waters

166,858

171,435

Territorial
Sea

274,136

32,106

Exclusive
Economic
Zone

382,669
TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under
RA 9522 even extends way beyond the waters covered by the rectangular demarcation
under the Treaty of Paris. Of course, where there are overlapping exclusive economic
zones of opposite or adjacent States, there will have to be a delineation of maritime
boundaries in accordance with UNCLOS III.
30

Further, petitioners argument that the KIG now lies outside Philippine territory
because the baselines that RA 9522 draws do not enclose the KIG is negated by RA
9522 itself. Section 2 of the law commits to text the Philippines continued claim of
sovereignty and jurisdiction over the KIG and the Scarborough Shoal:

SEC. 2. The baselines in the following areas over which the
Philippines likewise exercises sovereignty and jurisdiction shall be
determined as Regime of Islands under the Republic of the Philippines
consistent with Article 121 of the United Nations Convention on the
Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential
Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis
supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part
of the Philippine archipelago, adverse legal effects would have ensued. The
Philippines would have committed a breach of two provisions of UNCLOS III. First,
Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines shall not
depart to any appreciable extent from the general configuration of the archipelago.
Second, Article 47 (2) of UNCLOS III requires that the length of the baselines shall
not exceed 100 nautical miles, save for three per cent (3%) of the total number of
baselines which can reach up to 125 nautical miles.
31

Although the Philippines has consistently claimed sovereignty over the
KIG
32
and the Scarborough Shoal for several decades, these outlying areas are located
at an appreciable distance from the nearest shoreline of the Philippine
archipelago,
33
such that any straight baseline loped around them from the nearest
basepoint will inevitably depart to an appreciable extent from the general
configuration of the archipelago.
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-
Santiago, took pains to emphasize the foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the
world call[] the Spratlys and the Scarborough Shoal are outside our
archipelagic baseline because if we put them inside our baselines we
might be accused of violating the provision of international law which
states: The drawing of such baseline shall not depart to any
appreciable extent from the general configuration of the archipelago.
So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil
malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa
atin although we are still allowed by international law to claim them as
our own.

This is called contested islands outside our configuration. We see that
our archipelago is defined by the orange line which [we] call[]
archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon
sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is
Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago
kaya kung ilihis pa natin ang dating archipelagic baselines para lamang
masama itong dalawang circles, hindi na sila magkalapit at baka hindi
na tatanggapin ng United Nations because of the rule that it should
follow the natural configuration of the archipelago.
34
(Emphasis
supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS
IIIs limits. The need to shorten this baseline, and in addition, to optimize the location
of basepoints using current maps, became imperative as discussed by respondents:

[T]he amendment of the baselines law was necessary to enable the
Philippines to draw the outer limits of its maritime zones including the
extended continental shelf in the manner provided by Article 47 of
[UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the
baselines suffer from some technical deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock
Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds
the maximum length allowed under Article 47(2) of the [UNCLOS III],
which states that The length of such baselines shall not exceed 100
nautical miles, except that up to 3 per cent of the total number of
baselines enclosing any archipelago may exceed that length, up to a
maximum length of 125 nautical miles.
2. The selection of basepoints is not optimal. At least 9 basepoints can be
skipped or deleted from the baselines system. This will enclose an
additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not
established by geodetic survey methods. Accordingly, some of the
points, particularly along the west coasts of Luzon down to Palawan
were later found to be located either inland or on water, not on low-water
line and drying reefs as prescribed by Article 47.
35

Hence, far from surrendering the Philippines claim over the KIG and the
Scarborough Shoal, Congress decision to classify the KIG and the Scarborough Shoal
as Regime[s] of Islands under the Republic of the Philippines consistent with
Article 121
36
of UNCLOS III manifests the Philippine States responsible observance
of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of
UNCLOS III, any naturally formed area of land, surrounded by water, which is
above water at high tide, such as portions of the KIG, qualifies under the category of
regime of islands, whose islands generate their own applicable maritime zones.
37

Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize the
Philippines claim over Sabah in North Borneo is also untenable. Section 2 of RA
5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of
Sabah:

Section 2. The definition of the baselines of the territorial sea of
the Philippine Archipelago as provided in this Act is without prejudice
to the delineation of the baselines of the territorial sea around the
territory of Sabah, situated in North Borneo, over which the
Republic of the Philippines has acquired dominion and sovereignty.
(Emphasis supplied)
UNCLOS I I I and RA 9522 not
Incompatible with the Constitutions
Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the
law unconstitutionally converts internal waters into archipelagic waters, hence
subjecting these waters to the right of innocent and sea lanes passage under UNCLOS
III, including overflight. Petitioners extrapolate that these passage rights indubitably
expose Philippine internal waters to nuclear and maritime pollution hazards, in
violation of the Constitution.
38

Whether referred to as Philippine internal waters under Article I of the
Constitution
39
or as archipelagic waters under UNCLOS III (Article 49 [1]), the
Philippines exercises sovereignty over the body of water lying landward of the
baselines, including the air space over it and the submarine areas underneath.
UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space
over archipelagic waters and of their bed and subsoil.

1. The sovereignty of an archipelagic State extends to the
waters enclosed by the archipelagic baselines drawn in
accordance with article 47, described as archipelagic
waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and subsoil,
and the resources contained therein.
x x x x

4. The regime of archipelagic sea lanes passage established in this
Part shall not in other respects affect the status of the archipelagic
waters, including the sea lanes, or the exercise by the archipelagic
State of its sovereignty over such waters and their air space, bed and
subsoil, and the resources contained therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation, consistent with the international law principle of
freedom of navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate innocent and
sea lanes passage.
40
Indeed, bills drawing nautical highways for sea lanes passage are
now pending in Congress.
41

In the absence of municipal legislation, international law norms, now codified
in UNCLOS III, operate to grant innocent passage rights over the territorial sea or
archipelagic waters, subject to the treatys limitations and conditions for their
exercise.
42
Significantly, the right of innocent passage is a customary international
law,
43
thus automatically incorporated in the corpus of Philippine law.
44
No modern
State can validly invoke its sovereignty to absolutely forbid innocent passage that is
exercised in accordance with customary international law without risking retaliatory
measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to
both the right of innocent passage and sea lanes passage
45
does not place them in lesser
footing vis--vis continental coastal States which are subject, in their territorial sea, to
the right of innocent passage and the right of transit passage through international
straits. The imposition of these passage rights through archipelagic waters under
UNCLOS III was a concession by archipelagic States, in exchange for their right to
claim all the waters landward of their baselines, regardless of their depth or distance
from the coast, as archipelagic waters subject to their territorial sovereignty. More
importantly, the recognition of archipelagic States archipelago and the waters
enclosed by their baselines as one cohesive entity prevents the treatment of their
islands as separate islands under UNCLOS III.
46
Separate islands generate their own
maritime zones, placing the waters between islands separated by more than 24
nautical miles beyond the States territorial sovereignty, subjecting these waters to the
rights of other States under UNCLOS III.
47

Petitioners invocation of non-executory constitutional provisions in Article II
(Declaration of Principles and State Policies)
48
must also fail. Our present state of
jurisprudence considers the provisions in Article II as mere legislative guides, which,
absent enabling legislation, do not embody judicially enforceable constitutional
rights x x x.
49
Article II provisions serve as guides in formulating and interpreting
implementing legislation, as well as in interpreting executory provisions of the
Constitution. AlthoughOposa v. Factoran
50
treated the right to a healthful and
balanced ecology under Section 16 of Article II as an exception, the present petition
lacks factual basis to substantiate the claimed constitutional violation. The other
provisions petitioners cite, relating to the protection of marine wealth (Article XII,
Section 2, paragraph 2
51
) and subsistence fishermen (Article XIII, Section 7
52
), are not
violated by RA 9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation of all
living and non-living resources within such zone. Such a maritime delineation binds
the international community since the delineation is in strict observance of UNCLOS
III. If the maritime delineation is contrary to UNCLOS III, the international
community will of course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS
III creates a sui generis maritime space the exclusive economic zone in waters
previously part of the high seas. UNCLOS III grants new rights to coastal States to
exclusively exploit the resources found within this zone up to 200 nautical
miles.
53
UNCLOS III, however, preserves the traditional freedom of navigation of
other States that attached to this zone beyond the territorial sea before UNCLOS III.

RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III,
Congress was not bound to pass RA 9522.
54
We have looked at the relevant provision
of UNCLOS III
55
and we find petitioners reading plausible. Nevertheless, the
prerogative of choosing this option belongs to Congress, not to this Court. Moreover,
the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III
compliant baselines law, an archipelagic State like the Philippines will find itself
devoid of internationally acceptable baselines from where the breadth of its maritime
zones and continental shelf is measured. This is recipe for a two-fronted disaster: first,
it sends an open invitation to the seafaring powers to freely enter and exploit the
resources in the waters and submarine areas around our archipelago; and second, it
weakens the countrys case in any international dispute over Philippine maritime
space. These are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine
archipelago and adjacent areas, as embodied in RA 9522, allows an internationally-
recognized delimitation of the breadth of the Philippines maritime zones and
continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines
in safeguarding its maritime zones, consistent with the Constitution and our national
interest.
WHEREFORE, we DISMISS the petition.
(United Kingdom v. Norway) 1951 I.C.J. Rep. 116. This case, begun by an application referring to the
Declarations of Acceptance of the Optional Clause in art. 36(2) of the I.C.J. Statute by the United
Kingdom and Norway, asked the Court (a) to declare the principles of international law to be applied
in defining the baselines, by reference to which the Norwegian Government is entitled to delimit a
fisheries zone, extending to seaward 4 miles from those lines and exclusively reserved for its own
nationals, and to define the said base-lines in so far as it appears necessary, in the light of the
arguments of the Parties, in order to avoid further legal difficulties between them; (b) to award
damages to the United Kingdom in respect of interferences with British fishing vessels outside
the zone which the Norwegian Government [may be] entitled to reserve for its nationals. The
legitimacy of a 4-mile limit was not in dispute between the parties, but the United Kingdom objected
to the measurement of this from baselines otherwise than across the mouths of bays of a length
exceeding 10 miles and drawn between points which were sometimes low-tide elevations (drying
rocks).

On 18 December 1951, in holding (10 to 2) that the method of delimitation employed in the
Norwegian Royal Decree of 12 July 1935 was not contrary to international law (so that, incidentally,
no question of damages arose), the Court (1) found that the coastal zone involved in the dispute was
of a very distinctive configuration being very broken or indented, for the greater part of its length
protected by an island fringe or skjaergaard, and so high as to be generally visible from a long
distance, the inhabitants deriv[ing] their livelihood essentially from fishing; (2) similarly found that
for the purpose of measuring the breadth of the territorial sea, it is the low-watermark as opposed to
the high-watermark which has been generally adopted in the practice of States; (3) held that
geographical realities required that the relevant low watermark in the region under discussion was
that of the skjaergaard rather than that of the mainland; (4) held also that, of the three methods
canvassed for the application of the low-watermark rule, that of the trac parallele, following the
sinuosities of the coast, was inapplicable to so indented a coast, and that the arcs-of-circles method
was not obligatory in law; (5) and that the rule confining the use of straight baselines to cases where
they do not exceed 10 miles in length although adopted by certain States both in their national law
and in their treaties and conventions, and [in] certain arbitral decisions has not acquired the
authority of a general rule of international law; and (6) finally found that the baselines actually
selected by Norway had not violated international law, such having not departed appreciably from the
general direction of the coast, having legitimately taken into account peculiar local economic interests,
and having conformed to a traditional pattern of delimitation conferring something in the nature of an
historic title generally tolerated by other States. The principles of the judgment, and to a great extent
its language, were adopted in the Geneva Convention on the Territorial Sea etc. of 29 April 1958 (516
U.N.T.S. 205), arts. 35, and were reproduced in the U.N. Convention on the Law of the Sea of 10
December 1982 (1833 U.N.T.S. 3), arts. 57.

CORFU CHANNEL CASE (MERITS)
Judgment of 9 April 1949
The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland-
Albania) arose from incidents that occurred on October 22nd 1946, in the Corfu Strait:
two British destroyers struck mines in Albanian waters and suffered damage,
including serious loss of life. The United Kingdom first seized the Security Council of
the United Nations which, by a Resolution of April 9th, 1947, recommended the two
Governments to submit the dispute to the Court. The United Kingdom accordingly
submitted an Application which, after an objection to its admissibility had been raised
by Albania, was the subject of a Judgment, dated March 25th, 1948, in which the
Court declared that it possessed jurisdiction. On the same day the two Parties
concluded a Special Agreement asking the Court to give judgment on the following
questions:
1. Is Albania responsible for the explosions, and is there a duty to pay compensation?
2. Has the United Kingdom violated international law by the acts of its Navy in
Albanian waters, first on the day on which the explosions occurred and, secondly, on
November 12th and 13th, 1946, when it undertook a sweep of the Strait?
In its Judgment the Court declared on the first question, by 11 votes against 5, that
Albania was responsible.
In regard to the second question, it declared by 14 votes against 2 that the United
Kingdom did not violate Albanian sovereignty on October 22nd; but it declared
unanimously that it violated that sovereignty on November 12th/13th, and that this
declaration, in itself, constituted appropriate satisfaction.
The facts are as follows. On October 22nd, 1946, two British cruisers and two
destroyers, coming from the south, entered the North Corfu Strait. The channel they
were following, which was in Albanian waters, was regarded as safe: it had been
swept in 1944 and check-swept in 1945. One of the destroyers, the Saumarez, when
off Saranda, struck a mine and was gravely damaged. The other destroyer, the Volage,
was sent to her assistance and, while towing her, struck another mine and was also
seriously damaged. Forty-five British officers and sailors lost their lives, and forty-
two others were wounded.
An incident had already occurred in these waters on May 15th, 1946: an Albanian
battery had fired in the direction of two British cruisers. The United Kingdom
Government had protested, stating that innocent passage through straits is a right
recognized by international law; the Albanian Government had replied that foreign
warships and merchant vessels had no right to pass through Albanian territorial waters
without prior authorization; and on August 2nd, 1946, the United Kingdom
Government had replied that if, in the future, fire was opened on a British warship
passing through the channel, the fire would be returned. Finally, on September 21st,
1946, the Admiralty in London had cabled to the British Commander-in-Chief in the
Mediterranean to the following x effect: "Establishment of diplomatic relations with
Albania is again under consideration by His Majesty's Government who wish to know
whether the Albanian Government have learnt to behave themselves. Information is
requested whether any ships under your command have passed through the North
Corfu Strait since August and, if not, whether you intend them to do so shortly."
After the explosions on October 22nd, the United Kingdom Government sent a Note
to Tirana announcing its intention to sweep the Corfu Channel shortly. The reply was
that this consent would not be given unless the operation in question took place
outside Albanian territorial waters and that any sweep undertaken in those waters
would be a violation of Albania's sovereignty.
The sweep effected by the British Navy took place on November 12th/13th 1946, in
Albanian territorial waters and within the limits of the channel previously swept.
Twenty-two moored mines were cut; they were mines of the German GY type.
*
* *
The first question put by the Special Agreement is that of Albania's responsibility,
under international law, for the explosions on October 22nd, 1946.
The Court finds, in the first place, that the explosions were caused by mines belonging
to the minefield discovered on November 13th. It is not, indeed, contested that this
minefield had been recently laid; it was in the channel, which had been previously
swept and check-swept and could be regarded as safe, that the explosions had taken
place. The nature of the damage shows that it was due to mines of the same type as
those swept on November 13th; finally, the theory that the mines discovered on
November 13th might have been laid after the explosions on October 22nd is too
improbable to be accepted.
In these circumstances the question arises what is the legal basis of Albania's
responsibility? The Court does not feel that it need pay serious attention to the
suggestion that Albania herself laid the mines: that suggestion was only put forward
pro memoria, without evidence in support, and could not be reconciled with the
undisputed fact that, on the whole Albanian littoral, there are only a few launches and
motor boats. But the United Kingdom also alleged the connivance of Albania: that the
mine laying had been carried out by two Yugoslav warships by the request of Albania,
or with her acquiescence. The Court finds that this collusion has not been proved. A
charge of such exceptional gravity against a State would require a degree of certainty
that has not been reached here, and the origin of the mines laid in Albanian territorial
waters remains a matter for conjecture.
The United Kingdom also argued that, whoever might be the authors of the mine
laying, it could not have been effected without Albania's knowledge. True, the mere
fact that mines were laid in Albanian waters neither involves prima facie
responsibility nor does it shift the burden of proof. On the other hand, the exclusive
control exercised by a State within its frontiers may make it impossible to furnish
direct proof of facts which would involve its responsibility in case of a violation of
international law. The State which is the victim must, in that ease, be allowed a more
liberal recourse to inferences of fact and circumstantial evidence; such indirect
evidence must be regarded as of especial weight when based on a series of facts,
linked together and leading logically to a single conclusion.
In the present case two series of facts, which corroborate one another, have to be
considered.
The first relates to the Albanian Government's attitude before and after the
catastrophe. The laying of the mines took place in a period in which it had shown its
intention to keep a jealous watch on its territorial waters and in which it was requiring
prior authorization before they were entered, this vigilance sometimes going so far as
to involve the use of force: all of which render the assertion of ignorance a priori
improbable. Moreover, when the Albanian Government had become fully aware of
the existence of a minefield, it protested strongly against the activity of the British
Fleet, but not against the laying of the mines, though this act, if effected without her
consent, would have been a very serious violation of her sovereignty; she did not
notify shipping of the existence of the minefield, as would be required by international
law; and she did not undertake any of the measures of judicial investigation which
would seem to be incumbent on her in such a case. Such an attitude could only be
explained if the Albanian Government, while knowing of the mine laying, desired the
circumstances in which it was effected to remain secret.
The second series of facts relates to the possibility of observing the mine laying from
the Albanian coast. Geographically, the channel is easily watched: it is dominated by
heights offering excellent observation points, and it runs close to the coast (the nearest
mine was 500 m. from the shore). The methodical and well-thought-out laying of the
mines compelled the minelayers to remain from two to two-and-a-half hours in the
waters between Cape Kiephali and the St. George's Monastery. In regard to that point,
the naval experts appointed by the Court reported, after enquiry and investigation on
the spot, that they considered it to be indisputable that, if a normal look-out was kept
at Cape Kiephali, Denta Point, and St. George's Monastery, and if the lookouts were
equipped with binoculars, under normal weather conditions for this area, the mine-
laying operations must have been noticed by these coastguards. The existence of a
look-out post at Denta Point was not established; but the Court, basing itself on the
declarations of the Albanian Government that lock-out posts were stationed at other
points, refers to the following conclusions in the experts' report: that in the case of
mine laying 1) from the North towards the South, the minelayers would have been
seen from Cape Kiephali; if from South towards the North, they would have been seen
from Cape Kiephali and St. George's Monastery.
From all the facts and observations mentioned above, the Court draws the conclusion
that the laying of the minefield could not have been accomplished without the
knowledge of Albania. As regards the obligations resulting for her from this
knowledge, they are not disputed. It was her duty to notify shipping and especially to
warn the ships proceeding through the Strait on October 22nd of the danger to which
they were exposed. In fact, nothing was attempted by Albania to prevent the disaster,
and these grave omissions involve her international responsibility.
The Special Agreement asks the Court to say whether, on this ground, there is "any
duty" for Albania "to pay compensation" to the United Kingdom. This text gave rise
to certain doubts: could the Court not only decide on the principle of compensation
but also assess the amount? The Court answered in the affirmative and, by a special
Order, it has fixed dine-limits to enable the Parties to submit their views to it on this
subject.
*
* *
The Court then goes on to the second question in the Special Agreement: Did the
United Kingdom violate Albanian sovereignty on October 22nd, 1946, or on
November 12th/13th, 1946?
The Albanian claim to make the passage of ships conditional on a prior authorization
conflicts with the generally admitted principle that States, in time of peace, have a
right to send their warships through straits used for international navigation between
two parts of the high seas, provided that the passage is innocent. The Corfu Strait
belongs geographically to this category, even though it is only of secondary
importance (in the sense that it is not a necessary route between two parts of the high
seas) and irrespective of the volume of traffic passing through it. A fact of particular
importance is that it constitutes a frontier between Albania and Greece, and that a part
of the strait is wholly within the territorial waters of those States. It is a fact that the
two States did not maintain normal relations, Greece having made territorial claims
precisely with regard to a part of the coast bordering the strait. However, the Court is
of opinion that Albania would have been justified in view of these exceptional
circumstances, in issuing regulations in respect of the passage, but not in prohibiting
such passage or in subjecting it to the requirement of special authorization.
Albania has denied that the passage on October 22 was innocent. She alleges that it
was a political mission and that the methods employed - the number of ships, their
formation, armament, manoeuvres, etc. - showed an intention to intimidate. The Court
examined the different Albanian contentions so far as they appeared relevant. Its
conclusion is that the passage was innocent both in its principle, since it was designed
to affirm a right which had been unjustly denied, and in its methods of execution,
which were not unreasonable in view of the firing from the Albanian battery on May
15th.
As regards the operation on November 12th/13th, it was executed contrary to the
clearly expressed wish of the Albanian Government; it did not have the consent of the
international mine clearance organizations; it could not be justified as the exercise of
the right of innocent passage. The United Kingdom has stated that its object was to
secure the mines as quickly as possible for fear lest they should be taken away by the
authors of the mine laying or by the Albanian authorities: this was presented either as
a new and special application of the theory of intervention, by means of which the
intervening State was acting to facilitate the task of the international tribunal, or as a
method of self-protection or self-help. The Court cannot accept these lines of defence.
It can only regard the alleged right of intervention as the manifestation of a policy of
force which cannot find a place in international law. As regards the notion of self-
help, the Court is also unable to accept it: between independent States the respect for
territorial sovereignty is an essential foundation for international relations. Certainly,
the Court recognises the Albanian Government's complete failure to carry out its
duties after the explosions and the dilatory nature of its diplomatic Notes as
extenuating circumstances for the action of the United Kingdom. But, to ensure
respect for international law, of which it is the organ, the Court must declare that the
action of the British Navy constituted a violation of Albanian sovereignty. This
declaration is in accordance with the request made by Albania through her counsel
and is in itself appropriate satisfaction.
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;
Lachs, Ruda, Elias, Ago, Sette-Camara, Mbaye, Bedjaoui, Ni and Evensen; Judge ad
hoc Colliard;
AGAINST: Judges Oda, Schwebel and Sir Robert Jennings.
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;
hoc Colliard;
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;
hoc Colliard;
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;
hoc Colliard;
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
hoc Colliard;
(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.
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.
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;
Lachs, Ruda, Elias, Ago, Sette Camara, Schwebel, Sir Robert Jennings, Mbaye,
Bedjaoui, Ni and Evensen; Judge ad hoc Colliard;
AGAINST: Judge Oda.
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;
Lachs, Ruda, Elias, Ago, Sette Camara, Mbaye, Bedjaoui, Ni and Evensen; Judge ad
hoc Colliard;
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;
hoc Colliard;
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;
Lachs, Ruda, Elias, Ago, Sette Camara, Mbaye, Bedjaoui, Ni and Evensen; Judge ad
hoc Colliard;
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;
hoc Colliard;
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;
Lachs, Ruda, Elias, Oda, Ago, Sette-Camara, Sir Robert Jennings, Mbaye, Bedjaoui,
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;
Lachs, Ruda, Elias, Oda, Ago, Sette Camara, Sir Robert Jennings, Mbaye, Bedjaoui,
(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.
DANUBE DAM CASE(Hungary v Slovakia)37 ILM 162 (1998)
In 1977, The Treaty between the Hungarian Peoples Republic and theCzechoslovak
Socialist Republic concerning the Construction and Operation of theGabckovo-
Nagymaros System of Locks was concluded on 16 September 1977.Thetreaty was
concluded to facilitate the construction of dams on the Danube River. Itaddressed
broad utilization of the natural resources of the Danube between Bratislava
andBudapest, representing two hundred of the Rivers two thousand eight hundred
and sixtykilometers. Intense criticism of the construction at Nagymaros centered
uponendangerment of the environment and uncertainty of continued economic
viability. Thisgrowing opposition engendered political pressures upon the Hungarian
Government.After initiating two Protocols, primarily concerned with timing of
construction, Hungarysuspended works at Nagymaros on 21 July 1989 pending
further environmental studies.In response, Czechoslovakia carried out unilateral
measures. Hungary then claimed theright to terminate the treaty, at which point the
dispute was submitted to the InternationalCourt of Justice. Hungary also submitted
that it was entitled to terminate the treaty on theground that Czechoslovakia had
violated Articles of the Treaty by undertaking unilateralmeasures, culminating in the
diversion of the Danube. Slovakia became a party to the1977 Treaty as successor to
Czechoslovakia.On 19 May 1992 Hungary purported to terminate the 1977 Treaty as
aconsequence of Czechoslovakias refusal to suspend work during the process of
mediation. As the Treaty itself did not feature a clause governing termination,
Hungary proffered five arguments to validate its actions: a state of necessity,
superveningimpossibility of performance, fundamental change of circumstances,
material breach andthe emergence of new norms of international environmental law.
Slovakia contested eachof these bases.The Court easily dismissed Hungarys first
claim, simply stating that a state of necessity is not a ground for termination. Even if a
state of necessity is established, assoon as it ceases to exist treaty obligations
automatically revive.The doctrine of impossibility of performance is encapsulated in
Article 61 of theVienna Convention on the Law of Treaties, which requires the
permanent disappearanceor destruction of an object indispensable for the execution
of the treaty. In this case, thelegal regime governing the Gabckovo-Nagymaros
Project did not cease to exist. Articles15, 19 and 20 of the 1977 Treaty provided the
means through which works could bereadjusted in accordance with economic and
ecological imperatives. Furthermore, Article61(2) of the Vienna Convention on the
Law of Treaties precludes application of thedoctrine where the impossibility
complained of is the result of a breach by the12terminating Party. If the joint
investment had been hampered to a point where performance was impossible, it was a
consequence of Hungarys abandonment of works.Article 62 of the Vienna
Convention on the Law of Treaties codifies internationallaw in respect of fundamental
change of circumstances and treaty relations. Hungarysubmitted that the 1977 Treaty
was originally intended to be a vehicle for socialistintegration. Fundamental changes
cited were the displacement of a single and indivisibleoperational system by a
unilateral scheme; the emergence of both States into a marketeconomy; the mutation
of a framework treaty into an immutable norm; and thetransformation of a treaty
consistent with environmental protection into a prescriptionfor environmental
disaster. The Court held that although political changes anddiminished economic
viability were relevant to the conclusion of a treaty, they were notso closely linked
with the object and purpose of the 1977 Treaty so as to constitute anessential basis of
the consent of the Parties. New developments in the efficacy of environmental
knowledge were not unforeseen by the Treaty and cannot be said torepresent a
fundamental change. The Court did not consider whether the emergence of new
environmental norms would catalyze the application of Article 62 in a situationwhere
the terms of a treaty stand abhorrent to new norms.Hungary claimed that Variant C
materially breached Articles 15, 19 and 20 of the1977 Treaty, concerning the
protection of water quality, the preservation of nature andguardianship of fishing
interests. Article 60(3) of the Vienna Convention on the Law of Treaties recognizes
material breach of a treaty as a ground for termination on the part of the injured State.
Extending its reasoning on the principle of approximate application, theCourt held
that a material breach only occurred upon the diversion of the Danube.
AsCzechoslovakia dammed the Danube after 19 May 1992, Hungarys
purportedtermination was premature and thus invalid.As its final basis for the
justification of termination, Hungary advocated that, pursuant to the precautionary
principle in environmental law, the obligation not to causesubstantive damage to the
territory of another State had evolved into an obligation ergaomnes (sic utere tuo ut
alienum non laedas). Slovakia countered this argument with theclaim that there had
been no intervening developments in international environmental lawthat gave rise to
jus cogens norms that would override provisions of the 1977 Treaty. TheCourt
avoided consideration of these propositions, concluding instead that these
newconcerns have enhanced the relevance of Articles 15, 19 and 20. Given that
internationalenvironmental law is in its formative stages, it is unfortunate that the
International Courtof Justice did not grasp at this opportunity to discuss its role in the
governance of relations between States. To that end, the Court may have clarified the
controversialapplication of the sic utere principle to modify notions of unrestricted
sovereignty in theTrail Smelter arbitration.13
MMDA case
Facts:
On January 29, 1999, respondents Concerned Residents of Manila Bay filed a
complaint before the Regional Trial Court (RTC) in Imus, Cavite against
several government agencies, for the cleanup, rehabilitation, and protection of
the Manila Bay.
The complaint 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.

In their individual causes of action, respondents alleged that the continued
neglect of petitioners in abating the pollution of the Manila Bay constitutes a
violation of, among others:
(1) Respondents constitutional right to life, health, and a balanced ecology;
(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);
(10) Civil Code provisions on nuisance and human relations;
(11) The Trust Doctrine and the Principle of Guardianship; and
(12) International Law
Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered
to clean the Manila Bay and submit to the RTC a concerted concrete plan of
action for the purpose.
Issues:
a) Whether or not pertinent provisions of the Environment Code (PD 1152)
relate only to the cleaning of specific pollution incidents and do not cover
cleaning in general.
b) Whether or not the cleaning of the Manila Bay is not a ministerial act which
can be compelled by mandamus.
Held:
Regional Trial Courts Order to Clean Up and Rehabilitate Manila Bay
On September 13, 2002, the RTC rendered a Decision in favor of
respondents. Finding merit in the complaint, the Court ordered defendant-
government agencies, jointly and solidarily, to clean up and rehabilitate Manila
Bay and restore its waters to SB classification to make it fit for swimming,
skin-diving and other forms of contact recreation.
To attain this, defendant-agencies, with defendant DENR as the lead agency,
are directed, within six (6) months from receipt hereof, to act and perform their
respective duties by devising a consolidated, coordinated and concerted
scheme of action for the rehabilitation and restoration of the bay.
In particular:
Defendant MWSS is directed to install, operate and maintain adequate
[sewerage] treatment facilities in strategic places under its jurisdiction and
increase their capacities.
Defendant LWUA, to see to it that the water districts under its wings, provide,
construct and operate sewage facilities for the proper disposal of waste.
Defendant DENR, which is the lead agency in cleaning up Manila Bay, to
install, operate and maintain waste facilities to rid the bay of toxic and
hazardous substances.

Defendant PPA, to prevent and also to treat the discharge not only of ship-
generated wastes but also of other solid and liquid wastes from docking
vessels that contribute to the pollution of the bay.
Defendant MMDA, to establish, operate and maintain an adequate and
appropriate sanitary landfill and/or adequate solid waste and liquid disposal as
well as other alternative garbage disposal system such as re-use or recycling
of wastes.
Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to
revitalize the marine life in Manila Bay and restock its waters with indigenous
fish and other aquatic animals.
Defendant DBM, to provide and set aside an adequate budget solely for the
purpose of cleaning up and rehabilitation of Manila Bay.
Defendant DPWH, to remove and demolish structures and other nuisances
that obstruct the free flow of waters to the bay. These nuisances discharge
solid and liquid wastes which eventually end up in Manila Bay. As the
construction and engineering arm of the government, DPWH is ordered to
actively participate in removing debris, such as carcass of sunken vessels,
and other non-biodegradable garbage in the bay.
Defendant DOH, to closely supervise and monitor the operations of septic and
sludge companies and require them to have proper facilities for the treatment
and disposal of fecal sludge and sewage coming from septic tanks.

Defendant DECS, to inculcate in the minds and hearts of the people through
education the importance of preserving and protecting the environment.
Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at
all costs the Manila Bay from all forms of illegal fishing.
The Court of Appeals Sustained the RTCs Decision
The MWSS, Local Water Utilities Administration (LWUA), and PPA filed
before the Court of Appeals (CA) individual Notices of Appeal. On the other
hand, the DENR, Department of Public Works and Highways (DPWH),
Metropolitan Manila Development Authority (MMDA), Philippine Coast Guard
(PCG), Philippine National Police (PNP) Maritime Group, and five other
executive departments and agencies filed directly with this Court a petition for
review under Rule 45.
In the light of the ongoing environmental degradation, the Court wishes to
emphasize the extreme necessity for all concerned executive departments
and agencies to immediately act and discharge their respective official duties
and obligations. Indeed, time is of the essence; hence, there is a need to set
timetables for the performance and completion of the tasks, some of them as
defined for them by law and the nature of their respective offices and
mandates.
The importance of the Manila Bay as a sea resource, playground, and as a
historical landmark cannot be over-emphasized. It is not yet too late in the day
to restore the Manila Bay to its former splendor and bring back the plants and
sea life that once thrived in its blue waters. But the tasks ahead, daunting as
they may be, could only be accomplished if those mandated, with the help and
cooperation of all civic-minded individuals, would put their minds to these
tasks and take responsibility. This means that the State, through petitioners,
has to take the lead in the preservation and protection of the Manila Bay.
So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a
balanced and healthful ecology need not even be written in the Constitution
for it is assumed, like other civil and political rights guaranteed in the Bill of
Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications. Even assuming
the absence of a categorical legal provision specifically prodding petitioners to
clean up the bay, they and the men and women representing them cannot
escape their obligation to future generations of Filipinos to keep the waters of
the Manila Bay clean and clear as humanly as possible. Anything less would
be a betrayal of the trust reposed in them.
By a Decision of September 28, 2005, the CA denied petitioners appeal and
affirmed the Decision of the RTC in toto, stressing that the trial courts
decision did not require petitioners to do tasks outside of their usual basic
functions under existing laws.

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