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RIGHT OF PASSAGE OVER INDIAN TERRITORY CASE (Merits)
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SOURCES OF INTERNATIONAL LAW
RIGHT OF PASSAGE OVER INDIAN TERRITORY CASE (Merits)
Portugal v. India ICJ Reports 1960, p.6
The case concerning Right of Passage over Indian Territory (Portugal v. India) was
referred to the Court by an Application filed on 22 December 1955. In that Application, the
Government of Portugal stated that its territory in the Indian Peninsula included two enclaves
surrounded by the Territory of India, Dadra and Nagar-Aveli. It was in respect of the
communications between those enclaves and the coastal district of Daman, and between each
other, that the question arose of a right of passage in favour of Portugal through Indian
territory and of a correlative obligation binding upon India. The Application stated that in July
1954 the Government of India prevented Portugal from exercising that right of passage and
that Portugal was thus placed in a position in which it became impossible for it to exercise its
rights of sovereignty over the enclaves.
In its judgment the Court referred to the submissions filed by Portugal which in the first
place requested the Court to adjudge and declare that a right of passage was possessed by
Portugal and must be respected by India; this right was invoked by Portugal only to the extent
necessary for the exercise of its sovereignty over the enclaves, and it was not contended that
passage was accompanied by any immunity and made clear that such passage remained
subject to the regulation and control of India, which must be exercised in good faith, India
being under an obligation not to prevent the transit necessary for the exercise of Portuguese
sovereignty. The Court then considered the date with reference to which it must ascertain
whether the right invoked existed or did not exist. The question as to the existence of a right
of passage having been put to the Court in respect of the dispute which had arisen with regard
to obstacles placed by India in the way of passage, it was the eve of the creation of those
obstacles that must be selected as the standpoint from which to certain whether or not such a
right existed; the selection of that date would leave open the arguments of India regarding the
subsequent lapse of the right of passage.
Portugal next asked the Court to adjudge and declare that India had not complied with the
obligations incumbent upon it by virtue of the right of passage. But the Court pointed out that
it had not been asked, either in the Application or in the final Submissions of the Parties, to
decide whether or not India's attitude towards those who had instigated the over-throw of
Portuguese authority at Dadra and Nagar-Haveli in July and August 1954 constituted a breach
of the obligation, said to be binding upon it under general international law, to adopt suitable
measures to prevent the incursion of subversive elements into the territory of another State.
Turning then to the future, the Submissions of Portugal requested the Court to decide that
India must end the measures by which it opposed the exercise of the right of passage or, if the
Court should be of opinion that there should be a temporary suspension of the right, to hold
that that suspension should end as soon as the course of events disclosed that the justification
for the suspension had disappeared. Portugal had previously invited the Court to hold that the
Chairman, Rly. Board v. Chandrima Das 2
arguments of India concerning its right to adopt an attitude of neutrality, the application of the
United Nations Charter and the existence in the enclaves of a local government were without
foundation. The Court, however, considered that it was no part of its judicial function to
declare in the operative part of its Judgment that any of those arguments was or was not well
founded.
India had contended in the first place that the right of passage claimed by Portugal was
too vague and contradictory to enable the Court to pass judgment upon it by the application of
the legal rules enumerated in Article 38 (1) of the Statute. There was no doubt that the day-to-
day exercise of the right might give rise to delicate questions of application but that was not,
in the view of the Court, sufficient ground for holding that the right was not susceptible of
judicial determination.
Portugal had relied on the Treaty of Poona of 1779 and on sanads (decrees) issued by the
Maratha ruler in 1783 and 1785, as having conferred on Portugal sovereignty over the
enclaves with the right of passage to them; India had objected that what was alleged to be the
Treaty of 1779 was not validly entered into and never became in law a treaty binding upon the
Marathas. The Court, however, found that the Marathas did not at any time cast any doubt
upon the validity or binding character of the Treaty. India had further contended that the
Treaty and the two sanads did not operate to transfer sovereignty over the assigned villages to
Portugal but only conferred, with respect to the villages, a revenue grant. The Court was
unable to conclude from an examination of the various texts of the Treaty of 1779 that the
language employed therein was intended to transfer sovereignty; the expressions used in the
two sanads, on the other hand, established that what was granted to the Portuguese was only a
revenue tenure called a jagir or saranjam, and not a single instance had been brought to the
notice of the Court in which such a grant had been construed as amounting to a cession of
sovereignty. There could, therefore, be no question of any enclave or of any right of passage
for the purpose of exercising sovereignty over enclaves.
The Court found that the situation underwent a change with the advent of the British as
sovereign of that part of the country in place of the Marathas: Portuguese sovereignty over the
villages had been recognized by the British in fact and by implication and had subsequently
been tacitly recognized by India. As a consequence the villages had acquired the character of
Portuguese enclaves within Indian territory and there had developed between the Portuguese
and the territorial sovereign with regard to passage to the enclaves a practice upon which
Portugal relied for the purpose of establishing the right of passage claimed by it. It had been
objected on behalf of India that no local custom could be established between only two States,
but the Court found it difficult to see why the number of States between which a local custom
might be established on the basis of long practice must necessarily be larger than two.
It was common ground between the Parties that during the British and post-British
periods the passage of private persons and civil officials had not been subject to any
restrictions beyond routine control. Merchandise other than arms and ammunition had also
passed freely subject only, at certain times, to customs regulations and such regulation and
control as were necessitated by considerations of security or revenue. The Court therefore
concluded that, with regard to private persons, civil officials and goods in general there had
existed a constant and uniform practice allowing free passage between Daman and the
Chairman, Rly. Board v. Chandrima Das 3
enclaves, it was, in view of all the circumstances of the case, satisfied that that practice had
been accepted as law by the Parties and had given rise to a right and a correlative obligation.
As regards armed forces, armed police and arms and ammunition, the position was
different.
It appeared that, during the British and post-British periods, Portuguese armed forces and
armed police had not passed between Daman and the enclaves as of right, and that after 1878
such passage could only take place with previous authorization by the British and later by
India, accorded either under a reciprocal arrangement already agreed to, or in individual
cases: it had been argued that that permission was always granted, but there was nothing in
the record to show that grant of permission was incumbent on the British or on India as an
obligation.
A treaty of 26 December 1878 between Great Britain and Portugal had laid down that the
armed forces of the two Governments should not enter the Indian dominions of the other,
except in specified cases or in consequence of a formal request made by the party desiring
such entry. Subsequent correspondence showed that this provision was applicable to passage
between Daman and the enclaves: it had been argued on behalf of Portugal that on twenty-three occasions armed forces crossed British territory between Daman and the enclaves
without obtaining permission, but in 1890, the Government of Bombay had forwarded a
complaint to the effect that armed men in the service of the Portuguese Government were in
the habit of passing without formal request through a portion of British territory en route from
Daman to Nagar-Aveli which would appear to constitute a breach of the Treaty; on
22 December, the Governor-General of Portuguese India had replied: "Portuguese troops never cross British territory without previous permission", and the Secretary-General of the
Government of Portuguese India stated on 1 May 1891: "On the part of this Government
injunctions will be given for the strictest observance of … the Treaty". The requirement of a
formal request before passage of armed forces could take place had been repeated in an
agreement of 1913. With regard to armed police, the Treaty of 1878 and the Agreement of
1913 had regulated passage on the basis of reciprocity, and an agreement of 1920 had
provided that armed police below a certain rank should not enter the territory of the other
party without consent previously obtained; finally, an agreement of 1940 concerning passage
of Portuguese armed police over the road from Daman to Nagar-Aveli had provided that, if
the party did not exceed ten in number, intimation of its passage should be given to the British
authorities within twenty-four hours, but that, in other cases, "the existing practice should be
followed and concurrence of the British authorities should be obtained by prior notice as
heretofore."
As regards arms and ammunition, the Treaty of 1878 and rules framed under the Indian
Arms Act of 1878 prohibited the importation of arms, ammunition or military stores from
Portuguese India and its export to Portuguese India without a special licence. Subsequent
practice showed that this provision applied to transit between Daman and the enclaves.
The finding of the Court that the practice established between the Parties had required for
the passage of armed forces, armed police and arms and ammunition the permission of the
British or Indian authorities rendered it unnecessary for the Court to determine whether or
Chairman, Rly. Board v. Chandrima Das 4
not, in the absence of the practice that actually prevailed, general international custom or
general principles of law recognized by civilized nations, which had also been invoked by
Portugal, could have been relied upon by Portugal in support of its claim to a right of passage
in respect of these categories. The Court was dealing with a concrete case having special
features: historically the case went back to a period when, and related to a region in which,
the relations between neighbouring States were not regulated by precisely formulated rules
but were governed largely by practice: finding a practice clearly established between two
States, which was accepted by the Parties as governing the relations between them, the Court
must attribute decisive effect to that practice. The Court was, therefore, of the view that no
right of passage in favour of Portugal involving a correlative obligation on India had been
established in respect of armed forces, armed police and arms and ammunition.
Having found that Portugal had, in 1954, a right of passage in respect of private persons,
civil officials and goods in general, the Court lastly proceeded to consider whether India had
acted contrary to its obligation resulting from Portugal's right of passage in respect of any of
these categories. Portugal had not contended that India had acted contrary to that obligation
before July 1954, but it complained that passage was thereafter denied to Portuguese nationals
of European origin, to native Indian Portuguese in the employ of the Portuguese Government
and to a delegation that the Governor of Daman proposed, in July 1954, to send to Nagar-
Aveli and Dadra. The Court found that the events which had occurred in Dadra on 21-22 July
1954 and which had resulted in the overthrow of Portuguese authority in that enclave had
created tension in the surrounding Indian district, having regard to that tension, the Court was
of the view that India's refusal of passage was covered by its power of regulation and control
of the right of passage of Portugal.
In its Judgment, the Court:
(a) found, by 11 votes to 4, that Portugal had in 1954 a right of passage over intervening
Indian territory between the enclaves of Dadra and Nagar-Aveli and the coastal district of
Daman and between these enclaves, to the extent necessary for the exercise of Portuguese
sovereignty over the enclaves and subject to the regulation and control of India, in respect of
private persons, civil of officials and goods in general;
(b) found, by 8 votes to 7, that Portugal did not have in 1954 such a right of passage in
respect of armed forces, armed police and arms and ammunition;
(c) found, by 9 votes to 6, that India had not acted contrary to its obligations resulting
from Portugal's right of passage in respect of private persons, civil officials and goods in
general.
* * * * *
Chairman, Rly. Board v. Chandrima Das 5
ASYLUM CASE
Columbia v. Peru ICJ Reports 1950, p. 266
The origin of the Colombian-Peruvian Asylum case lies in the asylum granted on
January 3rd, 1949, by the Colombian Ambassador in Lima to M. Victor Raúl Haya de la
Torre, head of a political party in Peru, the American People's Revolutionary Alliance.
On October 3rd, 1948, a military rebellion broke out in Peru; it was suppressed the same
day. On the following day, a decree was published charging a political party, the American
People's Revolutionary Party, with having prepared and directed the rebellion. The head of
the Party, Victor Raúl Haya de la Torre, was denounced as being responsible. With other
members of the party, he was prosecuted on a charge of military rebellion. As he was still at
liberty on November 16th, summonses were published ordering him to appear before the
Examining Magistrate. On January 3rd, 1949, he was granted asylum in the Colombian
Embassy in Lima. Meanwhile, on October 27th, 1948, a Military Junta had assumed power in
Peru and had published a decree providing for Courts-martial for summary judgment in cases
of rebellion, sedition and rioting; but this decree was not applied to the legal proceedings
against Haya de la Torre and others, and it has been declared before the Court that this Decree
was not applicable to the said proceedings. Furthermore, during the period from October 4th
to the beginning of February, 1949, Peru was in a state of siege.
On January 4th, 1949, the Colombian Ambassador in Lima informed the Peruvian
Government of the asylum granted to Haya de la Torre, at the same time he asked that a safe-
conduct be issued to enable the refugee to leave the country. On January 14th, he further
stated that the refugee had been qualified as a political refugee. The Peruvian Government
disputed this qualification and refused to grant a safe-conduct. A diplomatic correspondence
ensued which terminated in the signature, in Lima, on August 31st, 1949, of an Act by which
the two Governments agreed to submit the case to the International Court of Justice.
Colombia maintained before the Court that, according to the Convention in force - the
Bolivarian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum the
Montevideo Convention of 1933 on Political Asylum - and according to American
International Law, she was entitled to qualify the nature of the offence for the purposes of the
asylum. In this connection, the Court considered that, if the qualification in question were
provisional, there could be no doubt on that point: the diplomatic representative would
consider whether the required conditions had been satisfied, he would pronounce his opinion
and if that opinion were contested, a controversy would then arise which might be settled
according to the methods provided by the Parties.
But it resulted from the proceedings in the case that Colombia claimed the right of
unilateral and definitive qualification binding upon Peru. The first of the Treaties which it
invoked - the Bolivarian Agreement, which is the Treaty on extradition - confined itself in
one Article to recognizing the institution of asylum in accordance with the principles of
international law. But these principles do not entail the right of unilateral qualification. On the
other hand, when the Bolivarian Agreement laid down rules for extradition, it was not
Chairman, Rly. Board v. Chandrima Das 6
possible to deduce from them conclusions concerning diplomatic asylum. In the case of
extradition, the refugee was on the territory of the State of refuge: if asylum were granted to
him, such decision would not derogate from the sovereignty of the States in which the offence
was committed. On the contrary, in the case of diplomatic asylum, the refugee was on the
territory of the State in which he had committed the offence: the decision to grant asylum
derogated from the sovereignty of the territorial State and removed the offender from the
jurisdiction of that State.
As for the second treaty invoked by Colombia - the Havana Convention - it did not
recognize the right of unilateral qualification either explicitly or implicitly. The third treaty -
the Convention of Montevideo - had not been ratified by Peru and could be invoked against
that country.
The Colombian Government has finally invoked ‘American International law in General’.
In addition to the rules arising from agreements, it has relied on an alleged regional or local
custom to Latin American States.
The party which relies on a custom of this kind must prove that this custom is established
in such a manner that it has become binding on the other party, that it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the
expression of a right appertaining to the State granting asylum and a duty incumbent on the
territorial state. This follows from Article 38 of the Statute of the Court, which refers to
international custom as evidence of a general practice accepted as law.
Colombia had failed to prove the existence, either regionally or locally, of a constant and
uniform practice of unilateral qualification as a right of the State of refuge and an obligation
upon the territorial State. The facts submitted to the Court disclosed too much contradiction
and fluctuation to make it possible to discern therein a usage peculiar to Latin America and
accepted as law.
It therefore followed that Colombia, as the State granting asylum, was not competent to
qualify the nature of the offence by a unilateral and definitive decision binding on Peru.
Colombia also maintained that Peru was under the obligation to issue a safe-conduct to
enable the refugee to leave the country in safety. The Court, setting aside for the time being
the question of whether asylum was regularly granted and maintained, noted that the clause in
the Havana Convention which provided guaranties for the refugee was applicable solely to a
case where the territorial State demanded the departure of the refugee from its territory: it was
only after such a demand that the diplomatic Agent who granted asylum could, in turn,
require a safe-conduct. There was, of course, a practice according to which the diplomatic
Agent immediately requested a safe-conduct, which was granted to him: but this practice,
which was to be explained by reasons of expediency, laid no obligation upon the territorial
State.
In the present case, Peru had not demanded the departure of the refugee and was therefore
not bound to deliver a safe-conduct.
In a counter-claim, Peru had asked the Court to declare that asylum had been granted to
Haya de la Torre in violation of the Havana Convention, first, because Haya de la Torre was
Chairman, Rly. Board v. Chandrima Das 7
accused, not of a political offence but of a common crime and, secondly, because the urgency
which was required under the Havana Convention in order to justify asylum was absent in
that case.
Having observed that Peru had at no time asked for the surrender of the refugee, the Court
examined the first point. In this connection, the Court noted that the only charge against the
refugee was that of military rebellion, which was not a common crime. Consequently, the
Court rejected the counter-claim of Peru on that point, declaring it to be ill-founded.
On the question of urgency, the Court, having observed that the essential justification of
asylum lay in the imminence or persistence of a danger to the person of the refugee, analysed
the facts of the case.
Three months had elapsed between the military rebellion and the grant of asylum. There
was no question of protecting Haya de la Torre for humanitarian considerations against the
violent and uncontrolled action of irresponsible elements of the population, the danger which
confronted Haya de la Torre was that of having to face legal proceedings. The Havana
Convention was not intended to protect a citizen who had plotted against the institutions of
his country from regular legal proceedings. It was not sufficient to be accused of a political offence in order to be entitled to receive asylum; asylum could only intervene against the
action of justice in cases where arbitrary action was substituted for the rule of law. It had not
been proved that the situation in Peru at the time implied the subordination of justice to the
executive or the abolition of judicial guarantees.
Besides, the Havana Convention was unable to establish a legal system which would
guarantee to persons accused of political offences the privilege of evading their national
jurisdiction. Such a conception would come into conflict with one of the oldest traditions of
Latin America, that of non-intervention. For if the Havana Convention had wished to ensure
general protection to all persons prosecuted for political crimes in the course of revolutionary
events, for the sole reason that it should be presumed that such events interfere with the
administration of justice, this would lead to foreign interference of a particularly offensive
nature in the domestic affairs of States.
As for the numerous cases cited by Colombia, the Court was of opinion that
considerations of convenience or political expediency seemed to have prompted the territorial
State to recognize asylum without such as decision being dictated by any feeling of legal
obligation. Asylum in Latin America was an institution which owed its development largely
to extra-legal factors.
Whilst declaring that at the time at which asylum was granted, on January 3rd, 1949,
there was no case of urgency within the meaning of the Havana Convention, the Judgment
declared that this in no way constituted a criticism of the Colombian Ambassador. His
appreciation of the case was not a relevant factor to the question of the validity of the asylum:
only the objective reality of the facts was of importance.
The Court therefore came to the conclusion that the grant of asylum was not in
conformity with Article 2, paragraph 2, of the Havana Convention.
* * * * *
Chairman, Rly. Board v. Chandrima Das 8
EFFECT OF AWARDS OF COMPENSATION MADE BY THE
UNITED NATIONS ADMINISTRATIVE TRIBUNAL
ADVISORY OPINION OF I.C.J. (July 13, 1954) 1954 International Law Reports 310
In 1953 the Administrative Tribunal of the United Nations gave a numbers of awards in
the matter of complaints of certain members of the Secretariat of the United Nations who had
been discharged by the Secretary-General of the United Nations and who alleged that their
discharge was illegal. In some of these cases the Tribunal found that the complaint was
justified and made awards in favour of the officials concerned. The question having arisen before the General Assembly whether it was bound to comply with the awards, the General
Assembly decided, in December 1953, to submit the following legal questions to the
International Court of Justice for an Advisory Opinion:
“(1) Having regard to the Statute of the United Nations Administrative Tribunal
and to any other relevant instruments and to the relevant records, has the General
Assembly the right on any grounds to refuse to give effect to an award of compensation made by that Tribunal in favour of a staff member of the United
Nations whose contract of service has been terminated without his assent?
(2) If the answer given by the Court to question (1) is in the affirmative, what are
the principal grounds upon which the General Assembly could lawfully exercise such
a right?”
The first question is strictly limited in scope. It relates solely to an award made by the Administrative Tribunal of the United Nations in favour of a staff member of the United
Nations whose contract of service has been terminated without his assent. According to
Article 2, paragraph I, of the Statute of that Tribunal, it ‘shall be competent to hear and pass
judgment upon applications alleging non-observance of contracts of employment of staff
members of the Secretariat of the United Nations or of the terms of appointment of such staff
member’. A comparison between this provision and the terms of the first question submitted
to the Court shows that an award as defined by that question must be considered as falling
within the competence of the Tribunal as defined by Article 2. A claim arising out of the
termination of a contract of service without the assent of the staff member must, in fact, either
fall within the term ‘non-observance of contracts of employment’, or relate to ‘the terms of
appointment’ of the staff member. The Question concerns, in other words, only awards which
are made within the limits of the competence of the Tribunal as determined by Article 2. The
Court does not therefore seem to be requested to express its view with regard to awards which
may exceed the scope of that statutory competence.
The first question is further limited to awards which grant compensation to a staff
member, and it relates solely to awards in favour of a staff member whose contract of service
has been terminated without his assent. It does not include awards in other disputes arising
out of a contract of service. The Court is requested to say whether the General Assembly has
the right to refuse to give effect to an award as defined by the question. The term ‘right’ must
signify legal right. The Court is asked to say whether the General Assembly is legally entitled
Chairman, Rly. Board v. Chandrima Das 9
to refuse to give effect to such awards. The Court is not called upon to express any view with
regard to the particular awards which have given rise to the present Advisory Opinion.
This examination of the first question shows that the Court is requested to consider the
general and abstract question whether the General Assembly is legally entitled to refuse to
give effect to an award of compensation made by the Administrative Tribunal, properly
constituted and acting within the limits of its statutory competence. The answer to this
question depends on the provisions of the Statute of the Tribunal as adopted by the General
Assembly on November 24, 1949, and on the Staff Regulations and Rules as in force on
December 9, 1953. But the Court will also take into account the amendments which were
made to the Statute on the latter date. The Court will first consider whether the Tribunal is
established either as a judicial body, or as an advisory organ or a mere subordinate committee
of the General Assembly.
Article 1 of the Statute provides : ‘A Tribunal is established by the present Statute to be
known as the United Nations Administrative Tribunal’. This Tribunal shall, according to
Article 2, paragraph 1, ‘be competent to hear and pass judgment upon applications’,
whereupon the paragraph determines the limits of the Tribunal’s competence as already
mentioned above.
Article 2, paragraph 3, prescribes:
‘In the event of a dispute as to whether the Tribunal has competence, the matter shall
be settled by the decision of the Tribunal’.
Article 10 contains the following provisions :
2. The judgments shall be final and without appeal’. 3. The judgments shall state the reasons on which they are based’.
These provisions and the terminology used are evidence of the judicial nature of the
Tribunal. Such terms as ‘tribunal’, ‘judgment’, competence to ‘pass judgment upon
applications’, are generally used with respect to judicial bodies. The above-mentioned
provisions of Articles 2 and 10 are of an essentially judicial character and conform with rules
generally laid down in statutes or laws issued for courts of justice, such as, for instance, in the Statute of the International Court of Justice, Article 36, paragraph 6, Article 56, paragraph 1,
Article 60, first sentence. They provide a striking contrast to Staff Rule 111.1 of the United
Nations.
These provisions prescribe both in the original and in the amended text that the Tribunal
shall, if it finds that the application is well founded, order the rescinding of the decision
contested or the specific performance of the obligation invoked. As the power to issue such orders to the chief administrative officer of the Organization could hardly have been
conferred on an advisory organ or a subordinate committee, these provisions confirm the
judicial character of the Tribunal. The amended text contains certain modifications of the
Tribunal’s powers and procedure, but these modifications have no bearing upon the judicial
nature of its functions.
This examination of the relevant provisions of the Statute shows that the Tribunal is
established, not as an advisory organ or a mere subordinate committee of the General
Chairman, Rly. Board v. Chandrima Das 10
Assembly, but as an independent and truly judicial body pronouncing final judgments without
appeal within the limited field of its functions.
According to a well-established and generally recognized principle of law, a judgment
rendered by such a judicial body is res judicata and has binding force between the parties to
the dispute. It must therefore be examined who are to be regarded as parties bound by an
award of compensation made in favour of a staff member of the United Nations whose
contract of service has been terminated without has assent.
Such a contract of service is concluded between the staff member concerned and the
Secretary-General in his capacity as the chief administrative officer of the United Nations
Organization, acting on behalf of that Organization as its representative. When the Secretary-
General concludes such a contract of service with a staff member, he engages the legal
responsibility of the Organization, which is the juridical person on whose behalf he acts. If he
terminates the contract of service without the assent of the staff member and this action
results in a dispute which is referred to the Administrative Tribunal, the parties to this dispute
before the Tribunal are the staff member concerned and the United Nations Organization,
represented by the Secretary-General, and these parties will become bound by the judgment
of the Tribunal. This judgment is, according to Article 10 of the Tribunal’s Statute, final and
without appeal. The Statute has provided for no kind of review. As this final judgment has
binding force on the United Nations Organization as the juridical person responsible for the
proper observance of the contract of service, that Organization becomes legally bound to
carry out the judgment and to pay the compensation awarded to the staff member. It follows
that the General Assembly, as an organ of the United Nations, must likewise be bound by the
judgment.
The Statute of the Administrative Tribunal has not provided for any kind of review of
judgments, which according to Article 10, paragraph 2, shall be final and without appeal. This
rule is similar to the corresponding rule in the Statute of the Administrative Tribunal of the
League of Nations, Article VI, paragraph 1, which equally prescribed that ‘judgments shall be
final and without appeal’. The report of the Supervisory Commission, proposing the Statute of
this Tribunal of the League of Nations, shows that the omission of any provision for a review
of judgments was deliberate. The report stated :
No provision for the revision of judgments of the Tribunal is inserted in the statute. It is
considered that, in the interests of finality and of the avoidance of vexatious proceedings, the
Tribunal’s judgments should be final and without appeal as is provided in Article VI,
paragraph 1.
The present Advisory Opinion deals with a different legal situation. It concerns
judgments pronounced by a permanent judicial tribunal established by the General Assembly,
functioning under a special statute and within the organized legal system of the United
Nations, and dealing exclusively with internal disputes between the members of the staff and
the United Nations represented by the Secretary-General. In order that the judgments
pronounced by such a judicial tribunal could be subjected to review by any body other than
the tribunal itself, it would be necessary, in the opinion of the Court, that the statute of that
tribunal or some other legal instrument governing it should contain an express provision to
Chairman, Rly. Board v. Chandrima Das 11
the effect. The General Assembly has the power to amend the Statute of the Administrative
Tribunal by virtue of Article 11 of that Statute and to provide for means of redress by another
organ. But as no such provisions are inserted in the present Statute, there is no legal ground
upon which the General Assembly could proceed to review judgments already pronounced by
that Tribunal. Should the General Assembly contemplate, for dealing with future disputes, the
making of some provision for the review of the awards of the Tribunal, the Court is of
opinion that the General Assembly itself, in view of its composition and functions, could
hardly act as a judicial organ — considering the arguments of the parties, appraising the
evidence produced by them, establishing the facts and declaring the law applicable to them —
all the more so as one party to the disputes is the United Nations Organization itself.
The Establishment of the Administrative Tribunal and the Implied Powers of the General Assembly
The Court must now examine the principal contentions which have been put forward, in
the written and in the oral statements, by the Governments that take the position that there are
grounds which would justify the General Assembly in refusing to give effect to awards of the
Administrative Tribunal.
The legal power of the General Assembly to establish a tribunal competent to render
judgments binding on the United Nations has been challenged. Accordingly, it is necessary to
consider whether the General Assembly has been given this power by the Charter.
There is no express provision for the establishment of judicial bodies or organs and no
indication to the contrary. However, in its Opinion - Reparation for Injuries suffered in the
Service of the United Nations, Advisory Opinion: I. C.J. Reports 1949. p. 182 – the Court
said:
‘Under international law, the Organization must be deemed to have powers which,
though not expressly provided in the Charter, are conferred upon it by necessary
implication as being essential to the performance of its duties’.
The Court must therefore begin by enquiring whether the provisions of the Charter
concerning the relations between the staff members and the Organization imply for the Organization the power to establish a judicial tribunal to adjudicate upon disputes arising out
of the contracts of service.
Under the provisions of Charter XV of the Charter, the Secretariat, which is one of the
principle organs of the United Nations, comprises the Secretary-General and the staff. The
Secretary-General is appointed by the General Assembly, upon the recommendation of the
Security Council, and he is ‘the chief administrative officer of the Organization’. The staff member are ‘appointed by the Secretary-General under regulations established by the General
Assembly’. In the words of Article 101(3) of the Charter, ‘The paramount consideration in the
employment of the staff and in the determination of the conditions of service shall be the
necessity of securing the highest standards of efficiency, competence and integrity.
The contracts of service between the Organization and the staff members are contained in
letters of appointment. Each appointment is made subject to terms and conditions provided in
Chairman, Rly. Board v. Chandrima Das 12
the Staff Regulations and Staff Rules, together with such amendments as may be made from
time to time.
When the Secretariat was organized, a situation arose in which the relations between the
staff members and the Organization were governed by a complex code of law. This code
consisted of the Staff Regulations established by the General Assembly, defining the
fundamental rights and obligations of the staff, and the Staff Rules, made by the Secretary-
General in order to implement the Staff Regulations. It was inevitable that there would be
disputes between the Organization and staff members as to their rights and duties. The
Charter contains no provision which authorizes any of the principle organs of the United
Nations to adjudicate upon these disputes, and Article 105 secures for the United Nations
jurisdictional immunities in national courts. It would, in the opinion of the Court, hardly be
consistent with the expressed aim of the Charter to promote freedom and justice for
individuals and with the constant preoccupation of the United Nations Organization to
promote this aim that it should afford no judicial or arbitral remedy to its own staff for the
settlement of any disputes which may arise between it and them.
In these circumstances, the Court finds that the power to establish a tribunal, to do justice
as between the Organization and the staff members, was essential to ensure the efficient
working of the Secretariat, and to give effect to the paramount consideration of securing the
highest standards of efficiency, competence and integrity. Capacity to do this arises by
necessary intendment out of the Charter.
Limits of the Implied Powers of the General Assembly
But that does not dispose of the problem before the Court. Some of the Governments that
take the position that there are grounds which would justify the General Assembly in refusing
to give effect to awards, agree that the powers of the General Assembly, and particularly its
power to establish regulations under Article 101, imply the power to set up an administrative
tribunal. They agree that the General Assembly would be able to establish a tribunal
competent to hear and decide staff grievances, to prescribe its jurisdiction, and to authorize it
to give a final decision, in the sense that no appeal could be taken as of right. They
nevertheless contend that the implied power does not enable the General Assembly to
establish a tribunal with authority to make decisions binding on the General Assembly itself.
In the first place, it is contended that there was no need to go so far, and that an implied
power can only be exercised to the extent that the particular measure under consideration can
be regarded as absolutely essential. There can be no doubt that the General Assembly in the
exercise of its power could have set up a tribunal without giving finality to its judgments. In
fact, however, it decided, after long deliberation, to invest the Tribunal with power to render
judgments which would be ‘final and without appeal’, and which would be binding on the
United Nations. The precise nature and scope of the measures by which the power of creating
a tribunal was to be exercised, was a matter for determination by the General Assembly alone.
In the second place, it has been argued that, while an implied power of the General
Assembly to establish, an administrative tribunal may be both necessary and essential,
nevertheless, an implied power to impose legal limitations upon the General Assembly’s
express Charter powers is not legally admissible.
Chairman, Rly. Board v. Chandrima Das 13
It has been contended that the General Assembly cannot, by establishing the
Administrative Tribunal, divest itself of the power conferred by paragraph (1) of Article 17 of
the Charter, which reads:
‘The General Assembly shall consider and approve the budget of the Organization.’
This provision confers a power on the General Assembly, for the exercise of which
Article 18 requires the vote of a two-thirds majority. Accordingly, the establishment of a
tribunal competent to make an award of compensation to which the General Assembly was
bound to give effect would, it has been argued, contravene the provisions relating to the
budgetary power. The Court is unable to accept this contention.
The Court notes that Article 17 of the Chapter appears in a section of Chapter IV relating
to the General Assembly, which is entitled ‘Functions and Powers’. This Article deals with a
function of the General Assembly and provides for the consideration and approval by it of the
budget of the Organization. Consideration of the budget is thus an act which must be
performed and the same is true of its approval, for without such approval there can be no
budget.
But the function of approving the budget does not mean that the General Assembly has an
absolute power to approve or disapprove the expenditure proposed to it; for some part of that
expenditure arises out of obligations already incurred by the Organization, and to this extent
the General Assembly has no alternative but to honour these engagements. The question,
therefore, to be decided by the Court is whether these obligations comprise the awards of
compensation made by the Administrative Tribunal in favour of staff members. The reply to
this question must be in the affirmative. The obligatory character of these awards has been
established by the considerations set out above relating to the authority of res judicata and the
binding effect of the judgments of this Tribunal upon the United Nations Organization.
The Court therefore considers that the assignment of the budgetary function to the
General Assembly cannot be regarded as conferring upon it the right to further to give effect
to the obligation arising out of an award of the Administrative Tribunal.
It has also been contended that the implied power of the General Assembly to establish a
tribunal cannot be carried so far as to enable the tribunal to intervene in matters falling within
the province of the Secretary-General. The Court cannot accept this contention.
The General Assembly could at all times limit or control the powers of the Secretary-
General in staff matters, by virtue of the provisions of Article 101. Acting under powers
conferred by the Charter, the General Assembly authorized the intervention of the Tribunal to
the extent that such intervention might result from the exercise of jurisdiction conferred upon
the Tribunal by its Statute. Accordingly, when the Tribunal decides that particular action by
the Secretary- General involves a breach of the contract of service, it is in no sense
intervening in a Charter power of the Secretary-General, because the Secretary-General’s
legal powers in staff matters have already been limited in this respect by the General
Assembly.
A similar problem is involved in the contention that the General assembly cannot
authorize and the Secretary-General cannot enter into contracts of service which are not in
Chairman, Rly. Board v. Chandrima Das 14
conformity with the Charter. The Staff Regulations are made a part of the contracts of
service and No. 11.2 reads as follows:
‘The United Nations Administrative Tribunal shall, under conditions prescribed in
its Statute, hear and pass judgment upon applications from staff members alleging
non-observance of their terms of appointment, including all pertinent regulations
and rules’.
It is contended that the incorporation, in the contracts of service, of the right to rely on the
Stature of the Administrative Tribunal would conflict with the powers conferred on the
General Assembly and on the Secretary- General by the Charter. In view of the foregoing
considerations, the Court cannot accept this contention. There can be no doubt that, by virtue
of the terms thus incorporated in the contracts of service, and so long as the Statute of the
Administrative Tribunal in its present form is in force, the staff members are entitled to resort
to the Tribunal and rely on its judgments.
In the third place, the view has been put forward that the Administrative Tribunal is a
subsidiary, subordinate, or secondary organ; and that, accordingly, the Tribunal’s judgments
cannot bind the General Assembly which established it.
This view assumes that, in adopting the Statute of the Administrative Tribunal, the
General Assembly was establishing an organ which it deemed necessary for the performance
of its own functions. But the Court cannot accept this basic assumption. The Charter does not
confer judicial functions on the General Assembly and the relations between staff and
Organization come within the scope of Chapter XV of the Charter. In the absence of the
establishment of an Administrative Tribunal, the function of resolving disputes between staff
and Organization could be discharged by the Secretary-General by virtue of the provisions of
Articles 97 and 101. Accordingly, in the three years or more preceding the establishment of
the Administrative Tribunal, the Secretary-General coped with this problem by means of joint
administrative machinery, leading to ultimate decision by himself. By establishing the
Administrative Tribunal the General Assembly was not delegating the performance of its own
functions; it was exercising a power which it had under the Charter to regulate staff relations. In regard to the Secretariat, the General Assembly is given by the Charter a power to make
regulations, but not a power to adjudicate upon, or otherwise deal with particular instances.
It has been argued that an authority exercising a power to make regulations is inherently
incapable of creating a subordinate body competent to make decisions binding its creator.
There can be no doubt that the Administrative Tribunal is subordinate in the sense that the
General Assembly can abolish the Tribunal by repealing the Statute, that it can amend the Statute and provide for review of the future decisions of the Tribunal and that it can amend
the Staff Regulations and make new ones. There is no lack of power to deal effectively with
any problem that may arise. But the contention that the General Assembly is inherently
incapable of creating a tribunal competent to make decisions binding on itself cannot be
accepted. It cannot be justified by analogy to national laws, for it is common practice in
national legislatures to create courts with the capacity to render decisions legally binding on
the legislatures which brought them into being.
Chairman, Rly. Board v. Chandrima Das 15
The question cannot be determined on the basis of the description of the relationship
between the General Assembly and the Tribunal that is by considering whether the Tribunal is
to be regarded as a subsidiary, a subordinate, or a secondary organ, or on the basis of the fact
that it was established by the General Assembly. It depends on the intention of the General
Assembly in establishing the Tribunal, and on the nature of the functions conferred upon it by
its Statute. An examination of the language of the Statute of the Administrative Tribunal has
show that the General Assembly intended to establish a judicial body, moreover, it had the
legal capacity under the Charters to do so.
The Practice of the League of Nations as a Precedent
The view has been advanced that the Court should follow what has been called the precedent
established by the League of Nations in 1946. On that occasion, the Assembly of the League
rejected certain awards of its Administrative Tribunal. It is unnecessary to consider the
question whether the Assembly, which in very special circumstances was winding up the
League, was justified in rejecting those awards. The cases adjudicated upon by the Tribunal
of the League, and the circumstances in which they arose, are different from those which led
to the request for this Opinion. Moreover, the cases arose under the Statute of the Administrative Tribunal of the League, and not under the Statute of the Administrative
Tribunal of the United Nations, and the Assembly was acting under the Covenant and not
under the Charter.
In view of the complete lack of identity between the two situations, and of the
conclusions already drawn by the Court from the Charter and the Statute of the
Administrative Tribunal of the United Nations and other relevant instruments and records, the
Court cannot regard the action of the Assembly of the League in 1946 as an applicable
precedent or as an indication of the intention of the General Assembly when the Statute of the
Administrative Tribunal was adopted in 1949.
* * * * *
Chairman, Rly. Board v. Chandrima Das 16
TEMPLE OF PREAH VIHEAR CASE (Merits)
Cambodia v. Thailand ICJ Reports 1962, p. 6
Proceedings in the case concerning the Temple of Preah Vihear, between Cambodia and
Thailand, were instituted on 6 October 1959 by an Application of the Government of
Cambodia; the Government of Thailand having raised two preliminary objections, the Court,
by its Judgment of 26 May 1961, found that it had jurisdiction.
In its Judgment, the Court found that the subject of the dispute was sovereignty over the
region of the Temple of Preah Vihear. This ancient sanctuary, partially in ruins, stood on a
promontory of the Dangrek range of mountains which constituted the boundary between
Cambodia and Thailand. The dispute had its fons et origo in the boundary settlements made in
the period 1904-1908 between France, then conducting the foreign relations of Indo-China,
and Siam. The application of the Treaty of 13 February 1904 was, in particular, involved.
That Treaty established the general character of the frontier the exact boundary of which was
to be delimited by a Franco-Siamese Mixed Commission
In the eastern sector of the Dangrek range, in which Preah Vihear was situated, the
frontier was to follow the watershed line. For the purpose of delimiting that frontier, it was
agreed, at a meeting held on 2 December 1906, that the Mixed Commission should travel
along the Dangrek range carrying out all the necessary reconnaissance, and that a survey
officer of the French section of the Commission should survey the whole of the eastern part of
the range. It had not been contested that the Presidents of the French and Siamese sections
duly made this journey, in the course of which they visited the Temple of Preah Vihear. In
January-February 1907, the President of the French section had reported to his Government
that the frontier-line had been definitely established. It therefore seemed clear that a frontier
had been surveyed and fixed, although there was no record of any decision and no reference
to the Dangrek region in any minutes of the meetings of the Commission after 2 December
1906. Moreover, at the time when the Commission might have met for the purpose of winding
up its work, attention was directed towards the conclusion of a further Franco-Siamese
boundary treaty, the Treaty of 23 March 1907.
The final stage of the delimitation was the preparation of maps. The Siamese
Government, which did not dispose of adequate technical means, had requested that French
officers should map the frontier region. These maps were completed in the autumn of 1907 by
a team of French officers, some of whom had been members of the Mixed Commission, and
they were communicated to the Siamese Government in 1908. Amongst them was a map of
the Dangrek range showing Preah Vihear on the Cambodian side. It was on that map (filed as
Annex I to its Memorial) that Cambodia had principally relied in support of her claim to
sovereignty over the Temple. Thailand, on the other hand, had contended that the map, not
being the work of the Mixed Commission, had no binding character; that the frontier
indicated on it was not the true watershed line and that the true watershed line would place the
Temple in Thailand, that the map had never been accepted by Thailand or, alternatively, that
Chairman, Rly. Board v. Chandrima Das 17
if Thailand had accepted it she had done so only because of a mistaken belief that the frontier
indicated corresponded with the watershed line.
The Annex I map was never formally approved by the Mixed Commission, which had
ceased to function some months before its production. While there could be no reasonable
doubt that it was based on the work of the surveying officers in the Dangrek sector, the Court
nevertheless concluded that, in its inception, it had no binding character. It was clear from the
record, however, that the maps were communicated to the Siamese Government as purporting
to represent the outcome of the work of delimitation; since there was no reaction on the part
of the Siamese authorities, either then or for many years, they must be held to have
acquiesced. The maps were moreover communicated to the Siamese members of the Mixed
Commission, who said nothing. to the Siamese Minister of the Interior, Prince Damrong, who
thanked the French Minister in Bangkok for them, and to the Siamese provincial governors,
some of whom knew of Preah Vihear. If the Siamese authorities accepted the Annex I map
without investigation, they could not now plead any error vitiating the reality of their consent.
The Siamese Government and later the Thai Government had raised no query about the
Annex I map prior to its negotiations with Cambodia in Bangkok in 1958. But in 1934-1935 a
survey had established a divergence between the map line and the true line of the watershed,
and other maps had been produced showing the Temple as being in Thailand: Thailand had
nevertheless continued also to use and indeed to publish maps showing Preah Vihear as lying
in Cambodia. Moreover, in the course of the negotiations for the 1925 and 1937 Franco-
Siamese Treaties, which confirmed the existing frontiers, and in 1947 in Washington before
the Franco-Siamese Conciliation Commission, it would have been natural for Thailand to
raise the matter: she did not do so. The natural inference was that she had accepted the
frontier at Preah Vihear as it was drawn on the map, irrespective of its correspondence with
the watershed line. Thailand had stated that having been, at all material times, in possession
of Preah Vihear, she had had no need to raise the matter; she had indeed instanced the acts of
her administrative authorities on the ground as evidence that she had never accepted the
Annex I line at Preah Vihear. But the Court found it difficult to regard such local acts as
negating the consistent attitude of the central authorities. Moreover, when in 1930 Prince
Damrong, on a visit to the Temple, was officially received there by the French Resident for
the adjoining Cambodian province, Siam failed to react.
From these facts, the court concluded that Thailand had accepted the Annex I map. Even
if there were any doubt in this connection, Thailand was not precluded from asserting that she
had not accepted it since France and Cambodia had relied upon her acceptance and she had
for fifty years enjoyed such benefits as the Treaty of 1904 has conferred on her. Furthermore,
the acceptance of the Annex I map caused it to enter the treaty settlement; the Parties had at
that time adopted an interpretation of that settlement which caused the map line to prevail
over the provisions of the Treaty and, as there was no reason to think that the Parties had
attached any special importance to the line of the watershed as such, as compared with the
overriding importance of a final regulation of their own frontiers, the Court considered that
the interpretation to be given now would be the same.
Chairman, Rly. Board v. Chandrima Das 18
The Court therefore felt bound to pronounce in favour of the frontier indicated on the
Annex I map in the disputed area and it became unnecessary to consider whether the line as
mapped did in fact correspond to the true watershed line.
In its Judgment the Court, by nine votes to three, found that the Temple of Preah
Vihear was situated in territory under the sovereignty of Cambodia and, in consequence, that
Thailand was under an obligation to withdraw any military or police forces, or other guards or
keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory.
By seven votes to five, the Court found that Thailand was under an obligation to restore
to Cambodia any sculptures, stelae, fragments of monuments, sandstone model and ancient
pottery which might, since the date of the occupation of the Temple by Thailand in 1954,
have been removed from the Temple or the Temple area by the Thai authorities.
* * * * *
Chairman, Rly. Board v. Chandrima Das 19
RELATIONSHIP BETWEEN INTERNATIONAL LAW
AND MUNICIPAL LAW
Vellore Citizens' Welfare Forum v. Union of India (1996) 5 SCC 647
KULDIP SINGH, J. - Petition - public interest - under Article 32 of the Constitution of
India has been filed by Vellore Citizens’ Welfare Forum and is directed against the pollution
which is being caused by enormous discharge of untreated effluent by the tanneries and other
industries in the State of Tamil Nadu. It is stated that the tanneries are discharging untreated
effluent into agricultural fields, roadsides, waterways and open lands. The untreated effluent
is finally discharged in River Palar which is the main source of water supply to the residents
of the area. According to the petitioner the entire surface and subsoil water of River Palar has
been polluted resulting in non-availability of potable water to the residents of the area. It is
stated that the tanneries in the State of Tamil Nadu have caused environmental degradation in
the area. According to the preliminary survey made by the Tamil Nadu Agricultural
University Research Centre, Vellore nearly 35,000 hectares of agricultural land in the
tanneries belt has become either partially or totally unfit for cultivation. It has been further
stated in the petition that the tanneries use about 170 types of chemicals in the chrome tanning
processes. The said chemicals include sodium chloride, lime, sodium sulphate, chlorium (sic)
sulphate, fat, liquor, ammonia and sulphuric acid besides dyes which are used in large quantities. Nearly 35 litres of water is used for processing one kilogram of finished leather,
resulting in dangerously enormous quantities of toxic effluents being let out in the open by the
tanning industry. These effluents have spoiled the physico-chemical properties of the soil and
have contaminated groundwater by percolation.
2. Along with the affidavit dated 21-7-1992 filed by Deputy Secretary to Government,
Environment and Forests Department of Tamil Nadu, a list of villages affected by the tanneries has been attached. The list mentions 59 villages in the three divisions of
Thirupathur, Vellore and Ranipet. There is acute shortage of drinking water in these 59
villages and as such alternative arrangements were being made by the Government for the
supply of drinking water.
9. It is no doubt correct that the leather industry in India has become a major foreign
exchange earner and at present Tamil Nadu is the leading exporter of finished leather
accounting for approximately 80 per cent of the country’s export. Though the leather industry
is of vital importance to the country as it generates foreign exchange and provides
employment avenues it has no right to destroy the ecology, degrade the environment and pose
as a health-hazard. It cannot be permitted to expand or even to continue with the present
production unless it tackles by itself the problem of pollution created by the said industry.
10. The traditional concept that development and ecology are opposed to each other is no
longer acceptable. “Sustainable Development” is the answer. In the international sphere,
“Sustainable Development” as a concept came to be known for the first time in the Stockholm
Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World
Commission on Environment and Development in its report called “Our Common Future”.
Chairman, Rly. Board v. Chandrima Das 20
The Commission was chaired by the then Prime Minister of Norway, Ms G.H. Brundtland
and as such the report is popularly known as “Brundtland Report”. In 1991 the World
Conservation Union, United Nations Environment Programme and Worldwide Fund for
Nature, jointly came out with a document called “Caring for the Earth” which is a strategy for
sustainable living. Finally, came the Earth Summit held in June 1992 at Rio which saw the
largest gathering of world leaders ever in the history — deliberating and chalking out a
blueprint for the survival of the planet. Among the tangible achievements of the Rio
Conference was the signing of two conventions, one on biological diversity and another on
climate change. These conventions were signed by 153 nations. The delegates also approved
by consensus three non-binding documents namely, a Statement on Forestry Principles, a
declaration of principles on environmental policy and development initiatives and Agenda 21,
a programme of action into the next century in areas like poverty, population and pollution.
During the two decades from Stockholm to Rio “Sustainable Development” has come to be
accepted as a viable concept to eradicate poverty and improve the quality of human life while
living within the carrying capacity of the supporting ecosystems. “Sustainable Development”
as defined by the Brundtland Report means “Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs”. We have
no hesitation in holding that “Sustainable Development” as a balancing concept between
ecology and development has been accepted as a part of the customary international law
though its salient features have yet to be finalised by the international law jurists.
11. Some of the salient principles of “Sustainable Development”, as culled out from
Brundtland Report and other international documents, are Inter-Generational Equity, Use and
Conservation of Natural Resources, Environmental Protection, the Precautionary Principle,
Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and
Financial Assistance to the developing countries. We are, however, of the view that “The
Precautionary Principle” and “The Polluter Pays Principle” are essential features of
“Sustainable Development”. The “Precautionary Principle” - in the context of the municipal
law - means:
(i) Environmental measures - by the State Government and the statutory
authorities - must anticipate, prevent and attack the causes of environmental
degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific
certainty should not be used as a reason for postponing measures to prevent
environmental degradation. (iii) The “onus of proof” is on the actor or the developer/industrialist to show that
his action is environmentally benign.
12. “The Polluter Pays Principle” has been held to be a sound principle by this Court in
Indian Council for Enviro-Legal Action v. Union of India [(1996) 3 SCC 212]. The Court
observed:
“(W)e are of the opinion that any principle evolved in this behalf should be
simple, practical and suited to the conditions obtaining in this country”.
Chairman, Rly. Board v. Chandrima Das 21
The Court ruled that:
“... once the activity carried on is hazardous or inherently dangerous, the person
carrying on such activity is liable to make good the loss caused to any other person
by his activity irrespective of the fact whether he took reasonable care while carrying
on his activity. The rule is premised upon the very nature of the activity carried on”.
Consequently the polluting industries are “absolutely liable to compensate for the harm
caused by them to villagers in the affected area, to the soil and to the underground water and
hence, they are bound to take all necessary measures to remove sludge and other pollutants
lying in the affected areas”. The “Polluter Pays Principle” as interpreted by this Court means
that the absolute liability for harm to the environment extends not only to compensate the
victims of pollution but also the cost of restoring the environmental degradation. Remediation
of the damaged environment is part of the process of “Sustainable Development” and as such
the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing
the damaged ecology.
13. The Precautionary Principle and the Polluter Pays Principle have been accepted as
part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Articles 47, 48A and 51A(g) of the Constitution are as under:
“47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.-The State shall regard the raising of the level of
nutrition and the standard of living of its people and the improvement of public
health as among its primary duties and, in particular, the State shall endeavour to
bring about prohibition of the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health.
48A. Protection and improvement of environment and safeguarding of forests and wildlife.-The State shall endeavour to protect and improve the environment and
to safeguard the forests and wildlife of the country.
51A. (g) to protect and improve the natural environment including forests, lakes,
rivers and wildlife, and to have compassion for living creatures.”
Apart from the constitutional mandate to protect and improve the environment there are
plenty of post-independence legislations on the subject but more relevant enactments for our
purpose are: the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act), the
Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment
(Protection) Act, 1986 (the Environment Act).
14. In view of the above-mentioned constitutional and statutory provisions we have no hesitation in holding that the Precautionary Principle and the Polluter Pays Principle are part
of the environmental law of the country.
15. Even otherwise once these principles are accepted as part of the Customary
International Law there would be no difficulty in accepting them as part of the domestic law.
It is almost an accepted proposition of law that the rules of Customary International Law
which are not contrary to the municipal law shall be deemed to have been incorporated in the
domestic law and shall be followed by the courts of law. To support we may refer to Justice
Chairman, Rly. Board v. Chandrima Das 22
H.R. Khanna’s opinion in A.D.M. v. Shivakant Shukla [AIR 1976 SC 1207]; Jolly George
Varghese case [AIR 1980 SC 470] and Gramophone Co. case [AIR 1984 SC 667].
16. The constitutional and statutory provisions protect a person’s right to fresh air, clean
water and pollution-free environment, but the source of the right is the inalienable common
law right of clean environment.
17. Our legal system having been founded on the British common law the right of a
person to a pollution-free environment is a part of the basic jurisprudence of the land.
[The Supreme Court held that sustainable development, precautionary principle and
polluter pays principle, being customary norms of international law, are part of Indian
environmental law and therefore, have full legal force.]
* * * * *
Chairman, Rly. Board v. Chandrima Das 23
Vishaka v. State of Rajasthan (1997) 6 SCC 241
VERMA, C.J. - This writ petition has been filed for the enforcement of the fundamental
rights of working women under Articles 14, 19 and 21 of the Constitution of India in view of
the prevailing climate in which the violation of these rights is not uncommon. With the
increasing awareness and emphasis on gender justice, there is increase in the effort to guard
against such violations; and the resentment towards incidents of sexual harassment is also
increasing. The present petition has been brought as a class action by certain social activists
and NGOs with the aim of focussing attention towards this societal aberration, and assisting
in finding suitable methods for realisation of the true concept of “gender equality”; and to
prevent sexual harassment of working women in all workplaces through judicial process, to
fill the vacuum in existing legislation.
2. The immediate cause for the filing of this writ petition is an incident of alleged brutal
gang rape of a social worker in a village of Rajasthan. That incident is the subject-matter of a
separate criminal action and no further mention of it, by us, is necessary. The incident reveals
the hazards to which a working woman may be exposed and the depravity to which sexual
harassment can degenerate and the urgency for safeguards by an alternative mechanism in the
absence of legislative measures. In the absence of legislative measures, the need is to find an
effective alternative mechanism to fulfil this felt and urgent social need.
3. Each such incident results in violation of the fundamental rights of “Gender Equality”
and the “Right to Life and Liberty”. It is a clear violation of the rights under Articles 14, 15
and 21 of the Constitution. One of the logical consequences of such an incident is also the
violation of the victim’s fundamental right under Article 19(1)(g) “ to practise any profession
or to carry out any occupation, trade or business ”. Such violations, therefore, attract the
remedy under Article 32 for the enforcement of these fundamental rights of women. This
class action under Article 32 of the Constitution is for this reason. A writ of mandamus in
such a situation, if it is to be effective, needs to be accompanied by directions for prevention,
as the violation of fundamental rights of this kind is a recurring phenomenon. The
fundamental right to carry on any occupation, trade or profession depends on the availability
of a “safe” working environment. Right to life means life with dignity. The primary
responsibility for ensuring such safety and dignity through suitable legislation, and the
creation of a mechanism for its enforcement, is of the legislature and the executive. When,
however, instances of sexual harassment resulting in violation of fundamental rights of
women workers under Articles 14, 19 and 21 are brought before us for redress under Article
32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.
5. Apart from Article 32 of the Constitution of India, we may refer to some other
provisions which envisage judicial intervention for eradication of this social evil. Some
provisions in the Constitution in addition to Articles 14, 19(1)(g) and 21, which have
relevance are:
Chairman, Rly. Board v. Chandrima Das 24
Article 15 :
“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-(1) The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.
(3) Nothing in this article shall prevent the State from making any special
provision for women and children.”
Article 42 :
“42. Provision for just and humane conditions of work and maternity relief .-The
State shall make provision for securing just and humane conditions of work and for
maternity relief.”
Article 51A :
“51-A. Fundamental duties .—It shall be the duty of every citizen of India -
(a) to abide by the Constitution and respect its ideals and institutions, ...;
(e) to promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional diversities;
to renounce practices derogatory to the dignity of women;”
6. Before we refer to the international conventions and norms having relevance in this
field and the manner in which they assume significance in application and judicial
interpretation, we may advert to some other provisions in the Constitution which permit such
use. These provisions are:
Article 51:
“51. Promotion of international peace and security.-The State shall endeavour to-
(c) foster respect for international law and treaty obligations in the dealings of
organised peoples with one another; * * *”
Article 253:
“253. Legislation for giving effect to international agreements.- Notwithstanding
anything in the foregoing provisions of this Chapter, Parliament has power to make
any law for the whole or any part of the territory of India for implementing any
treaty, agreement or convention with any other country or countries or any decision
made at any international conference, association or other body.”
Seventh Schedule :
“List I - Union List
14. Entering into treaties and agreements with foreign countries and implementing of
treaties, agreements and conventions with foreign countries.”
7. In the absence of domestic law occupying the field, to formulate effective measures to
check the evil of sexual harassment of working women at all workplaces, the contents of
international conventions and norms are significant for the purpose of interpretation of the
guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g)
and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any
Chairman, Rly. Board v. Chandrima Das 25
international convention not inconsistent with the fundamental rights and in harmony with its
spirit must be read into these provisions to enlarge the meaning and content thereof, to
promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the
enabling power of Parliament to enact laws for implementing the international conventions
and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule
of the Constitution. Article 73 also is relevant. It provides that the executive power of the
Union shall extend to the matters with respect to which Parliament has power to make laws.
The executive power of the Union is, therefore, available till Parliament enacts legislation to
expressly provide measures needed to curb the evil.
8. Thus, the power of this Court under Article 32 for enforcement of the fundamental
rights and the executive power of the Union have to meet the challenge to protect the working
women from sexual harassment and to make their fundamental rights meaningful.
Governance of the society by the rule of law mandates this requirement as a logical
concomitant of the constitutional scheme. The exercise performed by the Court in this matter
is with this common perception shared with the learned Solicitor General and other members
of the Bar who rendered valuable assistance in the performance of this difficult task in public
interest.
9. The progress made at each hearing culminated in the formulation of guidelines to
which the Union of India gave its consent through the learned Solicitor General, indicating
that these should be the guidelines and norms declared by this Court to govern the behaviour
of the employers and all others at the workplaces to curb this social evil.
10. Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The common minimum
requirement of this right has received global acceptance. The international conventions and
norms are, therefore, of great significance in the formulation of the guidelines to achieve this
purpose.
11. The obligation of this Court under Article 32 of the Constitution for the enforcement
of these fundamental rights in the absence of legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the
Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of
Asia and the Pacific at Beijing in 1995 as those representing the minimum standards
necessary to be observed in order to maintain the independence and effective functioning of
the judiciary. The objectives of the judiciary mentioned in the Beijing Statement are:
“Objectives of the Judiciary:
10. The objectives and functions of the Judiciary include the following:
(a) to ensure that all persons are able to live securely under the rule of law;
(b) to promote, within the proper limits of the judicial function, the observance
and the attainment of human rights; and
(c) to administer the law impartially among persons and between persons and
the State.”
12. Some provisions in the “Convention on the Elimination of All Forms of
Discrimination against Women”, of significance in the present context are:
Chairman, Rly. Board v. Chandrima Das 26
Article 11:
“1. States Parties shall take all appropriate measures to eliminate discrimination
against women in the field of employment in order to ensure, on a basis of equality of
men and women, the same rights, in particular:
(a) The right to work as an inalienable right of all human beings;
(f) The right to protection of health and to safety in working conditions, including
the safeguarding of the function of reproduction.
Article 24:
States Parties undertake to adopt all necessary measures at the national level aimed at
achieving the full realization of the rights recognised in the present Convention.”
13. The general recommendations of CEDAW in this context in respect of Article 11 are:
“Violence and equality in employment:
22. Equality in employment can be seriously impaired when women are
subjected to gender specific violence, such as sexual harassment in the workplace.
23. Sexual harassment includes such unwelcome sexually determined behaviour
as physical contacts and advances, sexually-coloured remarks, showing pornography
and sexual demands, whether by words or actions. Such conduct can be humiliating
and may constitute a health and safety problem; it is discriminatory when the woman
has reasonable grounds to believe that her objection would disadvantage her in
connection with her employment, including recruiting or promotion, or when it
creates a hostile working environment. Effective complaints, procedures and
remedies, including compensation, should be provided.
24. States should include in their reports information about sexual harassment,
and on measures to protect women from sexual harassment and other forms of
violence of coercion in the workplace.”
The Government of India has ratified the above Resolution on 25-6-1993 with some
reservations which are not material in the present context. At the Fourth World Conference on
Women in Beijing, the Government of India has also made an official commitment, inter alia,
to formulate and operationalize a national policy on women which will continuously guide
and inform action at every level and in every sector; to set up a Commission for Women’s
Rights to act as a public defender of women’s human rights; to institutionalize a national level
mechanism to monitor the implementation of the Platform for Action. We have, therefore, no
hesitation in placing reliance on the above for the purpose of construing the nature and ambit
of constitutional guarantee of gender equality in our Constitution.
14. The meaning and content of the fundamental rights guaranteed in the Constitution of
India are of sufficient amplitude to encompass all the facets of gender equality including
prevention of sexual harassment or abuse. Independence of judiciary forms a part of our
constitutional scheme. The international conventions and norms are to be read into them in
the absence of enacted domestic law occupying the field when there is no inconsistency
between them. It is now an accepted rule of judicial construction that regard must be had to
international conventions and norms for construing domestic law when there is no
Chairman, Rly. Board v. Chandrima Das 27
inconsistency between them and there is a void in the domestic law. The High Court of
Australia in Minister for Immigration and Ethnic Affairs v. Teoh, 128 Aus LR 353 has
recognised the concept of legitimate expectation of its observance in the absence of a contrary
legislative provision, even in the absence of a Bill of Rights in the Constitution of Australia.
15. In Nilabati Behera v. State of Orissa [(1993) 2 SCC 746], a provision in the ICCPR
was referred to support the view taken that “an enforceable right to compensation is not alien
to the concept of enforcement of a guaranteed right”, as a public law remedy under Article 32,
distinct from the private law remedy in torts. There is no reason why these international
conventions and norms cannot, therefore, be used for construing the fundamental rights
expressly guaranteed in the Constitution of India which embody the basic concept of gender
equality in all spheres of human activity.
16. In view of the above, and the absence of enacted law to provide for the effective
enforcement of the basic human right of gender equality and guarantee against sexual
harassment and abuse, more particularly against sexual harassment at workplaces, we lay
down the guidelines and norms specified hereinafter for due observance at all workplaces or
other institutions, until a legislation is enacted for the purpose. This is done in exercise of the
power available under Article 32 of the Constitution for enforcement of the fundamental
rights and it is further emphasised that this would be treated as the law declared by this Court
under Article 141 of the Constitution.
17. The GUIDELINES and NORMS prescribed herein are as under:
HAVING REGARD to the definition of “human rights” in Section 2(d) of the
Protection of Human Rights Act, 1993,
TAKING NOTE of the fact that the present civil and penal laws in India do not
adequately provide for specific protection of women from sexual harassment in
workplaces and that enactment of such legislation will take considerable time,
It is necessary and expedient for employers in workplaces as well as other
responsible persons or institutions to observe certain guidelines to ensure the
prevention of sexual harassment of women:
1. Duty of the employer or other responsible persons in workplaces and other institutions:
It shall be the duty of the employer or other responsible persons in workplaces or
other institutions to prevent or deter the commission of acts of sexual harassment and
to provide the procedures for the resolution, settlement or prosecution of acts of
sexual harassment by taking all steps required.
2. Definition:
For this purpose, sexual harassment includes such unwelcome sexually
determined behaviour (whether directly or by implication) as:
(a) physical contact and advances;
(b) a demand or request for sexual favours;
(c) sexually-coloured remarks;
(d) showing pornography;
Chairman, Rly. Board v. Chandrima Das 28
(e) any other unwelcome physical, verbal or non-verbal conduct of sexual
nature.
Where any of these acts is committed in circumstances whereunder the victim of
such conduct has a reasonable apprehension that in relation to the victim’s
employment or work whether she is drawing salary, or honorarium or voluntary,
whether in government, public or private enterprise such conduct can be humiliating
and may constitute a health and safety problem. It is discriminatory for instance when
the woman has reasonable grounds to believe that her objection would disadvantage
her in connection with her employment or work including recruiting or promotion or
when it creates a hostile work environment. Adverse consequences might be visited if
the victim does not consent to the conduct in question or raises any objection thereto.
3. Preventive steps:
All employers or persons in charge of workplace whether in the public or private
sector should take appropriate steps to prevent sexual harassment. Without prejudice
to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in appropriate ways.
(b) The rules/regulations of government and public sector bodies relating to
conduct and discipline should include rules/regulations prohibiting sexual harassment
and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid
prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure,
health and hygiene to further ensure that there is no hostile environment towards
women at workplaces and no woman employee should have reasonable grounds to
believe that she is disadvantaged in connection with her employment.
4. Criminal proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code
or under any other law, the employer shall initiate appropriate action in accordance
with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims or witnesses are not victimized or
discriminated against while dealing with complaints of sexual harassment. The
victims of sexual harassment should have the option to seek transfer of the
perpetrator or their own transfer.
5. Disciplinary action:
Where such conduct amounts to misconduct in employment as defined by the
relevant service rules, appropriate disciplinary action should be initiated by the
employer in accordance with those rules.
6. Complaint mechanism: Whether or not such conduct constitutes an offence
under law or a breach of the service rules, an appropriate complaint mechanism
Chairman, Rly. Board v. Chandrima Das 29
should be created in the employer’s organization for redress of the complaint made
by the victim. Such complaint mechanism should ensure time-bound treatment of
complaints.
7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to
provide, where necessary, a Complaints Committee, a special counsellor or other
support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half
of its members should be women. Further, to prevent the possibility of any undue
pressure or influence from senior levels, such Complaints Committee should involve
a third party, either NGO or other body who is familiar with the issue of sexual
harassment.
The Complaints Committee must make an annual report to the Government
Department concerned of the complaints and action taken by them.
The employers and person-in-charge will also report on the compliance with the
aforesaid guidelines including on the reports of the Complaints Committee to the
Government Department.
8. Workers’ initiative:
Employees should be allowed to raise issues of sexual harassment at workers’
meeting and in other appropriate forum and it should be affirmatively discussed in
employer-employee meetings.
9. Awareness:
Awareness of the rights of female employees in this regard should be created in
particular by prominently notifying the guidelines (and appropriate legislation when
enacted on the subject) in a suitable manner.
10. Third-party harassment:
Where sexual harassment occurs as a result of an act or omission by any third
party or outsider, the employer and person-in-charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. The Central/State Governments are requested to consider adopting suitable
measures including legislation to ensure that the guidelines laid down by this order
are also observed by the employers in private sector.
12. These guidelines will not prejudice any rights available under the Protection
of Human Rights Act, 1993.
18. Accordingly, we direct that the above guidelines and norms would be strictly
observed in all workplaces for the preservation and enforcement of the right to
gender equality of the working women. These directions would be binding and
enforceable in law until suitable legislation is enacted to occupy the field. These writ
petitions are disposed of, accordingly.
Chairman, Rly. Board v. Chandrima Das 30
CIT v. P.V.A.L. Kulandagan Chettiar (2004) 6 SCC 235
S. RAJENDRA BABU, CJI - These appeals involve the following two questions for our
consideration although several other questions were considered by the High Court:
(a) Whether the Malaysian income cannot be subjected to tax in India on the
basis of the Agreement of Avoidance of Double Taxation entered into between the
Government of India and the Government of Malaysia?
(b) Whether the capital gains should be taxable only in the country in which the
assets are situated?
2. The facts leading to these appeals are that the respondent is a firm owning immovable
properties at Ipoh, Malaysia; that during the course of the assessment year the assessee earned
income of Rs. 88,424 from rubber estates; that the respondent sold the property, the short-
term capital gains of which came to Rs. 18,113; that the Income Tax Officer assessed that
both the incomes are assessable in India and brought the same to tax; that the respondent filed
an appeal before the Commissioner of Income Tax (Appeals) who held that under Article
VII(1) of the Agreement of Avoidance of Double Taxation of Income and Prevention of
Fiscal Evasion of Tax unless the respondent has a permanent establishment of the business in
India such business income in Malaysia cannot be included in the total income of the assessee
and, therefore, no part of the capital gains arising to the respondent in the foreign country
could be taxed in India.
3. This order was carried in appeal to the Tribunal. The Tribunal, after examining various
contentions raised before it, confirmed the order of the Commissioner of Income Tax
(Appeals) and held that: (i) since the respondent has no permanent establishment for business
in India, the business income in Malaysia cannot be included in his income in India, and (ii)
since the property is situated in Malaysia, capital gains cannot be taxed in India. Thereafter,
the matter was carried by way of a reference to the High Court.
4. The High Court held that the finding of the Tribunal is in accordance with the
provisions of the Agreement of Avoidance of Double Taxation of Income. The High Court
took the view that:
Where there exists a provision to the contrary in the Agreement, there is no scope
for applying the law of any one of the respective contracting States to tax the income
and the liability to tax has to be worked out in the manner and to the extent permitted
or allowed under the terms of the Agreement.
8. Where liability to tax arises under the local enactment provisions of Sections 4 and 5 of
the Act provide that taxation of global income of an assessee chargeable to tax thereunder is
subject to the provisions of an agreement entered into between the Central Government and
the Government of a foreign country for avoidance of double taxation as envisaged under
Section 90 to the contrary, if any, and such an agreement will act as an exception to or
modification of Sections 4 and 5 of the Income Tax Act. The provisions of such agreement
cannot fasten a tax liability where the liability is not imposed by a local Act. Where tax
liability is imposed by the Act, the agreement may be resorted to either for reducing the tax
Chairman, Rly. Board v. Chandrima Das 31
liability or altogether avoiding the tax liability. In case of any conflict between the provisions
of the agreement and the Act, the provisions of the agreement would prevail over the
provisions of the Act, as is clear from the provisions of Section 90(2) of the Act. Section
90(2) makes it clear that
“where the Central Government has entered into an agreement with the
Government of any country outside India for granting relief of tax, or for avoidance
of double taxation, then, in relation to the assessee to whom such agreement applies,
the provisions of this Act shall apply to the extent they are more beneficial to that
assessee”
meaning thereby that the Act gets modified in regard to the assessee insofar as the agreement
is concerned, if it falls within the category stated therein.
13. The Agreement between the Government of India and the Government of Malaysia
for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes
on income was entered into on 1-4-1977. This Agreement is applicable to persons who are
resident of one or both of the contracting States.
17. The immovable property in question is situate in Malaysia and income is derived from
that property. Further, it has also been held as a matter of fact that there is no permanent
establishment in India in regard to carrying on the business of rubber plantations in Malaysia
out of which income is derived and that finding of fact has been recorded by all the authorities
and affirmed by the High Court. We, therefore, do not propose to re-examine the question
whether the finding is correct or not. Proceeding on that basis, we hold that business income
out of rubber plantations cannot be taxed in India because of closer economic relations
between the assessee and Malaysia in which the property is located and where the permanent
establishment has been set up will determine the fiscal domicile. On the first issue, the view
taken by the High Court is correct.
18. Reading the Treaty in question as a whole when it is intended that even though it is
possible for a resident in India to be taxed in terms of Sections 4 and 5, if he is deemed to be a
resident of a contracting State where his personal and economic relations are closer, then his
residence in India will become irrelevant. The Treaty will have to be interpreted as such and
prevails over Sections 4 and 5 of the Act. Therefore, we are of the view that the High Court is
justified in reaching its conclusion, though for different reasons from those stated by the High
Court.
21. Taxation policy is within the power of the Government and Section 90 of the Income
Tax Act enables the Government to formulate its policy through treaties entered into by it and
even such treaty treats the fiscal domicile in one State or the other and thus prevails over the
other provisions of the Income Tax Act, it would be unnecessary to refer to the terms
addressed in OECD or in any of the decisions of foreign jurisdiction or in any other
agreements.
22. In this view of the matter, it is unnecessary to refer to the decisions cited before us
since we have taken the view with reference to clauses set out under the Agreement. We,
therefore, find no merit in these appeals and they stand dismissed.
Chairman, Rly. Board v. Chandrima Das 32
STATE RESPONSIBILITY
DRAFT CODE ON RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS [Adopted by the International Law Commission at its Fifty-third Session (2001)]
PART ONE
THE INTERNATIONALLY WRONGFUL ACT OF A STATE
CHAPTER I
General principles
Article 1 - Responsibility of a State for its internationally wrongful acts
Every internationally wrongful act of a State entails the international responsibility of that
State.
Article 2 - Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct consisting of an action or
omission:
(a) Is attributable to the State under international law; and
(b) Constitutes a breach of an international obligation of the State.
Article 3 - Characterization of an act of a State as internationally wrongful
The characterization of an act of a State as internationally wrongful is governed by
international law. Such characterization is not affected by the characterization of the same act
as lawful by internal law.
CHAPTER II
Attribution of conduct to a State
Article 4 - Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other
functions, whatever position it holds in the organization of the State, and whatever its
character as an organ of the central government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the
internal law of the State.
Article 5 - Conduct of persons or entities exercising elements of governmental authority
The conduct of a person or entity which is not an organ of the State under article 4 but
which is empowered by the law of that State to exercise elements of the governmental
authority shall be considered an act of the State under international law, provided the person
or entity is acting in that capacity in the particular instance.
Chairman, Rly. Board v. Chandrima Das 33
Article 6 - Conduct of organs placed at the disposal of a State by another State
The conduct of an organ placed at the disposal of a State by another State shall be
considered an act of the former State under international law if the organ is acting in the
exercise of elements of the governmental authority of the State at whose disposal it is placed.
Article 7 - Excess of authority or contravention of instructions
The conduct of an organ of a State or of a person or entity empowered to exercise
elements of the governmental authority shall be considered an act of the State under
international law if the organ, person or entity acts in that capacity, even if it exceeds its
authority or contravenes instructions.
Article 8 - Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact acting on the instructions of, or
under the direction or control of, that State in carrying out the conduct.
Article 9 - Conduct carried out in the absence or default of the official authorities
The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact exercising elements of the
governmental authority in the absence or default of the official authorities and in
circumstances such as to call for the exercise of those elements of authority.
Article 10 - Conduct of an insurrectional or other movement
1. The conduct of an insurrectional movement which becomes the new government of a
State shall be considered an act of that State under international law.
2. The conduct of a movement, insurrectional or other, which succeeds in establishing a
new State in part of the territory of a pre-existing State or in a territory under its
administration shall be considered an act of the new State under international law.
3. This article is without prejudice to the attribution to a State of any conduct, however
related to that of the movement concerned, which is to be considered an act of that State by
virtue of articles 4 to 9.
Article 11 - Conduct acknowledged and adopted by a State as its own
Conduct which is not attributable to a State under the preceding articles shall nevertheless
be considered an act of that State under international law if and to the extent that the State
acknowledges and adopts the conduct in question as its own.
CHAPTER III
Breach of an international obligation
Article 12 - Existence of a breach of an international obligation
There is a breach of an international obligation by a State when an act of that State is not
in conformity with what is required of it by that obligation, regardless of its origin or
character.
Chairman, Rly. Board v. Chandrima Das 34
Article 13 - International obligation in force for a State
An act of a State does not constitute a breach of an international obligation unless the
State is bound by the obligation in question at the time the act occurs.
Article 14 - Extension in time of the breach of an international obligation
1. The breach of an international obligation by an act of a State not having a continuing
character occurs at the moment when the act is performed, even if its effects continue.
2. The breach of an international obligation by an act of a State having a continuing
character extends over the entire period during which the act continues and remains not in
conformity with the international obligation.
3. The breach of an international obligation requiring a State to prevent a given event
occurs when the event occurs and extends over the entire period during which the event
continues and remains not in conformity with that obligation.
Article 15 - Breach consisting of a composite act
1. The breach of an international obligation by a State through a series of actions or
omissions defined in aggregate as wrongful, occurs when the action or omission occurs
which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.
2. In such a case, the breach extends over the entire period starting with the first of the
actions or omissions of the series and lasts for as long as these actions or omissions are
repeated and remain not in conformity with the international obligation.
CHAPTER IV
Responsibility of a State in connection with the act of another State
Article 16 - Aid or assistance in the commission of an internationally wrongful act
A State which aids or assists another State in the commission of an internationally
wrongful act by the latter is internationally responsible for doing so if:
(a) That State does so with knowledge of the circumstances of the internationally wrongful act; and
(b) The act would be internationally wrongful if committed by that State.
Article 17 - Direction and control exercised over the commission of an internationally
wrongful act
A State which directs and controls another State in the commission of an internationally
wrongful act by the latter is internationally responsible for that act if:
(a) That State does so with knowledge of the circumstances of the internationally
wrongful act; and
(b) The act would be internationally wrongful if committed by that State.
Article 18 - Coercion of another State
A State which coerces another State to commit an act is internationally responsible for
that act if:
Chairman, Rly. Board v. Chandrima Das 35
(a) The act would, but for the coercion, be an internationally wrongful act of the coerced
State; and
(b) The coercing State does so with knowledge of the circumstances of the act.
Article 19 - Effect of this chapter
This chapter is without prejudice to the international responsibility, under other
provisions of these articles, of the State which commits the act in question, or of any other
State.
CHAPTER V
Circumstances precluding wrongfulness
Article 20 - Consent
Valid consent by a State to the commission of a given act by another State precludes the
wrongfulness of that act in relation to the former State to the extent that the act remains within
the limits of that consent.
Article 21 - Self-defence
The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure
of self-defence taken in conformity with the Charter of the United Nations.
Article 22 - Countermeasures in respect of an internationally wrongful act
The wrongfulness of an act of a State not in conformity with an international obligation
towards another State is precluded if and to the extent that the act constitutes a
countermeasure taken against the latter State in accordance with chapter II of Part Three.
Article 23 - Force majeure
1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an
irresistible force or of an unforeseen event, beyond the control of the State, making it
materially impossible in the circumstances to perform the obligation.
2. Paragraph 1 does not apply if:
(a) The situation of force majeure is due, either alone or in combination with other
factors, to the conduct of the State invoking it; or
(b) The State has assumed the risk of that situation occurring.
Article 24 - Distress
1. The wrongfulness of an act of a State not in conformity with an international obligation
of that State is precluded if the author of the act in question has no other reasonable way, in a
situation of distress, of saving the author’s life or the lives of other persons entrusted to the
author’s care.
2. Paragraph 1 does not apply if:
(a) The situation of distress is due, either alone or in combination with other factors, to
the conduct of the State invoking it; or
(b) The act in question is likely to create a comparable or greater peril.
Chairman, Rly. Board v. Chandrima Das 36
Article 25 - Necessity
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness
of an act not in conformity with an international obligation of that State unless the act:
(a) Is the only way for the State to safeguard an essential interest against a grave and
imminent peril; and
(b) Does not seriously impair an essential interest of the State or States towards which the
obligation exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding
wrongfulness if:
(a) The international obligation in question excludes the possibility of invoking necessity;
or
(b) The State has contributed to the situation of necessity.
Article 26 - Compliance with peremptory norms
Nothing in this chapter precludes the wrongfulness of any act of a State which is not in
conformity with an obligation arising under a peremptory norm of general international law.
Article 27 - Consequences of invoking a circumstance precluding wrongfulness
The invocation of a circumstance precluding wrongfulness in accordance with this
chapter is without prejudice to:
(a) Compliance with the obligation in question, if and to the extent that the circumstance
precluding wrongfulness no longer exists;
(b) The question of compensation for any material loss caused by the act in question.
PART TWO
CONTENT OF THE INTERNATIONAL RESPONSIBILITY OF A STATE
CHAPTER I
General principles
Article 28 - Legal consequences of an internationally wrongful act
The international responsibility of a State which is entailed by an internationally wrongful
act in accordance with the provisions of Part One involves legal consequences as set out in
this Part.
Article 29 - Continued duty of performance
The legal consequences of an internationally wrongful act under this Part do not affect the
continued duty of the responsible State to perform the obligation breached.
Article 30 - Cessation and non-repetition
The State responsible for the internationally wrongful act is under an obligation:
(a) To cease that act, if it is continuing;
Chairman, Rly. Board v. Chandrima Das 37
(b) To offer appropriate assurances and guarantees of non-repetition, if circumstances so
require.
Article 31 - Reparation
1. The responsible State is under an obligation to make full reparation for the injury
caused by the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the internationally
wrongful act of a State.
Article 32 - Irrelevance of internal law
The responsible State may not rely on the provisions of its internal law as justification for
failure to comply with its obligations under this Part.
Article 33 - Scope of international obligations set out in this Part
1. The obligations of the responsible State set out in this Part may be owed to another
State, to several States, or to the international community as a whole, depending in particular
on the character and content of the international obligation and on the circumstances of the
breach.
2. This Part is without prejudice to any right, arising from the international responsibility
of a State, which may accrue directly to any person or entity other than a State.
CHAPTER II
Reparation for injury
Article 34 - Forms of reparation
Full reparation for the injury caused by the internationally wrongful act shall take the
form of restitution, compensation and satisfaction, either singly or in combination, in
accordance with the provisions of this chapter.
Article 35 - Restitution
A State responsible for an internationally wrongful act is under an obligation to make
restitution, that is, to re-establish the situation which existed before the wrongful act was
committed, provided and to the extent that restitution:
(a) Is not materially impossible;
(b) Does not involve a burden out of all proportion to the benefit deriving from restitution
instead of compensation.
Article 36 - Compensation
1. The State responsible for an internationally wrongful act is under an obligation to
compensate for the damage caused thereby, insofar as such damage is not made good by
restitution.
2. The compensation shall cover any financially assessable damage including loss of
profits insofar as it is established.
Chairman, Rly. Board v. Chandrima Das 38
Article 37 - Satisfaction
1. The State responsible for an internationally wrongful act is under an obligation to give
satisfaction for the injury caused by that act insofar as it cannot be made good by restitution
or compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret,
a formal apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the injury and may not take a form
humiliating to the responsible State.
Article 38 - Interest
1. Interest on any principal sum due under this chapter shall be payable when necessary in
order to ensure full reparation. The interest rate and mode of calculation shall be set so as to
achieve that result.
2. Interest runs from the date when the principal sum should have been paid until the date
the obligation to pay is fulfilled.
Article 39 - Contribution to the injury
In the determination of reparation, account shall be taken of the contribution to the injury
by wilful or negligent action or omission of the injured State or any person or entity in
relation to whom reparation is sought.
CHAPTER III
Serious breaches of obligations under peremptory
norms of general international law
Article 40 - Application of this chapter
1. This chapter applies to the international responsibility which is entailed by a serious
breach by a State of an obligation arising under a peremptory norm of general international
law.
2. A breach of such an obligation is serious if it involves a gross or systematic failure by
the responsible State to fulfil the obligation.
Article 41 - Particular consequences of a serious breach of an obligation under this
chapter
1. States shall cooperate to bring to an end through lawful means any serious breach
within the meaning of article 40.
2. No State shall recognize as lawful a situation created by a serious breach within the
meaning of article 40, nor render aid or assistance in maintaining that situation.
3. This article is without prejudice to the other consequences referred to in this Part and to
such further consequences that a breach to which this chapter applies may entail under
international law.
Chairman, Rly. Board v. Chandrima Das 39
PART THREE
THE IMPLEMENTATION OF THE INTERNATIONAL
RESPONSIBILITY OF A STATE
CHAPTER I
Invocation of the responsibility of a State
Article 42 - Invocation of responsibility by an injured State
A State is entitled as an injured State to invoke the responsibility of another State if the
obligation breached is owed to:
(a) That State individually; or
(b) A group of States including that State, or the international community as a whole, and
the breach of the obligation:
(i) Specially affects that State; or
(ii) Is of such a character as radically to change the position of all the other States to
which the obligation is owed with respect to the further performance of the obligation.
Article 43 - Notice of claim by an injured State
1. An injured State which invokes the responsibility of another State shall give notice of
its claim to that State.
2. The injured State may specify in particular:
(a) The conduct that the responsible State should take in order to cease the wrongful act,
if it is continuing;
(b) What form reparation should take in accordance with the provisions of Part Two.
Article 44 - Admissibility of claims
The responsibility of a State may not be invoked if:
(a) The claim is not brought in accordance with any applicable rule relating to the
nationality of claims;
(b) The claim is one to which the rule of exhaustion of local remedies applies and any
available and effective local remedy has not been exhausted.
Article 45 - Loss of the right to invoke responsibility
The responsibility of a State may not be invoked if:
(a) The injured State has validly waived the claim;
(b) The injured State is to be considered as having, by reason of its conduct, validly
acquiesced in the lapse of the claim.
Article 46 - Plurality of injured States
Where several States are injured by the same internationally wrongful act, each injured State may separately invoke the responsibility of the State which has committed the
internationally wrongful act.
Chairman, Rly. Board v. Chandrima Das 40
Article 47 - Plurality of responsible States
1. Where several States are responsible for the same internationally wrongful act, the
responsibility of each State may be invoked in relation to that act.
2. Paragraph 1:
(a) Does not permit any injured State to recover, by way of compensation, more than the
damage it has suffered;
(b) Is without prejudice to any right of recourse against the other responsible States.
Article 48 - Invocation of responsibility by a State other than an injured State
1. Any State other than an injured State is entitled to invoke the responsibility of another
State in accordance with paragraph 2 if:
(a) The obligation breached is owed to a group of States including that State, and is
established for the protection of a collective interest of the group; or
(b) The obligation breached is owed to the international community as a whole.
2. Any State entitled to invoke responsibility under paragraph 1 may claim from the
responsible State:
(a) Cessation of the internationally wrongful act, and assurances and guarantees of non-
repetition in accordance with article 30; and
(b) Performance of the obligation of reparation in accordance with the preceding articles,
in the interest of the injured State or of the beneficiaries of the obligation breached.
3. The requirements for the invocation of responsibility by an injured State under articles
43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under
paragraph 1.
CHAPTER II
Countermeasures
Article 49 - Object and limits of countermeasures
1. An injured State may only take countermeasures against a State which is responsible
for an internationally wrongful act in order to induce that State to comply with its obligations
under Part Two.
2. Countermeasures are limited to the non-performance for the time being of international
obligations of the State taking the measures towards the responsible State.
3. Countermeasures shall, as far as possible, be taken in such a way as to permit the
resumption of performance of the obligations in question.
Article 50 - Obligations not affected by countermeasures
1. Countermeasures shall not affect:
(a) The obligation to refrain from the threat or use of force as embodied in the Charter
of the United Nations;
(b) Obligations for the protection of fundamental human rights;
(c) Obligations of a humanitarian character prohibiting reprisals;
Chairman, Rly. Board v. Chandrima Das 41
(d) Other obligations under peremptory norms of general international law.
2. A State taking countermeasures is not relieved from fulfilling its obligations:
(a) Under any dispute settlement procedure applicable between it and the responsible
State;
(b) To respect the inviolability of diplomatic or consular agents, premises, archives
and documents.
Article 51 - Proportionality
Countermeasures must be commensurate with the injury suffered, taking into account the
gravity of the internationally wrongful act and the rights in question.
Article 52 - Conditions relating to resort to countermeasures
1. Before taking countermeasures, an injured State shall:
(a) Call on the responsible State, in accordance with article 43, to fulfil its obligations
under Part Two;
(b) Notify the responsible State of any decision to take countermeasures and offer to
negotiate with that State.
2. Notwithstanding paragraph 1(b), the injured State may take such urgent
countermeasures as are necessary to preserve its rights.
3. Countermeasures may not be taken, and if already taken must be suspended without
undue delay if:
(a) The internationally wrongful act has ceased; and
(b) The dispute is pending before a court or tribunal which has the authority to make
decisions binding on the parties.
4. Paragraph 3 does not apply if the responsible State fails to implement the dispute
settlement procedures in good faith.
Article 53 - Termination of countermeasures
Countermeasures shall be terminated as soon as the responsible State has complied with
its obligations under Part Two in relation to the internationally wrongful act.
Article 54 - Measures taken by States other than an injured State
This chapter does not prejudice the right of any State, entitled under article 48, paragraph
1 to invoke the responsibility of another State, to take lawful measures against that State to
ensure cessation of the breach and reparation in the interest of the injured State or of the
beneficiaries of the obligation breached.
* * * * *
Chairman, Rly. Board v. Chandrima Das 42
NOTTEBOHM CASE
Liechtenstein v. Guatemala 1CJ Reports 1955, p. 4
Nottebohm was a German national since birth in 1881. In 1905 he had taken residence in
Guatemala and engaged in substantial business dealings there. In 1939, Nottebohm applied
for naturalization in Liechtenstein.
He obtained a Liechtenstein passport, had it visaed by the Guatemalan Consul in Zurich,
and returned to Guatemala to resume his business activities. At his request, Guatemalan
authorities made appropriate changes regarding Nottebohm’s nationality in the Register of
Aliens and in his identity document.
On 17 July 1941, United States blacklisted Nottebohm and froze his assets in the United
States. War broke out between United States and Germany, and between Guatemala and
Germany, on 11 December 1941. Nottebohm was arrested by Guatemalan authorities in 1943
and deported to the United States, where he was interned until 1946 as an enemy alien. On his
release, he applied for his readmission to Guatemala but his application was refused.
Nottebohm then took up residence in Liechtenstein, but Guatemala had in the meantime taken
measures against his properties in that country, culminating in confiscatory legislation of
1949.
Liechtenstein instituted proceedings against Guatemala in the International Court of
Justice, asking the Court to declare that Guatemala had violated international law in arresting, detaining, expelling and refusing to readmit Nottebohm and in seizing and retaining his
property and consequently was bound to pay compensation. Guatemala’s principal argument
in reply was that the Liechtenstein claim was inadmissible on grounds of the claimant’s
nationality.
The International Court of Justice observed that the naturalization of Nottebohm was an
act performed by Liechtenstein in the exercise of its domestic jurisdiction. When one State has conferred its nationality upon an individual and another State has conferred its own
nationality on the same person, it may occur that each of these States, considering itself to
have acted in the exercise of its domestic jurisdiction, adheres to its own view and bases itself
thereon insofar as its own actions are concerned. In so doing, each State remains within the
limits of its domestic jurisdiction.
In cases of dual nationality, where the question arose with regard to the exercise of protection, international arbitrators have given preference to the real and effective nationality,
that which accorded with the facts, that based on stronger factual ties between the person
concerned and one of the States whose nationality is involved. Different factors are taken into
consideration, and their importance will vary from one case to the next, the habitual residence
of the individual concerned is an important factor, but there are other factors such as the
center of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.
Chairman, Rly. Board v. Chandrima Das 43
Naturalization is not a matter to be taken lightly. To seek and to obtain it is not something
that happens frequently in the life of a human being. It involves his breaking of a bond of
allegiance and his establishment of a new bond of allegiance. It may have far-reaching
consequences and involve profound changes in the destiny of the individual who obtains it. It
concerns him personally, and to consider it only from the point of view of its repercussions
with regard to his property would be to misunderstand its profound significance. In order to
appraise its international effects, it is impossible to disregard the circumstances in which it
was conferred, the serious character which attaches to it, the real and effective, and not
merely verbal preference of the individual seeking it for the country which grants it to him.
According to the practice of States, arbitral and judicial decisions and opinions of writers,
nationality is a legal bond having as its basis a social fact of attachment, a genuine connection
of existence, interests and sentiments, together with the existence of reciprocal rights and
duties. It may be said to constitute the juridical expression of the fact that the individual upon
whom it is conferred, either directly by the law or as the result of an act of the authorities is in
fact more closely connected with the population of the State conferring nationality than with
that of any other State. Conferred by a State, it only entitles that State to exercise protection
vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s
connection with the State which has made him its national.
At the time of his naturalization, Nottebohm was settled in Guatemala for 34 years and
carried on his activities there. He stayed there until his removal as a result of war measures in
1943. He subsequently attempted to return there, and he now complains of Guatemala’s
refusal to admit him. In contrast, his connections with Liechtenstein were extremely tenuous.
No settled abode, no prolonged residence in that country at the time of his application for
naturalization; the application indicates that he was paying a visit and confirms the transient
character of his visit by its request that the naturalization proceedings should be initiated and
concluded without delay. No intention of settling there was shown at the time or realized in
the ensuing weeks, months or years, on the contrary, he returned to Guatemala very shortly
after his naturalization and showed every intention of remaining there.
The above-mentioned facts clearly establish, on the one hand, the absence of any bond of
attachment between Nottebohm and Liechtenstein and, on the other hand, the existence of a
long-standing and close connection between him and Guatemala, a link which his
naturalization in no way weakened. Naturalization was asked for not so much for the purpose
of obtaining a legal recognition of Nottebohm’s membership in fact in the population of
Liechtenstein, as it was to enable him to substitute for his status as a national of a belligerent
State that of a national of a neutral State, with the sole aim of thus coming within the
protection of Liechtenstein but not of becoming wedded to its traditions, its interests, is way
of life or of assuming the obligations-other than fiscal obligation and exercising the rights
pertaining to the status thus acquired.
Accordingly, International Court of Justice came to the conclusion that Guatemala is
under no obligation to recognize a nationality granted in such circumstances. Liechtenstein
consequently is not entitled to extend its protection to Nottebohm vis-à-vis Guatemala and its
claim must, for this reason, be held to be inadmissible.
Chairman, Rly. Board v. Chandrima Das 44
Barcelona Traction, Light And Power Co. Ltd. Case ICJ Reports, 1964, p. 6
In the case concerning Barcelona Traction, Light and Power Company Limited, the claim
is presented on behalf of natural and juristic persons, alleged to be Belgian nationals and
shareholders of the Barcelona Traction, Light and Power Company Limited. The object of the
Belgian application is reparation for damage allegedly caused to Belgian nationals
(shareholders) by the conduct, said to be contrary to international law, of various organs of
the Spanish State towards Barcelona Traction Company. Barcelona Traction Company was
incorporated and had its registered office in Canada. Thus, the States, which the present case
principally concerns are Belgium, the national State whose organs are alleged to have
committed the unlawful acts complained of, and Canada, the State under whose laws
Barcelona Traction was incorporated and in whose territory it had its registered office.
The following issues arise in this case : first, whether Belgium has a right to exercise
diplomatic protection of Belgian shareholders in a company which is a juristic entity
incorporated in Canada, the measures complained of having been taken by Spanish
government in relation not to any Belgian national but to the company itself, secondly, what
considerations govern determination of the nationality of a corporate entity ?
On the first issue, the International Court of Justice feels that limited liability company
whose capital is represented by shares enjoys in municipal legal systems independent
corporate personality and is a separate entity form the shareholder who, so long as the
company is in existence, has no right to corporate assets. If the Court were to decide the case
in disregard of the relevant institutions of municipal law, it would lose touch with reality. It is
to rules generally accepted by municipal legal systems and not to municipal law of a
particular State, that international law refers. The Court, in its following observation, does not
deny the fact that a wrong done to the company frequently causes prejudice to its
shareholders.
But the mere fact that damage is sustained by both company and shareholder does not
imply that both are entitled to claim compensation. Creditors do not have any right to claim
compensation from a person who, by wronging their debtor, causes them loss. In such cases,
no doubt, the interests of the aggrieved are affected, but not their rights. Thus whenever
shareholders’ interests are harmed by an act done to the company, it is to the latter that he must look to institute appropriate action; for although two separate entities may have suffered
from the same wrong, it is only one entity whose rights have been infringed.
The Court considers that the adoption of the theory of diplomatic protection of
shareholders as such, by opening the door to competing diplomatic claims, could crate an
atmosphere of confusion and insecurity in international economic relations. The danger would
be all the greater in as much shares of companies whose activity is international are widely scattered and frequently change hands.
The situation would be different if the act complained of is aimed at the direct rights to
any declared dividend, the right to attend and vote at general meetings, the right to share in
the residual assets of the company on liquidation. In such cases, the State of nationality of any
Chairman, Rly. Board v. Chandrima Das 45
individual shareholder may intervene in his favour, regardless of the nationality of the
company.
Some writers contend that diplomatic protection is permissible when it is exercised with
respect to corporations constituted in or having the nationality of the respondent State. In
support of this thesis, it is argued that otherwise those shareholders would be totally deprived
of diplomatic protection. This argument, however, is untenable in view of the fact that to
admit such an exception would be to make havoc with the system of international rules
regarding the treatment of foreigners.
Coming to the second issue, the International Court of Justice points out that in allocating
corporate entities to States, International Law is based, but only to a limited extent on an
analogy with the rules governing the nationality of individuals. The traditional rule attributes
the right of diplomatic protection of a corporate entity to the State under the laws of which it
is incorporated and in whose territory it has its registered office. These two criteria have been
confirmed by long practice and by numerous international instruments. This, notwithstanding,
further or different links are at times said to be required in order that a right of diplomatic
protection should exist. Indeed, it has been the practice of some States to give a company
incorporated under their law diplomatic protection solely when it has its seat or management
or centre of control in their territory, or when a majority or a substantial portion of the shares
has been owned by national of the State concerned. Only then, it has been held, does there
exist between the Corporation and the State in question a genuine connection of the kind
familiar from other branches of International law. However, in the particular field of
diplomatic protection of corporate entities, no absolute test of the ‘genuine connection’ has
found general acceptance. Such tests as have been applied are of a relative nature, and
sometimes links with one State have had to be weighted against those of another. In the
present case, Barcelona Traction’s links with Canada are manifold. It was incorporated in
Canada and had its registered office there. Its Board meetings were held in Canada for many
years. In fact, Canadian nationality of the Company has received has received general
recognition. Accordingly, the application of Belgian, government was rejected by the
International Court of Justice.
* * * * *
Chairman, Rly. Board v. Chandrima Das 46
CASE CONCERNING THE MILITARY AND PARAMILITARY ACTIVITIES
IN AND AGAINST NICARAGUA (Merits)
Nicaragua v. United States of America ICJ Reports 1986, p. 14
Background
The non-appearance of the Respondent and Article 53 of the Statute
The Court recalls that subsequent to the delivery of its Judgment of 26 November 1984
on the jurisdiction of the Court and the admissibility of Nicaragua's Application, the United
States decided not to take part in the present phase of the proceedings. This however does not
prevent the Court from giving a decision in the case, but it has to do so while respecting the
requirements of Article 53 of the Statute, which provides for the situation when one of the
parties does not appear. The Court's jurisdiction being established, it has in accordance with
Article 53 to satisfy itself that the claim of the party appearing is well founded in fact and law.
In this respect the Court recalls certain guiding principles brought out in a number of previous
cases, one of which excludes any possibility of a judgment automatically in favour of the
party appearing. It also observes that it is valuable for the Court to know the views of the non-
appearing party, even if those views are expressed in ways not provided for in the Rules of
Court. The principle of the equality of the parties has to remain the basic principle, and the
Court has to ensure that the party which declines to appear should not be permitted to profit
from its absence.
Justiciability of the dispute
The Court considers it appropriate to deal with a preliminary question. It has been
suggested that the questions of the use of force and collective self-defence raised in the case
fall outside the limits of the kind of questions the Court can deal with, in other words that they
are not justiciable. However, in the first place the Parties have not argued that the present
dispute is not a "legal dispute" within the meaning of Article 36, paragraph 2, of the Statute,
and secondly, the Court considers that the case does not necessarily involve it in evaluation of
political or military matters, which would be to overstep proper judicial bounds.
Consequently, it is equipped to determine these problems.
The significance of the multilateral treaty reservation
The United States declaration of acceptance of the compulsory jurisdiction of the Court
under Article 36, paragraph 2, of the Statute contained a reservation excluding from operation
of the declaration
“disputes arising under a multilateral treaty, unless (1) all parties to the treaty
affected by the decision are also parties to the case before the Court, or (2) the United
States of America specially agrees to jurisdiction”.
In its Judgment of 26 November 1984 the Court found, on the basis of Article 79,
paragraph 7, of the Rules of Court, that the objection to jurisdiction based on the
reservation raised “a question concerning matters of substance relating to the merits of the
Chairman, Rly. Board v. Chandrima Das 47
case” and that the objection did “not possess, in the circumstances of the case, an
exclusively preliminary character”. Since it contained both preliminary aspects and other
aspects relating to the merits, it had to be dealt with at the stage of the merits.
In order to establish whether its jurisdiction were limited by the effect of the reservation
in question, the Court has to ascertain whether any third States, parties to the four multilateral
treaties invoked by Nicaragua, and not parties to the proceedings, would be “affected” by the
Judgment. Of these treaties, the Court considers it sufficient to examine the position under the
United Nations Charter and the Charter of the Organization of American States.
The Court examines the impact of the multilateral treaty reservation on Nicaragua's claim
that the United States has used force in breach of the two Charters. The Court examines in
particular the case of El Salvador, for whose benefit primarily the United States claims to be
exercising the right of collective self-defence which it regards as a justification of its own
conduct towards Nicaragua, that right being endorsed by the United Nations Charter (Art. 51)
and the OAS Charter (Art. 21). The dispute is to this extent a dispute “arising under”
multilateral treaties to which the United States, Nicaragua and El Salvador are Parties. It
appears clear to the Court that El Salvador would be “affected” by the Court's decision on the
lawfulness of resort by the United States to collective self-defence.
As to Nicaragua's claim that the United States has intervened in its affairs contrary to the
OAS Charter (Art. 18) the Court observes that it is impossible to say that a ruling on the
alleged breach of the Charter by the United States would not “affect” El Salvador.
Having thus found that El Salvador would be “affected” by the decision that the Court
would have to take on the claims of Nicaragua based on violation of the two Charters by the
United States, the Court concludes that the jurisdiction conferred on it by the United States
declaration does not permit it to entertain these claims. It makes it clear that the effect of the
reservation is confined to barring the applicability of these two multilateral treaties as
multilateral treaty law, and has no further impact on the sources of international law which
Article 38 of the Statute requires the Court to apply, including customary international law.
Establishment of the facts: evidence and methods employed by the Court
The Court has had to determine the facts relevant to the dispute. The difficulty of its task
derived from the marked disagreement between the Parties, the non-appearance of the
Respondent, the secrecy surrounding certain conduct, and the fact that the conflict is
continuing. On this last point, the Court takes the view, in accordance with the general
principles as to the judicial process, that the facts to be taken into account should be those
occurring up to the close of the oral proceedings on the merits of the case.
With regard to the production of evidence, the Court indicates how the requirements of its
Statute - in particular Article 53 - and the Rules of Court have to be met in the case, on the
basis that the Court has freedom in estimating the value of the various elements of evidence.
It has not seen fit to order an enquiry under Article 50 of the Statute. With regard to certain
documentary material (press articles and various books), the Court has treated these with
caution. It regards than not as evidence capable of proving facts, but as material which can
nevertheless contribute to corroborating the existence of a fact and be taken into account to
show whether certain facts are matters of public knowledge. With regard to statements by
Chairman, Rly. Board v. Chandrima Das 48
representatives of States, sometimes at the highest level, the Court takes the view that such
statements are of particular probative value when they acknowledge facts or conduct
unfavourable to the State represented by the person who made them. With regard to the
evidence of witnesses presented by Nicaragua - five witnesses gave oral evidence and another
a written affidavit-one consequence of the absence of the Respondent was that the evidence of
the witnesses was not tested by cross-examination. The Court has not treated as evidence any
part of the testimony which was a mere expression of opinion as to the probability or
otherwise of the existence of a fact not directly known to the witness. With regard in
particular to affidavits and sworn statements made by members of a Government, the Court
considers that it can certainly retain such parts of this evidence as may be regarded as
contrary to the interests or contentions of the State to which the witness has allegiance; for the
rest such evidence has to be treated with great reserve.
The Court is also aware of a publication of the United States State Department entitled
“Revolution Beyond Our Borders, Sandinista Intervention in Central America” which was not
submitted to the Court in any form or manner contemplated by the Statute and Rules of Court.
The Court considers that, in view of the special circumstances of this case, it may, within
limits, make use of information in that publication.
The facts imputable to the United States
1. The Court examines the allegations of Nicaragua that the mining of Nicaraguan ports
or waters was carried out by United States military personnel or persons of the nationality of
Latin American countries in the pay of the United States. After examining the facts, the Court
finds it established that, on a date in late 1983 or early 1984, the President of the United States authorized a United States Government agency to lay mines in Nicaraguan ports, that
in early 1984 mines were laid in or close to the ports of El Bluff, Corinto and Puerto Sandino,
either in Nicaraguan internal waters or in its territorial sea or both, by persons in the pay and
acting on the instructions of that agency, under the supervision and with the logistic support
of United States agents; that neither before the laying of the mines, nor subsequently, did the
United States Government issue any public and official warning to international shipping of
the existence and location of the mines; and that personal and material injury was caused by
the explosion of the mines, which also created risks causing a rise in marine insurance rates.
2. Nicaragua attributes to the direct action of United States personnel, or persons in its
pay, operations against oil installations, a naval base, etc., listed in paragraph 81 of the
Judgment. The Court finds all these incidents, except three, to be established. Although it is
not proved that any United States military personnel took a direct part in the operations,
United States agents participated in the planning, direction and support. The imputability to
the United States of these attacks appears therefore to the Court to be established.
3. Nicaragua complains of infringement of its air space by United States military aircraft.
After indicating the evidence available, the Court finds that the only violations of Nicaraguan
air space imputable to the United States on the basis of the evidence are high altitude
reconnaissance flights and low altitude flights on 7 to 11 November 1984 causing “sonic
booms”.
Chairman, Rly. Board v. Chandrima Das 49
With regard to joint military manoeuvres with Honduras carried out by the United States
on Honduran territory near the Honduras/Nicaragua frontier, the Court considers that they
may be treated as public knowledge and thus sufficiently established.
4. The Court then examines the genesis, development and activities of the contra force,
and the role of the United States in relation to it. According to Nicaragua, the United States
“conceived, created and organized a mercenary army, the contra force”. On the basis of the
available information, the Court is not able to satisfy itself that the Respondent State "created"
the contra force in Nicaragua, but holds it established that it largely financed, trained,
equipped, armed and organized the FDN, one element of the force.
It is claimed by Nicaragua that the United States Government devised the strategy and
directed the tactics of the contra force, and provided direct combat support for its military
operations. In the light of the evidence and material available to it, the Court is not satisfied
that all the operations launched by the contra force, at every stage of the conflict, reflected
strategy and tactics solely devised by the United States. It therefore cannot uphold the
contention of Nicaragua on this point. The Court however finds it clear that a number of
operations were decided and planned, if not actually by the United States advisers, then at
least in close collaboration with them, and on the basis of the intelligence and logistic support
which the United States was able to offer. It is also established in the Court's view that the
support of the United States for the activities of the contras took various forms over the years,
such as logistic support the supply of information on the location and movements of the
Sandinista troops, the use of sophisticated methods of communication, etc. The evidence does
not however warrant a finding that the United States gave direct combat support, if that is
taken to mean direct intervention by United States combat forces.
The Court has to determine whether the relationship of the contras to the United States
Government was such that it would be right to equate the contras, for legal purposes, with an
organ of the United States Government, or as acting on behalf of that Government. The Court
considers that the evidence available to it is insufficient to demonstrate the total dependence
of the contras on United States aid. A partial dependency, the exact extent of which the Court
cannot establish, may be inferred from the fact that the leaders were selected by the United
States, and from other factors such as the organisation, training and equipping of the force,
planning of operations, the choosing of targets and the operational support provided. There is
no clear evidence that the United States actually exercised such a degree of control as to
justify treating the contras as acting on its behalf.
5. Having reached the above conclusion, the Court takes the view that the contras remain
responsible for their acts, in particular the alleged violations by them of humanitarian law.
For the United States to be legally responsible, it would have to be proved that that State had
effective control of the operations in the course of which the alleged violations were
committed.
6. Nicaragua has complained of certain measures of an economic nature taken against it
by the Government of the United States, which it regards as an indirect form of intervention
in its internal affairs. Economic aid was suspended in January 1981, and terminated in April
1981; the United States acted to oppose or block loans to Nicaragua by international financial
Chairman, Rly. Board v. Chandrima Das 50
bodies; the sugar import quota from Nicaragua was reduced by 90 percent in September 1983;
and a total trade embargo on Nicaragua was declared by an executive order of the President of
the United States on 1 May 1985.
The conduct of Nicaragua
The Court has to ascertain, so far as possible, whether the activities of the United States
complained of, claimed to have been the exercise of collective self-defence, may be justified
by certain facts attributable to Nicaragua.
1. The United States has contended that Nicaragua was actively supporting armed groups
operating in certain of the neighbouring countries, particularly in El Salvador, and
specifically in the form of the supply of arms, an accusation which Nicaragua has repudiated.
The Court first examines the activity of Nicaragua with regard to El Salvador. Having
examined various evidence, and taking account of a number of concordant indications, many
of which were provided by Nicaragua itself, from which the Court can reasonably infer the
provision of a certain amount of aid from Nicaraguan territory, the Court concludes that
support for the armed opposition in El Salvador from Nicaraguan territory was a fact up to the
early months of 1981. Subsequently, evidence of military aid from or through Nicaragua remains very weak, despite the deployment by the United States in the region of extensive
technical monitoring resources. The Court cannot however conclude that no transport of or
traffic in arms existed. It merely takes note that the allegations of arms traffic are not solidly
established, and has not been able to satisfy itself that any continuing flow on a significant
scale took place after the early months of 1981.
Even supposing it were established that military aid was reaching the armed opposition in
El Salvador from the territory of Nicaragua, it skill remains to be proved that such aid is
imputable to the authorities of Nicaragua, which has not sought to conceal the possibility of
weapons crossing its territory, but denies that this is the result of any deliberate official policy
on its part. Having regard to the circumstances characterizing this part of Central America,
the Court considers that it is scarcely possible for Nicaragua's responsibility for arms traffic
on its territory to be automatically assumed. The Court considers it more consistent with the probabilities to recognize that an activity of that nature, if on a limited scale, may very well be
pursued unknown to the territorial government. In any event the evidence is insufficient to
satisfy the Court that the Government of Nicaragua was responsible for any flow of arms at
either period.
2. The United States has also accused Nicaragua of being responsible for cross-border
military attacks on Honduras and Costa Rica. While not as fully informed on the question as it would wish to be, the Court considers as established the fact that certain trans-border
military incursions are imputable to the Government of Nicaragua.
3. The Judgment recalls certain events which occurred at the time of the fall of President
Somoza, since reliance has been placed on them by the United States to contend that the
present Government of Nicaragua is in violation of certain alleged assurances given by its
immediate predecessor. The Judgment refers in particular to the “Plan to secure peace” sent
on 12 July 1979 by the “Junta of the Government of National Reconstruction” of Nicaragua to
the Secretary-General of the OAS, mentioning, inter alia, its “firm intention to establish full
Chairman, Rly. Board v. Chandrima Das 51
observance of human rights in our country” and “to call the first free elections our country has
known in this century”. The United States considers that it has a special responsibility
regarding the implementation of these commitments.
The applicable law: customary international law
The Court has reached the conclusion (section V, in fine) that it has to apply the
multilateral treaty reservation in the United States declaration, the consequential exclusion of
multilateral treaties being without prejudice either to other treaties or other sources of law
enumerated in Article 38 of the Statute. In order to determine the law actually to be applied to
the dispute, it has to ascertain the consequences of the exclusion of the applicability of the
multilateral treaties for the definition of the content of the customary international law which
remains applicable.
The Court, which has already commented briefly on this subject in the jurisdiction phase
(I.C.J. Reports 1984, pp. 424 and 425, para. 73), develops its initial remarks. It does not
consider that it can be claimed, as the United States does, that all the customary rules which
may be invoked have a content exactly identical to that of the rules contained in the treaties
which cannot be applied by virtue of the United States reservation. Even if a treaty norm and a customary norm relevant to the present dispute were to have exactly the same content, this
would not be a reason for the Court to take the view that the operation of the treaty process
must necessarily deprive the customary norm of its separate applicability. Consequently, the
Court is in no way bound to uphold customary rules only in so far as they differ from the
treaty rules which it is prevented by the United States reservation from applying.
In response to an argument of the United States, the Court considers that the divergence
between the content of the customary norms and that of the treaty law norms is not such that a
judgment confined to the field of customary international law would not be susceptible of
compliance or execution by the parties.
The content of the applicable law
1. Introduction: general observations
The Court has next to consider what are the rules of customary law applicable to the present dispute. For this purpose it has to consider whether a customary rule exists in the
opinio juris of States, and satisfy itself that it is confirmed by practice.
2. The prohibition of the use of force, and the right of self-defence
The Court finds that both Parties take the view that the principles as to the use of force
incorporated in the United Nations Charter correspond, in essentials, to those found in
customary international law. They therefore accept a treaty-law obligation to refrain in their
international relations from the threat or use of force against the territorial integrity or
political independence of any State, or in any other manner inconsistent with the purposes of
the United Nations (Art. 2, para. 4, of the Charter). The Court has however to be satisfied that
there exists in customary law an opinio juris as to the binding character of such abstention. It
considers that this opinio juris may be deduced from, inter alia, the attitude of the Parties and
of States towards certain General Assembly resolutions, and particularly resolution 2625
(XXV) entitled “Declaration on Principles of International Law concerning Friendly
Chairman, Rly. Board v. Chandrima Das 52
Relations and Co-operation among States in Accordance with the Charter of the United
Nations”. Consent to such resolutions is one of the forms of expression of an opinio juris with
regard to the principle of non-use of force, regarded as a principle of customary international
law, independently of the provisions, especially those of an institutional kind, to which it is
subject on the treaty-law plane of the Charter.
The general rule prohibiting force established in customary law allows for certain
exceptions. The exception of the right of individual or collective self-defence is also, in the
view of States, established in customary law, as is apparent for example from the terms of
Article 51 of the United Nations Charter, which refers to an "inherent right", and from the
declaration in resolution 2625 (XXV). The Parties, who consider the existence of this right to
be established as a matter of customary international law, agree in holding that whether the
response to an attack is lawful depends on the observance of the criteria of the necessity and
the proportionality of the measures taken in self-defence.
Whether self-defence be individual or collective, it can only be exercised in response to
an “armed attack”. In the view of the Court, this is to be understood as meaning not merely
action by regular armed forces across an international border, but also the sending by a State
of armed bands on to the territory of another State, if such an operation, because of its scale
and effects, would have been classified as an armed attack had it been carried out by regular
armed forces. The Court quotes the definition of aggression annexed to General Assembly
resolution 3314 (XXIX) as expressing customary law in this respect.
The Court does not believe that the concept of “armed attack” includes assistance to
rebels in the form of the provision of weapons or logistical or other support. Furthermore, the Court finds that in customary international law, whether of a general kind or that particular to
the inter-American legal system, there is no rule permitting the exercise of collective self-
defence in the absence of a request by the State which is a victim of the alleged attack, this
being additional to the requirement that the State in question should have declared itself to
have been attacked.
3. The principle of non-intervention
The principle of non-intervention involves the right of every sovereign State to conduct
its affairs without outside interference. Expressions of an opinio juris of States regarding the
existence of this principle are numerous. The Court notes that this principle, stated in its own
jurisprudence, has been reflected in numerous declarations and resolutions adopted by
international organizations and conferences in which the United States and Nicaragua have
participated. The text thereof testifies to the acceptance by the United States and Nicaragua of a customary principle which has universal application. As to the content of the principle in
customary law, the Court defines the constitutive elements which appear relevant in this case:
a prohibited intervention must be one bearing on matters in which each State is permitted, by
the principle of State sovereignty, to decide freely (for example the choice of a political,
economic, social and cultural system, and formulation of foreign policy). Intervention is
wrongful when it uses, in regard to such choices, methods of coercion, particularly force,
either in the direct form of military action or in the indirect form of support for subversive
activities in another State.
Chairman, Rly. Board v. Chandrima Das 53
With regard to the practice of States, the Court notes that there have been in recent years a
number of instances of foreign intervention in one State for the benefit of forces opposed to
the government of that State. It concludes that the practice of States does not justify the view
that any general right of intervention in support of an opposition within another State exists in
contemporary international law; and this is in fact not asserted either by the United States or
by Nicaragua.
4. Collective counter-measures in response to conduct not amounting to armed attack
The Court then considers the question whether, if one State acts towards another in
breach of the principle of non-intervention, a third State may lawfully take action by way of
counter-measures which would amount to an intervention in the first State's internal affairs.
This would be analogous to the right of self-defence in the case of armed attack, but the act
giving rise to the reaction would be less grave, not amounting to armed attack. In the view of
the Court, under international law in force today, States do not have a right of "collective"
armed response to acts which do not constitute an “armed attack”.
5. State sovereignty
Turning to the principle of respect for State sovereignty, the Court recalls that the concept
of sovereignty, both in treaty-law and in customary international law, extends to the internal
waters and territorial sea of every State and to the airspace above its territory. It notes that the
laying of mines necessarily affects the sovereignty of the coastal State, and that if the right of
access to ports is hindered by the laying of mines by another State, what is infringed is the
freedom of communications and of maritime commerce.
6. Humanitarian law
The Court observes that the laying of mines in the waters of another State without any
warning or notification is not only an unlawful act but also a breach of the principles of
humanitarian law underlying the Hague Convention No. VIII of 1907. This consideration
leads the Court on to examination of the international humanitarian law applicable to the
dispute. Nicaragua has not expressly invoked the provisions of international humanitarian law
as such, but has complained of acts committed on its territory which would appear to be
breaches thereof. In its submissions it has accused the United States of having killed,
wounded and kidnapped citizens of Nicaragua. Since the evidence available is insufficient for
the purpose of attributing to the United States the acts committed by the contras, the Court
rejects this submission.
The question however remains of the law applicable to the acts of the United States in
relation to the activities of the contrast Although Nicaragua has refrained from referring to
the four Geneva Conventions of 12 August 1949, to which Nicaragua and the United States
are parties, the Court considers that the rules stated in Article 3, which is common to the four
Conventions, applying to armed conflicts of a non-international character, should be applied.
The United States is under an obligation to "respect" the Conventions and even to "ensure
respect" for them, and thus not to encourage persons or groups engaged in the conflict in
Nicaragua to act in violation of the provisions of Article 3. This obligation derives from the
general principles of humanitarian law to which the Conventions merely give specific
expression.
Chairman, Rly. Board v. Chandrima Das 54
7. The 1956 treaty
In its Judgment of 26 November 1984, the Court concluded that it had jurisdiction to
entertain claims concerning the existence of a dispute between the United States and
Nicaragua as to the interpretation or application of a number of articles of the treaty of
Friendship, Commerce and Navigation signed at Managua on 21 January 1956. It has to
determine the meaning of the various relevant provisions, and in particular of Article XXI,
paragraphs I(c) and I(d), by which the parties reserved the power to derogate from the other
provisions.
Application of the law to the facts
Having set out the facts of the case and the rules of international law which appear to be
in issue as a result of those facts, the Court has now to appraise the facts in relation to the
legal rules applicable, and determine whether there are present any circumstances excluding
the unlawfulness of particular acts.
1. The prohibition of the use of force and the right of self-defence
Appraising the facts first in the light of the principle of the non-use of force, the Court
considers that the laying of mines in early 1984 and certain attacks on Nicaraguan ports, oil
installations and naval bases, imputable to the United States constitute infringements of this
principle, unless justified by circumstances which exclude their unlawfulness. It also
considers that the United States has committed a prima facie violation of the principle by
arming and training the contras, unless this can be justified as an exercise of the right of self-
defence.
On the other hand, it does not consider that military manoeuvres held by the United States near the Nicaraguan borders, or the supply of funds to the contras, amounts to a use of force.
The Court has to consider whether the acts which it regards as breaches of the principle
may be justified by the exercise of the right of collective self-defence, and has therefore to
establish whether the circumstances required are present. For this, it would first have to find
that Nicaragua engaged in an armed attack against El Salvador, Honduras or Costa Rica, since
only such an attack could justify reliance on the right of self-defence. As regards El Salvador, the Court considers that in customary international law the provision of arms to the opposition
in another State does not constitute an armed attack on that State. As regards Honduras and
Costa Rica, the Court states that, in the absence of sufficient information as to the transborder
incursions into the territory of those two States from Nicaragua, it is difficult to decide
whether they amount, singly or collectively, to an armed attack by Nicaragua. The Court finds
that neither these incursions nor the alleged supply of arms may be relied on as justifying the
exercise of the right of collective self-defence.
Secondly, in order to determine whether the United States was justified in exercising self-
defence, the Court has to ascertain whether the circumstances required for the exercise of this
right of collective self-defence were present, and therefore considers whether the States in
question believed that they were the victims of an armed attack by Nicaragua, and requested
the assistance of the United States in the exercise of collective self-defence. The Court has
seen no evidence that the conduct of those States was consistent with such a situation.
Chairman, Rly. Board v. Chandrima Das 55
Finally, appraising the United States activity in relation to the criteria of necessity and
proportionality, the Court cannot find that the activities in question were undertaken in the
light of necessity, and finds that some of them cannot be regarded as satisfying the criterion of
proportionality.
Since the plea of collective self-defence advanced by the United States cannot be upheld,
it follows that the United States has violated the principle prohibiting recourse to the threat or
use of force by the acts referred to in the first paragraph of this section.
2. The principle of non-intervention
The Court finds it clearly established that the United States intended, by its support of the
contras, to coerce Nicaragua in respect of matters in which each State is permitted to decide
freely, and that the intention of the contras themselves was to overthrow the present
Government of Nicaragua. It considers that if one State, with a view to the coercion of
another State, supports and assists armed bands in that State whose purpose is to overthrow its
government, that amounts to an intervention in its internal affairs, whatever the political
objective of the State giving support. It therefore finds that the support given by the United
States to the military and paramilitary activities of the contras in Nicaragua, by financial support, training, supply of weapons, intelligence and logistic support, constitutes a clear
breach of the principle of non-intervention. Humanitarian aid on the other hand cannot be
regarded as unlawful intervention. With effect from 1 October 1984, the United States
Congress has restricted the use of funds to “humanitarian assistance” to the contrast The
Court recalls that if the provision of “humanitarian assistance” is to escape condemnation as
an intervention in the internal affairs of another State, it must be limited to the purposes hallowed in the practice of the Red Cross, and above all be given without discrimination.
With regard to the form of indirect intervention which Nicaragua sees in the taking of
certain action of an economic nature against it by the United States, the Court is unable to
regard such action in the present case as a breach of the customary law principle of non-
intervention.
3. Collective counter-measures in response to conduct not amounting to armed attack
Having found that intervention in the internal affairs of another State does not produce an
entitlement to take collective counter-measures involving the use of force, the Court finds that
the acts of which Nicaragua is accused, even assuming them to have been established and
imputable to that State, could not justify counter-measures taken by a third State, the United
States, and particularly could not justify intervention involving the use of force.
4. State sovereignty
The Court finds that the assistance to the contras, the direct attacks on Nicaraguan ports,
oil installations, etc., the mining operations in Nicaraguan ports, and the acts of intervention
involving the use of force referred to in the Judgment, which are already a breach of the
principle of non-use of force, are also an infringement of the principle of respect for territorial
sovereignty. This principle is also directly infringed by the unauthorized overflight of
Nicaraguan territory. These acts cannot be justified by the activities in El Salvador attributed
to Nicaragua; assuming that such activities did in fact occur, they do not bring into effect any
Chairman, Rly. Board v. Chandrima Das 56
right belonging to the United States. The Court also concludes that, in the context of the
present proceedings, the laying of mines in or near Nicaraguan ports constitutes an
infringement, to Nicaragua's detriment, of the freedom of communications and of maritime
commerce.
5. Humanitarian law
The Court has found the United States responsible for the failure to give notice of the
mining of Nicaraguan ports.
It has also found that, under general principles of humanitarian law, the United States was
bound to refrain from encouragement of persons or groups engaged in the conflict in
Nicaragua to commit violations of common Article 3 of the four Geneva Conventions of 12
August 1949. The manual on “Psychological Operations in Guerrilla Warfare”, for the
publication and dissemination of which the United States is responsible, advises certain acts
which cannot but be regarded as contrary to that article.
6. Other grounds mentioned in justification of the acts of the United States
The United States has linked its support to the contras with alleged breaches by the
Government of Nicaragua of certain solemn commitments to the Nicaraguan people, the
United States and the OAS. The Court considers whether there is anything in the conduct of
Nicaragua which might legally warrant counter-measures by the United States in response to
the alleged violations. With reference to the “Plan to secure peace” put forward by the Junta
of the Government of National Reconstruction (12 July 1979), the Court is unable to find
anything in the documents and communications transmitting the plan from which it can be
inferred that any legal undertaking was intended to exist. The Court cannot contemplate the
creation of a new rule opening up a right of intervention by one State against another on the
ground that the latter has opted for some particular ideology or political system. Furthermore
the Respondent has not advanced a legal argument based on an alleged new principle of
“ideological intervention”.
With regard more specifically to alleged violations of human rights relied on by the
United States, the Court considers that the use of force by the United States could not be the
appropriate method to monitor or ensure respect for such rights, normally provided for in the
applicable conventions. With regard to the alleged militarization of Nicaragua, also referred
to by the United States to justify its activities, the Court observes that in international law
there are no rules, other than such rules as may be accepted by the State concerned, by treaty
or otherwise, whereby the level of armaments of a sovereign State can be limited, and this
principle is valid for all States without exception.
7. The 1956 Treaty
The Court turns to the claims of Nicaragua based on the Treaty of Friendship, Commerce
and Navigation of 1956, and the claim that the United States has deprived the Treaty of its
object and purpose and emptied it of real content. The Court cannot however entertain these
claims unless the conduct complained of is not “measures . . . necessary to protect the
essential security interests” of the United States, since Article XXI of the Treaty provides that
the Treaty shall not preclude the application of such measures. With regard to the question
Chairman, Rly. Board v. Chandrima Das 57
what activities of the United States might have been such as to deprive the Treaty of its object
and purpose, the Court makes a distinction. It is unable to regard all the acts complained of in
that light, but considers that there are certain activities which undermine the whole spirit of
the agreement. These are the mining of Nicaraguan ports, the direct attacks on ports, oil
installations, etc., and the general trade embargo.
The Court also upholds the contention that the mining of the ports is in manifest
contradiction with the freedom of navigation and commerce guaranteed by Article XIX of the
Treaty. It also concludes that the trade embargo proclaimed on 1 May 1985 is contrary to that
article.
The Court therefore finds that the United States is prima facie in breach of an obligation
not to deprive the 1956 Treaty of its object and purpose (pacta sunt servanda), and has
committed acts in contradiction with the terms of the Treaty. The Court has however to
consider whether the exception in Article XXI concerning “measures . . . necessary to protect
the essential security interests” of a Party may be invoked to justify the acts complained of.
After examining the available material, particularly the Executive Order of President Reagan
of 1 May 1985, the Court finds that the mining of Nicaraguan ports, and the direct attacks on
ports and oil installations, and the general trade embargo of 1 May 1985, cannot be justified
as necessary to protect the essential security interests of the United States.
The claim for reparation
The Court is requested to adjudge and declare that compensation is due to Nicaragua, the
quantum thereof to be fixed subsequently, and to award to Nicaragua the sum of 370.2
million US dollars as an interim award. After satisfying itself that it has jurisdiction to order
reparation, the Court considers appropriate the request of Nicaragua for the nature and
amount of the reparation to be determined in a subsequent phase of the proceedings. It also
considers that there is no provision in the Statute of the Court either specifically empowering
it or debarring it from making an interim award of the kind requested. In a cases in which one
Party is not appearing, the Court should refrain from any unnecessary act which might prove
an obstacle to a negotiated settlement. The Court therefore does not consider that it can accede at this stage to this request by Nicaragua.
The provisional measures
After recalling certain passages in its Order of 10 May 1984, the Court concludes that it is
incumbent on each Party not to direct its conduct solely by reference to what it believes to be
its rights. Particularly is this so in a situation of armed conflict where no reparation can efface
the results of conduct which the Court may rule to have been contrary to international law
Peaceful settlement of disputes; the Contadora process
In the present case the Court has already taken note of the Contadora process, and of the
fact that it had been endorsed by the United Nations Security Council and General Assembly,
as well as by Nicaragua and the United States. It recalls to both Parties to the present case the
need to co-operate with the Contadora efforts in seeking a definitive and lasting peace in
Central America, in accordance with the principle of customary international law that
Chairman, Rly. Board v. Chandrima Das 58
prescribes the peaceful settlement of international disputes, also endorsed by Article 33 of the
United Nations Charter.
THE COURT
(1) By eleven votes to four,
Decides that in adjudicating the dispute brought before it by the Application filed by the
Republic of Nicaragua on 9 April 1984, the Court is required to apply the "multilateral treaty
reservation" contained in proviso (c) to the declaration of acceptance of jurisdiction made
under Article 36, paragraph 2, of the Statute of the Court by the Government of the Untied
States of America deposited on 26 August 1946;
(2) By twelve votes to three,
Rejects the justification of collective self-defence maintained by the United States of
America in connection with the military and paramilitary activities in and against Nicaragua
the subject of this case;
(3) By twelve votes to three,
Decides that the United States of America, by training, arming, equipping, financing and
supplying the contra forces or otherwise encouraging, supporting and aiding military and
paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua,
in breach of its obligation under customary international law not to intervene in the affairs of
another State;
(4) By twelve votes to three,
Decides that the United States of America, by certain attacks on Nicaraguan territory in
1983-1984, namely attacks on Puerto Sandino on 13 September and 14 October 1983, an
attack on Corinto on 10 October 1983; an attack on Potosi Naval Base on 4/5 January 1984,
an attack on San Juan del Sur on 7 March 1984; attacks on patrol boats at Puerto Sandino on
28 and 30 March 1984; and an attack on San Juan del Norte on 9 April 1984; and further by
those acts of intervention referred to in subparagraph (3) hereof which involve the use of
force, has acted, against the Republic of Nicaragua, in breach of its obligation under
customary international law not to use force against another State;
(5) By twelve votes to three,
Decides that the United States of America, by directing or authorizing over Rights of
Nicaraguan territory, and by the acts imputable to the United States referred to in
subparagraph (4) hereof, has acted, against the Republic of Nicaragua, in breach of its
obligation under customary international law not to violate the sovereignty of another State;
(6) By twelve votes to three,
Decides that, by laying mines in the internal or territorial waters of the Republic of
Nicaragua during the first months of 1984, the United States of America has acted, against the
Republic of Nicaragua, in breach of its obligations under customary international law not to
use force against another State, not to intervene in its affairs, not to violate its sovereignty and
not to interrupt peaceful maritime commerce;
Chairman, Rly. Board v. Chandrima Das 59
(7) By fourteen votes to one,
Decides that, by the acts referred to in subparagraph (6) hereof the United States of
America has acted, against the Republic of Nicaragua, in breach of its obligations under
Article XIX of the Treaty of Friendship, Commerce and Navigation between the United
States of America and the Republic of Nicaragua signed at Managua on 21 January 1956;
(8) By fourteen votes to one,
Decides that the United States of America, by failing to make known the existence and
location of the mines laid by it, referred to in subparagraph (6) hereof, has acted in breach of
its obligations under customary international law in this respect;
(9) By fourteen votes to one,
Finds that the United States of America, by producing in 1983 a manual entitled
"Operaciones sicológicas en guerra de guerrillas", and disseminating it to contra forces, has
encouraged the commission by them of acts contrary to general principles of humanitarian
law; but does not find a basis for concluding that any such acts which may have been
committed are imputable to the United States of America as acts of the United States of
America;
(10) By twelve votes to three,
Decides that the United States of America, by the attacks on Nicaraguan territory referred
to in subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on
1 May 1985, has committed acts calculated to deprive of its object and purpose the Treaty of
Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January
1956;
(11) By twelve votes to three,
Decides that the United States of America, by the attacks on Nicaraguan territory referred
to in subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on
1 May 1985, has acted in breach of its obligations under Article XIX of the Treaty of
Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January
1956;
(12) By twelve votes to three,
Decides that the United States of America is under a duty immediately to cease and to
refrain from all such acts as may constitute breaches of the foregoing legal obligations;
(13) By twelve votes to three,
Decides that the United States of America is under an obligation to make reparation to the
Republic of Nicaragua for all injury caused to Nicaragua by the breaches of obligations under
customary international law enumerated above;
(14) By fourteen votes to one,
Decides that the United States of America is under an obligation to make reparation to the
Republic of Nicaragua for all injury caused to Nicaragua by the breaches of the Treaty of
Chairman, Rly. Board v. Chandrima Das 60
Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January
1956;
(15) By fourteen votes to one,
Decides that the form and amount of such reparation, failing agreement between the
Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in
the case;
(16) Unanimously,
Recalls to both Parties their obligation to seek a solution to their disputes by peaceful
means in accordance with international law.
* * * * *
Chairman, Rly. Board v. Chandrima Das 61
CASE CONCERNING AVENA AND OTHER MEXICAN NATIONALS
Mexico v. United States of America ICJ Reoprts 2004, p. 12
History of the proceedings and submissions of the Parties
The Court begins by recalling that on 9 January 2003 the United Mexican States
instituted proceedings against the United States of America for “violations of the Vienna
Convention on Consular Relations” of 24 April 1963 allegedly committed by the United
States.
In its Application, Mexico based the jurisdiction of the Court on Article 36, paragraph 1,
of the Statute of the Court and on Article I of the Optional Protocol concerning the
Compulsory Settlement of Disputes, which accompanies the Vienna Convention. On the same
day, Mexico also filed a request for the indication of provisional measures.
By an Order of 5 February 2003, the Court indicated the following provisional measures:
“(a) The United States of America shall take all measures necessary to ensure
that Mr. César Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo
Torres Aguilera are not executed pending final judgment in these proceedings;
(b) The Government of the United States of America shall inform the Court of all
measures taken in implementation of this Order.”
It further decided that, “until the Court has rendered its final judgment, it shall remain
seised of the matters” which formed the subject of that Order.
In a letter of 2 November 2003, the Agent of the United States advised the Court that the
United States had “informed the relevant state authorities of Mexico’s application”; that, since
the Order of 5 February 2003, the United States had “obtained from them information about
the status of the fifty-four cases, including the three cases identified in paragraph 59 (I) (a) of
that Order”; and that the United States could “confirm that none of the named individuals
[had] been executed”.
The Government of Mexico respectfully requests the Court to adjudge and declare:
(1) That the United States of America, in arresting, detaining, trying, convicting, and
sentencing the 52 Mexican nationals on death row described in Mexico’s Memorial, violated
its international legal obligations to Mexico, in its own right and in the exercise of its right to
diplomatic protection of its nationals, by failing to inform, without delay, the 52 Mexican
nationals after their arrest of their right to consular notification and access under Article 36 (1) (b) of the Vienna Convention on Consular Relations, and by depriving Mexico of its right
to provide consular protection and the 52 nationals’ right to receive such protection as Mexico
would provide under Article 36 (1) (a) and (c) of the Convention;
(2) That the obligation in Article 36 (1) of the Vienna Convention requires notification of
consular rights and a reasonable opportunity for consular access before the competent
authorities of the receiving State take any action potentially detrimental to the foreign
national’s rights;
Chairman, Rly. Board v. Chandrima Das 62
(3) That the United States of America violated its obligations under Article 36 (2) of the
Vienna Convention by failing to provide meaningful and effective review and reconsideration
of convictions and sentences impaired by a violation of Article 36 (1); by substituting for such
review and reconsideration clemency proceedings; and by applying the “procedural default”
doctrine and other municipal law doctrines that fail to attach legal significance to an Article
36 (1) violation on its own terms;
(4) That pursuant to the injuries suffered by Mexico in its own right and in the exercise of
diplomatic protection of its nationals, Mexico is entitled to full reparation for those injuries in
the form of restitutio in integrum;
(5) That this restitution consists of the obligation to restore the status quo ante by
annulling or otherwise depriving of full force or effect the convictions and sentences of all 52
Mexican nationals;
(6) That this restitution also includes the obligation to take all measures necessary to
ensure that a prior violation of Article 36 shall not affect the subsequent proceedings;
(7) That to the extent that any of the 52 convictions or sentences are not annulled, the
United States shall provide, by means of its own choosing, meaningful and effective review
and reconsideration of the convictions and sentences of the 52 nationals, and that this
obligation cannot be satisfied by means of clemency proceedings or if any municipal law rule
or doctrine inconsistent with paragraph (3) above is applied; and
(8) That the United States of America shall cease its violations of Article 36 of the Vienna
Convention with regard to Mexico and its 52 nationals and shall provide appropriate
guarantees and assurances that it shall take measures sufficient to achieve increased
compliance with Article 36 (1) and to ensure compliance with Article 36 (2).”
On the basis of the facts and arguments made by the United States in its Counter-
Memorial and in these proceedings, the Government of the United States conformed its
conduct to this Court’s Judgment in the LaGrand case (Germany v. United States of America), not only with respect to German nationals but, consistent with the Declaration of
the President of the Court in that case, to all detained foreign nationals, adjudge and declare
that the claims of the United Mexican States are dismissed.
Mexican objection to the United States objections to jurisdiction and admissibility
The Court notes at the outset that the United States has presented a number of objections
to the jurisdiction of the Court, as well as to the admissibility of the claims advanced by
Mexico; that it is however the contention of Mexico that all the objections raised by the
United States are inadmissible as having been raised after the expiration of the time-limit laid down by Article 79, paragraph 1, of the Rules of Court as amended in 2000.
The Court notes, however, that Article 79 of the Rules applies only to preliminary
objections. It observes that an objection that is not presented as a preliminary objection in
accordance with paragraph 1 of Article 79 does not thereby become inadmissible; that there
are of course circumstances in which the party failing to put forward an objection to
jurisdiction might be held to have acquiesced in jurisdiction; that, however, apart from such
circumstances, a party failing to avail itself of the Article 79 procedure may forfeit the right to
Chairman, Rly. Board v. Chandrima Das 63
bring about a suspension of the proceedings on the merits, but can still argue the objection
along with the merits. The Court finds that that is indeed what the United States has done in
this case; and that, for reasons to be indicated below, many of its objections are of such a
nature that they would in any event probably have had to be heard along with the merits. The
Court concludes that it should not exclude from consideration the objections of the United
States to jurisdiction and admissibility by reason of the fact that they were not presented
within three months from the date of filing of the Memorial.
United States objections to jurisdiction
By its first jurisdictional objection, the United States suggested that the Mexican
Memorial is fundamentally addressed to the treatment of Mexican nationals in the federal and
state criminal justice systems of the United States, and to the operation of the United States
criminal justice system as a whole; for the Court to address such issues would be an abuse of
its jurisdiction. The Court recalls that its jurisdiction in the present case has been invoked
under the Vienna Convention and Optional Protocol to determine the nature and extent of the
obligations undertaken by the United States towards Mexico by becoming party to that
Convention. If and so far as the Court may find that the obligations accepted by the parties to
the Vienna Convention included commitments as to the conduct of their municipal courts in
relation to the nationals of other parties, then in order to ascertain whether there have been
breaches of the Convention, the Court must be able to examine the actions of those courts in
the light of international law. How far it may do so in the present case is a matter for the
merits; the first objection of the United States to jurisdiction cannot therefore be upheld.
The second jurisdictional objection presented by the United States was addressed to Mexico’s submission “that the United States in arresting, detaining, trying, convicting, and
sentencing [to death] Mexican nationals, violated its international legal obligations to Mexico,
in its own right and in the exercise of its right of diplomatic protection of its nationals, as
provided by Article 36 of the Vienna Convention. The United States pointed out that Article
36 of the Vienna Convention “creates no obligations constraining the rights of the United
States to arrest a Mexican nationals could not constitute breaches of Article 36, which merely
lays down obligations of notification. The Court observes, however, that Mexico argues that
depriving a foreign national facing criminal proceedings of the right to consular notification
and assistance renders those proceedings fundamentally unfair. In the Court’s view that is to
argue in favour of a particular interpretation of the Vienna Convention. Such an interpretation
may or may not be confirmed on the merits, but is not excluded from the jurisdiction
conferred on the Court by the Optional Protocol to the Vienna Convention. The second
objection of the United States to jurisdiction cannot therefore be upheld.
The third objection by the United States to the jurisdiction of the Court refers to the first
submission concerning remedies in the Mexican Memorial, namely that Mexico is entitled to
restitutio in integrum, and that the United States therefore is under an obligation to restore the
status quo ante. The United States objects that this would intrude deeply into the
independence of its courts; and that for the Court to declare that the United States is under a
specific obligation to vacate convictions and sentences would be beyond its jurisdiction. The
Court recalls in this regard, as it did in the LaGrand case, that, where jurisdiction exists over
a dispute on a particular matter, no separate basis for jurisdiction is required by the Court in
Chairman, Rly. Board v. Chandrima Das 64
order to consider the remedies a party has requested for the breach of the obligation (I.C.J.
Reports 2001, p. 485, para. 48). Whether or how far the Court may order the remedy
requested by Mexico are matters to be determined as part of the merits of the dispute; the
third objection of the United States to jurisdiction cannot therefore be upheld.
The fourth and last jurisdictional objection of the United States is that, contrary to the
contentions of Mexico, “the Court lacks jurisdiction to determine whether or not consular
notification is a ‘human right’, or to declare fundamental requirements of substantive or
procedural due process”. The Court observes that Mexico has presented this argument as
being a matter of interpretation of Article 36, paragraph 1 (b), and therefore belonging to the
merits. The Court considers that this is indeed a question of interpretation of the Vienna
Convention, for which it has jurisdiction; the fourth objection of the United States to
jurisdiction cannot therefore be upheld.
United States objections to admissibility
The Court notes that the first objection of the United States under this head is that
“Mexico’s submissions should be found inadmissible because they seek to have this Court
function as a court of criminal appeal”; that there is, in the view of the United States, “no other apt characterization of Mexico’s two submissions in respect of remedies”. The Court
observes that this contention is addressed solely to the question of remedies. The United
States does not contend on this ground that the Court should decline jurisdiction to enquire
into the question of breaches of the Vienna Convention at all, but simply that, if such
breaches are shown, the Court should do no more than decide that the United States must
provide “review and reconsideration” along the lines indicated in the Judgment in the LaGrand case (I.C.J. Reports 2001, pp. 513-514, para. 125). The Court notes that this is a
matter of merits; the first objection of the United States to admissibility cannot therefore be
upheld.
The Court then turns to the objection of the United States based on the rule of exhaustion
of local remedies. The United States contends that the Court “should find inadmissible
Mexico’s claim to exercise its right of diplomatic protection on behalf of any Mexican national who has failed to meet the customary legal requirement of exhaustion of municipal
remedies”. The Court recalls that in its final submissions Mexico asks the Court to adjudge
and declare that the United States, in failing to comply with Article 36, paragraph 1, of the
Vienna Convention, has “violated its international legal obligations to Mexico, in its own
right and in the exercise of its right of diplomatic protection of its nationals”. The Court
observes that the individual rights of Mexican nationals under subparagraph 1 (b) of Article
36 of the Vienna Convention are rights which are to be asserted, at any rate in the first place,
within the domestic legal system of the United States. Only when that process is completed
and local remedies are exhausted would Mexico be entitled to espouse the individual claims
of its nationals through the procedure of diplomatic protection. In the present case Mexico
does not, however, claim to be acting solely on that basis. It also asserts its own claims,
basing them on the injury which it contends that it has itself suffered, directly and through its
nationals, as a result of the violation by the United States of the obligations incumbent upon it
under Article 36, paragraph 1 (a), (b) and (c). The Court finds that, in these special
circumstances of interdependence of the rights of the State and of individual rights, Mexico
Chairman, Rly. Board v. Chandrima Das 65
may, in submitting a claim in its own name, request the Court to rule on the violation of rights
which it claims to have suffered both directly and through the violation of individual rights
conferred on Mexican nationals under Article 36, paragraph 1 (b). The duty to exhaust local
remedies does not apply to such a request. The Court accordingly finds that the second
objection by the United States to admissibility cannot be upheld.
The Court then turns to the question of the alleged dual nationality of certain of the
Mexican nationals the subject of Mexico’s claims. The United States contends that in its
Memorial Mexico had failed to establish that it may exercise diplomatic protection based on
breaches of Mexico’s rights under the Vienna Convention with respect to those of its
nationals who are also nationals of the United States. The Court recalls, however, that
Mexico, in addition to seeking to exercise diplomatic protection of its nationals, is making a
claim in its own right on the basis of the alleged breaches by the United States of Article 36 of
the Vienna Convention. Seen from this standpoint, the question of dual nationality is not one
of admissibility, but of merits. Without prejudice to the outcome of such examination, the
third objection of the United States to admissibility cannot therefore be upheld.
The Court then turns to the fourth objection advanced by the United States to the
admissibility of Mexico’s claims: the contention that “The Court should not permit Mexico to
pursue a claim against the United States with respect to any individual case where Mexico
had actual knowledge of a breach of the [Vienna Convention] but failed to bring such breach
to the attention of the United States or did so only after considerable delay.” The Court recalls
that in the case of Certain Phosphate Lands in Nauru (Nauru v. Australia), it observed that
“delay on the part of a claimant State may render an application inadmissible”, but that
“international law does not lay down any specific time-limit in that regard” (I.C.J. Reports
1992, pp. 253-254, para. 32). It notes that in that case it had recognized that delay might
prejudice the Respondent State, but fines that there has been no suggestion of any such risk of
prejudice in the present case. So far as inadmissibility might be based on an implied waiver of
rights, the Court considers that only a much more prolonged and consistent inaction on the
part of Mexico than any that the United States has alleged might be interpreted as implying
such a waiver. The Court notes, furthermore, that Mexico indicated a number of ways in
which it brought to the attention of the United States the breaches which it perceived of the
Vienna Convention; the fourth objection of the United States to admissibility cannot therefore
be upheld.
The Court finally examines the objection of the United States that the claim of Mexico is
inadmissible in that Mexico should not be allowed to invoke against the United States
standards that Mexico does not follow in its own practice. The Court recalls in this respect
that it is essential to have in mind the nature of the Vienna Convention. That Convention lays
down certain standards to be observed by all States parties, with a view to the “unimpeded
conduct of consular relations”. Even if it were shown, therefore, that Mexico’s practice as
regards the application of Article 36 was not beyond reproach, this would not constitute a
ground of objection to the admissibility of Mexico’s claim; the fifth objection of the United
States to admissibility cannot therefore be upheld.
Chairman, Rly. Board v. Chandrima Das 66
The Court then turns to the merits of Mexico’s claims.
Article 36, paragraph 1, of the Vienna Convention
The Court notes that in the first of its final submissions, Mexico asks the Court to adjudge
and declare that, “the United States of America, in arresting, detaining, trying, convicting, and
sentencing the 52 Mexican nationals on death row described in Mexico’s Memorial, violated
its international legal obligations to Mexico, in its own right and in the exercise of its right to
diplomatic protection of its nationals, by failing to inform, without delay, the 52 Mexican
nationals after their arrest of their right to consular notification and access under Article 36
(1) (b) of the Vienna Convention on Consular Relations, and by depriving Mexico of its right
to provide consular protection and the 52 nationals’ right to receive such protection as Mexico
would provide under Article 36 (1) (a) and (c) of the Convention”. It recalls that it has already
in its Judgment in the LaGrand case described Article 36, paragraph 1, as “an interrelated
régime designed to facilitate the implementation of the system of consular protection” (I.C.J.
Reports 2001, p. 492, para. 74). After citing the full text of the paragraph, the Court observes
that the United States as the receiving State does not deny its duty to perform the obligations
indicated therein. However, it claims that those obligations apply only to individuals shown to
be of Mexican nationality alone, and not to those of dual Mexican/United States nationality.
The United States further contends inter alia that it has not committed any breach of Article
36, paragraph 1 (b), upon the proper interpretation of “without delay” as used in that
subparagraph.
Article 36, paragraph 1 (b)
The Court finds that thus two major issues under Article 36, paragraph 1 (b) are in dispute
between the Parties: first, the question of the nationality of the individuals concerned; and
second, the question of the meaning to be given to the expression “without delay”.
Nationality of the individuals concerned
The Court begins by noting that the Parties disagree as to what each of them must show
as regards nationality in connection with the applicability of the terms of Article 36,
paragraph 1, and as to how the principles of evidence have been met on the facts of the cases.
The Court finds that it is for Mexico to show that the 52 persons listed in paragraph 16 of the
Judgment held Mexican nationality at the time of their arrest. It notes that to this end Mexico
has produced birth certificates and declarations of nationality, whose contents have not been
challenged by the United States. The Court observes further that the United States has
questioned whether some of these individuals were not also United States nationals. The
Court takes the view that it was for the United States to demonstrate that this was so and to
furnish the Court with all information on the matter in its possession. In so far as relevant data
on that matter are said by the United States to lie within the knowledge of Mexico, it was for
the United States to have sought that information from the Mexican authorities. The Court
finds that, at no stage, however, has the United States shown the Court that it made specific
enquiries of those authorities about particular cases and that responses were not forthcoming.
The Court accordingly concludes that the United States has not met its burden of proof in its
attempt to show that persons of Mexican nationality were also United States nationals. The
Chairman, Rly. Board v. Chandrima Das 67
Court therefore finds that, as regards the 52 persons listed in paragraph 16 of the Judgment,
the United States had obligations under Article 36, paragraph 1 (b).
Requirement to inform “without delay”
The Court continues by noting that Mexico, in its second final submission, asks the Court
to find that “the obligation in Article 36, paragraph 1, of the Vienna Convention requires
notification of consular rights and a reasonable opportunity for consular access before the
competent authorities of the receiving State take any action potentially detrimental to the
foreign national’s rights”. The Court notes that Mexico contends that, in each of the 52 cases
before the Court, the United States failed to provide the arrested persons with information as
to their rights under Article 36, paragraph 1 (b), “without delay”. It further notes that the
United States disputes both the facts as presented by Mexico and the legal analysis of Article
36, paragraph 1 (b), of the Vienna Convention offered by Mexico.
The Court first turns to the interpretation of Article 36, paragraph 1 (b), having found that
it is applicable to the 52 persons listed in paragraph 16 of the Judgment. It begins by stating
that individual concerned to be informed without delay of his rights under Article 36,
paragraph 1 (b); the right of the consular post to be notified without delay of the individual’s detention, if he so requests; and the obligation of the receiving State to forward without delay
any communication addressed to the consular post by the detained person (this last element
not having been raised in the case). Beginning with the right of an arrested individual to
information, the Court finds that the duty upon the arresting authorities to give the Article 36,
paragraph 1 (b), information to the individual arises once it is realized that the person is a
foreign national, or once there are grounds to think that the person is probably a foreign national. Precisely when this may occur will vary with circumstances. Bearing in mind the
complexities of establishing such a fact as explained by the United States, the Court begins by
examining the application of Article 36, paragraph 1 (b), of the Vienna Convention to the 52
cases. In 45 of these cases, it finds that it has no evidence that the arrested persons claimed
United States nationality, or were reasonably thought to be United States nationals, with
specific enquiries being made in timely fashion to verify such dual nationality. It notes,
however, that seven persons are asserted by the United States to have stated at the time of
arrest that they were United States citizens.
After examination of those seven cases the Court concludes that Mexico has failed to
prove the violation by the United States of its obligations under Article 36, paragraph 1 (b), in
only one of these. As regards the other individuals who are alleged to have claimed United
States nationality on arrest, the Court finds that the argument of the United States cannot be
upheld. The Court points out that the question nonetheless remains as to whether, in each of
these 51 cases, the United States did provide the required information to the arrested persons
“without delay”. It is to that question that the Court then turns. The Court notes that in 47
cases the United States nowhere challenges the fact that the Mexican nationals were never
informed of their rights under Article 36, paragraph 1 (b), but that in four cases some doubt
remains whether the information that was given was provided “without delay”; for these,
some examination of the term is thus necessary.
Chairman, Rly. Board v. Chandrima Das 68
The Court notes that the Parties have very different views on this. According to Mexico,
the timing of the notice to the detained person “is critical to the exercise of the rights provided
by Article 36” and the phrase “without delay” in paragraph 1 (b) requires “unqualified
immediacy”. Mexico further contends that, in view of the object and purpose of Article 36,
which is to enable “meaningful consular assistance” and the safeguarding of the vulnerability
of foreign nationals in custody, “consular notification …must occur immediately upon
detention and prior to any interrogation of the foreign detainee, so that the consul may offer
useful advice about the foreign legal system and provide assistance in obtaining counsel
before the foreign national makes any ill-informed decisions or the State takes any action
potentially prejudicial to his rights”. The United States disputed this interpretation of the
phrase “without delay”. In its view it did not mean “immediately, and before interrogation”
and such an understanding was supported neither by the terminology, nor by the object and
purpose of the Vienna Convention, nor by its travaux préparatoires. According to the United
States, the purpose of Article 36 was to facilitate the exercise of consular functions by a
consular officer: “The significance of giving consular information to a national is thus limited
…. It is a procedural device that allows the foreign national to trigger the related process of notification…. [It] cannot possibly be fundamental to the criminal justice process.”
The Court begins by noting that the precise meaning of “without delay”, as it is to be
understood in Article 36, paragraph 1 (b), is not defined in the Convention. This phrase
therefore requires interpretation according to the customary rules of treaty interpretation
reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. After
examination of the text of the Vienna Convention on Consular Relations, its object and
purpose, as well as its travaux préparatoires, the Court finds that “without delay” is not
necessarily to be interpreted as “immediately” upon arrest, nor can it be interpreted to signify
that the provision of the information must necessarily precede any interrogation, so that the
commencement of interrogation before the information is given would be a breach of Article
36. The Court observes, however, that there is nonetheless a duty upon the arresting
authorities to give the information to an arrested person as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a
foreign national. Applying this interpretation of “without delay” to the facts of the four
outstanding cases, the Court finds that the United States was in breach of its obligations under
Article 36, paragraph 1 (b), in respect of these individuals also. The Court accordingly
concludes that, with respect to all save one of the 52 individuals listed in paragraph 16 of the
Judgment, the United States has violated its obligation under Article 36, paragraph 1 (b), of
the Vienna Convention to provide information to the arrested person.
Article 36, paragraph 1 (a) and (c)
The Court begins by recalling its observation above that Article 36, paragraph 1 (b),
contains three elements. Thus far, it observes, it has been dealing with the right of an arrested
person to be informed that he may ask for his consular post to be notified. The Court then
turns to another aspect of Article 36, paragraph 1 (b). It finds the United States is correct in
observing that the fact that a Mexican consular post was not notified under Article 36,
paragraph 1 (b), does not of necessity show that the arrested person was not informed of his
rights under that provision. He may have been informed and declined to have his consular
Chairman, Rly. Board v. Chandrima Das 69
post notified. The Court finds in one of the two cases mentioned by the United States in this
respect, that that was the case. In two of three further cases in which the United States alleges
that the consular post was formally notified without prior information to the individual, the
Court finds that the United States did violate its obligations under Article 36, paragraph 1 (b).
The Court notes that, in the first of its final submissions, Mexico also asks the Court to find
that the violations it ascribes to the United States in respect of Article 36, paragraph 1 (b),
have also deprived “Mexico of its right to provide consular protection and the 52 nationals’
right to receive such protection as Mexico would provide under Article 36 (1) (a) and (c) of
the Convention”. The Court recalls that the relationship between the three subparagraphs of
Article 36, paragraph 1, has been described by it in its Judgment in the LaGrand case (I.C.J.
Reports 2001, p. 492, para. 74) as “an interrelated régime”. The legal conclusions to be drawn
from that interrelationship necessarily depend upon the facts of each case. In the LaGrand
case, the Court found that the failure for 16 years to inform the brothers of their right to have
their consul notified effectively prevented the exercise of other rights that Germany might
have chosen to exercise under subparagraphs (a) and (c). The Court is of the view that it is
necessary to revisit the interrelationship of the three subparagraphs of Article 36, paragraph 1, in the light of the particular facts and circumstances of the present case. It first recalls that, in
one case, when the defendant was informed of his rights, he declined to have his consular post
notified. Thus in this case there was no violation of either subparagraph (a) or subparagraph
(c) of Article 36, paragraph 1.
In the remaining cases, because of the failure of the United States to act in conformity
with Article 36, paragraph 1 (b), Mexico was in effect precluded (in some cases totally, and in
some cases for prolonged periods of time) from exercising its right under paragraph 1 (a) to
communicate with its nationals and have access to them. As the Court has already had
occasion to explain, it is immaterial whether Mexico would have offered consular assistance,
“or whether a different verdict would have been rendered. It is sufficient that the Convention
conferred these rights” (I.C.J. Reports 2001, p. 492, para. 74), which might have been acted
upon. The Court observes that the same is true, pari passu, of certain rights identified in subparagraph (c): “consular officers shall have the right to visit a national of the sending State
who is in prison, custody or detention, and to converse and correspond with him ….” Mexico,
it notes, laid much emphasis in this litigation upon the importance of consular officers being
able to arrange for such representation before and during trial, and especially at sentencing, in
cases in which a severe penalty may be imposed. Mexico has further indicated the importance
of any financial or other assistance that consular officers may provide to defence counsel,
inter alia for investigation of the defendant’s family background and mental condition, when
such information is relevant to the case. The Court observes that the exercise of the rights of
the sending State under Article 36, paragraph 1(c), depends upon notification by the
authorities of the receiving State. It may be, however, that information drawn to the attention
of the sending State by other means may still enable its consular officers to assist in arranging
legal representation for its national. The Court finds that has been so in 13 cases. The Court
concludes on this aspect of the case in paragraph 106 of the Judgment, where it summarizes
its findings as to the violation of the different obligations incumbent upon the United States
under Article 36, paragraph 1, in the cases before it.
Chairman, Rly. Board v. Chandrima Das 70
Article 36, paragraph 2 of the Vienna Convention
The Court then recalls that in its third final submission Mexico asks the Court to adjudge
and declare that “the United States violated its obligations under Article 36 (2) of the Vienna
Convention by failing to provide meaningful and effective review and reconsideration of
convictions and sentences impaired by a violation of Article 36 (1)”. More specifically,
Mexico contends that “the United States uses several municipal legal doctrines to prevent
finding any legal effect from the violations of Article 36. First, despite this Court’s clear
analysis in LaGrand, U.S. courts, at both the state and federal level, continue to invoke
default doctrines to bar any review of Article 36 violations even when the national had been
unaware of his rights to consular notification and communication and thus his ability to raise
their violation as an issue at trial, due to the competent authorities’ failure to comply with
Article 36.”
Against this contention by Mexico, the United States argues that “the criminal justice
systems of the United States address all errors in process through both judicial and executive
clemency proceedings, relying upon the latter when rules of default have closed out the
possibility of the former. That is, the ‘laws and regulations’ of the United States provide for
the correction of mistakes that may be relevant to a criminal defendant to occur through a
combination of judicial review and clemency. These processes together, working with other
competent authorities, give full effect to the purposes for which Article 36 (1) is intended, in
conformity with Article 36 (2). And, insofar as a breach of Article 36 (1) has occurred, these
procedures satisfy the remedial function of Article 36 (2) by allowing the United States to
provide review and reconsideration of convictions and sentences consistent with LaGrand.”
The Court observes that it has already considered the application of the so called
“procedural default” rule in the LaGrand case, when the Court addressed the issue of its
implications for the application of Article 36, paragraph 2, of the Vienna Convention. The
Court emphasized that “a distinction must be drawn between that rule as such and its specific
application in the present case” stating: “In itself, the rule does not violate Article 36 of the
Vienna Convention. The problem arises when the procedural default rule does not allow the
detained individual to challenge a conviction and sentence by claiming, in reliance on Article
36, paragraph 1, of the Convention, that the competent national authorities failed to comply
with their obligation to provide the requisite consular information ‘without delay’, thus
preventing the person from seeking and obtaining consular assistance from the sending State.”
(I.C.J. Reports 2001, p. 497, para. 90.) On this basis, the Court concluded that “the procedural
default rule prevented counsel for the LaGrands to effectively challenge their convictions and
sentences other than on United States constitutional grounds” (ibid., para. 91). The Court
deems this statement to be equally valid in relation to the present case, where a number of
Mexican nationals have been placed exactly in such a situation.
The Court further observes that the procedural default rule has not been revised, nor has
any provision been made to prevent its application in cases where it has been the failure of the
United States itself to inform that may have precluded counsel from being in a position to
have raised the question of a violation of the Vienna Convention in the initial trial. The Court
notes moreover that in several of the cases cited in Mexico’s final submissions the procedural
default rule has already been applied, and that in others it could be applied at subsequent
Chairman, Rly. Board v. Chandrima Das 71
stages in the proceedings. It also points out, however, that in none of the cases, save for the
three mentioned below, have the criminal proceedings against the Mexican nationals
concerned already reached a stage at which there is no further possibility of judicial re-
examination of those cases; that is to say, all possibility is not yet excluded of “review and
reconsideration” of conviction and sentence, as called for in the LaGrand case, and as
explained in subsequent paragraphs of the Judgment. The Court finds that it would therefore
be premature for the Court to conclude at this stage that, in those cases, there is already a
violation of the obligations under Article 36, paragraph 2, of the Vienna Convention. By
contrast, the Court notes that in the case of three named Mexican nationals, conviction and
sentence have become final. Moreover, in one of these cases, the Oklahoma Court of Criminal
Appeals has set an execution date. The Court finds therefore that it must conclude that,
subject to its observations below in regard to clemency proceedings, in relation to these three
individuals, the United States is in breach of its obligations under Article 36, paragraph 2, of
the Vienna Convention.
Legal consequences of the breach
Having concluded that in most of the cases brought before the Court by Mexico in the 52
instances, there has been a failure to observe the obligations prescribed by Article 36,
paragraph 1 (b), of the Vienna Convention, the Court proceeds to the examination of the legal
consequences of such a breach and of the legal remedies therefor. It recalls that Mexico in its
fourth, fifth and sixth submissions asks the Court to adjudge and declare:
“(4) that pursuant to the injuries suffered by Mexico in its own right and in the
exercise of diplomatic protection of its nationals, Mexico is entitled to full reparation for these injuries in the form of restitutio in integrum;
(5) that this restitution consists of the obligation to restore the status quo ante by
annulling or otherwise depriving of full force or effect the conviction and sentences
of all 52 Mexican nationals; [and]
(6) that this restitution also includes the obligation to take all measures necessary
to ensure that a prior violation of Article 36 shall not affect the subsequent
proceedings.”
The United States on the other hand argues: “LaGrand’s holding calls for the United
States to provide, in each case, ‘review and reconsideration’ that ‘takes account of’ the
violation, not ‘review and reversal’, not across-the-board exclusions of evidence or
nullification of convictions simply because a breach of Article 36 (1) occurred and without
regard to its effect upon the conviction and sentence and, not … ‘a precise, concrete, stated
result: to re-establish the status quo ante’”. The Court points out that its task in the present
case is to determine what would be adequate reparation for the violations of Article 36. The
Court finds it to be clear from what has been observed above that the internationally wrongful
acts committed by the United States were the failure of its competent authorities to inform the
Mexican nationals concerned, to notify Mexican consular posts and to enable Mexico to
provide consular assistance. It is of the view that it follows that the remedy to make good
these violations should consist in an obligation on the United States to permit review and
reconsideration of these nationals’ cases by the United States courts, with a view to
ascertaining whether in each case the violation of Article 36 committed by the competent
Chairman, Rly. Board v. Chandrima Das 72
authorities caused actual prejudice to the defendant in the process of administration of
criminal justice. The Court considers that it is not to be presumed, as Mexico asserts, that
partial or total annulment of conviction or sentence provides the necessary and sole remedy.
In the present case it is not the convictions and sentences of the Mexican nationals which are
to be regarded as a violation of international law, but solely certain breaches of treaty
obligations which preceded them. Mexico, the Court notes, has further contended that the
right to consular notification and consular communication under the Vienna Convention is a
human right of such a fundamental nature that its infringement will ipso facto produce the
effect of vitiating the entire process of the criminal proceedings conducted in violation of this
fundamental right. The Court observes that the question of whether or not the Vienna
Convention rights are human rights is not a matter that it need decide. It points out, however,
that neither the text nor the object and purpose of the Convention, nor any indication in the
travaux préparatoires, support the conclusion that fourth and fifth submissions cannot be
upheld.
In elaboration of its sixth submission, Mexico contends that “as an aspect of restitutio in
integrum, Mexico is also entitled to an order that in any subsequent criminal proceedings
against the nationals, statements and confessions obtained prior to notification to the national
of his right to consular assistance be excluded”. The Court is of the view that this question is
one which has to be examined under the concrete circumstances of each case by the United
States courts concerned in the process of their review and reconsideration. For this reason, the
sixth submission of Mexico cannot be upheld. Although rejecting the fourth, fifth and sixth
submissions of Mexico relating to the remedies for the breaches by the United States of its
international obligations under Article 36 of the Vienna Convention, the Court points out that
the fact remains that such breaches have been committed, and that it is thus incumbent upon
the Court to specify what remedies are required in order to redress the injury done to Mexico
and to its nationals by the United States through non-compliance with those international
obligations. In this regard, the Court recalls that Mexico’s seventh submission also asks the
Court to adjudge and declare:
“That to the extent that any of the 52 convictions or sentences are not annulled, the
United States shall provide, by means of its own choosing, meaningful and effective
review and reconsideration of the convictions and sentences of the 52 nationals, and
that this obligation cannot be satisfied by means of clemency proceedings or if any
municipal law rule or doctrine [that fails to attach legal significance to an Article 36
(1) violation] is applied.”
On this question of “review and reconsideration”, the United States takes the position that
it has conformed its conduct to the LaGrand Judgment. In a further elaboration of this point,
the United States argues that “[t]he Court said in LaGrand that the choice of means for
allowing the review and reconsideration it called for ‘must be left’ to the United States”. The
Court points out that, in stating in its Judgment in the LaGrand case that “the United States of
America, by means of its own choosing, shall allow the review and reconsideration of the
conviction and sentence” (I.C.J. Reports 2001, p. 516, para. 128; emphasis added), the Court
acknowledged that the concrete modalities for such review and reconsideration should be left
primarily to the United States. It should be underlined, however, that this freedom in the
Chairman, Rly. Board v. Chandrima Das 73
choice of means for such review and reconsideration is not without qualification: as the
passage of the Judgment quoted above makes abundantly clear, such review and
reconsideration has to be carried out “by taking account of the violation of the rights set forth
in the Convention” (I.C.J. Reports 2001, p. 514, para. 125), including, in particular, the
question of the legal consequences of the violation upon the criminal proceedings that have
followed the violation.
The Court observes that the current situation in the United States criminal procedure, as
explained by the Agent at the hearings, is such that a claim based on the violation of Article
36, paragraph 1, of the Vienna Convention, however meritorious in itself, could be barred in
the courts of the United States by the operation of the procedural default rule. The Court is of
the view that the crucial point in this situation is that, by the operation of the procedural
default rule as it is applied at present, the defendant is effectively limited to seeking the
vindication of his rights under the United States Constitution. The Court takes note in this
regard that Mexico, in the latter part of its seventh submission, has stated that “this obligation
of providing review and reconsideration cannot be satisfied by means of clemency
proceedings”. Furthermore, Mexico argues that the clemency process is in itself an ineffective
remedy to satisfy the international obligations of the United States. It concludes: “clemency
review is standardless, secretive, and immune from judicial oversight”.
Against this contention of Mexico, the United States claims that it “gives ‘full effect’ to
the ‘purposes for which the rights accorded under [Article 36, paragraph 1,] are intended’
through executive clemency”. It argues that “[t]he clemency process is well suited to the task
of providing review and reconsideration”. The United States explains that, “Clemency . . . is
more than a matter of grace; it is part of the overall scheme for ensuring justice and fairness in
the legal process” and that “Clemency procedures are an integral part of the existing ‘laws
and regulations’ of the United States through which errors are addressed”. The Court
emphasizes that the “review and reconsideration” prescribed by it in the LaGrand case should
be effective. Thus it should “take account of the violation of the rights set forth in [the]
Convention” (I.C.J. Reports 2001, p. 516, para. 128 (7)) and guarantee that the violation and
the possible prejudice caused by that violation will be fully examined and taken into account
in the review and reconsideration process. Lastly, review and reconsideration should be both
of the sentence and of the conviction. Accordingly, in a situation of the violation of rights
under Article 36, paragraph 1, of the Vienna Convention, the defendant raises his claim in this
respect not as a case of “harm to a particular right essential to a fair trial” a concept relevant
to the enjoyment of due process rights under the United States Constitution but as a case involving the infringement of his rights under Article 36, paragraph 1. The rights guaranteed
under the Vienna Convention are treaty rights which the United States has undertaken to
comply with in relation to the individual concerned, irrespective of the due process rights
under United States constitutional law. The Court is of the view that, in cases where the
breach of the individual rights of Mexican nationals under Article 36, paragraph 1 (b), of the
Convention has resulted, in the sequence of judicial proceedings that has followed, in the
individuals concerned being subjected to prolonged detention or convicted and sentenced to
severe penalties, the legal consequences of this breach have to be examined and taken into
Chairman, Rly. Board v. Chandrima Das 74
account in the course of review and reconsideration. The Court considers that it is the judicial
process that is suited to this task.
As regards the clemency procedure, the Court points out what is at issue in the present
case is whether the clemency process as practised within the criminal justice systems of
different states in the United States can, in and of itself, qualify as an appropriate means for
undertaking the effective “review and reconsideration of the conviction and sentence by
taking account La Grand Judgment (I.C.J. Reports 2001, p. 514, para. 125). The Court notes
that the clemency process, as currently practised within the United States criminal justice
system, does not appear to meet the above-mentioned requirements and that it is therefore not
sufficient in itself to serve as an appropriate means of “review and reconsideration” as
envisaged by the Court in the LaGrand case. Finally, the Court considers the eighth
submission of Mexico, in which it asks the Court to adjudge and declare that the United States
shall cease its violations of Article 36 of the Vienna Convention with regard to Mexico and its
52 nationals and shall provide appropriate guarantees and assurances that it shall take
measures sufficient to achieve increased compliance with Article 36 (1) and to ensure
compliance with Article 36 (2).” The Court recalls that Mexico, although recognizing the
efforts by the United States to raise awareness of consular assistance rights, notes with regret
that “the United States program, whatever its components, has proven ineffective to prevent
the regular and continuing violation by its competent authorities of consular notification and
assistance rights guaranteed by Article 36”. It also recalls that the United States contradicts
this contention of Mexico by claiming that “its efforts to improve the conveyance of
information about consular notification are continuing unabated and are achieving tangible
results”. It contends that Mexico “fails to establish a ‘regular and continuing’ pattern of
breaches of Article 36 in the wake of LaGrand”.
Referring to the fact that the Mexican request for guarantees of non-repetition is based on
its contention that beyond 52 cases there is a “regular and continuing pattern of breaches by
the United States of Article 36, the Court observes that, in this respect, there is no evidence
properly before it that would establish a general pattern. While it is a matter of concern that,
even in the wake of the LaGrand Judgment, there remain a substantial number of cases of
failure to carry out the obligation to furnish consular information to Mexican nationals. The
Court notes that the United States has been making considerable efforts to ensure that its law
enforcement authorities provide consular information to every arrested person they know or
have reason to believe is a foreign national. The Court further notes in this regard that in the
LaGrand case Germany sought, inter alia, “a straightforward assurance that the United States will not repeat its unlawful acts” (I.C.J. Reports 2001, p. 511, para. 120). With regard to this
general demand for an assurance of non-repetition, the Court stated:
“If a State, in proceedings before this Court, repeatedly refers to substantial activities
which it is carrying out in order to achieve compliance with certain obligations under a treaty,
then this expresses a commitment to follow through with the efforts in this regard. The
programme in question certainly cannot provide an assurance that there will never again be a
failure by the United States to observe the obligations of notification under Article 36 of the
Vienna Convention. But no State could give such a guarantee and Germany does not seek it.
The Court considers that the commitment expressed by the United States to ensure
Chairman, Rly. Board v. Chandrima Das 75
implementation of the specific measures adopted in performance of its obligations under
Article 36, paragraph 1 (b), must be regarded as meeting Germany’s request for a general
assurance of non-repetition.” (I.C.J. Reports 2001, pp. 512-513, para. 124.) The Court
believes that as far as the request of Mexico for guarantees and assurances of non-repetition is
concerned, what the Court stated in this passage of the LaGrand Judgment remains
applicable, and therefore meets that request.
The Court then re-emphasizes a point of importance. It points out that in the present case
it has been addressing the issues of principle raised in the course of the present proceedings
from the viewpoint of the general application of the Vienna Convention, and there can be no
question of making a contrario argument in respect of any of the Court’s findings in the
present Judgment. In other words, the fact that in this case the Court’s ruling has concerned
only Mexican nationals cannot be taken to imply that the conclusions reached by it in the
present Judgment do not apply to other foreign nationals finding themselves in similar
situations in the United States.
The Court finally points out that its Order of 5 February 2003 indicating provisional
measures mentioned above, according to its terms and to Article 41 of the Statute, was
effective pending final judgment, and that the obligations of the United States in that respect
are, with effect from the date of the Judgment, replaced by those declared in this Judgment.
The Court observes that it has found in relation to the three persons concerned in the Order
(among others), that the United States has committed breaches of its obligations under Article
36, paragraph 1, of the Vienna Convention; and that moreover, in respect of those three
persons alone, the United States has also committed breaches of Article 36, paragraph 2. The
review and reconsideration of conviction and sentence required by Article 36, paragraph 2,
which is the appropriate remedy for breaches of Article 36, paragraph 1, has not been carried
out. The Court considers that in these three cases it is for the United States to find an
appropriate remedy having the nature of review and reconsideration according to the criteria
indicated in the Judgment.
In subparagraphs 4 to 11 (on the merits) of operative paragraph 153 of its Judgment, the
Court “finds, by fourteen votes to one, that, by not informing, without delay upon their
detention, the 51 Mexican nationals referred to in paragraph 106 (1) above of their rights
under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations of 24
April 1963, the United States of America breached the obligations incumbent upon it under
that subparagraph; finds, by fourteen votes to one, that, by not notifying the appropriate
Mexican consular post without delay of the detention of the 49 Mexican nationals referred to
in paragraph 106 (2) above and thereby depriving the United Mexican States of the right, in a
timely fashion, to render the assistance provided for by the Vienna Convention to the
individuals concerned, the United States of America breached the obligations incumbent upon
it under Article 36, paragraph 1 (b); finds, by fourteen votes to one, that, in relation to the 49
Mexican nationals referred to in paragraph 106 (3) above, the United States of America
deprived the United Mexican States of the right, in a timely fashion, to communicate with and
have access to those nationals and to visit them in detention, and thereby breached the
obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Convention;
finds, by fourteen votes to one, that, in relation to the 34 Mexican nationals referred to in
Chairman, Rly. Board v. Chandrima Das 76
paragraph 106 (4) above, the United States of America deprived the United Mexican States of
the right, in a timely fashion, to arrange for legal representation of those nationals, and
thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (c), of the
Convention; finds, by fourteen votes to one, that, by not permitting the review and
reconsideration, in the light of the rights set forth in the Convention, of the conviction and
sentences of Mr. César Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo
Torres Aguilera, after the violations referred to in subparagraph (4) above had been
established in respect of those individuals, the United States of America breached the
obligations incumbent upon it under Article 36, paragraph 2, of the Convention; finds, by
fourteen votes to one, that the appropriate reparation in this case consists in the obligation of
the United States of America to provide, by means of its own choosing, review and
reconsideration of the convictions and sentences of the Mexican nationals referred to in
subparagraphs (4), (5), (6) and (7) above, by taking account both of the violation of the rights
set forth in Article 36 of the Convention and of paragraphs 138 to 141 of this Judgment;
unanimously takes note of the commitment undertaken by the United States of America to
ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), of the Vienna Convention; and finds that this commitment
must be regarded as meeting the request by the United Mexican States for guarantees and
assurances of non-repetition; unanimously finds that, should Mexican nationals nonetheless
be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (b), of the
Convention having been respected, the United States of America shall provide, by means of
its own choosing, review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention, taking
account of paragraphs 138 to 141 of this Judgment.”
* * * * *
Chairman, Rly. Board v. Chandrima Das 77
LAW OF THE SEA
ANGLO-NORWEGIAN FISHERIES CASE
United Kingdom v. Norway I.C.J. Reports 1951, p. 116
[A Norwegian Decree of 1935 delimited Norway’s “Fishery Zone” (by which
was meant its territorial sea) along almost 1000 miles of coastline north of latitude 66
28.8’ North. The Zone, which the U.K. agreed was, as a matter of historic title, 4 (not
3) miles wide, was measured not from the low-water mark at every point along the
coast (as is the normal practice) but from straight base-lines linking the outermost
points of land (sometimes “drying rocks” above water only at high-tide) along it. The
preamble to the Decree justified this system on grounds of “well-established national
titles of right,” “the geographical conditions prevailing on the Norwegian coasts”,
and “the safeguard of the vital interests of the inhabitants of the northernmost parts of
the country”. The first of these grounds related to the use of straight baselines in
Norwegian decrees of 1869 and 1889 (though for different parts of the coastline
totalling only 89 miles) and acquiescence in that use by other states. The “geographic
conditions” were that the coastline concerned is deeply indented by fjords and sunds
(sounds) and, for part of its length South of North Cape, is fronted by a fringe of
Islands and rocks (the skjaergaard) that is difficult to separate from the mainland.
The third ground is explained in the Court’s statement that “[i]n these barren regions
the inhabitants of the coastal zone derive their livelihood essentially from fishing”.
By using straight baselines Norway enclosed waters within its territorial sea that
would have been high seas, and hence open to foreign fishing, if it had used the low
water mark line. Several baselines were over 30 miles long; the longest was 44 miles
long. In this case, the United Kingdom challenged the legality of Norway’s straight
baseline system and the choice of certain baselines used in applying it. The question
was important for British fishing interests. Norwegian enforcement of its system had
given rise to disputes involving British fishing vessels].
The Court has no difficulty in finding that, for the purpose of measuring the breadth of
the territorial sea, it is the low-water mark as opposed to the high-water mark, or the mean
between the two tides, which has generally been adopted in the practice of States. This
criterion is the most-favourable to the coastal State and clearly shows the character of
territorial waters as appurtenant to the land territory. The Court notes that the Parties agree as to this criterion, but that they differ as to its application.
The Parties also agree that in the case of a low-tide elevation (drying rock) the outer edge
at low water of this low-tide elevation may be taken into account as a base-point for
calculating the breadth of the territorial sea.
The Court finds itself obliged to decide whether the relevant low-water mark is that of the
mainland or of the skjaergaard. Since the mainland is bordered in its western sector by the
skjaergaard, which constitutes a whole with the mainland, it is the outer line of the
Chairman, Rly. Board v. Chandrima Das 78
skjaergaard which must be taken into account in delimiting the belt of Norwegian territorial
waters. This solution is dictated by geographic realities.
Three methods have been contemplated to effect the application of the low-water mark
rule. The simplest would appear to be the method of the tracé paralléle, which consists of
drawing the outer limit of the belt of territorial waters by following the coast in all its
sinuousities. This method may be applied without difficulty to an ordinary coast, which is not
too broken. Where a coast is deeply indented and cut into, as is that of Eastern Finnmark, or
where it is bordered by an archipelago such as the skjaergaard along the western sector of the
coast here in question, the baseline becomes independent of the low-water mark, and can only
be determined by means of a geometric construction. In such circumstances the line of the
low-water mark can no longer be put forward as a rule requiring the coast line to be followed
in all its sinuousities. Nor can one characterize as exceptions to the rule the very many
derogations which would be necessitated by such a rigged coast; the rule would disappear
under the exceptions. Such a coast, viewed as a whole, calls for the application of a different
method; that is the method of baselines which, within reasonable limits, may depart from the
physical line of the coast.
It is true that the experts of the Second Sub-committee of the Second Committee of the
1930 Conference for the codification of international law formulated the low-water mark rule
somewhat strictly (“following all the sinuousities of the coast”) but they were the same time
obliged to admit many exceptions relating to bays, islands near the coast, groups of islands. In
the present case this method of the tracé paralléle, which was invoked against Norway in the
Memorial, was abandoned in the written Reply, and later in the oral argument of the Agent of
the United Kingdom Government. Consequently, it is no longer relevant to the case. On the
other hand it is said in the reply, “the courbe tangente - or, in English, ‘envelopes of arcs of
circle’ - method is the method which the United Kingdom considers to be the correct one”.
The arcs of circles method, which is constantly used for determining the position of a
point or object at sea, is a new technique in so far as it is a method for delimiting the
territorial sea. This technique was proposed by the United States delegation at the 1930
Conference for the codification of international law. Its purpose is to secure the application of
the principle that the belt of territorial waters must follow the line of the coast. It is not
obligatory by law, as was admitted by counsel for the United Kingdom Government in his
oral reply.
The principle that the belt of territorial waters must follow the general direction of the
coast makes it possible to fix certain criteria valid for any delimitation of the territorial sea;
these criteria will be elucidated later. The Court will confine itself at this stage to noting that,
in order to apply this principle, several States have deemed it necessary to follow the straight
baselines method and that they have not encountered objections of principle by other states.
This method consists of selecting appropriate points on the low-water mark and drawing
straight lines between them. This has been done, not only in the case of well-defined bays, but
also in case of minor curvatures of the coast line where it was solely a question of giving a
simpler form to the belt of territorial waters.
Chairman, Rly. Board v. Chandrima Das 79
It has been contended, on behalf of the United Kingdom, that Norway may draw straight
lines only across bays. The court is unable to share this view. If the belt of territorial waters
must follow the outer line of the skaergaard, and if the method of straight base-lines must be
admitted in certain cases there is no valid reason to draw them only across bays, as in Eastern
Finnmark, and not also to draw them between island, islets and rocks, across the sea areas
separating them, even when such areas do not fall within the conception of a bay. It is
sufficient that they should be situated between the island formations of the “skjaergaard”,
inter fauces terrarum.
In the opinion of the United Kingdom Government, Norway is entitled, on historic
grounds, to claim as internal waters all fjords and sunds which have the character of a bay.
By “historic waters” are usually meant which are treated as internal waters but which
would not have that character were it not for the existence of an historic title. In its [United
Kingdom’s] opinion Norway can justify the claim that these waters are internal on the ground
that she has exercised the necessary jurisdiction over them for a long period without
opposition from other States, a kind of possessio longi temporis, with the result that her
jurisdiction over these waters must now be recognized although it constitutes a derogation
from the rules in force. But the United Kingdom Government concedes this only on the basis
of historic title; it must therefore be taken that, that Government has not abandoned its
contention that the ten-mile rule is to be regarded as a rule of international law.
In these circumstances the Court deems it necessary to point out that although the ten-
mile rule has been adopted by certain states both in their national law and in their treaties and
conventions, and although certain arbitral decisions have applied it as between these States, other States have adopted a different limit. Consequently, the ten-mile rule has not acquired
the authority of a general rule of international law.
In any event the ten-mile rule would appear to be inapplicable as against Norway in as
much as she has always opposed any attempt to apply it to the Norwegian coast.
The Court now comes to the question of the length of the base-lines drawn across the
waters lying between the various formations of the skjaergaard. Basing itself on the analogy
with the alleged general rule of ten-miles relating to bays, the United Kingdom Government
still maintains on this point that the length of straight lines must not exceed ten-miles.
In this connection, the practice of States does not justify the formulation of any general
rule of law. The attempts that have been made to subject groups of islands or coastal
archipelagoes to conditions analogous to the limitation concerning bays (distance between the
islands not exceeding twice the breadth of the territorial waters, or ten or twelve sea miles),
have not got beyond the stage of proposals.
Furthermore, apart from any question of limiting the lines to ten miles, it may be that
several lines can be envisaged. In such cases that the coastal State would seem to be in the
best position to appraise the local conditions dictating the selection.
Consequently, the Court is unable to share the view of the United Kingdom Government,
that “Norway, in matter of base-lines, now claims recognition of an exceptional system”. As
Chairman, Rly. Board v. Chandrima Das 80
will be shown later, all that the Court can see therein is the application of general international
law to a specific case.
It does not at all follow that, in the absence of rules having the technically precise
character alleged by the United Kingdom Government, the delimitation undertaken by the
Norwegian Government in 1935 is not subject to certain principles which make it possible to
judge as to its validity under international law. The delimitation of sea area has always an
international aspect; it cannot be dependent merely upon the will of the coastal state as
expressed in its municipal law. Although it is true that the act of delimitation is necessarily a
unilateral act, because only the coastal State is competent to undertake it, the validity of the
delimitation with regard to other States depend upon international law.
In this connection, certain basic considerations inherent in the nature of the territorial sea,
bring to light certain criteria which, though not entirely precise, can provide courts with an
adequate basis for their decisions, which can be adapted to the diverse facts in question.
Among these considerations, some reference must be made to the close dependence of the
territorial sea upon the land domain. It is land which confers upon the coastal State a right to
the waters off its coast. If follows that while such a State must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local
requirements, the drawing of base-line must not depart to any appreciable extent from the
general direction of the coast.
Another fundamental consideration, of particular importance in this case, is the more or
less close relationship existing between certain sea areas and the land formations which divide
or surround them. The real question raised in the choice of base-lines is in effect whether
certain sea areas lying within these lines are sufficiently closely linked to the land domain to
be subject to the regime of internal waters. This idea, which is at the basis of the
determination of the rules relating to bays, should be liberally applied in the case of a coast,
the geographical configuration of which is as unusual as that of Norway.
Finally, there is one consideration not to be overlooked, the scope of which extends
beyond purely geographical factors : that of certain economic interests peculiar to a region,
the reality and importance of which are clearly evidenced by a long usage.
Norway puts forward the 1935 Decree as the application of a traditional system of
delimitation, a system which she claims to be in complete conformity with international law.
The Norwegian Government has referred in this connection to an historic title, the meaning of
which was made clear by Counsel for Norway at the sitting on October 12th, 1951 : “The
Norwegian Government does not rely upon history to justify exceptional rights, to claim areas
of sea which the general law would deny; it invokes history, together with other factors, to
justify the way in which it applies the general law”. This conception of an historic title is in
consonance with the Norwegian Government’s understanding of the general rules of
international law, in its view, these rules of international law take into account the diversity of
facts and, therefore, concede that the drawing of base-lines must be adapted to the special
conditions obtaining in different regions. In its view, the system of delimitation applied in
1935, a system characterized by the use of straight lines, does not therefore infringe the
general law : it is an adaptation rendered necessary by local conditions.
Chairman, Rly. Board v. Chandrima Das 81
The Court examined the Norwegian system. The Court finds that this system was
consistently applied by Norwegian authorities.
The Court considers that too much importance need not be attached to the few
uncertainties or contradictions, real or apparent, which the United Kingdom Government
claims to have discovered in Norwegian practice. They may be easily understood in the light
of the variety of the facts and conditions prevailing, in the long period which has elapsed
since 1812, and are not such as to modify the conclusions reached by the Court.
From the standpoint of international law, it is now necessary to consider whether the
application of the Norwegian system encountered any opposition from foreign States.
Norway has been in a position to argue without any contradiction that neither the
promulgation of her delimitation Decrees in 1869 and in 1889, nor their application, gave rise
to any opposition on the part of foreign States. Since, moreover, these Decrees constitute, as
has been shown above, the application of a well-defined and uniform system, it is indeed this
system itself which would reap the benefit of general toleration, the basis of an historical
consolidation which would make it enforceable as against all States.
The general toleration of foreign States with regard to the Norwegian practice is an
unchallenged fact. For a period of more than sixty years the United Kingdom Government
itself in no way contested it. It would appear that it was only in its Memorandum of July 27,
1933, that the United Kingdom made a formal and definite protest on this point.
The United Kingdom Government has argued that the Norwegian system of delimitation
was not known to it and that the system therefore lacked the notoriety essential to provide the
basis of an historic title enforceable against it. The Court is unable to accept this view.
The notoriety of the facts, the general toleration of the international community, Great
Britain’s position in the North Sea, her own interest in the question, and her prolonged
abstention would in any case warrant Norway’s enforcement of her system against the United
Kingdom.
The Court is thus led to conclude that the method of straight lines, established in the
Norwegian system, was imposed by the peculiar geography of the Norwegian coast; that even before the dispute arose, this method had been consolidated by a constant and sufficiently
long practice, in the face of which the attitude of governments bears witness to the fact that
they did not consider it to be contrary to international law.
The question now arises whether the Decree of July 12, 1935, which in its preamble is
expressed to be an application of this method, conforms to in it its drawing of the base-lines,
or whether, at certain points, it departs from this method to any considerable extent.
The Norwegian Government admits that the base-lines must be drawn in such a way as to
respect the general direction of the coast and that they must be drawn in a reasonable manner.
The delimitation of the Lopphavet basin has also been criticized by the United Kingdom.
The Lopphavet basin constitutes an ill-defined geographic whole. It cannot be regarded as
having the character of a bay. It is made up of an extensive area of water dotted with large
islands which are separated by inlets that terminate in the various fjords. The base-lines has
been challenged on the ground that it does not respect the general direction of the coast. It
Chairman, Rly. Board v. Chandrima Das 82
should be observed that, however justified the rule in question may be, it is devoid of any
mathematical precision. In order properly to apply the rule, regard must be had for the relation
between the deviation complained of and what, according to the terms of the rule, must be
regarded as the general direction of the coast. Therefore, one cannot confine oneself to
examining one sector of the coast alone, except in a case of manifest abuse. In the case in
point, the divergence between the base-line and the land formations is not such that it is a
distortion of the general direction of the Norwegian coast.
Even if it were considered that in the sector under review the deviation was too
pronounced, it must be pointed out that the Norwegian Government has relied upon an
historic title clearly referable to the waters of Lopphavet. The Court considers that, although it
is not always clear to what specific areas they apply, the historical data produced lend some
weight to the idea of the survival of traditional rights reserved to the inhabitants of the
Kingdom over fishing grounds included in the 1935 delimitation, particularly in the case of
Lopphavet. Such rights, founded on the vital needs of the population and attested by very
ancient and peaceful usage, may legitimately be taken into account in drawing a line which,
moreover, appears to the Court to have been kept within the bounds of what is moderate and
reasonable.
For these reasons, the Court finds by ten votes to two that the method employed for the
delimitation of the fisheries zone by the Royal Norwegian Decree of July 12, 1935, is not
contrary to international law; and by eight votes to four, that the base-lines fixed by the said
Decree in application of this method are not contrary to international law.
* * * * *
Chairman, Rly. Board v. Chandrima Das 83
North Sea Continental Shelf Cases ICJ Reports 1969, p. 3
The dispute, which was submitted to the Court on 20 February 1967, related to the
delimitation of the continental shelf between the Federal Republic of Germany and Denmark
on the one hand, and between the Federal Republic of Germany and the Netherlands on the
other. The two Special Agreements had asked the Court to declare the principles and rules of
international law applicable to the delimitation as between the Parties of the areas of the
North Sea continental shelf appertaining to each of them beyond the partial boundaries in the
immediate vicinity of the coast already determined between the Federal Republic and the
Netherlands by an agreement of 1 December 1964 and between the Federal Republic and
Denmark by an agreement of 9 June 1965.The Court was not asked actually to delimit the
further boundaries involved, the Parties undertaking in their respective Special Agreements to
effect such delimitation by agreement in pursuance of the Court's decision.
The waters of the North Sea were shallow, the whole seabed, except for the Norwegian
Trough, consisting of continental shelf at a depth of less than 200 metres. Most of it had
already been delimited between the coastal States concerned. The Federal Republic and
Denmark and the Netherlands, respectively, had, however, been unable to agree on the
prolongation of the partial boundaries referred to above, mainly because Denmark and the
Netherlands had wished this prolongation to be effected on the basis of the equidistance
principle, whereas the Federal Republic had considered that it would unduly curtail what the
Federal Republic believed should be its proper share of continental shelf area, on the basis of
proportionality to the length of its North Sea coastline. Neither of the boundaries in question
would by itself produce this effect, but only both of them together - an element regarded by Denmark and the Netherlands as irrelevant to what they viewed as being two separate
delimitations, to be carried out without reference to the other.
A boundary based on the equidistance principle, i.e., an "equidistance line", left to each of
the Parties concerned all those portions of the continental shelf that were nearer to a point on
its own coast than they were to any point on the coast of the other Party. In the case of a
concave or recessing coast such as that of the Federal Republic on the North Sea, the effect of
the equidistance method was to pull the line of the boundary inwards, in the direction of the
concavity. Consequently, where two equidistance lines were drawn, they would, if the
curvature were pronounced, inevitably meet at a relatively short distance from the coast, thus
"cutting off" the coastal State from the area of the continental shelf outside. In contrast, the
effect of convex or outwardly curving coasts, such as were, to a moderate extent, those of
Denmark and the Netherlands, was to cause the equidistance lines to leave the coasts on divergent courses, thus having a widening tendency on the area of continental shelf off that
coast.
It had been contended on behalf of Denmark and the Netherlands that the whole matter
was governed by a mandatory rule of law which, reflecting the language of Article 6 of the
Geneva Convention on the Continental Shelf of 29 April 1958, was designated by them as the
"equidistance-special circumstances" rule. That rule was to the effect that in the absence of agreement by the parties to employ another method, all continental shelf boundaries had to be
Chairman, Rly. Board v. Chandrima Das 84
drawn by means of an equidistance line unless "special circumstances" were recognized to
exist. According to Denmark and the Netherlands, the configuration of the German North Sea
coast did not of itself constitute, for either of the two boundary lines concerned, a special
circumstance.
The Federal Republic, for its part, had contended that the correct rule, at any rate in such
circumstances as those of the North Sea, was one according to which each of the States
concerned should have a "just and equitable share" of the available continental shelf, in
proportion to the length of its sea-frontage. It had also contended that in a sea shaped as is the
North Sea, each of the States concerned was entitled to a continental shelf area extending up
to the central point of that sea, or at least extending to its median line. Alternatively, the
Federal Republic had claimed that if the equidistance method were held to be applicable, the
configuration of the German North Sea coast constituted a special circumstance such as to
justify a departure from that method of delimitation in this particular case.
The Apportionment Theory Rejected
The Court felt unable to accept, in the particular form it had taken, the first contention put
forward on behalf of the Federal Republic. Its task was to delimit, not to apportion the areas concerned. The process of delimitation involved establishing the boundaries of an area
already, in principle, appertaining to the coastal State and not the determination de novo of
such an area. The doctrine of the just and equitable share was wholly at variance with the
most fundamental of all the rules of law relating to the continental shelf, namely, that the
rights of the coastal State in respect of the area of continental shelf constituting a natural
prolongation of its land territory under the sea existed ipso facto and ab initio, by virtue of its sovereignty over the land. That right was inherent. In order to exercise it, no special legal acts
had to be performed. It followed that the notion of apportioning as yet undelimited area
considered as a whole (which underlay the doctrine of the just and equitable share) was
inconsistent with the basic concept of continental shelf entitlement.
Non-Applicability of Article 6 of the 1958 Continental Shelf Convention
The Court then turned to the question whether in delimiting those areas the Federal
Republic was under a legal obligation to accept the application of the equidistance principle.
While it was probably true that no other method of delimitation had the same combination of
practical convenience and certainty of application, those factors did not suffice of themselves
to convert what was a method into a rule of law. Such a method would have to draw its legal
force from other factors than the existence of those advantages.
The first question to be considered was whether the 1958 Geneva Convention on the
Continental Shelf was binding for all the Parties in the case. Under the formal provisions of
the Convention, it was in force for any individual State that had signed it within the time-limit
provided, only if that State had also subsequently ratified it. Denmark and the Netherlands
had both signed and ratified the Convention and were parties to it, but the Federal Republic,
although one of the signatories of the Convention, had never ratified it, and was consequently
not a party. It was admitted on behalf of Denmark and the Netherlands that in the
circumstances the Convention could not, as such, be binding on the Federal Republic. But it
was contended that the régime of Article 6 of the Convention had become binding on the
Chairman, Rly. Board v. Chandrima Das 85
Federal Republic, because, by conduct, by public statements and proclamations, and in other
ways, the Republic had assumed the obligations of the Convention.
It was clear that only a very definite, very consistent course of conduct on the part of a
State in the situation of the Federal Republic could justify upholding those contentions. When
a number of States drew up a convention specifically providing for a particular method by
which the intention to become bound by the régime of the convention was to be manifested, it
was not lightly to be presumed that a State which had not carried out those formalities had
nevertheless somehow become bound in another way. Furthermore, had the Federal Republic
ratified the Geneva Convention, it could have entered a reservation to Article 6, by reason of
the faculty to do so conferred by Article 12 of the Convention.
Only the existence of a situation of estoppel could lend substance to the contention of
Denmark and the Netherlands - i.e., if the Federal Republic were now precluded from denying
the applicability of the conventional régime, by reason of past conduct, declarations, etc.,
which not only clearly and consistently evinced acceptance of that régime, but also had
caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change
position or suffer some prejudice. Of this there was no evidence. Accordingly, Article 6 of the
Geneva Convention was not, as such, applicable to the delimitations involved in the present
proceedings.
The Equidistance Principle Not Inherent in the Basic Doctrine of the Continental Shelf
It had been maintained by Denmark and the Netherlands that the Federal Republic was in
any event, and quite apart from the Geneva Convention, bound to accept delimitation on an
equidistance basis, since the use of that method was a rule of general or customary
international law, automatically binding on the Federal Republic.
One argument advanced by them in support of this contention, which might be termed the
a priori argument, started from the position that the rights of the coastal State to its
continental shelf areas were based on its sovereignty over the land domain, of which the shelf
area was the natural prolongation under the sea. From this notion of appurtenance was derived
the view, which the Court accepted, that the coastal State's rights existed ipso facto and ab
initio. Denmark and the Netherlands claimed that the test of appurtenance must be
"proximity": all those parts of the shelf being considered as appurtenant to a particular coastal
State which were closer to it than they were to any point on the coast of another State. Hence,
delimitation had to be effected by a method which would leave to each one of the States
concerned all those areas that were nearest to its own coast. As only an equidistance line
would do this, only such a line could be valid, it was contended.
This view had much force; the greater part of a State's continental shelf areas would
normally in fact be nearer to its coasts than to any other. But the real issue was whether it
followed that every part of the area concerned must be placed in that way. The Court did not
consider this to follow from the notion of proximity, which was a somewhat fluid one. More
fundamental was the concept of the continental shelf as being the natural prolongation of the
land domain. Even if proximity might afford one of the tests to be applied, and an important
one in the right conditions, it might not necessarily be the only, nor in all circumstances the
most appropriate, one. Submarine areas did not appertain to the coastal State merely because
Chairman, Rly. Board v. Chandrima Das 86
they were near it, nor did their appurtenance depend on any certainty of delimitation as to
their boundaries. What conferred the ipso jure title was the fact that the submarine areas
concerned might be deemed to be actually part of its territory in the sense that they were a
prolongation of its land territory under the sea. Equidistance clearly could not be identified
with the notion of natural prolongation, since the use of the equidistance method would
frequently cause areas which were the natural prolongation of the territory of one State to be
attributed to another. Hence, the notion of equidistance was not an inescapable a priori
accompaniment of basic continental shelf doctrine.
A review of the genesis of the equidistance method of delimitation confirmed the
foregoing conclusion. The "Truman Proclamation" issued by the Government of the United
States on 28 September 1945 could be regarded as a starting point of the positive law on the
subject, and the chief doctrine it enunciated, that the coastal State had an original, natural and
exclusive right to the continental shelf off its shores, had come to prevail over all others and
was now reflected in the1958 Geneva Convention. With regard to the delimitation of
boundaries between the continental shelves of adjacent States, the Truman Proclamation had
stated that such boundaries "shall be determined by the United States and the State concerned
in accordance with equitable principles". These two concepts, of delimitation by mutual
agreement and delimitation in accordance with equitable principles, had underlain all the
subsequent history of the subject. It had been largely on the recommendation of a committee
of experts that the principle of equidistance for the delimitation of continental shelf
boundaries had been accepted by the United Nations International Law Commission in the
text it had laid before the Geneva Conference of 1958 on the Law of the Sea which had
adopted the Continental Shelf Convention. It could legitimately be assumed that the experts
had been actuated by considerations not of legal theory but of practical convenience and
cartography. Moreover, the article adopted by the Commission had given priority to
delimitation by agreement and had contained an exception in favour of "special
circumstances".
The Court consequently considered that Denmark and the Netherlands inverted the true
order of things and that, far from an equidistance rule having been generated by an antecedent
principle of proximity inherent in the whole concept of continental shelf appurtenance, the
latter was rather a rationalization of the former
The Equidistance Principle Not a Rule of Customary International Law
The question remained whether through positive law processes the equidistance principle
must now be regarded as a rule of customary international law.
Rejecting the contentions of Denmark and the Netherlands, the Court considered that the
principle of equidistance, as it figured in Article 6 of the Geneva Convention, had not been
proposed by the International Law Commission as an emerging rule of customary
international law. This Article could not be said to have reflected or crystallized such a rule.
This was confirmed by the fact that any State might make reservations in respect of Article 6,
unlike Articles 1, 2 and 3, on signing, ratifying or acceding to the Convention. While certain
other provisions of the Convention, although relating to matters that lay within the field of
received customary law, were also not excluded from the faculty of reservation, they all
Chairman, Rly. Board v. Chandrima Das 87
related to rules of general maritime law very considerably antedating the Convention which
were only incidental to continental shelf rights as such, and had been mentioned in the
Convention simply to ensure that they were not prejudiced by the exercise of continental shelf
rights. Article 6, however, related directly to continental shelf rights as such, and since it was
not excluded from the faculty of reservation, it was a legitimate inference that it was not
considered to reflect emergent customary law.
It had been argued on behalf of Denmark and the Netherlands that even if at the date of
the Geneva Convention no rule of customary international law existed in favour of the
equidistance principle, such a rule had nevertheless come into being since the Convention,
partly because of its own impact, and partly on the basis of subsequent State practice. In order
for this process to occur it was necessary that Article 6 of the Convention should, at all events
potentially, be of a norm-creating character. Article 6 was so framed, however, as to put the
obligation to make use of the equidistance method after a primary obligation to effect
delimitation by agreement. Furthermore, the part played by the notion of special
circumstances in relation to the principle of equidistance, the controversies as to the exact
meaning and scope of that notion, and the faculty of making reservations to Article 6 must all
raise doubts as to the potentially norm-creating character of that Article.
Furthermore, while a very widespread and representative participation in a convention
might show that a conventional rule had become a general rule of international law, in the
present case the number of ratifications and accessions so far was hardly sufficient. As
regards the time element, although the passage of only a short period of time was not
necessarily a bar to the formation of a new rule of customary international law on the basis of
what was originally a purely conventional rule, it was indispensable that State practice during
that period, including that of States whose interests were specially affected, should have been
both extensive and virtually uniform in the sense of the provision invoked and should have
occurred in such a way as to show a general recognition that a rule of law was involved. Some
15 cases had been cited in which the States concerned had agreed to draw or had drawn the
boundaries concerned according to the principle of equidistance, but there was no evidence
that they had so acted because they had felt legally compelled to draw them in that way by
reason of a rule of customary law. The cases cited were inconclusive and insufficient
evidence of a settled practice.
The Court consequently concluded that the Geneva Convention was not in its origins or
inception declaratory of a mandatory rule of customary international law enjoining the use of
the equidistance principle, its subsequent effect had not been constitutive of such a rule, and
State practice up to date had equally been insufficient for the purpose.
The Principles and Rules of Law Applicable
The legal situation was that the Parties were under no obligation to apply the equidistance
principle either under the 1958 Convention or as a rule of general or customary international
law. It consequently became unnecessary for the Court to consider whether or not the
configuration of the German North Sea coast constituted a "special circumstance". It
remained for the Court, however, to indicate to the Parties the principles and rules of law in
the light of which delimitation was to be effected.
Chairman, Rly. Board v. Chandrima Das 88
The basic principles in the matter of delimitation, deriving from the Truman
Proclamation, were that it must be the object of agreement between the States concerned and
that such agreement must be arrived at in accordance with equitable principles. The Parties
were under an obligation to enter into negotiations with a view to arriving at an agreement
and not merely to go through a formal process of negotiation as a sort of prior condition for
the automatic application of a certain method of delimitation in the absence of agreement;
they were so to conduct themselves that the negotiations were meaningful, which would not
be the case when one of them insisted upon its own position without contemplating any
modification of it. This obligation was merely a special application of a principle underlying
all international relations, which was moreover recognized in Article 33 of the Charter of the
United Nations as one of the methods for the peaceful settlement of international disputes.
The Parties were under an obligation to act in such a way that in the particular case, and
taking all the circumstances into account, equitable principles were applied. There was no
question of the Court's decision being ex aequo et bono. It was precisely a rule of law that
called for the application of equitable principles, and in such cases as the present ones the
equidistance method could unquestionably lead to inequity. Other methods existed and might
be employed, alone or in combination, according to the areas involved. Although the Parties
intended themselves to apply the principles and rules laid down by the Court some indication
was called for of the possible ways in which they might apply them.
The principle and rules of international law applicable to the delimitation as between the
Parties are as follows:
1. Delimitation is to be effected by agreement in accordance with equidistance principles, and taking into account of all the relevant circumstances, in such a way
as to leave as much as possible to each Party all those parts of the continental shelf
that constitute a natural prolongation of its land territory into and under the sea,
without encroachment on the natural prolongation of the land territory of the other;
2. If, in the application of the preceding sub-paragraph, the delimitation leaves to the
parties areas that overlap, these are to be divided between them in agreed
proportions or, failing agreement, equally, unless they decided on a regime of joint
jurisdiction, user, or exploitation for the zones which overlap or any part of them.
In the course of negotiations, the factors to be taken into account are to include:
1. The general configuration of the coasts of the Parties, as well as the presence of any
special or unusual features;
2. So far as known or readily ascertained, the physical and geological structure and natural resources, of the continental shelf areas involved;
3. The element of a reasonable degree of proportionality, which a delimitation carried
out in accordance with equitable principles ought to bring above between the extent
of the continental shelf areas appertaining to the coastal state and the length of its
coast measured in the general direction of the coastline, account being taken for this
purpose of the effects, actual or prospective, of any other continental shelf
delimitations between adjacent states in the same region.
* * * * *
Chairman, Rly. Board v. Chandrima Das 89
Libya v. Tunisia Continental Shelf Case ICJ Reports 1982, p. 17
In Libya v. Tunisia Continental Shelf case, unlike most previous cases, where one party
to the litigation argued for equitable principles and the other party for equidistance, in the
present case, both parties strongly endorsed the use of equitable principles, and both denied
the mandatory applicability of the 1958 Convention’s equidistance rule. The parties also took
the same task in trying to utilize the principle of natural prolongation and in attempting to list
all relevant circumstances. The parties did disagree, however, on what was the true concept of
natural prolongation and what were the relevant circumstances.
On 10 June 1977, Libya and Tunisia entered into an agreement for submission to
International Court of Justice of the question of the delimitation of continental shelf between
the two countries. Under the special agreement, the Court was requested to declare what
principles and rules of international law might be applied for the delimitation of each State’s
continental shelf and to clarify the practical method of their delimitation. Under Article 1,
paragraph 1 of the special agreement, parties requested the Court to state the principles and
the rules of international law which might be applied for delimitation of the areas of the
continental shelf respectively appertaining to each of the two States. The parties further called
upon the Court, in rendering its decision, to take account of the following three factors: (a)
equitable principles; (b) relevant circumstances which characterize the area; and (c) the new
accepted trends in the Third United Nations Conference on the Law of the Sea. Article 1,
second paragraph required the Court to clarify the practical method for the application of
these principles and rules so as to enable the experts of the two countries to delimit these
areas without difficulties. The Court was, therefore, not called upon itself to draw the actual
delimitation line.
Natural Prolongation
On the issue of natural prolongation, the parties agree that it is the concept of natural
prolongation of land into and under the sea which is commanding. The parties, however,
differ on the issue of criteria to be applied for determining whether a given area is natural
prolongation of one State or another.
Libya contended, ‘the natural prolongation is determinable as a matter of scientific fact by the
application of geological criteria, equitable principles should play no role in identifying
appurtenant continental shelf based upon the juridical concept of natural prolongation.’
Furthermore, for Libya a delimitation which gives effect to the principle of natural
prolongation is necessarily in accordance with equitable principles, since it respects the
inherent rights of each State. On the other hand, Tunisia contented, ‘the satisfying of equitable
principles in a particular geographical situation is part of the process of the identification of
natural prolongation.’ The issue between the parties in this respect is whether a natural prolongation defined scientifically without reference to equitable principles is truly a ‘natural
prolongation’ for the purpose of delimitation.
The Court rejected the arguments of both Libya and Tunisia. Reacting to Libya’s
contention, International Court of Justice made the observation that it would be wrong to
Chairman, Rly. Board v. Chandrima Das 90
suppose that it will in all cases, or even in the majority of them, be possible or appropriate to
establish that the natural prolongation of one State, just so far and no further, so that the two
prolongations meet along an easily defined line. The Court also apparently disapproved the
argument of Tunisia that the satisfying of equitable principles in a particular geographical
situation is just as much a part of the process of identification of the natural prolongation as
the identification of the natural prolongation are not to be placed on a plane of equality.
However, the subsequent part of Court’s judgment on the issue of ‘natural prolongation’,
reveals that the Court has in substance accepted Tunisia’s contention.
It may be re-emphasized here that the Court rejected the concept of natural prolongation.
It rejected the idea that natural prolongation provided a principle of general applicability, one
which would provide, by itself a solution to all delimitation problems. The Court noted that
geological information was not all that useful in setting precise boundaries. The Court stated
that the physical factor of natural prolongation should not be considered as one which in and
of itself granted legal title, but only to be considered in arriving at an equitable solution.
Equity, according to the Court, was involved both in the process of delimitation and in its
result. The Court emphatically stated that it was the result which was predominent. Principles
were subordinate to the goal. The equitableness of any specific principles of delimitation had
to be assessed in the light of the usefulness of that principle in achieving an overall equitable
result. In this respect, the judgment of the Court in this case explains Court’s judgement in the
North Sea Continental Shelf cases wherein the Court did not draw a clear distinction
between result and the means. The usefulness of the case lies in its assertion of the
equitableness of the ‘result’ rather than means.
In the process of arriving at the above mentioned conclusion, International Court of
Justice referred to Article 83, paragraph 1 of the Draft Convention on the Law of the Sea
which is synonymous to Article 83, paragraph 1 of the U.N. Convention on the Law of the
Sea. Article 83, paragraph 1 reads as follows :
The delimitation of the continental shelf between States with opposite or adjacent
coasts shall be effected by agreement on the basis of international law, as referred to
in Article 38 of the Statute of the International Court of Justice, in order to achieve
an equitable solution.
It is important to note that the new text does not contain any specific criterion which
could give guidance to the interested States in their effort to achieve an equitable solution
which has to be achieved. The principles and rules applicable to the delimitation of the
continental shelf areas are those which are appropriate to bring about an equitable result. It is
pertinent to note that the new text did not affect the role of the concept of natural
prolongation.
The Court, thereafter, tried to explain its views on the concept of equity. It noted that
equity was often understood as an idea apart from law, indeed as a means to avoid or mitigate
positive laws. But, it said, this was not the case in the realm of international law. According to
Court, equity in international law was a general concept of law, directly applicable as law,
taking into account the circumstances of the particular case. Since that which was equitable
had to depend on the particular circumstances of each given case, the Court turned to a careful
Chairman, Rly. Board v. Chandrima Das 91
assessment of the relevant circumstances submitted by Tunisia and Libya; the geography,
geomorphology, land frontier, historic rights and economic considerations.
Relevant Circumstances
Both the parties recognize that equitable principles dictate that the relevant circumstances
which characterize that area be taken into account but they differ as to what they are. The
special agreement confers on the Court the task if ascertaining what are the relevant
circumstances and assessing their relative weight for the purpose of achieving an equitable
result. The Court has, therefore, to balance up the various considerations which it regards as
relevant in order to produce an equitable result.
Tunisia submitted before the International Court of Justice that relevant circumstances to
be taken into account included geological and geographical factors, economic factors, and
historical factors. On the other hand, Libya’s conception of the relevant circumstances was
stated in more restricted terms, namely, geological structure of the shelf and its relation to the
adjoining landmass and the geographic configuration of the coasts as, a relevant circumstance
to be taken into account.
Reacting to the above-mentioned contentions, International Court of Justice observed:
The relevant circumstances which characterize the area are not limited to the
facts of geography or geomorphology, either as a matter of interpretation of the
special agreement or in application of the equitable principles requiring all relevant
circumstances to be taken into account. Apart from the circumstances of the existence
and interests of other States in the area, and the existing, or potential delimitations,
between each of the parties and such States, there is also the position of the land
frontier or more precisely the position of its inter section with the coastline, to be
taken into account. In that connection, the court must in the present case consider a
number of alleged maritime limits resulting from the conduct of the States concerned.
It has further to give due consideration to the historic rights claimed by Tunisia, and
to a number of economic considerations which one or the other party has urged as
relevant.
Elaborating its observation, the Court noted that the parties were in agreement to take into
account the element of proportionality, which a delimitation carried out in accordance with
equitable principles ought to bring about between the extent of the continental shelf areas
appertaining to the coastal State and the length of its coast measured in the general direction
of the coastline.
In this case also, International Court of Justice considered that the element of
‘proportionality’ was indeed required by the fundamental principle of ensuring an equitable
delimitation between the States concerned.
Another circumstance relevant for delimitation examined by the Court was the existence
of an area off the coasts of Tunisia over which it claimed historic right deriving from long-
established fishing activities. The historic rights claimed by Tunisia derive from the long-
established interests and activities of its population in exploiting the fisheries of the bed and
waters of the Mediterranean off its coasts; the exploitation of the shallow in shore banks for
Chairman, Rly. Board v. Chandrima Das 92
fixed fisheries for the catching of swimming species, and of the deeper banks for the
collection of sendentary species, namely spongs. The Court did not feel the need to make
pronouncement on historical factors as in the opinion of the Court, the practical method for
effecting an equitable delimitation adopted by the Court in this case did not affect the
historical rights in the area claimed by Tunisia.
In this regard, the Court observed: ‘...it is only if the method of delimitation which the
court finds to be appropriate is such that it will or may encroach upon the historic rights area
that the Court will have to determine the validity and scope of those rights. If, however, the
method of delimitation (adopted by the Court) is such that the delimitation line will
undoubtedly leave Tunisia in the full and undisputed exercise of those rights over the area
claimed to be subjected to them, then a finding by the Court on the subject will undoubtedly
leave Tunisia in the full and undisputed exercise of those rights over the area claimed to be
subjected to them, then a finding by the Court on the subject will be unnecessary. Such is in
fact, in the view of the Court, the result of the method of delimitation (adopted by the Court).’
On the issue of the relevance of economic considerations, Tunisia invoked economic
considerations in two ways; firstly by drawing attention to its relative poverty vis-a-vis Libya
in terms of absence of natural resources like agriculture and minerals, compared with the
relative abundance in Libya, especially of oil and gas wealth as well as agricultural resources;
secondly, by pointing out that fishing resources derived from its claimed ‘historic rights’ and
‘historic waters’ areas must necessarily be taken into account supplementing its national
economy in taking out its survival as a country. The Court held:
(T)hese economic considerations cannot be taken into account for the delimitation of the continental shelf areas appertaining to each party. They are
virtually extraneous factors since they are variables which unpredictable national
fortune or calamity, as the case may be, might at any time, cause to tilt the scale one
way or the other. A country might be poor today and become rich tomorrow as a
result of an event such as the discovery of a valuable economic resource. As to the
presence of oil wells in an area to be taken into account in the process of weighing all
relevant factors to achieve an equitable result.
The comment of the Court on equidistance principle is quite instructive. Commenting on
the equidistance principle, the Court observed:
(T)he Court held in the North Sea Continental Shelf cases, which also
concerned adjacent States, that the equidistance method of delimitation of the
continental shelf is not prescribed by a mandatory rule of customary law. On the other hand, it emphasized the merits of this rule in cases in which its application
leads to an equitable solution. The subsequent practice of States, as is apparent from
treaties on continental shelf boundaries, shows that the equidistance method has been
employed in a number of cases. But it also shows that States may deviate from an
equidistance line, and had made use of other criteria for the delimitation, whenever
they found this a better way to arrive at an agreement. One evolution may be
combination of an equidistance line in some parts of the area with a line of some
other kind in other parts, as dictated by the relevant circumstances. Examples of this
Chairman, Rly. Board v. Chandrima Das 93
kind are provided by the 1977 Arbitration on the Delimitation of the Continental
Shelf between France and the United Kingdom, and by the Convention between
France and Spain on the Delimitation of the Continental Shelves of the two States in
the Bay of Biscay of 29 January, 1974. Treaty practice, as well as the history of
Article 83 of the draft convention on the law of the sea, leads to the conclusion that
equidistance may be applied if it leads to an equitable solution, if not other methods
should be employed.
* * * * *
Chairman, Rly. Board v. Chandrima Das 94
Libyan Arab Jamahiriya v. Malta ICJ Reports 1985, p. 35
In the case concerning Delimitation of Continental Shelf between Libyan Arab
Jamahiriya and Malta, International Court of Justice delivered its judgment on 3 June 1985.
By a notification dated 19 July 1982, received in the Registry of the Court on 26 July 1982,
Libya and Malta notified the Court of a special agreement between them for submission to the
Court of a dispute concerning the delimitation of the continental shelf between them.
Thereafter proceedings began in the International Court of Justice.
The question for determination before International Court of Justice was as follows :
What principles and rules of international law are applicable to the delimitation
of the area of the continental shelf which appertains to the Republic of Malta and the
area of continental shelf which appertains to the Libyan Arab Republic, and how in practice such principles and rules can be applied by the two parties in this particular
case in order that they may without difficulty delimit such areas by an agreement?
Libya contended that the delimitation should be effected by agreement in accordance with
equitable principles and taking account of all relevant circumstances in order to achieve an
equitable result. Libya made it clear that the application of equidistance method was not
obligatory, and its application in the particular circumstances of this case would not lead to an equitable result. Malta argued as follows:
(i) the principles and rules of international law applicable to the delimitation of
the areas of the continental shelf which appertain to Malta and Libya are that the
delimitation shall be effected on the basis of international law in order to achieve an
equitable solution;
(ii) in practice the above principles and rules are applied by means of a median
line every point which is equidistant from the nearest points on the baselines of
Malta, and the low-water mark of the coast of Libya.
The Republic of Malta is a state made up of a group of four inhabited islands Malta
(246 km2 in area), Gozo (66km2); Comino (2.7km2); Cominotto (less than one-tenth of a
square kilometre), and the uninhabited rock of Filfla. Libya is a mainland State on the coast of
North Africa. It encompasses some 1,775,500 square kilometres. The coast of Libya stretches
for more than 1,700 kilometres.
The following points in the judgement of the International Court of Justice are worth
noticing:
I. Sources of the Law Applicable
The Parties broadly agreed as to the sources of the law applicable in this case. Malta was
a party to the 1958 Geneva Convention on the Continental Shelf, while Libya was not.
Therefore, the parties agreed that 1958 Convention, and in particular the provision for
delimitation in Article 6, was not as such applicable in relations between them. Both parties
signed the U.N. Convention on Law of the Sea, 1982. However, it did not enter into force and
was, therefore, not operative as treaty law. The Parties, therefore, agreed that the dispute was
Chairman, Rly. Board v. Chandrima Das 95
to be governed by customary international law. That does not mean that parties regarded
1982 Convention as irrelevant. The parties admitted that some of the provisions of 1982
Convention constituted, to a certain extent, the expression of customary international law in
the matter. However, the parties did not agree in identifying the provisions of the 1982
Convention which have the status of customary international law.
In this regard, International court of Justice further observed:
The 1982 Convention sets a goal to be achieved, but is silent as to the method to
be followed to achieve it. It restricts itself to setting a standard, and it is left to States
themselves, or to the courts, to endow this standard with specific content.
2. Natural Prolongation and Distance Principle
The Libya’s view that the prolongation of land territory of State into and under the sea,
referred to by the Court in the North Sea Continental Shelf cases, was a geological fact and
natural prolongation in the same physical sense involving geographical as well as geological
and geomorphological aspects, remains the fundamental basis of legal title to continental shelf
areas. For Malta, while it is still true to say that the continental shelf of a State constitutes a
natural prolongation of its land territory into and under the sea, prolongation is no longer
defined by reference to physical features, geological or bathymetric, but by reference to a
certain distance from the coast. The court held that both natural prolongation and the distance
are essential elements in the juridical concept of the continental shelf. What it means is that
where natural prolongation of the continental shelf does not exceed 200 nautical miles from
the shore, it is defined by distance from the shore, irrespective of the physical nature of the
intervening seabed and subsoil. The Court, therefore, felt that the concepts of natural
prolongation and distance are not opposed but complementary to each other. In view of the
Court, natural prolongation as well as distance from the coast are relevant considerations for
delimitation of the opposite continental shelves.
3. Equidistance Method
The Court rejected Maltese contention on the applicability of the equidistance principle
and observed that the States practice clearly revealed that the rule was not a customary rule of
international law. The Court, therefore, took the view that the principle of equidistance is not
obligatory.
4. Equitable Principles
On equitable principles, the Court affirmed the principles laid down in North Sea
Continental Shelf cases and Libya v. Tunisia case. The Court held that delimitation should
be effected in accordance with equitable principles and taking into account of all relevant circumstances, so as to arrive at an equitable result. Thus, the Court emphasized equitableness
of the means as well as the result. The Court further held that the following circumstances and
factors should be taken into account in achieving an equitable delimitation:
(i) the general configurations of the coasts of the parties, their oppositeness, and
their relationship to each other within the general geographical context;
(ii) the disparity in the lengths of the relevant coasts of the parties and the
distance between them;
Chairman, Rly. Board v. Chandrima Das 96
(iii) the need to avoid in the delimitation any excessive disproportion between
the extent of the continental shelf areas appertaining to the coastal State and the
length of the relevant part of its coast, measured in the general direction of the
coastlines (proportionality factor).
The Court rejected the Maltese argument that economic factors and security should also
be taken into account as relevant factors in the delimitation of the continental shelves. The
Court pointed out that 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. In the opinion of the Court, such
considerations are totally unrelated to the underlying intention of the applicable rules of
international law. On security considerations, the Court made the observation that these are
unrelated to concept of Continental shelf.
* * * * *
Chairman, Rly. Board v. Chandrima Das 97
MARITIME DELIMITATION AND TERRITORIAL QUESTIONS BETWEEN
QATAR AND BAHRAIN
Qatar v. Bahrain ICJ Reports 2001, p. 40
History of the proceedings and submissions of the Parties
On 8 July 1991 Qatar filed in the Registry of the Court an Application instituting
proceedings against Bahrain in respect of certain disputes between the two States relating to
"sovereignty over the Hawar islands, sovereign rights over the shoals of Dibal and Qit'at
Jaradah, and the delimitation of the maritime areas of the two States". In this Application,
Qatar contended that the Court had jurisdiction to entertain the dispute by virtue of two
"agreements" concluded between the Parties in December 1987 and December 1990
respectively, the subject and scope of the commitment to the Court's jurisdiction being determined, according to the Applicant, by a formula proposed by Bahrain to Qatar on
26 October 1988 and accepted by Qatar in December 1990 (hereinafter referred to as the
"Bahraini formula"). By letters of 14 July and 18 August 1991, Bahrain contested the basis of
jurisdiction invoked by Qatar.
By a Judgment of 1 July 1994, the Court found that the exchanges of letters between the
King of Saudi Arabia and the Amir of Qatar of 19 and 21 December 1987, and between the
King of Saudi Arabia and the Amir of Bahrain of 19 and 26 December 1987, and the
document headed "Minutes" and signed at Doha on 25 December 1990 by the Ministers for
Foreign Affairs of Bahrain, Qatar and Saudi Arabia, were international agreements creating
rights and obligations for the Parties; and that, by the terms of those agreements, the Parties
had undertaken to submit to the Court the whole of the dispute between them, as
circumscribed by the Bahraini formula. Having noted that it had before it only an Application from Qatar setting out that State's specific claims in connection with that formula, the Court
decided to afford the Parties the opportunity to submit to it the whole of the dispute. After
each of the Parties had filed a document on the question within the time-limit fixed, the Court,
by a Judgment of 15 February 1995, found that it had jurisdiction to adjudicate upon the
dispute between Qatar and Bahrain which had been submitted to it; that it was now seised of
the whole of the dispute; and that the Application of the State of Qatar as formulated on
30 November 1994 was admissible.
On behalf of the Government of Qatar
The State of Qatar respectfully requests the Court, rejecting all contrary claims and
submissions:
I. To adjudge and declare in accordance with international law:
A. (1) That the State of Qatar has sovereignty over the Hawar islands;
(2) That Dibal and Qit'at Jaradah shoals are low-tide elevations which are under
Qatar's sovereignty;
B. (1) That the State of Bahrain has no sovereignty over the island of Janan;
(2) That the State of Bahrain has no sovereignty over Zubarah;
Chairman, Rly. Board v. Chandrima Das 98
(3) That any claim by Bahrain concerning archipelagic baselines and areas for fishing for
pearls and swimming fish would be irrelevant for the purpose of maritime delimitation in the
present case;
II. To draw a single maritime boundary between the maritime areas of sea-bed, subsoil
and superjacent waters appertaining respectively to the State of Qatar and the State of Bahrain
on the basis that Zubarah, the Hawar islands and the island of Janan appertain to the State of
Qatar and not to the State of Bahrain, that boundary starting from point 2 of the delimitation
agreement concluded between Bahrain and Iran in 1971 (51° 05' 54" E and 27° 02' 47" N),
thence proceeding in a southerly direction up to BLV (50° 57' 30" E and 26° 33' 35" N), then
following the line of the British decision of 23 December 1947 up to NSLB (50° 49' 48" E
and 26° 21' 24" N) and up to point L (50° 43' 00" E and 25° 47' 27" N), thence proceeding to
point S1 of the delimitation agreement concluded by Bahrain and Saudi Arabia in 1958
(50° 31' 45" E and 25° 35' 38" N).
On behalf of the Government of Bahrain
Having regard to the facts and arguments set forth in Bahrain's Memorial, Counter-
Memorial, and Reply, and in the present hearings;
May it please the Court, rejecting all contrary claims and submissions, to adjudge and
declare that:
1. Bahrain is sovereign over Zubarah.
2. Bahrain is sovereign over the Hawar Islands, including Janan and Hadd Janan.
3. In view of Bahrain's sovereignty over all the insular and other features, including Fasht
ad Dibal and Qit'at Jaradah, comprising the Bahraini archipelago, the maritime boundary
between Bahrain and Qatar is as described in Part Two of Bahrain's Memorial."
Geographical setting
The Court notes that the State of Qatar and the State of Bahrain are both located in the
southern part of the Arabian/Persian Gulf (hereinafter referred to as "the Gulf"), almost
halfway between the mouth of the Shatt al Arab, to the north-west, and the Strait of Hormuz,
at the Gulf's eastern end, to the north of Oman. The mainland to the west and south of the main island of Bahrain and to the south of the Qatar peninsula is part of the Kingdom of
Saudi Arabia. The mainland on the northern shore of the Gulf is part of Iran.
The Qatar peninsula projects northward into the Gulf, on the west from the bay called
Dawhat Salwah, and on the east from the region lying to the south of Khor al-Udaid. The
capital of the State of Qatar, Doha, is situated on the eastern coast of the peninsula.
Bahrain is composed of a number of islands, islets and shoals situated off the eastern and
western coasts of its main island, which is also called al-Awal Island. The capital of the State
of Bahrain, Manama, is situated in the north-eastern part of al-Awal Island.
Zubarah is located on the north-west coast of the Qatar peninsula, opposite the main
island of Bahrain. The Hawar Islands are located in the immediate vicinity of the central part
of the west coast of the Qatar peninsula, to the south-east of the main island of Bahrain and at
a distance of approximately 10 nautical miles from the latter. Janan is located off the south-
western tip of Hawar Island proper. Fasht ad Dibal and Qit'at Jaradah are two maritime
Chairman, Rly. Board v. Chandrima Das 99
features located off the north-western coast of the Qatar peninsula and to the north-east of the
main island of Bahrain.
Historical context
Navigation in the Gulf was traditionally in the hands of the inhabitants of the region.
From the beginning of the sixteenth century, European powers began to show interest in the
area, which lay along one of the trading routes with India. Portugal's virtual monopoly of
trade was not challenged until the beginning of the seventeenth century. Great Britain was
then anxious to consolidate its presence in the Gulf to protect the growing commercial
interests of the East India Company.
Between 1797 and 1819 Great Britain despatched numerous punitive expeditions in
response to acts of plunder and piracy by Arab tribes led by the Qawasim against British and
local ships. In 1819, Great Britain took control of Ras al Khaimah, headquarters of the
Qawasim, and signed separate agreements with the various sheikhs of the region. These
sheikhs undertook to enter into a General Treaty of Peace. By this Treaty, signed in January
1820, these sheikhs and chiefs undertook on behalf of themselves and their subjects inter alia
to abstain for the future from plunder and piracy. It was only towards the end of the nineteenth century that Great Britain would adopt a general policy of protection in the Gulf,
concluding "exclusive agreements" with most sheikhdoms, including those of Bahrain, Abu
Dhabi, Sharjah and Dubai. Representation of British interests in the region was entrusted to a
British Political Resident in the Gulf, installed in Bushire (Persia), to whom British Political
Agents were subsequently subordinated in various sheikhdoms with which Great Britain had
concluded agreements.
On 31 May 1861 the British Government signed a "Perpetual treaty of peace and
friendship" with Sheikh Mahomed bin Khalifah, referred to in the treaty as independent Ruler
of Bahrain. Under this treaty, Bahrain undertook inter alia to refrain from all maritime
aggression of every description, while Great Britain undertook to provide Bahrain with the
necessary support in the maintenance of security of its possessions against aggression. There
was no provision in this treaty defining the extent of these possessions.
Following hostilities on the Qatar peninsula in 1867, the British Political Resident in the
Gulf approached Sheikh Ali bin Khalifah, Chief of Bahrain, and Sheikh Mohamed Al-Thani,
Chief of Qatar, and, on 6 and 12 September 1868 respectively, occasioned each to sign an
agreement with Great Britain. By these agreements, the Chief of Bahrain recognized inter alia
that certain acts of piracy had been committed by Mahomed bin Khalifah, his predecessor,
and, "[i]n view of preserving the peace at sea, and precluding the occurrence of further disturbance and in order to keep the Political Resident informed of what happens", he
promised to appoint an agent with the Political Resident; for his part, the Chief of Qatar
undertook inter alia to return to and reside peacefully in Doha, not to put to sea with hostile
intention, and, in the event of disputes or misunderstanding arising, invariably to refer to the
Political Resident. According to Bahrain, the "events of 1867-1868" demonstrate that Qatar
was not independent from Bahrain. According to Qatar, on the contrary, the 1868 Agreements
formally recognized for the first time the separate identity of Qatar.
Chairman, Rly. Board v. Chandrima Das 100
While Great Britain had become the dominant maritime Power in the Gulf by this time,
the Ottoman Empire, for its part, had re-established its authority over extensive areas of the
land on the southern side of the Gulf. In the years following the arrival of the Ottomans on the
Qatar peninsula, Great Britain further increased its influence over Bahrain. On 29 July 1913,
an Anglo-Ottoman "Convention relating to the Persian Gulf and surrounding territories" was
signed, but it was never ratified. Section II of this Convention dealt with Qatar. Article 11
described the course of the line which, according to the agreement between the parties, was to
separate the Ottoman Sanjak of Nejd from the "peninsula of al-Qatar". Qatar points out that
the Ottomans and the British had also signed, on 9 March 1914, a treaty concerning the
frontiers of Aden, which was ratified that same year and whose Article III provided that the
line separating Qatar from the Sanjak of Nejd would be "in accordance with Article 11 of the
Anglo-Ottoman Convention of 29 July 1913 relating to the Persian Gulf and the surrounding
territories". Under a treaty concluded on 3 November 1916 between Great Britain and the
Sheikh of Qatar, the Sheikh of Qatar bound himself inter alia not to "have relations nor
correspond with, nor receive the agent of, any other Power without the consent of the High
British Government"; nor, without such consent, to cede to any other Power or its subjects, land; nor, without such consent, to grant any monopolies or concessions. In return, the British
Government undertook to protect the Sheikh of Qatar and to grant its "good offices" should
the Sheikh or his subjects be assailed by land within the territories of Qatar. There was no
provision in this treaty defining the extent of those territories.
On 29 April 1936 the representative of Petroleum Concessions Ltd. wrote to the British
India Office, which had responsibility for relations with the protected States in the Gulf,
drawing its attention to a Qatar oil concession of 17 May 1935 and observing that the Ruler of
Bahrain, in his negotiations with Petroleum Concessions Ltd., had laid claim to Hawar; he
accordingly enquired to which of the two Sheikhdoms (Bahrain or Qatar) Hawar belonged.
On 14 July 1936, Petroleum Concessions Ltd. was informed by the India Office that it
appeared to the British Government that Hawar belonged to the Sheikh of Bahrain. The
content of those communications was not conveyed to the Sheikh of Qatar.
In 1937, Qatar attempted to impose taxation on the Naim tribe inhabiting the Zubarah
region; Bahrain opposed this as it claimed rights over this region. Relations between Qatar
and Bahrain deteriorated. Negotiations between the two States started in spring of 1937 and
were broken off in July of that year.
Qatar alleges that Bahrain clandestinely and illegally occupied the Hawar Islands in 1937.
Bahrain maintains that its Ruler was simply performing legitimate acts of continuing
administration in his own territory. By a letter dated 10 May 1938, the Ruler of Qatar
protested to the British Government against what he called "the irregular action taken by
Bahrain against Qatar", to which he had already referred in February 1938 in a conversation
in Doha with the British Political Agent in Bahrain. On 20 May 1938, the latter wrote to the
Ruler of Qatar, inviting him to state his case on Hawar at the earliest possible moment. The
Ruler of Qatar responded by a letter dated 27 May 1938. Some months later, on
3 January 1939, Bahrain submitted a counter-claim. In a letter of 30 March 1939, the Ruler of
Qatar presented his comments on Bahrain's counter-claim to the British Political Agent in
Chairman, Rly. Board v. Chandrima Das 101
Bahrain. The Rulers of Qatar and Bahrain were informed on 11 July 1939 that the British
Government had decided that the Hawar Islands belonged to Bahrain.
In May 1946, the Bahrain Petroleum Company Ltd. sought permission to drill in certain
areas of the continental shelf, some of which the British considered might belong to Qatar.
The British Government decided that this permission could not be granted until there had
been a division of the sea-bed between Bahrain and Qatar. It studied the matter and, on
23 December 1947, the British Political Agent in Bahrain sent the Rulers of Qatar and
Bahrain two letters, in the same terms, showing the line which, the British Government
considered divided "in accordance with equitable principles the sea-bed aforesaid". The letter
indicated further that the Shaik of Bahrain had sovereign rights in the areas of the Dibal and
Jaradah shoals (which should not be considered to be islands having territorial waters), as
well as over the islands Hawar group while noting that Janan Island was not regarded as being
included in the islands of the Hawar group.
In 1971 Qatar and Bahrain ceased to be British protected States. On 21 September 1971,
they were both admitted to the United Nations.
Beginning in 1976, mediation, also referred to as "good offices", was conducted by the King of Saudi Arabia with the agreement of the Amirs of Bahrain and Qatar. The good offices
of King Fahd did not lead to the desired outcome and on 8 July 1991 Qatar instituted
proceedings before the Court against Bahrain.
Sovereignty over Zubarah
The Court notes that both Parties agree that the Al-Khalifah occupied Zubarah in the
1760s and that, some years later, they settled in Bahrain, but that they disagree as to the legal
situation which prevailed thereafter and which culminated in the events of 1937. In the
Court's view, the terms of the 1868 Agreement between and Great Britain and the Sheikh of
Bahrain (see above) show that any attempt by Bahrain to pursue its claims to Zubarah through
military action at sea would not be tolerated by the British. The Court finds that thereafter, the
new rulers of Bahrain were never in a position to engage in direct acts of authority in
Zubarah. Bahrain maintains, however, that the Al-Khalifah continued to exercise control over
Zubarah through a Naim-led tribal confederation loyal to them, notwithstanding that at the
end of the eighteenth century they had moved the seat of their government to the islands of
Bahrain. The Court does not accept this contention.
The Court considers that, in view of the role played by Great Britain and the Ottoman
Empire in the region, it is significant to note Article 11 of the Anglo-Ottoman Convention
signed on 29 July 1913, which states inter alia: "it is agreed between the two Governments
that the said peninsula will, as in the past, be governed by the Sheikh Jasim-bin-Sani and his
successors". Thus Great Britain and the Ottoman Empire did not recognize Bahrain's
sovereignty over the peninsula, including Zubarah. In their opinion the whole Qatar peninsula
would continue to be governed by Sheikh Jassim Al-Thani, who had formerly been
nominated kaimakam by the Ottomans, and by his successors. Both Parties agree that the
1913 Anglo-Ottoman Convention was never ratified; they differ on the other hand as to its
value as evidence of Qatar's sovereignty over the peninsula. The Court observes that signed
but unratified treaties may constitute an accurate expression of the understanding of the
Chairman, Rly. Board v. Chandrima Das 102
parties at the time of signature. In the circumstances of this case the Court has come to the
conclusion that the Anglo-Ottoman Convention does represent evidence of the views of
Great Britain and the Ottoman Empire as to the factual extent of the authority of the Al-Thani
Ruler in Qatar up to 1913. The Court also observes that Article 11 of the 1913 Convention is
referred to by Article III of the subsequent Anglo-Ottoman treaty of 9 March 1914, duly
ratified that same year. The parties to that treaty therefore did not contemplate any authority
over the peninsula other than that of Qatar.
The Court then examines certain events which took place in Zubarah in 1937, after the
Sheikh of Qatar had attempted to impose taxation on the Naim. It notes, inter alia, that on
5 May 1937, the Political Resident reported on those incidents to the Secretary of State for
India, stating that he was "[p]ersonally, therefore, . . . of the opinion that juridically the
Bahrain claim to Zubarah must fail". In a telegram of 15 July 1937 to the Political Resident,
the British Secretary of State indicated that the Sheikh of Bahrain should be informed that the
British Government regretted that it was "not prepared to intervene between Sheikh of Qatar
and Naim tribe".
In view of the foregoing, the Court finds that it cannot accept Bahrain's contention that
Great Britain had always regarded Zubarah as belonging to Bahrain. The terms of the 1868
agreement between the British Government and the Sheikh of Bahrain, of the 1913 and 1914
conventions and of the letters in 1937 from the British Political Resident to the Secretary of
State for India, and from the Secretary of State to the Political Resident, all show otherwise.
In effect, in 1937 the British Government did not consider that Bahrain had sovereignty over
Zubarah; it is for this reason that it refused to provide Bahrain with the assistance which it
requested on the basis of the agreements in force between the two countries. In the period
after 1868, the authority of the Sheikh of Qatar over the territory of Zubarah was gradually
consolidated; it was acknowledged in the 1913 Anglo-Ottoman Convention and was
definitively established in 1937. The actions of the Sheikh of Qatar in Zubarah that year were
an exercise of his authority on his territory and, contrary to what Bahrain has alleged, were
not an unlawful use of force against Bahrain. For all these reasons, the Court concludes that
the first submission made by Bahrain cannot be upheld and that Qatar has sovereignty over
Zubarah.
Sovereignty over the Hawar Islands
The Court then turns to the question of sovereignty over the Hawar Islands, leaving aside
the question of Janan for the moment.
The Court observes that the Parties' lengthy arguments on the issue of sovereignty over the Hawar Islands raise several legal issues: the nature and validity of the 1939 decision by
Great Britain; the existence of an original title; effectivités; and the applicability of the
principle of uti possidetis juris to the present case. The Court begins by considering the nature
and validity of the 1939 British decision. Bahrain maintains that the British decision of 1939
must be considered primarily as an arbitral award, which is res judicata. It claims that the
Court does not have jurisdiction to review the award of another tribunal, basing its
proposition on decisions of the Permanent Court of International Justice and the present
Court. Qatar denies the relevance of the judgments cited by Bahrain. It contends that none of
Chairman, Rly. Board v. Chandrima Das 103
them are in the slightest degree relevant to the issue which the Court has to determine in the
present case, namely, whether the procedures followed by the British Government in 1938
and 1939 amounted to a process of arbitration which could result in an arbitral award binding
upon the parties.
The Court first considers the question whether the 1939 British decision must be deemed
to constitute an arbitral award. It observes in this respect that the word arbitration, for
purposes of public international law, usually refers to "the settlement of differences between
States by judges of their own choice, and on the basis of respect for law" and that this
wording was reaffirmed in the work of the International Law Commission, which reserved the
case where the parties might have decided that the requested decision should be taken ex
æquo et bono. The Court observes that in the present case no agreement existed between the
Parties to submit their case to an arbitral tribunal made up of judges chosen by them, who
would rule either on the basis of law or ex æquo et bono. The Parties had only agreed that the
issue would be decided by "His Majesty's Government", but left it to the latter to determine
how that decision would be arrived at, and by which officials. It follows that the decision
whereby, in 1939, the British Government held that the Hawar Islands belonged to Bahrain,
did not constitute an international arbitral award. The Court finds that it does not therefore
need to consider Bahrain's argument concerning the Court's jurisdiction to examine the
validity of arbitral awards.
The Court observes, however, that the fact that a decision is not an arbitral award does not
mean that the decision is devoid of legal effect. In order to determine the legal effect of the
1939 British decision, it then recalls the events which preceded and immediately followed its
adoption. Having done so, the Court considers Qatar's argument challenging the validity of
the 1939 British decision.
Qatar first contends that it never gave its consent to have the question of the Hawar
Islands decided by the British Government.
The Court observes, however, that following the Exchange of Letters of 10 and
20 May 1938, the Ruler of Qatar consented on 27 May 1938 to entrust decision of the Hawar Islands question to the British Government. On that day he had submitted his complaint to the
British Political Agent. Finally, like the Ruler of Bahrain, he had consented to participate in
the proceedings that were to lead to the 1939 decision. The jurisdiction of the British
Government to take the decision concerning the Hawar Islands derived from these two
consents; the Court therefore has no need to examine whether, in the absence of such consent,
the British Government would have had the authority to do so under the treaties making
Bahrain and Qatar protected States of Great Britain.
Qatar maintains in the second place that the British officials responsible for the
Hawar Islands question were biased and had prejudged the matter. The procedure followed is
accordingly alleged to have violated "the rule which prohibits bias in a decision-maker on the
international plane". It is also claimed that the parties were not given an equal and fair
opportunity to present their arguments and that the decision was not reasoned.
The Court begins by recalling that the 1939 decision is not an arbitral award made upon
completion of arbitral proceedings. This does not, however, mean that it was devoid of all
Chairman, Rly. Board v. Chandrima Das 104
legal effect. Quite to the contrary, the pleadings, and in particular the Exchange of Letters
referred to above, shows that Bahrain and Qatar consented to the British Government settling
their dispute over the Hawar Islands. The 1939 decision must therefore be regarded as a
decision that was binding from the outset on both States and continued to be binding on those
same States after 1971, when they ceased to be British protected States. The Court further
observes that while it is true that the competent British officials proceeded on the premise that
Bahrain possessed prima facie title to the islands and that the burden of proving the opposite
lay on the Ruler of Qatar, Qatar cannot maintain that it was contrary to justice to proceed on
the basis of this premise when Qatar had been informed before agreeing to the procedure that
this would occur and had consented to the proceedings being conducted on that basis. During
those proceedings the two Rulers were able to present their arguments and each of them was
afforded an amount of time which the Court considers was sufficient for this purpose; Qatar's
contention that it was subjected to unequal treatment therefore cannot be upheld. The Court
also notes that, while the reasoning supporting the 1939 decision was not communicated to
the Rulers of Bahrain and Qatar, this lack of reasons has no influence on the validity of the
decision taken, because no obligation to state reasons had been imposed on the British Government when it was entrusted with the settlement of the matter. Therefore, Qatar's
contention that the 1939 British decision is invalid for lack of reasons cannot be upheld.
Finally, the fact that the Sheikh of Qatar had protested on several occasions against the
content of the British decision of 1939 after he had been informed of it is not such as to render
the decision unopposable to him, contrary to what Qatar maintains. The Court accordingly
concludes that the decision taken by the British Government on 11 July 1939 is binding on the parties. For all of these reasons, the Court concludes that Bahrain has sovereignty over the
Hawar Islands, and that the submissions of Qatar on this question cannot be upheld. The
Court finally observes that the conclusion thus reached by it on the basis of the British
decision of 1939 makes it unnecessary for the Court to rule on the arguments of the Parties
based on the existence of an original title, effectivités, and the applicability of the principle of
uti possidetis juris to the present case.
Sovereignty over Janan Island
The Court then considers the Parties' claims to Janan Island. It begins by observing that
Qatar and Bahrain have differing ideas of what should be understood by the expression
"Janan Island". According to Qatar, "Janan is an island approximately 700 metres long and
175 metres wide situated off the southwestern tip of the main Hawar island . . .". For Bahrain,
the term covers "two islands, situated between one and two nautical miles off the southern coast of Jazirat Hawar, which merge into a single island at low tide . . .". After examination of
the arguments of the Parties, the Court considers itself entitled to treat Janan and Hadd Janan
as one island.
The Court then, as it has done in regard to the Parties' claims to the Hawar Islands, begins
by considering the effects of the British decision of 1939 on the question of sovereignty over
Janan Island. As has already been stated, in that decision the British Government concluded
that the Hawar Islands "belong[ed] to the State of Bahrain and not to the State of Qatar". No
mention was made of Janan Island. Nor was it specified what was to be understood by the
expression "Hawar Islands". The Parties have accordingly debated at length over the issue of
Chairman, Rly. Board v. Chandrima Das 105
whether Janan fell to be regarded as part of the Hawar Islands and whether, as a result, it
pertained to Bahrain's sovereignty by virtue of the 1939 decision or whether, on the contrary,
it was not covered by that decision.
In support of their respective arguments, Qatar and Bahrain have each cited documents
both anterior and posterior to the British decision of 1939. Qatar has in particular relied on a
"decision" by the British Government in 1947 relating to the seabed delimitation between the
two States. Bahrain recalled that it had submitted four lists to the British Government -- in
April 1936, August 1937, May 1938 and July 1946 -- with regard to the composition of the
Hawar Islands.
The Court notes that the three lists submitted prior to 1939 by Bahrain to the British
Government with regard to the composition of the Hawar group are not identical. In
particular, Janan Island appears by name in only one of those three lists. As to the fourth list,
which is different from the three previous ones, it does make express reference to Janan
Island, but it was submitted to the British Government only in 1946, several years after the
adoption of the 1939 decision. Thus, no definite conclusion may be drawn from these various
lists.
The Court then considers the letters sent on 23 December 1947 by the British Political
Agent in Bahrain to the Rulers of Qatar and Bahrain. By those letters the Political Agent
acting on behalf of the British Government informed the two States of the delimitation of
their seabeds effected by the British Government. This Government, which had been
responsible for the 1939 decision on the Hawar Islands, sought, in the last sentence of
subparagraph 4 (ii) of these letters, to make it clear that "Janan Island is not regarded as being included in the islands of the Hawar group". The British Government accordingly did not
"recognize" the Sheikh of Bahrain as having "sovereign rights" over that island and, in
determining the points fixed in paragraph 5 of those letters, as well as in drawing the map
enclosed with those letters, it regarded Janan as belonging to Qatar. The Court considers that
the British Government, in thus proceeding, provided an authoritative interpretation of the
1939 decision and of the situation resulting from it. Having regard to all of the foregoing, the
Court does not accept Bahrain's argument that in 1939 the British Government recognized
"Bahrain's sovereignty over Janan as part of the Hawars". It finds that Qatar has sovereignty
over Janan Island including Hadd Janan, on the basis of the decision taken by the British
Government in 1939, as interpreted in 1947.
Maritime Delimitation
The Court then turns to the question of the maritime delimitation. It begins by taking note that the Parties are in agreement that the Court should render its decision on the maritime
delimitation in accordance with international law. Neither Bahrain nor Qatar is party to the
Geneva Conventions on the Law of the Sea of 29 April 1958; Bahrain has ratified the United
Nations Convention on the Law of the Sea of 10 December 1982 but Qatar is only a signatory
to it. The Court indicates that customary international law, therefore, is the applicable law.
Both Parties, however, agree that most of the provisions of the 1982 Convention which are
relevant for the present case reflect customary law.
Chairman, Rly. Board v. Chandrima Das 106
• A single maritime boundary
The Court notes that, under the terms of the “Bahraini formula”, the Parties requested the
Court, in December 1990, “to draw a single maritime boundary between their respective
maritime areas of seabed, subsoil and superjacent waters”.
The Court observes that it should be kept in mind, that the concept of “single maritime
boundary” may encompass a number of functions. In the present case the single maritime
boundary will be the result of the delimitation of various jurisdictions. In the southern part of
the delimitation area, which is situated where the coasts of the Parties are opposite to each
other, the distance between these coasts is nowhere more than 24 nautical miles. The
boundary the Court is expected to draw will, therefore, delimit exclusively their territorial
seas and, consequently, an area over which they enjoy territorial sovereignty. More to the
north, however, where the coasts of the two States are no longer opposite to each other but are
rather comparable to adjacent coasts, the delimitation to be carried out will be one between
the continental shelf and exclusive economic zone belonging to each of the Parties, areas in
which States have only sovereign rights and functional jurisdiction. Thus both Parties have
differentiated between a southern and a northern sector.
The Court further observes that the concept of a single maritime boundary does not stem
from multilateral treaty law but from State practice, and that it finds its explanation in the
wish of States to establish one uninterrupted boundary line delimiting the various - partially
coincident - zones of maritime jurisdiction appertaining to them. In the case of coincident
jurisdictional zones, the determination of a single boundary for the different objects of
delimitation “can only be carried out by the application of a criterion, or combination of criteria, which does not give preferential treatment to one of these … objects to the detriment
of the other and at the same time is such as to be equally suitable to the division of either of
them”, as was stated by the Chamber of the Court in the Gulf of Maine case. In that case, the
Chamber was asked to draw a single line which would delimit both the continental shelf and
the superjacent water column.
• Delimitation of the territorial sea
Delimitation of territorial seas does not present comparable problems, since the rights of
the coastal State in the area concerned are not functional but territorial, and entail sovereignty
over the sea-bed and the superjacent waters and air column. Therefore, when carrying out that
part of its task, the Court has to apply in the present case first and foremost the principles and
rules of international customary law which refer to the delimitation of the territorial sea, while
taking into account that its ultimate task is to draw a single maritime boundary that serves other purposes as well. The Parties agree that the provisions of Article 15 of the 1982
Convention on the Law of the Sea, headed “Delimitation of the territorial sea between States
with opposite or adjacent coasts”, are part of customary law. This Article provides:
“Where the coasts of two States are opposite or adjacent to each other, neither of
the two States is entitled, failing agreement between them to the contrary, to extend
its territorial sea beyond the median line every point of which is equidistant from the
nearest point on the baselines from which the breadth of the territorial seas of each of
the two States is measured. The above provision does not apply, however, where it is
Chairman, Rly. Board v. Chandrima Das 107
necessary by reason of historic title or other special circumstances to delimit the
territorial seas of the two States in a way which is at variance therewith.”
The Court notes that Article 15 of the 1982 Convention is virtually identical to Article 12,
paragraph 1, of the 1958 Convention on the Territorial Sea and the Contiguous Zone, and is to
be regarded as having a customary character. It is often referred to as the
“equidistance/special circumstances” rule. The most logical and widely practised approach is
first to draw provisionally an equidistance line and then to consider whether that line must be
adjusted in the light of the existence of special circumstances. The Court explains that once it
has delimited the territorial seas belonging to the Parties, it will determine the rules and
principles of customary law to be applied to the delimitation of the Parties' continental shelves
and their exclusive economic zones or fishery zones. The Court will further decide whether
the method to be chosen for this delimitation differs from or is similar to the approach just
outlined.
• The equidistance line
The Court begins by noting that the equidistance line is the line every point of which is
equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. This line can only be drawn when the baselines are
known. Neither of the Parties has as yet specified the baselines which are to be used for the
determination of the breadth of the territorial sea, nor have they produced official maps or
charts which reflect such baselines. Only during the present proceedings have they provided
the Court with approximate basepoints which in their view could be used by the Court for the
determination of the maritime boundary.
• The relevant coasts
The Court indicates that it will therefore first determine the relevant coasts of the Parties,
from which will be determined the location of the baselines, and the pertinent basepoints from
which enable the equidistance line to be measured.
Qatar has argued that, for purposes of this delimitation, it is the mainland-to-mainland
method which should be applied in order to construct the equidistance line. It claims that the
notion of “mainland” applies both to the Qatar peninsula, which should be understood as
including the main Hawar island, and to Bahrain, of which the islands to be taken into
consideration are al-Awal (also called Bahrain Island), together with al-Muharraq and Sitrah.
For Qatar, application of the mainland-to-mainland method has two main consequences. First,
it takes no account of the islands (except for the above-mentioned islands, Hawar on the Qatar
side and al-Awal, al-Muharraq and Sitrah on the Bahrain side), islets, rocks, reefs or low-tide
elevations lying in the relevant area. Second, in Qatar's view, application of the mainland-to-
mainland method of calculation would also mean that the equidistance line has to be
constructed by reference to the high-water line.
Bahrain contends that it is a de facto archipelago or multiple-island State, characterized
by a variety of maritime features of diverse character and size. All these features are closely
interlinked and together they constitute the State of Bahrain; reducing that State to a limited
number of so-called "principal" islands would be a distortion of reality and a refashioning of
geography. Since it is the land which determines maritime rights, the relevant basepoints are
Chairman, Rly. Board v. Chandrima Das 108
situated on all those maritime features over which Bahrain has sovereignty. Bahrain further
contends that, according to conventional and customary international law, it is the low-water
line which is determinative for the breadth of the territorial sea and for the delimitation of
overlapping territorial waters. Finally, Bahrain has stated that, as a de facto archipelagic State,
it is entitled to declare itself an archipelagic State under Part IV of the 1982 Law of the Sea
Convention and to draw the permissive baselines of Article 47 of that Convention, i.e.,
“straight archipelagic baselines joining the outermost points of the outermost islands and
drying reefs of the archipelago”. Qatar has contested Bahrain's claim that it is entitled to
declare itself an archipelagic State under Part IV of the 1982 Convention.
With regard to Bahrain’s claim the Court observes that Bahrain has not made this claim
one of its formal submissions and that the Court is therefore not requested to take a position
on this issue. What the Court, however, is called upon to do is to draw a single maritime
boundary in accordance with international law. The Court can carry out this delimitation only
by applying those rules and principles of customary law which are pertinent under the
prevailing circumstances. It emphasizes that its decision will have binding force between the
Parties, in accordance with Article 59 of the Statute of the Court, and consequently could not
be put in issue by the unilateral action of either of the Parties, and in particular, by any
decision of Bahrain to declare itself an archipelagic State.
The Court, therefore, turns to the determination of the relevant coasts from which the
breadth of the territorial seas of the Parties is measured. In this respect the Court recalls that
under the applicable rules of international law the normal baseline for measuring this breadth
is the low-water line along the coast (Art. 5, 1982 Convention on the Law of the Sea).
In previous cases the Court has made clear that maritime rights derive from the coastal
State’s sovereignty over the land, a principle which can be summarized as “the land
dominates the sea”. It is thus the terrestrial territorial situation that must be taken as starting
point for the determination of the maritime rights of a coastal State. In order to determine
what constitutes Bahrain's relevant coasts and what are the relevant baselines on the Bahraini
side, the Court must first establish which islands come under Bahraini sovereignty. The Court
recalls that it has concluded that the Hawar Islands belong to Bahrain and that Janan belongs
to Qatar. It observes that other islands which can be identified in the delimitation area which
are relevant for delimitation purposes in the southern sector are Jazirat Mashtan and Umm
Jalid, islands which are at high tide very small in size, but at low tide have a surface which is
considerably larger. Bahrain claims to have sovereignty over these islands, a claim which is
not contested by Qatar.
• Fasht al Azm
However, the Parties are divided on the issue of whether Fasht al Azm must be deemed to
be part of the island of Sitrah or whether it is a low-tide elevation which is not naturally
connected to Sitrah Island. In 1982 Bahrain undertook reclamation works for the construction
of a petrochemical plant, during which an artificial channel was dredged connecting the
waters on both sides of Fasht al Azm. After careful analysis of the various reports, documents
and charts submitted by the Parties, the Court has been unable to establish whether a
permanent passage separating Sitrah Island from Fasht al Azm existed before the reclamation
Chairman, Rly. Board v. Chandrima Das 109
works of 1982 were undertaken. For the reasons explained below, the Court is nonetheless
able to undertake the requested delimitation in this sector without determining the question
whether Fasht al Azm is to be regarded as part of the island of Sitrah or as a low-tide
elevation.
• Qit'at Jaradah
Another issue on which the Parties have totally opposing views is whether Qit'at Jaradah
is an island or a low-tide elevation. The Court recalls that the legal definition of an island is “a
naturally formed area of land, surrounded by water, which is above water at high tide” (1958
Convention on the Territorial Sea and Contiguous Zone, Art. 10, para. 1; 1982 Convention on
the Law of the Sea, Art. 121, para. 1). The Court has carefully analysed the evidence
submitted by the Parties and weighed the conclusions of the experts referred to above, in
particular the fact that the experts appointed by Qatar did not themselves maintain that it was
scientifically proven that Qit’at Jaradah is a low-tide elevation. On these bases, the Court
concludes that the maritime feature of Qit'at Jaradah satisfies the above-mentioned criteria
and that it is an island which should as such be taken into consideration for the drawing of the
equidistance line. In the present case, 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.
• Fasht ad Dibal
Both Parties agree that Fasht ad Dibal is a low-tide elevation. Whereas Qatar maintains -
just as it did with regard to Qit’at Jaradah - that Fasht ad Dibal as a low-tide elevation cannot
be appropriated, Bahrain contends that low-tide elevations by their very nature are territory,
and therefore can be appropriated in accordance with the criteria which pertain to the
acquisition of territory. “Whatever their location, low-tide elevations are always subject to the
law which governs the acquisition and preservation of territorial sovereignty, with its subtle
dialectic of title and effectivités.”
The Court observes that according to the relevant provisions of the Conventions on the
Law of the Sea, which reflect customary international law, a low-tide elevation is a naturally
formed area of land which is surrounded by and above water at low tide but submerged at
high tide (1958 Convention on the Territorial Sea and the Contiguous Zone, Art. 11, para. 1;
1982 Convention on the Law of the Sea, Art. 13, para. 1). When a low-tide elevation is
situated in the overlapping area of the territorial sea of two States, whether with opposite or
with adjacent coasts, both States in principle are entitled to use its low-water line for the
measuring of the breadth of their territorial sea. The same low-tide elevation then forms part of the coastal configuration of the two States. That is so even if the low-tide elevation is
nearer to the coast of one State than that of the other, or nearer to an island belonging to one
party than it is to the mainland coast of the other. For delimitation purposes the competing
rights derived by both coastal States from the relevant provisions of the law of the sea would
by necessity seem to neutralize each other. In Bahrain's view, however, it depends upon the
effectivités presented by the two coastal States which of them has a superior title to the low-
tide elevation in question and is therefore entitled to exercise the right attributed by the
relevant provisions of the law of the sea, just as in the case of islands which are situated
Chairman, Rly. Board v. Chandrima Das 110
within the limits of the breadth of the territorial sea of more than one State. In the view of the
Court the decisive question for the present case is whether a State can acquire sovereignty by
appropriation over a low-tide elevation situated within the breadth of its territorial sea when
that same low-tide elevation lies also within the breadth of the territorial sea of another State.
International treaty law is silent on the question whether low-tide elevations can be
considered to be “territory”. Nor is the Court aware of a uniform and widespread State
practice which might have given rise to a customary rule which unequivocally permits or
excludes appropriation of low-tide elevations. It is only in the context of the law of the sea
that a number of permissive rules have been established with regard to low-tide elevations
which are situated at a relatively short distance from a coast. The few existing rules do not
justify a general assumption that low-tide elevations are territory in the same sense as islands.
It has never been disputed that islands constitute terra firma, and are subject to the rules and
principles of territorial acquisition; the difference in effects which the law of the sea attributes
to islands and low-tide elevations is considerable. It is thus not established that in the absence
of other rules and legal principles, low-tide elevations can, from the viewpoint of the
acquisition of sovereignty, be fully assimilated with islands or other land territory. In this respect the Court recalls the rule that a low-tide elevation which is situated beyond the limits
of the territorial sea does not have a territorial sea of its own. A low-tide elevation, therefore,
as such does not generate the same rights as islands or other territory. The Court,
consequently, is of the view that in the present case there is no ground for recognizing the
right of Bahrain to use as a baseline the low-water line of those low-tide elevations which are
situated in the zone of overlapping claims, or for recognizing Qatar as having such a right. The Court accordingly concludes that for the purposes of drawing the equidistance line, such
low-tide elevations must be disregarded.
• Method of straight baselines
The Court further observes that the method of straight baselines, which Bahrain applied in
its reasoning and in the maps provided to the Court, is an exception to the normal rules for the
determination of baselines and may only be applied if a number of conditions are met. This
method must be applied restrictively. Such conditions are primarily that either the coastline is
deeply indented and cut into, or that there is a fringe of islands along the coast in its
immediate vicinity. The fact that a State considers itself a multiple-island State or a de facto
archipelagic State does not allow it to deviate from the normal rules for the determination of
baselines unless the relevant conditions are met. The coasts of Bahrain's main islands do not
form a deeply indented coast, nor does Bahrain claim this. It contends, however, that the maritime features off the coast of the main islands may be assimilated to a fringe of islands
which constitute a whole with the mainland. The Court does not deny that the maritime
features east of Bahrain's main islands are part of the overall geographical configuration; it
would be going too far, however, to qualify them as a fringe of islands along the coast. The
Court, therefore, concludes that Bahrain is not entitled to apply the method of straight
baselines. Thus each maritime feature has its own effect for the determination of the
baselines, on the understanding that, on the grounds set out before, the low-tide elevations
situated in the overlapping zone of territorial seas will be disregarded. It is on this basis that
the equidistance line must be drawn. The Court notes, however, that Fasht al Azm requires
Chairman, Rly. Board v. Chandrima Das 111
special mention. If this feature were to be regarded as part of the island of Sitrah, the
basepoints for the purposes of determining the equidistance line would be situated on Fasht al
Azm's eastern low-water line. If it were not to be regarded as part of the island of Sitrah,
Fasht al Azm could not provide such basepoints. As the Court has not determined whether
this feature does form part of the island of Sitrah, it has drawn two equidistance lines
reflecting each of these hypotheses.
• Special circumstances
The Court then turns to the question of whether there are special circumstances which
make it necessary to adjust the equidistance line as provisionally drawn in order to obtain an
equitable result in relation to this part of the single maritime boundary to be fixed.
With regard to the question of Fasht al Azm, the Court considers that on either of the
above-mentioned hypotheses there are special circumstances which justify choosing a
delimitation line passing between Fasht al Azm and Qit'at ash Shajarah. With regard to the
question of Qit'at Jaradah, the Court observes that it is a very small island, uninhabited and
without any vegetation. This tiny island, which - as the Court has determined - comes under
Bahraini sovereignty, is situated about midway between the main island of Bahrain and the Qatar peninsula. Consequently, if its low-water line were to be used for determining a
basepoint in the construction of the equidistance line, and this line taken as the delimitation
line, a disproportionate effect would be given to an insignificant maritime feature. The Court
thus finds that there is a special circumstance in this case warranting the choice of a
delimitation line passing immediately to the east of Qit’at Jaradah.
The Court observed earlier that, since it did not determine whether Fasht al Azm is part of
Sitrah island or a separate low-tide elevation, it is necessary to draw provisionally two
equidistance lines. If no effect is given to Qit’at Jaradah and in the event that Fasht al Azm is
considered to be part of Sitrah island, the equidistance line thus adjusted cuts through
Fasht ad Dibal leaving the greater part of it on the Qatari side. If, however, Fasht al Azm is
seen as a low–tide elevation, the adjusted equidistance line runs west of Fasht ad Dibal. In
view of the fact that under both hypotheses, Fasht ad Dibal is largely or totally on the Qatari side of the adjusted equidistance line, the Court considers it appropriate to draw the boundary
line between Qit’at Jaradah and Fasht ad Dibal. As Fasht ad Dibal thus is situated in the
territorial sea of Qatar, it falls under the sovereignty of that State.
On these considerations the Court finds that it is in a position to determine the course of
that part of the single maritime boundary which will delimit the territorial seas of the Parties.
Before doing so the Court notes, however, that it cannot fix the boundary's southern-most point, since its definitive location is dependent upon the limits of the respective maritime
zones of Saudi Arabia and of the Parties. The Court also considers it appropriate, in
accordance with common practice, to simplify what would otherwise be a very complex
delimitation line in the region of the Hawar Islands.
Taking account of all of the foregoing, the Court decides that, from the point of
intersection of the respective maritime limits of Saudi Arabia on the one hand and of Bahrain
and Qatar on the other, which cannot be fixed, the boundary will follow a north-easterly
direction, then immediately turn in an easterly direction, after which it will pass between
Chairman, Rly. Board v. Chandrima Das 112
Jazirat Hawar and Janan; it will subsequently turn to the north and pass between the
Hawar Islands and the Qatar peninsula and continue in a northerly direction, leaving the low-
tide elevation of Fasht Bu Thur, and Fasht al Azm, on the Bahraini side, and the low-tide
elevations of Qita 'a el Erge and Qit'at ash Shajarah on the Qatari side; finally it will pass
between Qit'at Jaradah and Fasht ad Dibal, leaving Qit'at Jaradah on the Bahraini side and
Fasht ad Dibal on the Qatari side.
With reference to the question of navigation, the Court notes that the channel connecting
Qatar's maritime zones situated to the south of the Hawar Islands and those situated to the
north of those islands, is narrow and shallow, and little suited to navigation. It emphasizes
that the waters lying between the Hawar Islands and the other Bahraini islands are not internal
waters of Bahrain, but the territorial sea of that State. Consequently, Qatari vessels, like those
of all other States, shall enjoy in these waters the right of innocent passage accorded by
customary international law. In the same way, Bahraini vessels, like those of all other States,
enjoy the same right of innocent passage in the territorial sea of Qatar.
• Delimitation of the continental shelf and exclusive economic zone
The Court then deals with the drawing of the single maritime boundary in that part of the delimitation area which covers both the continental shelf and the exclusive economic zone.
Referring to its earlier case-law on the drawing of a single maritime boundary the Court
observes that it will follow the same approach in the present case. For the delimitation of the
maritime zones beyond the 12-mile zone it will first provisionally draw an equidistance line
and then consider whether there are circumstances which must lead to an adjustment of that
line. The Court further notes that the equidistance/special circumstances rule, which is applicable in particular to the delimitation of the territorial sea, and the equitable
principles/relevant circumstances rule, as it has been developed since 1958 in case-law and
State practice with regard to the delimitation of the continental shelf and the exclusive
economic zone, are closely interrelated.
The Court then examines whether there are circumstances which might make it necessary
to adjust the equidistance line in order to achieve an equitable result. With regard to Bahrain's claim concerning the pearling industry, the Court first takes note of the fact that that industry
effectively ceased to exist a considerable time ago. It further observes that, from the evidence
submitted to it, it is clear that pearl diving in the Gulf area traditionally was considered as a
right which was common to the coastal population. The Court, therefore, does not consider
the existence of pearling banks, though predominantly exploited in the past by Bahraini
fishermen, as forming a circumstance which would justify an eastward shifting of the
equidistance line as requested by Bahrain.
The Court also considers that it does not need to determine the legal character of the
“decision” contained in the letters of 23 December 1947 of the British Political Agent to the
Rulers of Bahrain and Qatar with respect to the division of the sea-bed, which Qatar claims as
a special circumstance. It suffices for it to note that neither of the Parties has accepted it as a
binding decision and that they have invoked only parts of it to support their arguments.
Taking into account the fact that it has decided that Bahrain has sovereignty over the
Hawar Islands, the Court finds that the disparity in length of the coastal fronts of the Parties
Chairman, Rly. Board v. Chandrima Das 113
cannot, as Qatar claims, be considered such as to necessitate an adjustment of the
equidistance line.
The Court finally recalls that in the northern sector the coasts of the Parties are
comparable to adjacent coasts abutting on the same maritime areas extending seawards into
the Gulf. The northern coasts of the territories belonging to the Parties are not markedly
different in character or extent; both are flat and have a very gentle slope. The only noticeable
element is Fasht al Jarim as a remote projection of Bahrain’s coastline in the Gulf area,
which, if given full effect, would “distort the boundary and have disproportionate effects”. In
the view of the Court such a distortion, due to a maritime feature located well out to sea and
of which at most a minute part is above water at high tide, would not lead to an equitable
solution which would be in accord with all other relevant factors referred to above. In the
circumstances of the case considerations of equity require that Fasht al Jarim should have no
effect in determining the boundary line in the northern sector.
The Court accordingly decides that the single maritime boundary in this sector shall be
formed in the first place by a line which, from a point situated to the north-west of
Fasht ad Dibal, shall meet the equidistance line as adjusted to take account of the absence of
effect given to Fasht al Jarim. The boundary shall then follow this adjusted equidistance line
until it meets the delimitation line between the respective maritime zones of Iran on the one
hand and of Bahrain and Qatar on the other.
For these reasons,
The Court,
(1) Unanimously finds that the State of Qatar has sovereignty over Zubarah;
(2) (a) By twelve votes to five, finds that the State of Bahrain has sovereignty over the
Hawar Islands;
(b) Unanimously, recalls that vessels of the State of Qatar enjoy in the territorial sea of
Bahrain separating the Hawar Islands from the other Bahraini islands the right of innocent
passage accorded by customary international law;
(3) By thirteen votes to four, finds that the State of Qatar has sovereignty over Janan
Island, including Hadd Janan;
(4) By twelve votes to five, finds that the State of Bahrain has sovereignty over the island
of Qit'at Jaradah;
(5) Unanimously, finds that the low-tide elevation of Fasht ad Dibal falls under the
sovereignty of the State of Qatar;
(6) By thirteen votes to four, decides that the single maritime boundary that divides the various maritime zones of the State of Qatar and the State of Bahrain shall be drawn as
indicated in paragraph 250 of the present Judgment.
* * * * *
Chairman, Rly. Board v. Chandrima Das 114
UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982
PART II
TERRITORIAL SEA AND CONTIGUOUS ZONE
Article 2 : Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil
1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of
sea, described as the territorial sea.
2. This sovereignty extends to the air space over the territorial sea as well as to its bed
and subsoil.
3. The sovereignty over the territorial sea is exercised subject to this Convention and to
other rules of international law.
Article 3 : Breadth of the territorial sea
Every State has the right to establish the breadth of its territorial sea up to a limit not
exceeding 12 nautical miles, measured from baselines determined in accordance with this
Convention.
Article 4 : Outer limit of the territorial sea
The outer limit of the territorial sea is the line every point of which is at a distance from
the nearest point of the baseline equal to the breadth of the territorial sea.
Article 5 : Normal baseline
Except where otherwise provided in this Convention, the normal baseline for measuring
the breadth of the territorial sea is the low-water line along the coast as marked on large-scale
charts officially recognized by the coastal state.
Article 7 : Straight baselines
1. In localities where the coastline is deeply indented and cut into or if there is a fringe
of islands along the coast in its immediate vicinity the method of straight baselines joining
appropriate points may be employed in drawing the baseline from which the breadth of the
territorial sea is measured.
2. Where because of the presence of a delta and other natural conditions the coastline is
highly unstable, the appropriate points may be selected along the furthest seaward extent of
the low-water line and, notwithstanding subsequent regression of the low-water line, the
straight baselines shall remain effective until changed by the coastal State in accordance with
this Convention.
3. The drawing of straight baselines must not depart to any appreciable extent from the
general direction of the coast, and the sea areas lying within the lines must be sufficiently
closely linked to the land domain to be subject to the regime of internal waters.
4. Straight baselines shall not be drawn to and from low-tide elevations, unless
lighthouses or similar installations which are permanently above sea level have been built on
Chairman, Rly. Board v. Chandrima Das 115
them or except in instances where the drawing of baselines to and from such elevations has
received general international recognition.
5. Where the method of straight baselines is applicable under paragraph 1, account may
be taken, in determining particular baselines of economic interests peculiar to the region
concerned, the reality and the importance of which are clearly evidenced by long usage.
6. The system of straight baselines may not be applied by a State in such a manner as to
cut off the territorial sea of another State from the high seas or an exclusive economic zone.
Article 8 : Internal waters
1. Except as provided in Part IV, waters on the landward side of the baseline of the
territorial sea form part of the internal waters of the State.
2. Where the establishment of a straight baseline in accordance with the method set
forth in article 7 has the effect of enclosing as internal waters areas which had not previously
been considered as such, a right of innocent passage as provided in this Convention shall exist
in those waters.
Article 17 : Right of innocent passage
Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the
right of innocent passage through the territorial sea.
Article 18 : Meaning of passage
1. Passage means navigation through the territorial sea for the purpose of :
(a) traversing that sea without entering internal waters or calling at a roadstead or
port facility outside internal waters; or
(b) proceeding to or from internal waters or a call at such roadstead or port facility.
2. Passage shall be continuous and expeditious. However, passage includes stopping and
anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered
necessary by force majeure or distress or for the purpose of rendering assistance to persons,
ships or aircraft in danger or distress.
Article 19 : Meaning of innocent passage
1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and
with other rules of international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good
order or security of the coastal State if in the territorial sea it engages in any of the following
activities:
(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of
international law embodied in the Charter of the United Nations ;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence or security
of the coastal State;
Chairman, Rly. Board v. Chandrima Das 116
(d) any act of propaganda aimed at affecting the defence or security of the coastal
State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person contrary to the
customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
(h) any act of wilful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other
facilities or installations of the coastal State;
(l) any other activity not having a direct bearing on passage.
Article 20 : Submarines and other underwater vehicles
In the territorial sea, submarines and other underwater vehicles are required to navigate
on the surface and to show their flag.
Article 21 : Laws and regulations of the coastal State relating to innocent passage
1. The coastal State may adopt laws and regulations, in conformity with the provisions
of this Convention and other rules of international law, relating to innocent passage through
the territorial sea, in respect of all or any of the following :
(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other facilities or
installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws and regulations of the coastal
State;
(f) the preservation of the environment of the coastal State and the prevention,
reduction and control of pollution thereof;
(g) marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs, fiscal, immigration or sanitary
laws and regulations of the coastal State.
Article 29 : Definition of warships
For the purposes of this Convention, “warship” means a ship belonging to the armed
forces of a State bearing the external marks distinguishing such ships of its nationality, under
the command of an officer duly commissioned by the government of the State and whose
name appears in the appropriate service list or its equivalent, and manned by a crew which is
under regular armed forces discipline.
Article 30 : Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State
concerning passage through the territorial sea and disregards any request for compliance
Chairman, Rly. Board v. Chandrima Das 117
therewith which is made to it, the coastal State may require it to leave the territorial sea
immediately.
Article 31 : Responsibility of the flag state for damage caused by a warship or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the coastal
State resulting from the non-compliance by a warship or other government ship operated for
non-commercial purposes with the laws and regulations of the coastal State concerning
passage through the territorial sea or with the provisions of this Convention or other rules of
international law.
Article 32 : Immunities of warships and other government ships operated for non-
commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing
in this Convention affects the immunities of warships and other government ships operated
for non-commercial purposes.
Article 33 : Contiguous zone
1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to :
(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea;
(b) punish infringement of the above laws and regulations committed within its
territory or territorial sea;
2. The contiguous zone may not extend beyond 24 nautical miles from the baselines
from which the breadth of the territorial sea is measured.
PART V
EXCLUSIVE ECONOMIC ZONE
Article 55 : Specific legal regime of the exclusive economic zone
The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject
to the specific legal regime established in this Part, under which the rights and jurisdiction of
the coastal State and the rights and freedoms of other States are governed by the relevant
provisions of this Convention.
Article 56 : Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living, of the waters superjacent to the
sea-bed and of the sea-bad and its subsoil, and with regard to other activities for economic
exploitation and exploration of the zone, such as the production of energy from the water,
currents and winds;
Chairman, Rly. Board v. Chandrima Das 118
(b) jurisdiction as provided for in the relevant provisions of this Convention with regard
to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the
exclusive economic zone, the coastal State shall have due regard to the rights and duties of
other States and shall act in a manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the sea-bed and subsoil shall be
exercised in accordance with Part VI.
Article 57 : Breadth of the exclusive economic zone
The exclusive economic zone shall not extend beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea in measured.
Article 58 : Rights and duties of other states in the exclusive economic zone
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy,
subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of
navigation and overflight and of the laying of submarine cables and pipelines, and other
internationally lawful uses of the sea related to these freedoms, such as those associated with
the operation of ships, aircraft and submarine cables and pipelines, and compatible with the
other provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive
economic zone in so far as they are not incompatible with this Part.
3. In exercising their rights and performing their duties under this Convention in the
exclusive economic zone, States shall have due regard to the rights and duties of the coastal
State and shall comply with the laws and regulations adopted by the coastal state in
accordance with the provisions of this Convention and other rules of international law in so
far as they are not incompatible with this Part.
Article 60 : Artificial islands, installations and structures in the exclusive economic zone
1. In the exclusive economic zone, the coastal State shall have the exclusive right to
construct and to authorize and regulate the construction, operation and use of :
(a) artificial islands;
(b) installations and structures for the purposes provided for in article 56 and other
economic purposes;
(c) installations and structures which may interfere with the exercise of the rights of
the costal State in the zone.
2. The costal State shall have exclusive jurisdiction over such artificial islands,
installations and structures, including jurisdiction with regard to customs, fiscal, health, safety
and immigration laws and regulations.
Chairman, Rly. Board v. Chandrima Das 119
3. Due notice must be given of the construction of such artificial islands, installations or
structures, and permanent means for giving warning of their presence must be maintained.
Any installations or structures which are abandoned or disused shall be removed to ensure
safety of navigation, taking into account any generally accepted international standards
established in this regard by the competent international organization. Such removal shall also
have due regard to fishing, the protection of the marine environment and the rights and duties
of other States. Appropriate publicity shall be given to the depth, position and dimensions of
any installations or structures not entirely removed.
4. The costal State may, where necessary, establish reasonable safety zones around such
artificial islands, installations and structures in which it may take appropriate measures to
ensure the safety both of navigation and of the artificial islands, installations and structures.
5. The breadth of the safety zones shall be determined by the coastal State, taking into
account applicable international standards. Such zones shall be designed to ensure that they
are reasonably related to the nature and function of the artificial islands, installations or
structures, and shall not exceed a distance of 500 metres around them, measured from each
point of their outer edge, except as authorized by generally accepted international standards or
as recommended by the competent international organization. Due notice shall be given of
the extent of safety zones.
6. All ships must respect these safety zones and shall comply with generally accepted
international standards regarding navigation in the vicinity of artificial islands, installations,
structures and safety zones.
7. Artificial islands, installations and structures and the safety zones around them may
not be established where interference may be caused to the use of recognized sea lanes
essential to international navigation.
8. Artificial islands, installations and structures do not posses the status of islands. They
have no territorial sea of their own, and their presence does not affect the delimitation of the
territorial sea, the exclusive economic zone or the continental shelf.
Article 61 : Conservation of the living resources
1. The coastal State shall determine the allowable catch of the living resources in its
exclusive economic zone.
2. The coastal State, taking into account the best scientific evidence available to it, shall
ensure through proper conservation and management measures that the maintenance of the
living resources in the exclusive economic zone is not endangered by over-exploitation. As
appropriate, the coastal State and competent international organizations, whether subregional, regional or global, shall co-operate to this end.
3. Such measures shall also be designed to maintain or restore populations of harvested
species at levels which can produce the maximum sustainable yield, as qualified by relevant
environmental and economic factors, including the economic needs of coastal fishing
communities and the special requirements of developing States, and taking into account
fishing patterns, the interdependence of stocks and any generally recommended international
minimum standards, whether subregional, regional or global.
Chairman, Rly. Board v. Chandrima Das 120
4. In taking such measures the costal States shall take into consideration the effects on
species associated with or dependent upon harvested species with a view to maintain or
restoring population of such associated or dependent species above levels at which their
reproduction may become seriously threatened.
5. Available scientific information, catch and fishing effort statistics, and other data
relevant to the conservation of fish stock shall be contributed and exchanged on a regular
basis through competent international organizations, whether subregional, regional or global,
where appropriate and with participation by all States concerned, including States whose
nationals are allowed to fish in the exclusive economic zone.
Article 62 : Utilization of the living resources
1. The costal States shall, promote the objective of optimum utilization of the living
resources in the exclusive economic zone without prejudice to article 61.
2. The costal State shall determine its capacity to harvest the living resources of the
exclusive economic zone. Where the costal state does not have the capacity to harvest the
entire allowable catch, it shall, through agreements or other arrangements … give other states
excess to the surplus of the allowable catch, having particular regard to the provisions of
articles 69 and 70[Right of land-locked States and Right of geographically disadvantaged
States], especially in relation to the developing States mentioned therein.
3. In giving access to other States to its exclusive economic zone under this article, the
costal State shall take into account all relevant factors, including, inter alia, the significance of
the living resources of the area to the economy of the costal State concerned and its other
national interests, the provisions of article 69 and 70, the requirements of developing States in
the subregion or region in harvesting part of the surplus and the need to minimize economic
dislocation in States whose nationals have habitually fished in the zone or which have made
substantial efforts in research and identification of stocks.
4. Nationals of other States fishing in the exclusive economic zone shall comply with
the conservation measures and with the other terms and conditions established in the laws and
regulations of the costal State….
PART VI
CONTINENTAL SHELF
Article 76 : Definition of the continental shelf
1. The continental shelf of a coastal State comprises the sea-bed and subsoil of the
submarine areas that extend beyond its territorial sea throughout the natural prolongation of
its land territory to the outer edge of the continental margin, or to a distance of 200 nautical
miles from the baselines from which the breadth of the territorial sea is measured where the
outer edge of the continental margin does not extend up to that distance.
2. The continental shelf of a coastal State shall not extend beyond the limits provided
for in paragraphs 4 to 6.
Chairman, Rly. Board v. Chandrima Das 121
3. The continental margin comprises the submerged prolongation of the land mass of the
coastal State, and consists of the sea-bed and subsoil of the shelf, the slope and the rise. It
does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.
4. (a) For the purposes of this Convention, the coastal State shall establish the outer
edge of the continental margin wherever the margin extends beyond 200 nautical miles from
the baselines from which the breadth of the territorial sea is measured, by either :
(i) a line delineated in accordance with paragraph 7 by reference to the
outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per
cent of the shortest distance from such point to the foot of the continental slope; or
(ii) a line delineated in accordance with paragraph 7 by reference to fixed points
not more than 60 nautical miles from the foot of the continental slope.
(b) In the absence of evidence to the contrary, the foot of the continental slope
shall be determined as the point of maximum change in the gradient at its base.
5. The fixed points comprising the line of the outer limits of the continental shelf on the
sea-bed, drawn in accordance with paragraph 4 (a) (i) and (ii), either shall not exceed 350
nautical miles from the baselines from which the breadth of the territorial sea is measured or
shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting
the depth of 2,500 metres.
6. Notwithstanding the provisions of paragraph 5, submarine ridges, the outer limit of
the continental shelf shall not exceed 350 nautical miles from the baselines from which the
breadth of the territorial sea is measured. This paragraph does not apply to submarine
elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs.
7. The coastal State shall delineate the outer limits of its continental shelf, where that
shelf extends beyond 200 nautical miles from the baselines from which the breadth of the
territorial sea is measured, by straight lines not exceeding 60 nautical miles in length,
connecting fixed points, defined by co-ordinates of latitude and longitude.
8. Information on the limits of the continental shelf beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured shall be submitted by the
coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II
on the basis of equitable geographical representation. The Commission shall make
recommendations to coastal States on matters related to the establishment of the outer limits
of their continental shelf. The limits of the shelf established by a coastal State on the basis of
these recommendations shall be final and binding.
9. The coastal state shall deposit with the Secretary-General of the United Nations
charts and relevant information, including geodetic data, permanently describing the outer
limits of its continental shelf. The Secretary-General shall give due publicity thereto.
10. The provisions of this article are without prejudice to the question of delimitation of
the continental shelf between States with opposite or adjacent coasts.
Chairman, Rly. Board v. Chandrima Das 122
Article 77 : Rights of the coastal state over the continental shelf
1. The coastal State exercises over the continental shelf sovereign rights for the purpose
of exploring it and exploiting its natural resources.
2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State
does not explore the continental shelf or exploit its natural resources, no one may undertake
these activities without the express consent of the coastal State.
3. The rights of the coastal State over the continental shelf do not depend on occupation,
effective or notional, or on any express proclamation.
4. The natural resources referred to in this Part consist of the mineral and other non-
living resources of the sea-bed and subsoil together with living organisms belonging to
sedentary species, that is to say, organisms which, at the harvestable stage, either are
immobile on or under the sea-bed or are unable to move except in constant physical contact
with the sea-bed or the subsoil.
Article 78 : Legal status of the superjacent waters and air space and the rights and
freedoms of other States
1. The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the air space above those waters.
2. The exercise of the rights of the coastal state over the continental shelf must not
infringe or result in any unjustifiable interference with navigation and other rights and
freedoms of other States as provided for in this Convention.
Article 79 : Submarine cables and pipelines on the continental shelf
1. All States are entitled to lay submarine cables and pipelines on the continental shelf, in accordance with the provisions of this article.
2. Subject to its right to take reasonable measures for the exploration of the continental
shelf, the exploitation of its natural resources and the prevention, reduction and control of
pollution from pipelines, the coastal State may not impede the laying or maintenance of such
cables or pipelines.
3. The delineation of the course for the laying of such pipelines on the continental shelf
is subject to the consent of the coastal State.
4. Nothing in this Part affects the right of the coastal State to establish conditions for
cables or pipelines entering its territory or territorial sea, or its jurisdiction over cables and
pipelines constructed or used in connection with the exploration of its continental shelf or
exploitation of its resources or the operations of artificial islands, installations and structures
under its jurisdiction.
5. When laying submarine cables or pipelines, States shall have due regard to cables or
pipelines already in position. In particular, possibilities of repairing existing cables or
pipelines shall not be prejudiced.
Chairman, Rly. Board v. Chandrima Das 123
Article 80 : Artificial Islands, installations and structures on the continental shelf
Article 60 applies mutatis mutandis to artificial islands, installations and structures on the
continental shelf.
Article 81 : Drilling on the continental shelf
The coastal State shall have the exclusive right to authorize and regulate drilling on the
continental shelf for all purposes.
Article 83 : Delimitation of the continental shelf between states with opposite or adjacent
coasts
1. The delimitation of the continental shelf between States with opposite or adjacent
coasts shall be effected by agreement on the basis of international law, as referred to in
Article 38 of the Statutes of the International Court of Justice, in order to achieve an equitable
solution.
2. If no agreement can be reached within a reasonable period of time, the states
concerned shall resort to the procedures provided for in Part XV.
3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of
understanding and co-operation, shall make every effort to enter into provisional
arrangements of a practical nature and, during this transitional period, not to jeopardize or
hamper the reaching of the final agreement. Such arrangements shall be without prejudice to
the final delimitation.
4. Where there is an agreement in force between the States concerned, questions relating
to the delimitation of the continental shelf shall be determined in accordance with the
provisions of that agreement.
Article 85 : Tunnelling
This Part does not prejudice the right of the coastal State to exploit the subsoil by means
of tunnelling, irrespective of the depth of water above the subsoil.
PART VII
HIGH SEAS
Article 86 : Application of the provisions of this Part
The provisions of this Part apply to all part of the sea that are not included in the
exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the
archipelagic waters of an archipelagic State. This article does not entail any abridgement of
the freedoms enjoyed by all States in the exclusive economic zone in accordance with article
58.
Article 87 : Freedom of the high seas
1. The high seas are open to all States, whether coastal or land-locked. Freedom of the
high seas is exercised under the conditions laid down by this Convention and by other rules of
international law. It comprises, inter alia, both for coastal and land-locked states :
(a) freedom of navigation;
Chairman, Rly. Board v. Chandrima Das 124
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
Article 111 : Right of hot pursuit
1. The hot pursuit of a foreign ship may be undertaken when the competent authorities
of the coastal State have good reason to believe that the ship has violated the laws and
regulations of that State. Such pursuit must be commenced when the foreign ship or one of its
boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous
zone of the pursuing State, and may only be continued outside the territorial sea or the
contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time
when the foreign ship within the territorial sea or the contiguous zone receives the order to
stop, the ship giving the order should likewise be within the territorial sea or the contiguous
zone. If the foreign ship is within contiguous zone, as defined in article 33, the pursuit may
only be undertaken if there has been a violation of the rights for the protection of which the
zone was established.
2. The right of hot pursuit shall apply mutatis mutandis to violations in the exclusive
economic zone or on the continental shelf, including safety zones around continental shelf installations, of the laws and regulations of the coastal state applicable in accordance with this
convention to the exclusive economic zone or the continental shelf, including such safety
zones.
3. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of
its own State or of a third State.
4. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself
by such practicable means as may be available that the ship pursued or one of its boats or
other craft working as a team and using the ship pursued as a mother ship is within the limits
of the territorial sea, or as the case may be, within the contiguous zone or, the exclusive
economic zone or above the continental shelf. The pursuit may only be commenced after a
visual or auditory signal to stop has been given at a distance which enables it to be seen or
heard by the foreign ship.
5. The right of hot pursuit may be exercised only by warships or military aircraft, or
other ships or aircraft clearly marked and identifiable as being on government service and
authorized to that effect.
6. Where hot pursuit is effected by an aircraft;
(a) the provisions of paragraphs 1 to 4 shall apply mutatis mutandis;
(b) the aircraft giving the order to stop must itself actively pursue the ship until a ship or another aircraft of the coastal State, summoned by the aircraft, arrives to take over the
pursuit, unless the aircraft is itself able to arrest the ship. It does not suffice to justify an arrest
outside the territorial sea that the ship was merely sighted by the aircraft as an offender or
suspected offender, if it was not both ordered to stop and pursued by the aircraft itself or other
aircraft or ships which continue the pursuit without interruption.
7. The release of a ship arrested within the jurisdiction of a State and escorted to a port
of that State for the purposes of an inquiry before the competent authorities may not be
Chairman, Rly. Board v. Chandrima Das 125
claimed solely on the ground that the ship, in the course of its voyage, was escorted across a
portion of the exclusive economic zone or the high seas, if the circumstances rendered this
necessary.
8. Where a ship has been stopped or arrested outside the territorial sea in circumstances
which do not justify the exercise of the right of hot pursuit, it shall be compensated for any
loss or damage that may have been thereby sustained.
Article 112 : Right to lay submarine cables and pipelines
1. All states are entitled to lay submarine cables and pipelines on the bed of the high
seas beyond the continental shelf.
2. Article 79, paragraph 5, applies to such cables and pipelines.
Article 156 : Establishment of the Authority
1. There is hereby established the International Sea-Bed Authority, which shall function
in accordance with this Part.
2. All states Parties are ipso facto members of the Authority.
3. Observers at the Third United Nations Conference on the Law of the Sea who have
signed the Final Act and who are not referred to in Article 305, paragraph 1(c), (d), (e) or (f),
shall have the right to participate in the Authority as observers, in accordance with its rules,
regulations and procedures.
4. The seat of the Authority shall be in Jamaica.
5. The Authority may establish such regional centers or officers as it deems necessary
for the exercise of its functions.
Article 157 : Nature and fundamental principles of the Authority
1. The Authority is the organization through which States Parties shall, in accordance
with this Part, organize and control activities in the Area, particularly with a view to
administering the resources of the Area.
2. The powers and functions of the Authority shall be those expressly conferred upon it
by this Convention. The Authority shall have such incidental powers, consistent with this
Convention, as are implicit in and necessary for the exercise of those powers and functions with respect to activities in the Area.
3. The Authority is based on the principle of the sovereign equality of all its members.
4. All members of the Authority shall fulfil in good faith the obligations assumed by
them in accordance with this Part in order to ensure to all of them the rights and benefits
resulting form membership.
Article 158 : Organs of the Authority
1. There are hereby established, as the principal organs of the Authority, an Assembly, a
Council and a Secretariat.
2. There is hereby established the Enterprise, the organ through which the Authority
shall carry out the functions referred to in article 170, paragraph 1.
Chairman, Rly. Board v. Chandrima Das 126
3. Such subsidiary organs as may be found necessary may be established in accordance
with this Part.
4. Each principal organ of the Authority and the Enterprise shall be responsible for
exercising those powers and functions which are conferred upon it. In exercising such powers
and functions each organ shall avoid taking any action which may derogate from or impede
the exercise of specific powers and functions conferred upon another organ.
Article 170 : The Enterprise
1. The Enterprise shall be the organ of the Authority which shall carry out activities in
the Area directly, pursuant to Article 153, paragraph 2 (a), as well as the transporting,
processing and marketing of minerals recovered from the Area.
2. The Enterprise shall, within the framework of the international legal personality of
the Authority, have such legal capacity as is provided for in the Statute set forth in Annex IV.
The Enterprise shall act in accordance with this Convention and the rules, regulations and
procedures of the Authority, as well as the general policies established by the Assembly, and
shall be subject to the directives and control of the Council.
3. The Enterprise shall have its principal place of business at the seat of the Authority.
4. The Enterprise shall, in accordance with article 173, paragraph2, and Annex IV,
article 11, be provided with such funds as it may require to carry out its functions, and shall
receive technology as provided in article 144 and other relevant provisions of this
Convention.
* * * * *
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AGREEMENT RELATING TO THE IMPLEMENTATION OF
PART XI OF THE UNITED NATIONS CONVENTION ON
THE LAW OF THE SEA OF 10 DECEMBER 1982
The States Parties to this Agreement,
Recognizing the important contribution of the United Nations Convention on the Law of
the Sea of 10 December 1982 (hereinafter referred to as "the Convention") to the maintenance
of peace, justice and progress for all peoples of the world,
Reaffirming that the seabed and ocean floor and subsoil thereof, beyond the limits of
national jurisdiction (hereinafter referred to as "the Area"), as well as the resources of the Area, are the common heritage of mankind,
Mindful of the importance of the Convention for the protection and preservation of the
marine environment and of the growing concern for the global environment,
Having considered the report of the Secretary-General of the United Nations on the
results of the informal consultations among States held from 1990 to 1994 on outstanding
issues relating to Part XI and related provisions of the Convention (hereinafter referred to as
"Part XI"),
Noting the political and economic changes, including market-oriented approaches,
affecting the implementation of Part XI,
Wishing to facilitate universal participation in the Convention,
Considering that an agreement relating to the implementation of Part XI would best meet
that objective,
Have agreed as follows:
Article 1 Implementation of Part XI
1. The States Parties to this Agreement undertake to implement Part XI in accordance
with this Agreement.
2. The Annex forms an integral part of this Agreement.
Article 2
Relationship between this Agreement and Part XI
1. The provisions of this Agreement and Part XI shall be interpreted and applied together
as a single instrument. In the event of any inconsistency between this Agreement and Part XI,
the provisions of this Agreement shall prevail.
2. Articles 309 to 319 of the Convention shall apply to this Agreement as they apply to
the Convention.
Chairman, Rly. Board v. Chandrima Das 128
Article 3
Signature
This Agreement shall remain open for signature at United Nations Headquarters by the
States and entities referred to in article 305, paragraph 1(a), (c), (d), (e) and (f), of the
Convention for 12 months from the date of its adoption.
Article 4 Consent to be bound
1. After the adoption of this Agreement, any instrument of ratification or formal
confirmation of or accession to the Convention shall also represent consent to be bound by
this Agreement.
2. No State or entity may establish its consent to be bound by this Agreement unless it has
previously established or establishes at the same time its consent to be bound by the
Convention.
3. A State or entity referred to in article 3 may express its consent to be bound by this
Agreement by:
(a) Signature not subject to ratification, formal confirmation or the procedure set out
in article 5;
(b) Signature subject to ratification or formal confirmation, followed by ratification or
formal confirmation;
(c) Signature subject to the procedure set out in article 5; or
(d) Accession.
4. Formal confirmation by the entities referred to in article 305, paragraph 1(f), of the
Convention shall be in accordance with Annex IX of the Convention.
5. The instruments of ratification, formal confirmation or accession shall be deposited
with the Secretary-General of the United Nations.
Article 5
Simplified procedure
1. A State or entity which has deposited before the date of the adoption of this Agreement
an instrument of ratification or formal confirmation of or accession to the Convention and
which has signed this Agreement in accordance with article 4, paragraph 3(c), shall be
considered to have established its consent to be bound by this Agreement 12 months after the
date of its adoption, unless that State or entity notifies the depositary in writing before that
date that it is not availing itself of the simplified procedure set out in this article.
2. In the event of such notification, consent to be bound by this Agreement shall be
established in accordance with article 4, paragraph 3(b).
Article 6
Entry into force
1. This Agreement shall enter into force 30 days after the date on which 40 States have
established their consent to be bound in accordance with articles 4 and 5, provided that such
States include at least seven of the States referred to in paragraph l(a) of resolution II of the
Chairman, Rly. Board v. Chandrima Das 129
Third United Nations Conference on the Law of the Sea (hereinafter referred to as
"resolution II") and that at least five of those States are developed States. If these conditions
for entry into force are fulfilled before 16 November 1994, this Agreement shall enter into
force on 16 November 1994.
2. For each State or entity establishing its consent to be bound by this Agreement after the
requirements set out in paragraph 1 have been fulfilled, this Agreement shall enter into force
on the thirtieth day following the date of establishment of its consent to be bound.
Article 7 Provisional application
1. If on 16 November 1994 this Agreement has not entered into force, it shall be applied
provisionally pending its entry into force by:
(a) States which have consented to its adoption in the General Assembly of the
United Nations, except any such State which before 16 November 1994 notifies the
depositary in writing either that it will not so apply this Agreement or that it will consent to
such application only upon subsequent signature or notification in writing;
(b) States and entities which sign this Agreement, except any such State or entity
which notifies the depositary in writing at the time of signature that it will not so apply this
Agreement;
(c) States and entities which consent to its provisional application by so notifying the
depositary in writing;
(d) States which accede to this Agreement.
2. All such States and entities shall apply this Agreement provisionally in accordance
with their national or internal laws and regulations, with effect from 16 November 1994 or the
date of signature, notification of consent or accession, if later.
3. Provisional application shall terminate upon the date of entry into force of this
Agreement. In any event, provisional application shall terminate on 16 November 1998 if at
that date the requirement in article 6, paragraph 1, of consent to be bound by this Agreement
by at least seven of the States (of which at least five must be developed States) referred to in
paragraph 1(a) of resolution II has not been fulfilled.
Article 8 States Parties
1. For the purposes of this Agreement, "States Parties" means States which have
consented to be bound by this Agreement and for which this Agreement is in force.
2. This Agreement applies mutatis mutandis to the entities referred to in article 305,
paragraph 1(c), (d), (e) and (f), of the Convention which become Parties to this Agreement in
accordance with the conditions relevant to each, and to that extent "States Parties" refers to
those entities.
Chairman, Rly. Board v. Chandrima Das 130
Article 9
Depositary The Secretary-General of the United Nations shall be the depositary of this Agreement.
Article 10
Authentic texts The original of this Agreement, of which the Arabic, Chinese, English, French, Russian
and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the
United Nations.
IN WITNESS WHEREOF, the undersigned Plenipotentiaries, being duly authorized
thereto, have signed this Agreement.
DONE AT NEW YORK, this twenty-eighth day of July, one thousand nine hundred and
ninety-four.
Chairman, Rly. Board v. Chandrima Das 131
THE TERRITORIAL WATERS, CONTINENTAL SHELF,
EXCLUSIVE ECONOMIC ZONE AND OTHER
MARITIME ZONES ACT, 1976
An Act to provide for certain matters relating to the territorial waters, continental shelf,
exclusive economic zone and other maritime zones of India.
Be it enacted by Parliament in the Twenty-seventh Year of the Republic of India as
follows:
1. Short title and commencement
(1) This Act may be called The Territorial Waters, Continental Shelf, Exclusive
Economic Zone and Other Maritime Zones Act, 1976.
(2) Sections 5 and 7 shall come into force on such date or on such different dates as the
Central Government may, by notification in the Official Gazette, appoint; and the remaining
provisions of this Act shall come into force at once.
2. Definitions
In this Act, “limit” in relation to the territorial waters, the continental shelf, the exclusive
economic zone or any other maritime zone of India, means the limit of such water, shelf or
zone with reference to the mainland of India as well as the individual or composite group or
groups of islands constituting part of the territory of India.
3. Sovereignty over, and limits of, territorial waters
(1) The sovereignty of India extends and has always extended to the territorial waters of
India (hereinafter referred to as the territorial waters) and to the seabed and subsoil
underlying, and the air space over such waters.
(2) The limit of the territorial waters is the line every point of which is at a distance of
twelve nautical miles from the nearest point of the appropriate baseline.
(3) Notwithstanding anything contained in sub-section (2), the Central Government may,
whenever it considers necessary so to do having regard to International Law and State
practice, alter, by notification in the Official Gazette, the limit of the territorial waters.
(4) No notification shall be issued under sub-section (3) unless resolutions approving the
issue of such notification are passed by both Houses of Parliament.
4. Use of territorial waters by foreign ships
(1) Without prejudice to the provisions of any other law for the time being in force, all
foreign ships (other than warships including sub-marines and other underwater vehicles)
shall enjoy the right of innocent passage through the territorial waters.
Explanation: For the purposes of this section, passage is innocent so long as it is not
prejudicial to the peace, good order or security of India.
(2) Foreign warships including submarines and other underwater vehicles may enter or pass through the territorial waters after giving prior notice to the Central Government :
Chairman, Rly. Board v. Chandrima Das 132
Provided that submarines and other underwater vehicles shall navigate on the surface and
show their flag while passing through such waters.
(3) The Central Government may, if satisfied that it is necessary so to do in the interests
of the peace, good order or security of India or any part thereof, suspend, by notification in
the Official Gazette, whether absolutely or subject to such exceptions and modifications as
may be specified in the notification, the entry of all or any class of foreign ships into such
area of the territorial waters as may be specified in the notification.
5. Contiguous zone of India
(1) The contiguous zone of India (hereinafter referred to as the contiguous zone) is an
area beyond and adjacent to the territorial waters and the limit of the contiguous zone is the
line every point of which is at a distance of twenty-four nautical miles from the nearest point
of the baseline referred to in sub-section (2) of section 3.
(2) Notwithstanding anything contained in sub-section (1) the Central Government may,
whenever it considers necessary so to do having regard to International Law and State
practice, alter by notification in the Official Gazette, the limit of the contiguous zone.
(3) No notification shall be issued under sub-section (2) unless resolutions approving the
issue of such notification are passed by both Houses of Parliament.
(4) The Central Government may exercise such powers and take such measures in or in
relation to the contiguous zone as it may consider necessary with respect to :
(a) the security of India, and
(b) immigration, sanitation, customs and other fiscal matters.
(5) The Central Government may be notification in the Official Gazette:
(a) extend with such restrictions and modifications as it thinks fit, any enactment,
relating to any matter referred to in clause (a) or clause (b) of sub-section (4), for the time
being in force in India or any part thereof to the contiguous zone, and
(b) make such provisions as it may consider necessary in such notification for
facilitating the enforcement of such enactment;
and any enactment so extended shall have effect as if the contiguous zone is a part of the
territory of India.
6. Continental shelf
(1) The continental shelf of India (hereinafter referred to as the continental shelf)
comprises the seabed and subsoil of the submarine areas that extend beyond the limit of its
territorial waters throughout the natural prolongation of its land territory to the outer edge of
the continental margin or to a distance of two hundred nautical miles from the baseline referred to in sub-section (2) of section 3 where the outer edge of the continental margin does
not extend up to that distance.
(2) India has, and always had, full and exclusive sovereign rights in respect of its
continental shelf.
(3) Without prejudice to the generality of the provisions of sub-section (2), the Union has
in the continental shelf-
Chairman, Rly. Board v. Chandrima Das 133
(a) sovereign rights for the purposes of the exploration, exploitation,
conservation and management of all resources;
(b) exclusive rights and jurisdiction for the construction, maintenance or
operation of artificial islands, off-shore terminals, installations and other structures and
devices necessary for the exploration and exploitation of the resources of the continental shelf
or for the convenience of shipping or for any other purpose;
(c) exclusive jurisdiction to authorize, regulate and control scientific research; and
(d) exclusive jurisdiction to preserve and protect the marine environment and to
prevent and control marine pollution.
(4) No person (including a foreign Government) shall, except under, and in accordance
with, the terms of a licence or a letter of authority granted by the Central Government,
explore the continental shelf or exploit its resources or carry out any search or excavation or
conduct any research within the continental shelf or drill therein or construct, maintain or
operate any artificial island, off-shore terminal, installation or other structure or device therein
for any purpose whatsoever.
(5) The Central Government may, by notification in the Official Gazette :
(a) declare any area of the continental shelf and its superjacent waters to be a
designated area; and
(b) make such provisions as it may deem necessary with respect to-
(i) the exploration, exploitation and protection of the resources of the
continental shelf within such designated area; or
(ii) the safety and protection of artificial islands, off shore terminals, installations and other structures and devices in such designated area; or
(iii) the protection of marine environment of such designated area; or
(iv) customs and other fiscal matters in relation to such designated area.
Explanation: A notification issued under this sub-section may provide for the regulation
of entry into and passage through the designated area of foreign ships by the establishment of
fairways, sea lanes, traffic separation schemes or any other mode of ensuring freedom of navigation which is not prejudicial to the interests of India.
(6) The Central Government may, by notification in the Official Gazette-
(a) extend with such restrictions and modifications as it thinks fit, any enactment
for the time being in force in India or any part thereof to the continental shelf or any part
[including any designated area under sub-section (5) ]thereof; and
(b) make such provisions as it may consider necessary for facilitating the
enforcement of such enactment,
and any enactment so extended shall have effect as if the continental shelf or the part
[including, as the case may be, any designated area under sub-section (5)] thereof to which it
has been extended is a part of the territory of India.
(7) Without prejudice to the provisions of sub-section (2) and subject to any measures
that may be necessary for protecting the interests of India, the Central Government may not
Chairman, Rly. Board v. Chandrima Das 134
impede the laying or maintenance of submarine cables or pipelines on the continental shelf by
foreign States:
Provided that the consent of the Central Government shall be necessary for the
delineation of the course for the laying of such cable or pipelines.
7. Exclusive economic zone
(1) The exclusive economic zone of India (hereinafter referred to as the exclusive
economic zone) is an area beyond and adjacent to the territorial waters, and the limit of such
zone is two hundred nautical miles from the baseline referred to in sub-section (2) of section
3.
(2) Notwithstanding anything contained in sub-section (1) the Central Government may,
whenever it considers necessary so to do having regard to International Law and State
practice, alter, by notification in the Official Gazette, the limit of the exclusive economic
zone.
(3) No notification shall be issued under sub-section (2) unless resolutions approving the
issue of such notification are passed by both Houses of Parliament.
(4) In the exclusive economic zone, the Union has-
(a) sovereign rights for the purpose of exploration, exploitation, conservation and
management of the natural resources, both living and non-living as well as for producing
energy from tides, winds and currents;
(b) exclusive rights and jurisdiction for the construction, maintenance or operation
of artificial islands, off-shore terminals, installations and other structures and devices
necessary for the exploration and exploitation of the resources of the zone or for the convenience of shipping or for any other purpose;
(c) exclusive jurisdiction to authorize, regulate and control scientific research;
(d) exclusive jurisdiction to preserve and protect the marine environment and to
prevent and control marine pollution; and
(e) such other rights as are recognized by International Law.
(5) No person (including a foreign Government) shall, except under, and in accordance with, the terms of any agreement with the Central Government or of a licence or a letter of
authority granted by the Central Government, explore or exploit any resources of the
exclusive economic zone or carry out any search or excavation or conduct any research within
the exclusive economic zone or drill therein or construct, maintain or operate any artificial
islands, off-shore terminal, installation or other structure or device therein for any purpose
whatsoever:
Provided that nothing in this sub-section shall apply in relation to fishing by a citizen of
India.
(6) The Central Government may, by notification in the Official Gazette-
(a) declare any area of the exclusive economic zone to be a designated area; and
(b) make such provisions as it may deem necessary with respect to-
(i) the exploration, exploitation and protection of the resources of such
designated area; or
Chairman, Rly. Board v. Chandrima Das 135
(ii) other activities for the economic exploitation and exploration of such
designated area such as the production of energy from tides, winds and currents; or
(iii) the safety and protection of artificial island, off-shore terminals, installations
and other structures and devices in such designated area; or
(iv) the protection of marine environment of such designated area; or
(v) customs and other fiscal matters in relation to such designated area.
Explanation: A notification issued under this sub-section may provide for the regulation
of entry into and passage through the designated area of foreign ships by the establishment of
fairways, sea lanes, traffic separation schemes or any other mode of ensuring freedom of
navigation which is not prejudicial to the interests of India.
(7) The Central Government may, by notification in the Official Gazette-
(a) extend, with such restrictions and modifications as it thinks fit, any enactment for
the time being in force in India or any part thereof in the exclusive economic zone or any part
thereof; and
(b) make such provisions as it may consider necessary for facilitating the
enforcement of such enactment,
and any enactment so extended shall have effect as if the exclusive economic zone or the part
thereof to which it has been extended is a part of the territory of India.
(8) The provisions of sub-section (7) of section 6 shall apply in relation to the laying or
maintenance of submarine cables or pipelines on the seabed of the exclusive economic zone
as they apply in relation to the laying or maintenance of submarine cables or pipelines on the
seabed of the continental shelf.
(9) In the exclusive economic zone and the air space over the zone, ships and aircraft of
all States shall, subject to the exercise by India of its rights within the zone, enjoy freedom of
navigation and overflight.
8. Historic waters
(1) The Central Government may, by notification in the Official Gazette, specify the
limits of such waters adjacent to its land territory as are the historic waters of India.
(2) The sovereignty of India extends and has always extended to the historic waters of
India and to the seabed and subsoil underlying, and the air space over such waters.
9. Maritime boundaries between India and States having coasts opposite or adjacent to
those of India
(1) The maritime boundaries between India and any State whose coast is opposite or
adjacent to that of India in regard to their respective territorial waters, contiguous zones,
continental shelves, exclusive economic zones and other maritime zones shall be as
determined by agreement (whether entered into before or after the commencement of this
section) between India and such State and pending such agreement between India and any
such State, and unless any other provisional arrangements are agreed to between them, the
maritime boundaries between India and such State shall not extend beyond the line every
point of which is equidistant from the nearest point from which the breadth of the territorial
waters of India and of such State are measured.
Chairman, Rly. Board v. Chandrima Das 136
(2) Every agreement referred to in sub-section (1) shall, as soon as may be after it is
entered into, be published in the Official Gazette.
(3) The provisions of sub-section (1) shall have effect notwithstanding anything
contained in any other provision of this Act.
10. Publication of charts
The Central Government may cause the baseline referred to in sub-section (2) of section
3, the limits of the territorial waters, the contiguous zone, the continental shelf, the exclusive
economic zone and the historic waters of India and the maritime boundaries as settled by
agreements referred to in section 9 to be published in charts.
11. Offences
Whoever contravenes any provision of this Act or of any notification thereunder shall
(without prejudice to any other action which may be taken against such person under any
other provision of this or of any other enactment) be punishable with imprisonment which
may extend to three years, or with fine, or with both.
13. Place of trial
Any person committing an offence under this Act or any rules made thereunder or under
any of the enactments extended under this Act or under the rules made thereunder may be
tried for the offence in any place in which he may be found or in such other place as the
Central Government may by general or special order, published in the Official Gazette direct
in this behalf.
* * * * *
Chairman, Rly. Board v. Chandrima Das 137
HUMAN RIGHTS
Chairman, Rly. Board v. Chandrima Das (2000) 2 SCC 465
S. SAGHIR AHMAD, J. - 2. Mrs Chandrima Das, a practising advocate of the Calcutta
High Court, filed a petition under Article 226 of the Constitution against the Chairman,
Railway Board; General Manager, Eastern Railway; Divisional Railway Manager, Howrah
Division; Chief Commercial Manager, Eastern Railway; State of West Bengal through the
Chief Secretary; Home Secretary, Government of West Bengal; Superintendent of Police
(Railways), Howrah; Superintendent of Police, Howrah; Director General of Police, West Bengal and many other officers including the Deputy High Commissioner, Republic of
Bangladesh; claiming compensation for the victim, Smt Hanuffa Khatoon, a Bangladeshi
national who was gang-raped by many including employees of the Railways in a room at
Yatri Niwas at Howrah Station of the Eastern Railway regarding which GRPS Case No. 19 of
1998 was registered on 27-2-1998. Mrs Chandrima Das also claimed several other reliefs
including a direction to the respondents to eradicate anti-social and criminal activities at
Howrah Railway Station.
3. Respondents Railways and the Union of India have admitted that amongst the main
accused you are employees of the Railways and if the prosecution version is proved in
accordance with law, they are perpetrators of the heinous crime of gang-rape repeatedly
committed upon the hapless victim Hanuffa Khatoon. It is not in dispute that Hanuffa came
from Bangladesh. She at the relevant time was the elected representative of the Union Board.
She arrived at Howrah Railway Station on 26th February, 1998 at about 1400 hours to avail
Jodhpur Express at 2300 hours for paying a visit to Ajmer Sharif. With that intent in mind,
she arrived at Calcutta on 24th February, 1998 and stayed at a hotel at 10, Sudder Street,
Police Station Taltola and came to Howrah Station on the date and time aforementioned. She
had, however, a waitlisted ticket and so she approached a Train Ticket Examiner at the station
for confirmation of berth against her ticket. The Train Ticket Examiner asked her to wait in
the Ladies’ Waiting Room. She accordingly came to the Ladies’ Waiting Room and rested
there.
At about 1700 hours on 26th February, 1998 two unknown persons (later identified as one
Ashoke Singh, a tout who posed himself as a very influential person of the Railways and Siya
Ram Singh, a railway ticket broker having good acquaintance with some of the railway staff
of Howrah Station) approached her, took her ticket and returned the same after confirming
reservation in Coach No. S-3 (Berth No. 17) of Jodhpur Express. At about 2000 hours Siya
Ram Singh came again to her with a boy named Kashi and told her to accompany the boy to a
restaurant if she wanted to have food for the night. Accordingly at about 2100 hours she went
to a nearby eating house with Kashi and had her meal there. Soon after she had taken her
meal, she vomited and came back to the Ladies’ Waiting Room. At about 2100 hours Ashoke
Singh along with Rafi Ahmed, a Parcel Supervisor at Howrah Station came to the Ladies’
Niwas before boarding the train. She appeared to have some doubt initially but on being
certified by the lady attendants engaged on duty at the Ladies’ Waiting Room about their
Chairman, Rly. Board v. Chandrima Das 138
credentials she accompanied them to Yatri Niwas. Sita Ram Singh, a khalasi of Electric
Department of Howrah Station joined them on the way to Yatri Niwas. She was taken to
Room No. 102 on the first floor of Yatri Niwas. The room was booked in the name of Ashoke
Singh against Railway Card Pass No. 3638 since 25th February, 1998. In Room No. 102 two
other persons viz. one Lalan Singh, Parcel Clerk of Howrah Railway Station and Awdesh
Singh, Parcel Clearing Agent were waiting. Hanuffa Khatoon suspected something amiss
when Ashoke Singh forced her into the room. Awdesh Singh bolted the room from outside
and stood on guard outside the room. The remaining four persons viz. Ashoke, Lalan, Rafi
and Sita Ram took liquor inside the room and also forcibly compelled her to consume liquor.
All the four persons who were present inside the room brutally violated Hanuffa Khatoon,
who, it is said, was in a state of shock and daze. When she could recover she managed to
escape from the room of Yatri Niwas and came back to the platform where again she met Siya
Ram Singh and found him talking to Ashoke Singh. Seeing her plight Siya Ram Singh
pretended to be her saviour and also abused and slapped Ashoke Singh. Since it was well past
midnight and Jodhpur Express had already departed, Siya Ram requested Hanuffa Khatoon to
accompany him to his residence to rest for the night with his wife and children. He assured her to help entrain Poorva Express on the following morning. Thereafter Siya Ram
accompanied by Ram Samiran Sharma, a friend of Siya Ram took her to the rented flat of
Ram Samiran Sharma at 66, Pathuriaghata Street, Police Station Jorabagan, Calcutta. There
Siya Ram raped Hanuffa and when she protested and resisted violently Siya Ram and Ram
Samiran Sharma gagged her mouth and nostrils intending to kill her; as a result Hanuffa bled
profusely. On being informed by the landlord of the building following the hue and cry raised by Hanuffa Khatoon, she was rescued by Jorabagan Police.
4. It was on the basis of the above facts that the High Court had awarded a sum of Rs 10
lakhs as compensation for Smt Hanuffa Khatoon as the High Court was of the opinion that the
rape was committed at the building (Rail Yatri Niwas) belonging to the Railways and was
perpetrated by the railway employees.
5. In the present appeal, we are not concerned with the many directions issued by the
High Court. The only question argued before us was that the Railways would not be liable to
pay compensation to Smt Hanuffa Khatoon who was a foreigner and was not an Indian
national. It is also contended that commission of the offence by the person concerned would
not make the Railways or the Union of India liable to pay compensation to the victim of the
offence. It is contended that since it was the individual act of those persons, they alone would
be prosecuted and on being found guilty would be punished and may also be liable to pay fine or compensation, but having regard to the facts of this case, the Railways, or, for that matter,
the Union of India would not even be vicariously liable. It is also contended that for claiming
damages for the offence perpetrated on Smt Hanuffa Khatoon, the remedy lay in the domain
of private law and not under public law and, therefore, no compensation could have been
legally awarded by the High Court in proceedings under Article 226 of the Constitution and,
that too, at the instance of a practising advocate who, in no way, was concerned or connected
with the victim.
6. We may first dispose of the contention raised on behalf of the appellants that
proceedings under Article 226 of the Constitution could not have been legally initiated for
Chairman, Rly. Board v. Chandrima Das 139
claiming damages from the Railways for the offence of rape committed on Smt Hanuffa
Khatoon and that Smt Hanuffa Khatoon herself should have approached the court in the realm
of private law so that all the questions of fact could have been considered on the basis of the
evidence adduced by the parties to record a finding whether all the ingredients of the
commission of “tort” against the person of Smt Hanuffa Khatoon were made out, so as to be
entitled to the relief of damages. We may also consider the question of locus standi as it is
contended on behalf of the appellants that Mrs Chandrima Das, who is a practising advocate
of the High Court of Calcutta, could not have legally instituted these proceedings.
12. In the instant case, it is not a mere matter of violation of an ordinary right of a person
but the violation of fundamental rights which is involved. Smt Hanuffa Khatoon was a victim
of rape. This Court in Bodhisattwa Gautam v. Subhra Chakraborty [(1996) 1 SCC 490] has
held “rape” as an offence which is violative of the fundamental right of a person guaranteed
under Article 21 of the Constitution. The Court observed as under:
Rape is a crime not only against the person of a woman, it is a crime against the
entire society. It destroys the entire psychology of a woman and pushes her into deep
emotional crisis. Rape is, therefore, the most hated crime. It is a crime against basic
human rights and is violative of the victim’s most cherished right, namely, right to
life which includes right to live with human dignity contained in Article 21.
13. Rejecting, therefore, the contention of the learned counsel for the appellants that the
petition under public law was not maintainable, we now proceed to his next contention
relating to the locus standi of the respondent, Mrs Chandrima Das, in filing the petition.
14. The main contention of the learned counsel for the appellants is that Mrs Chandrima
Das was only a practising advocate of the Calcutta High Court and was, in no way, connected
or related to the victim, Smt Hanuffa Khatoon and, therefore, she could not have filed a
petition under Article 226 for damages or compensation being awarded to Smt Hanuffa
Khatoon on account of the rape committed on her. This contention is based on a
misconception. Learned counsel for the appellants is under the impression that the petition
filed before the Calcutta High Court was only a petition for damages or compensation for Smt Hanuffa Khatoon. As a matter of fact, the reliefs which were claimed in the petition included
the relief for compensation. But many other reliefs as, for example, relief for eradicating anti-
social and criminal activities of various kinds at Howrah Railway Station were also claimed.
The true nature of the petition, therefore, was that of a petition filed in public interest.
15. The existence of a legal right, no doubt, is the foundation for a petition under Article
226 and a bare interest, maybe of a minimum nature, may give locus standi to a person to file a writ petition, but the concept of “locus standi” has undergone a sea change, as we shall
presently notice. In Satyanarayana Sinha v. S. Lal & Co. (P) Ltd. [(1973) 2 SCC 696] it
was held that the foundation for exercising jurisdiction under Article 32 or Article 226 is
ordinarily the personal or individual right of the petitioner himself. In writs like habeas corpus
and quo warranto, the rule has been relaxed and modified.
17. In the context of public interest litigation, however, the Court in its various judgments
has given the widest amplitude and meaning to the concept of locus standi. In People’s Union
for Democratic Rights v. Union of India [(1982) 3 SCC 235], it was laid down that public
Chairman, Rly. Board v. Chandrima Das 140
interest litigation could be initiated not only by filing formal petitions in the High Court but
even by sending letters and telegrams so as to provide easy access to court. In Bangalore Medical Trust v. B.S. Muddappa [(1991) 4 SCC 54], the Court held that the restricted
meaning of aggrieved person and the narrow outlook of a specific injury has yielded in favour
of a broad and wide construction in the wake of public interest litigation. The Court further
observed that public-spirited citizens having faith in the rule of law are rendering great social
and legal service by espousing causes of public nature. They cannot be ignored or overlooked
on a technical or conservative yardstick of the rule of locus standi or the absence of personal
loss or injury. There has, thus, been a spectacular expansion of the concept of locus standi.
The concept is much wider and it takes in its stride anyone who is not a mere “busybody”.
19. It was next contended by the learned counsel appearing on behalf of the appellants
that Smt Hanuffa Khatoon was a foreign national and, therefore, no relief under public law
could be granted to her as there was no violation of the fundamental rights available under the
Constitution. It was contended that the fundamental rights in Part III of the Constitution are
available only to citizens of this country and since Smt Hanuffa Khatoon was a Bangladeshi
national, she cannot complain of the violation of fundamental rights and on that basis she
cannot be granted any relief. This argument must also fail for two reasons: first, on the ground
of domestic jurisprudence based on constitutional provisions and secondly, on the ground of
human rights jurisprudence based on the Universal Declaration of Human Rights, 1948,
which has the international recognition as the “Moral Code of Conduct” having been adopted
by the General Assembly of the United Nations.
20. We will come to the question of domestic jurisprudence a little later as we intend to
first consider the principles and objects behind the Universal Declaration of Human Rights,
1948, as adopted and proclaimed by the United Nations General Assembly Resolution of 10-
12-1948. The Preamble, inter alia, sets out as under:
“WHEREAS recognition of the INHERENT DIGNITY and of the equal and
inalienable rights of all members of the human family is the foundation of freedom,
justice and peace in the world.
WHEREAS disregard and contempt for human rights have resulted in barbarous
acts which have outraged the conscience of mankind, and the advent of a world in
which human beings shall enjoy freedom of speech and belief and freedom from fear
and want has been proclaimed as the highest aspiration of the common people.
WHEREAS it is essential to promote the development of friendly relations
between nations.
WHEREAS the people of the United Nations have in the Charter affirmed their
faith in fundamental human rights, IN THE DIGNITY AND WORTH OF THE
HUMAN PERSON AND IN THE EQUAL RIGHTS OF MEN AND WOMEN and
have determined to promote social progress and better standards of life in larger
freedom.
WHEREAS member States have pledged themselves to achieve, in cooperation
with the United Nations, the promotion of universal respect for and observance of
human rights and fundamental freedoms.
Chairman, Rly. Board v. Chandrima Das 141
WHEREAS a common understanding of these rights and freedoms is of the
greatest importance for the full realisation of this pledge.”
21. Thereafter, the Declaration sets out, inter alia, in various articles, the following:
“1. All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in a spirit of
brotherhood.
2. Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion, political
or other opinion, NATIONAL OR SOCIAL ORIGIN, PROPERTY, BIRTH OR
OTHER STATUS.
Furthermore, NO DISTINCTION SHALL BE MADE ON THE BASIS OF THE
POLITICAL, JURISDICTIONAL OR INTERNATIONAL STATUS OF THE
COUNTRY OR TERRITORY to which a person belongs, whether it be independent,
trust, non-self-governing or under any other limitation of sovereignty.
3. Everyone has the right to life, liberty and security of person.
5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
7. All are equal before the law and are entitled without any discrimination to
equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to such
discrimination.
9. No one shall be subjected to arbitrary arrest, detention or exile.”
22. Apart from the above, the General Assembly also while adopting the Declaration on
the Elimination of Violence against Women, by its resolution dated 20-12-1993, observed in
Article 1 that
“ ‘violence against women’ means any act of gender-based violence that results in, or
is likely to result in, physical, sexual or psychological harm or suffering to women,
including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life”.
In Article 2, it was specified that :
“… violence against women shall be understood to encompass, but not be limited
to:
(a) physical, sexual and psychological violence occurring in the family including
battering, sexual abuse of female children in the household, dowry-related violence,
marital rape, female genital mutilation and other traditional practices harmful to
women, non-spousal violence and violence related to exploitation;
(b) physical, sexual and psychological violence occurring within the general
community, including rape, sexual abuse, sexual harassment and intimidation at
Chairman, Rly. Board v. Chandrima Das 142
work, in educational institutions and elsewhere, trafficking in women and forced
prostitution;
(c) physical, sexual and psychological violence perpetrated or condoned by the
State, wherever it occurs.”
23. In Article 3, it was specified that:
“(W)omen are entitled to the equal enjoyment and protection of all human rights,
which would include, inter alia:
(a) the right to life,
(b) the right to equality, and
(c) the right to liberty and security of person.”
24. The International Covenants and Declarations as adopted by the United Nations have
to be respected by all signatory States and the meaning given to the above words in those
Declarations and Covenants have to be such as would help in effective implementation of
those rights. The applicability of the Universal Declaration of Human Rights and the
principles thereof may have to be read, if need be, into the domestic jurisprudence.
25. Lord Diplock in Salomon v. Commr. of Customs and Excise [(1996) 3 All ER 871] said that there is a prima facie presumption that Parliament does not intend to act in breach of
international law, including specific treaty obligations. So also, Lord Bridge in Brind v. Secy.
of State for the Home Deptt. [(1991) 1 All ER 720 (HL)] observed that it was well settled
that, in construing any provision in domestic legislation which was ambiguous in the sense
that it was capable of a meaning which either conforms to or conflicts with the International
Convention, the courts would presume that Parliament intended to legislate in conformity with the Convention and not in conflict with it.
26. The domestic application of international human rights and norms was considered by
the Judicial Colloquia (Judges and Lawyers) at Bangalore in 1988. It was later affirmed by
the Colloquia that it was the vital duty of an independent judiciary to interpret and apply
national Constitutions in the light of those principles. Further Colloquia were convened in
1994 at Zimbabwe, in 1996 at Hong Kong and in 1997 at Guyana and in all those Colloquia, the question of domestic application of international and regional human rights specially in
relation to women, was considered. The Zimbabwe Declaration 1994, inter alia, stated:
“Judges and lawyers have duty to familiarise themselves with the growing
international jurisprudence of human rights and particularly with the expanding
material on the protection and promotion of the human rights of women.”
But this situation may not really arise in our country.
27. Our Constitution guarantees all the basic and fundamental human rights set out in the
Universal Declaration of Human Rights, 1948, to its citizens and other persons. The chapter
dealing with the fundamental rights is contained in Part III of the Constitution. The purpose of
this Part is to safeguard the basic human rights from the vicissitudes of political controversy
and to place them beyond the reach of the political parties who, by virtue of their majority,
may come to form the Government at the Centre or in the State.
Chairman, Rly. Board v. Chandrima Das 143
28. The fundamental rights are available to all the “citizens” of the country but a few of
them are also available to “persons”. While Article 14, which guarantees equality before law
or the equal protection of laws within the territory of India, is applicable to “person” which
would also include the “citizen” of the country and “non-citizen”, both, Article 15 speaks
only of “citizen” and it is specifically provided therein that there shall be no discrimination
against any “citizen” on the ground only of religion, race, caste, sex, place of birth or any of
them nor shall any citizen be subjected to any disability, liability, restriction or condition with
regard to access to shops, public restaurants, hotels and places of public entertainment, or the
use of wells, tanks, bathing ghats, roads and places of public resort on the aforesaid grounds.
Fundamental right guaranteed under Article 15 is, therefore, restricted to “citizens”. So also,
Article 16 which guarantees equality of opportunity in matters of public employment is
applicable only to “citizens”. The fundamental rights contained in Article 19, which contains
the right to “basic freedoms”, namely, freedom of speech and expression; freedom to
assemble peaceably and without arms; freedom to form associations or unions; freedom to
move freely throughout the territory of India; freedom to reside and settle in any part of the
territory of India and freedom to practise any profession, or to carry on any occupation, trade or business, are available only to “citizens” of the country.
31. Article 20 guarantees right to protection in respect of conviction for offences. Article
21 guarantees right to life and personal liberty while Article 22 guarantees right to protection
against arbitrary arrest and detention. These are wholly in consonance with Article 3, Article
7 and Article 9 of the Universal Declaration of Human Rights, 1948.
32. The word “LIFE” has also been used prominently in the Universal Declaration of
Human Rights, 1948. (See Article 3 quoted above.) The fundamental rights under the
Constitution are almost in consonance with the rights contained in the Universal Declaration
of Human Rights as also the Declaration and the Covenants of Civil and Political Rights and
the Covenants of Economic, Social and Cultural Rights, to which India is a party having
ratified them, as set out by this Court in Kubic Darusz v. Union of India [(1990) 1 SCC 568].
That being so, since “LIFE” is also recognised as a basic human right in the Universal
Declaration of Human Rights, 1948, it has to have the same meaning and interpretation as has
been placed on that word by this Court in its various decisions relating to Article 21 of the
Constitution. The meaning of the word “life” cannot be narrowed down. According to the
tenor of the language used in Article 21, it will be available not only to every citizen of this
country, but also to a “person” who may not be a citizen of the country.
33. Let us now consider the meaning of the word “LIFE” interpreted by this Court from
time to time. In Kharak Singh v. State of U.P. [AIR 1963 SC 1295], it was held that the term
“life” indicates something more than mere animal existence. The inhibitions contained in
Article 21 against its deprivation extend even to those faculties by which life is enjoyed. In
Bandhua Mukti Morcha v. Union of India [(1984) 3 SCC 161], it was held that the right to
life under Article 21 means the right to live with dignity, free from exploitation.
34. On this principle, even those who are not citizens of this country and come here
merely as tourists or in any other capacity will be entitled to the protection of their lives in
accordance with the constitutional provisions. They also have a right to “life” in this country.
Thus, they also have the right to live, so long as they are here, with human dignity. Just as the
Chairman, Rly. Board v. Chandrima Das 144
State is under an obligation to protect the life of every citizen in this country, so also the State
is under an obligation to protect the life of the persons who are not citizens.
35. The rights guaranteed under Part III of the Constitution are not absolute in terms.
They are subject to reasonable restrictions and, therefore, in case of a non-citizen also, those
rights will be available subject to such restrictions as may be imposed in the interest of the
security of the State or other important considerations. Interest of the nation and security of
the State is supreme. Since 1948 when the Universal Declaration was adopted till this day,
there have been many changes - political, social and economic while terrorism has disturbed
the global scenario. Primacy of the interest of the nation and the security of the State will
have to be read into the Universal Declaration as also in every article dealing with
fundamental rights, including Article 21 of the Indian Constitution.
36. This Court in Bodhisattwa case [(1996) 1 SCC 490] has already held that “rape”
amounts to violation of the fundamental right guaranteed to a woman under Article 21 of the
Constitution.
37. Now, Smt Hanuffa Khatoon, who was not the citizen of this country but came here as
a citizen of Bangladesh was, nevertheless, entitled to all the constitutional rights available to a citizen so far as “right to life” was concerned. She was entitled to be treated with dignity and
was also entitled to the protection of her person as guaranteed under Article 21 of the
Constitution. As a national of another country, she could not be subjected to a treatment
which was below dignity nor could she be subjected to physical violence at the hands of
government employees who outraged her modesty. The right available to her under Article 21
was thus violated. Consequently, the State was under a constitutional liability to pay compensation to her. The judgment passed by the Calcutta High Court, therefore, allowing
compensation to her for having been gang-raped, cannot be said to suffer from any infirmity.
38. Learned counsel for the appellants then contended that the Central Government
cannot be held vicariously liable for the offence of rape committed by the employees of the
Railways. It was contended that the liability under the law of torts would arise only when the
act complained of was performed in the course of official duty and since rape cannot be said to be an official act, the Central Government would not be liable even under the law of torts.
The argument is wholly bad and is contrary to the law settled by this Court on the question of
vicarious liability in its various decisions.
42. Running of the Railways is a commercial activity. Establishing the Yatri Niwas at
various railway stations to provide lodging and boarding facilities to passengers on payment
of charges is a part of the commercial activity of the Union of India and this activity cannot be equated with the exercise of sovereign power. The employees of the Union of India who
are deputed to run the Railways and to manage the establishment, including the railway
stations and the Yatri Niwas, are essential components of the government machinery which
carries on the commercial activity. If any of such employees commits an act of tort, the Union
Government, of which they are the employees, can, subject to other legal requirements being
satisfied, be held vicariously liable in damages to the person wronged by those employees.
Kasturi Lal decision [AIR 1965 SC 1039] therefore, cannot be pressed into aid. Moreover, we
are dealing with this case under the public law domain and not in a suit instituted under the
Chairman, Rly. Board v. Chandrima Das 145
private law domain against persons who, utilising their official position, got a room in the
Yatri Niwas booked in their own name where the act complained of was committed.
43. The appeal having no merit is dismissed with the observation that the amount of
compensation shall be made over to the High Commissioner for Bangladesh in India for
payment to the victim, Smt Hanuffa Khatoon.
T H E E N D