Paquete Habana Case

These are 2 appeals from decrees of the District

Court of the United States for the Southern District of
Florida condemning two fishing vessels and their
cargoes as prize of war.
Each vessel was a fishing smack, running in and out
of Havana, and regularly engaged in fishing on the
coast of Cuba; sailed under the Spanish flag; was
owned by a Spanish subject of Cuban birth, living in
the City of Havana; was commanded by a subject of
Spain, also residing in Havana, and her master and
crew had no interest in the vessel, but were entitled
to shares, amounting in all to two-thirds, of her catch,
the other third belonging to her owner. Her cargo
consisted of fresh fish, caught by her crew from the
sea, put on board as they were caught, and kept and
sold alive. Until stopped by the blockading squadron,
she had no knowledge of the existence of the war or
of any blockade. She had no arms or ammunition on
board, and made no attempt to run the blockade
after she knew of its existence, nor any resistance at
the time of the capture.
The Paquete Habana was a sloop, 43 feet long on the
keel, and of 25 tons burden, and had a crew of three
Cubans, including the master, who had a fishing
license from the Spanish government, and no other
commission or license. She left Havana March 25,
1898, sailed along the coast of Cuba to Cape San
Antonio at the western end of the island, and there
fished for twenty-five days, lying between the reefs
off the cape, within the territorial waters of Spain,
and then started back for Havana, with a cargo of
about 40 quintals of live fish. On April 25, 1898,
about two miles off Mariel, and eleven miles from
Havana, she was captured by the United States
gunboat Castine.
The Lola was a schooner, 51 feet long on the keel,
and of 35 tons burden, and had a crew of six Cubans,
including the master, and no commission or license.
She left Havana April 11, 1898, and proceeded to
Campeachy Sound, off Yucatan, fished there eight
days, and started back for Havana with a cargo of
about 10,000 pounds of live fish. On April 26, 1898,
near Havana, she was stopped by the United States
steamship Cincinnati, and was warned not to go into
Havana, but was told that she would be allowed to
land at Bahia Honda. She then changed her course,
and put for Bahia Honda, but on the next morning,
when near that port, was captured by the United
States steamship Dolphin.
Both the fishing vessels were brought by their
captors into Key West. A libel for the condemnation of
each vessel and her cargo as prize of war was there
filed on April 27, 1898; a claim was interposed by her
master on behalf of himself and the other members
of the crew, and of her owner; evidence was taken,
showing the facts above stated, and on May 30,
1898, a final decree of condemnation and sale was
entered,
"the court not being satisfied that as a matter of law,
without any ordinance, treaty, or proclamation,
fishing vessels of this class are exempt from seizure."
Each vessel was thereupon sold by auction;
the Paquete Habana for the sum of $490 and
the Lola for the sum of $800. There was no other
evidence in the record of the value of either vessel or
of her cargo.

Issue:
WON the fishing smacks were subject to capture by
the armed vessels of the United States during the
recent war with Spain.
Ruling:
No. By an ancient usage among civilized nations,
beginning centuries ago, and gradually ripening into
a rule of international law, coast fishing vessels,
pursuing their vocation of catching and bringing in
fresh fish, have been recognized as exempt, with
their cargoes and crews, from capture as prize of war.
(The case then discussed instances throughout
history where fishing vessels were captured.)
It will be convenient to refer to some leading French
treatises on international law as determined by the
general consent of civilized nations.
'Enemy ships,' say Pistoye and Duverdy, in their
Treatise on Maritime Prizes, published in 1855, 'are
good prize. Not all, however; for it results from the
unanimous accord of the maritime powers that an
exception should be made in favor of coast
fishermen. Such fishermen are respected by the
enemy so long as they devote themselves exclusively
to fishing.'
De Cussy, in his work on the Phases and Leading
Cases of the Maritime Law of Nations, affirms in the
clearest language the exemption from capture of
fishing boats, saying, that 'in time of war the freedom
of fishing is respected by belligerents; fishing boats
are considered as neutral; in law, as in principle, they
are not subject either to capture or to confiscation.
Ortolan, in the fourth edition of his Regles
Internationales et Diplomatie de la Mer, after stating
the general rule that the vessels and cargoes of
subjects of the enemy are lawful prize, says:
'Nevertheless, custom admits an exception in favor
of boats engaged in the coast fishery; these boats, as
well as their crews, are free from capture and exempt
from all hostilities. The coast-fishing industry is, in
truth, wholly pacific, and of much less importance in
regard to the national wealth that it may produce
than maritime commerce or the great fisheries.
Peaceful and wholly inoffensive, those who carry it
on, may be called the harvesters of the territorial
seas, since they confine themselves to gathering in
the products thereof; they are for the most part poor
families who seek in this calling hardly more than the
means of gaining their livelihood.' Again, after
observing that there are very few solemn public
treaties which make mention of the immunity of
fishing boats in time of war, he says: 'From another
point of view the custom which sanctions this
immunity is not so general that it can be considered
as making an absolute international rule; but it has
been so often put in practice, and, besides, it accords
so well with the rule in use in wars on land, in regard
to peasants and husbandmen, to whom coast
fishermen may be likened, that it will doubtless
continue to be followed in maritime wars to come. (A
lot of opinions of other writers were also included
which will not be mentioned in this digest)
This review of the precedents and authorities on the
subject appears to us abundantly to demonstrate
that at the present day, by the general consent of the
civilized nations of the world, and independently of
any express treaty or other public act, it is an
established rule of international law, founded on
considerations of humanity to a poor and industrious

order of men, and of the mutual convenience of

belligerent states, that coast fishing vessels, with
their implements and supplies, cargoes and crews,
unarmed and honestly pursuing their peaceful calling
of catching and bringing in fresh fish, are exempt
from capture as prize of war.
The exemption, of course, does not apply to coast
fishermen or their vessels if employed for a warlike
purpose, or in such a way as to give aid or
information to the enemy; nor when military or naval
operations create a necessity to which all private
interests must give way.
Nor has the exemption been extended to ships or
vessels employed on the high sea in taking whales or
seals or cod or other fish which are not brought fresh
to market, but are salted or otherwise cured and
made a regular article of commerce.
This rule of international law is one which prize courts
administering the law of nations are bound to take
judicial notice of, and to give effect to, in the absence
of any treaty or other public act of their own
government in relation to the matter.
By the practice of all civilized nations, vessels
employed only for the purposes of discovery or
science are considered as exempt from the
contingencies of war, and therefore not subject to
capture. It has been usual for the government
sending out such an expedition to give notice to
other powers; but it is not essential.
To this subject in more than one aspect are singularly
applicable the words uttered by Mr. Justice Strong,
speaking for this court: 'Undoubtedly no single nation
can change the law of the sea. The law is of universal
obligation and no statute of one or two nations can
create obligations for the world. Like all the laws of
nations, it rests upon the common consent of
civilized communities. It is of force, not because it
was prescribed by any superior power, but because it
has been generally accepted as a rule of conduct.
Whatever may have been its origin, whether in the
usages of navigation, or in the ordinances of
maritime states, or in both, it has become the law of
the sea only by the concurrent sanction of those
nations who may be said to constitute the
commercial world. Many of the usages which prevail,
and which have the force of law, doubtless originated
in the positive prescriptions of some single state,
which were at first of limited effect, but which, when
generally accepted, became of universal obligation.'
In the case, each vessel was of a moderate size, such
as is not unusual in coast fishing smacks, and was
regularly engaged in fishing on the coast of Cuba.
The crew of each were few in number, had no
interest in the vessel, and received, in return for their
toil and enterprise, two thirds of her catch, the other
third going to her owner by way of compensation for
her use. Each vessel went out from Havana to her
fishing ground, and was captured when returning
along the coast of Cuba. The cargo of each consisted
of fresh fish, caught by her crew from the sea, and
kept alive on board. Although one of the vessels
extended her fishing trip, we cannot doubt that each
was engaged in the coast fishery, and not in a
commercial
adventure,
within
the
rule
of
international law.
The case was adjudged that the capture was unlawful
and without probable cause ordered that the
proceeds of the sale of the vessel, together with the

proceeds of any sale of her cargo, be restored to the

claimant, with damages and costs.
District court order reversed, and the proceeds of the
sale of thevessels and its cargo, be restored to
claimant, along with damages and costs.
NORTH SEA CONTINENTAL SHELF CASES
Parties: District court order reversed, and the
proceeds of the sale of thevessels and its cargo, be
restored to claimant, along with damages and costs.
Issues: District court order reversed, and the
proceeds of the sale of thevessels and its cargo, be
restored to claimant, along with damages and costs.
February 20, 1969
FACTS:
On December 1, 1964, the Federal Republic of
Germany and the Netherlands concluded an
agreement for the partial delimitation of the
boundary near the coast. On June 9, 1965, the
Federal Republic of Germany and Denmark
concluded a similar agreement.
The 3 states failed to reach an agreement on the
boundaries beyond the limits of partial delimitations.
Denmark and the Netherlands both contended that
the boundaries should be determined in accordance
with the principle of equidistance. The delimitation of
the boundaries near the coast had been made the
basis of this principle, but the Federal Republic of
Germany considered that prolongation of these
boundaries would result in an inequitable delimitation
for the Federal Republic of Germany.
On March 31, 1966, Denmark and the Netherlands
concluded an agreement on the delimitation of the
boundary between the other parts of their
continental shelves on the basis of the principle of
equidistance. This delimitation assumed that the
areas claimed by the Netherlands and Denmark were
coterminous and that the agreed boundaries
between the Federal Republic of Germany and
Denmark, and the Federal Republic of Germany and
Netherlands, were necessarily delimited on the basis
of the principle of equidistance.
Netherlands and Denmark had drawn partial
boundary lines based on the equidistance principle
(A-B and C-D). An agreement on further prolongation
of the boundary proved difficult because Denmark
and Netherlands wished this prolongation to take
place based on the equidistance principle (B-E and DE) where as Germany was of the view that, together,
these two boundaries would produce an inequitable
result for her. Germany stated that due to its
concave coastline, such a line would result in her
loosing out on her share of the continental shelf
based on proportionality to the length of its North
Sea coastline. The Court had to decide the principles
and rules of international law applicable to this
delimitation. In doing so, the court had to decide if
the principles espoused by the parties were binding
on the parties either through treaty law or customary
international law.

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 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 bc
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.

Issue:
WON in delimiting those areas the Federal Republic
was under a legal obligation to accept the application
of the equidistance principle.
WON through positive law processes the equidistance
principle must now be regarded as a rule of
customary international law.
Ruling:
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.
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. Consequently, 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.
Kuroda v. Jalandoni
GR L-2662
March 26, 1949
Shigenori Kuroda, formerly a Lieutenant-General of
the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in The
Philippines during a period covering 19433 and
19444 who is now charged before a military
Commission convened by the Chief of Staff of the
Armed forces of the Philippines with having
unlawfully disregarded and failed "to discharge his
duties as such command, permitting them to commit
brutal atrocities and other high crimes against
noncombatant civilians and prisoners of the Imperial
Japanese Forces in violation of the laws and customs
of war" comes before this Court seeking to
establish the illegality of Executive Order No. 68 of
the President of the Philippines: to enjoin and prohibit
respondents Melville S. Hussey and Robert Port from
participating in the prosecution of petitioner's case
before the Military Commission and to permanently
prohibit respondents from proceeding with the case
of petitioners.
First. "That Executive Order No. 68 is illegal on the
ground that it violates not only the provision of our
constitutional law but also our local laws to say
nothing of the fact (that) the Philippines is not a
signatory nor an adherent to the Hague Convention
on Rules and Regulations covering Land Warfare and
therefore petitioners is charged of 'crimes' not based
on law, national and international." Hence petitioner
argues "That in view off the fact that this
commission has been empanelled by virtue of an
unconstitutional law an illegal order this commission
is without jurisdiction to try herein petitioner."
Second. That the participation in the prosecution
of the case against petitioner before the Commission
in behalf of the United State of America of attorneys
Melville Hussey and Robert Port who are not
attorneys authorized by the Supreme Court to
practice law in the Philippines is a diminution of our
personality as an independent state and their
appointment as prosecutor are a violation of our

Constitution for the reason that they are not qualified

to practice law in the Philippines.
Third. That Attorneys Hussey and Port have no
personality as prosecution the United State not being
a party in interest in the case.
ISSUE:
WON EO 68 is constitutional thus the military tribunal
jurisdiction is valid.
RULING:
YES. In accordance with the generally accepted
principle of international law of the present day
including the Hague Convention the Geneva
Convention
and
significant
precedents
of
international jurisprudence established by the United
Nation all those person military or civilian who have
been guilty of planning preparing or waging a war of
aggression and of the commission of crimes and
offenses consequential and incidental thereto in
violation of the laws and customs of war, of humanity
and civilization are held accountable therefor.
Consequently in the promulgation and enforcement
of Execution Order No. 68 the President of the
Philippines has acted in conformity with the generally
accepted and policies of international law which are
part of the our Constitution. Petitioner argues that
respondent Military Commission has no Jurisdiction to
try petitioner for acts committed in violation of the
Hague Convention and the Geneva Convention
because the Philippines is not a signatory to the first
and signed the second only in 1947. It cannot be
denied that the rules and regulation of the Hague
and Geneva conventions form, part of and are wholly
based on the generally accepted principals of
international law. In facts these rules and principles
were accepted by the two belligerent nation the
United State and Japan who were signatories to the
two Convention, Such rule and principles therefore
form part of the law of our nation even if the
Philippines was not a signatory to the conventions
embodying them for our Constitution has been
deliberately general and extensive in its scope and is
not confined to the recognition of rule and principle
of international law as continued inn treaties to which
our government may have been or shall be a
signatory.
YAMASHITA v. STYER
G.R. No. L-129 December 19, 1945
FACTS:
Tomoyuki Yamashita, erstwhile commanding general
of the 14th army group of the Japanese Imperial
Army in the Philippines, and now charged before an
American Military Commission with the most
monstrous crimes ever committed against the

American and Filipino peoples, comes to this Court

with a petition for habeas corpus and prohibition
against Lt. Gen. Wilhelm D. Styer, Commanding
General of the United States Army Forces, Western
Pacific. It is alleged therein that petitioner after his
surrender became a prisoner of war of the United
States of America but was later removed from such
status and placed in confinement as an accused war
criminal charged before an American Military
Commission constituted by respondent Lieutenant
General Styer; and he now asks that he be reinstated
to his former status as prisoner of war, and that the
Military Commission be prohibited from further trying
him, upon the following grounds:
(1) That the Military Commission was not duly
constituted, and, therefore, it is without jurisdiction;
(2) That the Philippines cannot be considered as an
occupied territory, and the Military Commission
cannot exercise jurisdiction therein;
(3) That Spain, the "protecting power" of Japan, has
not been given notice of the implementing trial
against petitioner, contrary to the provisions of the
Geneva Convention of July 27, 1892, and therefore,
the Military Commission has no jurisdiction to try the
petitioner;
(4) That there is against the petitioner no charge of
an offense against the laws of war; and
(5) That the rules of procedure and evidence under
which the Military Commission purports to be acting
denied the petitioner a fair trial.
ISSUE:
WON the military tribunal have jurisdiction over the
case
RULING:
YES. the power to create a Military Commission for
the trial and punishment of war criminals is an aspect
of waging war. And, in the language of a writer, a
Military Commission "has jurisdiction so long as a
technical state of war continues. This includes the
period of an armistice, or military occupation, up to
the effective date of a treaty agreement." The
Military Commission thus duly constituted has
jurisdiction both over the person of the petitioner and
over the offenses with which he is charged. It has
jurisdiction over the person of the petitioner by
reason of his having fallen into the hands of the
United States Army Forces. Under paragraph 347 of
the Rules of the Land Warfare, "the commanders

ordering the commission of such acts, or under

whose authority they are committed by their troops,
may be punished by the belligerent into whose hands
they may fall."
Petitioner is charged before the Military Commission
sitting at Manila with having permitted members of
his command "to commit brutal atrocities and other
high crimes against the people of the United States
and of its allies and dependencies, particularly the
Philippines," crimes and atrocities which in the bills of
particulars, are described as massacre and
extermination of thousand and thousands of
unarmed noncombatant civilians by cruel and brutal
means, including bayoneting of children and raping
of young girls, as well as devastation and destruction
of public, or private, and religious property for no
other motive than pillage and hatred. These are
offenses against the laws of the war as described in
paragraph 347 of the Rules of Land Warfare.
It is maintained, however, that, according to the
Regulations Governing the Trial of War Criminals in
the Pacific. "the Military Commission . . . shall have
jurisdiction over all of Japan and other areas occupied
by the armed forces commanded by the Commander
in Chief, United States Army Forces, Pacific"
(emphasis supplied), and the Philippines is not an
occupied territory. The American Forces have
occupied the Philippines for the purpose of liberating
the Filipino people from the shackles of Japanese
tyranny, and the creation of a Military Commission
for the trial and punishment of Japanese war
criminals is an incident of such war of liberation.
It is maintained that Spain, the "protecting power" of
Japan, has not been given notice before trial was
begun against petitioner, contrary to the provisions
of the Geneva Convention of July 27, 1929. But there
is nothing in that Convention showing that notice is a
prerequisite
to
the
jurisdiction
of
Military
Commissions appointed by victorious belligerent.
Upon the other hand, the unconditional surrender of
Japan and her acceptance of the terms of the
Potsdam Ultimatum are a clear waiver of such a
notice. It may be stated, furthermore, that Spain has
severed her diplomatic relation of Japan because of
atrocities committed by the Japanese troops against
Spaniards in the Philippines. Apparently, therefore,
Spain has ceased to be the protecting power of
Japan.
Kookooritchkin v. Solicitor General (G.R. No. L1812 August 27, 1948)
Eremes
Kookooritchkin
applies
for
Philippine
citizenship naturalization under the provisions of
Commonwealth Act 473, as amended by Act 535.

The records shows that in August, 1941, he filed his

petition for naturalization supported by the affidavits
of ex-Judge Jaime M. Reyes and Dr. Salvador Mariano,
both residents of Camarines Sur. In the preceding
year, in July, 1940 to be precise, he filed his
declaration of intention to become a citizen of this
country. Notice of the hearing was published as
required by law.
It was established at the hearing that the petitioner is
a native-born Russian, having first seen the light of
day on November 4, 1897 in the old City of St.
Petersburg, Russia. He grew up as a citizen of the
defunct Imperial Russian Government under the
Czars. World War I found him in the military service of
this Government. In 1915 he volunteered for the
Imperial Russian navy and was sent to the Navy
Aviation School. He fought with the Allies in the Baltic
Sea, was later transferred to the eastern front in
Poland, and much later was sent as a navy flier to
Asia Minor. In the latter part of the war, but before
the Russian capitulation, he was transferred to the
British Air Force under which he served for fourteen
months. When the revolution broke out in Russia in
1917, he joined the White Russian Army at
Vladivostok and fought against the Bolsheviks until
1922 when the White Russian Army was
overwhelmed by the Bolsheviks. As he refused to join
the Bolshevik regime, he fled by sea from Vladivostok
to Shanghai and from this Chinese port he found his
way to Manila, arriving at this port as a member of a
group of White Russians under Admiral Stark in
March, 1923. He stayed in Manila for about seven
months, then moved to Olongapo, Zambales, where
he resided for about a year, and from this place he
went to Iriga, Camarines Sur, where he established
his permanent residence since May, 1925. He has
remained a resident of this municipality, except for a
brief period from 1942 to July, 1945, when by reason
of his underground activities he roamed mountains of
Caramoan as a guerrilla officer. After liberation he
returned to Iriga where again he resides up to the
present time.
The applicant is married to a Filipino by the name of
Concepcion Segovia, with whom he has one son
named Ronald Kookooritchkin. He is at present
studying in Saint Agnes Academy, at Legaspi, Albay,
a school duly recognized by the Government.
The applicant is shop superintendent of A. L. Ammen
Transportation Company, with about eighty Filipino
employees working under him. He receives an annual
salary of P13,200 with free quarters and house
allowance. He also owns stocks and bonds of this and
other companies.
The applicant speaks and writes English and the Bicol
dialect. Socially he intermingles with the Filipinos,

attending parties, dances and other social functions

with his wife. He has a good moral character and
believes in the principles underlying the Philippine
Constitution. He has never been accused of any
crime. On the other hand, he has always conducted
himself in a proper and irreproachable manner during
his entire period of residence in Camarines Sur, in his
relations with the constituted authorities as well as
with the community.
Although he could have lived in ease by maintaining
good relations with the enemy by reason of his being
Russian-born during the years preceding the
declaration of war by Russia against Japan, the
applicant of his own volition chose to cast his lot with
the guerrilla movement and fought the enemy in
several encounters in the Province of Camarines Sur.
He belonged to the guerrilla outfit of Colonel Padua
with rank of major. Upon the arrival of the forces of
liberation he was attached to the American Army
from April to June, 1945.
Although a Russian by birth he is not a citizen of
Soviet Russia. He disclaims allegiance to the present
Communist Government of Russia. He is, therefore, a
stateless refugee in this country, belonging to no
State, much less to the present Government of the
land of his birth to which he is uncompromisingly
opposed. He is not against organized government or
affiliated with any association which upholds and
teaches
doctrine
opposing
all
organized
governments. He does not believe in the necessity or
propriety
of
violence,
personal
assault
or
assassination for the success or predominance of his
ideas. Neither is he a polygamist or a believer in the
practice of polygamy. He is not suffering from any
mental alienation or incurable contagious disease.
ISSUES:
WON (1) appellee-petitioners declaration of intention
to become a Filipino citizen was validan d suffi cien t
b asis fo r h is petition for na tu ra liza tio n, (2 )
a ppellee-p etitio ner
su ffi c iently e s t a b l i s h e d l e g a l r e s i d e n c e i n
the
Philippines and could speak and write a
n y o f t h e principal Philippine languages, and (3)
appellee-petitioner was stateless refugee.
RULING:
1.

YES. section 5 of the Revised Naturalization

Law:No declaration shall be valid until entry
for
permanent
residence
has
been
established and a certificate showing the
date, place and manner of his arrival has
been issued. The records of the Bureau of

Justice, where the declarations of intention

to become a Filipino citizen were filed, had
been lost or destroyed during the battle for
the liberation of Manila, and the certificate
alluded to has not been reconstituted. The
undisputed fact that the petitioner has been
continuously residing in the Philippines for
about 25 years, without having been
molested by the authorities, who are
presumed
to
have
been
regularly
performing their duties and would have
arrested petitioner if his residence is illegal,
as rightly contended by appellee, can be
taken as evidence that he is enjoying
permanent residence legally. That a
certificate of arrival has been issued is a fact
that should be accepted upon the
petitioner's undisputed statement in his
declaration of July, 1940, that the certificate
cannot be supposed that the receiving
official would have accepted the declaration
without the certificate mentioned therein as
attached thereto.
We conclude that petitioner's declaration is
valid under section 5 of the Naturalization
Law, failure to reconstitute the certificate of
arrival
notwithstanding.
What
an
unreconstituted document intended to prove
may be shown by other competent
evidence.
2.

YES. The lower court made the finding of

fact that applicant speaks and writes English
and Bicol and there seems to be no question
about the competency of the judge who
made the pronouncement, because he has
shown by the appealed resolution and by his
questions propounded to appellee, that he
has command of both English and Bicol. The
law has not set a specific standard of the
principal Philippine languages. A great
number of standards can be set. There is a
reason to believe that the lower court's
pronouncement is well taken considering
the fact that, after he was liberated in 1942
from the Japanese in the Naga prison,
petitioner joined the guerrilla in the Bicol
region, took part in encounters and
skirmishes against the Japanese, and
remained with the guerrilla until the
Americans liberated the Bicol provinces. If
appellee with his smattering of Bicol was
able to get along with his Bicol comrades in
the hazardous life of the resistance
movement, we believe that his knowledge
of the language satisfies the requirement of
the law.

3.

YES. We do not believe that the lower court

erred in pronouncing appellee stateless.
Appellee's
testimony,
besides
being
uncontradicted, is supported by the wellknown fact that the ruthlessness of modern
dictatorship has scattered throughout the
world a large number of stateless refugees
or displaced persons, without country and
without flag. The tyrannical intolerance of
said dictatorships toward all opposition
induced them to resort to beastly
oppression, concentration camps and blood
purges, and it is only natural that the not-sofortunate ones who were able to escape to
foreign countries should feel the loss of all
bonds of attachment to the hells which were
formerly
their
fatherland's.
Petitioner
belongs to that group of stateless refugees.

Legality of the Use of a State of Nuclear

Weapons (July 8, 1996)
FACTS:

On a letter dated 19 December 1994, filed in the

Registry on 6 January 1995, the Secretary-General
of the UN officially submitted a question to the
Court for an advisory opinion:
"Decides, pursuant to Article 96, paragraph 1, of
the Charter of the United Nations, to request the
International Court of Justice urgently to render its
advisory opinion on the following question: 'Is the
threat or use of nuclear weapons in any
circumstance
permitted
under
international
law?'."
The Court then recapitulates the various stages of
the proceedings.

ISSUE:
WON threats or use of nuclear weapons permitted
under international law
RULING:

Right of Passage over Indian Territory

(Portugal v. India) (1960)
FACTS:

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 NagarAveli. 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.

Asylum Case
Questions before the Court:
(1) Is Colombia competent, as the country that
grants asylum, to unilaterally qualify the offence for
the purpose of asylum under treaty law and
international law?
(2) In this specific case, was Peru, as the territorial
State, bound to give a guarantee of safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the
Convention on Asylum of 1928 (hereinafter called the
Havana Convention) when it granted asylum and is
the continued maintenance of asylum a violation of
the treaty?
The Courts Decision:
Relevant Findings of the Court:
(1) Is Colombia competent, as the country that
grants asylum, to unilaterally qualify the offence for
the purpose of asylum under treaty law and
international law?
1. The court stated that in the normal course of
granting
diplomatic
asylum
a
diplomatic
representative has the competence to make
a provisional qualification
of
the
offence
(for
example, as a political offence) and the territorial
State has the right to give consent to this
qualification. In the Torres case, Colombia has
asserted, as the State granting asylum, that it is
competent to qualify the nature of the offence in a
unilateral and definitive manner that is binding on
Peru. The court had to decide if such a decision was
binding on Peru either because of treaty law (in
particular the Havana Convention of 1928 and the
Montevideo Convention of 1933), other principles of
international law or by way of regional or local
custom.
2. The court held that there was no expressed or
implied right of unilateral and definitive qualification
of the State that grants asylum under the Havana
Convention or relevant principles of international law
(p. 12, 13). The Montevideo Convention of 1933,
which accepts the right of unilateral qualification,
and on which Colombia relied to justify its unilateral
qualification, was not ratified by Peru. The
Convention, per say, was not binding on Peru and
considering the low numbers of ratifications the
provisions of the latter Convention cannot be said to
reflect customary international law (p. 15).
3. Colombia also argued that regional or local
customs support the qualification. The court held that

the burden of proof on the existence of an alleged

customary law rests with the party making the
allegation:
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 (1) constant
and uniform usage (2) practiced by the States in
question, and that this usage is (3) the expression of
a right appertaining to the State granting asylum
(Columbia) and (4) a duty incumbent on the
territorial State (in this case, Peru). 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(text in brackets added).
4. The court held that Columbia did not establish the
existence of a regional custom because it failed to
prove consistent and uniform usage of the alleged
custom by relevant States. The fluctuations and
contradictions in State practice did not allow for the
uniform usage (see also Mendelson, 1948 and see
also Nicaragua case, p. 98, the legal impact of
fluctuations of State practice). The court also
reiterated that the fact that a particular State
practice was followed because of political expediency
and not because of a belief that the said practice is
binding on the State by way of a legal obligation
(opinio juris) is detrimental to the formation of a
customary law (see North Sea Continental Shelf
Cases and Lotus Case for more on opinio juris):
[T]he Colombian Government has referred to a
large number of particular cases in which diplomatic
asylum was in fact granted and respected. But it has
not shown that the alleged rule of unilateral and
definitive qualification was invoked or that it was,
apart from conventional stipulations, exercised by
the States granting asylum as a right appertaining to
them and respected by the territorial States as a
duty incumbent on them and not merely for reasons
of political expediency. The facts brought to the
knowledge of the Court disclose so much uncertainty
and contradiction, so much fluctuation and
discrepancy in the exercise of diplomatic asylum and
in the official views expressed on various occasions,
there has been so much inconsistency in the rapid
succession of conventions on asylum, ratified by
some States and rejected by others, and the practice
has been so much influenced by considerations of
political expediency in the various cases, that it is
not possible to discern in all this any constant and
uniform usage, mutually accepted as law, with
regard to the alleged rule of unilateral and definitive
qualification of the offence.
5. The court held that even if Colombia could prove
that such a regional custom existed, it would not be
binding on Peru, because Peru far from having by its
attitude adhered to it, has, on the contrary,
repudiated it by refraining from ratifying the
Montevideo Conventions of 1933 and 1939, which
were the first to include a rule concerning the
qualification of the offence [as political in nature]
in matters of diplomatic asylum. (See in this regard,
the lesson on persistent objectors. Similarly in
the North Sea Continental Shelf Cases the court
held in any event the . . . rule would appear to be
inapplicable as against Norway in as much as she
had always opposed any attempt to apply it to the
Norwegian coast.)

6. The court concluded that Columbia, as the State

granting asylum, is not competent to qualify the
offence by a unilateral and definitive decision,
binding on Peru.
(2) In this specific case, was Peru, as the territorial
State, bound to give a guarantee of safe passage?
7. The court held that there was no legal obligation
on Peru to grant safe passage either because of the
Havana Convention or customary law. In the case of
the Havana Convention, a plain reading of Article 2
results in an obligation on the territorial state (Peru)
to grant safe passage only after it requests the
asylum granting State (Columbia) to send the person
granted asylum outside its national territory (Peru).
In this case the Peruvian government had not asked
that Torre leave Peru. On the contrary, it contested
the legality of asylum granted to him and refused to
grant safe conduct.
8. The court looked at the possibility of a customary
law emerging from State practice where diplomatic
agents have requested and been granted safe
passage for asylum seekers, before the territorial
State could request for his departure. Once more, the
court held that these practices were a result of a
need
for
expediency
and
other
practice
considerations over an existence of a belief that the
act amounts to a legal obligation (see paragraph 4
above).
There exists undoubtedly a practice whereby the
diplomatic representative who grants asylum
immediately requests a safe conduct without
awaiting a request from the territorial state for the
departure of the refugeebut this practice does not
and cannot mean that the State, to whom such a
request for safe-conduct has been addressed, is
legally bound to accede to it.
(3) Did Colombia violate Article 1 and 2 (2) of the
Havana Convention when it granted asylum and is
the continued maintenance of asylum a violation of
the treaty?
9. Article 1 of the Havana Convention states that It
is not permissible for States to grant asylum to
persons accused or condemned for common crimes
(such persons) shall be surrendered upon request of
the local government.
10. In other words, the person-seeking asylum must
not be accused of a common crime (for example,
murder would constitute a common crime, while a
political offence would not).The accusations that are
relevant are those made before the granting of
asylum. Torres accusation related to a military
rebellion, which the court concluded was not a
common crime and as such the granting of asylum
complied with Article 1 of the Convention.
11. Article 2 (2) of the Havana Convention states
that Asylum granted to political offenders in
legations, warships, military camps or military
aircraft, shall be respected to the extent in which
allowed, as a right or through humanitarian
toleration, by the usages, the conventions or the laws
of the country in which granted and in accordance
with the following provisions: First: Asylum may not
be granted except in urgent cases and for the period
of time strictly indispensable for the person who has
sought asylum to ensure in some other way his
safety.
12. An essential pre-requisite for the granting of
asylum is the urgency or, in other words, the
presence of an imminent or persistence of a danger

for the person of the refugee. The court held that

the facts of the case, including the 3 months that
passed between the rebellion and the time when
asylum was sought, did not establish the urgency
criteria in this case (pp. 20 -23). The court held:
In principle, it is inconceivable that the Havana
Convention could have intended the term urgent
cases to include the danger of regular prosecution
to which the citizens of any country lay themselves
open by attacking the institutions of that country In
principle, asylum cannot be opposed to the operation
of justice.
13. In other words, Torre was accused of a crime but
he could not be tried in a court because Colombia
granted him asylum. The court held that protection
from the operation of regular legal proceedings was
not justified under diplomatic asylum.
14. The court held:
In the case of diplomatic asylum the refugee is
within the territory of the State. A decision to grant
diplomatic asylum involves a derogation from the
sovereignty of that State. It withdraws the offender
from the jurisdiction of the territorial State and
constitutes an intervention in matters which are
exclusively within the competence of that State.
Such a derogation from territorial sovereignty cannot
be recognised unless its legal basis is established in
each particular case.
15. As a result, exceptions to this rule are strictly
regulated under international law.
An exception to this rule (asylum should not be
granted to those facing regular prosecutions) can
occur only if, in the guise of justice, arbitrary action
is substituted for the rule of law. Such would be the
case if the administration of justice were corrupted
by measures clearly prompted by political aims.
Asylum protects the political offender against any
measures of a manifestly extra-legal character which
a Government might take or attempt to take against
its political opponents On the other hand, the
safety which arises out of asylum cannot be
construed as a protection against the regular
application of the laws and against the jurisdiction of
legally
constituted
tribunals.
Protection
thus
understood would authorize the diplomatic agent to
obstruct the application of the laws of the country
whereas it is his duty to respect them Such a
conception, moreover, would come into conflict with
one of the most firmly established traditions of LatinAmerica, namely, non-intervention [for example, by
Colombia into the internal affairs of another State
like Peru].
16. Asylum may be granted on humanitarian
grounds to protect political prisoners against the
violent and disorderly action of irresponsible sections
of the population. (for example during a mob attack
where the territorial State is unable to protect the
offender). Torre was not in such a situation at the
time when he sought refuge in the Colombian
Embassy at Lima.
17. The court concluded that the grant of asylum and
reasons for its prolongation were not in conformity
with Article 2(2) of the Havana Convention (p. 25).
The grant of asylum is not an instantaneous act
which terminates with the admission, at a given
moment of a refugee to an embassy or a legation.
Any grant of asylum results in, and in consequence,
logically implies, a state of protection, the asylum is

granted as long as the continued presence of the

refugee in the embassy prolongs this protection.