(6) Edye v. Robertson 112 U.S.

580 (1884)
Facts: In 1882 the Congress passed an act providing that a duty of fifty cents should be
collected for each and every passenger who was not a citizen of the United States, coming
from a foreign port to any port within the United States. Individuals and steamship
companies brought suit against the collector of customs at New York, Mr. WH Robertson,
for the recovery of the sums of money collected. The act was challenge on the grounds
that it violated numerous treaties of the US government with friendly nations.
Issue: WON the act is void because of the conflict with the treaty.
Ruling: A treaty is a compact between independent nations, which depends for its
enforcement upon the interest and honor of the governments that are parties to a treaty.
Treaties that regulate the mutual rights of citizens and subjects of the contracting nations
are in the same category as acts of Congress. When these rights are of such a nature as to
be enforced by a court of justice, the court resorts to the treaty as it would to a statute.
However, a constitution gives a treaty no superiority over an act on congress. In short, so
far as a treaty made by the United States with any foreign nation can become the subject
of judicial cognizance in the courts of this country, it is subject to such acts as Congress
may pass for its enforcement, modification, or repeal.
----------------------------------------------------------------------------------------------------------------------------------------(11) Yamashita vs. Styer G.R. L-129 December 19, 1945

Facts: 1. Yamashita was the Commanding General of the Japanese army in the Philippines
during World War 2. He was charged before the American military commission for war
crimes.
2. He filed a petition for habeas corpus and prohibition against Gen. Styer to reinstate his
status as prisoner of war from being accused as a war criminal. Petitioner also questioned
the jurisdiction of the military tribunal.
Issue: Whether or not the military tribunal has jurisdiction
Held: YES.
1. The military commission was lawfully created in conformity with an act of Congress
sanctioning the creation of such tribunals.
2. The laws of war imposes upon a commander the duty to take any appropriate measures
within his powers to control the troops under his command to prevent acts which
constitute violation of the laws of war. Hence, petitioner could be legitimately charged with
personal responsibility arising from his failure to take such measure. In this regard the SC
invoked Art. 1 of the Hague Convention No. IV of 1907, as well as Art. 19 of Hague
Convention No. X, Art. 26 of 1929 Geneva Convention among others.
3. Habeas corpus is untenable since the petitioner merely sought for restoration to his
former status as prisoner of war and not a discharge from confinement. This is a matter of
military measure and not within the jurisdiction of the courts.
4. The petition for prohibition against the respondent will also not life since the military
commission is not made a party respondent in the case. As such, no order may be issued
requiring it to refrain from trying the petitioner.

Yamashita vs Styer
G.R. No. L-129 December 19, 1945
Facts: Petitioner Tomoyuki Yamashita, the commanding general of the 14th army group of
the Japanese Imperial Army in the Philippines, 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, Commanding General of the United

States Army Forces, Western Pacific.
Filing for habeas corpus and prohibition against respondent, he asks that he be reinstated
to his former status as prisoner of war, and that the Military Commission be prohibited
from further trying him. He questions, among others, the jurisdiction of said Military
Commission.
Issue/s:
1. Should the petitions for habeas corpus and prohibition be granted in this case?
2. Was the Military Commission validly constituted by respondent, therefore having
jurisdiction over the war crimes?
Ruling: 1. NO. 2. YES.
1. A petition for habeas corpus is improper when release of petitioner is not sought. It
seeks no discharge of petitioner from confinement but merely his restoration to his former
status as a prisoner of war, to be interned, not confined. The relative difference as to the
degree of confinement in such cases is a matter of military measure, disciplinary in
character, beyond the jurisdiction of civil courts. Prohibition cannot issue against one not
made party respondent. Neither may the petition for prohibition prosper against Lt. Gen.
Wilhelm D. Styer. The Military Commission is not made party respondent in this case, and
although it may be acting, as alleged, without jurisdiction, no order may be issued in these
case proceedings requiring it to refrain from trying the petitioner.
The Court further ruled that it has no jurisdiction to entertain the petition even if the
commission be joined as respondent. As it has said, in Raquiza vs. Bradford (pp. 50,
61, ante), . . . an attempt of our civil courts to exercise jurisdiction over the United States
Army before such period (state of war) expires, would be considered as a violation of this
countrys faith, which this Court should not be the last to keep and uphold.
2. Under the laws of war, a military commander has an implied power to appoint and
convene a military commission. This is upon the theory that since the power to create a
military commission is an aspect of waging war, military commanders have that power
unless expressly withdrawn from them.
By the Articles of War, and especially Article 15, the Congress of the United States has
explicitly provided, so far as it may constitutionally do so, that military tribunals shall have
jurisdiction to try offenders or offenses against the laws of war in appropriate cases.
----------------------------------------------------------------------------------------------------------------------------------------(12) Eremes Kookooritchkin v. Solicitor General,
G.R. No. L-1812, August 27, 1948
FACTS:
In August 1941, appellee-petitioner Kookooritchkin filed with the CFI of Camarines Sur a
petition for naturalization, supported by (a) the affidavits of ex-Judge Jaime M. Reyes and
Dr. Salvador Mariano, residents of Camarines Sur, (b) his declaration of intention which
was sworn in July 1940, and (c) notice of hearing. The petition was filed in August 1941
but was not heard until August 28 and Sept. 30, 1947 when appellee-petitioner presented
his evidence, since the province was invaded by the Japanese forces during WWI and the
case records had to be reconstituted after being destroyed during the war. Appellant
SolGen cross-examined appellee-petitioners witnesses but did not file any opposition and
did not present any evidence to controvert the petition. The CFI granted the petition for
naturalization, finding that appellee-petitioner was a native-born Russian who grew up as a
citizen of and was part of the military of the defunct Imperial Russian Government under
the Czars.

He had several stints while in military service before he joined the White

Russian Army at Vladivostok and fought against the Bolsheviks until 1922 when the latter
force defeated the former.

Refusing to join the Bolshevik regime, he fled by sea to

Shanghai, and eventually went to Manila as part of the group of White Russians under
Admiral Stark in March 1923.

He finally permanently resided in Iriga, Camarines Sur

except during his stint in the guerrilla force in Caramoan from 1942 to July 1945. The
lower court also made findings of the establishment of his family, employment, social life,
his ability to speak and write English and Bicol, his good moral character, adherence to the
underlying principles of the Philippine Constitution, and being a stateless refugee
belonging to no State.
ISSUES:
W/N (1) appellee-petitioners declaration of intention to become a Filipino citizen was valid
and sufficient basis for his petition for naturalization, (2) appellee-petitioner sufficiently
established legal residence in the Philippines and could speak and write any of the
principal Philippine languages, and (3) appellee-petitioner was stateless refugee.
HELD:
(1) Section 5 of the Revised Naturalization Law applies and provides that [n]o 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.

While appellee-

petitioners declaration was reconstituted, the attached certificate referred to in the

declaration was not reconstituted.

The SC ruled that the law does not state that the

certificate is essential to the validity of the declaration as the only requirement is for the
said certificate to be issued.

There is the uncontroverted fact of appellee-petitioners

peaceful and continuous residence in the Philippines for 25 years and statement in his
declaration that a certificate had been attached to the said declaration. Hence, appelleepetitioners declaration was valid under law in view of other competent evidence showing
the facts sought to be established under the certificate that was not reconstituted.
(2) Appellee-petitioner has sufficiently shown legal residence in the Philippines for a
continuous period of not less than 10 years as required by Section 2 of the Revised
Naturalization Law. In addition, appellee-petitioner had good command of both English and
Bicol.

While there may be many standards out there, none was set in the law on the

required ability to speak and write any of the principal Philippine languages. Appelleepetitioner got along well with his comrades during his hazardous days in the guerrilla
movement thus showing that he satisfied the requirement of the law.

There was also

circumstantial evidence that appellee-petitioner also ought to know how to write Bicol,
which uses the same alphabet used in English and so widely used in the Philippines. Given
his good command of English as shown in his testimony, appellee-petitioner could easily
make use of the same alphabet in the place where he had been residing for 25 years.
(3) Appellant SolGen asserted that appellee-petitioner failed to show that he lost his
citizenship under the laws of Russia and that Russia granted to Filipinos the same right to
be naturalized citizens. However, the SC still found that lower court did not err in finding
appellee-petitioner as a stateless refugee. Appellee-petitioners testimony that he is not a
Russian citizen and that he has no citizenship is uncontroverted. There is also the wellknown ruthlessness of modern dictatorships giving rise to a great number of stateless
refugees or displaced persons, without country or flag. The tyrannical intolerance of
dictatorships to opposition translates into beastly oppression, concentration camps and

bloody purges, such that it is only natural that those who flee to other countries to escape
such a situation, such as appellee-petitioner, lose all bonds of attachments to their former
fatherlands.
----------------------------------------------------------------------------------------------------------------------------------------(13) NICARAGUA VS UNITED STATES (SUMMARY) ON SELF DEFENCE AND USE OF FORCE
Facts of the Case:
In July 1979 the Government of President Somoza collapsed following an armed opposition led by
the Frente Sandinista de Liberacibn Nacional (FSLN) . The new government installed by FSLN
began to meet armed opposition from supporters of the former Somoza Government and exmembers of the National Guard. The US initially supportive of the new government changed its
attitude when, according to the United States, it found that Nicaragua was providing logistical
support and weapons to guerrillas in El Salvador. In April 1981 it terminated United States aid to
Nicaragua and in September 1981, according to Nicaragua, the United States decided to plan and
undertake activities directed against Nicaragua.
Issue: Did the United States breach its customary international law obligation not to intervene in
the affairs of another State when it trained, armed, equipped and financed the contra forces or
encouraged, supported and aided the military and paramilitary activities against Nicaragua?
The court held that the United States breached its customary international law
obligation not to use force against another State: (1) when it directly attacked
Nicaragua in 1983 1984; and (2) when its activities with the contra forces resulted in
the threat or use of force (see paras 187 -201).
The Court held that:

The prohibition on the use of force is found in Article 2(4) of the UN Charter and in
customary international law.

In a controversial finding the court sub-classified the use of force as: (1) the most grave
forms of the use of force (i.e. those that constitute an armed attack) and (2) the less grave
form (i.e. organizing, instigating, assisting or participating in acts of civil strife and terrorist
acts in another State when the acts referred to involve a threat or use of force not
amounting to an armed attack).

The United States violated the customary international law prohibition on the use of force
when it laid mines in Nicaraguan ports. It violated this prohibition when it attacked
Nicaraguan ports, oil installations and a naval base (see below). The United States could
justify its action on collective self-defence, if certain criteria were met this aspect is
discussed below.

The United States violated the customary international law prohibition on the use of force
when it assisted the contras by organizing or encouraging the organization of irregular
forces and armed bands for incursion into the territory of another state and participated
in acts of civil strifein another State when these acts involved the threat or use of force.

The supply of funds to the contras did not violate the prohibition on the use of force.
Nicaragua argued that the timing of the offensives against it was determined by the United
States: i.e. an offensive could not be launched until the requisite funds were available. The
Court held that it does not follow that each provision of funds by the United States was
made to set in motion a particular offensive, and that that offensive was planned by the
United States. The Court held further that while the arming and training of the contras
involved the threat or use of force against Nicaragua, the supply of funds, in it self, only
amounted to an act of intervention in the internal affairs of Nicaragua (para 227) this
aspect is discussed below.

-(14) NORTH SEA CONTINENTAL SHELF CASES

Judgment of 20 February 1969
The Facts and the Contentions of the Parties (paras. 1-17 of the Judgment)
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.
In the course of negotiations, the factors to be taken into account were to include: the
general configuration of the coasts of the Parties, as well as the presence of any special or
unusual features; so far as known or readily ascertainable, the physical and geological
structure and natural resources of the continental shelf areas involved, the element of a
reasonable degree of proportionality between the extent of the continental shelf areas
appertaining to each State and the length of its coast measured in the general direction of
the coastline, taking into account the effects, actual or prospective, of any other
continental shelf delimitations in the same region.

(15) SOUTH-WEST AFRICA CASES (SECOND PHASE)

Judgment of 18 July 1966

The Applicants, acting in the capacity of States which were members of the former League of Nations,
put forward various allegations of contraventions of the League of Nations Mandate for South West
Africa by the Republic of South Africa.
The contentions of the Parties covered, inter alia, the following issues: whether the Mandate for South
West Africa was still in force and, if so, whether the Mandatory's obligation to furnish annual reports on
its administration to the Council of the League of Nations had become transformed into an obligation so
to report to the General Assembly of the United Nations; whether the Respondent had, in accordance
with the Mandate, promoted to the utmost the material and moral well-being and the social progress of
the inhabitants of the territory, whether the Mandatory had contravened the prohibition in the Mandate
of the "military training of the natives" and the establishment of military or naval bases or the erection of
fortifications in the territory; and whether South Africa had contravened the provision in the Mandate
that it (the Mandate) can only be modified with the consent of the Council of the League of Nations, by
attempting to modify the Mandate without the consent of the United Nations General Assembly, which,
it was contended by the Applicants, had replaced the Council of the League for this and other purposes.
Before dealing with these questions, however, the Court considered that there were two questions of an
antecedent character, appertaining to the merits of the case, which might render an enquiry into other
aspects of the case unnecessary. One was whether the Mandate skill subsisted at all and the other was
the question of the Applicants' standing in this phase of the proceedings - i.e. their legal right or interest
regarding the subject matter of their claims. As the Court based its Judgment on a finding that the
Applicants did not possess such a legal right or interest, it did not pronounce upon the question of
whether the Mandate was still in force. Moreover, the Court emphasized that its 1962 decision on the
question of competence was given without prejudice to the question of the survival of the Mandate - a
question appertaining to the merits of the case, and not in issue in 1962 except in the sense that
survival had to be assumed for the purpose of determining the purely jurisdictional issue - which was
all that was then before the Court.
Turning to the basis of its decision in the present proceedings, the Court recalled that the mandates
system was instituted by Article 22 of the Covenant of the League of Nations. There were three
categories of mandates, 'A', 'B' and 'C' mandates, which had, however, various features in common as
regards their structure. The principal element of each instrument of mandate consisted of the articles
defining the mandatory's powers and its obligations in respect of the inhabitants of the territory and
towards the League and its organs. The Court referred to these as the "conduct" provisions. In addition,
each instrument of mandate contained articles conferring certain rights relative to the mandated
territory directly upon the members of the League as individual States, or in favour of their nationals.
The Court referred to rights of this kind as "special interests", embodied in the "special interests"
provisions of the mandates.
The South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), which relate to the
continued existence of the Mandate for South West Africa and the duties and performance of South
Africa as Mandatory thereunder, were instituted by Applications of the Governments of Ethiopia and
Liberia filed in the Registry on 4 November 1960. By an Order of 20 May 1961 the Court joined the
proceedings in the two cases. The Government of South Africa raised preliminary objections to the

Court's proceeding to hear the merits of the case, but these were dismissed by the Court on
21 December 1962, the Court finding that it had jurisdiction to adjudicate upon the merits of the dispute.
In its Judgment on the second phase of the cases the Court, by the President's casting vote, the votes
being equally divided (seven-seven), found that the Applicant States could not be considered to have
established any legal right or interest in the subject matter of their claims and accordingly decided to
reject them.
The President, Sir Percy Spender, has appended a Declaration to the Judgment. Judge Morelli and
Judge ad hoc van Wyk have appended separate opinions. Vice-President Wellington Koo, Judges
Koretsky, Tanaka, Jessup, Padilla Nervo and Forster and Judge ad hoc Sor Louis Mbanefo have
appended dissenting opinions.
----------------------------------------------------------------------------------------------------------------------------------------(16) REQUEST FOR INTERPRETATION OF THE JUDGMENT
OF 20 NOVEMBER 1950 IN THE ASYLUM CASE
Judgment of 27 November 1950
The judgment deals with the request for an interpretation of the Judgment which the Court had delivered on
November 20th, in the Asylum Case (Colombia-Peru). This request had been submitted to the Court in the
name of the Colombian Government on the very day when the judgment to be interpreted was delivered.
By twelve votes to one the Court, including two judges ad hoc, one designated by the Colombian Government
and the other by the Peruvian Government, held that the request was inadmissible.
*
**
In its Judgment, the Court recalls that the first condition which must be fulfilled to enable it to give an
interpretation under the provisions of the Statute, is that the real purpose of the request should be to obtain an
interpretation of the Judgment. This means that its object must be solely to obtain clarification as to the
meaning and scope of what had been decided by the Judgment with binding force. It is also necessary that
there should be a dispute between the Parties as to the meaning and scope of that Judgment.
The Court then notes that the Government of Colombia asked it to reply to three questions: Is the Judgment of
November 20th, 1950, to be construed as meaning:
(a) that legal effects are to be attributed to the qualification made by the Colombian Ambassador at Lima of the
offence imputed to M. Haya de la Torre?
(b) that Peru is not entitled to demand surrender of the refugee, and that Colombia is not bound to surrender
him?
(c) or, on the contrary, that Colombia is bound to surrender the refugee?
On the first question, the Court found that the point had not been submitted to it by the Parties: the Court had
been asked to decide only on a submission presented by Colombia in abstract and general terms.
The other two questions in reality amount to an alternative, dealing with the surrender of the refugee. This
point also had not been included in the submissions of the Parties: the Court therefore could make no decision
upon it. It was for the Parties to present their respective claims on this point which they abstained from doing.
When Colombia claims to detect "gaps" in the Judgment, these gaps in reality concern new points on which
decision cannot be obtained by means of an interpretation: this interpretation may in no way go beyond the
limits of the Judgment, as fixed in advance by the submissions of the Parties.
Finally, the condition required by the Statute that there should be a dispute is not satisfied: no dispute between
the Parties had been brought to the attention of the Court, and it is shown by the very date of the request for
an interpretation that such a dispute could not possibly have arisen in any way whatever.
For these reasons, the Court declared that the request for an interpretation presented by Colombia was
inadmissible.
*
**
M. Caicedo Castilla, Judge ad hoc designated by the Colombian Government, declared that he was unable to
join in the Judgment. His declaration is appended to the Judgment.
-----------------------------------------------------------------------------------------------------------------------------------------

(18) NUCLEAR TESTS CASE (NEW ZEALAND v. FRANCE)

Judgment of 20 December 1974
In its judgment in the case concerning Nuclear Tests (New Zealand v. France), the Court, by 9
votes to 6, has found that the claim of New Zealand no longer had any object and that the
Court was therefore not called upon to give a decision thereon.
In the reasoning of its Judgment, the Court adduces inter alia the following considerations:
Even before turning to the questions of jurisdiction and admissibility, the Court has first to
consider the essentially preliminary question as to whether a dispute exists and to analyse the
claim submitted to it (paras. 22-24 of Judgment); the proceedings instituted before the Court

on 9 May 1973 concerned the legality of atmospheric nuclear tests conducted by France in the
South Pacific (para. 16 of Judgment); the original and ultimate objective of New Zealand is to
obtain a termination of those tests (paras. 25-31 of Judgment); France, by various public
statements made in 1974, has announced its intention, following the completion of the 1974
series of atmospheric tests, to cease the conduct of such tests (paras. 33-44 of Judgment); the
Court finds that the objective of New Zealand has in effect been accomplished, inasmuch as
France has undertaken the obligation to hold no further nuclear tests in the atmosphere in the
South Pacific (paras. 50-55 of Judgment); the dispute having thus disappeared, the claim no
longer has any object and there is nothing on which to give judgment (paras. 58-62 of
Judgment).
Upon the delivery of the Judgment, the Order of 22 June 1973 indicating interim measures of
protection ceases to be operative and the measures in question lapse (para. 64 of Judgment).

-----------------------------------------------------------------------------------------------------------------------------------------

(19) NUCLEAR TESTS CASE (AUSTRALIA v. FRANCE)

Judgment of 20 December 1974
In its judgment in the case concerning Nuclear Tests (Australia v. France), the Court, by 9
votes to 6, has found that the claim of Australia no longer had any object and that the Court
was therefore not called upon to give a decision thereon.
In the reasoning of its Judgment, the Court adduces inter alia the following considerations:
Even before turning to the questions of jurisdiction and admissibility, the Court has first to
consider the essentially preliminary question as to whether a dispute exists and to analyse the
claim submitted to it (paras. 22-24 of Judgment); the proceedings instituted before the Court
on 9 May 1973 concerned the legality of atmospheric nuclear tests conducted by France in the
South Pacific (para. 16 of Judgment); the original and ultimate objective of Australia is to obtain
a termination of those tests (paras. 25-31 of Judgment); France, by various public statements
made in 1974, has announced its intention, following the completion of the 1974 series of
atmospheric tests, to cease the conduct of such tests (paras. 33-44 of Judgment); the Court
finds that the objective of Australia has in effect been accomplished, inasmuch as France has
undertaken the obligation to hold no further nuclear tests in the atmosphere in the South
Pacific (paras. 47-52 of Judgment); the dispute having thus disappeared, the claim no longer
has any object and there is nothing on which to give judgment (paras. 55-59 of Judgment).
Upon the delivery of the Judgment, the Order of 22 June 1973 indicating interim measures of
protection ceases to be operative and the measures in question lapse (para. 61 of Judgment).
(20-21 New Zealand v frnace and art 63)
Summary of the Order
In its Order the Court recalls that on 21 August 1995 New Zealand filed a "Request for an Examination
of the Situation" in accordance with paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests
Case (New Zealand v. France); it is indicated in the Request that it "aris[es] out of a proposed action
announced by France which will, if carried out, affect the basis of the Judgment rendered by the Court
on 20 December 1974 in the Nuclear Tests Case (New Zealand v. France)"; and that "the immediate
circumstance giving rise to the present phase of the Case is a decision announced by France in a
media statement of 13 June 1995" by the President of the French Republic, according to which "France
would conduct a final series of eight nuclear weapons tests in the South Pacific starting in
September 1995". New Zealand expressly founds its "Request for an Examination of the Situation" on
paragraph 63 of the Judgment of 20 December 1974 (cited below). At the end of its Request,
New Zealand states that the rights for which it seeks protection all fall within the scope of the rights
invoked in paragraph 28 of its Application of 1973, but that, at the present time, it seeks recognition only
of those rights that would be adversely affected by entry into the marine environment of radioactive
material as a result of the further tests to be carried out at Mururoa or Fangataufa Atolls, and of its
entitlement to protection and to the benefit of a properly conducted Environmental Impact Assessment;
within these limits, New Zealand asks the Court to adjudge and declare:
"(i) that the conduct of the proposed nuclear tests will constitute a violation of the rights under
international law of New Zealand, as well as of other States; further or in the alternative;
(ii) that it is unlawful for France to conduct such nuclear tests before it has undertaken an
Environmental Impact Assessment according to accepted international standards. Unless such an
assessment establishes that the tests will not give rise, directly or indirectly, to radioactive
contamination of the marine environment the rights under international law of New Zealand, as well as
the rights of other States, will be violated." that it is unlawful for France to conduct such nuclear tests
before it has undertaken an Environmental Impact Assessment according to accepted international

standards. Unless such an assessment establishes that the tests will not give rise, directly or indirectly,
to radioactive contamination of the marine environment the rights under international law of
New Zealand, as well as the rights of other States, will be violated."
The Court begins by citing paragraph 63 of the Judgment of 20 December 1974, which provides: "Once
the Court has found that a State has entered into a commitment concerning its future conduct it is not
the Court's function to contemplate that it will not comply with it. However, the Court observes that if the
basis of this Judgment were to be affected, the Applicant could request an examination of the situation
in accordance with the provisions of the Statute; the denunciation by France, by letter dated
2 January 1974, of the General Act for the Pacific Settlement of International Disputes, which is relied
on as a basis of jurisdiction in the present case, cannot constitute by itself an obstacle to the
presentation of such a request."
It then indicates that the following question has to be answered in limine: "Do the Requests submitted
to the Court by the Government of New Zealand on 21 August 1995 fall within the provisions of
paragraph 63 of the Judgment of the Court of 20 December 1974 in the case concerning Nuclear Tests
(New Zealand v. France)?"; and that the present proceedings have consequently been limited to that
question. The question has two elements; one concerns the courses of procedure envisaged by the
Court in paragraph 63 of its 1974 Judgment, when it stated that "the Applicant could request an
examination of the situation in accordance with the provisions of the Statute"; the other concerns the
question whether the "basis" of that Judgment has been "affected" within the meaning of paragraph 63
thereof.
As to the first element of the question before it, the Court recalls that New Zealand expresses the
following view: "paragraph 63 is a mechanism enabling the continuation or the resumption of the
proceedings of 1973 and 1974. They were not fully determined. The Court foresaw that the course of
future events might in justice require that New Zealand should have that opportunity to continue its
case, the progress of which was stopped in 1974. And to this end in paragraph 63 the Court authorized
these derivative proceedings. ... the presentation of a Request for such an examination is to be part of
the same case and not of a new one." New Zealand adds that paragraph 63 could only refer to the
procedure applicable to the examination of the situation once the Request was admitted; it furthermore
explicitly states that it is not seeking an interpretation of the 1974 Judgment under Article 60 of the
Statute, nor a revision of that Judgment under Article 61.
France, for its part, stated as follows: "As the Court itself has expressly stated, the possible steps to
which it alludes are subject to compliance with the 'provisions of the Statute' ... The French Government
incidentally further observes that, even had the Court not so specified, the principle would nevertheless
apply: any activity of the Court is governed by the Statute, which circumscribes the powers of the Court
and prescribes the conduct that States must observe without it being possible for them to depart
therefrom, even by agreement ...; as a result and a fortiori, a State cannot act unilaterally before the
Court in the absence of any basis in the Statute. Now New Zealand does not invoke any provision of
the Statute and could not invoke any that would be capable of justifying its procedure in law. It is not a
request for interpretation or revision (a), nor a new Application, whose entry in the General List would,
for that matter, be quite out of the question (b)".
The Court observes that in expressly laying down, in paragraph 63 of its Judgment of
20 December 1974, that, in the circumstances set out therein, "the Applicant could request an
examination of the situation in accordance with the provisions of the Statute", the Court cannot have
intended to limit the Applicant's access to legal procedures such as the filing of a new application
(Statute, Art. 40, para. 1), a request for interpretation (Statute, Art. 60) or a request for revision (Statute,
Art. 61), which would have been open to it in any event; by inserting the above-mentioned words in
paragraph 63 of its Judgment, the Court did not exclude a special procedure, in the event that the
circumstances defined in that paragraph were to arise, in other words, circumstances which "affected"
the "basis" of the Judgment. The Court goes on to point out that such a procedure appears to be
indissociably linked, under that paragraph, to the existence of those circumstances; and that if the
circumstances in question do not arise, that special procedure is not available.
----------------------------------------------------------------------------------------------------------------------------------------(23 Paquete Habana, 175 US 677, 1900)

Brief Fact Summary. The argument of the fishermen whose vessels was seized by the U.S (P)
officials was that international law exempted coastal fishermen from capture as prizes of war.
Synopsis of Rule of Law. The argument of the fishermen whose vessels was seized by the U.S
(P) officials was that international law exempted coastal fishermen from capture as prizes of
war.

Facts. This appeal of a district court decree, which condemned two fishing vessels and their
cargoes as prizes of war, was brought by the owners (D) of two separate fishing vessels. Each
of the vessel running in and out of Havana and sailing under the Spanish flag was a fishing
smack which regularly engaged in fishing on the coast of Cuba. Inside the vessels were fresh
fish
which
the
crew
had
caught.
The owners of the vessels were not aware of the existence of a war until they were stopped by
U.S. (P) squadron. No incriminating material like arms were found on the fishermen and they
did not make any attempt to run the blockade after learning of its existence not did they resist
their arrest. When the owners (D) appealed, they argued that both customary international law
and writings of leading international scholars recognized an exemption from seizure at wartime
of coastal fishing vessels.
Issue. Are coastal fishing vessels with their cargoes and crews excluded from prizes of war?
Held. (Gray, J.). Yes. Coastal fishing vessels with their cargoes and crews are excluded from
prizes of war. The doctrine that exempts coastal fishermen with their vessels and crews from
capture as prizes of war has been known by the U.S. (P) from the time of the War of
Independence and has been recognized explicitly by the French and British governments. It is
an established rule of international law that coastal fishing vessels with their equipment and
supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching
and bringing in fish are exempt from capture as prizes of war. Reversed.
Discussion. Chief Justice Fuller who had a dissenting opinion which was not published in this
casebook argued that the captured vessels were of such a size and range as to not fall within
the exemption. He further argued that the exemption in any case had not become a customary
rule of international law, but was only an act of grace that had not been authorized by the
President.
(25) Summary of the Summary of the Judgment of 12 April 1960
CASE CONCERNING RIGHT OF PASSAGE OVER
INDIAN TERRITORY (MERITS)
Judgment of 12 April 1960
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.
Following upon the Application, the Court was seised of six preliminary objections raised by the Government of
India. By a Judgment given on 26 November 1957, the Court rejected the first four objections and joined the
fifth and sixth objections to the Merits.
In its Judgment, the Court:
(a) rejected the Fifth Preliminary Objection by 13 votes to 2;
(b) rejected the Sixth Preliminary Objection by 11 votes to 4;
(c) 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;
(d) 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;
(e) 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.
The President and Judges Basdevant, Badawi, Kojevnikov and Spiropoulos appended Declarations to the
Judgment of the Court. Judge Wellington Koo appended a Separate Opinion. Judges Winiarski and Badawi
appended a Joint Dissenting Opinion. Judges Armand-Ugon, Moreno Quintana and Sir Percy Spender, and
Judges ad hoc Chagla and Fernandes, appended Dissenting Opinions.
*
**
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-Aveli 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 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.
*
**
Before proceeding to the consideration of the Merits, the Court had to ascertain whether it had jurisdiction to
do so, a jurisdiction which India had expressly contested.
In its Fifth Preliminary Objection the Government of India relied upon the reservation in its Declaration of 28
February 1940 accepting the jurisdiction of the Court, which excluded from that jurisdiction disputes with
regard to questions which by international law fall exclusively within the jurisdiction of India. The Court pointed
out that in the course of the proceedings both Parties had taken their stand on grounds which were on the
plane of international law, and had on occasion expressly said so. The fifth objection could not therefore be
upheld.
The Sixth Preliminary Objection likewise related to a limitation in the Declaration of 28 February 1940. India,
which had accepted the jurisdiction of the Court "over all disputes arising after February 5th, 1930, with regard
to situations or facts subsequent to the same date", contended that the dispute did not satisfy either of these
two conditions. As to the first condition, the Court pointed out that the dispute could not have arisen until all its
constituent elements had come into existence; among these were the obstacles which India was alleged to
have placed in the way of exercise of passage by Portugal in 1954; even if only that part of the dispute relating
to the Portuguese claim to a right of passage were to be considered, certain incidents had occurred before
1954, but they had not led the Parties to adopt clearly-defined legal positions as against each other;
accordingly, there was no justification for saying that the dispute arose before 1954. As to the second
condition, the Permanent Court of International Justice had in 1938 drawn a distinction between the situations
or facts which constituted the source of the rights claimed by one of the Parties, and the situations or facts
which were the source of the dispute. Only the latter were to be taken into account for the purpose of applying
the Declaration. The dispute submitted to the Court was one with regard to the situation of the enclaves, which
had given rise to Portugal's claim to a right of passage and, at the same time, with regard to the facts of 1954
which Portugal advanced as infringements of that right; it was from all of this that the dispute arose, and this
whole, whatever may have been the earlier origin of one of its parts, came into existence only after 5 February
1930. The Court had not been asked for any finding whatsoever with regard to the past prior to that date; it
was therefore of opinion that the sixth objection should not be upheld and, consequently, that it had jurisdiction.
*
**
On the merits, 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 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 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.
For these reasons, the Court reached the findings indicated above.
-----------------------------------------------------------------------------------------------------------------------------------------

(26)Corfu Channel case

The Corfu Channel case (French: Affaire du Dtroit de Corfou) was a public international law case heard
before the International Court of Justice (ICJ) between 1947 and 1949, concerning state responsibility for
damages at sea, as well as the doctrine of innocent passage. A contentious case, it was the first of any type
heard by the ICJ after its establishment in 1945.
Following a series of encounters from May to November 1946 in the Corfu Channel between the United
Kingdom and the People's Republic of Albaniaone of which resulted in damage to two Royal Navy ships
and significant loss of lifethe United Kingdom brought suit in the ICJ seeking reparations. After an initial
ruling on jurisdiction in 1948, the ICJ issued separate merits and compensation judgments in 1949. The
Court awarded the United Kingdom 843,947. This amount remained unpaid for decades, and British efforts
to see it paid led to another ICJ case to resolve competing Albanian and Italian claims to more than two tons
of Nazi gold. In 1996, Albania and the United Kingdom settled the judgment along with Albania's outstanding
claim to the gold.
Corfu Channel has had a lasting influence on the practice of international law, especially the law of the sea.
The concept of innocent passage used by the Court was ultimately adopted in a number of important law of
the sea conventions. The stance taken by the Court on use of force has been of importance in subsequent
decisions, such as Nicaragua v. United States. Additionally, the case served to set a number of procedural
trends followed in subsequent ICJ proceedings.
In 1946, during the Greek civil war, a series of three encounters took place in the Corfu Channel, between
Albania and the United Kingdom.
On 15 May, the cruisers Orion and Superb passed through the northern part of the Corfu Channel. Albanian
shore batteries opened fire on the two ships, coming within 200 yards (180 m) of the squadron, but striking
neither vessel.[1] The United Kingdom lodged a formal protest, demanding an apology from Albania. Albania
stated that the ships had violated Albanian territorial waters, and asserted that passage through the Corfu
Channel required Albanian permission. On 2 August, the United Kingdom stated that Royal Navy ships
would return any fire in the future.
On 22 October, a Royal Navy flotilla composed of cruisers Mauritius and Leander, and
destroyers Saumarez and Volage, entered the Corfu Channel. The ships were at Action Stations, with orders
to return fire if they were attacked. Their guns were not loaded, and were in a neutral positiontrained fore
and aft, rather than aimed at the shore.[a] At 2:53 p.m., Saumarez struck a mine and was heavily damaged;
thirty-six people aboard were killed. The Volage took her in tow, only to strike another mine at 4:16 p.m.;
eight people were killed. A total of forty-four people died and forty-two others were injured, and
the Saumarez was damaged beyond repair.[2] Shore batteries in the vicinity were observed by the ships, but
neither side took any action. At one point, a boat flying an Albanian ensign and a white flag approached
the Volage to ask what the ships were doing.[3] Writing in 2014, maritime archaeologist James P.
Delgado said of the incident:
[The] narrowness of the Corfu Channel and rocky shallows north of the island effectively pushed ships to the
edge of Albania's maritime border, occasionally over the line, sometimes to within a mile of shore. Given the
Albanian defenses, the tensions prompted by their increasingly anti-Western ruler and a British government
eager to reassert a strong naval role in the region, a clash was perhaps inevitable
In the objection filed on 9 December,[21] Albania argued that a special agreement was the only valid way that
the case could be brought.[22] The objection stated that when at least one party was a state that was not
otherwise bound to submit to the Court's jurisdiction, proceedings could only be instituted by special
agreement. Albania cited Articles 26(1) and 40(1) of the ICJ Statute in its support, and stated that no such
agreement had been reached. In contesting the claims of the UK, the Albanian objection stated that the
Security Council resolution was not itself enough to compel Albania to accept the jurisdiction of the Court. It
also said that Albania's acceptance of the obligations of a UN member state did not constitute express
acceptance of jurisdiction under the ICJ Statute.[23] After the initial statements, Shawcross was replaced as
the representative of the UK by then-solicitor general Frank Soskice.[18]
The ICJ delivered its judgment on the objection on 25 March 1947, voting fifteen-to-one, with Igor Daxner
Albania's designated ad hocjudgebeing the sole dissenter. The majority held that Albania had voluntarily
submitted to the jurisdiction of the International Court.[22]Specifically, two successive pieces of

correspondence were held to have established Albania's informal submission to the Court's jurisdiction: the
British transmission of the application to Albania, followed by the Albanian letter to the Court. These
documents established jurisdiction ratione personae and ratione materiae.[24] An important factor in this
decision was the fact that the Albanian letter had not been produced by Albania's Agent, but by the Deputy
Minister of Foreign Affairs.[25] In a separate opinion, while concurring with the majority that Albania had
voluntarily submitted to the Court's jurisdiction, Judges Basdevant, lvarez, Winiarski, Zorii, de Visscher,
Badawi, and Krylov argued that the Security Council's Article 36 recommendation did not place the case
within the compulsory jurisdiction of the Court.[26]
Another issue the Court addressed was the difference between the rules governing the institution of
proceedings and jurisdiction. Albania's objection assumed that proceedings could only be instituted where
compulsory jurisdiction existed or where a special agreement had been reached. In essence, to institute
proceedings the party applying to the Court needed only to plead as far as possible the basis of jurisdiction,
and not to establish it absolutely.[27]
After the judgement, the parties submitted a special agreement in open court [28] certifying two questions:
Whether Albania was responsible for the incidents, and whether the United Kingdom violated Albanian
sovereignty.[22] The Court accepted the special agreement as the basis for all further proceedings in the case
on 26 March.[29] Additionally, the parties requested that the Court continue the consecutiveas opposed to
simultaneouspleading format. The Court agreed to this.[30]
Following the decay of relations between Albania and Yugoslavia in 1948, the Yugoslavian members of Cot's
legal team were replaced by French barristers Joseph Nordmann, Marc Jacquier and Paul Villard. These
three were respected members of the French bar and affiliated with the French Communist Party. Nordmann
had also been involved in the French prosecution team during the Nuremberg trials. In 1949, the ICJ issued
its merits judgment, ruling partly in favour of Albania and partly in favour of the United Kingdom. The Court
held that the United Kingdom did not violate Albanian territorial waters on 22 October 1946 when the fourship flotilla transited the parts of the Corfu Channel that were within Albanian territorial waters. [52] The Court's
decision was based on its determination that the character of an international strait was determined by its
connection of two parts of the high seas, and that the strait was used for international navigation. [53] The
burden of proof had rested on the United Kingdom, as it had been the applicant. [54]
On the question of innocent passage, the Court found in favor of the United Kingdom, voting fourteen to two.
[55]

Notably, the Court held that a right to innocent passage existed during times of peace through straits like

the Corfu Channel, which connected two parts of the high seas. The Court accepted that some Albanian
regulation of passage through the Channel would have been acceptable, but not to the extent of demanding
prior authorization, or of barring the passage of warships outright. This served to clarify the 1930 Hague
Conference with respect to international straits. Bing Bing Jia stated that this decision meant that in
peacetime, a country could not prohibit the passage of all vessels, or otherwise require authorization. Jia
goes on to argue that, because Albania was unable to rapidly distinguish between the passage of Greek and
other vessels during times of high political tensions, the requirement of prior notification could be lawful.

----------------------------------------------------------------------------------------------------------------------------------------(27) Case Note on The Chorzow Factory ( Germany v Poland, 1928)

This is a case about violation of international agreement known as The Chorzow Factory
Case. The question before the court was whether Poland can be made liable for such
violation of an international agreement.
Fact:
After the First World War due to a bipartite agreement between Germany and Poland;
Germany agreed to transfer the control of Upper Silesia area to Poland. On an agreement
that Poland would not forfeit any property of Germany, but thereafter Poland forfeited two
of German Companies situated at that area.
Issue:
1.

Whether the court has its jurisdiction over the matter or not?

2.

Whether there was any violation of the agreement between Germany and Poland or
not?

3.

Whether there was any international obligation on Poland due to the breach of
bipartite agreement between Germany and Poland?

Decision:
The Permanent Court of International Justice has its jurisdiction to try the case.
Poland had violated the international agreement between Germany and Poland.
Poland would be liable to repair any loss suffered by the Germany due to the forfeit of that
two company as they violated that international agreement.
Analysis:
The rule of Permanent Court of International Justice was very appropriate, which was given
in favour of Germany as the attitude of Polish Government towards two German
companies was not in conformity with the articles of Convention concerning Upper
Silesia[1], concluded at Geneva on May 15 th, 1922 (hereinafter referred as Geneva
Convention), thus violating the international agreement by unlawful expropriation of the
said companies and that infers the state responsibility on Poland for reparation for such
violation.
It is a general principal of International law that every violation of an engagement involves
an obligation to make reparation[2] adopted form municipal law, which is applied in this
case along with the principal of state responsibility as a state is considered as an
individual entity when come to an international dispute and it was accepted by all,
repetition of which confirms that the decision is conform to existing law. A recent initiative
of International Law Commission at its fifty-third session, in 2001 gave the state
responsibility a more precise scope for the application of the principal of state
responsibility[3]. Observation of similar cases undertook by Permanent Court of
International justice. If compared with the reasoning with this case would be quite new to
that time[4], therefore it is highly unlikely that any consistent previous reasoning could be
found in similar cases. But the decision has already been significantly influenced the
jurisprudence of International law and its impact can be seen in various cases such i.e.
Genocide Convention Case[5], Phosphates in Morocco case[6], Corfu Channel case[7],
Gabkovo-Nagymaros[8] and others.
The PCIJ adequately justified its reasoning by bringing all the disputed matters and
argument presented before it or by suo moto. At first it had justified its jurisdiction which
was under question by the Poland as raised in respect of res judicata[9]showing Article 23
of Geneva Convention, but the court justified its jurisdiction by referring Article 36 of the
Statute of the Court. In order to reason the compensation declared was also justified by
Article 6 -22, special by Article 7 of Geneva Convention and by its interpretation. It also
interpreted the municipal laws as well as customary international laws with a new view of
International law concerning the subject matter of international law.
The appropriate interpretation were made by PCIJ in every point, such as the interpretation
of Article 36 of the Statute of the Court to justify its jurisdiction[10]. The Article said the
parties can go to the court in all or any of the classes of legal dispute concerning a) the
interpretation of a Treaty; c) the existence of any fact which, if established, would
constitute a breach of an international obligation d) the nature or extent of the reparation
to be made for the breach of an international obligation. It bring the general concept of

law that every violation of an engagement involves an obligation reparation.[11] And the
violation was clarified as the Poland violated the Article 7 of Geneva convention and
illegally expropriate two of German factories .In this case, the court further interpreted
that the expropriating state must, in addition to paying the compensation due in respect of
a lawful expropriation, pay also damages for any loss sustained by the injured party.[12]
The reasoning that the PCIJ has given is logical and consistent to me. First of all, the court
acted interpreting the Geneva Convention, where the parties agreed to come before the
court on any violation of the convention. Secondly, as one party denied the jurisdiction of
the court citing the concerning law, the court clear the ambiguity of that matter and the
shadow over the jurisdiction became clear. Thirdly, when the court saw the violation of
Geneva convention Articles 6 -22, the court ordered indemnity referring the principal of
international law, as mentioned by the court, It is a principle of international law that the
reparation of a wrong may consist in an indemnity corresponding to the damage which the
nationals of the injured State have suffered as a result of the act which is contrary to
international law.[13] Fourthly, It was a question who would indemnify as therefor the
court held, in a different plane to private law, with the claimant State being the one
entitled to claim damages. Id. It also noted that it was open for states to create private
tribunals to adjudicate private claimants claims for breach of international law, but that
nothing in Article 23 of the Geneva Convention affected Germanys entitlement to claim
damages in this case.[14] So the state (Poland) was made liable to indemnify Germany.
In the question of whether the expropriation was legal or illegal the PCIJ held that this was
not a situation where a governmental seizure would have been made lawful by simply
paying fair compensation; it was a seizure of a kind that was
Banned outright under the 1922 Geneva Convention and would only have been lawful had
the treatys exceptional procedures been followed. Which is the fifth reasoning with
adequate logic[15]
Where the indemnity amount is concerned the court give its reasoning, is the sixth
consistent point. The court held The essential principle contained in the actual notion of
an illegal act-a principle which seems to be established by international practice and in
particular by the decisions of arbitral tribunals-is that reparation must, as far as possible,
wipe out all the consequences of the illegal act and reestablish the situation which would,
in all probability, have existed if that act had not been committed. Restitution in kind, or, if
this is not possible, payment of a sum corresponding to the value which a restitution in
kind would bear; the award, if need be, of damages for loss sustained which would not be
covered by restitution in kind or payment in place of it-such are the principles which
should serve to determine the amount of compensation due for an act contrary to
international law[16]
Thought the liability, indemnity or reparation as well as state responsibility was not
questioned but M. EHRLICH, Advocate of Poland has raised some point on his dissenting
opinion that the court had ignored some issues as well as some arguments[17] regarding
the jurisdiction of the PCIJ, but as far the documents is concerned it is evident in my
prospect; the court had considered his arguments with explanation. So, it can be
concluded on the question of consideration, that the court did not omit any issues or

arguments. Therefore the decision was nether questioned nor weakened. Moreover, it was
highly appreciated by jurists all over the world.
This case has strengthen the interpretation about the jurisdiction of international law. it
confirms the use of municipal law consistently in international law, but most importantly
this case lead the jurists of international law to have some new thought about state
responsibility and therefore they decided to include the interpretation of the court in the
material source of international law. The light of the present case decision has observed in
Draft Articles on Responsibility of States for Internationally Wrongful Acts, by International
Law Commission[18] and Article 60 of Vienna convention 1969 as well as the Rule 150 of
Geneva convention (1949)[19]
In every sphere of life, there always been another way, it depends on us how we want to
treat it. So I think if I say there was no alternative approach I must be wrong but so far my
limited knowledge sees the approach is very appropriate to the public policy. In my opinion
the decision is very satisfactory as and it could not be any better.
Conclusion:
This extra ordinary case with exclusive interpretation bind the jurists of international law to
have new thoughts about the matters of jurisdiction of international court, state
responsibility, reparation as well as the necessary elements to weight this matter by the of
law. It also give use legal precedent which will be a supportive material for understanding
and analyzation of the cases which is in the nature is similar to the fact or in the matter of
concerning issues regarding the matter of international law but it would not have any
binding force as International Law doesnt consider the previous judgments as binding for
during the judgment of new cases as the international law treats every new case with a
fresh view as every case have its different facts as well as merits, which they think should
considered not being influenced by other case.
----------------------------------------------------------------------------------------------------------------------------------------(28) CASE CONCERNING THE BARCELONA TRACTION,
LIGHT AND POWER COMPANY, LIMITED
(SECOND PHASE)
Judgment of 5 February 1970

In its judgment in the second phase of the case concerning the Barcelona Traction, Light and Power
Company, Limited (New Application: 1962) (Belgium v. Spain), the Court rejected Belgium's claim by
fifteen votes to one.
The claim, which was brought before the Court on 19 June 1962, arose out of the adjudication in
bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada. Its object was to seek
reparation for damage alleged by Belgium to have been sustained by Belgian nationals, shareholders in
the company, as a result of acts said to be contrary to international law committed towards the
company by organs of the Spanish State.
The Court found that Belgium lacked jus standi to exercise diplomatic protection of shareholders in a
Canadian company with respect to measures taken against that company in Spain.
Judges Petrn and Onyeama appended a joint declaration to the Judgment; Judge Lachs appended a
declaration. President Bustamante y Rivero and Judges Sir Gerald Fitzmaurice, Tanka, Jessup, Morelli,
Padilla Nervo, Gros and Ammoun appended Separate Opinions.
Judge ad hoc Riphagen appended a Dissenting Opinion.
Background of Events in the Case
(paras. 8-24 of the Judgment)
The Barcelona Traction, Light and Power Company, Limited, was incorporated in 1911 in Toronto
(Canada), where it has its head office. For the purpose of creating and developing an electric power
production and distribution system in Catalonia (Spain) it formed a number of subsidiary companies, of
which some had their registered offices in Canada and the others in Spain. In 1936 the subsidiary

companies supplied the major part of Catalonia's electricity requirements. According to the Belgian
Government, some years after the first world war Barcelona Traction share capital came to be very
largely held by Belgian nationals, but the Spanish Government contends that the Belgian nationality of
the shareholders is not proven.
Barcelona Traction issued several series of bonds, principally in sterling. The sterling bonds were
serviced out of transfers to Barcelona Traction effected by the subsidiary companies operating in Spain.
In 1936 the servicing of the Barcelona Traction bonds was suspended on account of the Spanish civil
war. After that war the Spanish exchange control authorities refused to authorize the transfer of the
foreign currency necessary for the resumption of the servicing of the sterling bonds. Subsequently,
when the Belgian Government complained of this, the Spanish Government stated that the transfers
could not be authorized unless it were shown that the foreign currency was to be used to repay debts
arising from the genuine importation of foreign capital into Spain and that this had not been established.
In 1948 three Spanish holders of recently acquired Barcelona Traction sterling bonds petitioned the
court of Reus (Province of Tarragona) for a declaration adjudging the company bankrupt, on account of
failure to pay the interest on the bonds. On 12 February 1948 a judgment was given declaring the
company bankrupt and ordering the seizure of the assets of Barcelona Traction and of two of its
subsidiary companies. Pursuant to this judgment the principal management personnel of the two
companies were dismissed and Spanish directors appointed. Shortly afterwards, these measures were
extended to the other subsidiary companies. New shares of the subsidiary companies were created,
which were sold by public auction in 1952 to a newly-formed company, Fuerzas Electricas de Cataluna,
S.A. (Fecsa), which thereupon acquired complete control of the undertaking in Spain.
Proceedings were brought without success in the Spanish courts by various companies or persons.
According to the Spanish Government, 2,736 orders were made in the case and 494 judgments given
by lower and 37 by higher courts before it was submitted to the International Court of Justice. The Court
found that in 1948 Barcelona Traction, which had not received a judicial notice of the bankruptcy
proceedings, and was not represented before the Reus court, took no proceedings in the Spanish
courts until 18 June and thus did not enter a plea of opposition against the bankruptcy judgment within
the time-limit of eight days from the date of publication of the judgment laid down in Spanish legislation.
The Belgian Government contends, however, that the notification and publication did not comply with
the relevant legal requirements and that the eight-day time-limit never began to run.
Representations were made to the Spanish Government by the British, Canadian, United States and
Belgian Governments as from 1948 or 1949. The interposition of the Canadian Government ceased
entirely in 1955.
Proceedings before the International Court and the Nature of the Claim
(paras. 1-7 and 26-31 of the Judgment)
The Belgian Government filed a first Application with the Court against the Spanish Government in
1958. In 1961 it gave notice of discontinuance of the proceedings, with a view to negotiations between
the representatives of the private interests concerned, and the case was removed from the Court's
General List. The negotiations having failed, the Belgian Government on 19 June 1962 submitted to the
Court a new Application. In 1963 the Spanish Government raised four preliminary objections to this
Application. By its Judgment of 24 July 1964, the Court rejected the first and second objections and
joined the third and fourth to the merits.
In the subsequent written and oral proceedings the Parties supplied abundant material and information.
The Court observed that the unusual length of the proceedings was due to the very long time-limits
requested by the Parties for the preparation of their written pleadings and to their repeated requests for
an extension of chose limits. The Court did not find that it should refuse those requests, but it remained
convinced that it was in the interest of the authority of international justice for cases to be decided
without unwarranted delay.
The claim submitted to the Court had been presented on behalf of natural and juristic persons, alleged
to be Belgian nationals and shareholders in Barcelona Traction, a company incorporated in Canada
and having its head office there. The object of the Application was reparation for damage allegedly
caused to those persons by the conduct, said to be contrary to international law, of various organs of
the Spanish State towards that company.
The third preliminary objection of the Spanish Government, which had been joined to the merits, was to
the effect that the Belgian Government lacked capacity to submit any claim in respect of wrongs done
to a Canadian company even if the shareholders were Belgian. The fourth preliminary objection, which
was also joined to the merits, was to the effect that local remedies available in Spain had not been
exhausted.
The case submitted to the Court principally concerned three States, Belgium, Spain and Canada, and it
was accordingly necessary to deal with a series of problems arising out of this triangular relationship.
The Belgian Government's jus standi
(paras. 32-101 of the Judgment)
The Court first addressed itself to the question, raised by the third preliminary objection, which had
been joined to the merits, of the right of Belgium to exercise diplomatic protection of Belgian
shareholders in a company incorporated in Canada, the measures complained of having been taken in
relation not to any Belgian national but to the company itself.
The Court observed that when a State admitted into its territory foreign investments or foreign nationals
it was bound to extend to them the protection of the law and assumed obligations concerning the

treatment to be afforded them. But such obligations were not absolute. In order to bring a claim in
respect of the breach of such an obligation, a State must first establish its right to do so.
In the field of diplomatic protection, international law was in continuous evolution and was called upon
to recognize institutions of municipal law. In municipal law, the concept of the company was founded on
a firm distinction between the rights of the company and those of the shareholder. Only the company,
which was endowed with legal personality, could take action in respect of matters that were of a
corporate character. A wrong done to the company frequently caused prejudice to its shareholders, but
this did not imply that both were entitled to claim compensation. Whenever a shareholder's interests
were harmed by an act done to the company, it was to the latter that he had to look to institute
appropriate action. An act infringing only the company's rights did not involve responsibility towards the
shareholders, even if their interests were affected. In order for the situation to be different, the act
complained of must be aimed at the direct rights of the shareholder as such (which was not the case
here since the Belgian Government had itself admitted that it had not based its claim on an
infringement of the direct rights of the shareholders).
International law had to refer to those rules generally accepted by municipal legal systems. An injury to
the shareholder's interests resulting from an injury to the rights of the company was insufficient to found
a claim. Where it was a question of an unlawful act committed against a company representing foreign
capital, the general rule of international law authorized the national State of the company alone to
exercise diplomatic protection for the purpose of seeking redress. No rule of international law expressly
conferred such a right on the shareholder's national State.
The Court considered whether there might not be, in the present case, special circumstances for which
the general rule might not take effect. Two situations needed to be studied: (a) the case of the company
having ceased to exist, and (b) the case of the protecting State of the company lacking capacity to take
action. As regards the first of these possibilities, the Court observed that whilst Barcelona Traction had
lost all its assets in Spain and been placed in receivership in Canada, it could not be contended that the
corporate entity of the company had ceased to exist or that it had lost its capacity to take corporate
action. So far as the second possibility was concerned, it was not disputed that the company had been
incorporated in Canada and had its registered office in that country, and its Canadian nationality had
received general recognition. The Canadian Government had exercised the protection of Barcelona
Traction for a number of years. If at a certain point the Canadian Government ceased to act on behalf
of Barcelona Traction, it nonetheless retained its capacity to do so, which the Spanish Government had
not questioned. Whatever the reasons for the Canadian Government's change of attitude, that fact
could not constitute a justification for the exercise of diplomatic protection by another government.
It had been maintained that a State could make a claim when investments by its nationals abroad, such
investments being part of a State's national economic resources, were prejudicially affected in violation
of the right of the State itself to have its nationals enjoy a certain treatment. But, in the present state of
affairs, such a right could only result from a treaty or special agreement. And no instrument of such a
kind was in force between Belgium and Spain.
It had also been maintained that, for reasons of equity, a State should be able, in certain cases, to take
up the protection of its nationals, shareholders in a company which had been the victim of a violation of
international law. The Court considered that the adoption of the theory of diplomatic protection of
shareholders as such would open the door to competing claims on the part of different States, which
could create an atmosphere of insecurity in international economic relations. In the particular
circumstances of the present case, where the company's national State was able to act, the Court was
not of the opinion that jus standi was conferred on the Belgian Government by considerations of equity.
The Court's Decision
(paras. 102 and 103 of the Judgment)
The Court took cognizance of the great amount of documentary and other evidence submitted by the
Parties and fully appreciated the importance of the legal problems raised by the allegation which was at
the root of the Belgian claim and which concerned denials of justice allegedly committed by organs of
the Spanish State. However, the possession by the Belgian Government of a right of protection was a
prerequisite for the examination of such problems. Since no jus standi before the Court had been
established, it was not for the Court to pronounce upon any other aspect of the case.
Accordingly, the Court rejected the Belgian Government's claim by 15 votes to 1, 12 votes of the
majority being based on the reasons set out above.

(29 Texaco v Libya)

Brief Fact Summary. A decree which attempted to nationalize all of Texacos (P) rights, interest
and property in Libya was promulgated by Libya (D).

Synopsis of Rule of Law. Whenever reference is been made to general principles of law in the
international arbitration context, it is always held to be a sufficient criterion for the
internationalization of a contract.
Facts. A decree to nationalize all Texacos (P) rights, interest and property in Libya was
promulgated by Libya (D). This action of the Libyan Government led Texaco (P) to request for
arbitration, but it was refused by Libya (D). A sole arbitrator was however appointed by the
International Court of Justice on Texacos request, and Libya (D) was found to have breached
its obligations under the Deeds of Concessions and was also legally bound to perform in
accordance with their terms.
Issue. Whenever reference is being made to general principles of law in the International
arbitration context, can this be held to be a sufficient criterion for the internationalization of a
contract?
Held. Yes. Whenever reference is been made to general principles of law in the international
arbitration context, it is always held to be a sufficient criterion for the internationalization of a
contract. The lack of adequate law in the state considered and the need to protect the private
contracting party against unilateral and abrupt modifications of law in the contracting state is a
justification to the recourse to general principles. Though international law involves subjects of
a diversified nature, legal international capacity is not solely attributable to a state. A private
contracting party, unlike a state, has only a limited capacity and is limited to invoke only those
rights that he derives from his contract.
Discussion. Applying Libyan law or international law in the arbitration proceedings was a
conflict encountered by in this case. Though the contract itself deferred to Libyan law, the court
noted that Libyan law does not preclude the application of international law, but that the two
must be combined in order to verify that Libyan law complies with international law. Even
though the right of a state to nationalize is recognized by international law, this right in itself is
not a sufficient justification not to regard its contractual obligations

(30) BP v Libya

SUMMARY: The facts:On 18 December 1957 the Petroleum Commission of the Government of
Libya, acting in implementation of the Libyan Petroleum Law of 1955, granted Concession 65 to Mr
Hunt, a citizen of the United States. In 1960 the Claimant company, BP Exploration Company (Libya)
Limited, acquired from Mr Hunt an undivided one half interest in Concession 65. The Concession
contained a grant of an exclusive right for 50 years to search for and extract petroleum in a designated
area of Libya, and to sell the oil thus produced. Clause 16 of the Concession provided inter alia that
the contractual rights expressly created by this concession shall not be altered except by mutual consent of the
parties.

Clause 28 of the Concession provided for the settlement of disputes by arbitration and stated that the
Concession
shall be governed by and interpreted in accordance with the principles of law of Libya common to the principles
of international law and in the absence of such common principles then by and in accordance with the general
principles of law, including such of those principles as may have been applied by international tribunals.
Careful consideration has been given to the letter of the Libyan Ministry of Petroleum and Mineral Resources. The Editor reads that
document as a statement of the logical conclusion to be drawn from the premiss stated by the Libyan Ministry and notes without comment
the view of the Ministry that the nationalization measures are not subject to arbitration, that the arbitration proceedings are null and void
and that there thus exists no text of which the Ministry can take notice for the purpose of consenting to publication. The decision to
publish the Award has been taken after consultation with the Sole Arbitrator.
2. On 25 November 1974 BP issued the following statement:
An Agreement has been signed between the Government of the Libyan Arab Republic and BP Exploration Company (Libya) Limited,
which constitutes a full and final settlement of all of the issues outstanding between the Government and the Company, including the issues
arising out of the Government's takeover in December 1971 of the Company's 50% interest in Concession 65.
Included in the Agreement is provision for the Government to make the Company an immediate cash payment of approximately 17.4
million sterling. This figure has been arrived at by deducting from the sum of 62.4 million sterling agreed to be due to the Company,
taxes, royalties and other claims by the Government amounting to 45 million.

On receipt of this payment, the Company has undertaken, among other things, to discontinue its arbitration proceedings against the
Government and to make a further announcement as to its position in respect of oil produced from the Sarir oilfield.
On 31 January 1975 a further statement was issued by BP:
By an Agreement made on 20th November, 1974, BP Exploration Company (Libya) Limited has reached a full and final settlement
with the Libyan Government of all outstanding disputes between them, including the dispute relating to Law No. 115 of 7th December,
1971.
Under the terms of the Agreement the Libyan Government undertook to pay a sum of money to the Company which took into
consideration all outstanding claims between the parties to the Agreement. Payment has now been received by the Company.
Accordingly, the Company hereby notifies all those who may be concerned that no further proceedings will be commenced by it in
respect of crude oil produced from the area of Concession No. 65 in Libya, and with effect from today's date all notices of rights given by
the Company to third parties are hereby withdrawn.

299 53 ILR 297

On 7 December 1971 the Libyan Government passed a law nationalizing the activities of the Claimant
in respect of Concession 65. This was said by the Libyan Government to be in retaliation for certain
actions by the British Government in the Gulf. The Law provided that the State should pay
compensation to be determined within three months by a committee to be appointed by the Minister of
Petroleum. The Committee did not report within that period.
The Claimant started arbitration proceedings on 11 December 1971, contending that the
nationalization amounted to a unilateral and unacceptable repudiation of the Concession. As the Libyan
Government did not respond, the Claimants applied to the President of the International Court of Justice
for the appointment of a sole arbitrator pursuant to the arbitration clause. The President nominated Judge
Lagergren as Sole Arbitrator.
The Claimant asked the Tribunal to declare inter alia that: (i) the Libyan Nationalization Law was a
breach of the Concession; (ii) the breach was ineffective to terminate the Concession; (iii) the Claimant
is entitled to be restored to the full enjoyment of its rights under the Concession;
(iv) the Claimant is the owner of its share of any oil extracted from the Concession area after, as well
as before, the date of nationalization;
(v) the Claimant is entitled to damages.
Held:(inter alia) that: (i) the Nationalization Law was a breach of the Concession; (ii) the
Nationalization Law was effective to terminate the BP Concession except in the sense that the BP
Concession forms the basis of the jurisdiction of the Tribunal and of the right of the Claimant to claim
damages from the Respondent before the Tribunal;
(iii) no declaration could be made that the Claimant is entitled to be restored to the full enjoyment of
its rights under the Concession;
(iv) no declaration could be made that the Claimant is the owner of any oil extracted after the date of
nationalization;
(v) the Claimant is entitled to damages arising from the wrongful act of the Respondent, to be
assessed by the Tribunal in subsequent proceedings.
The Award (Merits) is printed at pp. 300357 below.
Further facts. Shortly after the Award (Merits) the Claimant sought from the Sole Arbitrator
a hearing in order to apply to the Tribunal for a re-opening or continuation of the first stage of the proceedings on
the ground of partial invalidity of the Award by reason of substantive and procedural errors (including the failure
of the Tribunal to accord the Claimant a fair hearing on all questions considered by the Tribunal in its Award)
affecting, in essential respects, the refusal by the Tribunal of the Claimant's requests for Declarations Nos 2 to 6
[i.e. the declarations relating to the continuing validity and effect of the Concession and the consequences
thereof).

The Claimant contended that in holding that the Libyan Nationalization Law was effective to
terminate the Concession the Tribunal had made the error (inter alia) of permitting a party to a contract
by its own breach to put an end to the contract. This, the Claimant asserted, was contrary to the
principles of Libyan law and of international law as well as to general principles of law. The Claimant
also alleged certain procedural defects in the Award. To cure these defects the Claimant urged the
Tribunal to re-open and continue the proceedings on the merits. The Claimant invoked Danish lawas
the law governing the procedure of the arbitrationin support of its contention that the Tribunal might
and should re-open the
proceedings. The Memorandum of the Claimant setting out these contentions is printed at pp. 358374
below.
Held:That the Tribunal's decision rejecting the Claimant's request for declarations relating to the
continuing validity and effect of the concession was final and that, therefore, under Danish law the

Tribunal was not competent to re-open the proceedings. The Award (Competence to re-open First Stage
of Proceedings) is printed at pp. 375388 below.

(31) Saudi Arabia v. Arabian American Oil Company (Aramco)

Facts:

The present case is an arbitration relating to the interpretation of the 1933 Concession Agreement
between the Government of the State of Saudi Arabia (Government) and Aramco giving Aramco exclusive
rights to transport oil extracted from its concession in Saudi Arabia.
Article 1 of the 1933 Concession Agreement provides that The Government hereby grants to the
Company on the terms and conditions hereinafter mentioned, and with respect to the area defined below,
the exclusive right, for a period of 60 years from the effective date hereof to explore, prospect, drill for,
extract, treat, manufacture, transport, deal with, carry away, and export Petroleum Thus, under the
Concession, Aramco has the exclusive right
1. to search for petroleum (explore and prospect)
2. to extract oil (drill for and extract)
3. to refine petroleum and produce its derivatives (treat and manufacture)
4. to transport petroleum, to sell it abroad, and to dispose of it commercially (transport, deal with, carry
away and export)
Article 22 of the 1933 Concession Agreement provides that It is understood, of course, that the Company
has the right to use all means and facilities it may deem necessary or advisable in order to exercise the
rights granted under this contract so as to carry out the purpose of this enterprise
Subsequently, in 1954, the Government concluded the Onassis Agreement which gave the Saudi Arabian
Maritime Tankers. Ltd (Satco) a 30 years right of priority for the transport of Saudi Arab Oil.
The central point in dispute submitted to the Arbitration Tribunal is to determine what rights were conferred
upon Aramco by the Concession Agreement particularly as regards the transport of Saudi Arab oil by
Aramco.
Government argument: The Concession Agreement purports to authorize Aramco to explore areas
supposed to contain oil deposits, and in case of discovery, to extract and produce the oil, but not to
transport by sea. The term transport in Article 1 only contemplated the internal transport from the site
of the extraction to the port of loading or the Ras Tanura refinery for manufacture. It cannot mean external
transport, outside the limits of Saudi Arabia. The exclusive right of transport by sea was not included
within the expectations of the parties, as no express stipulation to this effect was included in the
Agreement.
The Arbitration Tribunal notes the good faith of the Parties as regards the resolution of the case.

ISSUE + RATIO
WON Aramco has the right to transport oil by sea.
YES. The exclusive right to export granted to Aramco necessarily implies the right to transport oil by sea.

The Arbitration Tribunal cannot adopt the argument of the government without straining the meaning of
the texts.
The terms used in Article 1 of the Concession Agreement to indicate the content of Aramcos exclusive
right must be understood in their plain, ordinary and usual sense which is the sense accepted in the oil
industry.
To transport to carry beyond persons or things i.e. from one place to another, whatever the distance
between them. It does not imply and special means of transportation. Consequently it can apply to land,
water or sea transport. In connection with the oil business, the methods adopted by the oil industry cannot
be ignored
o According to principles in interpreting concessions, any restriction on the rights granted by a general
clause must be expressed in a clear and unequivocal manner if it is to be invoked against the
concessionaire. In Article 22, only the transportation by air was expressly excluded. The mere
absence of the words sea transport cannot mean its exclusion.
o The government further claims that the right of transport across boundary of the territorial waters is
granted to the concessionaire in one direction onlywhich is in order to reach Saudi Arabia and not
in order to take its oil and products away from the country.

The arbitration tribunal holds that such contention is not supported by various texts which constitute
the Concession and overlook the practical utility for Aramco to transport oil outside the territorial
waters.
o The 7984 Offshore Agreement provides that Aramco enjoy an exclusive right to transport not only
within the territorial waters, but also across boundary which separates the waters from the high seas.
o Furthermore, it is impossible to imagine that the parties would want to give the concessionaire an
exclusive right to transport restricted to the territorial waters while deny this right as regard
transportation overseas which is the only kind of transportation of real interest to the concessionaire.
o The legal construction resorted to by the Government appears to be contrary to the nature of things,
to the needs of commerce, to the real intention of the parties, as well as the wording of various
agreements pertaining to the concession.
Right to export: this right is disputed by the parties.
o Aramco relies on the Dictionary of Littre contending that it means to transport to a foreign country
products of the soil or of the national industry.
o This corresponds with the definition in the Saudi Arabian Customs Law and Regulations: to export
means to take, send and imported or domestic article destined for a foreign country beyond the
territorial jurisdiction of the Kingdom of Saudi Arabia.
o The Government relies on the Websters Dictionary which defines to export as to carry or send
abroad especially to foreign countries as merchandise or commodities in the way of commerce, thus
concluding that Aramcos exclusive right to export amounts to nothing more than to the right to obtain
an export license without unreasonable interference from the Government, but with no privilege in the
matter of exportation by sea.
o The Arbitration Tribunal does not agree. It cannot be overlooked that the right to export is intimately
connected, in Article 1 of the Concession Agreement, with a more general exclusive right guaranteed
to the exported which included the right to transport to carry away and to deal with.
o The terms in article 1 are couched in the widest terms. Article 22 gives a more specific enumeration of
the technical and material means available to Aramco in order to exercise its exclusive right. The
import of Article 22 would be useless if it did not presuppose the right to transport by sea.
The arbitration Tribunal cannot also overlook the practices and usages of comers known to both Parties at the
o

time of the Agreement unless it is prepared to content itself with abstract reasoning and to lose sight of reality any
of the requirements of the oil industry.

(35)Case Digest: Ang Ladlad LGBT Party vs. Comelec

G.R. No. 190582
April 8, 2010
ANG LADLAD LGBT PARTY vs. COMMISSION ON ELECTIONS
Facts:
Comelec refused to recognize Ang Ladlad LGBT Party, an organization composed
of men and women who identify themselves as lesbians, gays, bisexuals, or transgendered individuals (LGBTs),as a party list based on moral grounds. In the
elevation of the case to the Supreme Court, Comelec alleged that petitioner made
misrepresentation in their application.
Issue:
Whether or not Ang Ladlad LGBT Party qualifies for registration as party-list.
Ruling:
Ang Ladlad LGBT Partys application for registration should be granted.
Comelecs citation of the Bible and the Koran in denying petitioners application was a violation of the nonestablishment clause laid down in Article 3 section 5 of the Constitution. The proscription by law relative to acts
against morality must be for a secular purpose (that is, the conduct prohibited or sought to be repressed is
detrimental or dangerous to those conditions upon which depend the existence and progress of human
society"), rather than out of religious conformity. The Comelec failed to substantiate their allegation that allowing
registration to Ladlad would be detrimental to society.
The LGBT community is not exempted from the exercise of its constitutionally vested rights on the basis of their
sexual orientation. Laws of general application should apply with equal force to LGBTs, and they deserve to
participate in the party-list system on the same basis as other marginalized and under-represented sectors.
Discrimination based on sexual orientation is not tolerated ---not by our own laws nor by any international laws to
which we adhere.

(36) Summary of the Judgment

History of the case and submissions (paras. 1-15)
In its Judgment the Court recalls that on 8 July 1991 Qatar filed 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.
The Court then recites the history of the case. It recalls that in its Application Qatar founded the jurisdiction of the
Court upon two agreements between the Parties stated to have been concluded in December 1987 and
December 1990 respectively, the subject and scope of the commitment to jurisdiction being determined by a
formula proposed by Bahrain to Qatar on 26 October 1988 and accepted by Qatar in December 1990 (the
"Bahraini formula"). Bahrain contested the basis of jurisdiction invoked by Qatar.
By its Judgment of 1 July 1994, the Court found that the exchanges of letters between the King of Saudi Arabia
and the Amir of Qatar dated 19 and 21 December 1987, and between the King of Saudi Arabia and the Amir of
Bahrain dated 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. It fixed 30 November 1994 as the time-limit within which the Parties were jointly or separately to take
action to that end; and reserved any other matters for subsequent decision.
On 30 November 1994, the Agent of Qatar filed in the Registry a document entitled "Act to comply with
paragraphs (3) and (4) of operative paragraph 41 of the Judgment of the Court dated 1 July 1994". In the
document, the Agent referred to "the absence of an agreement between the Parties to act jointly" and declared
that he was thereby submitting to the Court "the whole of the dispute between Qatar and Bahrain, as
circumscribed by the text ... referred to in the 1990 Doha Minutes as the 'Bahraini formula'".
He enumerated the subjects which, in Qatar's view, fell within the Court's jurisdiction:
"1. The Hawar Islands, including the island of Janan;
2. Fasht al Dibal and Qit'at Jaradah;
3. The archipelagic baselines;
4. Zubarah;
5. The areas for fishing for pearls and for fishing for swimming fish and any other matters connected with maritime
boundaries.
It is understood by Qatar that Bahrain defines its claim concerning Zubarah as a claim of sovereignty.
Further to its Application Qatar requests the Court to adjudge and declare that Bahrain has no sovereignty or
other territorial right over the island of Janan or over Zubarah, and 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."
On 30 November 1994, the Registry also received from the Agent of Bahrain a document entitled "Report of the
State of Bahrain to the International Court of Justice on the attempt by the Parties to implement the Court's
Judgment of 1st July, 1994". In that "Report", the Agent stated that his Government had welcomed the Judgment
of 1 July 1994 and understood it as confirming that the submission to the Court of "the whole of the dispute" must
be "consensual in character, that is, a matter of agreement between the Parties". Yet, he observed, Qatar's
proposals had "taken the form of documents that can only be read as designed to fall within the framework of the
maintenance of the case commenced by Qatar's Application of 8th July, 1991"; and, further, Qatar had denied
Bahrain "the right to describe, define or identify, in words of its own choosing, the matters which it wishes
specifically to place in issue", and had opposed "Bahrain's right to include in the list of matters in dispute the item
of 'sovereignty over Zubarah'".
Bahrain submitted observations on Qatar's Act to the Court on 5 December 1994. It said that
"the Court did not declare in its Judgment of 1st July, 1994 that it had jurisdiction in the case brought before it by
virtue of Qatar's unilateral Application of 1991. Consequently, if the Court did not have jurisdiction at that time,
then the Qatari separate Act of 30th November, even when considered in the light of the Judgment, cannot create
that jurisdiction or effect a valid submission in the absence of Bahrain's consent".
A copy of each of the documents produced by Qatar and Bahrain was duly transmitted to the other Party.

-------------------------------------------------------------------------------------------------------------(37) U.S. Supreme Court Air France v. Saks, 470 U.S. 392 (1985)
Syllabus

Article 17 of the Warsaw Convention makes air carriers liable for injuries sustained by a passenger
"if the accident which caused the damage so sustained took place on board the aircraft or in the
course of any of the operations of embarking or disembarking."
Respondent, while a passenger on petitioner's jetliner as it descended to land in Los Angeles on a
trip from Paris, felt severe pressure and pain in her left ear, and the pain continued after the
jetliner landed. Shortly thereafter, respondent consulted a doctor, who concluded that she had

become permanently deaf in her left ear. She then filed suit in a California state court, alleging
that her hearing loss was caused by negligent maintenance and operation of the jetliner's
pressurization system. After the case was removed to Federal District Court, petitioner moved for
summary judgment on the ground that respondent could not prove that her injury was caused by
an "accident" within the meaning of Article 17, the evidence indicating that the pressurization
system had operated in a normal manner. Relying on precedent that defines the term "accident"
in Article 17 as an "unusual or unexpected" happening, the District Court granted summary
judgment to petitioner. The Court of Appeals reversed, holding that the language, history, and
policy of the Warsaw Convention and the Montreal Agreement (a private agreement among
airlines that has been approved by the Federal Government) impose absolute liability on airlines
for injuries proximately caused by the risks inherent in air travel; and that normal cabin pressure
changes qualify as an "accident" within the definition contained in Annex 13 to the Convention on
International Civil Aviation as meaning "an occurrence associated with the operation of an
aircraft."
Held: Liability under Article 17 arises only if a passenger's injury is caused by an unexpected or
unusual event or happening that is external to the passenger, and not where the injury results
from the passenger's own internal reaction to the usual, normal, and expected operation of the
aircraft, in which case it has not been caused by an accident under Article 17. Pp. 470 U. S. 396408.
(a) The text of the Warsaw Convention suggests that the passenger's injury must be so caused.
The difference in the language of Article 17, imposing liability for injuries to passengers caused by
an "accident" and
Article 18, imposing liability for destruction or loss of baggage by an "occurrence," implies that the
drafters of the Convention understood the word "accident" to mean something different than the
word "occurrence." Moreover, Article 17 refers to an accident which caused the passenger's injury,
and not to an accident which is the passenger's injury. The text thus implies that, however
"accident" is defined, it is the cause of the injury that must satisfy the definition, rather than the
occurrence of the injury alone. And, since the Warsaw Convention was drafted in French by
continental jurists, further guidance is furnished by the French legal meaning of "accident" -- when
used to describe a cause of injury, rather than the event of injury -- as being a fortuitous,
unexpected, unusual, or unintended event. Pp. 397-400.
(b) The above interpretation of Article 17 is consistent with the negotiating history of the Warsaw
Convention, the conduct of the parties thereto, and the weight of precedent in foreign and
American courts. Pp. 470 U. S. 400-405.
(c) While any standard requiring courts to distinguish causes that are "accidents" from causes that
are "occurrences" requires drawing a line that may be subject to differences as to where it should
fall, an injured passenger is only required to prove that some link in the chain of causes was an
unusual or unexpected event external to the passenger. Enforcement of Article 17's "accident"
requirement cannot be circumvented by reference to the Montreal Agreement. That Agreement,
while requiring airlines to waive "due care" defenses under Article 20(1) of the Warsaw
Convention, did not waive Article 17's "accident" requirement. Nor can enforcement of Article 17
be escaped by reference to the equation of "accident" with "occurrence" in Annex 13, which, with
its corresponding Convention, expressly applies to aircraft accident investigations, and not to
principles of liability to passengers under the Warsaw Convention. Pp. 470 U. S. 405-408.

--------------------------------------------------------------------------------------------------------------

(39) Public International Law: Plaridel M. Abaya vs. Hon. Secretary

Hermogenes E. Ebdane, Jr.G. R. No. 167919 February 14, 2007
G. R. No. 167919
February 14, 2007

Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.

FACTS:
On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and Highways (DPWH)
issued a Resolution No. PJHL-A-04-012. It was approved by DPWH Acting Secretary Florante Soriquez. This
resolution recommended the award to China Road & Bridge Corporation of the contract for the implementation
of civil works for Contract Package No. I (CP I), which consists of the improvement/rehabilitation of the San
Andres-Virac-Jct. Bago-Viga road, with the lengt of 79.818 kilometers, in the island province of Catanduanes.
This Loan Agreement No. PH-204 was executed by and between the JBIC and the Philippine Government
pursuant to the exchange of Notes executed by and between Mr. Yoshihisa Ara, Ambassador Extraordinary and
Plenipotentiary of Japan to the Philippines, and then Foreign Affairs Secretary Siazon, in behalf of their
respective governments.
ISSUE:
Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine Government is a kind of a
treaty.
HELD:
The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated December 27, 1999
between the Japanese Government and the Philippine Government is an executive agreement.
An exchange of notes is a record of a routine agreement that has many similarities with the private law
contract. The agreement consists of the exchange of two documents, each of the parties being in the
possession of the one signed by the representative of the other.
treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus
vivendi and exchange of notes all are refer to international instruments binding at international law.
Although these instruments differ from each other by title, they all have common features and international
law has applied basically the same rules to all these instruments. These rules are the result of long practice
among the States, which have accepted them as binding norms in their mutual relations. Therefore, they are
regarded as international customary law.
That case was dismissed by the SCORP last Feb. 14 2007.
What the petitioners wanted was that Foreign funded projects also undergo the procurement process.
The dismissal of the case somehow gave justification for the delay of the implementing rules for foreign funded
projects (IRR-B) of the procurement law If we recall the decision of the Abaya vs Ebdane was used by the DOJ
when the DOTC Secretary was asking for an opinion from the former, during the ZTE controversy.as ruled by the
Supreme Court in Abaya v. Ebdane, an exchange of notes is considered a form of an executive agreement,
which
becomes
binding
through
executive
action
without
need
of
a
vote
by
the
Senate and that (like treaties and conventions, it is an international instrument binding at international law,
The second issue involves an examination of the coverage of Republic Act No. 9184, otherwise known as the
Government Procurement Reform Act. Section 4 of the said Act provides that it shall
apply to: the Procurement of infrastructure Projects, Goods and Consulting Services, regardless of source of
funds, whether local or foreign, by all branches and instrumentalities of government, its departments, offices
and agencies, including government-owned and/or -controlled corporations and local government units,
subject to the provisions of Commonwealth Act No. 138. Any treaty or international or executive agreement
affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed.

-------------------------------------------------------------------------------------------------------------(40) DBM vs. Kolonwel G.R. No. 175608 June 8,2007

July 25, 2009 at 11:46 am (1)

FACTS : This is a petition for review, with a prayer for temporary restraining order to nullify
and set aside the Order dated Dec. 04, 2006 of the Manila RTC.
In the middle of 2005, DepEd requested the services of the DBM-PS to undertake
procurement project which is to be jointly funded by the World Bank (WB), thru the Second
Social Expenditure Management Program (SEMP2) of the RP-IBRD Loan Agreement No.
7118-PH and the Asian Development Bank (ABD) thru SEDIP Loan No. 1654-PHI. In October
2005, the DBM-PS called for a bidding for the supply of the Makabayan textbooks and
teachers manuals. Of the entities, foreign and local, only eleven (11) bidders submitted,
including private respondent Kolonwel.
Following the bid and the book content/body evaluation process, DBM committee issued a
resolution disqualifying, among others, Kolonwel for failure in cover stock testing .
Kolonwel was informed of this and subsequently filed with RTC Manila a special civil action
for certiorari with a prayer for TRO. In support of its TRO application, Kolonwel alleged,
among other things, that the supply-awardees were rushing with the implementation of
the void supply contracts to beat the closing-date deadline. After summary hearing, the

Manila RTC issued a 20-day TRO, and later issued a decision wherein Resolution 001-2006A of the DBM was annulled and set aside. Hence this petition.
ISSUE : Will the petition prosper?
RULING : The petition is granted and the assailed decision of the Manila RTC is hereby
nullified and set aside.
Under the fundamental international principle of pacta sunt servanda, the RP, as borrower
bound itself to perform in good faith the duties and obligations under Loan No. 7118-PH.
Applying this postulate, the DBM IABAC, was legally obliged to comply with, or accord
primacy to the WB guidelines on the conduct and implementation of the
bidding/procurement process in question.
Foreign loan agreements with international financial institutions, such as Loan No. 7118PH, partake of an executive or international agreement within the purview of Sec. 4 of
RA9184. Significantly, whatever was stipulated in the loan agreement, shall primarily
govern the procurement of goods necessary to implement the main project.

(42) Lim vs. Executive Secretary G.R. No. 151445 April 11, 2002
July 25, 2009 at 12:11 pm (1)
FACTS : Beginning 2002, personnel from the armed forces of the United States started
arriving in Mindanao, to take part, in conjunction with the Philippine military, in Balikatan
02-1. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual
Defense Treaty, a bilateral defense agreement entered into by the Philippines and the
United States in 1951.
On Feb. 2002, Lim filed this petition for certiorari and prohibition, praying that respondents
be restrained from proceeding with the so-called Balikatan 02-1, and that after due
notice and hearing, judgment be rendered issuing a permanent writ of injuction and/or
prohibition against the deployment of US troops in Basilan and Mindanao for being illegal
and in violation of the Constitution.
Petitioners contend that the RP and the US signed the Mutual Defense Treaty to provide
mutual military assistance in accordance with the constitutional processes of each
country only in the case of a armed attack by an external aggressor, meaning a third
country, against one of them. They further argued that it cannot be said that the Abu
Sayyaf in Basilan constitutes an external aggressor to warrant US military assistance in
accordance with MDT of 1951. Another contention was that the VFA of 1999 does not
authorize American soldiers to engage in combat operations in Philippine territory.
ISSUE : Whether or not the Balikatan 02-1 activities are covered by the VFA.
RULING : Petition is dismissed. The VFA itself permits US personnel to engage on an
impermanent basis, in activities, the exact meaning of which is left undefined. The sole
encumbrance placed on its definition is couched in the negative, in that the US personnel
must abstain from any activity inconsistent with the spirit of this agreement, and in
particular, from any political activity.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
logical to assume that Balikatan 02-1 a mutual anti terrorism advising assisting and
training exercise falls under the umbrella of sanctioned or allowable activities in the
context of the agreement. Both the history and intent of the Mutual Defense Treaty and
the VFA support the conclusion that combat-related activities as opposed to combat itself
such as the one subject of the instant petition, are indeed authorized.

--------------------------------------------------------------------------------------------------------------

(43) Bayan vs Zamora

Facts: The United States panel met with the Philippine panel to discussed, among others,
the possible elements of the Visiting Forces Agreement (VFA). This resulted to a series of
conferences and negotiations which culminated on January 12 and 13, 1998. Thereafter,
President Fidel Ramos approved the VFA, which was respectively signed by Secretary
Siazon and United States Ambassador Thomas Hubbard.
Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the senate
approved it by (2/3) votes.
Cause of Action: Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987
constitution is applicable and not Section 21, Article VII.
Following the argument of the petitioner, under they provision cited, the foreign military
bases, troops, or facilities may be allowed in the Philippines unless the following
conditions are sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required by congress, and
c) recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is applicable so that,
what is requires for such treaty to be valid and effective is the concurrence in by at least
two-thirds of all the members of the senate.
ISSUE: Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article
XVIII of the Constitution?
HELD: Section 25, Article XVIII, which specifically deals with treaties involving foreign
military bases, troops or facilities should apply in the instant case. To a certain extent and
in a limited sense, however, the provisions of section 21, Article VII will find applicability
with regard to the issue and for the sole purpose of determining the number of votes
required to obtain the valid concurrence of the senate.
The Constitution, makes no distinction between transient and permanent. We find
nothing in section 25, Article XVIII that requires foreign troops or facilities to be stationed
or placed permanently in the Philippines.
It is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a
treaty.

-------------------------------------------------------------------------------------------------------------(44) Pimentel v. Executive Secretary Digest

Facts:

1. The petitioners filed a petition for mandamus to compel the Office of the Executive Secretary and
the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the
International Criminal Court to the Senate of the Philippinesfor its concurrence pursuant to Sec. 21,
Art VII of the 1987 Constitution.
2. The Rome Statute established the Int'l Criminal Court which will have jurisdiction over the most
serious crimes as genocide, crimes against humanity, war crimes and crimes of aggression as
defined by the Statute. The Philippines through the Chargie du Affairs in UN. The provisions of the
Statute however require that it be subject to ratification, acceptance or approval of the signatory
state.

3. Petitioners contend that ratification of a treaty, under both domestic and international law, is a
function of the Senate, hence it is the duty of the Executive Department to transmit the signed copy
to the senate to allow it to exercise its discretion.
Issue: Whether or not the Exec. Secretary and the DFA have the ministerial duty to transmit
to the Senate the copy of the Rome Statute signed by a member of the Philippine mission to the
U.N. even without the signature of the President.
The Supreme Court held NO.
1. The President as the head of state is the sole organ and authorized in the external relations and he
is also the country's sole representative with foreign nations, He is the mouthpiece with respect to
the country's foreign affairs.
2. In treaty-making, the President has the sole authority to negotiate with other states and enter into
treaties but this power is limited by the Constitution with the 2/3 required vote of all the members of
the Senate for the treaty to be valid. (Sec. 21, Art VII).
3. The legislative branch part is essential to provide a check on the executive in the field of foreign
relations, to ensure the nation's pursuit of political maturity and growth.

-------------------------------------------------------------------------------------------------------------JOVITO SALONGA, WIGBERTO TAADA, JOSE DE LA RAMA, EMILIO CAPULONG, HARRY

ROQUE, JR., FLORIN HILBAY, and BENJAMIN POZON (petitioners) v DANIEL SMITH, SEC.
RAUL GONZALEZ, PRESIDENTIAL LEGAL COUNSEL SERGIO APOSTOL, SEC. RONALDO
PUNO, SEC. ALBERTO ROMULO (respondents)1

(45) February 11, 2009 | Azcuna, J.

Sources of International Law
Leigh

SUPERFACTS: Smith the rapist in the Subic Rape case was moved from Makati City Jail to a detention cell in the
US Embassy in Manila. This arrangement was done pursuant to two Romulo-Kenney Agreements, which were
contended by respondents to have been made pursuant of the VFA. Petitioners contend that the Philippines
should have custody over Smith because in the first place the VFA is void, in that it was concurred in by the
Philippine Senate but NOT by the US Senate, making it not a valid treaty.

The Court ruled that it is not necessary in all cases that the Senate of the foreign state concurs in the treaty.
Moreover, the VFA was created to implement the RP-US Mutual Defense Treaty, which was ratified by both
Senates! Also, the provision in the VFA that allows the custody of any US personnel to reside in US military
authorities DOES NOT curtail the powers of the judiciary as stated in the constitution. BUT the Romulo-Kenney
Agreements were found to be not in accord with the VFA, which clearly states that detention by Philippine
authorities shall be agreed upon by both parties meaning the detention has to be by a Philippine
authority. xxxxxxxx

FACTS:
-

Respondent Lance Corporal Daniel Smith is a member of the US Armed Forces, charged with
rape committed against a Filipina, petitioner herein, on November 1, 2005.

1 BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. Carol Araullo; GABRIELA,

represented by Emerenciana de Jesus; BAYAN MUNA, represented by Rep. Satur Ocampo;
GABRIELA WOMEN'S PARTY, represented by Rep. Liza Maza; KILUSANG MAYO UNO (KMU),
represented by Elmer Labog; KILUSANG MAGBUBUKID NG PILIPINAS (KMP), represented by Willy
Marbella; LEAGUE OF FILIPINO STUDENTS (LFS), represented by Vencer Crisostomo; and THE
PUBLIC INTEREST LAW CENTER, represented by Atty. Rachel Pastores (petitioners) v PRESIDENT
GLORIA MACAPAGAL-ARROYO, in her capacity as concurrent Defense Secretary, EXECUTIVE
SECRETARY EDUARDO ERMITA, FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, JUSTICE
SECRETARY RAUL GONZALEZ, AND INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO
PUNO (respondents)

The accused Smith, Ssgt. Chad Brian Carpenter, Dominic Duplantis, Keith Silkwood, and Timoteo
Soriano, Jr., were charged with the crime of rape:
o That on or about the 1st day of November 2005, inside the Subic Bay Freeport Zone, Olongapo
City the above-named accused, being then members of the United States Marine Corps,
except Timoteo L. Soriano, Jr., conspiring, confederating together and mutually helping one
another, with lewd design and by means of force, threat and intimidation, with abuse of
superior strength and taking advantage of the intoxication of the victim, did then and there
willfully, unlawfully and feloniously sexually abuse and have sexual intercourse with Suzette S.
Nicolas, a 22-year old unmarried woman inside a Starex Van and driven by accused Timoteo
L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas

Pursuant to the Visiting Forces Agreement between the RP and the US entered into on
Feb. 10 1998, the US, at its request, was granted custody of defendant Smith pending
proceedings.
RTC (Makati): acquitted Carpenter, Silkwood and Duplantis, but found Smith guilty;
sentenced him to suffer the penalty of reclusion perpetua + accessory penalties.
o Pursuant to Art. V, par. 10 of the VFA, Smith shall serve his sentence in facilities to be
agreed upon by Philippine and US authorities, and temporarily committed to the
Makati City Jail
o Smith to indemnify Suzette Nicolas P50k as compensatory damages, plus P50k moral
damages
December 29 2006: However, Smith was taken out of the Makati jail by Philippine law
enforcement agents, purportedly acting under orders of the Department of the Interior and
Local Government, and brought to a facility for detention under the control of the US
government, provided for under new agreements between the RP and US:

o
o

Romulo-Kenney Agreement of December 19 2006: The RP Government and the US

Government agree that, in accordance with the VFA, Smith be returned to US military custody
at the US Embassy in Manila
Romulo-Kenney Agreement of December 22 2006: The Department of Foreign Affairs and the
US Embassy agree that, in accordance with the VFA upon transfer of Smith from the Makati
City Jail, he will be detained at the US Embassy Compound in a room of approximately 10 x 12
square feet. He will be guarded round the clock by U.S. military personnel. The Philippine
police and jail authorities will have access to the place of detention

January 2 2007: Matter was brought to the CA, which dismissed the petition for being moot.
Petition for certiorari was filed.
o Petitioners contend that the Philippines should have custody over Smith because the
VFA is void and unconstitutional (this issue has been raised before, but the Court
resolved in favor of its constitutionality in Bayan v Zamora)

ISSUE: Is the VFA constitutional? YES, but the Romulo-Kenney Agreements are not in accordance
with the VFA

RULING: Petitions PARTLY GRANTED, CA decision MODIFIED. VFA upheld as constitutional, but the
Romulo-Kenney Agreements are declared NOT IN ACCORDANCE with the VFA. Respondent secretary
of Foreign Affairs is ordered to negotiate with the US for the agreement on detention facilities under
Philippine authorities as provided in Art. V, Sec. 10 of the VFA.

HELD:
1) BACKGROUND!!! Art. XVIII (Transitory Provisions), sec. 25: After the expiration in 1991 of the

Agreement between the Philippines and the United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty
duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes
cast by the people in a national referendum held for that purpose, and recognized as a treaty by the
other contracting State.

o
o

This provision was made due to Philippine experience with the US military bases in
the country: Under the Philippine Bill of 1902, the US agreed to cede to the
Philippines all the territory it acquired from Spain under the Treaty of Paris, except
certain naval ports and military bases, which the US retained for itself. This meant
that Clark and Subic and other places in the Philippines covered by the RP-US Military
Bases Agreement of 1947 were not Philippine territory. HOWEVER, the RP-US Military
Bases Agreement was NEVER ratified by the US Senate a disparity in treatment
because the Philippines regarded it as a treaty, and had it concurred by OUR senate!!
Bitches.
Anyway, the US subsequently turned over and ceded these bases to the Philippines
upon the expiration of the RP-US Military Bases Agreement in 1991. The provision (^)
was then adopted in the 1987 Constitution.
The provision is designed to ensure that any agreement allowing the presence of
foreign military bases in our territory shall be equally binding on the Philippines and
the foreign sovereign State. This is to prevent a recurrence of the situation in which
the terms and conditions governing the presence of foreign armed forces in OUR
territory were binding upon us but not the foreign State.

Back to VFA stuff! Court found that the presence of the US Armed Forces was
allowed under the VFA for two reasons.
FIRST, as held in Bayan v Zamora, the VFA was duly concurred in by the Philippine Senate,
and has been recognized as a treaty by the US. But
o The fact that the VFA was not submitted for advice and consent of the US Senate,
does not detract from its status as a binding international agreement or treaty
recognized by the said Sate. This is a matter of internal US law.
o Submitting agreements that are policymaking in nature to the Senate for advice and
consent may well be an internationally known practice. But when they are only for
carrying out these policymaking agreements, it can merely be submitted to the
Congress, under the provisions of the CaseZablocki Act, within 60 days from
ratification.
SECOND: This has to do with the relation between the VFA and the RP-US Mutual Defense
Treaty of August 30 1951 (the whole agreement is reproduced in the case).
o

The agreement basically states that the two nations are to settle international disputes by
peaceful means, to aid each other to resist armed attack, and that an armed attack on one
party is deemed to include an armed attack on the metropolitan territory of the other, etc

The VFA in effect is just an implementing agreement to the main RP-US Military
Defense Treaty!

It was even in the Preamble of the VFA! The government of the US of A and the
government of the RP reaffiriming their obligations under the Mutual Defense Treaty
of August 30 1951

Thus, as an implementing agreement of the RP-US Mutual Defense Treaty, it

was not necessary to submit the VFA to the US Senate for advice and
consent, but merely to the US Congress under the Case-Zablocki Act within
60 days of its ratification.
o It is for this reason that the US has certified that it recognizes the VFA as a binding
international agreement, i.e. a treaty, and this substantially complies with the
requirements of Art. XVIII, sec. 25 of our constitution.
o The constitutional provision is complied with by virtue of the fact that the presence of
the US Armed Forces through the VFA is a presence allowed under the RP-US
Mutual Defense Treaty, which was ratified by both Senates.
2) The VFA being a valid and binding agreement, the parties are requires as a matter of
international law to abide by its terms. It says that in cases of offenses committed by the
members of the US Armed Forces in the Philippines (sorry I will copy paste the provision)
o

Art. V. Criminal Jurisdiction. 6. The custody of any United States personnel over whom the
Philippines is to exercise jurisdiction shall immediately reside with United States military
authorities, if they so request, from the commission of the offense until completion of all
judicial proceedings. United States military authorities shall, upon formal notification by the
Philippine authorities and without delay, make such personnel available to those authorities in
time for any investigative or judicial proceedings relating to the offense with which the person
has been charged. In extraordinary cases, the Philippine Government shall present its position
to the United States Government regarding custody, which the United States Government shall
take into full account. In the event Philippine judicial proceedings are not completed within one
year, the United States shall be relieved of any obligations

Petitioners argue that to allow the transfer of custody of an accused to a foreign

power is to provide for a different rule of procedure for that accused, in violation of
Art. VIII, sec. 5(5)2 and Art. III, sec. 1. (equal protection clause.)
The Court finds no violation of the Constitution. The equal protection clause is not violated
because there is substantial basis for a different treatment of a member of a foreign military
armed forces allowed to enter our territory, and all other accused.
The rule in international law is that foreign armed forces allowed to enter ones territory is
immune from local jurisdiction, except to the extent agreed upon.
The situation involved is not one in which the power of this Court to adopt rules of
procedure is curtailed, but rather one in which the laws (including rules of
procedure) of one State do not extend or apply except to the extent agreed
upon to subjects of another State due to the recognition of extraterritorial
immunity given to such bodies as visiting foreign armed forces.
Nothing in the Constitution prohibits such agreements recognizing immunity from
jurisdiction in relation to long-recognized subjects of such immunity like Heads of State,
diplomats and members of the armed forces contingents of a foreign State allowed to enter
another States territory. On the contrary, the Constitution states that the Philippines
adopts the generally accepted principles of international law as part of the law of
the land. (Art. II, Sec. 2).
HOWEVER, the Court finds that there is a different treatment when it comes to detention as
against custody. The moment the accused has to be detained (e.g. after conviction), the rule
that governs is Sec. 10 of the same article of the VFA:
o

The confinement or detention by Philippine authorities of United States personnel shall be

carried out in facilities agreed on by appropriate Philippines and United States authorities.
United States personnel serving sentences in the Philippines shall have the right to visits and
material assistance.

It is clear that the parties to the VFA recognized the difference between custody during the
trial and detention after conviction, because they provided for a specific arrangement to

cover detention. And this specific arrangement clearly states not only that the
detention shall be carried out in facilities agreed on by authorities of both
parties, but also that the detention shall be "by Philippine authorities." Therefore,
the Romulo-Kenney Agreements of December 19 and 22, 2006, which are
agreements on the detention of the accused in the United States Embassy, are
not in accord with the VFA itself because such detention is not "by Philippine
authorities."
3) Final points:
- VFA is a self-executing agreement, because the parties intend its provisions to be
enforceable, precisely because the Agreement is intended to carry out obligations under the
RP-US Mutual Defense Treaty.
- VFA is covered by implementing legislation, namely, the Case-Zablocki Act, because it is the
very purpose of the US Congress that executive agreements registered under this Act within
60 days from their ratification be immediately implemented.
o Different from Vienna Convention on Consular Relations and the Avena decision of
the International Court of Justice, as those are not self-executing
- The RP-US Mutual Defense Treaty was advised and consented to by the US Senate, as
reflected in the US Congressional Record.
o The framers of the constitution were aware that the application of the international
law in domestic courts varies from country to country. Some countries require
legislation whereas others do not.
o It was not the intention of the framers of the 1987 constitution in adopting art. XVIII
sec. 25 to require the other contracting state to convert their system to achieve
alignment and parity with ours. What was required was that the treaty be recognized
as a treaty.
o There are 3 types of treaties in the American system:
Art. II, sec. 2 treaties: advised and consented to b the US Senate
Executive-congressional agreements: joint agreements of the president and
congress and need not be submitted to the senate
Sole executive agreements: entered into by the president, submitted within 60
days of ratification under the provisions of the Case-Zablocki Act, after which
they are recognized by the congress and may be implemented
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+++++++++++++++++++++++++++++++++
(48) CASE CONCERNING UNITED STATES DIPLOMATIC AND
CONSULAR STAFF IN TEHRAN
Judgment of 24 May 1980
In its Judgment in the case concerning United States Diplomatic and Consular Staff in Tehran, the Court decided (1) that Iran has
violated and is skill violating obligations owed by it to the United States; (2) that these violations engage Iran's responsibility; (3) that
the Government of Iran must immediately release the United States nationals held as hostages and place the premises of the
Embassy in the hands of the protecting power; (4) that no member of the United States diplomatic or consular staff may be kept in
Iran to be subjected to any form of judicial proceedings or to participate in them as a witness; (5) that Iran is under an obligation to
make reparation for the injury caused to the United States, and (6) that the form and amount of such reparation, failing agreement
between the parties, shall be settled by the Court. (The full text of the operative paragraph is reproduced below.)
These decisions were adopted by large majorities: (1) and (2) - 13 votes to 2; (3) and (4) - unanimously; (5) - 12 votes to 3; (6) - 14
votes to 1 (the votes are recorded by name below).
-

The Facts (paras. 11-32)

The Court expresses regret that Iran did not appear before it to put forward its arguments. The absence of Iran from the
proceedings brought into operation Article 53 of the Statute, under which the Court is required, before finding in the
Applicant's favour, to satisfy itself that the allegations of fact on which the claim is based are well founded.
In that respect the Court observes that it has had available to it, in the documents presented by the United States, a massive
body of information from various sources, including numerous official statements of both Iranian and United States
authorities. This information, the Court notes, is wholly concordant as to the main facts and has all been communicated to
Iran without evoking any denial. The Court is accordingly satisfied that the allegations of fact on which the United States
based its claim were well founded.
Admissibility (paras. 33-44)
Under the settled jurisprudence of the Court, it is bound, in applying Article 53 of its Statute, to investigate, on its own
initiative, any preliminary question of admissibility or jurisdiction that may arise.
On the subject of admissibility, the Court, after examining the considerations put forward in the two letters from Iran, finds
that they do not disclose any ground for concluding that it could not or should not deal with the case. Neither does it find any
incompatibility with the continuance of judicial proceedings before the Court in the establishment by the Secretary-General
of the United Nations, with the agreement of both States, of a Commission given a mandate to undertake a fact-finding
mission to Iran, hear Iran's grievances and facilitate the solution of the crisis between the two countries.

(49) Avena case

The Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), more
commonly the Avenacase (French: Affaire Avena), was a case heard before the International Court of
Justice (ICJ). In its judgment of 31 March 2004, the Court found that the United States had breached its
obligations under the Vienna Convention on Consular Relations in not allowing legal representation from
the Mexican consulate to meet with Mexican citizens arrested and imprisoned for crimes in the United
States.
An order indicating provisional measures in the case of Mr. Jos Ernesto Medelln Rojas was entered on 16
July 2008, and on 19 January 2009 the ICJ found that the United States breached its obligations under the
16 July order, but also that the Statute of the International Court of Justice "does not allow it to consider
possible violations of the Judgment which it is called upon to interpret." [1][2]
In the subsequent domestic American litigation in Medelln v. Texas, the United States Supreme
Court (the court of last resortconcerning federal rights and international obligations) held that the United
States Congress had not implemented laws to enable redress of violations of the Vienna Convention on
Consular Relations, or to enable enforcement of decisions of the International Court of Justice, and hence
the President of the United States could not do so.
On 9 January 2003, Mexico filed a lawsuit against its neighbor, the United States of America, accusing the
US of violating the Vienna Convention on Consular Relations by arresting, detaining, trying, convicting, and
sentencing 54 Mexican nationals to death row without allowing Mexico its international legal obligations in
accordance with Articles 5 and 36 of the Vienna Convention. In light of the violation committed by the United
States, Mexico demanded that the US restore the status quo ante and take the necessary steps to ensure
that the rights afforded under Article 36 are provided. Mexico also submitted a request to the court indicating
provisional measures in order to protect the rights of its citizens after the final judgment in the case,
including that the government of the United States must ensure that no Mexican national be executed or
have an execution date set for a Mexican national.
The United States admitted that in certain cases, Mexican nationals have been prosecuted and sentenced
without being informed of their rights, but in other cases, in accordance with the ICJ's judgment in
the LaGrand case, the US had an obligation "by means of its own choosing, (to) allow the review and
consideration of the conviction and sentence by taking account of the violation of the rights set forth in that
Convention." In those cases, review and reconsideration had already occurred throughout the last two
years. The US also pointed out that if the court granted Mexico's request to halt execution for its nationals, it
would install a sweeping prohibition on capital punishment in the United States for any and all Mexican
nationals, thus interfering in the US's sovereign rights and would "transform the court into a general criminal
court of appeal".
Of the 54 cases presented to the court, three were most focused upon. Three Mexican nationals, Csar
Roberto Fierro Reyna, Roberto Moreno Ramos, and Osvaldo Torres Aguilera were at risk of execution in the
next few months or possibly weeks. The court recognized that their execution would cause irreparable
prejudice and implemented provisional measures by prohibiting the United States to proceed with their
execution pending the final judgment in the case.
At the beginning of the proceedings, the United States raised several objections over the jurisdiction of the
court as well as admissibility, each dismissed by the court as being a matter for the merits. In the first of
Mexico's submissions, it asked the court to 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.
There were two major issues under Article 36 that were being disputed by the two parties: the question of
the nationalities of the individuals being executed as well as the meaning of the phrase "without delay".
The court wanted Mexico to produce proof that each of the individuals presented in the case held Mexican
nationality at the time of their arrest, such as birth certificates or declarations of nationality, which would not
be challenged by the United States. The US in turn had to produce proof that showed the persons of
Mexican nationality were also United States citizens. In closer examination of the cases, the court revealed
that in 45 of them, there was no evidence that the arrested individual claimed US nationality or were
reasonably thought to be US nationals. Of the seven remaining cases, Mexico failed to prove a violation in
only one. In another case, the court found that the individual was informed of their rights under Article 36 but
had declined to have his consular post notified.
After months of debate, the court concluded that in 51 of the cases, excluding those of Csar Roberto Fierro
Reyna, Roberto Moreno Ramos, and Osvaldo Torres Aguilera, the United States had breached their
obligation as set forth under Article 36 paragraph 1 of the Vienna Convention on Consular Relations by not
informing the appropriate Mexican consular post without delay. By not doing so, the US had also deprived
Mexico of the right to provide assistance to its nationals. In regards to Csar Roberto Fierro Reyna, Roberto
Moreno Ramos, and Osvaldo Torres Aguilera, by not allowing a review and reconsideration of their
convictions and sentences, the United States also violated Article 36, paragraph 2 of the Convention. As
reparation in this case, the United States of America was ordered to provide review and reconsideration of

convictions and sentences of the Mexican nationals and implement specific measures to ensure nonrepetition.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+++++++++++++++++++++++++++++++++
(51) CASE CONCERNING THE BARCELONA TRACTION,
LIGHT AND POWER COMPANY, LIMITED
(SECOND PHASE)
Judgment of 5 February 1970

The Barcelona Traction, Light and Power Company, Limited, was incorporated in 1911 in Toronto
(Canada), where it has its head office. For the purpose of creating and developing an electric power
production and distribution system in Catalonia (Spain) it formed a number of subsidiary companies, of
which some had their registered offices in Canada and the others in Spain. In 1936 the subsidiary
companies supplied the major part of Catalonia's electricity requirements. According to the Belgian
Government, some years after the first world war Barcelona Traction share capital came to be very
largely held by Belgian nationals, but the Spanish Government contends that the Belgian nationality of
the shareholders is not proven.
Barcelona Traction issued several series of bonds, principally in sterling. The sterling bonds were
serviced out of transfers to Barcelona Traction effected by the subsidiary companies operating in Spain.
In 1936 the servicing of the Barcelona Traction bonds was suspended on account of the Spanish civil
war. After that war the Spanish exchange control authorities refused to authorize the transfer of the
foreign currency necessary for the resumption of the servicing of the sterling bonds. Subsequently,
when the Belgian Government complained of this, the Spanish Government stated that the transfers
could not be authorized unless it were shown that the foreign currency was to be used to repay debts
arising from the genuine importation of foreign capital into Spain and that this had not been established.
In 1948 three Spanish holders of recently acquired Barcelona Traction sterling bonds petitioned the
court of Reus (Province of Tarragona) for a declaration adjudging the company bankrupt, on account of
failure to pay the interest on the bonds. On 12 February 1948 a judgment was given declaring the
company bankrupt and ordering the seizure of the assets of Barcelona Traction and of two of its
subsidiary companies. Pursuant to this judgment the principal management personnel of the two
companies were dismissed and Spanish directors appointed. Shortly afterwards, these measures were
extended to the other subsidiary companies. New shares of the subsidiary companies were created,
which were sold by public auction in 1952 to a newly-formed company, Fuerzas Electricas de Cataluna,
S.A. (Fecsa), which thereupon acquired complete control of the undertaking in Spain.
Proceedings were brought without success in the Spanish courts by various companies or persons.
According to the Spanish Government, 2,736 orders were made in the case and 494 judgments given
by lower and 37 by higher courts before it was submitted to the International Court of Justice. The Court
found that in 1948 Barcelona Traction, which had not received a judicial notice of the bankruptcy
proceedings, and was not represented before the Reus court, took no proceedings in the Spanish
courts until 18 June and thus did not enter a plea of opposition against the bankruptcy judgment within
the time-limit of eight days from the date of publication of the judgment laid down in Spanish legislation.
The Belgian Government contends, however, that the notification and publication did not comply with
the relevant legal requirements and that the eight-day time-limit never began to run.
Representations were made to the Spanish Government by the British, Canadian, United States and
Belgian Governments as from 1948 or 1949. The interposition of the Canadian Government ceased
entirely in 1955.
In its judgment in the second phase of the case concerning the Barcelona Traction, Light and Power
Company, Limited (New Application: 1962) (Belgium v. Spain), the Court rejected Belgium's claim by
fifteen votes to one.
The claim, which was brought before the Court on 19 June 1962, arose out of the adjudication in
bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada. Its object was to seek
reparation for damage alleged by Belgium to have been sustained by Belgian nationals, shareholders in
the company, as a result of acts said to be contrary to international law committed towards the
company by organs of the Spanish State.
The Court found that Belgium lacked jus standi to exercise diplomatic protection of shareholders in a
Canadian company with respect to measures taken against that company in Spain.

(53) Mavrommatis case (Greece v. United Kingdom)

The foundations of diplomatic protection were stated in 1924 by the Permanent International Court of Justice in
connection with the Mavrommatis case: "It is an elementary principle of international law that a State is entitled to
protect its subjects, when injured by acts contrary to international law committed by another State, from whom
they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its
subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in
reality asserting its own rights its right to ensure, in the person of its subjects, respect for the rules of
international law." Diplomatic protection thus has its origins in the idea of a fusion of private and state interests.
The main facts are the following:
Mavrommatis, a Greek national, was in 1914 granted concessions by the Ottoman authorities for certain public
works in what later became the British mandated territory of Palestine. Greece alleged that Great Britain, through
the Palestine Government, had refused fully to recognize the concessions in Jerusalem and Jaffa, principally by
having granted to a Mr. Rutenberg concessions partially overlapping those enjoyed by Mavrommatis, and
accordingly sought compensation. Art. 26 of the mandate, conferring jurisdiction on the P.C.I.J., applied to
disputes relating to the interpretation or application of the provisions of the mandate between Great Britain and
another member of the League of Nations which could not be settled by negotiation. On a preliminary objection by
Great Britain to jurisdiction, on 30 August 1924, the Court held (7 to 5) that it had jurisdiction in respect of the
Jerusalem concessions, but not the Jaffa concessions. The dispute was between Great Britain and another
member of the League of Nations. It is an elementary principle of international law that a State is entitled to
protect its subjects, when injured by acts contrary to international law committed by another State, from whom
they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its
subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in
reality asserting its own rightsits right to ensure, in the person of its subjects, respect for the rules of
international law. The question, therefore, whether the present dispute originates in an injury to a private interest,
which in point of fact is the case in many international disputes, is irrelevant from this standpoint. Once a State
has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the
State is sole claimant: P.C.I.J., Ser. A, No. 2 at 12. The dispute could not in the circumstances of the case be
settled by negotiation; and (so far as concerned the Jerusalem concession, but not the Jaffa concession) related
to a relevant provision of the mandate. Although Protocol XII of the Treaty of Lausanne of 24 July 1923 ( 28
L.N.T.S. 11;), which formed the Peace Treaty with Turkey, contained provisions expressly relating to the
recognition of concessions in Palestine but without recognizing the Court's jurisdiction in cases of dispute, it
complemented the mandate and did not render inoperative its jurisdictional clauses. The PCIJ summarized
the legal dispute in Mavrommatis as follows: [] a dispute is a disagreement on a point of law or
fact, a confl ict of legal views or interests between two persons.

++++++++++++++++++++++++++++++++++++++++++++++++++++++
++++++++++++++++++++++++++++++++++++
(54) CERTAIN EXPENSES OF THE UNITED NATIONS
(ARTICLE 17, PARAGRAPH 2, OF THE CHARTER)
Advising Opinion of 20 July 1962

Turning then to the question which had been posed, the Court found that it involved an interpretation of Article 17, paragraph
2, of the Charter, and that the first question was that of identifying what are "the expenses of the Organization".
The text of Article 17, paragraph 2, referred to "the expenses of the Organization" without any further explicit definition. The
interpretation of the word "expenses" had been linked with the word "budget" in paragraph 1 of that Article and it had been
contended that in both cases the qualifying adjective "regular" or "administrative" should be understood to be implied.
According to the Court this would be possible only if such qualification must necessarily be implied from the provisions of the
Charter considered as a whole.
Concerning the word "budget" in paragraph 1 of Article 17, the Court found that the distinction between "administrative
budgets" and "operational budgets" had not been absent from the minds of the drafters of the Charter since it was provided in
paragraph 3 of the same Article that the General Assembly "shall examine the administrative budgets" of the specialized
agencies: if the drafters had intended that paragraph 1 should be limited to the administrative budget of the United Nations
organization itself, the word "administrative" would have been inserted in paragraph 1 as it had been in paragraph 3. Actually,
the practice of the Organization had been from the outset to include in the budget items which would not fall within any of the
definitions of "administrative budget" which had been advanced. The General Assembly had consistently included in the
annual budget resolutions provision for "unforeseen and extraordinary expenses" arising in relation to the "maintenance of
peace and security". Every year from 1947 through 1959 the resolutions on these unforeseen and extraordinary expenses
have been adopted without a dissenting vote, except for 1952, 1953 and 1954, owing to the fact that in those years the
resolution included the specification of a controversial item-United Nations Korean war decorations. Finally, in 1961, the report
of the Working Group of Fifteen on the Examination of the Administrative and Budgetary Procedures of the United Nations had
recorded the adoption without opposition of a statement that "investigations and observation operations undertaken by the
Organization to prevent possible aggression should be financed as part of the regular budget of the United Nations." Taking
these facts into consideration, the Court concluded that there was no justification for reading into the text of Article 17,
paragraph 1, any limiting or qualifying word before the word "budget".
The question of certain expenses of the United Nations (Article 17, paragraph 2, of the Charter) had been put to the Court for
an advisory opinion by a resolution adopted by the General Assembly of the United Nations of 20 December 1961.
By nine votes to five the Court declared that the expenditures authorized in certain General Assembly resolutions enumerated
in the request for opinion, relating to the United Nations operations in the Congo and in the Middle East undertaken in
pursuance of Security Council and General Assembly resolutions likewise enumerated in the request were "expenses of the
Organization" within the meaning of Article 17, paragraph 2, of the Charter of the United Nations.

(55) PROVINCE OF NORTH COTABATO VS GOVERNMENT OF THE REPUBLIC OF THE

PHILIPPINES
Posted by kaye lee on 9:43 PM
G.R. No. 183591
October 14 2008
Province of North Cotabato vs Government of the Republic of the Philippines
FACTS:
On August 5, 2008, the Government of the Republic of the Philippines and the Moro Islamic Liberation
Front (MILF) were scheduled to sign a Memorandum of Agreement of the Ancestral Domain Aspect of
the GRP - MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
Invoking the right to information on matters of public concern, the petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of the MA-AD and to prohibit
the slated signing of the MOA-AD and the holding of public consultation thereon. They also pray that
the MOA-AD be declared unconstitutional. The Court issued a TRO enjoining the GRP from signing the
same.
ISSUES:
Whether or not the signing of the MOA, the Government of the Republic of the Philippines would be
binding itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical,
territorial or political subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in
violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly
Section 3(g) & Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)
RULINGS:
3.
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical,
territorial or political subdivision not recognized by law;
Yes. The provisions of the MOA indicate, among other things, that the Parties aimed to vest in
the BJE the status of an associated state or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution.
No province, city, or municipality, not even the ARMM, is recognized under our laws as having an
associative relationship with the national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or regional government. It also implies
the recognition of the associated entity as a state. The Constitution, however, does not contemplate
any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for independence.
The BJE is a far more powerful entity than the autonomous region recognized in the
Constitution. It is not merely an expanded version of the ARMM, the status of its relationship with the
national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in
all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely,
a permanent population, a defined territory, a government, and a capacity to enter into relations
with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine
territory, the spirit animating it which has betrayed itself by its use of the concept of association
runs counter to the national sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the national government and the BJE being
itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the
MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws. The
BJE is more of a state than an autonomous region. But even assuming that it is covered by the term
autonomous region in the constitutional provision just quoted, the MOA-AD would still be in conflict
with it.
b) to revise or amend the Constitution and existing laws to conform to the MOA:
The MOA-AD provides that any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the

necessary changes to the legal framework, implying an amendment of the Constitution to

accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of
the Constitution .
It will be observed that the President has authority, as stated in her oath of office, only to preserve and
defend the Constitution. Such presidential power does not, however, extend to allowing her to change
the Constitution, but simply to recommend proposed amendments or revision. As long as she limits
herself to recommending these changes and submits to the proper procedure for constitutional
amendments and revision, her mere recommendation need not be construed as an unconstitutional act.
The suspensive clause in the MOA-AD viewed in light of the above-discussed standards.
Given the limited nature of the Presidents authority to propose constitutional amendments, she
cannot guarantee to any third party that the required amendments will eventually be put in
place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as
recommendations either to Congress or the people, in whom constituent powers are vested.
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in
violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)
This strand begins with the statement that it is the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as Bangsamoros. It defines Bangsamoro people
as the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the
Sulu archipelago at the time of conquest or colonization, and their descendants whether mixed or of full
blood, including their spouses.
Thus, the concept of Bangsamoro, as defined in this strand of the MOA-AD, includes not only Moros
as traditionally understood even by Muslims, but all indigenous peoples of Mindanao and its adjacent
islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be respected. What
this freedom of choice consists in has not been specifically defined. The MOA-AD proceeds to refer to
the Bangsamoro homeland, the ownership of which is vested exclusively in the Bangsamoro people
by virtue of their prior rights of occupation. Both parties to the MOA-AD acknowledge that ancestral
domain does not form part of the public domain.
Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure
for the recognition and delineation of ancestral domain, which entails, among other things, the
observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous
Peoples. Notably, the statute does not grant the Executive Department or any government agency the
power to delineate and recognize an ancestral domain claim by mere agreement or compromise.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to
conduct consultations beforeany project or program critical to the environment and human ecology
including those that may call for the eviction of a particular group of people residing in such locality, is
implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests
ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result
to the diaspora or displacement of a great number of inhabitants from their total environment.
CONCLUSION:
In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he
failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No.
7160, and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and crafted
runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a
virtual refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship envisioned
between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated
entity is a state and implies that the same is on its way to independence.

(59) Wright V. CA (1994)

Lessons: extradition treaty
Laws: Section 21, Article VII of the 1987 Constitution
FACTS: To suppress crimes, Australia and the Government of the Philippines entered into a
Treaty of Extradition on the 7th of March 1988. It was ratified in accordance with the
provisions of Section 21, Article VII of the 1987 Constitution in a Resolution adopted by the
Senate on September 10, 1990 and became effective 30 days after both States notified
each other in writing that the respective requirements for the entry into force of the Treaty
have been complied with. The Treaty adopts a "non-list, double criminality approach"
which provides for broader coverage of extraditable offenses between the 2 countries and
embraces crimes punishable by imprisonment for at least 1 year. It also allows extradition
for crimes committed prior to the treaty's date of effectivity, provided that these crimes
were in the statute books of the requesting State at the time of their commission.
Under the Treaty, each contracting State agrees to extradite persons wanted for
prosecution of the imposition or enforcement of a sentence in the Requesting State for an
extraditable offense." A request for extradition requires, if the person is accused of an
offense, the furnishing by the requesting State of either a warrant for the arrest or a copy
of the warrant of arrest of the person, or, where appropriate, a copy of the relevant charge
against the person sought to be extradited.
The Treaty defined extraditable offenses to include all offenses "punishable under the Laws
of both Contracting States by imprisonment for a period of at least 1 year, or by a more
severe penalty." For the purpose of the definition, the Treaty states that:
(a) an offense shall be an extraditable offense whether or not the laws of the Contracting
States place the offense within the same category or denominate the offense by the same
terminology;
(b) the totality of the acts or omissions alleged against the person whose extradition is
requested shall be taken into account in determining the constituent elements of the
offense.
On March 17, 1993, Assistant Secretary Sime D. Hidalgo of the Department of Foreign
Affairs indorsed to the Department of Justice Diplomatic Note No. 080/93 dated February
19, 1993 from the Government of Australia to the Department of Justice through Attorney
General Michael Duffy seeking to indict Paul Joseph Wright, an Australian Citizen for:
a.
1 count of Obtaining Property by Deception contrary to Section 81(1) of the
Victorian Crimes Act of 1958 because he and Herbert Lance Orr's, dishonestly obtaining
$315,250 from Mulcahy, Mendelson and Round Solicitors, secured by a mortgage on the
property in Bangholme, Victoria owned by Ruven Nominees Pty. Ltd., a company controlled
by a Rodney and a Mitchell, by falsely representing that all the relevant legal documents
relating to the mortgage had been signed by Rodney and Janine Mitchell
b.
13 counts of Obtaining Properties by Deception contrary to Section 81(1) of the
Victorian Crimes Act of 1958 because he and Mr. John Carson Craker's received
approximately 11.2 in commission (including $367,044 in bonus commission) via Amazon
Bond Pty. Ltd., by submitting 215 false life insurance proposals, and paying premiums
thereon o the Australian Mutual Provident Society through the Office of Melbourne Mutual
Insurance, where he is an insurance agent
c.
1 count of Attempting to Obtain Property by Deception contrary to Section 321(m) of
the Victorian Crimes Act of 1958 because he and Mr. Craker's attempted to cause the
payment of $2,870.68 commission to a bank account in the name of Amazon Bond Pty.
Ltd. by submitting 1 false proposal for Life Insurance to the AMP Society based on an
inexistent policy-holder
d.
1 count of Perjury contrary to Section 314 of Victorian Crimes Act of 1958 because
he and Mr. Craker's signed and swore before a Solicitor holding a current practicing
certificate pursuant to the Legal Profession Practice Act (1958), a Statutory Declaration
attesting to the validity of 29 of the most recent Life Insurance proposals of AMP Society
and containing 3 false statements
In accordance to Section 5 of PD No. 1069 (September 10, 1990), an extradition
proceedings was initiated on April 6, 1993 before the Regional Trial Court of Makati. The
Regional Trial Court on June 14, 1993 granted the petition for extradition requested by the

Government of Australian concluding that the extradition could be granted irrespective of

when the offense was committed. The extradition proceeding resulted in an order of his
deportation. The decision was sustained and Motion for Reconsideration was denied by
the Court of Appeals. Wright filed a review on certiorari to set aside the order of
deportation contending that the provision of the Treaty giving retroactive effect to the
extradition treaty amounts to an ex post facto law which violates Section 21 of Article VI of
the Constitution. Moreover, he argues that the trial court's decision ordering his
extradition is based on evidence that failed to show that he is wanted for prosecution in
his country.
ISSUES:
a.
Whether or NOT the Regional Trial Court committed an order in granting the
extradition proceeding.
b.
Whether or NOT enforcement of Article 18 of the Treaty states a prohibition for the
retroactive application of offenses committed prior to the date of its effectivity
HELD: AFFIRM the decision of the Court of Appeals and DENY the instant petition for lack
of merit
i.

NO.

Complying with Article 2, Section 2 of the Treaty, the crimes for which the Mr. Wright was
charged and for which warrants for his arrest were issued in Australia were offenses in the
Requesting State at the time they were alleged to have been committed. The trial court
correctly determined the offenses under our penal laws are Articles 315(2) and 183 of the
Revised Penal Code on swindling/estafa and false testimony/perjury, respectively.
The provisions of the Treaty was properly complied with. The signature and official seal of
the Attorney-General of Australia were sufficient to authenticate all the documents
annexed to the Statement of the Acts and Omissions, including the statement itself. The
last requirement was accomplished by the certification made by the Philippine Consular
Officer in Canberra, Australia.
The relevant provisions merely requires "a warrant for the arrest or a copy of the
warrant for the arrest of the person sought to be extradited. It does not limited the
phrase "wanted for prosecution" to a person charged with an information or a criminal
complaint as it will render the Treaty ineffective over individuals who abscond for the
purpose of evading arrest and prosecution. Moreover, the Charge and Warrant of Arrest
Sheets shows that he is not only wanted for prosecution but has absconded to evade
arrest and criminal prosecution. Since a charge or information under the Treaty is required
only when appropriate such as in cases where an individual charged before a competent
court in the Requesting State thereafter absconds to the Requested State, a charge or a
copy thereof is not required if the offender has already absconded before a criminal
complaint could be filed.
ii.

YES.

Article 18 states: ENTRY INTO FORCE AND TERMINATION

This Treaty shall enter into force thirty (30) days after the date on which the Contracting
States have notified each other in writing that their respective requirements for the entry
into force of this Treaty have been complied with.
Either contracting State may terminate this Treaty by notice in writing at any time and it
shall cease to be in force on the one hundred and eightieth day after the day on which
notice is given.
The first paragraph of Article 18 refers to the Treaty's date of effectivity and the second
paragraph pertains to its termination. There is no prohibition for its retroactive effect.
Furthermore, Article 2(4) of the Treaty unequivocally provides that: 4. Extradition may be
granted pursuant to provisions of this Treaty irrespective of when the offense in relation to
which extradition is requested was committed, provided that:

(a) it was an offense in the Requesting State at the time of the acts or omissions
constituting the offense; and
(b) the acts or omissions alleged would, if they had taken place in the Territory of the
Requested State at the time of the making of the request for extradition, have constituted
an offense against the laws in force in that state.

(60) GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION VS. OLALIA

G.R. NO. 153675, APRIL 19, 2007
FACTS: Private respondent Muoz was charged before the Hong Kong Court with three (3)
counts of the offense of "accepting an advantage as agent," in violation of Section 9 (1) (a)
of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7)
counts of the offense of conspiracy to defraud, penalized by the common law of Hong
Kong. Warrants of arrest were issued against him. If convicted, he faces a jail term of
seven (7) to fourteen (14) years for each charge.
On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a
request for the provisional arrest of private respondent. The RTC issued an Order of Arrest
against private respondent. That same day, the NBI agents arrested and detained him.
Private respondent filed a petition for bail which was opposed by petitioner. After hearing,
Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no
Philippine law granting bail in extradition cases and that private respondent is a high
"flight risk." Judge Bernardo, Jr. inhibited himself from further hearing the case, it was then
raffled off to Branch 8 presided by respondent judge. Private respondent filed a motion for
reconsideration of the Order denying his application for bail and this was granted by
respondent judge. Petitioner filed an urgent motion to vacate the above Order, but it was
denied by respondent judge. Hence, the instant petition.
ISSUE: Whether or not respondent judge acted with grave abuse of discretion amounting
to lack or excess of jurisdiction as there is no provision in the Constitution granting bail to
a potential extraditee.
HELD: No. Bearing in mind the purpose of extradition proceedings, the premise behind the
issuance of the arrest warrant and the "temporary detention" is the possibility of flight of
the potential extraditee. This is based on the assumption that such extraditee is a fugitive
from justice. Given the foregoing, the prospective extraditee thus bears the onus
probandi of showing that he or she is not a flight risk and should be granted bail.
The Philippines, along with the other members of the family of nations, committed to
uphold the fundamental human rights as well as value the worth and dignity of every
person. Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction
must be viewed in the light of the various treaty obligations of the Philippines concerning
respect for the promotion and protection of human rights. Under these treaties, the
presumption lies in favor of human liberty. Thus, the Philippines should see to it that the
right to liberty of every individual is not impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines
"extradition" as "the removal of an accused from the Philippines with the object of placing
him at the disposal of foreign authorities to enable the requesting state or government to
hold him in connection with any criminal investigation directed against him or the
execution of a penalty imposed on him under the penal or criminal law of the requesting
state or government."
Extradition is not a trial to determine the guilt or innocence of the potential extraditee. Nor
is it a full-blown civil action, but one that is merely administrative in character. Its object is
to prevent the escape of a person accused or convicted of a crime and to secure his return

to the state from which he fled, for the purpose of trial or punishment. It does not
necessarily mean that in keeping with its treaty obligations, the Philippines should
diminish a potential extraditees rights to life, liberty, and due process. More so, where
these rights are guaranteed, not only by our Constitution, but also by international
conventions, to which the Philippines is a party. We should not, therefore, deprive an
extraditee of his right to apply for bail, provided that a certain standard for the grant is
satisfactorily met.
there is no showing that private respondent presented evidence to show that he is not
a flight risk. Consequently, this case should be remanded to the trial court to determine
whether private respondent may be granted bail on the basis of "clear and convincing
evidence."
The time-honored principle of pacta sunt servanda demands that the Philippines honor its
obligations under the Extradition Treaty it entered into with the Hong Kong Special
Administrative Region. Failure to comply with these obligations is a setback in our foreign
relations and defeats the purpose of extradition. However, it does not necessarily mean
that in keeping with its treaty obligations, the Philippines should diminish a potential
extraditees rights to life, liberty, and due process. More so, where these rights are
guaranteed, not only by our Constitution, but also by international conventions, to which
the Philippines is a party. This Court should not, therefore, deprive an extraditee of his
right to apply for bail, provided that a certain standard for the grant is satisfactorily met.
An extradition proceeding being sui generis, the standard of proof required in granting or
denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the
standard of proof of preponderance of evidence in civil cases. While administrative in
character, the standard of substantial evidence used in administrative cases cannot
likewise apply given the object of extradition law which is to prevent the prospective
extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then
Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which
he termed "clear and convincing evidence" should be used in granting bail in extradition
cases. According to him, this standard should be lower than proof beyond reasonable
doubt but higher than preponderance of evidence. The potential extraditee must prove by
"clear and convincing evidence" that he is not a flight risk and will abide with all the orders
and processes of the extradition court. In this case, there is no showing that private
respondent presented evidence to show that he is not a flight risk. Consequently, this case
should be remanded to the trial court to determine whether private respondent may be
granted bail on the basis of "clear and convincing evidence.
++++++++++++++++++++++++++++++++++++++++++++++++++++++
+++++++++++++++++++++++++++++++++++

(61) Djumantan v. Domingo, GR 99358, January 30, 1995

Facts: Bernard Banez, the husband of Marina Cabael, went to Indonesia as a contract worker.
On April 3, 1974, he embraced and was converted to Islam. On May 17, 1974, he married petitioner in
accordance with Islamic rites. He returned to the Philippines in January 1979. On January 13, 1979,
petitioner and her two children with Banez, arrived in Manila as the "guests" of Banez. The latter made
it appear that he was just a friend of the family of petitioner and was merely repaying the hospitability
extended to him during his stay in Indonesia. When petitioner and her two children arrived at the Ninoy
Aquino International Airport on January 13, 1979, Banez, together with Marina Cabael, met them.As
"guests," petitioner and her two children lived in the house of Banez. Petitioner and her children were
admitted to the Philippines as temporary visitors under Section 9(a) of the Immigration Act of 1940.
In 1981, Marina Cabael discovered the true relationship of her husband and petitioner. On March 25,
1982, the immigration status of petitioner was changed from temporary visitor to that of permanent
resident under Section 13(a) of the same law. On April 14, 1982, petitioner was issued an alien
certificate of registration.
Not accepting the set-back, Banez' eldest son, Leonardo, filed a letter complaint with the Ombudsman,
who subsequently referred the letter to the CID. On the basis of the said letter, petitioner was detained
at the CID detention cell.

The CID issued an order revoking the status of permanent resident given to petitioner, the Board found
the 2nd marriage irregular and not in accordance with the laws of the Phils. There was thus no basis for
giving her the status of permanent residence, since she was an Indonesian citizen and her marriage
with a Filipino Citizen was not valid.
Thus this petition for certiorari
Issue: Whether or not the courts may review deportation proceedings
Held : Yes. Section 1 of Article 8 says Judicial Power includes 1) settle actual controversies involving
rights which are legally demandable and enforceable 2) determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government.
We need not resolve the validity of petitioner's marriage to Banez, if under the law the CID can validly
deport petitioner as an "undesirable alien" regardless of her marriage to a Filipino citizen. Generally, the
right of the President to expel or deport aliens whose presence is deemed inimical to the public interest
is as absolute and unqualified as the right to prohibit and prevent their entry into the country.
However, under clause 1 of Section 37(a) of the Immigration Act of 1940 an "alien who enters the
Philippines after the effective date of this Act by means of false and misleading statements or without
inspection and admission by the immigration authorities at a designated port of entry or at any place
other than at a designated port of entry" is subject to deportation.
The deportation of an alien under said clause of Section 37(a) has a prescriptive period and "shall not
be effected ... unless the arrest in the deportation proceedings is made within five years after the cause
for deportation arises". Tolling the prescriptive period from November 19, 1980, when Leonardo C.
Banez informed the CID of the illegal entry of petitioner into the country, more than five years had
elapsed before the issuance of the order of her deportation on September 27, 1990.

(63) Liban v. Gordon, GR 175352, January 18, 2011

FACTS: Respondent filed a motion for partial recommendation on a Supreme Court
decision which ruled that being chairman of the Philippine National Red Cross (PNRC) did
not disqualify him from being a Senator, and that the charter creating PNRC is
unconstitutional as the PNRC is a private corporation and the Congress is precluded by the
Constitution to create such.The Court then ordered the PNRC to incorporate itself with the
SEC as a private corporation. Respondent takes exception to the second part of the ruling,
which addressed the constitutionality of the statute creating the PNRC as a private
corporation. Respondent avers that the issue of constitutionality was only touched upon in
the issue of locus standi. It is a rule that the constitutionality will not be touched upon if it is
not the lis mota of the case.
ISSUE: Whether or not it was proper for the Court to have ruled on the constitutionality of
the PNRC statute.
HELD: Petition has merit.
Political Law: It has been consistently held in Jurisprudence that the Court should
exercise judicial restraint when it comes to issues of constitutionality where it is not
the cause of the case.
In the case at bar, the constitutionality of the PNRC statute was raised in the issue of
standing. As such, the Court should not have declared certain provisions of such as
unconstitutional. On the substantive issue, the PNRC is sui generis. It is unlike the private
corporations that the Constitution wants to prevent Congress from creating. First, the
PNRC is not organized for profit. It is an organization dedicated to assist victims of war and
administer relief to those who have been devastated by calamities, among others. It is
entirely devoted to public service. It is not covered by the prohibition since the Constitution

aims to eliminate abuse by the Congress, which tend to favor personal gain. Secondly, the
PNRC was created in order to participate in the mitigation of the effects of war, as
embodied in the Geneva Convention. The creation of the PNRC is compliance with
international treaty obligations. Lastly, the PNRC is a National Society, an auxiliary of the
government. It is not like government instrumentalities and GOCC. The PNRC is regulated
directly by international humanitarian law, as opposed to local law regulating the other
mentioned entities. As such, it was improper for the Court to have declared certain portions
of the PNRC statute as unconstitutional. However, it is the stand of Justice Carpio that
there is no mandate for the Government to create a National Society to this effect. He also
raises the fact that the PNRC is not sui generis in being a private corporation organized for
public needs. Justice Abad is of the opinion that the PNRC is neither private or
governmental, hence it was within the power of Congress to create.
++++++++++++++++++++++++++++++++++++++++++++++++++++++
++++++++++++++++++++++++++++++++++

(64) Island of Palmas Case

The Island of Palmas Case (Scott, Hague Court Reports 2d 83 (1932), (Perm. Ct. Arb. 1928), 2 U.N. Rep.
Intl. Arb. Awards 829) was a case involving a territorial dispute over the Island of Palmas (or Miangas)
between the Netherlands and the United Stateswhich was heard by the Permanent Court of
Arbitration. Palmas (Indonesian: Pulau Miangas) was declared to be a part of the Netherlands East
Indies and is now part of Indonesia.
The case is one of the most highly influential precedents dealing with island territorial conflicts.

Right by discovery[edit]
On January 1, 1906, General Leonard Wood, Governor of the Province of Moro, paid a visit to the Island of
Palmas (or Miangas). According to the Counter-Memorandum of the United State, he had already visited the
island in about 1903. The report of Wood to the Military Secretary, United States Army, on January 26, 1906,
and the certificate delivered on January 21 by First Lieutenant Gordon Johnston to the native interrogated by
the controller of the Sangi (Sanghi) and Talauer (Talaut) Islands clearly show that the visit of January 21
relates to the island in dispute. The visit led to the statement that the Island of Palmas (or Miangas),
undoubtedly included in the "archipelago known as the Philippine Islands," as delimited by Article III of the
Treaty of Peace between the United States and Spain, also called "Treaty of Paris," and ceded in virtue of
the said article to the United States, was considered by the Netherlands as forming part of the territory of its
possessions in the East Indies.[2]
The United States, as the successor to the rights of Spain over the Philippines, based its title in the first
place on discovery. The existence of sovereignty thus acquired was not merely confirmed by the most
reliable cartographers and authors and even by treaty, particularly the Treaty of Mnster of 1648, which was
agreed to by Spain and the Netherlands. According to the same argument, nothing had occurred of a nature
to cause the acquired title to disappear in international law. The United States argued the latter title at the
moment when Spain ceded its title to the Philippines by the Treaty of Paris (1898). Thus, it was unnecessary
to establish facts showing the actual display of sovereignty precisely over the Island of Palmas (or Miangas).

Principle of contiguity[edit]
The American government finally maintained that Palmas (or Miangas) forms a geographical part of the
Philippine group and is closer to the Philippines than to the Dutch East Indies. Thus, the principle of
contiguity substantiated the claim that it belongs to the power with sovereignty over the Philippines. [3]

Dutch arguments[edit]
The Netherlands considered that the fact of discovery by Spain was not proved, and the same held for any
other form of acquisition. Even if Spain had ever the title, it had been lost. The principle of contiguity was
contested.
The main argument was to show that the Netherlands, represented by the East India Company, possessed
and exercised rights of sovereignty from 1677 or even prior to 1648. Sovereignty arose out of conventions
entered into with native princes of Sangi (the main island of the Talautse Isles) to stabilize the sovereignty of
the Netherlands over the territories of the princes, including Palmas (or Miangas). That state of affairs set up
was claimed to be validated by international treaties.[4]

Issues[edit]
Huber had to determine "whether the Island of Palmas (or Miangas) in its entirety forms a part of territory
belonging to the United States of America or of Netherlands territory." Based on the arguments made by
both states, there were two main issues:

Did the inchoate title claimed by the United States prevail over a continuous and peaceful display of
sovereignty exercised by Netherlands?
Did a title of contiguity have foundation in international law?

Decision[edit]
Huber ruled for the Netherlands:
For these reasons
The Arbitrator in conformity with Article I of the Special Agreement of January 23rd, 1925 DECIDES that :
THE ISLAND OF PALMAS (or MIANGAS) forms in its entirety a part of the Netherlands territory. done at The
Hague, this fourth day of April 1928. Max Huber, Arbitrator Michiels van Verduynen, Secretary-General.[5]

Right by discovery[edit]
The United States argued that it held the island because it had received actual title by legitimate treaties
from the original discoverer of the island, Spain. The United States argued that Spain acquired title to
Palmas when Spain discovered the island and the island was terra nullius. Spain's title to the island,
because it was a part of the Philippines, was then ceded to the United States under the Treaty of Paris
(1898) after Spain's defeat in the SpanishAmerican War. The arbitrator noted that no new international law
invalidated the legal transfer of territory via cession.
However, the arbitrator noted that Spain could not legally grant what it did not hold and the Treaty of Paris
could not grant Palmas to the United States if Spain had no actual title to it. The arbitrator concluded that
Spain held an inchoate title when Spain "discovered" Palmas. However, for a sovereign to maintain its initial
title via discovery, the arbitrator said that the discoverer had to actually exercise authority even by as simple
an act as planting a flag on the beach. Spain did not exercise authority over the island after making an initial
claim after discovery and so the American claim was based on relatively weak grounds.

Contiguity[edit]
The United States argued that Palmas was American territory because the island was closer to the
Philippines than to the Netherlands East Indies. The arbitrator said that there was no positive international
law for the American view of terra firma in which the nearest continent or island of considerable size gives
title to the land in dispute. The arbitrator held that mere proximity was not an adequate claim to land and
noted that if the international community followed the proposed American approach, that would lead to
arbitrary results.

Continuous and peaceful display of sovereignty[edit]

The Netherlands' primary contention was that it held actual title because the Netherlands had exercised
authority on the island since 1677. The arbitrator noted that the United States had failed to show
documentation proving Spanish sovereignty on the island except the documents that specifically mentioned
the island's discovery. Additionally, there was no evidence that Palmas was a part of the judicial or
administrative organization of the Spanish government of the Philippines. However, the Netherlands showed
that the Dutch East India Company had negotiated treaties with the local princes of the island since the 17th
century and had exercised sovereignty, including a requirement of Protestantism and the denial of other
nationals on the island. The arbitrator pointed out that if Spain had actually exercised authority, there would
have been conflicts between the two countries, but none is provided in the evidence.
Thus, a title that is inchoate cannot prevail over a definite title found on the continuous and peaceful display
of sovereignty. Peaceful and continuous display of territorial sovereignty is as good as title. However,
discovery alone, without a subsequent act, cannot suffice to prove sovereignty over the island. The territorial
sovereignty of the defendant, Netherlands, was not contested by anyone from 1700 to 1906 so the title of
discovery at best an inchoate title and does not prevail over the Netherlands claims of sovereignty
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

(65) Legal Status of Eastern Greenland (Norway v. Denmark)

Citation. Court
of
Intl
Justice,
1993
P.C.I.J.
(ser.
A/B)
No.
53
at
71
Brief Fact Summary. The statement made by the Norwegian Minister was claimed to be binding on his
country by Denmark (P).
Synopsis of Rule of Law. A country is bound by the reply given on its behalf by its Minister of Foreign
Affairs.
Facts. The agreement not to obstruct Danish (P) plans with regard to Greenland was what Denmark
wanted to obtain from Norway (D). To this request, a declaration on behalf of the Norwegian

government (D) was made by its Minister for Foreign Affairs that Norway (D) would not make any
difficulty in the settlement of the question.
Issue. Is a country bound by the reply given on its behalf by its Minister of Foreign Affairs?
Held. Yes. A country is bound by the reply given on its behalf by its Minister of Foreign Affairs.
Therefore in this case, the response by the diplomatic representative of a foreign power is binding upon
the country the Minister represents.
Discussion. The main source of international law on treaties is the Vienna Convention on the Law of
Treaties. The Convention was ratified by 35 countries but not by the United States. Unilateral
statements may also be binding on states.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
(66) The Lotus Case (France vs Turkey); Year of the decision: 1927; and Court: PCIJ.
Overview: A collision occurred on the high seas between a French vessel and a Turkish vessel.
Victims were Turkish nationals and the alleged offender was French. Could Turkey exercise its
jurisdiction over the French national under international law?
Facts of the Case:
A collision occurred on the high seas between a French vessel Lotus and a Turkish vessel BozKourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10
survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus. In Turkey,
the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were charged with
manslaughter. Demons, a French national, was sentenced to 80 days of imprisonment and a fine.
The French government protested, demanding the release of Demons or the transfer of his case to
the French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the
Permanent Court of International Justice (PCIJ).
Questions before the Court:
Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime
committed by a French national, outside Turkey? If yes, should Turkey pay compensation to France?
The Courts Decision:
Turkey, by instituting criminal proceedings against Demons, did not violate international law.
Relevant Findings of the Court:
Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an existing
rule of international law or is the mere absence of a prohibition preventing the exercise of
jurisdiction enough?
The first principle of the Lotus case said that jurisdiction is territorial: A State cannot exercise its
jurisdiction outside its territory unless an international treaty or customary law permits it to do
so. This is what we called the first Lotus Principle.
Now the first and foremost restriction imposed by international law upon a State is that failing
the existence of a permissive rule to the contrary it may not exercise its power in any form in the
territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by
a State outside its territory except by virtue of a permissive rule derived from international custom
or from a convention. (para 45)
The second principle of the Lotus case: Within its territory, a State may exercise its jurisdiction,
on any matter, even if there is no specific rule of international law permitting it to do so. In these
instances, States have a wide measure of discretion, which is only limited by the prohibitive rules of
international law.
It does not, however, follow that international law prohibits a State from exercising jurisdiction in
its own territory, in respect of any case which relates to acts which have taken place abroad, and in
which it cannot rely on some permissive rule of international law. Such a view would only be
tenable if international law contained a general prohibition to States to extend the application

of their laws and the jurisdiction of their courts to persons, property and acts outside their territory,
and if, as an exception to this general prohibition, it allowed States to do so in certain specific
cases. But this is certainly not the case under international law as it stands at present. Far from
laying down a general prohibition to the effect that States may not extend the application of their
laws and the jurisdiction of their courts to persons, property and acts outside their territory, it
leaves them in this respect a wide measure of discretion, which is only limited in certain cases by
prohibitive rules; as regards other cases, every State remains free to adopt the principles which it
regards as best and most suitable. This discretion left to States by international law explains the
great variety of rules which they have been able to adopt without objections or complaints on the
part of other States In these circumstances all that can be required of a State is that it should not
overstep the limits which international law places upon its jurisdiction; within these limits, its title to
exercise jurisdiction rests in its sovereignty. (paras 46 and 47)
This applied to civil and criminal cases. If the existence of a specific rule was a pre-requisite
to exercise jurisdiction, PCIJ argued, then it wouldin many cases result in paralysing the action
of the courts, owing to the impossibility of citing a universally accepted rule on which to support
the exercise of their [States] jurisdiction (para 48).
The PCIJ based this finding on the sovereign will of States.
International law governs relations between independent States. The rules of law binding upon
States therefor emanate from their own free will as expressed in conventions or by usages
generally accepted as expressing principles of law and established in order to regulate the relations
between these co-existing independent communities or with a view to the achievement of common
aims. Restrictions upon the independence of States cannot therefore be presumed
[NB: This was one of the more debated aspects of the judgement. Some argued that the Court
placed too much emphasis on sovereignty and consent of States (i.e. took a strong positivist view)].
Criminal Jurisdiction: Territorial Jurisdiction
France alleged that the flag State of a vessel would have exclusive jurisdiction over offences
committed on board the ship in high seas. The PCIJ disagreed. It held that France, as the flag State,
did not enjoy exclusive territorial jurisdiction in the high seas in respect of a collision with a vessel
carrying the flag of another State (paras 71 84). The Court held that Turkey and France both have
jurisdiction in respect of the whole incident: i.e. there is concurrent jurisdiction.
The PCIJ held that a ship in the high seas is assimilated to the territory of the flag State. This State
may exercise its jurisdiction over the ship, in the same way as it exercises its jurisdiction over its
land, to the exclusion of all other States. In this case, the Court equated the Turkish vessel to
Turkish territory. In this case, the PCIJ held that the offence produced its effects on the Turkish
vessel and consequently in a place assimilated to Turkish territory in which the application of
Turkish criminal law cannot be challenged, even in regard to offences committed there by
foreigners. Turkey had jurisdiction over this case.
If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying
another flag or in foreign territory, the same principles must be applied as if the territories of two
different States were concerned, and the conclusion must therefore be drawn that there is no rule
of international law prohibiting the State to which the ship on which the effects of the offence have
taken place belongs, from regarding the offence as having been committed in its territory and
prosecuting, accordingly, the delinquent.
The Lotus Case was also significant in that the PCIJ said that a State would have territorial
jurisdiction, even if the crime was committed outside its territory, so long as a constitutive element
of the crime was committed in that State. Today, we call this subjective territorial jurisdiction. In
order for subjective territorial jurisdiction to be established, one must prove that the element of the
crime and the actual crime are entirely inseparable; i.e., if the constituent element was absent the
crime would not have happened.
The offence for which Lieutenant Demons appears to have been prosecuted was an act of
negligence or imprudence having its origin on board the Lotus, whilst its effects made themselves
felt on board the Boz-Kourt. These two elements are, legally, entirely inseparable, so much so that
their separation renders the offence non-existent It is only natural that each should be able to
exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of
concurrent jurisdiction.
Customary International Law

The Lotus case gives an important dictum on creating customary international law. France alleged
that jurisdictional questions on collision cases are rarely heard in criminal cases because States
tend to prosecute only before the flag State. France argued that this absence of prosecutions points
to a positive rule in customary law on collisions.The Court held that this would merely show that
States had often, in practice, abstained from instituting criminal proceedings, and not that they
recognized themselves as being obliged to do so; for only if such abstention were based on their
being conscious of having a duty to abstain would it be possible to speak of an international
custom. The alleged fact does not allow one to infer that States have been conscious of having
such a duty; on the other hand, as will presently be seen, there are other circumstances calculated
to show that the contrary is true. In other words, opinio juris is reflected in acts of States
(Nicaragua Case) or in omissions (Lotus case) in so far as those acts or omissions are done following
a belief that the said State is obligated by law to act or refrain from acting in a particular way.

(67) MINQUIERS AND ECREHOS CASE

Judgment of 17 November 1953
The Minquiers and Ecrehos case was submitted to the Court by virtue of a Special Agreement
concluded between the United Kingdom and France on December 29th, 1950. In a unanimous
decision, the Court found that sovereignty over the islets and rocks of the Ecrehos and the Minquiers
groups, in so far as these islets and rocks are capable of appropriation, belongs to the United Kingdom.
*
**
In its Judgment, the Court began by defining the task laid before it by the Parties. The two groups of
islets in question lie between the British Channel Island of Jersey and the coast of France. The Ecrehos
lie 3.9 sea miles from the former and 6.6 sea miles from the latter. The Minquiers group lie 9.8 sea
miles from Jersey and 16.2 sea miles from the French mainland and 8 miles away from the Chausey
islands which belong to France. Under the Special Agreement, the Court was asked to determine which
of the Parties had produced the more convincing proof of title to these groups and any possibility of
applying to them the status of terra nullius was set aside. In addition, the question of burden of proof
was reserved: each Party therefore had to prove its alleged title and the facts upon which it relied.
Finally, when the Special Agreement refers to islets and rocks, in so far as they are capable of
appropriation, it must be considered that these terms relate to islets and rocks physically capable of
appropriation. The Court did not have to determine in detail the facts relating to the particular units of
the two groups.
The Court then examined the titles invoked by both Parties. The United Kingdom Government derives
its title from the conquest of England by William Duke of Normandy in 1066. The union thus established
between England and the Duchy of Normandy, including the Channel Islands, lasted until 1204, when
Philip Augustus of France conquered continental Normandy. But, his attempts to occupy also the
islands having been unsuccessful, the United Kingdom submitted the view that all of the Channel
Islands, including the Ecrehos and the Minquiers, remained united with England and that this situation
of fact was placed on a legal basis by subsequent treaties concluded between the two countries. The
French Government contended for its part that, after 1204, the King of France held the Minquiers and
the Ecrehos, together with some other islands close to the Continent and referred to the same
medival treaties as those invoked by the United Kingdom.
The Court found that none of those treaties (Treaty of Paris of 1259, Treaty of Calais of 1360, Treaty of
Troyes of 1420) specified which islands were held by the King of England or by the King of France.
There are, however, other ancient documents which provide some indications as to the possession of
the islets in dispute. The United Kingdom relied on them to show that the Channel Islands were
considered as an entity and, since the more important islands were held by England, this country also
possessed the groups in dispute. For the Court, there appears to be a strong presumption in favour of
this view, without it being possible however, to draw any definitive conclusion as to the sovereignty over
the groups, since this question must ultimately depend on the evidence which relates directly to
possession.
For its part, the French Government saw a presumption in favour of French sovereignty in the feudal
link between the King of France, overlord of the whole of Normandy, and the King of England,his vassal
for these territories. In this connection, it relies on a Judgment of the Court of France of 1202, which
condemned John Lackland to forfeit all the lands which he held in fee of the King of France, including
the whole of Normandy. But the United Kingdom Government contends that the feudal title of the
French Kings in respect of Normandy was only nominal. It denies that the Channel Islands were
received in fee of the King of France by the Duke of Normandy, and contests the validity, and even the
existence, of the judgment of 1202. Without solving these historical controversies, the Court considered
it sufficient to state that the legal effects attached to the dismemberment of the Duchy of Normandy in

1204, when Normandy was occupied by the French, have been superseded by the numerous events
which occurred in the following centuries. In the opinion of the Court, what is of decisive importance is
not indirect presumptions based on matters in the Middle Ages, but the evidence which relates directly
to the possession of the groups.
Before considering this evidence, the Court first examined certain questions concerning both groups.
The French Government contended that a Convention on fishery, concluded in 1839, although it did not
settle the question of sovereignty, affected however that question. It is said that the groups in dispute
were included in the common fishery zone created by the Convention. It is said also that the conclusion
of this Convention precludes the Parties from relying on subsequent acts involving a manifestation of
sovereignty. The Court was unable to accept these contentions because the Convention dealt with the
waters only, and not the common user of the territory of the islets. In the special circumstances of the
case, and in view of the date at which a dispute really arose between the two Governments about these
groups, the Court shall consider all the acts of the Parties, unless any measure was taken with a view
to improving the legal position of the Party concerned.
The Court then examined the situation of each group. With regard to the Ecrehos in particular, and on
the basis of various medival documents, it held the view that the King of England exercised his
justice and levied his rights in these islets. Those documents also show that there was at that time a
close relationship between the Ecrehos and Jersey.
From the beginning of the nineteenth century, the connection became closer again, because of the
growing importance of oyster fishery. The Court attached probative value to various acts relating to the
exercise by Jersey of jurisdiction and local administration and to legislation, such as criminal
proceedings concerning the Ecrehos, the levying of taxes on habitable houses or huts built in the islets
since 1889, the registration in Jersey of contracts dealing with real estate on the Ecrehos.
The French Government invoked the fact that in 1646 the States of Jersey prohibited fishing at the
Ecrehos and the Chausey and restricted visits to the Ecrehos in 1692. It mentioned also diplomatic
exchanges between the two Governments, in the beginning of the nineteenth century, to which were
attached charts on which part of the Ecrehos at least was marked outside Jersey waters and treated
as res nullius. In a note to the Foreign Office of December 15th, 1886, the French Government claimed
for the first time sovereignty over the Ecrehos.
Appraising the relative strength of the opposing claims in the light of these facts, the Court found that
sovereignty over the Ecrehos belonged to the United Kingdom.
With regard to the Minquiers, the Court noted that in 1615, 1616, 1617 and 1692, the Manorial court of
the fief of Noirmont in Jersey exercised its jurisdiction in the case of wrecks found at the Minquiers,
because of the territorial character of that jurisdiction.
Other evidence concerning the end of the eighteenth century, the nineteenth and the twentieth
centuries concerned inquests on corpses found at the Minquiers, the erection on the islets of habitable
houses or huts by persons from Jersey who paid property taxes on that account, the registration in
Jersey of contracts of sale relating to real property in the Minquiers. These various facts show that
Jersey authorities have, in several ways, exercised ordinary local administration in respect of the
Minquiers during a long period of time and that, for a considerable part of the nineteenth century and
the twentieth century, British authorities have exercised State functions in respect of this group.
The French Government alleged certain facts. It contended that the Minquiers were a dependency of
the Chausey islands, granted by the Duke of Normandy to the Abbey of Mont-Saint-Michel in 1022. In
1784 a correspondence between French authorities concerned an application for a concession in
respect of the Minquiers made by a French national. The Court held the view that this correspondence
did not disclose anything which could support the present French claim to sovereignty, but that it
revealed certain fears of creating difficulties with the English Crown. The French Government further
contended that, since 1861, it has assumed the sole charge of the lighting and buoying of the
Minquiers, without having encountered any objection from the United Kingdom. The Court said that the
buoys placed by the French Government at the Minquiers were placed outside the reefs of the groups
and purported to aid navigation to and from French ports and protect shipping against the dangerous
reefs of the Minquiers. The French Government also relied on various official visits to the Minquiers and
the erection in 1939 of a house on one of the islets with a subsidy from the Mayor of Granville, in
continental Normandy.
The Court did not find that the facts invoked by the French Government were sufficient to show that
France has a valid title to the Minquiers. As to the above-mentioned facts from the nineteenth and
twentieth centuries in particular, such acts could hardly be considered as sufficient evidence of the
intention of that Government to act as sovereign over the islets. Nor were those acts of such a
character that they could be considered as involving a manifestation of State authority in respect of the
islets.
In such circumstances, and having regard to the view expressed above with regard to the evidence
produced by the United Kingdom Government, the Court was of opinion that the sovereignty over the
Minquiers belongs to the United Kingdom.
*
**
Availing themselves of the right conferred on them by Article 57 of the Statute, Judges Basdevant and
Carneiro, while concurring in the decision of the Court, appended to the Judgment statements of their

individual opinions. Judge Alvarez, while also concurring in the decision of the Court, made a
declaration expressing regret that the Parties had attributed excessive importance to medival
evidence and had not sufficiently taken into account the state of international law or its present
tendencies in regard to territorial sovereignty.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

(68) Ligitan and Sipadan dispute

The Ligitan and Sipadan dispute [2002] ICJ 3 was a territorial dispute between Indonesia and Malaysia
over two islands in the Celebes Sea, namely Ligitan and Sipadan. The dispute began in 1969 and was
largely resolved by the International Court of Justice(ICJ) in 2002, which opined that both of the islands
belonged to Malaysia.[1]

Background[edit]
Ligitan and Sipadan are two small islands located in the Celebes Sea off the southeastern coast of the
Malaysian state of Sabah. Sovereignty over the islands has been disputed by Indonesia and Malaysia since
1969 and intensified in 1991 when Indonesia discovered that Malaysia had built some tourist facilities on
Sipadan island.[2][3] Indonesia claimed that it had made a verbal agreement with Malaysia in 1969 to discuss
the question of sovereignty over the islands. Malaysia however denied the allegation of an agreement
between them, maintaining that the islands have always been part of the territory of its state of Sabah. [2] Both
countries have not delimited their maritime zones in the area and the court is not been asked to rule on this
further matter.[3] On 2 November 1998, both countries agreed to bring the matter to the International Court of
Justice (ICJ).[4]

Government of the Philippines request for intervention [edit]

The Philippines had applied during the proceedings to intervene over the case on the basis of their claim to
northern Borneo.[5]According to the Philippine side, the heirs of the Sultan of Sulu has ceded their rights
over North Borneo (present-day Sabah) to the Philippines in 1962. [6] However, a majority of people in the
territory chose to become part of Malaysia in 1963 rather than the Philippines as been seen under a
plebiscite organised by the United Nations.[3][7] The Philippines motive to intervene was questioned by the
court, as to whether the Philippines had a "sufficiently strong legal interest" with both Indonesia and
Malaysia. The court strongly rejected the Philippines' attempt of intervention and in doing so cited that the
request made by the Philippines did not relate to the subject matter of the case. The Philippines query was
totally dismissed in June 2001 when after oral hearings the court voted it down by a count of fourteen votes
to one.[3]

Court decision[edit]
Both of the islands were originally considered as terra nullius. But as Malaysia's predecessor, Great Britain,
significantly developed the islands compared to Indonesia's predecessor, the Netherlands, especially after
Malaysia's formation as a nation the court using this as the main reason decided to award the islands to
Malaysia based on their "effective occupation".[1][8] In addition, it is also acknowledged both of the islands
were much closer to Malaysia than Indonesia as well with an earliest documentation from Malaysia over the
British 1878 Agreement with the Sultanate of Sulu during which time they acquired the Sultanate area as
part of the British Borneo, while the Indonesian claim is mostly based on an 1891 Boundary Treaty between
Great Britain and the Netherlands

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

(69) Eritrea-Yemen Arbitration, ICJ Reports, 1998

Eritrea and Yemen both claimed sovereignty over a group of islands in the Red Sea, but agreed to settle their dispute on questions of
territorial sovereignty and maritime delimitation before the Arbitral Tribunal. Eritrea was found to be sovereign over the Mohabbakah
islands, the Haycock islands and Southwest Rocks owing to their proximity to the Eritrean mainland and presumption of natural unity.
The Tribunal found Yemen to be sovereign over the Zubayr group of islands and the Zuqar-Hanish group on the balance of the
evidence from the Parties regarding the exercise of the functions of state authority.
The Eritrea-Yemen Arbitration is one of the most significant international arbitrations of the end of the twentieth century. It solved the
problem of ownership of the southern islands of the Red Sea, the solution of which had been awaited since the end of World War I.
With its recognition of a 'traditional fishing regime' and crystallisation of the criteria for maritime delimitation, it also made a significant
contribution to the development of international law.

As no resolution to the problem could be reached in bilateral talks, the status of the archipelago was placed
in front of the Permanent Court of Arbitration in The Hague in the Netherlands.[11] The Permanent Court of
Arbitration determined that most of the archipelago belonged to Yemen, while Eritrea was to retain the right
to fish the waters around all the islands and sovereignty over some small islands close to Eritrea. [1][10]
The islands, islet, rocks, and low-tide elevations of the Zuqar-Hanish group, including, but not limited to,
Three Foot Rock, Parkin Rock, Rocky Islets, Pin Rock, Suyul Hanish, Mid Islet, Double Peak Island, Round

Island, North Round Island, Quoin Island (1343'N, 4248'E), Chor Rock, Greater Hanish, Peaky Islet,
Mushajirah, Addar Ail Islets, Haycock Island (1347'N, 4247'E; not to be confused with the Haycock Islands
to the southwest of Greater Hanish), Low Island (1352'N, 4249'E) including the unnamed islets and rocks
close north, east and south, Lesser Hanish including the unnamed islets and rocks close north east, Tongue
Island and the unnamed islet close south, Near Island and the unnamed islet close south east, Shark Island,
Jabal Zuquar Island, High Island, and the Abu Ali Islands (including Quoin Island (1405'N, 4249'E) and Pile
Island) are subject to the territorial sovereignty of Yemen;
CHAPTER XI Disposition.[12]
On 1 November 1998 "Yemeni Defence Minister Mohammad Diefallah Mohammad raised his country's flag
over the island of Greater Hanish as Yemeni army and navy troops took up positions on it. At the same time,
Eritrean troops departed on board a helicopter and a naval vessel". [13]

Frontier Dispute Case (Burkina

Faso/Mali)
Facts
Burkina Faso (previously the Republic of Upper Volta) and the Republic of Mali each obtained
independence in 1960 following decolonization. Later, the Organization of African Unity,
comprised of African Heads of State, was formed. In 1964, the Organization of African Unity
met in Cairo, Egypt and issued a resolution declaring that all member States of the
Organization of African Unity solemnlypledge themselves to respect the frontiers existing on
their achievement of national independence. This resolution codified into law the age-old
international principle of uti possidetis. In 1975, the Head of State of Mali made a statement
indicating a lack of respect for the existing boundaries between Mali and Burkina Faso. Mali
and Burkina Faso later submitted to a Chamber of the International Court of Justice (ICJ) the
question of the proper demarcation of boundary lines between the two States. In considering
the case, the ICJ discussed the principle of uti possidetis. Uti possidetis juris or uti
possidetis iuris (Latin for "as you possess under law") is a principle of international law which
provides that newly formed sovereign states should have the same borders that their
preceding dependent area had before their independence.
Issue. Does an obligation exist to respect pre-existing international frontiers in the event of a state
succession?

Held. Yes. An obligation exists to respect pre-existing international frontiers in the event of a
state succession, whether or not the rule is the rule is expressed in the form of uti possidetis.
The fact that the principle did not exist when the states declared such independence in 1960
does not foreclose its present application.
Discussion. Yes. An obligation exists to respect pre-existing international frontiers in the event
of a state succession, whether or not the rule is the rule is expressed in the form of uti
possidetis. The fact that the principle did not exist when the states declared such
independence in 1960 does not foreclose its present application.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

(72) International Law Case Brief: Libya vs. Chad (Sovereignty over the Aouzou Strip)
Judgment of 3 February 1994

Reference: Summaries of Judgments, Advisory Opinions and Orders of the International

Court of Justice, Chad v. Libya (International Court of Justice February 3rd, 1994).
Facts

The Aouzou Strip is a barren piece of land located on the border of Chad and Libya. Libya
had begun to stage troops on the strip in order to assist with the defense of its citizens
who lived in the area. Despite the land having no strategic or functional value to Chad, the
government saw the Aouzou Strip as part of their sovereign territory. Due to the inability of
both countries to internally establish a line of demarcation, the case was referred to the
International Court of Justice for adjudication in 1990.
Issues

Each country has a differing basis from which it is deriving its claims of the Aouzou Strip.
Libyas claim is on the basis of a coalescence of rights and titles of the indigenous
inhabitants, the Senoussi Order, the Ottoman Empire, and through an agreement that its
government made with Italy. However, Chad has argued that the border was established
through the Treaty of Friendship and Good Neighborliness which was concluded between
France and Libya in 1955. From Libyas perspective, there is not enough evidence to show
that a boundary was ever established and that they have adequately lay claim to the
Aouzou Strip through administrative control. Chads use of the Treaty of Friendship and
Good Neighborliness as basis of its claim has also been challenged due to the treaty being
in effect for only 20 years (1955-1975).
Decision

The International Court of Justice ruled that the boundary between Chad and Libya is
defined by the Treaty of Friendship and Good Neighborliness which was concluded
between France and Libya in 1955. Conversely, this gives Chad territorial sovereignty over
the Aouzou Strip.

Opinions

Judge Ago concluded that 10 August 1955 was the critical date in considering evidence
of the dispute. This was also the date that Libya concluded the Treaty of Friendship and
Good Neighborliness with France. He acknowledges that by ratifying the treaty, the Libyan
government recognized the boundaries outlined within as permanent.
Judge Abijola supported the courts decision on the grounds uti possidetis as the borders
claimed by Chad had been determined following its establishment as an independent
state.
In his dissenting opinion, Judge Sette-Camara writes that the territory in question was
never considered to be terra nullius (unclaimed in the eyes of international law). He posits
that the territory had belonged to the Ottoman Empire who laxly exercised authority
over the indigenous groups living on the land. After the Ottoman Empires collapse
following World War 1, territorial sovereignty was transferred to Italy. He believes that the
line of demarcation should be based off the 1935 Laval-Mussolini Treaty completed by Italy
and France and not the Treaty of Friendship and Good Neighborliness. He goes onto
support Libyas claim of sovereignty to the Aouzou Strip.
Analysis

The decision of this case affirms that borders which are established by international
agreements remain permanent even if the treaty expires or the governments change. The
only way to create a new border is to ratify a new treaty in which all the states affected
acknowledge the adjustment. The key to the Courts decision in this case was the
establishment of the critical date as being 10 August 1955. This then dismisses the claim
by Judge Sette-Camara that the boundaries should be based off the 1935 Laval-Mussolini
Treaty. By establishing a critical date, the ICJ set a benchmark for future litigation on this
specific matter. I agree with the Courts ruling as I see Libyas ratifying of the Treaty of
Friendship and Good Neighborliness as implicit acknowledgement of the boundaries stated
within. Had Libya opted to revert back to the old boundaries, there should have been a
treaty made in 1975 which acknowledges the prior arrangement or new boundaries should
have been established immediately after Chad became a state.