THE REPUBLIC OF NICARAGUA V.

THE UNITED STATES OF AMERICA

OVERVIEW:

The case involves violation of customary international law. On April 9, 1984, the Republic of
Nicaragua submitted a complaint to the International Court of Justice (ICJ), alleging that the United
States was using military force against Nicaragua in violation of International Law.

The ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to
Nicaragua. The ICJ held that the U.S. had violated international law by supporting the Contras in their
rebellion against the Nicaraguan government and by mining Nicaragua's harbors.

The Court found in its verdict that the United States was "in breach of its obligations under
customary international law not to use force against another State", "not to intervene in its affairs", "not
to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of its
obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the
Parties signed at Managua on 21 January 1956."

FACTS OF THE CASE:

The dispute between Nicaragua and the United States concerns events in Nicaragua
subsequent to the fall of the Government of President Anastacio Somoza Debayle in Nicaragua in July
1979, and activites of the US Government in relation to Nicaragua since that time. Then, a Junta of
National Reconstruction and an 18-member government were installed by the Frente Sandinista de
Liberacion Nacional (FSLN). The latter had initially an extensive share in the new government. Certain
opponents of the new government, primarily supporters of the former Somoza government, formed
themselves into irregular military forces.

The United States was initially supportive of the new government; however, this had changed
due to the involvement of the Government of Nicaragua in logistical support for guerrillas in El Salvador.

The armed opposition to the new government was conducted mainly by Fuerza Democratica
Nicaraguense (FDN) and Alianza Revolucionaria Democratica (ARDE), these groups, called “contras”,
were fighting against the new government. The US had been giving support to these Groups and that
the US Congress made specific provision for funds to be used by the US intelligence agencies for
supporting directly or indirectly military or paramilitary operations in Nicaragua.

Submissions of the Nicaragua:

a. That the United States, in recruiting, training, arming, equipping, financing, supplying and
otherwise encouraging, supporting, aiding, and directing military and paramilitary actions
in and against Nicaragua, had violated its treaty obligations to Nicaragua under:
 Article 2 (4) of the United Nations Charter;
 Articles 18 and 20 of the Charter of the Organization of American States;
 Article 8 of the Convention on Rights and Duties of States;
 Article I, Third, of the Convention concerning the Duties and Rights of States in the
Event of Civil Strife.

b. That the United States had breached international law by:

 violating the sovereignty of Nicaragua by:
- armed attacks against Nicaragua by air, land and sea;
- incursions into Nicaraguan territorial waters;
- aerial trespass into Nicaraguan airspace;
  efforts by direct and indirect means to coerce and intimidate the Government of
Nicaragua.
 using force and the threat of force against Nicaragua.
 intervening in the internal affairs of Nicaragua.
 infringing upon the freedom of the high seas and interrupting peaceful maritime
commerce.
 killing, wounding and kidnapping citizens of Nicaragua.

c. Nicaragua demanded that all such actions cease and that the United States had an
obligation to pay reparations to the government for damage to their people, property, and
economy.

Submissions of the United State:

 that its actions were "primarily for the benefit of El Salvador, and to help it to respond to an
alleged armed attack by Nicaragua, that the United States claims to be exercising a right
of collective self-defense, which it regards as a justification of its own conduct towards
Nicaragua. El Salvador joined the U.S. in their Declaration of Intervention which it
submitted on 15 August 1984, where it alleged itself the victim of an armed attack by
Nicaragua, and that it had asked the United States to exercise for its benefit the right of
collective self-defence."

 The CIA claimed that the purpose of the Psychological Operations in Guerrilla Warfare
manual was to "moderate" the existing Contra activities.

 The United States argued that the Court did not have jurisdiction, with U.S. ambassador to
the United NationsJeane Kirkpatrick dismissing the Court as a "semi-legal, semi-juridical,
semi-political body, which nations sometimes accept and sometimes don't."

It is noteworthy that the United States, the defaulting party, was the only member that put
forward arguments against the validity of the judgment of the court, arguing that it passed
a decision that it 'had neither the jurisdiction nor the competence to render'. Members that
sided with the United States in opposing Nicaragua's claims did not challenge the court's
jurisdiction, its findings, nor the substantive merits of the case.

ISSUES:

 Whether the prohibition of the use of force and collective self-defence are issues regulated
both by customary international law and by treaties, in particular the United Nations Charter.
 What are the rules of customary international law applicable to the case?
 Whether the recognition of the States of certain rules is sufficient to consider as being part of
customary international law, and as applicable as such to States.
 Whether the practice of State must be in “absolute conformity” with the purported customary
rule. What makes State practice an international rule?

THE RULING OF THE COURT:

First Issue

 The Court then considered the rules of customary law applicable to the present dispute.
For this purpose it considered whether a customary rule exists in the opinio juris of
States,and satisfy itself that it is confirmed by practice.
  The Court ruled that there can be no doubt that the issues of the use of force and collective
self-defence are regulated both by customary international law and by treaties, in particular
the United Nations Charter.

 The Court concluded that both Parties accept a treaty-law obligation to refrain in their
international relations from the threat or use of force against the territorial integrity or
political independence of any State, or in any other manner inconsistent with the purposes
of the United Nations. The Court has however to be satisfied that there exists in customary
law an opinio juris as to the binding character of such abstention. It considers that this
opinio juris may be deduced from, inter alia, the attitude of the Parties and of States towards
certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled
"Declaration on Principles of International Law concerning Friendly Relations and Co-
operation among States in Accordance with the Charter of the United Nations". Consent to
such resolutions is one of the forms of expression of an opinio juris with regard to the
principle of non-use of force, regarded as a principle of customary international law,
independently of the provisions, especially those of an institutional kind, to which it is
subject on the treaty-law plane of the Charter.

Second Issue

 The court, for this case, directed its attention to the practice and opinio juris of States: as
the Court observed, “It is of course axiomatic that the material of customary international
law is to be looked for primarily in the actual practice and opinio juris of States, even though
multilateral conventions may have an important role to play in recording and defining rules
deriving from custom, or indeed in developing them”.

 In the separate opinion of Judge Nagendra Singh. - The Charter provisions as well as the
Latin American Treaty System have not only developed the concept but strengthened it to
the extent that it would stand on its own, even if the Charter and the Treaty basis were held
inapplicable in this case. The obvious explanation is that the original customary aspect
which has evolved with the treaty law development has come now to stay and survive as
the existing modern concept of international law, whether customary, because of its origins,
or "a general principle of international law recognized by civilized nations". The contribution
of the Court has been to emphasize the principle of non-use of force as one belonging to
the realm of jus cogens and hence as the very cornerstone of the human effort to promote
peace in a world torn by strife.

Third Issue

 The Court ruled that the mere fact that States declare their recognition of certain rules in
not sufficient for the Court to consider these as being part of customary international law,
and as applicable to those States. Bound as it is by Article 38 of its Stature to apply, inter
alia, international custom “as evidence of general practice accepted as law”, the Court may
not disregard the essential role played by general practice. Where two States agree to
incorporate a particular rule in a treaty, their agreement suffices to make that rule a legal
one, binding upon them; but in the field of customary international law, the shared view of
the Parties as to the content of what they regard as the rule is not enough. The Court must
satisfy itself that the existence of the rule in the opinio juris of State is confirmed by practice.

 In the present disputes, the Court, while exercising its jurisdiction only in respect of the
application of the customary rules of non-use of force and non-intervention, cannot
disregard the fact that the Parties are bound by these rules as a matter of treaty law and
of customary international law. Furthermore, in the present case, apart from the treaty
 commitments binding the Parties to the rules in question, there are various instances of
their having expressed recognition of the validity thereof as customary international law in
other ways. It is therefore in the light of this “subject element” - expression used by the
Court in its 1969 Judgment in the North Sea Continental Shelf cases) – that the Court has
to appraise the relevant practice.

Fourth Issue

 The court said that in order to deduce the existence of customary rules, the Court deems
it sufficient that the conduct of the States should, in general, be consistent with such rules,
and that instances of State conduct inconsistent with the given rule should generally have
been treated as breaches of that rule, not as indications of the recognition of a new rule.
 The Court emphasized, as was observed in the North Sea Continental Shelf case, for a
new customary rule to be formed, not only must the acts concerned “ amount to a settled
practice”, but they must accompanied by the opinio juris sive necessitates. Either the
States taking such action or other States in a position to react to it, must have behaved so
that their conduct is “evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it. The need for such a belef, i.e., the existence of a
subjective elements, is implicit in the very notion of the opinio juris sive necessitates.”

Nicaragua vs US
Overview: The case involved military and paramilitary activities carried out by the
United States against Nicaragua from 1981 to 1984. Nicaragua asked the Court to
find that these activities violated international law.
Facts of the Case: In July 1979, the Government of President Somoza was replaced
by a government installed by Frente Sandinista de Liberacion Nacional (FSLN).
Supporters of the former Somoza Government and former members of the
National Guard opposed the new government. 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 the United States stopped its aid to Nicaragua and in
September 1981, according to Nicaragua, the United States “decided to plan and
undertake activities directed against Nicaragua”.
The armed activities against the new Government was carried out mainly by
(1) Fuerza Democratica Nicaragüense (FDN), which operated along the border with
Honduras, and (2)Alianza Revolucionaria Democratica (ARDE), which operated along the
border with Costa Rica.Initial US support to these groups fighting against the Nicaraguan
Government (called “contras”) was covert. Later, the United States officially
acknowledged its support (for example: In 1983 budgetary legislation enacted by the
United States Congress made specific provision for funds to be used by United States
intelligence agencies for supporting “directly or indirectly military or paramilitary
operations in Nicaragua”). Nicaragua also alleged that the United States is effectively in
control of the contras, the United States devised their strategy and directed their tactics,
and that the contras were paid for and directly controlled by the United States. Nicaragua
also alleged that some attacks against Nicaragua were carried out, directly, by the United
States military – with the aim to overthrow the Government of Nicaragua. Attacks against
Nicaragua included the mining of Nicaraguan ports, and other attacks on ports, oil
installations, and a naval base. Nicaragua alleged that aircrafts belonging to the United
States flew over Nicaraguan territory to gather intelligence, supply to the contras in the
field, and to intimidate the population.
 The United States did not appear before the ICJ at the merit stages, after refusing to
accept the ICJ’s jurisdiction to decide the case. The United States at the jurisdictional
phase of the hearing, however, stated that it relied on an inherent right of collective self-
defence guaranteed in A. 51 of the UN Charter when it provided “upon request
proportionate and appropriate assistance…” to Costa Rica, Honduras, and El Salvador in
response to Nicaragua’s acts of aggression against those countries (paras 126, 128).
Questions before the Court:
1. Did the United States violate 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
when it encouraged, supported, and aided the military and paramilitary activities against
Nicaragua?
2. Did the United States violate its customary international law obligation not to use force against
another State, when it directly attacked Nicaragua in 1983 and 1984 and when its activities in
point (1) above resulted in the use of force?
3. Can the military and paramilitary activities that the United States undertook in and against
Nicaragua be justified as collective self-defence?
4. Did the United States breach its customary international law obligation not to violate the
sovereignty of another State, when it directed or authorized its aircrafts to fly over the territory
of Nicaragua and because of acts referred to in (2) above?
5. Did the United States breach its customary international law obligations not to violate the
sovereignty of another State, not to intervene in its affairs, not to use force against another
State and not to interrupt peaceful maritime commerce, when it laid mines in the internal waters
and in the territorial sea of Nicaragua?
The Court’s Decision: The United States violated customary international law in
relation to (1), (2), (4) and (5) above. On (3), the Court found that the United States
could not rely on collective self-defence to justify its use of force against
Nicaragua.
Relevant Findings of the Court:
1. The Court held that the United States violated its customary international law
obligation not to use force against another State when its activities with
the contras resulted in the threat or use of force (see paras 191-201).
The Court held that:
 The prohibition on the use of force is found both in Article 2(4) of the Charter of the United
Nations (UN Charter) and in customary international law.
 In a controversial finding the Court sub-classified the use of force as:
(1) “most grave forms of the use of force” (i.e. those that constitute an armed attack); and
(2) “other less grave forms” of the use of force (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, but not amounting to an armed attack). (Para 191),
 The United States violated the customary international law prohibition on the use of force
when it laid mines in Nicaraguan ports. It also violated this prohibition when it attacked
Nicaraguan ports, oil installations, and a naval base (see below). The United States could
only justify its action on the basis of collective self-defence, if certain criteria were met
(these criteria are 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 strife…in another State” and 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. On the
contrary, Nicaragua had previously argued before the Court that the United States
determined the timing of offensives against Nicaragua when it provided funds to thecontras.
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 the arming and training of the contras and the
supply of funds, in itself, only amounted to acts of intervention in the internal affairs of
Nicaragua and did not violate the prohibition on the use of force (para 227) (again, this aspect
will be discussed in detail below).
2. The Court held that the United States violated its customary international law
obligation not to use force against another State when it directly attacked
Nicaragua in 1983 and 1984(see paras 187 – 201).
Note: A controversial but interesting aspect of the Court’s judgement was its definition of
an armed attack. The Court held that an armed attack included:
(1) action by regular armed forces across an international border; and
(2) “the sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of (sic) armed force against another State of such gravity
as to amount to (inter alia) an actual armed attack conducted by regular forces, or its (the
State’s) substantial involvement therein”.
Note also that that he second point somewhat resembles Article 3(g) of the UNGA
Resolution 3314 (XXIX) on the Definition of Aggression.
The Court further held that:
 Mere frontier incidents will not considered as armed attacks, unless, because of its scale and
effects, it would have been classified as an armed attack had it been carried out by regular
forces.
 Assistance to rebels by providing weapons or logistical support did not constitute an armed
attack. Instead, it can be regarded as a threat or use of force or an intervention in the internal
or external affairs of other States (see paras 195, 230).
 Under Article 51 of the UN Charter and under CIL – self-defence is only available against a
use of force that amounts to an armed attack (para 211).
Note: In in the ICJ’s Case Concerning Oil Platforms and the ICJ’s Advisory Opinion on
the Legal Consequences of of the Construction of a Wall in the Occupied Palestinian
Territory (hereinafter called the Palestine wall case) the ICJ confirmed the definition
of an “armed attack” as proposed in the Nicaragua case. Draft Articles on State
Responsibility, prepared by the International Law Commission, provides significant
guidance as to when acts of non-State actors may be attributed to States. These articles,
together with recent State practice relating attacks on terrorists operating from other
countries may have widened the scope of an armed attack, and consequently, the right of
self defence, envisaged by the ICJ. (for example, see discussion surrounding the United
States’ attacks in Afghanistan and Iraq) See also a paper by Max Plank Institute on this
topic (2017).

3. The Court held that the United States could not justify its military and
paramilitary activities on the basis of collective self-defence.
Note that Article 51 of the UN Charter sets out the treaty based requirements on the
exercise of the right of self-defense. It states:
“Nothing in the present Charter shall impair the inherent
right of individual or collectiveself-defence if an armed attack occurs against a
 Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security. Measures taken by
Members in the exercise of this right of self-defence shall be immediately reported to
the Security Council.”
The Court held that:
 Customary international law allows for exceptions to the prohibition on the use of force, which
includes the right to individual or collective self-defence (see here for a difference between
individual and collective self defense). The United States, at an earlier stage of the
proceedings, had also agreed that the UN Charter acknowledges the existence of this
customary international law right when it talks of the “inherent” right under Article 51 of the
Charter (para.193).
 When a State claims that it used force in collective self-defence, the Court would examine the
following:
(1) Whether the circumstances required for the exercise of self-defence existed; and
(2) Whether the steps taken by the State, which was acting in self-defence, corresponds
to the requirements of international law.
 Under international law, several requirements must be met for a State to exercise the right
of individual or collective self-defence:
(1) A State must have been the victim of an armed attack;
(2) That State must declare itself as a victim of an armed attack. The assessment on
whether an armed attack had taken place or not, is done by the State who was subjected
to the attack. A third State cannot exercise a right of collective self-defence based that third
State’s own assessment;
(3) In the case of collective self-defence, the victim State must request for assistance. The
Court held that “there is no rule permitting the exercise of collective self-defence in the
absence of a request by the State which regards itself as the victim of an armed attack”;
(4) A State that is attacked, does not, under customary international law, have the same
obligation as under Article 51 of the UN Charter to report to the Security Council that an
armed attack happened – but the Court held that “the absence of a report may be one of
the factors indicating whether the State in question was itself convinced that it was acting
in self-defence” (see paras 200, 232 -236).
“…Whatever influence the Charter may have had on customary international law in these
matters, it is clear that in customary international law it is not a condition of the lawfulness
of the use of force in self-defence that a procedure so closely dependent on the content
of a treaty commitment and of the institutions established by it, should have been
followed. On the other hand, if self-defence is advanced as a justification for measures
which would otherwise be in breach both of the principle of customary international law
and of that contained in the Charter, it is to be expected that the conditions of the Charter
should be respected. Thus for the purpose of enquiry into the customary law position, the
absence of a report may be one of the factors indicating whether the State in question
was itself convinced that it was acting in self-defence (See paras 200, 232 -236)”.
 The Court, then, looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica,
and Honduras to determine if (1) an armed attack was undertaken by Nicaragua against the
three countries, which in turn would (2) necessitate those countries to act in self-defence
against Nicaragua (paras 230 – 236). The Court noted that (1) none of the countries who
were allegedly subject to an armed attack by Nicaragua declared themselves as victims of an
armed attack; (2) they did not request assistance from the United States to exercise its right
of self-defence; (3) the United States did not claim that when it used force, it was acting
under Article 51 of the UN Charter; and (4) the United States did not report that it was acting
 in self-defense to the Security Council. The Court concluded that, based on the above, the
United States cannot justify its use of force as collective self-defence.
 In any event, the Court held that the criteria relating to necessity and proportionality, that
is required to be met when using force in self-defence – were also not fulfilled (para 237).
4. The Court held that the United States breached its CIL 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 principle of non-intervention requires that every State has a right to conduct its affairs
without outside interference. In other words, the principle “…forbids States or groups of
States to intervene directly or indirectly in internal or external affairs of other States.” This is a
corollary of the principle of sovereign equality of States. The Court held that:
“A prohibited intervention must accordingly be one bearing on matters in which each State
is permitted, by the principle of State sovereignty to decide freely. One of these is the
choice of a political, economic, social and cultural system, and the formulation of foreign
policy. Intervention is wrongful when it uses methods of coercion in regard to such choices,
which must remain free ones. The element of coercion, which defines, and indeed forms
the very essence of, prohibited intervention, is particularly obvious in the case of an
intervention which uses force, either in the direct form of military action, or in the indirect
form of support for subversive or terrorist armed activities within another State (para 205).”
 Nicaragua stated that the activities of the United States were aimed to overthrow the
government of Nicaragua, to substantially damage the economy and to weaken the political
system with the aim to coerce the Government of Nicaragua to accept various political
demands of the United States. The Court concluded that:
“…first, that the United States intended, by its support of the contras, to coerce the
Government of Nicaragua in respect of matters in which each State is permitted, by the
principle of State sovereignty, to decide freely (see paragraph 205 above) ; and secondly
that the intention of the contras themselves was to overthrow the present Government of
Nicaragua… The Court considers that in international law, if one State, with a view to the
coercion of another State, supports and assists armed bands in that State whose
purpose is to overthrow the government of that State, that amounts to an intervention by
the one State in the internal affairs of the other, whether or not the political objective of
the State giving such support and assistance is equally far reaching.”
 The financial support, training, supply of weapons, intelligence and logistic support given by
the United States to the contras violated the principle of non-interference. “…(N)o such
general right of intervention, in support of an opposition within another State, exists in
contemporary international law”, even if such a request for assistance is made by an
opposition group of that State (see para 246 for more).
 However, in a controversial finding, the Court held that the United States did not devise the
strategy, direct the tactics of the contras or exercise control on them in manner so as to make
their acts committed in violation of international law imputable to the United States (see in this
respect “Determining US responsibility for contra operations under international law” 81
AMJIL 86). The Court concluded that “a number of military and paramilitary operations of the
contras were decided and planned, if not actually by United States advisers, then at least in
close collaboration with them, and on the basis of the intelligence and logistic support which
the United States was able to offer, particularly the supply aircraft provided to the contras by
the United States” but not all contra operations reflected strategy and tactics wholly devised
by the United States.
 “…the various forms of assistance provided to the contras by the United States have
been crucial to the pursuit of their activities, but is insufficient to demonstrate their
complete dependence on United States aid. On the other hand, it indicates that in the
initial years of United States assistance the contra force was so dependent. However,
whether the United States Government at any stage devised the strategy and directed
the tactics of the contras depends on the extent to which the United States made use of
the potential for control inherent in that dependence. The Court already indicated that it
has insufficient evidence to reach a finding on this point. It is a fortiori unable to
determine that the contra force may be equated for legal purposes with the forces of the
United States…The Court has taken the view (paragraph 110 above) that United States
participation, even if preponderant or decisive, in the financing, organizing, training,
supplying and equipping of the contras, the selection of its military or paramilitary targets,
and the planning of the whole of its operation, is still insufficient in itself, on the basis of
the evidence in the possession of the Court, for the purpose of attributing to the United
States the acts committed by the contras in the course of their military or paramilitary
operations in Nicaragua. All the forms of United States participation mentioned above,
and even the general control by the respondent State over a force with a high degree of
dependency on it, would not in themselves mean, without further evidence, that the
United States directed or enforced the perpetration of the acts contrary to human rights
and humanitarian law alleged by the applicant State. Such acts could well be committed
by members of the contras without the control of the United States. For this conduct to
give rise to legal responsibility of the United States, it would in principle have to be
proved that that State had effective control of the military or paramilitary.”
 Interesting, however, the Court also held that providing “…humanitarian aid to persons or
forces in another country, whatever their political affiliations or objectives, cannot be regarded
as unlawful intervention, or as in any other way contrary to international law” (para 242).
 In the event one State intervenes in the affairs of another State, the victim State has a right
to intervene in a manner that is short of an armed attack (210).
“While an armed attack would give rise to an entitlement to collective self-defence, a use
of force of a lesser degree of gravity cannot as the Court has already observed
(paragraph 211 above) produce any entitlement to take collective countermeasures
involving the use of force. The acts of which Nicaragua is accused, even assuming them
to have been established and imputable to that State, could only have justified
proportionate counter-measures on the part of the State which had been the victim of
these acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-
measures taken by a third State, the United States, and particularly could not justify
intervention involving the use of force.”
5. The United States violated its customary international law obligation not to
violate the sovereignty of another State, when it directed or authorized its aircrafts
to fly over Nicaraguan territory and when it laid mines in the internal waters of
Nicaragua and its territorial sea.
 The Court examined evidence and found that in early 1984 mines were laid in or close to
ports of the territorial sea or internal waters of Nicaragua “by persons in the pay or acting ion
the instructions” of the United States and acting under its supervision with its logistical
support. The United States did not issue any warning on the location or existence of mines
and this resulted in injuries and increases in maritime insurance rates.
 The Court found that the United States also carried out high-altitude reconnaissance flights
over Nicaraguan territory and certain low-altitude flights, complained of as causing sonic
booms. It held that a State’s sovereignty extends to its internal waters, its territorial sea, and
 the airspace above its territory. The United States violated customary international law when
it laid mines in the territorial sea and internal waters of Nicaragua and when it carried out
unauthorised overflights over Nicaraguan airspace by aircrafts that belong to or was under
the control of the United States..

Kuroda vs. Jalandoni

G.R. L-2662, March 26, 1949

Ponente: Moran, C.J.

Facts:

1. Petitioner Sheginori Kuroda was the former Lt. General of the Japanese Army and commanding
general of the Japanese forces during the occupation (WWII) in the country. He was tried before the
Philippine Military Commission for War Crimes and other atrocities committed against military and
civilians. The military commission was establish under Executive Order 68.

2. Petitioner assails the validity of EO 68 arguing it is unconstitutional and hence the military
commission did not have the jurisdiction to try him on the following grounds:

- that the Philippines is not a signatory to the Hague Convention (War Crimes)

3. Petitioner likewise assails that the US is not a party of interest in the case hence the 2 US
prosecutors cannot practice law in the Philippines.

Issue: Whether or not EO 68 is constitutional thus the military tribunal jurisdiction is valid

HELD:

1. EO 68 is constitutional hence the tribunal has jurisdiction to try Kuroda. EO 68 was enacted by the
President and was in accordance with Sec. 3, Art. 2 of Constitution which renounces war as an
instrument of national policy. Hence it is in accordance with generally accepted principles of
international law including the Hague Convention and Geneva Convention, and other international
jurisprudence established by the UN, including the principle that all persons (military or civilian) guilty
of plan, preparing, waging a war of aggression and other offenses in violation of laws and customs of
war. The Philippines may not be a signatory to the 2 conventions at that time but the rules and
regulations of both are wholly based on the generally accepted principles of international law. They
were accepted even by the 2 belligerent nations (US and Japan)

2. As to the participation of the 2 US prosecutors in the case, the US is a party of interest because its
country and people have greatly aggrieved by the crimes which petitioner was being charged of.

3. Moreover, the Phil. Military Commission is a special military tribunal and rules as to parties and
representation are not governed by the rules of court but the provision of this special law.

Borovsky vs Commissioner

Meijoff vs Director of Prisons

Haw Pia vs China Banking

Mijares vs Ranada

Pharmaceutical vs Duque

BARCELONA TRACTION CASE (PLUS PDF)

FACTS

Par. 1: In 1958, the Belgian government filed with the ICJ an Application against the Spanish
government seeking reparation for damage allegedly caused to the Barcelona Traction, Light and
Power Company, Limited, on account of acts said to be contrary to international law committed by
organs of the Spanish state.

Par. 2: On March 15, 1963, the Spanish Government raised four preliminary objections to the Belgian
Application.

Par. 3: a. The discontinuance, under Art. 69, par. 2, of the Court’s Rules, of previous proceedings
relative to the same events in Spain, disentitled the Belgian government from bringing the present
proceedings.

b. even if this was not the case, the Court was not competent, because the necessary jurisdictional
basis requiring Spain to submit to the jurisdiction of the Court did not eist.

c. the claim is inadmissible because the Belgian Government lacks any jus standi to intervene or
make a judicial claim on behalf of Belgian interests in a Canadian company, assuming that the
Belgian character of such interests were established, which is denied by the Spanish government.
d. even if the Belgian Government has the necessary jus standi, the claim still remains inadmissible
because local remedies in respect of the acts complained were not exhausted.

Par. 8: the Barcelona Traction, Light and Power Company, Limited, is a holding company
incorporated in 1911 in Toronto (Canada), where it has its head office.

Par. 9: According to the Belgian Government, some years after the First World War Barcelona
Traction’s share capital came to be very largely held by Belgian nationals- natural or juristic persons –
and a very high percentage of shares has since then continuously belonged to Belgian nationals.

Par. 11: In 193, the servicing of the Barcelona Traction bonds was suspended on account of the
Spanish Civil War.

Par. 12: In 1945, Barcelona Traction proposed a plan of compromise which provided for the
reimbursement of the sterling debt.

Par. 13: On 9 February 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.

Par. 15: Proceedings in Spain to contest the bankruptcy judgment and the related decisions were
instituted by Barcelona Traction, National Trust, the subsidiary companies and their directors or
management personnel.

Par. 17: In June 1949, on an application by the Namel company, with the intervention of the Genora
company, the Barcelona court of appeal gave a judgment making it possible for the meeting of
creditors to be convened for the election of the trustees in bankruptcy, by excluding the necessary
procedure from the suspensive effect of the motion contesting jurisdiction

Par. 19: After the bankruptcy declaration, representations were made to the Spanish Government by
the British, Canadian, United States and Belgian Governments.

Par. 22: The United States Government made representations to the Spanish Government on behalf
of Barcelona Traction in a note of 22 July 1949, in support of a note submitted by the Canadian
Government the previous day.

Par. 22: The Belgian Government considers that the United States Government was motivated by a
more general concern to secure equitable treatment of foreign investments in Spain.

Par. 24: The Belgian government continued its diplomatic intervention until the rejection by the
Spanish Government of a Belgian proposa1 for submission to arbitration (end of 1951).

Par. 25 (p. 12-14): Belgian government application

Par. 25 (P. 14-15): Spanish government counter-memorial

Page 16: Side of the Belgian Government

RULING: Par. 30: The States which the present case principally concerns are Belgium, the national
State of the alleged shareholders, Spain, the State whose organs are alleged to have committed the
unlawful acts complained of, and Canada, the State under whose laws Barcelona Traction was
incorporated and in whose territory it has its registered office ("head office" in the terms of the by-laws
of Barcelona Traction).

Par. 32: it is logical that the Court should first address itself to what was originally presented as the
subject-matter of the third preliminary objection: namely the question of the right of Belgium to
exercise diplomatic protection of Belgian shareholders in a company which is a juristic entity
incorporated in Canada, the measures complained of having been taken in relation not to any Belgian
national but to the company itself.

33. When a State admits into its territory foreign investments or foreign nationals, whether natural or
juristic persons, it is bound to extend to them the protection of the law and assumes obligations
concerning the treatment to be afforded them. These obligations, however, are neither absolute nor
unqualified. In particular, an essential distinction should be drawn between the obligations of a State
towards the international community as a whole, and those arising vis-à-vis another State in the field
of diplomatic protection. By their very nature the former are the concern of al1 States. In view of the
importance of the rights involved, al1 States can be held to have a legal interest in their protection;
they are obligations erga omnes.

34. Such obligations derive, for example, in contemporary international law, from the outlawing of
acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights
of the human person, including protection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body of general international law
(Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion,

I.C.J. Reports 1951, p. 23); others are conferred by international instruments of a universal or quasi-
universal character.

Par. 36: It follows that the same question is determinant in respect of Spain's responsibility towards
Belgium. Responsibility is the necessary corollary of a right. In the absence of any treaty on the
subject between the Parties, this essential issue has to be decided in the light of the general rules of
diplomatic protection.

Par. 38: International law has had to recognize the corporate entity as an institution created by States
in a domain essentially within their domestic jurisdiction.

BELGIUM v. SPAIN

(Case concerning the Barcelona Traction, Light, and Power Company, Ltd.)

Judgment of 5 February 1970

FACTS: The Barcelona Traction, Light and Power Company, Ltd., 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 subsidiaries supplied the major part of Catalonia’s electricity requirements. According to the
Belgian Government, some years after WW-I, Barcelona Traction’s 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 the 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, 3 Spanish holders of recently acquired sterling bonds petitioned the court of Reus 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. Afterwards, these measures were extended to the other subsidiaries. New
shares of the subsidiary companies were created, which were sold by public auction in 1952 to a
newly-formed company 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 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 this did not enter a plea of opposition against the bankruptcy
judgment within the time-limit of 8 days from the date of publication of 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 8-day time limit never began to run.

Proceedings before the ICJ: The Belgium filed a first Application with the Court against Spain 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, Belgium submitted to the Court on June 19, 1962
another Application. In 1963, Spain raised 4 preliminary objections to this application. By its
judgment, the Court rejected the first and second objections and joined the 3 rd and 4th to the merits.
ISSUES: Does Belgium have the jus standi to exercise diplomatic protection over Belgian
shareholders in a Canadian company, which in effect will give Belgium the right and
jurisdiction to bring Spain to court for the actions of a Canadian company? - NO

RULING: No absolute obligation. – 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 to the breach of such 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 interest 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. 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. However, under special
circumstances, the general rule may not take effect. Two situations needed to be studies, viz:

a. The case of the company having ceased to exist; and

b. The case of the protecting State company lacking capacity to take action.

As regards the first requisite, 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. As to
the second, 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.
Canada had exercised the protection of Barcelona Traction for a number of years. If at a certain point
Canada ceased to act on behalf of Barcelona Traction, it nonetheless retained its capacity to do so,
which Spain had not questioned. Whatever the reasons for Canada’s change of attitude does not
justify for the exercise of diplomatic protection by another government.
It had been maintained that a State could make a claim when investments being part of a State’s
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 case, such a right could only result from a
treaty or special agreement. And no treaty or special agreement of such a kind was in force between
Belgium and Spain.