SHERWIN T.

LINGATING
EH 407 HUMAN RIGHTS

1. BURGHARTZ v. SWITZERLAND

Facts: The applicants, who are Swiss nationals. They were married in Germany in 1984. Mrs.
Burghartz has German citizenship. In accordance with German law, they chose the wife’s
surname, "Burghartz", as their family name; the husband availed himself of his right to put his
own surname in front of that and thus call himself "Schnyder Burghartz".

The Swiss registry office having recorded "Schnyder" as their joint surname, the couple applied
to substitute "Burghartz" as the family surname and "Schnyder Burghartz" as the husband’s
surname. But the cantonal government of Basle Rural turned down the application.

The applicants made a further application to the cantonal Department of Justice of Basle Urban,
following an amendment to the Civil Code as regards the effects of marriage but their
application was again refused, on the ground that they had not pointed to any serious
inconvenience arising from the use of the surname "Schnyder". Furthermore, in the absence of
any transitional provisions the new Article 30 para. 2 of the Civil Code could not apply to
couples married before 1 January 1988. Lastly, under the new Article 160 para. 2, only a wife
could put her own surname before the family name.

The applicants then lodged an appeal with the Federal Court in which they complained of,
among other things, a breach of the new Articles 30 and 160 para. 2 of the Civil Code and
Article 4 para. 2 of the Federal Constitution.

Issues: Can the wife’s surname (Burghartz) be used as the Family name?
Can the husband avail himself a right to put his own surname in front of the wife’s
surname?

Ruling: The Court ruled affirmative on the two issues.

RELEVANT DOMESTIC LAW

Article 4 para. 2 of the Swiss Federal Constitution provides:

"Men and women shall have equal rights. Equality shall be provided for by law, in particular in
relation to the family, education and work ..."

The relevant new Civil Code provisions that came into force on 1 January 1988 read as follows:

Article 30
"(1) The government of the canton of residence may, if there is good cause, authorize a person
to change his or her name.
(2) Engaged couples shall be authorized, if they so request and if they prove a legitimate
interest, to bear the wife’s surname as the family name once the marriage has been
solemnized...."

Article 160
"(1) Married couples shall take the husband’s surname as their family name.
(2) A bride may, however, make a declaration to the registrar that she wishes to keep the
surname she has borne to date, followed by the family name...."

Article 270
"(1) The children of married couples shall bear their family name...."

Article 8a of the final section

"Within one year of the entry into force of the new Act, a woman who was married under the
old law may make a declaration to the registrar that she wishes to put the surname she bore
before her marriage in front of the family name."

By a custom recognized in case-law, married couples may also put the wife’s surname after the
husband’s surname, joining the two with a hyphen. This double-barreled name, however, is not
regarded as the legal family name.

Court Ruling: There was discrimination on the ground of sex contrary to Articles 14 and 8 taken
together. The advancement of today’s equality of sexes is a major goal for the members of the
States of the council of Europe. This means that valid and unquestionable reasons must be put
forward before a difference of treatment on the sole ground of sex could be regarded as
compatible with the convention. The difference of treatment lacks and objective and reasonable
justification and contravenes the convention.

FOR THESE REASONS, THE COURT

1. Dismisses unanimously the Government’s preliminary objections;
2. Holds by six votes to three that Article 8 (art. 8) applies in this case;
3. Holds by five votes to four that there has been a breach of Article 14 taken together with
Article 8 (art. 14+8);
4. Holds unanimously that it is unnecessary to determine whether there has also been a breach
of Article 8 (art. 8) taken alone;
5. Holds unanimously that Switzerland is to pay the applicants, within three months, 20,000
(twenty thousand) Swiss francs in respect of costs and expenses;
6. Dismisses unanimously the remainder of the claim for just satisfaction.
 2. PRETTY v. THE UNITED KINGDOM

Facts: The applicant is a 43-year-old woman. The applicant suffers from motor neuron disease
(MND). This is a progressive neuro-degenerative disease of motor cells within the central
nervous system. The disease is associated with progressive muscle weakness affecting the
voluntary muscles of the body. Death usually occurs as a result of weakness of the breathing
muscles, in association with weakness of the muscles controlling speaking and swallowing,
leading to respiratory failure and pneumonia. No treatment can prevent the progression of the
disease.

The applicant's condition has deteriorated rapidly since MND was diagnosed in November 1999.
The disease is now at an advanced stage. However, her intellect and capacity to make decisions
are unimpaired. As she is frightened and distressed at the suffering and indignity that she will
endure if the disease runs its course, she very strongly wishes to be able to control how and
when she dies and thereby be spared that suffering and indignity.

Although it is not a crime to commit suicide under English law, the applicant is prevented by her
disease from taking such a step without assistance. It is however a crime to assist another to
commit suicide (section 2(1) of the Suicide Act 1961).

Intending that she might commit suicide with the assistance of her husband, the applicant's
solicitor asked the Director of Public Prosecutions (DPP), in a letter dated 27 July 2001 written
on her behalf, to give an undertaking not to prosecute the applicant's husband should he assist
her to commit suicide in accordance with her wishes.

Issue: Can a husband be not prosecuted for giving assistance to commit suicide of his wife who
is suffering from an incurable degenerative disease?

Ruling:

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Suicide, assisted suicide and consensual killing

Suicide ceased to be a crime in England and Wales by virtue of the Suicide Act 1961. However,
section 2(1) of the Act provides: “A person who aids, abets, counsels or procures the suicide of
another, or an attempt by another to commit suicide, shall be liable on conviction on indictment
to imprisonment for a term not exceeding fourteen years.”

Section 2(4) provides:

“No proceedings shall be instituted for an offence under this section except by or with the
consent of the Director of Public Prosecutions.”

Case-law has established that an individual may refuse to accept life-prolonging or life-
preserving treatment:
“First it is established that the principle of self-determination requires that respect must be
given to the wishes of the patient, so that if an adult patient of sound mind refuses, however
unreasonably, to consent to treatment or care by which his life would or might be prolonged,
the doctors responsible for his care must give effect to his wishes, even though they do not
consider it to be in his best interests to do so ... To this extent, the principle of the sanctity of
human life must yield to the principle of self-determination ...” (Lord Goff in Airedale NHS Trust
v. Bland [1993] AC 789, at p. 864)

This principle has been most recently affirmed in Ms B. v. an NHS Hospital, Court of Appeal
judgment of 22 March 2002. It has also been recognized that “dual effect” treatment can be
lawfully administered, that is treatment calculated to ease a patient's pain and suffering which
might also, as a side-effect, shorten their life expectancy.

Relevant International Materials:

A. Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe

recommended:

“... that the Committee of Ministers encourage the member States of the Council of Europe to
respect and protect the dignity of terminally ill or dying persons in all respects:
...

c. by upholding the prohibition against intentionally taking the life of terminally ill or dying
persons.

B. Article 2, European Convention on Human Rights (ECHR)

“Everyone’s right to life shall be protected by law…”

C. Article 3, ECHR
“No one shall be subject to torture or to inhuman or degrading treatments or punishments…”

D. Article 8, ECHR
“Everyone has the right to respect for his private and family life…”

E. Article 9, ECHR
“Everyone has the right to freedom of thought, Conscience and religion…”
“Freedom to manifest one’s beliefs shall be subject only to such limitations as prescribed by law
and are necessary in a democratic society.”

F. Article 14, ECHR

“The enjoyment of rights and freedoms shall be secured without discrimination.”

Court Ruling:

A. The court ruled that there was no violation of Article 2, ECHR. Article 2 (1) ECHR enjoins the
state not only to refrain from the unintentional and unlawful taking of life, but also to take
appropriate steps to safeguard the lives of those within its jurisdiction. Article 2 cannot, without
a distortion of language, be interpreted as conferring the diametrically opposite right, namely a
right to die, nor can it create a right to self-determination in the sense of conferring on an
individual the entitlement to choose death over life.

B. No violation of Article 3 of ECHR. The respondent-state has not in itself inflicted any ill-
treatment on the applicant. There is no complaint as well that the applicant is not receiving
adequate care from the state medical authorities. Article 3, must be construed in harmony with
Article 2.

C. No violation of Article 8 of the ECHR. The right to private life cannot encapsulate a right to
die with assistance. The interference in this case, may be justified as “necessary in a democratic”
community for the protection of others.

D. No violation of Article 9 of the ECHR. Not all opinions or convictions constitute beliefs in the
sense protected by Article 9 (1).

E. No violation of Art 14 of ECHR. The difference in the treatment between persons in analogous
or relevantly similar positions is discriminatory.
 3. Piandiong et al v. The Philippines

Facts: Counsel states that Messrs Piandiong and Morallos were arrested on 27 February 1994, on
suspicion of having participated, on 21 February 1994, in the robbery of passengers of a jeepney
in Caloocan City, during which one of the passengers, a policeman, was killed. After arriving in
the police station, Messrs Piandiong and Morallos were hit in the stomach in order to make
them confess, but they refused. During a line up, the eyewitnesses failed to recognize them as
the robbers.

The police then placed them in a room by themselves, and directed the eyewitnesses to point
them out. No counsel was present to assist the accused. During the trial, Messrs. Piandiong,
Morallos and Bulan testified under oath, but the judge chose to disregard their testimony,
because of lack of independent corroboration.

Counsel further complains that the death sentence was wrongly imposed, because the judge
considered that an aggravating circumstance existed, as the crime was committed by more than
three armed persons. According to counsel, however, this was not proven beyond reasonable
doubt.

Moreover, counsel states that the judge should have taken into account the mitigating
circumstance of voluntary surrender, since Messrs. Piandiong, Morallos and Bulan came with the
police without resisting.

Counsel further states that the testimonies of the eyewitnesses deserved no credence, because
the eyewitnesses were close friends of the deceased and their description of the perpetrators
did not coincide with the way Messrs. Piandiong, Morallos and Bulan actually looked. Counsel
also states that the judge erred when he did not give credence to the alibi defense.

Finally, counsel complains that the death penalty was unconstitutional and should not have
been imposed for anything but the most heinous crime.

Issue: Whether or not the state committed a grave breach of its obligations under the optional
protocol to the International Covenant on Civil and Political Rights by putting the alleged
victims to death before the Human Rights Committee had concluded its consideration and the
communication.

Ruling: Yes. It is inexcusable for the state to proceed to execute the 3 convicts after the
committee has acted under its rule 86 to request that the state party refrain from doing so.

I. Re: The grant of pardon presupposes that the decision of the Supreme Court is valid and the
President is merely exercising the virtue of Mercy.

There is nothing in the Protocol that restricts the right of an alleged victim if a violation of his
rights under the covenant from submitting a communication after a request for clemency or
pardon has been rejected. The State party may not unilaterally impose such a condition that
limits both the competence of the committee and the right of the alleged victims to submit
communications.

B. As to finding of Facts of the Local Courts. It is generally for the court of State-parties, and not
for the committee to evaluate the facts and evidence in a particular case, and to interpret the
relevant domestic legislation.

C. As to re-introduction of the death penalty in the Philippines violates or is not in compliance

with ICCPR. The committee cannot address this since neither counsel nor the state party has
made submissions in this respect.
 4. Kosiek vs Germany

Facts: Rolf Kosiek, German, worked in the First Institute of Physics at the University of
Heidelberg, first as an employee and then as a research assistant with the status of temporary
civil servant. Shortly after taking up his duties, he signed a statement certifying that he had been
given notice of the Federal Government’s decision on anti-democratic activities by civil servants
pursuant to the decree issued by the Land Government of Baden-Württemberg, whose first
paragraph read:
"It is taken for granted that candidates for civil-service posts shall not belong to
any organisation which sets out to abolish the free democratic constitutional
system or support such tendencies in any other way, directly or indirectly. If
necessary, appointment or employment should be regarded as having been
brought about by wilful deceit."

The third paragraph stated that it was for the authorities concerned to take "the necessary
action (disciplinary proceedings, dismissal)" "against staff who fail in their duty of loyalty.”

Mr. Kosiek joined the National Democratic Party of Germany (NPD). He left the NPD on 9
December 1980; he claims that he had already informed the Minister of Education and Culture,
in January 1974, that he intended to leave the party as soon as he was given tenure. He was an
NPD member of the Baden-Württemberg Parliament (Landtag) from 1 June 1968 to 31 May
1972, and stood for the party in the Federal elections in the autumn of 1972, when it failed to
secure any seats in the Bundestag.

Mr. Kosiek set out his political views in two books. The first of these, published in September
1972 and reprinted several times, is entitled "Marxismus? Ein Aberglaube! Naturwissenschaft
widerlegt die geistigen Grundlagen von Marx und Lenin" ("Marxism? A superstition! Science
disproves the intellectual foundations of Marx and Lenin"); the second, published in 1975, is
entitled "Das Volk in seiner Wirklichkeit - Naturwissenschaften und Leben bestätigen den
Volksbegriff" ("The People as it really is - Science and Life confirm the Concept of the Nation").

In 1970, he applied for a position as lecturer at the State Engineering College. He passed a test
there, and the college asked the Ministry of Education and Culture to appoint him. However, he
was not appointed thereat. A year later, having learned through the press that his political
activities in the NPD had been the main reason for his failure to secure the appointment, Mr.
Kosiek went to court to compel the Land to employ him. His case did not prosper. The Court of
Appeal held that he did not afford the guarantee required that he would at all times uphold the
free democratic constitutional system within the meaning of the Basic Law. It based its
conclusions mainly on his book "Das Volk in seiner Wirklichkeit."

In 1972, the applicant applied for a vacant post as lecturer at Nürtingen Technical College. With
two of the other seven candidates he took a test and was interviewed. The Lecturers’ Council
recommended the Ministry of Education and Culture to appoint him. On the same day, he was
interviewed on the subject of his past activities as a member of the Land Parliament and his
future political intentions. Immediately afterwards, he wrote to the principal of the college
assuring him that he would, if appointed, keep his professional duties and private political
commitment entirely separate and would not misuse his position as a teacher for political ends;
he added that he had no intention of appearing in public in Nürtingen or the surrounding area
as a party militant - during the election campaign for the Bundestag, for example.

The Ministry appointed him as a lecturer with the status of probationary civil servant. Eventually,
the principal of the College requested that Mr. Kosiek be given tenure for life. After examining
whether the legal conditions for tenure were fulfilled, the Ministry replied that Mr. Kosiek’s
attitude and political activities had given rise to doubts concerning his loyalty to the
Constitution and that he might even have to be dismissed.

The applicant was interviewed on the subject of his attitude to the Constitution. Later, the
Ministry gave him notice of dismissal, citing, inter alia, section 38(2) of the Land Civil Servants
Act, which provides for dismissal of a probationary civil servant where he has not proved himself
during the probationary period, and the decree declared him unsuitable for the post; as a
prominent NPD official, he had approved of NPD aims which were inimical to the Constitution
and had thus shown that he did not support the free democratic constitutional system by his
every word and deed and was not prepared to uphold it. According to the Ministry, the NPD
behaved in a manner hostile to the Constitution since, among other things, it rejected the idea
of international understanding, human rights and the existing democratic order; specifically, it
preached extreme nationalism and a racist ideology, and wished to abolish parliamentary
government and the multi-party system.

On 8 March 1974, the applicant lodged an objection against his dismissal. This was rejected by
the Ministry. He instituted proceedings before the Stuttgart Administrative Court on 10 June.

He asserted that it was common knowledge that he had personally and actively upheld the free
democratic system. Since becoming a teacher he had resigned from several of his NPD posts,
including those of chairman of the Rhine-Neckar branch, district agent for North Baden and
member of the Federal Executive Committee responsible for university matters. In addition, he
had deliberately restricted his political activities in the Nürtingen-Esslingen area and had not
appeared there in public. His membership of a party with aims allegedly inimical to the
Constitution was no reason for dismissing him. The Technical College and the Staff Committee
had supported him and had testified to his personal and professional abilities. Finally, the
probationary period was now over: the period which he had previously spent as a temporary
civil servant should be added to the two years and seven months which he had spent as a
probationary civil servant.

The Court held that Mr. Kosiek had failed to dispel the suspicion that he approved the NPD line.
On the contrary, he had identified himself with it by his many militant activities. These, and the
personal views he had expressed in his book "Das Volk in seiner Wirklichkeit", cast serious
doubts on his loyalty to the Constitution.

Article 5(3) of the Basic Law, which was relied on by the applicant and protected freedom of art,
science, research and teaching, did not lead to any different conclusion. Academics had a large
measure of professional independence but that did not absolve them from their duty of loyalty
to the Constitution. Notwithstanding the first sentence of Article 5(3), they remained civil
servants, and a university lecturer with the status of probationary civil servant could be
dismissed for unsuitability.
The Federal Administrative Court found against him been prompted, as the Court of Appeal had
held, by statements in the applicant’s book "Das Volk in seiner Wirklichkeit" but had been
corroborated and strengthened by them. The Constitutional Court decided on 31 July 1981 not
to entertain the constitutional complaint, on the ground that it had insufficient prospects of
success.

Citing its own case-law, it recalled firstly that the duty of loyalty to the State and the
Constitution was one of the traditional principles of the civil service. Anyone who was not clearly
prepared at all times to uphold the free democratic constitutional system was thus unfit to hold
a civil-service post. Any probationary civil servant who could not be relied upon to do so must
therefore be dismissed on grounds of personal unsuitability. In this connection, membership of
a party whose aims were incompatible with the free democratic system was a relevant
consideration.

In the ECHR level, Mr. Kosiek claimed that his dismissal contravened Article 10 of the
Convention:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not prevent States from requiring
the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the protection of
health or morals, for the protection of the reputation or rights of others, for preventing
the disclosure of information received in confidence, or for maintaining the authority
and impartiality of the judiciary."

The Government contended that this provision was not material in the circumstances; in their
submission, the present case concerned the right - not secured in the Convention - of access to
a post in the civil service. This contention did not find favour with the Commission.

The Universal Declaration of Human Rights of 10 December 1948 and the International
Covenant on Civil and Political Rights of 16 December 1966 provide, respectively, that "everyone
has the right of equal access to public service in his country" (Article 21 para. 2) and that "every
citizen shall have the right and the opportunity ... to have access, on general terms of equality,
to public service in his country" (Article 25). In contrast, neither the European Convention nor
any of its Protocols sets forth any such right. Moreover, as the Government rightly pointed out,
the signatory States deliberately did not include such a right: the drafting history of Protocols
Nos. 4 and 7 shows this unequivocally. In particular, the initial versions of Protocol No. 7
contained a provision similar to Article 21 para. 2 of the Universal Declaration and Article 25 of
the International Covenant; this clause was subsequently deleted. This is not therefore a chance
omission from the European instruments; as the Preamble to the Convention states, they are
designed to ensure the collective enforcement of "certain" of the rights stated in the Universal
Declaration.

While this background makes it clear that the Contracting States did not want to commit
themselves to the recognition in the Convention or its Protocols of a right of recruitment to the
civil service, it does not follow that in other respects civil servants fall outside the scope of the
Convention. In Articles 1 and 14, the Convention stipulates that "everyone within <the>
jurisdiction" of the Contracting States must enjoy the rights and freedoms in Section I "without
discrimination on any ground." And Article 11 para. 2 in fine, which allows States to impose
special restrictions on the exercise of the freedoms of assembly and association by "members of
the armed forces, of the police or of the administration of the State", confirms that as a general
rule the guarantees in the Convention extend to civil servants.

It is not for the European Court to review the correctness of the previous courts’ findings.

Access to the civil service lies at the heart of the issue submitted to the Court. In refusing Mr.
Kosiek such access - belated though the decision was - the responsible Ministry of the Land
took account of his opinions and activities merely in order to determine whether he had proved
himself during his probationary period and whether he possessed one of the necessary personal
qualifications for the post in question.

Held: By sixteen votes to one that there has been no breach of Article 10.
 5. Johnston and others vs Ireland

Facts:
The applicants are Roy H.W. Johnston (father), Janice Williams-Johnston (mother), and Nessa
Doreen Williams-Johnston (daughter). Roy married a Miss M in 1952 in a Church of Ireland
ceremony. Three children were born of this marriage. In 1965, it became clear to both parties
that the marriage had irretrievably broken down and they decided to live separately at different
levels in the family house. Several years later both of them, with the other’s knowledge and
consent, formed relationships and began to live with third parties. By mutual agreement, the
two couples resided in self-contained flats in the house until 1976, when Miss M moved
elsewhere. Since 1971, Roy and Janice lived together and in 1978, Nessa was born. Roy
consented to his name being included in the Register of Births as the father. Under the
Constitution of Ireland, Roy is unable to obtain, in Ireland, a dissolution of his marriage to
enable him to marry Janice. He has taken the following steps to regularise his relationship with
her and with his wife and to make proper provision for his dependents.
(a) With his wife’s consent, he has consulted solicitors in Dublin and in London as to the
possibility of obtaining a dissolution of the marriage outside Ireland. His London
solicitors advised that, in the absence of residence within the jurisdiction of the English
courts, he would not be able to do so in England, and the matter has therefore not been
pursued.
(b) On 19 September 1982, he concluded a formal separation agreement with his wife,
recording an agreement implemented some years earlier. She received a lump-sum of
IR£8,800 and provision was made for maintenance of the remaining dependent child of
the marriage. The parties also mutually renounced their succession rights over each
other’s estates.
(c) He has made a will leaving his house to Janice for life with remainder over to his four
children as tenants in common, one half of the residue of his estate to Janice, and the
other half to his four children in equal shares.
(d) He has supported Nessa throughout her life and has acted in all respects as a caring
father.
(e) He contributed towards the maintenance of his wife until the conclusion of the
aforementioned separation agreement and has supported the three children of his
marriage during their dependency.
(f) Janice has been nominated as beneficiary under the pension scheme attached to his
employment.
(g) He has taken out health insurance in the names of Janice and Nessa, as members of his
family.
Janice, who is largely dependent on Roy for her support and maintenance, is concerned at the
lack of security provided by her present legal status, in particular the absence of any legal right
to be maintained by him and of any potential rights of succession in the event of intestacy. As is
permitted by law, she has adopted the Roy’s surname, which she uses amongst friends and
neighbours, but for business purposes continues to use the name Williams. According to her,
she has felt inhibited about telling employers of her domestic circumstances and although she
would like to become an Irish citizen by naturalisation, she has been reluctant to make an
application, not wishing to put those circumstances in issue.

Nessa has, under Irish law, the legal situation of an illegitimate child and her parents are
concerned at the lack of any means by which she can, even with their consent, be recognised as
their child with full rights of support and succession in relation to them. They are also concerned
about the possibility of a stigma attaching to her by virtue of her legal situation, especially when
she is attending school.

Held:
FOR THESE REASONS, THE COURT

1. Rejects unanimously the Government’s preliminary pleas;

2. Holds by sixteen votes to one that the absence of provision for divorce under Irish law
and the resultant inability of the first and second applicants to marry each other do not
give rise to a violation of Article 8 or Article 12 of the Convention;

Article 12. Men and women of marriageable age have the right to marry and to found a family,
according to the national laws governing the exercise of this right.

Article 8. (1) Everyone has the right to respect for his private and family life, his home and his
correspondence. (2) There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for the protection of
the rights and freedoms of others."

3. Holds by sixteen votes to one that the first and second applicants are not victims of
discrimination, contrary to Article 14 taken in conjunction with Article 8, by reason of the
fact that certain foreign divorces may be recognised by the law of Ireland;

Article 14. The enjoyment of the rights and freedoms set forth in the Convention shall be
secured without discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a national minority,
property, birth or other status.

4. Holds by sixteen votes to one that Article 9 is not applicable in the present case;

(Art 9 guarantees to everyone the "right to freedom of thought, conscience and religion).

5. Holds unanimously that, as regards the other aspects of their own status under Irish law
complained of by the first and second applicants, there is no violation of Article 8;
 6. Holds unanimously that the legal situation of the third applicant under Irish law gives
rise to a violation of Article 8 as regards all three applicants;

As is recorded in the Preamble to the European Convention of 15 October 1975 on the Legal
Status of Children born out of Wedlock, "in a great number of member States of the Council of
Europe efforts have been, or are being, made to improve the legal status of children born out of
wedlock by reducing the differences between their legal status and that of children born in
wedlock which are to the legal or social disadvantage of the former". Furthermore, in Ireland
itself this trend is reflected in the Status of Children Bill recently laid before Parliament.

In its consideration of this part of the present case, the Court cannot but be influenced by these
developments. As it observed in its above-mentioned Marckx judgment, "respect" for family life,
understood as including the ties between near relatives, implies an obligation for the State to
act in a manner calculated to allow these ties to develop normally. And in the present case the
normal development of the natural family ties between the first and second applicants and their
daughter requires, in the Court’s opinion, that she should be placed, legally and socially, in a
position akin to that of a legitimate child.

Examination of the third applicant’s present legal situation, seen as a whole, reveals, however,
that it differs considerably from that of a legitimate child; in addition, it has not been shown that
there are any means available to her or her parents to eliminate or reduce the differences.
Having regard to the particular circumstances of this case and notwithstanding the wide margin
of appreciation enjoyed by Ireland in this area, the absence of an appropriate legal regime
reflecting the third applicant’s natural family ties amounts to a failure to respect her family life.

Moreover, the close and intimate relationship between the third applicant and her parents is
such that there is of necessity also a resultant failure to respect the family life of each of the
latter. Contrary to the Government’s suggestion, this finding does not amount, in an indirect
way, to a conclusion that the first applicant should be entitled to divorce and re-marry; this is
demonstrated by the fact that in Ireland itself it is proposed to improve the legal situation of
illegitimate children, whilst maintaining the constitutional prohibition on divorce.

7. Holds by sixteen votes to one that it is not necessary to examine the third applicant’s
allegation that she is a victim of discrimination, contrary to Article 14 taken in
conjunction with Article 8 (art. 14+8), by reason of the disabilities to which she is subject
under Irish succession law;

8. Holds unanimously that Ireland is to pay to the three applicants together, in respect of
legal costs and expenses referable to the proceedings before the Commission and the
Court, the sum of twelve thousand Irish pounds (IR£12,000), together with any value
added tax that may be chargeable;
 6. SECRETARY OF NATIONAL DEFENSE v. RAYMOND MANALO
GR No. 180906, 2008-10-07

Facts: Appeal via Petition for Review under Rule 45 of the Rules of Court in relation to Section
19 of the Rule on the Writ of Amparo, seeking to reverse and set aside on both questions of fact
and law, the Decision promulgated by the Court of Appeals.

Petition for Prohibition, Injunction, and Temporary Restraining Order (TRO) filed before this
Court by herein respondents (therein petitioners) on August 23, 2007 to stop herein petitioners
(therein respondents) and/or their... officers and agents from depriving them of their right to
liberty and other basic rights.

While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo took effect on
October 24, 2007.

Filed a Manifestation and Omnibus Motion to Treat Existing Petition as Amparo Petition

On December 26, 2007, the Court of Appeals rendered a decision in favor of therein petitioners.

PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.

Hence, this appeal.

The following night, Raymond attempted to escape Fort Magsaysay.

He was boxed repeatedly, kicked, and hit with chains until his back bled. They poured gasoline
on him. Then a so-called "Mam" or "Madam" suddenly called, saying that she wanted to see
Raymond before he was killed. The soldiers ceased the torture and he... was returned inside Fort
Magsaysay where Reynaldo was detained.

He claims further that he is truly innocent of the allegation against him as being one of the
abductors and he considers everything fabricated in order to destroy his name that remains
loyal to his... service to the government as a CAA member.

Alleged charges of abduction committed by the above named respondents has not been
established in this investigation. Hence, it lacks merit to indict them for any administrative
punishment and/or criminal liability. It is therefore concluded that they are innocent of the
charge.
The case at bar is the first decision on the application of the Rule on the Writ of Amparo
(Amparo Rule).

Issues: whether there is a continuing violation of respondents' right to security.

Ruling: Substantial evidence has been defined as such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Affirms the findings of the Court of Appeals
that respondents were abducted from their houses in Sito Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan on February 14, 2006 and were continuously detained until they escaped on
August 13, 2007. The abduction, detention, torture, and escape of the respondents were
narrated by respondent Raymond Manalo in a clear and convincing manner.
We are convinced, too, that the reason for the abduction was the suspicion that the petitioners
were either members or sympathizers of the NPA, considering that the abductors were looking
for Ka Bestre, who turned out to be Rolando, the brother of petitioners.

Gen. Palparan's participation in the abduction was also established. At the very least, he was
aware of the petitioners' captivity at the hands of men in uniform assigned to his command. In
fact, he or any other officer tendered no controversion to the firm claim of Raymond that... he
(Gen. Palparan) met them in person in a safe house in Bulacan and told them what he wanted
them and their parents to do or not to be doing. Gen. Palparan's direct and personal role in the
abduction might not have been shown but his knowledge of the dire situation of the...
petitioners during their long captivity at the hands of military personnel under his command
bespoke of his indubitable command policy that unavoidably encouraged and not merely
tolerated the abduction of civilians without due process of law and without probable cause.

Principles:

As the Amparo Rule was intended to address the intractable problem of "extralegal... killings"
and "enforced disappearances," its coverage, in its present form, is confined to these two
instances or to threats thereof. "Extralegal killings" are "killings committed without due process
of law, i.e., without legal safeguards or judicial... proceedings." On the other hand, "enforced
disappearances" are "attended by the following characteristics: an arrest, detention or abduction
of a person by a government official or organized groups or private individuals acting with the
direct or... indirect acquiescence of the government; the refusal of the State to disclose the fate
or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty
which places such persons outside the protection of law."

In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of amparo,
several of the above amparo protections are guaranteed by our charter. The second paragraph
of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the
judicial power "to 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."

The writ of amparo serves both preventive and curative roles in addressing the problem of
extralegal killings and enforced disappearances. It is preventive in that it breaks the expectation
of impunity in the commission of these offenses; it is curative in that it... facilitates the
subsequent punishment of perpetrators as it will inevitably yield leads to subsequent
investigation and action. In the long run, the goal of both the preventive and curative roles is to
deter the further commission of extralegal killings and enforced... disappearances.

The petition for a writ of amparo is a remedy available to any person whose right to life, liberty
and security is violated or threatened with violation by an unlawful act or omission of a public
official or employee, or of... a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof.

Sections 17 and 18, on the other hand, provide for the degree of proof required, viz:
Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish their
claims by substantial evidence.
Sec. 18. Judgment. - ... If the allegations in the petition are proven by substantial evidence, the
court shall grant the privilege of the writ and such reliefs as may be proper and appropriate;
otherwise, the privilege shall be denied.

The purpose of the constitutional guarantee against unreasonable searches and seizures is to
prevent violations of private security in person and property and unlawful invasion of the
security of the home by officers of the law acting under legislative or... judicial sanction and to
give remedy against such usurpation when attempted.

First, the right to security of person is "freedom from fear." In its "whereas" clauses, the
Universal Declaration of Human Rights (UDHR) enunciates that "a world in which human beings
shall enjoy freedom of speech and belief and freedom from fear and want... has been
proclaimed as the highest aspiration of the common people."... individual international human
right.

In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant on
Civil and Political Rights (ICCPR) also provides for the right to security of person, viz:

1. Everyone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention.

Philippines is a signatory to both the UDHR and the ICCPR.

Third, the right to security of person is a guarantee of protection of one's rights by the
government. In the context of the writ of amparo, this right is built into the guarantees of the
right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to
security of person as free... it was intended to narrow the concept of the right to security only to
situations of... formal deprivation of liberty.

It cannot be the case that, as a matter of law, States can ignore known threats to the life of
persons under their jurisdiction, just because that... he or she is not arrested or otherwise
detained. States parties are under an obligation to take reasonable and appropriate measures to
protect them.
 7. ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO vs .
COMMISSION ON ELECTIONS
G.R. No. 190582. April 8, 2010

FACTS:
Ang Ladlad is an organization composed of men and women who identify themselves as
lesbians, gays, bisexuals, or trans-gendered individuals which was incorporated in 2003. Ang
Ladlad first applied for registration with the COMELEC in 2006 but its application for registration
was denied on the ground that it has no substantial membership base. In 2009, Ang LadLad
again filed a Petition for registration. It argued that it represents marginalized and under-
represented sector which is particularly disadvantaged because of their sexual orientation and
gender identity and it complied with the 8- point guidelines enunciated in Ang Bagong Bayani
vs COMELEC.

COMELEC dismissed the said petition on moral grounds stating that the LGBT sector makes it
crystal clear that petitioner tolerates immorality which offends religious beliefs. Also it exposes
the youth to an environment that does not conform to the teachings of the faith. Petitioner
should likewise be denied accreditation not only for advocating immoral doctrines but likewise
for not being truthful when it said that it “or any of its nominees/party-list representatives have
not violated or failed to comply with laws, rules, or regulations relating to the elections.”

When Ang Ladlad sought reconsideration, three commissioners voted to overturn the First
Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando
Velasco), while three commissioners voted to deny Ang Ladlad’s Motion for Reconsideration
(Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC
Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the
First Assailed Resolution, stating that: Ladlad is applying for accreditation as a sectoral party in
the party-list system. Even assuming that it has properly proven its under-representation and
marginalization, it cannot be said that Ladlad’s expressed sexual orientations per se would
benefit the nation as a whole.

CHR files a Motion to intervene as amicus curiae and it opined that the denial of Petitioner’s
petition on moral grounds violated the standards and principles of the Constitution.
ISSUE:
Whether or not Respondent erred in denying the Petitioner’s application on moral and legal
grounds

RULING:
YES. Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the
proposition that only those sectors specifically enumerated in the law or related to said sectors
(labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers, and professionals) may be registered under the
party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission
on Elections, “the enumeration of marginalized and under-represented sectors is not exclusive”.
The crucial element is not whether a sector is specifically enumerated, but whether a particular
organization complies with the requirements of the Constitution and RA 7941.

Constitution provides in Article III, Section 5 that “[n]o law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof.” At bottom, what our non-
establishment clause calls for is “government neutrality in religious matters.” Clearly,
“governmental reliance on religious justification is inconsistent with this policy of neutrality.” We
thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize
the Bible and the Koran to justify the exclusion of Ang Ladlad. Be it noted that government
action must have a secular purpose.

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. The principle of non-discrimination requires the laws of general application
relating to elections be applied to all persons, regardless of sexual orientation.

Moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of
homosexuals from participation in the party-list system. The LGBT is a sector that can be
represented in the party-list system even if it is not specifically enumerated in the law. The
crucial element is not whether a sector specifically enumerated but whether a particular
organization complies with the requirements of the Constitution and RA 7941.
 8. GARCIA v. DRILON
G.R. No. 179267
June 25, 2013
699 SCRA 352

FACTS: Petitioner Jesus Garcia (husband) admitted having an affair with a bank manager. His
infidelity emotionally wounded private respondent which spawned several quarrels that left
respondent wounded. Petitioner also unconscionably beat up their daughter, Jo-ann.

The private respondent was determined to separate from petitioner. But she was afraid he
would take away their children and deprive her of financial support. He warned her that if she
pursued legal battle, she would not get a single centavo from him. After she confronted him of
his affair, he forbade her to hold office. This deprived her of access to full information about
their businesses. Hence, no source of income.

Thus, the RTC found reasonable ground to believe there was imminent danger of violence
against respondent and her children and issued a series of Temporary Protection Orders (TPO)
pursuant to RA 9262.

Republic Act No. 9262 is a landmark legislation that defines and criminalizes acts of violence
against women and their children (VAWC) perpetrated by women's intimate partners.

Petitioner hence, challenged the constitutionality of RA 9262 on making a gender-based

classification.

ISSUE: Whether or not RA 9262 is discriminatory, unjust, and violative of the equal protection
clause.

RULING: No. The equal protection clause in our Constitution does not guarantee an absolute
prohibition against classification. The non-identical treatment of women and men under RA
9262 is justified to put them on equal footing and to give substance to the policy and aim of the
state to ensure the equality of women and men in light of the biological, historical, social, and
culturally endowed differences between men and women.
RA 9262, by affording special and exclusive protection to women and children, who are
vulnerable victims of domestic violence, undoubtedly serves the important governmental
objectives of protecting human rights, insuring gender equality, and empowering women. The
gender-based classification and the special remedies prescribed by said law in favor of women
and children are substantially related, in fact essentially necessary, to achieve such objectives.
Hence, said Act survives the intermediate review or middle-tier judicial scrutiny. The gender-
based classification therein is therefore not violative of the equal protection clause embodied in
the 1987 Constitution.

9. Juan Ponce Enrile vs. Sandiganbayan and People of the Philippines

G.R. No. 213847
Aug. 18, 2015

Facts: Year 2014, Sen. Enrile was charged with plunder before the Sandiganbayan for their
alleged involvement in the diversion and misuse of appropriation under the PDAF. When his
warrant was issued, Sen. Enrile voluntarily surrendered to the CIDG and was later confined and
detained at the PNP General Hospital, he then filed a motion to fix bail where he argued that:

He should be allowed to post bail as a matter of right;

Although charged with plunder his penalty would only be reclusion temporal considering that
there are two mitigating circumstances, his voluntary surrender and that he is already at the age
of 90;

That he is not a flight risk and his medical condition must be seriously considered.

The Sandiganbayan however, denied his motion on the grounds that:

He is charged with a capital offense;

That it is premature for the Court to fix the amount of his bail because the prosecution have not
yet presented its evidences.
Sen. Enrile then filed a certiorari before the Supreme Court.

Issue: Whether or not the Sandiganbayan acted with grave abuse of discretion amounting to
lack or excess of jurisdiction for denying his motion to fix bail?

Ruling: Yes, the Supreme Court held that the Sandiganbayan arbitrarily ignored the objective of
bail and unwarrantedly disregarded Sen. Enrile’s fragile health and advanced age. Bail is a
matter right and is safeguarded by the constitution, its purpose is to ensure the personal
appearance of the accused during trial or whenever the court requires and at the same time
recognizing the guarantee of due process which is the presumption of his innocence until
proven guilty. The Supreme Court further explained that Bail for the provisional liberty of the
accused, regardless of the crime charged should be allowed independently of the merits
charged, provided his continued incarceration is injurious to his health and endanger his life.
Hence, the Sandiganbayan failed to observe that if Sen. Enrile be granted the right to bail it will
enable him to have his medical condition be properly addressed and attended, which will then
enable him to attend trial therefore achieving the true purpose of bail.

10. NORTH SEA CONTINENTAL SHELF CASES (SUMMARY)

International Court of Justice Contentious Case: The North Sea Continental Shelf Cases
(Germany/Denmark; Germany/Netherlands).

Year of Decision: 1969.

Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual
requirement for the formation of customary international law: (1) State practice (the objective
element) and (2) opinio juris (the subjective element). In these cases, the Court explained the
criteria necessary to establish State practice – widespread and representative participation. It
highlighted that the practices of those States whose interests were specially affected by the
custom were especially relevant in the formation of customary law. It also held that uniform and
consistent practice was necessary to demonstrate opinio juris – opinio juris is the belief that
State practice amounts to a legal obligation. The North Sea Continental Self Cases also dispelled
the myth that duration of the practice (i.e. the number of years) was an essential factor in
forming customary international law.

The case involved the delimitation of the continental shelf areas in the North Sea between
Germany and Denmark and Germany and Netherlands beyond the partial boundaries previously
agreed upon by these States. The parties requested the Court to decide the principles and rules
of international law that are applicable to the above delimitation because the parties disagreed
on the applicable principles or rules of delimitation. Netherlands and Denmark relied on the
principle of equidistance (the method of determining the boundaries in such a way that every
point in the boundary is equidistant from the nearest points of the baselines from which the
breath of the territorial sea of each State is measured). Germany sought to get a decision in
favor of the notion that the delimitation of the relevant continental shelf was governed by the
principle that each coastal state is entitled to a just and equitable share (hereinafter called just
and equitable principle/method). Contrary to Denmark and Netherlands, Germany argued that
the principle of equidistance was neither a mandatory rule in delimitation of the continental
shelf nor a rule of customary international law that was binding on Germany. The Court was not
asked to delimit because the parties had already agreed to delimit the continental shelf as
between their countries, by agreement, after the determination of the Court on the applicable
principles.
Facts of the Case:

Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle
(A-B and C-D). An agreement on further prolongation of the boundary proved difficult because
Denmark and Netherlands wanted this prolongation to take place based on the equidistance
principle (B-E and D-E) whereas Germany was of the view that, together, these two boundaries
would produce an inequitable result for her. Germany stated that due to its concave coastline,
such a line would result in her losing out on her share of the continental shelf based on
proportionality to the length of its North Sea coastline. The Court had to decide the principles
and rules of international law applicable to this delimitation. In doing so, the Court had to
decide if the principles espoused by the parties were binding on the parties either through
treaty law or customary international law.

North Sea Continental Shelf Cases

Questions before the Court:

I. Is Germany under a legal obligation to accept the equidistance-special circumstances

principle, contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958,
either as a customary international law rule or on the basis of the Geneva Convention?

The Court’s Decision:

The use of the equidistance method had not crystallized into customary law and the method
was not obligatory for the delimitation of the areas in the North Sea related to the present
proceedings.

Relevant Findings of the Court:

1. Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6,
binding on Germany?

1. Article 6 of the Geneva Convention stated that unless the parties had already agreed on a
method for delimitation or unless special circumstances exist, the equidistance method would
apply. Germany had signed, but not ratified, the Geneva Convention, while Netherlands and
Denmark were parties to the Convention. The latter two States argued that while Germany is not
a party to the Convention (not having ratified it), she was still bound by Article 6 of the
Convention because:

“…(1) by conduct, by public statements and proclamations, and in other ways, the Republic has
unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the
conventional regime; or has recognized it as being generally applicable to the delimitation of
continental shelf areas…

(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a
manner as to cause other States, and in particular Denmark and the Netherlands, to rely on the
attitude thus taken up” (the latter is called the principle of estoppel).
2. The Court rejected the first argument. It said that only a ‘very definite very consistent course
of conduct on the part of a State would allow the Court to presume that the State had somehow
become bound by a treaty (by a means other than in the formal manner: i.e. ratification) when
the State was ‘at all times fully able and entitled to…’ accept the treaty commitments in a formal
manner. The Court held that Germany had not unilaterally assumed obligations under the
Convention. The court also took notice of the fact that even if Germany ratified the treaty, she
had the option of entering into a reservation on Article 6, following which that particular article
would no longer be applicable to Germany (in other words, even if one were to assume that
Germany had intended to become a party to the Convention, it does not presuppose that it
would have also undertaken those obligations contained in Article 6).

3. Note: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in
1980, discusses in more detail treaty obligations of third States (those States who are not parties
to the treaty). It clearly stipulates that obligations arise for third States from a provision of a
treaty only if (1) the actual parties to the treaty intended the provision to create obligations for
third States; and (2) third State expressly accept those obligations in writing (Article 35 of the
VCLT). The VCLT was not in force when the Court deliberated on this case. However, as seen
above, the Court’s position is consistent the VCLT. (See the relevant provisions of the Vienna
Convention on the Law of Treaties).

4. The Court held that the existence of a situation of estoppel would have allowed Article 6 to
become binding on Germany – but held that Germany’s action did not support an argument for
estoppel. The Court also held that the mere fact that Germany may not have specifically
objected to the equidistance principle as contained in Article 6, is not sufficient to state that the
principle is now binding upon it.

5. In conclusion, the Court held that Germany had not acted in any manner so as to incur
obligations contained in Article 6 of the Geneva Convention. The equidistance–special
circumstances rule was not binding on Germany by way of treaty law.

II. Nature of the customary international law obligation: Is Germany bound by the provisions of
Article 6 of the Geneva Convention in so far as they reflect customary international law?

Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of general
international law on the subject of continental shelf delimitation’ and that it existed
independently of the Convention. Therefore, they argued, Germany is bound by the subject
matter of Article 6 by way of customary international law.

To decide if the equidistance principle bound Germany by way of customary international law,
the Court examined (1) the status of the principle contained in Article 6 as it stood when the
Convention was being drawn up; and (2) its status after the Convention came into force.

(a) What was the customary law status of Article 6 at the time of drafting the Convention?

The Court held that the principle of equidistance, as contained in Article 6 did not form a part of
existing or emerging customary international law at the time of drafting the Convention. The
Court supported this finding based on (1) the hesitation expressed by the drafters of the
Convention, the International Law Commission, on the inclusion of Article 6 into the Convention
and (2) the fact that reservations to Article 6 was permissible under the Convention. The Court
held:

“… Article 6 is one of those in respect of which, under the reservations article of the Convention
(Article 12) reservations may be made by any State on signing, ratifying or acceding, – for
speaking generally, it is a characteristic of purely conventional rules and obligations that, in
regard to them, some faculty of making unilateral reservations may, within certain limits, be
admitted; whereas this cannot be so in the case of general or customary law rules and
obligations which, by their very nature, must have equal force for all members of the
international community, and cannot therefore be the subject of any right of unilateral exclusion
exercisable at will by any one of them in its own favor…. The normal inference would therefore
be that any articles that do not figure among those excluded from the faculty of reservation
under Article 12, were not regarded as declaratory of previously existing or emergent rules of
law …” (see para 65 for a counter argument and the Court’s careful differentiation)

(b) Did the provisions in Article 6 on the equidistance principle attain the customary law status
after the Convention came into force?

The Court then examined whether the rule contained in Article 6 had become customary
international law after the Convention entered into force – either due the Convention itself (i.e.,
if enough States had ratified the Convention in a manner so as to fulfil the criteria specified
below), or because of subsequent State practice (i.e. even if an adequate number of States had
not ratified the Convention, one could find sufficient State practice to meet the criteria below).
The Court held that Article 6 of the Convention had not attained a customary law status.
(Compare the 1958 Geneva Convention with the four Geneva Conventions on 1949 relating to
international humanitarian law in terms of the latter’s authority as a pronouncement of
customary international law).

For a customary rule to emerge the Court held that it needed: (1) very widespread and
representative participation in the Convention, including States whose interests were specially
affected (in this case, they were coastal States) (i.e. generality); and (2) virtually uniform practice
(i.e. consistent and uniform usage) undertaken in a manner that demonstrates (3) a general
recognition of the rule of law or legal obligation (i.e. opinio juries). In the North Sea Continental
Shelf cases the court held that the passage of a considerable period of time was unnecessary
(i.e. duration) for the formation of a customary law.

Widespread and representative participation

The Court held that the first criteria was not met. The number of ratifications and accessions to
the Convention (39 States) were not adequately representative or widespread.

The Court held that the duration taken for a customary law rule to emerge is not as important as
widespread and representative participation, uniform usage, and the existence of an opinio juris.
It held that:

“Although the passage of only a short period of time (in this case, 3 – 5 years) is not necessarily,
or of itself, a bar to the formation of a new rule of customary international law on the basis of
what was originally a purely conventional rule, an indispensable requirement would be that
within the period in question, short though it might be, State practice, including that of States
whose interests are specially affected, should have been both extensive and virtually uniform in
the sense of the provision invoked and should moreover have occurred in such a way as to show
a general recognition that a rule of law or legal obligation is involved.”

Opinio juris

Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case), in so far
as those acts or omissions were done following a belief that the said State is obligated by law to
act or refrain from acting in a particular way. (For more on opinio juris click here).

The Court examined 15 cases where States had delimited their boundaries using the
equidistance method, after the Convention came into force (paras. 75 -77). The Court concluded
that even if there were some State practice in favour of the equidistance principle, the Court
could not deduct the necessary opinio juris from this State practice. The North Sea Continental
Shelf Cases confirmed that both State practice (the objective element) and opinio juris (the
subjective element) are essential pre-requisites for the formation of a customary law rule. This is
consistent with Article 38 (1) (b) of the Statute of the ICJ. The Court explained the concept of
opinio juris and the difference between customs (i.e. habits) and customary law:

“Not only must the acts concerned amount to a settled practice, but they must also be such, or
be carried out in such a way, as to be 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 belief, i.e, the
existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual character of the acts is not in
itself enough. There are many international acts, e.g., in the field of ceremonial and protocol,
which are performed almost invariably, but which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty.” (Para 77).

The Court concluded that the equidistance principle was not binding on Germany by way of
treaty or customary international law. In the case of the latter, the principle had not attained a
customary international law status at the time of the entry into force of the Geneva Convention
or thereafter. As such, the Court held that the use of the equidistance method is not obligatory
for the delimitation of the areas concerned in the present proceedings.
 11. Nicaragua v. United States

Brief Fact Summary. Nicaragua brought a suit against the United States on the ground that the
United States was responsible for illegal military and paramilitary activities in and against
Nicaragua. The jurisdiction of the International Court of Justice to entertain the case as well as
the admissibility of Nicaragua’s application to the I.C.J. was challenged by the United States.

Synopsis of Rule of Law. Nicaragua brought a suit against the United States on the ground that
the United States was responsible for illegal military and paramilitary activities in and against
Nicaragua. The jurisdiction of the International Court of Justice to entertain the case as well as
the admissibility of Nicaragua’s application to the I.C.J. was challenged by the United States.

Facts. The United States challenged the jurisdiction of the I.C.J when it was held responsible for
illegal military and paramilitary activities in and against Nicaragua in the suit the plaintiff
brought against the defendant in 1984. Though a declaration accepting the mandatory
jurisdiction of the Court was deposited by the United States in a 1946, it tried to justify the
declaration in a 1984 notification by referring to the 1946 declaration and stating in part that
the declaration “shall not apply to disputes with any Central American State….”

Apart from maintaining the ground that the I.C.J lacked jurisdiction, the States also argued that
Nicaragua failed to deposit a similar declaration to the Court. On the other hand, Nicaragua
based its argument on its reliance on the 1946 declaration made by the United states due to the
fact that it was a “state accepting the same obligation” as the United States when it filed charges
in the I.C.J. against the United States. Also, the plaintiff intent to submit to the compulsory
jurisdiction of the I.C.J. was pointed out by the valid declaration it made in 1929 with the I.C.J’s
predecessor, which was the Permanent Court of International Justice, even though Nicaragua
had failed to deposit it with that court. The admissibility of Nicaragua’s application to the I.C.J.
was also challenged by the United States.

Issue. (1) Is the jurisdiction to entertain a dispute between two states, if they both accept the
Court’s jurisdiction, within the jurisdiction of the International Court of Justice?
(2) Where no grounds exist to exclude the application of a state, is the application of such a
state to the International Court of Justice admissible?

Held. (1) Yes. The jurisdiction of the Court to entertain a dispute between two states if each of
the States accepted the Court’s jurisdiction is within the jurisdiction of the International Court of
Justice. Even though Nicaragua declaration of 1929 was not deposited with the Permanent
Court, because of the potential effect it had that it would last for many years, it was valid.

Thus, it maintained its effect when Nicaragua became a party to the Statute of the I.C.J because
the declaration was made unconditionally and was valid for an unlimited period. The intention
of the current drafters of the current Statute was to maintain the greatest possible continuity
between it and the Permanent Court. Thus, when Nicaragua accepted the Statute, this would
have been deemed that the plaintiff had given its consent to the transfer of its declaration to
the I.C.J.

(2) Yes. When no grounds exist to exclude the application of a state, the application of such a
state to the International Court of Justice is admissible. The five grounds upon which the United
States challenged the admissibility of Nicaragua’s application were that the plaintiff failed
because there is no “indispensable parties” rule when it could not bring forth necessary parties,
Nicaragua’s request of the Court to consider the possibility of a threat to peace which is the
exclusive province of the Security Council, failed due to the fact that I.C.J. can exercise
jurisdiction which is concurrent with that of the Security Council, that the I.C.J. is unable to deal
with situations involving ongoing armed conflict and that there is nothing compelling the I.C.J.
to decline to consider one aspect of a dispute just because the dispute has other aspects due to
the fact that the case is incompatible with the Contadora process to which Nicaragua is a party.
 12. Reservations to the Convention on Genocide.
Citation. I.C.J., Advisory Opinion, 1951 I.C.J.

Brief Fact Summary. Reservations to various provisions to the U.N. Conventions on Genocide
were effected by several signatories’ states to it.

Synopsis of Rule of Law. A reservation to the U.N. Convention on Genocide may be effected by a
state and still be considered a signatory thereto.

Facts. The convention on Genocide was unanimously adopted by the United Nations in 1951.
Several states made reservations to one or more of its provisions. An opinion as to whether a
party could express reservations and still be considered a signatory was laid before the
International Court of Justice.

Issue. May a reservation to the U.N. Convention on Genocide be made by a state and still be
considered a signatory thereto?

Held. Yes. A reservation to the U.N. Convention on Genocide may be effected by a state and still
be considered a signatory thereto. In a multilateral treaty, as long as the reservation does not
defeat the purpose of the treaty, a reservation is permitted. By virtue of its sovereignty, it has
been argued that a state may affect any reservation. In this case, the validity of each reservation
must be examined on a case-by-case basis since numerous reservations were made by different
states. (The court held that the state objecting to a reservation could if it desired, consider the
reserving state not to be a party to the Convention.

Discussion. Politics was at play in this case as it has also been in other cases. Going by
precedence, international law usually held that reservations to a multilateral treaty had to be
accepted by all other parties. Unanimous acceptance of the Convention would not have made
the Convention possible if the rule was followed. The Court was undoubtedly determined to
facilitate such unanimity.
 13. CASE CONCERNING UNITED STATES DIPLOMATIC AND
CONSULAR STAFF IN TEHRAN
Judgment of 24 May 1980

Facts: In November 4, 1979, student militants of the group Muslim Student Followers of the
Imam's Line barged into the US Embassy in Tehran and held US diplomats and consular hostage
for 444 days. The cause of the Iranian students’ action against the US was believed to be the
latter’s grant of medical asylum to Shah Mohammad Reza Pahlavi and its refusal to turn the
Shah over for trial.

The US sought recourse before the international court, asking that the hostages be freed and
that reparations be given to the US by the Iranian government for the latter’s failure to carry its
international legal obligations. US averred that Iran was responsible due to its initial inaction to
the crisis and its subsequent statement of support to the seizure.

Issue: Whether or not Iran was liable to the United States for the seizure of the US embassy and
the hostage-taking of the US nationals by the Iranian militants.

Ruling: Iran was under obligation to make reparations for the injury caused to the United
States.

Iran’s failure to take appropriate steps to protect the US embassy and Consulates was a violation
of its obligations under the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna
Convention on Consular Relations, and 1955 Treaty of Amity, Economic Relations and Consular
Rights between Iran and the United States. Iran had the international legal responsibility to keep
the embassy inviolable. Iran was fully aware of its obligations but it did nothing to prevent the
take over and the captivity of the US nationals.

Although the take-over of the embassy was not held to have been an act of the state, the
consequent detention of the US nationals was attributed to Iran because of its approval and
support to said detention, such act was a violation of the provisions in the aforenamed
conventions and treaty. “Once organs of the Iranian State had thus given approval to the acts
complained of and decided to perpetuate them as a means of pressure on the United States,
those acts were transformed into acts of the Iranian State: the militants became agents of that
State, which itself became internationally responsible for their acts.”

For its breaches, the Islamic Republic of Iran had incurred responsibility towards the United
States of America. Iran is obliged to make reparations and to endeavor for the release of the
hostages.

14. Corfu Channel Case (United Kingdom v. Albania)

Citation. I.C.J., 1949 1.C.J.4.

Brief Fact Summary. The right to send its warship through the straits used for international
navigations was the claim put forward by the United Kingdom (P).

Synopsis of Rule of Law. The geographical situation connecting two parts of the high seas and
not the fact of its being used for international navigation is the test of whether a channel should
be considered as belonging to the class of international highways through which passage
cannot be prohibited by a coastal state in time of peace.

Facts. Albanian (D) forces fired at British warships (P) which were sailing though the North Corfu
Channel. The Albanian (D) government maintained that foreign ships had no right to pass
through Albanian territorial waters without prior notification and permission from its authorities
when the United Kingdom (P) protested the actions of the Albanian (D) forces. The argument
United Kingdom (P) put forward was that states could send their ships for innocent purposes
through straits used for international navigation but the Albanian (D) refuted this on the ground
that the channel did not belong to the class f international highways through which a right of
passage exists because it was exclusively for local traffic. This channel has also been a subject of
territorial disputes between Greece and Albania, though Albania was afraid of Greek incursions.

Issue. Can the geographical situation connecting two parts of the highs sea and not the fact of
its being used for the international navigation, be a test of whether a channel can be considered
as belonging to the class of international highways through which passage cannot be prohibited
by a coastal state in a time of peace?

Held. Yes. The geographical situation connecting two parts of the high seas and not the fact of
its being used for international navigation is the test of whether a channel should be considered
as belonging to the class of international highways through which passage cannot be prohibited
by a coastal state in time of peace. The North Corfu Channel can be categorized to the class of
international highways through which passage cannot be prohibited by a coastal state in time of
peace. If Albania had issued such regulation in light of the state of war with Greece, then
Albania would have been justified in issuing regulations in respect of the passage of warships
through the strait.

Discussion. In 1982, the U.N. Convention on the Law of the Sea was passed. It stipulates that
whether coastal or landlocked, states can enjoy the right of innocent passage through territorial
sea. But 12 nautical miles from the coast was the maximum limit of which the territorial sea was
held to exist.

15. CASE CONCERNING EAST TIMOR

(PORTUGAL v. AUSTRALIA)

In its Judgment on the case concerning East Timor (Portugal v. Australia), the Court, by 14 votes
to 2, found that it could not exercise the jurisdiction conferred upon it by the declarations made
by the Parties under Article 36, paragraph 2, of its Statute to adjudicate upon the dispute
referred to it by the Application of the Portuguese Republic.

-----------
Summary of the Judgment
Procedural history (paras. 1-10)

In its Judgment the Court recalls that on 22 February 1991 Portugal instituted proceedings
against Australia concerning "certain activities of Australia with respect to East Timor".
According to the Application Australia had, by its conduct, "failed to observe -- the obligation to
respect the duties and powers of [Portugal as] the administering Power [of East Timor].. and...
the right of the people of East Timor to self-determination and the related rights". In
consequence, according to the Application, Australia had "incurred international responsibility
vis-…-vis both the people of East Timor and Portugal". As the basis for the jurisdiction of the
Court, the Application refers to the declarations by which the two States have accepted the
compulsory jurisdiction of the Court under Article 36, paragraph 2, of its Statute. In its Counter-
Memorial, Australia raised questions concerning the jurisdiction of the Court and the
admissibility of the Application. In the course of a meeting held by the President of the Court
the Parties agreed that these questions were inextricably linked to the merits and that they
should therefore be heard and determined within the framework of the merits. The written
proceedings having been completed in July 1993, hearings were held between 30 January and
16 February 1995. The Judgment then sets out the final submissions which were presented by
both Parties in the course of the oral proceedings.
Historical background (paras. 11-18)

The Court then gives a short description of the history of the involvement of Portugal and
Indonesia in the Territory of East Timor and of a number of Security Council and General
Assembly resolutions concerning the question of East Timor. It further describes the
negotiations between Australia and Indonesia leading to the Treaty of 11 December 1989, which
created a "Zone of Cooperation... in an area between the Indonesian Province of East Timor and
Northern Australia".

Summary of the contentions of the Parties (paras. 19-20)

The Court then summarizes the contentions of both Parties.

Australia's objection that there exists in reality no dispute between the Parties (paras. 21-22)

The Court goes on to consider Australia's objection that there is in reality no dispute between
itself and Portugal. Australia contends that the case as presented by Portugal is artificially
limited to the question of the lawfulness of Australia's conduct, and that the true respondent is
Indonesia, not Australia. Australia maintains that it is being sued in place of Indonesia. In this
connection, it points out that Portugal and Australia have accepted the compulsory jurisdiction
of the Court under Article 36, paragraph 2, of its Statute, but that Indonesia has not.

The Court finds in this respect that for the purpose of verifying the existence of a legal dispute
in the present case, it is not relevant whether the "real dispute" is between Portugal and
Indonesia rather than Portugal and Australia. Portugal has, rightly or wrongly, formulated
complaints of fact and law against Australia which the latter has denied. By virtue of this denial,
there is a legal dispute.

Australia's objection that the Court is required to determine the rights and obligations of
Indonesia (paras. 23-35)

The Court then considers Australia's principal objection, to the effect that Portugal's Application
would require the Court to determine the rights and obligations of Indonesia. Australia
contends that the jurisdiction conferred upon the Court by the Parties' declarations under
Article 36, paragraph 2, of the Statute would not enable the Court to act if, in order to do so, the
Court were required to rule on the lawfulness of Indonesia's entry into and continuing presence
in East Timor, on the validity of the 1989 Treaty between Australia and Indonesia, or on the
rights and obligations of Indonesia under that Treaty, even if the Court did not have to
determine its validity. In support of its argument, it refers to the Court's Judgment in the case of
the Monetary Gold Removed from Rome in 1943. Portugal agrees that if its Application required
the Court to decide any of these questions, the Court could not entertain it. The Parties
disagree, however, as to whether the Court is required to decide any of these questions in order
to resolve the dispute referred to it.

Portugal contends first that its Application is concerned exclusively with the objective conduct
of Australia, which consists in having negotiated, concluded and initiated performance of the
1989 Treaty with Indonesia, and that this question is perfectly separable from any question
relating to the lawfulness of the conduct of Indonesia.
Having carefully considered the argument advanced by Portugal which seeks to separate
Australia's behaviour from that of the Indonesia, the Court concludes that Australia's behaviour
cannot be assessed without first entering into the question why it is that Indonesia could not
lawfully have concluded the 1989 Treaty, while Portugal allegedly could have done so; the very
subject-matter of the Court's decision would necessarily be a determination whether, having
regard to the circumstances in which Indonesia entered and remained in East Timor, it could or
could not have acquired the power to enter into treaties on behalf of East Timor relating to the
resources of its continental shelf. The Court could not make such a determination in the absence
of the consent of Indonesia.

The Court rejects Portugal's additional argument that the rights which Australia allegedly
breached were rights erga omnes and that accordingly Portugal could require it, individually, to
respect them regardless of whether or not another State had conducted itself in a similarly
unlawful manner.

In the Court's view, Portugal's assertion that the right of peoples to self-determination, as it
evolved from the Charter and from United Nations practice, has an erga omnes character, is
irreproachable. The principle of self-determination of peoples has been recognized by the
United Nations Charter and in the jurisprudence of the Court; it is one of the essential principles
of contemporary international law. However, the Court considers that the erga omnes character
of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of
the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State
when its judgment would imply an evaluation of the lawfulness of the conduct of another State
which is not a party to the case.

The Court goes on to consider another argument of Portugal which, the Court observes, rests on
the premise that the United Nations resolutions, and in particular those of the Security Council,
can be read as imposing an obligation on States not to recognize any authority on the part of
Indonesia over East Timor and, where the latter is concerned, to deal only with Portugal.
Portugal maintains that those resolutions would constitute "givens" on the content of which the
Court would not have to decide de novo.

The Court takes note of the fact that, for the two Parties, the Territory of East Timor remains a
non-self-governing territory and its people has the right to self-determination, and that the
express reference to Portugal as the "administering Power" in a number of the above-
mentioned resolutions is not at issue between them. The Court finds, however, that it cannot be
inferred from the sole fact that a number of resolutions of the General Assembly and the
Security Council refer to Portugal as the administering Power of East Timor that they intended
to establish an obligation on third States to treat exclusively with Portugal as regards the
continental shelf of East Timor. Without prejudice to the question whether the resolutions under
discussion could be binding in nature, the Court considers as a result that they cannot be
regarded as "givens" which constitute a sufficient basis for determining the dispute between the
Parties.

It follows from this that the Court would necessarily have to rule upon the lawfulness of
Indonesia's conduct as a prerequisite for deciding on Portugal's contention that Australia
violated its obligation to respect Portugal's status as administering Power, East Timor's status as
a non-self-governing territory and the right of the people of the Territory to self-determination
and to permanent sovereignty over its wealth and natural resources. Indonesia's rights and
obligations would thus constitute the very subject matter of such a judgment made in the
absence of that State's consent. Such a judgment would run directly counter to the "well-
established principle of international law embodied in the Court's Statute, namely, that the
Court can only exercise jurisdiction over a State with its consent" (Monetary Gold Removed from
Rome in 1943, I.C.J. Reports 1954, p. 32).

Conclusions (paras. 36-37)

The Court accordingly finds that it is not required to consider Australia's other objections and
that it cannot rule on Portugal's claims on the merits, whatever the importance of the questions
raised by those claims and of the rules of international law which they bring into play.

The Court recalls in any event that it has taken note in the Judgment that, for the two Parties,
the Territory of East Timor remains a non-self-governing territory and its people has the right to
self-determination.