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Contribution of the International Court of Justice to the development of the international law of the sea

Contribution de la Cour internationale de Justice au développement du droit international de la mer

Beitrag des Internationalen Gerichtshofs zur Entwicklung des internationalen Seerechts

Aegean Review of the Law of the Sea and Maritime Law

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Notes

  1. P.C.I.J. Series A, 1923, No. 1, p. 28.

  2. Corfu Channel Case (Merits), Judgment, I.C.J. Reports 1949, p. 28.

  3. Article 37 UNCLOS establishes the right of transit passage, which is broader than the right of innocent passage, on straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. The regime of innocent passage still applies to straits excluded from the application of the regime of transit passage or straits between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State (Article 45).

  4. Paragraph 2 of the same provision specifies the type of activities that are considered to be prejudicial to the peace, good order or security of the coastal State.

  5. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, I.C.J. Reports 1986, p. 111, para. 213.

  6. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, I.C.J. Reports 2001, p. 117, para. 152 (2) (b).

  7. Fisheries case (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 132.

  8. I.C.J. Reports 1951, p. 129.

  9. I.C.J. Reports 1951, p. 133.

  10. Article 7, paragraph 5, UNCLOS; see also Article 4, paragraph 4, of the Territorial Sea Convention.

  11. North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 22, para. 19; p. 51, para. 96.

  12. I.C.J. Reports 1969, p. 39.

  13. I.C.J. Reports 1969, p. 53, para. 101.

  14. I.C.J. Reports 1969, p. 49–50, paras. 88–92.

  15. Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 59, para. 70: “The result of the application of equitable principles must be equitable … The principles to be indicated by the Court have to be selected according to their appropriateness for reaching an equitable result.”

  16. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, I.C.J. Reports 1984, p. 300, para. 112.

  17. Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports1985, paras. 26–35, see particularly p. 33, para. 34:

    “… This is not to suggest that the idea of natural prolongation is now superseded by that of distance. What it does mean is that where the continental margin does not extend as far as 200 miles from the shore, natural prolongation, which in spite of its physical origins has throughout its history become more and more a complex and juridical concept, is in part defined by distance from the shore, irrespective of the physical nature of the intervening sea-bed and subsoil. The concepts of natural prolongation and distance are therefore not opposed but complementary; and both remain essential elements in the juridical concept of the continental shelf …”.

  18. Article 15 provides that the equidistance method should be used unless historic title or “special circumstances” apply.

  19. Article 5 reads as follows:

    “Each State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag.

    There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.”

  20. Corfu Channel Case (Merits), Judgment, I.C.J. Reports 1949, p. 22.

  21. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, para. 29.

  22. Article 194, paragraph 2, reads as follows: “States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.”

  23. Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 41, para. 53.

  24. I.C.J. Reports 1997, p. 78, para. 140.

Acknowledgments

The author wishes to thank Ms. Franziska Isliker for her invaluable research assistance and input in the preparation of this article.

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Correspondence to Bernardo Sepúlveda-Amor.

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This article is the extended version of a speech held by the author at the Rhodes Academy of Oceans Law and Policy in July 2009.

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Sepúlveda-Amor, B. Contribution of the International Court of Justice to the development of the international law of the sea. Aegean Rev Law Sea 1, 5–18 (2010). https://doi.org/10.1007/s12180-009-0004-4

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