Republic of the Philippines

SUPREME COURT Manila

EN BANC

G.R. No. L-14279 October 31, 1961

THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS, petitioners,

vs.

EASTERN SEA TRADING, respondent.

Office of the Solicitor General for petitioners.

Valentin Gutierrez for respondent.

CONCEPCION, J.:

Petition for review of a judgment of the Court of Tax Appeals reversing a decision of the Commissioner of

Customs.

Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic which arrived at

the Port of Manila from August 25 to September 7, 1954. Some shipments came from Japan and others from

Hong Kong. In as much as none of the shipments had the certificate required by Central Bank Circulars Nos. 44

and 45 for the release thereof, the goods thus imported were seized and subjected to forfeiture proceedings for

alleged violations of section 1363(f) of the Revised Administrative Code, in relation to the aforementioned

circulars of the Central Bank. In due course, the Collector of Customs of Manila rendered a decision on

September 4, 1956, declaring said goods forfeited to the Government and the goods having been, in the meantime, released to the consignees on surety bonds, filed by the same, as principal, and the Alto Surety &

Insurance Co., Inc., as surety, in compliance with orders of the Court of First Instance of Manila, in Civil Cases

Nos. 23942 and 23852 thereof directing that the amounts of said bonds be paid, by said principal and surety, jointly and severally, to the Bureau of Customs, within thirty (30) days from notice.

On appeal taken by the consignee, said decision was affirmed by the Commissioner of Customs on December

27, 1956. Subsequently, the consignee sought a review of the decision of said two (2) officers by the Court of

Tax Appeals, which reversed the decision of the Commissioner of Customs and ordered that the aforementioned

bonds be cancelled and withdrawn. Hence, the present petition of the Commissioner of Customs for review of

the decision of the Court of Tax Appeals.

The latter is based upon the following premises, namely: that the Central Bank has no authority to regulate

transactions not involving foreign exchange; that the shipments in question are in the nature of "no-dollar"

imports; that, as such, the aforementioned shipments do not involve foreign exchange; that, insofar as a Central

Bank license and a certificate authorizing the importation or release of the goods under consideration are

required by Central Bank Circulars Nos. 44 and 45, the latter are null and void; and that the seizure and

forfeiture of the goods imported from Japan cannot be justified under Executive Order No. 328,1 not only

because the same seeks to implement an executive agreement2 extending the effectivity of our3 Trades and

Financial Agreements4 with Japan which (executive agreement), it believed, is of dubious validity, but, also,

because there is no governmental agency authorized to issue the import license required by the aforementioned

executive order.

The authority of the Central Bank to regulate no-dollar imports and the validity of the aforementioned Circulars

Nos. 44, and 45 have already been passed upon and repeatedly upheld by this Court (Pascual vs. Commissioner

of Customs, L-10979 [June 30, 1959]; Acting Commissioner of Customs vs. Leuterio, L-9142 [October 17,

1959] Commissioner of Customs vs. Pascual, L-9836 [November 18, 1959]; Commissioner of Customs vs.

Serree Investment Co., L-12007 [May 16, 1960]; Commissioner of Customs vs. Serree Investment Co., L-

14274 [November 29, 1960]), for the reason that the broad powers of the Central Bank, under its charter, to

maintain our monetary stability and to preserve the international value of our currency, under section 2 of

Republic Act No. 265, in relation to section 14 of said Act authorizing the bank to issue such rules and regulations as it may consider necessary for the effective discharge of the responsibilities and the exercise of the

powers assigned to the Monetary Board and to the Central Bank connote the authority to regulate no-dollar imports, owing to the influence and effect that the same may and do have upon the stability of our peso and its

international value.

The Court of Tax Appeals entertained doubts on the legality of the executive agreement sought to be

implemented by Executive Order No. 328, owing to the fact that our Senate had not concurred in the making of

said executive agreement. The concurrence of said House of Congress is required by our fundamental law in the

making of "treaties" (Constitution of the Philippines, Article VII, Section 10[7]), which are, however, distinct

and different from "executive agreements," which may be validly entered into without such concurrence.

Treaties are formal documents which require ratification with the approval of two thirds of the Senate.

Executive agreements become binding through executive action without the need of a vote by the Senate

or by Congress.

xxx xxx xxx

. . . the right of the Executive to enter into binding agreements without the necessity of subsequent

Congressional approval has been confirmed by long usage. From the earliest days of our history we have

entered into executive agreements covering such subjects as commercial and consular relations, most-

favored-nation rights, patent rights, trademark and copyright protection, postal and navigation

arrangements and the settlement of claims. The validity of these has never been seriously questioned by

our courts.

xxx xxx xxx

Agreements with respect to the registration of trade-marks have been concluded by the Executive with

various countries under the Act of Congress of March 3, 1881 (21 Stat. 502). Postal conventions

regulating the reciprocal treatment of mail matters, money orders, parcel post, etc., have been concluded

by the Postmaster General with various countries under authorization by Congress beginning with the

Act of February 20, 1792 (1 Stat. 232, 239). Ten executive agreements were concluded by the President

pursuant to the McKinley Tariff Act of 1890 (26 Stat. 567, 612), and nine such agreements were entered

into under the Dingley Tariff Act 1897 (30 Stat. 151, 203, 214). A very much larger number of

agreements, along the lines of the one with Rumania previously referred to, providing for most-favored-

nation treatment in customs and related matters have been entered into since the passage of the Tariff

Act of 1922, not by direction of the Act but in harmony with it.

xxx xxx xxx

International agreements involving political issues or changes of national policy and those involving

international arrangements of a permanent character usually take the form of treaties. But international

agreements embodying adjustments of detail carrying out well-established national policies and

traditions and those involving arrangements of a more or less temporary nature usually take the form of

executive agreements.

xxx xxx xxx

Furthermore, the United States Supreme Court has expressly recognized the validity and

constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law

Review, pp. 753-754) (See, also, U.S. vs. Curtis-Wright Export Corporation, 299 U.S. 304, 81 L. ed.

255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic

vs. U.S., 188 F. 2d. 288; Yale Law Journal, Vol. 15, pp. 1905-1906; California Law Review, Vol. 25,

pp. 670-675; Hyde on International Law [Revised Edition], Vol. 2, pp. 1405, 1416-1418; Willoughby on

the U.S. Constitutional Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp.

210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Emphasis supplied.)

In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines, said in his work on

"The Constitutionality of Trade Agreement Acts":

Agreements concluded by the President which fall short of treaties are commonly referred to as

executive agreements and are no less common in our scheme of government than are the more formal

instruments treaties and conventions. They sometimes take the form of exchanges of notes and at other times that of more formal documents denominated "agreements" time or "protocols". The point

where ordinary correspondence between this and other governments ends and agreements whether denominated executive agreements or exchanges of notes or otherwise begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large variety of

executive agreements as such, concluded from time to time. Hundreds of executive agreements, other

than those entered into under the trade-agreements act, have been negotiated with foreign governments. .

. . It would seem to be sufficient, in order to show that the trade agreements under the act of 1934 are not

anomalous in character, that they are not treaties, and that they have abundant precedent in our history,

to refer to certain classes of agreements heretofore entered into by the Executive without the approval of

the Senate. They cover such subjects as the inspection of vessels, navigation dues, income tax on

shipping profits, the admission of civil aircraft, customs matters, and commercial relations generally,

international claims, postal matters, the registration of trademarks and copyrights, etcetera. Some of

them were concluded not by specific congressional authorization but in conformity with policies

declared in acts of Congress with respect to the general subject matter, such as tariff acts; while still

others, particularly those with respect of the settlement of claims against foreign governments, were

concluded independently of any legislation." (39 Columbia Law Review, pp. 651, 755.)

The validity of the executive agreement in question is thus patent. In fact, the so-called Parity Rights provided

for in the Ordinance Appended to our Constitution were, prior thereto, the subject of an executive agreement,

madewithout the concurrence of two-thirds (2/3) of the Senate of the United States.

Lastly, the lower court held that it would be unreasonable to require from respondent-appellee an import license

when the Import Control Commission was no longer in existence and, hence, there was, said court believed, no

agency authorized to issue the aforementioned license. This conclusion is untenable, for the authority to issue

the aforementioned licenses was not vested exclusively upon the Import Control Commission or

Administration. Executive Order No. 328 provided for export or import licenses "from the Central Bank of the

Philippines or the Import Control Administration" or Commission. Indeed, the latter was created only to

perform the task of implementing certain objectives of the Monetary Board and the Central Bank, which

otherwise had to be undertaken by these two (2) agencies. Upon the abolition of said Commission, the duty to

provide means and ways for the accomplishment of said objectives had merely to be discharged directly by the

Monetary Board and the Central Bank, even if the aforementioned Executive Order had been silent thereon.

WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered affirming that of

the Commissioner of Customs, with cost against respondents defendant-appellee, Eastern Sea Trading. It is so

ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Paredes, Dizon and De Leon, JJ., concur.

Barrera, J., took no part.

Footnotes

1 Dated June 22, 1950. It provides, inter alia, that from and after said date, no commodity may be

exported to or imported from Occupied Japan without an export or import license from the Central Bank

of the Philippines or the Import Control Administration, and that the annual exports and imports to the

Philippines and from Occupied Japan, as contained in the Trade Plan shall be allocated and the licenses

therefor shall be issued only to bona fide Philippine exporters and importers, subject to the provisions of

section 9 of said Executive Order and to such rules and regulations as may be prescribed by the Import

Control Administration and the Central Bank of the Philippines.

2 According to a communication dated April 24, 1957 of the then Acting Secretary of Foreign Affairs

(Exhibit F), Japan was subrogated into the rights, obligations and interests of the SCAP and Japan on

March 19, 1952, and since then the agreements have been extended mutatis mutandis 18 times, the

current one to expire at the end of April, 1957.

3 The Trade Agreement, dated May 18, 1950, provides, inter alia, for the adoption of a trade plan, on an

annual basis, between the Philippines and Occupied Japan; that, subject to exceptions, all trade shall be

conducted in accordance with the Financial Agreement between the two countries, and through specified

channels; that subject to exchange, import and export control restrictions, both countries would permit

the importation from and exportation to each other of the commodities specified in the trade plan, within

specified limits; that consultations would be held for necessary modifications of the trade plan; that a

machinery would be established to ensure accurate and up-to-date information regarding the operation

of the agreement and to insure the implementation of the trade plan; and that the parties would do

everything feasible to ensure compliance with the export-import control, exchange control and such

other controls pertaining to international trade as may be in force in their respective territories from time

to time. The agreement, likewise, specifies the method of revision or cancellation thereof, the procedure

for the review of the trading position between the parties and the time of its effectivity (upon "exchange

of formal ratification", pending which, "it shall take effect upon signature by authorized representatives

as modus vivendi between the parties").

4 The Financial Agreement, dated May 18, 1950, provides, inter alia, that all transactions covered by the

Trade Agreement shall be invoiced in U.S.A. dollars and shall be entered into the account of each party

to be maintained in the books of the principal financial agent banks designated by each party; that debits

and credits shall be offset against each other in said accounts and payments shall be made on the net

balance only; that the Agreement may be revised in the manner therein stated; that the representatives of

both parties may negotiate and conclude of the agreement; and that the same shall be effective upon

exchange of formal ratification, pending which it shall take effect upon signature of the agreement as

a modus vivendibetween the parties.

Citation. I.C.J., 1994 I.C.J. 112

Brief Fact Summary. A claim to settle a dispute involving sovereignty over certain islands, sovereign rights

over certain shoals and delimitation of a maritime boundary was filed by Qatar (P) in the International Court of

Justice against Bahrain (D). The Courts jurisdiction was however disputed by Bahrain (D).

Synopsis of Rule of Law. An international agreement creating rights and obligations can be constituted by the

signatories to the minutes of meetings and letters exchanged.

Facts. A dispute concerning sovereignty over certain islands and shoals, including the delimitation of a

maritime boundary were issues upon which Qatar (P) and Bahrain (D) sought to resolve for 20 years. During

this period of time, letters were exchanged and acknowledged by both parties heads of state. A Tripartite

Committee for the purpose of approaching the International Court of Justice.. was formed by

representatives of Qatar (P), Bahrain (D) and Saudi Arabia. Though the committee met several time, it failed to

produce an agreement on the specific terms for submitting the dispute to the Court. Eventually, the meetings

culminated in Minutes, which reaffirmed the process and stipulated that the parties may submit the dispute

to the I.C.J. after giving the Saudi King six months to resolve the dispute. The Courts jurisdiction was disputed

by Bahrain (D) when Qatar (P) filed a claim in the I.C.J.

Issue. Yes. An international agreement creating rights and obligations can be constituted by the signatories to

the minutes of meetings and letters exchanged. Though Bahrain (D) argued that the Minutes were only a record

of negotiation and could not serve as a basis for the I.C.J.s jurisdiction, both parties agreed that the letters

constituted an international agreement with binding force.

International agreements do not take a single form under the Vienna Convention on the Law of Treaties, and the

Court has enforced this rule in the past. In this case, the Minutes not only contain the record of the meetings

between the parties, it also contained the reaffirmation of obligations previously agreed to and agreement to

allow the King of Saudi Arabia to try to find a solution to the dispute during a six-month period, and indicated

the possibility of the involvement of the I.C.J. The Minutes stipulated commitments to which the parties agreed,

thereby creating rights and obligations in international law. This is the basis therefore of the existence of

international agreement.

On the part of the Bahrains (D) Foreign Minister, he argued that no agreement existed because he never

intended to enter an agreement fails on the grounds that he signed documents creating rights and obligations for

his country. Also, Qatars (P) delay in applying to the United Nations Secretariat does not indicate that Qatar

(P) never considered the Minutes to be an international agreement as Bahrain (D) argued. However, the

registration and non-registration with the Secretariat does not have any effect on the validity of the agreement.

Held. Yes. An international agreement creating rights and obligations can be constituted by the signatories to

the minutes of meetings and letters exchanged. Though Bahrain (D) argued that the Minutes were only a record

of negotiation and could not serve as a basis for the I.C.J.s jurisdiction, both parties agreed that the letters

constituted an international agreement with binding force.

Discussion. There is no doubt that language plays a vital role in influencing a courts decision as to whether an

agreement has been entered into and in this particular case, the language was the main focus of the I.C.J and it

was the contents of the Minutes that persuaded the I.C.J. to reject the Bahrain foreign ministers (D) claim that

he did not intend to enter into an agreement. Where this is compared to general U.S. contract law, where a claim

by one of the parties that no contract existed because there was no meeting of the minds might be the ground

upon which a U.S. court would consider whether a contract did exist with more care and thought than the I.C.J.

gave the foreign minister of Bahrains (D) claims.

CASE CONCERNING MARITIME DELIMITATION IN THE AREA BETWEEN

GREENLAND AND JAN MAYEN

(DENMARK v. NORWAY)

Judgment of 14 June 1993

In its Judgment on the case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen,

the Court, by fourteen votes to one, fixed a delimitation line for both the continental shelf and the fishery zones

of Denmark and of Norway in the area between Greenland and Jan Mayen.

*

The Court was composed as follows: President Sir Robert Jennings; Vice-President Oda; Judges Ago,

Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry,

Ranjeva, Ajibola; Judge ad hoc Fischer; Registrar Valencia-Ospina.

*

The full text of the operative paragraph is as follows:

"94. For these reasons,

THE COURT,

By fourteen votes to one,

Decides that, within the limits defined that, within the limits defined

1. to the north by the intersection of the line of equidistance between the coasts of Eastern Greenland and the

western coasts of Jan Mayen with the 200-mile limit calculated as from the said coasts of Greenland, indicated

on sketch-map No. 2 as point A, and

[Sketch-map: Greenland/Jan Mayen - 200-mile limit - 64kb]

2. to the south, by the 200-mile limit around Iceland, as claimed by Iceland, between the points of intersection

of that limit with the two said lines, indicated on sketch-map No. 2 as points B and D,

the delimitation line that divides the continental shelf and fishery zones of the Kingdom of Denmark and the

Kingdom of Norway is to be drawn as set out in paragraphs 91 and 92 of the present Judgment.

IN FAVOUR: President Sir Robert Jennings; Vice-President Oda; Judges Ago, Schwebel, Bedjaoui, Ni,

Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva, Ajibola.

AGAINST: Judge ad hoc Fischer."

*

Vice-President Oda, Judges Evensen, Aguilar Mawdsley and Ranjeva appended declarations to the Judgment of

the Court.

Vice-President Oda, Judges Schwebel, Shahabuddeen, Weeramantry and Ajibola appended separate opinions to

the Judgment of the Court.

Judge ad hoc Fischer appended a dissenting opinion to the Judgment of the Court.

*

* *

Review of the proceedings and summary of facts (paras. 1-21) (paras. 1-21)

The Court outlines the successive stages of the proceedings as from the date the case was brought before it

(paras. 1-8) and sets out the submissions of the Parties (paras. 9-10). It recalls that Denmark, instituting

proceedings on 16 August 1988, had asked the Court

"to decide, in accordance with international law, where a single line of delimitation shall be drawn between

Denmark's and Norway's fishing zones and continental shelf areas in the waters between Greenland and

Jan Mayen";

and had, in the course of the proceedings made the following submissions:

"To adjudge and declare that Greenland is entitled to a full 200-mile fishery zone and continental shelf area vis-

-vis the island of Jan Mayen; and consequently

To draw a single line of delimitation of the fishing zone and continental shelf area of Greenland in the waters

between Greenland and Jan Mayen at a distance of 200 nautical miles measured from Greenland's baseline."

"If the Court, for any reason, does not find it possible to draw the line of delimitation requested in

paragraph (2), Denmark requests the Court to decide, in accordance with international law and in light of the

facts and arguments developed by the Parties, where the line of delimitation shall be drawn between Denmark's

and Norway's fisheries zones and continental shelf areas in the waters between Greenland and Jan Mayen, and

to draw that line."

and that Norway had asked the Court to adjudge and declare that the median line constituted the boundary for

the purposes of delimitation of the relevant areas of both the continental shelf and the fisheries zone between

Norway and Denmark in the region between Jan Mayen and Greenland. The Court then describes the maritime

areas, which have featured in the arguments of the Parties (paras. 11-21).

The contention that a delimitation already exists (paras. 22-40) (paras. 22-40)

A principal contention of Norway is that a delimitation has already been established between Jan Mayen and

Greenland. The effect of treaties in force between the Parties - a bilateral Agreement of 1965 and the 1958

Geneva Convention on the Continental Shelf - has been, according to Norway, to establish the median line as

the boundary of the continental shelf of the Parties, and the practice of the Parties in respect of fishery zones has

represented a recognition of existing continental shelf boundaries as being also applicable to the exercise of

fisheries jurisdiction. These contentions, that the applicability of a median line delimitation in the relations

between the Parties has long been recognized in the context both of the continental shelf and of fishery zones

and that a boundary is already in place, will need to be examined first.

The 1965 Agreement (paras. 23-30) (paras. 23-30)

On 8 December 1965 Denmark and Norway concluded an Agreement concerning the delimitation of the

continental shelf. Article 1 of that Agreement reads:

"The boundary between those parts of the continental shelf over which Norway and Denmark respectively

exercise sovereign rights shall be the median line which at every point is equidistant from the nearest points of

the baselines from which the breadth of the territorial sea of each Contracting Party is measured."

Article 2 provides that "In order that the principle set forth in Article 1 may be properly applied, the boundary

shall consist of straight lines" which are then defined by eight points, enumerated with the relevant geodetic co-

ordinates and as indicated on the chart thereto annexed; the lines so defined lie in the Skagerrak and part of the

North Sea, between the mainland territories of Denmark and Norway. Norway contends that the text of

Article 1 is general in scope, unqualified and without reservation, and that the natural meaning of that text must

be "to establish definitively the basis for all boundaries which would eventually fall to be demarcated" between

the Parties. In its view Article 2, which admittedly relates only to the continental shelves of the two mainlands,

"is concerned with demarcation". Norway deduces that the Parties are and remain committed to the median line

principle of the 1965 Agreement. Denmark on the other hand argues that the Agreement is not of such general

application and that its object and purpose is solely the delimitation in the Skagerrak and part of the North Sea

on a median line basis.

The Court considers that the object and purpose of the 1965 Agreement was to provide simply for the question

of the delimitation in the Skagerrak and part of the North Sea, where the whole seabed (with the exception of

the "Norwegian Trough") consists of continental shelf at a depth of less than 200 metres and that there is

nothing to suggest that the Parties had in mind the possibility that a shelf boundary between Greenland and

Jan Mayen might one day be required, or intended that their Agreement should apply to such a boundary.

After examining the Agreement in its context, in the light of its object and purpose, the Court also takes into

account the subsequent practice of the Parties, especially a subsequent treaty in the same field concluded in

1979. It considers that if the intention of the 1965 Agreement had been to commit the Parties to the median line

in all ensuing shelf delimitations, it would have been referred to in the 1979 Agreement. The Court is thus of the

view that the 1965 Agreement did not result in a median line delimitation of the continental shelf between

Greenland and Jan Mayen.

The 1958 Geneva Convention on the Continental Shelf (paras. 31-32) (paras. 31-32)

The validity of the argument that the 1958 Convention resulted in a median line continental shelf boundary

already "in place" between Greenland and Jan Mayen is found to depend on whether the Court finds that there

are "special circumstances" as contemplated by the Convention, a question to be dealt with later. The Court

therefore turns to the arguments which Norway bases upon the conduct of the Parties and of Denmark in

particular.

Conduct of the Parties (paras. 33-40) (paras. 33-40)

Norway contends that, up to some ten years ago at least, the Parties by their "conjoint conduct" had long

recognized the applicability of a median line delimitation in their mutual relations. The Court observes that it is

the conduct of Denmark which has primarily to be examined in this connection.

The Court is not persuaded that a Danish Decree of 7 June 1963 concerning the Exercise of Danish Sovereignty

over the Continental Shelf supports the argument which Norway seeks to base on conduct. Nor do a Danish Act

of 17 December 1976 or an Executive Order of 14 May 1980, issued pursuant to that Act, commit Denmark to

acceptance of a median line boundary in the area. An Agreement of 15 June 1979 between the Parties

concerning the delimitation between Norway and the Faroe Islands does not commit Denmark to a median line

boundary in a quite different area. Danish statements made in the course of diplomatic contacts and during the

Third United Nations Conference on the Law of the Sea had also not prejudiced Denmark's position.

Summing up, the Court concludes that the Agreement entered into between the Parties on 8 December 1965

cannot be interpreted to mean, as contended by Norway, that the Parties have already defined the continental

shelf boundary as the median line between Greenland and Jan Mayen. Nor can the Court attribute such an effect

to the provision of Article 6, paragraph 1, of the 1958 Convention, so as to conclude that by virtue of that

Convention the median line is already the continental shelf boundary between Greenland and Jan Mayen. Nor

can such a result be deduced from the conduct of the Parties concerning the continental shelf boundary and the

fishery zone. In consequence, the Court does not consider that a median line boundary is already "in place",

either as the continental shelf boundary, or as that of the fishery zone. The Court therefore proceeds to examine

the law applicable at present to the delimitation question still outstanding between the Parties.

The applicable law (paras. 41-48)

The Court notes that the Parties differ on the question whether what is required is one delimitation line or two

lines, Denmark asking for "a single line of delimitation of the fishery zone and continental shelf area", and

Norway contending that the median line constitutes the boundary for delimitation of the continental shelf, and

constitutes also the boundary for the delimitation of the fishery zone, i.e., that the two lines would coincide, but

the two boundaries would remain conceptually distinct.

The Court refers to the Gulf of Maine case in which it was asked what was "the course of the single maritime

boundary that divides the continental shelf and fishery zones of Canada and the United States of America". It

observes that in the present case it is not empowered - or constrained - by any agreement for a single dual-

purpose boundary and that it has already found that there is not a continental shelf boundary already in place. It

therefore goes on to examine separately the two strands of the applicable law: the effect of Article 6 of the 1958

Convention if applied at the present time to the delimitation of the continental shelf boundary, and then the

effect of the application of the customary law which governs the fishery zone.

The Court further observes that the applicability of the 1958 Convention to the continental shelf delimitation in

this case does not mean that Article 6 of that Convention can be interpreted and applied either without reference

to customary law on the subject, or wholly independently of the fact that a fishery zone boundary is also in

question in these waters. After examining the case-law in this field and the provisions of the 1982

United Nations Convention on the Law of the Sea, the Court notes that the statement (in those provisions) of an

"equitable solution" as the aim of any delimitation process reflects the requirements of customary law as regards

the delimitation both of continental shelf and of exclusive economic zones.

The provisional median line (paras. 49-52) (paras. 49-52)

Turning first to the delimitation of the continental shelf the Court finds that it is appropriate, both on the basis of

Article 6 of the 1958 Convention and on the basis of customary law concerning the continental shelf, to begin

with the median line as a provisional line and then to ask whether "special circumstances" require any

adjustment or shifting of that line. After subsequent examination of the relevant precedents with regard to the

delimitation of the fishery zones, it appears to the Court that, both for the continental shelf and for the fishery

zones in this case, it is proper to begin the process of delimitation by a median line provisionally drawn.

"Special circumstances" and "relevant circumstances" (paras. 54-58) (paras. 54-58)

The Court then observes that it is called upon to examine every particular factor of the case which might

suggest an adjustment or shifting of the median line provisionally drawn. The aim in each and every situation

must be to achieve "an equitable result". From this standpoint, the 1958 Convention requires the investigation of

any "special circumstances"; the customary law based upon equitable principles on the other hand requires the

investigation of "relevant circumstances".

The concept of "special circumstances" was included in the 1958 Geneva Conventions on the Territorial Sea

and the Contiguous Zone (Art. 12) and on the Continental Shelf (Art. 6, paras. 1 and 2). It was and remains

linked to the equidistance method there contemplated. It is thus apparent that special circumstances are those

circumstances which might distort the result produced by an unqualified application of the equidistance

principle. General international law has employed the concept of "relevant circumstances". This concept can be

defined as a fact necessary to be taken into account, in the delimitation process, to the extent that it affects the

rights of the Parties over certain maritime areas. Although it is a matter of categories which are different in

origin and in name, there is inevitably a tendency towards assimilation between the special circumstances of

Article 6 of the 1958 Convention and the relevant circumstances under customary law, and this if only because

they both are intended to enable the achievement of an equitable result. This must be especially true in the case

of opposite coasts where, as has been seen, the tendency of customary law, like the terms of Article 6, has been

to postulate the median line as leading prima facie to an equitable result.

The Court then turns to the question whether the circumstances of the present case require adjustment or

shifting of that line, taking into account the arguments relied on by Norway to justify the median line, and the

circumstances invoked by Denmark as justifying the 200-mile line.

Disparity of length of coasts (paras. 61-71) (paras. 61-71)

A first factor of a geophysical character, and one which has featured most prominently in the argument of

Denmark, in regard to both continental shelf and fishery zone, is the disparity or disproportion between the

lengths of the "relevant coasts".

Prima facie, a median line delimitation between opposite coasts results in general in an equitable solution,

particularly if the coasts in question are nearly parallel. There are however situations - and the present case is

one such - in which the relationship between the length of the relevant coasts, and the maritime areas generated

by them by application of the equidistance method, is so disproportionate that it has been found necessary to

take this circumstance into account in order to ensure an equitable solution.

In the light of the existing case-law the Court comes to the conclusion that the striking difference in length of

the relevant coasts in this case (which had been calculated as approximately 9 (for Greenland) to 1 (for

Jan Mayen)) constitutes a special circumstance within the meaning of Article 6, paragraph 1, of the 1958

Convention. Similarly, as regards the fishery zones, the Court is of the opinion that the application of the

median line leads to manifestly inequitable results.

It follows that, in the light of the disparity of coastal lengths, the median line should be adjusted or shifted in

such a way as to effect a delimitation closer to the coast of Jan Mayen. It should, however, be made clear that

taking account of the disparity of coastal lengths does not mean a direct and mathematical application of the

relationship between the length of the coastal front of eastern Greenland and that of Jan Mayen. Nor do the

circumstances require the Court to uphold the claim of Denmark that the boundary line should be drawn

200 miles from the baselines on the coast of eastern Greenland, i.e., a delimitation giving Denmark maximum

extension of its claim to continental shelf and fishery zone. The result of such a delimitation would be to leave

to Norway merely the residual part of the "area relevant to the delimitation dispute" as defined by Denmark.

The delimitation according to the 200-mile line calculated from the coasts of eastern Greenland may from a

mathematical perspective seem more equitable than that effected on the basis of the median line, regard being

had to the disparity in coastal lengths; but this does not mean that the result is equitable in itself, which is the

objective of every maritime delimitation based on law. The Court observes in this respect that the coast of

Jan Mayen, no less than that of eastern Greenland, generates potential title to the maritime areas recognized by

customary law, i.e., in principle up to a limit of 200 miles from its baselines. To attribute to Norway merely the

residual area left after giving full effect to the eastern coast of Greenland, would run wholly counter to the rights

of Jan Mayen and also to the demands of equity.

At this stage of its analysis, the Court thus considers that neither the median line nor the 200-mile line

calculated from the coasts of eastern Greenland in the relevant area should be adopted as the boundary of the

continental shelf or of the fishery zone. It follows that the boundary line must be situated between these two

lines described above, and located in such a way that the solution obtained is justified by the special

circumstances confronted by the 1958 Convention on the Continental Shelf, and equitable on the basis of the

principles and rules of customary international law. The Court will therefore next consider what other

circumstances may also affect the position of the boundary line.

Access to resources (paras. 72-78) (paras. 72-78)

The Court then turns to the question whether access to the resources of the area of overlapping claims

constitutes a factor relevant to the delimitation. The Parties are essentially in conflict over access to fishery

resources; the principal exploited fishery resource being capelin. The Court has therefore to consider whether

any shifting or adjustment of the median line, as fishery zone boundary, would be required to ensure equitable

access to the capelin fishery resources.

It appears to the Court that the seasonal migration of the capelin presents a pattern which, north of the 200-mile

line claimed by Iceland, may be said to centre on the southern part of the area of overlapping claims,

approximately between that line and the parallel of 72_ North latitude, and that the delimitation of the fishery

zone should reflect this fact. It is clear that no delimitation in the area could guarantee to each Party the

presence in every year of fishable quantities of capelin in the zone allotted to it by the line. It appears however

to the Court that the median line is too far to the west for Denmark to be assured of an equitable access to the

capelin stock, since it would attribute to Norway the whole of the area of overlapping claims. For this reason

also the median line thus requires to be adjusted or shifted eastwards. The Court is further satisfied that while

ice constitutes a considerable seasonal restriction of access to the waters, it does not materially affect access to

migratory fishery resources in the southern part of the area of overlapping claims.

Population and economy (paras. 79-80) (paras. 79-80)

Denmark considers as also relevant to the delimitation the major differences between Greenland and Jan Mayen

as regards population and socio-economic factors.

The Court observes that the attribution of maritime areas to the territory of a State, which, by its nature, is

destined to be permanent, is a legal process based solely on the possession by the territory concerned of a

coastline. The Court recalls in the present dispute the observations it had occasion to make, concerning

continental shelf delimitation, in the Continental Shelf (Libyan Arab Jamahiriya/Malta) case, namely that a

delimitation should not be influenced by the relative economic position of the two States in question, in such a

way that the area of continental shelf regarded as appertaining to the less rich of the two States would be

somewhat increased in order to compensate for its inferiority in economic resources.

The Court therefore concludes that, in the delimitation to be effected in this case, there is no reason to consider

either the limited nature of the population of Jan Mayen or socio-economic factors as circumstances to be taken

into account.

Security (para. 81) (para. 81)

Norway has argued, in relation to the Danish claim to a 200-mile zone off Greenland, that "the drawing of a

boundary closer to one State than to another would imply an inequitable displacement of the possibility of the

former State to protect interests which require protection".

In the Libya/Malta case, the Court was satisfied that

"the delimitation which will result from the application of the present Judgment is ... not so near to the coast of

either Party as to make questions of security a particular consideration in the present case" (I.C.J. Reports 1985,

p. 42, para. 51).

The Court is similarly satisfied in the present case as regards the delimitation to be described below.

Conduct of the Parties (paras. 82-86) (paras. 82-86)

Denmark has contended that the conduct of the Parties is a highly relevant factor in the choice of the

appropriate method of delimitation where such conduct has indicated some particular method as being likely to

produce an equitable result. In this respect, Denmark relies on the maritime delimitation between Norway and

Iceland, and on a boundary line established by Norway between the economic zone of mainland Norway and

the fishery protection zone of the Svalbard Archipelago (Bear Island - Bjrnya).

So far as Bear Island is concerned, this territory is situated in a region unrelated to the area of overlapping

claims now to be delimited. In that respect, the Court observes that there can be no legal obligation for a party

to a dispute to transpose, for the settlement of that dispute, a particular solution previously adopted by it in a

different context. As for the delimitation between Iceland and Norway, international law does not prescribe,

with a view to reaching an equitable solution, the adoption of a single method for the delimitation of the

maritime spaces on all sides of an island, or for the whole of the coastal front of a particular State, rather than, if

desired, varying systems of delimitation for the various parts of the coast. The conduct of the parties will in

many cases therefore have no influence on such a delimitation. For these reasons, the Court concludes that the

conduct of the Parties does not constitute an element which could influence the operation of delimitation in the

present case.

The definition of the delimitation line (paras. 87-93) (paras. 87-93)

Having thus completed its examination of the geophysical and other circumstances brought to its attention as

appropriate to be taken into account for the purposes of the delimitation of the continental shelf and the fishery

zones, the Court has come to the conclusion that the median line, adopted provisionally for both as first stage in

the delimitation, should be adjusted or shifted to become a line such as to attribute a larger area of maritime

space to Denmark than would the median line. The line drawn by Denmark 200 nautical miles from the

baselines of eastern Greenland would however be excessive as an adjustment, and would be inequitable in its

effects. The delimitation line must therefore be drawn within the area of overlapping claims, between the lines

proposed by each Party. The Court will therefore now proceed to examine the question of the precise position of

that line.

To give only a broad indication of the manner in which the definition of the delimitation line should be fixed,

and to leave the matter for the further agreement of the Parties, as urged by Norway, would in the Court's view

not be a complete discharge of its duty to determine the dispute. The Court is satisfied that it should define the

delimitation line in such a way that any questions which might still remain would be matters strictly relating to

hydrographic technicalities which the Parties, with the help of their experts, can certainly resolve. The area of

overlapping claims in this case is defined by the median line and the 200-mile line from Greenland, and those

lines are both geometrical constructs; there might be differences of opinion over basepoints, but given defined

basepoints, the two lines follow automatically. The median line provisionally drawn as first stage in the

delimitation process has accordingly been defined by reference to the basepoints indicated by the Parties on the

coasts of Greenland and Jan Mayen. Similarly the Court may define the delimitation line, now to be indicated,

by reference to that median line and to the 200-mile line calculated by Denmark from the basepoints on the

coast of Greenland. Accordingly the Court will proceed to establish such a delimitation, using for this purpose

the baselines and co-ordinates which the Parties themselves have been content to employ in their pleadings and

oral argument.

[Para. 91] The delimitation line is to lie between the median line and the 200-mile line from the baselines of

eastern Greenland. It will run from point A in the north, the point of intersection of those two lines, to a point on

the 200-mile line drawn from the baselines claimed by Iceland, between points D (the intersection of the median

line with the 200-mile line claimed by Iceland) and B (the intersection of Greenland's 200-mile line and the

200-mile line claimed by Iceland) on sketch-map No. 2. For the purposes of definition of the line, and with a

view to making proper provision for equitable access to fishery resources, the area of overlapping claims will be

divided into three zones, as follows. Greenland's 200-mile line (between points A and B on sketch-map No. 2)

shows two marked changes of direction, indicated on the sketch-map as points I and J; similarly the median line

shows two corresponding changes of direction, marked as points K and L. Straight lines drawn between point I

and point K, and between point J and point L, thus divide the area of overlapping claims into three zones, to be

referred to, successively from south to north, as zone 1, zone 2 and zone 3.

[Para. 92] The southernmost zone, zone 1, corresponds essentially to the principal fishing area. In the view of

the Court, the two Parties should enjoy equitable access to the fishing resources of this zone. For this purpose a

point, to be designated point M, is identified on the 200-mile line claimed by Iceland between points B and D,

and equidistant from those points, and a line is drawn from point M so as to intersect the line between point J

and L, at a point designated point N, so as to divide zone 1 into two parts of equal area. The dividing line is

shown on sketch-map No. 2 as the line between points N and M. So far as zones 2 and 3 are concerned, it is a

question of drawing the appropriate conclusions, in the application of equitable principles, from the

circumstance of the marked disparity in coastal lengths, discussed in paragraphs 61 to 71 above. The Court

considers that an equal division of the whole area of overlapping claims would give too great a weight to this

circumstance. Taking into account the equal division of zone 1, it considers that the requirements of equity

would be met by the following division of the remainder of the area of overlapping claims: a point (O on

sketch-map No. 2) is to be determined on the line between I and K such that the distance from I to O is twice

the distance from O to K; the delimitation of zones 2 and 3 is then effected by the straight line from point N to

this point O, and the straight line from point O to point A.

The Court sets out the co-ordinates of the various points, for the information of the Parties.

__________

Declaration of Vice-President Oda

In his declaration Judge Oda explains that, the Court having taken a decision on the substance of the case

despite his own view that the Application should have been dismissed as misconceived, he voted with the

majority because the line chosen lay within the infinite range of possibilities open to selection by the Parties had

they reached agreement.

__________

Declaration of Judge Evensen

In his concurring declaration, Judge Evensen stresses that the United Nations Law of the Sea Convention of

10 December 1982 expresses a number of principles that must be considered governing principles of

international law although the Convention has not yet entered into force.

Jan Mayen must be regarded an island and not solely a rock. Article 121, paragraph 2, of the Convention

provides that in principle islands shall be governed by the same legal rgime as "other land territory". Thus Jan Mayen must be taken into consideration in the delimitation of the maritime zones vis--vis Greenland, a continental size area.

It lies within the Court's measure of discretion to establish a system of equitable access to fish resources in areas

of overlapping claims. In his declaration, Judge Evensen endorses the proposed system for the distribution of

these resources of the adjacent seas.

__________

Declaration of Judge Aguilar

Judge Aguilar voted for the Judgment because he concurs with its reasoning. He is, however, not persuaded that

the delimitation line as drawn by the Court provides for an equitable result. In his opinion, the difference in the

lengths of the coasts of Greenland and Jan Mayen is such that Greenland (Denmark) should have received a

larger proportion of the disputed area. Given the importance attached to this factor in the Judgment, it would

have been logical at least to make an equal distribution of zones 1, 2 and 3.

__________

Declaration of Judge Ranjeva

Judge Ranjeva appended a declaration to the Court's Judgment indicating that he had voted in favour of the

operative part and subscribed to the arguments on which it is based. In his view, the result was an equitable one.

He would nevertheless have wished the Court to be more explicit in stating its reasons for drawing the

delimitation line adopted. For in the exercise of its discretionary power, the Court could indeed have been more

specific as regards the criteria, methods and rules of law applied. Also, he would have preferred the Court to

make it clear that it was in relation to the rights of the Parties to their maritime spaces that the special or

relevant circumstances could or sometimes should be taken into account in a delimitation operation; for these

were facts affecting the rights of States, as recognized in positive law, either in their entirety, or in the exercise

of the powers relating thereto. The proper administration of justice and legal security depend on the certainty of

the legal rule.

On the other hand, in the view of Judge Ranjeva, although the Court - and rightly so - had no need to explore

the legal scope of statements made by a State at the Third Nations Conference on the Law of the Sea, the Court

should not, considering the exceptional procedure adopted on that occasion, have taken account of positions

which were unofficial only and entirely non-committing.

__________

Separate opinion of Vice-President Oda

In his separate opinion Judge Oda emphasizes that the Court can be endowed with the competence to delimit a

maritime boundary only by specific agreement of both parties concerned. Denmark's unilateral application

ought, consequently, to have been dismissed. Denmark's submissions furthermore supposed, wrongly, that the

exclusive economic zone (EEZ) could co-exist with a fishery zone of the kind eliminated from the 1982

Convention on the Law of the Sea. Its request for a single-line boundary also overlooked the separate

background and evolution of the continental shelf rgime.

In that respect Judge Oda considers that the Court wrongly followed the Parties in applying Article 6 of the

1958 Convention, which relates to a superseded concept of the continental shelf. What applies today to the

delimitation of either the continental shelf or the EEZ is the customary law reflected in the 1982 Convention,

which leaves the Parties free to reach agreement on any line they choose, since the reference to an "equitable

solution" is not expressive of a rule of law.

A third party called upon to settle a disagreement over delimitation may either suggest guidelines to the parties

or itself choose a line providing an equitable solution. In Judge Oda's view the Court, as a judicial body

applying international law, is however precluded from taking the second course unless mandated by both parties

to do so. It should not have so proceeded on an application which relied on declarations under Article 36,

paragraph 2, of the Statute, since such declarations confer jurisdiction only for strictly legal disputes, whereas

an act of delimitation requires an assessment ex aequo et bono.

Judge Oda further criticizes the Court's concentration on the area of overlap between claims, to the neglect of

the whole relevant area, as well as its failure to give any good reason why access to fishing resources should

have been taken into account in relation to a boundary applying to the continental shelf.

__________

Separate opinion of Judge Schwebel

Judge Schwebel, in his separate opinion, maintains that the Court's Judgment is questionable with respect to the

following three questions:

1. Should the law of maritime delimitation be revised to introduce and apply distributive justice?

2. Should the differing extent of the lengths of opposite coastlines determine the position of the line of

delimitation?

3. Should maximalist claims be rewarded?

However, he concluded that, since what is equitable appears to be as variable as the climate of The Hague,

ground for dissent from the Court's Judgment is lacking.

__________

Separate opinion of Judge Shahabuddeen

In his separate opinion, Judge Shahabuddeen says that he understands the Judgment to be upholding Norway's

view that the 1958 conventional delimitation formula means that, in the absence of agreement and of special

circumstances, the boundary is the median line. He gives his reasons for agreeing with this view and for

declining to accept that the conventional formula is to be equated with the customary formula. He is not

persuaded that the equation suggested by the 1977 Anglo-French arbitral decision should be followed.

He thinks that the concept of natural prolongation, considered in a physical sense, has placed limits on recourse

to proportionality. In his view, the movement away from the physical aspect of natural prolongation should be

followed by a relaxation of those limits.

Judge Shahabuddeen gives his reasons for holding that the decision of the Court is not ex aequo et bono. He has

some doubts as to whether a single line is possible in the absence of agreement by the Parties to such a line

being established. He agrees that in the state of the technical material before the Court, an actual delimitation

line should not be drawn, but considers that, had the material been adequate, the Court could competently have

drawn such a line notwithstanding Norway's non-consent to that being done.

Finally, in his view, where Parties have failed to agree on a boundary, the resulting dispute as to what is the

boundary is susceptible of judicial settlement via a unilateral Application made under Article 36, paragraph 2,

of the Statute of the Court.

__________

Separate opinion of Judge Weeramantry

Judge Weeramantry, in his separate opinion, expresses his agreement with the Judgment of the Court and

examines the special role played by equity in the Court's reasoning and conclusions. As the use of equity in

maritime delimitation is currently passing through a critical phase, the opinion studies its operation in this case

from several angles. It looks at the relevance to the Judgment of equitable principles, equitable procedures,

equitable methods and equitable results. The opinion stresses that equity operates, in the

Judgment, infra legem and not contra legem or ex aequo et bono, and traces the various routes of entry of equity

into maritime delimitation. It distinguishes the a priori employment of equity to work towards a result from

its a posteriori employment, to check a result thus obtained, and sets out the various uses of equity and its

various methods of operation in this case. It also analyses the Judgment in the light of the several component

elements of an equitable decision.

Examining the various uncertainties in the use of equity in maritime delimitation, the opinion seeks to show that

these do not constitute a sufficient reason for rejecting the use of equity as an aid both to particular delimitations

such as the present and to the general development of the law of the sea.

The opinion also looks at the particular invocations, by treaty and otherwise, of equity in maritime delimitation.

It concludes by examining the concept of equity in global terms, showing that a search of global traditions of

equity can yield perspectives of far-reaching importance to the developing law of the sea.

__________

Separate opinion of Judge Ajibola

In his separate opinion, Judge Ajibola, while strongly supporting the Court's decision, considers that some areas

of the Judgment should be elaborated. He first refers to some procedural issues relating to jurisdiction: Could

the Court draw any line, and should the line have been a dual-purpose single line or two lines? Should only a

declaratory judgment have been given? Can the Court engage in a delimitation without the agreement of the

Parties? However that might be, the Court, once convinced that there is an issue in dispute, ought to proceed to

a decision on the merits.

As to the question of whether there should be one line or two, the development of the law of maritime

delimitation and the relevant case-law supports the Court's conclusions.

Characterizing the Danish submissions as more a claim of entitlement than a call for delimitation, Judge Ajibola

points out that, despite the disparity of size, the entitlement of Norway in respect of Jan Mayen is equally

justifiable and recognized in international law.

He then examines the equitable principles in maritime boundary delimitation, coming to the conclusion that

they are the fundamental principles which now apply to maritime delimitation in customary international law

and that they can be expected to underlie its future development.

Finally Judge Ajibola examines the concepts of "special circumstances" under the 1958 Convention and of

"relevant circumstances" under customary international law, concluding that there is effective equivalence

between, on the one hand, the triad of agreement, special circumstances and equidistance and, on the other, that

of agreement, relevant circumstances and equitable principles, with the last-mentioned constituting the ultimate

rule under modern customary law.

__________

Dissenting opinion of Judge ad hoc Fischer

Judge Fischer has voted against the decision as he considers that the most equitable solution would have been a

delimitation at a distance of 200 nautical miles from East Greenland. His main reasons are the following.

He does not think that the Court has sufficiently taken the difference between the relevant coasts of East

Greenland (approximately 524 kilometres) and Jan Mayen (approximately 58 kilometres) into consideration.

The ratio is more than 9 to 1 in favour of Greenland whereas the ratio of allocated area is only 3 to 1. The

delimitation 200 miles from Greenland would have allocated areas to the Parties in the ratio of 6 to 1 which,

according to Judge Fischer, would have been in conformity with the generally accepted principle of

proportionality.

Contrary to the standpoint of the Court Judge Fischer considers that the fundamental difference between

Greenland and Jan Mayen with respect to their demographic, socio-economic and political structures should

have been taken into consideration. He has underlined that Greenland is a viable human society with a

population of 55,000 which is heavily dependent on fisheries and with political autonomy whereas Jan Mayen

has no population in the proper sense of the word.

Judge Fischer furthermore considers that the Iceland-Jan Mayen delimitation which respects Iceland's 200-mile

zone is highly important for the present case. As the relevant factors in the two cases are very similar it would

have been just and equitable to draw the delimitation line in the present case in a manner similar to the Iceland-

Jan Mayen delimitation.

Judge Fischer is opposed to the method of using a median line as a provisionally drawn line. Judicial practice is

in his opinion ambiguous and no such method can be deduced from Article 6 of the 1958 Convention on the

Continental Shelf.

Finally, Judge Fischer considers the method of dividing the area of overlapping claims into three zones and of

dividing each of these zones according to different criteria to be artificial and without foundation in

international law.

NUCLEAR TESTS CASE (NEW ZEALAND v. FRANCE)

Judgment of 20 December 1974

In its judgment in the case concerning Nuclear Tests (New Zealand v. France), the Court, by 9 votes to 6, has

found that the claim of New Zealand no longer had any object and that the Court was therefore not called upon

to give a decision thereon.

In the reasoning of its Judgment, the Court adduces inter alia the following considerations: Even before turning

to the questions of jurisdiction and admissibility, the Court has first to consider the essentially preliminary

question as to whether a dispute exists and to analyse the claim submitted to it (paras. 22-24 of Judgment); the

proceedings instituted before the Court on 9 May 1973 concerned the legality of atmospheric nuclear tests

conducted by France in the South Pacific (para. 16 of Judgment); the original and ultimate objective of New

Zealand is to obtain a termination of those tests (paras. 25-31 of Judgment); France, by various public

statements made in 1974, has announced its intention, following the completion of the 1974 series of

atmospheric tests, to cease the conduct of such tests (paras. 33-44 of Judgment); the Court finds that the

objective of New Zealand has in effect been accomplished, inasmuch as France has undertaken the obligation to

hold no further nuclear tests in the atmosphere in the South Pacific (paras. 50-55 of Judgment); the dispute

having thus disappeared, the claim no longer has any object and there is nothing on which to give judgment

(paras. 58-62 of Judgment).

Upon the delivery of the Judgment, the Order of 22 June 1973 indicating interim measures of protection ceases

to be operative and the measures in question lapse (para. 64 of Judgment).

*

* *

For the purposes of the Judgment the Court was composed as follows: President Lachs; Judges Forster, Gros,

Bengzon, Petrn, Onyeama, Dillard, Ignacio-Pinto, de Castro, Morozov, Jimnez de Archaga, Sir Humphrey Waldock, Nagendra Singh and Ruda; Judge ad hoc Sir Garfield Barwick.

Of the nine Members of the Court who voted for the decision, Judges Forster, Gros, Petrn and Ignacio-Pinto appended separate opinions.

Of the six judges who voted against the decision, Judges Onyeama, Dillard, Jimnez de Archaga and Sir Humphrey Waldock appended a joint dissenting opinion, and Judges de Castro and Sir Garfield Barwick

dissenting opinions.

These opinions make known and substantiate the positions adopted by the judges in question.

*

* *

Also on 20 December 1974, the Court made two Orders regarding applications submitted by the Government of

Fiji for permission to intervene in the two cases concerning Nuclear Tests (Australia v. France; New

Zealand v. France). In these Orders, which were not read in public, the Court found, following the above-

mentioned Judgments, that these applications lapsed and that no further action thereon was called for. These

Orders were voted unanimously by the Court in the same composition as for the Judgments. Judges Gros,

Onyeama, Jimnez de Archaga and Sir Garfield Barwick appended declarations to them, and Judges Dillard and Sir Humphrey Waldock a joint declaration.

Although the Court delivered a separate Judgment for each of the two Nuclear Tests cases referred to above,

they are analysed together in the summary which follows.

*

* *

Procedure (paras. 1-20 of each Judgment)

In its Judgment, the Court recalls that on 9 May 1973 the Applicant instituted proceedings against France in

respect of French atmospheric nuclear tests in the South Pacific. To found the jurisdiction of the Court, the

Application relied on the General Act for the Pacific Settlement of International Disputes concluded at Geneva

in 1928 and Articles 36 and 37 of the Statute of the Court. By a letter of 16 May 1973 France stated that it

considered that the Court was manifestly not competent in the case, that it could not accept its jurisdiction and

that it requested the removal of the case from the Court's list.

The Applicant having requested the Court to indicate interim measures of protection, the Court, by an Order of

22 June 1973, indicated inter alia that, pending its final decision, France should avoid nuclear tests causing the

deposit of radio-active fall-out on the territory of the Applicant. By various communications the Applicant has

informed the Court that further series of atmospheric tests took place in July-August 1973 and June-September

1974.

By the same Order of 22 June 1973, the Court, considering that it was necessary to begin by resolving the

questions of the Court's jurisdiction and of the admissibility of the Application, decided that the proceedings

should first be addressed to these questions. The Applicant filed a Memorial and presented argument at public

hearings. It submitted that the Court had jurisdiction and that the Application was admissible. France did not

file any Counter-Memorial and was not represented at the hearings; its attitude was defined in the above-

mentioned letter of 16 May 1973.

With regard to the French request that the case be removed from the list - a request which the Court, in its Order

of 22 June 1973, had duly noted while feeling unable to accede to it at that stage - the Court observes that it has

had the opportunity of examining the request in the light of the subsequent proceedings. It finds that the present

case is not one in which the procedure of summary removal from the list would be appropriate. It is to be

regretted that France has failed to appear in order to put forward its arguments, but the Court nevertheless has to

proceed and reach a conclusion, having regard to the evidence brought before it and the arguments addressed to

it by the Applicant, and also to any documentary or other evidence which might be relevant.

Object of the Claim (paras. 21-41 of the Judgment in the Australian case, and 21-44 in the New Zealand case)

The present phase of the proceedings concerns the jurisdiction of the Court and admissibility of the Application.

In examining such questions, the Court is entitled, and in some circumstances may be required, to go into other

questions which may not be strictly capable of classification as matters of jurisdiction or admissibility but are of

such a nature as to require examination in priority to those matters. By virtue of an inherent jurisdiction which

the Court possesses qua judicial organ, it has first to examine a question which it finds to be essentially

preliminary, namely the existence of a dispute for, whether or not the Court has jurisdiction in the present case,

the resolution of that question could exert a decisive influence on the continuation of the proceedings. It is

therefore necessary for it to make a detailed analysis of the claim submitted in the Application, which is

required by Article 40 of the Statute to indicate the subject of the dispute.

In its Application, Australia asks the Court:

- to adjudge and declare that "the carrying out of further atmospheric nuclear weapon tests in the South Pacific

Ocean is not consistent with applicable rules of international law" and to order "that the French Republic shall

not carry out any further such tests".

New Zealand, in its Application, asks the Court:

- "to adjudge and declare: That the conduct by the French Government of nuclear tests in the South Pacific

region that give rise to radio-active fall-out constitutes a violation of New Zealand's rights under international

law, and that these rights will be violated by any further such tests".

It is essential to consider whether the Applicant requests a judgment which would only state the legal

relationship between the Parties or a judgment requiring one of the Parties to take, or refrain from taking, some

action. The Court has the power to interpret the submissions of the Parties and to exclude, when necessary,

certain elements which are to be viewed, not as indications of what the Party is asking the Court to decide, but

as reasons advanced why it should decide in the sense contended for. In the present case, if account is taken of

the Application as a whole, the diplomatic exchanges between the Parties in recent years, the arguments of the

Applicant before the Court and the public statements made on its behalf during and after the oral proceedings, it

becomes evident that the Applicant's original and ultimate objective was and has remained to obtain a

termination of French atmospheric nuclear tests in the South Pacific.

In these circumstances, the Court is bound to take note of further developments, both prior to and subsequent to

the close of the oral proceedings, namely certain public statements by French authorities, of which some were

mentioned before the Court at public hearings and others were made subsequently. It would have been possible

for the Court, had it considered that the interests of justice so required, to have afforded the Parties the

opportunity, e.g., by reopening the oral proceedings, of addressing to the Court comments on the statements

made since the close of those proceedings. Such a course, however, would have been justified only if the matter

dealt with in those statements had been completely new or had not been raised during the proceedings, which is

manifestly not the case. The Court is in possession not only of the statements made by the French authorities in

question but also of the views of the Applicant on them.

The first of these statements is contained in a communiqu which was issued by the Office of the President of the French Republic on 8 June 1974 and transmitted in particular to the Applicant: ". . . in view of the stage

reached in carrying out the French nuclear defence programme France will be in a position to pass on to the

stage of underground explosions as soon as the series of tests planned for this summer is completed". Further

statements are contained in a Note from the French Embassy in Wellington (10 June), a letter from the President

of France to the Prime Minister of New Zealand (1 July), a press conference given by the President of the

Republic (25 July), a speech made by the Minister for Foreign Affairs in the United Nations General Assembly

(25 September) and a television interview and press conference by the Minister for Defence (16 August and 11

October). The Court considers that these statements convey an announcement by France of its intention to cease

the conduct of atmospheric nuclear tests following the conclusion of the 1974 series.

Status and Scope of the French Statements (paras. 42-60 of the Judgment in the Australian case, and 45-63 of

the Judgment in the New Zealand case)

It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may

have the effect of creating legal obligations. Nothing in the nature of a quid pro quo, nor any subsequent

acceptance, nor even any reaction from other States is required for such declaration to take effect. Neither is the

question of form decisive. The intention of being bound is to be ascertained by an interpretation of the act. The

binding character of the undertaking results from the terms of the act and is based on good faith interested

States are entitled to require that the obligation be respected.

In the present case, the Applicant, while recognizing the possibility of the dispute being resolved by a unilateral

declaration on the part of France, has stated that, in its view, the possibility of further atmospheric tests has been

left open, even after the French statements mentioned above. The Court must, however, form its own view of

the meaning and scope intended to be given to these unilateral declarations. Having regard to their intention and

to the circumstances in which they were made, they must be held to constitute an engagement of the French

State. France has conveyed to the world at large, including the Applicant, its intention effectively to terminate

its atmospheric tests. It was bound to assume that other States might take note of these statements and rely on

their being effective. It is true that France has not recognized that it is bound by any rule of international law to

terminate its tests, but this does not affect the legal consequences of the statements in question, the unilateral

undertaking resulting from them cannot be interpreted as having been made in implicit reliance on an arbitrary

power of reconsideration.

Thus the Court faces a situation in which the objective of the Applicant has in effect been accomplished,

inasmuch as the Court finds that France has undertaken the obligation to hold no further nuclear tests in the

atmosphere in the South Pacific. The Applicant has sought an assurance from France that the tests would cease

and France, on its own initiative, has made a series of statements to the effect that they will cease. The Court

concludes that France has assumed an obligation as to conduct, concerning the effective cessation of the tests,

and the fact that the Applicant has not exercised its right to discontinue the proceedings does not prevent the

Court from making its own independent finding on the subject. As a court of law, it is called upon to resolve

existing disputes between States: these disputes must continue to exist at the time when the Court makes its

decision. In the present case, the dispute having disappeared, the claim no longer has any object and there is

nothing on which to give judgment.

Once the Court has found that a State has entered into a commitment concerning its future conduct, it is not the

Court's function to contemplate that it will not comply with it. However, if the basis of the Judgment were to be

affected, the Applicant could request an examination of the situation in accordance with the provisions of the

Statute.

*

* *

For these reasons, the Court finds that the claim no longer has any object and that it is therefore not called upon

to give a decision thereon (para. 62 of the Judgment in the Australian case, and para. 65 of the Judgment in the

New Zealand case).

GEN. AVELINO I. RAZON, JR.,

Chief, Philippine National Police

(PNP); Police Chief

Superintendent RAUL

CASTAEDA, Chief, Criminal

Investigation and Detection Group

(CIDG); Police Senior

Superintendent LEONARDO A.

ESPINA, Chief, Police Anti-Crime

and Emergency Response

(PACER); and GEN. JOEL R.

GOLTIAO, Regional Director of

ARMM, PNP, Petitioners,

- versus -

MARY JEAN B. TAGITIS, herein

represented by ATTY. FELIPE P.

ARCILLA, JR., Attorney-in-Fact,

Respondent.

G.R. No. 182498

Present:

PUNO, C.J.,

CARPIO,

CORONA,

CARPIO MORALES,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,

ABAD, and

VILLARAMA, JR., JJ.

Promulgated:

December 3, 2009

x-----------------------------------------------------------------------------------------x

D E C I S I O N

BRION, J.:

We review in this petition for review on certiorari[1]

the decision dated March 7, 2008 of the Court of

Appeals (CA) in C.A-G.R. AMPARO No. 00009.[2]

This CA decision confirmed the enforced disappearance of

Engineer Morced N. Tagitis (Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary Jean B.

Tagitis (respondent). The dispositive portion of the CA decision reads:

WHEREFORE, premises considered, petition is hereby GRANTED. The Court

hereby FINDS that this is an enforced disappearance within the meaning of the United Nations

instruments, as used in the Amparo Rules.The privileges of the writ of amparo are hereby

extended to Engr. Morced Tagitis.

Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal

Investigation and Detention Group (CIDG) who should order COL. JOSE VOLPANE PANTE,

CIDG-9 Chief, Zamboanga City, to aid him; (2) respondent GEN. AVELINO I. RAZON,

Chief, PNP, who should order his men, namely: (a) respondent GEN. JOEL GOLTIAO,

Regional Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE

TAGITIS, and (c) respondent SR. SUPERINTENDENT LEONARDO A. ESPINA, Chief,

Police Anti-Crime and Emergency Response, to aid him as their superior- are

hereby DIRECTED to exert extraordinary diligence and efforts, not only to protect the life,

liberty and security of Engr. Morced Tagitis, but also to extend the privileges of the writ

of amparo to Engr. Morced Tagitis and his family, and to submit a monthly report of their

actions to this Court, as a way of PERIODIC REVIEW to enable this Court to monitor the

action of respondents.

This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER

YANO, Commanding General, Philippine Army, and as to respondent GEN. RUBEN

RAFAEL, Chief Anti-Terror Task Force Comet, Zamboanga City, both being with the military,

which is a separate and distinct organization from the police and the CIDG, in terms of

operations, chain of command and budget.

This Decision reflects the nature of the Writ of Amparo a protective remedy against violations or threats of

violation against the rights to life, liberty and security.[3]

It embodies, as a remedy, the courts directive to police

agencies to undertake specified courses of action to address the disappearance of an individual, in this case,

Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint criminal culpability for the disappearance;

rather, it determines responsibility, or at least accountability, for the enforced disappearance for purposes of

imposing the appropriate remedies to address the disappearance.Responsibility refers to the extent the actors

have been established by substantial evidence to have participated in whatever way, by action or omission, in an

enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the

appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability, on the

other hand, refers to the measure of remedies that should be addressed to those who exhibited involvement in

the enforced disappearance without bringing the level of their complicity to the level of responsibility defined

above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of

disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the

investigation of the enforced disappearance. In all these cases, the issuance of the Writ of Amparo is justified by

our primary goal of addressing the disappearance, so that the life of the victim is preserved and his liberty and

security are restored.

We highlight this nature of a Writ of Amparo case at the outset to stress that the unique situations that call for

the issuance of the writ, as well as the considerations and measures necessary to address these situations, may

not at all be the same as the standard measures and procedures in ordinary court actions and proceedings. In this

sense, the Rule on the Writ of Amparo[4]

(Amparo Rule) issued by this Court is unique. The Amparo Rule

should be read, too, as a work in progress, as its directions and finer points remain to evolve through time and

jurisprudence and through the substantive laws that Congress may promulgate.

THE FACTUAL ANTECEDENTS

The background facts, based on the petition and the records of the case, are summarized below.

The established facts show that Tagitis, a consultant for the World Bank and the Senior Honorary Counselor for

the Islamic Development Bank (IDB) Scholarship Programme, was last seen in Jolo, Sulu.Together with

Arsimin Kunnong (Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of October

31, 2007 from a seminar in Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis

asked Kunnong to buy him a boat ticket for his return trip the following day to Zamboanga. When Kunnong

returned from this errand, Tagitis was no longer around.[5]

The receptionist related that Tagitis went out to buy

food at around 12:30 in the afternoon and even left his room key with the desk.[6]

Kunnong looked for Tagitis

and even sent a text message to the latters Manila-based secretary who did not know of Tagitis whereabouts and

activities either; she advised Kunnong to simply wait.[7]

On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of Muslim studies and

Tagitis fellow student counselor at the IDB, reported Tagitis disappearance to the Jolo Police Station.[8]

On

November 7, 2007, Kunnong executed a sworn affidavit attesting to what he knew of the circumstances

surrounding Tagitis disappearance.[9]

More than a month later (on December 28, 2007), the respondent filed a Petition for the Writ

of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla.[10]

The petition was

directed against Lt. Gen. Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon,

Chief, Philippine National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation and

Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime and Emergency Response;

Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force

Comet [collectively referred to as petitioners]. After reciting Tagitis personal circumstances and the facts

outlined above, the petition went on to state:

x x x x

7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early

lunch but while out on the street, a couple of burly men believed to be police intelligence

operatives, forcibly took him and boarded the latter on a motor vehicle then sped

away without the knowledge of his student, Arsimin Kunnong;

8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension house, and was

surpri