CASES
Member or non-member) for damage resulting from a breach by that
REPARATIONS FOR INJURIES SUFFERED IN THE SERVICE OF THE
UNITED NATIONS, ADVISORY OPINION [1949] ICJ REP 174
Facts (Background):
As a consequence of the assassination in September 1948, in
Jerusalem, of Count Folke Bernadotte, the United Nations Mediator in
Palestine, and other members of the United Nations Mission to Palestine,
the General Assembly asked the Court whether the United Nations had
the capacity to bring an international claim against the State responsible
with a view to obtaining reparation for damage caused to the
Organization and to the victim.
In its Advisory Opinion, the Court begins by reciting the circumstances of
the procedure. The Request for Opinion was communicated to all States
entitled to appear before the Court; they were further informed that the
Court was prepared to receive information from them. Thus, written
statements were sent by the following States: India, China, United States
of America, United Kingdom of Great Britain and Northern Ireland and
France. In addition, oral statements were presented before the Court by
a representative of the Secretary-General of the United Nations, assisted
by counsel, and by the representatives of the Belgian, French and United
Kingdom Governments.
Then the Court makes a number of preliminary observations on the
question submitted to it. It proceeds to define certain terms in the
Request for Opinion, then it analyses the contents of the formula:
"capacity to bring an international claim." This capacity certainly belongs
to a State. Does it also belong to the Organization?
This is tantamount to asking whether the Organization has international
personality. In answering this question which is not settled by the actual
terms of the Charter, the Court goes on to consider what characteristics
the Charter was intended to give to the Organization. In this connection,
the Court states that the Charter conferred upon the Organization rights
and obligations which are different from those of its Members. The Court
stresses, further, the important political tasks of the Organization: the
maintenance of international peace and security. Accordingly, the Court
concludes that the Organization possessing as it does rights and
obligations, has at the same time a large measure of international
personality and the capacity to operate upon an international plane,
although it is certainly not a super-state.
Issue (Legal questions raised by the General Assembly for the
Advisory Opinion):
The General Assembly submitted the following legal questions to the
International Court of Justice for an Advisory Opinion:
1. In the event of an agent of the United Nations (UN) in the performance
of his duties suffering injury in circumstances involving responsibility of a
State, has the UN, as an Organization, the capacity to bring an
international claim against the responsible de jure or de facto
government with a view of obtaining the reparation due in respect of the
damage caused to (a) the UN, (b) to the victim or to persons entitled
through him?
2. In the event of an affirmative reply on point 1(b), how is action by the
UN to be reconciled with such rights as may be possessed by the State
of which the victim is a national?
Held:
The Court examines the very heart of the subject, namely, whether the
sum of the international rights of the Organization comprises the right to
bring an international claim to obtain reparation from a State in respect of
the damage caused by the injury of an agent of the Organization in the
course of the performance of his duties.
Question 1(a):
On the first point:, 1 (a), of the Request for Opinion the Court
unanimously reaches the conclusion that the Organization has the
capacity to bring an international claim against a State (whether a
State of its obligations towards the Organization. The Court points out
that it is not called upon to determine the precise extent of the reparation
which the Organization would be entitled to recover; the measure of the
reparation should depend upon a number of factors which the Court
gives as examples.
Question 1 (b):
Whether the United Nations, as an Organization, has the
capacity to bring an international claim with a view to obtaining the
reparation due in respect of the damage caused, not to the Organization
itself, but to the victim or to persons entitled through him.
In dealing with this point the Court analyses the question of
diplomatic protection of nationals. The Court points out in this connection
that really only the Organization has the capacity to present a claim in the
circumstances referred to, inasmuch as at the basis of any international
claim there must be a breach by the defendant State of an obligation
towards the Organization. In the present case the State of which
the victim is a national could not complain of a breach of an obligation
towards itself. Here the obligation is assumed in favour of the
Organization. However, the Court admits that the analogy of the
traditional rule of diplomatic protection of nationals abroad does not in
itself justify an affirmative reply.
In fact, there exists no link of nationality between the
Organization and its agents. This is a new situation and it must
be analysed. Do the provisions of the Charter relating to the functions of
the Organization imply that the latter is empoweredto assure its agents
limited protection? These powers, which are essential to the performance
of the functions of the Organization, must be regarded as a necessary
implication arising from the Charter. In discharging its functions, the
Organization may find it necessary to entrust its agents with important
missions to be performed in disturbed parts of the world. These agents
must be ensured of effective protection. It is only in this way that the
agent will be able to carry out his duties satisfactorily. The Court
therefore reaches the conclusion that the Organization has the capacity
to exercise functional protection in respect of its agents. The situation is
comparatively simple in the case of Member States, for these have
assumed various obligations towards the Organization. But what is the
situation when a claim is brought against a State which is not a Member
of the Organization? The Court is of opinion that the Members of the
United Nations created an entity possessing objective international
personality and not merely personality recognized by them alone. As in
the case of Question I (a), the Court therefore answers Question I in the
affirmative.
Question 2:
Question No. 2 of the General Assembly refers to the
reconciliation of action by the United Nations with such rights as may be
possessed by the State of which the victim is a national. In other words,
what is involved is possible competition between the rights of diplomatic
protection on the one hand and functional protection on the other. The
Court does not state here which of these two categories of protection
should have priority and in the case of Member States it stresses their
duty to render every assistance provided by Article 2 of the Charter. It
adds that the risk of competition between the Organization and the
national State can be reduced or eliminated either by a general
convention or by agreements entered into in each particular case, and it
refers further to cases that have already arisen in which a practical
solution has already been found.
Finally, the Court examines the case in which the agent bears
the nationality of the defendant State. Since the claim brought by the
Organization is not based upon the nationality of the victim but rather
upon his status as an agent of the Organization, it does not matter
whether or not the State to which the claim is addressed regards him as
its own national. The legal situation is not modified thereby.
ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL
DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO,
ADVISORY OPINION [2010] ICJ REP 403
Facts
The question on which the advisory opinion of the Court has been
requested is set forth in resolution 63/3 adopted by the General
Assembly of the United Nations.
Consider the following:
In 1989, Serbia revoked autonomy for Kosovo, and the Kosovo War
ensued between the central government and the local Kosovo forces
such as the Kosovo Liberation Army. The armed conflict was so fierce
and the humanitarian crisis was so severe that the NATO intervened
militarily in 1999, aiming ostensibly to stop the atrocities. The Western
powers organized a Rambouillet Conference, attempting to induce Serbia
to accept the Rambouillet Accords, to no avail. The NATO military
campaign continued. Then an agreement to cease fire was reached, with
many conditions incorporated into United Nations Security Council
resolution 1244,9 adopted under Chapter VII of the United Nations
Charter. That resolution in its preamble “reaffirmed the commitment of all
Member States to the sovereignty and territorial integrity of the Federal
Republic of Yugoslavia and the other States of the region”.
The resolution instituted an international security presence to maintain
peace as well as an international civil presence (the UNMIK) under the
authority of the UN Secretary-General (UNSG)
in Kosovo in order to provide an interim administration for
Kosovo under which the people of Kosovo can enjoy
substantial autonomy within the Federal Republic of
Yugoslavia, and which will provide transitional administration
while establishing and overseeing the development of
provisional democratic selfgoverning institutions to ensure
conditions for a peaceful and normal life for all inhabitants of
Kosovo.
This interim regime was in due course established. Under this regime, all
legislative and executive authority with respect to Kosovo is vested in the
UNMIK and is exercised by the Special Representative of the Secretary-
General. A Constitutional Framework was promulgated on 15 May 2001,
defining the responsibilities relating to the administration of Kosovo
between the Special Representative of the Secretary General and the
Provisional Institutions of Self-Government of Kosovo. The interim
regime was intended to exist, “pending a final settlement”.
Efforts were stepped up to seek a negotiated, political final settlement of
the status of Kosovo. But the parties involved were slow to make any
progress, leading to the Special Envoy’s conclusion in his 2007 Report
that the parties were not able to reach any agreement on Kosovo’s future
status.
UNSG’s Special Envoy, Mr. Ahtisaari also concluded that “Reintegration
into Serbia is not a viable option” and that “Independence with
international supervision is the only viable option”. He thus made a
“Comprehensive Proposal for the Kosovo Status Settlement” which
would ultimately give Kosovo independence.
On 17 February 2008, a declaration of independence in respect of
Kosovo was made by a group of persons who were designated as “the
Provisional Institutions of Self-government of Kosovo” in the question
presented by the UNGA but whose identity became a matter of
controversy in the proceedings.
Serbia rejected that declaration and the proclaimed independence of
Kosovo. But a sizeable number of States recognized the independence
of Kosovo within a short period of time. Serbia then went to the UNGA to
sponsor a resolution asking the Court for an advisory opinion on the
question, as stated above, “Is the unilateral declaration of independence
by the Provisional Institutions of Self-government of Kosovo in
accordance with international law?”
(The court: The question is narrow and specific; it asks for the Court’s
opinion on whether or not the declaration of independence is in
accordance with international law. It does not ask about the legal
consequences of that declaration. In particular, it does not ask whether or
not Kosovo has achieved statehood.)
THE AO
The General Assembly has asked whether the declaration of
independence was “in accordance with” international law. The answer to
that question turns on whether or not the applicable international law
prohibited the declaration of independence.
To note, it is entirely possible for a particular act such as a unilateral
declaration of independence not to be in violation of international law
without necessarily constituting the exercise of a right conferred by it.
The Court first notes that during the eighteenth, nineteenth and early
twentieth centuries, there were numerous instances of declarations of
independence, often strenuously opposed by the State from which
independence was being declared. Sometimes a declaration resulted in
the creation of a new State, at others it did not. In no case, however,
does the practice of States as a whole suggest that the act of
promulgating the declaration was regarded as contrary to international
law. On the contrary, State practice during this period points clearly to the
conclusion that international law contained no prohibition of declarations
of independence.
During the second half of the twentieth century, the international law of
self-determination developed in such a way as to create a right to
independence for the peoples of non-self-governing territories and
peoples subject to alien subjugation, domination and exploitation. A
great many new States have come into existence as a result of the
exercise of this right. There were, however, also instances of
declarations of independence outside this context. The practice of States
in these latter cases does not point to the emergence in international law
of a new rule prohibiting the making of a declaration of independence in
such cases.
The Court then recalls that the principle of territorial integrity is “an
important part of the international legal order and is enshrined in the
Charter of the United Nations, in particular in Article 2, paragraph 4,
which provides that: ‘All Members shall 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.’” Thus, Court notes, “the scope
of the principle of territorial integrity is confined to the sphere of relations
between States”.
The Court observes, however, that while the Security Council has
condemned particular declarations of independence, in all of those
instances it was making a determination as regards the concrete
situation existing at the time that those declarations of independence
were made; it states that “the illegality attached to the declarations of
independence thus stemmed not from the unilateral character of these
declarations as such, but from the fact that they were, or would have
been, connected with the unlawful use of force or other egregious
violations of norms of general international law, in particular those of a
peremptory character (jus cogens)”. The Court notes that “[i]n the context
of Kosovo, the Security Council has never taken this position”. The
exceptional character of the resolutions enumerated above appears to
the Court to confirm that no general prohibition against unilateral
declarations of independence may be inferred from the practice of the
Security Council.
The Court turns to the question whether the declaration of independence
of 17 February 2008 was an act of the “Assembly of Kosovo”, one of the
Provisional Institutions of Self-Government, established under Chapter 9
of the Constitutional Framework, or whether those who adopted the
declaration were acting in a different capacity.
Proceeding from there, the authors of the declaration of independence
emphasize their determination to “resolve” the status of Kosovo and to
give the people of Kosovo “clarity about their future”. This language
indicates that the authors of the declaration did not seek to act within the
standard framework of interim self-determination of Kosovo, but aimed at
establishing Kosovo as an independent and sovereign state.
THE COURT THUS ARRIVES AT THE CONCLUSION THAT, TAKING
ALL FACTORS TOGETHER, THE AUTHORS OF THE DECLARATION
OF INDEPENDENCE OF 17 FEBRUARY 2008 DID NOT ACT AS ONE
OF THE PROVISIONAL INSTITUTIONS OF SELF-GOVERNMENT
WITHIN THE CONSTITUTIONAL FRAMEWORK, BUT RATHER AS
PERSONS WHO ACTED TOGETHER IN THEIR CAPACITY AS
REPRESENTATIVES OF THE PEOPLE OF KOSOVO OUTSIDE THE
FRAMEWORK OF THE INTERIM ADMINISTRATION.
ACTORS IN INTERNATIONAL LEGAL SYSTEM
Turning to the question of the addressees of Security Council resolution
1244 (1999), it sets out a general framework for the “deployment in
Kosovo, under United Nations auspices, of international civil and security
presences” (para. 5).
It is mostly concerned with creating obligations and authorizations for
United Nations Member States as well as for organs of the United
Nations such as the Secretary-General and his Special Representative,
The only point at which resolution 1244 (1999) 449 UNILATERAL
DECLARATION OF INDEPENDENCE (ADVISORY OPINION) expressly
mentions other actors relates to the Security Council’s demand, on the
one hand, “that the KLA and other armed Kosovo Albanian groups end
immediately all offensive actions and comply with the requirements for
demilitarization” (para. 15) and, on the other hand, for the “full co-
operation by all concerned, including the international security presence,
with the International Tribunal for the former Yugoslavia” (para. 14).
There is no indication, in the text of Security Council resolution 1244
(1999), that the Security Council intended to impose, beyond that, a
specific obligation to act or a prohibition from acting, addressed to such
other actors.
for a right of “remedial secession” and, if so, in what circumstances.
There was also a sharp difference of views as to whether the
circumstances which some participants maintained would give rise to a
right of “remedial secession” were actually present in Kosovo. The Court
considers that it is not necessary to resolve these questions in the
present case. The General Assembly has requested the Court’s opinion
only on whether or not the declaration of independence is in accordance
with international law. Debates regarding the extent of the right of self-
determination and the existence of any right of “remedial secession”,
however, concern the right to separate from a State.
To answer that question, the Court need only determine whether the
declaration of independence violated either general international law or
the lex specialis created by Security Council resolution 1244 (1999).
GENERAL CONCLUSION
Searching for applicable prohibitions from this new vantage point, the
Court found that Security Council resolution 1244 did not “bar the authors
of the declaration of 17 February 2008 from issuing a declaration of
independence from the Republic of Serbia”.26 The reasons are two-fold.
Firstly, the resolution was intended to create an interim regime, while the
declaration of independence was an attempt at final status. The two,
therefore, operated at two different levels. Secondly, the authors of the
independence, as re-characterized by the Court, were not the
addressees of any obligations under that Security Council resolution
(para. 122) The Court recalls its conclusions reached earlier, namely,
“that the adoption of the declaration of independence of February 2008
did not violate general international law, Security Council resolution 1244
(1999) or the Constitutional Framework”. Finally, it concludes that
“[c]onsequently the adoption of that declaration did not violate any
applicable rule of international law.”

The Court recalls in this regard that it has not been uncommon for the
Security Council to make demands on actors other than United Nations
Member States and inter-governmental organizations

Such reference to the Kosovo Albanian leadership or other actors,

notwithstanding the somewhat general reference to “all concerned”, is
missing from the text of Security Council resolution 1244 (1999). When
interpreting Security Council resolutions, the Court must establish, on a
case-by-case basis, considering all relevant circumstances, for whom the
Security Council intended to create binding legal obligations

Bearing this in mind, the Court cannot accept the argument that Security
Council resolution 1244 (1999) contains a prohibition, binding on the
authors of the declaration of independence, against declaring
independence; nor can such a prohibition be derived from the language
of the resolution understood in its context and considering its object and
purpose.

SELF-DETERMINATION

The Court then explained why it would not deal with the issue of self-
determination or remedial secession:

A number of participants in the present proceedings have claimed,

although in almost every instance only as a secondary argument, that the
population of Kosovo has the right to create an independent State either
as a manifestation of a right to self-determination or pursuant to what
they described as a right of “remedial secession” in the face of the
situation in Kosovo. The Court has already noted that one of the major
developments of international law during the second half of the twentieth
century has been the evolution of the right of self-determination.

Whether, outside the context of non-self-governing territories and

peoples subject to alien subjugation, domination and exploitation, the
international law of self-determination confers upon part of the population
of an existing State a right to separate from that State is, however, a
subject on which radically different views were expressed by those taking
part in the proceedings and expressing a position on the question.
Similar differences existed regarding whether international law provides
ISLAND OF PALMAS (NETHERLANDS V. UNITED STATES), [1928] ||
RIAA 829, OPINION OF ARBITRATOR MAX HUBER ON
“TERRITORIAL SOVEREIGNTY”
Facts
Genesis: On 21 January 1904, General Leonard Wood, the Governor of
the Moro Province, visited the Island of Palmas. This visit is considered
as the first entry of the USA into the Island. This visit led to that
statement that the Island undoubtedly included in the “archipelago known
as the Philippine Islands”, as delimited by Article III of the Treaty of
Peace (Treaty of Paris) between the USA and Spain in 10 December
1898, and ceded in virtue of the said article to the United States, was
considered by the Netherlands as forming part of the territory of their
possessions in the East Indies.
Uncontested Facts: Before beginning to consider the arguments of the
Parties, we may at the outset take as established certain facts which,
according to the pleadings, are not contested.
• The Treaty of Peace of 10 December 1898 and the Special
Agreement of 23 January 1925 are the only international
instruments laid before the Arbitrator which refer precisely, that is,
by mathematical location or by express and unequivocal mention, to
the island in dispute, or include it in or exclude it from a zone
delimited by a geographical frontier-line. The scope of the
international treaties which relate to the “Philippines” and of
conventions entered into with the native Princes will be considered
in connection with the arguments of the Party relying on a particular
act.
• Before 1906, no dispute had arisen between the United States or
Spain, on the one hand, and the Netherlands, on the other, in
regards specifically to the Island of Palmas (or Miangas), on the
ground that these Powers put forward conflicting claims to
sovereignty over the said island.
• The two parties claim the island in question as a territory attached
for a very long period to territories relatively close at hand which are
incontestably under the sovereignty of the one or the other of them.
• It results from the terms of the Special Agreement of 23 January
1925 (Article I) that the Parties adopt the view that for the purposes
of the present arbitration the island in question can belong only to
one or the other of them. Rights of third Powers only come into
account in so far as the rights of the parties to the dispute may be
derived from them. (Page 836, full text)
Issue
Does USA’s inchoate title, by virtue of the Treaty of Paris, prevail over
The Netherlands’ definite title found on continuous and peaceful display
of sovereignty?
Ruling
• USA’s main argument: The United States, as successor to the
rights of Spain over the Philippines, bases its title in the first place
on discovery. The existence of sovereignty thus acquired is, in the
American view, confirmed not merely by the most reliable
cartographers and authors, but also by treaty, in particular by the
Treaty of Munster, of 1648, to which Spain and the Netherlands are
themselves Contracting Parties. As, according to the same
argument, nothing as occurred of a nature, in international law, to
cause the acquired title to disappear, this latter title was intact at the
moment when, by the Treaty of 10 December 1898, Spain ceded
the Philippines to the United States. In these circumstances, it is, in
the American view, unnecessary to establish facts showing the
actual display of sovereignty precisely over the Island of Palmas (or
Miangas). The United States Government finally maintains that
Palmas (or Miangas) forms a geographical part of the Philippine
group and in virtue of the principle of contiguity belongs to the
Power having the sovereignty over the Philippines
• The Netherlands’ counter-argument: According to the
Netherlands Government, on the other hand, the fact of
discovery by Spain is not proved, nor yet any other form of
acquisition, and even if Spain had at any moment had a title,
such title had been lost. The principle of contiguity is
contested.
• Arbitrator: According to the view that has prevailed at any rate
th
since the 19 century, an inchoate title of discovery must be
completed within a reasonable period by the effective
occupation of the region claimed to be discovered. This
principle must be applied in the present case, for the reasons
given above in regard to the rules determining which of
successive legal systems is to be applied (the so-called
intertemporal law). Now, no act of occupation nor, except as to
a recent period, any exercise of sovereignty at Palmas by
Spain has been alleged. But even admitting that the Spanish
title still existed as inchoate in 1898 and must be considered as
included in the cession under Article III of the Treaty of Paris,
an inchoate title could not prevail over the continuous and
peaceful display of authority by another State; for such display
may prevail even over a prior, definitive title put forward by
another State.
• The Netherlands’ main argument: The Netherlands Government’s
main argument endeavours to show that the Netherlands,
represented for this purpose in the first period of colonisation by the
East India Company, have possessed and exercised rights of
sovereignty from 1677, or probably from a date prior even to 1648,
to the present day. This sovereignty arose out of conventions
entered into with native princes of the Island of Sangi) the main
island of the Talautse (Sangi) Isles), establishing the suzerainty of
The Netherlands over the territories of these princes, including
Palmas (or Miangas). The state of affairs thus set up is claimed to
be validated by international treaties.
• USA’s counter-argument: The facts alleged in support of The
Netherlands’ arguments are, in the United States
Government’s view, not proved, and, even if they were proved,
they would not create a title of sovereignty, or would not
concern the Island of Palmas.
• Arbitrator: The Netherlands found their claim to sovereignty
essentially on the title of peaceful and continuous display of
State authority over the Island. Since this title would in
international law prevail over a title of acquisition of sovereignty
not followed by actual display of State authority, it is necessary
to ascertain in the first place, whether the contention of The
Netherlands is sufficiently established by evidence, and, if so,
for what period of time. In the opinion of the Max Huber
(Arbitrator), The Netherlands have succeeded in establishing
the following facts:
1. The Island of Palmas (or Miangas) is identical with an
island designated by this or a similar name, which has
formed, at least since 1700, successively a part of two of
the native States of the Island of Sangi (Talautse Isles).
2. These native States were from 1677 onwards connected
with the East India Company, and thereby with ihe
Netherlands, by contracts of suzerainty, which conferred
upon the suzerain such powers as would justify his
considering the vassal State as a part of his territory.
3. Acts characteristic of State authority exercised either
by the vassal State or by the suzerain Power in regard
precisely to the Island of Palmas (or Miangas) have
been established as occurring at different epochs
between 1700 and 1898, as well as in the period
between 1898 and 1906.
Henricksen (P. 67)
The last of the four Montevideo criteria is the requirement that a state
must have the capacity to enter into relations with other states. What is of
importance here is legal rather than political or economic independence.
In short, to be a state an entity must have the ability to act without legal
interference from other states.
NORTH SEA CONTONENTAL SHELF CASE
WESTERN SAHARA, ADVISORY OPINION [1975] ICJ REP 12
4.1.2. The Montevideo criteria and the requirement of effectiveness
Background about West Sahara:
Western Sahara (Rio de Oro and Sakiet El Hamra) is a territory having
very special characteristics which, at the time of colonization by Spain,
largely determined the way of life and social and political organization of
the peoples inhabiting it. In consequence, the legal régime of Western
Sahara, including its legal relations with neighbouring territories, cannot
properly be appreciated without reference to these special
characteristics. The territory forms part of the great Sahara desert which
extends from the Atlantic Coast of Africa to Egypt and the Sudan.
At the time of its colonization by Spain, the area of this desert with which
the Court is concerned was being exploited, because of its low and
irregular rainfall, almost exclusively by nomads, pasturing their animals or
growing crops as and where conditions were favourable. It may be said
that the territory, at the time of its colonization, had a sparse population
that, for the most part, consisted of nomadic tribes the members of which
traversed the desert on more or less regular routes dictated by the
seasons and the wells or water-holes available to them. In general, the
Court was informed, the right of pasture was enjoyed in common by
these tribes; some areas suitable for cultivation, on the other hand, were
subject to a greater degree to separate rights.
Perennial water-holes were in principle considered the property of the
tribe which put them into commission, though their use also was open to
all, subject to certain customs as to priorities and the amount of water
taken. Similarly, many tribes were said to have their recognized burial
grounds, which constituted a rallying point for themselves and for allied
tribes. Another feature of life in the region was that inter-tribal conflict
was not infrequent.
Facts:
The General Assembly of the United Nations has decided to request the
Court to give an advisory opinion on the question set out in a resolution
which contains the Declaration on the Granting of Independence to
Colonial Countries and Peoples. In this resolution, it reaffirmed the right
of the population of the Spanish Sahara to self-determination considering
the persistence of a colonial situation in Western Sahara which
jeopardizes the stability and harmony in the north-west African region.
The said discussion arose from a legal controversy arose over the status
of West Sahara at the time of it colonization by Spain (period beginning
in 1884, when the Spain proclaimed territory over Rio de Oro). The
General Assembly wanted to ask the following questions:
Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of
colonization by Spain a territory belonging to no one (terra nullius)?
If the answer to the first question is in the negative,
What were the legal ties between this territory and the Kingdom of
Morocco and Mauritanian Territory?
Ruling :
(paragraphs 75-83)
79. In the view of the Court, a determination that West Sahara was a
“terra nullius” at the time of colonization by Spain would be possible only
if it were established that at that time the territory belonged to no-one in
the sense that it was open to acquisition through the legal process of
“occupation”.
80. Whatever differences of opinion there may have been among jurists,
the State practice of the relevant period indicates that territories inhabited
by tribes or peoples having a social and political organization were not
regarded as teirae nullius. It shows that in the case of such territories the
acquisition of sovereignty was not generally considered as effected
unilaterally through "occupation" of terra nullius by original title but
through agreements concluded with local rulers. On occasion, it is true,
the word "occupation" was used in a non-technical sense denoting simply
acquisition of sovereignty; but that did not signify that the acquisition of
sovereignty through such agreements with authorities of the country was
regarded as an "occupation" of a "terra nullius' in the proper sense of
these terms. On the contrary, such agreements with local rulers, whether
or not considered as an actual "cession" of the territory, were regarded
as derivative roots of title, and not original titles obtained by occupation of
terrae nullius.
81. In the present instance, the information furnished to the Court shows
that at the time of colonization Western Sahara was inhabited by peoples
which, if nomadic, were socially and politically organized in tribes and
under chiefs competent to represent them. It also shows that, in
colonizing Western Sahara,' Spain did not proceed on the basis that it
was establishing its sovereignty over terrae nullius. In its Royal Order of
26 December 1884, far from treating the case as one of occupation of
terra nullius, Spain proclaimed that the King was taking the Rio de Oro
under his protection on the basis of agreements which had been entered
into with the chiefs of the local tribes: the Order referred expressly to "the
documents which the independent tribes of this part of the coast" had
"signed with the representative of the Sociedad Espafiola de
Africanistas", and announced that the King had confirmed "the deeds of
adherence" to Spain. Likewise, in negotiating with France concerning the
limits of Spanish territory to the north of the Rio de Oro, that is, in the
Sakiet El Hamra area, Spain did not rely upon any claim to the
acquisition of sovereignty over a terra nullius.
II. (paragraphs 84-161)
The meaning of the words "legal ties" has to be sought in the object and
purpose of resolution 3292 (XXIX) of the United Nations General
Assembly. It appears to the Court that they must be understood as
referring to such legal ties as may affect the policy to be followed in the
decolonization of Western Sahara. The Court cannot accept the view that
the ties in question could be limited to ties established directly with the
territory and without reference to the people who may be found in it. At
the time of its colonization the territory had a sparse population that for
the most part consisted of nomadic tribes the members of which
traversed the desert on more or less regular routes, sometimes reaching
as far as southern Morocco or regions of present-day Mauritania, Algeria
or other States. These tribes were of the Islamic faith.
Morocco (paragraphs 90-129 of the Advisory Opinion) presented its claim
to legal ties with Western Sahara as a claim to ties of sovereignty on the
ground of an alleged immemorial possession of the territory and an
uninterrupted exercise of authority. In the view of the Court, however,
what must be of decisive importance in determining its answer to
Question I must be evidence directly relating to effective display of
authority in Western Sahara at the time of its colonization by Spain and in
the period immediately preceding. Morocco requests that the Court
should take account of the special structure of the Moroccan State. That
State was founded on the common religious bond of Islam and on the
allegiance of various tribes to the Sultan, through their caids or sheikhs,
rather than on the notion of territory. It consisted partly of what was called
the Bled Makhzen, areas actually subject to the Sultan, and partly of
what was called the Bled Siba, areas in which the tribes were not
submissive to him; at the relevant period, the areas immediately to the
north of Western Sahara lay within the Bled Siba.
As evidence of its display of sovereignty in Western Sahara, Morocco
invoked alleged acts of internal display of Moroccan authority, consisting
principally of evidence said to show the allegiance of Saharan caids to
the Suldan, including, dahirs and other documents concerning the
appointment of caids, the alleged imposition of Koranic and other taces,
and acts of military resisstance to foreign penetration of the territory.
Morocco also relied on certain internation acts said to continue
recognition by other States of its sovereignity over the whole or part of
Western Sahara, including a) certain treaties concluded with Spain, the
United States and Great Britain and Spain between 1767 and 1861,
provisions of which dealt inter alia with the safety of persons shipwrecked
on the coast of Wad Noun our it’s vicinity; b) certain bilateral treaties of
the late nineteenth and early twentieth centuries whereby Great Britain,
Spain, France and Germany were said to have recognized that Moroccan
Sovereignty extended as far south as Cape Bojador or the boundary of
the Rio de Oro.
Having considered this evidence and the observation of the other States
which took part in the proceedings, the Court finds that neither the
internal nor the international acts relied upon by Morocco indicate the
existence at the relevant period of either the existence or the
international recognition of legal ties of territorial sovereignty between
Western Sahara and the Moroccan State. Even taking account of the
specific structure of that State, they do not show that Morocco displayed
any effective and exclusive State activity in Western Sahara. They do,
however, provide indications that a legal tie of allegiance existed at the
relevant period between the Sultan and some, but only some, of the
nomadic peoples of the territory, through Tekna caids of the Noun region,
and they show that the Sultan displayed, and was recognized by other
States to possess, some authority or influence with respect to those
tribes.

The term "Mauritanian entity" (paragraphs 130-152 of the Advisory

Opinion) was first employed during the session of the General Assembly
in 1974 at which resolution 3292 (XXIX), requesting an advisory opinion
of the Court, wasadopted. It denotes the cultural, geographical and social
entity within which the Islamic Republic of Mauritania was to be created.
According to Mauritania, that entity, at the relevant period, was the Bilad
Shinguitti or S'hinguitti country, a distinct human unit, characterized by a
common language, way of life, religion and system of laws, featuring two
types of political authority: emirates and tribal groups.

Expressly recognizing that these emirates and tribes did not constitute a
State, Mauritania suggested that the concepts of "nation" and of "people"
would be the most appropriate to explain the position of the Shinguitti
people at the time of colonization. At that period, according to Mauritania,
the Mauritanian entity extended from the Senegal river to the Wad Sa ...
At that period, according to Mauritania, the Mauritanian entity extended
from the Senegal river to the Wad Sakiet El Hamra. The territory at
prese:nt under Spanish administration and the present territory of the
Islamic Republic of Mauritania thus together constituted indissociable
parts of a single entity and had legal ties with one another.

The information before the Court discloses that, while there existed
among them many ties of a racial, linguistic, religious, cultural and
economic nature, the emirates and many of the tribes in the entity were
independent in relationto one another; they had no common institutions
or organs.

The Mauritanian entity therefore did not have the character of a

personality or corporate entity distinct from the several emirates or tribes
which comprised it. The Court concludes that at the time of' colonization
by Spain there did not exist between the territory of Western Sahara and
the Mauritanian entity any tie of sovereignty, or of allegiance of tribes, or
ofsimple inclusion in the same legal entity. Nevertheless, the General
Assembly does not appear to have so framed Question I as to confirm
the question exclusively to those legalities which imply territorial
sovereignty, which would be to disregard the possible relevance of other
legal ties to the decolonization process. The Court considers that, in the
relevant period, the nomadic peoples of the Shinguitti country possessed
rights, including some rights relating to the lands through which they
migrated. These rights constituted legal ties between Western Sahara
and the Mauritanian entity. They were ties which knew no frontier
between the territories and were vital to the very maintenance of life in
the region.

Morocco and Mauritania both laid stress on the overlapping character of

the respective legal ties which they claimed Western Sahara to have had
with them at the time of colonization (paragraphs 153-160 of the Advisory
Opinion). Although their views appeared to have evolved considerably in
that respect, ''-2 two States both stated at the end of the proceedings that
there was a north appertaining to Morocco and a south appertaining to
Mauritania without any geographical void in between, but with some
overlapping as a result of the intersection of nomadic routes. The Court
confines itself to noting that this geographical overlapping indicates the
difficulty of disentangling the various relationships existing in the Western
Sahara region at the time of colonization.
MONASTERY OF SAINT-NAOUM, ADVISORY OPINION, PCIJ,
SERIES B, NO. 9
History of the Question
nd
After the termination of the 2 Balkan War, in 1912, the Great Powers
agreed in principle that an independent State of Albania should be
th
created. The Treaty of London of May 17/30 , 1913 reserved to them
the task of settling the frontiers of Albania. The question of the fixing of
the frontiers of the new State was submitted to the Conference of
Ambassadors which sat at London in 1913. The Conference of
Ambassadors of London adopted certain decisions in this connection
known as the Protocol of London. Under one of these decisions, a
Delimitation Commission was set up to mark out locally the southern
frontiers of Albania. The Commission proceeded with its task in 1913 and
terminated it by the Protocol signed at Florence on December 17th of the
same year.
It had then successfully completed the mission entrusted to it, except that
it had not marked out the portion of the frontier between Serbia and
Albania immediately south of Lake Ochrida, where the Monastery of
Saint-Naoum is situated. The Great War then supervened and prevented
the complete fixing of the frontiers of the new State. In 1920, Albania was
admitted a Member of the League of Nations subject to the settlement of
her frontiers. She thereupon laid before the Council the question of the
evacuation of her territory—as fixed by the Conference of London of
1913—by Serbian and Greek troops.
In the first place, it observes that the decision of the Conference of
Ambassadors of November 9th, 1921, which was taken in execution of
the mission which the Supreme Council, the Assembly of the League of
Nations and also the States concerned had recognized as belonging to
the Conference, and which, moreover, Albania and the Serb-Croat-
Slovene State had accepted, was definitive as far as it went. As
regards the decision of December 6th, it was given because the
Protocol of London did not, in the opinion of the Conference,
explicitly state to whom the Monastery should be attributed, and the
Conference, therefore, found itself compelled to pronounce on the
question. Furthermore, by a reference to Advisory Opinion No. 8
(Jaworzina), the Court makes it clear that it considers that the former of
these decisions, having been expressly accepted by the Parties, was in
the nature of a contract, and it expressly states that, since both decisions
were based on the same powers, the second also partook of that nature.
(RELEVANT QUESTION) The next question therefore to be considered
was whether the Conference of Ambassadors was justified in holding that
the frontier at Saint-Naoum had not been fixed in 1913.
The Court next proceeds to deal with the Yugoslav claim for revision of
that decision on the ground that it was based on erroneous information or
adopted without taking into account certain new and essential facts,
subsequently brought to light. Without giving an opinion on the question
whether such decisions could be revised were these conditions fulfilled,
the Court confines itself to observing that in this case these conditions
are not present. For this reason there is no ground for the application of a
revision of the decision of December 6th.

The Assembly of the League of Nation declared (unanimous vote) that it The Court, therefore, replies to the question submitted in the affirmative.
th
was for the Principal Powers to settle this question. On November 9 ,
1921, the Conference of Ambassadors confirmed the tracing of the Issue/s: 3 questions but this is the relevant one to the topic
frontiers of Albania set in 1913. Furthermore, it formed a new Delimitation
Commission to mark out on the spot of the portion frontiers not marked
out by the 1913 Commission. The Albanian and Serb-Croat-Slovene Whether the Conference of Ambassadors was justified in holding that the
Governments—accepted this decision. Both States concerned claimed frontier at Saint-Naoum had not been fixed in 1913
the Monastery of that name. On December 6, 1922, the Conference of
Ambassadors by Great Britain decided to allocate the Monastery of
Saint-Naoum to Albania. Held:

Five months later, the Yugoslav Government asked for the revision of
this decision. An exchange of notes with the Albanian and Yugoslav
delegations followed, after which the Conference considered it necessary
to submit the question to further examination, and to this end instructed a
small Committee to prepare a report. Since no agreement could be
arrived at in the Committee, the Conference asked its juridical
Committee, the so-called Drafting Committee, for an opinion.
Facts:
Resolution of the Conference of Ambassadors
The Court answers this question in the affirmative. The documents
submitted to it did not suffice to prove the contrary; and the only text
referring to the point in question contained the words “as far as the
Monastery of Saint-Naoum”, which were ambiguous. The Court admits
that there are forcible arguments in favour of the possible alternative
interpretations of this expression as regards Saint-Naoum; but, in the
circumstances, it considers that it is not possible to say that this text is
sufficiently precise to indicate how the frontier at Saint-Naoum should
run. In the Court’s opinion, no definite line was fixed until the decision of
December 6th, 1922.

As, nevertheless, divergent opinions with regard to the allocation of the

Monastery of Saint Naoum continued to prevail, the Conference decided
to submit to the Council of the League of Nations the following
questions:
“Have the Principal Allied Powers, by the decision of the
Conference of Ambassadors of December 6th, 1922,
exhausted, in regard to the Serbo-Albanian frontier at the
Monastery of Saint-Naoum, the mission which was recognized
as belonging to them by the Assembly of the League of
Nations on October 2nd, 1921?” “Should the League of
Nations consider that the Conference has not exhausted its
mission, what solution should be adopted in regard to the
question of the Serbo-Albanian frontier at SaintNaoum?”

The Council has the honor to forward to the Court the dossier(relevant
document) which has been communicated to it by the Conference of
Ambassadors, which may be supplemented (to the request for advisory
opinion)

The Council then decided on June 17th, 1924, to ask the Court for an
advisory opinion on the first point referred to it by the Conference of
Ambassadors.

The Court delivered its Opinion on September 4th, 1924.

ADVISORY OPINION ON THE LEGAL CONSEQUENCES OF THE
SEPARATION OF THE CHAGOS ARCHIPELAGO FROM MAURITIUS
IN 1965, 25 FEBRUARY 2019
Summary
The right to self-determination became part of CIL in 1960, years before
the Agreement between UK and Mauritius (concerning the separation of
the Chagos Archipelago from Mauritius) was concluded in 1965. Given
this, at the time of such conclusion, the Chagossians should have been
given the free choice regarding their territorial integrity. This was not the
case, however, because in 1965, Mauritius was still colonized by UK that
even their Constitution prohibits Mauritius’ representatives from
exercising legitimate legislative or executive powers. Essentially, during
such time, authority in Mauritius is nearly all concentrated in the hands of
the UK and its representatives.
Hence, the separation of the Chagos Archipelago from Mauritius was
unlawful because it violated the people’s right to self-determination.
Advisory Opinion
The advisory opinion had been requested of the Court through a General
Assembly resolution in 2017, on the following legal question:
“(a) Was the process of decolonization of Mauritius lawfully
completed when Mauritius was granted independence in 1968,
following the separation of the Chagos Archipelago from Mauritius
and having regard to international law, including obligations
reflected in General Assembly resolutions 1514 (XV) of 14
December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20
December 1966 and 2357 (XXII) of 19 December 1967?;
(b) What are the consequences under international law, including
obligations reflected in the above-mentioned resolutions, arising from the
continued administration by the United Kingdom of Great Britain and
Northern Ireland of the Chagos Archipelago, including with respect to the
inability of Mauritius to implement a programme for the resettlement on
the Chagos Archipelago of its nationals, in particular those of Chagossian
origin?”
Only the first question is relevant for our studies.
Background
• Between 1814 and 1965, the Chagos Archipelago was
administered by the United Kingdom as a dependency of the
colony of Mauritius.
• 1960, the General Assembly adopted Resolution 1514, entitled
“Declaration on the Granting of Independence to Colonial
Countries and Peoples”.
• 1964, during a time when the United Kingdom was
contemplating decolonizing Mauritius, the United States
expressed an interest (to the United Kingdom) in establishing a
military base on one of Chagossian islands, Diego Garcia.
• 1965, the United Kingdom concluded the co-called Lancaster
Agreement with the representatives of the colony of Mauritius.
Through the Lancaster Agreement, the U.K. and Mauritius
“agreed in principle to the detachment of the Chagos
Archipelago from the territory of Mauritius. This agreement in
principle was given on condition that the archipelago could not
be ceded to any third party and would be returned to Mauritius
at a later date, a condition which was accepted at the time by
the United Kingdom.” After this Agreement, the United
Kingdom detached the Chagos Archipelago from Mauritius.
According to a former Mauritian Prime Minister, Mauritius had
no choice but to agree to the detachment of the Chagos
Archipelago prior to independence.
• 1966, the United Kingdom also concluded an agreement with
the United States, allowing the latter to build a military base on
Diego Garcia. Pursuant to the planned construction of a US
base on this island, the Chagossians were forcibly removed
from the entire Chagos Archipelago.
• 1968 Mauritius (without Chagos Islands) obtained
independence from the United Kingdom.
Ruling
The court examined the right to self-determination under customary law –
how and when the right to self-determination was crystallized in CIL. If
this CIL norm emerged before 1965, the UK was under an obligation to
maintain Mauritius’s territorial integrity (as included in the scope of the
right to self-determination). But it the right to self-determination acquired
CIL status after Mauritian Independence, then the UK had the authority to
partition the colony in 1965.
In this case, the ICJ concluded that the right of self-determination
became part of customary law in 1960, when Resolution 1514 was
enacted by the General Assembly. According to the ICJ, General
Assembly Resolution 1514 of 1960 “represents a defining moment in the
consolidation of State practice on decolonization” and “[t]he wording used
in resolution 1514 has a normative character, in so far as it affirms that
‘[a]ll peoples have the right to self-determination.'” This resolution further
provides that “[i]mmediate steps shall be taken, in Trust and Non-Self-
Governing Territories or all other territories which have not yet attained
independence, to transfer all powers to the peoples of those territories,
without any conditions or reservations, in accordance with their freely
expressed will and desire.” Because of this declaration, the Court noted
that the decolonization process accelerated in 1960, and is of the view
that there is a clear relationship between resolution 1514 and the process
of decolonization following its adoption.
Again, General Assembly resolutions, though not binding, may
sometimes have normative value as they can, in certain circumstances,
provide evidence important for establishing the existence of a rule or the
emergence of an opinion juris.
Principle VI of General Assembly Resolution 1514 provides that:
A non-self-governing territory can be said to have reached a full
measure of self-government by:
a. Emergence as a sovereign independent State;
b. Free association with an independent State; or
c. Integration with an independent State.
Provided, that it must be the expression of the free and genuine will
of the people concerned.
With this, the Court is of the view that heightened scrutiny should be
given to the issue of consent in a situation where a part of a non-self-
governing territory is separated to create a new colony. States have
consistently emphasized that respect for the territorial integrity of a non-
self-governing territory is a key element of the exercise of the right to
self-determination. The Court considers that the people of non-self-
governing territories are entitled to exercise their right to self-
determination in relation to their territory as a whole, the integrity of which
must be respected by the administering power (in this case, UK). It
follows that any detachment by the administering power of part of a non-
self-governing territory, unless based on the freely expressed and
genuine will of the people of the territory concerned, is contrary to the
right to self-determination.
In the instant case, having reviewed the circumstances in which Mauritius
agreed to the detachment of the Chagos Archipelago in the Lancaster
House Agreement, however, the Court considers that this detachment
was not based on the free and genuine expression of the will of the
Chagossians. The reason, as the Court noted, is embedded in
Constitution of Mauritius which provides that it “it does not allow the
representatives of the people to exercise real legislative or executive
powers, and that authority is nearly all concentrated in the hands of the
UK and its representatives.”
Considering all of the principles mentioned above, consequently, UK’s
decision to detach the Chagos Archipelago from Mauritius was unlawful,
as it did not respect the relevant principles of self-determination.
In light of this conclusion, the court found that “the United Kingdom’s
continued administration of the Chagos Archipelago constitutes a
wrongful act entailing the international responsibility of that State” and
that “the United Kingdom is under an obligation to bring an end to its
administration of the Chagos Archipelago as rapidly as possible, thereby
enabling Mauritius to complete the decolonization of its territory in a
manner consistent with the right of peoples to self-
determination”. Moreover, the ICJ concluded that because “respect for
the right to self-determination is an obligation erga omnes, all States
have a legal interest in protecting that right” and “while it is for the
General Assembly to pronounce on the modalities required to ensure the
completion of the decolonization of Mauritius, all Member States must co-
operate with the United Nations to put those modalities into effect”.

Reference re Secession of Quebec [1998] 2 SCR 217
Words in italics are just my explanation. You may skip it. You can go
immediately to the issues and answers since this is an advisory opinion.
BACKGROUND OF Reference Re Secession of Quebec, [1998] 2
SCR 217
It a landmark judgment of the Supreme Court of Canada regarding the
legality, under both Canadian and international law, of a unilateral
secession of Quebec from Canada.
Following the election of a majority of Parti Québécois (PQ) Members of
the National Assembly (MNAs) in the 1976 Quebec provincial election,
the party formed a government and, in 1980, held an independence
referendum. The government of the Province of Quebec asked the
province's population if it should seek a mandate to negotiate sovereignty
for Quebec coupled with the establishment of a new political and
economic union with Canada. The referendum resulted in the defeat of
the sovereignty option with 59.6% voting no on sovereignty. The PQ was
nevertheless re-elected in 1981, this time promising not to hold a
referendum.
In 1982, the federal government petitioned the Parliament of the UK in
London to amend the Constitution of Canada in order for it to make future
amendments without resorting to consent from the British Parliament, but
rather from domestic amendment procedure called patriation.
The government of Quebec opposed the procedures of amendments
proposed as wells as the Canadian Charter of Rights and Freedom, for
not specifically including amendments exclusively for Quebec, but merely
for all Canadian Citizens. They contend that they had more complete
Quebec Charter of Human Rights and Freedom adopted earlier in 1975.
In 1994, the Parti Québécois was re-elected and announced that it would
be initiating a second referendum to take place in 1995. This time, the
question was on sovereignty with an optional partnership with Canada.
The "no" side won by only a narrow margin. Prior to this referendum, the
National Assembly of Quebec adopted a bill relating to the future of
Quebec which laid out the Quebec's plan for secession in case of a
winning referendum.
In response to the bill and the referendum result, several legal actions
were initiated by opponents to the independence of Quebec, questioning
the legality of secession. In 1996, Parti Québécois leader Lucien
Bouchard announced his government would make plans to hold another
referendum when he was confident that the "winning conditions" were
there, pointing to the political cost of losing a third referendum. In
reaction to Bouchard's stated plans, Prime Minister Jean Chrétien
initiated a reference to answer the legality of a unilateral declaration of
independence from a Canadian province.
DEFINITION OF TERMS:
Federalism – the principle that seeks to “reconcile diversity with unity” by
giving federal authority over only those issues of common interest
amongst culturally diverse and politically independent provinces. The
purpose of Canada's federalism is not only to create a loose association
amongst provinces, but a true national unity.
Democracy – the principle that seeks to promote participation in
effective representative self-government, which respects and responds to
all voices in a marketplace of ideas.
Constitutionalism and the Rule of Law – the principles that protect
citizens from state actions by forcing governments to act under the rule of
law, the constitution of Canada being the supreme law. The constitution's
entrenched protections of minorities ensure that the country does not
operate simply on majority rule, and enables a true democracy in which
minority voices are fairly considered.
Protection of Minorities – the principle that guides the other principles,
but one which is also independent and fundamental because of its
uniqueness to Canada relative to other federal, constitutional
democracies.
ISSUES:
1. Under the Constitution of Canada, can the National Assembly,
legislature or government of Quebec effect the secession of Quebec
from Canada unilaterally?
2. Does international law give the National Assembly, legislature
or government of Quebec the right to effect the secession of
Quebec from Canada unilaterally? In this regard, is there a right to
self-determination under international law that would give the
National Assembly, legislature or government of Quebec the right to
effect the secession of Quebec from Canada unilaterally?
3. In the event of a conflict between domestic and international
law on the right of the National Assembly, legislature or government
of Quebec to effect the secession of Quebec from Canada
unilaterally, which would take precedence in Canada?
ANSWER:
1. NO. Under the Canadian Constitution (and with Quebec being a party
to it since its inception), unilateral secession was not legal. However,
should a referendum decide in favour of independence, the rest of
Canada "would have no basis to deny the right of the government of
Quebec to pursue secession." Negotiations would have to follow to
define the terms under which Quebec would gain independence, should
it maintain that goal (of course without encroaching to the rights of
others.) The Court based its decision of the four unwritten constitution
principles of: federalism, democracy, constitutionalism and rule of law,
respect for minorities.
Arguments in support of the existence of a right to unilateral secession
were primarily based on the principle of democracy. Constitutional
jurisprudence however shows that democracy exists in the larger context
of other constitutional values. (Dili rai la right ang gi protect) Since
Confederation, the people of the provinces and territories have created
close ties of interdependence (economic, social, political and cultural)
based on shared values that include federalism, democracy,
constitutionalism and the rule of law, and respect for minorities.
A democratic decision of Quebecers in favor of secession would put
those relationships at risk. The Constitution vouchsafes order and
stability, and accordingly secession of a province “under the Constitution”
could not be achieved unilaterally, that is, without principled negotiation
with other participants in Confederation within the existing
constitutional framework.
(So wala siya gi allow sa Constitution bec of the four principles stated
above and ma put at risk ang iba na states. BUT if ma successful sa
referendum si Quebec, wala choice si Canada but to respect ila gusto for
independence but dapat mo undergo og principled negotiations.)
2. NO. The Court began its discussion by asserting "it is clear that
international law does not specifically grant component parts of sovereign
states the legal right to secede unilaterally from their parent state." In
making this assertion, the Court argued that neither the absence of a
provision explicitly denying the right to secession, nor the right of self-
determination implies that the right of secession for every group exists.
International law places great importance on the TERRITORIAL
INTEGRITY OF NATION STATES and by and large leaves the creation
of a new state to be determined by the domestic law of the existing state
of which the seceding entity presently forms a part."' The Court
determined that since Quebec's secession would be contrary to the
constitution and laws of Canada, the international law is likely to accept
the Court's conclusion unless it is contrary to the right of self-
determination.
The principle of self-determination captured under international law has
evolved within a framework of respect for the territorial integrity of
existing states. It is only people under colonial or foreign occupation
that are granted the right to external self-determination, based on the
assumption that both are entities inherently distinct from the colonialist
power and the occupant power. Quebec is neither a colony nor a
foreign occupied land in this case nor have her people been victims
of attacks on their physical existence or integrity or of massive
human violations. But Quebecers are represented equitably in
legislative, executive and judicial institutions, they occupy prominent
positions within the government of Canada and they equally enjoy the
freedom to pursue their political, economic, social and cultural
development. The possibility that the international law right of self-
determination could entail secession as a “last resort” in cases of
especially severe oppression, in which other channels for exercising
internal self-determination had been “totally frustrated” is left open by the
Reference Re Secession of Quebec.

[T]he international law right to self-determination only generates, at best,

a right to external self-determination in situations of former colonies;
where a people is oppressed, as for example under foreign military
occupation; or where a definable group is denied meaningful access to
government to pursue their political, economic, social and cultural
development. In all three situations, the people in question are entitled to
a right to external self-determination because they have been denied the
ability to exert internally their right to self-determination. Such exceptional
circumstances are manifestly inapplicable to Quebec under existing
conditions

(So, si QUEBEC dili authorized sa Canadian Constitution. Si International

law, wala pud sya specifically ni authorize nor ni prohibit sa
UNILATERAL SECESSION. BUT erga omnes to recognize people to
self-determination. This self-determination dapat within the context of the
framework of sovereign states and consistent with territorial integrity of
those states. Dapat balance and right to self-determination with respect
to the territorial integrity of existing states. BUT! In exceptional
circumstances should the territorial integrity of those states be infringed
upon to give a Peoples the right to secede. BUT wala siya right because
di man sya under occupation nya wala man siya gi daog2; well-
represented pud sya sa government. naa ra siya access for
development; wala gi deny iya right to internal self-determination.
THEREFORE, WALA KA RIGHT CASSIE! D KA MUNA PAPASOK SA
ISKUL)

3. Since the court saw no conflict between Canadian law and

International law on the question (neither would allow Quebec to secede
unilaterally), it considered it unnecessary to answer the question.
The Republic of the Philippines and the People’s Republic of China
(Award), PCA Case No. 2013-19, 12 July 2016
Facts:
Overview
On 22 January 2013, the Republic of the Philippines instituted arbitral
proceedings against the People’s Republic of China under Annex VII to
the United Nations Convention on the Law of the Sea (the “Convention” /
UNCLOS). The arbitration concerned the role of historic rights and the
source of maritime entitlements in the South China Sea, the status of
certain maritime features in the South China Sea, and the lawfulness of
certain actions by China in the South China Sea that the Philippines
alleged to be in violation of the Convention. China adopted a position of
non-acceptance and non-participation in the proceedings. The
Permanent Court of Arbitration served as Registry in this arbitration.
The Philippines sought for rulings in respect of 4 matters concerning the
relationship between the Philippines and China in the South China Sea:
1) Source of the Parties’ rights and obligations in the South China Sea
& the effect of the UNCLOS on China’s claims to historic rights
within its so-called “nine-dash line”
2) Whether certain maritime features claimed by both China and the
Philippines are properly characterized as islands, rocks, low-tide
elevations or submerged banks under the Convention
- The status of these features determines the maritime zones
they are capable of generating
3) Whether certain Chinese actions in the South China Sea violated
the Convention
- The Philippines claims that China is interfering with the
exercise of the Philippines’ sovereign rights and freedoms
under the Convention
- China’s construction and fishing activities have also allegedly
harmed the marine environment
4) Whether Certain actions taken by China have unlawfully aggravated
and extended the Parties’ dispute
- E.g. China’s large-scale land reclamation and construction of
artificial islands in the Spratly Islands since the arbitration
commenced
(Note: The Philippines actually had 15 submissions in total but they can
all be summarized into these 4 matters)
On the other hand, the Chinese Government has adhered to the position
of neither accepting nor participating in the arbitral proceedings,
reiterating this position in diplomatic notes dated December 7, 2014
(China’s Position Paper). China also made it clear that the statements
and documents shall by no means be interpreted as China’s participation
in the arbitral proceeding in any form. Although China stated that they are
not participating, it also stated in its Position Paper that the Tribunal has
no jurisdiction, advancing the following arguments:
1) The essence of the subject matter of the arbitration is the territorial
sovereignty over several maritime features in the South China Sea
- Beyond the scope of the Convention
- Does not concern the interpretation/ application of the
Convention
2) China and the Philippines have agreed to settle their relevant
disputes through negotiations
- Bilateral instruments + 2002 China-ASEAN Declaration on the
Conduct of Parties in the South China Sea
- By unilaterally initiating the present arbitration, the Philippines
has breached its obligation under international law
3) Assuming, arguendo, the subject matter were concerned with the
interpretation or application of the Convention, that subject matter
would constitute an integral part of maritime delimitation between
the two countries
- This falls within the scope of the declaration filed by China in
2006 in accordance with the Convention
- The declaration excludes disputes concerning maritime
delimitation from compulsory arbitration and other compulsory
dispute settlement procedures
Jurisdiction
The Tribunal decided to treat China’s informal communications as
equivalent to an objection to jurisdiction. The Tribunal also took a number
of steps to test the accuracy of the Philippines’ claims. The Tribunal
noted that both the Philippines and China are parties to the convention
and that the Convention does not permit a State to except itself generally
from the mechanism for the resolution of disputes set out in the
Convention. The Tribunal also held that China’s non-participation does
not deprive the Tribunal of jurisdiction (Article 288 of the Convention &
Article 9 of Annex VII to the Convention).
● Although the Tribunal accepted that there is a dispute between the
Parties concerning sovereignty, it also held that the matters
submitted by the Philippines do not concern sovereignty.
● It does not follow that a dispute over an issue that may be
considered in the course of a maritime boundary delimitation
constitutes a dispute over maritime boundary delimitation itself
● Entitlement to maritime zones is distinct from delimitation of those
zones in an area where entitlements overlap
● The 2002 China-ASEAN Declaration on the Conduct of Parties in
the South China Sea is a political agreement and not legally binding,
does not provide a mechanism for binding settlement, and does not
exclude other means of dispute settlement
● The Tribunal emphasized the following in justifying its jurisdiction
over the case:
a) A dispute concerning the interaction between the Convention
and other rights (Chinese “historic rights”) is a dispute
concerning the Convention
b) The existence of a dispute may be inferred from the conduct of
a State or from silence and is a matter to be determined
objectively
Merits
A. Nine-Dash Line and China’s Claim to Historic Rights
The final text of the Convention gives other States only a limited right of
access to fisheries in the exclusive economic zone and no rights to
petroleum or mineral resources. It was found that China’s claim to
historic rights to resources was incompatible with the detailed allocation
of rights and maritime zones in the Convention. Such rights were
extinguished by the entry into force of the Convention to the extent they
were incompatible with the Convention’s system of maritime zones.
The Tribunal noted that, prior to the Convention, the waters of the South
China Sea beyond the territorial sea were legally part of the high seas, in
which vessels from any State could freely navigate and fish. It was
concluded that the historical navigation and fishing by China in the
waters of the South China Sea represented the exercise of high seas
freedom, not a historic right. There was no evidence that China had
historically exercised exclusive control over the waters of the South
China Sea or prevented other States from exploiting their resources.
In conclusion, there was no legal basis for China to claim historic
rights to resources, in excess of the rights provided for by the
Convention, within the sea areas falling within the “nine-dash line.”
B. The Status of the Features in the South China Sea
(related to the topic!!!)
Henriksen p. 72
The state can acquire new territory through accretion where new
land is gradually created naturally. The formation of new territory
must be the result of natural forces, not man-made features. For a
number of years, China has been constructing a string of artificial
‘islands’ on maritime features, such as reefs and low-tide elevations
in the South China Sea. These entities cannot form the basis of
Chinese claims to title in the areas in question. In the South China
Sea Arbitration, the court considered that the status of a feature be
ascertained on the basis of its earlier, natural condition, prior to
the onset of significant human modification.
The Tribunal evaluated whether certain coral reefs claimed by China are
or are not above water at high tide as described by Articles 13 and 121 of
the Convention. It was noted that many of the reefs in the South China
Sea have been heavily modified by recent land reclamation and
construction. In some cases, it is now difficult to observe directly the
original status of the feature in its natural state. In such circumstances,
the Tribunal considers that the Convention requires that the status of a
feature be ascertained on the basis of its earlier, natural condition,
prior to the onset of significant human modification, taking into account
the best available evidence of the previous status of the high-tide
features, before intensive human modification.
 ● Constructing installations and artificial islands at Mischief Reef
Thus, the Tribunal resorted to an expert hydrographer to evaluate the without authorization from the Philippines
Philippines’ technical evidence and relied heavily on archival materials
and historical hydrographic surveys in evaluating the features to see the Scarborough Shoal
previous status of what are now heavily modified coral reefs. Through Because the shoal is above water at high tide, it generates an entitlement
these evaluations, they were able to classify each reef accordingly: to a territorial sea, its surrounding waters do not form part of the EEZ.
Additionally, traditional fishing rights were not extinguished by the
Convention. China violated its duty to respect the traditional fishing rights
Features Entitlement Conclusions of Philippine fishermen by halting access to the Shoal after May 2012.
Generated
OTHER SHITTY THINGS THAT CHINA DID:
High-Tide Features 12 nautical mile ● Scarborough ● China’s large scale land reclamation and construction of
(above water at high territorial sea Shoal artificial islands at 7 features in the Spratly Islands caused
tide) ● Johnson Reef severe harm to the coral reef environment (violation of Art. 192
● Cuarteron Reef & 194 of the Convention)
● Fiery Cross ● Chinese fishermen engaged in the harvesting of endangered
Reef sea turtles, coral, and giant clams on a substantial scale in the
● Gaven Reef South China Sea using methods that inflict severe damage on
(North) the coral reef environment
● McKennan ● Chinese vessels had sought to physically obstruct PH vessels
Reef from approaching or gaining entrance to the Shoal (breached
obligations under the Convention on the International
Submerged at High No entitlement to ● Subi Reef Regulations for Preventing Collisions at Sea 1972 & Article 94
Tide maritime zones ● Hughes Reef of the Convention)
● Mischief Rief
● Second D. Aggravation of the Dispute Between the Parties
Thomas Shoal Ever since the commencement of the arbitration, China has been
continuously conducting large-scale reclamation and construction of
artificial islands at 7 features in the Spratly Islands. There exists a duty
The Tribunal then considered whether any of the features claimed by on parties engaged in a dispute settlement procedure to refrain from
China could generate an entitlement to maritime zones beyond 12 aggravating or extending the dispute or disputes at issue during the
nautical miles. pendency of the settlement process. China violated this obligation when
it:
Under Article 121 of the Convention: ● Built a large artificial island on Mischief Reef
● Islands = 200-nautical mile exclusive economic zone + a ● Caused permanent, irreparable harm to the coral reef
continental shelf ecosystem
● Rocks = no exclusive economic zone/ continental shelf ● Permanently destroyed evidence of the natural condition of the
- Because they cannot sustain human habitation or economic features in question
life of their own
CONCLUSION
This provision was intended to prevent insignificant features from The Philippines and China have repeatedly accepted that the Convention
generating large entitlements to maritime zones that would infringe and general obligations of good faith define and regulate their conduct.
on the entitlements of inhabited territory or on the high seas and the The award shall be complied with by the parties to the dispute. The
area of the seabed reserved for the common heritage of mankind. award is final and binding.
The entitlements of a feature depend on the objective capacity of a
feature, in its natural condition, to sustain either a stable community
of people or economic activity that is neither dependent on outside
resources nor purely extractive in nature.

With regards to the SPRATLY ISLANDS, many of the littoral States have
constructed installations and maintain personnel on its features. These
modern presences are dependent on outside resources and support.
Many of its features have also been modified to improve their habitability
(land reclamation, construction of infrastructure like desalination plants).
- That is why the Tribunal had to examine the historical record
instead
- It was found that the Spratly Islands were historically used by
small groups of fishermen from China (as well as other States)
- BUT!!! The temporary use of the features by fishermen did not
amount to inhabitation by a stable community and that all of
the historical economic activity had been extractive in nature
- Thus, all of the high-tide features in the Spratly Islands are
legally “ROCKS” and do not generate an exclusive economic
zone or continental shelf

C. Chinese Activities in the South China Sea

Having found that Mischief Reef, Second Thomas Shoal and Reed Bank
are submerged at high tide, it is clear that they form part of the exclusive
economic zone and continental shelf of the Philippines and are not
overlapped by any entitlement of China. Therefore, China violated the
Philippines’ sovereign rights with respect to its EEZ and continental shelf
by:
● Interfering with PH petroleum exploration at Reed Bank
● Purporting to prohibit PH vessels within the Philippines’ EEZ
● Failing to prevent Chinese fishermen from fishing within the PH
EEZ
Island of Palmas (Netherlands v. United States), [1928] || RIAA 829
Facts:
Territorial dispute between US and Netherlands concerning the island of
Palmas, located near Mindanao, Philippines.
1. This happened after Spain’s cession of the Philippines to the Unite
States (1898)
2. Palmas (known as Miangas) is an island located halfway between the
islands of Mindanao, Philippines and Nanusa group of Islands, which at
the time belonged to the Netherlands
3. Then Governor of the Moro Province in the Philippines, Leonard
Wood, visited Palmas and discovered that Netherlands also claimed
sovereignty over it.
4. They agreed to submit the dispute to arbitration.
The United States, as successor to the rights of Spain over the
Philippines, bases its title in the first place on discovery. The existence of
sovereignty thus acquired is, in the American view, confirmed not merely
by the most reliable cartographers and authors, but also by treaty, in
particular by the Treaty of Minister, of 1648, to which Spain and the
Netherlands are themselves Contracting Parties.
As, according to the same argument, nothing has occurred of a nature, in
international law, to cause the acquired title to disappear, this latter title
was intact at the moment when, by the Treaty of December 10th, 1898,
Spain ceded the Philippines to the United States. In these circumstances,
it is, in the American view, unnecessary to establish facts showing the
actual display of sovereignty precisely over the Island of Palmas (or
Miangas).
The United States Government also maintains that Palmas (or Miangas)
forms a geographical part of the Philippine group and in virtue of the
principle of contiguity belongs to the Power having the sovereignty over
the Philippines.
Netherlands basis for their claims:
(1) Acts of direct and/or indirect display of sovereignty According to the
Netherlands Government
(2) The fact of discovery by Spain is not proved, nor yet any other form of
acquisition, and even if Spain had at any moment had a title, such title
had been lost. The principle of contiguity is contested.
The Netherlands Government's main argument endeavors to show that
the Netherlands, represented for this purpose in the first period of
colonization by the East India Company, have possessed and exercised
rights of sovereignty from 1677, or probably from a date prior even to
1648, to the present day. This sovereignty arose out of conventions
entered into with native princes of the Island of Sangi (the main island of
the Talautse (Sangi Isles), establishing the sovereignty of the
Netherlands over the territories of these princes, including Palmas (or
Miangas). The state of affairs thus
set up is claimed to be validated by international treaties.
The facts alleged in support of the Netherlands arguments are, in the
United States Government's view, not proved, and, even if they were
proved, they would not create a title of sovereignty, or would not concern
the Island of Palmas.
Issues:
1. To which state does the Palmas (Miangas) belong?
2. How will the discrepancies in the general and special maps be taken
into account? (There were maps that the parties relied upon showing that
the island is part of their territory)
3.. Can a title based on contiguity be made to apply?
Held:
1. The Netherland’s title of sovereignty holds good over the inchoate title
of the US. The latter’s title (based on a claim of discovery) cannot prevail
over a definite title founded on continuous and peaceful display of
sovereignty.
Further, Spain could not transfer more rights than she
herself possessed. In letter dated April 7th, 1900, from the Secretary of
State of the United States to the Spanish Minister at Washington: The
metes and bounds defined in the treaty were not understood by either
party to limit or extend Spain's right of cession.
Were any island within those described bounds ascertained to belong in
fact to Japan, China, Great Britain or Holland, the United States could
derive no valid title from its ostensible inclusion in the Spanish cession.
The compact upon which the United States negotiators insisted was that
all Spanish title to the archipelago known as the Philippine Islands should
pass to the United States — no less or more than Spain's actual holdings
therein, but all.
This Government must consequently hold that the only competent and
equitable test of fact by which the title to a disputed cession in that
quarter may be determined is simply this: ''Was it Spain's to give? If valid
title belonged to Spain, it passed; if Spain had no valid title, she could
convey none."
The records of the conquest cannot come to the aid of US. Indeed, the
reports on record which concern the discovery of the Island of Palmas
state only that an island was "seen", which island, according to the
geographical data, is probably identical with that in dispute. No mention
is made of landing or of contact with the natives. And in any case no
signs of taking possession or of administration by Spain have been
shown or even alleged to exist until the very recent date to which the
reports of Captain Malone and M. Alvarez, of 1919 contained in the
United States
Memorandum, relate.
2. A map affords only an indication — and that a very indirect one — and,
except when annexed to a legal instrument, has not the value of such an
instrument, involving recognition or abandonment of right.
3. No. The principle of contiguity, in regard to islands, may not be out of
place when it is a question of allotting them to one State rather than
another, either by agreement between the Parties, or by a decision not
necessarily based on law; but as a rule establishing ipso jure the
presumption of sovereignty in favor of a particular State, this principle
would be in conflict with what has been said as to territorial sovereignty
and as to the necessary relation between the right to exclude other
States from a region and the duty to display therein the activities of the
state. Nor is this principle of contiguity admissible as a legal method of
deciding questions of territorial sovereignty; for it is wholly lacking in
precision and would in its application lead to arbitrary results. This
would be especially true in a case such as that of the island in question,
which is not relatively close to one single continent, but forms part of a
large archipelago in which strict delimitations between the different parts
are not naturally obvious.
Pertinent to syllabus topic: Discovery of terra nullius is not enough to
establish sovereignty. It must be accompanied by effective control.
While the initial discovery of an as yet unknown territory could
establish and "inchoate" title, the initial act of discovery must be
followed up by effective occupation of the territory within a
reasonable time.
Sovereignty Over Pulau Ligitan and Pulau (Indonesia v. Malaysia),
Judgment [2002] ICJ Rep 625
(This case has a really long discussion about treaty interpretation.
However, the main issue is about effectivites)
History of parties
Indonesia = former colony of Netherlands (dutch)
Malaysia = former colony of Britain
1. On November 2, 1998, Indonesia and Malaysia, through a special
agreement requested the Court to determine on the basis of treaties and
other evidence, whether the sovereignty over Pulau Ligitan and Pulau
Sipadan belongs to either of them.
2. In 2001, the Philippines filed for permission to intervene in the case
but this was denied
Indonesia’s claims
1. Indonesia’s claim of sovereignty over the islands arises from the
Convention which Great Britain and the Netherlands concluded on 20
June 1891 for the purpose of "defining the boundaries between the
Netherland possessions in the Island of Borneo and the States in that
Island which [were] under British protection". (long discussion on treaty
interpretation, the Court ruled that the treaty was inapplicable)
2. Indonesia also relies on a series of efectivites (acts by a State
relevant to a claim of title to territory by occupation or prescription),
both Dutch and Indonesian, which it claims confirm its conventional
title
3. By way of alternative argument, if the Court were to reject its title
based on the 1891 Convention, it could still claim sovereignty over the
disputed islands as successor to the Sultan of Bulungan
Malaysia claims
1. Acquired through a series of alleged transmissions of the title
originally held by the former sovereign, the Sultan of Sulu.
2. Title subsequently passed, in succession, to Spain, to the United
States, to Great Britain on behalf of the State of North Borneo, to the
United Kingdom of Great Britain and Northern Ireland, and finally to
Malaysia itself.
3. Malaysia’s title based on this series of legal instruments, is
confirmed by a certain number of British and Malaysian effectivites over
the islands
4. By way of alternative argument, if the Court were to accept the
title of Indonesia, its effectivites would in any event have displaced
any such title
1891 Treaty
1. Not applicable
Indonesia
1. Not applicable. Could not directly trace title to Sultan Bulungan
Malaysia
1. Not applicable. It could not be ascertained that the Sultan of Sulu
had exercised sovereignty over the islands
Ownership by Effectivites (acts by a State relevant to a claim of title
to territory by occupation or prescription) – main issue used to
decipher ownership
1. Indonesia’s acts
a. Patrols in the are by the Dutch Royal Navy
b. Activities of the Indonesian navy
c. Activities of Indonesian fishermen
d. Act No. 4 concerning Indonesian Waters, promulgated on 1.8
February 1960 in which archipelagic baselines were defined
(however map did not mention indicate Ligitan and Sipadan as
relevant base points or turning points.)
2. Malaysia’s acts
a. control over the taking of turtles and the collection of turtle
eggs, allegedly the most important economic activity on
Sipadan for many years
b. establishment in 1933 of a bird sanctuary on Sipadan
c. British North Borneo colonial authorities constructed
lighthouses on Ligitan and Sipadan Islands in the early 1960s
and that these exist to this day and are maintained by the
Malaysian authorities
ICJ: Cited Eastern Greenland: "a claim to sovereignty based not upon
some particular act or title such as a treaty of cession but merely upon
continued display of authority, involves two elements each of which must
be shown to exist: the intention and will to act as sovereign, and
some actual exercise or display of such authority. Another
circumstance which must be taken into account by any tribunal which has
to adjudicate upon a claim to sovereignty over a particular territory, is the
extent to which the sovereignty is also claimed by some other Power."
"It is impossible to read the records of the decisions in cases as to
territorial sovereignty without observing that in many cases the tribunal
has been satisfied with very little in the way of the actual exercise of
sovereign rights, provided that the other State could not make out a
superior claim. This is particularly true in the case of claims to
sovereignty over areas in thinly populated or unsettled countries."
Court Observations:
a. The Court admits that effectivites are generally scarce for small
and not permanently inhabited islands (Ligitan and Sipadan) which have
little economic importance (until recently)
b. The Court can only take into consideration acts of the States
before the dispute crystallized (when the parties started asserting
conflicting claims over the islands, subsequent acts that try to improve
the legal position). In this case, the year of crystallization is 1969.
c. The Court finally observes that it can only consider those acts as
constituting a relevant display of authority which leave no doubt as to
their specific reference to the islands in dispute as such.
Indonesia effectivites ruling:
a. Act No. 4 of February 1960, which draws Indonesia's archipelagic
baselines, and its accompanying map do not mention or indicate Ligitan
and Sipadan as relevant base points or turning points.
b. Allegation of continuous presence of Dutch and Indonesian navies
around the islands were not substantiated through reports or documents
c. activities by private persons such as Indonesian fishermen, cannot
be seen as effectivites if they do not take place on the basis of official
regulations or under governmental authority
Thus, the court held that the activities relied upon by Indonesia do not
constitute acts a titre de souverain reflecting the intention and will to act
in that capacity.
Malysia effectivites ruling
a. The measure of regulating and collecting turtle eggs and the
establishment of a bird reserve can be seen as regulatory and
administrative assertions of authority over territory which is specified
by name.
b. The construction and operation of lighthouses and navigational
aids are not normally considered manifestations of State authority.
B1. However in the of Qatar vs. Bahrain it was ruled “certain types of
drilling artesian wells could be considered as controversial acts
performed as titre de souverain. The construction of navigational aids, on
the other hand, can be legally relevant in the case of very small islands.
The taking into account the size of Qit'at Jaradah, the activities carried
out by Bahrain on that island must be considered sufficient to support
Bahrain's claim that it has sovereignty over it.”
In this case, the Court notes that the activities relied upon by Malaysia,
both in its own name and as successor State of Great Britain, are
modest in number but that they are diverse in character and include
legislative, administrative and quasi-judicial acts. They cover a
considerable period of time and show a pattern revealing an
intention to exercise State functions in respect of the two islands in
the context of the administration of a wider range of islands.
Conclusion:
The Court cannot disregard the fact that at the time when these activities
were carried out, neither Indonesia nor its predecessor, the Netherlands,
ever expressed its disagreement or protest. In this regard, the court
notes that in 1962 and 1963 the Indonesian authorities did not even
remind the authorities of the colony of North Borneo, or Malaysia after its
independence, that the construction of the lighthouses at those times had
taken place on territory which they considered Indonesian; even if they
regarded these lighthouses as merely destined for safe navigation in an
area which was of particular importance for navigation in the waters off
North Borneo, such behaviour is unusual. Given the circumstances of
the case, and in particular in view of the evidence furnished by the
Parties, the Court concludes that Malaysia has title to Ligitan and
Sipadan on the basis of the effectivites referred to above.
Arbitration Commission of the Peace Conference on Yugoslavia,
Opinion No. 8 and Opinion No. 10
Facts:
Socialist Federal Republic of Yugoslavia (SFRY)
1. SR Bosnia and Herzegovina
2. SR Croatia
3. SR Macedonia
4. SR Montenegro
5. SR Serbia
a. Socialist Autonomous Province of Kosovo
b. Socialist Autonomous Province of Vojvodina
6. Slovenia
A LITTLE BACKGROUND OF YUGOSLAVIA
Yugoslavia was a country in Southeastern and Central Europe. It had six
constituent Republics. After an economic and political crisis in the 1980s
and the rise of nationalism, Yugoslavia broke up along its republics'
borders, at first into five countries, leading to the Yugoslav Wars.
After the breakup, the republics of Montenegro and Serbia formed a
reduced federative state, Serbia and Montenegro, known officially until
2003 as the Federal Republic of Yugoslavia (FRY). This state aspired to
the status of sole legal successor to the SFRY, but those claims were
opposed by the other former republics. Eventually, it accepted the
opinion of the Badinter Arbitration Committee about shared succession
and in 2003 its official name was changed to Serbia and Montenegro.
This state dissolved when Montenegro and Serbia each became
independent states in 2006, while Kosovo proclaimed its independence
from Serbia in 2008.
So tungod sa conflicts in Yugoslavia ni rise ni
At a meeting in Brussels on August 27, 1991, the European Community
and its Member States agreed to convene an International Conference
for Peace in Yugoslavia with a view to finding a permanent and pacific
solution to the crisis within the Socialist Federal Republic of Yugoslavia
(SFRY) which had resulted in conflict.
In a formal sense, the opinions of the Arbitration Commission are not
binding on any of the States concerned. The Commission was not
created in virtue of an international arbitration agreement between
disputing parties, and had no treaty base. Rather, it was an executive
creation on the part of the EC and its Member States acting through the
medium of the Conference on Yugoslavia. Its opinions were directed not
to the parties concerned but to the Conference itself, and were delivered
in a consultative capacity.
Mission of the Conference: to reestablish peace for all in Yugoslavia and
to achieve lasting solutions with respect to all legitimate concerns and
legitimate aspirations.
DIRETSO LANG TA OPINION 8,9,10
Opinion No. 8 (Completion of the process of the dissolution of the
SFRY)
Question: Whether dissolution of SRFY was complete?
Answer: The dissolution was complete. SRFY no longer exists.
The Commission decided that the legal process of the dissolution of the
SFRY had completed and so the SFRY no longer existed. The
commission has taken note of memos, observations and papers sent by
the 6 constituents.
• Since adopting Opinion 1, the referendum proposed in Opinion 4
was held in Bosnia-Herzegovina, a large majority of the population
voted in favor of the Republic’s independence
• Serbia and Montenegro as republics with equal standing in law
have constituted a new state (Federal Republic of Yugoslavia) and
they adopted a new constitution
• Most of the new states formed from the former Yugoslav republics
have recognized each other’s independence thus demonstrating
that the authority of the federal state is no longer held sway on the
territory of the newly constituted states
• the common federal bodies on which all the Yugoslav Republic‘s
represented no longer exist; no body of that type has function since
• the former national territory and population of SFRY are now
entirely under the sovereign authority of the new states
• Bosnia, Croatia, and Slovenia have been recognized by all the
member states of the European Community and by numerous
other states and were admitted to membership of the united
nations in May 20- 1992
• UN security council resolution 752 and 757 contain a number of
references to the “former SFRY”
• The use of the words the “former Yugoslavia” were adopted in it
declarations by the Lisbon European Council
• Resolution 757 notes that the claim by the federal republic of
Yugoslavia to continue automatically the membership of the former
socialist federal republic of Yugoslavia in the United Nations has
not been generally accepted
Opinion No. 9 (Settlement of problems of state succession)
Question: How to settle problems of state succession among the
emerging successor states?
Answer: Successor states must negotiate a solution, applying general
international law and the principles set forth in the 1978 and 1983 Vienna
Conventions, including the principle of equality of rights and duties
between states; no successor state alone may claim former membership
rights in any international organizational; SRFY assets and debts must
be divided equitably among the successor states.
The Commission considered state succession, resulting from the
cessation of the SFRY, should be resolved. It ruled that it should be
resolved by mutual agreement between the several successor states,
with an equitable division of the international assets and obligations of
the former SFRY. It also decided that the membership of the SFRY in
international organizations could not be continued by any successor
state, but each state would have to apply for membership anew.
Opinion No. 10 (Federal Republic of Yugoslavia - Serbia and
Montenegro)
Question: Whether the FRY (proposed by Serbia and Montenegro) is a
new state calling for recognition by the EC and Member States?
Answer: FRY is a new state that cannot be considered to be the sole
successor to the SRFY; recognition of FRY will be subject to the EC
guidelines.
In this decision, the Commission ruled that the FRY (Serbia and
Montenegro) could not legally be considered a continuation of the former
SFRY, but it was a new state. Thus, the European Community should not
automatically recognize the FRY but apply the same criteria as for the
recognition of the other post-SFRY states.
From the Book
The outcome was different when the SFRY fell apart. The disintegration
of the Yugoslavian state was considered to be so profound that it had
ceased to exist as a state for the purposes of international law. As a
result Serbia and Montenegro was not allowed to simply continue the
now dissolved Yugoslavian mother-state. Serbia was denied the right to
continue Yugoslavia’s membership of the UN.
The two main elements of its opinion were that, first, the successor
States (of whom none could claim to be the sole successor) should settle
all aspects of succession by agreement. Failing agreement, they must
settle all disputes peacefully, 'in line with the principle laid down in the
United Nations Charter' and in particular by means of inquiry, mediation,
conciliation, arbitration or judicial settlement.'"
Secondly, the successor States should try to achieve an equitable
solution by drawing on the principles in the Vienna Conventions and
general international law, taking into account the principle of equality of
rights and duties between States.t"? It noted, in particular, that the assets
and debts of the SFRY, together with its property located in third
countries, must be divided equitably between the successor States.
Frontier Dispute (Burkina Faso v. Mali), Judgment [1986] ICJ Rep
554

Facts: On 14 October 1983 Burkina Faso (then known as Upper Volta)

and Mali notified to the Court a Special Agreement referring to a
Chamber of the Court the question of the delimitation of part of the land
frontier between the two States. Following grave incidents between the
armed forces of the two countries at the very end of 1985, both Parties
submitted parallel requests to the Chamber for the indication of interim
measures of protection. The Chamber indicated such measures by an
Order of 10 January 1986

Issue: Does an obligation exist to respect pre-existing international

frontiers in the event of a state succession?

Held: In its Judgment delivered on 22 December 1986, the Chamber

began by ascertaining the source of the rights claimed by the Parties. It
noted that, in that case, the principles that ought to be applied were the
principle of the intangibility of frontiers inherited from colonization and the
principle of uti possidetis juris, which accords pre-eminence to legal
title over effective possession as a basis of sovereignty, and whose
primary aim is to secure respect for the territorial boundaries which
existed at the time when independence was achieved.

The Chamber specified that, when those boundaries were no more than
delimitations between different administrative divisions or colonies all
subject to the same sovereign, the application of the principle of uti
possidetis juris resulted in their being transformed into international
frontiers, as in the instant case.

Syllabus: State Succession

An obligation exists to respect pre-existing international frontiers in the

event of a state succession, whether or not the rule is the rule is
expressed in the form of uti possidetis. The fact that the principle did not
exist when the states declared such independence in 1960 does not
foreclose its present application.

Miscellaneous

It also indicated that it would have regard to equity infra legem, that is,
that form of equity which constitutes a method of interpretation of the law
and which is based on law. The Parties also relied upon various types of
evidence to give support to their arguments, including French legislative
and regulative texts or administrative documents, maps and “colonial
effectivités” or, in other words, the conduct of the administrative
authorities as proof of the effective exercise of territorial jurisdiction in the
region during the colonial period.

Having considered those various kinds of evidence, the Chamber defined

the course of the boundary between the Parties in the disputed area. The
Chamber likewise took the opportunity to point out, with respect to the
tripoint Niger-Mali-Burkina Faso, that its jurisdiction was not restricted
simply because the endpoint of the frontier lay on the frontier of a third
State not a party to the proceedings. It further pointed out that the rights
of Niger were in any event safeguarded by the operation of Article 59 of
the Statute of the Court.
Human Rights Committee, ‘CCPR General Comment No. 26:
Continuity of Obligations’ (8 December 1997), UN Doc.
CCPR/C/21/Rev.1/Add.8/Rev.1

1. The International Covenant on Civil and Political Rights does

not contain any provision regarding its termination and does
not provide for denunciation or withdrawal. Consequently, the
possibility of termination, denunciation or withdrawal must be
considered in the light of applicable rules of customary
international law which are reflected in the Vienna Convention
on the Law of Treaties. On this basis, the Covenant is not
subject to denunciation or withdrawal unless it is established
that the parties intended to admit the possibility of denunciation
or withdrawal or a right to do so is implied from the nature of
the treaty.

2. That the parties to the Covenant did not admit the possibility of
denunciation and that it was not a mere oversight on their part
to omit reference to denunciation is demonstrated by the fact
that article 41 (2) of the Covenant does permit a State party to
withdraw its acceptance of the competence of the Committee
to examine inter-State communications by filing an appropriate
notice to that effect while there is no such provision for
denunciation of or withdrawal from the Covenant itself.
Moreover, the Optional Protocol to the Covenant, negotiated
and adopted contemporaneously with it, permits States parties
to denounce it. Additionally, by way of comparison, the
International Convention on the Elimination of All Forms of
Racial Discrimination, which was adopted one year prior to the
Covenant, expressly permits denunciation. It can therefore be
concluded that the drafters of the Covenant deliberately
intended to exclude the possibility of denunciation. The same
conclusion applies to the Second Optional Protocol in the
drafting of which a denunciation clause was deliberately
omitted.

3. Furthermore, it is clear that the Covenant is not the type of

treaty which, by its nature, implies a right of denunciation.
Together with the simultaneously prepared and adopted
International Covenant on Economic, Social and Cultural
Rights, the Covenant codifies in treaty form the universal
human rights enshrined in the Universal Declaration of Human
Rights, the three instruments together often being referred to
as the “International Bill of Human Rights”. As such, the
Covenant does not have a temporary character typical of
treaties where a right of denunciation is deemed to be
admitted, notwithstanding the absence of a specific provision
to that effect.

4. The rights enshrined in the Covenant belong to the people

living in the territory of the State party. The Human Rights
Committee has consistently taken the view, as evidenced by its
long-standing practice, that once the people are accorded the
protection of the rights under the Covenant, such protection
devolves with territory and continues to belong to them,
notwithstanding change in government of the State party,
including dismemberment in more than one State or State
succession or any subsequent action of the State party
designed to divest them of the rights guaranteed by the
Covenant.

5. The Committee is therefore firmly of the view that international

law does not permit a State which has ratified or acceded or
succeeded to the Covenant to denounce it or withdraw from it.