UN Charter

 Purpose
o Save succeeding generation from war
o Reaffirm faith in fundamenta

Northern Sea Continental Shelf Cases

Germany's North Sea coast is concave, while the Netherlands' and Denmark's coasts are convex. If the
delimitation had been determined by the equidistance rule ("drawing a line each point of which is
equally distant from each shore"), Germany would have received a smaller portion of the resource-rich
shelf relative to the two other states. Thus Germany argued that the length of the coastlines be used to
determine the delimitation.[1] Germany wanted the ICJ to apportion the Continental Shelf to the
proportion of the size of the state's adjacent land, which Germany found to be 'a just and equitable
share', and not by the rule of equidistance.

Relevant is that Denmark and The Netherlands, having ratified the 1958 Geneva Continental Shelf
Convention, whereas the Federal Republic of Germany did not, wished that Article 6, p. 2 (equidistance
principle) were to be applied.

Article 6

Where the same continental shelf is adjacent to the territories of two or more States whose
coasts are opposite each other, the boundary of the continental shelf appertaining to such
States shall be determined by agreement between them. In the absence of agreement, and
unless another boundary line is justified by special circumstances, the boundary is the median
line, every point of which is equidistant from the nearest points of the baselines from which the
breadth of the territorial sea of each State is measured.

Where the same continental shelf is adjacent to the territories of two adjacent States, the
boundary of the continental shelf shall be determined by agreement between them. In the
absence of agreement, and unless another boundary line is justified by special circumstances,
the boundary shall be determined by application of the principle of equidistance from the
nearest points of the baselines from which the breadth of the territorial sea of each State is
measured.

In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance
with the principles set out in paragraphs 1 and 2 of this article should be defined with reference
to charts and geographical features as they exist at a particular date, and reference should be
made to fixed permanent identifiable points on the land.

An important question the Court answered was if the equidistance principle was, at the date of the
ruling, a customary international law binding on all States. The Court argued that it is indeed possible for
Conventions, while only contractual in origin, to pass into the corpus of international law, and thus
become binding for countries which have never become parties to the Convention. However, the Court
notes that 'this result is not lightly to be regarded as having been attained' (para 71). For the aforegoing
to happen, it would first be necessary that the provision should be of a fundamentally norm creating
character, i.e. a general rule of law. In casu, the obligation of the equidistance method came second,
after the primary obligation to effect delimitation by agreement. The court decides this is an unusual
preface for it to be a general rule of law. Furthermore, the Court took in notion that the scope and
meaning relating to the equidistance as embodied in Article 6 remained unclear. In para 74, the Court
argues that while the passage of any considerable period of time is not a requirement, it is an
indispensable requirement that within the period in question State practice should have been both
extensive and virtually uniform in the sense of the provision invoked.

Moreover, as stated in para 77, the practice must also, as a subjective element, stem from a notion of
opinio juris sive necessitatis. In other words, the States concerned must feel they are conforming to
what amounts to a legal obligation.

The Court ultimately urged the parties to "abat[e] the effects of an incidental special feature [Germany's
concave coast] from which an unjustifiable difference of treatment could result." In subsequent
negotiations, the states granted to Germany most of the additional shelf it sought.[2] The cases are
viewed as an example of "equity praeter legem"—that is, equity "beyond the law"—when a judge
supplements the law with equitable rules necessary to decide the case at hand.

Notes

 The equidistance principle or principle of equidistance, in maritime boundary claims, is a legal

concept that a nation's maritime boundaries should conform to a median line that is equidistant
from the shores of neighboring nations. The concept was developed in the process of settling
disputes in which the borders of adjacent nations were located on a contiguous continental
shelf:

Kuroda vs Jalandoni

Kuroda was a Liutenant of the Japanese Army who Commanded Japanese Imperial Forces occupying The
Phils during a period covering 1943 and 1944. On 1946 (After the liberation, The Pres. Of the Phils.
Declared Executive order 68 which established a National War Crimes Office which governed the trials
over war criminals. Kuroda was charged with failing to maintain command over his men, thus allowing
them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners.
Kuroda argues that EO 68 had no basis charging him of crimes which were found under the Hague
Convention on Rules and Regulations covering Land Warfare when the Phils was not a signatory to it
prior to the acts alleged to have been committed by him.

Issues

Whether the Phils may apply the Hague convention despite not being a signatory to it? –YES

While the Phils has indeed not signed the Hague convention prior to the acts alleged to have been
committed by Kuroda, Art 2, Sec 3 of our Constitution says that the generally accepted principle of
international law form part of our law. The Hague convention form part of and are wholly based on the
generally accepted principals of international law, and thus may be applied

Another theory presented by the court as that the Phils was under the sovereignity of the US, and thus
we are equally bound by the convention as US and Japan were.
Whether attorneys Melville Hussey and Robert Port (lawyers of the US who were intervenors in the
case of Kuroda) should not be permitted to intervene?

Kuroda argued that they were not allowed to practice law in our jurisdiction – SC: The military
commission is governed by a special law and not the rules of court which govern ordinary civil courts.
There is nothing in the special law that requires lawyers allowed to practice law in Phil. Jurisidiction.

Kuroda argued that by allowing them to intervene, the Phils is violative of our own National Sovereignity
– It is not. In fact if anyone is relinquishing a portion of sovereignity, it is the US by submitting to Phil
Courts.

Mejoff vs Director of Prisons

Mejoff was a secret agent of Russian blood under the Japanese forces during the Japanese Regime.
Upon liberation, he was arrested and tried as a Jaanese spy. He was ordered released, but was then
placed under the jurisdiction of the deportation board which found that he did not have travel authority,
and thus was an illegal alien. He was ordered to be deported back to Russia. The Russian boats that
docked here refused to take him alleging lack of authority. In the meantime, he was transferred to
Bilibid Prison. Mejoff filed an initial application for Habeas Corpus, but the court denied such application
ruling that temporary detention was proper pending deportation, although the detention must be for a
reasonable time only. 2 years later since the initial promulgation, Mejoff filed another application for
Habeas Corpus.

Whether Mejoff Should be released? –YES, BUT WITH SOME CONDITIONS

Our constitution provides protection against deprivation of liberty without due process of law and
except for crimes committed against the laws of the land is not limited to Philippine citizens but extends
to all residents, except enemy aliens, regardless of nationality. Equally applicable is the principles under
the UDHR which extends human rights to all. Art 8 of the UDHR provides that No one shall be subjected
to arbitrary arrest, detention or exile. We adopt such international law by virtue of Art 2, Sec 3 of our
Consti which provides that we adopt the generally accepted principles of international law as part of
the law of Nation.

A recent ruling in the US (Staniszewski vs. Watkins) allowed a Polish person who could not be deported
since his country would not take him (he was allegedly stateless) to be released pending deportation for
as long as he would periodically inform the immigration officials where he was.

The SC adopts a ruling similar to Staniszewski vs. Watkins as this was found to be a “happy solution”
which upheld Mejoff’d right under the UDHR and our own laws

Notes

 Mejoff alleged that he was stateless.

 There was an argument that Mejoff should nt be releaed because he was dangerous. The SC
ruled that he was not a danger anymore since Japan was already at peace with the US. Assuming
that the possibility of danger still existed, his prolonged detention is still unwarranted by the law
or the consti.
  He did not come to the country illegally as he was brought by belligerent forces.

Nicaragua vs US

ICJ

The first armed intervention by the United States in Nicaragua occurred under President Taft. In 1909,
he ordered the overthrow of Nicaraguan President José Santos Zelaya. During August and September
1912, a contingent of 2,300 U.S. Marines landed at the port of Corinto and occupied León and the
railway line to Granada. A pro-U.S. government was formed under the occupation. The 1914 Bryan–
Chamorro Treaty granted perpetual canal rights to the U.S. in Nicaragua and was signed ten days before
the U.S.-operated Panama Canal opened for use, thus preventing anyone from building a competing
canal in Nicaragua without U.S. permission.[5]

In 1927, under Augusto César Sandino, a major peasant uprising was launched against both the U.S.
occupation and the Nicaraguan establishment. In 1933, the Marines withdrew and left the Nicaraguan
National Guard in charge of internal security and elections. In 1934, Anastasio Somoza García, the head
of the National Guard, ordered his forces to capture and murder Sandino. In 1937, Somoza assumed the
presidency, while still in control of the National Guard, and established a dictatorship that his family
controlled until 1979.[6]

The downfall of the regime is attributed to its embezzlement of millions of dollars in foreign aid that was
given to the country in response to the devastating 1972 earthquake. Many moderate supporters of the
dictatorship began abandoning it in the face of growing revolutionary sentiment. The Sandinista (FSLN)
movement organized relief, began to expand its influence and assumed the leadership of the revolution.
[7] A popular uprising brought the FSLN to power in 1979. The United States had long been opposed to
the socialist FSLN, and after the revolution the Carter administration moved quickly to support the
Somocistas with financial and material aid. When Ronald Reagan took office, he augmented the direct
support to an anti-Sandinista group, called the Contras, which included factions loyal to the former
dictatorship. When Congress prohibited further funding to the Contras, Oliver North continued the
funding through arms sales that were also prohibited by Congress

Findings

 Regarding human rights violations by the Contras, "The Court has to determine whether the
relationship of the contras to the United States Government was such that it would be right to
equate the Contras, for legal purposes, with an organ of the United States Government, or as
acting on behalf of that Government. The Court considers that the evidence available to it is
insufficient to demonstrate the total dependence of the Contras on United States aid. A partial
dependency, the exact extent of which the Court cannot establish, may be inferred from the fact
that the leaders were selected by the United States, and from other factors such as the
organisation, training and equipping of the force, planning of operations, the choosing of targets
and the operational support provided. There is no clear evidence that the United States actually
exercised such a degree of control as to justify treating the contras as acting on its behalf...
 Having reached the above conclusion, the Court takes the view that the Contras remain
responsible for their acts, in particular the alleged violations by them of humanitarian law. For
the United States to be legally responsible, it would have to be proved that that State had
effective control of the operations in the course of which the alleged violations were committed
 Jurisdiction - The Court concluded that the United States, despite its objections, was subject to
the Court's jurisdiction. The Court had ruled on November 26 by 11 votes to one that it had
jurisdiction in the case on the basis of either Article 36 of the Statute of the International Court
of Justice (i.e. compulsory jurisdiction) or the 1956 Treaty of Friendship, Commerce and
Navigation between the United States and Nicaragua. The Charter provides that, in case of
doubt, it is for the Court itself to decide whether it has jurisdiction, and that each member of the
United Nations undertakes to comply with the decision of the Court. The Court also ruled by
unanimity that the present case was admissible.[12] The United States then announced that it
had "decided not to participate in further proceedings in this case." About a year after the
Court's jurisdictional decision, the United States took the further, radical step of withdrawing its
consent to the Court's compulsory jurisdiction, ending its previous 40 year legal commitment to
binding international adjudication. The Declaration of acceptance of the general compulsory
jurisdiction of the International Court of Justice terminated after a 6-month notice of
termination delivered by the Secretary of State to the United Nations on October 7, 1985
 Although the Court called on the United States to "cease and to refrain" from the unlawful use
of force against Nicaragua and stated that the US was "in breach of its obligation under
customary international law not to use force against another state" and ordered it to pay
reparations, the United States refused to comply.[14] As a permanent member of the Security
Council, the U.S. has been able to block any enforcement mechanism attempted by Nicaragua.
[15] On November 3, 1986 the United Nations General Assembly passed, by a vote of 94-3 (El
Salvador, Israel and the US voted against), a non-binding[16] resolution urging the US to comply.
[

Fisheries UK vs Iceland

Facts. Iceland’s (D) claim to a 12-mile fisheries limit was recognized by the United Kingdom (P) in 1961 in
return for Iceland’s (D) agreement that any dispute concerning Icelandic fisheries jurisdiction beyond the
12-mile limit be referred to the International Court of Justice. An application was filed before the I.C.J.
when Iceland (D) proposed to extend its exclusive fisheries jurisdiction from 12 to 50 miles around its
shores in 1972. By postulating that changes in circumstances since the 12-mile limit was now generally
recognized was the ground upon which Iceland (D) stood to argue that the agreement was no longer
valid. Iceland (D) also asserted that there would be a failure of consideration for the 1961 agreement.

Issue. In order that a change of circumstances may give rise to a ground for invoking the termination of
a treaty, is it necessary that it has resulted in a radical transformation of the extent of the obligation still
to be performed?

Held. Yes. In order that a change of circumstances may give rise to the premise calling for the
termination of a treaty, it is necessary that it has resulted in a radical transformation of the extent of the
obligations still to be performed.
The change of circumstances alleged by Iceland (D) cannot be said to have transformed radically the
extent of the jurisdictional obligation that was imposed in the 1961 Exchange of Notes.

Naimibia***

https://www.icj-cij.org/en/case/53

South West vs South African.

Background – Previously the colony of German South West Africa from 1884-1915, it was made a
League of Nations mandate of the British-ruled Union of South Africa following Germany’s losses in
World War I. Although the mandate was abolished by the UN in 1966, South African rule continued
despite it being illegal under international law.

There was a protracted struggle between South Africa and forces fighting for independence, particularly
after the formation of the South West Africa People's Organisation (SWAPO) in 1960.

In 1966, the General Assembly passed resolution 2145 (XXI) which declared the Mandate terminated
and that the Republic of South Africa had no further right to administer South West Africa.[18] In 1971,
acting on a request for an Advisory Opinion from the United Nations Security Council, the ICJ ruled that
the continued presence of South Africa in Namibia was illegal and that South Africa was under an
obligation to withdraw from Namibia immediately. It also ruled that all member states of the United
Nations were under an obligation not to recognise as valid any act performed by South Africa on behalf
of Namibia.[19]

South West Africa became known as Namibia by the UN when the General Assembly changed the
territory's name by Resolution 2372 (XXII) of 12 June 1968.[20] SWAPO was recognised as representative
of the Namibian people and gained UN observer status[21] when the territory of South West Africa was
already removed from the list of Non-Self-Governing Territories.

In 1977, South Africa transferred control of Walvis Bay back to the Cape Province, thereby making it an
exclave.[22]

The territory became the independent Republic of Namibia on 21 March 1990, although Walvis Bay and
the Penguin Islands remained under South African control until 1994.[23]

The Rulings

On 27 October 1966, the General Assembly decided that the Mandate for South West Africa was
terminated and that South Africa had no other right to administer the Territory. In 1969 the Security
Council called upon South Africa to withdraw its administration from the Territory, and on 30 January
1970 it declared that the continued presence of the South African authorities in Namibia was illegal and
that all acts taken by the South African Government on behalf of or concerning Namibia after the
termination of the Mandate were illegal and invalid; it further called upon all States to refrain from any
dealings with the South African Government that were incompatible with that declaration. On 29 July
1970, the Security Council decided to request of the Court an advisory opinion on the legal
consequences for States of the continued presence of South Africa in Namibia. In its Advisory Opinion of
21 June 1971, the Court found that the continued presence of South Africa in Namibia was illegal and
that South Africa was under an obligation to withdraw its administration immediately. It found that
States Members of the United Nations were under an obligation to recognize the illegality of South
Africa’s presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to
refrain from any acts implying recognition of the legality of, or lending support or assistance to, such
presence and administration. Finally, it stated that it was incumbent upon States which were not
Members of the United Nations to give assistance in the action which had been taken by the United
Nations with regard to Namibia.

Danube Dam, Hungary vs Slovakia

Brief Fact Summary. Hungary (P) claimed that Czechoslovakia (D) violated the provisions of a treaty
when it appropriated the waters of the Danube River to construct a dam.

Synopsis of Rule of Law. Watercourse states shall participate in the use, development and protection of
an international watercourse in an equitable and reasonable manner.

Facts. In 1977, Hungary (P) and Czechoslovakia (D) signed a Treaty for the construction of dams and
other projects along the Danube River that bordered both nations. Czechoslovakia (D) began work on
damming the river in its territory when Hungary (P) stopped working on the project and negotiation
could not resolve the matter which led Hungary (P) to terminate the Treaty. Hungary allegedly did not
work on its side of the bargain because there was a widespread disapproval amongst its citizens on
building the dam due to environmental reasons. Eventually, Slovakia decided to continue the project
without Hungary although on a smaller scale.

Hungary wanted to end the treaty. Hungary (P) based its action on the fact that the damming of the
river had been agreed to only on the ground of a joint operation and sharing of benefits associated with
the project, to which Czechoslovakia (D) had unlawfully unilaterally assumed control of a shared
resource.

The Court found that Hungary had breached their legal obligations in almost all points. It ordered
Hungary to finish the Nagymaros part of waterworks. Per the Court decision, Czecho-Slovakia and later
Slovakia was entitled to build alternative workaround after Hungary stopped work, but Slovakia
breached on one point - it should not have started to operate an alternative temporary solution before
the court handed down its ruling. It called on both States to negotiate in good faith to complete the
objectives of the 1977 Budapest Treaty, which the Court declared was still in force, while taking account
of the factual situation that had developed since 1989.[1

Another four months of negotiations between Slovakia and Hungary led to a treaty between the two
countries about the ICJ judgment. In March 1998 the government of Slovakia approved this treaty, but
the government of Hungary, which was supposed to build Nagymaros or a Pilismarót waterworks,
delayed approving the treaty and proclaimed a competition for the project. After elections in Hungary,
the new government cancelled this competition.[13] In 1998, after two appeals to Hungary, the Slovak
government turned to the International Court, demanding the Nagymaros part be built.

The international dispute was not resolved for more than a decade.[14] In June 2017, the Slovak
Government requested that the International Court of Justice “place on record the discontinuance of
the proceedings”. In a letter dated 12 July 2017, the Agent of Hungary stated that his Government “did
not oppose the discontinuance of the proceedings instituted by means of the Request of Slovakia of 3
September 1998 for an additional judgment”.

Issue. Shall watercourse states participate in the use, development and protection of an international
watercourse in an equitable and reasonable manner?

Held. Yes. Watercourse states shall participate in the use, development and protection of an
international watercourse in an equitable and reasonable manner. Hungary (P) was deprived of its rights
to an equitable and reasonable share of the natural resources of the Danube by Czechoslovakia (D) and
also failed to respect the proportionality that is required by international law. Cooperative
administration must be reestablished by the parties of what remains of the project.

Discussion. The Court’s decision was that the joint regime must be restored. In order to achieve most of
the Treaty’s objectives, common utilization of shared water resources was necessary. Hence, the
defendant was not authorized to proceed without the plaintiff’s consent.

Tinoco Claims Arbitration (Great Britain v. Costa Rica)

Overview:

Great Britain (P) claimed that the former government of Costa Rica (D), the Tinoco regime, had granted
oil concessions to a British company that had to be honored by the present regime. The Tinoco regime
had seized power in Costa Rica by coup. Great Britain (P) and the United States never recognized the
Tinoco regime. When the Tinoco regime fell, the restored government nullified all Tinoco contracts,
including an oil concession to a British company. Great Britain (P) claimed that the Tinoco government
was the only government in existence at the time the contract was signed and its acts could not be
repudiated. Costa Rica (D) claimed that Great Britain (P) was estopped from enforcing the contract by its
nonrecognition of the Tinoco regime. The matter was sent for arbitration.

Issue:

Does nonrecognition of a new government by other governments destroy the de facto status of the
government?

Rule:

-A government that establishes itself and maintains a peaceful de facto administration need not to
conform to previous constitution and nonrecognition of the govt. by other govt.’s does not destroy the
de facto status of the govt.

Analysis:

The arbitrator found there was no estoppel. The evidence of nonrecognition did not outweigh the
evidence of the de facto status of the Tinoco regime. Unrecognized governments thus may have the
power to form valid contracts.

Outcome:

No. A government that establishes itself and maintains a peaceful de facto administration need not
conform to a previous constitution and nonrecognition of the govern ment by other governments does
not destroy the de facto status of the government. Great Britain's (P) nonrecognition of the Tinoco
regime did not dispute the de facto existence of that regime. There was no estoppel since the successor
government had not been led by British nonrecognition to change its position.

Upright vs Mercury Business Mach Co.

Petitioner is an individual who was assigned the rights of an assignor was organized by and is an arm and
instrumentality of such unrecognized East German Government. It was assigned the credit owned by the
assignor against the defendant. When petitioner attempted to claim, defendant refused to pay fir the
reason that the assignor was an arm of and was created by the East German Government, which was
not recognized by the US.

Whether respondent may use the fact that the credit held by petitioner was assigned to it by an
instrumentality of an unrecognized state by the US? –NO

The State may only determine whether another State’s existence is lawful. It cannot determine whether
the other State actually exists nor determine how far the private rights and obligations of individuals are
with respect to unrecognized states. Applying these principles, it is insufficient for defendant merely to
allege the nonrecognition of the East German Government and that plaintiff assignor was organized by
and is an arm and instrumentality of such unrecognized East German Government. The lack of jural
status for such government or its creature corporation is not determinative of whether transactions with
it will be denied enforcement in American courts, so long as the government is not the suitor